SOURCES OF

INTERNATIONAL LAW
 Introduction
• Rules and norms of any legal system
derives authority from their sources.
• Sources articulate what law is and where
it can be found.
• In a developed municipal legal system,
there is a parliamentary legislation and
judicial decision which are sources of law
but in the international plane there is
neither.
• Further there is no written constitution
which identifies the various organs.
• Article 38 of the Statute of the International
Court of Justice accepts the following
authoritative source of international law:
– International conventions whether general or
particular establishing rules expressly
recognized by the contesting states
– International custom as evidence of a general
practice accepted as law
– General principled of law recognized by
civilized nations
– As per Article 59, judicial decisions and
teaching of highly qualified publicists are
subsidiary means for determining rule of law
• Sources are of two categories, namely:
– Formal and
– Material
• Formal sources constitute what the law is
whereas material source identifies where
the law is found.
• Article 38 (1) (a –c) – Treaties, customs and
general principles are formal sources and
• Article 38 (1) (d) – Judicial decisions and
juristic teachings are material sources
 Major Sources of International
Law
• Custom
• Treaties
• General Principles of law recognized by
civilized nations
• Decisions of judicial or arbitral tribunals
• Juristic works
• Decisions of international institutions
 I. Custom
• Customary law is both the oldest source
and the one which generates rules binding
on all States.
• Customary law is not a written source.
• Custom is described as a general practice
accepted as law.
• Vattel defined customary law of nations as
‘certain maxims and customs consecrated
by long usage and observed by nations in
their mutual relation with each other as a
kind of law.
• A rule of customary law is the rule of
conduct recognized by the community of
nations as the right rule of conduct and
having force of law.

• In the Asylum case, custom was

considered as a constant and uniform
usage accepted as law.
 Custom and Usage
• Usage is the twilight stage of custom.
• Custom begins where usage ends

• Usage is an international habit of action

that has not yet received full legal
attestation
• Hence every custom is a usage but every
usage is not a custom
 Attributes of Customs
• Antiquity
• Certainty
• Continuity
• Consistency
• Enjoyability as a right
• A new rule of customary international law
cannot be created unless both of these
elements are present.
– Practice alone is not enough – see, e.g.,
the Case of the SS Lotus (1927).
– Nor can a rule be created by opinio juris
without actual practice – e.g., the
Advisory Opinion on Nuclear Weapons
(1996).
• A rule of customary law, e.g., requiring
States to grant immunity to a visiting Head
of State, is said to have two elements.
• 1) First, there must be widespread and
consistent State practice – i.e., States must,
in general, have a practice of according
immunity to a visiting Head of State.
• 2) Secondly, there has to be what is called
“opinio juris”, usually translated as “a
belief in legal obligation; i.e., States must
accord immunity because they believe
they have a legal duty to do so.
 1) General Practice
• With regard to practice, it is not only the
practice of the Government of a state but
also of its Courts and Parliament.
• Practice must examine- what it actually says
about law
• E.g.,: Some states practicing torture does not
mean that there is no practice outlawing it.
• The observance and acceptance of a practice
gives birth to a customary rule of
international law.
• And when more and more states practice, it
acquire the status of universal custom.
 2) Opinio juris sive necessitatis
• It is a independent obligation, a sense on
behalf of a state that it is bound to the law
in question.
• It is a belief by states that their practice is
legally required by the norm.
• They must follow the practice because of
this belief rather than because of the
demands of courtesy, reciprocity, comity,
morality, or simple political expediency.
• North Sea Continental Shelf cases, ICJ
Reps, 1969, p. 3 at 44-ICJ has stated that :
• Not only must the acts concerned be a settled
practice which is extensive and virtually
uniform, but they must also be such, or be
carried out in such a way, as to be evidence
of a belief that this practice is rendered
obligatory by the existence of a rule requiring
it.
• The States concerned must feel that they are
conforming to what amounts to a legal
obligation.’
• Hence, customary practice even when it is
general and consistent is not customary
law unless the practice is recognized as
being required by international law.

• This sense of obligation distinguished

from motives of fairness, convenience or
morality that underlies customary law
 Development of Custom
• Custom may be developed from the
practice of states.
– Diplomatic relations between states:
Acts or declarations by statesmen,
opinion of legal advisers to the state
government, bilateral treaties and official
statements of government spokesperson
constitute evidence of usage followed by
states
– Practice of international organs: It may
lead to customary laws relating to status,
powers and responsibilities. It may be by
actual conduct or by declaration made in the
course of application of international law.
– State laws and decision of state courts:
Customs can also be derived from state laws
or from judicial decisions of state courts or
of state practice. If the state practice or state
law of several states concur then it can be
recognized as a principle of law
• Scotia case – decided by the US Supreme
Court (1874)
• Scotia a British ship collided with a US ship,
Berkshire and as a result US ship sank. The
US ship was not having the lights which it
was supposed to carry as per the new British
regulations which was accepted by the US
congress.
• On the concurrence of these states a new law
was evolved and so the US ship cannot claim
damages as they are at fault.
 Application of International
custom in international law
• West Rand Central Gold Mining
Company Ltd v. R (1905) – It laid down
the test for recognizing customs. The
custom must be of such a nature that it has
received general consent of the stated and
no civilized state shall oppose it.
• Right of passage over Indian Territory Case
(Portugal v. India) 1960 – The ICJ held that
when two states follow a practice repeatedly
for a long time then it becomes a binding
customary rule.
• Portugal used to send its nationals and military
through Indian territory until 1954 between
Dadra and Nagar Haveli and Daman.
However, India this right was subject to the
regulation of India.
• Between October 1953 and July 1954 certain
instances led to a sour relation between the
states.
• This led to tensions in Dadra and the
people revolted against the Portuguese.
Thereafter, India suspended the passage.
• This was challenged by Portugal before ICJ.
• The passage was as per a Treaty singed
between the two nations in 1779.
• The court held that Portugal is not entitled
to sent its national through the Indian
Territory.
• However, the court said that the treaty
entered was valid and as per the treaty the
Indian territory was to be used as a
passage.
• And if the passage is for a long time then
it will gain the force of law.
• In 1974, a treaty was signed between the
two nations recognizing the full
sovereignty of India over Goa, Daman and
Diu, Dadra and Nagar Haveli
 II. Treaties
• In the modern era, International treaties
are the most important source of law.
• Article 38 (a) refer to any international
conventions, whether general or
particular establishing rules expressly
recognized by the contesting states.
• It means that if any existing treaty
provision binds the parties to the dispute
before the court then if relevant the treaty
can be applied.
• In an international dispute, the
International Tribunal has to find out
whether there is an international treaty on
the point.
• If there is an international treaty the
decision of the court is based on the
provision of the treaty.
• Treaties are binding on the states which
become party to them and it is upon the
state to decide whether it need to be a part
of the treaty or not.
• Treaties are authoritative statements of
customary law.
• Most treaties are those unwritten
customary rules of law
• Vienna convention is an example, where
only half of the states in the world are
signatories but still almost every court has
considered it as a codified customary law.
• Once a customary rule becomes a treaty
then it will be looked upon and its
interpretation has to be considered rather
than the practice which was followed
earlier.
• Article 2 of Vienna Convention on the
Law of the Treaties, 1969 “a treaty is an
agreement whereby two or more States
establish or seek to establish relationship
between them governed by international
law”.
• Treaties may be between two states
(bipartite) or between several states
(multipartite).
Types of International Treaties
1. Treaty Contracts or “traités contrats:
– Treaty contracts are entered into by two or
more states.
– Provisions of such treaty are binding on the
parties to treaty.
– It helps in the development of customary
rules of international law
– It generally does not create a source of
international law.
– It lays down special obligations between
parties on a special matter concerning the
state.
2. Law Making Treaties or traités lois:
– Provisions of the law making treaty are the
sources of law
– It lays down the general rules binding on the
majority of the states.
– It is used when large number of parties are
involved and to create a general norm
– The Peace of Westphalla, the Congress of
Vienna, the Declaration of Paris, Geneva
Convention are a few examples.
• Law making treaties are again divided
into
– Treaties enunciating rules of universal
international law. Eg: UN Charter
– International treaties which laydown
general principles. Eg: Hague Convention

• Law making treaties perform the same

functions in the international field as
legislation does in the state field
 3. General and Particular Treaties
• The Statute of ICJ provides that the court
shall apply international conventions
whether general or particular, establishing
rules expressly recognized by the
contesting states.
• A treaty may be general on account of the
number of state parties to it or on the basis
of the subject-matter, with which it is
concerned.
• A treaty may be particular on the basis of
less number of states which are party to it
or on account of limited nature of the
subject-matter of the treaty.
 4. Universal Treaties
• Those treaties in which all countries have
consented.
• Eg: Four Geneva Conventions, 1949 which
deals with the rules regarding the
safeguarding of sick, wounded and
shipwrecked, prisoners of war and
civilians.
Charter, conventions and treaty
• Charter is a formal, solemn instrument
such as the constituent treaty of an
international organization – UN Charter
• Convention is a formal multilateral
treaties with a broad number of parties.
• Treaty as a specific term refers to matters
of some gravity that require solemn
agreements
• Some other terms used instead of treaties
are agreement, protocols, conventions etc.
 Protocol
• Protocol is an agreement supplement to
principal treaty.

• Eg: Additional Protocol to Geneva

Convention 1977
 Treaty and Custom
• Treaties with rules comes into existence by
the express consent of the states.
• Customary rules are on the other hand
those which are deemed to be consented
by the states impliedly
• As per Article 480 of Treaty of Versailles
Keel Canal was free and open to vessels of
all nations at peace with Germany. The
canal was within the territory of Germany.
In the war between Poland and Russia,
German officials stopped a British vessel
called S.S. Wimbledon which was
transporting munitions through the canal
to Poland.
• Germany’s defence was by permitting the
transportation it was compromising on its
neutrality under customary law.
• The court agreed that the customary rule
of international law has an obligatory
force, but the specific provision of the
treaty was given preference and it was
held that Germany’s act amounted to
breach of Germany’s obligation under a
treaty. So in case of a conflict between a
customary rule and a treaty, treaty will
only prevail.
III. General Principles of law
• This source helps IL to adapt itself to the
changing times and circumstances.
• General principles of law recognized by
civilized nations means those principles
which are recognized by almost all the
states.
• For instance, a principle of law is
recognized by domestic law of a large
number of states will not have an
international character.
• It becomes a principle of international law
only when it is recognized as such by the
world court.
• Some of the principles like res judicata,
estoppel etc are some of the principles of
law recognized by civilized states.
• US v. Schooner, Justice Storey ruled that
IL should be based on the general
principles of law recognized by civilized
states. He was giving decision relating to
abolition of system of slavery.
• In Diversion of Water from Muese, the
permanent court of international justice
applied the principle of res judicata and
estoppel
• In Chorzow Factory (Indemnity) Case
1928, PCIJ applied principle of res
judicata and also held that one who
violates a rule is liable to make reparation.
• General principles are those accepted by
the municipal legal system and not the
municipal law of a particular state, that IL
refers – Belgium v. Spain (Barcelona
Traction case)
View regarding general principles
• 1. Article 38 (1) (c) incorporates natural law
in international law - Verdross
• 2. Guggenheim and Tunkin view that the
general principles of national law are part of
IL to the extent that it is adopted by states
and recognized as state practice.
• 3. It is a reservoir of principles which an
international judge will apply in an
international dispute, if it is appropriate and
relevant in the context of the interstate
relation
 IV. Decisions of Judicial or Arbitral
Tribunals
• ICJ was established as a successor of PCIJ
(Permanent Court of International Justice)
• The decision of ICJ does not create a
binding rule of international law.
• Article 59 of Statute of International Court
of Justice makes it clear that the decisions
have no binding force except between
parties and in respect of that particular
case.
• A prior decision of the court is not a
binding precedent but it is considered for
guidance alone.
• Normally court does not deviate from its
earlier decision and if at all it deviates it is
under special circumstances.
• Hence, it does not follow the doctrine of
precedent but in practice it is ordinarily
followed.
• Judicial decision do not make law they
generally state the law
• In the Asylum case, it was held that
– The decisions in a particular case has deep
repercussions in IL the views confirmed by
decision acquires a quasi-legislative value,
inspite of legal principle to the effect that the
decision has no binding force except between
parties and in respect of that particular case.
• In Reparation for Injuries suffered in the
service of United Nations case, the court
created legal personality for international
organizations to sue and to be sued under
IL
 Decision of Arbitral Tribunal
• Arbitration is a method of settlement of
disputes both in the national and
international field.
• Some jurist are of the view that decisions of
arbitral tribunals are not to be treated as
source of international law.
• This is because, the arbitrators are mere
mediators rather than judges. Hence there
decision cannot be considered as source of IL
• .
 V. Juristic Works
• Though jurists works cannot be considered
to be a source of law it can help in the
development of the law.
• The works of highly qualified jurists are
subsidiary means for determination of
rules of IL
• In re piracy jure gentium, the question arose
whether actual robbery is an essential
element in the crime of piracy at IL. On
the basis of juristic opinion the privy
council held that robbery was not an
essential element of piracy jure gentium
and doing robbery is actually piracy jure
gentium
• The importance of juristic work was laid
down by Justice Gray in Paquete Habana.
• Paquete Habana and Lo la were two fishing
vessels with Spanish flags on them. During
a war between Spain and America, the
warships of America blocked the northern
coast of Cuba which was a colony of Spain.
The American war ship seized these vessels
and initiated proceedings against them in
the District Court of America.
• The court declared the shipping vessel and
its cargo as prize.
• The owners of the ship filed an appeal in the
Supreme Court of America and the decision of
the lower court was reversed.
• It was ruled that the claimants be given money
derived from sale of vessel, cost of case and
compensation. On the basis of precedents and
established rules of international law the court
concluded that the vessel and the unarmed
sailors were pursuing their duty honestly and
peacefully.
• Hence, they cannot be seized during state
blockade
 VI. Decisions of international
institutions
• Decisions of international organs and
institutions give rise to a source of
international law.
• Some organs are entitled to give general
decisions and or directions of a quasi-
judicial nature.
• Hence they find a place among the sources
of law even though it is not mentioned in
Article 38 of Statute of ICJ
• ICJ relied on resolutions passed by the
international organisations inter alia and
cited them as evidence of the existence of
customary rules in a Case concerning
Military and Para Military Activities in
and against Nicaragua.
• The ICJs decision in the Nicaragua case
states :
• ‘In order to deduce the existence of
customary rules, the Court deems it
sufficient that the conduct of States should
in general be consistent with such a rule;
and that instances of State conduct
inconsistent with a given rule should
generally have been treated as breaches of
that rule, not as indications of the
recognition of a new rule.’ (ICJ in
Nicaragua ICJ Reps, 1986, p. 3 at 98.)
 Ex acquo et bono
• It means rules of equity and justice.
• Here the court has powers to decide a case
ex acquo et bono, if the parties agree thereto.
• If the parties agree, then the court can go
outside the realm of law for reaching its
decision.
• Here the court is relieved from the
necessity of deciding according to law.
 Other sources
• Equity: is a sense of consideration of
fairness, reasonableness and policy often
necessary for the sensible application of
the more settled rules of law.

• Strictly speaking it is not a source of law

but it is important in the decision making
process
 Latin maxims
• Pacta tertiis nec nocent: A treaty does not
create either obligations or rights for the
third state without its consent
• Rebus sic stantibus: Treaty obligations
subsist only so far as the essential
circumstances remain unchanged
• Pacta sunt servanda: States are bound to
carryout in good faith the obligations they
have assumed by treaty. Agreements
between states are to be respected.
• Jus cogens: peremptory norm that can not be
set aside i.e., from which no derogation is
permitted.
• Article 53 of the Convention on the Law of
Treaties deals with it.
• If a new peremptory norm of general
international law emerges, any existing
treaty which is in conflict with that norm
becomes void and terminates.
• Includes the prohibition of genocide,
maritime piracy, slaving in general, torture,
refoulement etc.
• Erga omnes: Relation to all
• In IL some obligations are against all
states.
• In some cases defaulting state alone has
obligation.
• States can invoke obligations erga omnes
in proceedings before the International
Court of Justice and take counter measures
in response to serious erga omnes breaches