Sources of International law

Customs

 Until recent times, International law consisted for the most part of customary rules. These
rules had generally evolved after a long historical process culminating in their recognition
by the international community.
 The importance of traditional customary rules was diminished as a result of the large
number of ‘law-making’ treaties concluded since the middle of the last century.
 Yet according to some writers, international customs may still have a significant role to
play as a dynamic source of fresh rules of international law where the international
community undergoes change in new areas untouched by treaties, judicial decisions or the
writings of the jurists.
 Term ‘custom’ & ‘usage’ are interchangeably used. There is a tech distinction b/w both.
Usage represents 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. Usages
maybe conflicting, customs maybe unified & self-consistent.
 Customary rules crystallize from usage or practices which have evolved in approx three
sets of circumstances,
1. Diplomatic relations b/w states:

 acts/declarations by statesmen, opinions of legal advisors to state govts, bilateral treaties,

and now press releases/official statements by govt spokesmen may all constitute evidence
of usage followed by states. (conduct+ statements)
2. Practice of international organs:

 The practice of international organs, again whether by conduct/ declarations, may lead to
the development of customary rules of international law concerning their status, or their
powers & responsibilities. The international labor organization had power to regulate
internationally the conditions of labor of persons employed in agriculture.
3. State laws, decision of State courts, and
State military or administrative practices
Treaties

 2nd imp source of international law

 There are 2 types of treaties and both has different effect as being a source of
International law:
 A. Law making treaties
 Development in law making treaty since the mid of 19 th C. 257 such treaties concluded
just in b/w 1864-1914. This rapid expansion due to the inadequacy of custom in meeting
the urgent demands of the international society of states for the regulation of its common
interests.
 The urgency of these demands, arose from the deep-rooted changes which were
transforming the whole structure of international life.
 Industrial & eco developments were bringing states into closer intercourse with each
other, and as international communications thus became more intimate, the range of
interests springing from the relationships b/w states grew in size & complexity. E.g. Red
Cross work, weights & measures, the protection of industrial property, the protection of
submarine cables, the suppression of slave trade, international waterways, control of
narcotics etc.
 Law making treaties may have 2 types,
 1. Enunciating (clear) rules of universal international law, e.g. , the UN charter
 2. laying down general or fairly general rules.
 Then, even to the extent that a ‘law-making’ treaty is universal or general, it may be really
a ‘framework convention’, imposing duties to enact legislation, or offering areas of
choice, within the ambit of which states are to apply the principles laid down therein.
E.g., articles 35-37 of single narcotics drugs convention signed in New York in 1961
( provisions for co-operation in the penal repression of the illicit drug traffic)
 Some multilateral treaties are to a large extent codification of customary rules. E.g.,
Vienna convention on Diplomatic Relations 1961.
 B. Treaty Contracts:
 Formally concluded & raitified agreement b/w States.
 Not a direct source of international law making
 Treaty contracts on the other hand are entered between two or among a few states to
address an exclusive matter concerning these states.
 Such treaties can also lead to the formation of international law through the operation of
the principles governing the development of customary rules.
 1. A series or a recurrence of treaties laying down a similar rule may produce a principle
of customary international law to the same effect. Such treaties are thus a step in the
process whereby a rule of international custom emerges. E.g., the number of identical
provisions concerning consular privileges & immunities to be found in the numerous
recent bilateral consular conventions & treaties, and which were used by the International
Law Commission in 1960-61 in drawing up its Draft articles on Consular Relations --
Convention of 1963
 2. it may happen with a treaty originally concluded b/w a limited number of parties only
that a rule in it be generalized by subsequent independent acceptance or imitation. E.g.,
the rule ‘free ship, free goods’, i.e. that enemy goods carried on a neutral vessel are in
general immune from belligerent action (threat), first appeared in a treaty b/w Spain & the
United Provinces in 1650 and became established only at a much later period after a long
process of generalization & recognition.