Sources of International Law

PREPARED BY

MRS. NITA MALIK

ASSOCIATE PROFESSOR

DEPARTMENT OF POLITICAL SCIENCE

HANS RAJ MAHILA MAHA VIDYALAYA, JALANDHAR

Meaning of International Law�

• International law, also known as public international law, the law of nations and international ethics,^[1] is the set of rules, norms, and standards generally recognized as binding between Nations.

Meaning of the term Sources

•  The term source refers to methods or procedures by which international law is created. The source may be formal (i.e. legal procedures and methods for the creation of general rules) or material (i.e. actual materials providing evidence of the existence of rules).

Definitions �

Starke points that “The material sources of International Law may be defined as the actual material from which an international lawyer determines the rule applicable toa given situation.”

Sources of International Law�

• International Conventions
• International Customs
• General Principles of Law recognized by civilized nations.
• Judicial Decisions and
• The teachings of most highly qualified publicists of various countries as subsidiary means for the determination of rules of law

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Important Sources of International Law

• Custom is the oldest and original source of law in general and International Law in particular. Nearly three fourths of the rules of International Law are derived from customs.

International treaties

• International treaties were defined as being general or particular, establishing rules recognised by the contesting States Parties to a dispute before the Court. They are written bilateral or multilateral treaties between states or international organisations, ranging from agreements, conventions, protocols to covenants

Importance of Treaties

• Treaties are the most important source of obligation in international law Bilateral treaties may provide evidence of customary rules.

Used of the term Treaty

• The term “treaty” is used as a generic term embracing all kinds of international agreements which are known by a variety of different names such as, conventions, pacts, general acts, charters, statutes, declarations, covenants, protocol, as well as, the name agreements itself.

Custom

• Custom is a habitual course of conduct. Until recent time, international law consisted for the most part of customary rules. It is the oldest and the original source, of International as well as of law in general.

Main ingredients of International Custom

• Duration: Article 38 of the Statute of the International Court of Justice directs the World Court to apply 'international custom, as evidence of a general practice accepted as law'.

Duration of Custom

• In the field of international law, customs have emerged in a short duration also. As regards duration, there are certain indications in national legal systems indicating the requirement of passage of time for a particular behaviour or usage.

Uniformity and consistency

• In the Asylum case, the International Court of Justice observed that the rule invoked should be 'in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the Sate granting asylum and duty incumbent on the territorial State.'

Generality of Practice

• Although universality of practice is not necessary, the practice should have been generally observed or repeated by numerous States.

Judicial Decisions As a Source of International Law

• The decisions of courts and tribunals, international as well as national also constitute an important source of International Law.

Judicial Decisions of International Courts

• The judicial decisions of International courts like the permanent court of international justice which was set up in 1921 and also the international court of justice, 1946 have contributed a lot to the field of international law.

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Decisions of International Arbitral Tribunals

• The decisions of international Arbitral Tribunals such as the Permanent Court of Arbitration the British American Mixed Claims Tribunals and some other such tribunals have enriched various branches of International Law particularly law relating to territorial sovereignty, state jurisdiction and state responsibility.

Decisions of Prize Courts

• Prize Courts are those courts which are set up by belligerent states for the purpose of deciding upon the validity of the captures made by their ships during the period of war.

Works of Jurists as a Source of International Law

• The writings of Jurists also help in the process of evolution of International Law. Article 38 of the Statute of ICJ, authorizes the courts to apply “the teachings of the most highly qualified publicists of the various nations as a subsidiary means for determination of rules of law.”

The General Principles of Law as a Source of International Law

• The International Court of Justice has been authorised by its statute to apply the general principles of law recognised by civilised nations. The intention of the staute appears to be that the principles of municipal law, in so far as they are applicable to international disputes may be used by the International Court of Justice.

International Comity as a Source of International Law

• Oppenheim rightly points out the International Comity has influenced the growth of International Law. The term International Comity may be defined as rules of conduct required to be observed in inter-state relations on the ground of courtesy i.e. politeness, convenience and goodwill.

International State Papers other than Treaties

• State papers other than treaties form a source of International Law whenever there is any international controversy, the official jurists give their own opinion to their respective governments and their opinions are very important from the point of view of International Law.

Place of Reason as a source of International Law

• Reason has been occupying an important place in all ages of human activity. It has played a special role in the development of International Law.

Meaning of Reasoning

• Reasoning in this sense does not mean the un-assisted reasoning power of intelligent persons but of judicial reasons which means that a principle to cover the new situation is discovered by applying methods of reasoning which lawyers everywhere accept as valid.

Conclusion

• International law has emerged through various sources which have been codified in Article 38 of the ICJ statute which identifies customs, treaties and general principles as formal sources of International Law. However, the Judicial decision is given by the world court also acts as advisory opinions in guiding the development of International law.

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