SOURCES OF INTERNATIONAL LAW

 Sources means ‘Origin’- they are the procedure or method by which it is created
 Sources of international law are those processes and instruments out of which the
rules and principles of international law are developed
 The internationally accepted classification of sources of international law is
formulated in Article 38 of the Statute of the International Court of Justice.
 Article 38(1) of the statute of ICJ provides a reflection of the sources of international
law
 Article 38 did not expressly mention ‘sources' but it is usually invoked as sources of
international law.
 Sources of international law can be characterized as ‘formal' and ‘material' sources,
though the characterisation is not by hierarchy but for clarification, therefore, Article
38(1)(a-c),that is, conventions or treaties ,custom and general principles are formal
sources whereas Article 38(1)(d) that is, judicial decisions and juristic teachings are
‘material sources'.
 Article 38(1) of the Statute of the International Court of Justice is widely recognised
as the most authoritative and complete statement as to the sources of international
law.
 It provides that:
 The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.

Hierarchy of Sources

 Jurists- Pellet, however, notes that while there is no formal hierarchy as between
conventions, custom and general principles, the International Court uses them in
successive order and ‘has organized a kind of complementarity between them’.
Dupuy, in his book argues that there is no hierarchy of sources. The ILC Study on
Fragmentation, however, agrees with writers proclaiming that ‘treaties generally
enjoy priority over custom and particular treaties over general treaties’,
 As a general rule, that which is later in time will have priority. Treaties are usually
formulated to replace or codify existing custom, while treaties in turn may
themselves fall out of use and be replaced by new customary rules.

TREATIES

■ Treaties are known by a variety of differing names- Conventions, International

Agreements, Pacts, General Acts, Charters, Statutes, Declarations and Covenants
 ■ The term refers to the creation of written agreements whereby the states
participating bind themselves legally to act in a particular way or to set up particular
relations between themselves.
■ Treaties are express agreements and are a form of substitute legislation undertaken
by states.
■ Treaties may be concluded, or made, between states and international
organisations, they are primarily concerned with relations between states.
■ An International Convention on the Law of Treaties was signed in 1969 and came
into force in 1980
■ Convention on Treaties between States and International Organisations was signed
in 1986.
■ The 1969 Vienna Convention on the Law of Treaties partly reflects customary law
and constitutes the basic framework for any discussion of the nature and
characteristics of treaties.
■ Certain provisions of the Convention may be regarded as reflective of customary
international law, such as the rules on interpretation, material breach and
fundamental change of circumstances.
■ The fundamental principle of treaty law is undoubtedly the proposition that treaties
are binding upon the parties and must be performed in good faith: called the
Principle of Pacta Sunt Servanda

CUSTOMARY INTERNATIONAL LAW

Custom

• Certain rules of behaviour that emerge and prescribe what is permitted and what is
not. Such rules develop subconsciously within the group and are maintained by the
members of the group by social pressures.
• They are not written or codified, and survive ultimately because of what can be
called an aura of historical legitimacy.
• It is regarded as an authentic expression of the needs and values of the community
at any given time.
• Custom within contemporary legal systems, is cumbersome and unimportant and
often of only nostalgic value.
• In international law, it is a dynamic source of law in the light of the nature of the
international system and its lack of centralised government organs.
• The existence of customary rules can be deduced from the practice and behaviour of
states.
• Has two essentials: State practice & Opinio Juris

State Practise

• The actual practice engaged in by states constitutes the first essential.

• There are a number of points to be considered concerning the nature of a particular
practice by states, including its duration, consistency, repetition and generality
 – Duration: In international law there is no rigid time element and it will
depend upon the circumstances of the case and the nature of the usage in
question. In certain fields, such as air and space law, the rules have
developed quickly.
– Consistency & Repetition: The basic rule as regards continuity and repetition
was laid down in the Asylum case decided by the International Court of
Justice (ICJ) in 1950. The Court declared that a customary rule must be ‘in
accordance with a constant and uniform usage practised by the States in
question’.

• It is how states behave in practice that forms the basis of customary law, but
evidence of what a state does can be obtained from numerous sources. Obvious
examples include administrative acts, legislation, decisions of courts and activities on
the international stage, for example treaty-making, etc.
• The obvious way to find out how countries are behaving is to read the newspapers,
consult historical records, listen to what governmental authorities are saying and
peruse the many official publications. There are also memoirs of various past
leaders, official manuals on legal questions, diplomatic interchanges and the
opinions of national legal advisors. All these methods are valuable in seeking to
determine actual state practice
• ‘State practice covers any act or statements by a state from which views about
customary law may be inferred.

Opinio Juris

• This is the psychological factor, the belief by a state that behaved in a certain way
that it was under a legal obligation to act that way. It is known in legal terminology
as opinio juris sive necessitatis and was first formulated by the French writer
Franc¸ois G´eny.
• It differentiates legal custom from social usage
• The opinio juris, or belief that a state activity is legally obligatory, is the factor which
turns the usage into a custom and renders it part of the rules of international law.
• States will behave a certain way because they are convinced it is binding upon them
to do so.
• This approach was maintained by the Court in the Nicaragua case and express
reference was made to the North Sea Continental Shelf cases. The Court noted that:
for a new customary rule to be formed, not only must the acts concerned amount to
a settled practice, but they must be accompanied by the opinion juris sive
necessitatis. Either the States taking such action or other States in a position to react
to it, must have behaved so that their conduct is evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The need
for such a belief, i.e. the existence of a subjective element, is implicit in the very
notion of the opinio juris sive necessitatis.
• There has to be an aspect of legality about the behaviour and the acting state will
have to confirm that this is so, so that the international community can easily
distinguish legal from non-legal practices.
There are some international norms so fundamental, however, that they permit no
derogation. This concept, known as jus cogens, or peremptory norms, encompasses a
limited set of rights––such as the prohibitions on genocide, torture, piracy, and slavery––
that most members of the international community have agreed to follow

The general principles of law recognized by civilized nations

General principles of law constitute common themes familiar to most of the global legal
systems. These rules are essentially domestic laws found in nearly all legal systems (such as
civil law, common law, or Islamic law), that have entered into international law because
they are manifest in most states around the world. Below are some accepted principles that
animate many areas of international law:

• Pacta sunt servanda (“agreements must be kept”) (ex: treaty enforcement),

• Lex specialist derogate generalis (“the specific prevails over the general”) (ex: conflict of
laws); and

• Sic utere tuo ut alienum non laedas (“use your own so as not to injure another”) (ex:
international environmental law).

Judicial decisions and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the determination of rules of
law.

In rare circumstances, when customary international law, treaties, and general principles
prove inadequate, a tribunal might refer to state judicial decisions, decisions of international
judicial bodies, or scholarly articles from the international community

The rule of equitable principles enunciated in North Sea Continental Shelf Cases was
adopted and developed in many cases and also incorporated in the 1982 U.N. Convention
on Law of Sea.

It is true that decisions of municipal courts of a State have little value in international law,
but the uniform decisions of the courts of many States have a tendency to create evidence
of international custom especially in those fields of international law which are interwoven
between international law and municipal law such as nationality, extradition and diplomatic
immunities.

Calvo clause and Drago doctrine are the instances of such rules in international law.
In Paquete Habana Case, Justice Gray observed: Where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the customs and
usages, and, as evidence of these, to the works and commentators, who by years of labour,
research and experience have made themselves peculiarly well acquainted with the subjects
which they treat.

SUBJECTS OF INTERNATIONAL LAW

States are the original and major subjects of International Law. Their legal personalities
derive from the very nature and structure of the international system. All States, by virtue of
the principle of sovereign equality, enjoy the same degree of international legal personality.
International Law is primarily concerned with the rights, duties and interests of States.
Normally the rules of conducts that International Law prescribes are rules which States are
to observe.

A subject of International Law is a person (entity) who possesses international legal

personality, i.e., capable of possessing international rights and obligations and having the
capacity to take certain types of action on the international level.

 STATES
 IO
 INDIVIDUALS
 OTHER NON-STATE ACTORS