There are ‘sources’ available from which the rules of international law may be extracted and analyzed. According to Lawrence, if we take the source of law which has all the authority required to give it binding force, then in respect of International Law there is one source of law and that is the consent of Nations. This consent may be either tacit (custom) or express (treaties).
Major sources which form the conventional source of International law include the International Convention and Treaties. Sources of International Law can be bifurcated into primary and secondary sources which are explained below.
Primary Sources: Primary Sources of International Law are considered formal in nature. They come from official bodies which include Treaties, Customs, and Principles of Law. Article 38(1)(a-c) of the ICJ statute is widely recognized as the backbone of the formal source of International Law. It is generally regarded as an authoritative statement of the sources of international law. Article 38 of the Statute of the International Court of Justice in The Hague has been treated as a convenient catalog of international legal sources.
Article 38 of the ICJ statute: Article 38(1)(a-c) of the ICJ was adopted by the same provision of the statute of the Permanent Court of International Justice which operated under the auspices/support of the Legal of Nations in 1920. The article refers to the primary sources of international law which are enumerated below:
Custom as a Source of International Law The original and the oldest source of Law is known as Custom. The rules of customary International Law involved a long historical process that gained recognition by the entire community. The presence of customary rules can be deduced from state practice and behavior because it is not a written source of law. A rule of customary law is said to have two elements:
First, there must be widespread and consistent State practice.
Secondly, there has to be “opinion Juris”, a Latin term which means a legal obligation to believe in the existence of such law.
Features of Customary Law
Uniform and general : State practice to give rise to binding rules of customary International Law, that practice must be uniform, consistent and general and must be coupled with a belief that the practice is obligatory rather than habitual. In the Asylum Case, the court declared that a customary rule must be used constantly and uniformly throughout history which can be traced through state practice.
Duration: Continuous and regular use of particular conduct is considered a rule of customary law. In the North Sea Continental Shelf cases, the ICJ stated that there is no precise length of time during which the practice must exist. It is simply that it must be followed long enough to show that other requirements of custom are satisfactory
An opinion of Law. To assume the status of customary international law the rule in question must be regarded by the state as binding in Law i.e. the states must regard themselves as being under a legal obligation to follow the practice. In the Lotus case, opinion Juris was seen as an essential element of customary international law and this was affirmed in the North Sea Continental Shelf Cases as well.
Convention as a source of International Law: Treaties and conventions are one of the most important sources of International Law. These conventions can be multilateral or bilateral. Multilateral conventions relate to the treaties which formulate the universal or general application of the law. On the other hand, bilateral conventions are those which is formed exclusively by two states to deal with a particular matter concerning these states.
Vienna Convention on the Law of Treaty 1969, the codified law for contracting treaties, gives the definition, “A treaty is an agreement whereby two or more states establish or seek to establish a relationship between them governed by international law.” Treaties act as a direct source of rights and obligations for the states, they codify the existing customary source of law.
They are voluntary and cannot bind non-signatory to it, however, there are certain exceptions to it that is if any rule forms part of the Jus Cogens norm as they are part of the accepted principles of International law and every state has a peremptory duty of not breaching them due to their obligations. (owed to the whole world)
General Principle of International Law: Most modern jurists accept general principles of law as common to all national legal systems, in so far as they are applicable to the relations of States. There are fewer decided cases in international law than in a municipal system and no method of legislating to provide rules to govern new situations. It is for such a reason that the provision of ‘the general principles of law recognized by civilized nations’ was inserted into article 38 as a source of law
Secondary source: (Evidence of International law)
Article 38(1)(d) forms part of the material source of International Law also known as the secondary
source. It states that judicial decisions and the teachings of the most highly qualified publicists of the
various nations also help in guiding the formation of international law, however they are not binding but
merely advisory in nature.
Judicial Decision Under this, the court is authorized to apply previous decisions of the court which are also known as an evidence of international law, however, it is subject to the exception stated under Article 59 of the statute which states that the previous decision of the court can only guide the court, it is not binding on the court.
This article provides the court with a rule that it is not to be bounded by precedents but recourse can still be made by the court to its past decision’s res judicata and advisory opinion to substantiate the current case as authoritative evidence of legal position.
ICJ plays a major role in the law-making process through its advisory opinions, case laws, and judge’s rule. One of the major examples of this includes the principle of the prohibition against the use or threat of use of force laid down by the court in the case of Nicaragua vs. the USA which is now considered a part of Customary International Law.
The judicial decision of the court also encompasses international arbitral awards and the rulings of national courts. One leading example is Alabama Claims arbitration, which marked the opening of a new era in the peaceful settlement of international disputes, in which increasing use was made of judicial and arbitration methods in resolving conflict.
Another illustration of the impact of arbitral awards is the Island of Palmas case wherein it has been referred that a unanimous, or nearly unanimous, decision plays an important role in the progressive development of the law. It helps in providing a single view for interpretation of the issue at hand which helps in avoiding controversy during the development of International Law.
Juristic writings and teachings: Other major parts of this source also include the ‘teachings of the highly qualified writers such as Gentili, Grotius, and Vattel who were considered the supreme authorities of the international law in the 16th to 18th Centuries.
Textbooks are used as a method of discovering what the law is on any particular point rather than as the source of actual rules, and the writings of even the most respected international lawyers cannot create law. These are considered an evidentiary source of law as they provide an explanation and understanding of the International principles. They carry an essential value because they provide to fill the grey areas of International Law where treaties or customs do not exist.
Other sources of International Law:
Other sources of International Law are not based on a set of rules and therefore article 38 is not exhaustive. There are various other factors that develop the usage of International Law which include declarations of Security Council resolutions, declarations, recommendations adopted by the UN General Assembly, International morality and equity, etc.
The world is constantly evolving and the problems are becoming more complex, the resolutions and declarations adopted by the assembly act as an inevitable impact on the direction adopted by modern international law. The way states vote in the General Assembly and the explanations given upon such occasions constitute evidence of state practice and state understanding of the law.
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