Sources of international law
1. Introduction:
International law is the body of rules which regulates relations among states. it comprises mainly of the rules recognized by states in their relation with each other and mostly arises out of international customs and treaties. At present article 38 of the statute of the International Court of Justice is an authoritative text of the source and evidence of international law.
2. Definitions of international law:
Oppenheim
International law is the body of customary and conventional rules, which are considered binding on civilized states in their relations with each other."
3. Sources of international law:
Although there is no international legislature and court to which the international community must compulsorily submit still under article 38 of the statute of the International Court of Justice, rules of international law can be pragmatically found in international conventions, international customs, etc, etc.
4. Meaning of sources:
Starke:
"By sources of international law, we mean the actual materials from which an international lawyer ascertains the rule applicable to a given situation."
5. Classification of sources:
Sources of international law may be classified into two categories.
- (i) Formal sources.
- (ii) Material sources.
I. Formal sources of international law:
There are no formal sources of international law and it is one of the main criticisms of international law.
II. Material sources of international law:
Material sources of international law are those actual materials from which an international lawyer determines the rule applicable to a given situation. Article 38 of the stature of the International Court of Justice enlists such material sources.
6. Article 38 of the statute of the International Court of Justice:
The court whose function is to decide by 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) Judicial decisions and teaching of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of law.
Condition:
The provision shall not prejudice the power of the court to decide a case “Ex aequo et bono” (according to the right and good), if the parties agree thereto.
7. Main sources of international law:
Primary sources:
International customs:
International customs are one of the most important sources of international law.
Essentials of valid international custom:
- (i) Long duration.
- (ii) Uniformity and consistency
- (iii) Generality practice or observed.
- (iv) Opinio juris et necessitates.
Treaties:
Treaties are the most important source of international law.
Definition of the treaty:
"An agreement whereby two or more states establish or seek to establish a relationship between them governed by international law."
Kinds of treaties:
(a) Law-making treaties
Law provisions of law-making treaties are the direct sources of international law.
(b) Treaty contracts:
Treaty contracts are entered into by two or more states. The provisions of such treaties are binding on the parties to the treaty. The treaty contracts are an indirect source of international law.
General principles of law:
General principles of law recognized by the civilized states are also an important source of international law. General principles recognized by the international court have recognized the following principles in different decisions.
- Good faith.
- Responsibility.
- Prescription.
- Every court has the right to determine its own jurisdiction.
- A party to a suit cannot himself be an arbitrator or a judge in his case.
- Res-judicata (Matter already adjudged)
- Estoppels
- Audi alterm paterm.(Listen to the other side)
Judicial decisions:
Juristic works from the evidence of international law, yet it assumes importance when there are no established customs or treaties.
Decisions of determinations of the organs of international institutions:
Decisions on questions of jurisdiction of an organ of the international institution may have a law-making effect.
State papers:
State papers other than treaties are also a source of international law
Secondary sources:
The following are the secondary sources of international law.
- (a) State judicial decisions.
- (b) International community.
- (c) Equity and natural justice.
- (d) Jus congens. (Compelling law)
- (f) State practices.
- (g) Private contracts.
- (h) Roman law.
- (i) Principles of Islamic law.
8. Subjects of international law:
The following are the subjects of international law.
- (i) States.
- (ii) Political entities legally proximate to the state.
- (iii) Condomonia.
- (iv) International Territories.
- (v) International organizations.
- (vi) International institutions.
- (vii) International criminal law.
- (viii) Treaties concerning international minorities and individuals.
- (ix) Non-state entities.
- (x) Insurgents.
9. Conclusion:
To conclude it can be said that the sources are the name of the historic fall put of which rules of conduct came into existence. although there is no international legislature and court to which the international community must compulsorily submit, still under article 38 of the statute of the International Court of Justice provides sources for international law.