sources of international law Flashcards
Definition of sources of international law
- Sources of international law are the materials and processes out of which the rules and principles regulating the international personalities are developed.
- Rules are extracted and analyzed from the sources.
- According to Lawrence and Oppenheim there is only one source of IL i.e. the consent of nation.
- But Brierly considers customs and reasons as the main sources of IL.
Article 38(1) of the statute of the International Court of Justice
is widely recognized as the most authoritative statement as to the sources of International law.
On the basis of Article 38 of ICJ Statute, 5 distinct sources can be identified:
- International conventions/treaties
- International customs
- General principles of law
- Judicial decisions and writings of the jurists
- Acts of international organizations.
- International conventions/treaties
Treaties are known by a variety of terms-conventions, agreements, pacts, general acts, charters, statutes, declarations and covenants.
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.
Types of international treaties.
International treaties can be broadly divided into two types:
i. Law making treaties (L)-Universal or general relevance.
ii. Treaty contracts (T)- between two or small number of countries.
i. Law making treaties
It is conducted between many states and creates general rules binding the states
Lawmaking treaties or conventions are the main source of international law since, the basis of all international law is consent.
Examples: a. The Hague Convention of 1899 and 1907 (on law of war and neutrality), b. The Geneva Protocol of 1925 (on prohibited weapons), c. The Genocide Convention of 1948,
ii. Treaty Contracts
Deals with a special matter between contracting states only Example: Indo Nepal treaty on trade and transit, Indo Nepal treaty on Peace and Friendship.
Create particular law between the signatories.
But is also source of universal rule also. Example: . Briand Kellogg Pact 1928 (a treaty for the renunciation of war between USA and France became so attractive that other states also subscribe to its principle of non use of force, so if more and more states consent to the rule of treaty contract universal rule is established.
- Customs as a source of IL
The article 38 (1) of the statute of the International Court of Justice recognises “International Customs”, as a source of international law.
The ICJ’s statute refers to international customs, as “evidence of a general practice accepted as law”.
Elements for making custom as international law
1.Duration of state practice 2. Uniformity and consistency in practice 3. Generality in practice 4. Opinio juris – (Acceptance of practice as law)
3.General Principles of Law
The general principles of law are those principles which have got recognition from all the states and by all the legal systems of the world.
The general principles of law are based on justice and equity.
They include basic principles of law which are indisputable.
They provide a mechanism to address international issues not already subject either to treaty provisions or to binding customary rules.
Why general principles of law are included?
The main reason why this source is included in ICJ because a situation may arise when there is absence of law relating exactly to the point.
International law has no method of legislating to provide rules to regulate new situations
neither it follows principle of past precedents. Hence, the provision of general principle was established as a source of law to fill the gap and solve the problem of non liquet (a situation when the court refuses to settle disputes on the ground that rules are not available).
Case involving general principle of law
Permanent Court of International Justice (PCIJ) in Mosul Boundary Case (1925) applied the principle of natural justice that No one can be judge in his own suit
4.Judicial decisions
Article 38 recognises a judicial decisions as a subsidiary source of international law but not an actual source.
Article 59 of the Statute of ICJ provides that: The decision of the court haves no binding force except between the parties in respect of that particular case.
While the doctrine of precedent does not exist in international law, one still finds that states in disputes and textbook writer quote judgments of the permanent court and the ICJ as authoritative decisions.
- writings of jurists
Article 38 of the Statute of the ICJ includes as a subsidiary means for the determination of rules of law, “the teachings of the most qualified publicists of the various nations”. The term “teachings of publicists” means “writings”, “opinions” or “works” of legal scholars, jurists or writers.
Nevertheless, like judicial decisions, the opinions of legal scholars can provide evidence of the existence of customary law and can help in developing new rules of law.
The opinions of legal scholars are used widely. Arbitral tribunals and national courts make extensive use of the writings of jurists.
- Acts of International Organisations
The growth of international organizations since the First World War has been accompanied by suggestions that the acts of these organizations should be recognized as a source of International Law.
Decisions of the organs of international organizations may be binding or non-binding. An organ may be authorized to take decisions which are binding on member states; only these binding decisions are regarded as a source of the International Law.
