SOURCES OF INTERNATIONAL LAW

The term sources refer to methods or procedure by which international law is created.
The term “sources of Public International Law” thus, means two things-

1. The actual materials determining the rules applicable to a given international situation
(the material sources), and
2. The legal methods creating rules of general application (the formal sources).

However, because it is difficult to maintain this distinction, the two meanings are used
interchangeably.

Article 38 of the Statute of the International Court of Justice (ICJ) states the following:

“1. 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 teaching of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules
of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.”

This Article lists the traditional sources of Public International Law, the actual legal materials
that the ICJ has to apply to international disputes. According to this Article, these sources are
of two types:

1. Primary sources that are represented by the international conventions, international

custom and general principles of law; and
2. Subsidiary sources that are represented by the decisions of courts and the opinions of
legal scholars.

Moreover, this Article lists “ex aequo et bono” (equity) as an alternative source of Public
International Law applied by the Court if the parties agree thereto. However, in addition to
these traditional sources, there are contemporary sources, such as the acts of the international
organizations.

Thus, the sources of the contemporary Public International Law can be classified into seven:

1- International conventions;

2- International customs;

3- General principles of law;

4- Judicial decisions;

5- Opinions of legal scholars;

6- Ex aequo et bono (Equity);

7- Acts of international organizations.

1. International Conventions: - In the modern period international treaties are the most
important source of international law. Article 2 of the Vienna Convention on the law of
treaties 1969, defines treaty as agreements whereby two or more states establish or seek to
establish relationship between them governed by international law.
Prof. Schwarzenbergr, “Treaties are agreements between subjects of international law
creating a binding obligation in international law.”
International treaties may be of the two types: -
a) Law making treaties: - These are the direct sources of international law and the
development of these treaties was the result of changing circumstances. Law making
treaties perform the same functions in the international field as legislation does in the
state field.
b) Treaty contracts:-As compared to law making treaties treaty contracts are entered into
by two or more States. This may happen when a similar rule is incorporated in a number
of treaty contracts.

2. International Customs:- Article 38 of the Statute of the ICJ refers to an international

custom as evidence of a general practice accepted as law. This definition comprises of two
elements: a general practice and its acceptance as law. These two elements are necessary for
the formation of customary international law. The first element, the behavioural or objective
element, requires a recurring consistent action or lack of action by States, which is indicated
by such activities as official statements or conducts, legislative or administrative action, court
decisions and diplomatic behaviours or correspondence. The second element (the
psychological or subjective element) entails the conviction that in similar case such a practice
is required or permitted by international law. In this sense, international customs may be
defined as practices or usages which have been observed by a large number of States over a
lengthy period of time and considered by them to be legally obligatory, i.e., being a law.

Notably, the terms “custom” and “usage” are often used interchangeably. Strictly speaking,
there is a clear technical distinction between the two. Usage is an international habit of action
that has not received full attestation and does not reflect a legal obligation; an example of a
usage is the salute at sea. Usages may be conflicting; custom must be unified and consistent. A
usage to become a customary rule of law, it must fulfil two conditions: acceptance or
recognition by a large number of States and repetition over a lengthy period of time. A custom
has a definite obligation attached to it. Failure to follow custom results in State responsibility,
and consequently entails the possibility of punishment (sanction) or of retaliation against that
State.

STRAKE says, “Usage represents the twilight stage of custom, custom begins where usage
ends. Usage is an international habit of action that has yet not received full legal attestation.”
A custom in the intendment of law is such usage as that obtained the Force of law i.e.
i. it is not necessary that the usage should always precede a custom
ii. In certain cases usage gives rise to international customary law.
iii. When a usage is combined with a rule of customary law exists.
iv. It is an important matter to see as to how international custom will be applied in
international law.
In the case of West Rand Central Gold Mining Company v. R-1905, court held that for a
valid international customs it is necessary that it should be supported by satisfactory evidence
that the custom is of such nature which may receive general consent of the States and no
civilized state shall oppose it.
In Portugal v/s India-1960, ICJ pointed out that when in regard to any matter or practice, two
states follow it repeatedly for a long time, it becomes a binding customary rule. Still other
resolutions amount to an interpretation of the rules and principles which he charter already
contains and which are in binding upon States.
 3. General Principles of Law recognised by civilized States: -
Art.38 of ICJ provides that the Statute of International Court of Justice lists general principles
of law recognised by civilised States as the third source of international law. In the modern
period it has become an important source. This source helps international law to adapt itself in
accordance with the changing time and circumstances. On the basis of this view the general
principle of law recognised by civilized States have emerged as a result of transformation of
broad universal principles of law applicable to all the mankind.

Following are some important cases relating to the general principles of law recognised by
civilized States:-
1. R. v/s Keyn-1876, that I. Law is based on justice, equality and conscience which have been
accepted by practice of States.
2. U.S v/s Schooner-held that I. Law should be based on general principles.

4. Decisions of Judicial or Arbitral Tribunals and Juristic Works:-

i) International judicial Decisions:-In the modern period international court of justice is the
main international judicial tribunal. It was established as a successor of the permanent court of
justice. Art.59 of the statute of ICJ makes it clear that the decisions of the court will have no
binding force except between the parties and in respect of that particular case. While in
principle it does not follow the doctrine of precedent. Thus judicial decisions unlike customs
and treaties are not direct sources of law; they are subsidiary and indirect sources of
international law.
(ii) State judicial decisions: - These decisions may become rules of international law in the
following two ways:-
1. State judicial decisions are treated as weighty precedents.
2. Decisions of the state courts may become the customary rule of I. Law in the same way as
customs are.
(iii) Decisions of International Arbitral Tribunals: - Jurists have rightly too pointed out that
in most of the arbitral cases arbitrators’ act like mediators and diplomats rather than as judges
as in Kutch Award-1968.
(iv) Juristic Works. 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.

This Article emphasizes the evidentiary value of writings of the legal scholars. The primary
function of these writings is to provide reliable evidence of the law. Writers on International
Law cannot make the law; their works are to elucidate and ascertain the principles and rules of
International Law. To be binding, the rules and principles must have received the consent,
whether express or implied of States, who are to be bound by it.

Historically, the writers on International Law such as Gentili, Grotius, Pufendorf and Vattel
were a primary factor in the evolution of the modern International Law; they were the supreme
legal authorities of the Sixteenth to Eighteenth Centuries. They determined the scope, form and
content of International Law. However, the importance of legal writings began to decline as
a result of the emphasis on the state sovereignty; treaties and customs assumed the dominant
position in the exposition and development of International Law.

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. However, the International Court of Justice makes little
use of jurisprudence, and judgments contain few references; this is, primarily, because of the
willingness of the Court to avoid a somewhat undesirable selection of citations.

5. Decisions or determinations of the organs of international institutions:-

In view of the strong reasons the decisions and determination of organs are now recognised as
an important source of I. Law. The resolutions of the organs may be binding on the members
in regard to the internal matters. Organs of international institution can decide the limits of their
competence.

Some other sources of International Law: - Besides the above sources of I. Law, following
are some of the other sources of international law: -
1. International Comity: mean mutual relations of nations.
2. State Paper:-In modern period diplomats send letters to each other for good relations are
also the sources of I. Law.
3. State guidance for their officers: Number of matters are resolved on the advice of their
legal advises.
4. Reasons: has a special position in all the ages.
5. Equity & Justice: I t may play a dramatic role in supplementing the law or appear
unobtrusively as a part of judicial reasoning.