Sources of International Law

Sources of International Law:

Introduction:
The word international law is synonymous and equivalent to the words “law of nations”. It was
first used by Jeremy Bentham 1780. Prior it, international law was known as the law of nations.
Most of the jurists are of the opinion that international law regulates a relation of states with one
another and they therefore define the term of international law as a law of nations.

International Law is the body of rules which are legally binding on States in their intercourse with
each other. These rules are primarily those which govern the relations of States, but States are not
the only subjects of international law. International organisations and, to some extent, also
individuals may be subjects of rights conferred and duties imposed by international law.

Traditionally international law has been defined as “a system of rules governing the relation
between the states only. Thus, it exists for governing the relation between different states

According to Oppenheim, International Law is a “Law of Nations or it is the name for the body of
customary law and conventional rules which are considered to be binding by civilized States in their
intercourse with each other.”

Definitions:
Brierly
The law of nations or international law may be defined as the body of rules and principles of action
which are binding upon civilized States in their relations with one another.

Gray
International Law or the law of nations is the name of a body of rules which according to the usual
definitions regulate the conduct of States in their intercourse with each other.

Sources of law:
A. Primary Sources: Primary Sources of International Law are considered formal in nature. They
come from official bodies which include Treaties, Customs and principle 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.

1. Treaty: The concept of treaty is based on pacta sunt servanda, which is a customary law principle
which means promises must be kept. In a treaty, countries create their terms of rights and
obligations out of their volition, thus it is very similar to a contract. 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. Therefore, a treaty is a written agreement
between two or more States which lays down the manner in which every State would act while
doing dealings with other participating States.

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 Sources of International Law

Prominent treaties: The United Nations Charter (1945), signed by 193 UN member states,
establishes the UN’s principles of peace, security, and global cooperation, setting a framework for
international law. The Paris Agreement (2015), signed by 196 countries, focuses on climate change,
aiming to keep global warming below 2°C by reducing greenhouse gas emissions and enhancing
climate adaptation efforts.

2. Customs: Customs are those habits and practices which the nation's states commonly observe
and the violation of which is considered as against the courtesy of international behaviour. There are
certain practices which the world community observes without any express provisions but because
of practice they honour the same. So if there is no treaty between the parties to a dispute, then the
statute binds the court to decide the case in the light of such 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, (Stater Practice) the behavioral 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
behaviors or correspondence. The second element (the psychological or subjective element - Opinio
Juris) 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.

State Practice Example

Diplomatic immunity is a long-standing practice where diplomats are not subject to the laws of the
host country they are serving in. This practice has been followed consistently by nations for
centuries. The Vienna Convention on Diplomatic Relations (1961) formalized this practice, but
before the treaty, countries had already been following it for a long time. Even without formal
agreements, states generally refrain
from arresting or prosecuting diplomats. The consistent and uniform practice of respecting
diplomatic immunity established this custom. Over time, diplomatic immunity became recognized
as customary International Law because many nations followed it uniformly and for a long period,
making it a part of International Law even before being codified in the Vienna Convention.

Opinio Juris Example

Opinio Juris refers to a state’s belief that its actions are legally binding. For example, the global
prohibition of torture is seen as a legal obligation, even for countries that have not signed treaties
prohibiting it.While the Convention Against Torture (1984) is a treaty that binds its signatories, the
prohibition of torture is now considered a rule of customary International Law. This means even
countries that haven't ratified the treaty still consider themselves legally bound not to torture people.
The global community recognizes torture as universally illegal because states act under the belief
that the prohibition of torture is a legal norm.Nations practice the prohibition of torture, believing it
is legally obligatory (Opinio Juris), making it a rule of customary International Law beyond any
specific treaty.

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 Sources of International Law

Combining State Practice and Opinio Juris

Example: The Law of the Sea (related to territorial waters)
State Practice: For centuries, nations have claimed territorial waters, traditionally up to 3 nautical
miles from their coastline. Over time, many nations extended this to 12 nautical miles, practicing
this uniformly.
Opinio Juris: Countries expanded their territorial seas believing that international law allowed
them to do so, making it legally binding. This combination led to the establishment of the United
Nations Convention on the Law of the Sea (UNCLOS), but even before the treaty, these practices
were considered customary law.

Features of Customary Law

1. 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.
2. Duration: Continuous and regular use of particular conduct is considered as a rule of
customary law.
3. 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.

General Principles of Law

As in International Law there is no cohesive body for legislating laws or any Court that has the
power to set precedents, thus it is relatively undeveloped as compared to the Municipal Law. Article
38 of the Statute of the ICJ provides for ‘general principles of law recognized by civilized nations’
as a source of law.

Chorzow Factory Case: This case established an important principle of International Law: If a
country breaks an international obligation, it must make reparations (compensation) to the other
country affected by the breach.

Corfu Channel Case: In this case, the International Court of Justice (ICJ) said that using
circumstantial evidence (indirect evidence) is acceptable in International Law, just like it is in most
national legal systems. Circumstantial evidence means that you don't have direct proof but can infer
something from other facts.

Res Judicata: Res judicata is a legal principle that means once a legal decision has been made in a
case, it cannot be reopened or relitigated by the same parties. International Law recognizes this
principle as well.

B. 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.

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 Sources of International Law

1. Judicial Decisions: As per Article 38, judicial decisions are recognized as subsidiary means
of determination of law. Article 59 of the Statute of the ICJ states that the decisions of the
Court can only guide them but does not have any binding value on the Court and the court is
authorised to apply the previous decisions of the court which are known as the evidence of
International Law. Thus, the doctrine of stare decisis is not followed in International Law. ICJ
through its case laws, advisory opinions and judges role-play a major role in the law-making
process. One of the major examples of this was laid down in the case of Nicaragua vs. USA
where the principle of the prohibition against the use of threat or use of force was recognised.
This principle is now considered to be a part of Customary International Law. In another case,
that is, Alabama Claims arbitration, ICJ gave recognition to the peaceful settlement of
international disputes. In this, judicial and arbitration methods were used in resolving conflict.

2. Writings of the Publicists: As per Article 38, teachings of the highly qualified writers of
International Law such as Gentili, Grotius, and Vattel are considered as the subsidiary means
of determination of law. The jurists or publicists also declares rules by legal philosophy and
analogy and also by comparing different legal systems of the world and they also analyze the
historical perspectives of the different legal systems of the world. So, as they have devoted
their lives for the legal study, they must be deserved to consult in deciding a dispute. In other
words, their opinion on a specific question of law weights because of the their valuable
experiments and sound study on the topic. So, the statute further reveals that if there is no
treaty, legal customs and general principles of law then the court shall resort to writings of
these jurists.

3. Other Sources: Beside the above sources there are also some other sources which court can
resort for the decision of a case. As for example "Equity" and the resolution by the UN
organization Nowhere in the statute these sources have been Geclared for the Court to derive
law but by practice the common and universal principles of equity have been observed by the
courts while deciding cases. And also the UN organization when passes a resolution on
specific subject the Court feels its moral duty to decide the case in the light of such resolution
if there is no express provisions for deciding a case.

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