Souces of International Law
According to Article 38 of the Statute of International Court of Justice the following are the sources of International Law.
I. Treaties or International Conventions- The term “conventions” applies to any treaty, protocol or agreement, regardless of its title or form. According to Article 38 of the Statute of International Court of Justice, it is the first source of International law. In the modern period, international treaties are the most important sources of International law. According to Article 2 of Vienna Convention on the Law of Treaties, 1969, “a treaty is an agreement whereby two or more states establish or seek to establish relationship between them governed by International law”. Article 3 provides that the fact that the present convention does not apply to International agreements concluded between states and other subjects of International law or to International agreements not in return form shall not affect-
(a) The legal force of such agreements;
(b) The application to them of any rules set forth in the present convention to which they would be subject under International law independently of the convention;
(c) The application of the convention to the relations of States as between themselves under International agreements as to which other subjects of International law are also parties.
Kinds of Treaties-
International Treaties may be of 2 kinds:
(i) Law-Making Treaties and (ii) Treaty contracts
(i) Law-Making Treaties- Law-Making Treaties are those treaties which are entered into by a large number of States. These are the direct sources of International law. Law-making Treaties may further be divided into following 2 kinds:
(a) Treaties Enunciating the Rules of Universal International Law- Those treaties which are signed by a majority of the States are called the Treaties Enunciating the Rules of Universal International Law. United Nations Charter is an example of such type of treaties.
(b) Those Enunciating General Principles- Treaties which are entered into by a large number of countries enunciating general principles of International law. Geneva Conventions on the Law of the Sea and Vienna Convention on Diplomatic Relations 1961, are good examples of such types of treaties.
(ii) Treaty Contracts- Treaty Contracts are those treaties which are entered into by two or more states. The provisions of such treaties are binding only on the parties to the treaty. Such type of treaties are also the source of International law because they help in the development of customary rules of International law.
II. International Customs- International Customs had been the most important source of International law in the past. In the modern period, their importance has lessened. Custom is a habit which has been repeated for a long time and has ultimately assumed the force of law. Usage is the earlier stage of the development of custom. By usage I mean those habits which are often repeated by the States. Customs begins where usage ends. Usages may be inconsistent and opposed to each other, but so is not the case with custom. Customary rules of International law have developed in the three circumstances i.e.-
(a) Diplomatic relations between states;
(b) Practice of Organs of International Institutions; and
(c) State laws, decisions of the State’s Courts and State’s parliamentary or administrative practices.
West Rand Central Gold Mining Co. Ltd. V. R., [(1905) 2 K.B. 291] (Right of Passage over Indian Territory Case)- Portugal V. India, (I.C.J. Rep. 1960 at 6) and Paquete Havana, (1990) 175 U.S. 677 are good examples of application of custom in International law.
III. General Principles of Law Recognised by the Civilized States- The general principles of law recognised by the civilized Nations is an important souce of law through which International law adapts itself in accordance with the changing times and circumstances. Res judicata, Estoppel, etc, are the examples of the general principles of law recognised by civilized states. When the court finds that a principle has received general recognition, the court may apply it as a principle of International law. According to B. Cheng, International Courts have recognised the following general principles, i.e.-
(i) Good faith;
(iv) In the absence of any express provisions to the contrary, every court has a right to determine the limits of its own jurisdiction;
(v) A party to a dispute cannot himself be an arbitrator or judge;
(vii) In any judicial proceeding, the court shall give proper and equal opportunity of hearing to both parties.
IV. Decisions of Judicial and Arbitral Tribunals- According to Article 38 of the International Court of Justice, the decision of Judicial and Arbitary Tribunals are subsidiary means for the determination of the rules of law. This source includes International as well as States decisions. As regards the decisions of the International Court of Justice, Article 59 of the Statute of International Court of Justice provides that they will have “no binding force except between the parties and in respect of that particular case”. Since the doctrine of precedent does not apply in the field of international law the international judicial decisions are not generally binding. They are regarded as subsidiary means for the determination of the rules of International law.
V. Juristic Works- The opinions of jurists are also regarded as subsidiary means for the determination of the rules of International law. While deciding the case, if the court does not find any traty or judicial decision or legislative act or any established custom, the court may take the help of opinion of jurists as subsidiary means for the determination of rules of International law.
Order of Use of Sources of International Law-
According to Article 38 of the Statute of International Court of Justice, following is the order of the use of sources of International law-
(a) International Treaties or Conventions;
(b) International Customs;
(c) General Principles of Law Recognised by Civilized Nations;
(d) Judicial decisions and juristic opinion as subsidiary means for the determination of the rules of International law.
Thus, while deciding a dispute the International Court of Justice will first apply the treaty if available on the subject of dispute. In the absence of any treaty on the disputed matter it will decide the dispute on the basis of International custom and so on in the above noted order.