1) Introduction :

                  According to some of the eminent jurists following are the Sources of International Law      

 Lawrence:  According to Lawrence, if we take the source of law means its beginning as law having with all the authority required to give it binding force, then in respect of International Law there is one source of law and that is consent of Nations. This consent may be either tacit (custom) or express (treaties).


Oppenheim: Oppenheim also shares the opinion of Lawrence According to Oppenheim Treaties and Customs are regarded as the exclusive sources of International Law.

Therefore the Sources of International law are two-fold, namely -

                          1 Express consent which is given when States conclude a treaty stipulating certain rules for the future International conduct of the parties.

                          2 tacit consent, that is implied consent or consent by conduct.

Brierly: According to Professor Brierly the main Sources of International law are custom and reason.


Westlake: Westlake also says that custom and reason are two sources of International law.


     According to Oppenheim treaties and customs are regarded as the exclusive sources of International Law. Bariely and Westlake says that Main sources of International Law are Cause and reason.




Statute of the International Court of Justice Article 38(1)


              Sources of International Law are Identified in Article 38 (1) of the 1945 Statute of the International Court of Justice (established by the Charter of the United Nations) defines the Sources of International law as under:


 (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 the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.


Article 38 (2) Provides that the Article 38 (1) shall not prejudice the power of the Court to decide a case ex aequo et bono (means in justice and good faith) if the parties agree thereto.



2) Sources of International Law :              

       A) International Conventions or Treaties:

                             It is the first and Important Source of International law.  There is no Legislative organ in the field of International Law, comparable to legislatures within the State, the enactments of which could bind all the States. The Contracting Parties may, however, establish an international organization by means of the treaty with authority to bind them by its resolutions or may even lay down rules for their mutual conduct. In this sense, Multilateral treaties are a feeble approach to International Character.


Treaties can be Divided Into 1) Law Making Treaties and 2) Treaty Contracts


          1) Law making Treaty-


                           Law making treaties are those treaties which are entered into by a large number of States. These are the direct source of International Law. These treaties are binding. Law making treaties may be divided into i) treaty giving the rule of Universal International Law. ii) Treaty giving general principles.


              (i)  Treaty giving the rule of Universal International Law - These treaties are signed by a majority of the State. For Example United Nation Charter.

             (ii) Treaty giving general principles - These treaties are entered into and signed by a large number of countries giving thereby general principles of International Like. Geneva Convention on Law of sea and Vienna Convention on Diplomatic Relations, 1961 are examples of such a treaty.


             2) Treaty Contracts:


                             These are the 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.


      It is criticised that the classification of treaties are misleading because they both create binding rules. In conventions numbers of State, parties are involved. There is the majority of state who abide by the obligation and agreed voluntarily. What is the role of the convention? Do they really create rules, obligations? and principles of International Law? Or they merely state the principle of that law?


      Yes, it creates rules and principles of International Law. The basis is the common consent of the States. There is no law making authority in the international sphere. The role played by convention in the absence of such Law making Authority is significance. The International convention goes one step ahead of customary rules.


      There is no doubt about the fact that treaty stipulations override rules of International customary law which are incompatible with them. This proposition received approbation in the case of S.S Wimbledon 1923, where the Permanent Court of International Justice held that treaty law takes priority over international Customary Law.

         Conventional and customary rules of International Law are not the only source of International Law, but they fill the gap in absence of law making authority.



B) Customs :


            Custom is the older and original Source of International Law. It is as such Second Important source of International Law. International Law Custom may mean a kind of qualified practice, by the existence of a corresponding legal obligation to act according to this practice, hence by the existence of the corresponding rule of International law.  The customs are evolved through the practices of and usages of the nation and their recognition by the community of nations. Customary rules are those rules which are practiced by most of the States by way of habit for a pretty long time.

      International custom has developed by spontaneous practice and reflects a deeply felt community of law. Its rules are regarded as possessing density and stability and it is the repository of the general or common law of the nations.


C) The general Principles of Law:


                   There is another Source of International Law that is General Principles of Law. General Principles are based on moral Principles and law of nature, it has relation with the State Practice.  The statute of the International  Court of Justice (ICJ) Authorities the Court to apply the general principles of law recognized by civilized nations in addition to international conventions and custom, which are the two main sources of International law.  It makes national legal systems as a source of law for the creation of International Law.



              The special arbitral tribunal  between Germany and Portugal also applied the general principles of law in the Maziua and Naulilaa case where the arbitrators observed that in the absence of rules of International law applicable to the Facts in dispute, they were of opinion that it was their duty to fill the gap by principles of equity fully taking into account the spirit of International Law, which is applied by way of analogy and its evolution.


D) Judicial Decision:


                      According to Article 38 of the Statute of the International Court of Justice, Judicial Decisions are subsidiary sources of International Law. They are not the automatic sources of law. Judicial Decisions by International Court of Justice, Permanent Court of Justice, International Arbitral Tribunal and Municipal Courts.

                     Article 59 of the Statute of the International Court of Justice expressly provides that the decisions of the court have no binding force except between the parties and in respect of that particular case. That means Judicial decisions are binding only on the disputed States. Under the provisions of this Article, the Court is specifically required not to apply precedent or doctrine of stare decisis in its decisions. ICJ became a persuasive value in the limited action.  The content of earlier decisions has some element of law and it is clarified, impartially, ascertainly carried by International Court of Justice. How it Contributes in the development of International Law. It is repeated application is relied upon. later on, it does not remain only persuasive and it does convert into rules of International Law.




E) Text writers, Juristic Works and Commentators -


                   It is referred and relied on by International Court of Justice which author is quoted in which decision. The opinion of jurist are also regarded as sources of international law but they are subsidiary means for the determination of rules of international law. While deciding the case, if the Court does not find any treaty or judicial decision or legislative act or any established custom, the Court may take the help of opinion of jurist as subsidiary means for the determination of rules of International law. Although juristic works are not an independent source of law, sometimes juristic opinion lead to the formation of International law. It throws light on the rules of International law and their writing makes it easier to frame a particular rule. The value of juristic writings carries more weight particularly in those fields of international law where treaty or customary rules do not exist.

                  The Writings of Ayala,  Gentilis Grotius, Vattel, Kent  Zouche, etc have tended to transform the transitory state of usages into custom and represented a strong element to consolidate the customary law. 

         

F) Equity



             Equity is used in the sense of consideration of fairness, reasonableness and policy often necessary of the sensible application of the more settled rule of law. Though equity cannot be the direct source of International Law, It is of great importance in those fields where rules are not readily available.

                    Some jurist says that it is not the formal source of law but it is a source of law. Equity principles originate from culture and interest of State concerned, equity principles varies from State to State. Equity in international law is uncertain. It is subjective, and to bring objectively to the principles of equity as a principle of natural law are considered. The Concept of Equity has been referred to in several cases.



G) Decision or determinations of the organs of International Institutions -


             In the modern age the decisions or determination of the organs of international Institutions are also treated as sources of International Law. In the view of constant change in the forms and content of the International Law, International organisations have also became a subject of International law. The decisions and determination of the organs of such institution are also, therefore, regarded as the sources of International Law because they help in the development of customary rules of International Law.See also 


See Also 


1) Subjects of International Law

2) Weakness Of International Law

3) War Crimes - Definition, Classification of war crimes

4) Important Definitions of International Law

5) The Covenant on Civil and Political Rights, 1966

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