SOURCE OF INTERNATIONAL LAW
Updated: Nov 9, 2020
Ramki D, III year of B.A.,LL.B.
International law also known as "law of nations". The name of a body of rule which regulates the sovereign state and the relation with one another. The source of international law includes treaties, international customers. In general, it recognized the principle of law, the decision of the national and lower court and scholarly writing. They are the material and the process of the rule and it develops the principle of the international community. In human rights, it also includes the treatment of individuals and groups, international criminal law and international economic law that regulate the activity of private participants in the international marketplace. International law means that useful or necessary change will be delayed or obstructed. It also deals with the rights and duties of individuals, groups and companies. The system of international law is controlled by the states and government through the principle of consent and it's also dealing with the challenges of the modern world.
Meaning and source
● The modern international system is a product of only the past four hundred years. Rules, agreements and treaties are the set of this system and its binding between countries. The system is the independent system of law existing outside the legal framework.
● International law is the method of procedures created for international law.
● Article 38, the court function decides per international law. International customs, as evidence of the general practice accepted as a law. The principle of law recognized by civilized nations.
● The prejudice is not the provision, the court decided a case that ex aequo et bono, if the parties agree thereto.
Sources of International Law
● International Conventions
● International Customs
● General Principles recognized by the Civilized States.
● Decisions of Judicial and Juristic Works.
● Declarations of the organs of International Institutions.
● Ex aequo et bono.
Article 38 of the Statute of ICJ lists,
● International Convention is general or particular, establishing rules expressly confess by the contesting states.
● Manely O. Hudson points out that treaty, convention, protocol or agreement regardless of the form applies to be a form of Conventions.
● Convention of the Law of Sea 1982.
● In 1958, the Geneva Convention on the territorial sea and the Contiguous Zone.
● In 1961, the Vienna Convention on Diplomatic Relations.
Custom as a Source of Law
● Article 38 (1) (b) of the Statute of the ICJ defines custom as a source of International Law = “International Custom, as evidence of a general practice accepted as law”
● Jus Cogens: which means the peremptory norm. Article 53 of the Vienna Convention provides that a treaty is void when it conflicts with the peremptory norm of international law.
Custom and Usage
● Custom = Long established practice having the force of law.
● Usage = Long established use or custom.
Essentials of a Valid Custom
● Conformity with Statute Law
● Long Duration: Immemorial Antiquity.
● Opinio Juris et necessitatis : General practice accepted as law
General Principles recognized by the Civilized States
Article 38 (1) (c) of the statute of the International Court of Justice provides this as the third source of international law.J, E, S, Fawcett gives the meaning that, “by general principles of law, we mean those rules or standards which we find repeated in much the same form in the developed systems of law”.
Ex – No man can be a judge in his cause, hear both sides, pacta sunt servanda
● Principles of Natural Justice recognized by civilized states.
● Res Judicata, Estoppel.
● Municipal law in par with international law.
● Justice, Equity and Good Conscience.
Decisions of Judicial or Arbitral Tribunal & Juristic Works
● International Judicial Decisions – Decisions of ICJ are however not binding on others except the parties. However, Article 38 (1) (d) is subject to Article 59 of the Statute of ICJ.
● State Judicial Decisions – Precedents and judgments of State Judicial Decisions as customary rules of International Law.
● Decisions of International Arbitral Tribunals.
● Juristic Works – not the direct source but act as an instrument to develop international customs.
Determinations of the organs of International Institutions
● They are intermediate or final steps in the development of customary rules.
● The resolutions of the organs are binding on the members concerning internal matters of the institution.
● Organs of international institutions can decide the limits of their competence.
● The interpretation of their constitution later becomes part of international law.
●Decisions of quasi-judicial institutions and opinion of the international committee of jurists.
Ex aequo et bono
This Provision will not prejudice the powers and court to decide a case that ex aequo et bono if the parties agree thereto.
International law is primarily connected with the rights, duties and interests of the states. It is the states who enter into treaties and they are found by the terms and conditions of the treaties. The settlement of international disputes by peaceful means. It includes arbitration and judicial settlement (Article 33), and to encourage the progressive development of international law and its codification (Article 13). The growth of Internationalism and the feeling of universal brotherhood internationally and it will also become effective and powerful.