Sources of International Law
By: Anjali Tiwari
Primary Source if International Law
The character of primary sources of international law is formal. They are derived from official entities such as treaties, customs, and legal principles. Article 38(1)(a-c) of the ICJ statute is widely accepted as the official source of international law. It is largely regarded as an authoritative overview of the sources of international law. The International Court of Justice's Statute at The Hague, Article 38, has been utilized as a handy reference guide to international legal resources.
The same clause was enacted as Article 38(1)(a-c) of the ICJ by the Permanent Court of International Justice, which functioned under the auspices/support of the Legal of Nations in 1920.
Treaties as International Source of Law
Conventions, agreements, pacts, general acts, charters, and covenants are all terminology used to describe written instruments in which the participants (typically but not necessarily states) agree to be bound by the negotiated provisions. Some agreements are governed by local law (for example, commercial agreements between nations and transnational corporations), in which case international law is irrelevant. Treaties are not political speeches or declarations that are not legally enforceable.
Bilateral or multilateral treaties are possible. Although many of the most important treaties (such as those resulting from the Strategic Arms Limitation Talks) have been bilateral, those with many parties are more likely to have worldwide significance. More than 150 countries have signed a number of recent treaties, such as the Geneva Conventions (1949) and the Law of the Sea Treaty (1982; formally the United Nations Convention on the Law of the Sea), demonstrating their importance and the treaty's evolution as a method of general legislation in international law. The Convention on the Prevention and Punishment of Genocide (1948), the Vienna Convention on Diplomatic Relations (1961), and the Antarctic Treaty are all important treaties (1959). Some treaties establish international organisations and offer their constitutions (for example, the United Nations Charter of 1945), while others deal with more commonplace matters (e.g., visa regulations, travel arrangements, and bilateral economic assistance).
Custom as a Source of International Law
The oldest and most reliable sources the term "custom" is used to describe the legislation. Customary international law standards are the consequence of a long-running historical process that has gained general approval. Because there is no documented source of law, state practice and behaviour can be used to infer the presence of customary rules. A rule of customary law is said to consist of two elements:
First and foremost, there must be a widespread and consistent state policy.
Second, there must be "opinio Juris," a Latin term that refers to a legal responsibility to think that such law exists.
Convention as a source of International Law
Treaties and Conventions are most important sources of international law. These arrangements could be multilateral or bilateral. Multilateral conventions are treaties that define the scope of a law's application over the world. Bilateral conventions, on the other hand, are made purely by two governments to address a specific topic that both governments are concerned about.
"A treaty is an agreement whereby two or more states establish or attempt to establish a connection between them controlled by international law," says the Vienna Convention on the Legislation of Treaties, which is the codified law for contracting treaties. Treaties provide states with a direct source of rights and obligations, codifying the previous customary source of law.
They are voluntary and cannot bind non-signatories; however, there are some exceptions, such as when a rule is part of the Jus Cogens norm because it is part of established international law principles and every state has a peremptory responsibility not to violate it due to its erga omnes responsibilities.
General Principle of International Law
Insofar as they apply to interstate interactions, most modern jurists consider general principles of law as universal to all national legal systems. In international law, there are fewer resolved decisions than in municipal law, and there is no mechanism of legislating to give norms to regulate new situations. The clause of 'the general principles of law acknowledged by civilized nations' was placed into article 38 as a source of law for this purpose.
The following are some examples of general principles:
In the case of Genocide Convention Bosnia and Herzegovina v. Serbia and Montenegro, the court upheld the norm of res judicata.
The pacta sunt servanda rules have been applied.
Damage produced by the fault must be compensated for.
The individual's right to self-defense against an attack on his person, family, or community in the face of a clear and present threat
No one can be a judge for their own case, and the judge must hear both sides.
Secondary source (Evidence of International law)
The material source of international law, commonly known as the secondary source, includes Article 38(1)(d). It asserts that court decisions and the teachings of the most highly competent publicists of various nations also aid in the establishment of international law, but that these are advisory rather than binding.
The court is authorized to apply previous court decisions, which are also known as evidence of international law; however, this is subject to the exception set forth in Article 59 of the statute, which states that a previous court decision can only serve as a guide to the court and is not binding on the court. This article establishes a rule that the court is not bound by precedents, but that the court may nevertheless rely on its previous decisions' res judicata and advisory opinions to substantiate the current case as authoritative evidence of legal position.
Through its advisory opinions, case laws, and judge's rule, the ICJ plays a significant influence in the law-making process. One of the most notable examples is the principle of the ban against the use or threat of force, which was established by the court in the case of Nicaragua vs. United States and is now, regarded part of Customary International Law. The court's legal decision also includes international arbitral awards and national court rulings. Alabama Claims arbitration, for example, heralded the beginning of a new age in the peaceful settlement of international conflicts, in which court and arbitration processes were increasingly used to resolve conflict.
The Island of Palmas case is another example of the significance of arbitral awards, in which it was said that a unanimous, or nearly unanimous, decision plays a crucial part in the progressive evolution of the law. It aids in the development of international law by giving a single point of view for interpretation of the subject at hand, so avoiding disagreement.
Juristic writings and teachings
The teachings of highly qualified writers such as Gentili, Grotius, and Vattel, who were considered the top authority of international law in the 16th to 18th centuries, are also included in this source.
Textbooks are used to find out what the law is on a certain topic rather than as a source of actual regulations, and even the most respected international lawyers' works cannot establish legislation. These are considered to be an evidence source of law because they explain and comprehend international concepts. They are valuable because they help to fill in the gaps in international law when treaties or traditions do not exist.
Other sources of International Law
Article 38 is not exhaustive because international law is not based on a set of rules. Other variables that influence the application of international law include statements of Security Council resolutions, declarations and recommendations approved by the United Nations General Assembly, international morality and equity, and so on. As the world changes and problems become more complicated, the resolutions and declarations approved by the assembly have an unavoidable impact on the direction taken by modern international law. The manner in which states vote in the General Assembly, as well as the reasons made on such occasions, are indications of state practice and legal understanding.
The concept of equity has been mentioned several times. In the Rann of Kutch Arbitration between India and Pakistan in 1968, the Tribunal agreed that equity was a part of international law and that the parties might rely on it when submitting their claims. As the need for rapid development of international law codified by the International Law Commission grows, the UN has stepped in to fill the gap in what is supposed to be an accurate reflection of other sources of international law, and its activities have positively influenced lawmaking methods through resolutions and faster means by 15 members of the Security Council and 191 members of the General Assembly.