Sources of International Law

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This article is written by Tamanna Passi of Mody University, an intern under Legal Vidhiya

INTRODUCTION

The discipline of law that governs the legal relations between various nations is referred to as International Law. It is also known as ‘droit de gens’ which means ‘the law governing relations between the states’[1]. However, it is important to note that there is no formal legislature, executive or judiciary at the international level, so, determining its sources is an interesting, albeit, daunting task.

The term source in the context of international law has various connotations such as natural law being the source of international law, State consent being the source of international law, or the victim of a misnomer.

While determining the sources of International Law, we mean the “methods or procedures by which the rules of International Law are created.”[2]

The term “source of law” refers to the facts or circumstances that result in the formulation, amendment, and repeal of binding legal standards. They provide forth the groundwork for the system’s rules, which are confirmed by a certain source. New rules are then recognised as part of the body of international law. It is a certain method of figuring out what the law is, to put it another way. The sources of international law that are officially recognised and usually undisputed are enumerated in Article 38[3] of the ICJ statute.

Article 38(1) of the Statute of the International Court of Justice recognizes the sources of International Law as follows:

International Conventions
International Custom
The general principles of law
Juristic works and judicial decisions.

INTERNATIONAL CONVENTIONS

One of the most significant sources of international law is treaties and conventions. These agreements may be bilateral or multinational. Multilateral conventions are the agreements that define how the law would be applied universally or generally. Bilateral conventions, on the other hand, are only constituted by two nations to address a specific issue involving these states.

A treaty is defined as an agreement between two or more nations that creates or seeks to create an alliance among them governed by international law by the Vienna Convention on the Law of Treaties of 1969[4]. The current customary source of law is codified through treaties, which serve as an immediate source of rights and responsibilities for the nations.

They are voluntary and are not binding on non-signatories, but there are some exceptions to this rule, such as when a rule forms a component of the Jus Cogens norm because it is one of the generally recognised tenets of international law, in which case every state is required to uphold due to its erga omnes obligations.

The North Sea Continental Shelf Case[5] found that “the treaties are not binding by virtue of their nature and the states not signing and ratifying it are not bound by its terms.”

In the Nicaragua Case[6], it was decided that “the treaty has a declaratory effect because it declares, determines, or provides evidence as to the existence of the international rule.”

INTERNATIONAL CUSTOMS

The earliest and most authentic sources Custom is the name for law. The principles of customary international law underwent a protracted historical process before becoming accepted by all parties. Because customary law does not have a written basis, it might be inferred from state practice and action. A customary law norm is considered to contain two components:

First and foremost, there has to be extensive and uniform State practice.
Second, there must be “opinio Juris,” a Latin phrase that denotes a duty to accept the legitimacy of such legislation.

Characteristics of Customary Law are as follows:

General and uniform – State practises must be regular, consistent, and widespread in addition to being accompanied by the conviction that the practice is mandatory rather than habitual in order to give birth to enforceable standards of customary international law. In the Asylum Case[7], the court ruled that a customary rule that can be traced back to state practice must be applied consistently and consistently throughout history.
Duration – A norm of customary law is believed to be a certain action that is consistently and regularly used. The International Court of Justice (ICJ) ruled in the North Sea Continental Shelf[8] that there is no set period of time during which the practice must continue. It just has to be adhered to for a sufficient amount of time to demonstrate that other customary standards have been met.
A legal opinion – The norm in issue must be viewed by the state as obligatory in law, meaning that the states must believe they have a duty to uphold the practice. Only then can it be considered to be customary international law. Opinio Juris was seen as a crucial component of customary international law in the Lotus Case[9].

The UK High Court held in West Rand Central Gold Mining Ltd. Co. v. King[10] that in order to establish a legitimate international custom, one must provide sufficient proof that the custom has the support of all States and is not opposed by any civilised State.

In Portugal v. India[11], the International Court of Justice (ICJ) ruled that if two States adopt a practice among themselves for a long period, it becomes a legally enforceable customary rule between them.

GENERAL PRINCIPLES OF LAW

Insofar as they apply to the relationships between States, the majority of contemporary jurists recognise universal principles of law as being shared by all national legal systems. In contrast to a municipal system, international law has fewer instances that have been resolved and no legislative mechanism to provide guidelines for handling novel circumstances. For this reason, article 38 was amended to include the phrase “the general principles of law recognised by civilised nations” as a source of law.

The General principles help international law in adapting to the changing times and circumstances in the following 2 ways:

The general principles of various other laws
The natural principles of justice

In The United States vs Schooner Amistad,[12] the US Supreme Court held that international law should be in concurrence with the legal principles that are recognized by the civilised nations and not against it. It also ruled against the international slave trade.

In the Diversion of Water from the River Meuse Case[13], it was held that equity has always been a part of International Law and the court has the freedom to apply the principles of equity as a part of international law.

JURIST WORKS AND JUDICIAL DECISIONS

This gives the court the authority to use earlier rulings, which are also known as examples of international law. However, this is subject to the exception set forth in Article 59[14] of the statute, which states that an earlier ruling of the court can only serve as guidance and is not legally binding.

This article gives the court a rule stating that precedents are not binding, but that the court may nonetheless rely on its prior decisions’ res judicata and advisory opinions to support the present case as authoritative proof of legal position.

Through its advisory opinions, judge’s rules and case laws, the ICJ has a significant influence on the creation of legislation. One of the most notable examples of this is the rule that was established by the court in the Nicaragua case[15], which is now regarded as a component of customary international law, prohibiting the use or threat of force.

The Island of Palmas case[16], where it has been said that a unanimous or nearly unanimous judgement plays a key part in the progressive evolution of the law, serves as another example of the effects of arbitral awards. It assists in offering a unified perspective for the interpretation of the pertinent problem, hence reducing conflict as international law develops.

In the case of Paquete Habana[17], it was held that in case there is no treaty, convention, custom or judicial decision, the work of the jurists must be taken into consideration.

CONCLUSION

International Law is a law that governs the relations between various sovereigns. It finds in sources in Article 38 of the ICJ statute, which defines customs, treaties, and general principles as the official sources of international law, and codifies the numerous sources from which international law has developed. However, the international stage court’s judicial decisions also serve as advisory views that direct the advancement of international law. Through their ideas and hypotheses, several philosophers and legal theorists have also enriched the philosophy of international law. Through a variety of means, international law assists in classifying states as members of the global community and assigns them rights and obligations. International Organisations play a significant role in fostering collaboration and protecting the international law that has developed from many sources in order to preserve peace and order among nation-states.

[1] Akehurst, Ch. 1.

[2] Herbert Briggs, The Law of Nations, p. 44 (2^nd Ed. 1952).

[3] Statute of the International Court of Justice, Art. 38.

[4] Treaty Series 1155 (May): 331.

[5] ICJ Rep., 1969, pp. 3.

[6] ICJ Rep. 1986, p. 14.

[7] Colombia v. Peru [1950] ICJ 6.

[8] supra note 3.

[9] France v. Turkey, ICGJ 248 (PCIJ 1927).

[10] (1905) 2 KBD 291.

[11] ICJ Rep. 125, ICGJ 173 (ICJ 1957).

[12] (1841) 40 US 518.