SOURCES OF INTERNATIONAL LAW

BY

CHITRA SHEKHAWAT

&

ROSHAN NAZARETH

TYLLB – KLE COLLEGE OF LAW,KALAMBOLI

UNDER THE GUIDANCE OF PROF. DINKAR GITTE

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SOURCES OF INTERNATIONAL LAW

'SOURCE', ACCORDING TO OPPENHEIM, MEANS THE ULTIMATE ORIGIN FROM WHICH THE LAW ORIGINATES.
WHEN WE SEE A RIVER AND DESIRE TO KNOW ITS SOURCE, WE MUST GO UP THE RIVER UNTIL WE REACH A
PARTICULAR POINT WHERE THE WATER IS OOZING OUT NATURALLY FROM THE SOIL. THAT IS THE SOURCE
OF THE RIVER. SIMILARLY, IN ORDER TO FIND OUT THE SOURCE OF THE PRINCIPLES OF INTERNATIONAL
LAW WE MUST TRACK BACK TO A PARTICULAR POINT. THAT IS THE SOURCE.

THE STATUTE OF THE I.C.J. IN ART. 38, HAS ENUMERATED THE FOLLOWING SOURCES OF
INTERNATIONAL LAW ON THE BASIC OF PRIMACY BEFORE THE COURT:

A) INTERNATIONAL CONVENTIONS OR TREATIES.

B) INTERNATIONAL CUSTOMARY LAW. '. .
C) GENERAL PRINCIPLES OF LAW RECOGNIZED BY' CIVILIZED NATIONS.
D) JUDICIAL PRECEDENTS.
E) JURISTIC WRITINGS.
F) EX AEQUO ET BONO. (EQUITY & GOOD CONSCIENCE)

SOURCES OF INTERNAIONAL LAW BY CHITRA SHEKHAWAT & ROSHAN NAZARETH

These are to be applied in the same order by the I.C.J.

a) International Treaties:  
There is primacy for this source at the International Court of Justice. Treaties are of two kinds:

(i) Law-making and

(ii) Treaty-contract.

Eg.

Pact of Paris 1956; Hague conventions of 1899 & 1907, Peace Treaty 1919, Treaty for the Renunciation of War, 1929, Geneva
Convention relating to Prisoners of War 1929. Conventions of the Law of the Sea Conference 1958 are examples..

(ii) Treaty-contracts -are non-law making in nature.

SOURCES OF INTERNAIONAL LAW BY CHITRA SHEKHAWAT & ROSHAN NAZARETH

B) INTERNATIONAL CUSTOM:

THIS IS THE ORIGINAL SOURCE OF INTERNATIONAL LAW.

DIFFERENCE BETWEEN CUSTOM AND USAGE

USAGE CAN BE UNDERSTOOD AS BEHAVIOR THAT MAY BE EXECUTED AS A COURTESY. UNLIKE CUSTOM, A
PERSON DOES NOT HAVE ANY LEGAL OBLIGATION TO COMPLY WITH THE USAGES. ACCORDING TO J.G.
STARKE, AN EXPERT ON INTERNATIONAL LAW REMARKED IN HIS FAMOUS BOOK, ‘INTRODUCTION TO
INTERNATIONAL LAW’, THAT USAGE IS THE PRIOR STAGE OF CUSTOM. CUSTOM BEGINS WHEN USAGE ENDS.
IT IS THE KIND OF RULE THAT DOES NOT HAVE ANY LEGAL BACKING AS OF YET. MOREOVER, MANY USAGES
DO NOT REQUIRE ANY LEGAL ATTESTATION AS ITS NON-COMPLIANCE DOES NOT LEAD TO ANY DIRE
CONSEQUENCES. THEY ARE DONE MERELY AS SOCIAL CONSCIOUSNESS.

ORIGIN

CUSTOM HAS ITS-ORIGIN IN A USAGE. IF THE USAGE IS CONTINUOUS, UNIFORM AND FOLLOWED FOR A
NUMBER OF YEARS IT BECOMES A CUSTOM. USAGE IS THE TWILIGHT ZONE OF CUSTOM. BUT TWO
CONDITIONS MUST BE SATISFIED:

(I) CORPUS TEST/ MATERIAL TEST: A MATERIAL FACT OF THE ACTUAL OBSERVANCE OF A LINE OF CONDUCT
BY THE STATES. THIS MUS. BE SHOWN AS A FACT.

(II) ANIMUS TEST/ PSYCHOLOGICAL TEST (OPINIO JURIS SIVE NECESSITATIS): THERE MUST BE AN
INTENTION TO FOLLOW THE CUSTOM. IT REACHES A STAGE OF APPROVAL 'OPINIO JURIS SIVE NECESSITATIS'
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(JURISTS' OPINION AS OF NECESSITY). THEN, THE PRINCIPLE (USAGE) BECOMES AN INTERNATIONAL CUSTOM.
THIS IS THE PROCESS OF THE CONSUMMATION OF A USAGE INTO AN INTERNATIONAL CUSTOM.
CASE LAWS

IN THE LOTUS CASE, THE COURT (P.C.I.J.) HELD THAT THE OPINIO JURIS MUST BE DRAWN FROM ALL THE
CIRCUMSTANCES, & NOT MERELY FROM THE FACTS ON HAND.

IN THE RIGHT OF PASSAGE CASE (PORTUGAL VS. INDIA), THE I.C.J. HELD THAT A PARTICULAR PRACTICE
BETWEEN TWO STATES ONLY MAY GIVE RISE TO BINDING CUSTOMARY LAW. IT HELD THAT PORTUGAL HAD A
RIGHT OF PASSAGE FOR CIVILIANS BUT NOT FOR MILITARY OFFICIALS.

IN THE PAQUETE HEBANA CASE THE COURT (U.S. SUPREME COURT) HELD THAT LOOKING TO ALL THE FACTS
& CIRCUMSTANCES, THERE WAS UNIFORM PRACTICE OF GIVING 'IMMUNITY TO SMALL FISHING VESSELS
FROM BELLIGERENT ACTION IN TIMES OF WAR. THIS WAS RECOGNIZED AS AN
INTERNATIONAL CUSTOMARY LAW.

IN THE ASYLUM CASE THERE WAS A REBELLION IN LIMA (CAPITAL OF PERU), AND THE REBEL- LEADER HAYA
DE LA TARRE, SOUGHT ASYLUM IN THE COLUMBIAN EMBASSY, WHICH IT GRANTED CONSIDERING HIM AS A
POLITICAL REFUGEE. THE PERUVIAN GOVT. CONTESTED THIS BEFORE THE I.C.J. THE COLOMBIAN GOVT.
RELIED ON INTERNATIONAL CUSTOM. BUT IN VAIN. AS THE CUSTOM OF GRANTING DIPLOMATIC ASYLUM
WAS NOT ESTABLISHED, THE COURT HELD THAT THE GRANT OF ASYLUM WAS WITHOUT LEGAL AUTHORITY.
THE PERUVIAN GOVT. CLAIMED FOR HANDING OVER OF THE REBEL, FROM COLOMBIAN EMBASSY. THE I.C.J.
HELD IN HAYA DE LA TARRE'S CASE THAT THIS DECISION WAS THAT COLOMBIAN GOVT. HAD NO RIGHT TO
GIVE ASYLUM. IT DID NOT MEAN THAT HE SHOULD BE HANDED OVER TO PERU! (HE WAS SAFELY TAKEN TO
COLOMBIA).
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SOURCES OF INTERNAIONAL LAW BY CHITRA SHEKHAWAT & ROSHAN NAZARETH

HOW DOES A PRACTICE OR CUSTOM BECOME CUSTOMARY INTERNATIONAL LAW

THE INTERNATIONAL COURT OF JUSTICE IN THE NORTH-SEA CONTINENTAL SHELF CASE LAID DOWN FOUR
PRE-REQUISITES THAT MUST BE SATISFIED FOR A PRACTICE OR CUSTOM TO BECOME LAW UNDER ARTICLE
38(1)(B):

UNIFORMITY AND CONSISTENCY OF PRACTICE

IN THE ASYLUM CASE THE ICJ RECOGNIZED THE NEED FOR CUSTOM TO BE UNIFORM AND CONSISTENT. THIS
IS INTERPRETED FROM ARTICLE 38(1) (B) WHICH REFERS TO INTERNATIONAL CUSTOM ‘AS EVIDENCE OF A
GENERAL PRACTICE ACCEPTED AS LAW.’

GENERALITY OF PRACTICE
FOR A RULE TO BE RECOGNIZED AS AN INTERNATIONAL CUSTOM IT IS NOT NECESSARY FOR IT TO BE
UNIFORM HOWEVER, IT SHOULD BE GENERALLY OBSERVED BY NUMEROUS STATES. THERE HAS TO BE A
SUFFICIENT DEGREE OF PARTICIPATION BY THE STATES WHOSE INTEREST DEPENDS UPON THE ENACTMENT
OF THE CUSTOMARY LAW. FOLLOWING ARE THE STATE PRACTICES THAT ARE GENERALLY ACCEPTED AS
EVIDENCE OF CUSTOM:

1. TREATIES BETWEEN STATES

2. JUDICIAL DECISIONS OF THE MUNICIPAL AND INTERNATIONAL COURT
3. JURISTIC OPINIONS
4. SIMILAR PROVISIONS IN THE NATIONAL LAWS
5. PRACTICE OF INTERNATIONAL ORGANS
6. DIPLOMATIC RELATIONS BETWEEN STATES 6

SOURCES OF INTERNAIONAL LAW BY CHITRA SHEKHAWAT & ROSHAN NAZARETH

C) GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS
THIS IS THE THIRD SOURCE OF INTERNATIONAL LAW ACCORDING TO THE STATUTE OF THE I.C.J. (ART. 38). IF
THERE IS NO INTERNATIONAL TREATY OR INTERNATIONAL CUSTOM, THE COURT APPLIES THIS SOURCE. ONE
OF THE ESSENTIAL DUTIES OF THE COURT IS TO DECIDE THE CASE AND NOT TO PLEAD ITS INABILITY OR
HELPLESSNESS ON THE GROUND THAT THE LAW IS SILENT OR OBSCURE. HENCE, IT MAY EVOLVE A PROCESS
TO ARRIVE AT A GENERAL PRINCIPLE BY TAKING INTO CONSIDERATION THE MUNICIPAL LAWS OF THE MAJOR
COUNTRIES OF THE WORLD. A PRINCIPLE WHICH IS COMMON IN THESE COUNTRIES MAY BE RAISED TO
INTERNATIONAL LEVEL. AS LORD PHILLIMORE POINTS OUT THESE ARE PRINCIPLES WHICH ARE COMMON IN
ALL COUNTRIES OR JURISPRUDENCES LIKE THE PRINCIPLES OF RES JUDICATA, SUBROGATION ETC. HENCE, IF
THE COURT FINDS THAT A RULE HAS BEEN ACCEPTED GENERALLY AS A FUNDAMENTAL RULE OF JUSTICE BY
MOST NATIONS IN THEIR MUNICIPAL LAW, IT MAY BE DECLARED AS A RULE OF INTERNATIONAL LAW.

CASE LAWS

1. ADMINISTRATIVE TRIBUNAL CASE

2. THE EASTERN GREENLAND CASE
3. THE TEMPLE OF PREAH VIHEAR CASE
4. THE MAVROMMATIS PALESTINE CONCESSIONS CASE

SOURCES OF INTERNAIONAL LAW BY CHITRA SHEKHAWAT & ROSHAN NAZARETH

D) JUDICIAL PRECEDENTS:

THE DECISIONS OF THE I.C.J., THE P.C.I.J., THE INTERNATIONAL ARBITRATION TRIBUNALS AND THE NATIONAL
SUPREME COURTS FORM THE FOURTH SOURCE OF INTERNATIONAL LAW. THIS IS FOLLOWED BY THE COURTS
NOT ONLY AS A SOURCE, BUT ALSO AS THE BEST EVIDENCE AVAILABLE TO SHOW THE EXISTENCE OF RULES
OF INTERNATIONAL LAW REFERRED TO IN THOSE DECISIONS.

I) I.C.J.. DECISIONS: THE FISHERIES CASE (DRAWING OF STRAIGHT BASE- LINE TO DETERMINE THE
TERRITORIAL WATERS), THE REPARATIONS CASE DECLARING THE U.N. AS SUCCESSOR TO THE LEAGUE OF
NATIONS & THAT U,N. IS AN INTERNATIONAL PERSON HAVE LAID DOWN NEW PRINCIPLES OF
INTERNATIONAL LAW.

II) P.C.I.J.: PALMAS ISLAND CASE

III) INTERNATIONAL COURT OF ARBITRATION: SAVARKAR'S CASE, PIOUS FUND CASE, NORTH ATLANTIC
COAST FISHERIES CASE ETC.

IV) STATE COURTS: FRANCONIA CASE, SCOTIA CASE, PAQUETA HABANA CASE ETC.

SOURCES OF INTERNAIONAL LAW BY CHITRA SHEKHAWAT & ROSHAN NAZARETH

E) JURISTIC WRITINGS:
THIS IS THE SOURCE, NEXT TO THE PRECEDENTS. THE I.C.J. MAY REFER TO THE TEACHINGS OF THE MOST HIGHLY
QUALIFIED; PUBLICISTS OF THE VARIOUS NATIONS. IN THE 16TH & 17TH CENTURIES, WRITERS ON INTERNATIONAL LAW
HELD A PRE-EMINENT POSITION AS THIS SYSTEM OF LAW WAS IN ITS SLOW EBB OF DEVELOPMENT. EVEN TODAY IN AREAS
WHERE THE LAW IS UNCERTAIN THE CLASSICS OF THE JURISTS ARE REFERRED TO BY THE STATE'S BEFORE THE I.C.J. AND
ARBITRATION TRIBUNALS IN SUPPORT OF THEIR ARGUMENTS. THE JUDGES PAY REGARD TO THE JURISTIC WRITINGS AS
THEY ARE PERSUASIVE IN NATURE.
THE CLASSICAL WORKS OF GENTILI, HUGO GROTIUS, ZOUCHE, PUFENDORF, BYNKERSHOEK, MOSER, VAN MARTENS,
VATTEL, ETC., ARE RELIED UPON. REFERENCES ARE MADE TO OPPENHEIM'S TREATISES, AND LAUTERPACHT'S WRITINGS,
AND TO THE TEXTS OF THE INTERNATIONAL LAW COMMISSION.

F) EX AEQUO ET BONO
THIS IS THE FINAL SOURCE. THIS MEANS EQUITY & GOOD CONSCIENCE. THIS SAVES THE SITUATION OF HELPLESSNESS OF
THE COURT. ONE OF THE FUNDAMENTALS OF THE JUDICIARY IS TO SOLVE THE DISPUTE ON HAND AND NOT PLEAD ITS
HELPLESSNESS OR NON- AVAILABILITY OF ANY DEFINITE LAW. IN SUCH A CASE, AS A LAST RESORT, THE COURT RELIES ON
ITS OWN CONCEPT OF EQUITY AND GOOD CONSCIENCE & DECIDES THE CASE ON HAND, IF THE PARTIES AGREE.

THE P.C.I.J IN THE DIVERSION OF WATER FROM THE RIVER MEUSE CASE SAID 'HE WHO SEEKS EQUITY MUST DO EQUITY'.
HENCE, ONE PARTY BY NON-PERFORMANCE, CANNOT TAKE ADVANTAGE OF A SIMILAR NON-PERFORMANCE BY THE OTHER
PARTY.

IN THE RANN OF KUTCH ARBITRATION (INDIA V. PAKISTAN), BOTH PARTIES RELIED ON EQUITY AS PART OF INTERNATIONAL
LAW, IN DECIDING THE BOUNDARY DISPUTE BETWEEN THE TWO PARTIES THE TRIBUNAL FOUND THE TWO DEEP INLETS OF
NAGAR PARKAR AS PART OF PAKISTAN, ON GROUNDS OF EQUITY.

IN THE CONTINENTAL SHELF CASES AND IN THE BARCELONA TRACTION CASE, THE I.C.J HAS APPLIED EQUITABLE 9
PRINCIPLES TO SOLVE THE DISPUTES.
SOURCES OF INTERNAIONAL LAW BY CHITRA SHEKHAWAT & ROSHAN NAZARETH
HIERARCHY OF NORMS
WHETHER THERE IS A HIERARCHY OF NORMS IN INTERNATIONAL LAW IS ARGUABLE, AS THERE IS NO SUCH
HIERARCHY ACCORDING TO ARTICLE 38 OF THE STATUTE OF ICJ. HOWEVER, CERTAIN PRINCIPLES IN
INTERNATIONAL LAW ARE OF UTMOST IMPORTANCE AND SHOULD BE OBSERVED BY ALL STATES. THESE
RULES GAIN THE STATUS OF JUS COGENS, WHICH IS PEREMPTORY NORMS FROM WHICH NO DEROGATION IS
ALLOWED. ARTICLE 53 OF THE VIENNA CONVENTION RECOGNIZES THE PRINCIPLE OF JUS COGENS. IT STATES
THAT A TREATY WHICH DEPARTS FROM THE DOCTRINE OF PEREMPTORY NORMS OF INTERNATIONAL LAW
SHALL BE VOID.

THREE PRINCIPLES THAT MUST OBSERVE THE RULE OF JUS COGENS ARE AS FOLLOWS:

1. THOSE EXIST IN THE COMMON INTEREST OF THE WHOLE INTERNATIONAL COMMUNITY.

2. THOSE CREATED FOR HUMANITARIAN PURPOSES.
3. THOSE INTRODUCED BY THE UN CHARTER AGAINST THE THREAT OF USE OF FORCE IN INTERNATIONAL
RELATIONS.

CONCLUSION

THE SOURCES OF INTERNATIONAL LAW CANNOT BE ISOLATED INTO SEPARATE WATER-TIGHT CONTAINERS.
THEY INTERACT CLOSELY AND INFLUENCE EACH OTHER. A TREATY, WHICH IS A SET OF CODIFIED RULES
NOW IS A PRODUCT OF LONG EVOLUTION THAT MIGHT INVOLVE CUSTOM, DISCUSSION AND DELIBERATIONS
BY THE INTERNATIONAL ORGANIZATIONS. MANY TIMES CUSTOMARY INTERNATIONAL LAWS ARE TURNED
INTO TREATIES THROUGH CODIFICATION. THE COVENANTS ARE THEN INTERPRETED AND IMPLEMENTED BY
THE WORLD COURT AND MUNICIPAL COURTS, WHICH BECOMES ANOTHER SOURCE OF INTERNATIONAL 10 LAW.
VARIOUS NEW SOURCES HAVE ALSO EMERGED FROM THE INTERACTIONS BETWEEN THE EXISTING SOURCES
OF LAW. THUS, THE KEY TO UNDERSTANDING ONE SOURCE IS TO STUDY IT IN RELATION TO OTHER SOURCES.
 THANK YOU

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SOURCES OF INTERNAIONAL LAW BY CHITRA SHEKHAWAT & ROSHAN NAZARETH