Q/- Describe the sources of International Law?
International law is an independent system of law existing outside the legal orders of particular states. It differs from domestic legal systems in numerous aspects.
SOURCES OF INTERNATIONAL LAW:
Sources of international law are those materials out of which the rules and principles regulating the international personalities are developed. Article 38 of the ICJ Statutes recognizes following primary and secondary sources of international law:
3. General principles.
SECONDARY SOURCES OF INTERNATIONAL LAW:
Following are the sources of international law.
Treaties are the first primary source of international law. In essence, treaties are written instruments that contains a variety of terms, conventions, agreements, pacts, general acts, charters, and covenants which the states/parties to the treaty (usually but not always) consents/agree to be bound by the negotiated terms of the treaty. Some agreements may be governed by municipal law (e.g., commercial accords between states and international enterprises), in which case international law is inapplicable. Countries that do not sign and ratify a treaty are not bound by its provisions. Nevertheless, treaty provisions may form the basis of an international custom.
Treaties may be bilateral or multilateral. Treaties with a number of parties are more likely to have international significance, although many of the most important treaties are bilateral. A number of contemporary 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), have more than 150 parties to them, reflecting both their importance and the evolution of the treaty as a method of general legislation in international law.
There is no prescribed form or procedure for making or concluding treaties. They may be drafted between heads of state or between government departments. The most crucial element in the conclusion of a treaty is the signaling of the state’s consent, which may be done by signature, an exchange of instruments, ratification, or accession.
The international customs are the second most important primary sources of International law. The Article 38 (1) (b) of the ICJ’s statute refers to “international custom, as evidence of a general practice accepted as law”. International customs are decentralized nature of the international system which involves two fundamental elements:
· The actual practice of the states
· The acceptance by states of that practice as law.
The actual practice of states covers various elements, including the duration, consistency, repetition, and generality of a particular kind of behavior by states. All such elements are relevant in determining whether a practice may form the basis of a binding international custom.
Although all states may contribute to the development and evolution of customs but they are not all equal in the process. The major states generally possess a greater significance in the establishment of customs.
Once a practice becomes a custom, all states in the international community are bound by it whether or not individual states have expressly consented to it. Exception applies in cases where a state has objected from the start of the custom. Customs can develop from a generalizable treaty provision, and a binding customary rule and a multilateral treaty provision on the same subject matter (e.g., the right to self-defense) may exist at the same time.
The third primary source of international law is the General Principles. They have been identified by the ICJ’s statute as “the general principles of law recognized by civilized nations.” These principles basically provide a mechanism/procedure to address those international issues that are not subject either to treaty provisions or to binding customary rules. These principles may also arise/evolve either from municipal law or through international law. They are in essence procedural or evidential principles that deals with the machinery of the judicial process where the breach of an engagement involves an obligation to make reparation. The importance of general principle is that of equity, which permits international law to have a potential degree of flexibility in its application and enforcement.
SECONDARY SOURCES OF INTERNATIONAL LAW:
Following are the secondary sources of international law;
1. Judicial decisions
2. Writings of the publicists
The Judicial decisions are one of the secondary sources of International law. The judicial decision does not have a binding effect except on the parties in respect of the particular case or situation. The reason for their non-binding effect is that the doctrine of precedent does not exist in international law however; there are still some states in disputes that still refer to the judgments of the ICJ as authoritative decisions. The judicial decisions of the municipal courts of the states are generally not binding and are not regarded as the primary source of international law as they do not create binding obligations on other international states.
WRITINGS OF THE PUBLICISTS:
Writings of the publicists are regarded as the secondary sources of international law. Writings of the publicists are termed as the teachings of the most highly qualified publicists of several/various states/nations that are utilized for the determination of rules of international law. Writers of various nations in the 18th century contributed in determining the concept, scope, content and form of international law. Various judicial bodies of the states in considering their decisions consult and quote the writings and teachings of juristic authorities where need arises with regards to the situation.
The Equity is also a source of international law. Equity plays a major role in the development of international law as the courts while deciding the cases should decide the same on legal considerations but solely on the grounds of fairness and reasonableness with regards to the situation and the case in hand.
This FAQ is prepared By Sadia Saman Advocate