CHAPTER- 2 CLASSIFICATION OF SOURCES OF INTERNATIONAL LAW 2.1. Classification of Sources of International law Source is found in the process by which it becomes identifiable as a rule of conduct with legal force and from which it derives legal validity. The various sources of international law are inferred from Article 38 of ICJ. Article 38 of ICJ states: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply : A. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; B. international custom, as evidence of a general practice accepted as law; C. the general principles of law recognized by civilized nations; D. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Article 38 is the recognized complete statement of sources of law. It does not refer to sources directly. Sources mentioned in clause (a) are not a primary source. It is a source of rules of general application, although treatise may provide evidence of formation of custom. Source in clauses (b) & (c) are formal sources and (d) refers to material sources. However some jurists do regard the last clause as formal source.1 Article 38 lacks the hierarchy of the sources mentioned and is an incomplete list of sources. It is purely descriptive in nature.2 1. Primary & Secondary Sources: Primary sources in relation to international law are the ones which have been present before any codification of the same has taken place. They are laws which exist but are not legally binding. Public international law has three primary sources: international treaties, customs and general principles of law. For example, laws of war were long a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties. Secondary sources are subsidiary means for
See, Brownlie, Ian, Principles of Public International Law, Seventh Edition, Oxford University Press, Pg - 4 See, Sorensen, Max, Manual of Public International Law, Macmillan, London, pg - 122
determination of law. In public international law includes judicial decisions and teachings of highly qualified jurists. They provide evidence of what might be interpreted. 2. Formal, Material & Evidentiary Sources: According to Salmond, “Formal source is that from which a rule of law derives its source and validity of law. Material source applies the substance of rule to which formal source gives the force and nature of law. Brownie defines formal source as “methods and procedures of creating law and material sources are the evidence of the law.” Formal sources are legal procedures and methods for the creation of rules of general application which are legally binding on addressers. Material sources provide evidence of existence of rules when proved have status of legally binding rules of the general application. In municipal law, formal source refers to constitutional machinery of law making and status of rule established by constitutional law. No separate machinery exists for creation of international law. Decisions of ICJ which unanimously support the resolution of the General Assembly of UN concerning matters of law and important multilateral treatise lack the quality to bind states generally. In a sense formal sources do not exist in international law.3 Material sources are the evidence of the existence of consensus among states concerning particular rules and practices. They stand for threshold of consensus. Formal source means legal rule derives its legal validity from it and material sources are the prevalence of substance content of the legal rule. So formal...