Sources of International law
IV Year, B.A., LL.B.
School Of Law, Christ University
Sources of international law are the material and procedure out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories. During the 19th century, it was recognised by legal positivists that a sovereign could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, and preserved in Article 38(1) of the 1946 Statute of the International Court of Justice
The ICJ has jurisdiction only over states that have consented to it. It follows that the court cannot hear a dispute between two or more state parties when one of the parties has not accepted its jurisdiction. This can happen even where the non-consenting party adheres to the court's statute, for mere adherence to the statute does not imply consent to its tribunals. In addition, the court does not have jurisdiction over disputes between individuals or entities that are not states (I.C.J. Stat. art. 34(1)). It also lacks jurisdiction over matters that are governed by domestic law instead of international law (art. 38(1)).
The generally recognized authoritative statement on the sources of international law is the Statute of the International Court of Justice (ICJ), Article 38(1), which specifies that the Court, in deciding disputes, shall apply:
• International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
• International custom, as evidence of a general practice accepted as law;
• The general principles of law recognized by civilized nations;
• Subject to the provisions of Article 59, the Court is entitled to refer to, 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.
The treaties, custom, and principles of law--are sometimes referred to by lawyers and librarians with a common law background as "primary sources" of international law.
When the question of preference comes between the sources of international law then the rules established by treaty will take preference if such an instrument exists. It is also argued however that international treaties and international custom are sources of international law of equal validity; this is that new custom may supersede older treaties and new treaties may override older custom.
The judicial decisions and the teachings of publicists are sometimes referred to as "secondary sources" or auxiliary sources of international. Whereas, it is still not clear whether the general principles of law recognized by 'civilized nations' should be recognized as a principal or auxiliary source of international law.
Each of the Sources of international law will be discussed as under:
Treaties are known by a variety of terms, conventions, agreements, pacts, general acts, charters, and covenants, all of which signify written instruments in which the participants (usually but not always states) agree to be bound by the negotiated terms. Some agreements are governed by municipal law (e.g., commercial accords between states and international enterprises), in which case international law is inapplicable. Informal, nonbinding political statements or declarations are excluded from the category of treaties.
Here the reference is made to bilateral and multilateral treaties. Treaties with a number of parties are more likely to have international significance, though many of the most important treaties (e.g., those emanating from Strategic Arms Limitation Talks)...
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