SOURCES OF INTERNATIONAL LAW

Formal and Material Sources

The term source refers to methods or procedure by which international law is created. A distinction is made between the formal sources and material sources of law. The distinction between “formal” and “material” sources to which Schwarzenberger refers was explained by Salmond in the following terms:¹

“ A formal source is that from which a rule of law derives its force and validity…The material sources, on the other hand, are those from which is derived the matter, not the validity of the law. The material source supplies the substance of the rule to which the formal source gives the force and nature of law.”

For example, a rule will be legally binding if it meets the requirements of a custom, which is a formal source of international law, and its substance will be indicated by state practice, which is the material source of custom. The term evidence is then used in the sense that diplomatic correspondence, for example, is evidence of state practice.

Article 38 (1) of the Statute of the International Court of Justice is widely recognised as the most authoritative and complete statement as to the sources of international law. It provides that :²

“ the court whose function is to decide in accordance with international law such dispute as are submitted to it, shall apply:

• (a) international      conventions,      whether     general     or    particular, establishing rules expressly recognised by the contesting states;
• (b) international custom, as evidence of a general practice accepted as law:
• (c) the general principles of law recognised by civilised nations;
• (d) subject to the provision 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 the rules of law.”

(a)  International Conventions

In the modern period, international treaties are the most important source of international law. This is because the reason, inter alia that states have found in this source a deliberate method by which to create binding international law. The term Conventions is used in a general and inclusive sense. It would seem to apply to any treaty, convention, protocol or agreement, regardless of its title or form.

• ºA convention may be general, either because of the number of parties to it, or because of the character of its contents; it may be particular because of the limited number of parties to it, or because of the limited character of its subject-matter. Whenever, an international tribunal decides an international dispute then its first endeavour is to find out whether there is an international treaty on the point. In case there is an international treaty, the decision of the court is based upon the provisions of that treaty.

º International treaties may be of the two types:

º (A) Law making treaties and Treaty Contracts:

Law making treaties may again be divided into following two types:-

• (a) Treaties enunciating rules of universal international law- United Nations Charter is the best example of such type of treaty.
• (b) International treaties which lay down general principles- These treaties are entered into by a large number of countries. 1958 Geneva Conventions on the law of the Sea and Vienna Convention on the law of the treaties, 1969 are good examples of such types of treaties.

(B) Treaty Contracts- As compared to law-making treaties, treaty contracts are entered into by two or more States.

2.  INTERNATIONAL CUSTOM:

International custom have been regarded as one of the prominent sources of international law for a long time. It is the “oldest and the original source’ of international as well as law in general. Customary rules of international law are the rules which have been developed in a long process of historical development.

Article 38(b) of the Statute of the International Court of Justice recognises ‘ International Custom, as evidence of general practice accepted as law’ as one of the sources of international law. In order to understand the meaning of ‘custom’, it is necessary to know the meaning of the word ‘usage’. The words ‘custom’ and ‘usage’ are often used as synonymous. In fact, there is difference between the usage and custom, and they are not synonymous. Usage is in fact the early stage of custom. By usage we mean those habits which are often repeated by the States. As pointed out by Starke, where a custom begins, usage ends. Usage is an international habit which has yet not received the force of law.

In the words of Starke, “Usage represents the twilight stage of custom, custom begins where usage ends.”

• When a usage is combined with opinio juris sine necessitates, a rule of customary law exists, and it is probably justifiable to say that a usage reflects a customary rule if it is connected with a practically universal opinion juris.
  • What is opinio juris? Opinio juris is  a  shortened  form  of  the  Latin phrase opinio juris sive necessitatis, which means “an opinion of law or necessity.In customary international law, opinio juris is the second element necessary to establish a legally binding custom. Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question. The International Court of Justice reflects this standard in ICJ Statute, Article 38(1) (b) by reflecting that the custom to be applied must be “accepted as law”.As pointed out by the ICJ in North Sea Continental Shelf cases (ICJ Repo.1969), for a state practice to constitute opinio juris not only must the acts concerned amount to a settled practice, but they must also be such, or be carried in such a way, as to be the evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”
  • Generation by treaty of customary rules of international

law- A provision of a treaty may also generate a rule of customary International law. In North Sea Continental Shelf case, the ICJ observed that provisions in treaties can generate customary law and may be, in the words of the Court; of a “norm creating character”

Opinio juris : Once one has established the existence of a specified usage, it becomes necessary to consider how the state view its own behaviour. Is it to be regarded as a moral or political or legal act or statement? The opinio juris, or belief that a state activity is legally obligatory, is the factor which turns the usage into a custom and renders it part of the rules of international law. To put it slightly differently, states will behave in a certain way because they are convinced it is binding upon them to do so.

Case Law: Lotus case (France v Turkey) PCIJ (1927)

The Permanent Court of International Justice expressed this point of view when it dealt with the Lotus case. The issue at hand concerned a collision on the high seas (where international law applies) between the Lotus , a French ship, and the Boz-Kourt, a Turkish ship. Several people aboard the latter ship were drowned and Turkey alleged negligence by the French officer of the watch. When the Lotus reached Istanbul , the French officer was arrested on a charge of manslaughter and the case turned on whether Turkey had jurisdiction to try him. Among the various arguments adduced, the French maintained that there existed a rule of customary law to the effect that the flag state of the accused (France) had exclusive jurisdiction in such cases and that accordingly the national state of the victim (Turkey) was barred from trying him. To justify this France, referred to the absence of previous criminal prosecutions by such states in similar situations and from this deduced tacit consent in the practice which therefore became a legal custom.

The Court rejected this and declared that even if such a practice of abstention from instituting criminal proceedings could be proved in fact, it would not amount to a custom. It held that ‘only if such abstention were based on their (the states) being conscious of a duty to abstain would it be possible to speak of an international custom. Thus the essential ingredient of obligation was lacking and the practice remained a practice, nothing more.

Case Law:

Right of passage over Indian territory case (Portugal v India)

In this case the International Court of Justice pointed out that when in regard to any matter or practice, two States follow it repeatedly for a long time, it becomes a binding customary rule.⁷

2.  General Principles of Law recognised by civilised states

Para(1) (C) of Article 38 of the Statute of International Court of Justice lists General Principles of Law Recognised by Civilised States as the third source of International law.

• By general principles of law recognised by civilised States we mean those principles which have been recognised by almost all the States.
  • By general principles of law we mean ‘those rules or standards which we find repeated in much the same form in the developed systems of law, either because they have a common origin, as in Roman law, or because they express a necessary response to certain basic needs of human association. Examples are: the rule of pacta sunt servanda,(agreements must be kept); that contracts must be kept; the principle that reparation must be made for damage causes by fault; the right of self defence for the individual against attack on his person or family and the community against clear and present danger; and the principle that no man may be a judge in his own cause, and that he who has to judge must hear both the sides.”
• • Res judicata, estoppel, etc are examples of the general principles of law recognised by civilised states. These principles are such as have received recognition by almost all the States.
• They have therefore, been included as the general principles of international law. General principles of law recognised by civilised states include procedural as well as substantive principles provided that they have received general recognition of civilised States.
• Following are some of the important cases relating to the general principles of law recognised by civilised states:-
  
  (a) R.v.Keyn.-In this case the Court ruled that international law
• is based on justice, equality and conscience which has been accepted by long practice of States.
• (b) United States v. Schooner.- In this case Justice Storey of United States of America ruled that International law should be based on the general principles of law recognised by civilised States. He was giving decision relating to abolition of system of slavery.
• (c) In the case of diversion of water from Muese.-The Permanent Court of International Justice applied the principles of res judiciata and also held that one who violates a rule is liable to make reparation.
• (d) Chorzow Factory (Indemnity) Case.– In this case, the Permanent Court of International Justice applied the principles of res judicata and also held that one who violates a rule is liable to make reparation.
• (e) Mavrommatis Palestine Concessions Case. In this case the court applied the general principle of subrogation.
• (f) Case concerning the temple of Preah Vihear.– In this case, the ICJ recognised and applied the principle of estoppel.
• (g) Barcelona Traction case, preliminary Obligation.-In this case International Court of Justice applied the principle of estoppel.