Sources Of International Law

Q. What are principal sources of international law, your

answer should be with reference to article 38 of the
statute of international court of justice. (1998)(2000)
(2007/A)
Q. Explain custom and treaties as material sources of
international law. (2000-5)
Q. Regarding material principal sources of international
law.
(a) Are you familiar with article 38 of the statue of I. C.
J?
(b) What do legal thinkers say about theses sources.
(c) If there is any difference between them does this
difference of any significance. (2001)_(2002)
Q. (a) Can you find public international law in one single
source.
(b) What material source can you identify.
(c) Offer your comments statue of I. C. J? (2002-5)
Q. Explain in detail the main sources of international
law. (2003-5) (2005)
Q. Discuss in detail the material sources of international
law. (2004)
Q. What are the sources of international law. (2006/S)
Introduction:
International law is body of rules which regulates
relations among states. it comprises mainly of the rules
recognized by states in their relation with each other and
mostly arises out of international customs and treaties. at
present article 38 of the statute of international court of
justice is an authoritative text of the source and evidence
of international law.
2. Definitions of international law:
Oppenheim
International law is body of customary and convential
rules, which are considered binding on civilized states in
their relations with each other."
Starke
"It is body of customary and conventional rules which are
considered binding on civilized states in their relation
with each other and includes also functioning of
international institutions and their relations with each
other and states and also individuals in relation with
states and international institutions.
3. Sources of international law:
1.
Although there is no international legislature and court to
which international community must compulsorily
submit still under article 38 of statue of international
court of justice, rules of international law can be
pragmatically found in international conventions,
international customs etc, etc.
4. Meaning of sources:
Starke:
"By sources of international law we mean the actual
materials from which an international lawyer ascertains
the rule applicable to a given situation."
5. Classification of sources:
Sources of international law may be classified into two
categories.
(i) Formal sources.
(ii) Material sources.
I. Formal sources of international law:
A formal source is that source which a rule of law derives
its force and validity. there are no formal sources of
international law and one of the main criticism on
international law is that it does not have an legislature of
its own, thus its laws cannot have any sanction.
II. Material sources of international law:
Material sources of international law are those actual
materials form which an international lawyer determines
the rule applicable to a given situation article 38 of the
stature of international court of justice enlists such
material sources of international law. there are all kinds
of sources in this statute including primary and
secondary. pare second of article 38 of the statute enlists
secondary sources of international law.
6. Article 38 of statute of international court of justice:
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) Judicial decisions and teaching of the most highly
qualified publicists of the various nation as subsidiary
means for the determination of rules of law.
Condition:
The provision shall not prejudice the power of the court
to decide a case exaequo ET bono, if the parties agree
thereto.
7. Main sources of international law:
I. Primary sources:
(i) International customs:
International customs are one of the most important
sources of international law. article 38 of the statute of
international court of justice recognizes international
customs as a source of international law.
(a) Essentials of valid international custom:
The essentials of valid international custom are as under:
(i) Long duration.
(ii) Uniformity and consistency:
Case law.
Asylum case (1950)
"The rule invoked should be in accordance with a
constant and uniform usage practiced by the states in
question."
(iii) Generality practice or observed.
(iv) Opinio juris et necessitates.
(ii) Treaties:
Treaties are most important source of the international
law.
(i) Definition of treaty:
Article 2 of the vienna convention on the law of treaties
1960 defines treaty:
"An agreement whereby two or more states establish or
seek to establish a relationship between them governed
by international law."
(ii) Kinds of treaties:
(a) Lw making treaties
Law provisions of law making treaties are directly a
source of international law. law making treaties perform
the same functions in the international field as legislation
dose in the state field. there are the means through
which international law can be adapted to in accordance
with the changing time and circumstance and the rule of
law among the states can be strengthened.
(b) Treaty contracts:
Treaty contracts are entered into by two or more states.
the provisions of such treaties are binding on the parties
to the treaty. the treaty contracts are indirect source of
the international law.
(iii) General principles of law:
General principles of law recognized by the civilized
states is also an important source of the international
law. general principles of law are those rules which have
been recognized by almost all the states.
Case law:
Chorzom factory case 1927:
"In this case the court of the international justice applied
general principle of Res-Judicata.
General principles recognized by the international court:
General principles recognized by the international court
has recognized following principles in different decision.
(i) Good faith.
(ii)Responsibility.
(iii) Prescription.
(iv) In the absence of any provision to the contrary every
court has right to determine of it own jurisdiction.
(v) A party to a suit cannot himself be an arbitrator or a
judge in his own case.
(vi) Res-judicate
(vii) Estoppels
(viii) Audi alterm paterm.
(iv) Judicial decisions:
Juristic works forms the evidence of international law, yet
it assumes importance when there are no established
customs or treaties.
Lawrence' s views:
"A writer an international law in a sence himself
legislates for he creates the opinion that is really
supreme."
(v) Decisions of determinations of the organs of
international institutions:
Decisions on questions of jurisdiction of an organ of
international institution may have a law making effect.
sometimes organs of the international institutions are
authorized to give binding determinations concerning the
interpretation of their constituent instruments.
(vi) State papers:
State papers other than treaties are also source of
international law. the archives of the foreign affairs
department of every country contain a mass of valuable
experts opinion which are useful for international law.
II. Secondary sources:
Following are the secondary sources of the international
law.
(a) State judicial decisions.
(b) International community.
(c) Equity and natural justice.
(d) Jus congens.
(f) State practices.
(g) Private contracts.
(h) Roman law.
(i) Principles of Islamic law.
8. Subjects of international law:
Following are the subjects of international law.
(i) States.
(ii) Political entities legally proximate to state.
(iii) Condomonia.
(iv) International Territories.
(v) International organizations.
(vi) International institutions.
(vii) International criminal law.
(viii) Treaties concerning international minorities and
individuals.
(ix) Non- state entities.
(x) Insurgents.
9. Conclusion:
To conclude it can be said that the sources are the name
of historic fall put of which rules of conduct comes into
existence. although there is no international legislature
and court to which international community must
compulsorily submit, still under article 38 of the statue of
international court of justice provide sources for
international law.