Introduction
First of all, I would likely give some introduction to international law before the sources of international law. International law is that branch of law which regulates the relations among the various nations.
International law is the set of rules, principles and Custom generally regarded as binding in relations between states, international organization and between individuals of diverse nationalities. It is also known as the law of nations. The term International law was first used by the English philosopher Jeremy Bentham in 1780 in his treatise Introduction to the Principles of morals and Legislation.
Sources basically refers to the place of origin, those things which directly and indirectly play roles in the formation and development of laws are called sources of laws. Sources of International law are the materials and processes out of which the rules and principles regulating international personalities are developed.
The generally recognized authoritative statement on the sources of international law is the statute of the Sources of International Court of Justice (ICJ), Article 38(1) Which specifies that the Court, in deciding disputes, Shall apply:
a) International Conventions/treaties
b) International Customs
c) The general principle of law recognized by Civilized nations.
d) Judicial decisions and the teachings of the most highly qualified publicists.
e) Reason and Equity.
Sources of international law are given below :
(A) Primary source
- Treaties and Convention
- Customs
- General principles of law
(B) Secondary source
- Judicial decisions
- Teaching of publicists and others
1. Treaties and Convention
A treaty is a formal, legally binding written Contract between actors in International law. It is usually made between sovereign states but can include international organizations, individuals, business entities, and other legal persons.
A treaty may go by many different names, Such as “convention”, “Covenant” and protocol”. The Obligations Contained in a treaty are based on Consent.
Treaties play a vital role in International law. According to Article 38 (1)(a) of the Statutes of ICJ, noted that, •
“International Conventions, whether general or particular establishing rules expressly recognized by the contesting states.”
According to Article 2 of the Vienna Convention the law of Treaty 1969, “treaty defined as”:
“An International agreement Concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever it’s particular designation”
Three classes of treaties According to their relevancy as Sources of Laws are as follows :
- The general multilateral treaty : This type of treaty equally opportunities all the nations of world. This type of treaty creates the basis of a general rule of law. It is also known as law-making treaty.
- Collaborative treaty : where states regulate or manage a particular area of activity.
- Bilateral Treaties : where two states create their rights and responsibilities by agreement.
Treaties are based upon the following principles as laid down in article 26 Vienna Convention “ Pacta Stunt Servanda” which means: Treaties are binding upon the parties to them and must be performed in good faith.
In the context of Nepal treaty plays a vital role as a source of law :
According to the Treaty Act, 2047 articles 9(1),9(2) :
It accepted treaty and convention as important sources of law. which reads in case of conflict between domestic law and international convention and treaty, treaty prevails.
2. Custom
Custom is a habitual course of conduct observed uniformly and voluntarily by the people.
It is regarded as an important source of law because of the following reasons:
- It is the oldest form of law
- It used as law in the absence of written law
- Accepted by the people
- Established by society and common practice.
According to article 38,1(b) of the statute of the international court of the Justice,
“International customs are recognized as an important source of law. Where noted that “international customs, as evidence of a general practice accepted as law.”
A rule of customary law is said to have two elements:
- a. There must be wide spread and consistent state practice.
- b. There has to be “opinion juris”, a Latin term that means a legal obligation to believe in the existence of such law.
The ICJ in the Asylum case: Columbia vs Peru (1950), described
Custom as a “Constant and uniform Usage accepted as law.”
Custom can be divided into two types :
- General custom : general custom means those customary rules where whole international communities are binding.
- Local custom : it refers local or particular customary rules developed between two states, which binding only on those two states.
In the context of law , custom also plays a vital role in the source of law.
For example :
According to country penal code ,2074 section 172 : Marrying within close blood relations is prohibited by law but there has been made exception to the cases where it is in practice since long time.
3. General principle of law
General principle of Law are those principle which have got recognition from all the State and by Systems of the world.
International Court of Justice Can resolve the dispute adopting those general principle of law. Article 38,1(c) of the statutes of the ICJ refers that “General principles are an important of law recognized by Civilized nations” are an important Source of International law.
The main objective of inserting the third source in Article 38 is to fill in gaps in treaty and Customary law and to meet the possibility of non-liquet. (Non-liquet means the possibility that a court or tribunal could not decide a case because of a ‘gap’ in law.)
The general principles of law is based on Justice and equity.
(4) judicial decision and ICJ’s Practies.
It is a subsidiary (Secondary) source of International Law but not an actual source.
Article 38,1(d) of the statute of the International Court of Justice states that “The subject of the provisions of Article 59, Judicial decisions as Subsidiary means of law for the determination of rules of law.
According to Article 59 of ICJ Statutes, “The decision of the Court has no binding force except as between the parties and in respect of the particular Case.
– Judicial decisions do not strictly play the role of precedent, as Clear from above mentioned article. The Court’s decisions are supposed to be declaratory of the law laid down by the states in Conventions & Customary rules.
Case laws: In the upper Silesia Case (1926) PCIJ noted that “The object of article 59 is simply to prevent legal principles accepted by the Court in a particular case from being binding on other states or in disputes.”
(5). Teaching and writing of the publicists
The statute of ICJ Article 38, 1(d) mentioned that “The teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination rule of law.
Historically the contribution and influence of academic writers on the development of international law has been marked. Writers from the 16th and 17th Centuries such as Gentili, Grotius, and Pufendorf are some of the supreme authorities who contributed a lot to determine the scope, form, and Content of international law.
There are some writers and their books that Contributed formative impact upon the evolution of particular laws.
