sources of international law

1. A. Classification of Sources of International Law
a. Primary & Secondary Sources:
b. Formal, Material & Evidentiary Sources:
c. Soft Law and Hard Law as Source :

2. International Conventions or Treaties are considered
the most important source of law, primarily because,
it reflects the understanding of states i.e. they are the
only way states can consciously create law.
Art.2 of Vienna Convention on Law of Treaties 1969 defined
“A Treaty is an agreement where by two or more states
establish or seek to establish a relationship between them
governed by International Law.
Distinction between convention and Treaty

3. Kinds of Treaty
1. Law-making Treaties –
a. Treaties enunciating rules of universal
international law
b. International treaties that lay down general
principles
1. Treaty Contracts:
2. Judicial Application of International Treaties
Chorzow Factory Case of 1928
Hostage Case1980
Nicaragua US Case1986

4. A. The Material Fact/ State Practice
Customary rules crystallize from usages or practices of States that evolve
usually from three sets of circumstances.
1. Diplomatic Relations Between States
2. Practice Of International Organs
3. State Laws, Decisions Of State Courts, And State’s Parliamentary Or
Administrative Practices.
There are certain points that ought to be considered in order to
ascertain State Practice.
1. Duration of Practice
2. Uniformity and Consistency of Practice.
3. Generality of Practice
B. The Psychological Element/ OpinioJuris
C. Cases pertaining to Customary International Law
1.

5. 1. S. S. Lotus Case:
2. Asylum Case, [ Columbia v Peru(1950) ICJ Rep.226 ]
3. North Sea Continental Shelf Cases (1969)

6. Article 38(1)(c) of ICJ statute speaks of “general principles
of law recognized by the civilized states” as the third source
of international law.
Following are the few principles of law that have been
adopted by the ICJ in its working:
1. Doctrine of unjust enrichment
2. Principle of pactasuntservanda
3. Principle of estoppels
4. Principle of good faith
5. Principle of Res-Judicata

7. Juristic works as sources of international law
1. Anglo-Norwegian Fisheries case: One of the most outstanding
instances of this occurred in the Anglo-Norwegian Fisheries case, with
its statement of the criteria for the recognition of baselines from which
to measure the territorial sea, which was later enshrined in the 1958
Geneva Convention on the Territorial Sea and Contiguous Zone.
2. Reparation case, which recognized the legal personality of
international institutions in certain cases.
3. Genocide case which dealt with reservations to treaties. Reservation in
the context of a unilateral statement, however phrased or named, made
by a State, when signing, ratifying, accepting, approving or acceding to
a treaty, whereby it purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to that State

8. 4. Lotus case, which was criticized and later abandoned in the
Geneva Conventions on the Law of the Sea. But this is
comparatively unusual and the practice of the Court is to
examine its own relevant case-law with considerable attention
and to depart from it rarely.
5. Nottebohmcase, which considered the role and
characteristics of nationality and the range of cases concerning
maritime delimitation.

9. 1. In a sense the judicial decisions do not make the law but
they generally state the law.
2. Article 59: The decision of the Court has no binding force
except between the parties and in respect of that particular
case; this implies that the court decisions are not full-
fledged source of international law but an indirect source of
law.
3. There are some decisions which with passage of time have
acquired an authority and affect the shaping of law.
Likewise in the ‘Reparation for Injuries Suffered in the
Service of the United Nations case,’ the court created legal
personality for international organizations to sue and to be
sued under the international law. Likewise Anglo-
Norwegian Fisheries case; (1950) ICJ Rep 116,’ devised a
new rule of straight baseline method for the delimitation of
maritime boundaries in those states where unusual
economic and geographical factors are present.

10. 1. Arbitration Tribunal:
2. International Military Tribunal:
3. International Criminal Court:
4. Municipal Courts:

11. 1. Primary function is not to provide the law , Primary rule is that
the resolution is not binding
2. But there has been a number of General Assembly Resolutions
passed unanimously which have been considered binding on the
consenting states like UDHR.
3. It is argued by some jurists that most General Assembly
resolutions are non-binding. Articles 10 and 14 of the UN
Charter refer to General Assembly as "recommendations.
4. As it was done in East Timor case where the ICJ opined that
“Without prejudice to the question whether the resolutions under
discussion could be binding in nature, the Court considers as a
result that they cannot be regarded as "givens” which constitute a
sufficient basis for determining the dispute between the
Parties”.. However, some General Assembly Resolutions dealing
with matters internal to the United Nations, such as budgetary
decisions or instructions to lower-ranking organs, are clearly
binding on their addressees.

12. The concept of Jus Cogens was introduced in Article 53 of the
Vienna Convention of Law of Treaties, 1969 which states that jus
cogens is a peremptory i.e (not open to appeal or challenge; final.)
norm of general international law, i.e. it is a norm accepted and
recognized by the international community of States as a whole.
Hence, a treaty is void, if at the time of its conclusion, it conflicts
with a norm of such a nature. Article 53 of Vienna Convention on
Law of Treaties, 1969:
1. prohibitions on waging aggressive war,
2. crimes against humanity,
3. war crimes, maritime piracy, genocide etc
The ICJ laid down the concept of ergaomnes obligation, in the
Barcelona Traction case. It explained that, ergaomnes is an
obligation a State owes to the international community as a whole.
This obligation, gives locus standi for any State to invoke the
responsibility of a State, even if it is not directly injured by the
wrongful conduc Belgium v. Spain (1970) ICJ