Sources of International Law

The Statute of the ICJ, Art. 38 identifies five sources:-

(a) Treaties between States;
(b) Customary international law derived from the practice of States;
(c) General principles of law recognized by civilised nations; and, as subsidiary means for the determination of
rules of international law:
(d) Judicial decisions and the writings of “the most highly qualified publicists”.

1. Customs
Customary law is not a written source. A rule of customary law, e.g., requiring States to grant immunity to a
visiting Head of State, is said to have two elements. First, there must be widespread and consistent State
practice – ie States must, in general, have a practice of according immunity to a visiting Head of State.
Secondly, there has to be what is called “opinio juris”, usually translated as “a belief in legal obligation; ie
States must accord immunity because they believe they have a legal duty to do so. As the ICJ has put it:-

‘Not only must the acts concerned be a settled practice, but they must also be such, or be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring
it. … The States concerned must feel that they are conforming to what amounts to a legal obligation.’ (North
Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44)

A new rule of customary international law cannot be created unless both of these elements are present.
Practice alone is not enough – see, e.g., the Case of the SS Lotus (1927). Nor can a rule be created by opinio
juris without actual practice – see, e.g., the Advisory Opinion on Nuclear Weapons (1996).

But these elements require closer examination. So far as practice is concerned, this includes not just the
practice of the government of a State but also of its courts and parliament. It includes what States say as well
as what they do. Also practice needs to be carefully examined for what it actually says about law. The fact that
some (perhaps many) States practise torture does not mean that there is not a sufficient practice outlawing it.
To quote from the ICJ’s decision in the Nicaragua case:

‘In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States
should in general be consistent with such a rule; and that instances of State conduct inconsistent with a given
rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new
rule.’ (ICJ in Nicaragua ICJ Reps, 1986, p. 3 at 98.)

Regarding opinio juris, the normal definition of a belief in obligation (see, e.g., the North Sea Continental Shelf
cases (1969) above) is not entirely satisfactory.

First, it ignores the fact that many rules are permissive (eg regarding sovereignty over the continental shelf),
for which the real opinio juris is a belief not in obligation but in right. Secondly, and more fundamentally, there
is something artificial in talking of the beliefs of a State. It might be better to consider opinio juris as the
assertion of a legal right or the acknowledgment of a legal obligation.

Once there is sufficient practice together with opinio juris, a new rule of custom will emerge. Subject only to
what is known as the “persistent objector” principle the new rule binds all States. The persistent objector
principle allows a State which has persistently rejected a new rule even before it emerged as such to avoid its
application.

2. Treaties
Treaties (sometimes called agreements, conventions, exchanges of notes or protocols) between States – or
sometimes between States and international organizations – are the other main source of law.

Strictly speaking a treaty is not a source of law so much as a source of obligation under law. Treaties are
binding only on States which become parties to them and the choice of whether or not to become party to a
treaty is entirely one for the State – there is no requirement to sign up to a treaty. Why is a treaty binding on
those States which have become parties to it ? The answer is that there is a rule of customary international law
– pacta sunt servanda – which requires all States to honour their treaties. That is why treaties are more
accurately described as sources of obligation under law.
But many treaties are also important as authoritative statements of customary law. A treaty which is freely
negotiated between a large number of States is often regarded as writing down what were previously
unwritten rules of customary law. That is obviously the case where a treaty provision is intended to be
codificatory of the existing law. A good example is the Vienna Convention on the Law of Treaties, 1969. Less
than half the States in the world are parties to it but every court which has considered the matter has treated
its main provisions as codifying customary law and has therefore treated them as applying to all States
whether they are parties to the Convention or not.

n theory, where a treaty provision codifies a rule of customary law the source of law is the original practice and
opinio juris – the treaty provision is merely evidence. But that overlooks the fact that writing down a rule which
was previously unwritten changes that rule. From that time on, it is the written provision to which everyone will
look and debates about the extent of the rule will largely revolve around the interpretation of the text rather
than an analysis of the underlying practice.

Moreover, even where a treaty provision is not intended to be codificatory but rather is an innovation
designed to change the rule, it can become part of customary law if it is accepted in practice. See, e.g., the
North Sea Continental Shelf cases (1969):

‘Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a
new rule of customary international law on the basis of what was originally a purely conventional rule, an
indispensable requirement would be that within the period in question, short though it might be, State
practice, including that of States whose interests are specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked; – and should moreover have occurred in such a way as
to show a general recognition that a rule of law or legal obligation is involved.’ (ICJ Reps, 1969, p. 43)

In reality the fact of a large number of States agreeing upon a treaty provision is itself an important piece of
State practice. If those and other States subsequently apply the treaty provision – especially where they are not
parties to the treaty – then it can quickly become part of customary international law.

This consideration has led some writers to distinguish between “traites contrats” (contractual treaties) which
are only agreements between the parties and traites lois (law-making treaties). In my view this confuses rather
than assists. All treaties are contractual as between their parties. But some also have an effect on the general
law.

In practice, it has been through the adoption of numerous treaties on different areas of international law (war,
terrorism, diplomacy, treaty-making) that international law has undergone its most important changes in the
years since 1945.

3. General principles
While treaties and custom are the most important sources of international law, the others mentioned in Article
38 of the ICJ Statute of the ICJ should not be ignored. General principles of law recognized by civilised nations
– the third source – are seldom mentioned in judgments. They are most often employed where the ICJ or
another international tribunal wants to adopt a concept such as the legal personality of corporations (eg in the
Barcelona Traction Co. case (1970)) which is widely accepted in national legal systems. But international law
seldom adopts in its entirety a legal concept from a particular national legal system; instead the search is for a
principle which in one form or another is recognized in a wide range of national legal systems.

4. Judicial Decisions
Article 38(1)(d) refers to judicial decisions as a subsidiary means for the determination of rules of law. In
contrast to the position in common law countries, there is no doctrine of binding precedent in international
law. Indeed, the Statute of the ICJ expressly provides that a decision of the Court is not binding on anyone
except the partiers to the case in which that decision is given and even then only in respect of that particular
case (Article 59). Nevertheless, the ICJ refers frequently to its own past decisions and most international
tribunals make use of past cases as a guide to the content of international law, so it would be a mistake to
assume that “subsidiary” indicated a lack of importance.

Article 38(1)(d) does not distinguish between decisions of international and national courts. The former are
generally considered the more authoritative evidence of international law on most topics (though not those
which are more commonly handled by national courts, such as the law on sovereign immunity). But decisions
of a State’s courts are a part of the practice of that State and can therefore contribute directly to the formation
of customary international law.

5. Writings
The writings of international lawyers may also be a persuasive guide to the content of international law but
they are not themselves creative of law and there is a danger in taking an isolated passage from a book or
article and assuming without more that it accurately reflects the content of international law.

6. Other sources
he list of sources in Article 38 of the Statute is frequently criticised for being incomplete. In particular, it makes
no mention of the acts of the different organs of the United Nations. Today there can be no doubting the
importance of those acts in shaping international law, although they perhaps fit within the system of Article 38
better than is sometimes imagined.

The United Nations General Assembly has no power to legislate for the international community; its
resolutions are not legally binding. However, many of those resolutions have an important effect on the law-
making process. Some resolutions are part of the treaty- making process, attaching a treaty text negotiated in
the framework of the United Nations and recommended to the Member States by the Assembly (this was the
case with the Convention against Torture). While it is the treaty which creates the legal obligation – and then
only for the States which choose to become party to it – the importance of the United Nations in the process
of creating that treaty should not be underestimated.

Nature and Development of International Law

the basis of international law was based totally on municipal law and for the same reason was considered to be law of
nature. The controversy on its nature emerged with the advent of 19th century i.e., due to positivists, that whether
international law is true law or not and the answer to this question varies with the definition of law as given by various
jurists. Thus there are two distinct thoughts on this view. The positivists are of the view that international law is no law
and consists merely of rules of positive morality and stated that there cannot be no international law since there is no
international legislature to make it, no international executive to enforce it, and no effective international judiciary to
develop it or to resolve disputes about it. According to them as there is no superior authority to enforce the law
therefore the states do not have much respect for it and thus has lack of intent to obey it and they obey it only if
there is some personal interest in it.

But the modern jurists are of a different view and state that international law is not a set of rules of positive morality,
but it is as much a legal system as any other municipal legal system. The international law is very much considered
law by the international communities and those who conduct international business in various capacities. Even the
State which wishes to escape from an inconvenient rule of international law would not deny the existence of
international law as such, but would justify its action either by challenging the existence of such a rule or by invoking
another rule applicable to its case or claiming that the rule should be modified to meet a new situation.

The above mentioned schools of law have different views regarding the nature of international law due to difference
of view in the definition of the word “law”.

DEVELOPMENT OF INTERNATIONAL LAW

The position occupied by International Law and International Organizations has varied from time to time. Earlier there
was no universal law binding on all the nation states but now they have to abide by laws. The law was once restricted
to one’s region, slowly and steadily, it included in its arena such laws as would help in maintaining peace in the
neighbouring land. The enactment of International Law was always essential and will be essential in the time to come
provided amendments take place according to the world scenario. As earlier none would have imagined that
restricting the use of nuclear plants would be important but now, the scenario is such that if it is not forbidden then
nation states would not think twice to have a nuclear war. International Law has always acted in the promotion of
peace and security, as with the establishment of International Court of Justice, various nations’ disputes have been
resolved, if there would have been no International Law then the scenario would be such that the nation states would
be waging war even for trivial disputes. International Law has always been and will be one of the most essential laws,
without which the world could even come to an end.
International Court of Justice

Introduction

International Court of Justice (ICJ) also known as World Court is the principal judicial organ of United
Nation (UN). It is among one of the Six Principal Organs of United Nation. ICJ was established in year
1945 and began its operation in April, 1946. The court has its seat in The Hague, Netherlands.
International Court of Justice is the successor of Permanent Court of International Justice (PCIJ). Principal
Court of Justice dissolved in 1946 which was established by the league of nation in 1920. When second
war came to end, both the league and PCIJ were succeeded by the United Nation and ICJ, respectively.

International Court of Justice is the only principal organ among the six principal organs of United
Nations which is not located in New York (United States of America). International Courts of Justice
operates on the basis of International Laws.

The primary function of the court is to pass judgments upon the disputes between States. If the state
does not consent to an action, it can not be sued before the International Court of Justice.

Power and function

The International Court of Justice is composed of 15 judges, elected for the term of 9 years by United
Nations General Assembly and the Security Council. The process is assisted by a registry and its
administrative organ. The official Language of ICJ are English and French.

It has following two function:

1. ICJ settles the legal disputes submitted by States, in accordance with International Law.

2. ICJ advises on the legal questions referred to it by authorized UN organs and other specialized
agencies.

Jurisdiction

All the member of United Nations are automatically parties to the statute of International Court of
Justice. This rule is discussed in Article 93 of the United Nation Charter. Countries which are not a
member of United Nation can also become parties to the statute of International Court of Justice under
the procedure mentioned on Article 93 (2) of United Nation Charter.[1]

The history has the living example for the same: Switzerland was not the member of United Nation so it
used the procedure under Article 93 (2) of United Nation Charter to become a party to the statute of
International Court of Justice. When a state becomes the party to the Court’s Statute, the state gets
entitled to participate in cases before the court, but, being a party to the statute of the court does not
automatically give the court jurisdiction over disputes involving those parties.

There are three types of ICJ cases in which the issue of Jurisdiction is considered:

1. Contentious Issues-

States are the only party in Contentious cases. No Corporation, Individuals or Non-Governmental
Organizations (NGOs) etc can be included as a party in contentious cases. International Court of Justice
gives a binding ruling between the concerned states which agree to the ruling of the court.

2. Incidental Jurisdiction-
The court is entitled to deliver interim measure for protection of the rights of parties concerned in a
dispute until the final judgment is held. Incidental Jurisdiction of the court is discussed on article 14 of
the statute of the court.

3. Advisory Opinions-

Advisory Opinions is that function of the court which is open only to some particular United Nation
bodies and agencies. The United Nation Charter grants a power to General Assembly or the Security
Council in which it can request the court to issue an advisory opinion on any legal question, but the
other organ of United Nation do not have this power and they may not request for an advisory opinion.
According to the principle, the advisory opinions of the courts are only for consultative purpose but
actually they are highly influential and widely respected.

LAW OF THE SEA

The Law of Sea is a collection of international treaties and agreements that regulates all marine and
maritime activities. It encourages a peaceful relationship between the sea and the coastal states. As one
of the main topics of international law, it conducts all maritime economic activities, maintains navigation
rules and protects the sea from ruling powers. It regulates the geographical activities of various coastal
states and plays a role in conserving the aquatic environment. The Law of the Sea is associated with the
convention on the Law of Sea, which is an UN-based international treaty. It was signed in 1982 by 117
states, and was adopted in 1994.

The law of the sea is constantly changing.

Earlier, there was a conflict between “the free sea” and “the open sea.” Due to the advancement in
technology, during the 20th century, many states made jurisdictional claims to use, conserve and protect
the sea. In 1982, the United Nations adopted the law, consisting of 320 articles, nine annexes, and four
resolutions.

 It expanded the scope of the matters regarding the sea

 It extended the territorial sea to 12 nautical miles
 It provides jurisdictional settlement of the states when in need
 It explains the formation of the international tribunal for the law of the sea to carry out its disputes.

Different Maritime Zones

The Law of Sea in international law is the only international convention that stipulates a framework of
states in the maritime zones. According to the sea law, marine areas are divided into five zones.

The zones are internal waters, contiguous zone, territorial sea, and the exclusive economic zone.

Baseline
It is the lowest waterline, mostly recognised by the coastal states. It is the line alongside the coastal
region along with the seaward limits.

Internal Waters
Internal waters are the ones present on the landward side of the baseline. It is from here one can
measure the territorial sea’s breadth. Every coastal area has complete authority over the internal waters,
just like the land territories. For example, ports, bays, rivers, inlets, and lakes are interconnected with any
sea. A coastal state has all the rights to prevent the Privately Contracted Armed Security Personnel entry
to the port if they carry any sort of weapons forbidden in the national legislation.

Territorial Sea
It is the area that extends to the seaward near about twelve nautical miles from the baselines. The
coastal regions have jurisdiction and authority on territorial seas. This sovereignty is not just through the
sea’s surface but to any subsoil, seabed, and airspace. The rights of the coastal states are restricted to
any form of innocent passage from the territorial region of the sea.

Contiguous Zone
This area extends nearly 24 nautical miles from the baseline of the sea. It can be called an intermediate
zone located between high seas and territorial. The coastal states have all the rights to prevent and
punish immigration, infringement, and sanitary and custom laws bordering the region and the territorial
sea. It gives sovereignty to a region only on the sea surface & floor. This zone does not have air rights or
space rights.

Exclusive Economic Zone (EEZ)

It extends 200 nautical miles to the sea from the baseline. With EEZ, any coastal region has the right to
explore, conserve and manage natural sources in the seabed and subsoil, no matter if the resources are
living or nonliving. They have exclusive rights to bear every activity like energy production from the sea,
water current, and winds. EEZ exclusively allows the rights mentioned above. This zone does not provide
the coastal state with the liberty to prohibit navigation (only under various exceptional cases).

High Seas
These are the ocean’s surface and water column that does not come under the exclusive economic zone,
territorial sea, or the internal water. It is called the “Common Heritage Of All Mankind” and is beyond the
nation’s jurisdiction. Coastal countries can conduct various activities in the High Seas only if they are
peaceful activities like undersea exploration or marine studies.