Updated: Mar 3, 2022
Sources of International Law.
i) Meaning : 'Source', according to Oppenheim, means the ultimate origin from which the law originates. When we see a river and desire to know its source, we must go up the river until we reach a particular point where the water is oozing out naturally from the soil. That is the source of the river. Similarly, in order to find out the source of the principles of International Law we must track back to a particular point. That is the source.
ii) The Statute of the I.C.J. in Art. 38, has enumerated the following sources of International Law on the basic of primacy before the court:
a) International Conventions or treaties.
b) International Customary Law. ' . .
c) General Principles of law recognised by' Civilised Nations.
d) Judicial Precedents.
e) Juristic Writings.
f) Ex aequo et bono. (Equity & good conscience)
These are to be applied in the same order by the I.C.J.
a) International Treaties : There is primacy for this source at the International Court ofJustice.
Treaties are of two kinds :
(i) Law-making and
Eg.: Pact of Paris 1956; Hague conventions of 1899 & 1907, Peace Treaty 1919, Treaty for the Renunciation of War, 1929, Geneva Convention relating to Prisoners of War 1929. Conventions of the Law of the Sea Conference 1958 are examples. Treaty-contracts -are non-law making in nature.
This is the original source of International law. It manifests in
(i) Diplomatic Correspondence of States,
(ii) Practice of International Organisations
(iii) State Court' s decisions,
(iv) State Practice & Administrative actions etc.
Origin : Custom has its-origin in a usage.,If the usage is continuous, uniform and followed for a number of years it becomes a custom. Usage is the twilight zone of custom. But. two conditions must be satisfied :
(i) Corpus test : A material fact of the actual observance of a line of conduct by the States. This mus. be shown as a fact.
(ii) Animus test : There must be an intention to follow the custom. It reaches a stage of approval 'opinio juris sive necessitatis' (Jurists' opinion as of necessity). Then, the principle (usage) becomes an International Custom. This is the process of the consummation of an usage into an International custom. In the Lotus Case, the Court (P.C.I.J.) held that the opinio juris must be drawn from all the circumstances, & not merely from the facts on hand. In the Right of Passage case (Portugal Vs. India), the I.C.J. held that a particular practice between two States only may give rise to binding customary law. It held that Portugal had a right of passage for civilians but not for military officials.
In the Paquete Hebana Case the Court (U.S. Supreme Court) held that looking to all the facts & circumstances, there was uniform practice of giving 'immunity to small fishing vessels from belligerent action in times of war. This was recognised as an International Customary Law. In the Asylum case there was a rebellion in Lima (Capital of Peru), and the rebel- leader Haya de la tarre, sought asylum in the Columbian embassy, which it granted considering him as a political refugee. The Peruvian Govt. contested this before the I.C.J. The Colombian Govt. relied on International custom., but in vain. As the custom of granting diplomatic asylum was not established, the court held that the grant of asylum was without legal authority. The Peruvian Govt. claimed for handing over of the rebel, from Colombian Embassy. The I.C.J. held in Haya de la Tarre's case, that this decision wasthat Colombian Govt. had no right to give asylum. It did not meanthat he should be handed over to Peru ! (He was safely taken to Colombia).
General principles of law recognised by Civilized Nations
This is the third source of International Law according to theStatute of the I.C.J. (Art. 38). If there is no International Treaty or International Custom, the court applies this source. One of the essential duties of the Court is to decide the case and not to plead its inability or helplessness on the ground that the law is silent or obscure. Hence, it may evolve a process to arrive at a general principle by taking into consideration the Municipal laws of the major countries of the World. A principle which is common in these countries may be raised to International level. As Lord Phillimore points out these are principles which are common in all Countries or jurisprudences like the principles of Res Judicata, Subrogation etc. Hence, if the Court finds t hat a rule has been accepted generally as a fundamental rule of justice by most
Nations in their Municipal Law, it may be declared as a rule of International Law.
(i) In Administrative Tribunal Case (I.C.J.) the court held that 'res judicata' was a well-established & generally accepted rule. It applied 'res judicata'. (According to this, a judgment given by a competent court, bars any suit by the parties on the same issue).
(ii) In the Eastern Greenland Case the court applied the doctrine of Estoppel and held that the Norway Govt. had accepted references to Danish Sovereignty over Eastern Greenland, 85 thus had estopped itself from questioning the Sovereignty of Danish Govt.
(iii) In the Temple of Preah Vihear Case the I.C.J. held that Thailand was precluded by her conduct from questioning Cambodia's sovereignty over the Temple.
(iv) In the Mavrommatis Palestine Concessions Case the P.C.I.J. applied the doctrine of Subrogation. Comments : It is stated that the recognition of ' General Principles' as a source of law would sound the deat hknell of positivism.
This statement is overdrawn, Positivits believe in the common consent of the States as the basis of International Law. Naturalists believe in the superiority of natural law only. Hence, these two are opposite schools. The; above comment is a reference to this and believes that the recognition of 'General Principles' based on Natural law ended the positivists theory. But, this is not so.
The I.C.J. applies Treaties & Customs and only in their absence, resorts to the 'General Principles of Law recognised by Civilised Nations/ Hence, priority is given to positive law.