Sources of International law
Starke defined the sources of international law as the actual materials from which an international lawyer determines the rule applicable to a given situation. Once the evidence of the existence of rules is proved then it becomes legally binding by the parties concerned.
1. International Conventions/Treaties
Treaties are the most important source of International law as they require the express consent of the parties concerned. Article 38(1) of the ICJ gives the highest importance to the treaty while deciding a dispute.
Meaning of Treaty
Treaties are the express consent between parties on a specific topic. They are as substitute legislation by states. The states which are participating in a treaty bind themselves legally to act in a particular way or to set up particular relations between themselves.
According to Article 2 of the Vienna Convention, 1969, “A treaty is an agreement whereby two or more states established or seek to establish a relationship between them governed by international law”. International organizations can also conclude treaties (Article 3).
Kinds of Treaties
Largely speaking, there are 2 types of Treaties:
1. Law-making Treaties: They create Universal norms as they have a large number of members. They do the same work in the international field as legislation does in the State field. There are 2 types of lawmaking treaties too: Treaty on Universal rules like the United Nations Charter and Treaty on General rules like the Vienna Convention on Law of Treaties, 1969.
2. Treaty Contracts: They create special obligations between the parties only. They are not a source of international customary law.
Pacta Sunt Servanda (Basis of Validity of Treaties)
According to this principle, Treaties are binding upon the parties and they must be performed in good faith. It is given under Article 26 of the Vienna Convention on the Law of the treaties. This is a positive norm of international law. This is a rule for society with deep moral influence. If a state is formed out of a revolution then that state won’t be bided by this principle.
Vienna Convention on the Law of Treaties, 1969
On 23rd May 1969, the United Nations Conference on the Law of Treaties adopted the Vienna Convention on the Law of Treaties. As of January 2018, 116 state parties have ratified the convention. Sovereign states are competent to make a treaty under the convention. Any treaty which is concluded under the threat or use of force is void.
Formation or Conclusion of Treaties
There are rules which apply in the formation of international treaties:
1. Signature: A treaty becomes authentic after the signatures of representatives of the States.
2. Ratification: Unless and until the treaty is ratified it will not bind the state. Ratification means that the head of the state confirming the Constitution of the treaty.
3. Accession: It is a method by which a state becomes a party to a treaty of which it is not a signatory.
4. Registration: Every treaty is required to be registered with the Secretary-General of the United Nations.
Reservations to a Treaty
The term reservation is defined under Article 2(1) of the Vienna Convention as, “a unilateral statement made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby, it purports to exclude or modify the legal effect of certain provisions of a treaty in their application to the State”. Every state is entitled to show reservation when signing, ratifying a treaty unless the reservation is prohibited by the treaty.
Treaties and Third States (Pacta Tetris nec nocent nec prosunt)
Under Article 34 of the convention says that ’a treaty does not create either obligations or rights for a third state without its consent’. Treaties bind only the parties which participate in it. However, a treaty may create rights to a third state in certain cases:
1. Where a third state accepts the Obligation of a treaty.
2. Where a third state expressly gives assent to the rights given from a treaty.
3. If a treaty creates an international custom then it will be binding even to the states who haven’t given their consent.
Some principles of International law cannot be altered by making Treaties. These rules are Jus cogens. Jus cogens are peremptory norms of international law. Under Article 53 of the Vienna convention, ‘A treaty is void, if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. These rules of Jus Cogens exist in the common benefit of the whole international community. The rules of Jus Cogens aren’t defined well by the Convention.
Rebus Sic Stantibus
Rebus sic stantibus is a principle in customary international law which gives the power to a party of the treaty to withdraw or terminate it because of a fundamental change of circumstances. Under Article 62 of the Vienna Convention, this rule is given acceptance.
Invalidity of Treaties
Under Article 42 of the Vienna Convention, it is given that the validity of a treaty can be impeached by the rules given in the convention, which are as follows:
1. Lack of proper authority of the representative (Article 46 and 47)
2. Error in the treaty (Article 48)
3. Fraud committed by another party (Article 49)
4. Corruption of the representative (Article 50)
5. Coercion of a representative (Article 51)
6. Coercion of a State (Article 52)
7. Jus Cogens (Article 53)
Termination of Treaties
A treaty can be terminated in the following ways:
1. by Consent
2. by Denunciation
3. By concluding another Treaty
4. By Material breach
5. Impossibility of performance
6. According to Provisions of the Treaty
7. by the emergence of Jus Cogens
8. by fundamental change of Circumstances
2. International Customs
Customs are the oldest source of international law which is having universal application. Article 38(1) (b) of the ICJ statute refers to international custom. Customary international law is derived from widespread similar state practices over a period of time.
Following are the essential elements of international custom:
1. Antiquity: A practice which is followed consistently for long may become a custom. However, it is not a general rule.
2. Uniformity: There should be uniformity in the practice of states while following a custom.
3. Wide-spread acceptance: The practice should be of widespread acceptance.
4. Time: Long duration is an essential requirement of custom in municipal law. But in International law, it is not a requirement.
5. Opinio Juris: The practice should be followed by the state as an obligation and not on the basis of convenience.
3. General Principles of Law [Article 38(1) (c)]
Sometimes there are cases which are seen in which there is no law or judicial precedent covering exactly that point. In those cases, the Judge will proceed to create a rule that will be relevant according to the general rules of the legal system. These general principles normally emanate from Justice, equity or public policy.
It means that the final Judgment of a competent court shall not be disputed by parties or their successors in any subsequent legal proceedings on the question of fact it settles.
It is a plea to stop the opposite party in a suit from leading a piece of evidence which is inconsistent with his prior conduct and facts acknowledged by him. In the Temple of Preah Vihara Case (1962), the claim of Cambodia over the temple of Preah Vihara was rejected on the basis of estoppel.
4. Judicial Decision [Article 38 (1) (d)]
Judicial Decisions are the secondary sources of International law. These are of immense importance. The ICJ examines its previous decisions and distinguishes between the cases which can be used in various cases.
5. Juristic Writings
The teachings of the most highly qualified publicists are given the same place as the judicial decisions under the secondary sources of International law. The Statute of the ICJ in Article 38 clearly recognized “the teachings of the most highly qualified publicists” as a means for the determination of the rule of law.
Ex Aequo Et Bono [Article 38 (2)]
This provision enables the courts to go outside the realm of law for reaching its decisions. It makes possible a decision based upon considerations of fair dealing and good faith.
Modern Sources of International Law