This article is written by Arya Aradhana Routray, a Second-year law student of National Law University, Odisha

INTRODUCTION

The conduct of interstate relations is regulated by norms found in international law. The dictum “ibi societas, ibi ius” means where there is social structure, there is law—applies to international society in this way. International law is made up of basic guidelines and concepts that govern how nations and international organizations should behave while interacting with one other, as well as with private citizens, marginalized groups, and multinational corporations. The term "source of law" refers to the circumstances or occurrences that give rise to, alter, or nullify established legal standards. These might be thought of as the groups of norms found in international law that are recognized as legally binding and valid. “Lassa Oppenheim, whose work mostly involved analyzing international law explained that the term sources of law refer to a historical reality that gave rise to norms of behavior.”[1]

According to Salmond, “Legal Sources and Historical Sources are two sources of law. Legislation, Precedent, Customary Law, Conventional Law are legal sources, which have binding force. Writing of eminent jurists, foreign judgments, etc. are historical sources of law that have only persuasive value and are not binding upon the courts.”[2] Sources offer the proof of law's existence, which is where the legitimacy and power of the law come from. The application of legal sources determines the outcome of any case. Parallel to this, any international dispute arising between States or human rights violation between individuals is resolved by applying any of the sources of international law. International law establishes and governs the relationships between States, International Organizations, and Individual States.

ARTICLE 38 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

Article 38 of this statute provides for the sources of international law. The following are sources of international law:

1. International conventions that provide certain regulations and are formally acknowledged by state governments.

2. International customary practices

3. ‘The General Principles of law recognized by civilized nations

4. The rulings of international courts and tribunals, as well as the advice of the best-qualified publicists in each country.

Article 38 provides an authorized order for the use of international legal sources. The Court is therefore required to apply the sources in the order that they appear.

PRIMARY SOURCES

International law is primarily believed to have formal sources. They originate from regulatory sources such as agreements, conventions, and customs. Article 38(1) (a–c) of the International Court of Justice’s statute is generally acknowledged as the foundation of the official source of international law. It is generally acknowledged as a reliable explanation of the founding documents of international law.

International Conventions and treaties:

One of the main sources of international law is conventions and treaties. Both bilateral and multilateral agreements are possible with these accords. Treaties that outline the broad or universal agreements between nations are when laws are applied on a multinational basis.

Conversely, bilateral conventions are formed solely between two governments to address a specific issue pertaining to these states.

The Vienna Convention on the Law of Treaty 1969, defines a treaty as an arrangement whereby two or more nations establish or seek to establish a relationship between them governed by international law. Treaties establish current customary law and give nations an immediate source of authority and obligation.

They cannot bind non-signatory parties because they are voluntary and constitute part of the acknowledged norms of international law, of which every state is required under its ‘erga omnes obligations to refrain from violating.’ There are, however, some exceptions to this rule, specifically if any rule is a component of the ‘Jus Cogens norm.’

International Customary Law:

Customs is considered one of the ancient sources of international law. Before the creation of treaties, customs were the sole source of international law. In truth, numerous conventions are the result of norms that have changed to meet society's evolving needs. Article 38(1)(b) indicates that states' practices are generalized to become customary international law, or that evidence of a common practice accepted as law. Customary law played a crucial role in shaping international law before the establishment of the United Nations. It is a set of unwritten guidelines that govern how governments interact with one another.

The components of custom are:

● Duration and consistency of practice– Complete uniformity is not necessary; significant uniformity is needed. Once generality and consistency of practice are established, no specific time is required.

● Generality of practice– This addresses the challenge of differentiating state protest from simple abstention in the face of other states' practices. While silence can indicate agreement or disinterest, it can also indicate both.

● Opiono juris sive necessitatis (the psychological factor)– This is a controversial component since some authors do not think it is a suitable prerequisite for custom, even if it is agreed that something similar is required.

As stated by the ICJ in the proceedings involving the “North Sea Continental Shelf, the actions in question must not only constitute an established practice, but they also must be such—or done in such a way—as to demonstrate an idea that the existence of a legal requirement for this practice renders it mandatory. The very idea of the opinio juris sive necessitatis implies the necessity of such a belief, i.e., the existence of a subjective element. Therefore, the involved States must believe that they are abiding by what essentially constitutes a legal requirement. The behaviors’ regularity or even regular nature is insufficient on its own. Many international behaviors, such as those related to ceremonial and etiquette, are virtually always carried out, but they are not driven by any feeling of a legal obligation; rather, they are only done out of respect, simplicity, or custom.”[3]

General Principles:

Court rulings hardly ever make reference to the third source, which is the universal legal norms recognized by developed countries. These principles come into action when “the International Court of Justice or another international tribunal” seeks to recognize a concept that is generally accepted in legal systems, such as the legal standing of corporations. (e.g., in the 1970 ‘Barcelona Traction Case- Belgium v. Spain’). According to Dworkin, laws are composed of more than just regulations; they also include guiding concepts that are neither case-specific nor automatically applied; in fact, they may even be at odds with one another. Since laws cannot be developed to cover every scenario, principles will operate as a higher authority in some situations, necessitating their existence.

“The judiciary has also developed several general principles of law, such as audiatur et altera pars, actori incumbit onus probandi, or the fact that the judge of merits is also judge of the incidental jurisdiction. The creation of universal principles that are particularly appropriate in the field of international law, such as the concept of humanity in international humanitarian law, is made possible by the fact that these logical inferences are also tied to specific areas of international law.”[4]

SECONDARY SOURCES

A portion of the secondary source, commonly referred to as the material source of international law, is Article 38(1)(d). According to this, although they are only advisory in nature, court rulings and the lessons imparted by the most accomplished publicists from other countries also play a significant role in directing the development of international law.

Judicial Decisions:

According to this, the court is permitted to draw from its prior decisions, which are known as proof of international law. However, this is subject to the exception outlined in ‘Article 59 of the statute’, which says that the court's earlier rulings are only meant to serve as guidelines and are not legally binding.

This provision, which grants the court the prerogative to disregard precedents, allows the court to make use of the res judicata and advisory opinions from its previous rulings as trustworthy proof of its legal position in favor of the current case.

By means of its judge's decisions, case laws, and advisory opinions, the ICJ significantly contributes to the legislative process. One of the significant applications of this is the rule that was established in the infamous ‘Nicaragua v. USA’[5] case, which forbade the usage of threat or use of force and is considered as a part of International Customary law. Decisions of national courts as well as judgements of international tribunals are also included in this source. The creation of universal principles that are particularly appropriate in the field of international law, such as the concept of humanity in international humanitarian law, is made possible by the fact that these logical inferences are also tied to specific areas of international law.

Writing and Teaching of judges:

This secondary source includes the writings of highly qualified authors from the 16th to 18th centuries, such as Vattel, Grotius, and Gentili, who were regarded as the top scholars on international law.

However, the publications of most experienced and reputed lawyers cannot create a law, thus such books are more used to study the legal position on a particular subject than as the source of actual regulations. These are recognized as evidence sources of law because of their capacity to elucidate and explain concepts from around the world. They are vital because they offer the structure required to bridge the gaps left by treaties or customs.

CONCLUSION

International law is constantly evolving as the world gets more interconnected, mirroring the changing dynamics of the global society. Its enduring relevance underscores its importance in promoting justice, peace, and cooperation among nations in the contemporary world. So, the law must keep up with the times to provide a mechanism for holding people and states accountable for their actions, given how dynamic society is. Article 38 is therefore not all-inclusive. Even if Article 38 is only declarative, it is obvious that it cannot prevent the creation of a new body of law that results from the advancement of the global community and its progressive structure. The sources listed in Article 38 are scarcely sufficient to address the new issues raised by the current global system. Thus, it would be beneficial for the development of international law to revisit the sources as provided by Article 38 of the Statute of ICJ.

REFERENCES

1. Malcolm N Shaw, ‘International Law,’ (7th ed., CUP, 2014).

2. Statute of International Court of Justice, 1945 Article 38(1) (a-d).

3. Brij Bihari Prasad, ‘Sources of International Law’ (2019) 5 International Journal of Scientific Research in Multidisciplinary Studies 80-88.

4. Dipen Sabharwal, ‘Treaties are Treaties and Custom is Custom and Never the Twain Shall Meet: The Interplay of Treaties and Custom in International Law’ (2000) 12 National Law School of India Review 113-136.

5. Shagufta Omar, ‘Sources of International Law in the Light of the Article 38 of the International Court of Justice’ (2011) Social Science Research Network (SSRN E-JOURNAL).

6. Dr. Shivani Singh, ‘Treaties: A source of international law’ (2018) 5 International Journal of Emerging Technologies and Innovative Research 466-469.

[1] Lassa Francis Lawrence Oppenheim, ‘International Law: A Treatise,’ (1920) Internet Archive https://ia600307.us.archive.org/8/items/cu31924007494754/cu31924007494754.pdf accessed 04 September 2024.

[2] Sir John William Salmond, and Patrick John Fitzgerald, ‘Salmond on Jurisprudence’, (1966) Google books https://books.google.co.in/books/about/Salmond_on_Jurisprudence.html?id=Toc5AQAAIAAJ&redir_esc=y accessed 04 September 2024.

[3] ‘Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands,’ [ICJ] 1969 Rep 9.

[4] Bérénice K. Schramm, ‘General Principles of Law,’ (2013) Academia.edu https://www.academia.edu/113388341/General_Principles_of_Law accessed 5th September 2024.

[5] Nicaragua v. USA (1986) ICJ Rep 14.