Sources of International Law

07 July, 2023

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Introduction

International law is introduced to maintain international peace and security among different states or countries. It is mainly defined as a set of rules, agreements, and treaties that builds a connection between states and countries. Indian Constitution under Articles 51 and 253 promotes International peace and security and allows Parliament to make any law with the aim to execute an international treaty, convention, or agreement respectively. Through this, it is understandable that International laws are very important for the peaceful and harmonious existence of the human race. For this, there should be tranquility within the country and among the countries. This tranquility is maintained via International laws which eventually arose the question “Who makes international laws and what are the sources of international Law?” In this article, a brief discussion is provided regarding the sources of International Law.

Sources of International Law

The sources of International Law are recognized under Article 38(1)(a-c) of the International Court of Justice (ICJ) statute which is an authoritative statement and backbone of the sources of International law. Article 38 of the ICJ states “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; and (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” These sources are discussed in brief as follows:

Treaties and Conventions

The most important sources of International Law are Treaties and Conventions. A treaty is defined as a binding agreement between two or more states governed by international law. It is a generic term that embraces different kinds of international agreements such as statutes, conventions, declarations, charters, protocols, pacts, covenants, general acts, and the term ‘agreement’ itself. As a treaty is an agreement between two or more parties, a convention is a set of rules for those parties who agree to the convention for solving issues affecting a larger part of the world. The conventions can be either multilateral or bilateral where the multilateral convention is related to the treaties formulating universal or general application of the law and the bilateral convention is formed by two states for dealing with matters concerning the two states.

Geneva Conventions: It is a series of international treaties concluded between 1864 and 1949 in Geneva to ameliorate the effects of war on civilians and soldiers. Its development was associated with the Red Cross and provided four main laws. First, a right of immunity from capture and destruction for all establishments created to treat wounded and sick soldiers. Second, all combatants are treated equally. Third, the Protection of the civilians who are treating the wounded soldiers and their personnel. Fourth, a Red Cross symbol is recognized as an identification mark for persons and equipment covered by the agreement.
Berne Convention: It was adopted in 1886 and deals with the protection of works and the rights of their authors and are primarily based on three basic principles. Three basic principles include, “works originating in one of the Contracting states must be given the same protection in each of the other contracting States as the latter grants to the works of its own nationals, protection must not be conditional upon compliance with any formality, and protection is independent of the existence of protection in a country of origin of the work.” It also contains a series of provisions that highlights minimum protection to be granted including both works and rights. Article 2(1) of the Convention states “every production in the literary, scientific, and artistic domain, whatever the mode or form of its expression.” Some of the rights to be protected include the right to translate, recite, communicate to the public, broadcast, and others.
Vienna Convention: This convention is commonly known as the Vienna Convention on the Law of Treaty 1969 which regulates different treaties among states. It provides a complete framework to establish, terminate and maintain diplomatic relations between independent sovereign states on the basis of consent. Vienna Convention defines a treaty as “An agreement whereby two or more states establish or seek to establish a relationship between them governed by international law.”
Mahakali Treaty: It is an agreement signed in 1996 between the Indian Government and Nepal Government concerning the development of the watershed of the Mahakali River which include the Tanakpur Barrage, Sarada Barrage, and Pancheshwar Dam Project. It recognizes the Mahakali River as a boundary between the two countries.
Shimla Agreement: This agreement was signed in 1972 between India and Pakistan for peace and was a result of the India-Pakistan War of 1971. The principles of the Shimla agreement include a direct bilateral approach for resolving issues in a peaceful manner, and to take measures for not violating the LOC (Line of Control) in Jammu & Kashmir. The objectives of the Shimla agreement include establishing peace and welfare, promoting friendly and harmonious relations, ending conflict and confrontation, restricting interference in each other’s internal affairs, and developing sovereignty, unity, integrity, and political independence.

Customs

Customs is the original and the oldest source of International Law. As mentioned under Article 38(1)(b) of the ICJ, it is a usual practice that is accepted as a law. The rules of customary International Law include two major elements. The first element is the general state practice which means there must be consistent state practice whereas such practices are unwritten and are based on humanitarian principles as well as inter-state diplomatic relations. The second element is Opinio Juris which means the opinion of the law. Ingredients of the international custom include continuity, certainty, consistency, uniformity, antiquity, accepted as law, and not in conflict with Municipal Law.

General Principle of Law

“General Principles of law recognized by civilized states” is defined as the third important source of international law under Article 38 (1) of the ICJ. These are the legal norms that exist among the majority of nations resulting in easy maintenance of justice. Res- judicata, subrogation, equity, prescription, and estoppel are some of the general principles of law common to municipal legal systems.

Judicial decisions

Judicial decisions as well as juristic works are the indirect sources of international law. Under this, the previous decisions given by the court can be used as evidence of international law. There is an exception to this that is stated under Article 59 of the ICJ, “The decision of the Court has no binding force except between the parties and in respect of that particular case.” ICJ plays an important role in the law-making process, below are some of the cases with decisions given by ICJ that act as a significant source of international law.

Nicaragua vs. USA: In this case, it was stated that the U.S.A. violated international law by mining Nicaragua’s harbors and by supporting the Contras against the Sandinistas.
Alabama Claim arbitration: This arbitration resulted in the requirement of codified law international law and introduced a peaceful method for settling international disputes. In this case, the arbitration commission ordered Britain to pay a compensation of $ 15.5 million for Alabama claims to the U.S.
Island of Palmas (Miangas) case: Through this case, it was determined that a unanimous decision helps in the progressive development of the law. In this case, sovereignty over the island of Palmas was in dispute whereas the arbitrator mentioned that the island formed is a part of the Netherlands rather than the United States.

Conclusion

The decision of ICJ is binding but the implementation of international awards is a factor that is dependent upon the sincerity of the parties in dispute. ICJ has no direct means of enforcing its awards. This results in an inability to enforce judicial decisions, in the absence of such an authority International law has not been able to achieve its goals. One cannot undermine the role of arbitration in settling international disputes where all the parties are willing to overcome their issues but surely a method for enforcing international awards has to be formulated so that the decisions of ICJ can be implemented.