Sources of International Law

According to some of the eminent jurists following are the Sources of International Law
Lawrence: According to Lawrence, if we take the source of law means its beginning as law
having with all the authority required to give it binding force, then in respect of International
Law there is one source of law and that is consent of Nations. This consent may be either tacit
(custom) or express (treaties).
Bariely and Westlake says that Main sources of International Law are Cause and reason.
Statute of the International Court of Justice Article 38(1)
Sources of International Law are Identified in Article 38 (1) of the 1945 Statute of the
International Court of Justice (established by the Charter of the United Nations) defines the
Sources of International law as under:
(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;
(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.
Sources of International Law
A) International Conventions or Treaties:
It is the first and Important Source of International law.There is no Legislative organ in the field
of International Law, comparable to legislatures within the State, the enactments of which could
bind all the States. The Contracting Parties may, however, establish an international organization
by means of the treaty with authority to bind them by its resolutions or may even lay down rules
for their mutual conduct.
Treaties can be Divided Into 1) Law Making Treaties and 2) Treaty Contracts
1) Law making Treaty-Law making treaties are those treaties which are entered into by a large
number of States. These are the direct source of International Law. These treaties are signed by a
majority of the State. For Example United Nation Charter.These treaties are entered into and
signed by a large number of countries giving thereby general principles of International Like.
Geneva Convention on Law of sea and Vienna Convention on Diplomatic Relations,
1961 are examples of such a treaty.
2) Treaty Contracts:
These are the treaties which are entered into by two or more States. The provisions of such
treaties are binding only on the parties to the treaty. Such type of treaties are also the source of
International Law because they help in the development of customary rules of International Law.
It is criticised that the classification of treaties are misleading because they both create binding
rules.
B) Customs :
Custom is the older and original Source of International Law. It is as such Second Important
source of International Law. International Law Custom may mean a kind of qualified practice, by
the existence of a corresponding legal obligation to act according to this practice, hence by the
existence of the corresponding rule of International law.The customs are evolved through the
practices of and usages of the nation and their recognition by the community of nations.
Customary rules are those rules which are practiced by most of the States by way of habit for a
pretty long time.
C) The general Principles of Law:
There is another Source of International Law that is General Principles of Law. General
Principles are based on moral Principles and law of nature, it has relation with the State Practice.
The statute of the International Court of Justice (ICJ).Authorities the Court to apply the general
principles of law recognized by civilized nations in addition to international conventions and
custom, which are the two main sources of International law. It makes national legal systems as
a source of law for the creation of International Law.
D) Judicial Decision:
According to Article 38 of the Statute of the International Court of Justice, Judicial Decisions are
subsidiary sources of International Law. They are not the automatic sources of law. Judicial
Decisions by International Court of Justice, Permanent Court of Justice, International Arbitral
Tribunal and Municipal Courts.
Article 59 of the Statute of the International Court of Justice expressly provides that the
decisions of the court have no binding force except between the parties and in respect of that
particular case. That means Judicial decisions are binding only on the disputed States. Under the
provisions of this Article, the Court is specifically required not to apply precedent or doctrine of
stare decisis in its decisions. ICJ became a persuasive value in the limited action. The content of
earlier decisions has some element of law and it is clarified, impartially, ascertainly carried by
International Court of Justice. How it Contributes in the development of International Law. It is
repeated application is relied upon. later on, it does not remain only persuasive and it does
convert into rules of International Law.
F) Equity
Equity is used in the sense of consideration of fairness, reasonableness and policy often
necessary of the sensible application of the more settled rule of law. Though equity cannot be the
direct source of International Law, It is of great importance in those fields where rules are not
readily available.
G) Decision or determinations of the organs of International Institutions -In the modern age
the decisions or determination of the organs of international Institutions are also treated as
sources of International Law. In the view of constant change in the forms and content of the
International Law, International organisations have also became a subject of International law.
The decisions and determination of the organs of such institution are also, therefore, regarded as
the sources of International Law because they help in the development of customary rules of
International Law.
DEVELOPMENT OF INTERNATIONAL LAW
(SCOPE OF INTERNATIONAL LAW):
International law is a dynamic law. It has been changing since its inception. It is constantly
developing, sometimes it does not keep up with developments, other times it anticipates them
and gives an early warning of tendencies in the development of international relations. It is a
developing philosophy of values.
New International Law:
The term new international law indicates the norms and values that have been evolved since the
Second World War. The traditional, juridical and individualistic character of international law
(i.e. law governing the relations of sovereign States with each other) is being replaced by the law
of social interdependence (i.e. interdependence of the nations or international community). At
the present time, there is hardly a State which in the interests of the international community has
notacceptedrestrictionsonitslibertyofaction.
 In the 20th century, factors which contributed largely to the development of international
law further could be summarised as below:
i. International organisations: subject of international law for the first time, organizations of
universal character were set up viz. U.N., ILO, ICJ, etc. The organs of international organisations
contribute to the clarification and development of international law. Handling of social, cultural
and economic problems of the States by the international organisations is an important event of
the present century. In fact, the future belongs to such organisations.

ii. Individuals: subject of international law, New international law has been evolved around
the individual. The most important change that has taken place is that of addition of new
subjects. International organisations and individuals are now regarded as subjects of international
law. It is significant that individuals have been given a right to make petitions before some
international forums.
iii. Codification of international law: In the 20th century, rules of international law which
were ambiguous and uncertain have been made systematically in written form which is applied
uniformly to all the States or most of the States.
Relationship between International Law and Municipal Law
- Certain theories have been propounded to explain the relationship between International Law
and Municipal Law. In general it is notionally accepted that the state municipal law control the
conduct of individuals within the state while International Law controls the relations of nations.
But now this concept has altogether been changed and the scope of International Law has
increased and it not only determines and controls the relations of states but also the relations of
members of International community.
1. MONISTIC THEORY:- It is also known in the name of Monism theory. According to the
exponents of this theory International Law and Municipal Law ar intimately connected with each
other. International Law and Municipal Law are the two branches of unified knowledge of law
which are applicable to human community in some or the other way. All Law are made for
individuals. The difference is that municipal law is binding on individual while International
Law is binding on states.
2. DUALISTIC THEORY: - In view of the dualistic theory writers, International Law and
state Law are two separate laws and contained legal systems. The Monist view of law is part of
philosophy according to which totality is a single structure. But within the framework of the
unitary universe is diversity of phenomenon. International Law cannot become part of state
municipal Law till the principles of International Law are applied under State Municipal Law.
3. THEORY OF SPECIFIC ADOPTION: - International Law cannot be directly enforced in
the field of State Law. In order to enforce it in the field of Municipal Law it is necessary to
make its specific adoption. The theory of adoption is based on Hague convention-1970, Vienna
Convention-1972 and Tokyo Convention-1975. In case of Jolly George v/s Bank of Cochin-
1980: The court held that any agreement does not become part of Indian constitution
automatically, but the positive commitment of state parties inspires their legislative action.”
4. THEORY OF TRANSFORMATION:- The exponents of this theory contented that for the
application of International Law in the field of Municipal Law, the rules of international law
have to undergo transformation. Without transformation they cannot be applied in the field of
Municipal Law.
According to Strake:- “That the rules of International Law can be applied when they
are transformed in to domestic law, is not necessary in every case.”
5.THEORY OF DELIGATION:- The theory of transformation has been criticised by the
Jurists with the result of this craterisation it put forward a new theory called Delegation theory.
The supporters of this theory say that according to the statutory rules of International Law, the
powers have been delegated to the constitution of different states o ensure that how and what
extent according to International Law.
States to determine as to how International Law will become applicable in the field of Municipal
Law in accordance with the procedure and system prevailing in each state in accordance with its
constitution.