Sources of International Law: According to the Article 38 of the Statute of ICJ
(Mehboob Habib Buttar, Faisalabad)
Article 38 of the Statute of
the International Court of Justice (ICJ) is a complete statement of the sources
of International Law.
Article 38(1) (a); International Conventions and Treaties, whether general or
particular, establishing rules expressly recognized by the contesting states.
Article 38(1) (b); International Custom, as evidence of a general practice
accepted by state as law.
Article 38(1) (c); the general principles of law recognized by civilized
nations.
Article 38(1) (d); Judicial Decisions and teachings of the most highly qualified
publicists of the different nations.
International Conventions and Treaties:
According to Vienna Convention on Law of treaties,1969Article 2: Treaty is a
legal agreement concluded between two or more states in written form and
governed by International Law. Treaties are sometimes referred to convention,
protocol, accord etc. Treaties, or International Conventions, can be bilateral
(between two nations) or multilateral (between many nations). Examples are
Nuclear Non-Proliferation Treaty, Sino- Pakistan free trade agreement,
International Convention for the safety of life at sea, Treaty on the accession
of Crimea to Russia, Minsk2 protocol etc. Treaty between two or more States
prescribing rules and regulation binding between the parties only is called
Treaty Contracts. It is indirect source but may lead to its formation. The rules
and procedures governing UN’s procedural matters i.e. its budget, finances etc.
Treaties that lays down general principles of law and binding is called law
making treaties. It is a direct source of International Law i.e Treaty on
diplomatic immunity.
Customs: It is the original and the oldest source of international law.
Essentials of customs are;
Long Duration
Constant International Practice
Opinion Juris: an action is carried as a legal obligation
Custom has opinion juiris means the custom is followed as a legal obligation.
Usage, on the other hand, lacks opinion juris. For instance, giving a red carpet
reception to foreign head of the States is a usage but giving immunity to the
ambassadors has always remained an international custom.
General Principles of Law:
It is recognized by civilized nations in its decision making. It is the
principle of natural justice in which both the parties should be heard, nobody
can be a judge in his own case. Chorzow Factory case is its example. General
Principles are most important source of law when no treaty or CIL has addressed
an issue.
Judicial Decisions and Writing of Jurists:
Every year 1000 books and 3000 articles are written on IL (Akehurst’s Modern
Introduction to International law). The writings of qualified jurists like
Grotius, Vattel etc have been quoted by the ICJ and other International
tribunals. Judicial decisions are the subsidiary means of International Law.
Under the head Judicial Decisions, contribution of ICJ, ICC and others
international tribunals are significant.