The Material Sources of International Law

The material sources of international law can be defined

as the actual materials from which an international

lawyer determines the rules applicable in a given

situation

The sources that be erred in International law

can

are mentioned in Article 38 paragraph 1 of the

ICJ statute

The Court whose function is to decide in accordance

with international law such disputes as are submitted

to it shall apply

catInternational conventions whelergeneral or particular

establishing rules expressly recognized by the contesting

states

International
b custom as evidenceofgeneral practice

accepted as law

c the general principlesof law recognizedby civilized

nations

d subject to provisionsof Article 59 judicial decisions

and the teachings of the most highly qualified

publicists of the various nations as subsidary means

for the determinationof the rules of law

The general principles of law was added to provide

additional baris should the material sources provide no

assistanceThesegeneral principles were to be applied

CUSTOM

Until recent times international law consisted mostly

of customary rules These rules had evolved after a

long historical process culminating in their recognition

by the international community

The importance of centum has gone down recently

with the vivre are in law making treaties as well

as the codificationof existing customs enample Vienna

conventions of 1961 1963 and 1969

according to some enperb curlew still has a

role to play especially in areas that are untouched

by treaties

centum and usage are often med interchangeably

However there is a technical distinction between

them

usage is legally unattested international habit

curtain begins where usage ends

Customary rules crystallisefrom mages or practices

which have evolved in three circumstances

a diplomaticrelations b w states

b practiceof international

organs

e state laws decisions of stale courts and state

military or administrative practices

The Scotia care

in order for a practise to be declared as a custom

it must

fulfill
a Material requirements

in order for a stale practise to be taken as custom

there must be significant repitition The antiquity

of the act also adds credenceto the practise

b Psychological requirements

this is better known as opiniojuris sire necessitates

which means that the recurrence was the result of

a compulsory rule

recurrence must carry the expectation that in

similar circumstances the same rules shall be applied

opiniojuris is not mandatory but it helps in

differentiating b w custom and actions that follow

arbitary choices

Lotus case

West Rand CentralGoldMining Case

The ICJ has ruled that a particularpractice between

two states only which is acceptedby them as law

may give rise to bindingcustomary rule inler parks

Passage over Indian territory care

c Judicial application of custom

Both national and international courts play

a
key role in application of custom


a
partyclaims before the court that curtenvenist

course hurt establish whether the claim refers

to a valid airline

Justice Cardozo said that through its imprimatur

the Count will attest to the qualityof custom

jural

Paquette Habana Care curlew applied

Lotus Care curtain rejected

entracling a curlew from documentsof statepractice

judicial decisions and diplomatichistory is noteary

documents are oftendefective or incomplete

some states documentless adequately than others

ILL statute Article 24 considerways and means

of making evidenceof customary international law

were readily available

TREATIES

the effect
of any treaty in leading to the formation
of rules of international law depends on the kindof
treaty it is

i 1 Law Making Treaties

provisions of law makingtreaties are direct sources

of international law

the astonishinggrowth in the numberof law

making treaties is due to the inadequacyof custom
ni meeting the urgent demands of the international
society of states
industrial and economic developments were bringing
states closer to one another
international communications became more frequent
relations btw states grew in size and complexity

law makingtreaties are of two kinds

a enunciatingrules ofuniversalinternational law eg
UN charter
b
laying down general or
fairly general rules

some multilateral treaties are to a large extent

either confirmatory or codificationof customary
international law
 some writers criticise the term law making because
theyfeelthere treaties layout contractual obligations
they overlook conventions and legislative instruments
that have been adoptedby organof international insts

an alternate name suggerled by some is normative

treaties This name allows treaties to be capableof
embracing the following
a Treaties operating as general standard setting
instruments
b Unratified conventions
c Closed or limited participationtreaties
d Treaties formulating regional on community rules
1Treaties creating an internationally recognisedstatus
or
regime
µ Instruments such as finalActs which are annened
International Regulations

A large number of parties to a treaty does not

mean that the treaty is binding on non parties
non parties nuirt giveevidence of their conduct that
shows their intention to accept such provisions as general
rules of International Law
North Sea Continental Shelf Cares
ailTreaty Contracts

Treaty are not direct sourcesofinternational law They

may constitute particular law btw parties and signatories
Suchtreatieslead to the formationof international law
in which there are three cones to be comidered
eat A series on recurrence oftreaties laying down a
similar rule
may produce a principleof customary
international law
b A treaty that was originally concluded between a
limited number of parties may be germanised by
subsequent independent acceptance or imitation
Cc A treaty may be of considerable evidentiary value as
to the existence a rule which has crystallised into
of
law by an independentprocess
of development
 DECISIONS OF JUDICIAL OR ARBITRAL TRIBUNALS

is International Judicial Decisions

The only existing permanent internationaljudicial

tribunal is the ICJ

Article 59 of the ICT statute states that the decisions

would not be binding except between the parties and
in respect to that particular care
the court sees its previous decisions as guidance
rather than as bindinglegal precedents
SouthWest Africa cares

The international court has shown that regards itself

free to develo international law without beingtied
down
by prior practice and authority
The fisheries care

CiilState Judicial Decisions

There are two ways in which decisions of state courts

may lead to formation of International Law
atThe decision
may be
treated as weighty precedents or
even as binding authorities
Lord Stowell's judgements during NapoleonicWars
Us Supreme Courtjudgements in the Scotia
and Paquete Habana cares
b The decision
of state courts may in some cones
lead to thegrowth customary laws Rulesrelated
of
extradition and staterecognitionfind their roots
in decisions of state courts

Iii Decisions of international orbital tribunals

decisions of international arbitral tribunals have

contributed to the development international law Some
of
landmark cones in this regard are
at AlabamaClaimsArbitration 1872
b Behning Sea Fisheries Arbitration 1893
c Pious Fund Care 1902
d NorthAtlantic FisheriesCare 1910

some writers arguethat this is not significantcontribution

becausearbitrators are influenced the necessityof
by
reaching a decision It is true that arbitrators are
not bound by the technicalities that bind judges However
this isn't enough to dismiss the importanceof such
tribunals in the development law
of
the main distinction b w arbitration andjudicial
decisions lies in
a manner in which judges are selected
b security of tenure
c independenceof parties
 JURISTIC WORKS

Juristic works are not independent sources of law

and are referred to as subsidary means in Art 38
g the ICJ statute
one opinion is that they are
only important in
throwing light on the rules of international law
jurists have been largely responsible for deducing
customary rules from a coincidence
juristicopinion is evidenceof established customary
rules but also of curtomary rules that are bound to
be established
hence it can be argued that with the passage
of time more weight will be added to the authority
of juristicopinion
ni cares where treaty or curtomary rule exists
no

juristic opinion may be lookedupon as an

independent source
Re PiracyJure Gentium Care
 DECISIONS OR DETERMINATIONS OF THE ORGANS OF INTERNATIONAL
INSTITUTIONS, OR OF INTERNATIONAL CONFERENCES

Decisions and determinations may lead to the formation

of International law in a numberofdifferent ways
a They may represent intermediate art final steps in
the evolution of customaryrules The decisive wiki and
is the extent to which the decision has been adhere
to ni practice The legal value these Revolutions
of
varies according to the circumstances as well the
voting pattern that led to their adoption
b A revolution regarding the internal workings
of an
organisation will havefull legal effect on members

cFor issuesthat are not covered by the organization's

Constitution resolutions may have a law makingeffect

d Sometimes organs institutions have the power to

of
give binding decisions such as the Executive Boardof
the IMF

e Some organs of international institutions are empowered

to give decisions anddirections that have bindingeffect
on all members

f Determinations or opinions Communities ofJurists

of
created to investigate legal problem have some
a

weight and authority

in Peremptory principles of International Law jus cogens

jus cogensrefers to principles from which no deviation

is permitted
Article 53 g Vienna Convention Law Treatiesstates
of
that jus cogens can only be modified by a subsequent
worm of international law of the same character

Critics of jus cogensargue that

car it is difficult to identify norms of jus cogens There
is also the question whether jus cogens is identified
through multilateral treaties or if it evolves in the
same process as customaryinternational law
b there is a lack
of consensus regarding what
classifies as jus cogens at any given time

One can argue that the underlying notion in jus

cogens is that its components are conditioned by the
interests the international community as a whole
of
this alsoimplies that jus cogens should invalidate
usages and practices that are in conflict with
peremptory norms