SOURCES OF INTERNATIONAL LAW
The sources of international law are the foundations from which legal rules and obligations between states and other international actors are derived. The primary sources are outlined in Article 38(1) of the Statute of the International Court of Justice (ICJ), which is widely accepted as an authoritative listing. These include:
1. International Conventions (Treaties)
Definition: Written agreements between states or international organizations governed by international law.
Examples:
The United Nations Charter
The Geneva Conventions
The Paris Agreement on climate change
Binding? Yes, for parties to the treaty.
2. International Custom (Customary International Law)
Definition: Practices and behaviors that are consistently followed by states out of a sense of legal obligation (opinio juris).
Criteria:
State practice (consistent and general practice)
Opinio juris (belief that the practice is legally obligatory)
Examples:
Immunity of foreign diplomats
Prohibition of genocide and torture
Binding? Yes, even on states that haven't signed related treaties, unless they are persistent objectors.
3. General Principles of Law Recognized by Civilized Nations
Definition: Legal principles common to major legal systems around the world.
Examples:
Good faith
Pacta sunt servanda (agreements must be kept)
Due process
Use: Often applied when treaties or customs do not provide guidance.
4. Judicial Decisions and Teachings of the Most Highly Qualified Publicists
Definition: Subsidiary means for determining rules of law.
Examples:
Judgments of the International Court of Justice (ICJ)
Writings by scholars like Hugo Grotius or Antonio Cassese
Note: Not binding like treaties or customs, but persuasive and informative.
5. Decisions of International Organizations (Modern Addition)
Though not listed in Article 38(1), resolutions and decisions by bodies like the UN Security Council or General Assembly can influence international law.
Example: UNGA resolutions on the legality of the use of force, or self-determination.
Summary Table:
| Source | Binding? | Example |
|---|---|---|
| Treaties | Yes (on parties) | UN Charter, Geneva Conventions |
| Customary International Law | Yes | Diplomatic immunity, prohibition of torture |
| General Principles of Law | Yes (gap-filling) | Pacta sunt servanda, good faith |
| Judicial Decisions & Teachings | No (subsidiary) | ICJ rulings, writings by scholars |
| Decisions of Int'l Organizations | Sometimes | UN Security Council resolutions |
Do write to us if you need any further assistance.
RELATED Blog
0 comments