ABSTRACT

This paper examined Article 38 (1) of the Statute of the International Court of Justice
1945 as a source of international law and its implications.

International law consists of a set of binding rules that regulates relations between
international organizations, countries, companies and individuals. International law has a
sui generis system which means there is not any political authority form identification of
the rules. As pointed out by Starke, the material sources of international law may be
defined as the actual materials from which an international lawyer determines the rule
applicable to a given situation. The term Source refers to methods or procedure by which
international law is created.

International law refers Lex lata as well as Lex Ferenda. Lex lata includes “Primary
rules” such as treaties and “Secondary rules” like directives or decisions. Lex ferenda is
mostly referred in the case of a legal gap. Beside this, the Statute of the International
Court of Justice determined in the 38th Article, that there are four main sources in
international law which we will analyse below; treaties, customary law, general
principles of law and judicial decisions and doctrines.

Sources of International Law

For a rule of international law to be binding, it must be derived from one of the
recognized sources provided by Article 38(1) of the Statute of the International Court of
Justice 1945. They are the authoritative and conventional sources of international law
being an integral part of the United Nations Charter.

Article 38 (1) of the Statute of the ICJ (widely recognized as the most authoritative and
complete statement as to the source of IL) provides that:

“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 parties;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognised by civilised 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.”

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It would be interpreted briefly that the primary sources of international law are
international conventions, international customs and the general principles of law.
Besides judicial decisions and the teachings of the highly qualified publicist would be
counted as subsidiary sources to be applied when a dispute emerges in the field of
international relations.

International conventions

In the modern period, international treaties are the most important source of international
law. Article 38 of the ICJ lists ‘international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states’ as the first source of
international law.

Treaties are known by a variety of differing names, ranging from Conventions,

International agreements, pacts, General acts, charters Declarations and Covenants. All
these terms refer to a similar transaction, the creation of written agreements whereby the
states participating bind themselves legally to act in a particular way or to set up
particular relations between themselves.

Article 2 (1) of the Vienna Convention on the Law of Treaties, 1969 defines a treaty for
the purpose of the Convention as ‘an international agreement concluded between states in
written form and governed by international law, whether embodied in a general
instrument. Treaties shall be complied with Article 26 of the VCLT, 1969 states, every
treaty in force is binding upon the parties to it and must be performed by them in good
faith.”

Treaties may be divided into ‘Law making treaties’ which are intended to have universal
or general relevance, and ‘Treaty-contracts’ which apply only as between two or a small
number of states.

North Sea Continental Shelf Case1: a provision in a treaty may constitute the basis of a
rule which, when coupled by the opinio juris, can lead to the creation of a binding custom
governing all states, not just those party to the original treaty.

International customs

International customs have been regarded as one of the prominent sources of international
law for a long time. It is the oldest and original source of international as well as law in
general.2

1
(1969), I.C.J. Rep. 3
2
Oppenhiem’s International Law, note 4, p 25.

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It is an important matter to see as to how international custom will be applied in
international law. There are two leading cases on the point:

 Asylum Case (1950)3: ICJ declared that the ‘party which relies on a custom of
this kind must prove that this custom is established in such a manner that it has
become binding on the other party.
 Right of Passage over Indian Territory Case (1960)4: The Court declared that it
... There had in the past existed a constant and uniform practice allowing free
passage and that the ‘the practice was accepted as law by the parties and had
given rise to a right and a correlative obligation.

While the treaties are expressly defined as “whether general or particular”, custom is only
envisaged “as evidence of general practice”. By no means has this prevented the Court
from accepting the possibility of custom of a limited geographical scope.

A specific form of local custom can be found in a continued practice between two states
accepted by them as regulating their relations. These rules of particular custom defer
from general customary rules in two respects: They have the nature of an exception;
there existence will be a matter of strict proof and the opinio juris attached to them is of a
consensualist kind.

General Principles of Law

In any system of law, a situation may very well arise where the court in considering a
case before it realizes that there is no law covering exactly that point, neither
parliamentary statute nor judicial precedent. In such instances the judge will proceed to
deduce a rule that will be relevant to guide the legal system.

Para (1) (c) of Article 38 of the statute of International court of justice lists general
principles of law recognized by civilized states as the third source of international law. It
constitutes an important landmark in the history of international law inasmuch as the state
parties to the statute did expressly recognize the existence of third source of international
law independent of custom or treaty.5

By general principles of law we mean “those rules or standards which we find repeated in
much the same form in the developed systems of law.”

3
I.C.J. Rep. (1950), pp. 276-277.
4
I.C.J. Rep. (1960), p.6.
5
Oppenhiem’s International Law, note 4, pp, 38-39.

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The Rule of pacta sunt servanda, that contracts must be kept; the principle that
reparation must be made for damage caused by fault; the right of self defence for the
individual against attack on his person or family; and the principle that no man may be a
judge in his own cause.

Following are some of the important cases relating to the general principles of law
recognized by the civilized states:

 R. v. Keyn6 – in this case the court ruled that international law is based on justice,
equality and conscience which has been accepted by long practice of states.
 In the case of diversion of water from muese- The permanent court of
international justice applied res judicata and estoppel.
 Chorzow factory case7- In this case, the permanent court of international justice
applied the principles of res judicata and also held that one who violates a rule is
liable to make reparation.
 Barcelona traction case8- In this case the international court of justice applied
the principle of estoppel.

Judicial decisions

Judicial decisions are the subsidiary means for the determination of rules of law and they
therefore are the subsidiary and indirect source of international law.

In the modern period International court of justice is the main international judicial
tribunal. It was established as a successor of the PCIJ. Article 59 of the statute of ICJ
makes it clear that the decisions of the court will have no binding force except between
the parties and in respect of that particular case. Earlier decisions of the court are not
binding on the court itself and the court is free to deviate from its earlier decisions.

Awards of the international arbitral tribunals cannot be treated as a source of international

law. These jurists have rightly too pointed out that in most of the arbitral cases,
arbitrators act like mediators and diplomats rather than as judges. The Kutch Award
(1968) bears testimony to this fact.

Decisions of the municipal courts according to Oppenhiem are not a source of law in the
sense that they directly bind the state from whose courts they emnate.

The Teachings of the most highly qualified publicists of the various Nations.

6
(1876) Ex. D. 63.
7
Pub. P.C.I.J., (1928), series A, no. 17.
8
I.C.J. Rep. (1964), p.6.

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It is perhaps needless to insist on the important role played by jurists in the development
of international law. Juristic works are not an independent source of law, although
sometimes juristic opinion does lead to the formation of international law.

Article 38 of the statute of the ICJ directs the court to apply ‘the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law. This provision emphasizes the evidentiary value of juristic
works. The importance of the works of the jurists has been stressed by justice gray in
paquete Habana9,”....where there is no treaty and no controlling executive of legislative
act or judicial decision, resort must be had to the customs and usages, of civilized nations
and as evidence of these, to the works of jurists and commentators who by years of
labour, research and experience have made themselves peculiarly well-acquainted with
the subjects.”

CONCLUSION

In summary, while Article 38 (1) of the Statute of the International Court of Justice
provides for the sources of international law as treaties, customary law, general principles
of law, judicial precedent and teaching of international law publicist, to be referred to by
the International Court of Justice, these sources which are indeed serving the purposes for
which they were established are not yet left without criticisms as to what constitute the
sources, their adoption and application by the court as well as the acceptability it receives
from various nations around the world. This led to some suggestions for the adoption of
other sources such as the resolutions of the United Nations General Assembly, principles
of Islamic law and the agreements, actions and inactions of chartered companies whom
have played a significant role in the development of international law and its sources.

9
(1990) 175 U.S. 677 p.700.