Source of International Law. Detail of the source of International law. It is very important for those students who are preparing for Law exams, or who studying the law. It is also very important for Semester exams.
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International law 4th lecture
Sources of International law:-
According to the provisions of the Statute of International Court of
Justice there are following sources, on the basis of which Court can
decide a case:
1. Treaty or International convention
3. General Principle of Law
4. Judicial decisions and writing of Publicists
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International convention or Treaty- It is the first and important
source of International law. The tern treaty may be defined as the agreement
entered between the nations. Through agreement certain duties and obligation
and rights that is enforced is considered as “Treaty”.
Treaty is known as conventions, agreement, pacts, general acts, charters, statues,
declaration and covenants.
Treaty can be bilateral and multilateral. Bilateral means when Treaty is formed
between the two nations and when there is treaty between more than two nations
is considered as Multilateral.
Important treaties are :
Geneva Convention- Geneva Conventions are a series of treaties on the
treatment of prisoners of war (POWs) and soldiers who are otherwise rendered hors
de combat (French, literally "outside the fight"), or incapable of fighting.
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Vienna Convention-The Vienna Convention on Diplomatic Relations of
1961 is an international treaty that defines a framework for diplomatic relations
between independent countries.
Important Landmark cases on Treaty:-
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Judgement
31 March 2014
Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment 20 April 2010
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There are two types of International treaties:
1. Lawmaking Treaties- Law making treaties are those treaties which are entered into
a large number of states. These are considered as direct source of International
Law. Such treaties are binding are binding on all nations. Example of such treaty
treaty are U.N Charter, Geneva Convention, On the law of sea, The Genocide
Conventions of 1978 etc.
2. Treaty Contracts- This is such type of treaty which are entered into by two or more
states. The provision of such treaties are binding only on the parties of the treaty.
Such type of Treaties are also considered as the source of International Law. It
also help in the development of customary international law. Like Treaty between
Indo Nepal treaty on trade.
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Custom- It is 2nd source of International Law. It is older and
original source of International law. It is integral part of law.
Customs are those habits and practices which the nation’s
states commonly observe and the violation of which is
considered as against the courtesy of International behavior.
The Article 38(1) of the statues of the International court of
Justice recognize international custom as source of
Element for making custom as International law-
1. Duration of state prcticse- Any practice that is newly started
in the society in not considered as Customary law.
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2. Uniformity and consistency in Pratise
3. Generality in Practise
4. Opinio Juris- It means such practice can be element of customary
law which are not against the the public policy.
General Principle of law- It is 3rd source of international law.
There is another source of International Law that is General Principle
of law. General Principal are based on moral principle and law of
nature. The statue of ICJ authorities court to apply the General
Principle of law that is recognized by the civilized Nations. The general
principle of law are based on Justice and Equity. It include basic
principle of law which are indisputable.
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Reason for including General Principle of Law – The main reason is
that such situation may arise when there is absence of law relating
exactly to the point.
International law has no method of legislating to provide rules
to regulate the new situation neither it follows the principle of
Hence the provision of general Principle was established as a
source of law to fill the gap and solve problem of non liquet
situation when the court refuse to settle disputes on the ground
rules are not avalaible.
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Judicial Decision and Writing of Publicists
Judicial Decision-Article 38 recognizes a judicial decision
as a subsidiary source of international law but not on the
Article 59 of the statue of ICJ provide that: The decision of
court have no binding force except between the parties
in respect of that particular case. There is no concept of
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Writing of Publicists- Article 38 of statue of ICJ
recognize the teaching of the most highly qualified
publicists of the various nations. The renowned writer
who known world widely their book or their opinion is
also considered as the source of International law. The
nature of Juristic writing carries more weight
particularly in the field of international law.
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According to the Lawrence- He was great eminent jurist according
to him, there is only one source of law that is consent of nations.
This tacit may be either tacit (custom) or express ( treaties).
According to the Oppenheim Treaties and Custom are regard as
source of international law.