This article is written by Monika during her internship with Le Droit India.

Introduction

‘Sources’ is a very ambiguous term.  Regarding the definition of “sources” and what constitutes legitimate and authentic sources, a number of academics and legal experts had differing opinions.  In his book “International Law, a Treatise,” renowned jurist Lassa Oppenheim, whose work mostly focused on analyzing international law, noted that the term “sources of law” refers to a historical truth from which standards of action originated.  In comparison, international law is a relatively recent area of the law.  It comes from both traditional and contemporary sources.  The list is flexible, nevertheless, because international law is dynamic and always evolving.  Over time, numerous new sources have surfaced. In this article , the author will discuss both the kind of sources of law in detail and draw the connection between them.

Conventional Sources

Article 38(1) of the Statute of the International Court of Justice lists the traditional sources of international law.  ‘Formal’ and ‘material’ are two categories for these sources.  Formal sources include custom, treaties, and general principles.  They are legally binding and mandatory for all parties involved in their constitution.  As a result, another name for them is “hard laws.”  The interpretation of those mandatory norms, however, are material sources.  They deal with court rulings and legal doctrines.  The reliability of these sources is now questioned, nevertheless, given the development of international law.  A detailed explanation of the usual sources is provided below.

International Treaties and convention

Convention is one of the formal sources of international law, according to Article 38(1)(a) of the Statute.  It declares that the court must apply specific or general international treaties that the contracting party has specifically acknowledged when rendering a decision in any dispute.  They are legally enforceable contracts that establish reciprocal rights and responsibilities between two or more parties.  A convention or treaty is therefore contractual in nature.  A pact, agreement, covenant, charter, and memorandum of understanding are some other names for them.

Kinds : A treaty must be universal and have an impact on all parties, even those who are not parties to the contract, in order to constitute a source of law rather than merely an obligation.  Consequently, there are two categories of treaties, which are as follows:

1. Law-making treaties: There are many participants to these types of agreements.  As a result, another name for them is multilateral treaties.  Direct application of them as a source of international law is possible.  Furthermore, rather than being unique to the parties in a contract, these treaties have a broad legal status.  They might proclaim universal rules or establish generic rules.  The 1969 Vienna Convention on the Law of Treaties (VCLT), the United Nations Charter, and others are instances of multilateral treaties.

2. Treaty contracts: Usually, two parties enter into bilateral treaties, also known as treaty contracts.  They are written such that they solely serve the purpose and set forth the rights and responsibilities of the parties to the contract.  Furthermore, by including other parties, a treaty that was first signed between two States can be changed into a multilateral agreement that is approved by all.  A bilateral agreement is the 1972 Simla Agreement between India and Pakistan.

International Customary Law                                                       

One of the earliest sources of international law is custom.  Customs were the only source of international law prior to the creation of treaties.  In actuality, a variety of conventions are the result of traditions that have changed to meet the shifting demands of society.  Article 38(1)(b) of the Statute of the International Court of Justice encapsulates international custom.  It is thought to be the standard procedure that is permitted by law.  It is challenging to prove the existence of an international custom in a court of law, nevertheless.  Because of this, tradition has been less significant throughout time, and UN charters and treaties have taken its place.

Meaning of Custom

A custom is a behavior that is routine or accustomed.  Rules of acceptable behavior were established in a primitive culture before laws were formalized.  By birth, it was expected that everyone in the society embraced them.  It became necessary to establish a few principles that were acknowledged as the proper code of behavior as society grew more complex.  International custom laws are the practices that have gained legal support on a global scale.  In the asylum case, the International Court of Justice defined custom as “a constant and uniform usage accepted as law.”

Example of Customary International Law

• Prohibition of Genocide – Recognized as a customary norm, even in the absence of specific treaty obligations.
• Sovereign Immunity – The principle that states cannot be sued in foreign courts without their consent.
• Rules of Warfare – The laws of war, including the treatment of prisoners, are part of customary law.

Conclusion

The foundation of the global legal order is made up of the sources of international law, which include treaties, customary law, general principles, court rulings, and academic publications.  Treaties offer clear agreements, but general principles cover legal voids and customary law guarantees universal standards.  Scholarly publications and court rulings aid in the interpretation and development of these laws.  But there are still obstacles to overcome, such as enforcement issues, disputes over state sovereignty, and developing international concerns like cyber law and climate change.  International law must change to meet new issues as international interactions develop while preserving its efficacy and legitimacy.