Sources of International Law Yash Asawa International Law Fri, Sep 01, 2023, at ,02:09 PM IntroductionThere is no single system of laws that can interpret and extend the law because international law is comprehensive in nature and a synthesis of many different sources, yet it still exists and can be determined.The principles of international law can be gleaned from and examined in various sources. Lawrence claims that if we take the source of law that possesses all the authority necessary to give it binding force, then there is only one source of law with regard to international law, and that source is the assent of Nations. This approval may be implied (by custom) or expressed (by treaties).The international conventions and treaties are significant sources that make up the traditional source of international law. International Law's Primary Sources can be divided into primary and secondary sources, each of which is described in turn below.Primary SourcesFormal language is used in primary sources of international law. They originate from institutions that are governed by laws, customs, and treaties. Widely regarded as the foundation of the official source of international law, Article 38(1)(a-c) of the ICJ statute. It is widely considered as a reliable assertion of the origins of international law. The Hague International Court of Justice Statute Article 38 has been regarded as a handy index of global legal resources.Article 38 of the ICJ statute: The same clause in the law of the Permanent Court of International Justice, which operated in 1920 under the guidance/support of the Legal of Nations, served as the basis for the adoption of Article 38(1)(a)-(c) of the ICJ. The following list of primary sources of international law is cited in the article:The Source of International Law: Custom the earliest and original sources Custom is the name for law. The principles of customary international law underwent a protracted historical process before becoming accepted by all parties. Because customary law does not have a written source, it might be inferred from state practice and behavior. A customary law rule is considered to contain two components: First, there must be widespread and consistent State practice. Secondly, there has to be “opinio Juris”, a Latin term which means a legal obligation to believe in the existence of such law. Features of Customary LawUniform and generalState practice must be uniform, consistent, and widespread in addition to being accompanied by the conviction that the practice is compulsory rather than habitual in order to give birth to binding standards of customary international law. In the Asylum Case, the court ruled that a customary rule that can be traced back to state practice must be applied consistently and consistently throughout history.DurationA norm of customary law is believed to be a particular conduct that is consistently and regularly used. The International Court of Justice (ICJ) ruled in the North Sea Continental Shelf cases that there is no set period of time during which the practice must continue. Simply said, it must be adhered to for a sufficient amount of time to demonstrate that other customary conditions are met.An opinion of LawThe rule in question must be viewed by the state as binding in law, meaning that the states must believe they have a duty to uphold the practice. Only then can it be considered to constitute customary international law. Opinio Juris was regarded as a crucial component of customary international law in the Lotus case, and this was further supported in the North Sea Continental Shelf Cases.Convention as a source of International LawOne of the most important sources of international law is treaties and conventions. These agreements may be bilateral or multilateral. Multilateral conventions are the agreements that define how the law would be applied universally or generally. Bilateral conventions, on the other hand, are only constituted by two states to address a specific issue involving these states.A treaty is defined as an agreement between two or more nations that creates or seeks to create a relationship between them governed by international law by the Vienna Convention on the Law of Treaties of 1969. The existing customary source of law is codified by treaties, which serve as a direct source of rights and obligations for the nations.They are voluntary and cannot bind non-signatories, but there are some exceptions to this rule, such as when a rule is part of the Jus Cogens norm because it is one of the accepted principles of international law, in which case every state has a peremptory duty to uphold due to their ergaomnes obligations. (owed to the whole world).General Principle of International LawThe majority of contemporary jurists agree that, to the extent that they apply to the interactions between States, general principles of law are shared by all national legal systems. In comparison to a municipal system, international law has fewer instances that have been decided, and there is no mechanism for legislating to establish norms to handle novel circumstances. This is the rationale behind the inclusion of the phrase "the general principles of law recognized by civilized nations" as a source of law in Article 38.Examples of general principles include the following:1. The court's affirmation of the res judicata principle in Genocide Convention Bosnia and Herzegovina v. Serbia and Montenegro,2. Pacta sunt servanda norms made applicable, Damage brought on by the error must be repaired.3. The individual's right to self-defense against attack on his person, family, or community in the event of a clear and present danger,4. No one can be a judge for their own case, and the judge must hear both sides.Secondary source (Evidence of International law)The material source of international law, commonly referred to as the secondary source, includes Article 38(1)(d). According to this, although they are advisory rather than binding, judicial rulings and the teachings of the world's best publicists also contribute to the establishment of international law.Judicial DecisionThis gives the court the authority to use earlier rulings, which are also known as examples of international law. However, this is subject to the exception set forth in Article 59 of the statute, which states that an earlier ruling of the court can only serve as guidance and is not legally binding.This article gives the court a rule stating that precedents are not binding, but that the court may nonetheless rely on its prior decisions' res judicata and advisory opinions to support the current case as authoritative evidence of legal position.Through its advisory opinions, case laws, and judge's rule, the ICJ has a significant influence on the creation of legislation. One of the most notable examples of this is the rule that was established by the court in the Nicaragua v. USA case, which is now regarded as a component of customary international law, prohibiting the use or threat of force. International arbitral awards and decisions made by national courts are also included in the court's judgment. One such example is the Alabama Claims arbitration, which helped usher in a new era of peaceful international dispute resolution by utilizing both court and arbitration processes more frequently.Another example of the effects of arbitral decisions is the Island of Palmas case, which shows how crucial it is for a ruling to be unanimous or almost unanimous in order for the law to advance. It aids in offering a unified perspective for the interpretation of the pertinent problem, aiding in the avoidance of disagreement throughout the development of international law.Other sources of International LawArticle 38 is not all-inclusive because international law is not based on a set of rules. The adoption of declarations and recommendations by the UN General Assembly, international morality and equality, and other variables are among the many others that influence how international law is used.The resolutions and declarations passed by assemblies have an unavoidable influence on the course that contemporary international law has taken because the world is continually changing and the challenges are getting more complicated. The manner states vote in the General Assembly and the justifications offered on those occasions serve as proof of state custom and knowledge of the law.For instance, in the case of the USA v. Nicaragua, the General Assembly had asked the court for an advisory decision on the issue of "is the threat or use of Nuclear weapons in any circumstances permitted under International Law?" The court determined that the threat or use of nuclear weapons would generally be against the laws of international law applicable to armed conflicts, particularly the principles and laws of humanitarian law, after reviewing the pertinent international legal instrument as well as the Security Council's General Assembly resolution on the matter.Several cases have made reference to the idea of equity. The tribunal in the 1968 Rann of Kutch Arbitration between India and Pakistan agreed that equity was a part of international law and that the parties could therefore rely on these concepts when arguing their claims.As more urgent demands for the rapid development of international law codified by the International Law Commission arise, the UN has offered a genuine compliment for the gap created in what is supposed to be an accurate reflection of other sources of international law. Additionally, its activities have positively affected lawmaking methods by resolutions and faster means by 15 members of the Security Council and 191 members of the General Assembly.States and International OrganisationA legal system is given a set of obligations and rights under international law so that they might exercise them on a global scale. Different international organizations have the right to file a claim if their rights are violated since they are considered to be the owners of those rights under customary law.The nature and scope of certain rights and obligations determine these bodies' personalities in the main. Determine the interrelationships between these bodies and their capacity to uphold claims in accordance with their rights and obligations in light of the development of international law. States, international organizations, regional organizations, non-governmental organizations, and individuals are examples of these bodies.StatesTo the largest extent possible, states have international legal personality. As the main hub for the aggregation of civilization's social activities, they make up one of the most significant worldwide organizations.The Recognition-Creation of Statehood doctrine A new state or an existing state is given a formal acknowledgement of being a member of the international community under the international concept of recognition of the state. The entity of a community state may be established in accordance with Oppenheim and Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933, if it possesses the following features: Defined Territory Population Government Capacity to enter into a relationship with another state But as of now, no clear pattern has been identified that serves as a particular foundation for the acknowledgment of statehood in accordance with the aforementioned standards. These clauses are neither exhaustive nor unchangeable. The authority to enter into a treaty, become a party to it, have its succession recognized, and join the UN are only a few of the privileges that come with being recognized as a nation in the form of rights, obligations, and immunities. There are two competing hypotheses regarding recognition.Declaratory TheoryThe theory was propounded by eminent jurists such as Fisher and Brierly, under this theory the independence of a new state does not take into account its acceptance by other states. The theory has been given in Article 3 of the Montevideo Convention where it recognizes the existence of a new state does not depend upon the mind of the existing state’s consent.Consecutive TheoryOppenheim put out this view, according to which a state must be acknowledged by other sovereign states in order to be regarded as an international entity and exercise its obligations. The theory emphasizes that other states must recognise a state before it can use its exclusive rights; it does not advocate the absence of states.Terms and functions mentioned in the UN CharterThe United Nations Charter does not use the word "resolution" once. It contains many words like "decision" or "recommendation" that refer to the approval of resolutions without defining the procedure to be applied. An international agreement is the United Nations Charter. It gives the Security Council permission to make decisions and offer recommendations while acting on behalf of the members. The charter makes no mention of binding or non-binding resolutions. The United Nations Organization was said to have both stated and implied powers, according to the International Court of Justice's (ICJ) advisory opinion in the 1949 "Reparations" case. The Court cited Articles 104 and 2(5) of the Charter, noting that the members had granted the Organization the necessary legal authority to carry out its obligations and complete its tasks as outlined in the Charter and that they had agreed to give the United Nations all assistance in any action taken in accordance with the Charter. The UN members "consent to acknowledge and enforce Security Council decisions in accordance with this Charter," according to Article 25 of the Charter. The Practice Repository for United Nations Organs, It was emphasized at the time that these obligations also stemmed from the power granted to the Council by Article 24(1) to act on behalf of the members in the performance of its duty to uphold international peace and security. When the UN Charter's Article 24 is construed in this way, it becomes a source of power that can be used to resolve issues that aren't covered by the more specific clauses in following Articles. According to the Repertory on Article 24, "the statement whether Article 24 confers general powers on the Security Council ceased to be the subject of discussion regarding the advisory opinion of the International Court of Justice on the matter of Namibia on 21 June 1971." The Security Council never bothered to cite the particular UN Charter article or articles upon which its decisions were based while exercising its jurisdiction. When none is specified, a constitutional interpretation is required. This occasionally raises questions about the distinction between a recommendation and a decision, as well as the significance and meaning of the phrase "in accordance with this Charter." Decisions made by the Security Council have legal force. Instead of passing a resolution in the absence of agreement or a vote, the council may choose to issue a non-binding presidential statement.General Assembly ResolutionsA resolution of the UN General Assembly is put to a vote in the General Assembly by all UN members. A simple majority vote is typically required for resolutions of the general assembly to be approved. A two-thirds majority is necessary, however, if the entire Assembly decides that the topic may be a "important issue" by a simple majority vote; "important issues" are matters that have a significant bearing on maintaining international peace and security, welcoming new members to the United Nations, suspending membership rights and privileges, expelling members, operating the trusteeship system, or budgetary questions. While the General Assembly's decisions often aren't binding on member states, internal resolutions may be enforceable on how the General Assembly operates on its own, for example in budgetary and procedural matters.ConclusionAll the sources discussed above all can be found in UN practice and where they can’t be found they bow to Security Council resolutions and it will remain binding on members and even non-members, whose aberration can be confronted with sanctions. It is argued that the UN has provided a real complement to the gap created by what is supposed to be an accurate reflection of other sources of international law, and its activities have positively affected law-making by means of resolutions and faster means by 15 members of the Security Council and 191 members of the General Assembly.References Bowett’s International Institutions, pp. 6–9. El Erian, ‘Legal Organization’, p. 58. https://chilot.blog/wp-content/uploads/2011/06/international- organizations.pdf https://foreignpolicy.com/2010/04/13/how-does-the-u-s- decide-which-governments-to-recognize/ 5. 145 F.2d 431 (1944); 12 AD, p. 29. The Sources of International Law’ (Lawteacher.net, October 2019) <https://www.lawteacher.net/free-law- essays/international-law/the-sources-of-international- law.php?vref=1> accessed 27 October 2019. Available at: https://www.academia.edu/27871613/PUBLIC_INTERNATIONAL Sources of International law In the light of Article 38 of the International Court of Justice By Shagufta Oma. The Sources of International Law’ (Lawteacher.net, October 2019) <https://www.lawteacher.net/free-law- essays/international-law/the-sources-of-international- law.php?vref=1> accessed 27 October 2019. Peter Malanczuk & Akehurst’s Modern Introduction to International Law, (London: George Allen & Unwin, 1997); 49. The additional clause relating to recognition by ‘civilised nations’ is regarded today as redundant: see e.g. Pellet, ‘Article 38’, p. 769. Israr Khan, Article 38 of the Statute of the International Court of Justice: A Complete Reference Point for the Sources of International Law, THE NEW JURIST, 5th April 2019. https://www.ilsa.org/Jessup/Jessup15/Montevideo%20Conventio http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus