Ans. Sources - The first five sources find mention in
Article 38 of the Statue of International Court of
Justice.
(1) International Conventions - The term
"convention" applies to any treaty, protocol or
agreement, regardless of its title or form. According
to Article 38 of the Statute of International Court of
Justice, it is the first source of international law. In
the modern period, international treaties are the
most important sources of international law. As
defined by Article 2 of Vienna Convention on the
Law of Treaties. 1969, "a treaty is an agreement
whereby two or more States establish or seek to
establish relationship between them governed by
international law."
(2) International Customs - International Customs
used to be the most important source of international
law in the past. In the modern period, their
importance has lessened. Custom is a habit which
has been repeated for a long time and has ultimately
assumed the force of law. Usage is the earlier stage
of the development of custom. By usages mean
those habits which are often repeated by the States.
Custom begins where usage ends. Usages may be
inconsistent and opposed to each other, but so is not
the case with custom.
(3) General Principles of Law recognised by the
civilized States. - According to Article 38 of the
Statute of International Court of Justice, the general
principles of law recognised by the civilized nationsare also one of the sources of international law. This
is an important source of law through which
international law adapts itself in accordance with the
changing times and circumstances. Res Judicata,
estoppel, etc are the examples of the general
principles of law recognised by civilized States. The
general principles of law are those principles which
are recognised by most of the civilized States. When
the court finds that a principle has received general
recognition, the court may apply it as a principle of
international law.
Chorzow Factory (Indemnity case), [Pub. P.C.1.J.
(1938), Series A, No. 17). - In this case, the
Permanent Court of International Justice applied the
principle of res judicata also held that one who
violates a rule is liable to make reparation.
(e) Mavrommatis Palestine Concessions Case, [Pub.
P.C.l.J. (1924), Series A, No. 2] - In this case the
Court applied the general principle of subrogation.
(g) Bracelona Traction Case, Preliminary Objections,
(I.C.J. Rep (1964), p. 6] - In this case also the
International Court of Justice applied the principle of
estoppel.
(4) Decisions of Judicial and Arbitral Tribunals -
The decisions of Judicial and Arbitral Tribunals are
also the sources of International Law. But according
to Article 38 of the International Court of Justice,
they are subsidiary means for the determination of
the rules of law. This source includes international as
well as State decisions. As regards the decisions of
the International Court of Justice, Article 59 of theStatute of International Court of Justice provides that
they will have "no binding force except between the
parties and in respect of that particular case". Since
the doctrine of precedent does not apply in field of
international law the international judicial decisions
are not generally binding. They are regarded as
subsidiary means for the determination of the rules
of international Law. The arbitral decisions have still
less value because it is generally said that arbitrators
work more as mediators rather than as judges.
(5) Justice Works. - The opinions of jurists are also
regarded as sources of International Law. But they
are also subsidiary means for the determination of
the rules of international law. While deciding the
case, if the court does not find any treaty or judicial
decision or legislative act or any established custom,
the court may take the help of opinion of jurists as
subsidiary means for the determination of rules of
international law.
(6) Decisions or determinations of the organs of
international institution - In the modern age the
decisions or determinations of organs of international
institutions are also treated as sources of
International Law. International organisations have
also become a subject of international law. The
decisions and determinations of the organs of such
institutions are also, therefore, regarded as the
source of international law because they help in the
development of customary rules or international law.
The International Court of Justice has recognized it
in a number of cases such as South West African
Cases (1996) EE.) A Ot) itioS inCases (1996), Military and Para Military Activities in
and against Nicaragua, (1986).