Name Areeba Azhar

Roll no 03
Assignment Sources of International law
Submitted to Mam Riffat
Date. 13-11-23

Sources of Law
Sources of international law are defined under Article 38 of the ICJ Statute. Article 38 lists
sources of international law for the court to follow when overseeing proceedings between
member states of the United Nations, or states that have become parties to the ICJ Statute. The
Statute provides that the court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:

1) International conventions, whether general or particular, establishing rules expressly

recognized by the contesting states.
2) International custom, as evidence of a general practice accepted as law.
3) The general principles of law recognized by civilized nations.
4) 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.

• International custom
Prior to the practice of negotiating multilateral treaties after WWII, international law consisted
primarily of customary rules. Custom has evolved through a long historical process by which
state practices and recognition of the binding character of those practices have become
normative rules. The rationale for custom is that it rests on the consent of sovereign or equal
states. The creation of custom can be slow and its content uncertain, and it has been replaced
to a large extent by multilateral treaties, but custom nontheless continues to contribute
significantly to international law. Customary international law consists of rules that derive from
“a general practice accepted as law” and exist independent of treaty law. Unlike treaties,
customary international law is not written.
To prove that a certain rule is customary,
1) There must be objective evidence of state practice
2) The international community must believe that such practice is required as a matter of
law – this subjective element is known as opinio juris.

• International conventions
The 1648 Peace Treaties of Westphalia established the framework for modern treaties and
recognised the right of the sovereign to govern free from outside interference.
The Vienna Convention on the Law of Treaties is the UN agreement that codifies the rules that
guide treaty relations between States. The Convention provides an international legal
framework for these relations in times of peace (the effect on treaties of the outbreak of
hostilities between States is explicitly excluded from the reach of the Convention). This
framework includes the rules on the conclusion and entry into force of treaties, their
observance, application, interpretation, amendment and modification, and rules on the
invalidity, termination and suspension of the operation of treaties. By providing this legal
framework, the Convention promotes the purposes of the UN set forth in its Charter, including
the maintenance of international peace and security, the development of friendly relations
between states and the achievement of cooperation among nations.
The treaty text may provide for the manner by which it takes effect. Generally, treaties will enter
into force when it has been signed and ratified by a certain number of parties. Parties to a treaty
may ratify a treaty with reservations or other declarations unless the terms of the treaty place
restrictions on those actions. A reservation is a country’s attempt to modify certain terms of the
treaty, as it applies between itself and other countries. Multilateral treaties are published in sets
such as the United Nations Treaty Series (UNTS).

• General principles of law

The ‘general principles of law as recognised by civilized nations’ have been traditionally
recognised by courts as a source of international law, using judicial reason and logic to abstract
the normative rule.
Even without treaties, there would be some international law, since not all disputes are
confined to the territory of one nation-state. For example, in In re the Bremen, a US company’s
disagreement with a German company was heard in US courts. The US courts had to decide
where the dispute would properly be heard. In giving full effect to a forum-selection clause, the
US Supreme Court set out a principle that it hoped would be honored by courts of other nations
—namely, that companies from different states should honor any forum-selection clause in their
contract to settle disputes at a specific place or court.
• Teachings of ‘Highly Qualified Publicists’
The writings of jurists are important in describing and analysing evolving norms and identifying
general principles of law. In the absence of decisions of international tribunals, the body of
international legal doctrine depends on the articulation of jurisprudence in books and journal
articles.
The Statute of the International Court of Justice recognizes that international tribunals may also
refer to the teachings of preeminent scholars on international law. The ICJ, for example, often
referred to the scholarly writings of Sir Hersh Lauterpacht in its early decisions. Generally,
international tribunals are not bound by stare decisis (i.e., they may decide each case on its
merits). However, courts such as the ICJ do refer to their own past decisions for guidance.
There are many international tribunals, including the European Court of Justice, the ICJ, and the
International Criminal Court. Typically, however, disputes between corporations or between
individuals that cross national boundaries must be resolved in national court systems or in
arbitration.