Pragya Sharma

20131034

TRADITIONAL AND MODERN SOURCES OF
INTERNATIONAL LAW

INTRODUCTION
International Law is created by the sovereign states. This law, which is created,
governs the people. It also governs as to how a state functions, the diplomatic
relations, military issues and state territory. The whole mechanism of states exercising
control over the making and development of international law add to its effectiveness.
There is another side to this i.e. that there will be a lot of delay and obstruction in
making essential or beneficial alterations in the law if it clashes with the states
interest. It is to be noted that the field of international law has no supreme power or
body the makes laws. It is only the states that come together and give their consent
over s particular issue, which then goes on to, becomes a law. Article 38 of the
International Court of Justice identifies four major sources of international law:

a. Customs
b. International Conventions and Treaties
c. General Principles of Law
d. Opinions and written work of the highly qualified jurists
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CUSTOMS
Unlike the national system of law, customs are more popular in international law,
which basically reflects international laws powerlessness to foster for a professional
process of written law making. In a society the people living there set or follow
certain rules and a particular pattern of behavior, which ultimately determines what is
right and wrong. These rules are developed subconsciously and are upheld because of
communal pressure. Anything, which is followed over a long period of time, becomes
a custom, which means that even a treaty if continuously followed will eventually
become a custom. They are not, at least in the early stages, written down or codified,

1
See http://www.icj-cij.org/documents/?p1=4&p2=2
Pragya Sharma
20131034
and survive ultimately because of what can be called an aura of historical legitimacy.
2

Customs evolve over time. They are referred to understand the needs and values of
the society. This whole practice is based on a legal obligation or opinio juris. Along
with state practice, opinio juris is the second element crucial to determine a legally
binding custom. Opnio juris denotes a commitment on behalf of a state that it is
bound a particular law. The objectors to a customary law are not bound by it after its
establishment, however they can always chose to abide by it whenever they wish to
do so. Apart from this the principle of law a state cannot derogate from is jus cogens.
3


There are various problems with customs. One of it is that it is difficult to prove
customary international law. Also customary law is extremely vague subject to
contradictory interpretations.


INTERNATIONAL CONVENTIONS AND TREATIES
Treaties are regarded as the most palpable source if international law. It can also be
called a more formal form of customs. When two countries come together and agree
upon a certain issue, it becomes a treaty. Treaties are known by different names such
as Conventions, International Agreements, Pacts, General Acts, Charters, through to
Statues, Declarations and Covenants.
4
Treaties can be either bilateral or multi lateral.
Example of multilateral treaties is Law of Diplomatic Relations and the Law of the
Sea. Some treaties have been quite successful and have brought solidity to certain
areas in international law. One such treaty is the Vienna Convention on Diplomatic
Relations. The VCDR is accepted almost universally. It deals with the procedure on
how to make treaties, what should it consist of, how should it be ratified, how can it
be terminated.
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Any treaty made should be in accordance with the provisions of the
Vienna Convention.

2
See R. UNGER, LAW IN MODERN SOCIETY, London 49 (1976)
See also R. DIAS, JURISPRUDENCE, chapter 9 (5
th
edn, London., 1985), and
H.L.A HART, THE CONCEPT OF LAW (Oxford., 1961)
3
Maxwell Chibundu, Sources of International Law, http://thinkafricapress.com/international- law-
africa/sources,
4
See e.g. UKMIL 404 (BYILS., 70)
5
See generally, R. R. BEXTER, INTERNATIONAL LAW IN HER INFINITE VERIETY, (CAMBRIDGE
UNIVERSITY PRESS)
Pragya Sharma
20131034
The making of a treat involves several stages. First, a political body has plan. Second,
it needs to be accepted by political body such as the General Assembly of the United
Nations. Thereafter a conference is held where the treaty is finalized.
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There is something called as reservations. Reservations mean that a country can chose
to be no longer bound by a certain clause or a provision of a treaty. Other countries
(parties to the treaty) may oppose this reservation. Unless all the parties agree to the
reservation, the reservation cannot be made. However it is to be noted that a
reservation, which defeats the whole purpose of the treaty, cannot be legal and
therefore cannot be allowed. A party that does not sign and ratify a particular treaty is
not bound by its terms. This rule was established and illustrated in the North Sea
Continental Shelf cases.
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GENERAL PRINCIPLES OF LAW
General principles of law as a source are considered equal to a treaty or customary
law.
8
It fills the gaps between treaties and customs. General principles of law are
derived when two national legal systems are compared. Anything, which is common
to both the systems, becomes a general principle of law. These principles are most
used by international tribunals. One problem with these principles is that one cannot
be practically expected to compare all the national legal systems. General principles
of law are sometimes viewed as a pronouncement of Natural Law concepts.
International judicial reference has also been made to the concept of res judicata, that
is that the decision in the circumstances is final, binding and without appeal.
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6
See generally, CHRISTOPH SCHREUER, SOURCES OF INTERNATIONAL LAW, SCOPE AND APPLICALTION
4 (Emirates Lecture Series 28)
7
Continental Shelf, 1969 I.C.J Reports 29, 54, 3, 25; 41 ILR
8
Id
9
The Corfu Channel Case, (Albania. v. UK.), I.C.J Reports, 248, 1949
Pragya Sharma
20131034
OPINIONS AND WRITTEN WORK OF THE HIGHLY QUALIFIED JURISTS
This is considered to be a subsidiary means of international law. Originally in Natural
Law, it was juristic opinions that were critical and the value of court decision was
less. With the rise of positive law and the prominence on treaties, customs, the
importance of such writings began to decline. Since there is no supreme authority, the
responsibility to inject an element of coherence is upon the publicists.
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Countries
may and may not agree to what publicists say and to their views. Sovereign states
have a right to accept only those laws that carter to its musts and preferences.

Apart from these four main traditional and modern sources, there are various other
sources such as judicial decisions, unilateral acts, and international law commission.
International law is an evolving area of law and there is no such exhaustive list of
sources.






10
INTERNATIONAL LAW, MALCOLM N. SHAW 113 (Cambridge university press., 6
th
edn)