INTRODUCTION

Article 38 of the ICJ Statute lists different sources of international law in cases of
disputes arising under International Law. These sources are derived from treaties and
conventions, agreements, international customs, general principles of law recognized by
civilized nations, judicial decisions as well as teachings of renowned publicists. This
article is very often cited as an authoritative text that enumerates applicable law in the
jurisprudence of various courts whenever a dispute arises among subjects of International
Law. Thus, out of all articles of the Statute, this assumes a position of particular
importance, since parties often expect it to be applied in cases before other tribunals in
addition to the ICJ. The need for peaceful coexistence, cooperation and understanding
leads to the creation of multiple international organizations and further entrench the need
for the international law. This paper will examine the article 38 of the statute of the
international court of justice as a source of international law and its implications.

The Statute of the ICJ, Art. 38 identifies five sources:-

 Treaties between States;

 Customary international law derived from the practice of States;
 General principles of law recognized by civilised nations; and, as subsidiary
means for the determination of rules of international law:
 Judicial decisions and the writings of “the most highly qualified publicists”.

Sources of International Law

For a rule of international law to be binding, it must be derived from one of the
recognized sources provided by Article 38(1) of the Statute of the International Court of
Justice 1945. They are the authoritative and conventional sources of international law
being an integral part of the United Nations Charter.

Although Articles 38 (1) of the statute of the ICJ have been provided in principle to
provide guide and directions to the International Court of Justice in administering justice,
it is mentioned whenever there is any meaningful discussion on the sources of
international law. It is frequently referred to and reproduced in subsequent instruments of
international law even though it is only limited to the International Court of Justice.

Article 38 (1) of the Statute of the ICJ (widely recognized as the most authoritative and
complete statement as to the source of IL) provides that:

“the Court whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting parties;
b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognised by civilised nations;

d. 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.”

It would be interpreted briefly that the primary sources of international law are
international conventions, international customs and the general principles of law.
Besides judicial decisions and the teachings of the highly qualified publicist would be
counted as subsidiary sources to be applied when a dispute emerges in the field of
international relations.

Treaties

Article 38 refers to ‘international conventions, whether general or particular, establishing

rules expressly recognised by the contracting states’. In International Law the term
‘international conventions’ connotes ‘international treaties’. A treaty is defined as “ an
international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.

Treaties are known by a variety of differing names, ranging from Conventions,

International agreements, pacts, General acts, charters Declarations and Covenants. All
these terms refer to a similar transaction, the creation of written agreements whereby the
states participating bind themselves legally to act in a particular way or to set up
particular relations between themselves.

Article 2 (1) of the Vienna Convention on the Law of Treaties, 1969 defines a treaty for
the purpose of the Convention as ‘an international agreement concluded between states in
written form and governed by international law, whether embodied in a general
instrument. Treaties shall be complied with Article 26 of the VCLT, 1969 states, every
treaty in force is binding upon the parties to it and must be performed by them in good
faith.”1

Treaties may be divided into ‘Law making treaties’ which are intended to have universal
or general relevance, and ‘Treaty-contracts’ which apply only as between two or a small
number of states.

1
I A Shearer, Starke’s International Law, 11th ed. pp.37
Moreover, even where a treaty provision is not intended to be codificatory but rather is an
innovation designed to change the rule, it can become part of customary law if it is
accepted in practice. See, e.g., the North Sea Continental Shelf cases (1969)2:

‘Although the passage of only a short period of time is not necessarily, or of itself, a bar
to the formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement would be that within
the period in question, short though it might be, State practice, including that of States
whose interests are specially affected, should have been both extensive and virtually
uniform in the sense of the provision invoked; - and should moreover have occurred in
such a way as to show a general recognition that a rule of law or legal obligation is
involved.’ (ICJ Reps, 1969, p. 43)

International customs

The second source of international law listed in Art. 38 (1) of the Statute of the
International Court of Justice is ‘international custom, as evidence of a general practice
accepted as law’. It is placed on the same footing as international conventions as a
primary source of international law. A custom generally refers to an established pattern of
behavior that can be objectively verified within a particular social setting i.e., “what has
always been done and accepted by law.” Custom may lead to prescription which a right
enjoyed through long custom rather than positive law.”

International customs have been regarded as one of the prominent sources of international
law for a long time. It is the oldest and original source of international as well as law in
general.3

As confirmed by the ICJ in the Nicaragua case4, custom is constituted by two elements,
the objective one of ‘a general practice’, and the subjective one ‘accepted as law’, the so-
called opinio juris.

In the Continental Shelf case5, the Court stated that the substance of customary
international law must be ‘looked for primarily in the actual practice and opinio juris of
States’. A new rule of customary international law cannot be created unless both of these
elements are present. The Court has held that practice alone is not enough to create

2
(1969), I.C.J. Rep. 3
3
Oppenhiem’s International Law, note 4, p 25.
4
The Republic of Nicaragua v. United States of America - Case concerning the Military and Paramilitary
Activities in and against Nicaragua (1986) ICJ 1
5
Libya v. Malta - Case concerning the Continental Shelf (1985) ICJ 13.
international custom as required by Art. 38 (1) (b) of the ICJ Statute. Further the Court
has held a rule cannot be created by opinio juris without actual practice.

General Principles of Law recognized by the civilized nations

This source is listed the third after international conventions and international customs.
The Court shall apply the general principles of law in cases where treaties and customs
provide no rules to be applied. Notably, there is no agreement on what the term “general
principles of law” means. Some say it means general principles of international law;
others say it means general principles of national law. Actually, there is no reason why it
should not mean both; the greater expansion in the meaning of this term, the greater
chance of finding rules to fill the gaps in treaty law and customary law. Indeed,
international tribunals had applied general principles of law in both senses for many years
before the Permanent Court of International Justice was established in 1920.
Nevertheless, there are various opinions as to the origin of the general principles of law.
Some regard them as being originated from the Natural Law which underlies the system
of International Law and constitutes the criteria for testing the validity of the positive
rules. Others regard them as stemmed from the national legal systems and have been
transplanted to the international level by recognition6. Whatever the meaning of the term
“general principles of law” and the origin of these principles, these principles are
considered to be at the foundation of any legal system, including International Law.
Actually, there is an agreement that the general principles of law do constitute a separate
source of International Law.

Para (1) (c) of Article 38 of the statute of International court of justice lists general
principles of law recognized by civilized states as the third source of international law.

Examples of general principles of law are the principles of consent, equality,

administration of justice, good faith, reciprocity, forbidding abuse of right and res
judicata.

In the Rann of Kutch Arbitration7 between India and Pakistan in 1968 the Court agreed
that equity formed part of international law and that accordingly the parties could rely on
such principles in the presentation of their cases.

Judicial decisions

Article 38(1)(d) refers to judicial decisions as a subsidiary means for the determination of
rules of law. In contrast to the position in common law countries, there is no doctrine of
binding precedent in international law. Indeed, the Statute of the ICJ expressly provides
that a decision of the Court is not binding on anyone except the partiers to the case in

6
M.N. Shaw, International Law, 7th ed. pp. 93
7
Rann of Kutch Arbitration (India v. Pak.) (The Indo-Pak. Western Boundary Case Trib. 1968)
which that decision is given and even then only in respect of that particular case (Article
59). Nevertheless, the ICJ refers frequently to its own past decisions and most
international tribunals make use of past cases as a guide to the content of international
law, so it would be a mistake to assume that “subsidiary” indicated a lack of importance.
Article 38(1)(d) does not distinguish between decisions of international and national
courts. The former are generally considered the more authoritative evidence of
international law on most topics (though not those which are more commonly handled by
national courts, such as the law on sovereign immunity). But decisions of a State’s courts
are a part of the practice of that State and can therefore contribute directly to the
formation of customary international law.

Awards of the international arbitral tribunals cannot be treated as a source of international

law. These jurists have rightly too pointed out that in most of the arbitral cases,
arbitrators act like mediators and diplomats rather than as judges. The Kutch Award
(1968) bears testimony to this fact.

Decisions of the municipal courts according to Oppenhiem are not a source of law in the
sense that they directly bind the state from whose courts they emnate.

The Teachings of the most highly qualified publicists of the various Nations.

The scope of the ICJ source of international law, “writings of most highly qualified
publicists” includes authoritative writings by well-regarded scholars and jurists.
However, the Statute is silent on the meaning of “most highly qualified. The influence of
writers such as Gentili, Grotius, Pufendorf, Bynkershoek and Vattel were considered
authorities in determining the scope, form and content of international law is unparallel.
Today, however, juristic writings are considered only as a material or evidential source
only. They are used as a method of discovering what the law is on any particular point
rather than as the source of actual rules, and the writings of even the most respected
international lawyers cannot create law. There is considerable debate amongst the
scholars as regards the relevance of subsidiary sources under Art. 38(1)(d) of the ICJ
Statute. Hudson states “judicial decisions and the teachings of publicists are not rules to
be applied, but sources to be resorted to for finding applicable rules. Scholars themselves
have treated Article 38(1)(d) as not only subsidiary, but also qualitatively different than
the primary sources.

The importance of the works of the jurists has been stressed by justice gray in paquete
Habana8,”....where there is no treaty and no controlling executive of legislative act or
judicial decision, resort must be had to the customs and usages, of civilized nations and
as evidence of these, to the works of jurists and commentators who by years of labour,

8
(1990) 175 U.S. 677 p.700.
research and experience have made themselves peculiarly well-acquainted with the
subjects.”

CONCLUSION

There are different sources of international law such as treaties, customary international
law and general principles of law. In their actual application, however, these sources are
closely interrelated they often interact by supplementing and replacing each other often a
rule created in one type of source later emerges in the form of another source. Thus, these
typical sources of international law ought never to be viewed in isolation. The law-
making process in the current international system is far from ideal, it is poorly
coordinated and rather haphazard. Considering this structural weakness the system works
surprisingly well most of the time However, this should not induce complacency. The
nature and the magnitude of present and prospective global challenges require fresh
thinking in the sphere of intenational law. It will require creativity to come up with
innovative ideas and techniques and much courage to implement them effectively