Week 3 - Sources of International Law

Lecture 3

Sources of International Law

  1. What is Source?
  2. What is source of Law?
  3. What is Source of International law?
  4. Types of Sources of International Law

 

 
 

 

Formal Sources / Primary Sources                              Subsidiary / Material Sources

(Law Making Sources)                                                (Law Identifying Sources)

a. Treaties                                                                    d. Judicial decisions

b. Custom                                                                    e. Writings of Jurists

c. General Principles of Law

  1. Treaties

 

  1. Definition of Treaty:

An International Agreement concluded between ststes in written form and governed by international law.

 

  1. Kinds of Treaties:

 

 
 

 

 

 

 

 

According to its NatureAccording to Parties

 

Law MakingBilateral Treaty

UN Charter 1945, VCLT 1969CPEC, Simla Agreement

 

Treaty ContractsPlurilateral Treaty

Extradition treatiesSAARC, EU, OIC

 

Treaty of ConveyancesMultilateral Treaty

Purchase of Alaska 1867UN Charter, VCLT 19699, UNCLOS 1982

 

  1. Principles of treaties:

 

Pacta Sunt Servanda

Promises are to held in good faith.

 

Pacta Tertiss Nec Nocent Nec Prosunt

Only Parties are bound by the treaty.

 

Rebus Sic Stantibus

Fundamental Change in circumstances/Impossibility of performance

 

  1. Different Nomenclature of Treaties

 

  • Convention
  • Covenant
  • Pact
  • Declaration
  • Agreement
  • Protocol
  • Statute
  • Charter

 

  1. Custom

 

  1. What is custom?

Custom is accepted or habitual practice. Specific Practice of long time.

  1. Difference between Custom and Usage?

 

  1. Two tests for determination of custom

 

 
 

 

 

 

Material Quantitative                                                  Psychological/ Qualitative

i)Repetition of Acts                                                    i)Opinio Juris Sive Necessitatis

ii)Atiquity                                                                   An opinion of law or necessity

  1. Universal and General

 

  1. General Principles of Law

Those general principles of law which are recognised by the civilised nations.

Rule of Estoppels

Res Judicata

Res Sub Judice

 

  1. Judicial Decisions

 

Doctrine of Stare Decisis is not applicable in International Law. A previous judgement is not binding on the other cases.

Article 59 of the Statute of the ICJ prevents the court that to apply particular principle in the matter of others.

 

  1. Writings of Jurists

 

Justice Gray’s Ruling

“Where there is no treaty, no custom, no judicial decision, resort must to the commentators who by years their labour, research and experience have made themselves peculiar with the subject.”

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