Sources of International law

In the light of the

Article 38 of the International Court of Justice

By
Shagufta Omar
Lecturer International Islamic University and
Thesis Writer MS Human Rights
Faculty of Shariah and Law IIUI

1
Electronic copy available at: http://ssrn.com/abstract=1877123

International conventions and treaties are amongst the most important formal sources of
modern international law, also termed as conventional sources. Though formally the
most widely applicable and emanating source of international law (creating force of
application), they are neither the only source nor the most authoritative one, for creating
rights and obligations under international law. For any study of the sources of
international law Article 38 of the Statute of the International Court of Justice1 is always
the starting point,2 which is recognized as a definitive statement of the sources of
international law. It states:
1. 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 recognized
by the contesting States;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
1

Statuate of International Court of Justice, Article. 38, available at: http://www.icjcij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_II (last visited on 18.12.10). Article 38 of
ICJ replicates a similar provision in the statute of its predecessor, the Permanent Court of International
Justice.
2

See generally, Abdul Ghafur Hamid, Sources Of International Law: A Re-Evaluation, IIUM Law Journal,

11:2 (2003),2-3, available at:

http://staff.iiu.edu.my/ghafur/Published%20Articles/Sources%20of%20International%20Law%20%20A%20Reevaluation.pdf ,.(last visited on 12.12.10).and V. D. Degan, Sources of international law,
(Netherlands: Martinus Nijhoff Publishers, 1997), available at:
http://books.google.com.pk/books?id=K0pTp1qCc9UC&printsec=frontcover&dq=Sources+of+internationa
l+law++By+Vladimir+%C4%90uro+Degan&source=bl&ots=3KBWN_6yQN&sig=jF2iwgZUQSEbD3obc
bEJJP0EuG4&hl=en&ei=hXMETcrVOMjTrQfS_IGRDw&sa=X&oi=book_result&ct=result&resnum=1&
ved=0CBQQ6AEwAA#v=onepage&q&f=false, (last visited on 12.12.2010)., S. K. Verma, An Introduction
to Public International Law, (Prentice Hall of India Pvt. Ltd. 2004)

2
Electronic copy available at: http://ssrn.com/abstract=1877123

(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 the rule of law
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.
It is to be discussed in the essay whether is it exhaustive in detailing all the sources of
international law? or there are other sources as well? What are the other sources? and is
there any hierarchy between them? Discussing the term sources and various sources of
international law3; the statements regarding authority of conventions and treaties as sole
sources of international law will also be examined.
Law is a tool to regulate the mutual relations of any society and hence international law is
assumed to regulate society of nations in their mutual relations. According to Blacks
Law Dictionary law is, which is laid down, ordained, or established,4 and the
international law is, which regulates the intercourse of nations; the law of nations.5
Almost all standard earlier works defined international law as a system of legal rules and
principles binding upon nations only in their mutual relations, definitions given by
Oppenheim,6 Hall,7 and Brierly8 reflect the same.
3

Courts same approach towards

Primary and secondary, customary and conventional, formal and material sources of international law

Blacks Law Dictionary, 700. available at http://blacks.worldfreemansociety.org/2/L/l0700.jpg (last

visited on 11.12.10)

Ibid, 649.

According to Oppenheim, International law is the body of rule: which are legally binding on states in
their intercourse with each other. Oppenheims International law, Ninth Edition, vol. 1, PEACE, (ed. Sir
Roberts Jennings and Sir Arthur Watts) (Pearson Education, Universal Law Publishing Company, 1996)
(first Indian Reprint, 2003), 4.
7

Hall says International law consists of certain rules of conduct which modern civilized states regard as
being binding on them in their mutual relations with one another with a force comparable in nature and
degree to that binding the conscientious person to obey the laws of his country and which they also regard
as being enforceable by appropriate means in case of infringement. W. E. Halls, International Law,
(London: Stevens and Sons. Ltd., 1950), 8.

According to Brierly, Law of Nations or international law may be defined as the body of rules and
principles of actions which are binding upon civilized states in their relations with one another.
J. L. Brierly, The Law of Nations, Edited by Humphrey Waldock, (London: oxford University Press, 1963),
1.

international law is reflected in definitions provided in cases such as: QueenVs.Keyn

(1876);9 S.S.Lotus case (1927);10 and West and Central Gold Mining Co. Ltd v. King
(1905).11
Application of international law to ever changing situations in the world has resulted in
continuous restructuring of law.

With significant developments relating to the

establishment of international institutions and organizations after World War II, the scope
of international law has also changed. Now the international law is said to govern the
relations between states and international organizations and between international
organizations and private persons.12 A more contemporary definition therefore expands
the traditional notions of international law to confer rights and obligations on
intergovernmental international organizations and even on individuals13, such as given by
Prof. J. G. Starke,14 and Schwarzenbergers15.
The question of sources is fundamental in any system of law.
continuous activity in any viable legal system.

Law making is a

International legal system can

accommodate the changing requirements for regulation by: law making in new areas; and
by upgrading and refinement of existing laws, in the light of its law sources. Considering
9

In Queen v. Keyn (1876), Lord Coleridge, CJ., defined, International law as the law of nations is that
collection of usages which civilized states have agreed to observe in their dealings with one another. cited
by TW Balch Arbitration as a term of international law , 1915, available at:
www.jstor.org/stable/111096 ( last visited on 11.12.10).
10

In S.S.Lotus Case. PCIJ series A, No 10 (1927), international law is defined as the principles which are
in force between all independent nations, cited by Verma, An Introduction to Public International Law, 1.
11

In West and Central Gold Mining Co. Ltd v. King (1905) 2KB 91,International law was defined as the
form of the rules accepted by civilized States as determining their conduct towards each other and towards
each others subjects. cited by Verma An Introduction to Public International Law, 1.
12

Verma An Introduction to Public International Law, 2.

13

The free Dictionary available at; http://legal-dictionary.thefreedictionary.com/International+Law, (last

visited on 11.12.10).

14

Starke has stated that: International law consists of a system of laws, the majority of which applies to
states but also regulates activities of individuals and international organizations when it becomes the
concern for the international community. Cited by Chamara Sumanapala, International Law: Conventions
and Customs,(Dec 5, 2010), available at: http://www.suite101.com/content/international-law-conventionsand-customs-a316939#ixzz17omhh0Q5, (last visited 11.12.10).
15

Schwarzenberger defines international law as the body of legal rules which apply between sovereign
states and such other entities as have been granted international law personality. G. Schwarzenberger ,
International law, vol. 1.. (London: Stevens and Sons Ltd, 1957), 3.

the sources of international law it is realized that the term sources implies many
different, sometimes, conflicting meaning.16 Herbert Briggs pointing the confusion of
the term sources17 describes it as the methods or procedures by which international
law is created.18 George Schwarzenberger proposed the term law creating process for
primary sources i.e. treaties, customs and general principles of law; and law determining
agencies for subsidiary means for determination of law, i.e. judicial practice and
doctrines.19

Oppenheim discussing its various meanings

20

differentiates between

formal and material sources: formal being the source from which the legal rule derives its
legal validity; and material providing the substantive content of that rule, e.g. the formal
source of custom may have its material source found in a treaty concluded.21 Salmond
also holds the same opinion.22 It can therefore be said that there are, in the context of
international law, recognized and accepted methods by which legal rules come into
existence (formal sources) as well as several ways in which the precise content of legal
rules can be identified (material sources).23

16

Degan, Sources of international law, 1.

17

with: (1) basis of international law i.e. basis of obligation of the law; (2) with causes i.e. factors
influencing its development, which have been sometimes understood by some writers as material sources
of international law, or (3) its evidences, sometimes confined to documentary evidences in which the
substantive rules find expression. Cf., Herbert Briggs, The law of Nations, 2nd ed., (New York, 1952), 44.
18

Ibid.

19

According to him law creating processes lay emphasis on the form by which any particular rule of
international law is created, whereas in case of law determining agencies emphasis is on verification of an
alleged rule. Schwarzenberger , International law, 26-27. See also Degan, Surces of international law, 8.
20

Various meanings such as cause, basis and evidence and observes an unavoidable degree of flexibility
and overlap in use of such terms. Discussing the difference between basis of law (common consent of
international community), causes of law (particular circumstances in the development of communities,
suggesting need for a rule of conduct), and sources of rules of law (process by which it first becomes
identifiable as a rule of conduct with legal force and from which it derives its legal validity), he concludes
that sources of the rules of law distinct from the basis of the law, are as a whole related to the basis of the
legal system , Sir Robert Jennings, Sir Watts Arthur, Oppenheims International Law, (Indian Branch:
Peerson Education, 1996), 23.
21
Ibid
22

According to Salmond, a formal source is that from which a rule of law derives its force and validity.
The material sources, on the other hand, are those from which is derived the matter and not the validity of
the law. The material source supplies the substance of the rule to which the formal source gives the nature
and the law. J. W Salmond, Jurisprudance, 7th ed. (London: Sweet and Maxwell, 1924), para 44, See also,
Hamid, Sources Of International Law, A Re-Evaluation 2-3.
23

Hamid, Sources Of International Law: A Re-Evaluation, 2-3.

It is important that Article 38 of ICJ is generally regarded as an authoritative statement of

the sources of international law, though it does not mean to provide a list of the sources
of international law. These provisions are in fact, expressed in terms of the function of
the Court. The first three sources listed i.e. treaties, custom, and principles of law, are
sometimes referred to as "primary sources", where as the last two, judicial decisions and
the teachings of publicists are referred to as subsidiary or "secondary sources" or
evidence of international law rules.
According to Article 38 1(a) of ICJ, conventions whether general or particular are the
first source of International law. Whenever an international dispute is decided, its first
application of the law is to find a treaty application on the issue. In the presence of a
treaty on related issue the decision is based on it. Historically treaties are the second
source of international law.24 They were developed to give particularity to rules of
mutual conduct, than was provided by a custom.25 The word convention means a
treaty and whatever the nomenclature26 is, the substance is the same: it is an agreement
made between two or more States or other subjects of international law.27
Long before the establishment of UN and ICJ, in the 19th and 20th centuries, many
treaties and conventions played a great role in the development of international law, such
as Geneva Convention 1864, Hague Conventions of 1899 and 1907, Treaty of Locarno
1925, to name a few. After establishment of UN in 1945, treaty acquired the most
important mode of development of international law, starting from Bill of Rights28 and
various sectoral instruments29 under the United Nations Treaty Series many thousand
treaties have been registered with the United Nations.

24

Jennings, Arthur, Oppenheims International law, 31.

25

Ibid

26

International agreements may have various names: treaties, conventions, protocols, pacts, covenants,
statutes, final acts, and so on.

27

Hamid, Sources Of International Law: A Re-Evaluation, 4.

28

UN Charter 1945, UDHR 1948, ICCPR 1966, ICSER 1966

29

CEDAW 1979, CRC 1989, ICRD,

Vienna Convention on the Law of Treaty 1969, the codified law for contracting treaties,
gives the definition, A treaty is an agreement whereby two or more states establish or
seek to establish a relationship between them governed by international law.30 Consent
to a treaty may be expressed by signature, ratification, or accession, and is binding on the
parties to it, who shall perform the treaty in good faith by applying the maxim pacta sunt
servanda.31 Treaties which codify already existing customary law32 or which have in fact
attained the status of customary law33 are binding on non-party states as well. Treaties
could be a direct source of international law or reflective of a customary or general
principles of law as evidence. International treaties could be law making treaties34 or
treaty contracts.35

Provisions of Law-making treaty are directly the source of

international law.36
Second source indicated in Article 38 1 (b) is Custom. Custom is the oldest and the
original source of international law as well as law in general.37 It is the foundation stone
of the modern law of the nations.38 When a usage receives the general acceptance or
recognition by the states in their mutual relations, it is understood that such habit or usage
30

Vienna Convention on the Law of Treaty, 1969, Article 2, available at:

http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXIII~1&chapter=23&Temp
=mtdsg3&lang=en , (last visited on 18.12.10).
31

Whether multi lateral or bilateral, universal or regional

32

e.g. International Humanitarian Law (Geneva Conventions and Hague Conventions), Genocide
Conventions, Convention Against torture (CAT)1984, Vienna Convention on Diplomatic Relations, 1961.

33

UN Charter 1945 and Universal Declaration of Human Rights (UDHR) 1948.

34

Law-making treaties are those agreements whereby states elaborate their perception of international law
upon any given topic or establish new rules which are to guide them for the future in their international
conduct. Such lawmaking treaties, of necessity, require the participation of a large number of states to
emphasize this effect, and may produce rules that will bind all. Law making treaties could be either
enunciating rules of universal international law, e.g, Un Charter, or one laying down general principles
such as Geneva Conventions on the Law of the Sea (1958 and 1960) or Vienna Convention on the Law of
Treaties, 1969. See generally L.N. Tandon and S .k. Kapoor International Law,(Lahore: Mansoor Book
House, 2010), 101-102, and Malcolm N. Shaw, International Law,( United Kingdom: Cambridge
University Press 2008), 95. available at; www.cambridge.org , (last visited on 16.12.10).

35

Treaties dealing with special agreements between parties to the contract. The provisions of such treaties
are binding only on the parties to the treaty. Such treaties also help the formation of international law
through the operation of the principles governing the development of customary rules
36

Starke, J.G.(Joseph Gabriel), An Introduction to International law , (London: Butterworths, 1977), 48.

37

Jennings, Arthur, Oppenheims International law, 25.

38

Dixon Martin, International Law, (London: Blackstone Press Limited, 2000), 28.

has become right as well as obligation of the states; it becomes a custom.39 The mere fact
that a custom is widely followed does not make it a rule of international law rather it
must be accepted by the states as legally binding in order to be considered rules of
international law, referred to as opinio juris. Depicting this fact the Article 38 (b)
describes international custom as evidence of general practice accepted as law which
makes clear two essential elements of custom, namely practice and opinio juris. Judicial
application of international custom is understood in the ICJ rulings in S.S. Lotus case,40
North Sea continental Shelf case,41 Nicaragua v. Unites States of America case,42 West
Rand Central Gold Mining Company Ltd. v. R.,43 Asylum case between Columbia and
Peru,44Advisory Opinion On use of Nuclear Weapons (1996)45 etc.

Although an

international court in the first instance is bound to consider an applicable treaty

provisions, in case of doubt, it is interpreted against the customary rule. In case of any
conflict of a treaty provision with a jus cogen, it will prevail over the treaty.

39

Tandon and Kapoor, International Law, 95.

40

In S.S. Lotus case (Turkish International Water) PCIJ series A, No 10, (1927), it was held that a new
rule of customary international law can not be created unless both these elements as discussed are present.
Cited by Hamid, Sources Of International Law: A Re-Evaluation, 16.
41

In North Continental shelf case, ICJ Rep. 1969, at p.3, p.44, it was held not only must the acts
concerned be a settled practice, but they must also be such or be carried out in such a way as to be evidence
of a belief that this practice is rendered obligatory by the existence of a rule requiring it, the states
concerned must feel they are conforming to what amounts to a legal obligation. Cited by Jennings, Arthur
Oppenheims International law, 28.
42

In Nicaragua v. Unites States of America case (1986), it was held that in order to deduce the existence
of customary rules the court deems it sufficient that the conduct of the states in general should be consistent
with such a rule and that instances of state conduct inconsistent with a given rule should have been treated
as breach of that rule not as indication of the recognition of a new rule. Cited by Hamid, Sources Of
International Law: A Re-Evaluation , 12. and by Shaw, International Law,78.

43

In West Rand Central Gold Mining Company Ltd. v. R. (1905) 2K.B. 291, a test regarding the general
recognition of custom was laid down. The court ruled that for a valid international custom it is necessary
that it should be proved by satisfactory evidence that the custom is of such nature that it has received
general consent of the States and no civilized State shall oppose it. Cited in Tandon and Kapoor
International Law, 99.
44

In Asylum Case (1950) it was held that where a local or regional customs is alleged, it is the duty of the
proponent to prove that this custom is established in such a manner that it has become binding on the other
party. Cited in Tandon and Kapoor, International Law, 99.
45

In Advisory Opinion on the Use of Nuclear Weapons (1996), it was held that no rule can be created on
opinion juris without state practice.

General principles of Law recognized by the civilized nations are the third source of
international law, listed in Article 38 1 (c). Most modern jurists accept that general
principles of law are principles of law common to all national legal systems, in so far as
they are applicable to relations of States.46 They also mean rules or standards which we
find repeated in much the same form in the developed systems of law, either due to
common origin, or expressing a necessary response to certain basic needs of human
associations. Examples are: the rules of pacta sunt servanda, that contracts must be kept;
reparation must be made for damage caused by fault; the right of self defense for the
individual against attack on his person, family, or community against clear and present
danger; for ones own cause no one can be a judge; and that the judge must hear both
sides.47 Perhaps the most important general principle, inherent in international legal
rules, is that of good faith, enshrined in the United Nations Charter,48 and its elaboration
in the Declaration on Principles of International Law Concerning Friendly Relations and
Co-operation among States adopted by the General Assembly in resolution 2625 (XXV),
1970.49 The main objective of inserting this paragraph in Article 38 is to fill in gaps in
treaty and customary law and to meet the possibility of a non liquet.50

Judicial

applications of general principle are provided by the Arbitration Tribunal in the AMCO v.

46

Peter Malanczuk , Akehursts Modern Introduction to International Law, (London: George Allen &
Unwin , 1997); 49; Dixon, Textbook on International Law, 39; Cassese, Anthonio, International Law,
(Oxford University Press, 2001) 156, cited by Hamid, Sources Of International Law: A Re-Evaluation, 16.
47

J.E.S. Fawcett, The Law of Nations,( London, 1968), 24-25.

48

which provides in article 2(2) that all Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with
the present Charter, cited by Shaw, International Law, 103,104.
49

Where it referred to the obligations upon states to fulfill in good faith their obligations resulting from
international law generally, including treaties. It therefore constitutes an indispensable part of the rules of
international law generally , described by Shaw, International Law.104.
50

Non liquet means the possibility that a court or tribunal could not decide a case because of a gap

in law. Remarkably, the ICJ applied the doctrine of non liquet in the Nuclear Weapons case, Advisory
Opinion, (1997) 35 ILM 809 and 1343. See generally, Hamid, Sources Of International Law: A ReEvaluation, 17.and Shaw, International Law, 98.

Republic of Indonesia case,51 Nuclear Tests case,52 Chorzow Factory case in 192853,
Barcelona Traction case (1970),54 Administrative Tribunal case,55and others.
Fourth and fifth sources of law are enumerated in Article 38 1 (d) of the Statute of the
International Court of Justice, whereby it directs the Court to apply 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. Judicial decisions therefore do not make law
but are declaratory of pre-existing law qualifying them as, indirect, law identifying or
material sources of law. Article 59 of the Statute of the International Court of Justice,
provides that decisions of the courts have no binding force, except for the parties and in
respect of the case concerned. Contrary to the Common Law the doctrine of precedence
does not exists in international law, still we find that the Court itself in its decisions, the
states in their disputes and legal writers in their scholarly works quote judgments of PCIJ

51

Where it was stated that the full compensation of prejudice, by awarding to the injured party the
damnum emergens and lucrum cessans is a principle common to the main systems of municipal law, and
therefore, a general principle of law which may be considered as a source of international law. cited by
Shaw, International Law, 103.
52

The International Court declared in the Nuclear Tests cases that: One of the basic principles governing
the creation and performance of legal obligations, whatever their source, is the principle of good faith.
Trust and confidence are inherent in international co-operation, in particular in an age when this cooperation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in
the law of treaties is based on good faith, so also is the binding character of an international obligation
assumed by unilateral obligation. Nuclear Test case (Australia v France), Judgment of 20 December 1974,
ICJ Rep. 1974, 268, para, 46; cited by Shaw, International Law, 104.

53

In the Chorzow Factory case in 1928, PCIJ, Series A, No. 17, 1928, p. 29; 4 AD, p. 258, which followed
the seizure of a nitrate factory in Upper Silesia by Poland, the Permanent Court of International Justice
declared that it is a general conception of law that every violation of an engagement involves an obligation
to make reparation. The Court also regarded it as: a principle of international law that the reparation of a
wrong may consist in an indemnity corresponding to the damage which the nationals of the injured state
have suffered as a result of the act which is contrary to international law, cited by Shaw, International Law,
100.
54

In Barcelona Traction Case (1970), for example, the Court has acknowledged the concept of the limited
liability company to be found in domestic law systems, cited by Hamid, Sources Of International Law: A
Re-Evaluation, 17.
55

In the Administrative Tribunal case,123 the Court dealt with the problem of the dismissal of members of
the United Nations Secretariat staff and whether the General Assembly had the right to refuse to give effect
to awards to them made by the relevant Tribunal. In giving its negative reply, the Court emphasized that:
according to a well-established and generally recognized principle of law, a judgment rendered by such a
judicial body is res judicata and has binding force between the parties to the dispute. Cited by Shaw,
International Law, 101.

10

and ICJ as an authority.56 Thus even as a subsidiary source, judicial decisions are
important in the determination of the existence of the legal rules and their content. A
unanimous, or almost unanimous, decision plays an important role in the progressive
development of the law, e.g. the decisions and advisory opinions in the Reparation57,
Genocide,58Fisheries59, and Nottebohm60 cases have had decisive influence on general
international law.61
Article 38 1 (d) also includes as a subsidiary means the teachings of the most highly
qualified publicists of the various nations. With marked influence in the history of
international law from 16th-18th c writers such as Gentili, Grotius, Pufendorf,
Bynkershoek and Vattel were considered authorities in determining the scope, form and
content of international law;62 today juristic writings are considered a material or
evidential source only. Textbooks 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.
As said in the beginning of the essay Article 38 of ICJ is not exhaustive statement for
describing sources of international law as since its formulation in 1945, many changes in
the international community have taken place. Other Sources which have contributed
and are considered important in the constant development of the international law
include: declarations of Security Council,63 binding on member states; Non-legally

56

Shaw, International Law, 110.

57

Reparations for Injuries Suffered in the Service of the United Nations case, (1949) ICJ Rep. 174, cited by
Hamid, Sources Of International Law: A Re-Evaluation, 18.
58

Reservations to the Genocide Convention case, (1951) ICJ Rep. 15.cited by Abdul Ghafur Hamid,
Sources Of International Law: A Re-Evaluation, 18

59

Anglo-Norwegian Fisheries case, (1951) ICJ Rep., 116.cited by Hamid, Sources Of International Law: A
Re-Evaluation, 18.

60

Nottebohn case, (1955) ICJ Rep. 4.cited by Hamid, Sources Of International Law: A Re-Evaluation, 18.

61

Hamid, Sources Of International Law: A Re-Evaluation,18.

62

Shaw, International Law, 112.

63

Which has the competence to adopt resolutions under articles 24 and 25 of the UN Charter binding on all
member states of the organization

11

binding instruments, often referred to as soft law,64 such as declarations, resolutions,

and recommendations adopted by the UN General Assembly65and various international
organizations;66 and conferences,67International comity and morality;68 and equity,69(a) in
the sense of considerations of fairness and reasonableness,(b) in a more strictly legal
sense regarded as forming part of certain rules of law, general principles of law,70 or (c)
in the sense of Article 38 (2) of ICJ, which empowers the court , if the parties to a case
agree, to decide the case ex aequo et bono.71 ICJ has not yet given any judgment on the
64

According to Professor Antonio Cassese, soft law instruments, short of reaching full consensus of view
to agree for a binding commitment, have three main common features; indicative of modern trends, matters
of new concern for international community, and having economic, political or other factors. Cited by
Hamid, Sources Of International Law: A Re-Evaluation, 21.
65

Resolutions of the General Assembly are generally not legally binding and are merely recommendatory,
putting forward opinions on various issues with varying degrees of majority support. This reflects the
intention that the GA was to be basically a parliamentary advisory body with the binding decisions being
taken by the Security Council. Nowadays, the situation is somewhat more complex. The Assembly has
produced a great number of highly important resolutions and declarations, which have definite impact upon
the direction adopted by modern international law. The manner of states voting and the explanations given
upon such occasions reflect evidence of state practice and states consideration of law. The Court in the
Nicaragua case tentatively expressed the view that the opinio juris requirement could be derived from the
circumstances surrounding the adoption and application of a General Assembly resolution. It noted that the
relevant opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the
Parties [i.e. the US and Nicaragua] and the attitude of States towards certain General Assembly resolutions,
and particularly resolution 2625 (XXV) entitled Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
ICJ Reports, 1986, pp. 14, 99100; 76 ILR, pp. 349, 4334. Shaw, International Law, 6th ed., 115.
66

Over the 50 years after establishment of UN and ICJ the most significant change in the international
community has been the increased number of international organizations and their significant role

67

also contribute to the formation of international law, but indirectly.

68

Mutual relations of states are based on the principle of comity and morality, rules which are not legally
binding. Oppenheim gives the example of exemption of custom duty granted to diplomatic envoys not as
rule of international law but as a rule of comity. Though comity is not a source of international law but
many a rule which formerly was a rule of international comity only is nowadays a rule of international law.
Jennings, Arthur, Oppenheims International law, 51.

69

In the Barcelona Traction case (I.C.J. rep. (1970), pp. 3,5, Sir Gerald Fitzmaurice emphasized the need
for a body of rules and princiles of equity in the field of international law. Cited by Tandon and Kapoor
International Law, 109.
70

The tribunal in the Rann of kutch arbitration held that since equity formed part of international law the
parties were free to present and develop their case with reliance on principle of equity. In such case equity
requires legal character and is applied not just as equity but as part of a legal rule. Jennings, Arthur,
Oppenheims International law, 44.
71

Latin term meaning "according to the right and good" or "from equity and conscience". In he context of
arbitration it refers to the power of the arbitrators to dispense with consideration of the law and consider
solely what they consider to be fair and equitable in the case at hand. Wikipedia, Ex aequo et bono,
available at: http://en.wikipedia.org/wiki/Ex_aequo_et_bono , (last visited on 17.12.10).

12

basis of Article 38 (2).72

State papers exchanged during their mutual diplomatic

relations, state guidance for their officers by their legal advisors, and judicial reason
through which principles are discovered, could also be some other subsidiary sources of
international law.73
The above arguments and cases point towards the conclusion that Article 38 is quite
comprehensive in detailing major formal and material sources of international law;
describing treaties, customs and general principles as the major formal sources;74
providing general principles as filling the gaps between customary rules and treaties; and
as subsidiary means providing judicial decisions,75 which has now become a trend setting
evidence of immense value in determining the rules of law, reflected in the teachings of
the most highly qualified publicists of the various nations which are also described as
subsidiary means, under the same provision of the article.76 Judicial decisions however,
will remain subsidiary as they are fact specific and apply to the states concerned only.
Subject to states concerned consent provision of equity is also available in 38 2. Still the
Article cannot be considered totally exhaustive in its provisions as other subsidiary means
provided in the preceding paragraphs are also contributive in the complexed ever growing
matters of international community, in the spheres of public as well as private
international law.
Since treaties have become a major source of international law, considering the statement
of international conventions and treaties as the only considerable way in creation of
international law, it is quite clear from the above discussion, that it is not correct. It is
also concluded that one of the distinctive feature of international law making is the
absence of any hierarchy between custom and treaties as sources of law, with even more
force of jus cogens or peremptory norms of general international law, prohibition against
torture or non refoulement for instance. States may not derogate from jus cogens through
treaties or customary rules even. It follows that jus cogens is hierarchically superior to all
the other rules of international law.

72

Jennings, Arthur, Oppenheims International law, p. 44

73

Tandon and Kapoor International Law, 108.

74

Article 3 1 (a) (b) (c)

75

Article 3 1 (d)

76

Ibid

13

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