Sources Of Law
A 'source of law' means that origin from where the law attains its authority and
coercive agency. It also refers to the sovereign or to the seat of power from
which the law derives its validity. The term "source" is used to connote those
agencies by which rules of conduct acquire the character of law by becoming
objectively defined, uniform, and compulsory.
A source of law is any fact which
in accordance with the law determines the judicial recognition and acceptance of
any new rule as having the force of law. It is the legal cause of admittance by
the judicature of any new principles which will be observed in future in the
administration of justice. Law is an instrument and a means whereby we give
shape to our society. Legal principles grow with the changing society and
consequently old rules are eliminated to give place to the new.
Sources of law,
therefore, differ from system to system and society to society. In common law
system, Constitution, legislation, precedents and custom are recognised as the
legal sources of law and in civil law countries, legislation, customs and
treaties are often declared to be the only sources of law.
Introduction To International Law
International law is also known as "law of nations". It is the name of a body of
rules which regulates the conduct of sovereign states in their relations with
one another. The sources of international law include treaties, international
customs, general and widely recognized principles of law, the decisions of
national and lower courts, etc. They are the materials and processes out of
which the rules and principles regulating the international community are
The primary sources of international law are international
treaties and conventions and international customary law, supplemented by the
principles of natural law and auxiliary judicial decisions and teachings of
authority . These principle sources of international law are enumerated in
Article 38 of the Statute of the International Court of Justice.
The four sources listed by Article 38 are:
- International conventions or treaties establishing rules expressly
recognized by the contesting states;
- customary international law, as evidence of a general practice accepted
- the general principles of law recognized by civilized nations;
- and 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 .
Regardless, it is
generally accepted that international treaties and conventions are of prime
importance and gravity in the formulation of international law.
International Treaties And Conventions
The word "treaty" is used as a generic term embracing all kinds of international
agreements which are known by a motley of different names such as conventions,
pacts, general acts, charters, statutes, declarations, covenants, protocol as
well as the name 'agreements' itself. A treaty may be defined as an
international agreement concluded between States in written form and governed by
A treaty is the agreement between two or more parties to solve an issue that
affects the parties signing the treaty. A convention is the set of rules for the
parties agreeing to the convention to solve an issue that affects larger part of
the world. The Vienna Convention on the Law of Treaties is an international
agreement treaties between states.
Known as the "Treaty on treaties", it delineates the role of international
treaties and conventions as a source of international law. As per Article 2 of
the convention, 'treaty' means 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 .
Basis And Nature Of Treaties As A Source Of Law
Treaties are commonly considered as persuasive law that confers obligations on
parties to it. They are based on the time-tested and enduring principle of
'pacta sunt servanda' or 'agreements must be kept'. It is this very principle
that demands obedience to treaties ratified by nations and essentially forms the
indispensable foundation of a just system governing sovereign nations as equals.
They are voluntary and cannot bind non-signatory to it, however, there is an
exception to it, that is - any rule which forms part of the 'Jus Cogens' norm
(compelling law). 'Jus Cogens' are part of the accepted principles of
International Law and every state has a peremptory/final duty of not breaching
them due to their 'erga omnes' (owed to the whole world) obligations.
In broad terms, treaties are of two kinds:
- Law making Treaties:
These are multilateral treaties and mainly intend to have universal or
- Treaty Contracts:
These treaties apply only between two or small number of states. They are
mainly bilateral treaties .
It is only the first kind, the law-making treaties or the so-called general
treaties, which are intended to have a universal and general application and
thus they constitute a primary source of International Law. Some of the examples
of this kind of Treaty are : the Convention Relating to the Status of Refugees,
the United Nations Convention on the Law of the Sea, the Geneva Conventions, and
the Rome Statute of the International Criminal Court.
The treaty contracts or the so-called particular treaties are not directly a
source of International Law since their application is confined only to the
contracting parties which are two or a small number of States, and they deal
with limited affairs. This kind of treaty does not create new rules of Public
International Law, rather it develops new rules of particular or regional
However, when a significant number of States accept and acknowledge such new
rules formulated in this kind of treaty, as obligatory, these rules will become
part of the Public International Law. Examples of such treaties are bilateral
treaties on commercial and friendship relations, etc. The law-making treaties
constitute a primary source of International Law.
Since the mid-Nineteenth Century, there has been an astonishing development of
law making treaties. The rapid development of this kind of treaty has been due
to the inadequacy of customs in meeting the pressing demands arising from the
changes which have been transforming the whole structure of international life.
Law-making treaties have been concluded to regulate almost every aspect
concerning the international community .
Treaties act as a direct source of rights and obligations for the states and
they codify the existing customary source of law. These conventions are subject
to certain rules that determine their application and authority. They are
consent-based in the sense that States voluntarily agree to be bound by the
terms of a certain treaty; that is, they consent to a treaty. The signing of the
treaty by the representative of a State is either a means of expressing the
final consent of the State to be bound by the treaty, or an expression of
provisional consent subject to ratification, acceptance or approval.
A state is only governed by a treaty if it has ratified it. The means of
expressing consent is dealt with in Article 11 of the Vienna Convention on the
Law of Treaties, which states that 'the consent of a State to be bound by a
treaty may be expressed by signature, exchange of instruments constituting a
treaty, ratification, acceptance, approval or accession, or by any other means
if so agreed' .
The purpose of a treaty is to encourage countries/states to be signatories to it
and increase its universality of application so as to hold them to the same
standard of justice. Some examples of important treaties are: the Charter of the
United Nations, the four Geneva Conventions of 1949, the Vienna Convention on
Diplomatic Relations of 1961, the International Covenant on Civil and Political
Rights of 1966 and the Convention on the Law of the Sea of 1982.
Treaties As Law
Treaties and conventions are significant sources of international law. They are
considered "hard law". Treaties play the role of contracts between two or more
parties, such as an extradition treaty or a defence pact. They can also act as
legislation in order to regulate a particular aspect of international relations
or form the constitutions of international organizations. Article 38(1)(a) of
the ICJ Statute, which uses the term "international conventions", concentrates
upon treaties as a source of contractual obligation but at the same time, it
also acknowledges the possibility of a state expressly accepting the obligations
of a treaty to which it is not formally a party.
For a treaty-based rule to be a source of law, rather than simply a source of
obligation, it must either be capable of affecting non-parties or have
consequences for parties more extensive than those specifically imposed by the
treaty itself . A series or a recurrence of treaties laying down a similar
rule may produce a principle of customary international law.
Further, subsequent independent acceptance may generalize a treaty originally
concluded between a limited number of States. Hence, a treaty is of significant
and evidentiary value as to the existence of a rule, which has crystallized into
law by an independent process of development.
Treaties As Customs
Some treaties are the outcome of codifying existing customary law, such as laws
governing the global commons i.e. those parts of the planet that fall outside
national jurisdiction and to which all nations have access like atmosphere, deep
sea bed. While the intent of a treaty is to establish a code of a general
application, its efficacy depends upon the number of states that ratify or
accede to the particular convention.
Relatively few such instruments have a sufficient number of parties to be
regarded as international law in their own right. The most evident example is
the 1949 Geneva Conventions for the Protection of War Victims which has been
ratified by around 196 countries.
Enforcement Of Treaties
Enforcement of treaties is done through various resolution mechanisms/ judicial
organs like International Court of Justice, the International Tribunal for the
Law of the Sea, the Permanent Court of Arbitration and the dispute settlement
bodies of the World Trade Organization, among others.
Efficacy Of Treaties
Treaties are generally binding only on States which become parties to them
because there is a rule of customary international law – pacta sunt servanda –
which requires all States to honour their treaties. If any state is coerced by
another state to become a signatory to a particular treaty or if any state
threatens any other state for the same, then such a treaty is void as per the
Vienna Convention on the Law of Treaties 1969.
Article 52 of the Vienna Convention on the Law of Treaties 1969 states that, "A
treaty is void if its conclusion has been procured by the threat or use of force
in violation of the principles of international law embodied in the Charter of
the United Nations".
Article 53 of the Vienna Convention on the Law of Treaties 1969 deals with
treaties conflicting with a peremptory norm of general international law ("jus
cogens"). It states that, "A treaty is void if, at the time of its conclusion,
it conflicts with a peremptory norm of general international law.
For the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law
having the same character".
Termination Of Treaties
Article 59-64 of the Vienna Convention on the Law of Treaties 1969 deal with
termination of treaties under various circumstances such as:
- Mutual consent of parties
- Fulfillment of purpose or object
- Expiry of specified period for which a treaty was concluded
- War Between Party States
- Unforeseen change, or circumstances an obligation provided for in the
treaty (Rebus sic stantibus)
- Material Breach
Treaties are a more modern, more deliberate and speedy method of creating law.
They are of growing importance in International Law. Their role in the formation
of new rules of International Law increases day after day. Today, the law-
making treaties are considered the most important primary source of Public
International Law. Thousands of treaties have been registered with the United
Nations since 1946.
At first sight, International Law does not appear to include such law-making
mechanisms comparable to those of the domestic legal system. The primary rules
of International Law mainly come into existence through contractual agreements
between states or the cumbersome process of customary international law.
However, in today's age of globalization, this traditional characterization of
the international law making process has to be rethought.
The treaty making process has been professionalized and institutionalized in
such a way that prohibits its characterization as a merely bilateral process.
International treaties are regularly adopted by majority vote or by consensus
without a formal vote. These institutional features cannot overpower the
requirement of states to sign and ratify the treaty, but they challenge the idea
of the treaty making process as solely dominated by the will of sovereign
From a formalist legal perspective, it might be argued that this change does not
entail an element of international legislation because it is technically still
the states which decide whether they want to be bound. But a more empirical
perspective has to take into account that the fora in which multilateral
treaties are negotiated resemble more an institutionalized parliamentary setting
of law-making than the traditional ad hoc bargaining procedure characteristic of
- Sources of International Law, (December, 2019),
- Anomitra Debnath, Treaties and Customs as a Source of International Law,
- Statute of the International Court of Justice, ss 38, https://www.icj-cij.org/en/statute
- Sources Of International Law: Custom, Treaties, General Principles And
Judicial Decisions, http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/UNIT_II.pdf
- Vienna Convention on the Law of Treaties 1969, article 2, https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
- Tanya Agarwal, Origin, Sources of International Law including Customary
Rules, (5 January, 2020), https://blog.ipleaders.in/sources-international-law/#Convention_as_a_source_of_International_Law
- Marlon Konchellah, Customs and Treaties as a Source of International
Law, (16 March, 2011), http://mkonchellah.blogspot.com/2011/03/customs-and-treaties-as-source-of.html
- Sources Of International Law: Custom, Treaties, General Principles And
- Vienna Convention on the Law of Treaties 1969, article 11, https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
- Treaties as Law, (December, 2019),
- Vienna Convention on the Law of Treaties 1969, article 52,
- Vienna Convention on the Law of Treaties 1969, article 53, https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf