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 developed [1].

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 [2]. 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:

1. International conventions or treaties establishing rules expressly recognized by the contesting states;
2. customary international law, as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. 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 [3].

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 International Law[4].

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 [5].

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[6].

In broad terms, treaties are of two kinds:

1. Law making Treaties:
   These are multilateral treaties and mainly intend to have universal or general relevance.
    
2. Treaty Contracts:
   These treaties apply only between two or small number of states. They are mainly bilateral treaties [7].

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 application.

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 [8].

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' [9].

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 [10]. 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"[11].


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"[12].

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
• Withdrawal
• War Between Party States
• Unforeseen change, or circumstances an obligation provided for in the treaty (Rebus sic stantibus)
• Material Breach

Conclusion
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 states.

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 treaties.

End-Notes:

1. Sources of International Law, (December, 2019), https://en.wikipedia.org/wiki/Sources_of_international_law
2. Anomitra Debnath, Treaties and Customs as a Source of International Law, https://www.legalpedia.co.in/articlecontent/treaties-and-customs-as-a-source-of-international-law.html
3. Statute of the International Court of Justice, ss 38, https://www.icj-cij.org/en/statute
4. 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
5. Vienna Convention on the Law of Treaties 1969, article 2, https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
6. 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
7. 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
8. 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
9. Vienna Convention on the Law of Treaties 1969, article 11, https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
10. Treaties as Law, (December, 2019), https://en.wikipedia.org/wiki/Sources_of_international_law
11. Vienna Convention on the Law of Treaties 1969, article 52, https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
12. Vienna Convention on the Law of Treaties 1969, article 53, https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf