5 Sources of International Law

PERTANYAAN

What are the sources of international law? According to Article 38 of the Charter of the International Court of Justice, what about the formal sources of international law? Thank you.

INTISARI JAWABAN

In international law, the substance of international law can come from state practice. However, the formal sources of international law are regulated in Article 38 paragraph (1) ICJ Statute or the Charter of the International Court of Justice. What are the categories and examples of these sources of international law?

Please take a look at the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of 5 Sumber Hukum Internasional, written by Renata Christha Auli, S.H., and was published on Thursday, 27 April 2023.

This is an updated article with the same title, first published on Monday, 20 June 2022.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of Sources of International Law

According to Mochtar Kusumaatmadja, the source of law is the answer to the question of where we can find the law.[1] In the context of international law, the substance of international law can be sourced from state practice, the practice of international organizations, the practice of entities other than states, and the writings of international law experts.[2]

J.G. Starke uses the term material sources which is defined as the actual materials used by international law scholars to determine the law applicable to a particular situation. According to J.G. Starke, the sources of international law consist of:[3]

1. custom or international custom;
2. treaties;
3. decisions of courts or arbitral bodies;
4. juridical or juristic works; and
5. decisions or decrees of organs of international organizations.

Mochtar Kusumaatmadja defines the sources of international law as a number of provisions contained in Article 38 paragraph (1) ICJ Statute, which consist of:[4]

1. international conventions;
2. international custom;
3. general principles of law; and
4. judicial decisions and the teachings of the most highly qualified publicists of the various nations.

The provisions of Article 38 paragraph (1) ICJ Statute, are as follows:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom, as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. 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

It is important to note that the sources of international law in the article above do not have a hierarchical connection.[5]

To continue answering your question about Article 38 of the Charter of the International Court of Justice or the ICJ Statute, it can be concluded that according to Article 38 of the Charter of the International Court of Justice, the formal sources of international law can be divided into international treaties, international custom, general principles of law, court decisions, and the teachings of the most prominent scholars from various countries. The following is a complete description of these sources of international law.

1. Function of International Conventions

International treaties have a very important role in international law. International conventions have various other terminologies, such as treaties, international agreements, pacts, general acts, charters, statutes, declarations, and covenants.[6]

International treaties serve as a means to enhance international cooperation. One of the advantages of international treaties compared to customary international law is that they are written, making it easier to prove compared to unwritten customary international law.[7]

International treaty according to Article 2 paragraph (1) letter (a) 1969 Vienna Convention/VCLT 1969 is an international agreement concluded between States in written form and governed by international law.

Based on the number of participants, international treaties can be divided into bilateral, trilateral, multilateral, regional, and universal.[8] Examples of international treaties are UNCLOS 1982, SUA Convention, ReCAAP, VCLT 1961, and others.

2. International Custom/Customary of International Law

According to Martin Dixon, customary international law is a law that develops from the practice or habits of states. Customary international law must be distinguished from custom (usage) or international courtesy (international community) or friendship. Welcoming state guests with special ceremonies, rolling out red carpets, garlanding flowers, blasting cannons, and blowing trumpets is not customary international law. Therefore, the non-performance of these actions by a state cannot be prosecuted as a violation of international law.[9]

The elements of customary international law include:[10]

1. Factual element, meaning a common practice by states that is carried out repeatedly over a long period of time;
2. psychological element (opinion jurissive necessitas), meaning that to test the existence of a customary law it is not enough just to look at the practice of countries, but it is necessary to know why the state is practicing like that. This must be followed by a belief in the state, that what they practice is an obligation or law that must be obeyed not just habitually.

In customary international law, there is the principle of persistent objector, meaning that it is still possible that there are some countries that are not bound by customary international law, or in other words reject customary international law continuously. Evidence of such objection or rejection must be clearly presented by a state.[11]

3. General Principles of Law

General principles of law are principles of law in general, which are not only limited to international law but also in civil law, criminal law, environmental law, and others. Some examples of general principles of law include:[12]

1. pacta sunt servanda;
2. good faith;
3. res judicata;
4. nullum delictum nulla poena legenali;
5. nebis in idem;
6. retroactive;
7. good governance;
8. duty to cooperate;[13] etc.

 

4. Judicial Decisions

Court decisions or court decisions in Article 38 paragraph (1) ICJ Statute are additional sources of law to the sources of law above. However, this does not mean that international court decisions have a lower position than the sources of law above them. Court decisions can stand on their own as the basis for decisions made by judges, and can be used to strengthen the sources of law above them. It should be noted that similar court decisions in similar cases can give rise to customary international law.[14]

An example is the 1952 Anglo-Norwegian Fisheries Case, where judges created a new provision in international law for the delimitation of the territorial sea by taking into account the geographical conditions of a region. Later, in the 1949 Reparation for Injuries Suffered in the Service of the UN case, judges created a new rule that the United Nations ("UN") as an organization could claim compensation under international law.[15]

5. Teachings of the Most Highly Qualified Publicists

As for the teachings of the most eminent scholars, it should be noted that these teachings are also called juristic works or doctrines. These juristic works are not binding law, however, many of them have been of tremendous significance in the development of international law. For example, Gidel's opinion on additional zones at sea was followed by many scholars and eventually became customary international law. Later, Alfred Pedro's opinion on the concept of the common heritage of mankind became a recognized concept in the high seas zone and deep ocean seabed.[16]

This is our answer, hopefully, you find it useful.

Legal Basis:

1. Statute of the International Court of Justice, accessed on Thursday, 27 April 2023, at 16.35 Western Indonesian Time (zone);
2. Vienna Convention on The Law of Treaties 1969, accessed on Thursday, 27 April 2023, at 16.45 Western Indonesian Time (zone).

Reference:

1. Anthony Aust. Handbook of International Law. UK: Cambridge University Press, 2010;
2. Atip Latipulhayat. Hukum Internasional: Sumber-Sumber Hukum. Yogyakarta: Sinar Grafika, 2021;
3. Ekram Pawiroputro. Hukum dan Lembaga Internasional: Modul 1. Tangerang Selatan: Universitas Terbuka, 2016;
4. G. Starke. Introduction to International Law: 7th Edition, London: Butterworths, 1972;
5. James R. Crawford. Brownlie’s Principle of Public International Law: 8thEdition. Oxford: Oxford University Press, 2012;
6. Malcolm N. Shaw. International Law: 8th Edition, UK: Cambridge University Press, 2017;
7. Mochtar Kusumaatmadja. Pengantar Hukum Internasional. Bandung: Binacipta, 1982;
8. Patricia Wouters. Dynamic Cooperation in International Law and the Shadow of State Sovereignty in the context of Transboundary Waters. Environmental Liability Journal, Vol. 04, 2013;
9. Sefriani. Suatu Pengantar Hukum Internasional. Jakarta: PT. RajaGrafindo Persada, 2010.

Court Decisions:

1. Anglo-Norwegian Fisheries Case 1952, accessed on Thursday, 27 April 2023, at 16.00 Western Indonesian Time (zone);
2. Reparation for Injuries Suffered in the Service of the UN 1949, accessed on Thursday, 27 April 2023, at 16.25 Western Indonesian Time (zone).

---

[1] Mochtar Kusumaatmadja, Pengantar Hukum Internasional, Bandung: Binacipta, 1982, p. 106

[2] Atip Latipulhayat, Hukum Internasional: Sumber-Sumber Hukum, Yogyakarta: Sinar Grafika, 2021, p. 39

[3]  J.G. Starke, Introduction to International Law: 7th Edition, London: Butterworths, 1972, p. 34

[4] Ekram Pawiroputro, Hukum dan Lembaga Internasional: Modul 1, Tangerang Selatan: Universitas Terbuka, 2016, p. 34

[5] Anthony Aust, Handbook of International Law, UK: Cambridge University Press, 2010, p. 6

[6] Malcolm N. Shaw, International Law: 8th Edition, UK: Cambridge University Press, 2017, p. 69

[7] Anthony Aust, Handbook of International Law, UK: Cambridge University Press, 2010, p. 6

[8] Sefriani, Suatu Pengantar Hukum Internasional, Jakarta: PT. RajaGrafindo Persada, 2010, p. 29

[9] Sefriani, Suatu Pengantar Hukum Internasional, Jakarta: PT. RajaGrafindo Persada, 2010, p. 41

[10] Sefriani, Suatu Pengantar Hukum Internasional, Jakarta: PT. RajaGrafindo Persada, 2010, pp. 42–45

[11] James R. Crawford, Brownlie’s Principle of Public International Law: 8th Edition, Oxford: Oxford University Press, 2012, pp. 242-243

[12] Sefriani, Suatu Pengantar Hukum Internasional, Jakarta: PT. RajaGrafindo Persada, 2010, p. 49

[13] Patricia Wouters, Dynamic Cooperation in International Law and the Shadow of State Sovereignty in the Context of Transboundary Waters, Environmental Liability Journal, Vol. 04, 2013, p. 143

[14] Sefriani, Suatu Pengantar Hukum Internasional, Jakarta: PT. RajaGrafindo Persada, 2010, p. 50

[15] Sefriani, Suatu Pengantar Hukum Internasional, Jakarta: PT. RajaGrafindo Persada, 2010, pp. 51

[16] Sefriani, Suatu Pengantar Hukum Internasional, Jakarta: PT. RajaGrafindo Persada, 2010, pp. 51–52