1. Introduction

The term "international law" was first used by Jeremy Bentham in 1780. It is a translation of the phrase juris inter gentes which was first used by Richard�Zouche�in�1650.[1]

The writers of earlier times used the term "law of nations", which was considered synonymous to the term "international law". The term "law of nations" is derived from the Latin term jus gentium. It is, however, noteworthy that it used to refer to private rather than public law, and in no sense could be regarded as equivalent to present-day international law. [2]

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2. Meaning and Definition

According to L. Oppenheim, "Law of nations or international law is the name for the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other".[3]

J.G. Starke defined international law "as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also:

• the rules of law relating to the functioning of international institutions or organisations, their relations with each other, and their relations with States and individuals; and
• certain rules of law relating to individuals and non-State entities so far as the rights or duties of such individuals and non-State entities are the concern of the international community". Starke tried to define international law comprehensively. International law is an evolving subject. The primary subjects of international law are States, but it is also applicable on other subjects in certain cases.[4]

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International law refers to a body of rules that govern the conduct of States and other subjects in their relations with each other. While earlier definitions of international law were flawed, it is now understood that international law is not only applicable to States but also to individuals, international organizations, non-State entities, and others. The primary subjects of international law are States, but it is also applicable to other subjects in specific cases.

Today, international law may be defined as "a body of law which is recognized as binding primarily on States and in certain cases on other subjects where their rights and duties are the concern of international community"[5]

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3. Evaluation and Development of International� Law

International law predates Christianity and was practiced in ancient India regulating the conduct of independent states. Modern international law evolved during the 16th and 17th centuries in Europe, shaped by ancient practices and the Roman law. Jurists have played an important role in the development of international law, including Hugo Grotius, whose works contributed to the codification of international law.

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Since the 18th century, international law has developed rapidly, leading to the establishment of many international organizations, including the Permanent Court of Arbitration, the League of Nations, and the International Court of Justice. Today, international law consists of law-making treaties and customs, regulating the conduct of States in various fields such as human rights, labor, and international criminal law.

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4. Sources of International Law

Lassa Oppenheim, a renowned jurist whose work was mainly focused on analysing international law, observed in his book �International Law, a Treatise�, that sources of law is the name for a historical fact out of which rules of conduct came into existence. International law is comparatively a new branch of law. It has two sources: conventional and modern. However, since international law is dynamic and ever-changing, the list is open-ended. Many new sources have emerged with time.[6]

There are two sources of international law - Traditional sources and the so called, Modern sources. The traditional sources are referred to in Article 38(1) of the Statute of International Court of Justice. These sources are:-

• international conventions;
• international custom;
• the general principles of law recognized by civilised nations;
• judicial decisions; and
• teachings of the most highly qualified publicists.

The first three sources are primary sources, whereas the last two sources are secondary sources. In addition to the aforesaid sources, the Court may decide a case ex aequo et bono. The modern sources include the resolutions of General Assembly and Security Council. [7]

Article 38 of the Statute of International Court of Justice:

"1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. International conventions, whether general or particular, establishing rules expressly recognised by the contesting States;
2. International custom, as evidence of a general practice accepted as law;
3. The general principles of law recognised by civilised 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 of rules of law.

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2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto."

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• International Conventions and Treaties

The primary source of International laws is treaties and conventions, which are introduced in Article 38(1) (a) of the ICJ. They are also known as charters, declarations, conventions, and statutes. These agreements or treaties are signed between the countries with their consent and it is applicable only between those signed countries. Conventions are of multilateral and bilateral, multilateral conventions express treaties. No state can breach the treaty as they have erga omnes obligations (owed to the whole world) as a disciplinary sense of duty[8]

�A treaty is a contract between the governments of two or more sovereign states� was stated in the case�Maclaine Watson v. Dept. of Trade and Industry.

The treaties are controlled and regulated under the Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force on 27^th�January 1980. The term treaty is defined in the Article 2(1) (a) of the VCLT and recognizes who can settle in a treaty, and sketches treaty interpretation, disputes, and reservations (Article 2 (1) (d))

Article 26 of the act says that �Every treaty in force is binding upon the parties to it and must be performed by them in good faith.� The theory of performing the treaty in good faith is based upon the oldest principle of international law, pacta sunt servanda (�agreements must be kept�)

Nicaragua v. USA and Danube Dam�It was held that �some of the rules laid down in the Vienna Convention on the law of Treaties might be considered as a codification of existing contemporary law�[9]

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• International Customs

Article 38(1) B of the Statute of the International Court of Justice�significant elements are the conduct of the State, the tenacity and the recognition of such practices as law, also known as �opinio juris.�

�Customary law may not be as �simple� as a treaty. Tradition is considered a type of �tacit agreement,� the conduct of states to each other in an appropriate way contributes to the correct behaviour being tacitly accented.[10]

Customary law originates from State practice as law. Customary law can change on the principle of �apprehension� and �acquiescence,� but that does not mean that customary law is not a strong rule of law, the customary law process is continually a good omen for international law because it can meet the timely needs of international law as the world develops and law develops. It may have its own drawbacks of a more relaxed and slow formation process; unlike a treaty, it lacks certainty and visibility. It has an advantage in terms of its wide range of comparisons with State activities. Treaty has benefits where custom has drawbacks, they are like twin pillars expected to work together in order to improve the sources of international law.

Hugh said, �the way things have always been performed is the way things must be done laws, international law does not deviate towards the trend discernible in local legal systems. State practice as one of the aspects of customary law is a continuous state practice of international acts over a period of time, governmental actions, law making and policy execution, government declaration and declaration, administrative practices and guidelines within states are good links and sources of state practice.

�In Asylum case�(Colombia v Peru),�in order to establish customary law, it must be �in accordance with a�constant and uniform use of the States concerned.�. The �uniformity� and �consistency� test are �general practice� and not a �universal practice� and �practice of the most dominant and prominent states will bear the greatest weight,� deducting from the above, it does not mean that all states engage in practice. �Once a practice has been developed as part of customary international law,� all states are bound, including states and new states that did not initially contribute to the practice.[11]

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• General Principles of Law Recognized by Civilized Nations

Article 38 (1) (c) of the Statute of ICJ lists General principles of law recognized by civilized States' as the third source of international law independent of custom or treaty. The phrase means principles as general as to apply within all systems of law that have achieved a comparable state of development. The rationality for the inclusion of general principles of law as one of the sources of international law lies in the fact that a principle, which has been found to be generally accepted by certain civilized legal systems, may fairly presumed to be so reasonable as to be necessary to the maintenance of justice under any system.[12]

Examples are:
the rule of pactasuntservanda, that contracts must be kept, the principle that no man may be a judge in his own cause, the right of self defence, etc. The principles of law recognized by many States do not become principles of international law automatically. They are required to be recognized by the World Court.

Before the court applies any such principle, certain considerations are taken into account.

1. Firstly, a rule is a general principle of law, i.e. it is not limited in scope.
2. Secondly, the rule is recognized by most of the States of the world
   The word recognized' presupposes the existence of the rule in the municipal law. It may be noted that general principles of law include substantive as well as procedural principles. Some general principles of law' common to municipal legal systems are:
   
   
   1. Res judicata (a thing or matter settled by judgment): A matter once judicially decided is finally decided, and there is an absolute bar to a subsequent action involving the same claims, demand or cause of action. This principle was taken into account in the U.N. Administrative Tribunal Case.
   2. Prescription (a claim to a right founded upon enjoyment):�Eastern Greenland Case�(PCIJ, 1933),�Island of Palmas Case.

• Subrogation (substitution or stepping into shoes of another):�Mavrommatis Palestine Concessions Case�(PCIJ, 1925).

1. Estoppel (preclusion): A State party to international obligation is bound by its previous acts or attitude when they are in contradiction with its claims in the litigation (Serbian and Brazilian Loan Case). The principle was also applied in�Temple of PreahVihar�Case.
2. Equity (reasonableness, fairness): The ICJ has been increasingly referring to equity in its judgments in recent years viz.�The Gulf of Maine Boundary Case, North Sea Continental Shelf Cases.
3. Other principles: The principle that every violation of an engagement involves an obligation to make reparation (i.e. repair a wrong), is recognized in�Chorzow Factory Case.

Territoriality of criminal law recognized in�S. S. Lotus Case. Status of General Principles of Law Positivists claim that customs and treaties were the only sources of international law as according to them international law is a body of rules on which the States have given their consent.

However, the majority of international lawyers opine that the�general principles of law�are a primary source of international law because they are valid through all kinds of human societies (Judge Tanka, dissenting opinion,�South West Africa case�ICJ, Rep. 1966).�Lauterpacht�has rightly remarked that the main function of the general principles of law' has been that of a safety valve to be kept in reserve rather than a source of frequent application. Art. 38 (1) (c) describe the inexhaustible reservoir of legal principles from which the tribunals can enrich and develop international law.[13]

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• Judicial Decisions and Judicial Writings

According to Article 38(1)(d) of its Statute, the ICJ is also 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". It is difficult to tell what influence these materials have on the development of the law. Pleadings in cases before the ICJ are often replete with references to�case law�and to legal literature.[14]

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Judicial decisions

The decisions of international and municipal courts and the publications of academics can be referred to, not as a source of law as such, but as a means of recognizing the law established in other sources. In practice, the�International Court of Justice�does not refer to domestic decisions although it does invoke its previous case-law.

There is no rule of�stare decisis�in international law. The decision of the Court has no binding force except between the parties and in respect of that particular case.�Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case.

Often the International Court of Justice will consider General Assembly resolutions as indicative of customary international law.[15]

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Juristic writings

Article 38(1)(d) of the�International Court of Justice Statute�states that the 'teachings of the most highly qualified publicists of the various nations' are also among the 'subsidiary means for the determination of the rules of law'. The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. This is accepted practice in the interpretation of international law and was utilized by the�United States Supreme Court�in�The Paquete Habana�case. In the practice of the International Court of Justice, citations to teachings in decisions are exceptional, but Judges routinely refer to them in their individual opinions.[16]

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• Ex Aequo Et Bono

According to Article 38(2), the Court has the power to decide a case ex aequo et bono, if the parties to the dispute agree thereto. Thus, the power of the Court to decide a case ex aequo et bono, that is to say, to ignore rules which are the product of any of the above three law-creating agencies (under Article 38(1)) and to substitute itself as a law-creating agency, depends on agreement of the parties to a dispute.[17]

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In Continental Shelf (Tunisia/Libyan Arab Jamahriya),63 the ICJ stated that

"application of equitable principles is to be distinguished from a decision ex aequo et bono". The Court can take such a decision only on condition that the parties agree (Article 38, para 2, of the Statute), and the Court is then freed from the strict application of legal rules in order to bring about an appropriate settlement".[18]

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• Modern Sources of International Law

International law is dynamic and fast-changing with time. The list of sources of international law codified in the statute of ICJ is not exhaustive. It takes into account the changes in the international law community and recognizes the emerging modern sources. These sources act as evidence of the existence of traditional sources. The modern sources include decisions of the United Nations and its organs, and other international organisations.�[19]

Resolutions of General Assembly

In the General Assembly, a resolution of the United Nations General Assembly is voted on by all UN member states. Resolutions of the general assembly usually require a to pass by a simple majority vote. However, if the overall�Assembly decides that the subject may be an �important issue� by�an easy�majority vote, then a two-thirds majority is required; �important issues� are�people who�deal substantially with preserving international peace and security, welcoming new members to the United Nations, suspending membership rights and privileges, expelling members, operating of the trusteeship system, or budgetary questions While resolutions of the General Assembly are generally non-binding towards member states, internal resolutions may be enforceable on the functioning of the General Assembly on its own, for instance in budgetary and procedural matters.[20]

5.���� International law and India

Article 51 of the Constitution of India states that �The State shall promote international peace and security by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among governments and by the maintenance of justice and respect for treaty obligations in the dealings of organised people with one another.�[21]

Under Article 253 of the Constitution of India, the Parliament and the Union of India are at the liberty to implement treaties and can even interfere in the powers of the state government to ensure implementation of an international treaty.[22]

In the landmark case of�Kesavananda Bharati v. the State of Kerala[23],�it was observed that the courts must interpret the provisions of the Indian constitution in the light of the Charter of the United Nations.

In the case of�Magan Bhai Patel v. Union of India�[24],�it was held that if a treaty or agreement restricts or modifies the rights of the citizens or the laws of the state, the respective treaty or agreement would be enforced by a legislative measure.

If there is no restriction or modification of laws or rights there shall be no need for any legislative act.

It is very clear that any international law cannot, by nature, override domestic law of the land in India. So to enforce any such law it is adopted by the legislature as a part of the domestic law.

However, in the case of�Sheela Barse v. Secretary Children�s Aid Society[25]�,�the Hon�ble Supreme Court held that India ratified conventions regarding the protection of children and the state government has an obligation to implement those principles.

The most revolutionary use of international law in India has been in the case of�Vishaka v. The State of Rajasthan[26],�where the court used provisions of the�Convention on Elimination of all Forms of Discrimination against Women, (CEDAW),�to create legally binding provisions regarding sexual harassment.�

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6. Conclusion

The sources of international law cannot be isolated into separate water-tight containers. They interact closely and influence each other. A treaty, which is a set of codified rules now is a product of long evolution that might involve custom, discussion and deliberations by the international organizations.[27] Customary international laws are often transformed into treaties through codification. These covenants are then interpreted and enforced by both the world court and municipal courts, creating yet another source of international law. Furthermore, new sources of law have emerged from the interactions between existing sources. Therefore, in order to comprehend any given source, it's crucial to examine its relationship to other sources.

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[1] V K Ahuja, Public International Law; p.1(LexisNexis, Haryana, 2021)

[2] Supra note 1

[3] Supra note 1

[4] V K Ahuja, Public International Law; p.2(LexisNexis, Haryana, 2021)

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[5] Supra note 4

[6] Shivani Panda, �Sources of International Law�; available� at https://blog.ipleaders.in/sources-international-law-3/ (last visited on November 13, 2023)

[7] V K Ahuja, Public International Law; p.12(LexisNexis, Haryana, 2021)

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[8] Manusri; �Sources of International Law�; available at https://www.ourlegalworld.com/sources-of-international-law/#_SOURCES_OF_INTERNATIONAL_LAW

[9] Supra note 8

[10] Anamika Chhabra;� Sources of International Law�; available at https://blog.ipleaders.in/sources-international-law-2/ (last visited on November 13, 2023)

[11] Supra note 8

[12] Mohd Aqib Aslam; � Sources of International Law An Overview�; available at: https://www.legalserviceindia.com/legal/article-2194-sources-of-international-law-an-overview.html (last visited on November 13)

[13] Supra note 10

[14] Wikipedia; �Sources of International Law�, available� at https://en.wikipedia.org/wiki/Sources_of_international_law� (last visited on November 13, 2023)

[15] Supra note 12

[16] Supra Note 12

[17] V K Ahuja, Public International Law; p.28(LexisNexis, Haryana, 2021)

[18] Supra note 17

[19] Supra Note 6

[20] Supra note 10

[21] Chanchal Chaturvedi; �Sources of International Law�; available at: https://indianlawportal.co.in/sources-of-international-law-2/ (last visited on November 14, 2023)

[22] Supra note 21

[23] AIR 1973 SC 1461

[24] AIR 1969 SC 783

[25] AIR 1987 SC 656

[26] AIR 1997 SC 3011

[27] Supra note 6