CSS International Law Solved Paper 2016 Question 3

What are the material sources of International Law? Discuss any two of them in detail with necessary examples. (20)

Introduction

There is no single body able to create laws internationally binding upon everyone, nor a proper system of courts with comprehensive and compulsory jurisdiction to interpret and extend the law. One is therefore faced with the problem of discovering where the law is to be found and how one can tell whether a particular proposition amounts to a legal rule. This perplexity is reinforced because of the anarchic nature of world affairs and the clash of competing sovereignties. Nevertheless, international law does exist and is ascertainable. There are 'sources' available from which the rules may be extracted and analyzed.

Categorization of Sources - Formal vs. Material & Primary vs. Subsidiary

By 'sources' one means those provisions operating within the legal system on a technical level, and such ultimate sources as reason or morality are excluded, as are more functional sources such as libraries and journals. Article 38(1) of the Statute of the International Court of Justice is widely recognized as the most authoritative and complete statement as to the sources of international law. It provides that:

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 expressly 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; (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 rules of law.

Some writers have sought to categories the distinctions in this provision, so that international conventions, custom and the general principles of law are described as the three exclusive law-creating processes while judicial decisions and academic writings are regarded as law-determining agencies, dealing with the verification of alleged rules.

A distinction has sometimes been made between formal and material sources. The former, it is claimed, confer upon the rules an obligatory character, while the latter comprise the actual content of the rules. Thus, the formal sources appear to embody the constitutional mechanism for identifying law while the material sources incorporate the essence or subject-matter of the regulations.