4. Sources of international law Article 38- sub article (i) of ICJ set a number a number of important sources. International covenant.treaties International custom The general principle of law recognised by nations Judicial decisions Teachings of highly placed publicist as subsidiary means of determination of rules of law

4.1 IS THERE AHIERACHY OF SOURCES? There is a hierachy but there is debate about the form of this heirechy. Most scholars believe that generally treaties are most importyant sources of law. However, scholars generally agree that particular treaties can sometimes be set aside by state practice under international customary law whereby state through their practise indicate that they regard the particular treaty concerned being not in operation any longer.

4.2 Conventions and treaties Treaties are defined in two Vienna conventions on treaties one with regard to states and the other with international organizations. DEF: are written agreements between states or between states in international org or between IOs. In order to qualify as a treaty or convention the agreement must be governed by rules of international law.

4.3 Treaties are divided into two: 1. Law Making Treaties- codify rules of customary IL or themselves create new rules of IL. Sometimes treaties maybe invoked as documents to present evidence of customary IL and can be invoked by states that are not part of the agreements. Shaw defined law making treaties as those agreements whereby states elaborate their perceptions of IL on a given topic or establish new rules that guide them for the future in international conduct.

4.4 Such law making treaties of necessity require the participation of large number of states to emphasise the fact and will bind all they constitute normative treaties that specify rules to be followed. Contract making treaties: represents business contracts they are not sources of IL they are mainly legal transactions but they are governed by international law. Where state X binds itself to certain service provision to state Y. It is important to highlight that most contractual are bilateral but others are multilateral.

4.5 Customary International Law Rules of international customary law are created through state practise. In other words the way in which the state behaves may depend upon circumstances giving rise to rules giving rise to rules that bind their relation with other in varios decisions of the ICJ said custom at the level of international law is made up of two key elements.

4.5 First, objective concerned with actual state practice in question. Some subjective concerned with practice in question is accepted as law. The subjective regiment is known as opinion iuris and refers to the intention or sense of obligation of the state to be bound particular rule of states in practice.

4.6 Proof of opinion iuris sometimes being or inferred is evidence in support of general practise in support of particular rule. In NORTH SEA CONTINENTAL SHELF CASE ICJ said not only must act concerned amount to a settled practice but there must be also such or be carried out in such a way as to be evidence of belief that practise is the rendered obligation by the existence of subjective element is implicit in the very notion of opinion iuris the state concerned must therefore feel that they are conforming to what amounts to legal obligation.

4.7 If state activity demonstrate their support for a particular rule no problem of proof arises as to whether the state concerned have consented to the creation of room of international customary law. Unfortunately sometimes it will be different to determine whether particular state has agreed to regard as law and to be bound by practise clearly adopted by other states as creating rule customary international law. Silence by particular state in face of the creation by other states of mew rule of customary IL may be considered as acquiecence.

4.8 A state should come out clear failure or silence means it would have accepted. ICJ has made it clear that the practice will not qualify as customary law unless it constitutes constant an uniform usage.

4.9 In another decision ICJ Asylum Case 1950 had to consider whether the practice of granting asylum in embracing to political refugees in South America constituted a customary America rule that was legally binding. Court held “the fact describe much function and discrepancy in the exercise of asylum and official views expressed on various occasion, there has been, so much inconsistency in the practice of asylum which has been frequently expediently’

4.10 The various examples over the years that is not possible to discern in all this any constant and uniform usage accepted as the law with regard to the alleged rule constitute law.

4.11 General Principles Recognised by nations Sometimes gaps exist in IL to adopt general principles of law recognised by other nations is designed to allow these gaps to be filled by appropriate rules derived from municipal legal system. This particular source is not very often and even when it is an effort will have to be made to attempt to use only those municipal rules that are common to a number of national legal systems.

4.12 Judicial Precedent Early decision are binding to an upcoming decision. National courts operating within the countries in Anglo-American judicial traditions including Zimbabwe have developed systems of judicial precedent. This means once a supreme court has handled down a ruling concerning a disputed point of law legally binding.

4.13 These means once a supreme court has handed down a ruling concerning a disputed point of law legally binding. Judicial standing is established which must be followed by inferior courts in subject cases were the same issues which arises.

4.14 Judicial precedents as such is not a feature of international law. This is because Article 59 of the statute ICJ in particular cases has no binding effect except in respect of parties to that particular dispute. In other words the ICJ IS NOT BOUND TO FOLLOW ITS EARLIER DECISION. However it is entitled to look for legal principles to determine the case before it.

4.15 Learned Writers Article 38 (I) (d) alerts the court to apply teachings of the most highly qualified publicist of various nations, as subsidiary means for their determination of the rules of law. But problems often arise given cultural world hence making it different to get acceptable authorities to lead to universally acceptable proposition.

4.16 Today international tribunals cite text books. Other sources of IL includes Acts of international Organisations, equity, soft law.