Subsidiary means for the determination of rules of law.

 Subsidiary means for the determination of rules of law,  Thus, Art. 38 is a direction to the Court as to where to look for law and offers...

 Subsidiary means for the determination of rules of law, Thus, Art. 38 is a direction to the Court as to where to look for law and offers a guide to anybody who is discovering the rules of international law. But the decisions or determinations of the international organs or institutions, particularly the resolutions of the United Nations General Assembly which have become an important source of modern international law, do not find a mention in Art. 38, probably for the reason that when the Statute was drafted, the importance of these organs in law-making was not contemplated. Nevertheless, Art. 38 classifies the sources into two categories: sub-paragraphs (a) to (c) incorporate the law-creating process, which means that in any asserted rule of international law, it must be shown that it is the product of one or more of the three—law-creating processes-treaties, customs, and general principles of law. In other words, they are concerned with the pedigree of the rules of international law. Sub-paragraph (d) enumerates some of the means for the determination of alleged rules of international law. In the case of the law-creating process, the emphasis lies on the forms by which any particular rule of international law is created. This is being done through the law-determining agencies (those stated in sub-para (d)), which verify an alleged rule.

Article 38 lays down the hierarchy of the sources of international law for the court. In a particular dispute before the court, its search for relevant rules takes it to the treaties which are expressly recognised by the parties. or to general practice accepted as law (by States), or to general principles of law (recognised by States). If the conventions, practices and principles are not found relevant or clear, the court may resort to "judicial decisions and the teachings of the most highly qualified publicists" as "subsidiary means for the determination of rules of law", and also to the decisions of the international organs. In order to avoid a situation of non-liquet, i.e., no law exists or law is silent on the issue, Art. 38 para. (2) empowers the court -to decide a case ex aequo et Bono if the parties agree thereto".

Thus, broadly speaking, the following are the sources of international law:

1. Custom

2. Treaties

3. General principles of law recognised by civilised nations

4. Judicial decisions

5. Juristic work on international law

6. General Assembly resolutions and declarations

II. CUSTOM

"Custom" has played a significant part in building the present fabric of the international legal system. Though its importance has lessened in the modern times due to the increasing use of treaties and conventions as a law-creating method, but it still remains a vital source of international law.

Custom is a habitual course of conduct. Rules are evolved after a long historical process.

culminating in their recognition by the community. A customary rule of international law may he defined as : I rule which the community of States has long since recognized as the right rule of conduct, and which has the force of law. In the Asylum case, the International Court of Justice kilo Seri bed custom as a "constant and uniform usage, accepted as law".6 by "usage" the court means a usage that is to be found in the practice of States.

The terms”custom" and "usage" are often used as synonyms, but they are distinguished. Usages are habits, often repeated but conflicting and vary amongst States. On the other hand, Custom is sell-consistent and unified. Usage represents the twilight stage of custom. Custom begins where usage end Usage is an international habit of action that has not yet received full legal attestation. However, it is not always necessary that a usage should precede a custom or that a usage becomes a custom. Similarly, there is no international rule which determines when usage shall culminate into a custom.8

There is a dual requirement for an international custom to be accepted as such: (a) "general practice accepted as law" (Art. 38, para. ( I )(b) of the International Court of Justice), i.e., there should he sufficiently uniform practice, and (b) the belief that such a practice is obligatory. Consequently, for a practice or usage to become a customary rule of international law, the following two factors are essential.

1. A material fact, i.e., in similar circumstances States act similarly, in other words, usage has been constantly and uniformally practised by States.

2. A psychological element, i.e. the opinio juris sive necessitatis—the feeling on the part of States that in acting as they act they are fulfilling a legal obligation. Generally speaking, it is the material factor which is significant in the establishment of a customary rule, but where the State practice establishing the contended rule is lacking or ambiguous, the psychological element assumes greater significance. However, it is by examining the actual practice of States that the comparative relevance of these elements can he established. In fact, opinio juris is not an essential element of custom, but its presence helps in distinguishing custom from a course of action followed as a matter of choice or for other reasons.9 Recurrence of the usage or practice tends to develop expectation that in similar future situations, the same conduct or abstention therefrom. will be repeated

In the Asylum case, Haya de la Torre, who had been declared a fugitive by the Peruvian authorities alter an unsuccessful rebellion led by him in Peru, was granted asylum by the Columbian Embassy in Peru, Columbia sought from Peru a safe conduct to allow Haya de la Torre to leave the country, but Peru refused to grant this. Under the 1928 Havana Convention on Political Asylum, to which both the countries were parties, a political fugitive, if granted diplomatic asylum, was entitled to a safe conduct. However, Peru refused to accept the Columbian contention that it is for in the State granting the asylum to determine the nature of the crime, which would be binding on the territorial State, and this rule is accepted as a customary rule among the Latin American countries. Peru considered Ilaya de lit Torre merely a common criminal under its laws. The International Court of Justice, to whom the dispute was referred for adjudication. refused to accept the Columbian contention  that such a custom exists among the Latin American States. since it failed to establish any clear evidence in support of its contention. The Court observed: The Columbian Covernment must prove that this rule invoked by it is in accordance with a conAtant anti um form wage practised by the States in question. and that this usage is the expression of a tight appertaining to the State granting asylum, and a duty incumbent on the territorial State."' (emphasis added).