CHAPTER 2 There is considerable difference of opinion amongst writers on Discuss the source international law regarding the kinds and number of sources of international ° ternational Law. law. The term “sources is used in different senses. Oppenheim (8th Edition) MY. Now. 2012 points out the distinction between “sources” and “causes’ of international r oe law. According to him, there are two sources of international law: i 2019 (1) Express consent of the States, and Dec. 2019 (2) Tacit consent of the States. ; : State any two According to Prof. Brierly, the two main sources of international law sources of Interna. are custom and reason, tional Law. M.U. June 2024 Discuss the various sources of Interna- fonal Law. MU. Apr. 2005 SOURCES RECOGNISED BY INTERNATIONAL COURT Moyea? OF JUSTICE The Statute of the International Court of Justice directs the Court to What are the i ining i i : sources of interna- apply the following sources for ascertaining international law: flaw? (2 marks) M.U. May 2012 Briefly explain any 2 sources of Public International Law. MU. Apr. 2013, Each of the above sources will now be discussed in necessary details. (1) INTERNATIONAL TREATIES AND CONVENTIONS There efONOTREER Gals (2), The law-making treaties — which lay down general rules binding on the majority of States; and 19What is a Treaty Contract? (2 marks) MU. Apr 2018 a a 20 PUBLIC INTERNATIONAL LAW (b) Treaty-contracts— which deal with special agreements betwee, parties to the treaty. n The law-making treaties are a direct source of international law, whereas treaty-contracts are not generally sources of internationa) law, as they are intended to create special rights and duties on) between the parties to the treaty. y (a) Law-Making Treaties Although custom was originally the main source of internationaj law, recently, treaties have also become a very important source of international law. As the rules of customary international law were inadequate to meet the needs of the dynamic world, the law-making treaties have come into existence increasingly from the middle of the ‘19th century. This is considered to be a form of international legislation, Some writers object to the use of the term ‘law-making treaties’ on the ground that these treaties do not so much lay down rules of law, as set out the contractual obligations which the State parties are to respect. Starke rightly rejects this criticism. He points out that these days, a number of conventions and international legislative instruments are adopted by organs of International Institutions, and therefore, they are in effect law-making. Law-making treaties involve two distinct operations: (i) The legislative operation, whereby rules are laid down. (ii) The undertaking by the States to conform to such rules. The second part of the treaty-making is subsidiary. These law- making treaties are multi-lateral treaties. Professor Brierly defines law- making treaties as “those which a large number of States have concluded for the purpose either of declaring their understanding of what the law is on a particular subject, or of laying down a new general rule for future conduct, or of creating some international institutions.” Of ate, there have been a number of law-making treaties dealing with Red Cross, weights and measures, suppression of slave trade, aerial navigation, international waterways, the pacific settlement of international disputes, efc. (b) Treaty-Contracts Although treaty-contracts are not generally regarded as sources of international law, yet, in the following three cases, they may lay down rules of international law: (i) A series of treaty-contracts or repetition of the same rule in several treaty-contracts might produce a principle of custom, and thus become a source of law. For example, a series of bilateral extradition treaties entered into during the ‘toth century became a pattern of general rules of international law regarding extradition, (ii) Originally, treaty-contracts may be entered into between 4 7Fr IEE EEE EE EE SOURCES OF INTERNATIONAL LAW 21 limited number of States, but subsequently if several States acceptor imitate them, then such treaty-contracts may develop into customary rules of international law. (iii) A treaty-contract might operate as evidence of the existence What do you mean of a tule of law which has been developed by an independent %y ‘Customary process. Phillimore, in his Commentaries upon international ‘Ws of Law has observed that a principle of international law acquires "stone! Law’? additional force from having been solemnly acknowledged as MU: 99% 2029 such in the provisions of a public treaty. (2) INTERNATIONAL CUSTOM Custom was considered to be almost the sole source of Note on: Interna- international law for quite a long time. These customary rules of "a! Custom. international law have been evolved by a long historical process, and Apr. 2015 they are recognised as such by the international community. Custom and Usage Distinguished Though the terms custom and usage are often used to mean the Explain custom as same thing, there is a fine distinction between them. Usage is a a source of prior state in the development of custom. When a usage crystallizes international law. itself, it becomes a custom. Custom begins where usage ends. Usage, eer tae in the words of Starke, “is an international habit of action that has faw. not yet received the full legal attestation". Usages may be conflicting. M.U. Apr. 2008 These usages become custom when they become unified and self- Apr. 2009 consistent. As Viner puts it, “A custom is such a usage as hath obtained the force of law.” When Usage Becomes A Custom According to Oppenheim, “As usages have a tendency to become Customs as source custom, the question presents itself, as to at what time does a usage °% | International turn into custom? This question is one of fact, not of theory.” As law. Dec, 2014 Oppenheim continues, “International jurists speak of a custom when a Nov. 2015 clear and continuous habit of doing certain action has grown up under Apr. 2016 the aegis of the conviction that these actions are, according to international law, obligatory or right”. Starke is of the opinion that before a usage may be considered as amounting to a customary rule of international law, two tests must be satisfied: (i) The material test, and (ii) The psychological test. (i) Material Test There must, in general, be a recurrence or repetition of the acts which give birth to the rule. Both the frequency with which they recur and the /ength of time for which they have recurred, would be relevant in ascertaining whether a rule of customary law is created. (ii) Psychological Test (Opinio Juris Sive Necessitatis) \tis not merely the recurrence that creates a customary rule. What is also necessary, is that this recurrence must be a result of a conviction rePUBLIC INTERNATIONAL LAW This ‘or opinio juris, is & convenient, jable, test fo; ascertaining that a usage OF a practice has crystallised into a custom. This opinio juris must be inferred from all the circumstances, ‘and not merely from the details which constitute the material element of the alleged customary tule. The following are illustrations of customary rules crystallizing from usages oF practices: (a) Diplomatic Relations between States State practices, declarations by statesmen, bilateral treaties, etc, have crystallized usages into custom in this branch of international law. (b) Practices of International Organs The practices of the international institutions has led to crystalli- zation of customary rules ‘of international law regarding the status, powers and responsibilities ‘of such institutions. (¢) State Laws and State Military and Administrative Practices If State laws or State practices of several States at several times concur, such concurrence may indicate the general recognition of a broad principle of law. This is fully illustrated by the case of the Scotia, ‘was decided by the Supreme Court of the United States of ‘America. In that case, a British ship “Scotia” collied with “Berkshire’, an American ship. As a result, the “Berkshire” sank. The “Berkshire” was not carrying the lights which were required by a series of regulations adopted by the British Government and also by the American Congress. The question to be decided was whether the “Berkshire” was required to carry the lights according to the new regulations or whether it was enough if it satisfied the old customary me Court of the U.S.A. held that by a concurrence of Jaw. The Suprel these State laws, anew customary international law was evolved, and stomary therefore “Berkshire”, being a defaulter according to the new cus! taw, could not recover s Judicial Application of Custom Very often, it becomes necessary for the courts to. examine whether a particular rule has validly established itself as a customary tule of international law. To do this, the court must examine the following to ascertain the position: (1) Treaties (2) The practice of States (3) Diplomatic correspondence (4) Decisions of the State Courts (6) Juristic writings. This practice was adopted by the Supreme Court of the U.S.A. in the Paquete Habana case and by the Permanent Court of Internation2! dustice in the Lotus case,SOURCES OF INTERNATIONAL LAW 23 (3) GENERAL PRINCIPLES OF LAW RECOGNISED BY CIVILISED NATIONS The general principles of law recognised by civil nations are to be applied by analogy, and would be derived by selecting concepts common to all systems of Municipal law. By applying private law analogy, wherever there is a lacuna in international law. the applicable rule of law may be ascertained. The Problem of non-liquet, ie., the powerlessness of an international court to decide a case legally because of inability to find any rule of law, is said to be solved by the Statute of the International Court of Justice Providing these general principles as sources of law, For example, the principle of Res Judicata which is a concept known to municipal law, has been applied in Chorzow Factory Case. Similarly, the general principles of Subrogation or the private law doctrine of trust are also applied by International Tribunals. The International Court of Justice has applied the principle of estoppel in the case conceming the Temple of Preah Vihear (I.C.J. Reports 1962, 6). A similar principle was also examined and tried by the same Court in Barcelona Traction Case (I.C.J. Reports 1964, 6). The words “general principles of law recognised by civilised nations” have been interpreted in the following seven ways: (i) General principles of justice. (ii) Natural law. Analogies derived from private law. General principles of comparative law. (v) General principles of International law. (vi) General theories of law. (vii) General legal concepts. According to Starke, the provision for applying general principles has been regarded as sounding the death-knell of positivism. The positivists view that custom and treaties alone are the sources of international law is rejected by the Statute of the International Court of Justice, and the general legal principles are recognised as the source of international law. (4) JUDICIAL OR ARBITRAL DECISIONS Decisions that might be sources of international law are of three kinds: (A) Decisions of the international judicial tribunals (B) Judicial decisions of State Courts (C) Decisions of international arbitral tribunals.SO 24 PUBLIC INTERNATIONAL LAW (A) Decisions of the International Judicial Tribunals The International Court of Justice, which succeeds the form, Permanent Court of International Justice, is the only permanent judiciay 7 tribunal at present. The decisions of these Courts are sources international law, though notin the sense in which a judicial Precedent is a source of English law. A decision of the International Court of Justice is not an authoritative precedent. It does not create a bindin, rule of international law. The International Court of Justice is no bound by its prior decisions. However, such decisions are used by the Court for guidance as to the law. As a general practice, it follows a series of its prior decisions, though it is not bound to do so. Besides the International Court regards itself to be free to develop internationa| law. But at the same time, international lawyers have always considerag te the judgments and the opinions of the International Court to be an authoritative source of law. (B) Judicial Decisions of State Courts Judicial decisions of State Courts are responsible for the formation of the rules of international law in the following two ways: (i) These decisions are generally regarded binding authorities on the law of nations as understood in the Courts of that country. (ii) These decisions (as already pointed out) may lead directly to the growth of customary rules of international law. This growth of customary international law will result if there is a concurrence of such decisions. (C) Decisions of International Arbitral Tribunals There is a serious controversy as to whether the decisions of international arbitral tribunals should be considered as a source of international law at all. Some writers hold that the arbitrators act as negotiators or diplomatic agents, rather than as judges. It is said that the compromise element influences the decisions rather than the rules of law. Though there is an element of truth in this conception of arbitral decisions, yet, in practice, the position is different. Generally arbitrators act as judges rather than as mere negotiators. Thus, for instance, the following cases have made a notable contribution to the development of international law: (a) The Albania Claims Arbitration Case (b) The Behring Sea Fisheries Arbitration Case (c) The North Atlantic Fisheries Case. (5) JURISTIC WORKS. Juristic works are not an independent source of law, They are only a means of throwing light on the rules of international law and rendering their formation easier, The juristic works are generally evidence of Gad rather than the source of law. It is possible that the writing of 2 9(°7, jurist may become a source of law if it is subsequently embodie' customary rules of international law.aS SOURCES OF INTERNATIONAL LAW 25 There is only one exceptional case when juristic opinion assumes importance. Where there are no established customary rules or treaty tules, juristic opinion may be considered as an independent source of law. The Privy Council in re Piracy Jure Gentium, depended on juristic opinion in ascertaining whether actual Tobbery was an essential elememt of piracy at international law. Having seen that juristic opinion considered that actual robbery was not an essential element in Piracy Jure Gentium, they decided so. But in the Same case, the Privy Council was of the opinion ‘that for ascertaining Juristic opinion, it was not enough to seek the opinion of some great works, but a consensus of ‘opinion must be looked at. (6) DECISIONS AND DETERMINATIONS OF THE INTERNATIONAL ORGANISATIONS NS Decisions and determinations of th sations may lead to the formation of following six Ways: (1) They may represent intermediat of customary law. For example, the procedural practice of the United Nations Security Council, that an abstention by a member State from voting is not to be deemed a non-concurring vote, for the Purpose of determining whether a decision on a non-procedural question has been validly taken by the Security Council according to the voting requirements. Similarly, as a result of a resolution in 1952 of the United Nations General Assembly, the rule that dependent people are entitled to self-determination has been formulated. (2) A resolution of one of the organs of international institutions laying down regulations for the internal working of that particular institution may have full legal effect as laying down rules which are binding on the members and organs of the United Nations. (3) In doubtful cases, not clearly covered by its constitution, an international institution has inherent power to determine the limits ofits own competence. Such decisions by international institutions on question of jurisdiction may have a law-making effect. (4) Sometimes, organs of international institutions are authorised to give binding determination concerning the interpretation of their constituent instruments. These interpretative decisions then form part of the law of the international institution in question. (5) Some organs of international institutions are empowered to give general decisions of quasi-legislative effect binding on all the members to whom they are addressed. (6) Quite often, opinions of Committees of jurists specially instructed by the organs of an international institution to investigate a legal problem may have immense weight and @ organs of international organi- Tules of international law in the 'e or final steps in the evolution a rule has developed regarding Write a short note on: Juristic works. MU. Apr. 2003PUBLIC INTERNATIONAL LAW f example, the opinion of the Committee Of dup apnea mn 1920 by the League of Nations Council, tg sit, on the question of the Aaland Island, that a convent" 1866 whereby Russia agreed not to fortify the Aaland Mi 4 Created a special military status conferring rights on interest! adjoining States {although not parties to the Convention) wi been cited with approval in several leading text-books | "8 Jus Cogens (Peremptory norm of general International law) Recently, it is increasingly being fecognised tha: tt there are Certain | Peremptory principles of international law from which there cou Ay be any derogation. The Peremptory norm of general internat is a norm accepted and recognised by the international coi States as a whole as a norm from which no dero; Such a norm can be modified only by a subsequ international law having the same character. Article 53 of the Convention on the Law of Treaties confirms this view. The Prohibiting unlawful use of force, contrary tothe U Nov. 2012 is an illustration of Jus Cogens. Article 53 of Dec, i Provides that a treaty is void at the time Of its cor *- 20 With Jus Cogens, tional lan nal Community o gation is Permitteg lent Norm of genera | Vienna Principle Inited Nations Charter, the Convention also inclusion if it Conflicts ogel