SOURCES OF INTERNATIONAL LAW AND ITS IMPORTANCE pptx

This PPT document elucidates the primary and secondary sources of International law such as, Customs, Conventions or Treaties, General Principles of Law, Judicial Decisions and so on.
Difference between custom and Treaties.
Important case laws related to International law

1. SOURCES OF INTERNATIONAL LAW By, Vidya M.N Associate Professor of Law

2. Sources of International Law From where the International Law rules have come into existence? Art. 38 of the Statute of International Court of Justice Art. 38(1) International conventions / Treaties International Customs General principles of law recognised by civilized nations Judicial decisions [Art. 59 of Statute of ICJ – the decision of the court has no binding force except between the parties and in respect of that particular case.] and teachings of most highly qualified publicists of various nations . Art. 38(2) directs it to refer and to apply to the court and may decide a case ‘ ex aequo et bono ’ (Latin word – according to the right and good) (Tribunal consideration on what is fair and just) with the consent of the parties. [ jist is to ignore the rules which are product of the above three law creating agencies and to substitute itself as law creating agency] [ under Art. 38 , it has laid down a hierarchy of the sources of IL – i.e., in a particular dispute, the court will apply treaties, in the absence of treaties the next source ‘custom’ can be applied. And it follows]

3. [A] CUSTOM : [Art. 38(1)(b)] Custom is the foundation stone of the modern IL. A large part of IL consisted of Customary Rules They evolve through the practices of and usages of nations and their recognition by the community of nations They are not the creatures of the sovereign or a State. Customary rules are referred to those rules which are practised by most of the States and through ages by way of habit . Custom is referred to those habits which are regarded as binding upon the States. [when a habit or usage (usage is a general practice which does not reflect on a legal obligation) becomes obligatory on a State to practice , that is called as custom (have legal recognition and legal obligation) or customary rule]

4. The ICJ in the Asylum Case (Colombia Vs. Peru - 1950), formulated the requirements of custom in IL by stating that ‘ The party which relies on custom must prove that this custom is established in such a manner that it has become binding on the other party .’ [ to do so it needs to prove that the rule invoked by it is in accordance with a constant and uniform usage practised by States ] [no particular time can be taken as a yardstick for the transformation of a usage into custom]. [ HELD: A State may not be bound to even general customary international law if they have expressly dissented to the rule’s formulation A rebellion leader in Peru wanted political asylum in the Colombian embassy in Peru, but Peru rejected Colombia’s assertion of diplomatic asylum and refused to give him safe passage out of the country. The court tried to find existence of a regional custom of States granting asylum to such people as this military leader. held that even if Colombia could prove a customary American regional rule that a state granting asylum in its embassy was legally competent to qualify the refugee as either a common criminal or political offender, such custom could not be invoked against Peru, which, far from adhering to it, has repudiated by refraining to ratify the Montevideo Conventions. Moreover, Colombia had also failed to show there even was a customary international law ] In the North Sea Continental Shelf case the court stated that – not only the acts must concerned amount to a settled practice, but they must also be such or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.

5. In order to establish the existence of an international custom , primarily three elements are required to be present – Duration Continuity [uniformity and consistency] Generality Opinio juris et necessitates [ been added newly ] Duration : When a particular usage is practised by the States for a long duration, it has a tendency to become custom. Comment – a usage may become custom even in a short time ( eg. , practice relating to continental shelf and rules relating to air space have become custom in a short time. Period of time is not necessary, if there is a widespread acceptability by the States .

6. (2) Uniformity or Consistency : A practice is required to be followed consistently by the States. In Lotus Case – PCIJ stated the practice should be constant and uniform. In Anglo Norwegian Fisheries Case (1951) – ICJ refused to accept the existence of a ten-mile rule for bays because the practice was not substantially consistent. In Asylum Case – ICJ held that ‘the party which relies on a custom must prove that the rule invoked is in accordance with the constant and uniform usage practised by the States in question. In North Sea Continental Shelf case (1969) – ICJ remarked that State practice had to be ‘both extensive and virtually uniform in the sense of the provision invoked.

7. (3) Generality : It is essential that a usage should be practiced by most of the States in order to transform into a custom. In West Rand Central Gold Mining Co. Ltd. V/S R (1905) – held that it must be proved by satisfactory evidence that the alleged rule is of such a nature and has been so widely and generally accepted, that it can hardly be supposed that any civilised State would repudiate it. In Fisheries case [UK Vs. Iceland – 1974] – the court used the expression ‘generally accepted’ which may mean that a general customary rule is required to be accepted generally by the States. (the Court referred to the extension of a fishery zone up to 12NM limit ‘which appears now to be generally accepted’ and to ‘an increasing and widespread acceptance of the concept of preferential rights for coastal states’ in a situation of special dependence on coastal fisheries).

8. (4) Opinio juris et necessitates (Accepted as Law) : Which means that recognition of a certain practice as ‘obligatory’ by the State . That is States must recognise the custom as binding upon them as law. (practice is obligatory) Lotus Case & North Sea Continental Shelf Case – the PCIJ observed that Opinio juris is an essential element in the formation of customary law. Art. 38(1)(b) – recognised international custom ‘as evidence of general practice accepted as law’. It is to be noted that the customary rules are applied by the courts only when International conventions /treaties are not available . Kinds of customary rules – General customary rules (which are binding generally on all the States – eg. , law of the sea, law of treaties) Particular customary rules / bilateral custom / local customary rules (practice has developed between two States) ( eg. , in the Concerning the Rights of Nationals of the USA in Morocco – ICJ first time used the term ‘local custom’) (recognition of a particular local custom was found in the Right of Passage over Indian Territory case 1960). Exceptional customary rules of IL (there may be a special kind of customary rules of IL which are binding on the whole or a regional community of States in relation to one or a few subjects of IL.

9. Determining customary IL - The Paquete Habana i ) Facts : 1898, at outset of Spanish-American war, two Cuban fishing smacks were fishing on high seas, unaware of hostilities. The two ships were captured by US warships and brought to Key West to be sold at auction as prizes of war. Cuban masters of vessels argued that the capture of the ships was a violation of customary international law. ii) SC : ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as a prize of war. iii) Rationale : looked to early examples of English, French, German, and Netherlands. References made from 1400’s – 1890s. iv) Where there is no treaty and no controlling executive or legislative act or judicial decision, must resort to the customs and usages of civilized nations, and as evidence of these, to the works of jurists and commentators . .

10. [B] TREATIES / INTERNATIONAL CONVENTIONS : [Art. 38(1)(a)] [ Explain the sources of IL? Explain treaty as a source of IL?] The Statute of ICJ lays down that the court while deciding any dispute shall apply international conventions, whether general or particular, establishing rules expressly recognised by the contesting States, in presence of other sources of IL. Treaties are agreements between two or more States . (referred as conventions, protocols etc) Treaty embody the express consent of the Parties ( eg. , Vienna Convention)

11. Classification of Treaties : [I] Bilateral and Multilateral treaties – between two and between more than two States. [II] Law-making treaty – Treaties enunciating rules of universal International Law ( eg. , UN Charter] International treaties which lay down general principles – entered into by large number of countries ( eg. , 1958 Geneva Conventions on the Law of Sea, Vienna Convention on Law of Treaties 1969) Law making treaties perform the same functions in the international field as legislation does in the State filed. Law making treaties are the means through which IL can be adopted to in accordingly with the changing times and circumstances and the rule of law among the States can be strengthened (State, with changing time can adopt new rule of law) Treaty process is also a useful means to develop universal international law.

12. [III] Treaty Contracts – as compared to law-making treaties, treaty contracts are entered into by two or more States. The provisions of such treaties are binding on the parties to the treaty. A treaty enter into by a few States is subsequently accepted by many other States as they enter into similar treaties. A treaty may be considered evidentiary value as to the existence of a rule. [IV] General and Particular treaties – GTs are those wherein most of the States of the world community are parties and which are open to accession by others. GTs may be based on number of states or based on subject matter GTs may also be referred as law-making treaties. (legal propositions and obligations – eg. , Hague Convention) Particular treaties [Bilateral / plurilateral / ordinary /contractual] PTs is based on less number of state and limited nature of subject matter. [V] Normative Treaties – norms are applied, subscribed or ratified by the States in their acts

13. Difference between Treaties and Customs [Explain the customs and treaties as a sources of International law?] Sl.No . Custom Treaty 1 Implied consent Express consent 2 Very slow development Rapid development 3 Evolution is not particular Evolution is specific and easy to found 4 Rules are not precise and adequate Rules are precise and clear

14. [C] GENERAL PRINCIPLES OF LAW – RECOGNISED BY THE CIVILIZED NATIONS : [Art. 38(1)(c)] [ State the General Principles of law recognised by civilized nations as source of international law with decided cases?] General Principles of law will be applied by the court only when there is no treaty relevant to the dispute or when there is no customary IL that can be applied in a particular case. These principles have been recognised by civilized nations of the world community in their domestic law. The rationality behind inclusion of General Principles of law is that the principles which has been found to be generally accepted by certain civilized legal systems may fairly presumed to be reasonable to maintain the justice under any system.

15. Only after recognition by the International courts, these principles are been considered as sources of International law. Before any such application by the court, the 3 elements has to be considered : It is not limited in scope Rule should be recognised by the States Recognition by majority or most of the States Criticisms : It is not clear whether the general principles must be recognised by all, and if not by all, by how many civilized nations in order to be made applicable by the court. If it is refers to only civilized nation, then do we have uncivilized nations as well. the term ‘civilized’ appears to be superfluous and irrelevant, has no meaning in the modern era.

16. Some of the major important General Principles are: Audi alteram partem [ Fair hearing ] Good faith Pacta sunt servanda Self defence No man may be a judge in his own case Judge must hear both the sides Res-judicata [ the matter has been adjudicated by competent authority ] [ Diversion of Water from Muese – PCIJ 1937] [Chorzow Factory (Indemnity) case – PCIJ 1928 ] Estoppel [ Diversion of Water from Muese – PCIJ 1937] [Case concerning the Temple of Preah Vihear – ICJ 1962 ] Justice, equity and good conscience [R V/S Keyn (Franconia Case) – 1876 ] [Equity principle – Frontier Dispute ( Burkina Faso V/S Mali) - ICJ 1985 ] Reparation [ to change or amend ] [ Chorzow Factory (Indemnity) case – PCIJ 1928 ] Subrogation [ the substitution of one person by another in respect of debt or insurance claim ] [ Mavrommatis Palestine Concessions Case – PCIJ 1964 ] Reciprocity Presumptions Abolition of system of slavery [ US V/S Schooner ]

17. [D] JUDICIAL DECISIONS AND TEACHINGS OF THE QUALIFIED PUBLICISTS : [Art. 38(1)(d)] Judicial decisions do not make the law. They generally state the law . The doctrine of Precedent does not apply in international law. Art. 59 of the ICJ statute, clearly provides that ‘the decisions of the court has no binding force except between the parties and in respect of that particular case. That does not mean the decisions of the court have no legal effect. Some decisions acquire an authoritative status after passage of time.

18. In the Reparation for Injuries Suffered in the Service of the United Nations Case [ICJ 1949], the Court created legal personality for International organisations to sue and to be sued under IL. In Anglo-Norwegian Fisheries Case [ICJ 1950], the court devised the new rule of straight baseline method for the delimitation of maritime boundaries in those States where unusual economic and geographical factors are present. Not only the majority decisions have contributed in the development of IL, but the minority or dissenting views of judges have also had influenced the growth of IL. The dissenting opinion of Judge Moore, in S.S. Lotus Case , concerning penal jurisdiction in matters of collision or any other incident of navigation has been accepted in the Geneva convention 1958 and now in Art. 97 of the UN Convention on the Law of the Sea 1982.

19. International Court : PCIJ – 1926 ICJ - 1945 In modern period, ICJ is the main International Judicial Tribunal . Arbitration is a method of settlement of disputes [Alabama Claims Award – 1872, The Permanent Court of Arbitration (PCA ) was established at the Hague 1899 & 1907 (gave important awards – North Atlantic Fisheries Case – 1910, Savarkar Case – 1911 ) International Military Tribunal [ Nuremberg Judgement ] Municipal / National Courts [the decisions of the municipal courts of a States have little value in IL] [but uniform decisions may create a evidences of international custom] [British Courts - Schooner Exchange V/S McFaddon – laid down the principle of foreign sovereign immunity] Regional courts – European communities, ECHR, Inter-American Court of Human Rights

20. [E] JURISTIC WORKS / WRITINGS OF JURISTS : [Art. 38(1)(d)] The value of the juristic writings carries more weight particularly in those fields of IL where treaty or customary rules do not exist. Justice Gray observed in Paquete Habana Case (US 1900) that ‘where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and as evidence of these, to the works and commentators, who by years of labour, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their author concerning what the law ought to be, but for trustworthy evidence of what the really is’.

21. It is to be noted that the writings of qualified jurists are very often cited in the decisions of the courts. For instance, Frotius , Vattel and Bynkershoek are amongst those whose writings have been quoted by the ICJ and other International Tribunals. [Diversion of Water from the Meuse Case (1937), South West Africa Case (1950), Interpretation of Peace Treaties case (1950), Asylum Case (1950), Reservations to the Genocide Conventions (1951) and Aerial Incident Case (1959), Calvo clause and Drago Doctrine]. In addition to the writings of jurists and publicists, collective work done by the International Law Commission, reports and Secretariat memoranda prepared by the commission, Harvard Research Drafts, the basis of discussion of the Hague Codification Conference and the resolution of the Institute of International Law and other similar bodies are also of considerable value.

22. [F] EQUITY : [Fairness, reasonableness] Equity is used in the sense of considerations of fairness, reasonableness and policy often necessary for the sensible application. In Diversion of Waters of River Meuse case [1937 PCIJ], Judge Hudson said that ‘what are widely known as principles of equity have long been considered to constitute a part of IL and as such they have often been applied by International Tribunals.’ In the Gulf of Maine case [1984 ICJ] it said that the concepts of acquiescence and estoppel in IL are followed from the fundamental principles of good faith and equity. In North Sea Continental Shelf case , the Court rejected the equi -distance method of delimitation of continental shelf on the ground of equitable principles.

23. [G] EX AEQUO ET BONO : [Art. 38(2)] Which means ‘According to the right and good’ or ‘from equity and conscience’. It differs from equity. A case decided ex aequo et bono is not decided on the basis of law but on the basis of ‘such other considerations as the Court may in all the circumstances regard as right and proper.’ An authorisation to decide a case ex aequo et bono is an authorisation to decide a case without reference to the rules of law. The Court may proceed to settle a dispute without strict regard for the rules of IL, but in the light of the justice and merits of the case. [H] RESOLUTIONS OF GENERAL ASSEMBLY : The resolutions and declarations of the General Assembly of the UN, is having legal implications and binding effect under certain specific circumstances. When it is been adopted unanimously, have far more effect and impact. ( eg. , UDHR 1948)

24. [I] DECISIONS OR DETERMINATIONS OF THE ORGANS OF INTERNATIONAL INSTITUTIONS : International organisation in its wider sense, is the process of organising complexity of international relations. They are having autonomy of will, permanency, distinct entity. Power of Europe – seed for present Security Council Hague Conference (1899, 1907) – seeds for present General Assembly Establishment of Public International Unions such as Universal Postal Union and International Telegraph Union (now specialized agencies of UN) – seed for present International Secretariat and specialized agencies. League of Nations – pioneer of International Organisations. UNO, ILO, ICJ

25. [J] OTHER SOURCES OF INTERNATIONAL LAW : International Comity – the mutual relations of nations are based on the principles of comity. In other words, when a State behaves in a particular way with other States, the latter have also to behave in the same way. State Paper – in the modern period almost all the States have diplomatic relations with each other.