Sources of International Law - Essay Example

SOURCES OF INTERNATIONAL LAW. Sources of international law can be defined as the actual materials from which an international lawyer determines the rule applicable to a given situation.1 The term 'Source' refers to methods or procedure by which international law is created.2 The sources of international law may be classified into five categories: - 1. International Treaties. 2. Customary law 3. General Principles of law. 4. Judicial decisions. 5. Doctrinal writings. 1. International Treaties: In the modern period, international treaties are the most important source of international law. This is because, inter alia, the states have found in this source a deliberate method by which to create binding international law. Article 38 of the statute of the international court of justice lists international treaties whether general or particular-establishing rules expressly recognized by the contesting states as the first source of international law. Whenever an international court decides an international dispute its first endeavour is to find out whether there is international treaty, the decision of the court is based on that treaty. According to article 2 of the Vienna convention on the law of the Treaties, 1969, "A treaty is an agreement whereby two or more states establish or seek to establish a relationship between them 1. J.G. Starke, Introduction to International Law, Tenth edition (Butterworth 1998) 2.Edward Collins, International Law in a changing world (1969) p.16 governed by international law." According to Schwarzeberger, Treaties are agreements between subjects of international law creating a binding obligation in international law. International treaties are of two types. Namely: - i. Law making treaties. ii. Treaty contracts i) Law making treaties: The provisions of law making treaties are directly the source of international law. Law making treaties are divided into two. a) International treaties which lay down general principles example, 1958 Geneva convections on the law of the sea and Vienna convention on the of treaties, 1969. b) Treaties enunciating rules of universal international law, i.e.United Nations charter ii) Treaty contracts: Treaty contracts are entered into by two or more states. The provisions of such treaties are binding on the parties to the treaty. 2. Customary law: International customs are the oldest and the original source of international as well as of law in general.3 Article 38 (b) of the statute of international court of justice recognises international custom as evidence of general practice accepted as law. Elements of customary law. i) Long duration: - This is true of a custom in municipal law. However, this requirement is not necessary in international law. Article 38 of the statute of the international court of justice directs the world court to apply international custom as evidence of a general practice accepted as law. Emphasis is not given on a practice being repeated 3.Oppenheim's International Law, note 4 p 25. ii) Uniformity and consistency: The custom should be uniform and consistent. In the asylum case4 the International Court of Justice observed that the rule invoked should be in accordance with a constant and uniform usage practiced by the states in question. Article 38 of the statute of the court, which refers to international custom as evidence of a general practice, accepted as law. In its judgment of 27 June, 1986 in the case concerning Military and paramilitary activities in and against Nicaragua5 while referring occasional violations of the principles of non- intervention the International Court of Justice observed: "It is not to be expected that in the practice of states the application of the rules in question should have been perfect in the sense that states should have refrained, with complete consistence, from the use of force or from intervention in each other's internal affairs. The court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule."6 iii) Generality of the rule: Although universality of practice is not necessary, the practice should have been generally observed or repeated by numerous states. iv) Opinion juris et necessitates: - According to article 38 of the statute of the statute of the International Court of Justice International custom should be the evidence of general practice accepted as law. In the North Sea continental cases 7, the world court observed, "Although the passage of only a short period of time is not necessary, one of itself, a bar to the formation of a new rule of customary international law on the basis of what was 4. I.C.J. Rep (1950) pp 276-279. 5. I.C.J. Reports 1986, p 14 6. Torstein Gihl, "The legal character and sources of international Law" p. 59 7.I.C.J Report (1969) p.3 at p.43 originally a purely conventional rule an indispensable requirement would be that within the period in question, short though it might be, state practice, including that of state whose interests are specially affected, should have of the provision involved, and should moreover have occurred in such a way as to show or legal obligation is involved." Customary law will be applied in international law. In West Rand Central Gold Mining company Ltd v. R, 8 a test regarding general recognition of customary law was laid down. The court ruled for a valid customary law it is necessary that it should be proved by satisfactory evidence that the custom is of such nature that it has received general consent of the statues and no civilized state shall oppose it. 3. General principles of law. Para (1) of Article 38 of the statute of international court of justice list general principles of law as the third source of international law. According to G. Von Glahn, a renowned author of International Law, two views are prevalent about the phrase 'general principles of law recognized by civilized nations. 'One view include such general principles (such as: both sides of a dispute should be given a fair hearing and no one can sit in judgment in his case) which are found in domestic jurisprudence and can be applied to international legal questions. The other view regards the phrase as linked to natural law as interpreted during recent centuries in the Western world. According to this view general principles of law recognized by civilized Nations have emerged as a result of transformation of broad universal principles of law applicable to all the mankind into specific rules of International law. Therefore the general principles of law must be recognized by civilized states. Domestic law of a large 8. (1905) 2. K.B. 291. number of states does not automatically become a principle of international law. The World Court resorts to the application of this source only when in a case before it, there are neither an International Treaty nor a Custom in respect of the dispute involved. Article 38, Paragraph 1(c) of the statute of the international court of justice places on record one of the main sources of the rules of public international law. It describes the in exhaustible reservoir of legal principles from which the tribunals can enrich and develop public international law 9. Further general principles of law as systems of law, or those derived from them, but can be traced in Islamic law, customary laws in Africa, religious law in India and traditional laws in China and Japan. 10 Res Judicata, estoppel e.t.c.are examples of the general principles of law recognized by civilized states. Cases related to principles of Law. i) United States v. Schooner. In this case justice Storey of United States of America ruled that International law should be based on the general principle of law recognized by civilized States. He was giving decision related to abolition of system of slavery. ii) Chorzow Factory (Indemnity Case) 11: In this case the International Court applied the principles of Res Judicata and also held that one who narrates a rule is liable to make reparation. 9.Lord McNair,"The general principles recognized by Civilized Nations" (1957). 10.General principles of Law I.J.I.L., (1970) 11. Pub. P.C.I.J. (1928), series A, No. 17 The International Court has recognized as general principles: (i) Good faith (ii) Responsibility (iii) prescription (iv) In the absence of any express provision to the contrary, every court has right to determine the limits of its own jurisdictions (v) a party to the dispute cannot himself be an arbitrator or judge (vi) Res Judicata (vii) In any Judicial proceeding the court shall give proper and equal opportunity of hearing to both parties 4. Judicial Decisions: In the modern period, International Court of justice is the main International Judicial tribunal. It was established as a successor of the Permanent Court of International Justice. Decisions of International Court of Justice do not create a binding general rule of International Law. Article 59 of the statute of the International Court of justice makes it clear that the decisions of the court will have no binding force except between the parties and in respect of that particular case. In principle the court does not follow the doctrine of precedent, but in practice, it ordinarily follows it. According to Article 38(1) (d) subject to the provisions of Article 50, judicial decisions are subsidiary means for the determination of rules of law. Thus judicial decisions unlike customary law and treaties are not direct sources of law; they are subsidiary and indirect sources of International law. State Judicial Decisions: They may become rules of International law in the following ways: - a) State Judicial Decisions are treated as weighty precedents. In the words of Chief Justice Marshall of the Supreme Court of America," The decisions of the court of every country show how the law of the nations in the given case is understood in that country will be considered in adopting the rule, which is to prevail in that case.12 b) Decisions of the state courts may become customary rule of international law in the same way as customs are developed. Decisions of International arbitral tribunals: According to some jurists, these decisions cannot be treated as sources of International Law. In most arbitral cases, arbitrators act as mediators and diplomats rather than as judges. The Kutch Award (1998) bears testimony to this fact. Judge Lauterpacht has aptly written, "One of the reasons usually given for its (Permanent court of Arbitration) inadequacy was that the awards rendered by its Tribunals were not legal in form and substance, they tend to confuse law with a diplomatic solution aiming at pleasing both parties."13 6. Doctrinal Writings: (Work of Jurists) Although doctrinal writings or juristic works cannot be treated as independent source of International law, yet the view of the jurists may help in the development of law. According to Article 38 of the International Court of Justice, the works, or writings of highly qualified jurists are subsidiary means for the determination of the rules of International law. The importance of doctrinal writings has been stressed by Justice Gray in Paquete Habana.14 in his words." Where there is no treaty and no controlling executive of legislative act or judicial decision, resort must be had to the works of jurists and commentators who by years of labour, research and experience have made themselves 12.Thirty Hogsheads of sugar, Bentzon v. Boyle (1815) 13.Sir Hersch Lauterpacht, The development of International Law (1958) pp 5-6 14. (1900) 175 U.S.677 p 700. Peculiarly well acquainted with the subjects which they treat. Such works are resorted to by judicial tribunals not for the speculations of their authors concerning what the law ought to be but for trustworthy evidence of what the law really is." HIERACHY OF INTERNATIONAL LAW. International law has a hierarchy of its sources. Not all sources are same. Some are important than others. Therefore the hierarchy of sources can be summarized in order of their importance as follows: - 1) International treaties: These are the most important source of international law. This is because inter alia the states have found this source a deliberate method by which to create binding international law. The international courts rely on the existing treaties in making their decisions. 2) Customary law: This is another important source of international law. It " is the oldest and original source of international law in general."15 However in the modern period, customary law has suffered a setback. Article 38 (b) of the statute of international court of Justice recognizes international custom as an 'evidence of general principles accepted as law' as one of the sources of international law. 3) General principles of Law: Para (1) of Article 38 of the of International Court of justice lists general principles of law recognized by civilized nations as the third 15. Ibid p 1. source of International law. In the modern period, it has become an important source. It " Constitutes an important landmark in the history of International law In as much as the state parties did expressly recognize the existing of third source of International law independent of custom and treaty.16 This source help International law to adapt itself with the changing times and circumstances 4. Judicial decisions: International court of justice does not create a binding general rule of international law. Therefore it should be noted that the international court does not rely on precedents. Mostly, the world court relies on existing treaties. In the absence of such a treaty the court can consider other sources. Judicial treaties unlike customs and treaties are not direct source of international of law, they are subsidiary and indirect sources of international law. 5. Doctrinal writings (Works of Jurists): These writings of Jurists cannot be treated as independent source of international law. However, the view of the jurists helps in the development of law. These writings become instrumental in the development of international customs. According to Article 38 of the international court of justice, the works of highly qualified jurists are subsidiary means for the determination of the rules of law. 16. Ibid p.5 Bibliography 1. Nordic Journal of International Law, No.11o73, Brill publishers. 2. A.M. Bonnici, Treaties and International Law, fourth edition, Butterworth. 3. American Journal of International Law, Prof. Jochen Frowein. 4. Chinese Journal of International Law, Volume 1, Number 1. 5. Dr. S.K. Kapoor, International Law, 13th edition, 2000, Central Law Agency. 6.M.N.Singh, International Law, 8th edition, 2002, Prentice hall. Read More