Sources of international law (by Advocate Raja Aleem)
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Sources of international law (by Advocate Raja Aleem)

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International Law is a rule that has been accepted as such by the "International Community". ...

International Law is a rule that has been accepted as such by the "International Community".

The legal process that concerns relations among nations is called international law.
International law is a body of rules that govern relations between states, functioning of international institutions/organizations and rights and duties of individuals.

(There are three International Relationships are governed by “International Law”.)
1)Those between Nations and Nations
2)Those between Nations and persons; and
3)Those between Persons and Persons

Sources of International Law:

The term ‘source’ refers to methods or procedure by which International Law is created.

There are five sources of International law, According to section: 38(1) of the statute of the “International Court of Justice”. These are:

1.International Conventions or called “Treaties”
2.International Customs
3.General Principles of Law recognized by Civilized Nations
4.Decisions of Judicial and Arbitral Tribunals; and
5.Juristic Works or called “Writing of Eminent Jurists”

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Sources of international law (by Advocate Raja Aleem) Sources of international law (by Advocate Raja Aleem) Document Transcript

  • What is International Law? International Law is a rule that has been accepted as such by the "International Community".  The legal process that concerns relations among nations is called international law.  International law is a body of rules that govern relations between states, functioning of international institutions/organizations and rights and duties of individuals. (There are three International Relationships are governed by “International Law”.) 1) Those between Nations and Nations 2) Those between Nations and persons; and 3) Those between Persons and Persons Sources of International Law: The term ‘source’ refers to methods or procedure by which International Law is created.  There are five sources of International law, According to section: 38(1) of the statute of the “International Court of Justice”. These are: 1. International Conventions or called “Treaties” 2. International Customs 3. General Principles of Law recognized by Civilized Nations 4. Decisions of Judicial and Arbitral Tribunals; and 5. Juristic Works or called “Writing of Eminent Jurists” 1
  • i. Treaties or International Conventions: Treaties are written agreement between states, which binds all states. The International Treaties and Conventions are the most important source of “International Law”  Treaties: are agreements between two or more states.  Conventions: are agreements sponsored by “International Organizations”. There are two types of International Treaties: a) Law making treaties; and b) Contractual Treaties or Treaty contracts a) Law making treaties: Are those treaties which a large number of states have concluded with a purpose either declaring their understanding on what law is on a particular subject, or laying down a new journal rule for the future conduct or of creating new International Institutions. [Law making treaties are source of International Law] b) Contractual treaties or Treaty contract: Contractual treaties are carried out by two or more states creating mutual right and duties, between the parties, but not for a community as such. They all are on reciprocal bases. 2
  • ii. International Customs: International Customs are second most important and prominent source of “International Law”. Customary rules of International Law are the rules which have been developed in a long process of historical development. Article: 38(b) of the statute if International Court of Justice recognizes ‘International Customs’ “as evidence of general practice accepted as law” as one of the sources of International Law.  To understand the „custom‟ it is necessary to understand the meaning of word “Usage”. Usage: The word ‘custom’ and ‘usage’ are often used as synonymous. In fact, there is difference between the usage and custom, and they are not synonymous. Usage is in fact the early stage of “custom”.  Usage means those habits which repeated by the states.  As pointed out by the STARKE, “where a custom begins, usage ends”. Usage may be inconsistent and opposed to each other. But this can never be the case with custom. o When this usage receives the general acceptance, recognition by the states in their relations with each other then there develops a conception that such a habit, or behavior has become right as well as obligation of the states and in this way usage becomes the custom. 3
  • Ingredients or Elements of Custom: i. Long Duration: Long duration is generally said to be an essential ingredient of a custom. But this is not true in international custom its true at the level of ‘Municipal Law’ in which custom is required to be ancient and immemorial. According to article: 38 of the statute of the International Court of Justice directs the world court to apply “International Customs” as evidence of a general practice which accepted as a law. There in International Customs the ‘CUSTOM’ is not necessary to be a “long duration” in practices concerned in field of ‘International Law’ customs has emerged in a short duration. ii. Uniformity and Consistency: The custom should also be uniform and consistent. In this ingredient the necessity is the ‘Uniformity and Consistency’ of custom. It may, however be noted that complete uniformity is not necessary. Nevertheless, there must be substantial uniformity. iii. Generality of Practice: Although universality of practice is not necessary, the practice should have been generally observed or repeated by numerous states. 4
  • iii. General Principles of Law: Article: 38 of the statute of International Court of Justice lists ‘General Principles of Law’ Recognized by Civilized States as the third source of International Law. In the modern period, it has become an important source. This source helps International Law to adapt itself in accordance with the changing, times and circumstances.  By General Principles of Law Recognized by Civilized States we mean those principles which have been recognized by almost all the states. [It may be noted here that a principle of law which is recognized by domestic law of a large number of states does not automatically become a „principle‟ of International Law] It becomes a principle of International law only when it is recognized as such by the ‘Court of Justice’, World Court.  Res judicata, estoppels, etc are the examples of the “General Principles of Law Recognized by Civilized States. These principles are such as have received recognition by almost all the states. They have, therefore, been included as the principles of international law. General Principles of Law Recognized by Civilized States include procedural as well as substantive principles provided that they have received general recognition of civilized states. 5
  • iv. Decisions of Judicial and Arbitral Tribunals: In the modern period “International Court of Justice is the main International Judicial Tribunal”.  It was established as a success of the Permanent Court of International Justice. [It may, however, be noted that the decision of International Court of Justice does not create a binding rule of international law.] Article: 59 of the statute of the International Court of Justice make it clear that the decision of the Court will have “no binding force except between the parties and in respect of the particular case.” There is also a another “International Court”, which is ‘International Criminal Court’, which prosecutes individuals for genocide, war crimes, and other serious crimes of international concern. There are two ways in which the decision of International Courts may leads to the formation of rules of International Law: a) The decision may be treated as weighty precedents, or even as binding authorities. According to Marshall, C.J, of the United States Supreme Court: “The decisions of the Courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rules which are to prevail in this”. b) The decisions of state court may, under the same principles as dictate the formation of custom, lead directly to the growth of customary rules of international law. 6
  •  Decisions of International Arbitral Tribunals: In the view of some jurists the decision, of International Arbitral Tribunals cannot be treated as source of International Law. These jurists have, rightly too, pointed out that in most of the arbitral cases, arbitrators act like mediators and diplomats rather than as judges. [Consequently, their decision cannot be treated as source of International Law.] There are many notable examples of Arbitral Decisions which are regarded as landmarks in the history of International Law: 1. 2. 3. 4. Alabama Claims Arbitration (1872), Bering Sea Fisheries Arbitration (1883), Pious Fund Case (1902), and the North Atlantic Fisheries Case (1910) The main distinction between arbitration and judicial decision lies not in the principles which they respectively apply, but in the manner of selection of the judges, their security of tenure, their independence of the parties, and the fact that the judicial Tribunal is governed by a fixed body of rules of procedure instead of by ad hoc rules for each case. 7
  • v. Juristic Works: Although the “Juristic Works” cannot be perceived as an independent source of International Law, yet the view of the jurists may help in the development of law. The views of the jurists are not direct sources of International Law. But they sometimes 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 International Law. According to the report of one expert body of the League of Nations, juristic opinion of only import as a mean of throwing light on the rules of International Law and rendering their formation easier. [The decisions of court and tribunals as well as scholarly writings are not intended to be sources of law in the strict sense. In other words, courts of law and legal scholars are not supposed to create the law. They are merely called upon to shed light on existing laws, and to clarify legal provisions through their decisions and writings.] 8