Sources of
International
Law
• Article 38 of International Court of Justice:
• 1. The Court whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
• (a) International Conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
• (b) International Custom, as evidence of a general practice accepted as law;
• (c) the General principle of law recognized by civilized nations;
• (d) subject to the provisions of Article 59, judicial decision and the teachings of the most highly qualified publicists of the nations, as subsidiary means for the determination of rules of law;
• 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
• So, there are five sources of international law mentioned in Article 38:
• International Conventions
• International Custom
• General principles of law recognized by civilized nations
• Judicial Decisions
• Ex aequo et bono or principle of equity and good conscience.
International Conventions.
Conventions includes - Treary, Protocols, Agreements, etc.
Article 2 of Vienna Conventions of the Law of Treaties
“A treaty is an agreement whereby two or more states establish or seek to establish relationship between them governed by International Law.”
• Four types of Treaties:.
I. Universal Treaties: Almost all states are parties, e.g., UN Charter
II. Regional Treaties: Unilateral treaties based on specific regions.
III. Unilateral Treaties: Formed between more than two states.
IV. By-lateral Treaties: Formed between two states.
Universal Treaties are deemed to obliged also by the states who are not the parties
• Law making Treaties:
Entered into a large number of states. All of them are bound by the obligations given therein, e.g., UN Charter.
• Treaty Contracts:
Entered into by two or more states and binding only on the parties.
• Case: North Sea Continental Shelf Cases Federal Republic of Germany V Denmark and Netherlands;1969 (ICJ)
• Denmark and Netherland argued that the "equidistance-special circumstances principle" in Art 6(2) of the 1958 Geneva Convention on the Continental Shelf will be applicable to delimit the North Sea Continental Shelves between these three countries. The Court is of opinion that Germany had not ratified the relevant Convention and was therefore under no obligation to heed its terms. Because Parties that do not sign and ratify the particular treaty in question are not bound by its terms.
• However, where treaties are universally recognised and reflects customary law then non-parties are bound, not because it is a treaty but because it reaffirms a rule or rules of customary international law.
International Customs
Custom is a habit which has been repeated for a long time and has ultimately assumed the force of law.
Ingredients or elements of custom:
✔ General practice accepted by law
✔ The custom should be uniformed and consistent
✔The practice should have been generally observed or repeated by numerous states
• "Opinio juris sive necessitatis" (opinion of law but of necessity), a practice will become a part of international custom when states believe or accept that a practice exists and must be followed because of a rule of law requiring it.
• Case: The Lotus Case (France vs. Turkey,PCIJ, 1927)
• France argued that there existed a rule of customary law to the effect that flag state of the accused (France) had exclusive jurisdiction in such cases and that accordingly the national state of the victim (Turkey) was barred from trying him.
• The Court rejected this and declared that even if such a practice of abstention from instituting criminal proceedings could be proved in fact, it would not amount to a custom) That abstention could only give rise to the recognition of a custom if it was based on a conscious duty to abstain.
• In other words, states had actually to be aware that they were not acting a particular way because they were under a obligation not to do act that way. Thus, the essential ingredients of obligation was lacking and the practice remained a practice, nothing more.
General Principles of Law recognized by civilized states
Includes such legal principles that are common to a large number of systems of municipal law.
• These are not the direct source.
If there remains any conflict between customary law and treaty law, or
If there is absence of any international law, these general principles would be required.
• Examples:
• lex specialis derogat generali (special law prevails over general law)
• lex posteriori derogat priori (more recent lawas prevails over an inconsistent earlier law)•
• Nemo plus juris transferre potest quam ipse habet (no one can transfer more rights to another than he himself has)
Chorzzow Factory Case (Germany Vs. Poland, PCIJ,1928)
• PCIJ declared that it is a general conception of law that “every violation of an engagement involves an obligation to make
reparation”
• The Court also regarded it as:
• “A principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage
which the nationals of the injured state have suffered as a result of the act which is contrary to international law.”
•
Bercelona Traction Case (Belgium Vs. Spain, ICJ, (1970)
• ICJ relied heavily upon the municipal law that Company is a separate legal entity from its shareholders and there are no corresponding institutions of international law to which Court could resort.
Therefore, the suit had to be maintained by Canada and not by Belgium.
Judicial Decisions
Article 38 (1) (d) of the Statute of ICJ:
Subject to the provisions of Article 59,
“Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”
Article 59: The decisions of the court has no binding force except between the parties and in respect of that particular case.
So, the international judicial decisions are not legally binding.
Principle of equity and good conscience
• Article 38(2) of the statute of ICJ gives the
power to the court to decide a case on the basis of ‘equity and good conscience’.
• Case: Fisheries Jurisdiction Case (1974) (UK, Northern Ireland Vs. Iceland)
The Court found that Iceland and Uk are under mutual obligations to undertake negotiations in good faith for an equitable solution. The Court also indicate factors which are taken into account in these negotiations (preferential rights of Iceland, established rights of the UK, interests of other states, conservation of fishery resources, joint examination of measures required).
Soft Law (Not mentioned in the ICJ Statute)
• Refers the quasi-judicial instruments which do not have any legally binding force, or whose binding force is somewhat weaker than the binding force of traditional law.
Examples:Most Resolutions and Declarations of the UN General Assembly.
• "Hardening" of Soft Law may happen in two different ways:.
When declarations, recommendations, etc. are the first step towards a treaty-making process,
When a non-treaty agreement is intended to have a direct influence on the practice of the states.
Examples:
Principles of Universal Declaration of Human Rights 1948 now adopted as the are Fundamental Rights in our
Constitution.
