Chapter 1 DEFINITION AND CONCEPT OF INTERNATIONAL LAW
1. Definition: International Law or the law of Nations as it was called, have been given many definitions. The understanding and the definition changed with the development of time. Here is the small effort to carve out certain important definitions as given by certain very famous scholars of their times.
Oppenheim “Law of Nations or International Law is the name for the body of customary and treaty rules which are considered as binding by the state in their intercourse with each other.” There are three main elements present in this definition
- Body of rules governing the relation between the states.
- States regard them binding in their relation with each other.
- Rules are derived from customs and Treaties.
- This traditional definition of International law given by Oppenheim does not take into consideration International Organization and Institutions.
- Individuals are also not recognized as the subject of International law.
- Customs and Treaties are not the only sources of International law. There are other sources too.
- International law is not static as given in this definition ( body of rules) as law is an ever changing concept.
- MNC’s are also excluded from this definition.
Sir Robert Jennings and Sir Arthur Watt revised this definition of International law as— “International Law is the body of rules which are legally binding on states in their intercourse with each other. These rules are primarily those which govern the relations of the states, but states are not the only subject matter of international law. International Organization and to some extent; also individuals may be subject of rights conferred and duties imposed by international law. Starke “ International law is that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore do commonly observe in their relation with each other and which also includes
- The rules relating to the functioning of international organization and international institutions, their relation with each other and their relations with state and individuals.
- Certain rules and law relating to Individuals and non state entities so far as the rights and duties of such individuals and non state entities are concern of the other international community.
This definition has its own limitations as to it enumerates the subjects of International law and in case there is an entity whose rights and duties are not enumerated, starke definition will fail. Schwarzenberger “International Law as the body of legal rules which apply between sovereign states and such other entities as have been granted international personality.” Whiteman defined International Law as-- The standard of conduct at a given time, for states and other entities subject thereto.
On the basis of above definition we may conclude that international law is a body of rules and principles which regulate the conduct and relations of the members of international community. The contention that states alone are the subject matter of international law is not only inconsistent with the changing nature of international law but has become completely obsolete and inadequate. Individualistic character of international law is being replaced by the law of social inter-dependence. International law has been remarked as a “ living and expanding code”. In view of some changing character and expanding scope of international law today, international institutions, some non state entities and individuals have also become the legitimate subjects of international law.
Thus, international law is constantly evolving body of norms that are commonly observed by the members of international community in their relation with one another. These norms confer rights and impose obligations upon state and to a lesser extent, upon international organizations and individuals. Moreover, International law has effects on, and effected by the international relations, political thought and communications, as well as by the awareness of women and men in every state that they are part of those addressed by the United Nations as being “ we the people of the United Nations”.
2. Nature of International Law:
The status of international law is the most controversial and debated topic among the jurist all over the world. The important to be debated is whether international law is really a law or not? Or is it just a code of rules of conduct of moral force only? In order to understand the real nature of international law it is important to take into consideration how the various theorists have defined the tern “law”. Austin’s view: The supporter of the positivists school like Hobbes, Bentham and Pufendrof are of the view that international law is not a true law as it is not binding on the states. Many other prominent jurists took the similar view. The most prominent amongst them is the
British jurist Austin who believed that law is the command of the sovereign attended by sanction in case of violation of the command. In other words law should be limited to the rules of conduct enacted by a determinate legislative authority and enforced by physical sanction. The definition of law as given by Austin basically has two parts:
- any rule which is not enacted by sovereign or superior cannot be regarded as law;
- command must be enforced by the sovereign authority.
According to him existence of both is necessary for any law to be called as “ Proper Law” and other senses of law are “ improper law” . International law is law improperly so called because it has neither sovereign authority to enact laws nor there is adequate sanction behind it.
Since the international law governs the relation of the states inter se and there is sovereign political authority of the state inter se, there is no supreme executive government to execute these laws nor there is any judicial organization with compulsory jurisdiction , it can not be said to be law. Criticism: Austin’s view has been vehemently criticized by mane jurist. According to Sir Henry Maine and Savigny Austin has not taken into consideration certain important facts which are necessary as to:
- he completely ignores the customary or unwritten laws and only treats laws enacted by the sovereign legislative authority as law.
- Laws are not only obeyed because of the fear of sanction behind them, they are also observed because of habit of mind and practice of communities.
Comparison with the contemporary international law: When Austin regarded the International Law as positive morality he was right as during that time the international community lacked legislations, a court who will settle the disputes, the sanctioning power and the enforcement machinery. But if look at the developments that has taken place at the international level we will be able to see that this statement of Austin hold no water now.
The international legislation has come into existence with treaties and conventions and has the binding force behind them. The states consider themselves bound by the laws as laid down by those treaties and conventions. When so ever there is any violation of any law in international community then the other states along with the United Nation can act against such sate who does so.
There are international courts who deal with disputes if any which arises between or among the states in the international community and the decisions given by such court binds the parties to the suit. If there is any state who does not follow the decisions of the court the Security Council has the power to enforce the decisions of the court. Oppenheim’s view: Another famous jurist Oppenheim defines law as a body of rules for human conduct within a community which by a common consent of the community shall be enforced by external power.
Thus this definition of Oppenheim has three main parts:
- there must be a community;
- there shall be a body of rules to govern the community;
- there shall be a common consent of the community that the rules be enforced by external power.
Comparison with the contemporary international law: When we look at the definition of Law as given Oppenheim and compare it with the present concept of international law, the international law satisfies all the requirement of law. There is an international community present at the international level which is the community of nation. Customs and the treaties have in them set rules which govern the conduct of the members of the international community. The international communities do accept that these set rules are binding on them and are governed by them. There have been many treaties concluded between and among the states and though there are few breaches too but it cannot refute the existence of the international law.
Thus we can deduce that no matter how law is defined by various jurists, international law more or less finds its place in the definition of law and can be said to be the true law. 3. International law as weak law International law is a law in the true sense of the term which is in turn affirmed by the state practice as well as the practices of the international judicial institutions. International law is observed by all the state atb the international level because it is crucial for the peaceful relations and cooperation.
Never the less it has to be conceded as a weak law. There are many reasons behind saying so which can be summarized as:
- International law is not as efficient and as effective as the state legislative machinery as wide options are given to the state parties through customs and treaties.
- Courts at the international level act with the consent of the state and don’t have jurisdiction to decide the disputes of al the states.
- Under International law the enforcement measures are not effective as courts do have real power to enforce its decisions.
- Rules as laid down at the international level are frequently violated by the states. International law is a weak law on the institutional side as there is no legislature, the court though present is not strong enough and has no real powers to enforce its decisions.
There is an urgent need to develop formal institutions which will be responsible for law creation and enforcement. There shall be a strong enforcement mechanism and for which the state cooperation is the need of the hour. 4. Scope of International Law: The scope of International law is wider than any other law and this can be rightly understood from the definitions given by various jurists and scholars. In ancient times the interaction between social groups was not frequent for obvious reasons. The emergence
of nation states, industrial revolution and scientific and technological advancement brought the states closer and in frequent relations with each other. This led to the foundation of practices and rules regulating their inter se relations. These rules were commonly known as “ The Law of Nations” . It has also been termed as transnational law and was not confined to merely European states but such relations can be traced back from the mutual relations adopted in the ancient India amiability of messengers and rules of war fare are some examples.
Public international law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. International law is similarly concerned with the treatment of individuals within state boundaries.
There is thus a comprehensive regime dealing with group rights, the treatment of aliens, and the rights of refugees, international crimes, nationality problems, and human rights generally. Whilst municipal law is hierarchical or vertical in its structure (meaning that a legislature enacts binding legislation), international law is horizontal in nature.
This means that all states are sovereign and theoretically equal. As a result of the notion of sovereignty, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, it is thought by many international academics that most states enter into legal commitments with other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own.
Traditionally, sovereign states and the Holy See were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law1 have been inclusive of corporations, and even of certain individuals. North American Free Trade Agreement (NAFTA) Chapter 11.
International law in the second half of the 20th century has been developing many directions, as the complexities of life in the modern era have multiplied. As has always been emphasized, law reflects the conditions and cultural traditions of the society within which it operates. The community evolves a certain specific set of values, social, economic and political, and this makes its mark on the legal frame work of the environment in which we live. International law is a product of its environment and has developed in accordance with the prevailing notions of international relations in harmony most essential for its survival. Nevertheless there is a continuous tension between rules already established and the constantly evolving forces that seek changes within the system.
One of the major problems of international law is to determine when and how to incorporate new standards and realities of life in to the existing framework so that both law and system work simultaneously. Changes that occur with in the international community can be momentous and reverberate throughout the system. For example the advent of nuclear arms created a status quo in Europe and the balance of terror throughout the world.
The scope of international law today is immense from the regulation of space expeditions to the question of division of the ocean floor, and from the protection of human rights to the management of the international financial system, its involvement has spread out from the primary concern with the preservation of peace to all the interests of contemporary international life.
The determining factor of international law lies in its composition consisting of needs and characteristics of the international political system. International law has developed since the 17th century and has adopted the same approach in general the ideas of permanent hostility and enmity the state while internally supreme wishes to maintain its sovereignty externally and needs to cultivate other states in an increasingly inter dependant world, so it must acknowledge the right of others.
The acceptance of rights possessed by all states leads to a system to regulate and define such rights and of course obligations. International law reflects the first and fore most basic state oriented character of world politics examples can be non intervention in internal affairs territorial integrity, non use of force and equality of voting in the United Nations General Assembly.
In addition to this many factors cut across state borders and create tension in world politics, such as inadequate economic relations international concern for human rights and the rise in new technological force. State policies and balances of power both international and regional are necessary framework within which international law operates, as indeed are domestic political conditions and tensions. It is also important to note that states need law in order to seek and attain certain goals of economic well being, survival and security or ideological advancement.
The system therefore has to be certain enough for such goals to be ascertainable and flexible enough to permit changes if the situation so demands. The growth of positivism in the 19th century had the effects of focusing the concerns of international law upon sovereign states. The Nuremberg and Tokyo tribunals set up by the victorious alliance after the Second World War were vital part of the process it was recognition of individual responsibility under international law with out the usual inter position of the state. ‘Similarly in 1948 genocide convention provided for the punishment of offenders after conviction by national courts or by international criminal tribunal. The universal declaration of human rights adopted by the United Nations listed a series of political and social rights.
The European convention for the protection of human rights and fundamental freedoms signed in 1950 and the International Covenants on human rights of 1966 are of different nature and binding upon the signatories. International organizations have now been accepted as possessing rights and duties of their own and are distinctive legal personalities. The international court of justice in 1949 delivered an advisory opinion that United Nations was a subject of international law and could enforce its rights by bringing international claims. Such a ruling can be applied to other international institutions like the ILO and the FAO which have a judicial character of their own.
They have been joined by other non state entities whose importance is likely to grow in the near future. The growth of regional organizations should also be noted at the same time in this stage. Many of those were created for reasons of military security, for example, NATO and the opposing Warsaw Pact Organizations, others as an expression of regional and cultural identity, such as the OAU and OAS.
Many of these have already been referred to such as, the vital field of human rights, international economic matters concerning development, environmental despoliation, the space exploration effort and the exploitation of the resources of the oceans and deep sea bed. One can also mention the provisions relating to the bureaucracy of international institutions (international administrative law), international labour standards, health regulations and communication controls. 5. Theories of International Law: International law is a true a law in sense and it is necessary to see as to what is the true basis of international law.
There are two main Theories 1) Theories as To Law of Nature: - The jurist who adhere this theory is of the view that International law is a part of the law of nature. State follows because it is a part of the Law of Nature. J.G.Starke “ State submitted to International Law because their relations were regulated by higher law, the “ law of nature” of which International Law was but a part. Meaning of Law of Nature to understand Earlier/beginning law of nature connected with religion, regarded as Devine law, law of god and religion.
The jurist of 16th and 17th Century secularized the concept of law of nature. The credit goes to eminent jurist Grotious, he expounded secularized concept. According to him natural law was the “ Dictate of right reasons” . His followers applied as “ an ideal law, which was founded on the nature of mans a reasonable being, the body of rules which nature dictates to human reasons” It is binding because applied in special circumstances. Natural law is the base of International law According to Vattel 18th Century jurist. Pufendorf, Christian etc. are other prominent exponents of law of nature.
Criticism; General objection each theorist uses it as a metaphor. Different jurist gives different meaning, such as reasons, justice, utility, general interest of international community etc. It’s very vague and uncertain. It’s not based on actual practice and realities of State.
Still it influenced the growth of International law. Traces of “ Law of Nature” theory survive today, albeit in a much less dogmatic form. 2) Theory Of Positivism; - This theory is based on law positivism i.e. law which is in fact as contrasted with law which ought to be. According to Positivist “ law enacted by appropriate legislative authority is binding” . It is based on actual practices of states. Treaties and customs are the main source. It was vague in 18th century.
Bynker shoek is the main or the chief exponent. In the ultimate analysis, will of the state is the main source of International law .J.G.Starke “ International Law can in logic be reduced to a system of rules depending for their validity only on the fact that states have consented to them” . Briely pointed out that” International law is the sum of rules by which states have consented to be bound and that nothing can be law to which they have not consented to be bound” . The concept of state will was first propounded by Hagel he is a German philosopher.
According to positivist, international law is a body of rules which has been consented to by the states and accepted as binding by way of voluntary restriction or auto limitation. Anzilotti is the chief exponent explains “ the binding force of International Law is founded on a supreme principle or norm known as Pacta Sunt Servanda” .The basis of each rule of International Law is in Pacta Sunt Servanda some or the other way.
Criticism Mostly based on actual practices of states, but this view has been subjected to lot of criticism. Concept of the will of states purely metaphorical. Based on consent of state is far from truth. Like custom is evident from a general practice accepted by law. It is not required there should be any express recognition by states.
This practice is binding upon them and the “ consent of states” has tried to establish that the rules of International customs are based on “ tacit agreements” between states .but in reality it is not possible to prove that these rules comes into existence in such a way. • The fact that the new state entering into the community of nations at once becomes bound by the international customary rules and in this no consent is taken by that particular state ,Because it is already existing, on the other hand the new state is not bound by any international convention already in force unless it expressly adheres to it. • • It is not necessary to show that a particular rule of general international law, the state had given there consent.
There are certain principles of international law which are applicable for states whether they have given the consent or not. Like in UN Charter Art 2(6) provides “ the other state who were not the members act in accordance with the principles. (Contained in Art 2 of the charter, for the maintenance of international peace and security. • “ Pacta Sunt Servanda” arises from Pacta. Other Theories 1) Theory of Consent: - Consent of states is the basis of International Law. The states observe rules because they have given the consent .Positivist supports this theory abolished by most theorists, it seems uncompatiable with the fact that not all obligation under international law
.States are bound observe customary rules of International law, because they have given their implied consent for there acceptance .It is a state oriented theory. Criticism States are bound by International law whether they have given the consent or not. 2) Auto Limitation: - International Law is binding upon States because they have restricted their powers through the process of Auto Limitation and never agreed to abide by International law. It is also based on positivist. Jellinck is the chief exponent of this theory
. The basis of this theory is this that each state has a will which is completely independent and free from external influences, but with the process of auto limitation sate can restrict their powers. “ States are not bound to follow international law because they are independent and sovereign but the state can make themselves bound by rules of international law by restricting its powers. Criticism Based on presumption that there exist a state will, in fact the will of the state is nothing but the will of the people who compose it. Auto limitation is no limitation at all. States can free itself from self-imposed restriction its will. In practice it is not possible. 3) Pacta Sunt Servanda:- Anzilotti is the chief exponent.
According to him the binding force of International law is based on the supreme fundamental norm or principle, known as Pacta Sunt Servanda, means the agreement entered into by states will be respected and followed by them in good faith. The positivist supports this theory. Criticism • It can not be admitted that it is very important principle.
If a state does not follow the agreement there would be anarchy and disorder in international field. It is far from the truth. It fails to explain the binding force of customary rules of international law. Theory of Fundamental Rights: - This theory is based on naturalistic view point. Prior to the existence of state man used to live in natural state and even in that state he possessed some fundamental rights such as independent, equality, right to selfpreservation like man states also possessed these rights and no one is above the states.
Criticism Criticism by J.L.Briely • A new state is admitted to family of nations it brings with it certain fundamental rights which are inherent. As a matter of fact such right is meaningless unless there is a legal system binding on them. • It can not be commended because it is in favour of giving more freedom to the states and lays less emphasis on social relations and co-operation among the states. • These rights are as a result of historical development.
New trends regarding basis of obligation in international law Since the beginning of modern international law, consent has been the basis of obligation under international law. Consent played a predominance role that it was even extended to explain the basis of customary rules of international law.
The positivists tried to establish that international customs were based on “ tacit-agreements” between states. The unanimity rule was the prevailing rule for every conference and treaty was bound by it. The United Nation charter introduced majority rules in all of its organs and which is having a binding force.(like General assembly. Security Council etc.). A unique feature of new international law is that it is found not only in law making conferences but also in law creating conferences such as UNCTAZ, GATT, IBRD, IMD, OECD, OPEC etc.
One of the most important change is that has taken place is that many a decisions at international conferences and General assembly of the UN are being adopted by ‘consensus’ . Though the unanimity rule has not been completely defeated, the basis of obligation in international law is changing from sovereignty oriented consent to community oriented consensus. The international court of justice has also lent its support to the above mentioned change i.e. from sovereignty oriented consent to community oriented consensus.
This undoubtedly is a clear triumph of community oriented consensus over sovereignty oriented consent. But the battle has not been finally won and the struggle is likely to a prolonged one. As a matter of fact, consent will continue to be a basis of obligation and there should be no objection to it, but in view of even widening scope of international law it has become necessary to recognize the importance and utility of ‘consensus’ as a basis of obligation in international law. It is therefore, necessary to enunciate a dynamic and comprehensive theory international community as a whole. of basis of obligation so that it may take into account the interest and inspirations of
6. Relevancy of international Law: International law has emerged & grown to fulfill the essential needs of men organized in separate communities & national entities bound together by common bonds of geography & civilization. The political order of the world is divided into three kinds of nations/ states according to their political, social, economic & cultural backgrounds as to:
a) The western or the capitalist countries are known as First World Countries. b) The Communist or Socialist countries of East Europe, Latin America & China are known as Second World Countries. c) The developing or under-developed countries of Asia & Africa are coined as Third World countries. International Law is to be found in the history of ancient & medieval as well as modern times of each kind of political communities. Contribution of the first world countries:
The foundation of International Law as it is understood today lie firmly in the development of western countries & political organizations. Ancient Greece & Rome were divided into small city-states & the mutual relation or these states are governed by some definite rules & principles. They deserved the credit of developing the laws of• • • War & peace; Resolving the dispute through Arbitration; Prior declaration before the commencement of the war.
The modern International Law is ordinarily regarded as dating from sixteenth & seventeenth centuries, the medieval period, for its special character has been determined by that of the modern European National States system. Meanwhile, there were certain counter-factors leading to inmate & constant relations of the states with another as states could never be accepted as the final & perfect form or human association, so it would be necessary to recognize the existence of a wider unity - the rise of International Law was the recognition of this truth.
The seventeenth & eighteenth (modern period) centuries are given birth to three different schools if International Law, namely • • • The naturalists; The Positivists; & The Grotians.
There were factors led to the development of International Law in the nineteenth & twentieth centuries. The twentieth century witnessed two World Wars & the aftermath was the transformation of European International Law into Law of Nations or Universal International Law. As a result of this, the states & their mutual contracts had greatly increased during this periods, for e.g.a) Hague Conferences of 1899 & 1907: It was the establishment of Permanent Court of Arbitration. It also emphasized the settlement of International disputes through peaceful means, formation of many rules of International Law relating to land & naval welfare. b) Treaty of Versailles 1919: The League of Nations was established under this.
c) Geneva Convention 1929: It laid down rules relating reprisal of prisoners of wars. d) United Nations: The U.Ns was established in 1945 to ensure the maintenance of international peace & security. Contribution of the second world countries: Classical Marxist theory described Law & politics as the means by which the ruling class maintained their domination of society. International Law as a method of exploitation would also be criticized by socialist states.
Soviets theorists expressed the view that International Law was an inter-class law within two antagonistic class systems (Capitalism & Socialism) would also seek accommodation until the victory of socialist system. International Law was not a form of temporary compromise between capitalist states & U.S.S.R but rather a means of conducting the class war. The new approach in late 1930s was reflected in Russia’ s successful attempt to join League of Nations. But U.S.S.R was bound only by those rules of which accorded with its purposes.
The years that followed the Second World War saw a tightening up the Soviet doctrine as the Cold War gathered pace and the law of transition and state was replaced by International Law of peaceful co-existence. Peaceful co-existence itself rested upon the certain basic concepts, e.g. Non-intervention in the internal affairs of the others states; The sovereignty of states; Good neighborhood; International co-operation; The observance in good faith of international obligation.
The concept was an attempt to reiterate the basic concepts of International Law in a way that was taken to reflect an ideological trend. But it must be emphasized that the principles themselves have long accepted by the international community. With the decline of the Cold War & the dissolution of the Soviet Union a process of re-evolution in the field of international legal theory took place. Global inter-dependence & the necessity for international co-operation were emphasized. The essence of new Soviet thinking was started to lie in the priority of universal human values & the solution of global problems, which is directly linked to the growing importance of International Law in the world community. Contribution of the third world countries:
The old civilization like in Egypt & India had significant contribution in the history of International Law. • • The duties of the states in administrative & external matters; The privileges & immunities enjoyed by the diplomatic agents during war – are their contribution in the field of INTERNATIONAL LAW. In the evolution of international affairs since Second World War one of the most decisive had been the disintegration of colonial empires & the birth of new states, in the so-called Third World. The new nations have eagerly embraced the ideas of sovereignty & equality of the states & the principles of non-aggression & non-intervention.
The Soviet emphasized on the territorial integrity & sovereignty proved a great attraction to the developing nations of the Third World anxious to established their own national identities & counteract western financial & cultural influences. The new internationalization of International Law that has destroyed the European based homogeneity & emphasized in universalistic scope, e.g., the Declaration on the Granting of Inter-dependence to colonial countries & Peoples of 1960 enshrined the rights of colonies to obtain their sovereignty with least possible delay for recognition of the principles of self-determination. Their concern for the recognition of the sovereignty of the states complemented by the support of the U.N & its character & supplemented by their desire for economic self-determination.
The interests the new states of Third World are often in conflict with these of industrialized nations, but contrary to many fears expressed in the early years of Decolonization saga, International Law has not been discarded & altered beyond recognition. The end of Cold War & rapid development of Russian-American co-operation lead to the development of Globalization in the sense of inter-dependence of High order of individuals, groups & corporation. Both public & private, across national boundaries & might be seen the triumph of one special particularism which had sometimes been used as a justification for Human Rights abuses free from international supervision or criticism.
Chapter- 2 CLASSIFICATION OF SOURCES OF INTERNATIONAL LAW Introduction Source is found in the process by which it becomes identifiable as a rule of conduct with legal force and from which it derives legal validity. The various sources of international law are inferred from Article 38 of ICJ. Article 38 of ICJ states: 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 principles of law recognized by civilized nations; D. 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.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Article 38 is the recognized complete statement of sources of law. It does not refer to sources directly. Sources mentioned in clause (a) are not a primary source. It is a source of rules of general application, although treatise may provide evidence of formation of custom. Source in clauses (b) & (c) are formal sources and (d) refers to material sources. However some jurists do regard the last clause as formal source.
2 Article 38 lacks the hierarchy of the sources mentioned and is an incomplete list of sources. It is purely descriptive in nature.3 1) PRIMARY AND SECONDARY SOURCES Primary sources in relation to international law are the ones which have been present before any codification of the same has taken place. They are laws which exist but are not legally binding. Public international law has three primary sources: international treaties, customs and general principles of law. For example, laws of war were long a matter of 2 See, Brownlie, Ian, Principles of Public International Law, Seventh Edition, Oxford University Press, Pg See, Sorensen, Max, Manual of Public International Law, Macmillan, London, pg - 122
customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties. Secondary sources are subsidiary means for determination of law. In public international law includes judicial decisions and teachings of highly qualified jurists.
They provide evidence of what might be interpreted. 2) FORMAL, MATERIAL AND EVIDENTIARY SOURCES According to Salmond, “ Formal source is that from which a rule of law derives its source and validity of law. Material source applies the substance of rule to which formal source gives the force and nature of law. Brownie defines formal source as “ methods and procedures of creating law and material sources are the evidence of the law.” Formal sources are legal procedures and methods for the creation of rules of general application which are legally binding on addressers.
Material sources provide evidence of existence of rules when proved have status of legally binding rules of the general application. In municipal law, formal source refers to constitutional machinery of law making and status of rule established by constitutional law. No separate machinery exists for creation of international law. Decisions of ICJ which unanimously support the resolution of the General Assembly of UN concerning matters of law and important multilateral treatise lack the quality to bind states generally. In a sense formal sources do not exist in international law.4 Material sources are the evidence of the existence of consensus among states concerning particular rules and practices.
They stand for threshold of consensus. Formal source means legal rule derives its legal validity from it and material sources are the prevalence of substance content of the legal rule. So formal source is custom and material sources are found in bilateral treaty. Practice of states determines which sources are acknowledged.5 Alternative listing of sources other than that of mentioned under Article 38 have also won general approval. The procedure or the methods by which the rules become legally binding are formal sources of law. Material sources are those which are concerned with the substance and content of the legal obligations. They are law identifying. It is to identify the substance of the obligations 4 5
Supra note 1 See, Sir Rob Jennings & Sir Arthur Warts, Oppenheim’ s International Law, Ninth Edition, Vol. I, pg – 24,25 which become law. Eg – State practices or practices of International Organizations or judicial decisions or writings of jurist and GA resolutions, indicating states obligations are all material sources.6 Evidentiary sources of international law such as state activity, diplomatic memoranda, and statements of government organizations representatives and actual text of the treatise tell us the precise content of the legal obligations which bind states.
They are the most important sources of international law for they tell us exactly what a state and other international person can and cannot do.7 It is difficult to see any difference between material and evidentiary sources since both are ultimately concerned with the substance of rules which binds the state. 3) SOFT LAW AND HARD LAW AS SOURCES Soft law, generally is understood as collective rules that are neither strictly binding not completely lacking in the legal significance. In relation to international law it is understood as guidelines or policy declarations or codes of conduct that set standards of conduct but is not legally binding.8 For eg. - Resolutions and Declarations of the UN General Assembly, like, the Universal Declaration of Human Rights.
Hard law on the other hand refers to actual binding legal instruments and laws. Soft law has been assumed by some scholars as automatically inferior to hard law and has been viewed as a "second-best" outcome but an increasing number of scholars disagree with this view.9 The consent to be legally bound is the one thing which differentiates between the two. Thus hard law is the one which calls for legally binding obligations. The main difference between the two is in obligations, precision and delegation. Some advantages of hard law are: 6 7 8 9
See, Martine Dixon, Textbook on International Law, 4th Edition, Universal Publications, Pg - 23 Ibid, Pg - 24 Black’ s Law Dictionary, pg - 1426 Koppel, Martin, The Effectiveness of Soft Law: First Insights from Comparing Legally Binding Agreements with Flexible Action Programs, 21 Geo. Int'Envtl. L. Rev. 821, 2009
- They allow states to commit themselves more credibly to international agreements.
- They are more credible because they can have direct legal effects in national jurisdictions.
- They better permit states to monitor and enforce their commitments.
Some advantages of soft law are:
- They are easier instruments and less costly to negotiate.
- They provide greater flexibility for states to cope with uncertainty and learn over time.
- They cope better with diversity.
Soft laws however become hard laws when there is a need for more stringent enforcement. 1. TREATIES ‘Treaty’ means an International agreement concluded between States, in written form and governed by International law, whether embodied in a single instrument or more and in whatever designation.
A treaty is an agreement entered by the sovereign States and International organizations under international law. In the modern times International treaties are the most important source of international law as per Article 38(1)(a) of the ICJ Statute, which provides “ International Conventions whether general or particular establishing rules expressly recognised by the contesting States” .
The term International Convention covers treaties, Protocols or agreements regardless of their title or form. The customary International law on treaties has been codified under the head of VIENNA CONVENTION ON THE LAW OF TREATIES, 1969. 1.1. DEFINITION: Article 2(a) of the Vienna Convention has provided a definition of the term treaty in the following manner, “ Treaty is an agreement concluded between States in written form and governed by International law , whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”
In other words treaty is referred as an agreement whereby two or more sates establish or seek to establish a relationship between them governed by International law. Hence, treaty can be either bilateral treaty when entered between two states only or can be a multilateral treaty when entered between two or more states. 1.2. KINDS OF TREATIES ¾ Bilateral and Multilateral Agreements/Treaties: A Bilateral treaty is concluded between 2 parties and a Multilateral treaty is concluded between more than 2 parties. ¾ Law Making Treaties and Contract Treaties:
Treaties are the maids-of-all work in International Law very often do they resemble contracts in national systems of law, but they can also perform functions which in national systems would be carried out by Statutes, by Conveyances or by Memorandum of Association of a company. In national legal systems, legislative acts of parliament are regarded as sources of law, but contracts are not, contracts are considered mere legal transactions.
Contracts create rights and duties only for the contracting parties, who are very few in number, and it is generally agreed that a source of law means a source of rules which apply to a very large number of people. Some writers have tried to argue that treaties should be regarded as sources of International law only if they resemble National Statutes in content, that is, if they impose the same obligations on all the parties to the treaty and seek to regulate the parties’ behavior over a long period of time. Such treaties are called ‘law-making treaties’ (i.e. traits-lois) and their purpose is to include an agreement on universal substantive legal principles (i.e. human rights treaties, Genocide conventions).
According to this theory, ‘contract treaties’ (traits contract) i.e. treaties which resemble contracts (for instance a treaty whereby one state agrees to lend a certain amount of money to another state) are not sources of law, but merely legal transactions. However, the analogy between national statutes and law making treaties is mis-leading for two reasons: Firstly, in National systems of law anyone who is contractually competent (i.e. anyone who is sane and not a minor) can enter into a contract, but parliamentary legislation is passed is passed by a small group of people. In International Law, any state can enter into a treaty, including a law making treaty.
Secondly, in national systems of law, contracts create rights and duties only for the contracting parties, who are very few in number, whereas statutes of national law apply to a very large number of people.
In International Law all treaties including lawmaking treaties, apply only to states which agree to them. Normally, the parties to a lawmaking treaty are more numerous than the parties to a ‘contract treaty’ , but there is no reason why this should always be so. The only distinction between a ‘law making treaty’ and a contract treaty is one of content. As a result, many treaties consist of borderline cases, which are hard to classify. A single treaty may contain some provisions which are ‘contractual’ and others which are
‘law-making’ . The distinction between ‘law- making treaties’ and ‘contract treaties’ is not entirely superficial, for instance a ‘contract treaty’ is more likely to be terminated by the outbreak of war between the parties than a law making treaty. But it is too vague and imprecise to justify regarding ‘law-making’ treaties as the only source of International Law.
The better view is to regard all treaties as a source of law. ¾ General Treaty (also known as law making treaty):The provisions of law making treaty are a direct source of international law. Such treaties involve several states and the topic of the treaty is broadly of general ¾ Particular Treaty (also known as treaty contracts) :concern between such States. The best example of this is UN Charter.
This type of treaty involves a lesser number of states as compared to the general treaty and also the topic is of specific concern. Eg: Paris Peace Pact. 1.3 SIGNIFICANCE OF TREATIES: Some of the instances where treaties can help in the development of International law are mentioned hereinafter:
- It acts as a means of developing peaceful co-operation among Nations.
- A series of reoccurrence of treaties laying down similar rules may produce a principle of Customary International law.
- A treaty originally concluded between limited number of parties can be subsequently adopted as a model by some other States.
- A Treaty may be of considerable evidentiary value as to the existence of the rule which has been crystallised into law by an independent process.
- A treaty fills the gap of law in International Law. Thus it is clearly establishes that treaties ahs a fundamental role in the history of international relations and is also recognised as ever increasing important source of International law
1.4 FORMATION OF TREATIES: The main steps in the formation of a treaty are:
1. Accrediting of persons who conduct negotiations on behalf of the contracting states (Arts.7 & 8 of Vienna Convention) Once a state has decided to commence negotiations with another state or other states for a particular treaty, the first step is to appoint representatives to conduct the negotiations. In practice a representative of a state is provided with a very formal instrument given either by the head of state or by the Minister of Foreign Affairs showing his authority in various regards. This instrument is called the Full Powers or Pleins Pouvoirs.
2 Negotiation and adoption (Art.9) The accredited persons of contracting parties enter into negotiations for the adoption of the treaty. After the matters are settled, the treaty is adopted. 3. Authentication, signature and exchange of instruments When the final draft is agreed upon, the instrument is ready for signature. Unless there is an agreement to dispense with signature, this is essential for a treaty, principally because it serves to authenticate the text. This rule is stated in Article 10 of the Vienna Convention.
The effect of signature of a treaty depends on whether or not the treaty is subject to ratification, acceptance, or approval. If the treaty is subject to ratification, acceptance, or approval, signature means no more than that the delegates have agreed upon a text and are willing to accept it and refer it to their governments for such action as those governments may choose to take in regard to the acceptance or rejection of the treaty.
Where a treaty is constituted by instruments exchanged by representatives of the parties, such exchange may result in the parties becoming bound by the treaty. 4. Ratification The next stage is that the delegates who signed the treaty refer it back to their governments for approval, if such further act of confirmation be expressly or impliedly necessary. Ratification means the international act ….whereby a state establishes on the international plane its consent to be bound by a treaty.
The power of refusing ratification is deemed to be inherent in state sovereignty, and accordingly at international law there is neither a legal nor a moral duty to ratify a treaty. The practice of ratification rests on the following rationale grounds: States are entitled to have an opportunity of re-examining and reviewing instruments signed by their delegates before undertaking the obligations therein specified. By reason of its sovereignty, a state is entitled to withdraw from participation in any treaty should it so desire. Often a treaty calls for amendments or adjustments in municipal law. The period between signature and ratification enables states to pass the necessary legislation or obtain the necessary parliamentary approvals, so that they may thereupon proceed to ratification.
There is also the democratic principle that the government should consult public opinion either in Parliament or elsewhere as to whether a particular treaty should be confirmed. The consent of a state to be bound by a treaty is expressed by ratification if (a) the treaty so expressly provides or (b)the negotiating states otherwise
agree that ratification is necessary or (c) the treaty has been signed subject to ratification or (d) an intention to sign subject to ratification appears from the Full Powers or was expressed during negotiations. 5. Accessions and adhesions: In practice when a state has not signed a treaty it can only accede or adhere to it. The practice of the States shows that those states which have not signed the treaties may also accept it later on. This is called accession. A treaty becomes a law only after it has been
ratified by the prescribed number of State parties. Even after the prescribed number of State parties have signed, the other States may also accept or adhere to that treaty. This is called adhesion. 6. Entry into force “ The entry into force of a treaty depends upon the provisions of the treaty or upon what the contracting states have otherwise agreed upon10” . 7. Registration and publication Art.102 of the United Nations Charter provides that the registration and publication of every international treaty entered into by the members is essential.
It is made clear in this Article that if an international treaty or agreement is not registered, it cannot be invoked before any organ of the United Nations. The object of Article 102 was to prevent the practice of secret agreements between states, and to make it possible for the people of democratic states to repudiate such treaties when publicly disclosed. 8. Application and enforcement The final stage of the treaty – making process is the actual incorporation of the treaty provisions in the municipal law of the state parties, and the application by such states these provisions, and, also, any required administration and supervision by international organs.
1.5 RESERVATION OF A TREATY A state may be willing to accept most of the provisions of a treaty, but it may, for various reasons, object to other provisions of the treaty. I n such cases states often make reservations when they become parties to a treaty. The term “ reservation” has been defined in Article 2(1) of the Vienna Convention on the Law of Treaties, 1969. It runs as follows; “ Reservation means a unilateral statement …..Made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby, it purports to exclude or 10 Art.24 Vienna Convention, 1969.
modify the legal effects of certain provisions of the treaty in their application to the State” . So far as bilateral treaties are concerned, there are no difficulties because if either party refuses to accept the reservation, the treaty comes to an end, where as multilateral treaties present conflicting legal problems. The traditional rule was that a state could not make a reservation to a treaty unless the reservation was accepted by all the states which had signed or adhered to the treaty. However, this rule was undermined by the advisory opinion of the International Court of Justice in the Genocide case11. The court said that the traditional theory was of ‘undisputed value’ , but was not applicable to certain types of treaty.
More specifically it was not applicable to the Genocide Convention, which sought to protect individuals, instead of conferring reciprocal rights on the contracting states. The court therefore advised that “ a state which has made ………..a reservation which has been objected to by one or more of the parties to the(Genocide)Convention but not by others, can be regarded as a party to the convention if the reservation is compatible with the object and purpose of the convention” .
Articles 19-21 of the Vienna Convention follow the principles laid down by the Court in the Genocide case, but make a concession to the supporters of the traditional rule by recognizing that every reservation is incompatible with certain types of treaty unless accepted unanimously. In short it could be said that, Treaty is the main instrument which the international community possess for the purpose of initiating as well as developing of international cooperation.
1.6 TERMINATION OF TREATIES A treaty can be terminated by (1) the operation of law and by the (2) act or acts of the state parties. 1 BY THE OPERATION OF LAW: It includes the following: ICJ Reports, 1951, p.15.
1.1 Expiry of time If the treaty has been concluded for a fixed period of time, the expiration of the fixed term will automatically terminate the treaty. 1.2 Fulfillment of object In case of treaties imposing no continuous obligation, it may cease to operate on the fulfillment of the object. 1.3 Extinction of the parties If one of the parties is extinguished by annexation or merger, it may cease to operate. For e.g.: the treaty between USA and Tripoli came to an end when the latter was annexed by Italy in 1912. 1.4 Outbreak of War The treaties may be suspended or terminated at the outbreak of the war.
The treaties between the belligerent states for which general, political and good relations are essential, cease at war. Treaties relating to complete situations such as fixation of boundaries shall not cease. The treaties relating to the rule of war remain in force and binding upon the parties. Some multilateral treaties relating to health, service, protection of industrial property do not completely end. They remain suspended and revived at the end of the war.
1.5 Impossibility of Performance Article 61 of the Vienna convention stated that “ the impossibility of performance is a valid ground for the termination of the treaty” . 1.6 Rebus Sic Standibus
When the fundamental or material circumstance under which a treaty is concluded or change, it gives room for the termination of the treaty. There may be situations in which the continued application of treaty may be both contrary to the shared expectations on the parties and an intolerable burden on them. 1.7 Jus Cogens A treaty may be declared void if it conflicts with a preemptory norm (jus cogens) of international law.
According to Article 53 of the Vienna Convention the treaty is void, if at the time of conclusion it conflicts with peremptory norm of international law. 2. BY THE ACT OF STATE PARTIES 2.1. Consent of The Parties According to Article 54 of the Vienna convention, it will be considered as terminated, if all the parties to it conclude a subsequent treaty relating to the same subject matter. 2.2. Notice of Termination or by Act of Denunciation If a state party wishes to withdraw from a treaty, it usually does so by notice of termination or by denunciation.
The term “ denunciation’ ’ means notification by a state to the other state parties that it intends to withdraw from the treaty. Ordinarily the treaty itself provides denunciation, or state concerned may, with the consent of other parties, have reserved a right of denunciation. Examples of Law-making treaties are: The Declaration of Paris 1856 (on neutrality in maritime welfare), Geneva Protocol