CHAPTER- 2 CLASSIFICATION OF SOURCES OF INTERNATIONAL LAW 2. 1. Classification of Sources of International law 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: 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. 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. 1 Article 38 lacks the hierarchy of the sources mentioned and is an incomplete list of sources. It is purely descriptive in nature. 2 1.
Primary & 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 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 1 2.
See, Brownlie, Ian, Principles of Public International Law, Seventh Edition, Oxford University Press, Pg – 4 See, Sorensen, Max, Manual of Public International Law, Macmillan, London, pg – 122 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 & 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. 3 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. 4 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 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. 5 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. 3 4 5 Supra note 1 See, Sir Rob Jennings & Sir Arthur Warts, Oppenheim’s International Law, Ninth Edition, Vol.
I, pg – 24, 25 See, Martine Dixon, Textbook on International Law, 4th Edition, Universal Publications, Pg – 23 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. 6 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 Source 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. 7 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.
8 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: 1) They allow states to commit themselves more credibly to international agreements. 2) They are more credible because they can have direct legal effects in national jurisdictions. 3) They better permit states to monitor and enforce their commitments.
Some advantages of soft law are: 1) They are easier instruments and less costly to negotiate. 2) They provide greater flexibility for states to cope with uncertainty and learn over time. 3) They cope better with diversity. 6 7 8 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'l Envtl. L. Rev. 821, 2009 Formal Source is those legal procedures and methods for the creation of rules of general application which are legally binding in states.
In other words formal sources of law are the process by which a legal rule comes into existence: it is the law creating process e. g. passing of the bill thorough parliament. The Material Sources provide evidence of the existence of rules which, when provide, have the status of legally binding rules of general application. In other words the material sources are not concerned with the formal act of law creation. Material sources are those sources of law concerned with the substance and content of legal obligation. Formal Sources 1. International Conventions 2. International Custom 3.
General Principles of Law Material Sources 1. State Practice 2. Judicial Decisions 3. Writings of Jurists 4. General Assembly Resolutions Some writers have sought to categories the distinction in this provision, so that international conventions, custom and general principles of law are described as the three exclusive lawcreating processes while judicial decisions and academic writings are regarded as lawdetermining agencies, dealing with the verification of alleged rules. Furthermore, a distinction has sometimes been made between formal and material sources.
The former, it is claimed, confer upon the rules an obligatory character, while the latter comprise the actual content of the rules. Thus the formal sources appear to embody the constitutional mechanism for identifying law while the material source incorporates the essence or subject-mater of the regulations. This division has been criticized particularly in view of the peculiar constitutional set-up of international law, and it tends to distract attention from some of the more important problems by its attempt to establish a clear separation of substantive and procedural elements, something difficult to maintain in international law.
2. 1. International Treaties / Conventions Treaties are also known a variety of different names, ranging from conventions, international agreements, pacts, acts, charters, statures, declarations, and conventions. All these terms refer to similar transactions. All kinds of agreements exist ranging from the regulation of outer space exploration to the control of international financial institutions. It would be impossible to telephone abroad or post a letter overseas or take an aero plane to other countries without the international treaties that have laid down the necessary recognized conditions of operation.
Treaties are of growing importance in international law. Modern technology, communications and trade have made states more interdependent than ever before, and more willing to accept rules on a vast range of problems of common concern-extradition of criminals, safety regulations for ships and aircraft, economic aid, copyright, standardization of read sings, and so on. Treaties are the major instrument of cooperation in modern world. Art. 2 of Vienna Convention on Law of Treaties 1969 defined “A Treaty is an agreement where by two or more states establish or seek to establish a relationship between them governed by International Law.
Georg Schwarzenberger defined “Treaties are agreements between subjects of International Law creating a building obligation in International Law. ” Treaties are different kinds they include: 1) Law-making treaties (2) Treaties on contracts (3) Bi-lateral Treaties and (4) Multilateral Treaties International Law developed by Law-making Treaties example (1) Red cross works (2) Weights & Measures (3) Protection of Industrial property, Suspension of slave trade, Arial navigation, international water ways, international economic and monastery questions etc.
At the beginning of the modern era of international law, at the time of the League of Nations was founded, there were only a handful of significant multilateral treaties that could be characterized as law-making. Some growth took place during the inter-war period, by the real bloom started only with the establishment of the United Nations and the many organizations that became its specialized and related agencies, together constituting the U. N. system. By 1993 there were some 1,500 multilateral treaties, both global and significant regional or sub-regional and their number is growing by several dozen each year.
All kinds of agreements exists ranging from the explorations of outer space to the control of drugs and the creation of international financial and development institutions. It would be impossible to telephone abroad or post a letter overseas or take an aero plane to other countries without various international agreements that have laid down the necessary Recognised conditions of operation. Judicial Application of International Treaties 1. In the Chorzow Factory Case of 1928 the Permanent Court of Justice (PCIJ) declared that it is a general conception of law that every violation of an engagement involved an obligation to make reparation.
The Court also said a principle in 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. 2. In Hostage Case 1980 (between USA and Iran) the ICJ applied the Vienna Convention of Diplomatic Relations 1961 and Vienna Convention on Consular Relations 1963 in judging the conduct of Iran in relation to the Seizure and holding as hostages of members of US diplomatic and consular and certain other US Nationals.
3. The Nicaragua US Case 1986: the ICJ could not examine the responsibility of US for military and paramilitary activities in and against Nicaragua under UN charter or OAS Charter because the reservation excluded from the jurisdiction of the court. Dispute arising under multilateral treaties unless all parties to the treaties affected by decision are also parties to the case before the court. It is only an international agreement which is to be applied by the court in deciding a case or in giving an opinion or even in the deciding its question of its jurisdiction.
2. 3 International Customs. Until recent times, international law consisted for the most part of customary rules. The essence of custom according to article 38 (1) of the Stature of the ICJ is that it should constitute evidence of a general practice accepted as law. Thus, it is possible to detect tow basic elements i. e. material facts—the actual behavior of states and the psychological or subjective belief that such behavior is law there is a distinction between the customs and usages. Usages represent the twilling stage of customs.
Customs begins where usages ends. Unlike treaty law that is binding only on the states parties to the treaty in question, customary law is normally binding on states generally. Some rules of customary law, reflect such a strong conviction of the world community as to their imperative nature that no derogation is allowed from them, either by the unilateral decision of a state to exempt itself from that custom, or by treaties between two or more states. These rules are called peremptory norms, or jus cogens, and have only relatively recently achieved recognition.
Customary rules crystallized from usages are Diplomatic relation between states, Practice of International organizations, State Laws and decisions of Municipal courts, military or administrative practices. Elements of Customary Law: Customary law evolves from the practice of the States. The activities of States in the International arena may give rise to binding law. For example- if all maritime nations declare a territorial sea 12 miles in width, a customary law may develop to this effect.
However, there are certain conditions which must be fulfilled before practice crystallizes into law. State Practice- state practice includes, but is not limited to, actual activity (acts and omissions), statements made in respect of concrete situations or disputes, statements of legal principle made in the abstract, such as those preceding the adoption of a resolution in the General Assembly, national legislation and the practice of international organizations. Uniformity and Consistency of Practice- the State practice must be reasonably consistent.
It must be constant and uniform. The consistency of practice doesn’t have to be total; the criterion is satisfied if there is substantial, rather than complete consistency. In the Asylum case (1950), the ICJ observed that the rule invoked should be in accordance with a constant and uniform usage practiced by States in question and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial state. Long Duration- long duration is generally said to be an essential ingredient of customary law.
Article 38 of the Statute of ICJ directs the World Court to apply International Custom as evidence of a general practice accepted as law. The emphasis is not given on a practice being repeated for a long duration. The important part is the practice of States accepting the practice concerned as law. In North Sea Continental Shelf Case [ICJ Reports,1969] observed “a conventional rule can be considered to have become general rule of international law even without passage of considerable time by wide spread and representative participation.
” In international law, certain customs like sovereignty over airspace and continental shelf have emerged in short duration. Thus, long duration is no more an essential pre requisite. Generality of Practice- the practice should have been generally observed and repeated by numerous states. A German court in Lubeck v Mecklenburg Schwer Case (1928) held that a single act of state agency or authority could not create any custom but it should be regular and repeated.
Material departures from a practice may negative the existence of customary rule but the minor deviations may not necessarily have this negative consequence. Opinio Juris Sine Necessitatis- This is psychological aspect of custom. It is not enough that the states follow a practice but they should consider it obligatory. This condition of Opinio Juris is a convenient test that the usage has crystallized into custom, there is, for example, an absence of Opinio Juris when states conform to the usage for motives of comity or courtesy only.
When the countries perform a particular practice not just because, they are willing to perform, but because they fell that a particular conduct is binding upon them, and if, several countries perform that conduct with that same feeling, it can be said that all these countries have, by their mutual implied consent given a legal status to that particular practice or conduct, and thus, elevated it from the status of a mere usage to that of a legally binding custom.
When all these countries are performing that conduct because of the expectation of its being legally binding, then it can be said that in future also, this legal expectation will be there and therefore, the countries are stopped from denying the legal status of that particular practice. Cases pertaining to Customary International Law: In S. S. Lotus Case,[ France v Turkey(1927) PCIJ ] , the French government was complaining about the trial in Turkey of a French Officer who had been on duty on a French ship at the time it collided with a Turkish Ship which had sunk with loss of life.
France relied upon the fact that though the assumption of civil jurisdiction by foreign courts over collision cases were common, they had refrained from exercising jurisdiction in criminal matters. The permanent court of international justice rejected the French argument that this practice evidenced the existence of a rule of customary International Law. In the Asylum Case, [ Columbia v Peru(1950) ICJ Rep. 226 ], the court recognized that Article 38 of the ICJ includes local custom as well as general custom, in much the same way as it includes bilateral and multilateral treaties.
Local customary law may exist where a practice has developed between two or more states, both or all of whom recognize the practice as binding. The North Sea Continental Shelf Cases (1969) illustrated that not all states need participate before a general practice can become law, and that it would be impossible to determine exactly how many states must participate in a practice as international law is not concerned with percentages or a majority vote.
The degree of generality varies with the subject matter and in assessing whether a customary rule has come into existence, special weight must be given to the practice of those states whose interest is specifically affected by the subject matter of the rule. 4. GENERAL PRINCIPLES OF LAW AS RECOGNISED BY CIVILLISED NATIONS In earlier stages of development of International Law rules were frequently drawn from municipal law.
However, in 19th century, legal positivists rejected the idea but were prepared to allow for the application of general principles of law provided that they had in some way been accepted by the states as a part of the legal order. Thus, Article 38(1)(c) speaks of “general principles of law recognized by the civilized states” as the third source of international law. But the jurists are sharply divided about its meaning.
On the one side, there are jurists like Vedross who says that article 38 has the effect of incorporating national law in the international law and even claim that positive rules of international law are invalid if they conflict with national law; these can also be referred as principles of natural justice. On the other extreme there are jurists like Oppenheim and Tunkin who maintain that paragraph (c) adds nothing to what is already covered by treaties and custom. They hold that general principles of law are part of international law only to the extent that they have been adopted and recognized by the states in their practice.
SCOPE: The scope of general principles of law, to which Article 38(1)(c) of the statute of International Court Of Justice (ICJ) refers is unclear and controversial to some extent neither it has been termed in precise terms by the ICJ itself. Therefore, given to the limits of treaties or custom as a source of International Law, article 38(1)(c) may be looked upon as a directive to the court to fill any gap in the law and prevent non-liquet by reference to the general principles so that the competence of the court should not be confined to making judgments according to positive international law i.
e. according to custom and conventions but should apply the principles common to the municipal law of all enlisted nations, though it was not positive law. ARTICLE 38(1)(c): As used by ICJ: Principles of law which is recognized by domestic law of large number of states do not automatically become a principle of international law. It becomes the principle of international law only when it is recognized by the World Court i. e. the ICJ.
The ICJ also resorts to the application of this source only when in a case before it there is neither an international convention nor a custom in respect of the dispute involved. Recourse has been had to general principles of law by International Courts and by International Arbitration in arbitral tribunals. General Principles of law such as Doctrine of unjust enrichment, estoppel, res-judicata and general principle of equity and natural justice have been applied where the facts have so merited.
Not only has this been done to prevent the plea of non-liquet but also in order that substantial justice should be done to the parties to the dispute. Following are the few principles of law that have been adopted by the ICJ in its working: 1) Doctrine of unjust enrichment: The doctrine of unjust enrichment is an equitable concept created to remedy injustices that occur where one person makes a substantial contribution to the property of another person without compensation. The ICJ applied this doctrine in the case of “Lena
Goldfield Massacre” The most important case on this matter and the one where the closest summary of the article could be found is “Chorzow Factory (1927)” parties to the case: Germany v. Poland. 2) Principle of estoppel: Estoppel is the laws way of saying that you cannot have your cake and eat it. It’s a rule of law that when a person A, by act or words, gives person B reason to believe a certain set of facts upon which person B takes action, person A cannot later, to his (or her) benefit, deny those facts or say that his (or her) earlier act was improper.
The PCIJ applied the same principle after reference to the relevant article in the case of “Diversion of water from the Meuse (1937)”. 3) Principle of equity: Judge Hudson in his individual opinion stated that general principles of equity should be considered as a principle of international law where the facts so merited. However, the ICJ later applied such principle in its judicial capacity. Such principle was applied by the special Arbitral tribunal between Germany and Portugal in Nauilaa and Mazina case(1928).
4) Principle of good faith: “Good faith is a fundamental principle of international law, without which all international law would collapse,” Judge Mohammed Bedjaoui said this in one of the conference of international law. In simple terms good faith is the mental and moral state of honesty. In Free Zones Case (1930) general references to abuse of rights and good faith may occur. 5) Principle of Res-Judicata: Res Judicata is the latin term for a matter already judged and it includes both the cases where there has been a final judgment and is no longer a subject to appeal.
In the case of Res Judicata the matter cannot be raised again in the same court as well as in any other court. In UN Administrative tribunal case 1954 ICJ held “the examination of relevant provisions of the statute shows that the tribunal is established not merely as an advisory body but as an independent and truly judicial body pronouncing final judgments without appeal within the limited field of its functions.
According to well established and generally recognized principle of law, a judgment rendered by such a judicial body is res-judicata and has binding force between the parties to the dispute, therefore, General Assembly could not avoid giving effect to awards of UN Administrative Tribunal. Apart from the above general principles, perhaps the other frequent and successful use of domestic analogies has been in the field of evidence, procedure and jurisdictional question. Thus, there have been references to the rule that no one can be a judge in his own suit which can be found in the Mosul Boundary Case (1925).
The rule of litis pendence has also been applied in the case of German Interest in Polish Upper Silesia (1925). In the Corfu Channel Case (1949) the court had recourse to circumstantial evidence and remarked that this indirect evidence is admitted in all systems of law and its use is recognized by international decision. 1. JURISTIC WORKS AS SOURCES OF INTERNATIONAL LAW Although these are, in the words of Article 38 of the ICJ, to be utilized as a subsidiary means for the determination of rules of law rather than as an actual source of law, judicial decisions can be of immense importance.
While by virtue of article 59 of the Statute of the International Court of Justice the decisions of the Court have no binding force except as between the parties and in respect of the case under consideration, the Court has striven to follow its previous judgments and insert a measure of certainty within the process: so that while the doctrine of precedent as it is known in the common law, whereby the rulings of certain courts must be followed by other courts, does not exist in international law, one still finds that states in disputes and textbook writers quote judgments of the Permanent Court and the International Court of Justice as authoritative decisions.
One of the most outstanding instances of this occurred in the Anglo-Norwegian Fisheries case, with its statement of the criteria for the recognition of baselines from which to measure the territorial sea, which was later enshrined in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone. Other examples include the Reparation case, which recognised the legal personality of international institutions in certain cases, theGenocidecase,175 which dealt with reservations to treaties, the Nottebohm case, which considered the role and characteristics of nationality and the range of cases concerning maritime delimitation. Of course, it does not follow that a decision of the Court will be invariably accepted in later discussions and formulations of the law.
One example of this is part of the decision in the Lotus case, which was criticised and later abandoned in the Geneva Conventions on the Law of the Sea. But this is comparatively unusual and the practice of the Court is to examine its own relevant case-law with considerable attention and to depart from it rarely. At the very least, it will constitute the starting point of analysis, so that, for example, the Court noted in the Cameroon v. Nigeria case that ‘the real question is whether, in this case, there is cause not to follow the reasoning and conclusion of earlier cases’. In addition to the Permanent Court and the International Court of Justice, the phrase ‘judicial decisions’ also encompasses international arbitral awards and the rulings of national courts.
There have been many international arbitral tribunals, such as the Permanent Court of Arbitration created by the Hague Conferences of 1899 and 1907 and the various mixed-claims tribunals, including the Iran–US Claims Tribunal, and, although they differ from the international courts in some ways, many of their decisions have been extremely significant in the development of international law. This can be seen in the existence and number of the Reports of International Arbitral Awards published since 1948 by the United Nations.
One leading example is the Alabama Claims arbitration, which marked the opening of a new era in the peaceful settlement of international disputes, in which increasing use was made of judicial and arbitration methods in resolving conflicts. This case involved a vessel built on Merseyside to the specifications of the Confederate States, which succeeded in capturing some seventy Federal ships during the American Civil War.
The United States sought compensation after the war for the depredations of the Alabama and other ships and this was accepted by the Tribunal. Britain had infringed the rules of neutrality and was accordingly obliged to pay damages to the United States. Another illustration of the impact of arbitral awards is the Island of Palmas case1928 which has proved of immense significance to the subject of territorial sovereignty. In addition, the growing significance of the case-law of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda needs to be noted. As a consequence, it is not rare for international courts of one type or another to cite each other’s decisions, sometimes as support and sometimes to disagree. 6.
Judicial Decisions Acc