Sources of international law

Q Analyze the judicial application of custom with reference to Pqauete Habana, Lotus and North sea continent shelf case.

Q Discuss and explain various material sources of international?

Q what are the material sources of international and why are they called as material sources?

Q discuss the sources of international law with special reference to international treaties.

Sources of international law:

The term source refers to methods or procedure by which international law is created. A distinction is made between formal sources and material sources of law. The Formal are those legal procedures and methods for the creation of rules of general application which are legally binding on the addressee. The material sources provide evidence of the existence of rules which, when proved, have the status of legally binding rules of general application. The material sources in words of J. G. Starke may be defined as the actual materials from which an international lawyer determines the rule applicable to a given situation These materials fall into five principal categories of forms and the sixth form was later include under article 38 by courts statute to provide an additional basis for a decision in case the other material should give no assistance to the court.

1. Custom
2. Treaties
3. Decision of judicial works
4. Juristic works
5. Decision or determinations of the organs of international institutions
6. The general principles of law recognized by civilized nations.

Custom: International customs have been regarded as one of the prominent sources of international law. International law consisted for the most part of customary rules. These rules had generally evolved after a long historical process of culminating in their recognition by the international community. Article 38 (b) of the statute of international court of justice recognizes ‘international custom as evidence of general practice accepted as law’, as one of the sources international law. The term custom and usage are often used interchangeably but there is a clear technical distinction between the two. Usage represents the twilight (early) stage of custom. Custom begins where usage ends. As aptly remarked by Viner, ‘A custom, in the intendment of law, is such a usage as hath obtained the force of law’. Following are the main ingredients of an international custom:

1. Long duration- that is the practice of states accepting the practice concerned as law.
2. Uniformity and consistency
3. Generality or practice
4. Opinion juris et necessitatis

Judicial application of customs: one of the case illustrating the judicial methods in the application of customs is Paquete Habana, viz. decided for the immunity of small fishing vessels from belligerent action in time of war.

Treaties: As defined by Article 2 of the Viennna convention on the law of the treaties, 1969, ‘A treaty is an agreement whereby two or more states establish or seek to establish a relationship between them governed by international law.’ the effect of any treaty in leading to the formation of rules of international law depends on the nature of the treaty concerned. In the connection there is a useful, although not rigid distinction between the two:

1. Law-making treaties: The provision of a law making treaty are directly a source of international law. As to the extend that a law-making treaty is universal or general, it may be really a framework convention’, imposing duties to enact legislation, within the ambit of which states are to apply the principles laid down therein.
2. Treaty-contracts: In contrast to law-making treaties, treaty contracts are not directly a source of international law. They may, however as between the parties or signatories thereto, constitute particular law though such treaties lead also to the formation of international law through the operation of the principles governing the development of customary rules.

3. Decisions of judicial or arbitral tribunals: international court of justice was firstly created in 1921. The international court of justice functions under a statute containing virtually the same organic regulations as the statute of the former permanent court. Under Article 59 of the statute of the new international court of justice the courts decision were to have ‘no binding force except between the parties and in respect of that particular case’.

Decisions of international arbitral tribunals such as the permanent court of arbitration, the British American mixed claim tribunal and others have contributed to the development of international law. Arbitral decision has either added to or clarified the law.

4. Juristic works: Juristic works are not an independent source of law, although sometimes juristic opinion does lead to the formation of international law. Article 38 of the statute of the international court of justice directs the court to apply the teachings of the most highly qualified publicist of the various nations, as subsidiary means for the determination of rules of law. Thus in the privy counsel case of Re Piracy Jure Gentium, the question arose whether actual robbery was an essential element in the crime of piracy at international law. On this point, the privy counsel found itself mainly dependent on jurisitic opinion.

5. Decisions or determination of the organs of international institutions, or the international conferences: Decisions of determinations of the organs of international institutions or of international conferences, may lead to the formation of rules of international law. e.g the opinion of the committee of jurists appointed in 1920 by the league of nations council to advise on the question of the aaland islands, created a special military status, conferring rights on interested adjoining states.

6. the general principle of law recognised by civilized nations: Among other sources the general principles; were to be applied by analogy and would be derived by selecting concepts recognized by all systems of municipal law. Thus in the Chorzow factory (indemnity) case it applied the principle of res judicata and it referred to the general conception of law that any breach of an engagement involves an obligation to make reparation.

Order of use of material sources:

In an international law understanding the sources are the most important aspect since international law unlike statute law has no fixed codes or acts and it is not clear as well that whether a customary rule of international law has been established and also because there is neither usage nor practice nor opinion to guide someone as to correct solution. At all events he must quarry for the law among these material sources assisted by his own faculties of logic and reasoning and his sense of justice. It will be found that the same practical approach has been adopted by courts which have decided the order in which the material sources is to set out. Under article 38, paragraph I of its present statute, the international court of justice is directed to apply the following:

1. International treaties and conventions
2. International custom, as evidence of a general practice accepted as law.
3. The General principles of law recognized by civilized nations
4. Judicial decisions and the teachings of the most highly qualified publicist of the various countries as subsidiary means for the determination of rules of law.

So far as the first three categories are concerned, priority would normally be attributed to treaties and conventions expressly recognised by the state concerned provided that the treaty or convention was not in conflict with jus cogens, i.e applicable pereomptory norms of international law, if there was no treaties or conventions applicable, preference would be accorded to established customary rules. While if there were not such rules, recourse could be had to general principles of law recognised by civilized nations. If none of these three categories furnished clear rule applicable to the matter, judicial and arbitral decisions, and juristic opinion could be restored to, with more weight being given usually to decisions of courts than to expressions of opinion by jurists and textbook writters.

Customs:

International customs have been regarded as one of the prominent sources of international law. International law consisted for the most part of customary rules. These rules had generally evolved after a long historical process of culminating in their recognition by the international community. Article 38 (b) of the statute of international court of justice recognizes ‘international custom as evidence of general practice accepted as law’, as one of the sources international law. The term custom and usage are often used interchangeably but there is a clear technical distinction between the two. Usage represents the twilight (early) stage of custom. Custom begins where usage ends. Usage is an international habit of action that has not yet received full legal attestation. As aptly remarked by Viner, ‘A custom, in the intendment of law, is such a usage as hath obtained the force of law’. a usage may be considered as amounting to a customary rule of international law, after satisfying the following two tests:

1. The material aspects: as regards to this aspect, there must in general be a reccurence or repetition of the acts which give birth to the customary rule
2. The psychologist aspect: it is known as opinion juris sive necessitates or as one authority has termed it the mutual conviction that the recurrence… is the result of a compulsory rule.

Customary rules crytallise from usages or practices which have evolved in approximately three set of circumstance:

1. Diplomatic relations between states
2. Practice of international organs
3. State laws, decision of state courts, and state military or administrative practices

Judicial application of customs: It is an important matter as to how international custom will be applied in international law. Both national and international courts play an important role in the application of customs. To use Mr. Justice Cardozo’s words, by its imprimatur the court will attest the jural quality of the custom.

There are two instructive cases illustrating the judicial methods in the application of custom are:

1. Paquete Habana: in this case the court decided that the fishing vessels which performed their work honestly and are unarmed cannot be seized after declaration of blockade i.e war. But in order to arrive at this decision, the supreme court of United States after a detailed investigation of the material mentioned, namely state laws and practices, treaties, writings of publicist evidencing usage, and decision of courts found that they uniformily proved the existence of a valid customary rule giving immunity to small fishing vessels, honestly pursuing thier calling, from belligerent capture in time of war. N.B decision in this case have become very old and it is doubtful whether this will apply in the present time in view of the widespread use of aircrafts, the development of atomic weopons, etc.
2. S.S. Lotus case: A collision occurred on the high seas between a French vessel- Lotus and a Turkish vessel- Boz-Kourt. Victims were Turkish nationals and the alleged offender was French who were charged with manslaughter by Turkey courts jusridiction. The question arose Could Turkey exercise its jurisdiction over this French national under international law. In this case the permanent court, following the same method, decided that there was no customary rule conferring exclusive penal jurisdiction i.e outside its territory in maritime collision cases (on high seas) on the other country of the ships flag. As regards all incidents on the ship, because of the relevant materials considered, state laws were not consistent, decisions of state courts conflicted, no uniform trend could be deducted from treaties, and publicist were divided in their views, although the same method of detailed consideration of all material was followed in both cases, weightier proof of the customary rule was required by the permanent court than by the supreme court, and owing to the absence of such proof the permanent court decided against of the rule and concluded that in respect of collusion cases there is no consistent international custom that criminal jurisdiction can be exercised only by the country of which the flag is flowing on the ship. That is to say, in certain circumstances, a state may exercise criminal jurisdiction outside its territory.

N.b. This decision has also become obsolete because the 1958 Geneva convention on High seas declared that the country of the flag of the ship shall have jurisdiction in collision cases and formulated as article 11 para 1 of the convention on the high seas of 29^th April and a similar provision is now contained in Article 97 of the united Nations convention on the law of the sea of 10^th December 1982.

1. North sea continental shelf case

A more recent illustration of judicial investigation of the problem whether the practice of states conclusively reflects the existence of a customary rule of international law is the North Sea Continental Shelf Cases ICJ 1969, 3 where the international court court of justice ruled against the existence of a customary rule that the division of a common continental shelf of adjacent countries must be effected according to the equidistance principle.