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Public International Law(Unit -1)1. Explain the various sources of International LawAns : Sources of international law can be classified into the following categories: -(1) International Conventions / Treaties(2) International Customs;(3) General Principles of Law recognised by civilized nations;(4)...

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Public International Law (Unit -1) 1. Explain the various sources of International Law Ans: Sources of international law can be classified into the following categories: (1) International Conventions / Treaties (2) International Customs; (3) General Principles of Law recognised by civilized nations; (4) Decisions of Judicial or Arbitral Tribunals; (5) Juristic Works; and (6) Decisions or Determinations of the Organs of International Institutions. (1) International Conventions. The term "conventions" applies to any treaty, protocol or agreement. regardless of its title or form. According to Article 38 of the Statute of International Court of Justice, it is the first source of international law. In the modern period international treaties are the most important sources of international law. As defined by Article 2 of Vienna Convention on the Law of Treaties. 1969. "a treaty is an agreement whereby two or more States establish or seek to establish relationship between them governed by international law." Article 3 adds that the fact that the present convention does not apply to international agreements concluded between States and other subjects of international law, or to international agreements not in written form shall not affect: (a) the legal force of such agreements; (b) the application to them of any rules set forth in the present convention to which they would be subject under international law independently of the convention; (c) the application of the convention to the relations of States as between themselves under international agreements as to which other subjects of international law are also parties. International Treaties may be of following two types(a) Law-Making Treaties; and (b) Treaty Contracts. (a) Law-Making Treaties : are those treaties which are entered into by a large number of States. These are the direct sources of international law. Law-making Treaties may be divided into following two types: (1) Treaties enunciating the rules of Universal International Law Those treaties which are signed by a majority of the States are called the Treaties enunciating the rules of universal international law. United Nations Charter is an example of such type of treaties.

(2) Those enunciating general principles Treaties which are entered into by a large number of countries enunciated general principles of international law 1958 and 1960. Geneva Conventions on the Law of the Sea and Vienna Convention on Diplomatic Relations, 1961, are good examples of such types of treaties. (b) Treaty Contracts Treaty Contracts are those treaties which are entered into by two or more States. The provisions of such treaties are binding only on the parties to the treaty. Such type of treaties are also the source of international law because they help in the development of customary rules of international law. (2) International Customs. International Custom used to be the most important source of international law in the past. In the modern period, their importance has lessened. Custom is a habit which has been repeated for a long time and has ultimately assumed the force of law. Usage is the earlier stage of the development of custom. By usage we mean those habits which are often repeated by the States. Custom begins where usage ends. Usages may be inconsistent and opposed to each other, but so is not the case with custom. In the words of Viner, "A custom, in the intendment of law, is such a usage as hath obtained the force of law." Customary rules of international law have devoloped in the following three circumstances(a) Diplomatic relations between states; (b) Practice of Organs of International Institutions; and (c) State Laws, decisions of the State's Courts and State's Parliamentary or administrative practices. Ingredients or Elements of Custom (i)

Evidence of a General Practice accepted as law

Long duration is an essential element of a custom in Municipal Law. But this is not necessary for an international custom. Article 38 of the I.C.J. directs the world court to apply international custom as evidence of a general practice accepted ... ; law. Thus what is more important is the practice of States accepting the practice concerned as law. In the field of international law, customs have emerged in short duration, for example, customs relating to sovereignty over air space and the sovereign rights over the resources of the continental shelf. (ii)

Uniformity and consistency

The custom should be uniform and consistent. But complete uniformity is not necessary. Nevertheless, there must be substantial uniformity. (iii)

Generality of Practice

Though universality of practice is not necessary, the practice should have been generally observed or repeated by numerous States. (iv)

Opinio juris ncessitatis (Jurists' opinion as of necessity)

when it is general and consistent, is not customary law unless an opinio juris is present, that is to say, unless the practice is recognized as being required by international law. It is this sense of law of legal obligation, as distinguished from motives of fairness, convenience or morality, that underlies customary law." (3) General Principles of Law recognised by the civilized States. According to Article 38 of the Statute of International Court of Justice, the general principles of law recognised by the civilized Nations are also one of the sources of international law. This is an important source of law through which international law adapts itself in accordance with the changing limes and circumstances. In the words of Lord McNair, "It describes an inexhaustible reservoir of legal principles from which the tribunals can enrich and develop public international law," Res Judicata, estoppel, etc are the examples of the general principles of law recognised by civilized States. The general principles of law are those principles which are recognised by most of the civilized States. When the court finds that a principle has received general recognition, the court may apply it as a principle of international law. Case Law: (a) R. Key (1876) 2 Ex. D. 63.-ln this case the court ruled that international law is based on justice, equity and good conscience which has been accepted by long practice of States. (b) United States v. Schooner.-In this case Justice Storey of United States of America ruled that International Law should be based on the general principles of law recognized by civilized States. He was giving decision relating to Abolition of System of Slavery. (4) Decisions of Judicial and Arbitral Tribunals. The decisions of Judicial and Arbitral Tribunals are also the sources of International Law. But, according to Article 38 of the International Court of Justice, they are subsidiary means for the determination of the rules of law. This source includes international as well as State decisions. As regards the decisions of the International Court of Justice, Article 59 of the Statute of International Court of Justice provides that they will have "no binding force except between the parties and in respect of that particular case". Since, the doctrine of precedent do no apply in field of international law the international judicial decisions are not generally binding. They are regarded as subsidiary means for the determination of the rules of international Law. The arbitral decisions have still less value because it is generally said that arbitrators work more as mediators rather than as judges. (5) Juristic Works The opinions of jurists are also regarded as sources of International Law. But, they are also subsidiary means for the determinations of the rules of international law. While deciding the case, if the court does not find any treaty or judicial decision or legislative act or any

established custom, the court may take the help of opinion of jurists as subsidiary means for the determination of rules of international law.

(6) Decisions or determinations of the organs of international institutions. In the modern age the decisions or determinations of organs of international institutions are also treated as sources of International Law. In view of the constant change in the form and content of international law, international organisations have also become a subject of international law. The decisions and determinations of the organs of such institutions are also, therefore, regarded as the source of international law because they held in the development of customary rules of international law. After the establishment of U.N. most of the development of international law and its codification has taken place through the instrumentality of international organisations. 2. Whether International Law is Law in the true sense of the term? Ans: It will be desirable to discuss first the question whether International Law is true law or not. This question is now only of academic interest because it has been well established for once and for all times that International Law is true law. However, a discussion on this question is still important for it helps to understand the nature of International Law. Whether International Law is law in the true sense of the term or not. The controversy whether International Law is true law or not depends upon the definition of the word 'law'. As remarked by Prof. Glanville L.Williams, "The largest of jurisprudential controversy that as to the word 'law' is a verbal dispute and nothing else." If we subscribe to the view of Hobbes, Au tin and Pufendorf, that law is command of sovereign enforced by superior political authority, then international law cannot be included in the category of law. On the other hand, if we subscribe to the view that the term 'law', cannot be limited to the rules enacted by the superior political authority, then international law can be included in the category of law. According to Austin, law is given by a determinate superior political authority to political inferiors and is backed by a coercive enforcement agency. Thus, according to Austin, sanction occupies an important place in the enforcement of law. People follow law due to sanction or coercive element inherent in law. Hobbes also subscribes to this view. The definition of law given by Austin is not correct. In the words of Prof. Oppenheim, "This definition is not correct. It does not cover that part of municipal law which is termed an unwritten or customary law. There is, in fact, no community and no State in the world which exist with written law only." In his view, law is, "a body of rules of human conduct within a community which by consent of this community shall be enforced by external power." Brierly and Prof. Hart have also criticised the Austinian definition of law. According to Oppenheim, the existence of law presupposes the existence of three prerequisites :-

(i) a community; (ii) a body of rules; and (iii) common consent of the community that if necessary these rules shall be enforced by an external power. Most of the jurists now subscribe to the view that international law is law. It has been pointed out that sanction is not an essential element of law. Even if it is regarded as an essential element, it would be wrong to say that international law has no sanction behind it. Brierly has rightly pointed out, "It is both practically inconvenient and also contrary to best juristic thought to deny its (i.e. international law) legal character." Views of jurists, who regard international law as really law may be summed up as follows :(1) The term law cannot be limited to rules of conduct enacted by a sovereign authority. It has been established by Historical Jurisprudence that in many communities a system of law existed although such communities lacked a formal legislative authority. As pointed out by Starke, such law did not differ from any State law with true legislative authority. (2) As pointed out by Oppenheim, in practice, international law is recognised as law by the States and they consider it binding on them. (3) Even when the States violate international law they never question its legal existence or legal character. On the contrary, they try to interpret the rules of international law so as to justify their conduct. (4) The Austinian concept of law fails to account for the customary rules of international law. (5) In the modern time, customary rules of international law are diminishing and are being replaced by law making treaties and conventions. (6) When international disputes arise. States, instead of relying on moral arguments base their arguments on the provisions of treaties, precedents and opinions of jurists. (7) In some States (For example, the USA and U.K.), international law is treated as a part of their own law. (8) The Statute of International Court of Justice provides that the Court shall decide such disputes as are submitted to it in accordance with international law. (9) International Conferences and Conventions treat international law as law in the true sense of the term. (10) Public opinion is also considered as the ultimate sanction behind the binding force of international law and for that matter, behind any law. Conclusions. On the basis of the above arguments it may be concluded that International Law is in fact law. International Law operates entirely in a different setting. It operates in a decentralized system. Prof. Hart has rightly remarked, " that no simple deduction can be made from the necessity of organised sanctions to Municipal law, in its setting of physical and psychological facts, to the conclusion that without them international law, in its every different setting imposes any obligations, if not binding, and so not worth the title of 'law'. As aptly remarked by Loui Henkin, "much of the misunderstandings of international law is due to a failure to

recognise law where it exists". Further, "Fortunately, international law exists and it worksnot perfectly or always but well enough and often enough to make a considerable difference in the conduct of international affairs. Although there is no one to determine and adjudge the law, there is wide agreement on the content and meaning of law and agreements, even in a divided world burgeoning with new nations." According to Starke, international law is a 'weak law' because existing international legislative machinery operating mainly through law making convention is not comparable in efficiency to State legislative machinery. International Law can be said to be 'weak' only when it is compared with municipal law. Much of the controversy relating to international law is due to the fallacy that the system of municipal law is an ideal one and all legal systems and for that matter international law also must conform to that ideal. Municipal law operates in a centralized system whereas International Law operates in a decentralized system. The comparison is therefore not a happy one. International Law must be understood in its own setting and the system in which it operates. It is as strong and as effective as it can be under the system in which it operates. 3. Who are the subjects of International Law? Explain. Examine how far individuals and international organisations are subjects of international law Ans: Various theories regarding subjects of International Law.- There are three main theories in regard to the subjects of International Law— (1) Only States are subjects of International Law. (2) Individuals alone are the subject of International Law. (3) States are main subjects of international law but individuals, international organisations and certain non-State entities are also the subjects of international law. (1) Only States are subjects of International Law According to this view, only states are the subjects of international law. This view has been severely criticised. It fails to explain the ca e of slaves and pirate who have been conferred some rights under international law. But those who subscribe to the view that states are the only subjects of international law. say that they are not the subjects but objects of international law. They further point out that they get these rights only through the medium of the State. But, as Prof. Schwarzenberger has written, it is a contradiction in term to say the individuals are not subject but objects of international law. In his view it would be wrong to say that individual who forms the basis of the society, may only be .an object and not subject of international law. The International Court of Justice held that "the United Nations has the capacity to bring an international claim against the State for obtaining reparation when an agent of the U.N. suffers injury in the performance of his duties in circumstances involving the responsibility of a State. (2) Individuals alone are the subjects of International Law. – The chief exponent of this theory is Kelsen. Before Kelsen, Westlake had also remarked, "The duties and rights of states are only the duties and rights of men who compose them".

According to, Kelsen both State law and international law apply on the individuals. If we make an analysis, we find that individual is at the root of all laws. Thus, there is no real difference between international law and State law. Kelsen, however, admit; that the difference is simply this that State law applies on individual s immediately or directly, whereas the international law applies 'imediately'. It may be noted that the logic behind the views of Kelsen is very strong and it is very difficult to disprove it, although practice of the State is just contrary. In practice, international law is generally regarded as comprising of the major part of its rules regulating the relations of State. This view seems to be a reaction of the view that only Stales are the subjects of international law. This is in fact a very extreme view and cannot be regarded as completely correct. Individuals are now recognized as subjects of international law and they can (although in a very few rather negligible cases) even claim rights against States (including his own) but their procedural capacity to enforce their rights is grossly deficient. Besides this, history and practice of international law shows that States have always been, and are even now the main subjects of international law. Moreover, present practice shows that international organisations and certain non-State entities are also to some extent regarded subjects of international law. (3) States are main subjects of International Law but individuals, international organisations and certain non-State entities are also subjects of international law: This view, besides making the synthesis of the first and second views goes a step ahead to include international organisations, certain other non-State entities as subjects of international law. This is definitely a better view than the first two views. As aptly remarked by P.E. Corbet, "To me it has long meant that we are witnessing a transition in international legal development from a prolonged stage in which the predominant, not to say exclusive, concern was the regulation of the conduct of State as distinct entities to one in which equal attention is given to promoting the growth of a body of world law transcending States. and applicable on a footing of equality of individuals, corporations, international organisations and States". Conclusion:On the basis of the above discussion, it may be concluded that not only States. individuals, international organisations and certain other non-State entities are the subjects of international law. The fact, however, remains that major part of the rules of international law deals with the intercourse of States with each other. Place of individual in International Law: As pointed out earlier individuals are also now treated to. be the subjects of international law. In recent times several treaties have been entered into wherein certain rights have been conferred and duties have been imposed upon the individuals. In this connection following may be noted: (i) Pirates. - Pirates are treated as enemies of mankind under international law. Every State can apprehend and punish them. (ii) Harmful acts of Individuals. – Under certain circumstances States are responsible for the harmful acts of their individuals. If a person cau...