Define a public international law. Discuss various sources of public
international law
Introduction
Sources of international law are the materials and processes out of
which the rules and principles regulating the international personalities are
developed. Rules are extracted and analyzed from the sources. In simple
words the source refere to methods or procedure by which international law
is created.
Article 38(1) of the statute of the International Court of Justice is widely
recognized as the most authoritative statement as to the sources of
International law.
Under Article 38(1) of the statute of the International Court of which is
mentioned following sources of international law.
1) International Conventions
3) General Principles of law
4) Judicial Decisions
5) Juristic writings and teachings
Definitions of International Law
1. L. Oppenheim".-Professor Oppenheim has defined International Law in the
following words:
"Law of Nations or International Law is the name for the body of
customary and conventional rules which are considered legally binding by
civilized States in their intercourse with each other."
2. J.L. Brierly.
In the words of Brierly: "The Law of Nations or International may be
defined as the body of rules and principles of action which are binding upon
civilized States in their relations with one another."
3. Hackworth.
In the words of Hackworth: "International Law consists of a of rules
governing the relations between States. It is a system of jurisprudence which,
for the most part, has evolved out of the experiences and the necessities of
situations that have arisen from time to time.
There are two main sources of international law
1) Primary Sources
, 2) Secondary Sources
1) Primary Sources classified Following Sources
1.1 International Convention
1.2 Internal Custom as Source of International Law
1.3 General Principles of Law
1.1 International Convention
In the modern period international treaties are the most important
source of international law. As well as conventions are one of the most
important sources of International Law. Article 38(1)(a) of the Statute provides
convention as one of the formal sources of international law. It states that,
while deciding any case, the court shall apply general or particular
international treaties that are expressly recognized by the contracting party.
They are a binding written agreement between two or more parties, creating
mutual rights and obligations. Thus, a treaty or convention is contractual in
nature. They are also known as a pact, agreement, covenant, charter, and
memorandum of understanding.
According to Article 2 of the Vienna Convention on the Law of Treaty
1969 “A treaty is an agreement whereby two or more states establish or seek
to establish a relationship between them governed by international law.” But
this definition is narrow and does not seem correct. As correctly pointed out
by Prof. Schwarzenberger “Treaties are agreements between subjects of
international law creating a binding obligation in international law”..
Kinds
Accordingly, treaties are divided into two types, that are as follows:
A) Law-making treaties:
These kinds of agreements have a large number of parties. Thus, they
are also called multilateral treaties. They can be used directly as a source of
international law. Further, these treaties have a general legal standing, rather
than being specific to the parties in a contract. They may lay down general
rules or enunciate universal rules. Some examples of multilateral treaties are
the United Nations Charter , Vienna Convention on the Law of Treaties, 1969
(VCLT), etc.
B) Treaty contracts:
Treaty contracts or bilateral treaties are generally contracted between
two parties. They are drafted in a way that they only suit the object, and
establish the rights and obligations against the parties in the contract.
, Further, a treaty which is originally between two States can later be converted
into a multilateral treaty by adding more parties that will be universally
accepted by all. The Simla Agreement of 1972 between India and Pakistan is
an example of a bilateral agreement.
1.2 Custom as a Source of International Law
The original and the oldest sources Law is known as Custom. The rules
of customary International Law involved a long historical process which
gained recognition by the entire community. The presence of customary rules
can be deduced from state practice and behaviour because it is not a written
source of law.
A rule of customary law is said to have two elements:
First, there must be widespread and consistent State practice.
Secondly, there has to be “opinio Juris”, a Latin term which means a legal
obligation to believe in the existence of such law.
1.2.1 Essentials of Customary Law
1. Uniform and consistency
State practice to give rise to binding rules of customary International
Law that practice must be uniform, consistent and general and must be
coupled with a belief that the practice is obligatory rather than habitual. In
the Asylum Case, the court declared that a customary rule must be used
constantly and uniformly throughout history which can be traced through
state practice.
2 Long Duration
Continuous and regular use of particular conduct is considered as a rule
of customary law. In the North Sea Continental Shelf cases, the ICJ stated
that there is no precise length of time during which the practice must exist. It
is simply that it must be followed long enough to show that other
requirements of custom are satisfactory.
3 An opinion of Law.
To assume the status of customary international law the rule in question
must be regarded by the state as binding in Law i.e. the states must regard
themselves as being under a legal obligation to follow the practice. In the Lotus
case, opinio Juris was seen as an essential element of customary international
law and this was affirmed in North Sea Continental Shelf Cases as well.
international law
Introduction
Sources of international law are the materials and processes out of
which the rules and principles regulating the international personalities are
developed. Rules are extracted and analyzed from the sources. In simple
words the source refere to methods or procedure by which international law
is created.
Article 38(1) of the statute of the International Court of Justice is widely
recognized as the most authoritative statement as to the sources of
International law.
Under Article 38(1) of the statute of the International Court of which is
mentioned following sources of international law.
1) International Conventions
3) General Principles of law
4) Judicial Decisions
5) Juristic writings and teachings
Definitions of International Law
1. L. Oppenheim".-Professor Oppenheim has defined International Law in the
following words:
"Law of Nations or International Law is the name for the body of
customary and conventional rules which are considered legally binding by
civilized States in their intercourse with each other."
2. J.L. Brierly.
In the words of Brierly: "The Law of Nations or International may be
defined as the body of rules and principles of action which are binding upon
civilized States in their relations with one another."
3. Hackworth.
In the words of Hackworth: "International Law consists of a of rules
governing the relations between States. It is a system of jurisprudence which,
for the most part, has evolved out of the experiences and the necessities of
situations that have arisen from time to time.
There are two main sources of international law
1) Primary Sources
, 2) Secondary Sources
1) Primary Sources classified Following Sources
1.1 International Convention
1.2 Internal Custom as Source of International Law
1.3 General Principles of Law
1.1 International Convention
In the modern period international treaties are the most important
source of international law. As well as conventions are one of the most
important sources of International Law. Article 38(1)(a) of the Statute provides
convention as one of the formal sources of international law. It states that,
while deciding any case, the court shall apply general or particular
international treaties that are expressly recognized by the contracting party.
They are a binding written agreement between two or more parties, creating
mutual rights and obligations. Thus, a treaty or convention is contractual in
nature. They are also known as a pact, agreement, covenant, charter, and
memorandum of understanding.
According to Article 2 of the Vienna Convention on the Law of Treaty
1969 “A treaty is an agreement whereby two or more states establish or seek
to establish a relationship between them governed by international law.” But
this definition is narrow and does not seem correct. As correctly pointed out
by Prof. Schwarzenberger “Treaties are agreements between subjects of
international law creating a binding obligation in international law”..
Kinds
Accordingly, treaties are divided into two types, that are as follows:
A) Law-making treaties:
These kinds of agreements have a large number of parties. Thus, they
are also called multilateral treaties. They can be used directly as a source of
international law. Further, these treaties have a general legal standing, rather
than being specific to the parties in a contract. They may lay down general
rules or enunciate universal rules. Some examples of multilateral treaties are
the United Nations Charter , Vienna Convention on the Law of Treaties, 1969
(VCLT), etc.
B) Treaty contracts:
Treaty contracts or bilateral treaties are generally contracted between
two parties. They are drafted in a way that they only suit the object, and
establish the rights and obligations against the parties in the contract.
, Further, a treaty which is originally between two States can later be converted
into a multilateral treaty by adding more parties that will be universally
accepted by all. The Simla Agreement of 1972 between India and Pakistan is
an example of a bilateral agreement.
1.2 Custom as a Source of International Law
The original and the oldest sources Law is known as Custom. The rules
of customary International Law involved a long historical process which
gained recognition by the entire community. The presence of customary rules
can be deduced from state practice and behaviour because it is not a written
source of law.
A rule of customary law is said to have two elements:
First, there must be widespread and consistent State practice.
Secondly, there has to be “opinio Juris”, a Latin term which means a legal
obligation to believe in the existence of such law.
1.2.1 Essentials of Customary Law
1. Uniform and consistency
State practice to give rise to binding rules of customary International
Law that practice must be uniform, consistent and general and must be
coupled with a belief that the practice is obligatory rather than habitual. In
the Asylum Case, the court declared that a customary rule must be used
constantly and uniformly throughout history which can be traced through
state practice.
2 Long Duration
Continuous and regular use of particular conduct is considered as a rule
of customary law. In the North Sea Continental Shelf cases, the ICJ stated
that there is no precise length of time during which the practice must exist. It
is simply that it must be followed long enough to show that other
requirements of custom are satisfactory.
3 An opinion of Law.
To assume the status of customary international law the rule in question
must be regarded by the state as binding in Law i.e. the states must regard
themselves as being under a legal obligation to follow the practice. In the Lotus
case, opinio Juris was seen as an essential element of customary international
law and this was affirmed in North Sea Continental Shelf Cases as well.
