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SOURCES OF INTERNATIONAL LAW
Introduction:-
The term sources refer to methods or procedure by which international law is created.
A distinction is made between the formal sources and material sources of law.
The formal, legal and direct sources consist of the acts or thing which gives that the content its binding character as law.
The material sources provide evidence of the existence. The sources of international law may be classified into five categories:-
1.INTERNATIONAL CONVENTIONS: - In the modern period international treaties are the most important source of international law. This is because the reason that states have found in this sources. Article 2 of the Vienna Convention on the law of treaties 1969, a treaty is agreements whereby two or more states establish or seek to establish relationship between them govern by international law. Prof. Schwarzenbergr, “Treaties are agreements between subjects of international law creating a binding obligation in international law.” International treaties may be of the two types: - a) Law making treaties:- these are the direct source of international law and the development of these treaties was changing of the circumstances. Law making treaties perform the same functions in the international field as legislation does in the state field. b) Treaty contracts:-As compared to law making treaties treaty contracts are entered into by two or more States. This may happen when a similar rule is incorporated in a number of treaty contracts.
2.INTERNATIONAL CUSTOMS:-International customs have been regarded as one of the prominent sources of international law for a long time. However even today it is regarded as one of the important sources of international law. Usage is an international habit which has yet not received the force of law. STRAKE Says, “Usage represents the twilight stage of custom, custom begins where usage ends. Usage is an international habit of action that has yet not received full legal attestation.” A custom in the intendment of law is such usage as that obtained the Force of law i.e.:- It is not necessary that the usage should always precede a custom. ii) In certain cases usage gives rise to international customary law. iii) When a usage is combined with a rule of customary law exists. iv) It is an important matter to see as to how international custom will be applied in international law. Refer a case of West Rand Central Gold Mining Compy.v/s R-1905, court held that for a valid international customs it is necessary that it should be roved by satisfactory evidence that the custom is of such nature which may receive general consent of the States and no civilized state shall oppose it. Porugal v/s India-1960, ICJ pointed out that when in regard to any matter or practice, two states follow it repeatedly for a long time, it becomes a binding customary rule. Still other resolutions amount to an interpretation of the rules and principles which he charter already contains and which are in binding upon States.
3. GENERAL PRINCIPLES OF LAW RECOGNISED BY CIVILIZED STATES:- Art.38 of ICJ provides that the Statute of International Court of Justice lists general principles of law recognised by civilised States as the third source of international law. In the modern period it has become an important source. This source helps international law o adapt itself in accordance with the changing time and circumstances. On the basis of this view the general principle of law recognised by civilized States have emerged as a result of transformation of broad universal principles of law applicable to all the mankind. Following are some important cases relating to the general principles of law recognised by civilized States:-1.R. v/s Keyn-1876, that I. Law is based on justice, equality and conscience which have been accepted by practice of States. 2. U.S v/s Schooner-held that I. Law should be based on general principles.
4. ARBITRAL TRIBUNALS AND JURISTIC WORKS:-
i) International judicial Decisions:-In the modern period international court of justice is the main international judicial tribunal. It was established as a successor of the permanent court of I. justice. Art.59 of the statute of ICJ makes it clear that the decisions of the court will have no binding force except between the parties and in respect of that particular case. While in principle it does not follow the doctrine of precedent. Thus judicial decisions unlike customs and treaties are not direct sources of law; they are subsidiary and indirect sources of international law. State judicial decisions:- These decisions may become rules of international law in the following two ways:-1. State judicial decisions are treated as weighty precedents. 2. Decisions of the state courts may become the customary rule of I. Law in the same way as customs are. Decisions of International Arbitral Tribunals:- Jurists have rightly too pointed out that in most of the arbitral cases arbitrators act like mediators and diplomats rather than as judges as in Kutch Award-1968. Juristic Works. Juristic Works:- Art.38 of ICJ, the work of high qualified jurists are subsidiary means for the determination of the rules of I. Law. In Paquete Habana and Lola fishing vessels with Spanish flags on them in 1898 during war between America & Spain, held that they could not be seized or apprehended during the state of blockade.
5. DECISIONS OR DETERMINATIONS OF THE ORGANS OF INTERNATIONAL INSTITUTIONS:- Art.38 of ICJ incorporated these sources and also introduced one new source namely general principles of law. In view of the strong reasons the decisions and determination of organs are now recognised as an important source of I. Law. The resolutions of the organs may be binding on the members in regard to the internal matters. Organs of international institution can decide the limits of their competence.
6. SOME OTHER SOURCES OF INTERNATIONAL LAW:- Besides the above sources of I. Law, following are some of the other sources of international law: -
1. International Comity: mean mutual relations of nations.
2. State Paper:-In modern period diplomats send letters to each others for good relations are also the sources of I. Law.
3. State guidance for their officers: Numbers of matters are resolved on the advice of their legal advises.
4. Reasons: has a special position in all the ages.
5. Equity & Justice: I t may play a dramatic role in supplementing the law or appear unobtrusively as a part of judicial reasoning.
The term sources refer to methods or procedure by which international law is created.
A distinction is made between the formal sources and material sources of law.
The formal, legal and direct sources consist of the acts or thing which gives that the content its binding character as law.
The material sources provide evidence of the existence. The sources of international law may be classified into five categories:-
1.International Conventions: - In the modern period international treaties are the most important source of international law. This is because the reason that states have found in this sources. Article 2 of the Vienna Convention on the law of treaties 1969, a treaty is agreements whereby two or more states establish or seek to establish relationship between them govern by international law. Prof. Schwarzenbergr, “Treaties are agreements between subjects of international law creating a binding obligation in international law.” International treaties may be of the two types: - a) Law making treaties:- these are the direct source of international law and the development of these treaties was changing of the circumstances. Law making treaties perform the same functions in the international field as legislation does in the state field. b) Treaty contracts:-As compared to law making treaties treaty contracts are entered into by two or more States. This may happen when a similar rule is incorporated in a number of treaty contracts.
2.International Customs:-International customs have been regarded as one of the prominent sources of international law for a long time. However even today it is regarded as one of the important sources of international law. Usage is an international habit which has yet not received the force of law. STRAKE Says, “Usage represents the twilight stage of custom, custom begins where usage ends. Usage is an international habit of action that has yet not received full legal attestation.” A custom in the intendment of law is such usage as that obtained the Force of law i.e.:- It is not necessary that the usage should always precede a custom. ii) In certain cases usage gives rise to international customary law. iii) When a usage is combined with a rule of customary law exists. iv) It is an important matter to see as to how international custom will be applied in international law. Refer a case of West Rand Central Gold Mining Compy.v/s R-1905, court held that for a valid international customs it is necessary that it should be roved by satisfactory evidence that the custom is of such nature which may receive general consent of the States and no civilized state shall oppose it. Porugal v/s India-1960, ICJ pointed out that when in regard to any matter or practice, two states follow it repeatedly for a long time, it becomes a binding customary rule. Still other resolutions amount to an interpretation of the rules and principles which he charter already contains and which are in binding upon States.
3. General Principles of Law recognised by civilized States: - Art.38 of ICJ provides that the Statute of International Court of Justice lists general principles of law recognised by civilised States as the third source of international law. In the modern period it has become an important source. This source helps international law o adapt itself in accordance with the changing time and circumstances. On the basis of this view the general principle of law recognised by civilized States have emerged as a result of transformation of broad universal principles of law applicable to all the mankind. Following are some important cases relating to the general principles of law recognised by civilized States:-1.R. v/s Keyn-1876, that I. Law is based on justice, equality and conscience which have been accepted by practice of States. 2. U.S v/s Schooner-held that I. Law should be based on general principles.
4. Arbitral Tribunals and Juristic Works:- i) International judicial Decisions:-In the modern period international court of justice is the main international judicial tribunal. It was established as a successor of the permanent court of I. justice. Art.59 of the statute of ICJ makes it clear that the decisions of the court will have no binding force except between the parties and in respect of that particular case. While in principle it does not follow the doctrine of precedent. Thus judicial decisions unlike customs and treaties are not direct sources of law; they are subsidiary and indirect sources of international law. State judicial decisions:- These decisions may become rules of international law in the following two ways:-1. State judicial decisions are treated as weighty precedents. 2. Decisions of the state courts may become the customary rule of I. Law in the same way as customs are. Decisions of International Arbitral Tribunals:- Jurists have rightly too pointed out that in most of the arbitral cases arbitrators act like mediators and diplomats rather than as judges as in Kutch Award-1968. Juristic Works. Juristic Works:- Art.38 of ICJ, the work of high qualified jurists are subsidiary means for the determination of the rules of I. Law. In Paquete Habana and Lola fishing vessels with Spanish flags on them in 1898 during war between America & Spain, held that they could not be seized or apprehended during the state of blockade.
5. Decisions or determinations of the organs of international institutions:-Art.38 of ICJ incorporated these sources and also introduced one new source namely general principles of law. In view of the strong reasons the decisions and determination of organs are now recognised as an important source of I. Law. The resolutions of the organs may be binding on the members in regard to the internal matters. Organs of international institution can decide the limits of their competence.
6. Some other sources of International Law:- Besides the above sources of I. Law, following are some of the other sources of international law: -
1. International Comity: mean mutual relations of nations.
2. State Paper:-In modern period diplomats send letters to each others for good relations are also the sources of I. Law.
3. State guidance for their officers: Numbers of matters are resolved on the advice of their legal advises.
4. Reasons: has a special position in all the ages.
5. Equity & Justice: I t may play a dramatic role in supplementing the law or appear unobtrusively as a part of judicial reasoning.
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