| introduction | jurisprudence |
| relevant case laws | Lotus Case (France vs Turkey) North Sea Continental Shelf Case Right of Passage over Indian Territory (Portugal vs India) Temple of Preah Vihar(Cambodia vs Thailand) |
| present problem | question related |
| conclusion | decision as per our reasoning |
The term source refer to methods or procedure by which international law is created.The sources of international law create the framework for practice in, and interaction with, public international law.There are two types of sources; (i) Formal, (ii) Material
A formal source is that from which a rule of law derives its force
and validity…The material sources, on the other hand, are those from
which is derived the matter, not the validity of the law. The material
source supplies the substance of the rule to which the formal source
gives the force and nature of law.
Sources of international law are defined under Article 38(1) External of the ICJ Statute. Article 38 lists sources of international law for the court to follow when overseeing proceedings between member states of the United Nations, or states that have become parties to the ICJ Statute.
- international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- international custom, as evidence of a general practice accepted as law;
- the general principles of law recognized by civilized nations;
- 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.
International Conventions:
In the modern period, international treaties are the most important source of international law. This is because the reason, inter alia that states have found in this source a deliberate method by which to create binding international law. The term Conventions is used in a general and inclusive sense. It would seem to apply to any treaty, convention, protocol or agreement, regardless of its title or form.
#A convention may be general, either because of the number of parties to it, or because of the character of its contents; it may be particular because of the limited number of parties to it, or because of the limited character of its subject-matter. Whenever, an international tribunal decides an international dispute then its first endeavour is to find out whether there is an international treaty on the point. In case there is an international treaty, the decision of the court is based upon the provisions of that treaty.
#International treaties may be of the two types: (A) Law making treaties and Treaty Contracts:
#Law making treaties may again be divided into following two types:
(a)Treaties enunciating rules of universal international law-
United Nations Charter is the best example of such type of
treaty.
(b) International treaties which lay down general principles- These treaties are entered into by a large number of countries. 1958 Geneva Conventions on the law of the Sea and Vienna Convention on the law of the treaties, 1969 are good examples of such types of treaties.
(B) Treaty Contracts- As compared to law-making treaties, treaty contracts are entered into by two or more States.
International Custom:
International custom have been regarded as one of the prominent sources of international law for a long time. It is the “oldest and the original source’ of international as well as law in general. Customary rules of international law are the rules which have been developed in a long process of historical development.
Article 38(b) of the Statute of the International Court of Justice recognises ‘ International Custom, as evidence of general practice accepted as law’ as one of the sources of international law. In order to understand the meaning of ‘custom’, it is necessary to know the meaning of the word ‘usage’. The words ‘custom’ and ‘usage’ are often used as synonymous. In fact, there is difference between the usage and custom, and they are not synonymous. Usage is in fact the early stage of custom. By usage we mean those habits which are often repeated by the States.
As pointed out by Starke, where a custom begins, usage ends. Usage is an international habit which has yet not received the force of law.
In the words of Starke, “Usage represents the twilight stage of custom, custom begins where usage ends.”
When a usage is combined with opinio juris sine necessitates, a rule of customary law exists, and it is probably justifiable to say that a usage reflects a customary rule if it is connected with a practically universal opinion juris.
What is opinio juris?
Opinio juris is a shortened form of the Latin phrase opinio juris sive necessitatis, which means “an opinion of law or necessity.
In customary international law, opinio juris is the second element necessary to establish a legally binding custom. Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question. The International Court of Justice reflects this standard in ICJ Statute, Article 38(1) (b) by reflecting that the custom to be applied must be “accepted as law”.
General Principles of International Law:
By general principles of law recognised by civilised States we mean those principles which have been recognised by almost all the States.
By general principles of law we mean ‘those rules or standards which we find repeated in much the same form in the developed systems of law, either because they have a common origin, as in Roman law, or because they express a necessary response to certain basic needs of human association. Examples are: the rule of pacta sunt servanda,(agreements must be kept); that contracts must be kept; the principle that reparation must be made for damage causes by fault; the right of self defence for the individual against attack on his person or family and the community against clear and present danger; and the principle that no man may be a judge in his own cause, and that he who has to judge must hear both the sides.”
Res judicata, estoppel, etc are examples of the general principles of law recognised by civilised states. These principles are such as have received recognition by almost all the States. They have therefore, been included as the general principles of international law. General principles of law recognised by civilised states include procedural as well as substantive principles provided that they have received general recognition of civilised States.
Judicial Decisions and Jurists Teachings: The decisions of international and municipal courts and the publications of academics can be referred to, not as a source of law as such, but as a means of recognizing the law established in other sources. In practice, the International Court of Justice does not refer to domestic decisions although it does invoke its previous case-law.There is no rule of stare decisis in international law. The decision of the Court has no binding force except between the parties and in respect of that particular case. Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case.
The ‘teachings of the most highly qualified publicists of the various nations’ are also among the ‘subsidiary means for the determination of the rules of law’. The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. This is accepted practice in the interpretation of international law and was utilized by the United States Supreme Court in The Paquete Habana case (175 US (1900) 677 at 700–1). In the practice of the International Court of Justice, citations to teachings in decisions are exceptional, but Judges routinely refer to them in their individual opinions.
Relevant Case Laws;
Lotus Case (France vs Turkey)
facts;
The French ship S.S. Lotus had collided on the high sea with the Turkish vessel Boz Kourt, killing thereby eight Turkish nationals. When the Lotus arrived in Turkish waters, criminal proceedings were instituted in the Turkish courts against the captain of Lotus along with the captain of Boz Kourt for manslaughter and sentenced. The French Government protested against the Turkish action, and by an agreement between the parties, the dispute was submitted to the Permanent Court of International Justice.
France raised two main contentions:
(i) international law does not allow a State to take proceedings with regard to offences committed by foreigners abroad simply by reason of the nationality of the victim, and
(ii) international law recognizes the exclusive jurisdiction of the flag State over events occurring on board a ship on the high seas.
issue:
Does international law allow a State to take proceedings with regard to offences committed by foreigners abroad simply by reason of the nationality of the victim?
judgement:
The Court, while rejecting the French contention that on the question of criminal jurisdiction in cases of collision on the high seas, only the flag State is competent to exercise jurisdiction, referred to several municipal decisions and found no uniformity on the matter.
The international tribunals also quite often resort to municipal laws to ascertain whether a customary rule of international law has evolved by concurrent and cumulative State practice.
There is no restriction on the exercise of jurisdiction by any State unless that restriction can be shown by the most conclusive evidence to exist as a principle of international law.
Jurisdiction is certainly territorial, it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.
It held that “the offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners”.
The French government, although able to show that jurisdiction normally followed the flag, was unable to establish that international law recognises the exclusive jurisdiction of the flag State over incidents occurring on the high seas.
Court observed that if “a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent”.
North Sea Continental Shelf Case
facts:
The dispute was related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand and between the Federal Republic of Germany and Netherlands on the other. Both Denmark and Netherlands argued that delimitation of continental shelf should be done based on “equidistance-special circumstances principle” as laid down in Article 6(2) of the Geneva Convention of Continental Shelf of 1958. Both were parties to Geneva Convention whereas Germany signed the Convention but never ratified it. Germany argued that delimitation should be done in such a way that every State gets a “just and equitable share” of the available continental shelf in proportion to the length of its sea frontage.
Alternatively, the Germany claimed that if equidistance method were held applicable, the configuration of the German North Sea coast constituted special circumstances such as to justify a departure from that method of delimitation in this particular case. Denmark and Netherlands argued that even if there was at the date of the Geneva Convention no rule of customary international law in favour of the equidistance principle, and no such rule was crystallised in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partially because of its own impact, partially on the basis of subsequent State practice, and that this rule, being now a rule of customary international law binding on all States, including Germany, should be declared applicable to the delimitation of the boundaries between the parties’ respective continental shelf areas in the North Sea.
issue:
whether State practice in the matter of continental shelf delimitation has, subsequent to the Geneva Convention, been of such a kind as to satisfy this requirement?
judgement;
The States concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so — especially considering that they might have been motivated by other
obvious factors.
The Court accordingly concluded that if the Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of customary international law enjoining the
use of the equidistance principle for the delimitation of continental shelf areas between
adjacent States, neither has its subsequent effect been constitutive of such rule; and that
State practice up-to-date has equally been insufficient for the purpose.
In the present case, the number of ratifications and accessions so far was hardly
sufficient.
As regards the time element, all the passage of only a short period of time was not
necessarily a bar to the formation of a new rule of customary international law on the
basis of what was originally a purely conventional rule, it was indispensable that State
practice during that period including that of States whose interests were specially
affected, should have been both extensive and virtually uniform in the sense of the
provision invoked and should have occurred in such a way as to show a general
recognition that a rule of law was involved.
The Court consequently concluded that the Geneva Convention was not in its origins orinception declaratory of a mandatory rule of customary international law enjoining theuse of equidistance principle, its subsequent effect had not been constitutive of such arule, and State practice up to date had equally been insufficient for the purpose.
Right of Passage over Indian Territory (Portugal vs India)
facts:
Portugal claimed the right of passage with respect to two of its enclaves Dadra and Nagar- Aveli which were surrounded by territory of India and the coastal district of Daman. It was stated by Portugal that Government of India prevents it from exercising that right of passage due to which it became impossible for it to exercise its rights of sovereignty over the enclaves.
Portugal relied on the treaty of Poona of 1779 and on Sanads (decrees) issued by the Maratha ruler in 1783 and 1785, as having conferred on Portugal sovereignty over the enclaves with the right of passage to them.
issue;
Does Portugal have a right to free passage over Indian territory to access its enclaves?
judgement;
Further, it was found by Court that only a revenue tenure called a jagir or saranjan was granted to Portugal and not the sovereignty. There was, therefore, no question of any right of passage for the purpose of exercising sovereignty over enclaves.
However, the Court found that British recognized Portuguese sovereignty over the villages and subsequently it was tacitly recognized by India.
The Court observed that a local custom might be established between two States on the basis of long practice.
The Court found it a common ground between the Parties that during the British and post-British periods, the passage of private persons and civil officials have not been subject to any restrictions beyond routine control. Merchandise other than arms and ammunition had also passed freely subject only at certain times, to customs regulations and such regulation and control as were necessitated by consideration of securities or revenue.
The Court was, therefore, of the view that no right of passage in favour of Portugal involving a correlative obligation on India had been established in respect of armed forces, armed police and arms and ammunition.
Temple of Preah Vihar Case(Cambodia vs Thailand)
facts;
The subject of dispute was sovereignty over the region of the Temple of Preah Vihear. The boundary between Cambodia (then a protectorate of France) and Thailand (then Siam) in the area of Preah Vihear was to be determined by a Treaty between France and Siam of 13 February 1904. The treaty stated that it was to follow the watershed line and provided for the details to be worked out by a Mixed Franco-Siamese Commission. Survey was conducted by the Commission. These maps were completed by a team of French officers, some of whom had been members of the Mixed Commission. The maps were never approved by the Commission which did not meet again after the map had been prepared. In the map, the area of Preah Vihear was shown on Cambodian side. Cambodia principally relied on this map in support of her claim to sovereignty over the temple. Thailand, on the other hand contended that the map, not being the work of the mixed Commission, had no binding character.
issue:
Whether the Preah Vihear temple lies in Cambodian territory or Thailand’s territory?
Under which jurisdiction temple comes?
judgement:
The Court concluded that at its inception, it had no binding character. It was clear from the record, however, that the maps were communicated to the Siamese Government as proposing to represent the outcome of the work of delimitation, since there was no reaction on the part of the Siamese authorities, either than or for many years, they must be held to have acquiesced.
The Court held: It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error, or could have avoided it, or if the circumstances were such as to put that party on notice of a possible error.
The Court considers that the character and qualifications of the persons who saw the Annex I map on the Siamese side would alone make it difficult for Thailand to plead error in law. These people include the members of the very Commission of Delimitation within whose competence this sector of the frontier had lain.
Furthermore, in 1930, Siamese Prince Damrong visited that disputed area and was officially received thereby the French resident at a ceremony at which the French flag was flown, and Siamese failed to react. The Court concluded that Thailand had accepted the map and was precluded by her conduct from asserting that she did not accept it.
The Court found that Thailand was under an obligation to restore to Cambodia any sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which might, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities.
Present Problem;
In a dispute between State A and State B over an island C. State A claims the title to it on the basis that State X had discovered that island first and it sold the same to State A. But State B argues that the island is in its continuous peaceful possession for more than 90 years and hence it had right over it. Decide.
Answer:
State B has a stronger claim to island C due to its continuous and peaceful possession for over 90 years. As state A have not contested state B’s possession during this period, it strengthens state B’s claim. AND state B’s uninterrupted control over for over 90 years demonstrates effective occupation.
