Sources of International Law
Prof. L. Oppenheim has defined international law in 1905 in the following words “The 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.” International sources are the origins of international law,so international sources are related with the makings of international law. Sources of international law are mainly 1. Material sources
2. Formal sources
Article 38(1) of the statute of the International Court of Justice (ICJ) is widely recognized as a definitive statement of the sources of international law. It mentions that-
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply :
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. 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.
Treaties
Treaties represent an important source of international law. International treaties may be general or practical. According to the article 2 of Vienna treaty-1969
“A treaty is an agreement held by two or more states to make relations”
There are two types of treaty. They are:
1 Law making treaty
2 Treaty contracts
Some treaties are the result of codifying existing customary law, such as laws governing the global commons. While the purpose is to establish a code of general application, its effectiveness depends upon the number of states that ratify or accede to the particular convention. Relatively few such instruments have a sufficient number of parties to be regarded as international law in their own right. The most obvious examples are the 1949 Geneva Conventions for the Protection of War Victims. Most multi-lateral treaties fall short of achieving such a near universal degree of formal acceptance, and are dependent upon their provisions being regarded as representing customary international law and, by this indirect route, as binding upon non-parties. This outcome is possible in a number of ways: When the treaty rule reproduces an existing rule of customary law, the rule will be clarified in terms of the treaty provision. A notable example is the Vienna Convention on the Law of Treaties 1969, which was considered by the ICJ to be law even before it had been brought into force. When a customary rule is in the process of development, its incorporation in a multilateral treaty may have the effect of consolidating or crystallizing the law in the form of that rule. It is not always easy to identify when this occurs. Where the practice is less developed, the treaty provision may not be enough to crystallize the rule as part of customary international law. Even if the rule is new, the drafting of the treaty provision may be the impetus for its adoption in the practice of states, and it is the subsequent acceptance of the rule by states that renders it effective as part of customary law. If a broad definition is adopted of state practice, the making of a treaty would fall within the definition. Alternatively, it is possible to regard the treaty as the final act of state practice required to establish the rule in question, or as the necessary articulation of the rule to give it the customary international law. Convention-based "instant custom" has been identified by the ICJ on several occasions as representing customary law without explanation of whether the provision in question was supported by state practice. This has happened with respect to a number of provisions of the Vienna Convention on the Law of Treaties 1969. If "instant custom" is valid as law, it could deny to third parties the normal consequences of non-accession to the treaty.
International custom
International custom is the biggest source of international law. A custom, in the intendment of law, is such a usage as hath obtained the force of the law. Until recent times, international law consisted for the most part of the customary rules. These rules had generally evolved after a long historical process culminating in their recognition by the international community.
The term custom and usage are often used interchangeably. There is a clear difference between custom and usage. Usage represents the dusk stage of custom. Custom begins where usage ends. When usage gets more acceptability then it becomes customs.
Conditions of international custom:
1: Long duration
2: Uniformity and consistency [Asylum case]
Customary rules are made by three sets of circumstances. They are:
1: Diplomatic relations between states:
Diplomatic relations between states and their bilateral relations and office statements by govt make customary rules.
2: Practice of international organs:
The practice of international organs may lead to the development of customary rules international law concerning their status or their power and responsibility.
3: state laws, decisions of state courts and state military or administrative practice may lead to the development of international customary rules.
General Principles:
Law is a product of addressing of the realities of a given situation. It may be argued that international law is determined to a considerable extent by social realities, social feasibility and practicality. There are certain principles of law which are not variable and are recognized by international community as a necessity to maintain economic and political relations with other states. There is another area which needs our attention in the development of international law is the decisions of national courts which also contribute to the growth of international law. It has been found that decisions of national courts which are positive and general application in nature are often regarded as evidence of a rule of law by foreign courts. It is interesting to observe that in the casa of Thirty Hogsheads of sugar vs. Boyly chief Justice Marshall of USA laid down the rule that the decisions of the courts of every country so far as they are founded upon a law common to every country will be received, not as authority but with respect.
It is thus seen that there are certain norms or principles which are recognized by the states as of imperative nature to conduct inter-state relations. These general principles are important source in the development of international law.
Judicial Decisions and Juristic Works:
The decisions of International courts and Tribunals are a subsidiary and indirect source of International Law. Though the decisions of such international courts have no binding force except between the parties, yet they offer, to a great extent, the trend and thinking of the jurists on a particular matter and these decisions are often applicable as a subsidiary means for the determination of the rules of law. The decisions of International Courts and Tribunals have contributed considerably to the development of International Law. Persons of eminence from juridical fields from various countries representing almost all the legal systems in the world adorn the International Courts and Tribunals. Their considered and valued decisions on a particular subject through a great light on the trend of International Law. The various legal texts and treaties written by distinguished authors are also a subsidiary source of International Law. The eminent writers record their views on the interpretatition and application of the rules of law.
Prof. L. Oppenheim has defined international law in 1905 in the following words “The 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.” International sources are the origins of international law,so international sources are related with the makings of international law. Sources of international law are mainly 1. Material sources
2. Formal sources
Article 38(1) of the statute of the International Court of Justice (ICJ) is widely recognized as a definitive statement of the sources of international law. It mentions that-
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply :
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. 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.
Treaties
Treaties represent an important source of international law. International treaties may be general or practical. According to the article 2 of Vienna treaty-1969
“A treaty is an agreement held by two or more states to make relations”
There are two types of treaty. They are:
1 Law making treaty
2 Treaty contracts
Some treaties are the result of codifying existing customary law, such as laws governing the global commons. While the purpose is to establish a code of general application, its effectiveness depends upon the number of states that ratify or accede to the particular convention. Relatively few such instruments have a sufficient number of parties to be regarded as international law in their own right. The most obvious examples are the 1949 Geneva Conventions for the Protection of War Victims. Most multi-lateral treaties fall short of achieving such a near universal degree of formal acceptance, and are dependent upon their provisions being regarded as representing customary international law and, by this indirect route, as binding upon non-parties. This outcome is possible in a number of ways: When the treaty rule reproduces an existing rule of customary law, the rule will be clarified in terms of the treaty provision. A notable example is the Vienna Convention on the Law of Treaties 1969, which was considered by the ICJ to be law even before it had been brought into force. When a customary rule is in the process of development, its incorporation in a multilateral treaty may have the effect of consolidating or crystallizing the law in the form of that rule. It is not always easy to identify when this occurs. Where the practice is less developed, the treaty provision may not be enough to crystallize the rule as part of customary international law. Even if the rule is new, the drafting of the treaty provision may be the impetus for its adoption in the practice of states, and it is the subsequent acceptance of the rule by states that renders it effective as part of customary law. If a broad definition is adopted of state practice, the making of a treaty would fall within the definition. Alternatively, it is possible to regard the treaty as the final act of state practice required to establish the rule in question, or as the necessary articulation of the rule to give it the customary international law. Convention-based "instant custom" has been identified by the ICJ on several occasions as representing customary law without explanation of whether the provision in question was supported by state practice. This has happened with respect to a number of provisions of the Vienna Convention on the Law of Treaties 1969. If "instant custom" is valid as law, it could deny to third parties the normal consequences of non-accession to the treaty.
International custom
International custom is the biggest source of international law. A custom, in the intendment of law, is such a usage as hath obtained the force of the law. Until recent times, international law consisted for the most part of the customary rules. These rules had generally evolved after a long historical process culminating in their recognition by the international community.
The term custom and usage are often used interchangeably. There is a clear difference between custom and usage. Usage represents the dusk stage of custom. Custom begins where usage ends. When usage gets more acceptability then it becomes customs.
Conditions of international custom:
1: Long duration
2: Uniformity and consistency [Asylum case]
Customary rules are made by three sets of circumstances. They are:
1: Diplomatic relations between states:
Diplomatic relations between states and their bilateral relations and office statements by govt make customary rules.
2: Practice of international organs:
The practice of international organs may lead to the development of customary rules international law concerning their status or their power and responsibility.
3: state laws, decisions of state courts and state military or administrative practice may lead to the development of international customary rules.
General Principles:
Law is a product of addressing of the realities of a given situation. It may be argued that international law is determined to a considerable extent by social realities, social feasibility and practicality. There are certain principles of law which are not variable and are recognized by international community as a necessity to maintain economic and political relations with other states. There is another area which needs our attention in the development of international law is the decisions of national courts which also contribute to the growth of international law. It has been found that decisions of national courts which are positive and general application in nature are often regarded as evidence of a rule of law by foreign courts. It is interesting to observe that in the casa of Thirty Hogsheads of sugar vs. Boyly chief Justice Marshall of USA laid down the rule that the decisions of the courts of every country so far as they are founded upon a law common to every country will be received, not as authority but with respect.
It is thus seen that there are certain norms or principles which are recognized by the states as of imperative nature to conduct inter-state relations. These general principles are important source in the development of international law.
Judicial Decisions and Juristic Works:
The decisions of International courts and Tribunals are a subsidiary and indirect source of International Law. Though the decisions of such international courts have no binding force except between the parties, yet they offer, to a great extent, the trend and thinking of the jurists on a particular matter and these decisions are often applicable as a subsidiary means for the determination of the rules of law. The decisions of International Courts and Tribunals have contributed considerably to the development of International Law. Persons of eminence from juridical fields from various countries representing almost all the legal systems in the world adorn the International Courts and Tribunals. Their considered and valued decisions on a particular subject through a great light on the trend of International Law. The various legal texts and treaties written by distinguished authors are also a subsidiary source of International Law. The eminent writers record their views on the interpretatition and application of the rules of law.
Book List
Book List on International Law found in central Library of Dhaka University:
1. Principles of Public International Law, Ian Brownlie, 6th edition, 2003, Oxford University Press, New York. Call: 341 BRP.
2. International Humanitarian Law: An Anthology, Louise Doswald-Beck, Azizur Rahman Chowdhury, Md. Jahid Hossain Bhuiyan, 1st edition, 2009, Lexis Nexis Gurgaon, Call: 341.67 INT
3. International Law: Bangladesh Perspective, Harun ur Rashid, 3rd edition, 2004, Anupam Gyan Bhandar, Dhaka. Call: 341 HAI.
4. International Law, S. K. Kapoor, Nagendra Singh, 8th edition, 1990, Central Law Agency, Allahabad. Call: 341 KAI.
5. Basic Documents in International Law, Ian Brownlie, 6th edition, 2009, Oxford University Press, Oxford. Call: 341 BRB.
6. An Approach to International Law, R. S. Chavan, 2nd edition, 1983, Sterling Publications, New Delhi. Call: 341 CHA.
7. International Law, D. P. O Connell, 2nd edition, 1982, Stevens, London. Call: 341 OCI.
8. An Introduction to International Law, J. G. Strake, 10th edition, 1994, Aditya, New Delhi. Call: 341 STI.
9. International Law, Malcom N. Shaw, 5th edition, 2004, Cambridge University, New York. Call: 341 SHI.
10. International Law, Hans W. Baade, 2nd edition, 1965, Oceana Publications, New York. Call: 341 BAS.
DOWNLOAD FULL
Book List on International Law found in central Library of Dhaka University:
1. Principles of Public International Law, Ian Brownlie, 6th edition, 2003, Oxford University Press, New York. Call: 341 BRP.
2. International Humanitarian Law: An Anthology, Louise Doswald-Beck, Azizur Rahman Chowdhury, Md. Jahid Hossain Bhuiyan, 1st edition, 2009, Lexis Nexis Gurgaon, Call: 341.67 INT
3. International Law: Bangladesh Perspective, Harun ur Rashid, 3rd edition, 2004, Anupam Gyan Bhandar, Dhaka. Call: 341 HAI.
4. International Law, S. K. Kapoor, Nagendra Singh, 8th edition, 1990, Central Law Agency, Allahabad. Call: 341 KAI.
5. Basic Documents in International Law, Ian Brownlie, 6th edition, 2009, Oxford University Press, Oxford. Call: 341 BRB.
6. An Approach to International Law, R. S. Chavan, 2nd edition, 1983, Sterling Publications, New Delhi. Call: 341 CHA.
7. International Law, D. P. O Connell, 2nd edition, 1982, Stevens, London. Call: 341 OCI.
8. An Introduction to International Law, J. G. Strake, 10th edition, 1994, Aditya, New Delhi. Call: 341 STI.
9. International Law, Malcom N. Shaw, 5th edition, 2004, Cambridge University, New York. Call: 341 SHI.
10. International Law, Hans W. Baade, 2nd edition, 1965, Oceana Publications, New York. Call: 341 BAS.
DOWNLOAD FULL
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