International Law and its source

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International law or law of nations deals with rules for the governance of Sovereign States in their relations and Conduct towards one another.  The word "international law" is synonyms and equivalent to the words "law of nations". It was first used by Jeremy Bentham in 1989. Prior it, International law was known as the law of Nations. Most of jurists are of the opinion that International law regulates a relation of states with one another and they therefore define the term of International law as a law of nations. Traditionally International Law has been defined as," a system of rules governing the relation between the states only. Thus, it exists for governing the relationship between different states." According to Gray," International law or Law of nations is the body of rules which regulates the conduct of the states in their intercourse with one another."

It comprises of two parts namely 1) Public International Law 2) Private International Law or Law of Conflict. Public international law is the body of legal rules, which applied between sovereign states and other international personalities. Private International law or Law of Conflict deals with cases involving foreign element. In case of Dispute between an individual citizen or state and Foreign Element, where there is need to contact with foreign system of law, the private international law will apply.

Difference Between Public International Law and Private International Law


No.

 

Public International Law


Private International Law / Law of Conflicts

 

1)

 

Public International law is the body of legal rules, which applied between Sovereign States and other International Personalities.

 

Conflict of laws, often called Private International Law. Private International Law regulating relationship between Private persons (Natural or Legal) of two different States.

 

2)

 

Public International law rules are outcome of International custom and treaties.

 

Private International law rules are framed by the State legislature.

 

 

3)

 

Public International law is enforced by international pressure and fear for example – breakage of diplomatic relations, sanctions etc.

 

Private International Law is enforced by the concerned State executive.   

 

4)

 

In public International Law there is no Predetermined Court.

 

In private International Law courts are predetermined.

 

5)

 

Public International Law is same for all the States.

 

Private International Law differs from state to state.

 

Source of International Law

Statute of the International Court of Justice Article 38(1) 
Sources of International Law are Identified in Article 38 (1) of the 1945 Statute of the International Court of Justice (established by the Charter of the United Nations) defines the Sources of International law as under:

 (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.
Article 38 (2) Provides that the Article 38 (1) shall not prejudice the power of the Court to decide a case ex aequo et bono (means in justice and good faith) if the parties agree thereto.


2) Sources of International Law :              
       A) International Conventions or Treaties: 
                             It is the first and Important Source of International law.  There is no Legislative organ in the field of International Law, comparable to legislatures within the State, the enactments of which could bind all the States. The Contracting Parties may, however, establish an international organization by means of the treaty with authority to bind them by its resolutions or may even lay down rules for their mutual conduct. In this sense, Multilateral treaties are a feeble approach to International Character.

B) Customs :
            Custom is the older and original Source of International Law. It is as such Second Important source of International Law. International Law Custom may mean a kind of qualified practice, by the existence of a corresponding legal obligation to act according to this practice, hence by the existence of the corresponding rule of International law.  The customs are evolved through the practices of and usages of the nation and their recognition by the community of nations. Customary rules are those rules which are practiced by most of the States by way of habit for a pretty long time.
      International custom has developed by spontaneous practice and reflects a deeply felt community of law. Its rules are regarded as possessing density and stability and it is the repository of the general or common law of the nations.

C) The general Principles of Law:
                   There is another Source of International Law that is General Principles of Law. General Principles are based on moral Principles and law of nature, it has relation with the State Practice.  The statute of the International  Court of Justice (ICJ) Authorities the Court to apply the general principles of law recognized by civilized nations in addition to international conventions and custom, which are the two main sources of International law.  It makes national legal systems as a source of law for the creation of International Law.
              The special arbitral tribunal  between Germany and Portugal also applied the general principles of law in the Maziua and Naulilaa case where the arbitrators observed that in the absence of rules of International law applicable to the Facts in dispute, they were of opinion that it was their duty to fill the gap by principles of equity fully taking into account the spirit of International Law, which is applied by way of analogy and its evolution.
D) Judicial Decision: 
                      According to Article 38 of the Statute of the International Court of Justice, Judicial Decisions are subsidiary sources of International Law. They are not the automatic sources of law. Judicial Decisions by International Court of Justice, Permanent Court of Justice, International Arbitral Tribunal and Municipal Courts.
                     Article 59 of the Statute of the International Court of Justice expressly provides that the decisions of the court have no binding force except between the parties and in respect of that particular case. That means judicial decisions are binding only on the disputed States. Under the provisions of this Article, the Court is specifically required not to apply precedent or doctrine of stare decisis in its decisions. ICJ became a persuasive value in the limited action.  The content of earlier decisions has some element of law and it is clarified, impartially, ascertainly carried by International Court of Justice. How it contributes in the development of International Law. It is repeated application is relied upon. Later on, it does not remain only persuasive and it does convert into rules of International Law.

E) Text writers, Juristic Works and Commentators - 
                   It is referred and relied on by International Court of Justice which author is quoted in which decision. The opinion of jurist are also regarded as sources of international law but they are subsidiary means for the determination of 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 jurist as subsidiary means for the determination of rules of International law. Although juristic works are not an independent source of law, sometimes juristic opinion lead to the formation of International law. It throws light on the rules of International law and their writing makes it easier to frame a particular rule. The value of juristic writings carries more weight particularly in those fields of international law where treaty or customary rules do not exist.
                  The Writings of Ayala,  Gentilis Grotius, Vattel, Kent  Zouche, etc have tended to transform the transitory state of usages into custom and represented a strong element to consolidate the customary law. 

F) Equity
             Equity is used in the sense of consideration of fairness, reasonableness and policy often necessary of the sensible application of the more settled rule of law. Though equity cannot be the direct source of International Law, It is of great importance in those fields where rules are not readily available.
                    Some jurist says that it is not the formal source of law but it is a source of law. Equity principles originate from culture and interest of State concerned, equity principles varies from State to State. Equity in international law is uncertain. It is subjective, and to bring objectively to the principles of equity as a principle of natural law are considered. The Concept of Equity has been referred to in several cases.

G) Decision or determinations of the organs of International Institutions - 
             In the modern age the decisions or determination of the organs of international Institutions are also treated as sources of International Law. In the view of constant change in the forms and content of the International Law, International organisations have also became a subject of International law. The decisions and determination of the organs of such institution are also, therefore, regarded as the sources of International Law because they help in the development of customary rules of International Law.

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