1.

11 OTHER SOURCES AND SUBJECT TO INTERNATIONAL LAW

SOURCES:

At its most abstract level, international law concerns norms that govern the conduct of States and
the relations between them. That isn't to say that international law's reach does not go beyond the
rights and obligations of States. It is recognised that individuals may incur responsibility under
international law, while corporations have not been left untouched either.

Additionally, over the last century, international organisations have played an increasingly important
role in the development of international law. Nevertheless, States continue to be the main subjects
of international law. Any system of law must have sources. For instance, in Israeli law, Knesset
legislation, government regulations and judicial precedents, among others, serve as binding sources
of law.

As for international law, while its main sources are clear, as shall be demonstrated below, the
process of identifying them is sometimes more complex. The most accepted statement of the
sources of international law may be found in Article 38(1) to the Statute of the International Court of
Justice (ICJ). The ICJ Statute is to a large degree reproduction of the Statute of the Permanent Court
of International Justice, the ICJ's predecessor. Article 38(1) to the ICJ Statute states:

A source Decisions or determinations of the organs of International Institution does not find mention
in Art. 38 but it has now become a well-recognized source. Some writers have mentioned additional
sources of international law viz. International comity, State papers, State guidance for their officers,
Reason equity and justice, Resolutions of international conferences, Decisions of municipal courts on
matters touching foreign nationals or other States, etc.

Thus Article 38 is not exhaustive. If Art. 38 be simply declaratory, it clearly cannot inhibit the
emergence of new source of law, brought into being by the development of the international
community and its progressive organization. Sources enumerated in Art. 38 are hardly adequate to
meet new challenges posed by today's world order. An authoritative order of the use of sources of
international law is given in Art. 38. Thus, the Court is expected to apply the above sources in order
in which they appear.

1. International Customs

It is the oldest and most original source of international law. Customary rules of international law are
the rules, which have been developed, in a long process of historical development. Development or
Formation of a Custom
(a) Custom and Usage: Custom is such a usage as has the force of law. Usage is an international
habit, which has yet not received the force of law. Usage represents the twilight zone of custom,
custom begins where usage ends.

When States in their international relations start behaving in a particular way in certain
circumstances, it is expected that in the similar circumstances they will behave in the same way
(usage). But when this usage receives the general acceptance of recognition by the States in their
relations with each other, there develops a conception that such a habit or behaviour has become
right as well as obligation of the State and in this way usage becomes the custom.
2. International Treaties In the modem period

International treaties are the most important source of international law. Article 38 of the Statute of
ICJ lists international conventions whether general or particular, establishing rules expressly
recognized by the contesting States as the first source of international law. The
term convention implies any treaty, convention, protocol or agreement, etc. Treaties may be
classified into following two categories:

Law-making treaties: These treaties have a large number of parties and create general or universal
norms. These may be of two kinds: those enunciating universal rules e.g. United Nations Charter,
and those laying down general rules e.g. 1958 Geneva Convention on the Law of the Sea, Vienna
Convention on the Law of Treaties, 1969, etc.

Treaty-contracts: It is a treaty between two or only a few States dealing with a special matter
concerning these States exclusively.

A series or a recurrence of treaties laying down a similar rule may produce a principle of customary
international law. Further, subsequent independent acceptance may generalize a treaty originally
concluded between a limited numbers of States. A treaty is therefore, of considerable evidentiary
value as to the existence of a rule, which has crystallized into law by an independent process of
development. International treaties are agreements of a contractual character between States or
Organizations of States creating legal rights and duties (Oppenheim). According to Art. 2 of the
Vienna Convention, 1969, A treaty is an agreement whereby two or more States establish or seek to
establish relationship between them governed by international law. This does not mean that other
subjects of international law such as international organizations cannot conclude treaties (Art. 3).

3. General Principles of Law

Article 38 (1) (c) of the Statute of ICJ lists General principles of law recognized by civilized States' as
the third source of international law independent of custom or treaty. The phrase means principles
as general as to apply within all systems of law that have achieved a comparable state of
development. The rationality for the inclusion of general principles of law as one of the sources of
international law lies in the fact that a principle, which has been found to be generally accepted by
certain civilized legal systems, may fairly presumed to be so reasonable as to be necessary to the
maintenance of justice under any system.

Examples are:
the rule of pactasuntservanda, that contracts must be kept, the principle that no man may be a
judge in his own cause, the right of self defence, etc. The principles of law recognized by many States
do not become principles of international law automatically. They are required to be recognized by
the World Court.

4. Judicial Decisions and Juristic Works

Art. 38 (1) (d) of the Statute of ICJ states that the Court shall apply subject to the provisions of Art.
59, judicial decisions and teachings of the most highly qualified publicists of various nations, as
subsidiary means for the determination of rules of law.

Thus, judicial decisions and juristic works are subsidiary and indirect sources of international law.
The decisions of International Court of Justice do not create a binding general rule of international
law, as Art. 59 of the Statute of ICJ make it clear that the decisions of the court will have no binding
force except between the parties and in respect of the particular case. Although ICJ has not adopted
the common law doctrine of precedent (i.e. stare decisis), it has largely adopted its substance.

5. Resolutions of the General Assembly (Modern Sources of International Law)

After the establishment of U.N., most of the development of international law and its codification
has taken place through the instrumentality of international organizations. General Assembly, one of
the principal organs of U.N., has established International Law Commission. The decisions and
determinations of organs are now recognized as an important source of international law (although
they do not find mention in Art. 38 of the Statute of ICJ).

Resolutions of the General Assembly of the United Nations do not possess legal character, and as
such are not binding on the States. They do not create any legal obligations on its members
irrespective of the fact that they have been adopted unanimously or by overwhelming votes or even
if the contents of it is a matter of common interest for all the States. A perusal of the cases like South
West Africa Voting Procedure Case (ICJ, Rep. 1955), Anglo-Norwegian Fisheries Case (ICJ, Rep. 1951),
ICJ's Advisory opinion on Namibia and the Western Sahara Case indicates that legal effect may be
given to collective pronouncements of the General Assembly despite their non-binding character.

1.11b SUBJECTS TO INTERNATIONAL LAW:

The term subjects of international law refer to entities endowed with legal personality, capable of
exercising certain rights and duties on their account under the international legal system. Personality
in international law necessitates the consideration of the international system and the capacity to
enforce claims.

According to Starke, the team “subject of international law” means:

An incumbent of rights and duties under international law

The holder of procedural privileges of prosecuting a claim before an international tribunal.

The possessor of interests for which provision is made by international law.

Oppenheim says that an international person is one who possesses legal personality in international
law meaning one who is subject of international law to enjoy rights, duties or powers established in
international law to enjoy rights, duties or powers established in international law and generally, the
capacity to act on the international plane either directly or indirectly through another state.

1.12 Difference Between Municipal Law and International Law

However international law and municipal law relates to each other and some justice considers that
both from a unity being manifestation of single conception of law while others say that international
law constitutes an independent system of law essentially different from the municipal Law. Thus
there are two theories knows as monastic and dualistic. According to monastic and the same thing.
The origin and sources of these two laws are the same, both spheres of law simultaneously regulate
the conduct of individuals and the two systems are in their essence groups of commands which bind
the subjects of the law independently of their will.
According to dualistic theory international law and municipal law are separate and self contained to
the extent to which rules of one are not expressly tacitly received into the other system. The two are
separate bodies of legal norms emerging in part from different sources comprising different
difference subjects and having application to different objects.

Take note of the basic difference between the two types of law:
• Municipal law regulates relations within a country (intra-state).
• International law regulates relations between countries (inter-state).

Understand that there are key substantive differences between international law and municipal law
in the following areas:
• the processes used to make law
• the basis of obligation on parties
• the way in which obligations are enforced
• the way in which law interplays with politics

Recognise that the principal feature of municipal law is the existence of a legislature and a court
system that can settle legal disputes and enforce the law. At the international level, however, there
is no legislature in existence and it is by way of agreements between countries (treaties) that
international law is made. This can also be described in the following way:

• Municipal law is hierarchical or vertical - the legislature is in a position of supremacy and enacts
binding legislation
• International law is horizontal - all states are sovereign and equal

Understand that the lack of an enforcement mechanism akin to a police force at the international
level impedes coercive enforcement. The court system at the international level is one that relies on
the acquiescence of the countries to both its jurisdiction and to carrying out the decisions of the
court. The court system is well-established at the international level and respected but it lacks the
ability to compel a country to come before it, unlike courts in a municipal system which can require a
government, company or individual to appear before it.

Notice that the role of politics in international law influences the character of international law
profoundly and is more likely to reflect the political interests of the countries than might be the case
at the municipal level. International law is made by way of political agreements (treaties) and will be
supported or ignored according to the political interests of a country.

International Law is largely but not altogether concerned with relation among states.

Whereas Municipal Law controls relations between individuals within a state and between
individuals and the state.

Law of Nations is a Law not above, but between Sovereign States.

International Law, on the other hand, regulates relations between the member States of the Family
of Nations.

Municipal Law regulates relations between the individuals under the sway of the respective State
and the relations between this State and the respective individuals.