Public International law

Nature, Scope, Basis and Functions of Public International law

Definition

International law assumes a society of nations and it governs the relationship of the
members of this society. Traditionally, it was considered a system composed solely
of legal rules and principles binding upon civilized nations only in their mutual
relations.

Oppenheim defined international law in the following words:

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.
He improvised it as follows in the ninth edition of his book:
International law is the body of rules, which are legally binding on States in
their intercourse with each other. These rules are primarily those, which
govern the relation of Organisations, and, to some extent, individuals
may be subjects of rights conferred and duties imposed by International law.

Like all living laws, international law is also not static. It is constantly developing
and restructured in the very process of its application to the new situations.

In the words of Brierly:

The Law of Nations or International law may be defined as the body of rules
and principles of action, which are binding upon civilized States in their
relations with one another.
In the words of J G Starke:
International law may be defined as that body of law which composed for its
greater part of the principles and rules of conduct which states feel
themselves bound to observe, and therefore, do commonly observe in their
relations with each other, and which includes also :
(a) The rules of law relating to the functioning of international institutions or
organisations, their relations with each other, and their relations with states
and individuals; and
(b) certain rules of law relating to individuals and non-state entities so far as
the rights or duties of such individuals and non-state entities are the concern
of the international community.
This definition goes beyond the traditional definition of international law as
a system composed solely of rules governing the relations between states
only. In view of developments during the last four decades, it cannot stand
as a comprehensive description of all the rules now acknowledged to form
 part of the subject.
Scope
Developments expanding the scope of international law principally:
(i) the establishment of a large number of permanent international institutions or
organisations such as, for example the UN and the WHO, regarded as
possessing international legal personality, and entering into relations with
each other and with states; and
(ii) (ii) the present movement to protect human rights and fundamental freedoms
of individuals. Both categories of developments have given rise to new rules
of international law, and may be expected to influence the growth of the new
rules in the future.
Law is a process, and this is equally true for International law. It is now well established that the
principle components of International law is no more confined to binding customary and
conventional rules but also consists of “general principle of Law” which are constantly enriching
the International Jurisprudence.
The main object of international law has been to product an ordered rather than a just system of
international relations. Moreover, apart from seeing that states receive just treatment, the modern
law of nations aims at securing justice for human beings. Justice is a primary purpose of the law
of nations emphasises its kinship to state law.
Origin and Development
The concept of the 'law of nature' exercised a signal influence on international law. Several
theories of the character and binding force of international law were founded upon it. In the
beginning, Law of Nature was connected with religion. It was regarded as the divine law. Grotius
expounded the secularised concept of Law of Nature. According to him, natural law was the
'dictate of right reason'. His followers applied the law of nature as an ideal law which was
founded on the nature of man as a reasonable being.
Some writers adopting the view that international law derived its binding force from the fact that
it was a mere application to particular circumstances of the 'law of nature'. In other words, states
submitted to international law because their relations were regulated by the higher law- the 'law
of nature' of which international law was but a part. 'Natural Law' was invoked also in order to
justify the punishment of offenders, guilty of the grosser and more brutal kind of war crimes.
It contains those precepts which the natural law dictates to States, and it is no less binding upon
them than it is upon individuals. For States are composed of men, their policies are determined
by men, and these men are subject to the natural law under whatever capacity they act. This same
law is called by Grotius and his followers the internal Law of Nations, in as much as it is binding
upon the conscience of nations. Several writers call it the natural Law of Nations. Because of its
rational and idealistic character, the conception of the 'law of nature' has had a tremendous
influence – a beneficent influence- on the development of international law.
Dutch scholar, jurist, and diplomat has sometimes been described as the 'father of the law of
nations' on account of his treatise on the subject De Jure Beli ac Pacis (The Law of War and
Peace). It cannot, be maintained that Grotius dealt fully with the law and practice of his day as to
treatise, or that his coverage of the rules and usages of warfare was entirely comprehensive.
Groutius dealt repeatedly with actual customs followed by the states of his day. At the same time
Grotius was theorist who espoused certain doctrines. One central doctrine in his treatise was the
acceptance of the 'law of nature' as an independent source of rules of the law of nations, apart
from custom and treaties.
The modern system of international law grew to some extent out of the usages and practices of
modern European states in their intercourse and communications, while it still bears witness to
the influence of writers and jurists of the 16th, 17th, and 18th centuries, who first formulated
some of its most fundamental tenets. This made international law Eurocentric.
With the growth of a number of independent states there was initiated, the process of formation
of customary rules of international law from the usages and practices followed by such states in
their mutual relations. Jurists had begun to take into account the evolution of a community of
independent sovereign states and to think and write about different problems of the law of
nations, realising the necessity for some body of rules to regulate certain aspects of the relations
between such states. The writings of early jurists reveal significantly that one major
preoccupation of 16th century international law was the law of warfare between states.
In the 18th century, there was a growing tendency among jurists to seek the rules of international
law mainly in custom and treaties, and to relegate to a minor position the 'law of nature', or
reason, as a source of principles.
In the 19th century the works of jurists contributed significantly to the scientific treatment of the
subject.
In the 20th century the permanent Court of Arbitration was established. Then there has been the
creation of permanent international organisations in the interests of peace and human welfare,
such as the League of Nations, United Nations Organisation (UN), International Court of Justice
(ICJ), International Labour Organisation etc.
International law, as we know it today, is that indispensable body of rules regulating for the most
part the relations between states, without which it would be virtually impossible for them to have
steady and frequent intercourse. This was a natural result of the growing interdependence of
states, and of the vastly increased intercourse between them. Modern exigencies called for a
speedier method of law making. As a result, there came into being the great number of
multilateral treaties, 'law making treaties' or 'international legislation'. Apart from these 'law
making treaties' there was a remarkable development in the use of arbitration to settle
international disputes, and at the same time the Permanent Court of International Justice came by
its decisions to make an important contribution to the growth of international law. The work of
codifying and progressively developing international law at present is being sponsored by the
UN with the expert aid of a body known as the International law Commission.
Basis
One theory, which has enjoyed wide acceptance, is that international law is not true law, but a
code of rules of conduct of moral force only. John Austin, must be regarded as foremost among
the protagonists of this theory. Austin's attitude towards international law was coloured by his
theory of law in general. Applying his general theory to international law, as there was no visible
sovereign authority with legislative power or indeed with any determinate power over the society
of states, and as in his time the rules of international law were almost exclusively customary,
Austin concluded that international law was not true law but 'positive international morality'
only, analogous to the rules binding a club or society. He further described it as consisting of
'opinions or sentiments current among nations generally. Similar to him, Holland considered
international law ‘the vanishing point of Jurisprudence’.
In connection with the Austinian theory, it is useful to bear in mind the difference between rules
of international law proper, and the rules of 'international comity'. The former are legally
binding, while latter right of each state to receive courtesy from others. The essence of these
usages of 'comity' is thus precisely what Austin Attributed to international law proper, namely a
purely moral quality.
Positivism is based on law positivism i.e. Law which is in fact as contrasted with law which
ought to be. According to the positivists, law enacted by appropriate legislative authority is
binding. The positivists base their views on the actual practice of the States. In their view,
treaties and customs are the main sources of International law. The 'positivists' hold that the rules
of international law are in final analysis of the same character as 'positive' municipal law (i.e.,
State law) inasmuch as they also issue from the will of the state. They believe that international
law can in logic be reduced to a system of rules depending for their validity only on the fact that
states have consented to them.
Positivism begins from certain premises, that the state is metaphysical reality with a value and
significance of its own, and that endowed with such reality the state may also be regarded as
having a will. Pursuant to their initial assumptions, the positivists regard international law as
consisting of those rules which the various state-wills have accepted by a process of voluntary
self-restriction. International law as a branch of state law, as external public law and only for that
reason binding on the state.
The outstanding positivist has been the Italian jurist Anzilotti. In his view the binding force of
international law can be traced back to one supreme, fundamental principle or norm, the
principle that agreements between states are to be respected, or as the principle is better known,
Pacta sunt servanda. This norm pacta sunt servanda is an absolute postulate of the international
legal system, and manifests itself in one way or another in all the rules belonging to international
law. Consistently with this theory, Anzilotti holds that just as in the case of treaties, customary
rules are based on the consent of states, and there is here an implied agreement. The main defect
in this analysis is that the norm pacta sunt servanda is only partially an explanation of the
binding force of international law. Anzilotti's view that customary rules are binding on states by
virtue of an implied pactum is no more convincing than the 'tacit' consent arguments of other
positivists.
The principal objections to positivism as a whole may be formulated as follows :
1. The notion of the state-will is purely metaphorical, and is used to express the fact that
international law is binding on the state. It does not explain the fact.
2. It is difficult to reconcile the facts with a consensual theory of international law. In the
case of customary rules, there are many instances where it is quite impossible to find any
consent by states to the binding effect of these rules.
3. It is never necessary in practice when invoking a particular rule of international law
against a particular state to show that state has assented to it diplomatically. The test
applied is whether the rule is one generally recognised by the society of states.
4. There are concrete examples today of treaty rules, particularly those laid down by 'law
making' treaties, having an incidence upon states without any form of consent expressed
by or attributable to them.
These objections to positivism are by no means exhaustive, but they sufficiently illustrate the
main defect of the theory – the fallacy of the premise that some consensual manifestation is
necessary before international law can operate. In spite of its many weaknesses, positivist theory
has had one valuable influence on the science of international law. It has concentrated attention
on the actual practice of states. This has led to a more realistic outlook in works on international
law, and to the elimination of much that was academic, sterile, and doctrinal.
Cumulative evidence against the position taken by Austin and his followers should not blind us
to the fact that necessarily international law is weak law. Existing International legislative
machinery, operating mainly through law-making conventions, is not comparable in efficiency to
state legislative machinery.
Oppenheim regards international law as law because of the following two reasons:
1. In the first place, international law is constantly recognised as law in practice.
2. Secondly, while breaking international law, States never deny its legal existence. On the
contrary they recognise its existence and try to interpret international law as justifying
their conduct.
Starke, criticising the Austinian concept of law, subscribes to the view that International law is
really law. In this connection, he has put forward four main arguments:
1. In the First place, it has been established by modern historical jurisprudence that in many
communities, a system of law existed and was being observed though such communities
lacked a formal legislative authority.
2. Secondly Austin's views might have been correct for his time but in view of present day
international law, they are not true. Customary rules as a source of international law are
diminishing and law-making treaties and conventions are replacing them.
3. Thirdly “the authoritative agencies responsible for the maintenance of International
intercourse do not consider International law as merely a moral code.
4. Lastly, the United Nations is based on the true legality of international law.
Certain countries indeed in practice expressly treat international law as possessing the same force
as the ordinary law binding their citizens. The legally binding force of international law has been
asserted repeatedly by the nations of the world in international conference.
Sanctions of Observance
At one extreme there is the view that international law is a system without sanctions. However, it
is not quite true that there are no forcible means of compelling a state to comply with
international law. If any state, party to a case before the ICJ, fails to perform the obligations
incumbent upon it under judgment rendered by the Court, the Security Council may upon
application by the other state. Party to the same case, make recommendations or decide upon
measures to be taken to give effect to the judgment. These may include, not only the actual use
of force, but also sanctions.
If the word 'sanctions' be taken in the larger sense of measures, procedures, and expedients for
exerting pressure upon a state to comply with its international legal obligations, then the above-
mentioned provisions of the UN Charter are not exhaustive of the sanctions which may become
operative in different areas of international law.
Weaknesses
International law is said to be “a weak law.” The weaknesses of international law become
evident when we compare it with Municipal law. Following are some of the weaknesses of
International law.

(1) The greatest shortcoming of international law is that it lacks an effective executive
authority to enforce its rules.
(2) It lacks an effective legislative machinery.
(3) The International Court of Justice lacks compulsory jurisdiction in the true sense of
the term.
(4) Due to lack of effective sanctions, rules of international law are frequently violated.
(5) The enforcement machinery of international law is very weak.
(6) A great limitation of International law is that it cannot intervene in the matters which
are within the domestic jurisdiction of States.
(7) As compared to rules of State Law, the rules of International law suffer from greater
uncertainty.
(8) International law has, in many cases, failed to maintain order and peace in the world.
Despite the above mentioned weaknesses, it has to be noted, that International law is
constantly developing and its scope is expanding. It is a dynamic concept for it always
 endeavours to adopt itself to the needs of the day. Its survival and efficiency are due to its
changing and adaptable character.

International Legal Personality

International law is most visible in the international trade systems, although it is growing in
other regional organizations and in multilateral or plurilateral organizations with sectoral
responsibilities. The design and history have been marked by a functionalist approach. It is a
transformation of society that draws from and contributes to intensified relations among
states, which in turn draws from and contributes to increasing possibilities for
institutionalization of these relations (although the degree of institutionalization desirable
will vary). This process is driven by several facts. First, each state's domestic legal system
and regulatory structure has an intended or unintended effect on each other state, either in
terms of externalities or in terms of competition. Every international law of business
regulation is a trade issue, and trade is dependent on every other area of business regulation.
International law concerns itself to varying degrees with the relationships between the State
participants, between individual participants, between the State and the individual, between
the State and international organizations and as between international organizations.
The participants are those entities having rights and duties under the international system.
They have a recognized personality which entitles them to operate on the international plane.
The range of entitlements varies and depends on the kind of participant involved. Thus,
entitlements involve for example, being able to enter into agreements; being able to enforce
international agreements; being beneficiaries of international agreements; and being able to
participate in dispute settlement mechanisms involving rights.
There are mainly three participants, with varying degrees of personality. First, given the
perspective here, the primary subjects are states. It is state action or inaction that is the object
of international regulation. Equally, it is states which have been critically responsible for
the development of international law.
Some states have, of course made a great imprint than others. Thus, the role of ally powerful
States needs to be acknowledged. This is particularly so given that a significant body of
international norms are generated from international financial institutions, and
institutions whose modus operandi is characterized by reciprocity. In such
circumstances those states or Regional Organizations which command financial
organizations, and which have more to offer in terms of trade concessions, will almost
inevitably have a greater role in the shaping of the development of international law. The
second category of participants comprises the international organizations. These organizations
can be considered as actors in the system, although they are not in a strict sense the
beneficiaries of the international regulation as the other are. The third category of participants
comprises individuals. The role of the individual in international law is more pronounced
now, given its liberal trade focus, which emphasizes individual rights; the power of
multinational companies and their accompanying responsibilities; and the increasing
entrenchment of domestic remedies for individuals in relation to international standards,
as well as the availability of international dispute settlement mechanisms. Individuals here
include corporate entities.
States, multilateral organizations, nongovernmental organizations (NGOs), and
multinational corporations (MNCs), are all concerned about the impact of sovereignty on their
liberty of action, and often behave as if they seek to reinterpret sovereignty to fit their specific
goals. These international actors do not always deliberately set out to modify the meanings of
sovereignty, but they frequently design their agenda, programs, and policy actions to suit their
unique understanding of this phenomenon.
While states often pursue policies that are calculated to enhance their sovereignty, NGOs,
multilateral organizations, and MNCs prefer to operate in environments in which state
sovereignty is too weak to constrain their legitimate activities. This struggle over sovereignty
often results in each of these actors not getting everything that they want. However, once
created, these organizations acquire their own interests and identities, which go beyond the
interests of any particular state that participated in creating them. Through the pursuit of their
own interests, multilateral organizations constrain the behaviour of states and thereby modify
the meaning of sovereignty.
Sources
There are essentially two dimensions to a consideration of the sources of international law.
International law, considered merely as a body of rules, comprises those sources of law as
enumerated in Article 38(1) of the Statute of International Court of Justice. These are stated as
follows:
(a) international conventions, whether general or particular, establishing rules 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.

However, it needs to be noted that International law is not defined universally merely as a body
of rules alone. A broader conception of International law is entertained by some. Whilst it
includes the sources mentioned in Article 38, this broader perspective of law comprehended it
as a process of decision making.
International law derives mainly from agreements arrived at between States either on a
bilateral, regional or multilateral level. This is because treaties suit exigencies of international
economics, being efficient in norm creation, adaptable and capable of generating detailed rules.
International treaty practice has often progressed from bilateral to multilateral arrangements.
The sources of international law therefore, as of international law generally, are international
agreements and international legal customs.
Treaty sources include international economic treaties and the numerous political treaties
that contain decisions relating to economic matters. In addition, treaty sources include
charters and other founding acts of economic and other international organizations operating
in the sphere of international economic relations. These acts frequently establish
principles and other norms governing the mutual relations of member-states and also their
relation with third states. Examples include: the preamble to the United Nations Charter, and
also Arts 1, 55 and 56. International organizations must bear in mind these principles and norms
when they draw up their resolutions and decisions, and when they formulate draft international
treaties and so also must the signatory-states when they conclude such treaties.
The customary norms of International law play a quite significant role in the legal regulation of
international economic relations. In the creation of international law as a branch of General
International law, an important part is played by the resolutions adopted by universal
international organizations and conferences. Thus these resolutions constitute soft law.
In the forming of international law a particularly large role is played by the following acts:
principles adopted at the first session on UCTAD in 1964, the Declaration and Programme of
Action on the establishment of a New International Economic Order adopted by the 6th Special
Session of the UN General Assembly in 1974; the Charter of Economic Rights and Duties of
States adopted at the 29th session of UN General Assembly in 1974; the Lima
Declaration and Plan of Action on Industrial Development and Cooperation adopted at
the conference of UNIDO in 1975; the Final Act of the Conference on Security and
Cooperation in Europe in 1975.
There are a number of problems that characterize this source of international law. Some of the
main problems may be described as follows: First, given the abundance of international
agreements, there are serious questions as to the coordination of such obligations. A state
may have entered into multilateral, regional and bilateral agreements involving the same
subject matter. There is need to ensure the avoidance of conflicting obligations undertaken in
different treaty arrangements. Thus, questions of conflict have been raised in relation to the
WTO code and the IMF; the WTO code and environmental treaties; the WTO code and
double taxation agreements; and the IMF and the European Monetary Union. Further, the
particular feature of the most favoured nation standard in international economic relations calls
for an added vigilance by states when negotiating new commitments.
Secondly, the process of interpreting international agreements can involve particular difficulties.
These can stem from the language of the agreement itself; from the institutional processes
involved in interpreting an agreement in international institutions; from the differences in
interpretations of international agreements by national courts; from the lack of agreement as to
the particular national law to be applied which is conclusive of the meaning of a term in an
international agreement; in the determination of the status of an international interpretation in
national law. In particular, the mechanisms for the interpretation and implementation of
international agreements often involve internalized mechanisms of interpretation and dispute
resolution. These procedures can have a tendency to ensure a pragmatic rather than a strict rule
oriented solution. Further, given the multitude of international agreements and the various
principles enunciated under General International law, the interpretation process of a particular
international agreement has to take into account of the corpus of international law as it governs
the relations between the parties. Finally, there are questions relating to the reception of
international agreements into domestic law. State practice differs as to the status of international
agreements in domestic law and the manner of their reception in domestic law.
Conventional international law is to be found in bilateral, regional and multilateral
agreements. Examples of bilateral agreements are Friendly-Commerce-Navigation treaties;
double taxation agreements; trade agreements and bilateral investment treaties. Examples of
regional agreements are mostly those which facilitate regional economic integration – trade
agreements and agreements for the establishment of customs unions. Chief examples of
multilateral agreements comprise those establishing the international organizations and
those arrived at under their framework.
At one level, customary international law provides the foundations and the background for the
institutions of international relations. Examples of such norms are those that pertain to freedom
of communication, for instance freedom of the high seas; diplomatic protection and
international claims; the principle of pacta sunt servanda and the standards in relation to the
treatment of aliens. In addition to state practice generally, State treaty practice in the
international law and the practice of international economic organizations can give rise to the
formation of customary international law.
Custom is a habitual course of conduct. Until recent time, international law consisted for the
most part of customary rules. It is the oldest and the original source, of International as well as
of law in general. These rules had generally evolved after a long historical process culminating
in their recognition by the international community. The preponderance of traditional customary
rules was diminished as a result of the large number of 'law-making' treaties concluded since the
middle of the last century, and must progressively decline in measure as the work of the
International
Law Commission in codifying and restarting customary rules produces results in treaties. Yet
according to views recently expressed by some writers, international custom may still have a
significant role to play as a dynamic source of fresh rules of international law where the
international community undergoes change in new areas untouched by treaties, judicial
decisions or the writings of jurists. Article 38 (b) of the Statute of International Court of Justice
recognises 'International Custom, as evidence of general practice accepted as law', as one of the
sources of International law.
The terms 'custom' and 'usage' are often used interchangeably but they are distinguished. A
Custom, in the intendment of law, is such usage as that obtained the force of law. Usage
represents the twilight stage of custom. Custom begins where usage ends. Usage is an
international habit of action that has not yet received full legal attestation. It is not necessary
that the usage should always precede a custom. It is also not necessary that a usage must always
become a custom. The following are the certain conclusions -
a. In certain cases usage gives rise to international customary law, in other cases it
does not. But there is no rule of international law, or indeed any
(ii) rule at all, which determines when usage shall give rise to custom.
(iii) Together with usage there are a number of other purely factual phenomenon
which in various combinations contribute to the creation of international custom, and
custom can arise even without any usage.
(iv)When a usage is combined with opinio juris sine necessitatis, 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 opinio juris.

Following are the main ingredients of an international custom :-

1. Long Duration.-- Article 38 of the Statute of the International Court of Justice directs the
World Court to apply 'international custom, as evidence of a general pracatice accepted as law'.
Emphasis is not given on a practice being repeated for a long duration. In the international law,
customs have emerged in a short duration.
2. Uniformity and consistency.-- In the Asylum case, the International Court of Justice observed
that the rule invoked should be 'in accordance with a constant and uniform usage practised by
the States in question, and that this usage is the expression of a right appertaining to the Sate
granting asylum and duty incumbent on the territorial State.' This follows from Article 38 of the
Statute of the Court which refers to international custom 'as evidence of a general practice
accepted as law'.
3. Generality of Practice.-- Although universality of practice is not necessary, the practice
should have been generally observed or repeated by numerous State.
4. Opinio juris et necessitatis.-- According to Article 38 of the Statute of the International Court
of Justice, international custom should be the evidence of general practice “accepted as law”.
There has been a marked decline in the importance of custom in present times. It is because of
certain drawbacks in the evolution of the rules of customary International law.
1. The growth of a new custom is always a slow process and the character of International
society presently makes it particularly slow, where states from different political, al and legal
system participate in law creating process. It is unable to keep pace with the changes in
international relations.
2. The question of whether usage has or has not crystallized into a custom and has become
obligatiory has many difficulties, particularly when there is no agreement about its existence. It
is for the court to ex tract the rule
from the mass of documents, State practices and judicial decisions etc. and accord it legal
authenticity.
3. It is an unsuitable vehicle for international ‘welfare’ or ‘cooperative’ law as also to meet the
new scientific challenges.
A customary element has been a feature of the rules of international law from antiquity to
modern times. In ancient Greece, the rules of war and peace sprang from the common usages
observed by the Greek City States. These customary rules crystallised by a process of
generalisation and unification of the various usages separately observed by each city republic.
Customary rules crystallised from usages or practices which have evolved in approximately
three sets of circumstances:
(a) Diplomatic relations between states. :- Thus acts or declarations by statesmen, opinions of
legal advisers to state governments, bilateral treaties, and now press releases or official
statements by government spokesmen may all constitute evidence of usages followed by states.
(b) Practice of International organs. :- The practice of international organs, again whether by
conduct or declarations, may lead to the status, or their powers and responsibilities.
(c) State laws, decisions of state courts, and state miltary or administrative practices. :- A
concurrence of state laws or of judicial decisions of state courts or of state practices may
indicate so wide an a adoption of similar rules as to suggest the general recognition of a broad
principle of law.
A general, although not inflexible, working guide is that before a usage may be considered as
amounting to a customary rule of international law, two tests must be satisfied. These tests
relate to:
(i) the material, i.e. in a similar circumstances States acts similarly, in other words, usage has
been constantly and uniformally practiced by States, and
(ii) the psychological aspects involved in the formation of the customary rule.
As regards the material aspect, there must be general be a recurrence or repetition of the acts
which give birth to the customary rule. A state practice can be categorized into three groups as-
1. Mutual relations Among States: Practice of states with other nations in the form of diplomatic
correspondence, press releases, bilateral treaties, memorandum of understanding, acts and
declarations by statesman etc. constitute evidence of practices of States followed in the sphere
of international relations.
In the Asylum case, a person who had been declared a fugitive after an unsuccessful rebellion
led by him in Peru, was granted asylum by the Columbian Embassy in Peru. Columbia sought
from Peru a safe custody to allow him to leave the country, but Peru refused to grant this. Under
the
1928 Havana Convention on Political Asylum, to which both the countries were parties, a
political fugitive if granted diplomatic asylum, was entitled to safe custody. However, Peru
refused to accept the Columbian contention that it is for the State granting the asylum to
determine the nature of the crime, which would be binding on the territorial state, and this rule
is accepted as a customary rule among the Latin American countries. Peru considered him
merely a common criminal under its laws. The ICJ to whom the dispute was referred for
adjudication, refused to accept the Columbina contention that such a custom exists among the
Latin American States, since it failed to establish any clear evidence in support of its contention.
The International Court of Justice has held, however, in the Right of Passage over Indian
Territory Case (Portugal-India), that a particular practice between two states only, which is
accepted by them as law, may give rise to a binding customary rule inter parties. The facts of
this case are as follows:--
This case deals with the question relating to the right of Protugal to send its national and
military through the Indian territory. Until 1954 Portugal possessed the right of passage through
Indian territory which was in between Dadra and Nagar Haveli and Daman. The right was
however subject to control and regulation by India. The relation between India and Portugal
worsened, the people of Dadra revolted against the Portuguese Government. Consequently the
Government of India suspended the right of passage of Protugal over this area. India contended
that it had become necessary due to the special circumstances that had arisen. Portugal took this
matter to the ICJ. The It may be noted that the claim of Portugal was based on the treaty of
1779. The ICJ decided that Portugal was not entitled to send its armed forces through the way
which fell within the Indian territory. The Court ruled that India did not act contrary to its
obligations. The Court, however, ruled that the Treaty of 1779 was a valid treaty and Portugal
was entitled to get passage through Indian territory in consequence of the provisions of the said
treaty. The decision is important in so far as that the ICJ ruled that if under a treaty a Sate gets
right of passage through the territory of another State and if it continues for a long time, then it
gains the force of law and thereby imposes the obligation upon the State affected to continue to
give right to such passage.
A single act of a state agency or authority could not create any rights of custom in favour of
another state which had benefited by the act; conduct to be creative of customary law must be
regular and reputed. Material departures from a practice may negative the existence of a
customary rule, but minor deviations may not necessarily have this negative consequence. Apart
from recurrence, the antiquity of the acts may be also a pertinent consideration. Yet even a short
time may be enough where the state practice has been extensive and for all practical purposes
uniform.
2. Practice of International Organisations: International organizations also contribute to the
development of customary International law by
providing a clear and concentrated form of state practice. The statements made and the votes
cast at these forums by state representatives on legal matters provide strong evidence of existing
or emerging rules of customary International law. The proceedings of the International
Organisations
have their solitary effect in the creation of the new rules of customary
International law.
3. Unilateral acts of States: The legislative acts, decisions of states courts, opinion of law
officers, military and administrative practices of various states are of great evidentory value in
the development of International Custom. A comparison of these indicates the existence of a
practice uniformally followed by all states, which may be some evidence that a custom does or
does not exist.
Opinio juris sive necessitates:- The psychological aspect is better known as the opinio juris sive
necessitatis, i.e., the practice is recognized as obligatory and there is the conviction that its
repetition is the result of a compulsory rule. Recurrence of the usage or practice tends to
develop an expectation that, in similar future situations, the same conduct or the abstention
therefrom will be repeated. This opinio juris, is a convenient test that a usage or practice has
crystallised into custom; the opinio juris is not an essential element of custom, but if it is
present, it is helpful as distinguishing custom from a course of action followed as a matter of
arbitrary choice or for other reasons.
In the S S Lotus case, a stricter requirement was laid down by the court for a customary rule to
evolve. IN that case, the French Ship S S Lotus had collided on the high sea with Turkish
Vessel, killing thereby eight Turkish nationals. When the Lotus arrived in Turkish waters,
criminal proceedings were initiated in Turkish Court against the captain of Lotus alongwith the
captain of Turkish Vessel for manslaughter, and sentenced. The French Government protested
against Turkish action, and by an agreement between the parties the dispute was submitted to
Permanent Court of International Justice. The French Government argued that under the
Customary International law, criminal jurisdiction pertains to the flag state of the vessel in
which the crime is committed. Evidence for this alleged rule existed in the state practice where
the court had generally abstained from exercising criminal jurisdiction in deference to the flag
state, thereby giving rise to the assumption that there had been a tacit acceptance by States of
the rule that in criminal matters, the flag state was entitled to exclusive jurisdiction. The court
rejected the French contention and observed that the circumstances alleged by the French
Government merely show that States had often, in practice, abstained from instituting criminal
proceedings, and not that they recognized themselves as being alleged to do so. The alleged fact
does not allow one to infer that states have conscious of having such a duty.
This line of reasoning of the Lotus case was adopted by the ICJ in North Sea Continental Shelf
case, where Denmark and the Netherlands in their case against the Germany for delimitation of
continental shelf between them, attempted to show that the 1958 Geneva Convention on
continental shelf in general, and Article 6 of the convention, dealing with the “equi- distance-
special-circumstances” rule of delimitation of continental shelf among the adjoining states, in
particular, had become a part of customary International law. The court found the absence of the
psychological element required for creation of such a new rule, and observed that in certain
cases where 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.
Generation by Treaty of Customary Rules of International law.-- A provision of a treaty may
also generate a rule of customary International law. In North Sea Continental Self case the
International Court of Justice observed that provisions in treaties can generate customary law
and may be in the words of the Court; of a “norm-creating character”. But a treaty provision can
generate customary international law only when the provision concerned is “of a fundamentally
norm-creating character such as could be regarded as forming the basis of a general rule of
law.”
In West Rand Central Gold Mining Co. v. R. There the Court laid down that it must be proved
by satisfactory evidence that the alleged rule 'is of such a nature, and has been so widely and
generally accepted, that it can hardly be supposed that any civilised State would repudiate it'.
This amounts to a test of 'general recognition' by the international society of states.
Test of 'general recognition' underlies the provision in the Statute of the International Court of
Justice, under which the Court is directed to apply international custom 'as evidence of a general
practice accepted as law', and is to be found also in Art. 53 of the Vienna Convention.
Apart from treaties and customs, the general principles of law also serve as a source of
international law. The sources of international law may be determined by judicial decisions and
the teachings of the most highly qualified publicists of various nations. Judicial decisions
include those of national and international courts. In International law, there is no binding
precedent system.