Understanding International Law: Definitions, Criticisms, and Perspectives

PUBLIC INTERNATIONAL LAW NAWADA VIDHI MAHAVIDYALAYA

DEFINITIONS According to Prof. L. Oppenheim, Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by the civilized states in their intercourse with each other. Criticisms: With regards to the subjects, only states have been regarded as subjects of international law. But as we know that today, States are not the only subjects of international law. International Organisations, MNCs and to a limited extent, individuals are also subjects of international law today. As regards to sources, the definition says that only customs and treaties are considered to be sources of international law. But if we refer to Article 38 of the Statute of ICJ, we will find general principles recognised by civilised nations is also an important source. Besides there are subsidiary sources, which have been ignored in this definition. The expression body of rules denotes that international law is static. However, it is extremely dynamic in nature.

OPPENHEIMS REVISED DEFINITION, 1992 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 relations of States, but States are not the only subjects of International Law. International Organisations and to so some extent, individuals maybe the subjects of rights conferred and duties imposed upon International Law.

THROUGH LENS OF PROMINENENT FIGURES As per Torsten Gihl, The term International Law means the body of rules of law, which apply within the International Community or society of States. As per J.L. 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. Gray said, International law or the Law of Nations is the name of a body of rules which according to their usual definitions regulate the conduct of states in their intercourse with each other. In Queen v. Keyn (1876), Lord Coleridge, C.J., defined International law as The law of nations is that collection of usages which civilized States have agreed to observe in their dealings with one another. Schwarzenberger: International law is the body of legal rules which apply between sovereign States and such other entities as have been granted international personality.

Nature of international law Is International Law true Law? One of the most controversial issues that has long been debated and on which the opinions of the jurists are sharply divided concerns the status of international law. The debatable question is: Is international law really law? One view is that international law is not a true law. It is a code of rules of conduct of moral force only. Another view is that international law is a true law, and it is to be regarded as law in the same way as that of ordinary laws of a State which are binding upon the individuals. The controversy whether international law is a law or not revolves on the divergent definitions of the word law' given by the jurists. Hobbes, Austin ,Punderof was of opinion that the law is command of sovereign.

AUSITINIAN VIEWS According to Austin, law is a command of the sovereign attended by sanction in case of violation of the command. In other words, law should be limited to rules of conduct enacted by a determinate legislative authority and enforced by physical sanction. The superior, according to him, is the real sovereign. Austin said that international law cannot be called law proper in the true sense, because it has neither sovereign legislative authority to enact law nor there is an adequate sanction behind it. Moreover, there is no enforcement agency which can enforce it as a body of rules The rules commonly called international law are in fact the rules of positive morality; the rules are analogous to the rules binding a club or society.

Continued These jurist to support their view put forward following arguments In international law there is no determinate superior political authority it lacks effective legislative machinary International law lacks sanctions There is no executive power in international law to enforce the decision of ICJ.

CRITICISM OF AUSTINS VIEWS According to Oppenheim, law is a body of rules for general conduct within a community which by common consent of this community shall be enforced by external power. According to Sir Frederic Pollock: the only essential conditions for the existence of law are the existence of a political community and the recognition by its members of settled rules binding upon them in that capacity, international law seem on the whole to satisfy these conditions According to Brierly: the best evidence for the existence of international law is that every State recognizes that it does exist and that it is itself under obligation to observe it. According to Starke, international law is really law. He has put forward four main arguments: firstly, in many primitive communities, a system of law existed without there being a formal legislative authority; secondly, international legislation in the form of law-making treaties and conventions has come into existence today; thirdly, the authoritative agencies responsible for the maintenance of international intercourse do not regard international law as merely a moral code; lastly, the United Nations is based on the true legality of international law.

ARGUMENTS SUMMED UP The term law cannot be limited to rules of conduct enacted by a sovereign authority. Customary rules of law do exist viz. common law of England. The rules laid down by treaties are binding although they do not emanate from a sovereign political authority. The procedure for formulating international rules is well settled by means of treaties, etc. When international questions arise, States do not rely upon moral arguments but rely upon treaties, precedents and opinions of specialists. Thus, States do not deny the existence of international law. In some States (e.g. USA and UK), international law is treated as part of their own law (Paquete v. Habanna (1900) 175 US 677), As aptly remarked by Prof. Hart, international law is law because States regard it as law. Nothing need be further proved.

CONTINUED International conferences and conventions also treat international law as law in its true sense. The United Nations is based on the true legality of international law. As per statute of the International Court of Justice, the Court to decide disputes as are submitted to it in accordance with international law. The Court's decisions are binding upon the parties to a dispute, and under certain conditions its decisions can be enforced. Besides this there are a variety of International Tribunals such as International Tribunal for the Law of the Sea. So far as sanction in law is concerned, international law does not completely lack it. International law is not very frequently violated

BASIS OF INTERNATIONAL LAW The roots of international law go deep into history and evidence of treaties, immunities of ambassadors, usages of war, etc. can be found in ancient Egypt, India, the Greek and Roman empires. The present day international law owes its origin to the great jurist Grotius whose work De jure Belli ac Paces (1625) lent legal basis to many areas of international relations. His main idea is that there are certain eternal, unchangeable and independent rules of law which have roots in human reason. This law of reason is called by him as Natural Law. In the Grotian theory, there are three basis of international law: Laws of reason, Customs, and Treaties

BASIS OF INTERNATIONAL LAW Naturalist theory (Pufendrof): There exists a system of law which emanates from God or reason or morals. Law of nations is only a part of law of nature. Hart explains that a minimum content of law flowing from the immutable nature of man is that which is necessary for survival of mankind. International peace and security being necessary for survival of human kind, all laws relating to it are thus parts of law of nature. The theory is criticised on the ground that it is too vague. Positivist theory (Bynkershook): Only those principles may be deemed as law which have been adopted with the consent of the States. Law is that which exists in fact. It is that law which is enacted or followed by States (i.e. emanate from their own free will) and is hence binding upon States. Customs and treaties come into existence from express or tacit consent of States. The theory is criticised as all rules of international law are not derived from customs and treaties. Further, a treaty may be binding on third States as well, and, States in some cases are bound by general international law even against their will. Eclectic theory: The views taken by the naturalists and positivists are extreme views. A theory giving equal importance to both the views appears to be correct. As to the true basis of international law, contemporary sociological theories tend to support Naturalism because they argue that international law is based on social interdependence and aims at bringing about international social justice. Thus, natural law underlies even at the positive law (customs and treaties) which is only an expression of this social interdependence.

OTHER THEORIES Some other theories regarding the basis so international law Theory of consent- here consent of the states is the basis of international law. States observes rules of international law because they have given their consent for it. Auto-limitation theory- According to this theory, international law is binding upon the states because they have restricted their powers through the process of autolimitation and have agreed to abide by international law. Pacta sunt servanda- Anzilotti the binding force of international law is based on the supreme fundamental norm or principle , known as pacta sunt servanda. It means that the agreements entered into by the states will be respected and followed by them in good faith. Theory of fundamental right- This theory is based on naturlistic view point . According to this view , prior to existence of state ,Man used to live in natural state and even in that state he possesed some fundamental right ,such as independence ,equality, right to self preservation. Like man ,state also possessed these fundamental rights because so far there is ,no world institution over and above the states.

Relation of International Law to Domestic law The views of the jurist on the question of relationship of international law and municipal law are divergent which have led to the emergence of different theories . Monistic theory ( KELSON, WRIGHT, WESTLAKE ETC.) According to Monistic theory, municipal law as well as international law are parts of one universal legal system serving the needs of the human community in one way or the other. Monism maintains that all the laws are made for individuals only. While municipal law is binding on them directly, international law is binding on them through States. Since both the laws are meant to solve the problems of human beings in different areas; they both are related to each other. According to them, subjects of both the systems of law are ultimately individuals. According to this theory, international law and municipal law should be considered as manifestations of a single concept of law. Because there is no difference between these Monistic theory is subjected to many criticisms It is very difficult to disapprove the view of kelsen that man lies at the root of all laws. But in actual practice, States do not follow this theory. They contend that Municipal law and international law are two separate systems of law. Further, each state is sovereign and as such is bot bound by international law. States follow international laws simply they give their consent to be bound and on account of other reasons.

DUALISTIC THEORY (TRIEPEL, ANZILLOTE) According to dualistic theory, International law and municipal laws of the several States are two distinct, separate and self-contained legal systems. Being separate systems, International Law would not as such form part of the internal law of a state. Dualistic view was developed by a prominent German scholar Triepel in 1899. For him, International Law and domestic or municipal law existed on separate planes, the former governing international relations, the latter relations between individuals and between the individual and the state. The theory was later on followed by Italian jurist Anzilotti. Starke says that the theory represents two entirely distinct legal systems International Law having an instrinsically different character from that of State Law.

DIFFERENCE POINTS The above authors are of the view that the two systems of law differ from each other on the following grounds:- (a) Regarding origin the origin of the two is also different in as much as source of municipal law is the will of state, whereas source of international is the common will of the states (b) Regarding Subjects Municipal law regulates the relations between the individual and corporate entities, International Law regulates primarily the relations between States. (c) Regarding Principles Municipal laws in a state are obeyed because they are the principles of State Legislatures, International Law is obeyed because of principle of pacta sunt servanda(It means that the agreements entered into by the states will be respected and followed by them in good faith) . Thus International law is followed because States are morally bound to observe them. (d) Regarding Dynamism of the Subject Matter Subject Matter of the two systems are also different. While the subject matter of international law has always remained dynamic, the subject matter of the municipal law is limited.

RESTRICTIONS TO DUALISTIC THEOTY Dualist theory is subjected to many criticisms Firstly, the view that international law and municipal law differ from each other implies that international law cannot be a part of municipal law. It s not correct because there are certain fundamental principles of international law which are binding upon a state, even against its own will. Secondly, it is not correct to say that international law regulates the relations of states only at present it regulates certain activities of individuals as well. Thirdly, no doubt, pacta sunt servanda is an important principle of international law, but it cannot be said that it is the only principle on which international law rests.

TRANSFORMATION OR SPECIFIC ADOPTION THEORY It is based on the dualist concept. This theory says that, no rules of international law, by its own force, can claim to be applied by municipal courts, unless they undergo the process of transformation and be specifically adopted by the municipal courts and systems. The rules of international law are part of national law only if specifically-adopted. In short international can be applied in field of municipal law only when Municipal law either permits it or adopt it specifically. Criticism As there are many principles of international law ( e.g.customary rule) which are applied in the field of municipal law without specific adoption. Further several law making treaty become applicable to the state even without undergoing the process of transformation.

DELEGATION THEORY Delegation Theory: This theory laid down that the Constitutional rules of international law permit each state to decide or determine as to how interntional treaties will become applicable in the field of state law. Thus ,in fact there is no transformation nor there is specific adoption in every case. The rules of international law applied in the field of state law in accordance with the procedure and system prevailing in each state in accordance with its constitution. Criticism- One may ask where are and what are the constitutional rules of international law? When and how these rules have delegated power to state constitutions? This theory is far from true. In fact each state is equal and sovereign and does not recognise any authority over and above it.

State practices Great Britain Customary international law- British courts treat customary rule of international law as a part of their own land,subject to the condition that they are not inconsistent with the British statues, and if the highest court once determine the scope of of a customary rule ,then all the courts in Britain court are bound by it . This principle has been affirmed in West Rand Central Gold Mining Company, Limited v. The King, 2 K.B. 391 [1905] in case of inconsistency between clear or unambiguous rule of municipal law and international law municipal law will prevail In case the municipal law is ambiguous ,the english court adopt the rule of harmonious construction and avoid conflict between statute law with international law. Certain exception under customary rule The act of state do not come within the purview of British courts, irrespective of the violation of international law. In some matters the British courts are bound to obey the prerogative powers of crown.

STATE PRACTISES Treaties In regards to treaties ,the British practice is based on constitutional principles governing the relationship between Executive or Crown and Parliament. In regards to treaties , the matters relating to negotiations ,signature ,etc. are within the prerogative powers of the Crown. In britain it is necessary that some type of treaties should receive the consent of parliament All treaties do not automatically come into force i.e. All the treaties are not self operating or executing. Treaties which affects private rights ,involve session of British territory ,impose additional financial obligation or modify common law or statute of england do not automatically become law and required to be incorporated by parliament. Treaties which are not of primary importance do not require legislative action In case of a conflict between a law enacted by parliament and a treaty ,former will prevail it is clear or unambiguous.

SOLOMON VS. COMISSIONERS OF CUSTOMS AND EXCISE (1967) 2 Q.B. 116 lord justice diplock- observed that in English law the treaties are not self operating or executing. Once the government has legislated , the court must in the first instance construe the legislation. If the terms of legislation are clear and unambiguous ,they must be given effect to whether or not they carry out U.K.s treaty obligations. But if the terms of the legislation are not clear and reasonably capable of more than one meaning ,the treaty becomes relevant prima facie presumption that parliament does not intend to act in breach of international law.

American practice customary international law The United States As far as the American position on the relationship between municipal law and customary international law is concerned, it appears to be very similar to British practice. In America also customary international law are treated as a part of American law. Justice gray stated in the Paquete Habana case that international law is part of our law ,and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. The American courts also - interpret the statute of the congress in such a way that may not go against international law.

AMERICAN PRACTISE Treaties American practice is different from British practice. In America everything depends upon the provision of the constitution. Article 6- All the treaties made by united state shall be the supreme law of the land United states v Pink the supreme court stated that a treaty is law of the land under the supremacy clause ( art.6 of constitution) International treaties = state law in America United state V P.L.O. the U.S. government ordered the closure of the observer mission in P.L.O. and prohibited its activities within united state after it found the P.L.O. to be terrorist organization in view of the Anti terrorism act enacted in 1987 the order was against the UN headquarter agreement 1947 . The ICJ in its advisory opinion ruled against the U.S. attempt to shut down P.L.O. Misssion unilaterally. The Federal court of America also held so.

AMERICAN PRACTISE It may be noted that in America the practice is that if there is a conflict in between international treaty and state law ,which ever is later in date shall prevail. In U.S. the treaties have been divide in two categories 1- self executing treaty become applicable without any Act or consent of the congress. 2- Non self excuting treaty- which can become applicable only after the consent of the congress or through its adoption by specific statute.

Indian practice customary international law The courts in India follow British practice. In Annakummaru Pillai v Muthupayal ILR 1907 held that international customary rules are ipso facto part of indian law and do not require incorporation. However in A.D.M. Jabalpur V Shukla (AIR 1976) Majority held that international customary rules were merely a ethical principles and were not applicable ipso facto. the judgment was criticised under article 372 of our constitution which provides that all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. The words law in force includes British common law. Dissenting opinion was given by justice Khanna.

In Gramophone co of India ltd. V BB pandey (AIR 1984) Justice chinappa reddy observed that if in respect of any principle of international law , the parliament says no the national court can not say yes . National court shall approve international law only when it does not conflict with national law. National court being organ of the state and not organ of international law must per force apply natioal law if international law conflict with it. Treaty ARTICLE 51. Promotion of international peace and security: The State shall endeavour to (a) promote international peace and security; (b) maintain just and honourable relations between nations; (c) foster respect for international law and (d) encourage settlement of international disputes by arbitration Article 73 broadly stated, that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. Thus ,treaty making is an executive act.

INDIAN PRACTISE Art 246 of Indian constitution Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List ). Entry 14 list 1(Union list) 14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries i.e. implementing of treaties, agreements and conventions with foreign countries rest with union parliament. Article 253 in The Constitution Of India Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference

INDIAN PRACTISE The air Act ( prevention and control of pollution ) Act of 1981 was enacted by the parliament by invoking the central government power under the Art 253. As to the position of treaties in Indian law ,two attitude prevail. One view is that treties shall not be binding upon courts unless they are implemented by legilation. In Shiv Kumar Sharma & others v. Union of India , AIR (1958) the court stated that In India, treaties do not have the force of law and consequently obligations arising there from will not be enforceable in municipal courts unless backed by legislation . Jolly George Varghese and anr. V. The Bank OF Cochin AIR 1980 SC 470.- Justice krishna iyyer asserted that the positive commitment of the state parties ignities legislative action at home but does not automatically make the covenant an enforceable part of the corpus juris of India.

INDIAN PRACTISE Civil right vigilance committee, Banglore v UOI ( AIR 1983) The material facts, leading up to this appeal, are briefly these : Geof Boycott and Geof Cook are two cricket players who are citizens of the United Kingdom. Marylbourne Cricket Club (M.C.C.) included them in its team scheduled to visit India between November 1981 and February 1982 to play six test matches and other matches at different places in India. As to whether the Government of India should allow that English Cricket Team which included Boycott and Cook to visit India and to play cricket matches, despite their links with South Africa which is practising policy of aparthied held became the subject matter of controversy both in India and outside. However, the Government of India allowed that English cricket team including those two players to come to the country and to play matches as scheduled. the petitioner contented that the government action is breach of its obligation under Gleneagles Accord and obligations attached to its membership of U.N.. It was held that as such obligations are not made part of the law of this country by means of appropriate legislation , they can not be enforced and the court can not compel Parliament to make such law.

INDIAN PRACTISE The other view In India all treaties do not require implementation by legislation. In berubari case no 1 (AIR 1960) - it was held that and agreement involving cession of part of Indian territory to Pakistan , require amendment to the constitution and hence legislative enactment is necessary. Berubari case no 2. ( AIR 1966) - Where in the territory de jure belonged to pakistan it was held that giving it back did not entail cessation of territory. Hence transfer could be effected by executive action and no legislative action necessary. UOI v sukumar sen gupta (AIR 1990) also known as teen bigha case - it was held that lease in perpetuity of teen Bigha in favour of Bangladesh did not amount to cessation of territory and hence legislation not required. Supreme court of india made distinciton between self executing treaty ,Non self excuting treaty in Maganbhai Ishwarlal Patel v UOI ( AIR 1969)

Sources of International law INTERNATIONAL COURT OF JUSTICE Article 38 1. 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. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

A. INTERNATIONAL CONVENTIONS AND TREATIES It is the most important source of international law because the reason that states have found in this source a deliberate method by which to create binding international law O . Hudson- The convention is used in a general and inclusive sense and it apply to any treaty ,convention ,protocol ,agreement,regardless of its title or its forms 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. Art 2 of Vienna Convention on the Law of Treaty 1969, the codified law for contracting treaties, gives the definition, A treaty is an agreement whereby two or more states establish or seek to establish a relationship between them governed by international law. However this definition is narrow and does not seem to be correct . Scwarzenberger - Treaties are agreements between subjects of international law creating binding obligation in international law.

TREATIES Treaties can be Divided Into 1) Law Making Treaties and 2) Treaty Contracts 1) Law making Treaty- Law making treaties are those treaties which are entered into by a large number of States. These are the direct source of International Law.The reason for development of law making treaties are customs which were proving to be inadequate and change circumstances. Law making treaties may be divided into i) treaty giving the rule of Universal International Law. ii) Treaty giving general principles. (i) Treaty giving the rule of Universal International Law - These treaties are signed by a majority of the State. For Example United Nation Charter. (ii) Treaty giving general principles - These treaties are entered into and signed by a large number of countries giving thereby general principles of International Like. Geneva Convention on Law of sea and Vienna Convention on Diplomatic Relations, 1961 Hague convention 1899 and 1907 are examples of such a treaty.

2. TREATY CONTRACTS 2) Treaty Contracts: These are the treaties which are entered into by two or more States. The provisions of such treaties are binding only on the parties to the treaty. Such type of treaties are also the source of International Law because they help in the development of customary rules of International Law. This may happen when a similar rule is incorporated in a number of treaty contracts.Beside this a treaty enter into by a few states is subsequently accepted by many other states as they enter into similar treaties. A treaty may be of considerable evidentiary value as to the existence of a rule which has crystallised into law by an independent process of developmnet.

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.

CUSTOMS Formation of custom or Development 1-Custom and Usage Usage means those actions which are often repeated by the states. It is an international habit which has not yet received the force of law. Usage represents the twilight zone of custom, Custom begins where usages ends- Stark Custom emerges when a clear and continuous habit of doing certain action grows up under the aegis of the conviction that these actions are right. Custom is such a usage as has the force of law. Westlake The line of conduct which the society has consented to regrad as obligatory.

OPINO JURIS ET NECESSITATIS Opinio juris essentially means that states must act in compliance with the norm not merely out of convenience, habit, coincidence, or political expediency, but rather out of a sense of legal obligation In the North Sea Continental Shelf Cases, the Court examined cases where States had delimited their boundaries using the equidistance method, after the Convention came into force. The court concluded, even if there were some State practice in favour of the equidistance principle the court could not deduct the necessary opinio juris. The North Sea Continental Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the subjective element i.e. legal obligation) are essential pre-requisites for the formation of a customary law rule.

CUSTOMS 2-Generation of customary rules by treaty North Sea Continental Shelf Cases

2. GENERATION OF CUSTOMARY RULES BY TREATIES 2-Generation of customary rules by treaty North Sea Continental Shelf Cases(1969) ICJ The dispute, which was submitted to the Court on 20 February 1967, 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 the Netherlands on the other. The Parties asked the Court to state the principles and rules of international law applicable, and undertook thereafter to carry out the delimitations on that basis. The world court observed that A treaty provision can only generate customary international law ,but only when the provision concerned is of fundamental norm creating character such as could be regarded as forming the basis of a general rule of law Art 6 is of convention which lays down equidistance principle was not intended to be of a norm creating character.

COURTS INSTANCE The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding: - that the Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6; - that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of customary international law. The Court also rejected the contentions of the Federal Republic in so far as these sought acceptance of the principle of an apportionment of the continental shelf into just and equitable shares. It held that each Party had an original right to those areas of the continental shelf which constituted the natural prolongation of its land territory into and under the sea. It was not a question of apportioning or sharing out those areas, but of delimiting them.

Essential Ingredients of a Custom Long duration in North Sea Continental Shelf Case the world court held that the passage of only a short period is not necessarily a bar to the formation of a new customary international law. Uniformity and consistency Asylum case ICJ 1950 Columbia gave asylum to a rebel Peruvian Political leader Hays de la Torre in its Embassy in Peru. the Colombian Ambassador requested Peru government to allow rebel leader , to leave the country. Government of Peru refused. Colombia based his claim, according to the Convention in force Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum, the Montevideo Convention of 1933 on Political Asylum for the of purposes of the asylum. The court observed that Colombia had not proved the existence, either regionally or locally, of a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State. It therefore followed that Colombia, as the State granting asylum, was not competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru Generality of Practice- west rand gold mining company case- it was held that a valid international custom should be proved by satisfactory evidence that the custom is of such nature that it has received general consent of states and no civilized state shall oppose it. opino juris et necessitatis- North Sea Continental Shelf Case

Application of international custom is very difficult North Sea Continental Shelf Case Asylum case Right to passage case ICJ (1960) S.S. lotus case (1927) PCIJ

THE LOTUS CASE

THE LOTUS CASE The Lotus case concerns a criminal trial which was the result of the 2 August 1926 collision between the S.S. Lotus, a French steamer, and the S.S. Bozkourt, a Turkish steamer, in a region just north of Mytilene(Greece). As a result of the accident, eight Turkish nationals aboard the Bozkourt drowned when the vessel was torn apart by the Lotus The issue at stake was Turkey s jurisdictionto try Monsieur Demons, the French lieutenant on watch duty at the time of the collision. Since the collision occurred on the high seas, France claimed that the state whose flag the vessel flew had exclusive jurisdiction over the matter. France proffered case law, through which it attempted to show at least state practice in support of its position. After examination of the material before it (treaties ,state laws, judicial decision ,etc,) the court held that no such customary rule was established because opino juris could not be proved. The court explained that even if the facts alleged by france were true,they would merely show that states had often ,in practice ,abstained from instituting criminal proceeding and not that they recognised themselves as being obliged to do so.

General principles of law recognized by civilized nations general principles of law include substantive as well as procedural principles. Some general principles of law' common to municipal legal systems are: Res judicata (a thing or matter settled by judgment): A matter once judicially decided is finally decided, and there is an absolute bar to a subsequent action involving the same claims, demand or cause of action. This principle was taken into account in the U.N. Administrative Tribunal Case., Chorzow factory (indemnity ) case Prescription (a claim to a right founded upon enjoyment): Eastern Greenland Case (PCIJ, 1933), Island of Palmas Case. Subrogation (substitution or stepping into shoes of another): Mavrommatis Palestine Concessions Case (PCIJ, 1925).

GENERAL PRINCIPLES RECOGNISED BY CIVILIZED NATIONS Estoppel (preclusion): A State party to international obligation is bound by its previous acts or attitude when they are in contradiction with its claims in the litigation (Serbian and Brazilian Loan Case). The principle was also applied in Temple of PreahVihar Case., Barcelona traction case Equity (reasonableness, fairness): The ICJ has been increasingly referring to equity in its judgments in recent years viz. The Gulf of Maine Boundary Case, North Sea Continental Shelf Cases. Other principles: The principle that every violation of an engagement involves an obligation to make reparation (i.e. repair a wrong), is recognized in Chorzow Factory Case.

Subsidiary and indirect sources of international law JUDICIAL DECISIONS AND JURISTIC WORKS(MOST HIGHLY QUALIFIED PUBLICISTS) E.g. are Calvo Clause and Drago Docterine Modern sources of international law Resolution of the General Assembly UDHR 1948, Rio declaration (Earth summit )1992 etc.

GENERAL PRINCIPLES RECOGNISED BY CIVILISED NATIONS A treaty is the agreement between two or more parties to solve an issue that affects the parties signing the treaty. A convention is the set of rules for the parties agreeing to the convention to solve an issue that affects larger part of the world. A treaty enters in force as soon as the parties involved in the treaty signs this agreement. Since a convention affect larger part of the world, it only comes in force when a minimum number of parties agree to the convention (in technical terms ratifies the convention). Most of the times a treaty is drafted and executed by the parties involved. A convention is drafted and executed by an international body such as "United nations", international maritime organisation or International labour organisation.