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vustudents
09-05-2012, 04:18 AM
Q. What are principal sources of international law, your answer should be with reference to article 38 of the statute of international court of justice. (1998)(2000)(2007/A)
Q. Explain custom and treaties as material sources of international law. (2000-5)
Q. Regarding material principal sources of international law.
(a) Are you familiar with article 38 of the statue of I. C. J?
(b) What do legal thinkers say about theses sources.
(c) If there is any difference between them does this difference of any significance. (2001)_(2002)
Q. (a) Can you find public international law in one single source.
(b) What material source can you identify.
(c) Offer your comments statue of I. C. J? (2002-5)
Q. Explain in detail the main sources of international law. (2003-5) (2005)
Q. Discuss in detail the material sources of international law. (2004)
Q. What are the sources of international law. (2006/S)
1. Introduction:
International law is body of rules which regulates relations among states. it comprises mainly of the rules recognized by states in their relation with each other and mostly arises out of international customs and treaties. at present article 38 of the statute of international court of justice is an authoritative text of the source and evidence of international law.
2. Definitions of international law:
Oppenheim
International law is body of customary and convential rules, which are considered binding on civilized states in their relations with each other."
Starke
"It is body of customary and conventional rules which are considered binding on civilized states in their relation with each other and includes also functioning of international institutions and their relations with each other and states and also individuals in relation with states and international institutions.
3. Sources of international law:
Although there is no international legislature and court to which international community must compulsorily submit still under article 38 of statue of international court of justice, rules of international law can be pragmatically found in international conventions, international customs etc, etc.
4. Meaning of sources:
Starke:
"By sources of international law we mean the actual materials from which an international lawyer ascertains the rule applicable to a given situation."
5. Classification of sources:
Sources of international law may be classified into two categories.
(i) Formal sources.
(ii) Material sources.
I. Formal sources of international law:
A formal source is that source which a rule of law derives its force and validity. there are no formal sources of international law and one of the main criticism on international law is that it does not have an legislature of its own, thus its laws cannot have any sanction.
II. Material sources of international law:
Material sources of international law are those actual materials form which an international lawyer determines the rule applicable to a given situation article 38 of the stature of international court of justice enlists such material sources of international law. there are all kinds of sources in this statute including primary and secondary. pare second of article 38 of the statute enlists secondary sources of international law.
6. Article 38 of statute of international court of justice:
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) Judicial decisions and teaching of the most highly qualified publicists of the various nation as subsidiary means for the determination of rules of law.
Condition:
The provision shall not prejudice the power of the court to decide a case exaequo et bono, if the parties agree thereto.
7. Main sources of international law:
I. Primary sources:
(i) International customs:
International customs are one of the most important sources of international law. article 38 of the statute of international court of justice recognizes international customs as a source of international law.
(a) Essentials of valid international custom:
The essentials of valid international custom are as under:
(i) Long duration.
(ii) Uniformity and consistency:
Case law.
Asylum case (1950)
"The rule invoked should be in accordance with a constant and uniform usage practiced by the states in question."
(iii) Generality practice or observed.
(iv) Opinio juris et necessitates.
(ii) Treaties:
Treaties are most important source of the international law.
(i) Definition of treaty:
Article 2 of the vienna convention on the law of treaties 1960 defines treaty:
"An agreement whereby two or more states establish or seek to establish a relationship between them governed by international law."
(ii) Kinds of treaties:
(a) Law making treaties
Law provisions of law making treaties are directly a source of international law. law making treaties perform the same functions in the international field as legislation dose in the state field. there are the means through which international law can be adapted to in accordance with the changing time and circumstance and the rule of law among the states can be strengthened.
(b) Treaty contracts:
Treaty contracts are entered into by two or more states. the provisions of such treaties are binding on the parties to the treaty. the treaty contracts are indirect source of the international law.
(iii) General principles of law:
General principles of law recognized by the civilized states is also an important source of the international law. general principles of law are those rules which have been recognized by almost all the states.
Case law:
Chorzom factory case 1927:
"In this case the court of the international justice applied general principle of Res- Judicata.
General principles recognized by the international:
General principles recognized by the international court has recognized following principles in different decision.
(i) Good faith.
(ii)Responsibility.
(iii) Prescription.
(iv) In the absence of any provision to the contrary every court has right to determine of it own jurisdiction.
(v) A party to a suit cannot himself be an arbitrator or a judge in his own case.
(vi) Res-judicate
(vii) Estoppels
(viii) Audi alterm paterm.
(iv) Judicial decisions:
Juristic works forms the evidence of international law, yet it assumes importance when there are no established customs or treaties.
Lawrence' s views:
"A writer an international law in a sence himself legislates for he creates the opinion that is really supreme."
(v) Decisions of determinations of the organs of international institutions:
Decisions on questions of jurisdiction of an organ of international institution may have a law making effect. sometimes organs of the international institutions are authorized to give binding determinations concerning the interpretation of their constituent instruments.
(vi) State papers:
State papers other than treaties are also source of international law. the archives of the foreign affairs department of every country contain a mass of valuable experts opinion which are useful for international law.
II. Secondary sources:
Following are the secondary sources of the international law.
(a) State judicial decisions.
(b) International community.
(c) Equity and natural justice.
(d) Jus congens.
(f) State practices.
(g) Private contracts.
(h) Roman law.
(i) Principles of Islamic law.
8. Subjects of international law:
Following are the subjects of international law.
(i) States.
(ii) Political entities legally proximate to state.
(iii) Condomonia.
(iv) International Territories.
(v) International organizations.
(vi) International institutions.
(vii) International criminal law.
(viii) Treaties concerning international minorities and individuals.
(ix) Non- state entities.
(x) Insurgents.
9. Conclusion:
To conclude it can be said that the sources are the name of historic fall put of which rules of conduct comes into existence. although there is no international legislature and court to which international community must compulsorily submit, still under article 38 of the statue of international court of justice provide sources for international law.