-MAYANK SHANDILYA, 2nd Year Student at SVKM’s Pravin Gandhi College of Law, Mumbai University.
In the contemporary world, the fountain source of domestic or national laws in Nation States committed to upholding the rule of law is understood to be the Constitution of the Nation State, for it provides legal sanction to the various institutions that ensure a robust infrastructure for effective enforcement of the law. The Constitution is also an embodiment and culmination of the shared aims and aspirations of the people, regardless of their diverse backgrounds; it also adumbrated the political ideology that the Nation State strives to sustain and put forth flowing from its rich historical heritage. However, chalking out a common fountain source for all the Nation States on an international scale is an extremely uphill task. United Nations Charter which enshrines equality of all Sovereign states, a concept which flows out from the Peace Treaty of Westphalia. To put it more lucidly, the Treaty of Westphalia enumerated that a Sovereign should have complete autonomy over its internal affairs bereft of any external influence.
Sources of International Law
Being devoid of any fountain source or a principal legislative body which could enact binding laws on sovereign states (since these would be in contravention to the Westphalia state system) could seriously inhibit the efficacy of International law by hindering its legitimacy. This lacuna was addressed by the International Court of Justice(ICJ) in the ICJ Statute wherein Article 38(1) enumerated sources of international law enumerated in order of precedence-
(a). International treaty laws, 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 the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
International Conventional Law
International Conventions and Customs constitute the primary sources of International law. We shall accord the canons of these two sources a deeper analysis. International Conventions are the treaties and agreements between Nation States. Conventions between two states are called bilateral treaties; between a few states (more than two, of course) are called plurilateral treaties; while when a large number of states are involved they are known as multilateral treaties. It is pertinent to mention that merely being a signatory does not have a binding effect of the treaty on the state. It is perceived as a means of expressing the willingness of the signatory state to continue the treaty making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty.
Ratification of a Treaty: The Monist and Dualist System
For a treaty to have a binding effect the state has to ratify the treaty. The initiation of ratification grants states the necessary time-frame to seek the required approval for the treaty on the domestic level and to enact the necessary legislation to give domestic effect to that treaty. There are two systems for translating treaties into domestic law systems namely, Monist and Dualist Systems. In Monist systems the act of ratifying an international treaty immediately incorporates that international law into national law. Countries like France adhere to such a system. For States with a “dualist system”, international law is not directly applicable domestically. It must first be translated into national legislation before it can be applied by the national courts. India adheres to the latter system. The United States of America follows a hybrid of the two systems. The U.S. Supreme Court in Medellin v. Texas(2008) laid down that even if the United States signs and agrees to be bound by an international convention, it is not binding in nature unless it is self-executing, or unless Congress passes a legislation making the convention binding.
Accession of a Treaty and how it differs from Ratification.
Ratification of the treaty is not to be confused with accession of the treaty albeit both of them have the same legal effect, there is a technical difference between the Two “Accessions” is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states.
Since the participation of the Sovereign state in the treaty making process is deliberate and rules sought to be established are expressly recognized by the contracting states, the consent in Conventional International law is understood to be explicit.
Customary International Law
Customary international law refers to international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and Treaties of the International Court noted in the Libya/Malta case (1985) the substance of customary law arises primarily out of-
(a) State practices that have been followed since time immemorial.
(b) Opinio Juris.
Great emphasis is laid upon opinio juris for it is an indispensable element to manifest a state practice into a legally binding custom. Opinio Juris can be understood as a psychological factor, the belief by a state which makes them behave in a certain way believing that it was under a legal obligation to act that way. In other words, the element of Opinio Juris helps differentiate between an ordinary states practice carried out in good faith, for example monetary relief packages to poorer states apart from legally binding customs like diplomatic immunity.
Relationship between Customary and Conventional International Law
An inquisitive question that will transgress any curious mind at this juncture is how these two components of international law are related to each other. Simply put, International conventions codify International Customary Law. Perhaps the best embodiment of this proposition lies in the example of diplomatic immunity. Historically it was an established custom amongst provinces not to take coercive or retributive action against the diplomat of a foreign province even if the diplomat in question made an extremely grotesque statement about the sovereign. Hence, it is tantamount to an international “state practice” ultimately giving rise to a customary law vide The Vienna Convention on Diplomatic Relations of 1961 this customary law was codified into a conventional law. The law conferring states territorial sovereignty of sea within twelve nautical miles of land has emerged from a customary law as well. Its name, the cannon-shot rule is very appositely derived from the fact that in the 17th century the limit of three nautical miles roughly corresponded to the outer range of coastal artillery weapons and therefore reflected the principle terrae dominium finitur, ubi finitur armorium Vis (the dominion of the land ends where the range of weapons ends). The rule is now not widely recognised: many nations insist on adhering to a 6- or 12-mile coastal limit.
A persistent objector in South China Sea
By its very definition, in order to constitute a customary law, an established practice is a sine qua non. This has exposed a loophole in International Customary law. It gives the states (albeit inadvertently) an option to behave in a way contrary to the established practice while the practice is still developing in order to avoid it from subsequently manifesting into an established practice and ultimately into a customary law. Such a state is known as a persistent objector. Being privy to the concept of a persistent objector puts us in a better position to appreciate the intricacies of a very consequential strategic issue in the Asia Pacific pertaining to the South China Sea. China refuses to adhere to the United Nations Convention on the Law of the Sea (UNCLOS) which sets forth an area of 12 nautical miles as the territorial waters over which the State practices sovereignty and instead proposes the “9 dash line” in order to demarcate what it believes is its rightful territories. The 9 dash line runs as far as 2,000 km from the Chinese mainland which is in violation of the 12 nautical miles which roughly translates to 22.2 kilometres. By this act of non-compliance China does tantamount to a “persistent objector” which has led to territorial disputes with the Philippines, Malaysia and Vietnam. In absence of a persistent objector a customary international law is deemed binding on all states, consent here is implied and not explicit as is the case with Conventional law.
International law would have been reduced to merely a formal legal writ of the powerful Nation States which could be conveniently employed in order to thrust their ideologies and aspirations on their weaker counterparts. If powerful Nation States would have been given a free pass to throw their weight around in this manner the whole concept of International law would have been defeated. To inhibit such a situation from panning out Jus Cogens were incorporated via the Vienna Conventions on the Law of Treaties of 1969 and 1986.
Ascendancy of Jus Cogens
Jus Cogens are frequently viewed as a set of superior norms sanctioning fundamental values from which no derogation is allowed that constrain states objectively rather than voluntarily, any treaty in contravention to the jus cogens rules is deemed void. Prohibition of slavery, genocide, racial discrimination, torture, and the right to self-determination, prohibition against apartheid are all recognized as jus cogens rules, for being against the basic principles of the United Nations.
General Principles as a source of International Law
General principles of law which are a secondary source serve as “gap fillers” when treaties or customary international law do not provide complete clarity as to how they are to be construed. Hence, General principles are merely supplements employed in order to aid and facilitate the interpretation of primary sources. As International Conventional law is becoming increasingly nuanced and refined the significance of General principles is in a downward spiral.
Lastly, the ICJ statute enumerates judicial decisions and the teachings of the most highly qualified publicists of the various nations which although are also secondary sources of law, and are usually cited in the ICJ as evidence and aid in determining rules of law.
As International Law makes headway the scope of Conventional law is ameliorating which helps reduce the ambiguity and discrepancies which arise due to the vagueness associated with Customary International law. However, International law is still in its infancy and has a long way to go till the Westphalian ideals of equality of all Sovereign states regardless of their territorial and economic prowess is achieved and an efficient mechanism to compensate and address the power asymmetry amongst Nation States.
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ii Peaceandjusticeinitiative.org. 2020. How does international law apply in a domestic legal system?- Peace and Justice Initiative. [online] Available at: <https://www.peaceandjusticeinitiative.org/implementation-resources/dualist-and-monoist>
iii LexisNexis. 2008. Mendellin V. Texas / Case Brief For Law Students / Lexisnexis. [online] Available at: <https://www.lexisnexis.com/community/casebrief/p/casebrief-medellin-v-texas>
iv LII/ Legal Information Institute.2020. Customary International Law. [online] Available at: <https://www.law.cornell.edu/wex/Customary_international_law>
vi Oxford Reference. 2020. Cannon-Shot Rule. [online] Available at <https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095546425>
vii Zhen, L., 2016. What’s China’s ‘Nine-Dash Line’ And Why Has It Created So Much Tension in The South China Sea?. [online] South China Morning Post. Available at: <https://www.scmp.com/news/china/diplomacy-defense/article/1988596/whats-chinas-nine-dash-line-and-why-has-it-created-so>
viii Marathe, O .,2020.Explained: What is JUS COGENS? The Indian Express,[online]Available at :
x Law.gwu.libguides.com. 2020. GW Law Library: Library Guides: International Law Research Resources: General Principles of Law. [online] Available at: <https://law.gwu.libguides.com/PIL>
Edited by: Vidhi Dugad, Zeel Davda.