Sources of International Law

- **According to Lawrence and Oppenheim**:

- Sole source of international law is the consent of nations.
- Source defined as the origin of something.

- **Traditional Sources of Law**:

- Customs, religion, judicial decisions, equity, scientific commentaries, legislature.

- **Kelsen's Contribution**:
- Kelsen introduced the concept of "grundnorm" to international law.
- Following this, international instruments and judicial decisions became significant sources.

Traditional Sources
1. Customs
2. Treaties
3. Decisions of judicial or arbitral tribunals
4. Academic writings

Category of Sources

- **George Schwarzenberger's Proposal**:

- Primary sources: Treaties, customs, general principles of law.
- Subsidiary means: Judicial practice, doctrines.
- Defines treaties as consensual engagements creating legal obligations.

- **Herbert Briggs's View**:

- Describes "sources" as the methods or procedures for creating international law.

- **Oppenheim's Differentiation**:
- Formal sources: Provide legal validity (e.g., treaties).
- Material sources: Provide substantive content (e.g., treaties as material source for custom).

- **J.W. Salmond's Perspective**:

- Formal source provides force and validity to a law.
- Material sources supply the substance of the law.

- **Article 38 of ICJ Statute**:

- Outlines hierarchy of international law sources for ICJ decisions.
- Includes international conventions, customs, general principles of law, judicial
decisions, and teachings of highly qualified publicists.
- Allows for decisions based on equity and conscience with parties' agreement.
**International Conventions**

- **Definition**:
- International treaty law consists of obligations states expressly and voluntarily accept between
themselves in treaties.
- Treaty defined by the Vienna Convention on Law of Treaties (1969) as an international agreement
concluded between states in written form and governed by international law.

- **Types of Conventions**:
- **Bilateral**: Between two states.
- **Unilateral**: Imposed by one state upon itself.
- **Multilateral**: Involving multiple states.

- **Soft Law vs. Hard Law**:

- **Soft Law**: Non-binding treaties, e.g., Universal Declaration of Human Rights (UDHR) 1948.
- **Hard Law**: Binding treaties, e.g., UN Convention on the Law of the Sea, Convention on the
Elimination of All Forms of Racial Discrimination, Vienna Convention on the Law of Treaties.

**Lawmaking Treaties**

- Conducted among many states, creating a general rule binding those states.
- Main source of international law due to the principle of consent.
- Examples include The Hague Convention of 1899 and 1907 (on law of war and neutrality), the
Geneva Protocol of 1925 (on prohibited weapons), and the Genocide Convention of 1948.

**Treaty Contracts**

- Deals with specific matters between contracting states only.

- Creates particular laws between signatories but can also establish universal rules if adopted widely.
- Example: Briand Kellogg Pact 1928 led to the principle of non-use of force being accepted by other
states.
- Only parties to a treaty are bound by it.

**Registration of Treaties**

- Before the UN, treaties were not easily accessible.

- Article 102 of the UN Charter obligates member states to register treaties with the UN
Secretary-General.

**Judicial Decisions**

- ICJ considers previous decisions but no stare decisis; writers identify areas needing international
regulation.
- Article 59 of ICJ Statute: Court decisions are binding only between parties in that case.
- While no precedent doctrine exists, states in dispute and writers cite ICJ judgments as authoritative.
- Example: ICJ referred to Qatar-Bahrain case in 2002 maritime boundary dispute between Cameroon
and Nigeria.
**General Principles of Law**

- Principles recognized universally by legal systems, based on justice and equity.

- ICJ interprets "general principles of law" as principles of national law.
- Examples include good faith, state responsibility, necessity, and self-defense.

**Jus Cogens/Ius Cogens**

- Latin for "compelling law" or "peremptory norm."

- Fundamental principles of international law not subject to exceptions.
- Derived from customary international law.
- Examples include protection of human dignity, state immunity, and prohibition of torture.
- Vienna Convention on Law of Treaties (1969) states treaties conflicting with jus cogens are void.

Article 53 of the Vienna Convention on the Law of Treaties (1969) stipulates that treaties
conflicting with a peremptory norm of general international law (jus cogens) are void at the time of
their conclusion.

Article 64 of the same convention addresses the emergence of a new peremptory norm of general
international law. In such cases, any existing treaty conflicting with the new norm also becomes void
and ineffective.

**Summary**:
Judicial decisions guide international law but do not establish binding precedent. General principles of
law are fundamental legal principles recognized worldwide. Jus Cogens are non-negotiable norms of
international law, overriding all treaties and agreements.

Other sources: -
● draft conventions
● Equity and justice
● eneral assembly resolutions
● Security council resolutions
● Legally binding resolutions of the international organisations
● State practices

**International Law and Municipal Law**

- **Monism and Dualism**: Approaches to the relationship between international law and
municipal law, with variations seen in different countries like Sri Lanka, the UK, the US, and India.

- **Definition**:
- International law: Governs conduct and relations among members of the international community.
- Municipal law: Legislation applicable within a specific state.
- **Article 38 of ICJ Statute**: Provides guidance on sources of international law.

- **Need for Implementing International Law**:

- Maintain relationships between states.
- Govern relationships between states and individuals.

- **Scholarly Perspectives**:
1. Dualist school
2. Monistic school
3. Transformation of specific adoption theory
4. Delegation theory
5. Harmonisation theory

**Monism**

- According to the monism doctrine, international law and municipal law are part of the same
universal legal order, with international law holding supremacy even within the national legal sphere.
- Monism emphasizes the unity of legal systems, viewing municipal and international law as
indistinguishable.
- Advocates of this theory believe that international law itself constitutes the science and body of law,
without distinction.
- In the application of monism theory in national courts, international law is automatically applicable.
- Developed by German scholars such as Moser, Hegel, Bergbohm, Zorn, and Wendell in the late 18th
and early 19th centuries.
- Lauterpacht argues that nations exist independently, with individuals as fundamental components,
and that rights and obligations in municipal law can be transferred to the international legal system,
such as human rights.
- Prominent proponents include Wright, Kelsen, and Duguit.
- Germany's Basic Law (Article 25) reflects elements of monism.

**Dualism**

- Under the dualist doctrine, international law and municipal law are regarded as two independent and
separate legal systems.
- Dualism views international law as applicable between sovereign states/international organizations,
while municipal law regulates activities within a state concerning its citizens.
- Developed by German scholar Triepel and an Italian scholar.
- In dualism, international law must be adopted or incorporated into national law to become effective.
- National law takes precedence over international law that has not been incorporated, but violating
national laws may lead to international responsibility.
**Other Theories:**
3. **Specific Adoption or Transformation (Dualism):** Supported by dualism, where
international law is transformed into national law through specific adoption.
4. **Delegation Theory (Monism):** Supported by monism, positing that national law-making
authorities delegate their powers to international bodies.
5. **Harmonisation Theory (Fitzmaurice):** A theory aiming to reconcile conflicts between
international and national laws.

**National Law before International Courts and Tribunals:**

- Article 38(1)(c) emphasizes the application of general principles of law, including natural justice.
- Illustrated by cases like Barcelona Traction Case 1970, which dealt with the concept of limited
liability.

**National Law and International Obligations:**

- States cannot use national laws as valid excuses for violating international obligations, demonstrated
by cases like the Alabama Claims Arbitration 1872 and the Lockerbie case.

**Draft Declaration on Rights and Duties of States 1949:**

- Article 13 emphasizes the duty of states to fulfill international obligations in good faith and prohibits
invoking national laws as excuses.

**Vienna Convention on Law of Treaties 1969:**

- Article 27 prohibits invoking internal law to justify treaty non-performance.

**Selected States' Application:**

- Examples from Sri Lanka illustrate the incorporation of international conventions into national law,
such as the New York Arbitration Convention and the International Covenant on Civil and Political
Rights.
- Ratification of various conventions and protocols, followed by corresponding legislative acts and
amendments, showcases the alignment of national law with international standards.
- Constitutional provisions in Sri Lanka, such as Article 13(6), Article 27(15), Article 33, Article
154G(11), Article 156, and Article 157, highlight the legal framework supporting the integration of
international law into the national legal system.

**Sepala Ekanayake v AG (1988) 1 SLR 47:**

- **Facts:** The accused was charged with hijacking a plane, but there was no existing statute to
implement the Hijacking Convention. Sri Lanka (SL) created a new statute and arrested Sepala
Ekanayake, leading to concerns about retrospective law.
- **Judgment:** Article 13(6) of the constitution was invoked, allowing punishment for acts
recognized as criminal at the time. This dualist approach permitted the prosecution, despite the
absence of a specific statute.

**Bulankulama v Minister of Industrial Development (Eppawala Case):**

- **Facts:** Concerning the right to the environment, the Supreme Court of Sri Lanka referenced
international law, including principles from the UN Stockholm Declaration 1972 and the Rio De
Janeiro Declaration 1992, as well as Judge CG Weeramantry’s opinion in the Danube Case.
- **Judgment:** The court's monist approach relied on international law concepts to discuss
sustainable development and influenced the judgment.

**Sirisena Cooray v Tissa Dias Dandaranaike 1999:**

- **Facts:** Referencing Article 22(1) of the UDHR, the case explored the applicability of
international human rights norms in Sri Lanka.
- **Judgment:** The court's dualist stance held that while the UDHR principles had ethical value,
they were not legally binding domestically.

**Leelawathie v Defence Minister (1965) 68 (NLR) 487:**

- **Facts:** The case involved the equality provision in the UDHR and its status in Sri Lankan law.
- **Judgment:** The court, following a dualist approach, ruled that the UDHR, while morally
authoritative, did not have legal binding force domestically.

**Nallaratnam Singarasa v AG S.C. Spl (LA) No 182/99 (September 2006):**

- **Facts:** Concerned with executing decisions of the Human Rights Committee regarding convicts'
release or retrial.
- **Judgment:** The court found that Sri Lanka's legal regime did not provide for such actions,
asserting that the state must act in accordance with its constitution.

**Weerawansa v AG (2000) 1 SLR 387:**

- **Facts:** Discussing the International Covenant on Civil and Political Rights (ICCPR) and its
implications on Sri Lanka's legal system.
- **Judgment:** The court emphasized the state's obligation to respect international law and treaty
obligations, adopting a monist approach.

UK and International Law:

**Monist Approach:**
- Applies to Principles of International Law and Customary International Law.
- Incorporates these principles directly into domestic law without the need for specific legislation.

**Dualist Approach:**
- Applied to Conventions.
- Treaties are not automatically incorporated into UK law and require specific domestic legislation for
incorporation.

**Key Legal Cases:**

1. **Thartara v Secretary of State for the Home Office**
- Establishment of the principle that treaties can be incorporated into or alter UK laws through
legislation.

2. **Trendtes Trading Corporation v Central Bank of Nigeria**

- Demonstrates the necessity of legislative action to give effect to treaties in UK law.

3. **JH Rayner v Department of Trade and Industry**

- Treaty incorporation requires parliamentary legislation.
4. **Miller v Secretary of State**
- Highlighted the importance of parliamentary involvement in major constitutional changes rather
than executive action alone.

5. **Maclyne Watson v D**

- Asserted that treaties are not self-executory and require legislative incorporation to become part of
English law.

6. **AG of Canada v AG of Ontario**

- Reinforced the principle that treaties are not automatically binding in English law without
parliamentary enactment.

7. **R v Secretary of State for the Home Department**

- Lord Denning emphasized that treaties have no legal effect until enacted into law by Parliament.

USA:

**Monistic Approach:**
- Applies to customary principles, which are directly applicable in domestic law.

**Dualistic Approach:**
- Implemented for treaties, where ratification by the president may not be sufficient for domestic legal
effect without approval from the Senate.

**Key Legal Cases:**

1. **Sei Fujii v State of California**
- UN Charter provisions were deemed non-self-executing by California courts due to lack of
certainty in creating justiciable rights.

2. **Madeleine v Texas**
- Application of non-self-executing treaty provisions in state courts.

3. **Hawaii v Hop**
- Further examples of non-self-executing treaty provisions in US legal contexts.

India and International Law:

**Approaches:**
- **Monistic Approach:** Applied to customary international law.
- **Dualist Approach:** Used for conventions.

**Key Legal Cases:**

1. **Krishna Sharma v State of West Bengal:**
- Illustrates the application of the dualist approach in India.
2. **Mirendra Bhahadur Pandi:**
- No further details provided.

3. **PUCL v Union of India:**

- No further details provided.

**Domestic Enforcement of International Law in India:**

- India follows the dualist approach alongside Transformation and Adoption.

- Constitutional provisions like Article 51 promote international peace, security, and respect for
international law.
- Executive provisions (Art. 53, 73, 77) and legislative provisions (Art. 245, 253) empower Parliament
to implement international agreements.

**International Law and Indian Judiciary:**

- Indian courts have dealt with various issues related to implementing customary and treaty rules.
- **State of West Bengal v Kelso Ram Industries:** India follows the doctrine of dualism,
requiring parliamentary legislation to make treaties binding.
- **Visaka v State of Rajasthan (1997):**
- Application of CEDAW convention in a landmark judgment on sexual harassment of women at
workplaces.
- Courts considered international conventions and norms when no inconsistency existed with
domestic law, enlarging the meaning and content of domestic law.
- **National Legal Services Authority v Union of India (2014):**
- Courts must give effect to Indian law in case of conflict with international law unless there's
contrary legislation.
- International conventions not inconsistent with fundamental rights must be read into relevant
articles of the Indian Constitution to enhance their meaning and scope.