~

UNIT 2 WHERE DO WE FIND

INTERNATIONAL LAW? HOW
IS IT MADE AND HOW DOES
IT FUNCTION?
Structure
2.1 Introduction
2.2 Objectives.
· 2.3 What are the Basic Concepts ofInternational Law?
2.4 What are the Sources of International Law?
o

2.5 What is the Meaning of Treaty Making and its Adoption?

-v-,

2.6 What is Customary International Law?

· 2.7 What are General Principles of Law?
2.8 Summary
2.9 ' Terminal Questions'
2.10 Answers and Hints
2.11 Glossary
2.12 References and Suggested Readings

2.1 INTRODUCTION
In this unit, we shall discuss about international law. International law has an important
significance,especiallyin the life of nations,and internationalinstitutions.Even individuals
· are not left untouched by international law. Recent advances in science, technology
and industry have brought to the fore one important fact- that no nation, howsoever,
big or small, can afford to lead an isolated life.

In view of this, we would try to understand the definition of international law. Some
basic concepts of international law, like the meaning of the term 'sanctions' in
international law, the subjects of international law, and the meaning of some terms
closely resembling international law.

Then, we ~ould discuss about the sources of international law. The role of international
agreements, treaties, accords, Covenants, Charters, Statute, practices of nations
would be examined. Can we find international law in principles of law which are
common to many legal systems? Treaty making and its adoption has become an
important method of international law making. We will learn in this unit the process
of making treaties and the effect of signature and adoption etc.

Customary International law and General Principles of law are also other very
important sources of law. The practices of nations, whether at a local or regional or
international level, matter a lot in the formation of international law. General principles
of law, like the principle that if a matter has been finally settled by the competent

20
authority, it should be not agitated again and othrt similar principles play an important Where do We Find
International Law?
role in the making of international law. We shallleam the sources oflntrrnationallaw
How is it made and
and its functions in more details in this unit too. How does it Function?

2.2 OBJECTIVES
After reading this unit, you should be able to:

• know the basic concepts of international law;

• describe the sources of international law;

• discuss the process of treaty making and its signature and adoption; and

• . know customary international law and general principles oflaw.

2.3 WHAT ARE THE BASIC CONCEPTS OF

INTERNATIONAL LAW?
We will learn some basic concepts of international law here. You would ask the
question 'what can be understood by the term international law?' International law
is that branch of law which concerns itself primarily with the conduct of nations and
international organizations, and in some cases with the conduct of individuals. You are
aware that there are hundreds of international organizations working all over the
world, like Asian-African Legal Consultative Organization, International Committee
of the Red Cross etc. National law concerns primarily with the conduct of individuals.
So, the law made in India would apply primarily to the conduct of individuals in
India.

Further, you would ask the question 'is there any analogy between national and
international law?' National law is dependent upon several basic factors, like existence
of a recognized body to enact or make law, a hierarchy of courts with compulsory
jurisdiction to settle disputes and an accepted system of enforcing those laws. So,
the legislature, executive and judiciary are necessary elements of domestic legal
order. However, you can not draw an analogy between domestic legal order and
international legal order. International law is not a product of international legislature,
because there is no international legislature as such. There is no hierarchy of courts
over there. You might have heard the existence of International Court of Justice
located at The Hague, but it decides a case only when both sides to dispute consent.
The Court cannot also ensure the compliance of its decisions. It means that there is .
no international executive.

International law is mainly made up of treaties, international agreements, Charter

which creates rules binding on signatory countries. It is also composed of international
customary practices, which are basically practices of the countries recognized by the
international community as laying down pattern of binding conduct. So, the legislative
activity is not centralized, rather it is decentralized. It is the countries which make
international law. They are the legislature, and they are the executive. There is although
not a hierarchy of Courts in international legal order, yet countries can decide the
name of judicial forum to resolve their dispute and it could be resolved by the
application of international law. The question of 'sanctions' comes here.

21
What is Law? What is Sanction means coercive 'element in law. Is there any coercion in international law?
International Law?
Although unilateral use of force in international law is generally not allowed, yet there
are rules of international law which are in the nature of coercion. For example, the
United Nations can take coercive measures in several circumstances. Further, the
judgment of International Court of Justice is binding on the parties to a dispute, even
if the judgment is not favorable to one party. Also, the rule that in the case of breach
of internationalrule oflaw by a country, that violating country has to give compensation
goes to show that the element of coercion is there. These days, individuals can also
be punished by the application of international law in some cases. Can it be said that
individual is also a subject of int~rnati~nal law?

The term 'subject of international law' means an entity which possesses international
personality. If' A' is the subject of international law, it'means that' Po: is an internatiohal
person in the eyes of international law. What is the status of 'Nation-States' in the
eyes of-international law? What is the status of 'international organizations' in
international-law? You can appreciate here the fact that Nation States do possess
international personality in the sense that these entities have been given rights, and
imposed duties and they possess the capacity to enforce the rights. Similar position
exists in the case of international organizations. This position was also made clear by
the International Court of Justice in the year of 1950 itself (Reparation for injuries
suffered in the services of United Nations case).

As far as the position of individual is concerned, there is a perceived change in the

status of individuals enjoyed before hundred years from today and now. After the
First World War, human civilization across the globe felt the need of protecting
human being from gross human rights violations which could threaten international
peace and order. Now, many international human rights agreements and treaties
accord individuals the capacity to move international institutions on their own. For
example, Optional Protocol to the International Covenant on Civil and Political
Rights, 1966provides individualswith the right to petition the Human Rights Committee
in case of violation of any of their civil and political rights by the Nation State. Similar
other treaties in the field of international human rights are there, like International
Convention on Elimination of All Forms of Racial Discrimination, 1966; International
Convention for Settlement ofInvestrnent Disputes, 1966; International Tribunal for
the Law of Sea, 1982; Convention on the Elimination of Discrimination Against
Women, 1979, Convention on the Rights of Child, 1990, Convention on the Rights
of Disabled, 2008 etc. All these examples would not show that individuals have
become a full fledged international person. In a limited sense only, you can say that
individuals enjoy international personality.

Some more terms need to be explained here to you because these terms are very
close and therefore may cause problems in understanding. For example, the terms
'global law', " 'foreign law', 'international law', and transnationallaw' are apparently
very close to each other in its meaning. Therefore, you should be able to distinguish
international law from either global law or foreign law or comparative law or
trahsnationallaw. The term 'globallaw' is commonly used as a loose reference to
> a mix of foreign: comparative, international and transnationallaw. Thus this term is
having wide meaning. 'Foreign law' typically refers to the internal law of States other
than our own. International law, in contrast, has traditionally been viewed as goveming
relations between States. But since the advent of non-State actors (e.g. international
institutions, terrorist groups, non-governmental international organizations) on the
international scene, it has been more aptly described as any form of law that is
22
 Where-do We Find
supranational. 'Comparative law' is more difficult to define. However, it can be said
International Law?
in simple words that the domain of comparative law does not differ much from that How is it made and
of foreign law. 'Transnationallaw' is used to designate an amalgam of legal relations How does it Function?
and instruments that, while involving private citizens directly,cross national boundaries.
Transnational contracting is a good example.

Self Assessment Question

1) What do you mean by the term International law? How it is different from
National law?

2.4 WHAT ARE THE SOURCES OF

INTERNATIONAL LAW?
It would be very meaningful to know about the sources of international law. Where
can you find international law? If you know the location of international law, then it
would be easy for you to apply it according to your wishes. If you do not know the
location or source/s of intemationallaw, it would be-rather difficultto apply international
law. So, the sources have a close linkage with the convenience in application of the
rules of international law. '

In this sub-unit, we would know the exact location or source of international in our
times. There are certain sources, which are called 'primary sources' and there are
others which are called 'subsidiary sources'. The primary sources are international
agreements or treaties, international customary practices, and general principles of
law recognized by civilized nations. Subsidiary sources are judicial decisions and the
teachings of the most highly qualified publicists of the various nations. These locations
of international law are recognized in Article 38 of the Statute of International Court
of Justice. As you know, International Court of Justice is the principal judicial organ
.of the United Nations.

Out of the several primary sources, treaties or international agreements are the most
important one. An international treaty is one of the modes to express the agreement
of States. The effect of a treaty in the formation of international law depends on the
nature of treaty concerned. Some treaties are agreed by a large number of countries
and thus create general norms or rules of universal nature. If a treaty is agreed by
more than two countries, it may be called 'multilateral treaty'. Such multilateral treaty
may create general norms or may lay down rules of universal nature. In that case,
these treaties would be directly called as source of international law for those countries
which have signed or adopted the treaty as also for other countries which are not
parties to it. You can give the example of the Charterofthe United Nations which
is having almost all countries of the world as the parties to it. This Charter which is
a treaty is a"direct source of international law. Other kind of treaties might be having J

limited number of parties or only two parties. A treaty, in which there are two
countries which have agreed, is called bilateral treaty. These treaties are having
23
What is Law? What is
limited scope and therefore these are not directly a source of international law. For
International Law?
those signatory countries only, these treaties would be binding.

International customary practices are the oldest source of international law. The
Statute of International Court of Justice lays down that such international custom
which are evidence of a general practice accepted as law may be source of international
law. So there are several conditions which are laid down in the Article to qualify a
practice as international custom. Thus the Statute contains broadly two requirements
for the existence of international custom, namely: first, there should be a sufficiently
uniform practice; and second, the belief that such a practice is obligatory. We would
discuss these two elements when we would separately discuss international custom.

The' general principles of law recognized by civilized nations' comprise the third
category of rules which the International Court of Justice must apply in accordance
with Article 38 of its Statute. The phrase' general principles of law recognized by
..civilized nations' means principles so general as to apply within all systems oflaw that
have achieved a comparable state of development. This is what the reference to
'civilized nations' implies. The principles oflaw are to be looked for in municipal law
to know whether these are accepted and recognized by many countries or not. Some
of the examples of those kinds of principles are: res judicata (a thing or matter
settled definitely by a final judgment of the court of competent jurisdiction should not
be reopened), estoppel (a claim must not be opposite to its previous act, attitude),
prescription (a claim to a right founded upon enjoyment of property) etc.

Out of the subsidiary sources of international law,judicial decisions can be of immense

importance. You might be surprised to know that Article 59 of the Statute of
International Court of Justice provides that the decisions of the Court has no binding
force except as between the parties and in respect of the case under consideration.
Does this mean that the decisions of the Court have no importance other than the
parties to the dispute? No, the decisions of the Court enjoy practically much
importance. The Court tries to follow its previous judgments and to insert a measure
of certainty within the process. Thus, while the doctrine of precedent as it is known
in the common law, whereby the rulings of certain courts must be followed by other
courts, does not exist in international law, one still finds that countries in disputes
quote judgments of international courts as authoritative decisions. The Interriational
Court of Justice also gives great importance to its own earlierjudgments. For example,
the judgment of the Court in Anglo-Norwegian Fisheries case (1951) has been
given greatest respect.

Other subsidiary means is termed as 'the teachings of the most highly qualified
publicists of the various nations' . Academic writings have a useful role to play in
stimulating thought about the values and aims.of international law as well as pointing
out the defects that exist within the system, and making suggestions as to the future.
When countries present their claims before international courts, writings of the leading
juristic authorities are quoted as a source of international law. Similarly, national law
officials give their opinions to their governments on the basis·of the writings of the
leading jurists also. However, you should be clear that the importance of this source
is decreasing on account of the rise in volume of other sources, like treaties, international
custom, general principles of law, and judicial decisions.

24
 Where do We Find
Self Assessment Question International Law?
How is it made and
2) What are the main sources of International law? How does it Function?

2.5 WHAT IS THE MEANING OF TREATY

MAKING AND ITS ADOPTION?
You have seen earlier that treaties are the most important and modem source of
international law. Some important and well known examples of treaties are: Treaty
of Versailles, Nuclear Non-Proliferation Treaty, General Agreement on Trade and
Tariff (GATT), Geneva Conventions, Charter of the United Nations, Rome Statute,
and Optional Protocol to the Civil and Political Rights. The term 'treaty' is defined
as an agreement whereby two or more countries/international organisations establish
or seek to establish relationship between them governed by international law. The
object of the treaty is to impose binding obligations on the countries which are parties
to it. The derivation of the rule of binding obligation is from a legal maxim 'pacta sunt
servanda' which means that obligations taken up by the parties to an international
treaty must be observed in good faith. Countries all over the world enter into treaty
relationship everyday. Several thousands of treaties are in force now. -'.
In the making
of the treaties, the role of free consent of the parties to-the treaty is of vital importance.

It is one of the principles of treaties that the consent of a country to be bound by

a treaty should be 'free'. If the consent of a country has been obtained by fraud, or
by corruption of a representative of a country, or by coercion of a country or under
a mistake, the treaty in question shall not be binding on the parties. Presence of
fraud, corruption, coercion, or mistake vitiates the binding character of the treaties.
Such treaties can not be source of international law. Thus, many basic principles
should be adhered to by the parties when they are contemplating the negotiation of
the treaties.

Negotiation is the first step in the making of treaty. In a bilateral treaty, both parties
negotiate the terms of the treaty. On each and every term, there is a lot of discussion.
It takes a long time to finalize the terms of the treaty. When the terms of 'the treaty
are successfully negotiated and finalized, then the next step is adoption of the text of
the treaty by the parties. The parties, while adopting, confirm that the text of the
treaty is final and would become binding by their signature and exchange of instruments
(treaties) and in some specified cases, by ratification. These are further third, fourth
and fifth steps in the making of treaty.

In a multilateral treaty, the representatives of the country begin the treaty process
with preliminary negotiations through an international conference. Maritime nations of
the world first met at an international conference in 1974, for example, to develop
an International Law of the Sea. Their initial discussions continued for the next eight
years. In the international conference, the representatives of the countries must possess
the authority letter to negotiate on behalf of their countries. Diplomats, ministers,
Head of State, Head of government of the countries do not require authority letter.
25
What is Law? What is But persons authorized by countries other than diplomats, ministers, Head of States,
International Law?
Head of Governments need to get a document called "full powers". This full power
instrument facilitates that conference developments would be acceptable to the
governments that will one day have to decide whether to ratify the final draft of the
treaty text negotiated by their representatives.

Once the text of a multilateral treaty is successfully negotiated, it needs to be adopted.

Adoption of the text of the treaty is a very important step in the making of treaty.
The adoption takes place by the consent of all the participating States. However, in
case of a treaty at an international conference, adoption of the text of treaty takes
place by the vote of two-thirds of the representatives of the countries present and
voting. The text of the treaty is regarded as authentic and definitive by signatures of
representati yes of the States. Till the adoption of the text of treaty, the participating
countries do not give their consent to be bound by the provisions of the treaty. Once
the text of the treaty is adopted, the next steps become important.

Consent to be bound by the provisions of the treaty may be given by 'signature',

'exchange of instruments', 'ratification', 'acceptance' or 'approval'. Where a treaty
is not subject to exchange, or ratification, a treaty comes into force on the signature
by the signature qf the representative of the State. If a treaty requires exchange or
ratification, the treaty comes into force after the completion of such .steps. Where a
treaty is subject to ratification, the signature only implies that the representatives have
agreed upon a text and are willing to accept it and refer it to Government which have
a competency either to approve it or reject it.

Ratification is an important step. When a treaty signed by the representatives of the

countries is confirmed by the countries, the act of confirmation is called ratification.
<The nation-parties become bound by the treaties after ratification. Ratification is an
internal procedure determined by the intemallaws and usage of each country. In
India, the President ratifies the treaty on the advice ofthe Union Cabinet. Thus, this
act of ratification is an executive act in India. But in the United States of America,
a treaty must be ratified by the President with the advice and consent of the Senate,
which is the upper House of federal legislature.

Accession is the traditional method by which a country which is not a signatory to

the treaty becomes party to it. This step is not a mandatory step in the process of
treaty making. However, this facility is generally provided for in the text of the treaty
so that apart from original signatory countries, other countries may become the
parties. It depends upon the presence of the conditions of accession into the text of
the treaty. Ifa treaty contains no provision concerning accession, a country may only
accede with the consent of all the countries parties to the treaty. When a country
becomes a party through accession, ratification is not required. Normally, accession.
is open only in multilateral treaties.

The last important step in the making of the treaty is called 'provisions regarding
method of entry into force'. A treaty enters into force in accordance with the provisions
of the treaty. Some treaties enter into force immediately after the signature. But the
treaty in which ratification is necessary enters into force only after they have been
ratified by the prescribed number of parties to treaty. For example, the text of the
Nuclear Non-Proliferation Treaty is finalized and adopted. But it is not coming into
force because the-terms contained in the treaty for its entering into force are still not
satisfied.

26
 Where do We Find
2.6 WHAT IS CUSTOMARY INTERNATIONAL . ":; International Law?
How is it made and
LAW?" How does it Function?

It is very useful to understand the role of customary international law, especially in

the context of international humanitarian law, as a source material for the application
of international law. For example, non-disclosure of information relating to the work
of International Committee of Red Cross (ICRC) in the possession of an ICRC
employee is a customary practice recognized by international law. You have already
understood the essential components, of international custom in the preceding sub
unit. The first essential requirement for a custom is the presence of a practice. The
actual practice engaged in by the countries has to be examined first. While examining
actual practice of the countries-the duration, consistency, uniformity and generality
have also to be seen. As far as the duration is concerned, there.is no rigid time
element for a practice to be observed. Some practices take much time to mature into
custom, while some others take less time. For example, the practice of delimiting
exclusive economic zone (EEZ) as a maritime belt became a custom in a very short
span of time.

Regarding consistency and uniformity, you should know that a practice must be
consistently and uniformly observed. In order to deduce the existence of'customary
rules, it is important that the conduct of countries should in general, be consistent with
such rules. Instances of conduct of countries inconsistent with a given rule should
generally be treated as breaches of that rule and not as indication of the recognition '
of a new rule. For example, the practice of non-intervention in the internal affairs of
a country has been consistently observed. If not observed, it does not indicate
recognition of a new rule; rather it is treated as a breach of the practice.

Complete uniformity of practice is also not required. However, there must be substantial
uniformity. For example, if small fishing vessels pursue their calling honestly, there is
a substantial uniformity of practice that they are not captured by belligerent countries
in times of war. Such practice may be evident from the laws and practices of the
country, treaties, and writings of publicists and decisions of the court'.

Apart from consistency and uniformity, practice should be also repetitively followed]
by the countries. In other words, the practice must be generally followed by numerous
countries. When a customary practice is in dispute, 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 civilized country would.
repudiate it. It means that if a practice is observed only by a limited number of
countries, it would not transform into custom.

To prove a practice before the Court of law, you can obtain the evidence from a
number of sources about the factual materials, like duration, consistency, uniformity,
and generality. The obvious way to find out how countries are behaving is to read
the newspapers, consult historical records, listen to what governmental authorities are
saying and peruse the many official publications. There are also memoirs of various
past leaders; official manuals on legal questions, diplomatic interchanges and the
opinions of national legal advisors. All these methods are valuable in seeking to
determine actual practice of the countries.

Most important element in proving a custom before any international court is a

psychological element or mental element of practice. It is not enough that you prove
27
What is Law? What is the existence of practice, duration of practice, consistency, uniformity and generality
International Law?
of practice. You would have to prove further that while observing a particular practice,
the countries felt psychologically legally bound to follow the practice in such a way.
Thus, it becomes necessary to consider mental state of the country while observing
a practice. Is the practice of a country regarded as merely moral or political or legal
act? If the practice is regarded as merely moral or political act, then the practice
lacks the required mental element necessary to prove custom. But if the practice is
psychologically regarded as legally binding, then the practice fulfills the mental element
of custom.

For example, in the decided case of North Sea Continental Shelf Cases, it was
held by the International Court of Justice that the requisite psychological element in
the practice of delimiting continental shelves by adopting equidistance formula was
absent. Continental shelf is a part of the maritime zone of a country. Similarly, it was
again held by the court that the practice of abstaining from instituting criminal
proceedings by the country which citizens are killed in cases of maritime collisions
on high seas lacks the requisite mental element. This case is very famous and is
known as Lotus case. In that case, France alleged that there existed a rule of
customary law to the effect that the flag country of the accused (France) had exclusive
jurisdiction to try the persons charged with murder on the high seas and accordingly
the national state of the victim (Turkey) was barred from trying him. To justify this,
France referred to the absence of previous criminal prosecutions by such countries
in similar situations and from this deduced mental element in the practice which
therefore became a legal custom. However, the Court rejected French contentions.

Lastly, you must know that customary international law may be also regionalor even
local. Regional customs were recognized by the Court in the Asylum Case. In that
case, the International Court of Justice discussed the Colombian claim of a regional
custom of granting diplomatic asylum by unilaterally qualifying the nature of the
offence cominitted by the asylum seeker. Colombia claimed that this practice was
peculiar to the Latin American countries. Although Colombia could not prove this
practice before the Court, yet the Court recognized the possibility of regional custom.
It held that the party which seeks recognition of such custom must prove that the
custom is established in such a manner that it has become binding on the other party.
The court found that such a custom could not be proved because of uncertain and
contradictory evidence.

Local customs may also be successfully proved as a source of international law

before the court. In the Right of Passage over Indian Territory case, Portugal
claimed that there existed a right of passage over Indian territory as between the
Portuguese enclaves of Dadra and Nagar-Haveli. India objected to Portuguese
contentions and argued that no local custom could be established between only two
countries. But the Court rejected India's arguments and laid down a rule that if the
court was satisfied that there had in the past existed a constant and uniform practice
allowing free passage and that the practice was accepted as law by the parties, then
that local custom may be a source of international law.

2.7 WHAT ARE GENERAL PRINCIPLES OF

LAW?
Lawyers practicing international law usually disregard the vital furictions that general
principles of law may play in the decisions of international courts and tribunals. But
28
 Where do We Find
you must know that this is an important source of international law as recognized by
International Law?
Article 38 (1) (c) ofthe Statute of International Court ofJustice. Whenever Intemational How is it made and
Court of Justice decides a dispute, it may look up to this source if treaties or How does it Function?
customary practices are not applicable there. The Rome Statute establishing
International Criminal Court may also apply general principles oflaw derived by the
Court from national laws of legal systems of the world including, as appropriate, the
national laws of countries that would normally exercise jurisdiction over the crime,
provided that those principles are not inconsistent with this Statute and with intemational
law and internationally recognized norms and standards.

Areas in which general principles of law have been commonly applied are: rules of
procedure, evidence and the machinery of the judicial process. Examples of some
of the general principles of law recognized by civilized nations are: res judicata,
estoppel, prescription, principle of making reparations in case of violation of
international obligations, principle that no man would be a judge in his own cause,
equity principles, principle of pacta sunt servanda etc. The location of general
principles of law can be found in municipal legal systems. This basket of legal
systems of around 195 countries is very bulky. This source is therefore considered
to be as an inexhaustible reservoir of legal principles from which the tribunals can
enrich and develop international law.

How can you determine that a given principle of law recognized by one municipal
legal system would also be recognized by all nations? You do not have to bother that
much to see the legal systems and principles contained therein of all the legal systems
of the world. You may notice in due time that there are.certain common themes that
run through the majority of municipal legal systems. For example, Anglo-American
common law has influenced a number of countries throughout the world, as have the
French and Germanic systems. There are many common elements in the law of Latin
America, and most Afro-Asian countries have borrowed heavily from the European
experience in their efforts to modernize the structure administering the country. Those
common elements present in almost all municipal legal system could-be general
principles of law recognized by civilized nations. The term 'civilized nations' means
that if a country's legal system is modern and not tribal and it is a mature legal
system, it means the country is a civilized country for this purpose.

Let us see the application of some of these principles. In one case, the International
Court of Justice relied heavily upon the municipal law concept of the limited liability
company. The Court emphasized the relevance of rules of municipal law at intemational
level, particularly when there are no corresponding institutions of international law to
which the Court could resort. In another case, the principle of estoppel was applied.
The Court held that 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. Thailand's
claim before the Court against Cambodia was contradictory to its previous acts and
attitudes. The Court stopped Thailand to claim a relief not in accordance with its
earlier acts.

The principle of resjudicata was applied by International Criminal Tribunal for the
Former Yugoslavia (ICTY) in many cases. The Trial Chamber ofICTY dismissed,
in one case, the Motion for reconsideration of Application for Separate Trial filed by
an accused because the matter had already been adjudicated. Similarly, in another
case, the tribunal held that the rule of res judicata would not be applicable if the issue
of the nature of conflict in Bosnia and Herzegovina was not finally settled by the
highest court of the tribunal, namely the Appeals Chamber. 29
What is Law? What is Principles of equity are also applied by international courts as general principles of
International Law?
law. Equity principles are used to mitigate the rigors of written rules of law by the
application of the principle offaimess and reasonableness. For example, in the~ann
of Kutch Arbitration between India and Pakistan in 1968, the Arbitral Tribunal
agreed that principles of equity formed part of international law and that accordingly
the parties could rely on such principles in the presentation of their cases. The
International Court of Justice in North Sea Continental Shelf Cases directed a fmal
delimitation between the parties -West Germany, Holland and Denmark - 'in
accordance with equitable principles' .

2.8 SUMMARY
• In this unit, we discussed the basic concepts of international law, like definition,
distinction and analogies between national and international law, differences between
international law and other law closely resembling international law, the position of
countries, international organizations and individuals. These concepts would help.
you to understand further concepts of international law.

• ,We also discussed the various sources of international law, like treaties, conventions,
customary practices, general principles oflaw recognized by civilized nations,judicial
decisions, and teaching of highly qualified publicists. The relative importance of these
sources is useful to understand. Intrernationallaw in a holistic prespective knowing
about the sources means knowing about the places where you can find international
law.

• We further discussed the process of making international law. Treaty making is a

combined result oflong negotiations amongst parties, adoption of the text ofthe
treaty, signature by the representatives of countries, exchange of instruments. We
learnt the requirement of ratification in some cases of treaty making. We also
discussed the possibility of making of international law by actual practices of the
countries (international customary law). The effect of general principles oflaw in
making of international law has also been examined in this unit.

2.9 TERMINAL QUESTIONS

1) Can you defme international law? What are the basic concepts of international law?
Discuss.

2) Discuss the various sources of international law. Would you suggest that customary
intemationallaw is very tough to prove before a court?

3) How is a multilateral treaty agreed to and how does it come into force?

2.10 ANSWERS AND HINTS

Self Assessment Questions
1) Refer to Section 2.3

2) Refer to Section 2.4

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 Where do We Find
Terminal Questions
International Law?
How is it made and
1) Refer to Section 2.3 How does it Function?

2) Refer to Section 2.4

3) Refer to Section 2.5

2.11 GLOSSARY
Pacta sunt servanda: The obligations taken up by the parties to a treaty must
perform the obligations in good faith ..

Opinio juris Psychological element in the formation of customary

international law

Estoppel A party to a dispute would be stopped by the court to

make a claim before the court which is different from its
previous act or attitude.

Res judicata A matter finally settled by the court of final authority should
not be agitated again in the court of law.

Ratification It is a requirement to express the consent of the country

party to a treaty. It is an internal procedure of the country.

2.12 REFERENCES AND SUGGESTED

READINGS
1) Some multilateral treaties

2) Any judgment of International Court of Justice

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