Chapter 01: Introduction

It seems to be a fact that there has been a great increase in the number of specialized
international courts, raising, on the one hand, concerns as to whether such evolution will
benefit the international legal order and, reinforcing, on the other, the ongoing controversy on
several issues, such as the sources of International Law. It is evident, nowadays, that the core
of formal sources, namely treaties, custom and general principles of law, is being highly
contested by the emergence of new forms that could play the role of a formal source

Judicial decisions are one of the many elements which have long casted shadow on the
monopoly of the established formal sources. Therefore, in the next few pagesa short
presentation of the contradicting views on the legal status of judicial decisions, the existence
and the role of judicial precedent and the contribution of international judges to the promotion
of International Law will be provided. It should be noted that, since it is not possible to cover
all international courts and tribunals, the International Court of Justice (ICJ) will be the point
of references it is regarded as the most influential forum which is likely to affect the nature and
evolution of general Public International Law1

Article 38 (1) (d) of the statue the court puts “judicial decisions……as subsidiary men for the
determination of rule of law”, which invariably refers to international judicial decisions state
judicial decision and decisions of international arbitral tribunals. They are called “subsidiary
means” because in the normal conduct of international relation, it is the state practice which
creates the rule and which is the primary means of determination of those rules. Although in
theory, the decision do not constitute the formal source of law, but in practice, they play a larger
part in the development of international law, particularly when the state practice is ambiguous,
non-existent, sparse or contradictory, the court gets involved in determining the rule of law to
decide a legal issue and in the process creates new rule. In such a situation, the court applies
existing rules either directly or by analogy. More extensive is the analogy drawn, the more
creative the court’s role becomes, and in spite of the view that judges do not make law but only
applies the existing principals, the decisions reached by the court of immense value and in
those case where there is no pre-existing rule, they will be a direct source of law 2

1
https://www.academia.edu/6421144/Judicial_Decisions_What_kind_of_Source_of_International_Law
accessed on 28’th June 2017
2
S.K VERMA, AN INTRODUCTION TO Public international law

1
Chapter 02:Sources of international law3

There are following sources of international

(1) Customs – custom has played a significant part in binding the present fabric of the
international legal system. Though its importance has lessened in the modern time due
to incising use of treaties and conventions as a law-creating method, but it still remains
a vital source of international law.

Customary law is not a written source. A rule of customary law, e.g., requiring States to
grant immunity to a visiting Head of State, is said to have two elements. First, there must
be widespread and consistent State practice – i.e. States must, in general, have a practice of
according immunity to a visiting Head of State. Secondly, there has to be what is called
“opiniojuris”, usually translated as “a belief in legal obligation; i.e. States must accord
immunity because they believe they have a legal duty to do so.4

(2) Treaties- Treaties (sometimes called agreements, conventions, and exchanges of

notes or protocols) between States – or sometimes between States and international
organizations – are the other main source of law

The growing interdependence of nation and quick change in international relation make it
imperative to develop international law to keep peace with the need of modern international
society. This can be done only through treaties and not by the slow process of custom. In
international society, where there is no equivalent to state legislations, the treaties and the
closest to it, though not as prefect. The first constructive step developing the law through
treaties was the declaration of congress of paries in1884, in favour of freedom of navigation oi
on International River followed by the declaration of paries in 1856 on the law of maritime
welfare. ‘The frequency of adopting treaties incised steadily thereafter. The importance of
treaties is self-evident, as under article 38 (1) (a) of the state of international court of justice,
treaties have been put as the first recourse which the court is directed to resort in the settlement
of a dispute between the parties. In the soviet theory also, the main source of international law
were international treaties and international custom, of which the former is the most important

3
S.K VERMA, AN INTRODUCTION TO Public international law 26 ( SATYAM LAW INTERNATIONAL ,2 nd edn,
2014).
4
http://legal.un.org/avl/pdf/ls/greenwood_outline.pdf accessed on 28’th June 2017

2
(3) General principle of recognised by civilised nation- the “term general
principles of law recognised by civilised nations” in Article. 38(1) (C) of the statute of
the international court of justice is very wide and vague. It included, through not
confined to, the principals of private law administered by municipal court, as applicable
to international relations. The private law principles, however, are not imported “lock,
stock and barrel” in the international law but, as judge Mc Nair has observed, “the true
view of the duty of international tribunals in this matter is to regard any features of any
terminology which are reminiscent of the rules and institutions of private law as an
indication of policy and principles rather than as directly importing these rules and
institutions” .the phrase applies to fundamental principles of justices which have been
accepted and adopted by civilised nationals generally. The court can have recourse to
this source if there is no convention or any clear rule of customary law in case before
it. This is also considered necessary to avoid any situation of non-liquet, i.e., the
possibility that a court or tribunals would be unable to decide a case because of a “gap”
in the law an international judicial body is under a duty to adjudicate and should not
refrain from giving judgment on the ground that the law is silent or obscure

(4) Judicial decision - Article 38(1) (d) of the Statute of the Court puts "judicial
decisions ..... As subsidiary means for the determination of rules of law", which
invariably refers to international judicial decisions, State judicial decisions and
decisions of international arbitral tribunals. They are called "subsidiary means" because
in the normal conduct of international relations, it is the State practice which creates
the rules and which is the primary means of determination of those rules. Although in
theory, the decisions do not constitute the formal source of law, but in practice, they
play a larger part in the development of international law, particularly when the State
practice is either ambiguous, non-existent, sparse or contradictory, the Court gets
involved in determining the rules of law to decide a legal issue and in the process
creates new rules. In such a situation, the Court applies existing rules either directly or
by analogy. More extensive is the analogy drawn, the more creative the Court's role
becomes, and in spite of the view that Judges do not make law but only apply the
existing principles, the decisions reached by the Court are of immense value and in
those cases where there is no pre-existing rule, they will be a direct source of law.

3
 (5) Juristic works on international law- Eminent works of jurists often become
instrumental in development of international customs but they are not as such source of
International Law. Justice Gray noted; "Where there is no treaty, no controlling
executive or legislative act or judicial decision; resort must be had to the works of
jurists."5

(6) General assembly resolution and deceleration- Article 38 of the Court's

Statute does not list the determinations or decisions of the international organisations
among its sources' though they are increasingly becoming important in the development
of international law. The General Assembly has adopted numerous resolutions since its
inception on areas as wide as from human rights to consumer's rights,110 Though they
are not legally binding per se, but can spell out, and to some extent, elaborate existing
customary rules or contribute to the rapid formation of new ones. In this sense, they
have great evidentiary value and proved to be very valuable when it comes to the
interpretation of the provisions of the Charter or developing a new law for areas made
accessible by modern science and technology, such as outer space or deep sea- bed. The
resolutions dealing with the internal functioning of an organisation are generally
binding on the States and the organisation with full legal effect. The resolution
concerning the limits of the jurisdiction of the organisation has the law creating effect
for members’ states.

Chapter 03:Mainly judicial decision is described in two ways

(1) Decision of international tribunals

(2) Decision of municipal tribunals

5
http://www.sheir.org/juristic-works.html accessed on 29’th June 2017

4
Decision of international tribunals6
The only international judicial tribunal existing at present is the International Court of Justice
(ICJ) which succeeded, in 1946, the Permanent Court of International Justice (PCIJ), created
in 1921. The Statute of the PCIJ was adopted by the ICJ. The PCIJ and ICJ together have
rendered many valuable decisions and advisory opinions which have enriched the international
jurisprudence.

Article 38(1) (d) of the Statute is subject to the provision of Art. 59 of the Statute
which provides that the "decision of the Court has no binding force except between the parties
and in respect of that particular case". This means that the judgments of the Court have no
precedential value. It also relegates the judicial decisions to the status of a "subsidiary means"
by imposing a limitation in the adoption of judgments, but in practice, the decisions of the
Court have attained the highest authority, even though they are only persuasive in nature. They
play a formidable part in the development of international law. This is quite evident from the
pleadings presented before the Court by State parties to a case where the decisions of the Court
are frequently referred. In the Aerial Incidents case7, which arose out of the shooting down of
an Israeli civil aircraft by a Bulgarian fighter aircraft when the aircraft strayed into the
Bulgarian air space, Israel relied heavily, in support of its claim, on the authority mainly drawn
from previous decisions of the PCIJ and ICJ in its written pleadings submitted before the Court.
T0he Court, however, did not decide the case for want of its jurisdiction.

Decision of municipal tribunals8

The decisions of municipals courts are relevant to international law in two ways. In the first
place, the decision manifest an insight into the attitude of various countries towards a particular
rule of international law, and how it is applies and interpreted by municipal courts. The
decisions may have the strong evidentiary value before an international tribunal, relating to the
existence and scope of a particular rule, which in the development of a new rule. Further, when
the existing authorities are few, or evidence in favour of a particular rule is uncertain or
ambiguous, the role of municipal decisions becomes more significant. But in the performance

6
S.K VERMA, AN INTRODUCTION TO Public international law 46 ( SATYAM LAW INTERNATIONAL ,2 nd edn,
2014)
7
(1959) CJ Rep., p. 127.

8
S.K VERMA, AN INTRODUCTION TO Public international law 48 ( SATYAM LAW INTERNATIONAL ,2 nd edn, 2014

5
of this function, the court's "standing" and the "intrinsic merits" of the case are very vital.
Generally, decisions rendered by the United States Supreme Court and of British courts on
matters of international law have considerable weight. In Paquette Habana 9where two small
fishing boats were captured by the blocking forces of the United States during the American-
Spanish war, the United States Supreme Court laid down the rule relating to the exemption of
fishing boats from the application of the laws of war, i.e., they are absolved from being treated
as prize of the war. In the Scotia the Court's pronouncement helped in clarifying the nature of
customary rules relating to the prevention of collisions at sea. Similarly, the judgments of the
British Prize courts, particularly those rendered by Lord Stowell, helped in the formulation of
the laws of war, specifically relating to blockade.

In the second place, these decisions of municipal courts become relevant in the
emergence of a new customary rule. The concurrence of judicial decisions in fairly a large
number of countries is indicative of the uniformity in practice, which may lead to the
formulation of a new customary rule. In the S.S. Lotus case, the Court, while rejecting the
French contention that on the question of criminal jurisdiction in cases of collision on the high
seas, only the flag State is competent to exercise jurisdiction, referred to a number of municipal
decisions and found no uniformity on the matter. It observed that it was "hardly possible to see
in it an indication of the existence of the restrictive rule of international law which alone could
serve as a basis for the contention of the French Government". Thus, the judicial decisions are
important in influencing the State practice and in the determination of new rules. Their role
thus cannot be described merely as subsidiary but of great significance in the absence of any
centralised legislative body under international law.

9 (1900) 175 US 677; the rule of immunity of foreign public ships from the jurisdiction of the territorial State was laid down
.in Schooner Exchange (1812).

6
Chapter 04:Juristic opinion as a source of international law

There are a variety of ways one can measure the growing importance of international law
scholarship. One metric that I have never seen such type of discussion in international law the
velocity of graph is tremendously increasing: how often has the term “international law” been
used in academic scholarship? Using Westlaw’s JLR library I calculated how often
“international law” was referenced from 1987 to 2011. The results are impressive. Twenty-five
years ago there were only 706 articles that included that term, compared with 4,300 today.
That’s an annual growth rate of 7.5 percent. At that pace, in ten years there will be over 8,800
references to international law and over 26,000 references in a quarter century.10

Fig: Growth of international law with passage of the time

10
http://opiniojuris.org/2013/01/08/the-growth-of-international-law-scholarship/ accessed on 29’th June
2017

7
By the analysis of this graph we can simply say that by the passage of time our international
law instantaneously incising. Why our international law grows day by day? The reason is that
due to changing the environmental condition so there is a requirement of environmental law to
protect our environment. I am trying to clarify this analysis by the help of this data. In 1987
only 706 articles were available to regulate the international law this means that during that
period only few problems were arises at international level. But by the passage of time new
type of problem arises at international level to overcome such type of problem we have to
require more and more law. After the journey of 25 years we have made 4,300 laws only to
overcome the situation at international law. After the calculation of growth rate of international
law we got that 7.5% annually. These rates indicate that growth rate is too much higher than
our municipal law. Suppose that in space there is no any law available to regulate in space is
any dispute arises in future. We have to require space law to overcome the situation in space.
This also a supportive reason for the growth of international law.

Chapter 05:Comparative graph for international law

Fig: Comparative data of international law municipal law

The graph does show an increase in the use of international law in books over the last 25 years.
However, this recent increase comes after a significant decrease that began around the mid-

8
1960s. Moreover, according to Google, this graph reflects that that the growth of international
law is more than our municipal law

Chapter 06: juristic works11

Juristic works are not an independent 'source' of law, although sometimes juristic opinion does
lead to the formation of international law. According to the report of one expert body to the
League of Nations, juristic opinion is only important as a means of throwing light on the rules
of international law and rendering their formation easier. It is of no authority in itself, although
it may become so if subsequently embodied in customary rules of international law; this is due
to the action of states or other agencies for the formation of custom, and not to any force which
juristic opinion possesses

Article 38 of the Statute of the International Court of Justice directs the Court to apply 'the
teachings of the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law'. This provision emphasises the evidentiary value of
juristic works. No doubt the principal function of juristic works is to furnish reliable evidence
of the law. Jurists have been largely responsible for deducing customary rules from a
coincidence or cumulation of similar usages or practices, and to this extent, they perform an
Indispensable service. The evidentiary function of juristic works has been well described by
Gray J20 of the United States Supreme Court:

‘……Where there is no treaty, and no controlling executive or legislative act or judicial

decision, resort must be had to the customs and usages of civilised nations, and as evidence of
these, to the works of jurists and commentators who by years of labour, research, and
experience have made themselves peculiarly well acquainted with the subjects of which they
treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors
concerning what the law ought to be, but for trustworthy evidence of what the law really is.’

11I.A SHEARER,STARKS INTERNATIONAL LAW page no. 44 (SOUTH ASIAN EDITION, ELEVENTH EDITION)
OXFORD INTERNATIONAL STUDENTS EDITION. 2016

9
Chapter 07:Cases based on judicial decision as a source of international law

(1) The Case of the S.S. Lotus (France v. Turkey)12

(2) The Paquette Habana case13
(3) The North Sea Continental Shelf Cases14

S.S. Lotus (France v. Turkey)

Fact of the case15

A collision occurred shortly before midnight on the 2nd of August 1926 between the French
(P) mail steamer Lotus and the Turkish (D) collier Boz-Kourt. The French mail steamer was
captained by a French citizen by the name Demons while the Turkish collier Boz-Kourt was
captained by Hassan Bey. The Turks lost eight men after their ship cut into two and sank as a
result of the collision.

Although the Lotus did all it could do within its power to help the ship wrecked persons, it
continued on its course to Constantinople, where it arrived on August 3. On the 5th of August,
Lieutenant Demons was asked by the Turkish (D) authority to go ashore to give evidence. After
Demons was examined, he was placed under arrest without informing the French (P) Consul-
General and Hassan Bey. Demons were convicted by the Turkish (D) courts for negligence
conduct in allowing the accident to occur.

This basis was contended by Demons on the ground that the court lacked jurisdiction over him.
With this, both countries agreed to submit to the Permanent Court of International Justice, the
question of whether the exercise of Turkish (D) criminal jurisdiction over Demons for an
incident that occurred on the high seas contravened international law.

Issue before the court

12
P.C.I.J. (ser. A) No. 10 (1927)
13
175 U.S. 677 (1900)
14
(1969) ICJ Rep 3
15
http://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-
2/the-case-of-the-s-s-lotus-france-v-turkey/2/ accessed on 30’th June 2017

10
Does a rule of international law which prohibits a state from exercising criminal jurisdiction
over a foreign national who commits acts outside of the state’s national jurisdiction exist?

Important discussion before the court

In 1975, France enacted a law regarding its criminal jurisdiction over aliens because of this the
situation surrounding this case. The law stipulates that aliens who commit a crime outside the
territory of the Republic may be prosecuted and judged pursuant to French law, when the victim
is of French nationality. This is contained in 102 Journal Du Droit International 962 (Clunet
1975). Several eminent scholars have criticized the holding in this case for seeming to imply
that international law permits all that it does not forbid.

Court held that

A rule of international law, which prohibits a state from exercising criminal jurisdiction over a
foreign national who commits acts outside of the state’s national jurisdiction, does not exist.
Failing the existence of a permissive rule to the contrary is the first and foremost restriction
imposed by international law on a state and it may not exercise its power in any form in the
territory of another state.

This does not imply that international law prohibits a state from exercising jurisdiction in its
own territory, in respect of any case that relates to acts that have taken place abroad which it
cannot rely on some permissive rule of international law. In this situation, it is impossible to
hold that there is a rule of international law that prohibits Turkey (D) from prosecuting Demons
because he was aboard a French ship. This stems from the fact that the effects of the alleged
offense occurred on a Turkish vessel.

Hence, both states here may exercise concurrent jurisdiction over this matter because there is
no rule of international law in regards to collision cases to the effect that criminal proceedings
are exclusively within the jurisdiction of the state whose flag is flown.

The Paquette Habana case

Fact of the case

11
This appeal of a district court decree, which condemned two fishing vessels and their cargoes
as prizes of war, was brought by the owners (D) of two separate fishing vessels. Each of the
vessels running in and out of Havana and sailing under the Spanish flag was a fishing smack
which regularly engaged in fishing on the coast of Cuba. Inside the vessels were fresh fish
which the crew had caught.

The owners of the vessels were not aware of the existence of a war until they were stopped by
U.S. (P) squadron. No incriminating materials like arms were found on the fishermen and they
did not make any attempt to run the blockade after learning of its existence not did they resist
their arrest. When the owners (D) appealed, they argued that both customary international law
and writings of leading international scholars recognized an exemption from seizure at wartime
of coastal fishing vessels.

Issue before the court

Are coastal fishing vessels with their cargoes and crews excluded from prizes of war?

Important discussion before the court

The U.S Supreme Court found that there was no specific U.S law defining a price of war
however the court stated that customary international law made fishing vessels exempted from
being taken as price of war. There are number of factor that will determine if something is
customary international law in this case the court found that:-

(1) There was a state practice by an number of different countries that commercial fishing
vessels are exempted
(2) There was repetition of this practice over a period of a time

Court held that 16

Yes. Coastal fishing vessels with their cargoes and crews are excluded from prizes of war. The
doctrine that exempts coastal fishermen with their vessels and crews from capture as prizes of
war has been known by the U.S. (P) from the time of the War of Independence and has been
recognized explicitly by the French and British governments. It is an established rule of
international law that coastal fishing vessels with their equipment and supplies, cargoes and

16
http://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-
damrosche/chapter-10/the-paquete-habana/2/ accessed on 1’st July 2017

12
crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fish
are exempt from capture as prizes of war. Reversed.

NORTH SEA CONTINENTAL SHELF CASES

Fact of the case

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle
(A-B and C-D). An agreement on further prolongation of the boundary proved difficult because
Denmark and Netherlands wanted this prolongation to take place based on the equidistance
principle (B-E and D-E) where as Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that due to its concave coastline,
such a line would result in her losing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the principles
and rules of international law applicable to this delimitation. In doing so, the Court had to

13
decide if the principles espoused by the parties were binding on the parties either through treaty
law or customary international law.17

Issue before the court

Is Germany under a legal obligation to accept the equidistance-special circumstances principle,

contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a
customary international law rule or on the basis of the Geneva Convention?

Important discussion before the court

There is a Geneva Convention related to the continental shelf. Denmark and Netherland are
party to the convention. And the particular provision of convention which was in the question
of Article – 6 of Geneva Convention Article- 6 stated that whenever there is dispute with regard
to acquiring the continental areas the equidistant principles are implemented. Method of
equidistant is that. Through this process of equidistant sometimes it happens that the small
country may acquire bigger area and bigger country may acquire smaller area. This was the
issue whether the Netherland and Denmark were able to acquire bigger area than Germany. At
the same time the problem was that Denmark and Netherland was a party to the Geneva
Convention. They can take the help of Article- 6 of the Geneva Convention for the purpose of
equidistant for acquiring the large area of the sea. Germany was not a party to the Geneva
Convention. That is why Germany was not ready to accept the method of equidistant principle.

Hence both the country Denmark and Netherlands approaches to international court of justice
for the discussion. And Germany was also Party to the case. And Germany represented its part

The Court’s Decision

The I.C.J has rejected the contention of Netherlands and Denmark. I.C.J said that since
Germany was not a party to the convention to which Netherland and Denmark were referring.
If a country is not a party we cannot any convention. It will be better in the place of equidistant

17
https://ruwanthikagunaratne.wordpress.com/2014/02/28/north-sea-continental-shelf-cases-summary/
accesses on 6’th July 2017

14
method just and equitable method of distribution of the area of North Sea should be
implemented.

After the judgment there was a negotiation of the country Germany, Netherland & Denmark.
Finally they accepted the just and equitable method of customary law. Where bigger
geographical area that country acquire bigger area.

Chapter 08:Whether judicial decision is binding upon the state?

We cannot simply say that judicial decision is binding upon all the state. No this is not true,
because it depends upon fact and circumstances of the case some of the state may accept the
judicial decision but some of the country may not accept. Because there is no international
authority available to enforce judicial decision as I have mention above case north i.e.
continental shelf case in this Germany, Netherlands & Denmark are ready to accept the judicial
decision.

Why all the states are not binding to follow judicial decision?

According to the john Austin law “properly so called” is the command of the sovereign backed
by a superior political authority, that is, it is the edict issued from a determinate sovereign
legislative authority, which must be backed by the authority of the state. Austin called such
commands as “positive law” which he regarded as the “appropriate matter of jurisprudence”.
A sovereign was defined as a person who received the habitual obedience of the members of
an independent political society and who did not owe such obedience to anybody. If the
concerned rules were not issued by the sovereign authority, then they cannot be legal rules.
According to this test, rules of international law do not qualify as a rules of “positive law”.
Austin categorised them as “laws improperly so called”. He tried to adjudge international law
against the municipal law and did not find international law of the same order As a municipal
law. There is a total absence of sovereign political authority over and above the state to enforce
the rules of international law. Further, in his opinion, there are three parties to a legal right:
the person entitled, the person bound, and the arbiter due to the inability of international law to
satisfy this test, Austin described international law as “positive international morality” which
consists of “opinions of sentiments current among nations generally”. It is analogous to the
rules binding the members of a club or society others protagonists of this view were Bentham.

15
Hobbes and Pufendorf who also questioned the legal character of international law and termed
it as merely moral ethical rules. 18

CONCLUSION
After going through the above discussion, I would like to conclude my topic as:-

As we know that there is no legislature and executive organ at international law. Where there
is no treaty, and no controlling executive or legislative act or judicial decision, resort must be
had to custom and usages of civilised nations, and as evidence of these, to the works of jurists
and commentators who by years of labour, research and experience have made themselves
peculiarly well acquainted with the subject of which they treat such works are resorted to by
judicial tribunals, not for the speculation of their authors concerning what law ought to be, but
for trustworthy evidence of what the law is really.

I am of opinion that the passage of time will add weight to the authority of juristic opinion,
particularly if generally relied upon, or if no principles contrary to such opinion become
established. To the extant, juristic work may acquire a kind of prescriptive authority. However,
the labour of international law commission and the various multilateral conventions adopted as
a consequence of such labour since its inception have shown hoe caution one must be in
accepting as conclusive evidence of generally recognised customary rule, even an established
consensus omnium among jurists

But all the states are not accepted the judicial decision. Because each and every state follow
treaties, convention & judicial decision according to his own convenience because all the
judicial decision may not suitable for all the state. Judicial decision may vary fact and
circumstances, judicial decision may not be appropriate to another geographical area but more
and country follow judicial decision. That is why we can say that judicial decision serving as
an effective source of international law.

18
S.K VERMA, AN INTRODUCTION TO Public international law 5 ( SATYAM LAW INTERNATIONAL ,2 nd edn, 2014

16
17