Вы находитесь на странице: 1из 16



International Law for Public As Well As Authority1

The international Law is a law for every Nations. In others word Law of Nations.
International law is the name for the body of customary and treaty rules which are
considered legally binding by states in their intercourse with each other2.


Article 38(1) of the statutes of ICJ provides a reflection of the sources of international
law, though not accurate and Article 38 did not expressly mention sources' but it is
usually invoked as sources of international law3.

1. Custom
2. Judicial Decisions.
3. Writ of jurisdiction.
4. Equity.
5. Treaties
6. General principles of law recognized by the civilized nations

Custom is the original and the oldest source of International Law and a time it was the
most important amongst the sources. Custom is the foundation stone of the modern
international. It was so because a large part of International law consisted of
customary rules are referred to those rules which are practiced by most of the states, if
not by all, through age s way of habit.
Custom is referred to those habits which are regarded as binding upon the states.
Formation of a Customary Rules, It is a necessary condition for the creation of
customary rule that at least some state should initiate that a particular rule exist.

International law and human right/Agarwal, Dr. H.O/CL.P
International law and human right/ Dr. S.K Kapoor.

Customary rule therefore emerge only when it is proved by satisfactory evidence that
the alleged rule has been accepted generally by the state and it has been so established
as to be a legally binding On the other party. The party which relied on custom must
be proved that this custom is established in such a manner that, It has become binding
on the other party.

Judicial decisions are the success subsidiary mean for the determination of rule of law
and they therefore are the subsidiary and indirect source of international looked it is
so because the decision of this quote do not create any precedent. They have no
binding force expect to the party of a particular case. International Court of Justice at
present in the main International judicial Tribunal. Decision of the Municipal Court
according to Oppenheim Or not a source of law in the sense that they directly bind to
state form whose courts they emanate.4

Statute of International Court of Justice lay down that the teaching of the most highly
qualified publicists Of the various nation are the subsidiary mean for the
determination of rule of law. all the work are not two independent sources of law
something Jurist opinion does lead to the formation of international law. jurist
opinion very option through light on the role of International Law and their writing
make it easier to frame a particular rule the value of the jurist writing carry more
weight particularly in those field of international law of treaties or customary rule do
not exist. Writing of qualified jurist are very often cited in the decision of the court.5

Equity as a source of international law is used in the sense of the consideration of
fairness reasonableness and policy of the necessary for the sensible application of the
more settled rule of law it is of great importance in those field where rules are not

International law and human right/ Dr. S.K Kapoor.
International law and human right/ Dr. S.K Kapoor.

readily available the court in such case cannot refrain itself from rendering
judgement on the ground that law is silent in the absence of a specific legal rule it
must precede to decide in the context of general notions of justice and equity and to
deduced a new rule on their bases in the contest of surrounding rules because this
principle have a capacity to produce equitable results. Tribunal agreed that equity
form a part of international law and that accordingly the party could really on such
principle in the presentation of their cases.

At present, International treaties are the most important sources of international law
article 38 of the statute of the International Court of Justice lay down that the court
while deciding any dispute shall apply International Convention where the general
and particular establishing Rules Expressly recognize by the contesting state in
reference of other sources of international law treaties therefore have a acquired it
dominant important in international law.
Treaty such agreement or the sometimes referred to Convention, Protocol, Accord
etc. Law making treaties which create floor for most of the state it is to be noted that
there is no clear distinction between the two no doubt ordinary Treaty normally do
not establish rule of general law but they are off eminence importance most of the
rules on extradition have involved through the Conclusion of bilateral treaty6.


Para (1) (c) of article the statute of international court of the justice lists General
Principles of law recognized by civilized states as the third source of the international
In the modern period, it has important source. General principles helps international
law to adapt itself in accordance with the changing times and circumstances. Which
are found in domestic jurisprudence and can be applied to international legal
questions? It may note here that a general principles of law which is recognized by
domestic law of a large number of states does not automatically become a

International law and human right/ Dr. S.K Kapoor.

principles of international law.it becomes a principle of international law only when
it is recognized as such by the world court7.
Res judicata, estoppel etc. are examples of the general principles of law recognized
by civilized states.
International court have recognized as general principles
Good faith.
In the absence of any express provision to the contrary, every court has right to
determine the limits of its own jurisdiction.
A party to a dispute cannot himself be an arbitrator or judge.
Res judicata.
In any judicial proceeding the court shall give proper and equal opportunity of
hearing to both parties.
Doctrine of Estoppel.
The term "Estoppel," comes from an old-French word- "Estoupail" (or variation),
which means "stopper plug", referring to placing a brake on the imbalance of the
situation. The rationale behind estoppel is to prevent injustice owing to fraud or
In its simplest sense, doctrine of Estoppels, precludes a person from denying or to
negate anything to the contrary of that which has been constituted as truth, either
by his own actions, by his deeds or by his representations or by the acts of judicial
or legislative officers. Estoppel is often described as a rule of evidence as indeed
it may be so described. But the whole concept is more carefully viewed as a rule
of substantive law.
To invoke the doctrine of estoppels, there are three conditions which must be

7 International law and human right/ Dr. S.K Kapoor.



The Hindu temple was built mainly in the 11th and 12th centuries, by the same Khmer
civilization that built Angkor Wat. The Khmers dominated the region for five centuries.
As Cambodia has a tragic recent history of genocide and civil war, politicians often look
to the glorious distant past to inspire nationalist sentiment.
And Cambodian nationalists often use Thailand as a bogeyman to stoke nationalist favors
charting a litany of wrongs such as the successive Thai invasions that helped destroy the
once mighty Khmer empires and rendered the country defenseless against French
colonial conquest in the 19th Century.
Thailand also took advantage of the chaos during World War II to occupy large chunks of
western Cambodia, including the temples at Angkor Wat. It was forced to hand them
back when the war ended.
The Thai military often treated Cambodian refugees who fled the civil wars of the 1970s
and 80s harshly - and Thailand backed the remnants of the Khmer Rouge in their struggle
against the Vietnamese occupation, so helping prolong the civil war.
On the Thai side, the Khmer civilization profoundly influenced Thai culture, and there
are many famous Khmer-style temples in Thailand. In recent years, a powerful nationalist
lobby allied to the military has helped drive a more muscular foreign policy agenda in


The Temple of Preah Vihear is an ancient shrine situated on the borders of Thailand and
Cambodia. The temple and the grounds are of considerable artistic and archaeological
interest, and are potentially important militarily. The natural boundary between the two
Countries in this region is formed by the high Dangrek Range, which in the area of Preah
Vihear, rises abruptly out of the Cambodian Plain forming a cliff-like escarpment from
which the land then descends to the north into Thailand. The temple is situated on a
Promontory at the edge of the escarpment overlooking the Cambodian
Plain to South.
The watershed line at Preah Vihear followed the edge of the escarpment, with the natural
result geographically of enclosing the temple within Thailand. Deviated from the
watershed line at Preah Vihear so that the temple was shown as being in Cambodia
which, until 1953. The Hindu temple was awarded to Cambodia by a 1962 ruling at the
international court of justice, which both countries accepted at the time. Thailand does
not officially claim ownership of the temple - the dispute is over the area surrounding it.
Thailand says the ICJ ruling did not rule on the border, only on the temple itself.
The geography of the area makes sovereignty a particularly complicated issue. The
temple is perched on top of a cliff, hundreds of feet above the Cambodian jungle. It has
direct transport links to Thai towns and cities, and tourists can visit the temple from
Thailand without the need for visas.
In fact, until 2003 access from Cambodian territory was possible only via a gruelling hike
through jungle and mountains. In 2003 a road opened connecting a Cambodian town to
the temple. The ICJ granted the temple to Cambodia in 1962, but the decision rankled
Thailand. The dispute was largely moribund for decades as Cambodia plunged into a civil
conflict that lingered until the 1990s.
The issue escalated again when Cambodia applied for it be listed as a Unesco World
Heritage site in 2008. Thailand wanted it to be a joint Thai-Cambodia listing, but
eventually withdrew its objection. The decision enraged Thai nationalists and both sides
began a build-up of troops in the area.10


Distinction between occupation and subjection the distinction between occupation and
subtraction is that in subjugation the state subjugates was previously under is sovereignty
of another country. Where as in the case of occupation No Country exercised sovereignty
over it previously.
Prescription- yet another mode of acquiring territory is prescription. if state exercise
control and establishes occupation over a particular territory for a long time and does
exercise de facto sovereignty over it 10 day territory consult become a part of the state
title by prescription.( i.e. acquisitive prescription)Is the result of peaceable exercise of
defective sovereignty for a very long period over a territory subject to the sovereignty of
other and this may be as the consequence of in memorial exercise of such sovereignty
(For such a period of time as in effect of extinguish memories of the exercise of
sovereignty by a predecessor )is the result of lengthy adverse possession only. A state
may be acquired some territory buys prescription only when some condition are fulfilled
this condition are:-

1. Instead may be acquired some territory by prescription only when it has not
expected the sovereignty of any other state over the said territory.
2. Position should be Peaceful and uninterrupted.
3. Position should be in public.
4. Position should be 4 definite period. it may be however be noted that in the
presence of some Treaty or convention territory cannot be acquired by
prescription through administrative at only. The case concerning the temple
preah vihear temple.(Cambodia vs Thailand) deserve a special mention in this

The excavation temple of Archaeological interest in A sides show that the area is under
the sovereignty of a excavations for the 10 year. It is simply administrative at which
cannot deprive a claim of sovereignty over the area in the absence of sign of effective
occupation. defect of about the problem resemble those of the case consulting the temple

International law and human right/ Dr. S.K Kapoor.

of preah vihear Cambodia vs Thailand in this case Cambodia contended that Thailand
occupied a piece of its territory surrounding. The temple of preah vihear, A
place pilgrims and worship of Cambodians. Cambodia therefore requested the court to
declare the territory sovereignty over the temple belong to it and Thailand was under
obligation to be true the arms detachments stationed. There since 1954.The code held at
the temple was situated on Cambodia territory and that Island was under obligation to
withdraw any military and Police Force station there and to restore any objects removed
from the ruins since 1954.

The court held that nearly that of local administrative authorities in the certain dispute
areas than not negative of negative a consistent attitude or Thailand to regards valid a
certain frontier line according to which the sovereignty of Cambodia.12

International law and human right/ Dr. S.K Kapoor.


In its Judgment the Court noted that, in invoking the jurisdiction Of the Court, Cambodia
had based own acceptance of the compulsory Jurisdiction of the Court and of a
declaration made by Thailand on 20 May 1950 which was in the following terms:
I have now the honor to inform you has his Majesty's Government hereby renew the
declaration above Mentioned for a further period of ten years as from May 3,1950, with
the limits and subject to the same conditions and reservations as set forth in the first
declaration of Sept. 20, 1929.
"Thailand had raised a first preliminary objection on the Ground that that declaration did
not constitute a valid acceptance on her part of the compulsory jurisdiction of the Court.
She in no way denied that she had fully intended to accept the Compulsory jurisdiction
but, according to her argument, she Had drafted her declaration in terms revealed by the
decision Of the Court of 26 May 1959 in the case concerning the Aerial Incident of 27
July 1955 (Israel v. Bulgaria) to have been Ineffectual.
Article 36 of the Statute of The Permanent Court of International Justice and which are
still in force shall be deemed, as between the parties of the Present Statute, to be
acceptances of the compulsory jurisdiction Of the International Court of Justice for the
period which they still have to run and in accordance. In the present case, Thailand had
proceeded on the basis that her position was the same as that of Bulgaria, since she had
become a party to the Statute only on 16 December 1946, some eight months after the
demise of the Permanent Court.
According not has been transformed into an acceptance relating to the present Court, and
all she actually would have achieved was a necessarily inoperative renewal of an
acceptance of the compulsory jurisdiction of all tribunal that no longer existed.
The Court did not consider that its Judgment of 1959 had the consequences which
Thailand claimed. Apart from the fact that that Judgment had no binding force except
between the parties, the Court took the view that Thailand, by her declaration of 20 May
1950, had placed himself in a different position from Bulgaria13.


At that date, not only had Thailand's declaration of 1940 never been transformed into an
acceptance of the compulsory jurisdiction of the present Court, but, indeed, It had also
been said that Thailand had in 1950 held a mistaken view and for that reason had used in
her declaration language which the decision 1959 had shown to be inadequate to achieve
its purpose, but the Court did not consider that the issue in the present case was really one
of error.
It had also been argued that the intent without the deed did not suffice to constitute a
valid legal transaction, but the Court considered that, in the case of acceptances of the
compulsory jurisdiction, the only formality required was that of deposit with the
Secretary-General of the United Nations, a formality which had been accomplished by
If the Court applied its normal canons of interpretation, that declaration could have no
other meaning than as an acceptance of the compulsory jurisdiction of the present Court,
since there was no other Court to which it could have related.
Thailand, which was fully aware of the nonexistence of the former Court, could have had
no other purpose in addressing the Secretary-General of the United Nations.
The remainder of the declaration had to be construed in the light of that cardinal fact, and
in the general context of the declaration; the reference to the 1929 and 1940 declarations
must regarded simply as being a convenient method of indicating, without stating them
in terms, what were the conditions upon which the acceptance was made.
The Court, therefore, considered that there could not remain any doubt as to what
meaning and effect ought to be attributed to the 1950 declaration and it rejected the first
preliminary objection Thailand14.



In its Judgment on the merits the Court, 'by nine votes to found that the Temple of Preah
Vihear was situated in territory under the sovereignty of Cambodia and, in consequence,
that Thailand was under an obligation to withdraw any military or police forces, or other
guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian
territory. the Court found that Thailand was under an obligation to restore to Cambodia
any sculptures, fragments of monuments, sandstone model and ancient pottery which
might, since the date of the occupation of the Temple by Thailand in 1954, have been
removed from the Temple or the Temple area by the Thailand authorities. In this
Judgment, the Court found that the subject of the dispute was sovereignty over the region
of the Temple of Preah Vihear. This ancient sanctuary, partially in ruins, stood on a
promontory of the Dangrek range of mountains which constituted the boundary between
Cambodia and Thailand. The application of the Treaty of 13 February 1904 was, in
particular, involved. That established the general character of the frontier the exact
boundary of which was to be delimited by a mixed commission. In the eastern sector of
the Dangrek range, in which Preah Vihear was situated, the frontier was to follow the
watershed line.
It had not been contested that the Presidents of the French and Siamese sections duly
made this journey, in the course of which they visited the Temple of Preah Vihear. In
January-February 1907, the The final stage of the delimitation was preparation of maps.
And they were communicated to the Siamese Government in 1908.
Amongst them was a map of the Dangrek range showing Preah Vihear on the Cambodian
side. Cambodia had principally relied in support of her claim to sovereignty over the
Temple. Thailand, on the other hand, had contended that then map, not being the work of
the Mixed Commission, no binding character; that the frontier indicated on it was not the
true watershed line would place the Temple in Thailand; that the map had never been
accepted by Thailand or, alternatively, that if Thailand had accepted it she had done so
only because of a mistaken belief that the frontier indicated watershed line. The Annex I
map was never formally approved by the Mixed Commission. It was clear from the
record, however, that the maps were communicated to lying in Cambodia. Moreover, in

the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which
confirmed the existing frontiers, and in 1947 in Washington before the Franco-Siamese
Conciliation Commission, it would have been natural for Thailand to raise the matter: she
did not do so. The natural inference was that she had accepted the frontier at Preah
Vihear as it was drawn on the map, irrespective of its correspondence with the watershed
line. Thailand had stated that having been, at all material times, in possession of Preah
Vihear, she had had no need to raise the matter; she had indeed instanced the acts of her
administrative authorities on the ground as evidence that she had never accepted the
Annex I line at Preah Vihear. But the Court found it difficult to regard such local acts as
negative the consistent attitude of the central authorities.
Moreover, when in 1930 Prince Damrong, on a visit to the Temple, was officially
received. adopted m interpretation of that settlement which caused the map line to prevail
over the provisions of the Treaty and, as there was no reason to think that the Parties had
attached any special importance to the line of the watershed as such, as compared with
the overriding importance of a final regulation of their own frontiers, the Court
considered that the interpretation to be given now would be the same. The Court
therefore felt bound to pronounce in favor of the frontier indicated on the Annex I map in
the disputed area and it became unnecessary to consider whether the line as mapped did
in fact correspond to the true watershed line. For these reasons, the Court upheld the
submissions of Cambodia concerning sovereignty over Preah Vihear15.



The issue escalated again when Cambodia applied for it be listed as a UNESCO World
Heritage site in 2008. Thailand wanted it to be a joint Thai-Cambodia listing, but
eventually withdrew its objection. The decision enraged Thai nationalists and both sides
began a build-up of troops in the area.

On 11th November 2013, the Court declared unanimously that the 1962 Judgment decided
that Cambodia had sovereignty over the whole territory of the promontory of Preah
Vihear, and that Thailand is obligated to withdraw its forces from that territory.16



Preah Vihear Temple case (Cambodia vs. Thailand), in this case, preah vihear temple is
situated on the disputed land between Cambodia and Thailand.. In this case Thailand
acquired the territory those belong to Cambodia state. According to the general principle,
estoppel applied on this this case. The case was based on the disputed territory between
two States.

The territory belongs to another state and acquired by the one other state. International
law has long recognized the doctrine of estoppel, a principle which prevents states from
acting inconsistently to the detriment of others.

Until recently, the use of estoppel in international law was limited to cases involving
territorial claims, where the World Court had applied estoppel five times. In November
1984, however, the Court twice applied the doctrine-without specifically identifying it as
such against the United States in finding jurisdiction over a Nicaraguan claim.

The Court did so without explanation, analysis of the principle's elements, or discussion
of the ramifications of such an extension. According based on general principle and
doctrine of estoppel. We concluded that the preah Vihear Temple case, in the case the
disputed on the territory. International Court Of justice based on reasoning general
principle and estoppel or judgment of 1962 decided that the Cambodia is sovereignty of
this territory.