…………………………………………………………………………

Project on :-judicial decision & juristic opinion as source of international

law

…………………………………………………………………………………
….

Submitted by :- Submitted to :-
Bablu kumar Sharma Niyati ma’am
School of law and governance RLEK

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 Acknowledgement

I hereby take the opportunity thank Niyati ma’am, for his consent and the inspiration that he
radiates. His jovial behaviour and ease making attitude eased my tension and the initial
doubts that I had about my potentialities. I also want to thank my friends who helped me a lot
in preparing this project. I have also taken help from several books and websites for doing
this. Ultimately, I once again thank Niyati ma’am, who made indelible impact on me which
shall go beyond the pages of this project and reflect in all my endeavours of life.

Hoping Acceptance and Appreciation from you, I hereby submit this project.

- Bablu kumar sharma

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 Table of contents:

Contents: page no.

Chapter 01: introduction.................................................................................................. 04

Chapter 02: sources of international law........................................................................ 05
2.1 customs...................................................................................................... 05
2.2 treaties........................................................................................................ 05
2.3genral principles recognised by civilised nations....................................... 06
2.4 judicial decisions ...................................................................................... 06
2.5 juristic works on international law............................................................ 07
2.6 general assembly and declaration.............................................................. 07
Chapter 03: mainly judicial is described in two ways..................................................... 08
3.1 judicial decisions of international tribunals................................................. 08
3.2 decision of municipals tribunals.................................................................. 08 - 09
Chapter 04: juristic opinion as a source of international law.......................................... 10-11
Chapter 05: comparative graph of international law....................................................... 11
Chapter 06: juristic works............................................................................................... 12
Chapter 07: cases based on judicial decision as a source of international law............... 13- 17
7.1 S.S lotus (France v. Turkey)....................................................................... 13- 14
7.2 The paquette Habana case ......................................................................... 14- 15
7.3 North sea continental shelf case................................................................. 16- 17
Chapter 08: whether judicial decision is binding upon the state?.................................. 18

Conclusion..................................................................................................................... 19

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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

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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

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

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international law were international treaties and international custom, of which the former is
the most important

(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

6
 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.
(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.

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

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Chapter 03:Mainly judicial decision is described in two ways

(1) Decision of international tribunals

(2) Decision of municipal tribunals

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.
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 ,2nd edn, 2014

8
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 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).

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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

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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

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mid-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 froma
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

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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

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?

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

13
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

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

14
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 crews, unarmed and honestly pursuing their peaceful calling of catching and
bringing in fish are exempt from capture as prizes of war. Reversed.

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

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

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

16
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 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.

17
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. Hobbes and Pufendorf who also questioned
the legal character of international law and termed it as merely moral ethical rules. 18

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

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.

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