Theory of Law, The Nature of Law

In the strict sense,the word - Law – means rules of conduct imposed by a state upon its members and enforced by the courts. Laws are rules of conduct laid down for the purpose of directing menʼs actions.Social life would be broken up in anarchy unless men were prepared to follow recognized rules in their relations with each other.

Obedience by man to social rules enables all the members of the society to cooperate for common ends.In the technical sense,Law means the body of rules which governs and regulates the social conduct of people and which is enforced by a sanction. Legal rules are social , general and enforced by a sanction. Sanctions are imposed by courts and enforced by the State.

The rules of law is social

Because it guides and controls relations and transactions among people living in a socity. It only deals with the external conduct of persons.thus it is not concerned with the internal thoughts or beliefs.

The rules of law is generally applicable

Which means that it is applied to all cases and all persons living in the state.whether they are nationals or foreegners. Rules of law is general even if it is applicable to one person only

The rules of law is imposed by a sanction

Against any person refuses to obey it voluntarily. A sanction may take the form of penalty if the personʼs conduct constitutes a crime. Criminal penalties are capitol punishment, imprisonment and fine. A sanction may also be civil if the personʼs conduct encroaches upon civil law. In this case the sanction can be invalidity of a contract or the restitution of what has been delivered or the payment of compensation.

A part from the laws laid down by the State and enforced by the courts, there are certain customary rules of behavior called – rules of morality -. These are not enforced by the courts and depend for their obedience on the force of public opinion. The crucial difference between rules of law and rules of morality, therefore lie in the method of enforcement of each. Compulsion, coercion and enforcement are the main characteristics of the rule of law. It is the force behind the law, which makes us obey and respect it.  

International Responsibility and Peaceful Settlement of Disputes

 Whenever the breach of any obligation under International Law causes damage,a new legal relationship arises between the State committing the illegal and the State injured thereby. the former becomes responsibility to the latter.
So there three elements of State responsibility:
1- an illegal act.
2- injury or damage.
3- link of causation between the act and the damage.

The Illegal Act

International responsibility can only arise as the result of the breach of an international obligation,whether of treaty.customary rules or general principle of law.the abuse of a right is to be assimilated to the breach of an obligation for this purpose.the breach may be act or an omission.

2- The Damage or Injury

An international person is entitled to reparation for any form of damage,whether material or moral to itself or those it is entitled to protect.

3- Causation

The link of causation between the Illegal Act and the Damage is inherent in the concept of responsibility,not only the direct but also the indirect.

The Peacful Settlement of Disputes

According to Article 33 of the Charter of the United Nations.the parties to any dispute,the continuance of which is likelyto endanger the maintenance of international peace and security,shall first for all,seek a solution by peaceful means.
the peaceful means are as fallow:

1-Diplomatic modes of settlement.

   a-Negotiation.
   b-Good offices and Mediation.
   c-Conciliation.

2-Judicial modes of settlement.

   a-Arbitration.
   b-International Court of Justice.
3-Settlement by the International Organisations.

Associations or Groupings of States

States are free to form associations of groupings for general or particular purpose. the Commonwealth mentioned above,remains an outstanding illustration and so also the Organisation of American States ( OAS ),and the Organisation of African Unity.some of these association or groupings for example the European Economic Community ( Common Market ),and the North Atlantic Treaty Organisation ( NATO ) are in effect of the charter on international organisation.
Since the end of the Second World War, the number of such associations or groupings of States has rapidly increased. the principal functions or purposes served by them are political or economic or related to the mutual defence and security of members.
On the economic side, there is the European Economic Community ( Common Market ) established by the Treaty of Rome of 25 march 1957, the European Free Trade Association ( EFTA ) established by Stockholm Conversation of 20 November 1959 and the Lation  American Free Trade Association ( LAFTA ) established by the Montevideo Treaty of February 1960.
Examples of union or alliances of States for mutual security purposes,supported by permanent machinery are the North Atlantic Treaty Organisation ( NATO ) formed pursuant to the North Atlantic Security of 4 April 1949, the South-East Asia Treaty Organisation ( SEATO ) established under the South-East Asia Collective Defence Treaty signed at Manils of 8 September 1954 and the association for security purposes at Australia,New Zealand and the United States ( ANZUS ) under their Security Treaty signed at San Francisco on 1 September 1951.
It is too early as yet to determine the precise impact on International Law of these associations or groupings,each with permanent organs,some of which indeed have been invested with unusual powers, Usage and practices may develop ,pointing the way to a new field of International Law.

the Specialized Agencies

The Specialized Agencies are independent inter-governmental organisations,established by constitutional treaties with responsabilities in economic,social and Human Rights and brought into relationship with the UN. by special agreement in accordance with article 57 and 63 of the charter.
The Specialized Agencies serve on of the purpose of the UN. international economic and social cooperation and several of them have been created on the initiative of the UN. at conferences called together by one of its organs.
Though the Specialized Agencies are governed by the sole authority of their own Assemblies and Councils,the Economic and Social Council may make recommendations for the coordination of their policies and activities. the Cheif executives of the UN and Agencies meet in a standing coordinating commities and a large similarity exists between UN and the Agencies in matter such as status of personal,staff rules.

The following Specialized Agencies are brough into relationship with the UN:

1-International Labour Organisation ( ILO ).
2-Food and Agriculture Organisation ( FAO ).
3-UN.Educational,Scientiffic and Cultural Organisation ( UNESCO ).
4-International Civil Aviation Organisation ( ICAO ).
5-World Health Organisation ( WHO ).
6-Universal Postal Union ( UPU ).
7-International Telecommunication Union ( ITU ).
8-World Meteorological Organisation ( WHO ).
9-Intergovernmental Maritim Consultative Organisation ( IMCO ).
10-International Bank for Reconstruction and Development ( IBRD ).
11-International Development Association ( IDA ).
12-International Finance Corporation ( IFC ).
13-International Monetary Fund ( IMF ).
14-The General Agreement on Tariffs and Trade ( GATT ).
15-The International Atomic Energy Agency (IAEA ).

the United Nations ( UN )

The United Nations ( UN ) is the international organization that has most attention due to its global character,the emphasis of its charter on the problem of war and peace,and the wide range of its activity increasing in an interdependent world.but the UN is only a part of the modem of international organizations.in addition to the intergovernmental organizations with wide international responsibilities that have been brought into regularized relationship with the UN. as specialized agencies,there are other global organizations with highly specialized and technical functions and there are army of regional organizations with limited membership and varied function.
the Structure and Functions of the UN:
The Article 7/1 of the charter indicates that the structure of the UN. consists of six branches as follow:
1-The General Assembly.
2-The Security Council.
3-The Economic and Social Council.
4-The Trusteeship Council.
5-The Secretarait of the UN.
6-The International Court of Justice.

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1-The General Assembly 

The General Assembly is the most important branch of the UN.every member-state is represented in the General Assembly by five representatives but has one vote.The General Assembly is considered as a legislative power.so it has the right to discuss and make recommendations on all matters within the scope of the charter and the right to discuss the powers and functions of all other organs of the UN. it elects the ten non-permanent members of the security council and the 54 members of the Economic and Social Council. it approves the budget of the entire organization which is financed by contributions from its members and discuss the reports of all the other organs the UN. its decissions are taken by a two -thirds majority.

2-The Security Council

The Security Council is considered as an executive powers.it consists of 15 members,five of which are permanent members ( USA,USSR.France,Great Britan and Popular China) and ten of which are non-permanent members elected by the General Assembly for a one or two years term.The Security Council is responsible for the maintenance of peace and security of the Nations. it has the right to investigate any dispute or situation which might lead to friction between two or more countries.members of the Council,as well as other member-states of the UN. or even non-members as also the Secretary-General and the General Assembly may bring such disputes or situations to the councils attention.
The Council has the right to recommend procedures of peacful settlment. if there are a branch of peace of an act of agression, the Security Council has the right to take me asures of enforcement in order to restore the peace.these measures include severance of economic relation and if required action by air,and sea forces.
For these purpose the members of the UN.have agreed that the Council is acting for all of them and that they accept and carry out its decisions.
It is important to take into consideration that the decision of the Council on any matter other than the question of producer must be taken by an affirmative vote of 9 members including the votes of the permanent members.each state of the permanent members in the Council has the right to hinder this decision.this right is populary known as the veto provilage.the failure of the Security Council to reach to substantive decisions on many disputes was a result of the veto privilage.
We must knoqw that the presidency of the Council is held monthly in turn by the member states in English aiphahatical order has a number of commissions which advise and assist it on special matters.

3- The Economicand Social Council

The Economic and Social Council is one of the main branches of the UN. its function isto try and promote higher standards of living and conditions of economic and social development.On of the important tasks of the council is to bring the specialized Agencies into relationship with the UN. by agreements and to coordinate their activities.the Council is composed of 54 member-state,18 of which are elected every year by the General Assembly for a three years term.it meets as often as is required to perform its duties.the Council may invite observs representatives of specialized Agencies to participate in discussions without having had the right to vote about any matter of particular concern.the decisions of the Council must be taken by the majority of those members which are presenting and voting.

4- The Trusteeship Council

The Trusteeship Council is one of the branches of the UNO. its tasks are to further the international peace and security. and to promote the political economic,social and eductional advancement of the inhabitants of the Trusteeship Territories. and their progressive development twoards self-government in accordance with the circumstances of each territory and the wishes of its people.
Members of the Trusteeship Council are States administering Trust,Territories,permanent members of the Security Council which do not administrate Trust Territories and enough other non-administrating countries elected by the General Assembly for three years terms to ensure that the membership is equally divided between administrating and non-administrating members.

5-Secretarial of the UN

the Secretarial of the UN is considered as the administrative center of the UN. it consists of a Secratary-General and such staff as UN. may require the Secretary-General if the cheif administrative officer of UN.he is appointed by the General Assembly on recommendation of the Security Council. his term of office is five years.he has the right to bring to the attention of the Security Council any matter which in his openion,may threaten international peace. he is required to submit an annual report to the General Assembly on the work of the UN.

6- International Court of Justice

The International Court of Justice is the principal judicial organ of the UN.it consists of 15 judges chosen by the General Assembly and the Security Council for a period of nine years.President and Vic-president of the Court are chiosen for a period of three years by the Court.

the Sovereignty of the State over the Air Space

The development of aviation as from the early years of the present century immediately raised problems as to the sovereignty of States over their air space.
Before the First World War (1914-1918) the only point on which there was universal agreement was that the air space over the open sea and over unappropriated territory was absolutely free and open.in regard to the air space over occupied territory and over waters subject to State sovereignty,there were a number of different theories,but upon the outbreak of the First World War in 1914.it was found,that the only theory commanding acceptance by States was theory of sovereignty of the State over the air space to an unlimited hight.this was adopted and enforced not merely by the belligerents,but also by neutral States.it was confirmed in Article 1 of the Paris Convention of 1919 for the Regulation of Aerial Navigation,where by the parties recognised that every State has complete and exclusive sovereignty over the air space above its territory and territorial waters.
The prodigious increase in trans-continental and inter oceanic aviation,following on technical developments both before and during the Second World War,raised new problems as to freedom of air transit and landing rights for international airlines.these and allied questions formed the subject of an International Civil Aviation Conference which met at Chicago in Nuvember 1944.the object of this Conference,at which over forty States were represented,was conclude world-wide arrangements governing commercial air traffic rights as well as technical and navigational matters relating to international aviation.the main discussion were concerned with obtaining agreement by all States to the concession of the Five Freedom of the Air,namely the rights of the airlines of each State to:
(1)-fly across foreign territory without landing.
(2)-land for non-traffic purpose.
(3)-disembark in a foreign country traffic originating in the State of origin of the aircraft.
(4)-pick up in a foreign country traffic destined for the State of origin of the aircraft.
(5)-carry traffic between two foreign countries.
Only the first two Freedoms appeared to obtain the support of  a majority of the States represented. accordingly,the Conference was constrained to draw up two Agreements:
(a)-The International Air Services Transit agreement providing for the first two freedoms.namely,flying without landing and landing rights for non-traffic purpose in foreign territory.
(b)-The International Air Transport Agreement embodying all Five Freedoms.
Besides these two Agreements the Conference drew up a Convention on International Civil Aviation setting out general principles of International Air Law and establishing a permanent International Civil Aviation Organisation.
The above-mentioned principles represent the main general rules of the International Law of the Air.
these leaves finally the problems of abuse of the air,already,so far as radio-communications are concerned.  the principles are emerging :
a-that every State has a right to prevent its air space being traversed by injurious transmissions of radio waves.
b-that every State is under a duty not to allow and to prevent its territory being used for the transmission of radio waves injurious to other States.
c-then there is the Moscow Treaty of 5 August 1963,banning unclear weapon tests in the atmosphere,in outer space and under water,under this Treaty the contracting States undertake to prohibit to prevent and not to carry out any unclear weapon test explosion,at any place under their jurisdiction or control in the atmosphere,beyond the limits of the atmosphere,including outer space or under water including territorial waters of the high seas.other modern technological developments appear to require some principles for the protection of all States from injury throgh the air space,for example,the use of atomic energy for certain purpose,may cause dangerous radiations affecting the air or clouds above the territory of neighboring States.the trend towards strct liability in this connection is reflected in the Treaty on the Principles Governing the Activities of States in Outer Space,including the Moon and Celestial Bodies,19 December 1966.

the Sovereignty of the State and the Rights and the Obligation of the State

The sovereignty of the State

Usually means the power and independance of the State to exercise its jurisdiction over its territory the State has exclusive jurisidiction over all persons and things upon its territory with certain exceptions.
When we say that a particular State is independent,we attribute to that State a number of rights,powers and privileges at International Law.Correlative to these rights,there are duties and obligations binding other States who enter into relation with it.these rights and duties are the very substance of the State independence.

The Rights of the State may be:

(a)-The power to control its own domestic affairs.
(b)-The power to admi.
(c)-The privileges of its diplomatic engoy in other countries.
(d)-The sole jurisdiction over crimes committed within its territory.

The Obligation which are binding the States are:

I-The duty not to perform acts of sovereignty on the territory of another State.
II-The duty to abstain and prevent agents and subjects from committing acts constituting a violation of another state independence or territorial supermancy.
III-The duty not to intervene in the affairs of another State.

Now we are going to give a short details about the rights and obligations connected with jurisdiction.
As general rule we can say that the State exercises jurisdiction over all persons and things within its territory.it has also a personal jurisdiction over its own subjects wherever they may be.but this jurisdiction  is not often exercised and cannot be enforced unless those subjects come within territory or on board vessels subject to the jurisdiction of the State.in short,we can say that every State has jurisdiction over:

(a)-All persons within its territory.those persons may be divided into the following classes:

*Citizens:Each State defines by itd municipal law what are the necessary conditions requires for a given person to acquire itsnationality and being one of its citizens.
*Domiciled aliens:These are persons of a foreign nationality who are permanently resident within a country.for most purposesthey are subject to its jurisdiction,but it cannot require from them political services.
*Travellers:Who passing through its territory.these are under its criminal jurisdiction and for some purpose under its civil jurisdiction also,but neither their personal Status not political rights are affected by its Law.

(b)-All things within its territory.these things may be devided into the following classes:

*Real property:This is enterly under the control of the State where it is situated.
*Ordinary personal property:In cases in which the owner is domiciled within the State where the property is situated,the local law applies,but if the property is in one State and the owner is domiciled in another the lex domicile as a rule previls.
*Its own-ships:Both public and private,in its waters.the authority over them is complete and extends to all acts done on board them.
*Foreign merchant vessels:Within ports and territorial waters with certain exceptions.
*All its ship on the hight seas:Thes can be no territorial jurisdiction on the open seas.Each State-therfore-exercises jurisdiction over all persons and things on board its vessels.

the privileges and immunities of diplomatic envoy

Nearly all States today are represented in the territory of foreign states by diplomatic envoys and their staffs.such diplomatic character.
According to the vienna convention on diplomatic relations of 18 April 1961,heads of diplomatic mission are divided into three classes:
   * Ambassadors.
   * Ministers.
   * Charges d.affaires.
The appointment of an individual as ambassador or minister is usually announce to the state to which is accredited in certain official papers knows as letters of Credence or Letters de Creance.States may refuse to receive diplomatic envoys without having to explain its decision.

The Privileges and Immunities of Diplomatic Envoys

These are primairly based on the need to ensure the efficient performance of the functions diplomatic missions.Diplomatic envoys enjoy examption from local civil and criminal jurisidiction.they also have a right to inviolability of the person.this protects them from molestation of any kind and of course from arrest or detention by the local authorities.they are exempt from all dues and taxes other than certain taxes and charges set out in Article 34 of the Vienna Convention.A new right is conferred by Article 26 of the Convention namely a right of members of a diplomatic mission to move and travel freely in the territory of the receiving state,except in prohibited security zones.other privileges and immunities dealt with in detail in the convention include the freedom of communication for official purpose,exemption from social security and exemption from receives and military obligations.

Termination of Diplomatic Mission

A diplomatic mission may come to an end for various reasons:
1-Recall of the envoy by his accrediting state.the letter of recall is usually handed to the head of the state or to the Minister of foreign affairs.
2-Notification by the sending state to the receiving state that the envoy function has come to an end.
3-A request by the receiving state that the envoy be recalled.
4-Delivery of passports to the envoy and his staff and suite by the receiving state as when war breaks out between the accrediting and receiving states.
5-Notification by the receiving state to the sending state,that it refuse to recognise the envoy as a member of the mission.
6-Fulfilment of the object of the mission.

variose steps to create a treaty,practice as to conclusion and entry into force of treaties

The various steps to create a treaty are:

1-The acccrediting of persons who conduct negotiations on behalf of the contracting States.
2-Negotitation.
3-Authentication and signature.
4-Ratification.
5-Accessions and adhesions.
6-Entry into force.
7-Registration and publication.
8-Application and enforcement.

we shall take both n.7 an n.8 of these steps in turn:

7-Registration and Publication

The United Nations Charter1945 provides by Article 102 that all treaties and international agreements entred into by Members of the United Nations Organisation shall-as soons possible-be registered with the Secretariat of the Organisation and be piblished by it.No party to treaty or agreement not registered in this way-may invoke that treaty or agreement before any organ of the United Nation-.this means that a State party to such an unregistered treaty or agreement cannot rely upon it in proceedings before the International Court of Justice or in meeting of the General Assembly or Security Council.
The object of Article 102 was to prevent the practice of secret agreements between States.

8-Application and Enforcement

The final stage of the treaty-making process is actual incorporatin,where necessary of the treaty provisions in the municipal law of the State parties and the application by such States of these provisions and also any required administration and supervision by international organs.in practice,vigilant -follow up-work is needed to ensure that States parties do actually apply instruments binding them.some international organs, for example,International Labour Organisation with its Committee of Experts on the Application of Conventions.

the Sources of International Law,the International Treaties

The sources of the International Law which we are going to discuses now are Six in number as follow:
1-International Treaties.
2-International Custom.
3-the General Principles of Law.
4-Judgicial Decisions.
5-Jursticworks.
6-Decisions of International Institutions.
we shall take each of these sources in turn as follow:

1-International Treaties

Treaties represent the most important material source of international law.That importance is increasing.the effect of any treaty in leading to the formating or rules of international law,depends on the nature of the treaty concerned,in this connection there is a useful distiniction between :
 (a)-law-making treaties,which lay down rules of universal or general application.
 (b)-treaty contracts,for example,a treaty between two or only a few States,dealing with a special matter concerning these States exclusively.

Law-Making Treaties

The provisions of a Law-Making treaty are directly a source of international law.this is not so with the treaty-contacts,which simply purport to lay down special obligations between the parties only.a Law-Making treaty cannot in the nature of things be one containing rules of international law always of universal application.we are forced to admit that Law-Making treaties may be of two kinds:
(a)-enunciating rules of universal international law and the United Nations Chartter.
(b)-laying down general or fairly general rules.

Treaty-Contracts

In contrast to Law-Making treaties, Treaty-Contrast are not directly a source of international law.they may,however,as between the parties or signatories thereto,constitute particular law,hence the use of the expression -particular-conventions in Article 38,paragraph 1,a,of the Statute of the International Court of Jurstice.such treaties lead also to the formation of international law through the operation of the priciples governing the development of customary rules.

Recognition of State

It is essential that State can enter into formal relations with another,it must be not only fully sovereign,but it must be also be recognised by that State.
The question of recognition of State is one of the important problems in the international law.This problem arises when a new State is born and seeks to establish relations with the existing State or when it applies for membership of international organisations like the United Nations ( UN ).
It is true that every State have a right to judge for itselve the question whether the new State possesses all the attributes of the Statehood whilst considering the matter of recognition.
There are two theories as to the nature,fuctior and effect of recognition:

(a)-The constitutive theory

According to this theory the act of recognition is the alone act which creats statehood in the international sphere.
(b)-The declaratory theory
According to this theory the new State exists as such prior to and independently of recognition.so the recognition is merely a formal acknowledgment of an established sitution of fact.
The action of State in affording or withholding recognition is asa yet uncontrolled by any rigid rules of international law,on the contrary,recognition is treated as a matter of vitel policy that each State is entitled to decide for itself.There ios not even a duty on a State under international law to withdraw recognition if the qualification of statehood or of governmental authority cease to exist.

Implied Recognition

Implied recognition is very much  a matter of the intention of the State said to have given recognition.in practice the only legitimate occasions for conclusively implying recognition de jure are:
  *The formal signature of a bileteral treaty by the recognised and recognising States.
  *The formal initiation of diplomatic relations between the recognised and recognising State.
  *The issue of a consular exequatur by the recognised and recognising Stated.

In certain exceptional circumstances,recognition has been inferred from the following circumstances :

  (I)-Common participation in a multilateral.
  (II)-Participation in an international conference.
  (III)-Initiation of negotiations between a recognising and recognised State.

Recognition of a head of State or of a new government:

The granting or refusal of recognition of a government has nothing to do with the recognition of the State itself.if a foregin State refusal the recognition of a change in the form of government of an old State.this latter does not thereby lose its recognition as an international person.

Legal effects of recognition :

Recognition produces legal consequences affecting the rights,power and privileges of the recognised State,both at international law and under the municipal law of States which have given it recognition.

the principle legel effects of recognition are :

1-The Recognised State acquires the right of suing in the courts of law of the recognising State.
2-The recognised State may claim immunity from suit in regard to its property and its diplomatic representatives.
3-The recognised State becomes entitled to demand and receive possession of or to dispose of property situate within the jurisdiction of recognising State which formery belonged to a preceding government.

On the contrary there are legal effects of the rights,powers and immunities in case of refusing a recognition with a new State.these consequences may be enumerated as follows:
(I)-The unrecognised State cannot claim immunity from legal process for its representatives.
(II)-The unrecognised State cannot protect its property in the territory of non-recognising State.
(III)-It will not be given in the courts of a non-recognising State,the effects customary according to the rules of comity.

Decisions of International Institutions

Decisions of the International Institutions may lead to the formation of rules of international law in a numbers of different ways as follow:

1- They may represent intermediate or final steps in the evolution of customary rules particularly those governing the constitutional of these institutions.
2- A resolution of the organ of an international institution which validly formulates principles or regulations for the internal working of the institutions may have full legal effect as laying down rules which are binding on the members and organs of the institution.
3- Inasmuch as an organ of an international institution has inherent power,in doubtful cases not precisely covered by its Constitution to determine the limits of its own competence,such decisions by it on questions of its jurisdiction may have a law-making effect.
4- Sometimes,organs of international institutions are authorised to give binding determinations concerning the interpretation of their constituent instruments,for example, the Executive Directors and the the Board of Governors of the International Monetary Fund have such power under article XVII of the Articles of Agrreement of the Fund of 22 july1944.these interpretative decisions will form part of the law of the international institution in question.
5- Some organs of international institutions are empowered to give general decisions or directives of quasi-legislative effect,binding on all the members to whom they are addressed.for example,as are the Council and Commission of the European Economic Community ( Common Market ) under article 189 of the Treaty of Rome of 25 March 1957 establishing the Community.
6-A special case is that of the determinations or opinions of Committees of Jurists,specifically instructed by the organ of an international institution to investigate a legal problem.these necessarily bear some weight and authority.

State judicial decisions

There are two ways in which the decisions of state courts may lead to the formation of rules of international law:
1- The decisions may be treated as weighty precedents or even as binding authorities according to Marshall CJ of the United States Supreme Court:- the decisions of the Courts of every country show how the law of nations in the given case is understood in that country and will be considered in adopting the rule which is to pervail in this-.
A votable example is furnished by the decisions of the British prize Court judge - Lord Stowell (1745-1836 ) who presided over the court during the Napoleonic Wars.Lord Stowell judgments received universal acknowledgment as authoritative declarations of the law and he became peculiary identified with the establishment of important doctrines such as that blockade to be binding must be effective that contraband of war is to be determined by probale destination and the doctrine of continous voyage.similary,both as exponent as agent for the development of international law,the Supreme Court of the United States has played an important role,for example,its judgments in the Paquete Habana and the Scotia did much to clarify the nature of international custom.
2- The decisions of state courts may,under the same principles as dictate the formation of custom lead directly to the growth of customary rules of international law.thus,for example,certain rules of extradition law and of state recognition were in the first instance derived from the uniform decisions of state courts.Aconcurrence of such decisions is usually necessary for this purpose, for if there be no uniformity,a customary rule of international law will not be inferred.Thus,in the Lotus Case the permanent Court of International Justice refused to deduce a customary rule where to use the Court expression.
State judicials decisions on the point were divided.

the Basis of International Law,Theories as to Basis of International Law

Much theoretical controversy has been waged over the nature and basis of international law.some discussion of the theories should help to throw light on many important aspects of the subject.

Is International Law True Law?

One theory which has enjoyed wide acceptance is that international law is not true law but a code of rules of conduct of moral force only.The English writer on juris-prudence,Austin must be regarded as foremost among the protagonists of this body.
According to that openion the law is true law only when there is an authority vested with the making of law,another vested with the settlement of conflicts which arise between persons and a third vested with the pursuing of the excution of dicisions and judgements pronounced and declared such is not the case of International Law because the State do not recognize the existance of high authority to which they feel to obey.En an other term,there is no legislative authority-above the States-to lay down the rules of international law,there is no judicial authority to ensure the respect of the international law and there is no executive power to execute the dicisions adopted.
So the international law is not true law.this openion is not exactly true for the following reasons:
1-Even if it is being true that there is no legislative authority in the international field but it has been true also that there are a systems of law being in force and observed in many communities without a formal legislative authority.
2-Althow the State themselves lay down the rules of international law by customs or by treaties but we can say that a great mass of international legislation has into existance as a result of law making treaties and conventions which had concluded by States.
3-It is known that the judicial authority in international system is represented by Arbitration tribunals and by International Court of Justice.
4-After the Character of the United Nations had cocluded in 1945 in San Francisco,the rules of puplic international law tended to be most effective.
for these reasons,we can say that the rules of international law are true law.

General and regional rules of international law

There is a recognised distinction between general and regional rules of International Law,that is to say between rules,which are of universal application and rules which have developed in a particular region of the world as between the states there located without becoming rules of a universal character.The best illustration of such regional rules are those which have been commonly followed by the group of Latin American states for asylum,This so-called ( Latin American International Law ) and the nature of regional rules were discussed by the International Court of Justice in the Colombian-Peruvian Asylum case(1950) according to the judgements in this case:
1-regional rules are not necessary subordinate to general rules of international law but may be in a sense - complementary or correlated there to.
2-an international tribunal must as between states in the particular region concerned give effect to such regional rules as are duly prived to the satisfaction of the tribunal.

Definition and nature of the international law.

Definition

International law may be defined as that body of law which is composed for its greater part of the priciples and rules of conduct which states feel themselves bound to observe,and therefore,do commonly observe in their relation with each other,and which includes also:
1-the rules of law relating to the functioning of international instutions or organisations,their relations with each other,and their relations with states and indviduals.
2-certain rules of law relating to individuals and non-state entities so far as the rights of such individuals and non-state entities are the concern of the international community.
This definition goes beyond the traditional definition of international law as a system composed solely of rules governing the relations between states only intented to cover This definition is the recent developments of international community.

The developments are principally

1-the establishment of a large number of permanent international institutions or organisations such as,for example the United Nations and the World Health Organisation,regarded as possessing international legal personality,and enterning in to relations with each other and with states.
2-the present movement to protect human rights and fundamental freedoms of individuals,the creation of new rules for the punishment of persons committing the international crime of genocide or race destruction and the imposition of duties on individuals under the historic judgment in 1946 of the International Military
Tribunal of nuremberg by which certain acts were declared to be international crimes,namely,crimes against humanity and conspiracy to commit these crimes.Both categories of developments have given rise to new rules of international law and influence the growth of new rules in the future.