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International Law - Essay Example

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Question 1: Critically evaluate the role of treaties within the international law and the extent to which they represent a positive alternative to custom. Customary international law is complex as it is derived from uncertain sources. Moreover, there is no centralized judicial body creating customary international law capable of binding the world at large…
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International Law
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Download file to see previous pages Treaty law essentially entails the same binding nature as custom, and is only distinguished from custom because it is more formal than the former.2 However, treaties are generally written law and as such is a more certain source of international law.3 Although some international law scholar refer to treaties and customary international law interchangeably, there is a clear distinction since customary international law is bereft of written law and treaties are identified with written instruments. For example, Article 2(a) of the Vienna Convention on the Law of Treaties 1974 proves that: ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.4 In this regard there are two types of treaties under international law that represent important sources of international law. The first kind of treaties is law-making treaties that establish rules that are universally and generally applicable. The second kind of treaties at international law are “treaty-contracts” which are concluded between two or more states and cover specific issues relative to the contracting states.5 Law-making treaties are direct sources of international law, while contract-treaties merely outline treaty obligations between the contracting states and thus circumvent the need to identify and apply customary international law, unless the treaty requires the application of customary international law.6 Since the mid-19th century there has been an unprecedented proliferation of law-making treaties which have come to be known as “international legislation”.7 The proliferation of international law-making treaties was responses to the inefficiency of international customary law in meeting the immediate needs of the international community for the regulation of mutual interests. The immediate needs of the international community arose out of developments at the economic and industrial levels which were increasingly tightening the interconnectedness of states. Thus relationships between states became more complicated and diverse.8 Law-making treaties can be viable alternatives to customary laws because as history informs, law-making treaties typically serve to main functions. First they may articulate crystalized rules of international law, thus making customary law more visible and essentially codifying customary law into an identifiable source of law. Secondly, law-making treaties may identify new issues and formulate new rules of international law designed to respond to new issues or to change current practices by states.9 For instance, UN Law of the Sea Treaty 1982 establishes new rules relative to jurisdictional parameters applicable to the seas.10 The UN Law of the Sea Treaty 1982 also codifies some customary rules of international law. However, the 1982 Treaty also provides new provision such as the creation of the International Sealed Authority for controlling the distribution of marine resources. Moreover, transit passages were established for replacing the concept of innocent passage via coastal states’ territories. Thus states ratifying the 1982 Treaty would necessarily be bound by new international laws relative to the distribution of marine life and transit passages.11 Thus law-making treati ...Download file to see next pagesRead More
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