Main Sources of International Law - Essay Example

?Table of Contents Introduction..................................................................................................................... 2 Body................................................................................................................................ 2 Overview of the sources of international law..................................................... 2 Treaties............................................................................................................... 3 International Customs......................................................................................... 6 State Practice...................................................................................................... 7 Hierarchy of sources........................................................................................... 8 International trade and development.................................................................. 8 Conclusion...................................................................................................................... 10 References...................................................................................................................... 11 Main Sources of International Law Introduction International law is the primary governing authority in the management of international affairs. It includes laws and provisions which indicate standards by which states can interact with each other. These provisions also provide processes which are mandated for states to follow in relation to territorial, political, social, and economic relations. The commonly known source of international law includes the legal provisions passed by the United Nations and its General Assembly. However, other laws also make up the overall international statutes which help ensure the peaceful and efficient relations of states and other international actors. Although these statutes are often difficult to implement due to the inherent independence of states, sanctions are nevertheless forthcoming for violators. This paper shall outline and explain the main sources of international law. It will evaluate these sources in terms of their significance and importance in promoting the growth and development of international business and trade. This study will initially discuss the different sources of international law. An evaluation of these sources shall also be carried out and associated with the development of international business and trade. This paper will be discussed in order to provide an academic evaluation of international laws and provisions with the end goal of guiding the future evaluation of international activities and actions of states and business entities. Body Overview of sources of international law The sources of international law would include the materials and provisions where the standards and principles managing states and international actors are established (Jennings and Watts, 1992). These sources are based on various political and legal principles. In the 19th century, the concept of pacta sunt servanda was recognized, mostly as a means of limiting sovereign power and authority (Jennings and Watts, 1992). This homogeneous perspective of international law was apparent in the 1920 Statute for the Permanent Court of International Justice, and further specified under Article 38(1) of the 1948 provisions on the International Court of Justice (ICJ) (Malanczuk, 1997). Article 38(1) is acknowledged to be the most encompassing provision indicating the sources of international law (Koskenniemi, 2000). This article calls for the International Court to use international conventions which are expressly acknowledged by other states and international customs as general practices supported by the law. To prevent non liquet, where no law would apply, the article also mentions that general principles used by the courts are those which have long been supported and used by civilized countries (Koskenniemi, 2000). Since states are the ones which give their consent and which establish the elements of international law, the Article also supports the fact that the International Court is allowed to use judicial decisions and well-supported legal opinions as supportive elements in establishing the rules of law (Dixon, 2007). Treaties In relation to the issue of preference in the application of international law, the provisions indicated by treaties would be preferred if these provisions do exist (Dixon, 2007). It is indicated however that these treaties and international customs are sources which may eventually have equal weight. New customs would likely have greater weight over older treaties and the same is true with older customs which have to be overlooked in the face of new treaties being implemented (Dixon, 2007). Jurisprudence and juristic writings are considered to be additional sources of international law, however, it is not clear whether the general provisions of law supported by states must also be included as primary or auxiliary sources of international law (Dixon, 2007). In the Canada-US Softwood Lumber case, juristic writings seek to explain the decision of the NAFTA and the US compliance with the ruling. Three writings and opinions were forwarded by Chayes and Chayes (1993) and include efficiency, interests and norms. Efficiency referred to the decreased transaction costs of compliance with the existing treaty. In effect, as states comply with treaties, they are also able to avoid the bureaucratic and legal costs in the renegotiation of decisions. Secondly, states also comply with treaties because it is within their interests to comply (Chayes and Chayes, 1993). And lastly, state compliance with the rulings of treaties refers to state concerns with international norms. The US is therefore complying with the rulings of the NAFTA and the terms of the treaty since they consider these actions as part of their responsibility as global citizens (Chayes and Chayes, 1993). It may also be indicated that the mandates of international organizations, including the UN and the provisions of the Security Council and the General Assembly, are considered supplementary sources of international law, even if these may not be specified in Article 38(1) of the 1946 Statute of the International Court of Justice (Colgan, 2005). Article 38(1) is very much founded on the related mandates of the 1920 provisions of the Permanent Court of Justice, and therefore predates the functions of organizations in the international arena (Colgan, 2005). In effect, the provisions of Article 38(1) may be considered dated, especially as the article mentions the term ‘civilized nations,’ a definite deference to the colonial and imperialistic rule which has dominated man’s early history (Colgan, 2005). It is also possible for treaties to be adjusted by processes and practices among parties to the treaties. Certain rules would also have to take precedence over treaties when said rules are already considered jus cogens or compelling norms among agreeing parties (Boczek, 2005). Treaties and conventions are considered one of the primary and influential sources of international law and are generally considered authoritative mandates among ratifying states (Villiger, 1985). They usually act as contracts among signatories. These treaties may include extradition treaties, defence pacts, and trade agreements. They are also considered rules which manage specific elements of international affairs; in some cases they are even set as constitutions for international organizations (Villiger, 1985). This is the case for the European Union where the treaty which the member states signed is also considered the governing constitution among the members (Diez-Picazo, 2004). Whether or not these treaties can be considered as sources of international law, they are already provisions which form obligations and responsibilities among the parties to the treaty. Article 38(1) (a) acknowledges the term ‘international conventions’ which specifies treaties as specific and reciprocal obligations, recognizing how states can expressly support the obligations of treaties where they may not be a formal member (Rothwell, et.al., 2000). In order for treaty-based rules to be accepted as sources of law, these rules must also have an impact on non-signatories (Rothwell, et.al., 2000). Treaties may also come from the codification of customary agreements or laws, including provisions which are considered global commons (Joyner, 2005). Although the goal of these treaties is to secure provisions which can apply generally, their efficacy is based on the number of countries seeking to ratify the specific treaty (Joyner, 2005). In general, very few conventions are considered generally applicable without needing the requisite number of signatories. One of these conventions includes the Geneva Conventions which are considered international laws in their own right (Malone, 2008). Numerous multi-lateral treaties have been deficient in securing universal support and acceptance, and are often reliant on provisions which are based on customary international law, and by association are therefore applicable to non-parties (Gazzini and De Brabandere, 2012). This result is apparent in various applications. First, is when the treaty uses an existing customary law, the provisions of the original treaty would be managed in terms of its original application (Gazzini and De Brabandere, 2012). Second is when a customary law is still being developed, its inclusion in a multilateral treaty would likely impact on the consolidation of the law. Last is where the rule is new, the writing of the treaty may be the trigger for its application among states, and later, the acceptance of the rule by other countries would make it part of customary law (Gazzini and De Brabandere, 2012). International customs Another source of international law is international custom. Article 38 (1) (b) of the ICJ indicates international customs being an important source of international law, thereby indicating the two elements of state practice along with acceptance of practice to be obligatory opinio juris (Danilenko, 1993). Based on the uniform application by western nations, customary international laws are set apart from acts of comity by opinio juris. Treaties have slowly replaced some of customary international laws. Such development is very much related to the replacement of the customary processes or common law practices by codified laws in the domestic or national settings (Danilenko, 1993). State practice In assessing state practice as a means of establishing significant rules in international law, it is important to consider all activities of state officials which relate to such practice (Malanczuk, 1997). Much discussion has been carried out on the weight which must be credited to what states do, not what they believe is part of the law. In its strictest application, this would include rejecting what is considered by states as practice and defining it to be opinio juris (United Kingdom v. Iceland). A less strict application would assess what a state would declare as law by using the occasion when the statement is expressed (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands). It would only be the moderately powerful states with significant international influence and interests which would have customary opportunities to contribute to the application of international law (Gaebler and Smolka-Day, 2002). The primary applications of state practice for most states will be during the meetings for international organizations, including the UN General Assembly by entering their votes and by entering their opinions on issues being discussed. Furthermore, there are situations where the opinions of states are the only indications of their views on the specific behaviour required in specific situations (Nicaragua v. USA). The concept of practice rising to a position of customary rule indicates that the practice is being consistently applied, or that such practice is common and concordant (Colombia v Peru). As the international community is an extensive one, practice does not necessarily have to cover all countries or be standardized. There must however be a significant amount of participation, mostly on states which may be affected (Portugal v India); moreover, there must be no significant dissent (Federal Republic of Germany v Denmark). Hierarchy of sources In relation to the hierarchy of sources for international law, the ICJ statute indicates judicial decisions and scholarly writings to be supplemental sources of international law; however, no distinction between the two is made (Crawford and Koskonniemi, 2012). In practice however, for disputes having applicable treaties relevant to their resolution, such treaty would be given priority due to the authority attributed to the codified provisions and because of the formal consent given to the terms of the treaty. By contrast, it is apparent that the existence of customary international law is more difficult to prove (Crawford and Koskonniemi, 2012). It is dependent on the complicated evaluation of state actions as well as evidence of applications as supported by the available customs. The general principles of the law are also vague provisions in relation to treaties (Crawford and Koskonniemi, 2012). Although there may indeed be an academic hierarchy of sources in international law, in application, treaties, customs, and general principles may all be equally applicable in settling legal disputes and setting-up legal norms. Each source can have specific or general applications in specific contexts (Koskonniemi, 2012). This general applicability indicates the wide range of legal and moral principles which can be used to ensure the adequate resolution of international legal disputes. International trade and development The above sources of international law apply in the management of international trade and business activities (Ellis, 2003). In general, the laws applying to international trade are provisions generally classified under international trade law which covers World Trade Law, but also provisions which seek to manage the international monetary system, currency provisions, and international development (Ellis, 2003). As was already mentioned previously, bilateral and multilateral treaties are considered the governing provisions among international parties, including parties to trade and other business activities. Modern trade laws and treaties were seen soon after the Second World War, specifically with the establishment of the multilateral treaty seeking to manage the trade of goods – the General Agreement on Tariffs and Trade (GATT) (Miller and Jentz, 2008). International trade provisions are founded on the principles of economic liberalism conceptualized in Europe and in the US. The WTO secures trade regulations and provides rules in the administration of agreements; it also provides a venue in making negotiations as well as ensuring more coherence among members (Gehring and Segger, 2005). The trading of goods is managed by the GATT which also seeks to prevent unfair trade activities. In the settlement of disputes in the international trade, the WTO is the primary recourse for disputing parties (Gehring and Segger, 2005). Under these conditions, the WTO treaty provisions provide the foundation for the management of trade agreements and development. With the emergence of new Regional Trade Agreements (RTA), conflicts in the application of laws between WTO tribunals and RTAs have been considered significant issues. The management of such conflicts refer to multilateral and regional management (Trebilcock, et.al., 2012). The assessment of the dispute settlements indicate that the WTO treaty negotiators did not consider the possible issues in jurisdictions with the RTAs. Nevertheless, the settlement of these disputes has been suggested by juristic writings to be based on multilateral and bilateral treaties primarily and more general principles of law secondarily (Graewert, 2008). In effect, the management of international trade development and conflicts has been based on formal legal processes, including treaties, supported by general principles of law. Conclusion The sources of international law primarily include the statutes laid out by the United Nations General Assembly through Article 38(1) which includes treaties applied as laws and applied as customs. General principles of law including state practice, opinio juris and jus cogens provide supportive sources of international law. In relation to international trade, the primary sources include the treaty laid out under the WTO, supported by other bilateral, multilateral, and regional trade agreements. Conflict in the laws necessitates individual evaluation of formal agreements between parties before the application of any customary or general principles of the law. References Article 38(1), Statute of the International Court of Justice (1946). United Nations General Assembly Boczek, B., 2005. International Law: A dictionary. London: Scarecrow Press. Chayes, A. and A. H. Chayes, 1993. On compliance. International Organization, 47 (2), pp. 175-205. Colgan, J., 2005. The promise and peril of international trade. Peterborough: Broadview Press. Colombia v Peru, ICJ Rep 266 at 277, 1950. Crawford, J. and Koskonniemi, M., 2012. The Cambridge companion to international law. London: Cambridge University Press. Danilenko, G., 1993. Law-Making in the international community. London: Martinus Nijhoff Publishers. Diez-Picazo, L., 2004. Altneuland: The EU Constitution in a Contextual Perspective. Treaty or Constitution? The status of the constitution for Europe. Princeton University. Dixon, M., 2007. Textbook on international law. London: Oxford University Press. Ellis, C., 2003. The origin, structure and working of the League of Nations. London: The Lawbook Exchange, Ltd. Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands, ICJ Reports 4 at 42, 1969 Gaebler, R. and Smolka-Day, M., 2002. Sources of state practice in international law. London: Transnational Publishers. Gazzini, T. and De Brabendere, E., 2012. International Investment Law: The sources of rights and obligations. London: Martinus Nijhoff Publishers. Gehring, M. and Segger, M., 2005. Sustainable development in World Trade Law. London: Kluwer Law International. Graewert, T., 2008. Conflicting laws and jurisdictions in the dispute settlement process of regional trade agreements and the WTO. Contemp. Asia Arb, 1(2), pp. 287-333. Joyner, C., 2005. International Law in the 21st Century: Rules for global governance. Maryland: Rowman & Littlefield. Koskonniemi, M., 2000. Sources of international law. London: Ashgate. Malanczuk, P., 1997. Akehurst's modern introduction to international law. London: Routledge. Malone, L., 2008. International law. Colorado: Aspen Publishers Online. Miller, R. and Jentz, G., 2008. Fundamentals of business law: Summarized cases. London: Cengage Learning. Portugal v India, ICJ Reports 6 at 39, 1960 Rothwell, D., A-Khavari, A., Davis, R., Kaye, S., et.al., 2000. International law: Cases, materials and commentary. London: Cambridge University Press. The Republic of Nicaragua v. The United States of America, I.C.J. 14, 1986. Trebilcock, M., Howse, R., and Eliason, A., 2012. The regulation of international trade. London: Routledge. United Kingdom v Iceland, ICJ Reports 3 at 50, 1974. United States and Canada Arbitrate a Softwood Lumber Dispute in the London Court of International Arbitration, 102 Am. J. Int'l L. 192, 2008. Villiger, M., 1985. Customary International Law and Treaties: A study of their interactions and interrelations, with special consideration of the 1969 Vienna Convention on the Law of Treaties. London: BRILL. Read More