How the Treaties Might Relate to Existence of Hierarchy Amount the Source of International Law - Assignment Example

?How the Treaties might relate to Custom, as well as the Alleged Existence of Hierarchy Amount the Source of International Law Course Instructor: Date of Submission: How the Treaties might relate to Custom, as well as the Alleged Existence of Hierarchy Amount the Source of International Law The international society is made up of several independent and sovereign states. Since there is no one world government or parliament to create laws as is the case in countries then there exists’ a fundamental difference in the creation of international law. International law comprises of system of rules and principles that govern international relations between sovereign states and other institutional subjects of international law1. International law consists of the rules and principles of general application dealing with the conduct of States and of international organizations in their international relations with one another and with private individuals, minority groups and transnational companies. Since there is no international legislation or parliamentary body that had the mandate of coming up with international law, the generally accepted source of the rule of law has been customary international law. It arises from the concept that these laws arise from what is considered as common practice when countries are dealing with each other. Consequently international law can only be established if there is consent by states and is enforced by means of individual or collective action of individual or collective action of other states. The internationally accepted Article 38 of the statute of the International Court of Justice identifies five sources of international law as follows: a) Customary international law as evidence of general practice accepted as law b) International conventions, c) General principles of law recognized by civilised nations d) Judicial decision and the writings of the highly qualified publicists Customary International law Customary law is not a written source of law. The Statute of the International Court of Justice refers to it as the general practice accepted as law. Customary law is binding on all states but whether or not they have ratified any relevant treaty. For a rule to be customary law it must entail two elements, one being that it must have widespread and consistent state practice. Practice alone is not adequate as was the case in the ruling of Case of the SS Lotus (1927).Secondly in has to be ‘opinio juris’ that is a belief in it being a legal obligation in the states. As the International Court of Justice put it “Not only must the acts concerned be a settled practice but they must also be such, or be carried out in such a way as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it... The states concerned must feel that they are conforming to what amounts to a legal obligation2. Let’s take for example the duty for countries to give protection to ambassadors from other countries while they are on diplomatic missions within that country. This is an ancient custom which has been accepted as normal practice and a legal obligation expected of the host country. In case an ambassador is attacked in a country it would be considered as a violation of a customary international law. 3New states are automatically bound by the existing customary international laws. For a state to not to be bound by a rule of international customary law it must object to it during formation or become a persistent objector to it. Failure to register such an objection may lead to the state being assumed to have accepted the customary rule of law. International Convections International treaties are contracts signed between states that are legally binding to all states that are party to the treaty. The reason for which states that sign a treaty are bond to it is because there is a rule of customary international law – pacta sunt servanda- which requires all states to honour and adhere to the treaties they have signed. A state is free to choose if it will consent to a treaty or not, there is no requirement to sign up to a treaty. A treaty which is co-signed by a large number of states is often regarded to be the writing down of previously unwritten rules of customary law. The Vienna Convention on the Law of Treaties, 1969 is an example of customary law that has been codified into the existing laws. By codifying a customary law the ambiguity that existed in interpretation is terminated and we end up with an interpretation limited to the written text and not the practice4. General Principles of Law Recognized by Civilized Nations The general principles of law accepted by civilized nation are certain legal beliefs and practices that are common to all developed legal systems and have been adopted by all the countries. An example is the rule of res judicata that means once you have had a fair hearing in court and exhausted all your appeals, the matter is closed and cannot be reopened again. In all the countries you will find the principle of the rule of res judicata is applied in their legal systems. General principles are mainly used as a source of law when no treaty of international customary law has addressed the issue at hand conclusively. Judicial Decisions The last source identified in article 38 is judicial decisions, but this is not an exhaustive list of the sources of international law. In contrast to the principle of precedent in national common law, does not apply in international law. Previous judicial decisions only serve as a subsidiary means of determination of rule of law. The International Court of Justice refers frequently to its past decisions as a guide to the content of international law5. Articles written by internationally acclaimed professional lawyers may offer a persuasive guide to the content of international law but they are not an authoritative body in the creation of law. The sources indicated by Article 38 are by no means the only sources available for international law6. The article does not limit the available resources but it provides a guideline to the available sources of international law. Subsidiary means for determination of rules of law can provide the evidence needed to prove the existence of a rule of custom or a generally principle of law. Resolutions of the United Nations General Assembly are not legally binding, but their resolutions play a major role as a subsidiary means for determining custom. The resolutions made by the United Nations General Assembly once consented to by member states as a rule of custom can be incorporated into a treaty that creates a legal obligation examples of such resolution is GAR 217A Universal Declaration of Human Rights (1948) and the GAR 2131 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of the Sovereignty (1965 [Declaration on Non- Intervention]. Article 38 also fails to take into account the creation of modern global conventions and the effect they have on the customs. Once an international convention has been drafted States will often refer to the provisions in the convention, when a problem arises in their interaction with other states, in effect giving the rules in the convention relevance as an accepted customary rule. If Convention becomes universally accepted then it becomes a strong source of evidence of the rules of custom. Examples include the Vienna Convention on Diplomatic Relations (1959) and the Vienna Convention on the Law of Treaties (1969)7. How Treaties Relate to Custom The existence of international customary law can be formalised into a written source of international law by preparing a treaty that codifies the custom. The member states that attest to conform to the custom can be signatories to the treaty thereby giving a common source of reference which will be used in adjudication of international cases as they arise. As stated earlier the treaty is limited to interpretation to the writing that has been indicated in the treaty. The Permanent Court if International Justice in several cases applied treaties which conflicted with customary rules. However this is not always the case. In some cases the treaties may prevail over customs by virtue of the maxim of lex specialis derogate generali. It may happen that the subject matter of a treaty is more specific than a customary rule, or that the States bound by the treaty are fewer that those bound by the customary, under the maxim lex specialis derogate generali the customary rule will prevail8. In a different scenario a treaty can override a pre-existing custom or a custom can override a treaty. Treaties and customs are given equal strength hence a change in the acceptable customs that leads to a growth of a conflicting custom to a previous treat could mean the ultimate demise of the pre-existing treaty. Similarly a custom law can be terminated if there is a clear indication that the parties to a new treaty intend to denounce such a custom. All parties to a treaty must provide conclusive statements to the effect that they are making a change to such a law. The Committee of Jurists investigating the Aaland Islands Dispute said that violation by party of its obligations under a treaty coupled with acquiescence by the other parties could not terminate the treaty9. In the absence of express statements on the termination, such evidence can only be provided by prove of abundant and consistent practice to suggest that it was terminated. Hierarchy in Sources of International Law There is a lot of controversy among different authors on the hierarchy of the sources of international law. Article 38 makes no reference to a hierarchy in the order that the sources of law are listed. It is now generally acknowledged that there are some rules of international law that are given the status of jus cogens, they are peremptory norms form which no derogation is permitted. Examples of jus cogens are prohibitions against slavery, wars of aggression and genocide. According to the Vienna Convention on the Law of Treaties, 1969, Article 53 any treaty or customary international law that conflicts with the rule of jus cogens is null and void and the rule will prevail over any inconsistency to that effect. Secondly there is the Article 103 of the United Nations Charter which binds members of the United Nations. The article provides that in the event of conflict between the obligations of members under the Charter – including obligations created by binding decisions of the Security Council- the Charter obligation prevail over conflicting obligations in all other international agreements. There is however a school of thought that suggests that international customary law stands separately from the treaties as recognized by the International Court of Justice in the North Sea Continental Shelf cases10. This statement may be interpreted as follows: one that the rule that makes treaties binding upon the signatory parties is derived from an international custom law known as the maxim pacta sunt servanda. Secondly the treaties generate customary law. The law created by such a treaty undergoes a transformation to be adopted into customary law by the states signatory to it. A treaty will prevail over a customary law between the parties to the treaty, but a treaty will not affect the rights of States that are not party to that treaty. Conclusion In conclusion to my findings I have found that there is no hierarchy in the strict sense of the word, between treaty and customary law. The relationships between treaties and customs can be describes in the following ways a treaty codifies a pre- existing customary international law. A treaty helps to identify the incipient rule of customary international law. A new customary international rule of law may be the result of a treat that terminates a pre-existing custom give rise to a new customary rule of law. References Beckman, R., and Butte, D., 2007, Introduction to International Law, [online] (updated 4 Feb. 2011) Available at: < http://www.ilsa.org/jessup/intlawintro.pdf> [Accessed 14 May 2013]. Byers, M., 1999, Custom, Power and the Power of Rules: International Relations and Customary International Law, Cambridge: Cambridge University Press. Hathaway, J., 2005, The Rights of Refugees Under International Law, Cambridge: Cambridge University Press. Dixon, M., 2007, Textbook on International Law, Oxford: Oxford University Press. Wallace, R., 2005, International Law, (05 ed.), London: Sweet & Maxwell. Fitzmaurice, M., and Quast, A., 2007, Law of Treaties, Section A: Introduction to the Law of Treaties, London: University of London Press. Boczek, A.B., 2005, International Law: A Dictionary (Dictionaries of International Law), Maryland: Scarecrow Press. Greenwood, C., 2008, Source of International Law: An Introduction, United Nations: Codification Division, Office of Legal Affairs. Read More