Main Sources of International Law - Essay Example

Student’s Name Instructor’s Name Class Name Date when due Main Sources of international Law Introduction International law relates to a set of principles and rules that govern the relations between states, as well as international organizations in their international relations with each other, and with transnational companies, private individuals and minority groups (Beckman and Butte 1). These laws relate to economic relationships, power balances and foreign policy between states. International law is further divided into both public and private international law. Public international law refers to rules that guide the relations of nations amongst each other with their citizenry (Beckman and Butte 2). On the other hand, private law refers to the rules that determine where and whose laws in situations where more than one jurisdiction is involved are going to be applied, and how such judgment is to be enforced (Beckman and Butte 2). It is important to mention that the process of making or developing international law is under the control of sovereign states, thus explaining the effectiveness of such rules to date. The sources of international law can be derived from Article 38 of the Statute of the International Court of justice (ICJ) that provides four legal sources of international law (Kennedy 2). The statute describes the sources of international law as treaties, customary laws, judicial decisions, general principles of law and judicial writing by qualified scholars (Schreuer 3). Therefore, these sources would form the subject of discussion in this essay with regards to their importance since World War 11. Treaties Treaties can be referred to as agreements between sovereign states binding them to international law (Degan 7). Treaties are part of the oldest sources of international law, and are also called conventions, protocols, agreements and covenants. It is important to note that where states enter into a Memorandum of Understanding, it does not constitute a treaty as it is not governed under international law. The Vienna Convention of the Law of Treaties of 1969 provides the basic principles and procedures of treaty law (Degan 7). Treaties take the form of bilateral, regional, multilateral and global agreements, especially after World War 11. The basic rule that guides treaty law is the pacta sunt servanda, which dictates that when a treaty is in force, it binds all the parties to it, and thus each state should execute them in good faith (Greenwood 2). Treaties do not bind states that are not party to them, and thus requires such states to consent to them. From further analysis of treaties, it is realistic to mention that they are more of a source of obligation than a source of international law. Majority of Global treaties usually bind all states based on the rule of customary international law. This is based on the fact that when provisions of a treaty codify a customary law rule, such provisions are evidence, and thus bind all states regardless of whether they ratify the treaty or not. Most of the treaties are named after the places and the years of adoption, for example, the 1969 Vienna Convention. Currently, states are not bound by treaties, but rather take the obligation to refrain from activities that would be a drawback to the purpose and object of the treaty (Hoof 67). Finally, the adoption of many treaties on diverse areas of international law, such as terrorism, diplomacy and war, has meant that international law has undergone far reaching changes in relation to 1945. States have continued to hold treaties as important source of international law, thus explaining the current relations among states. Customary laws Customary law serves as an important source for international law as opposed to domestic law, due to the lack of a competent method of law making in relation to international law. Customary laws produce rules that bind all states as they are not usually written laws. Customary international laws emerge from the evidence of a behavioral pattern or practice between states. For the practice to be dignified as customary international law, it has to be based on legal obligations, usually referred to as opinio juris, rather than for political motives (Greenwood 1). Also, such a practice has to be have been used constantly and uniformly among states over a specified period. Further, a state that advances the existence of a customary law has the burden of providing evidence to the existence of such a rule by showing a virtually uniform and consistent practice among states. It is important to mention that, for a customary law to be created there has to be an actual practice and a legal obligation. However, in theory, it is difficult to establish a rule due to the fact that it is difficult for a state to identify evidence as to the reason why they follow a particular practice, since there lacks a legal obligation. As a source of international law, customary laws have drawbacks such as being vague, and may provide room for conflicting interpretations. The weakness of customary law is that rules created by these laws may be challenged when some states change their perception. However, treaties have continued to challenge the customary international laws through codification, but customary international laws still play a critical role in international law. Judicial Decisions The International Court of Justice considers international and national courts, as well as tribunals’ decision as subsidiary, meaning that they are not sources of law. However, judicial decisions are used as evidence to prove the being of a broad principle of law or a rule of custom. Decisions of both national and international tribunals are subsidiary means if they are rulings on issues of international law. Attaching the word “subsidiary” does not mean that judicial decisions are not important as the ICJ itself refers to its past decisions as case replicated by numerous international tribunals, since such decisions provide guided related to the contents of international law (Greenwood 4). It is important to mention that national court decisions form part of the practices of a state, and thus contribute to the development of customary international law. With regards to the importance of judicial decisions compared to the period after World War 11, such decisions have of great importance to international law, especially due to the availability of many international and local judicial decisions as it has helped in interpretation of international law. Writings Writings by highly qualified law scholars regarding international law are also treated as subsidiary by the ICJ as they do not create law, but rather are persuasive guides to the contents of international law (Schreuer 10). However, in reality the distinction between creation and guidance with regards to international law for scholars is blurred, since courts have continued to use theories advanced by these scholars in making decisions. Scholars have for a long time been involved in state practice, treaty making, scholarly publication and adjudications, thus showing their involvement in development of international laws, as well as providing interpretations. Jurist writings have also continued to be of high importance to international law, even after World War 11 as international law continues to be more complex, and thus require extensive theoretical frameworks to support development of rules sourced in customs and treaties. General Principles of Law According the ICJ, general principles of law form part of sources for international law, as they address the gap that exist between customary laws and treaties (Schreuer 10). In particular, they are general principles that are recognized by most of the legal systems in states. General principles of law are usually handy with regards to international law, especially where there is no rule in relation to customary law or no provision in treaties. In post-World War period, general principles of law have been less significant as this has been attributed to the enhanced intensity of treaty and organization relations between nations. Notwithstanding, the concepts of equity and estoppel have been used extensively in international law, in solving international disputes. International organizations Although international organizations are not mentioned under Article 38 as sources of international law, many authors have advanced an opposition to their not being sources of information. According to Professor Christopher Greenwood, resolutions made by organizations such as the United Nations General Assembly, though not legally binding, have had an impact on the law-making process. More so, resolutions made by states and those that command a widespread acceptance in the General Assembly are regarded by states as symbolizing a rule of international law, thus have an important impact on development of customary international laws (Greenwood 4). Another international body that has can be proposed as a source of international law is the International Law Commission, which undertakes studies in international law on behalf of the general assembly. When such studies are adopted by the General Assembly, even without their conversion into treaties, plays a significant role in development of customary international law (Greenwood 4). The Security Council is another international organization that is different from the rest, since decision made by this body under Chapter VII are mandatory in nature, and thus legally bind member states (Greenwood 4). Although, the Security Council does not make laws, it does create obligations with regards to international law. This explanation provides evidence to the importance of these international organizations as sources of international law, because it allows for rules to be developed to respond to new phenomena, such as global warming, which was not a problem after the 1945 war (Abbott, Kenneth and Duncan 15). Works cited Abbott, Kenneth W and Duncan Snidal. "Why states act through formal international organizations." Journal of conflict resolution, 42.1(1998): 3-32. Alvarez, José E. International organizations as law-makers. Oxford: Oxford University Press, 2005. Print. Beckman, R and Butte D. Introduction to International Law. 2010. Web. 12.09.2013. http://www.ilsa.org/jessup/intlawintro.pdf Degan, Vladimir Đuro. Sources of international law. Vol. 27. Martinus Nijhoff Publishers, 1997. Greenwood, C. Sources of International Law: An Introduction. 2008. Web. 12.09.2013. http://untreaty.un.org/cod/avl/pdf/ls/greenwood_outline.pdf Hoof, Godefridus JH. Rethinking the sources of international law. Brill Archive, 1983. Print. Kennedy, D. The Sources of International Law. American University International Law Review 2(1987). Rooney, Miriam T. "International Organizations and International Law." Int'l L. 6(1972). Schreuer, Christoph. Sources of international law: scope and application. No. 28. Emirates Center for Strategic Studies and Research, 2000. Read More