International Law - Sources Essay (Exam) PDF

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This is a 2019 International Law Exam Essay Question. I achieved 80 % on my Exam ...

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80% Exam Mark on Sources Essay International law consists of a set of binding rules which regulate relations between International individuals, organizations, companies and countries. International law has a different system than the national law where we see enacting binding legal rules by a law making body, whereas international law does not have a law making body. The sources of International law are the fundamental basis which have the force to create rights and obligations on the parties or MS involved, the characterisation is not by hierarchy but for clarification. The traditional sources are listed under Article 38(1) of the statue of International Court of Justice; “The Court, whose function is to decide in accordance with International law such disputes as are submitted to it, shall apply; (a) International Conventions, (b) International Customs, (c) General principles, (d) Judicial decisions”. Article 38(1)(a-c) are law-creating or formal sources and Article38(1)(d) are law-identifying or material source. However, Article 38 ICJ does not include other sources of law such as sof law, ideals and recommendations. Article 38 ICJ is a direction for the ICJ on how to apply and abide to the sources listed for disputes before them. Article 38 ICJ does not establish a hierarchy but sets out a hierarchy of procedure for the application of international law for settlements of disputes between the 2 parties involved. The 2 primary sources being the treaties and customs both possess equal ranks of status and are of equal validity; no one is more important than the other. However, this can be determined, and I will discuss this in this essay. legally binding rules are created by these 2 mechanisms. International Conventions is mainly replaced with the term International treaties which can be considered the most important and superior formal sources of IL. Article 2(1)(a) the Vienna Convention on the Law of Treaties 1969 defines treaties as “an international agreement concluded between States in written form and governed by international law…”. Treaties are a binding agreement created by different states who agree to bind themselves legally to act in a particular way or to set relations among themselves, this agreement is governed by IL. Treaties may be bilateral between 2 states or multilateral between many states. States are only bound if they consent, signature and by expression. The treaty provisions itself are general as it is important that the sovereignty of states is considered hence leaving room to enable states to apply. States are not bound by provisions if they are not signed for it. Unlike international customs treaties are more deliberate, for instance this is the only way where MS deliberately create binding obligations. Treaties are ofen defined as a source of obligation instead of a source of law. There are 2 types of Treaties; law-making treaties which play the role of legislation and contractual treaties. The law-making treaty is divided into 2; universal application treaty and international treaty. The UN Charter is universally applicable. International Treaties specifically deals with the 1958 Geneva Conventions on the Law of the Sea. Despite treaties being the most commonly used source they have some inadequacies. One serious problem is regardless of bilateral or multilateral the treaties with general character seem to never obtain universal acceptance on the part of the states. A state can always attach far reaching reservations permitting them to exclude or modify the legal provisions or the effects of the treaties, this ratification procedure is ofen a long process. The national legal system in states involves various procedures before a treaty can actually be approved,

80% Exam Mark on Sources Essay this connects to the sovereignty of states theory. The sovereignty must be secured when engaging with new treaties provisions. The problem is unlikely to be solved when the treaties are not approved by the national legal system. Another weakness being treaties are legally binding to states who have consented; therefore you cannot force states to ratify a treaty. One strength being that treaties are more ofen described as a source of obligation rather that a SOL. Another being treaties are legally binding hence states have a legal obligation to enforce and respect treaty provisions. CUSTOMS International Customs are defined under Article 38(1)(b) ICJ as ‘evidence of general practice accepted as law’. Customary law is not a written source. There are 2 important elements of customary law which can be considered as the rule of customary law. Firstly, there must be consistent “state of practice” the subjective element (verbal) and secondly there must be ‘opinio juris’ the objective element (behavioural) the psychological element behind this state. This makes it clear that new customary rule cannot be created unless these 2 requirements have been satisfied. In the Lotus Case courts held customs must be ‘constant and uniform’, there must be at least be significant constant state of practice to become part of customary law. In the Asylum Case the ICJ held requirements for a rule to be classed as a custom “parties must prove that custom is established in such a manner that it has become binding on the other party”. The Lotus Case stated consistent practice alone without opinio juris is not sufficient for a new custom. “State of practice” not only refers to government practice but also courts and parliaments of that State. The Lotus Case saw opinio juris as an essential element of customary law, this was affirmed in the North Sea Continental Shelf Cases (1963). Opinio juris can be considered a belief that practice is compulsory and more than merely convenient. Once there is sufficient state practice together with opinio juris a new custom is formed. Customs derive consent of the complex international community thus giving it a upper place in the hierarchy of the sources of international law, despite this international custom have several flaws. Customs are vague and open to conflicting interpretations. Secondly, if the perceived interests of certain states change their boldness towards customary international law will also change and a rule may be challenged. Moreover, countries customs are a invention of their precise economic making it inconsistent and unsuitable to adopt in other countries. GENERAL PRINCIPLES General principles of law, this principle was rejected at first as it did not conform to state will and consent like treaties and customs but was later accepted as part of state legal order. River Meuse Case stated, “the principle of equity is applicable to international Tribunals that is general principles of equity and fairness within the scope of paragraph 1(c)”. General principles of law compare the national legal system in every state, the ICJ rarely invoke them resulting with fewer decided cases. When considering the nature of international law there is absence of legislating method in order to provide new regulation to regulate new situations, this is why the provision ‘general principles of law’ is considered as a source under Article 38 ICJ. The phrase ‘civilised nations’ under Article38(1)(c) perhaps means to exclude weak or underdeveloped legal systems rather than being a reference to the economic or political statues of different countries. However, in present time this is

80% Exam Mark on Sources Essay irrelevant. The purpose of this section is to ensure international law includes common rules and principles to all legal systems as it will be part of the structure of law. However, it is impossible for all states around the world to have the same law thus making this a weakness as this source of international law cannot be a universally acceptable principle of law. One of the biggest criticisms being that this source of law as the systemic difference prevents the existence of common general principles. Sources such as treaties and customs have reduced the impact of general principles being a source of international law. JUDICIAL DECISIONS Judicial decisions are said to be ‘subsidiary’ meaning for the purpose of determination of law in Article 38. Academically, international courts do not make law they merely identify and declare pre-existent law, established by Article 59 of the ICJ Statute. Article 59 further explains decisions of court will not have any binding power but only bind relevant parties in the particular case. Conversely, the practical issue is whether the courts function is indeed limited to the determination of disputes according to the pre-existing rule or not. The ICJ is more involved in the process of law creation rather than Article 38 or 59 had suggested. It is definite that the court will decide the substance in the dispute submitted to it, from thereon as per the statute the parties are bound by the decisions. Ideally courts are not supposed to participate in any law-making process in practise this is solely an impractical review. INSUFFICIENCY: The sources discussed in this essay are the traditional sources under Article 38 ICJ Statue. You can easily find insufficiency of these sources. To evaluate if the sources of law have effectively developed over the years the weaknesses of each source have been discussed above. The written form of Article 38 ICJ regulated applicable law concerning specific disputes brought before the ICJ. Looking from the institutional law perspective the ICJ works as an organ for dispute settlement for the international organisation, the UN. The Statute consists of a secondary rule applicable with the organisation. There are certainly debatable areas such as the concept of ‘soft law’. Soft law is a term used to describe 2 different but related circumstances in international law. Soft law are rules of international law that do not specify concrete rights or obligations for the legal persons to whom they are addressed. The content is flexible although the rules are regulating which is said to be the rule of law. These rules reduce the chance of conflict as they give space for states to decide how to act. The use of the term ‘Soft law’ is a description of those guidelines, ideas, values and proposals which may develop into rules of international law but have not done so yet. CONCLUSION: Overall, all the sources can be found in the practice of the UN. As discussed above there is inadequacy of each source and Article 38 ICJ itself. Determining the insufficiency of Article 38 ICJ it should not be a universal rule of governing the list of sources of international law. Soft law covers the gaps which traditional sources fail to cover. Despite all of this the sources

80% Exam Mark on Sources Essay of international law have been efficient and usefully applied over the years however only to a certain extent due to the shortcomings discussed above....