Sources of International Law PDF

Preview

Summary

Warning: TT: undefined function: 32 Warning: TT: undefined function: 32 International law, as how Jeremy Bentham defines it, is a system of rules governing relations between states. It is binding on all civilized independent states with regards to matters pertaining to a state’s subjects. There is n...

Description

International law, as how Jeremy Bentham defines it, is a system of rules governing relations between states. It is binding on all civilized independent states with regards to matters pertaining to a state’s subjects. There is no uniform structure in the international plane that defines international laws. Nonetheless, the most formal sources of international law have been underlined in Article 38(1) of the Statute of the International Court of Justice (ICJ). These sources include international conventions, international customs, general principles of law recognized by civilized nations, judicial decisions of the International Court of Justice and jurist writings. International customs International customs are a source of international law as stipulated in Article 38(1)(b) of the statute of ICJ. There is a considerable body of international law that are derived from international customs. Customs are defined as a general accepted practice or habit that has been established as time passes that becomes customary international law if accompanied by state practice and the held belief that there exists a legal obligation to adhere to such customs. The latter requirement is the subjective element of opinio juris. Customary international laws, as opposed to treaties, are binding upon all states whereas the latter only binds states that are a party to the treaty; it is universally binding except for those states who ‘persistently object’ to the norm itself, which is also known as the persistent objector rule. Generally, if a practice is broadly and consistently practiced, it will amount to state practice but there is no fixed standards of how broadly and consistently it must be practiced to amount to a state practice. For example in the Asylum casethe alleged customary law only applies to states in Latin

1

America to grant political asylum and guarantee safe passage for the asylum seeker and the International Court of Justice held that this did not constitute a broad and consistent practice. The element of opinio juris, which is deemed subjective is required for the formation of a state practice. It is a manifestation of their will upon what they can do or omit to do will form opinio juris. Some scholars have argued that this element is redundant in proving the existence of a state practice because it is difficult to prove and some even go to the extent of relying on statements by governmental officials, ratification of treaties that contains similar provisions as the customary international law. There are several theories whereby states believe a legal obligation exists for them to obey by the international custom, namely consent, cooperation or coordination. The positivist theorists argue that states obey by international customs because they consent to it, and they do not exercise the persistent objector rule mentioned above when the custom was established.

International conventions Embodied in Article 2(1)(a) of the Vienna Convention on the Law of Treaties, treaties are agreements entered between states internationally in writing, which international law governs it and can be in any designation, such as a convention, covenant or treaty. Unlike customs,

2

treaties do not depend on the measure of state practice and opinio juris, which requires a lengthy process before it becomes an international custom. By contrast, a treaty is a straightfoward and formal way of creating international law. One of the fundamental principles regulating international conventions is pacta sunt servanda - “agreements must be kept”. The adverse effects of going against obligations laid down in a treaty can be said to be severe to the state and it is in their best interest to not go against an obligation agreed upon. Treaties can be classified into multilateral and bilateral treaties, and it is signed by the Head of State. In the case of Bosnia and Serbia regarding the Genocide Convention, the International Court of Justice held that the capability of the Head of State to act on behalf of the state is absolute. Although some customary international laws are codified into conventions, it is of importance to note that international conventions do not derive from customary international laws. States may enter into treaties for anything ranging from the prevention of fiscal evasion of income taxes, for example between the State of Qatar and the Republic of Turkey, the signing of the International Convention of Elimination of All Forms of Racial Discrimination so long as it does not go against the principle of jus cogens. Jus cogens are peremptory norms that are non-derogable, and the classification of certain customs as peremptory norms will place an obligation upon states to omit from committing atrocities such as torture, crimes against humanity, genocide etc. The United Nations Convention against Torture is an example of a peremptory norm being codified, and parties that are parties to the convention will face sanctions if they were to breach the obligations that are laid down in the convention itself.

3

General Principles of Law Besides international conventions and international customs, another source of international law enumerated in Article 38(1)(c) of the Statute of the International Court of Justice is the general principles of law. General principles of law constitute legal principals, relevant laws and rules pronounced by the courts with reference to existing and established principles of law which acts as a guidance of the legal system and other general principles of equity and justice. According to Schachter, the general principles of law can be narrowed down to five categories of law namely, municipal law, fundamental laws of all legal systems, laws which stems from the specific nature of international community, laws common to all societies and the principles of justice. Essentially, general principles of law finds its roots in the case laws established by courts and tribunals in which a rule adopted by the courts in a particular case is subsequently applied as a rule of international law. The main aim for the insertion of paragraph (c) into Article 38(1) is to supplement customary laws and treaties in the circumstances of a non liquet. This is important in order to avoid a scenario where a case could not be decided due to the existence of a gap in the law. As such, there is a necessity to enable creative activity on the part of the judges and enable them to sift through the unbounded fields of legal experience for a solution. Judicial decisions and jurist writings The fourth and fifth sources of international law can be seen under Article 38(1)(d) of the Statute of ICJ. This provision stipulates subsidiary means for the determination of the rules of law which includes judicial decisions and teachings of qualified publicists. Subsidiary means

4

could be defined as sources which are subordinate to the other sources in this Article and should only be taken into consideration when sufficient guidance and assistance cannot be provided through international conventions, customs and general principles of law. Article 38 lists two sources of the said subsidiary means. Firstly, judicial decisions of international and national tribunals and secondly, writings of the most highly qualified publicists. Hence, judicial decisions are not law-making sources but merely functions in the declaration of pre-existing law. However, judges may sometimes in the process of deciding upon a law, create laws. Article 59 of this Statute also provides that the decisions by the courts are non-binding in nature, except between the parties in dispute. Although there is an obligation on the courts to take into account other judicial decisions, there is no strict obligation on the courts to follow these decisions as the courts are not bound by the common law doctrine of judicial precedent. This is evident in the Bosnia Genocide case whereby the ICJ disagreed with the decision of another court. Moreover, judicial decisions, primarily the decisions from municipal courts, may also function as evidences of customary international law. The primary source of evidence of customary international law is found in actual practice of states. Nonetheless, this provision is not all that unambiguous as it incorporates both the terms “application” and “development”. The former refers to already existing laws whereas the latter implies some element of newness. These contradictory terms have led to ambiguities as to what qualifies as a source of international law which further proves the non-exhaustiveness of Article 38(1).

5

Article 38(1)(d) also includes teachings of publicists as a subsidiary means for the determination of the rules of law. This provision seems to connote that judicial decision and teachings of publicists are of equal authorities as they are placed on the same statutory footing. The term “writings of most qualified publicists” enumerated in this Article includes authoritative writings by esteemed scholars and jurists. Nonetheless, the ICJ statute does not provide for a clear meaning of the term “most highly qualified”. The influence of authorities such as Gentili, Bynkershoek and Vattel have shaped international law today in terms of its scope, form and content. However, the position today is such that judicial teachings and writings are merely regarded as a material or evidential source. This view is supported by Waldock who stated that it was universally accepted that subsidiary sources merely function as evidentiary sources which provide assistance to the courts as to the existence of a customary rule or of a general principle of law. According to Schwarzenberger, Article 38(1)(d) had simply enumerated “some means for the determination of alleged rules of international law” and that scholars should not blur the lines between lex lata and lex ferenda in their scholarly works. Inadequacy of Art.38(1) – the ambiguity within general principles of law The foregoing text will illustrate the problems in applying general principles of law and prove, as a result of its failure to operate effectively, Article 38 is inadequate. Among the most striking criticism of general principles of law is its ambiguity which inadvertently arises due to its unwritten nature. Consequently, the court faces complications with regards to discerning evidence, capacity and the burden of proof required to identify the principles.

6

The wording of Article 38(1)(c) is also at fault for contributing to the uncertainty surrounding the application of these principles. Firstly, the definition of ‘general’ is certain. It may be in reference to their level of abstraction or the recognition required for their formation. Secondly, the criteria that the principles be ‘recognized by civilized nations’ is another cause for uncertainty. It is unclear whether it requires recognition from all, or a mere majority of nations. Thirdly, the term “recognize” used in Article 38(1)(c) is different from the phrase “accepted as law” used in Article 38(1)(b), which is the subjective element required in customs. Finally, Article 38(1)(c) requires the recognition of principles by ‘nations’ whilst Article 38(1)(a) requires recognition of conventions by ‘States’. These inconsistencies within the Article 38(1) appear unnecessary for they prima facie connote the same function. Therefore, they only contribute to confusion with regards to the effects of Article 38(1)(c). Moreover, it is unclear whether the inconsistencies should be scrutinized to distinguish the binding ability of Article 38(1)(c) with Article 38(1)(a) and Article 38(1)(b). To compound the ambiguity surrounding general principles of law, its interpretation differs depending on the type of legal system operating as well as the dominant philosophy within the state. With regards to the former, the challenge lies in the different assumptions made about the function and perhaps even existence of general principles, for instance, between a civil and a common law system.With regards to the latter, the moral basis or natural law concepts upon which general principles of law are founded upon may be rejected by states. Historically, general principles of law have generally been dominated by Euro-centric Westphalian capitalistic ideals for centuries. Thus, socialist scholars are aggrieved that the principles currently in force differ in many aspects from their Marxist-Leninist ideals. Similarly, 7

Muslim scholars would only accept principles compatible with Islam. The objection towards the dominant Euro-centric interpretation of principles of law from different parts of the world prove that there is no universal acceptance of the current interpretation of general principles of law. As such, the substance of these principles are uncertain. Given that general principals of law operate to fill in the lacunae where conventional and customary law does not address a particular legal issue, it constitutes a crucial element of international law without which the effective functioning of international law would be jeopardized. Similarly, if general principles of law are too ambiguous to be binding, as argued in this essay, then it is unable to supplement the weaknesses of conventional and customary law. Consequently, Art.38 appears to be inadequate as lacunaes in the law remain unresolved. Inadequacy of Article 38 – failures of international environmental law Whilst Article 38(1) provides several sources of international law. It is arguable that the list is incomplete and inadequate to resolve the most critical issues of the 21st century. More specifically, international laws are having trouble coping with the rapid change and degradation of the environment. Hitherto, customs and principles, as ‘law-making’ sources of international law are incapable of creating adequate response to the large-scale derogation of the environment. The current treaty-making and custom-forming process is lengthy and arduous, it does not provide an efficient way in overcoming environmental problems. Under treaties, ambitious legal obligations are difficult to establish as states continually work to protect their own interests such as state sovereignty which inadvertently creates divisive barriers to cooperation. Thus, the formulation of urgently needed and explicit global 8

environmental plans are hindered and many deadlocks arise before a satisfactory and effective treaty can be created. Under customary law, long periods of time are required to satisfy the material and psychological element for the destruction of the environment to become a peremptory norm. Moreover, environmental protection does not fall into the category of jus cogens even though it is in the global interest for every state to protect the environment. General principles of law meanwhile, which operate mostly on procedural matters, are silent on the environment. All states depend on the preservation of the environment which are necessary to sustain life and natural resources are facing an irreversible destruction, while the structure upon which international law is founded upon fails to cope with this rapid change. The principle of state sovereignty is the fundamental principle of international law, yet it is the very reason why it fails to cope with the rapid deterioration of the environment. As such, the current sources of law under Article 38(1) do not provide a clear and cogent solution for all states to work collectively stop the derogation of the environment.

Alternate sources of international law For Article 38(1) to reflect the contemporary needs of international law, other “material sources” ought to be referred to. The requirement for other formal sources of international law are a necessity rather than a mere quirk of the scholarship.

9

Article 38(2) allows the ICJ to adjudicate a case ex aequo et bono, subject to consent of the parties. In other words, a discretionary power is conferred upon the Court to find a satisfactory solution, outside the strict legal prescriptions of Article 38(1). In the foregoing text, this essay will examine the sources of law found outside Article 38(1) and the value it brings to international law. Alongside the International Court of Justice, the General Assembly is another principal organ of the United Nations. It provides many resolutions which are persuasive and could be binding if agreed upon by states. Increasingly, the General Assembly have shown a great degree of adaptability to meet the challenges of the modern era. Much opinion has been given in support of General Assembly resolutions to be accepted as a formal binding source of law. Lauterpacht J voices his opinion that it would be inconsistent to international interest to reduce the value of General Assembly resolutions. The justification provided for the aforementioned is that the General Assembly has the advantage of being very representative, as well as constituting a centralized, convenient platform for identifying the points of view of all present Member States on a specific topic. Beyond the acts of international organizations, international law may also arise in the form of unilateral state actions. International Law Commission defines unilateral acts as, ‘an unequivocal expression of will which is formulated by a State with the intention of producing legal effects in relation to one or more other States or international organizations. Actions that may constitute unilateral state acts include a declaration ceding territory, recognition of a state and a promise to act in a specified manner.

10

Nonetheless, it was only after the Nuclear Tests Case for unilateral acts to be recognised as having a binding effect. Unilateral acts are a valuable addition to the system of creating legal obligations at international law especially when negotiation appears impossible.1 An example of unilateral state actions creating legal obligations is Egypt’s declaration for free circulation in the Suez Canal affair in 1957. Its declaration was vital in establishing international confidence and security especially given the fact that a treaty on the matter was not possible. These are merely two sources of law applied by the ICJ found outside Article 38(1). In reality, the ICJ exercises its discretion under Article 38(2) to locate many more satisfactory means of resolving disputes. In summary, the sources of international law found in Article 38(1) are insufficient and therefore inadequate to meet the demands of international relations. The justification for such opinion is the potentially unresolved lacunae and slow growth of international law. Moreover, the mere fact that the ICJ had resorted to apply principles found outside the list provided in Article 38(1) is sufficient evidence that the court itself believes that the article, by itself, inadequate.

1

Goodman (n 36) 46.

11...