International
law has been defined by Grotius as rules and principles that govern states in the international system to drive
their national interest. Starke (2010) has stated that: “International law
consists of a system of laws, the majority of which applies to states but also
regulates activities of individuals and international organizations when it
becomes the concern for the international community.” Law is necessary so as to
preserve international peace and security as well as allow states to achieve
their national interest. For any study of the sources of international law
Article 38 of the Statute of the International Court of Justice1 is always the
starting point, which is recognized as a definitive statement of the sources of
international law. The legal approach applied to the study of international
politics, stands on the assumption that law prescribes action to be taken in a
given contingency and also forbids same in certain others situations; it even
fixes the limits of permissible action (Johari, 2011)
The
question of sources is fundamental in any system of law. The first three
sources listed are treaties, custom, and principles of law, are sometimes
referred to as "primary sources", whereas the last two, judicial
decisions and the teachings of publicists are referred to as secondary
sources" or evidence of international law rules.International legal system
can accommodate the changing requirements for regulation by: law making in new
areas; and by upgrading and refinement of existing laws, in the light of its
law sources.It
is realized that the term “sources” entails many different, sometimes,
conflicting meaning. Herbert Briggs states that the confusion of the term
“sources” describes it as the methods or procedures by which international law
is created. George Schwarzenberger proposed the term law creating process for
primary sources thus treaties, customs and general principles of law; and law
determining agencies for subsidiary means for determination of law that is
judicial practice and doctrines.
TREATIES
A
treaty is an agreement creating binding obligations between subjects of
international law (Umozurike, 1993). Treaty are of two types namely;
bilateral/contract and multilateral/law making treaties. Treaties are known by
many other names like agreement, convention, covenant, charter, pact, memorandum
of Understanding, etc. They are the most obvious source of international law. Long
before the establishment of UN and ICJ, in the 19th and 20th centuries,
manytreaties and conventions played a great role in the development of
international law, such as Geneva Convention 1864, Hague Conventions of 1899 and
1907, Treaty of Locarno1925,Law of the Sea to name a few. After establishment
of UN in 1945, treaty acquired the most important mode of development of
international law, starting from Bill of Rights28 and various sectoral
instruments under the United Nations Treaty Series many thousand treaties have
been registered with the United Nations.A contract treaty is one that merely
regulates a specific relation between two or more states, such as; extradition
law, transport agreements, bilateral investment treaties, etc. A law making
treaty on the other hand lays down rules for a number of states. Some treaties
have been quite successful because they have been ratified by most countries. A
good example is the Vienna Convention on diplomatic relations. Others suffer
like the law of the sea which was initiated in 1973 but took up till 1994
before it was ratified by only 60 states (Schreuer, 1999).
Despite being the most conspicuous of the sources, treaty is bedeviled by some
fundamental shortcomings. The first is that, even after entering into force, a
treaty only binds those countries that have given explicit consent to be so
bound. Secondly, a treaty becomes weak if a powerful country ceases to recognise
the dictate of such a treaty. Another setback is that a state can attach far
reaching reservations which permits them to exclude or modify the legal effects
of certain provisions of treaty; a good example is the 1979 convention on the
elimination of all forms of discrimination against women which was ratified by
many Arabian states but subject to far-reaching reservation. In the same vein,
other states may raise objections to a reservation made by one country thereby
leading to legal battles and weakening the effectiveness of treaty.
Furthermore,
the interpretation and application of treaties is complicated by different
language versions and the diverse social context under which lawyers operate.
The ineffectiveness of the bilateral treaty as a source is made obvious
according to Schreuer (1999) in that “to create a network of bilateral treaties
among all 188 (sic) members of the United Nations, would require over 17000
such treaties” Similarly, such treaties are likely to display variations and
consequently do not create uniformity and equality of treatment.
INTERNATIONAL CUSTOMARY LAW
Custom
is the oldest and the original source of international law as well as law in
general.It is the foundation stone of the modern international law.When a usage
receives the general acceptance or recognition by the states in their mutual
relations, it is understood that such habit or usage has become right as well
as obligation of the states; it becomes a custom. The mere fact that a custom is
widely followed does not make it a rule of international law rather it must be
accepted by the states as legally binding in order to be considered rules of international
law, referred to as opinio juris. Depicting this fact the Article 38
(b)describes international custom “as evidence of general practice accepted as
law” which makes clear two essential elements of custom, namely practice and
opinio juris. Examples include armed protection of citizens
Judicial application
of international custom is understood in the ICJ rulings in S.S. Lotus case In
S.S. Lotus case (Turkish International Water) PCIJ (1927), where it was held
that “a new rule of customary international law cannot be created unless both
these elements as discussed are present.” Nicaragua v. Unites States of America
case, In West Rand Central Gold Mining Company Ltd. v. R. (1905) where a test
regarding the general recognition of custom was laid down. The court ruled that
for a valid international custom it is necessary that it should be proved by
satisfactory evidence that the custom is of such nature that it has received
general consent of the States and no civilized State shall oppose it.” Asylum
case between Columbia and Peru,Advisory Opinion On use of Nuclear Weapons
(1996)amongst other cases. Although an international court in the first instance
is bound to consider an applicable treaty provisions, in case of doubt, it is
interpreted against the customary rule. In case of any conflict of a treaty
provision with a jus cogen, it will prevail over the treaty. Customs may be
seen as the general practices of states that has become “constant and of
uniform usage” (ICJ Asylum Case Report in Umozurike, 1993). In essence, customary
law emerges from patterns of behaviour among states. Customs may be garnered
from the practice of states as in press conferences, official statements,
opinions of legal officials, official instructions to diplomats .
Custom
emanates somewhat from consent of the complex international community and thus
give it an upper place in the hierarchy of the sources of international law but
this notwithstanding, custom as a source of international law is still marred
by grave flaws. The first are a set of questions: how widespread must this
practice be? How long does it take to be established? How is one rule of
international law replaced by another such rule? These questions throw great
doubt into customs as a source of international law. Secondly, customs are
often somewhat vague and open to conflicting interpretations. Thirdly, if the
perceived interests of certain states change, so will their attitude towards
customary international law and a particular rule may be challenged. This
therefore leaves the rule of international law at the mercy of the selfish
national interest of states. Also, a custom may cease to exist through the rise
of conflicting customary rule or conventional rule (Umozurike, 1993)
Furthermore, it is practically impossible to study the practices of all states
so as to derive a universal customary law. Moreover, countries custom is a
product of their specific economic, social along with political environment.
GENERAL PRINCIPLES OF LAW
This
source of law under the statute of ICJ refers to general principles of law recognized by civilized nations. For example Law of Sea that binds the
usability of high seas which are not owned by any state.The UN maintained that the
general principles of law recognised by civilised nations are certain legal
beliefs and practices that are common to all developed legal systems.It is
similar to treaty and customary law theoretically but in practice, they are
used mostly to close gaps left by treaties and customary law (Shaw, 1997). In
essence, if there is a relevant treaty or custom, general principles do not
apply. Most modern jurists accept that general principles of law are principles
of law common to all national legal systems, in so far as they are applicable to
relations of States.
They
also mean rules or standards which we find repeated in much the same form in
the developed systems of law, either due to common origin, or expressing a
necessary response to certain basic needs of human associations. Examples are:
the rules of pacta sunt servanda, that contracts must be kept; reparation must be
made for damage caused by fault; the right of self-defence for the individual
against attack on his person, family, or community against clear and present danger;
for one’s own cause no one can be a judge; and that the judge must hear both
sides. Perhaps the most important general principle, inherent in international
legal rules, is that of good faith, enshrined in the United Nations Charter,
and its elaboration in the Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation among States adopted by the General
Assembly in resolution 2625 ,1970).
Judicial
applications of general principle are provided by the Arbitration Tribunal in
the Republic of Indonesia case, Nuclear Tests case The International Court
declared in the Nuclear Tests cases that: One of the basic principles
governingthe creation and performance of legal obligations, whatever their
source, is the principle of good faith.Trust and confidence are inherent in
international co-operation, in particular in an age when this cooperation in
many fields is becoming increasingly essential. Just as the very rule of
pactasuntservandainthe law of treaties is based on good faith, so also is the
binding character of an international obligation assumed by unilateral
obligation.Chorzow Factory case in 1928 ,Barcelona Traction case (1970),
Administrative Tribunal case,and others.
The
significance of general principles has undoubtedly been decreased by the increased
intensity of treaty and institutional relations between states.The principles
of equity in the international context do not retain all the connotations they
do under common law.The reference to the principle as ‘general’ signify that,if
rules were to be adapted from municipal law,they should be at a sufficient
level of generality to encompass similar rules existing in municipal systems.
JUDICIAL DECISIONS.
According
to Article 38(1) of its statute,the ICJ is also to apply judicial decisions. States
how states should behave towards each other ,guarding international
relations.For example the Max Huber’s arbitration of island of Palmas case
acquisition of territory.Judicial decisions therefore do not make law but are
declaratory of pre-existing law qualifying them as, indirect, law identifying
or material sources of law. Article 59 of the Statute of the International Court
of Justice,provides that decisions of the courts have no binding force, except
for the parties and in respect of the case concerned. Contrary to the Common Law
the doctrine of precedence does not exists in international law, still we find
that the Court itself in its decisions, the states in their disputes and legal
writers in their scholarly works quote judgments of PCIJ and ICJ as an
authority.56 Thus even as a subsidiary source, judicial decisions are important
in the determination of the existence of the legal rules and their content. A
unanimous, or almost unanimous, decision plays an important role in the
progressive development of the law, e.g. the decisions and advisory opinions in
the Reparation, Genocide, Fisheries, and Nottebohm cases have had decisive
influence on general international law
WRITINGS OF PUBLICISTS.
Article
38(1) of the ICJ states that the teachings
of the most highly qualified publicists of various nations are subsdiary
means for the determination of the rules of law. The scholarly works of
prominent sources of international law are essential in developing the rules
that are sourced in treaties,custom and general principles of law. With marked
influence in the history of international law from 16th-18th century writers
such as Gentili, Grotius, Pufendorf, Bynkershoek and Vattel,latterly scholars
such as Florence Knightingale, Henry Dunant.were considered authorities in
determining the scope, form and content of international law; at present
juristic writings are considered a material or evidential source only.
Textbooks are used as a method of discovering what the law is on any particular
point rather than as the source of actual rules, and the writings of even
the most respected international lawyers cannot create law.
INTERNATIONAL
BODIES
These
in some instances might be a source of law thus the international economic law
commission, the international telecommunications union such as FIFA,such bodies
are source of law in their own entity.
JUS
COGEN refers to the peremptory norms of international law, which cannot be broken such as Acts
that pose a universal threat against humanity. These are acts that warrant
international public opinion for instance the use of nuclear weapons, chemical
weapons, and terrorism amongst others
On the other hand
though international law has potential as a source of conflict resolution one should
bear in mind that law is itself a source of significant conflict hence can be
viewed as a myth.Often International Law favours particular group or countries.
Not only is it influential when it favours the strongest but the powerful are
also typically the source of law. For instance,because much of international
law is formed by the U.N,the Security Council has influence in shaping
it.International law has been criticised as fundamentally Western, based on
western notions.Scholars have argued that widespread acceptance of
international law is evidence that the principles on which it is based are
strictly Western, the developing countries are however not entirely free to
accede to these rules, Western countries are able to provide incentives for
less powerful countries to accede their own wishes,meaning international law
has at least some force behind it, not nearly much as domestic legal systems.
The
United States frequently violates every principle of international law ever
envisioned,unprovoked wars of aggression,tortures and assassinations of enemies,sales
of nuclear weapons,destabilization of unfriendly governments,creating the
largest prison population in the world, the list is virtually endless.Laws
binding such acts exists in theory not in practise As international law has no governing
body or military force with power to intervene then one tend to wonder what
good does it do to invoke principles.
According
to Marks,S(2005) ‘international law’ must at least leave its route of ‘might
always make right’.Kennedy.D(1987)viewed international law as a constituent of
politics and it has failed millions,that is not an occasion but systematically.Also
it is a determining force in global affairs but lacks the capacity to further a
just international order. As proved by the tendency of the ICC as the only scapegoats investigated
for war and humanitarian crimes have always been either African or Asian Arabs.
Thus Mugabe (2005) had to say “the whole human rights agenda have degenerated
into a western managed Kangaroo Court”.Not to say that there should be human
rights agitation at all but to say if jus cogens are indeed are of paramount
importance the they should not have any double standards connotations and
should apply to every states.
For
example USA and the EUROPEAN countries played a pivotal role as the watchdogs of
Human Rights violations and war crimes.It’s so controversial how and why they
continue to wage dangerous wars which results in deaths of millions if they are
concerned of those jus cogens, it’s not a century after the atomic bombings of
Hiroshima and Nagasaki, it’s not two decades after the bombardment of Kosovo by
NATO and it’s not seven months after the Nacanyaru and Cohorts were inflicting
some casualties on the people in GAZA if
international law was a reality such incident wouldn’t be existent.Therefore is
open to be debated and viewed as a myth.
International
Law stipulates that one’s state’s sovereignty should be sacred and respected to
mean that Somalia’s decision should be equal to Britain’s decision,every state
has the right to decide what is right for its own people.However the North has
continually abused its dominant status quo to violate state sovereignty. This
is exemplified in by the events which perpetrated the death of Gadhafi in
Libya, Saddam Hussein in Iraq .Such Acts were against the customary Law
non-intervention protocol particularly on the use of force. Hence as long as
the military superior continue to do as they deem necessary the international
law continues to be a fable.
Moreover
there are some states which have violated treaties as a paramount source of
law.The principle of Estoppel has suffocated under the command of buffoons.This
principle states that when a certain state rectifies a treaty or concession it
becomes a guiding principle in future in order to promote consistency and
harmony.In the La Grande Case 2001 USA violated the Vienna Convention
Article32(1) but no action was taken against her. Britain and the EU at large
had to be reminded that they were signatories of the Arms Treaty of 2April 2013.As the treaty
stipulated that if the exporters of weapons knows that their beneficiaries of
certain weapons will cause war crimes against humanity, its therefore an
abomination to send those weapons. But their intent to promote banditry in
Syria is aaggravation of the treaty. As usually they evaded indictment.
Therefore as long as power politics is always applied in conjunction with
global statutes international law remains a myth.
CONCLUSION
The
above arguments and cases point towards the conclusion that Article 38 is quite
comprehensive in detailing major formal and material sources of international
law; describing treaties, customs and general principles as the major formal
sources,providing general principles as filling the gaps between customary
rules and treaties; and as subsidiary means providing judicial decisions, which
has now become a trend setting evidence of immense value in determining the
rules of law, reflected in the teachings of the most highly qualified
publicists of the various nations which are also described as subsidiary means,
under the same provision of the article. Judicial decisions however, will
remain subsidiary as they are fact specific and apply to the states concerned
only. Subject to states’ concerned consent provision of equity is also
available. Still the Article cannot be considered totally exhaustive in its
provisions as other subsidiary means provided also contribute in the
complexed ever growing matters and phenomena of the international community,
in the spheres of public as well as private international law.
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