Sources of International law

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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