International Sources of Law

International Sources of Law

Introduction

International law, which is also referred to as the law of nations, is a set of rules put in place to regulate the actions of sovereign states regarding the relation with other states. During the 19^th century, legal positivists recognized the need for sovereign countries could limit their authority by consenting to agree with the principle of pacta sunt servanda. According to Besson & d’Aspremont (5), the consensual aspect of international law is reflected in the statue of the Permanent Court of International Justice established in 1920, and the sources of the law are preserved in the 1946 statue, Article 38(1). Article 38(1) of the International Court of Justice statue is generally considered to define the sources of international law (Pellet, 4).   The statue requires the International Court of Justice to apply the following items

• International conventions with rules that are expressly adopted by the states involved
• International customs that evidently describe the general practices that are accepted as law by states
• The general principles of law that are adopted by civilized states
• Judicial decisions and teachings, as described by article 59 shared by highly qualified persons from member states Besson & d’Aspremont (6).

Among the major sources generally recognized by article 38(1) include treaties among states, international customs, principles of law that are widely recognized, scholarly writings and judicial decisions by international courts. The sources contain processes and materials where the principles and rules regulating the actions of international communities are derived. The rules and principles are significantly influenced by legal and political theories (Brunnée, 8). Each item will be discussed more in-depth in the next stage in trying to understand what each item contains

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1. Treaties or International Conventions as Law

Treaties and conventions are important sources of international law and are generally referred to as hard law. Treaties can simply be described as contracts between two or more states, that vary based on purpose. For example, two or more countries could sign a defense treaty or an extradition treaty to help curb insecurity and crime between two or more states. Besides, treaties could be legislated by to regulate certain aspects of relations internationally or be included in the constitution of multinational organizations. Regardless of subjectivity and relative scope, treaties are considered law because they possess the legal obligation for parties to obey (Chimni, 8,10). Article 38(1) of the International Court of Justice refers to treaties as international conventions and considers treaties as a source of contractual obligation. In addition to the expressive acceptance of obligation by states or nations through conventions, the contractual obligation can also be developed when states/nations accept to become a party to an existing treaty formally. For a treaty to be considered a source of law, the source of obligation of the treaty must have the capacity to affect other parties, not forming part of the treaty extensively. Therefore when the methods and procedures create legally binding treaties, instead of a simple source of obligation, then the process formally becomes a legal rule for creating law.

Treaties as Customs

The codification of existing customary law among states and nations has resulted in the creation of treaties that govern global commons. The effectiveness of the codified treaty for the general application depends on the number of nations or states that ratify the convention in question. However, very few treaties of this nature have been established with sufficient members to be recognized as international law independently (Chimni, 15). A general example of a treaty of customary nature is the Geneva Convention of 1949 that seeks to protect the rights of the victims of war by prosecuting perpetrators and, to some extend, offer compensation. Most treaties lack this capacity to reach a near-universal acceptance, which primarily depends on the ability of the provisions being considered to represent international customary law that can indirectly become binding even to non-parties. A treaty may become binding to nations without their ratification when;

• The rule to the treaty is derived from existing customary law; hence the treaty is clarified in reference to the provisions of the treaty. A good example is the Vienna Convention of the Law of Treaties established in 1969 that was recognized as law by the ICJ even before it had officially been enforced.
• In the process of developing a customary rule, a multilateral treaty is incorporated, thereby causing crystallization or a consolidation of a new law based on the rule. This method is rare and sometimes even more difficult to identify when it happens. In the event of a less developed practice, the provisions of the treaty may not favor the consolidation of the new rule as an international law of customs (Hrestic, 105).
• The definition of the new rule to a treaty takes a broad approach leading to the inclusion of many states or nations, enabling the acceptance, adoption, and practice of provisions to the treaty by states which effectively render it as customary law.
• The ICJ has determined “instant customs” that represent customary law without explaining whether states ratify the provisions of the treaty. For instance, the Vienna Convention contains several provisions of this nature. If considered “instant custom,” a treaty becomes valid law. It denies non-party states the opportunity to assent to the treaties since the new rule automatically considers all states as parties.

The United Nations Charter

The United Nations Charter, Chapter 16, Article 103 provides obligations to state members that override the provisions of any other treaty. However, the Charter’s preamble affirms the development of a binding obligation from treaties as international sources of law (Hrestic, 110).

2. International Customs

The International Court of Justice (ICJ) statues. Article 38(1) (b) considers international customs as a rich international source of law as long as they are accepted and consistently practiced among member states. The provision requires for customs to be considered as international sources of law to exhibit consistent state practice and an acceptance obligation (opinio juris). International customs as sources of international law derive authority from the consistency of practice, which was originally from the western countries in addition to the opinio juris – the state conviction that consistency in practice is obligated by law (Hrestic, 104). Treaties have overtime been developed to replace these customary international laws. The action of replacing customary law can be compared with the replacement of the common law by codified law within municipal legal settings. However, customs continue to contribute to international law significantly.

State Practice of Customary Law

When understanding the relevance of international law, it is important to examine the activities of the constituent organs, national or states, and the relationships between the organ and state with the international community. There is a prevailing debate that seeking to draw distinctions between the weights exerted on what states do against what they say in regard to the law (Chimni, 21). This would allow international lawmakers to reject what states propose as customary law without the evidence of practice within the same states. A more relevant approach would allow law-makers to evaluate what a state proposes based on the specified context of why such statements were made. It is imperative to say that powerful countries with extensive international interests and contacts have the upper hand when it comes to getting the opportunities to contribute to the making and practicing of international law.

The primary approach to contributing to the practice of international law is through international organization meetings such as the UN General Assembly that allow member states to express their views before voting to ratify new rules. Sometimes this approach to customs causes contradictions because opinions by some states may be the only perceived evidence of how the rule may function (Heffes, 490). The notion of practicing customary law requires that states’ customs should be consistent, common, and concordant. Given the diversity in size and composition of the international community, it is important to recognize that the practice of particularly customary law does not have to happen in all states uniformly. However, there is a need to establish sufficient participation among states that can promote substantial ratification.

In the event of a dispute between states, it is important to establish the general applicability of customary law in practice. For instance, a rule may sometimes only apply if the state in question has accepted the law individually or the disputing parties belong to a convention group where the rule applies. A state can oppose the applicability of a rule by providing proof that demonstrates a prior consistent objection to the law as a member of the international society of a regional group (Hrestic, 107). Though, it is quite difficult for a single state to maintain opposition to a rule universally accepted by the majority of the international communities. Rules of a jus cogens possess a universal obligation and are binding to all parties regardless of their individual wishes.

The practice of Customary Law by International Organizations

It is clearly notable that international organizations’ practices such as those by United Nations through the General Assembly or Security Council form additional international sources of law, although it is not mentioned within the ICJ statues article 38(1) regarding international sources of law. Article 38(1) of 1946 is founded on the corresponding 1920 statue provisions of the Permanent Court of International Justice emphasizing on the current role international organizations play in the international law-making process. This transformation is supported by the vivid mentioning of “civilized nations,” which seems to promote inclusiveness, especially after the end of colonization in the 1960s and the subsequent participation to the United Nations by all countries in the world.

Opinio Juris

Opinio juris implies that the practice of customary law is carried out in a manner that provides consistent evidence of obligation as if required by the rule of law. However, in normal practice where cases with evidence of say, for instance, the prohibition of specific actions, the consistency of adherence to the conduct requirement cannot be applied as proof of the existence of any customary rule by international law. A good example is the use of a nuclear weapon, which has never happened again since the end of WWII. The lack of use does not imply that using a nuclear weapon is illegal based on the customary obligation because it lacks the opinio juris aspect. Although the International Court of Justice consistently considers opinio juris at the same level as state practice, it recognizes the significance of the psychological element in the making of customary law.

Jus Cogens

A jus cogens is a peremptory norm that simply refers to a “strong law” (Besson  & d’Aspremont, 12). The term refers to an international law principle that is considered vital to the extent that it overrides other international sources of law, including the UN Charter. The jus cogens principle is founded on the ICJ statues Article 53 of the Vienna Convention regarding the law of treaties. The article states;

“for the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (Besson  & d’Aspremont, 12).

The rules of jus cogens are definitive and generally direct people to act in a certain manner or prohibit them from acting in a prescribed way. To some extent, they describe defining certain criminal offenses that member states should enforce within their territories against criminal individuals and organizations. They offer guidelines through a list of norms that prohibit crimes as well as international wrongful acts such as war crimes, piracy, crimes against humanity, genocide, slavery, apartheid, and torture. The nature of the emergence of jus cogen rules essentially requires the establishment of a similar law at the state level, thereby a customary international law. European Court of Human Rights has been advocating for public policy regarding jus cogens (McKenna & Arvidsson, 9). Basically, jus cogens can be considered a special custom’s principle enhanced by opinions juries.

3. General Principles of Law

The scope regarding the general principles of law, in reference to Article 38(1) of the International Court of Justice statues, is, to some extent, controversial and unclear. However, the legal principles are generally applicable across a large number of state legal systems (Paparinskis, 3). Based on the limitations of customs and treaties as international sources of law, the Article 38(1) provides a basis for international courts to cover any gaps in law by applying the general principles of law and prevent nonliquets in judicial decisions (Mälksoo 6). During the initial stages of international law formation, most of the rules were drawn from state and municipal laws. Legal positivists opposed the idea of developing international laws from various sources without the consent or will of states. Instead, they advocated for an approach that allowed the application of general principles as long as they have been accepted and practiced by states as a constituent of their legal order. Article 38(1) refers to the general principles of law as the principles recognized by states.

The influence of general principles of law, however, has been had considerably been lessened significantly by the increased signing of treaties between states and international organizations. Nevertheless, equity and estoppel concepts have greatly been applied in the resolution of international disputes. As a result, a state may be stopped from imposing a centrally legal situation in dealings with other states or international organizations after encouraging them to believe in a certain factual or existent of a particular legal situation (McKenna & Arvidsson, 7). For instance, the good faith principle is considered by the ICJ as an important principle that governs the process of creating and performing legal obligations. Equity is equally considered as a vital principle because equity cannot be applied in the subversion of legal rules; instead, it reinforces the rule of law. However, such principles as equity and estoppels do not necessarily retain all the connotations under international law as they do through national law. The term “general” implies that rules accepted and adopted by a state or municipal law can sufficiently be replicated in other jurisdictions with a relatively similar level of impact (Paparinskis,13). Therefore, municipal and state laws act as sources of inspiration for international law instead of a direct source of rules for international adoption.

4. Judicial Rulings and Legal Scholarly Writings

The ICJ Article 38(1) (d) calls for the application of judicial rulings as well as juristic teachings from highly qualified legal experts and public figures as auxiliary sources of international law (Thirlway, 41). It is yet unclear to what extent juristic writings and judicial decisions have impacted on the process of law development. Most of the pleadings before the International Court of Justice are based on legal literature and case law.

Judicial Rulings

The decisions by municipal/state courts or the international courts and academic publications simply refer to sources of law and also as a means to recognize the law as established by other sources. The ICJ in practice never refers to domestic rulings while making judicial decisions; rather, it applies previously ruled case laws. In international law, stare decisis rule does not exist because a court ruling has no binding authority except only between the involved and in reference to that case in particular. However, the ICJ judges normally apply previous rulings and the advice of experts in explaining the support to the ruling in the current case. The ICJ has generally and consistently considered resolutions by General Assembly as indications for International customary law evolutions.

Legal Scholarly Writings

The ICJ statues Article 38(1) (d) emphasizes the use of “teachings of the most highly qualified publicists of the various nations” as part of the auxiliary international sources of law that can be applied in determining the rule of law. The scholarly works of legal experts do not form part of the international sources of law; instead, they provide essential grounds for developing the rules that are applied in general principles of law, treaties, and customs as sources of law. As a result, the juristic writings are basically accepted for the interpretation of international law.

Hierarchy of the sources of international law

The international sources of law remain the primary question regarding international law, probably because of the challenges it brings to the law-making process. It is fundamentally important to identify and apply valid international customs and norms in international law practice (Prost, 285). This calls for a proper understanding of the statues and nature of international law when it comes to legality. Understanding the international sources of law requires a brief explanation of the origin of the law’s claims and normativity to state authorities and the justification and legitimacy in order to impose exclusionary reasons for subjects to obey. According to Prost (285), proper understanding of the legitimacy and justification for international law calls for one to have deep knowledge regarding the hierarchy of the international sources of law. As noted by Prost (285), in the event of a contradiction among the international sources of law in disputes between states, the regulations established through treaties take first preference if they do exist. Other studies argue that international customs and treaties possess equal validity as sources of international law. This happens when new customs are established and supersede existing treaties, or newly established treaties supersede current customs. Scholarly writings and judicial decisions are considered as auxiliary sources of international law. Principles of law recognized by civilized states still remain highly contested on whether they can be recognized as auxiliary or principal sources. Nevertheless, customs, treaties, and the general principles of law are universally recognized as the primary or principal sources of law.

A philosophical account of international law

The philosophical understanding of law presents an interesting aspect of accounting for the international sources of law in the law-making process. The theories regarding international law are starkly contrasted where legal positivism theorists lie on one end and the natural law and spectrum theorists on the other end. The contrast results to what we call Manichean opposition to the law of treaty (posited law) and customary and general principles of law (natural law) (Roberts & Sivakumaran, 22). The main reason for the existing differences and opposition rests in the modern order of international law, which equally protects the sovereignty of states. As a result, this protection principle has significant implications on the authority of international law and its sources because a state is only bound by the laws that they consent to. Based on consensualism, the level of authority of international law can be categorized into three classes;

• Subjective content authority implies that the authority of the law is limited to what different states t have consented to
• Relative scope authority means that the authority of the law is only limited to the states that consent to the law
• Single degree basis authority meaning authority is determined by consent of every state separately

Therefore, the existence of binary opposition is no surprise since it is derived from the bare opposition between natural law and legal positivism. The legal validity of the international sources of law addresses the issue of legal positivism through consent. It derives validity from being consented to by states, whereas natural law derives its validity from its generally accepted moral content. The issue of legal validity of the legal sources poses double difficulties. First of all, consenting to the law is primarily the approach to legitimacy and normativity but does not immediately refer to legality (Roberts & Sivakumaran, 25).

Consequently, states’ consent to the law is not the most important aspect of enhancing the legitimacy and normativity of international law. Therefore, it is critical that the theory regarding the international sources of law be separated from legal positivism. Legal positivism is, however, founded on the necessary consent to international law, and the opposite is equally true. Non-consent to international law legitimacy promotes a natural law approach. Secondly, legal positivism does not imply consensualism, and to a greater extent, the opposition to natural law theorists is extremely exaggerated. The aspect of legal positivism is compatible with any imperative, universal, and objective international law and does not contradict majoritarianism (Besson & d’Aspremont 34). Therefore the opposition natural law accounts and legal positivism is less expansive diametrically as purported to be. The philosophical account of the international sources of law does not offer a detailed explanation of the sources; instead, it provides a basis for theory development. Forming theories does not imply descriptive sociology but offers the basis to establish the standards for a legitimate and coherent practice of international law. Theorizing provides normative grounds to present and describe international sources of law. The process allows the adoption of a positivism approach to sources and facilitates peaceful cooperation and global justice across global subjects whose understanding of justice differs significantly. The philosophical proposed account of international law is based on the democratic theory sources whereby the international law-making process is democratic by promoting inclusion and mutual respect of involved states to facilitate smooth legal coordination using persistent and pervasive social and moral pluralism.

A legal account of international law

It is very interesting how confidently international legal scholars approach the question of international sources of law. Most scholars answer the question by referring to the International Court of Justice statues Article 38(1) that describes the sources of international law (Pellet, 46). Though the article contains valuable information regarding the international sources of law, a large quantity of the sources has since become obsolete since its inception in 1946. Among the sources quoted by the article include treaty law, general principles of law, customary law, as well as other auxiliary sources like judicial rulings and scholarly writings by legal specialists. The most prominent drawback of the legal account for international law sources is the perceived uniform authority of the laws across consenting states despite the significant differences in state practice. It is important to note that international law-makers tend to be collective in nature because they are mainly represented by international organizations, states, and sometimes individuals. On the other hand, the primary law-makers of state laws are individuals though not at their personal capacities but as qua officials or citizens.

At an international level, law-making takes a plurality approach because it consists of various law-makers who participate in the international law-making process at individual capacity instead of official capacity by internationally representing a political community (Besson & d’Aspremont 27). States have traditionally been tasked with the role of law-making and have singly established law that governs the individuals of the state and even international communities like international organizations. Therefore, there is a misplaced congruence between legal subjects and the international law-makers because congruence represents the primary claim to a democratic and constitutional order. The state law-making process takes a legislative form consisting of legal orders where other players play marginal roles. In contrast, there is no single international body that is tasked with legislation hence the reason why it assumes pluralism approach by applying various recognized sources. Consequently, the international law-making process intermingles the various sources that increasingly influence and complement each other.

Treaty law has increasingly been a prevalent source of international law. However, customary laws continue to provide the foundation of international law by forming the basis of multi-lateral treaties and law codification (Petrova, 140). Customs traditionally form the backbone of social rules and norms, and these social norms and rules sometimes differ from one society to the other. The state’s legal order is normally unitary and centralized with an established definitive hierarchy of sources within different aspects of the national or state law. The international sources of law present a great challenge because it is vertically pluralistic in nature; hence the legal sources lack hierarchy, and the horizontal plurality offers a pragmatic approach for parallel legal regimes based on the subject matter, region, etc.

Another challenge facing the legal account for international sources of law is the noticeable blindness to the recent significant changes that have affected the international law-making process. Based on the legalization of international law, the population density has grown significantly with various new norms being adopted in the law-making process (Petrova, 140). At the same time, some issues previously left to the state/national law-making process have increasingly been adopted for international law. Besides, due to the increased population density, the legal subjects have grown too, and the legal monopoly of law-making has been shifted from state qua lawmaking to a larger extent to include international organizations and, to a lower extent, individuals. The emergence of more law-makers has led to the institutionalization of the law-making process that is more inclined to a quasi-legislative or a multilateral process. According to Besson & d’Aspremont, (30), the normativity of the international law has as well evolved from a subjective position to an objective position, from a relative position to a universal position and from a single degree law to the current one that varies from soft to a more robust and imperative law.

Conclusion

The consensual aspect of international law is reflected in the statue of the Permanent Court of International Justice established in 1920, and the sources of the law are preserved in the 1946 statue, Article 38(1). Article 38(1) of the International Court of Justice statue is generally considered to define the sources of international law. Among the major sources generally recognized by article 38(1) include treaties among states, international customs, principles of law that are widely recognized, scholarly writings and judicial decisions by international courts. The sources contain processes and materials where the principles and rules regulating the actions of international communities are derived. The rules and principles are significantly influenced by legal and political theories.

Treaties and conventions are important sources of international law and are generally referred to as hard law. Besides, treaties could be legislated by to regulate certain aspects of relations internationally or be included in the constitution of multinational organizations. Regardless of subjectivity and relative scope, treaties are considered law because they possess the legal obligation for parties to obey. The ICJ statues Article 38(1) (b) considers international customs as a rich international source of law as long as they are accepted and consistently practiced among member states. The provision requires for customs to be considered as international sources of law by exhibiting consistent state practice and an acceptance obligation (opinio juris). Besides, general principles of law are considered legal principles when they are generally applicable across a large number of state legal systems. Based on the limitations of customs and treaties as international sources of law, the Article 38(1) provides a basis for international courts to cover any gaps in law by applying the general principles of law and prevent nonliquets in judicial decisions.

Nevertheless, it remains unclear how many juristic writings and judicial decisions have impacted on the process of law development. Most of the pleadings before the International Court of Justice are based on legal literature and case law. ICJ judges may apply previous rulings and the options of juristic experts to create support for a judicial decision. However, they are not direct sources of law; rather, the content can be used to develop rules for customs, treaties, and general principles of law.

References

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