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Published: Fri, 02 Feb 2018
The sources of international law
Article 38(1) of the statutes of ICJ provides a reflection of the sources of international law, though not accurate and Article 38 did not expressly mention ‘sources’ but it is usually invoked as sources of international law. Sources of international law can be characterized as ‘formal’ and ‘material’ sources, though the characterisation is not by hierarchy but for clarification, therefore, Article 38(1)(a-c),that is, conventions or treaties ,custom and general principles are formal sources whereas Article 38(1)(d) that is, judicial decisions and juristic teachings are ‘material sources’.Formal sources confer upon rules an ‘obligatory character’, while material sources comprise the ‘actual content of the rules’ This essay will consider the accuracy of the sources and other law making means
Article 38 (1) International Conventons
International conventions can also be referred to as bilateral and multilateral treaties, that is, UN charter, as well as other conventions and covenants thereafter. Treaty is as ‘an international agreement concluded between states in written form and governed by international law whether embodied in a single instruments or in two or more related instruments and whether in particular designation’.
Treaties are governed by some rules under international law; First,Treaties are voluntary in
the sense that states cannot be bound by agreement without its consent. States are bound only if they are parties to a treaty, though there are exceptions to this,i.e,delimitation of territorial boundaries bind all states, they are ‘ergo omnes'(against the whole world) Secondly, agreement and consent is by ratification of states, signature, and expression of consent to be bound and states are bound only by reason of their consents Thirdly ,when parties consent to treaties that codified existing customary law, two things happen; The states that are parties to the treaty are bound in the normal way and states that are not parties to the treaty originally are bound by the treaty because they are ‘rooted in customary law’ and states that are not parties to a treaty that codified existing customary law into code of conduct to order state future activities will still be bound by the treaty .This indicates that customary law can become treaty and vice versa if there is no sufficient ratification for such treaty, even after ratification, they can still overtake each other in term of superseding preferences no matter which one is older. The fourth rule is that treaties must be deposited at the secretariat of UN and published if ratified by states pursuant to Article 80 of Vienna convention on the law of treaties and Article 102 of the UN charter; whereas, unregistered treaty remain binding between parties but it may not be invoked before court of Justice or any of the UN organs. Treaty is a means of creating obligations and binding law for states and when state violates the treaty, it has violated the law.
Is Treaty therefore a law or obligation? The question whether treaty create law or impose obligation generates debate streamlined between ‘contract treaties’ and ‘law making treaties’, that is, whether treaties are contracts that impose obligation or ‘law making’ leading to international law.In consideration of treaty as a contract, Lord Templeman in Maclaine Watson v Dept. of Trade and Industry said a ‘treaty is a contract between the governments of two or more sovereign states’ .Treaty is a product of negotiations between ‘legal equals’ which has contractual obligation between consenting parties. The rule that proposes obedience to treaties and make them binding is embedded in customary international law and this is expressed in the maxim ‘pacta sunt servanda’.The only law in this view is customary international law but all ‘specific detailed’ in the treaty obligation are not law but ‘legal obligation’. On the other hand, considering treaty as a source of law is plausible, trying to refer treaties as source of obligation is like concealing the important role they assuage in international law. States coming together to ratify a treaty is outright means of creating law. A state has created law for itself the moment it ratifies the treaty and therefore legally bound. If it violates the law, it has violated international law.
The two legal effects are interwoven, the classification into ‘obligation’ and ‘legal’ are similar in operation. if a state consent to treaty, the state is bound by the treaty either called ‘obligation’ or ‘law’ The distinction is therefore theoretical for the purpose of finding answer to the binding nature of international law.A treaty of contract otherwise known as ‘bilateral treaty’ may cease when the purpose for which it was entered had been achieved or terminated. A ‘Law making treaty’ or ‘multilateral treaty’, may be planned for enduring future purpose that will lead to an important customary law like law of the sea convention of 1982 which was made general for all states. It has been argued that treaties are binding on non-parties if they have customary law origin. In North Sea Continental Shelf case,ICJ ruled that for such to be binding,‘it would in the first place be necessary that the provision concerned should at all events potentially, be of a fundamentally norm creating character such as could be regarded as forming the basis of a general rule of law’.
The second procedure laid down by ICJ is that the provision in question ‘should have been adopted in the practice of a sufficiently widespread and representative number of state including those that are not parties to the treaty’.The third requirement is that opinio juris which form the basis of legal character of state practice be satisfied. Opinio juris and state Practice are elements of customary law. The sources are complementary and interrelated
but not necessarily hierarchical in the order of Article38. This seems to be the view of the court in Nicaragua v USA and Danube Dam casewhere it was held that ‘some of the rules laid down in the Vienna Convention on the law of Treaties might be considered as a codification of existing contemporary law’ .Dixon and McCorquodale said ‘the court confirmed that in general, the law applicable to a treaty is the law in force when the treaty itself comes into operation, even if customary law has developed further since then’. However, the court did not recognise that the ‘treaty itself might permit evolving customary rule to be relevant to its operation, this seems to be an attempt to introduce a coherency to the law irrespective of the source of any particular obligation’ Treaties can be invalid on many grounds inter alia, if it is in conflict with jus cogen..Treaty can as well be withdrawn, terminated, suspended and reserved. The other formal source is custom:
Article 38 (1) B- International Custom:
The important elements here are state practice, the tenacity and acceptance of such practice as law, also known as ‘opinio juris.’ Customary law may not be as ‘visible’ as treaty.‘ it represents the essential basis upon which modern human rights is grounded’.Custom is regarded as a form of ‘tacit agreement’, the behaviours of states to each other in an acceptable way leads to tacit accent to the acceptable behaviour. The problem of this view is that if agreement kicks it on, absence of agreement can kick it off.customary law emanates as law from practice of states .Dixon refers to it as the ‘foundation stones of the modern law of nations’ and this was backed up in the Gulf of Maine case that custom is the ideal right size for the general principles and always on ground to fill the vacuum any time obligation and law of treaties are not gaining global acceptance. Can customary law change? Customary law can change on the principle of ‘apprehension’ and ‘acquiescence’ but that does not mean customary law is not a strong rule of law, the process of customary law continuously is a good omen to international law because it can meet up with the timely needs of international law as the world and law develop, though, it may have its own disadvantages of more relaxed and slow formation process, it lacks certainty and visibility unlike treaty. it has advantage as regards to its variety of wide scopes in similarities with state activities. Treaty has advantage where custom has disadvantage, they are like twin pillars ready to work together in other to strengthen the sources of international law. Hugh said, ‘the way things have always been done becomes the way things must be done rules, international law does not deviate from the pattern discernible in municipal legal systems’.
State practice as one of the elements of customary law, it is a continuous and constant state practice of international acts over a period of time, Governmental actions, rule
makings and execution of policies, governmental declaration and pronouncement, administrative procedures and policies within states constitute good links and sources of state practice. In Assylum case (Colombia v Peru), to form customary law, it must be ‘in accordance with a constant and uniform usage practised by states in question’.This was stated in Fisheries case(United Kingdom V Norway).The ‘uniformity’ and ‘consistency’ test is ‘general practice’ and not a ‘universal practice’ and ‘practice of most influential and powerful states would carry the greatest weight’,deducing from the above, it doesn’t mean all states participation in the practice. ‘Once a practice is established as forming part of customary International law’, all states are bound including states and the new states that failed to contribute to the practice initially.Nevertheless, we can not rule out the ‘opt out’ possibility for the ‘persistent objectors’ at the formative stage of the law, as Thirlway put it, ‘an attractive option’ which will disallow the imposition of specific rule by the majority over the minority., it has been deeply criticised in international law, as a result of this, the practice is as stated earlier, states are bound as a general rule either as ‘objectors’ or not.
Consistency of state practice as another element is significant to the alteration of an existing custom. In Lotus case, the court said customs must be ‘constant and uniform’. It must not be ‘totally uniform and constant’; it must at least be significantly constant state practice to become customary international law. Also, it is well stated in Anglo-Norwegian Fisheries casethat the consistency required may vary in degree based on circumstance.
Generality of Practice as another element in customary law is about the knowledge of the Custom, to significant number of states. It is a general adoption of practice by state, in North Sea Continental Shelf Cases, it may be difficult to determine the number of state to participate in international law before a general practice can become law because it is not about majority of votes cast, the degree depends on the various subject matters.
Opinio juris is the second element broadly considered necessary for the formation of customary international law with state practice, Opinio juris which constitute ‘subjective element'(verbal act) while state practice is the ‘objective element'(behavioural act) and this was well articulated by Kammerhofer in his article that verbal act can form a practice with their content forming ‘expression of the subjective element’, a statement of an act and that ‘subjective element may be dominant factor in the behavioural act itself’. Dixion however holds that ‘state practice must be accompanied by a belief that the practice is obligatory, the belief in the obligatory nature of the practice is called the opinio juris’ but ICJ on several occasion refer to opinio juris as having equal footing with ‘state practice’ in Continental shelf case(Libyan Arab Jamahinya V Malta) and legality of Nuclear Weapons Advisory Opinion .Also in Lotus case ,opinio juris was seen as essential element of customary international law and this was affirmed in North Sea Continental Shelf Cases but the judges however held that opinio juris can not be implied from repeated activities, this made the proof of opinio juris difficult but the dissenting judges in the case realized the difficulty when they held otherwise in their minority judgement, its proof however depends on the subject matter, thus attainment of rule to jus cogen status required strong evidence of opinio juris apart from the fact of consistence state practice. In Nicaragua case where state practice and opinio juris was alluded to arrive at a conclusion that use of force had attained the status of customary rule of jus cogen before the advent of UN charter of 1945.The time element and duration of customary law varies.
The comparison of treaty with customary law is important because they are the two major sources of international law, the Nicaragua case mentioned briefly above affirmed the complementary relationship between treaty and international custom. It also shows that treaty may codify International custom and treaty may also revert to international custom if the treaty is abandoned by states. They are interrelated though there may be conflict where the interrelated part tends toward different obligations; ICJ may resolve the conflict depending on the stronger obligation. In the Nicaragua case, customary law will not cease to bind because it has been codified by treaty. Parties to treaty will be bound by it and the non-parties will be bound by custom. if treaty falls away, customary law will take over but where there is conflict, if treaty is latter than custom, it will prevail, this is based on common principle of law and more so that treaty is a deliberate ‘act of law creation’where custom is latter than treaty, the treaty will still prevail on parties.
Article 38 (1) (C)-General Principle Of Law:
This is unclear and controversial area of the source. Positivist earlier rejected this principle because it did not conform to state will and consent like treaty and custom, but they latter accepted it; provided it is accepted as part of state legal order. ‘The general principles of law recognised by civilized nations’ as a source tend towards exclusion of uncivilized nations. Naturalist believes it tends to incorporate natural law into international law, they believe law exist before any law whether treaty or custom, this differs from positive law. It is apparently conspicuous that paragraph 1(c) added nothing to the sources which treaty and custom had taken care of and due to this ICJ barely invoke it, it gradually went into oblivion and remain dormant until it appeared that new areas of international law had gap and the rule was revitalized and applied to area like international criminal law and international administrative law, recourse can be made to the general principle of law common to all ‘major legal systems of members of the community of nations’, if treaty and custom had been exhausted with gap,that is, estoppels, equity, and so on .Judge McNair in the ‘International Status of South West Africa Case said that national law can be a pointer to the type of rules that might be of assistance in international law like ‘the concept of limited liability’ in Barcelona Traction case.Whether procedural, administrative, or substantive rules, they can be imported to international law, it however need no treaty or custom for its validation. it is well settled that concepts have ‘pre-existing legal validity’.This principle tend more to dualistic doctrine.
Principle of equity is applicable to international Tribunals that is general principles of equity and fairness within the scope of paragraph 1(c).it applies in decisions according to law and not by abstractness outside law like ex aequo et bono in Article 38(2),example of equitable principle applied are acquiescence and estoppels in River Meuse case. Paragraph 1(c) may include ‘general principles of International law’ which are similar to principle in National legal system.In general, treaty and custom growth and intensity have reduced the weight of general principle of law as the source of international law.
Article 38 (1) (D) Judicial Decisions:
Article 38(1) d ‘shall apply subject to the provisions of Article 59,Judicial decisions…’ and Article 59 of the ICJ statutes states that the court decisions have ‘no binding force except between the parties and in respect of that particular case’. Judicial decisions are material area of Sources of law. Though, there may be no stare decisis as stated in Article 59, recourse can still be made by court to its past decisions res judicata and advisory opinion to substantiate current case as authoritative evidence of legal position, for example, in Nauru case,the principle of Nicaragua case were relied upon to reach the majority decisions. Also, judicial decisions constitute much of the source of ‘international maritime law’ and ‘it is clear that the ICJ pays great regard to both the actual decisions it has reached in previous cases and to the law it has declared therein’. It is submitted that ICJ participates in law making process and technical impediment on this is more in theory than in practice. Court participates in law making process through case law, judges’ rule and advisory opinion in breaking new area of international law. Dixon confirmed this by saying ‘The attempt to protect state sovereignty by limiting the functions of the ICJ and ICC to one of simple adjudication rather than law creation largely has failed’.Antonio also said ‘ICJ has gone so far as, in fact , to set new international rule in spite of its aforementioned lack of formal power to do so’ Writing of Publicists which paragraph1 (d) refers to as ‘subsidiary means’. Arbitral tribunals and national courts consult writing of publicist while international court make little use of ‘doctrine’ but where the writing of publicist is productive is the draft article, reports and secretariat memorandum produced by the International Law Commission and Resolution of the Institute of International Law Commission and that of the Institute of International Law. Nowadays the opinion of writers has become less important since states now express themselves well through organs of UN and most importantly that writers are subjective in their writings due to opinionated reasons.
Are These Accurate Reflections Of The Sources Of International Law?
The sources are not completely accurate, treaties are responsible for the formation of important Intergovernmental organizations like UN and EU, the organization are cardinal to national and ‘International concerns’. Treaties produced the constitutions of these organizations and birthed them especially the UN that has powerful organs like Security Council and General Assembly that control the affairs of the world by Resolutions. Treaties and Resolutions by General Assembly are ‘law making’ means. The positivist scholar believe that treaties and international custom now tend towards the legal positivism, they share the opinion that international law is binding only if it is rooted in state consent and that no other sources exist except consent found in treaty and custom.Treaty was criticised because its processes are ‘political’, that is ‘involving law making primarily by diplomatic means rather than codification and progressive development by legal experts’and loopholes in custom for its lack of visibility and slow formation process. Furthermore, one can not say that the source is accurate in as much as positivist finds expression in the ‘sources’ particularly treaty and custom which their formulation process could be slow and the inability of these to change with speed of international law and the solution is to keep the law out of strict positivism to adapt to new system of ‘legislation and administrative rule making’The states belong to UN and UN does produce vast amounts of law, that is law made by the system. The legislative ability of UN has escalated from ‘horizontal’ system based upon state consent towards a more ‘hierarchical’ system, it is submitted that accuracy of international law can at least be found in this if not totally found.
Impact of Membership in Intergovernmental Organization Law Making Process
States are members of the organizations like UN and EU; their resolutions are accepted and followed by action as legislation for the world community even if not technically binding as treaty. The means of Security Council law making is by resolutions passed by 9 Permanent and Non Permanent Member of the council without a veto of any of the G5 Members and in a meeting summoned by Secretary General, General Assembly 191 members come together to make law by means of treaty. Moreover, resolutions of General Assembly combined with opinio juris can form customary international law. states are bound by the decision of Security council by virtue of Article 25 and by implication, resolutions of UN creates law and its legislation which derives its power from the constitution, that is, charter is binding on its members and even non-members. A constitutional based organisation will produce better binding rule that is compellable on members than treaties. Intergovernmental organizations derive their formation from the treaty and after the treaty has formed them, constitution or charter of the organization is more powerful for decision making and super cede treaty. Some of these decisions may be ‘soft law'(non binding law) and some ‘hard law'(binding law);with the power of binding decisions and enforcement power of Security Council, European Union, law making are tending towards confirmation of the rationalist as against positivist that international organizations are graduating into centralized government to legislate international law. Security Council can come out with resolutions in form of treaties. It is submitted that decisions of the UN is a new source of international law and members are bound by it. This decision is even more potent than treaty, to produce law that are binding, declaratory and recommendatory, even Article 103 of the UN Charter confirmed this; though the founding treaty itself produced the constitution or charter of the UN. The constitution is not the same with normal ‘bilateral’ and ‘multilateral’ treaty which is not a continuous reference of application like the charter. The constitution itself gave power for UN resolution and UN resolution is a legislation that is binding in international law. The UN is a complete body of law making process in Security Council as Executive and Legislator, the legislative power complemented by General Assembly while ICJ is adjudicator and International law commission as the researching organ of the UN for law making development. What better impact could be rightly accurate in means and ways of law making process than this?
All the sources discussed above can all be found in the practice of UN and where they can not be found they kowtow and bow to the resolutions of the Security Council and it will remain binding on members and even on non-members, aberration of which can be faced with sanctions. It is submitted that UN has provided a true complement for the gap created in what is supposed to be accurate reflection of other sources of international law and its activities has positively affected law making ways by resolutions and faster means by 15 members of Security Council and 191 members of the General Assembly as greater needs
arise for fast development of international law codified by International law commission.
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