Another source of international law which impacts on sovereign states are treaties and, unlike custom, these are a more modern and deliberate method. For the purpose of this paper one will look at the law-making treaties, which are intended to have universal or general relevance, as opposed to bilateral treaties which are between few states. The reasoning for this is because it bears more international relevance because more states are involved. Article 38 refers to ‘international conventions, which establish rules expressly recognised by the contradicting states’, these conventions or treaties are express agreements which are agreed by states and bear a close resemblance to contracts in that these agreements once signed are binding on states. The sheer amount of international treaties has increased dramatically over the past century and it could be argued that this increase is due to the growing need for ratification of the concept of international law. Some treaties require the participation of a large number of parties in order o produce rules which can be binding on all, these treaties are a prescribed set of rules to be followed and an example of this could be the Genocide Convention. This particular type of treaty is a compulsory agreement which even if not signed by some parties is still binding due to it then becoming not only a treaty but a customary act. Therefore, although it can be difficult to ratify international law it can be imposed on states in some circumstances.
A further source of international law is the general principles of law which arises when there is no statute nor judicial precedent which covers a certain legal point. What this method does is deduce a rule which is best relevant to the point by using already existing rules or directly from the general principles of law. This has further relevance in international law due to there being no method of legislating new situations. However, what this principle does is bridge a gap that could appear international law thereby solving a possible problem. This can therefore impact on states because even if a certain situation is not legislated (treaties) for or covered by custom then it can still interpret the law and if needed impose this law on states.
Whilst the rule which is known as precedence in domestic law does not exist in international law; due to Article 59 of the statute of International Court of Justice which states that the decisions of the court have no binding force apart from the parties directly involved, many writers quote judgements from the ICJ as authoritative decisions and there is an opinion within the ICJ that the court will follow previous judgements thereby instilling a degree of certainty. This is an important source of international law due to these judicial decisions implementing the rules of international law on sovereign states and it is the decisions of the ICJ which bear great significance on sovereign states because the outcome is a binding decision.
Another source of international law that, although does not direct impact on sovereign states is important in arranging and putting into focus the structure and form of international law, is writers and forms of academic texts. Classical writers such as Gentili and Vattel were he supreme authorities of the sixteenth and eighteenth century and in Shaw’s opinion were instrumental in determining the scope, form and content of international law (Malcolm, M. Shaw, 2003, pg106). However, in recent years the use of texts has declined with the emphasis in international law being placed on treaties and custom, however, it must be added that writers can have an impact on sovereign states due to texts being an obvious source in determining future developments within international law. There are also further sources which outline international law but these don’t have as much significance as the ones outlined above; these are the International Law Commission, other bodies and unilateral acts.
To conclude, the statement above suggested that International Law does not exist because it is not imposed on states; this in itself is quite a relevant point because due to it being agreements between states it is difficult to apprehend that this law is imposed on states and to a certain extent it is not. This is because the terms which are agreed upon are essentially the states prerogative whether or not these terms are implemented within their domestic society. This can be seen in some African states where parts of the Universal Declaration of Human Rights are not implemented, such as equal rights. However, from the sources outlined above one may argue that ipso facto international law is at times imposed on states and that although there is not a single legislature it does bring about a new idea that the states are the legislature collectively.
b) Article 38(1) of the ICJ Statute does not mention sources yet it is regarded as an authoritative statement on the sources of international law. Explain this statement and critically evaluate it.
What the article states
Article 38(1) of the ICJ Statute is considered an authoritative statement on what actually constitutes the sources of international law and provides that ‘the court whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply, a) international conventions; whether general or particular, b) international custom; as evidence of a general practice accepted as law, c) the general principles of law recognised by civilised nations and, d)judicial decisions and the teachings of the most highly qualified publicists.’
Introduction
From the article above what becomes most apparent is that as a statement in which sources are determined it is very limited. However, the article is highly regarded as the principle conventional provision on the sources of international law due to its integral part within the UN charter and the ICJ being the principle judicial organ of the UN.
It is generally agreed the there is firm hierarchy between the three main source of international law indicated in the statute in sub-paragraph a-c. However, it is clear that the sources indicated in sub-paragraph d are of subsidiary importance in relation to the three main sources. Although Malcolm, M Shaw argues that ‘In reality it is not always possible to make hard and fast divisions’ due to the nature of the sources overlapping each other. (Malcolm, M. Shaw, 2003, pg67). What this means is that many cases heard by the ICJ and the treaties which support them merely reiterate accepted rules of customary law, and judgments of the ICJ may actually create new law in the same was it is created in domestic society by municipal judges.
The above mentioned sources of international law normally function in the international legal order of sovereign States and other international persons. Due to treaties being unable to directly bind States which are not parties to them, the main source of what is understood as general international law is the general custom. General principles of law are applied in this order as an autonomous source only if they are not transformed into general customary law. That transformation most often happens through codification conventions.
Although as previously stated the Statute is very limited in determining the sources as it does not go into great detail as to what the sources are, it does outline the sources of international law and it is from this statute that one begins to establish the main sources of the law. Article 38 (1) of the ICJ statute is closely based on the corresponding provision of the 1920 statute of the Permanent Court of International Justice, thus predating the role of modern international law where international organisations such as the UN play in the international field. Some critics have argued that the Statute is too dated to have a role in modern international law and point to term of ‘civilised nations’ as underlining this, a notion that appears old-fashioned since the decolonisation which took place in the 1960’s. However, although the statute is over fifty years old and has been criticised due to its lack of definition in terms of sources, it is possible to argue that these faults are also its advantages. What one means by this is that due to the Statute not clearly defining the sources of international law it allows for change as sovereign states change and evolve and by easily doing this it can ensure that the source maintains synonymous with time.
Article 38(1) has been described by some as the ‘poor mans bible’ for those who seek quick answers despite the complexity of international law. However, although this is a valid argument, due to the lack of in depth analysis of the sources, these same critics still concede that the Article itself is a good starting point in understanding the sources of international law. Most international law experts claim that Article 38(1) of the statute has omitted to add unilateral acts to the main sources of international law; a source which at present the UN’s International Law Commission is attempting to codifies which does suggest a flaw in the Statute as an authoritative statement. However, contrary to this opinion other international lawyers would maintain that these acts constitute specific expressions of the will of States leading eventually to agreements which are then governed by the rules applicable to international conventions, which in essence means that there is not a need for reference of it within the Article.
In summary Article 38(1), contrary to the statement above, does mention the main sources of international law and although it is not a definitive guide to the sources of law it does give guidance to the ICJ on how to settle disputes when applying the sources of international law. However, it is possible to agree with the statement when one considers how briefly the sources are mention and, again, the lack of detail surrounding them, however, as with domestic legal order, international law will be subject to interpretation and in essence this is what any legal system is built upon. Although in this case the sources are very primitive it leaves it open for the judges within the ICJ to interpret and apply the law which has evolved from the mentioned sources within the Article. Some critics may argue it is not like domestic law in this sense due to the nature of precedence not being used within the International system, however, as previously mentioned, the ICJ is trying to add a degree of certainty to its legal system by passing continuous judgement, which does suggest that precedence may, in the future, form part of the sources of international law. It is because of these points that one would suggest that the statement, although partially correct, is flawed because Article 38(1) does indeed mention the sources of international law, however briefly, and is still the main resource used when attempting to find the sources of international law.
Bibliography
Malcolm, M. Shaw, 2003, fifth ed International Law, Cambridge.
Sources
Article 38(1) International Court Of Justice Statue
Genocide Convention
Universal Declaration of Human Rights
Cases
Right of Passage over Indian Territory case
