Experts & Views
Hello to all, this blog which comes after along gap is the result of requests from some of my juniors to write a blog on sources of International Law (and this could be probably because those little lazy mutts might not want to make the notes of the topic themselves). So here have tried to make brief notes on sources of International Law, which could come handy for a quick revision, and also for interesting reading. These notes are made after a sincere reading, apart from other works, from ‘A Modern Introduction to International Law’ by Michael Akehurst, therefore, the incidents of similarity in expressions are high.
So, there we go.
Sources of International Law
Determination of sources of IL has attracted wide debates and discussions, and this is probably because of absence of any universal law making authority analogous to national legislation. Art. 38 of Statute of International Court of Justice solves this problem to some extent by laying down the basis on which it is to decide the International disputes submitted to it. The list, so given in Art. 38, is the most widely accepted list on the sources of international law. Though some authors point out that the list is inadequate and does not include all the sources of international law, but none of the other lists ever provided have generated the kind of wide acceptance which has been accorded to Art. 38. It must be observed that Art. 38 nowhere contains the word ‘sources’ but the it has been taken since 1920 as stating the relevant sources.
Here an important discussion pertains to the question whether the sources given in Art. 38 are ‘formal’ sources of int’l law or are the ‘material’ sources of int’l law. According to Salmond, the distinction between formal sources and material sources is, ‘A formal source is that from which a rule derives its force and validity. The material sources are those from which is derived the matter, and it supplies the substance of the rule to which the formal source gives the force and nature of law’. A far more simpler distinction, which is stated to be derived from constitutional law, is that formal source constitute what law is, while material sources identify where the law may be found. Brownlie, however, argues that such distinctions derived from constitutional law are not appropriate, given the nature of international society. Some authors question if the differences of nomenclature are so important as ICJ has not devoted any attention to the controversy.
Treaties as a Source of International Law
Coming to the first source of International Law as provided by Art. 38 (1), ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting States.’ Conventions mean treaties, and the expression ‘treaty’ comprises a large number of instruments that may use different names, such as agreement, pace, protocol, covenant, declaration etc. but, as Akehurst, points out that some of these words have alternate meaning which can mean something other that treaties, thus making the problem of terminology even more confusing. The best way I could think of coming out of this confusion is to look for the definition of ‘Treaties’ in Article 2(1) of Vienna Convention on Law of Treaties.
Treaties are the maids of all work in International law. They are considered to be major sources of law as treaties arise from the express consent of a State. Being based on consent the general principle is that only the parties to a treaty are bound by its terms (but there are exceptions to this principle where the states not parties to the treaties are also bound by it, examples are, a) when treaties codify customary law; and b) distinctive category of ‘depositive treaties’ that create an objective legal regime binding upon third states).
Law Making Treaties and Treaty Contracts
Treaties are generally divided into law making treaties, known as, ‘traits-lois’; and treaty contracts, known as, ‘traits-contrats’. Some writers argue that only law making treaties should be regarded as source of law as treaty contracts are not sources of law, but merely legal transactions. But Akehurst points out that most of the treaties are on a border line case and it becomes hard to classify, though the classification is not entirely useless, but the better view is to regard all treaties as a source of International Law. Personally, I do not see any reason as to why contractual treaties should not be considered as a source of int’l law, as, the contractual terms which lay down rights and duties can be a source of law in absence of other laws of nature similar to that of the rights and duties so drawn under the contract.
Treaties when Codify Customary Law
Importance of treaties escalate when they codify customary law, as then they would not only be binding on the states parties to it, but also to the non party states. As the non parties may not be bound under the treaty per se, but they would be bound under obligations arising in customary international law, which the given treaty so codifies. Thus, a State can enforce an obligation on another State by showing that the treaty codifies customary law. In cases where treat is an amalgamation of customary law and provisions that seek to further the progressive development of the law, then the non parties will be bound only by those provisions that may be said to constitute customary international law.
Note- I hope this might be of some help to people who have just been introduced to Public International Law. Though on request of my few juniors I intend to write whole series on all the sources of International Law, but that would also depend on the feedback from the readers. So if this writing has been useful to you in any manner and you would like to read on other sources of International Law through this blog space, please do leave a comment or ‘like’ it on facebook.
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thanks for your comments, but this blog is not supposed to be an analysis or discussion. They are plain notes on sources of International Law. Though an interesting discussion could be/ could have been initiated, but this blog is supposed to help those who have just been introduced to Public International Law.
another diverse and simple article on Int' law - seems you have found ur future in law of nations - it's different because very less ppl do in-depth study of Public International Law, most of 'em are attracted by Private I' law part - Keep it going....ur juniors will sure like it
I have a clarification on my mind on which I need some assistance though it is still ahead of present blog:
---> Treaties are like acts in Int' law which drive their force from Constitution which is in form of erga omnes obligations and/or Jus Cogens law b/w the nations - but what I want to know is status of resolutions, declarations, conventions, statements issued by UN General Assembly or Security Council.
At a place you argue that why contractual treaties should not be considered as a source of int’l law - wht I feel here is that since a bilateral or multilateral treaty contract is a commercial agreement which drives it's enforcement from established rules of contract law which are either laid in treaty itself or governed by local law of contracting parties. keeping them at lower pedestal is necessary as no universally recognized principles follow from it. but then exceptions do exist
For the ppl who have just begin studying Public Int' law it is necessary to clarify basic concepts and definitions which are not provided often bcoz nations always want to generalize concepts so that they can applied in varied situations for ex. terrorism is not defined till date or the term enemy combatants is still quite vague.
tc
so here we go.
1.) Resolutions and Statements issued by UN General Assembly - Most UNGA Resolutions have nothing to with int'l law, ex- a resolution recommending research into causes of cancer. Even when they do have something to with int'l law they may simply be recommending changes, and text of such resolution cannot be interpreted as representing int'l law: a resolution declaring X ought to be law is obviously not evidence that X is the law. If a resolution declares that X is the law, it can be used as evidence of customary law, but the value of such resolution varies in proportion to the number of states voting for it, if many states vote against it, its value as evidence of customary law is correspondingly reduced.
More generelly a resolution passed at a meeting of an international organisation is never 'conclusive' evidence of international law. It has to be examined in conjunction with all the other available evidence of customary law, and it may thus be possible to prove that the resolution is not a correct statement of customary law.
2.)UNSC Sanctions - I smiled when I read this part of your question, as I am myself trying to find a definite answer to it since the Iran sanctions have come up, believe me or not, I still have 200 pages left to read as to know the legality of UNSC sanctions. I have been intending to make it a blog, and may be I will deal with it in my next blog, but no promises. If in case you are very interested, I will give you a hint, try to find a commentary on Art. 103 of UN Charter, it would be of some help, otherwise you can always wait for my blog :)
3.)On Contractual Treaties - as I was reading your views, I was happy to see that you have recognised exceptions. For example, Space law is considered to be instant Customary international Law, though strictly speaking it is not a 'traits contrats', but what I mean to say through this example is that we have to be open minded that someday we might be faced with a situation where we have no precedent law, then in such cases, law binding on parties would be derived from the contractual treaty between the two. Though honestly speaking, we can never be completely without precedent,as even space law has its roots in general maritime principles, but even such maritime principles cannot be answer to problems encountered in space due to fundamentally different nature of the two. I hope you are getting what I am trying to say, and I don't need to elucidate any further.
hope to stay in touch with you,
Take care..
with reference to last point in my above post, it just striked to me, that if you have been reading/ have read Transfer of Property, plethora of sections in this act apply only if there is no 'contract to contrary'. meaning thereby that the Act lays down only general principles, but if parties have contracted something according to their convenience, they will be bound by the provisions of contract, rather than the provisions of act.
I hope I am going in right direction..
tc
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