This blog is inscribed by Anamika Chhabra.
Article 38(1) of the Statutes of the ICJ provides for a reflection, although not accurate, of the sources of international law and Article 38 did not specifically mention ‘sources,’ but is usually invoked as sources of international law. Sources of international law can be characterized as ‘formal’ and ‘material’ sources, although the characterization is for clarification rather than hierarchy. Article 38(1) (a-c), i.e. agreements or treaties, practice and general rules are only formal sources, while Article 38(1)(d), i.e. court rulings and legal instructions are ‘material sources.Formal sources impose a ‘mandatory character’ on laws, while material sources contain the ‘real substance of the rules. This essay will consider the authenticity of the sources and other statutory means
Article 38(1) of the Statute of the International Court of Justice is generally acknowledged as a positive statement of international law sources.It requires that the Court apply, inter alia, International conventions, whether general or particular, laying down rules specifically accepted by the States at ongoing problem:
- International custom, as proof of a common practice acknowledged as law;
- General concepts of law which are accepted by civilized nations;
- According to the provisions of Article 59, the judicial rulings and teachings of the most competent publicists of the various nations shall constitute a subsidiary means of determining the rules of law.International agreements can also be referred to as bilateral and multilateral treaties, that is to say UN Charter, as well as subsequently other agreements and covenants.Treaty is an ‘international agreement concluded in written form between States governed by international law, whether embodied in a single instrument or in two or more related instruments, and whether specifically designated’.
Treaties are governed by certain provisions of international law:
- Treaties are voluntary in the sense that without their consent, States cannot be bound by agreement.States are only bound if they are parties to a treaty, although there are exceptions to this, i.e. territorial boundaries are binding on all states, they are ‘ergo omnes’ (against the whole world).
- Agreement and consent shall be by ratification of States, signature and expression of consent to be bound and States shall be bound by consent only if the partiesconsent to the Treaties which have codified existing customary law;
- States that are parties to the agreement are normally bound and states that are not originally parties to the treaty are bound by the treaty as they are ‘rooted in customary law’ and states that are not parties to a treaty that has codified existing customary law into code of conduct to direct future actions by the treaty will still be bound by it.This implies that customary law will become a treaty and vice versa if there is insufficient approval for such a treaty, even after authorization, in terms of dominant preferences, regardless of which one is older.
- Treaties shall be deposited with the UN Secretariat and released if approved by States pursuant to Article 80 of the Vienna Convention on the Law of Treaties and Article 102 of the UN Charter; while unregistered treaty remains binding between parties but may not be brought before the Court of Justice or any of the UN organs.
Treaty is a way of establishing commitments and contractual rules for states which has violated the law when the state violates the treaty.Hence, is the Treaty a statute or an obligation? The question of whether the treaty establishes laws or imposes obligations leads to a simplified debate between ‘contract treaties’ and ‘law making treaties,’, That is, whether treaties are obligations-imposing contracts or ‘law-making’ that contribute to international law.In view of the treaty as a contract. It is reasonable to accept the treaty as a source of law, trying to appeal to treaties as a source of duty is like concealing the essential role they play in international law.A state has established law for itself as soon as it ratifies the treaty, and is legally bound.If it breaches the law it breaches international law.The two legal effects are interwoven; in practice, the distinction into ‘obligation’ and ‘free’ is identical.Where a State agrees to a treaty, that State shall be bound by the treaty generally known as ‘obligation’ or ‘law’.
Consequently, the distinction is theoretical with a view to seeking an answer to the binding essence of international law. A contractual treaty otherwise referred to as a ‘bilateral treaty’ may cease when the object for which it was entered has been accomplished or terminated. A ‘Law-making treaty’ or ‘multilateral treaty’ may be planned for a lasting future purpose, leading to an important customary law such as the 1982 maritime convention, which has been made general for all states.It was argued that treaties are binding on non-parties if they have their roots in customary law. In North Sea Continental Shelf case, The ICJ ruled that, for such a provision to be binding, it would be necessary, in the first place, for the provision concerned to be potentially, at all events, of a fundamental norm creating character which could be considered as the basis of a general rule of law.’The second principle laid down by the ICJ is that the clause in question ‘would have been incorporated in the context of providing a sufficiently large and representative number of States including those not party to the treaty.’The third criterion is to fulfil the opinio juris which is the basis for the legal character of state practice. Opinio juris and State practice are customary law components.The sources are, in the order of Article 38, complementary and interrelated but not certainly hierarchical.This seems to be the view of the court in the case of Nicaragua v. USAwhere it was held that ‘some of the guidelines laid down in the Vienna Convention on the Law of the Treaties could be viewed as a codification of current contemporary law. Treaties can be invalid for several purposes, inter alia, if it clashes with jus cogens. As well as withdrawing, breaking, suspending and reserving the Treaty.
Article 38(1) B of the Statute of the International Court of Justice Significant elements are the conduct of the State, the tenacity and the recognition of such practices as law, also known as ‘opinio juris.’ Customary law may not be as ‘simple’ as a treaty.Tradition is considered a type of ‘tacit agreement,’ the conduct of states to each other in an appropriate way contributes to the correct behaviour being tacitly accented.The problem with this view is that if agreement kicks it on, it may be kicked off by lack of agreement.Customary law originates from State practice as law.Can customary legislation change? Customary law can change on the principle of ‘apprehension’ and ‘acquiescence,’ but that does not mean that customary law is not a strong rule of law, the customary law process is continually a good omen for international law because it can meet the timely needs of international law as the world develops and law develops.It may have its own drawbacks of a more relaxed and slow formation process; unlike a treaty, it lacks certainty and visibility.It has an advantage in terms of its wide range of comparisons with State activities. Treaty has benefit where custom has drawback, they are like twin pillars expected to work together in other to improve the sources of international law.Hugh said, ‘the way things have always been performed is the way things must be done laws, international law does not deviate towards the trend discernible in local legal systems.State practice as one of the aspects of customary law is a continuous state practice of international acts over a period of time, governmental actions, law making and policy execution, government declaration and declaration, administrative practices and guidelines within states are good links and sources of state practice. In Asylum case (Colombia v Peru), In order to establish customary law, it must be ‘in accordance with a constant and uniform use of the States concerned.’. The ‘uniformity’ and ‘consistency’ test are ‘general practice’ and not a ‘universal practice’ and ‘practice of the most dominant and prominent states will bear the greatest weight,’ deducting from the above, it does not mean that all states engage in practice.’Once a practice has been developed as part of customary international law,’ all states are bound, including states and new states that did not initially contribute to the practice.
General Principle Of Law
Article 38 (1) (C)of Statute of the International Court of Justice. This source area is unclear and controversial.Previously, Positivist rejected this principle because it did not conform to state will and consent as a treaty and custom, but it was accepted by the latter; provided it was accepted as part of state law.’General law concepts accepted as a source by civilized nations’ seek to exclude uncivilized nations.Naturalist argues that natural law needs to be integrated into international law, they believe that law exists before any law, whether treaty or custom, that is distinct from positive law.Judge McNair in the ‘International Status of South West Africa Case said that national law can be a guide to the form of rules that might be of assistance in international law like ‘the principle of limited liability ‘in Barcelona Traction case. Whether procedural, administrative, or substantive rules, they can be introduced to international law, it however need no convention or practice for its validity.it is well settled that concepts have ‘pre-existing legal validity.Dixon confirmed this by saying ‘Try to protect State sovereignty by restricting the ICJ ‘s functions. Principle of equity is relevant to international Tribunals that is general principles of equity and fairness. It applies in decisions according to law and not by abstractness outside law like ex aequo et bono in Article 38(2).
Article 38(1) (D) and Article 59 of the ICJ statutes specifies that the court rulings have’ no binding force except between the parties and in respect of that particular case.Judicial decisions are material area of Sources of law.But, as provided in Article 59, there can still be recourse by the court to its past res judicata decisions and an advisory opinion to validate the current case as an authoritative proof of the legal position. In addition, judicial decisions are much of the source of ‘international maritime law’ and ‘it is clear that the ICJ pays a great deal of attention both to the actual decisions it has taken in previous cases and to the law it has declared in them.’This is argued that ICJ is more in principle than in practice interested in the process of law making, and legal impediment to this.In breaking new field of international law, the Court participates in the law-making process by case law, the rule of the judges and the advisory opinion. Dixon confirmed this by saying ‘Try to protect State sovereignty by restricting the ICJ ‘s functions Arbitral tribunals and national courts consult publicist writing while international tribunals make less use of ‘doctrine,’ but where publicist writing is efficient is the draft article, reports and memorandum of secretariat produced by the International Law Commission and Resolution of the Institute of International Law Commission and the Institute of International Law. These days writers’ opinions have become less relevant because states are now expressing themselves well through UN organs and, most importantly, writers are subjective in their writings because of opinionated reasons.
Security Council Resolution
A United Nations Security Council resolution is a UN resolution embraced by the fifteen members of the Security Council; the UN body entrusted with “main duty for the preservation of international peace and security”.The UN Charter states (in Article 27) that a draft resolution on non-procedural matters is adopted if nine or more of the fifteen Council members vote for the resolution, and if it is not approved by any of the five permanent members. Every nine members of the Council that adopt draft resolutions on “procedural matters” on the basis of an affirmative vote.The five permanent members are the People’s Republic of China (replaced in 1971 by the Republic of China), France, Russia (which replaced the defunct Soviet Union in 1991), the United Kingdom, and the United States.
Terms and functions mentioned in the UN Charter:
The phrase “resolution” does not occur in the text of the United Nations Charter.It includes numerous formulations, such as “decision” or “recommendation”, which signify the adoption of resolutions which do not define the method to be used.United Nations Charter is a multilateral treaty.It is the constitutional document that distributes powers and functions among the various UN organs.It authorizes the Security Council to take measures onbehalf of the members, and to take decisions and recommendations.Neither binding nor non-binding resolutions are mentioned in the charter.The International Court of Justice (ICJ) advisory opinion in the 1949 “Reparations” case suggested that the United NationsOrganization had both explicit and implied powers. The Court cited Articles 104 and 2(5) of the Charter, and Observed that the members had given the appropriate legal authority to the Organization to perform its duties and fulfil its tasks as set out in the Charter, and that they had agreed to provide the United Nations with all assistance in any action under the Charter.Article 25 of the Charter specifies that ‘UN members consent to acknowledge and enforce Security Council decisions in compliance with this Charter.’The United Nations Organ Repertoire of Practice, a UN legal publication, states that at the 1945 United Nations Conference on International Organization in San Francisco, attempts to limit Members’ obligationsunder Article 25 of the Charter to those decisions taken by the Council in the exercise of its specific powers under Chapters VI, VII and VIII of the Charter failed. At the time it was noted that those responsibilities also derived from the authority bestowed on the Council under Article 24(1) to act on behalf of the members when exercising its duty to preserve international peace and security. Article 24 of the UN Charter, interpreted in this sense, this becomes a source of authority that may be relied upon to deal with situations not covered by the more detailed provisions in subsequent Articles.The Repertory on Article 24 states: “The statement whether Article 24 confers general powers on the Security Council ceased to be the topic of discussion regarding the International Court of Justice’s advisory opinion of 21 June 1971 on the issue of Namibia “.In exercising its authority, the Security Council never bothered to quote that its decisions are based on the specific article or articles of the UN Charter.A constitutional interpretation is necessary in cases where none is stated.This sometimes presents ambiguities as to what constitutes a decision as opposed to a recommendation, as well as the relevance and interpretation of the phrase ‘in accordance with this Charter.’Security Council decisions are legally binding.When the council cannot reach consensus or vote on a resolution, instead of a resolution, they will opt to produce a non-binding presidential statement.
General Assembly Resolutions
In the General Assembly, a resolution of the United Nations General Assembly is voted on by all UN member states.Resolutions of the general assembly usually require a topass of a simple majority vote.However, if the General Assembly decides that the topic is a “important issue” by a simple majority vote, then a two-thirds majority is required; “important issues” are those that deal substantially with preserving international peace and security, welcoming new members to the United Nations, suspending membership rights and privileges, expelling members, operatingof the trusteeship system, or budgetary questionsWhile resolutions of the General Assembly are generally non-binding towards member states, internal resolutions may be enforceable on the functioning of the General Assembly on its own, for instance in budgetary and procedural matters.
All the sources discussed above all can be found in UN practice and where they can’t be found they bow to Security Council resolutions and it will remain binding on members and even non-members, whose aberration can be confronted with sanctions.It is argued that the UN has provided a real complement to the gap created by what is supposed to be an accurate reflection of other sources of international law, and its activities have positively affected law-making by means of resolutions and faster means by 15 members of the Security Council and 191 members of the General Assembly.