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SOURCES AND GENERAL PRINCIPLES OF IL
UNIT III.
I. LEAD-IN.
Brainstorm the given statement about international law and discuss it with your peer or group.
“International Law, unlike most other areas of law, has no defined area or governing body, but instead refers to the many and varied laws, rules and customs which govern, impact and deal with the legal interactions between different nations, their governments, businesses and organizations, to include their rights and responsibilities in these dealings.”
II. READING.
Read the text and study the information about the main principles and sources of international law.
SOURCES OF INTERNATIONAL LAW
A source of international law is where an international decision maker or researcher looks to verify the substantive legal rule governing a legal dispute or academic discourse. The sources of international law applied by the community of nations to find the content of international law are listed under Article 38.1 of the Statute of the International Court of Justice: Treaties or International Conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international customs as evidence of a general practice accepted as law, and general principles recognized by civilized nations are stated as the three primary sources; and judicial decisions and scholarly writings are expressly designated as the subsidiary sources of international law.
Many scholars agree that the fact that the sources are arranged sequentially in the Article 38 of the ICJ Statute suggests an implicit hierarchy of sources. Article 38 (1) of the International Court of Justice’s statute identifies three sources of international law: treaties, customary international law, and general principles of international law (jus cogens).
The sources have been influenced by a range of political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, which was succeeded by the United Nations Charter and is preserved in the United Nations Article 7 of the 1946 Statute of the International Court of Justice.
Customary law and conventional law are primary sources of international law. Customary international law results when states follow certain practices generally and consistently out of a sense of legal obligation. Recently the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may take any form that the contracting parties agree upon. Agreements may be made in respect to any matter except to the extent that the agreement conflicts with the rules of international law incorporating basic standards of international conduct or the obligations of a member state under the Charter of the United Nations. International agreements create law for the parties of the agreement. They may also lead to the creation of customary international law when they are intended for adherence generally and are in fact widely accepted. Customary law and law made by international agreement have equal authority as international law. Parties may assign higher priority to one of the sources by agreement. However, some rules of international law are recognized by international community as peremptory, permitting no derogation. Such rules can be changed or modified only by a subsequent peremptory norm of international law.
General principles common to systems of national law is a secondary source of international law. There are situations where neither conventional nor customary international law can be applicable. In this case a general principle may be invoked as a rule of international law because it is a general principle common to the major legal systems of the world and not inappropriate for international claims.
More recent discussions of the sources of international law, recognizing the growing role of international organizations, include the resolutions and other acts of international governmental organizations, such as the United Nations, as sources or evidence of international law.
WHAT ARE GENERAL PRINCIPLES OF INTERNATIONAL LAW?
International law is a collection of complex and developing rules, which governs the relations between nations. International law provides guidelines to sovereign states and international organizations and some individuals.
The general principles of law recognized by civilized nations are identified by the International Court of Justice’s statute as one of the important source of international law. These principles essentially address international issues, which are not already subject either to treaty provisions or to binding customary rules. Such general principles may arise either through municipal law or through international law. Such laws are generally procedural in nature.
The most important principle of international law is that of good faith. It is the foundation of treaty law. Another important general principle is that of equity, which permits international law to have a degree of flexibility in its application and enforcement.
When there is no provision in an international treaty or statute nor any recognized customary principle of international law available for application in an international dispute, the general principles of law can be used to “fill the gap.”
A most common way of resolving disputes under the rule of law is by reference to, and application of, the language of applicable multilateral or bilateral treaties or statutes, or some other writing which provides evidence of the relationship and past positions of the parties to a dispute. Another method is by reference to custom, the practice of nations in a particular area (customary international law) and principles of law derived from such. But what happens when there is no such guiding authority for the benefit of those involved in resolving the dispute? Such gaps are inevitable in any legal system, including the international one, because treaties (contracts), statutes, and rules derived from custom cannot be designed to cover all situations which give rise to disputes. International law provides an answer to that question for the resolution of international disputes: general principles of law may used to fill the void or “gap.” These may be referred to, as one authority did, as “non-consensual” sources of international law.
In the municipal law systems of countries with a common law tradition, judges very often look to the decisions from outside sources to fill in the “gaps” of the law to be applied in the resolution of a particular case. As an example, state courts in the United States very often cite the decisions of other state courts in the course of an opinion in a case, where a needed legal rule of the deciding state is absent or unclear. As a corollary, some justices of the Supreme Court of the United States have recently adopted the practice of using the decisions of courts of other countries and international courts for their persuasive value in clarifying unclear rules to be applied in a case.
The range of subjects directly concerned with international law has widened considerably, moving beyond the questions of war, peace, and diplomacy to include human rights, trade issues, space law, and international organizations.
- What are the sources of international law?
- What is the document under which the sources of international law applied by the community of nations are listed?
- What are primary and secondary sources of international law?
- What does conventional international law derive from international agreements?
- What are the main principles of international law?
- How are the conflicts and disputes resolved if there is no provision in an international treaty or statute or any recognized customary principle of international law available for application in an international dispute?
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