Sources of Public International Law PDF

**Sources of Public International Law** Sources of international law are the materials and processes out of which the rules and principles regulating the international personalities are developed. According to Lawrence and Oppenheim there is only one source of International law and that is the cons...

**Sources of Public International Law** Sources of international law are the materials and processes out of which the rules and principles regulating the international personalities are developed. According to Lawrence and Oppenheim there is only one source of International law and that is the consent of nation. Brierly considers customs and reasons as the main sources of international law. Article 38(1) of the statute of the International Court of Justice is widely recognized as the most authoritative statement as to the sources of International law. On the basis of Article 38 of ICJ Statute five distinct sources can be identified. They are International conventions/treaties, International customs, General principles of law, Judicial decisions and writings of the publicists and Reason and equity. Jus cogens is not typically considered a source of international law in the traditional sense. Instead, it is a concept that influences the interpretation and application of existing sources of international law. The primary sources of international law, as outlined in Article 38 of the Statute of the International Court of Justice (ICJ), are: 1. Treaties 2. Customary International Law 3. General Principles of Law 4. Judicial Decisions and Scholarly Writings (as subsidiary means for the determination of rules of law) Jus cogens does not fit neatly into these categories, as it is more of a legal principle or normative concept that permeates the existing sources. It acts as a constraint on the actions of states, preventing them from entering into treaties or engaging in practices that would violate fundamental, peremptory norms. While jus cogens itself is not a standalone source, its influence is evident in the interpretation of treaties and customary international law. For example, if a treaty provision or customary practice conflicts with a jus cogens norm, the jus cogens norm will prevail, and the conflicting provision or practice may be considered invalid. In summary, jus cogens is not a distinct source of international law but rather a normative concept that shapes the hierarchy and application of existing sources by establishing certain principles as inviolable and non-derogable. 1. **International conventions** It is the first and Important Source of International law. There is no Legislative organ in the field of International Law, comparable to legislatures within the State, the enactments of which could bind all the States. The Contracting Parties may, however, establish an international organization by means of the treaty with authority to bind them by its resolutions or may even lay down rules for their mutual conduct. In this sense, multilateral treaties are a feeble approach to International Character. Treaties can be divided into law Making Treaties and treaty Contracts. Article 2 of Vienna Convention on the law of Treaties 1969 -- "Treaty means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation...." Treaties are agreements between states (and other entities under international law) and only bind the participating Parties. These treaties are often known as conventions, pacts, protocols or covenants. The Charter of the United Nations is the most important international treaty and is often referred to as the constitution of the international community. Otherwise, there is no hierarchy between different international treaties. Conflicts amongst different treaty regimes may be addressed in the treaties themselves but can be subject to often contentious questions of application and interpretation. A number of international treaties have established entire regulatory regimes amongst their state Parties. Often institutions set up under treaty regimes monitor implementation, take further action, and facilitate the development of new legal instruments where, for example, priorities change or scientific knowledge evolves. Some treaties contain compliance and enforcement mechanisms as well as dispute settlement procedures and an increasing number of treaties allow a variety of stakeholders to put forth political, economic, and legal issues for consideration in decision making processes. 2. **International custom** Custom is the older and original Source of International Law. It is as such Second Important source of International Law. International Law Custom may mean a kind of qualified practice, by the existence of a corresponding legal obligation to act according to this practice, hence by the existence of the corresponding rule of International law. The customs are evolved through the practices of and usages of the nation and their recognition by the community of nations. Customary rules are those rules which are practiced by most of the States by way of habit for a pretty long time. International custom has developed by spontaneous practice and reflects a deeply felt community of law. Its rules are regarded as possessing density and stability and it is the repository of the general or common law of the nations. Customary international law is derived from the consistent practice of states accompanied by opinio juris - the conviction of states that the consistent practice is required by a legal obligation. In addition to direct evidence of state behaviour, judgments of international courts as well as the results of academic investigation have traditionally been looked to as persuasive sources of international custom. Article 38(1)(b) ICJ Statute refers -- "International Custom, as evidence of a general practice accepted as law" Two constitutive elements: - General practice Actions of state organs Domestic statutes, regulations, etc. Judgments of domestic courts Acts of international organizations as evidence of State practice - Opinio juris (i.e.: belief that a certain conduct is legally required) Not only must the acts concerned amount to a settled practice, but they must alsobe such, or be carried out in such a way, as to be evidence of a belief that thispractice is rendered obligatory by the existence of a rule of law requiring it. Theneed for such a belief, i.e., the existence of a subjective element, is implicit in thevery notion of the opinio juris sive necessitatis. The States concerned must thereforefeel that they are conforming to what amounts to a legal obligation. The frequency,or even habitual character of the acts is not in itself enough. Customary and treaty law are complementary. Treaties regularly contain codifications of customary law while subsequent state practice can develop the provision of a treaty further. Treaties and the practice of states may also lead to the creation of new rules of customary law. What constitutes currently applicable international law is however often a question of interpretation dependant on political factors operating within the sphere of international relations. 3. **The general principles of law recognized by civilized nations. (e.g. prescription, pacta sunt servanda, and estoppel).** The General Principles of law are based on moral Principles and law of nature; it has relation with the State Practice. The statute of the International Court of Justice authorizes the Court to apply the general principles of law recognized by civilized nations in addition to international conventions and custom, which are the two main sources of International law. It makes national legal systems as a source of law for the creation of International Law. The special arbitral tribunal between Germany and Portugal also applied the general principles of law in the Maziua and Naulilaa case where the arbitrators observed that in the absence of rules of International law applicable to the facts in dispute, they were of the opinion that it was their duty to fill the gap by principles of equity fully taking into account the spirit of International Law, which is applied by way of analogy and its evolution. ICJ Article 38 -- "....... general principles of law recognized by civilized nations" Examples: - Principle of good faith - Presumption of innocence - Pacta sunt servanda - Nullum crimen sine lege 4. **Judicial Decision** According to Article 38 of the Statute of the International Court of Justice, Judicial Decisions are subsidiary sources of International Law. They are not the automatic sources of law. Judicial Decisions by International Court of Justice, Permanent Court of Justice, International Arbitral Tribunal and Municipal Courts are subsidiary sources of International Law. Article 59 of the Statute of the International Court of Justice expressly provides that the decisions of the court have no binding force except between the parties and in respect of that particular case. This means that the judicial decisions are binding only on the disputed States. Under the provisions of this Article, the Court is specifically required not to apply precedent or doctrine of stare decisis in its decisions. Decisions of International Court of Justice are to have only persuasive value. The content of earlier decisions has some element of law and it is clarified, impartially, as certainly carried by International Court of Justice. How it contributes in the development of International Law? Its repeated application is relied upon. Later on, it does not remain only persuasive and it does convert into rules of International Law. 5. **Jus Cogens** In the realm of public international law, jus cogens, or peremptory norms, represent a crucial concept that denotes certain fundamental principles and norms that are considered non-derogable and universally accepted by the international community. These norms possess a special status as they are deemed to prevail over conflicting treaties and customary international law. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm ofgeneral international law.For the purposes of the present Convention, a peremptory norm of generalinternational law is a norm accepted and recognized by the international communityof States as a whole as a norm from which no derogation is permitted and which canbe modified only by a subsequent norm of general international law having the samecharacter. Jus cogens norms are characterized by their compelling nature, reflecting fundamental values and principles that are deemed essential for the international legal order. Examples include prohibitions against genocide, slavery, torture, and aggression. These norms are considered so fundamental that no state or international organization can derogate from or agree to any act that would violate them. If a new peremptory norm of general international law emerges, any existingtreaty which is in conflict with that norm becomes void and terminates. The concept of jus cogens plays a significant role in shaping and constraining state behavior in international relations. Its recognition as a source of public international law emphasizes the importance of upholding certain core values that transcend individual state interests. States are obligated to respect and uphold jus cogens norms, and any attempt to circumvent or violate these norms is considered invalid under international law. Jus cogens norms can be derived from various sources, including customary international law, general principles of law recognized by civilized nations, and treaties. However, it is important to note that the identification of specific norms as jus cogens is an evolving process that requires broad consensus within the international community. The International Court of Justice (ICJ) and other international tribunals play a crucial role in recognizing and affirming the status of certain norms as peremptory in nature. In practical terms, the existence of jus cogens norms implies that no state or international agreement can legitimize actions that violate these fundamental principles. If a conflict arises between a jus cogens norm and a treaty or customary rule, the jus cogens norm prevails. The international community, including states and international organizations, is obligated to uphold and enforce these norms, contributing to the maintenance of a just and stable international legal order. The concept of jus cogens thus serves as a cornerstone in the development and enforcement of international law, ensuring the protection of fundamental human rights and the prevention of egregious violations on a global scale. **Relationship between different sources** In public international law, the hierarchy of sources establishes a framework for determining the authority and precedence of different legal instruments and principles. This hierarchy, as outlined in Article 38 of the International Court of Justice\'s Statute, helps guide the interpretation and application of international law. The primary sources include treaties, customary international law, and general principles, while subsidiary means such as judicial decisions and scholarly writings offer additional guidance. Jus cogens, or peremptory norms, is a concept that transcends this hierarchy, representing fundamental principles considered inviolable. In resolving conflicts between sources, the hierarchy aids in determining which rule prevails, with later treaties typically taking precedence over earlier ones and jus cogens norms prevailing over conflicting provisions. The interpretation and application of these sources are subject to principles of good faith and justice, contributing to the dynamic and evolving nature of international law. **Analysis** Compliance International law has not established a general compliance and enforcement mechanism. A state's inclination to uphold norms rather comes from the pressure that states put upon one another to behave consistently and to honour their obligations. Although there are various means of dispute settlement and enforcement within existing treaty regimes, it is usually through diplomacy driven by the desire of states to preserve their international reputation that violations of international law are addressed. Legality and power often operate on an equal footing. Treaty application and interpretation Treaties are interpreted through different means. These include the intention of the Parties at the time the treaty was concluded and the subsequent practice of the Parties in its application. The UN Charter (Article 27 paragraph 3), for example, explicitly provides that Security Council decisions shall be made "by an affirmative vote of nine members including the concurring votes of the permanent members". Nevertheless, these days it is fully accepted that the five permanent members of the UN Security Council only enjoy a veto right. So abstention is effectively interpreted as an affirmative vote. The application and interpretation of treaties are generally governed by the 1969 Vienna Convention on the Law of Treaties (VCLT). Some States, for instance the US, are not Parties to the VCLT. However, most of the VCLT rules are recognised as customary international law and therefore still apply to these States. The interpretation of treaties is covered in VCLT Articles 31 and 32. Treaties are to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The relevant context of a treaty includes the text, preamble and annexes, as well as related agreements made by all the Parties, or connected instruments made by some Parties and accepted by the others. For example, the UNFCCC is part of the context for interpreting the Kyoto Protocol, and vice versa. Article 30 VCLT applies to successive treaties relating to the same subject matter. Article 30.2 states that when a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of the other treaty prevail. Under Article 30.3, when all the Parties to an earlier treaty are also Parties to a later one, the earlier treaty applies only to the extent that its provisions are compatible with the later one. Article 30.4 covers situations where the Parties to a later treaty do not include all the Parties to an earlier one. Public international and domestic law Public international law applies between states and other subjects of international law (see above). Although it may be concerned with the interests of groups and individuals it usually confers rights and obligations to states. Only rarely (for example, under the European Convention on Human Rights) can people directly claim rights under international law. However, law and policy making at the international level increasingly shapes domestic law. For example, new legislation or administrative procedures are adopted in order to comply with international treaty obligations. International legal principles may be used by domestic courts or in connection with civil society campaigns. In many developing countries donor support is contingent on compliance with international standards on, for example, sustainable development, good governance or human rights. **State Responsibility** State responsibility in public international law, as delineated by the International Law Commission (ILC) in Article 42, defines the parameters of an internationally wrongful act committed by a state. An internationally wrongful act occurs when a state breaches its international obligations and is attributable to that state. Attribution is a crucial element, and ILC Article 42 clarifies that the wrongful act can be linked to the state through the conduct of its organs or officials, or entities exercising governmental authority. This attribution is pivotal in establishing the state\'s accountability for the breach. For an act to be internationally wrongful under ILC Article 42, it must violate an international obligation, which can arise from treaties, customary international law, or general principles. The breach of such obligations triggers the state\'s responsibility, marking the act as contrary to established norms of the international legal order. ILC Articles 20-27 outline circumstances that may preclude wrongfulness, such as consent, self-defense, necessity, and force majeure. These considerations provide a nuanced understanding of when an act may be excused or justified, mitigating the consequences of an alleged breach. The consequences of an internationally wrongful act are detailed in ILC Articles 28-33. The responsible state is obligated to cease the wrongful act, provide reparations for any harm caused, and take measures to ensure non-repetition. These consequences underscore the reparative and preventive aspects of state responsibility. In the event of an internationally wrongful act, injured states may resort to countermeasures, as outlined in ILC Articles 49-54. Countermeasures, subject to specific conditions and limitations, offer affected states a means of responding to the wrongdoing while staying within the bounds of international law. It\'s essential to distinguish state responsibility from individual criminal responsibility. States are held accountable as legal entities, and while individuals may face prosecution for international crimes, state responsibility focuses on the collective obligations of the state. Implementation of state responsibility involves diplomatic negotiations, the utilization of dispute settlement mechanisms, and, in some cases, the jurisdiction of international courts and tribunals. The evolving nature of this area of international law is reflected in the ILC\'s ongoing work, contributing to the development and refinement of the legal framework surrounding state responsibility.