International law is the name of the body of rules governing the behavior of sovereign states in their relations with one another. Sources of international law include treaties, international customs, general legal principles recognized by civilized countries, national and lower court decisions, and scientific papers. They are the materials and processes from which the rules and principles governing the international community are developed. They have been influenced by various political and legal theories.
Video Sources of international law
Statuta Mahkamah Internasional (ICJ)
Sources of international law can be found in Article 38.1 of the Statute.
This source portfolio is extracted from Section 38 of the original constitutional law of the world court.
Article 38 (1) of the Statute of the International Court of Justice is generally recognized as a definitive statement on the sources of international law. This requires the Court to impose, inter alia, (a) international conventions, whether public or special, establish rules expressly recognized by competing countries; (b) international custom, as evidence of general practice accepted as law; (c) the general principles of law recognized by civilized states; (D) are subject to the provisions of Article 59, judicial decisions and teachings of the most qualified publishers of different countries, as additional means for the determination of the rule of law. [1]
Maps Sources of international law
Historical considerations and development
During the 19th century, it was recognized by the legal positivist that sovereignty may limit its authority to act by agreeing to the treaties in accordance with the principle of pacta sunt servanda. This consensus view of international law is reflected in the Statute of the International Permanent Court of 1920, and subsequently deposited in Article 38 (1) of the Statute of the International Court of Justice of 1946.
Hierarchy
Regarding the matter of preference between the sources of international law, the rules established by the treaty will take precedence if such an instrument exists. However, it is also argued that international treaties and international customs are the source of international law with equal validity; this is a new habit that can replace the longer agreement and the new agreement can replace the old habits. Also, juog cogens (peremptory norms) are habits, not covenants. Of course, judicial decisions and legal writings are regarded as an additional source of international law, while it is unclear whether the general principles of law recognized by 'civilized states' should be recognized as the primary source or source of international legal aid. However, the principles of treaties, customs and general law are generally recognized as a major source of international law.
Agreement as legal
Agreements and conventions are a persuasive source of international law and are considered "harsh laws." The agreement may play a contractual role between two or more parties, such as an extradition treaty or defense pact. The treaty may also be a law to regulate certain aspects of international relations or constitute the constitution of international organizations. Regardless of whether all agreements can be considered as sources of law, they are a source of liability to the parties. Article 38 (1) (a) The ICJ, which uses the term "international conventions", concentrates on the treaty as the source of contractual obligations but also recognizes the possibility of the state expressly accepting its non-formally obligatory contractual obligations.
For a rule based on a covenant to be a source of law, not merely a source of obligation, it must be capable of influencing non-parties or having consequences for parties wider than those specifically imposed by the treaty itself.
Thus, the procedure or method by the treaty becomes legally binding is the source of formal law which is a process by which the rule of law appears: it is the law that creates.
Agreement as custom
Some agreements are the result of existing customary law legislation, such as the laws governing global commons, and jus ad bellum . Although the aim is to establish a code of general application, its effectiveness depends on the number of countries that ratify or accede to certain conventions. Relatively few of these instruments have sufficient number of parties to be regarded as international law in their own right. The most obvious example is the 1949 Geneva Convention for the Protection of War Victims.
Most multilateral agreements fail to reach universal acceptance levels that are almost universal and depend on the provisions of those deemed to be representative of customary international law and, by this indirect route, as binding on non-parties. This result is possible in several ways:
- When agreement rules reproduce existing customary law rules, rules will be clarified in terms of terms of agreement. A noteworthy example is the Vienna Convention on the Law of Treaties of 1969, regarded by the ICJ as law even before it was enacted.
- When customary rules are in the process of development, their incorporation into multilateral agreements may have the effect of consolidating or crystallizing the law in the form of the rule. It is not always easy to identify when this happens. If the practice is poorly developed, the terms of the agreement may not be sufficient to crystallize the rules as part of customary international law.
- Even if the rules are new, drafting the terms of the treaty may be an impetus for its adoption in the practice of the states, and that is the subsequent acceptance of the rules by the states that make it effective as part of customary law. If a broad definition is adopted from state practice, agreement making will fall within the definition. As an alternative, it is possible to regard the treaty as the final act of state practice necessary to establish the rule in question, or as an articulation of the rules necessary to give it an opinion jury on customary international law. The "instant habits" based on the Convention have been identified by the ICJ on several occasions as representing customary law without explanation as to whether the provision is supported by state practice. This occurs in connection with a number of provisions of the Vienna Convention on the Law of Treaties of 1969. If "instant habit" applies as law, it can deny third parties the normal consequences of non-accession to
UN Charter
According to Chapter XVI, Article 103 of the Charter of the United Nations, the obligations under the Charter of the United Nations exclude other treaty provisions. Meanwhile, its Opening affirms the establishment of obligations of treaties and sources of international law.
International custom
Article 38 (1) (b) The ICJ Statute refers to "international customs" as the source of international law, specifically emphasizing two state practice requirements plus acceptance of practice as mandatory or opinion juries, storing necessitates abbreviated as jury opinion ).
Derived from the consistent practice of (originally) Western countries accompanied by jury opinions (state belief that consistent practice is required by legal obligations), customary international law is distinguished from acts (joint acknowledgment of government action) by the presence of jury judges (although in some cases, the act of trust has developed into an international customary law, ie diplomatic immunity). Agreements have gradually superseded many customary international laws. This development is similar to the replacement of customary law or common law with codified law in the municipal law setting, but customary international law continues to play an important role in international law.
Country practices
When examining country practice to determine the relevant rules of international law, it is necessary to consider any organ activity and state officials associated with that purpose. There is an ongoing debate about where differences should be drawn for weights that must be linked to what the state is doing, rather than what they say represents the law. In its most extreme form, it will involve rejecting what the state says as practice and submitting it to the status of the jury of opinion . A more moderate version will evaluate what the state says by referring to the event in which it was made. Only relatively strong countries with extensive international contacts and interests have regular opportunities to contribute by practicing international law. The principal means of contributing to state practice for the majority of states will be at meetings of international organizations, in particular the UN General Assembly, by voting and otherwise expressing their views on matters under consideration. In addition, there are circumstances in which what the state says may be the only proof of their view of what is required in certain situations.
The idea of ​​setting custom rules implies that these practices are followed regularly, or that the practice of the country should be "general, consistent and appropriate". Given the size of the international community, the practice should not include all states or be completely uniform. There should be a sufficient level of participation, especially on the part of countries whose interests tend to be most affected, and the lack of substantial dissent. There are a number of occasions where ICJ rejects claims that customary rules exist because of a lack of consistency in the practices brought to its attention.
However, in the context of a particular dispute, it is not necessary to define the practice announcement. A rule may apply if a country has accepted the rules that apply to it individually, or because the two countries belong to the group of countries in which the rules apply.
A disagreeing country is entitled to reject the opposition of a questionable rule if it can express its continuing objection to the rule either as a member of a regional group or by its membership of the international community. It is not easy for one country to maintain its dissent. Also, the rules of the jus cogens have a universal character and apply to all countries, regardless of their desires.
The demand for regulatory responsiveness to rapid change has led to suggestions that there can be, in the right circumstances, concepts such as "instant habits". Even in traditional doctrine, the ICJ has acknowledged that a short travel time is not always a bar for the establishment of new rules. Therefore, the question sometimes arises, whether the word "custom" is suitable for processes that can occur at high speed.
Practice by international organizations
It can be argued that the practice of international organizations, notably the United Nations, as seen in Security Council resolutions and the General Assembly, is an additional source of international law, although it is not mentioned as such. in Article 38 (1) of the Statute of 1946 of the International Tribunal. Article 38 (1) is closely based on provisions in accordance with the Statute of the 1920 International Court of Justice of Justice, preceding the role played by international organizations in international aircraft. That is, the provisions of Article 38 (1) can be regarded as' dated , and this can be most clearly seen in the mention made of "civilized countries", a more strange mention after the decolonization process that occurred in the early 1960s and the participation of almost all countries in the world at the UN.
Opinio juris
The wealth of state practice is usually not accompanied by the assumption that there is opinio juris . "Not only is the action to be done, but it must also be, or done in such a way, as a proof of the belief that this practice is made mandatory by the existence of the rule of law, needs it."
In cases where practice (given evidence) comprises abstention from action, behavioral consistency may not establish the existence of customary international law rules. The fact that no nuclear weapons were used since 1945, for example, does not make its use illegal on the basis of customary duties because the required jury of opinion is lacking.
Although the ICJ has often referred to the jury's judgment as a position equivalent to state practice, the role of the psychological element in the creation of customary law is uncertain.
Juice cogens
The peremptory norm or the jus cogens (Latin for "force law" or "strong law") is a fundamental principle of international law that rules out all other sources of international law, including even the Charter of the United Nations. The jus i cogens principle is enshrined in Article 53 of the Vienna Convention on the Law of Treaties:
- For the purposes of this Convention, the peremptory norm of general international law is the norm accepted and acknowledged by the international community of the State as a whole that is of no limitation and that can be modified. only with the next common norm of international law having the same character.
Rules of jus cogens generally require or prohibit states to take certain actions or respect certain rights. However, some define the criminal offenses that the state should enforce against individuals. Commonly included in the list of such norms is the prohibition of such crimes and misconduct internationally such as waging aggressive wars, war crimes, crimes against humanity, piracy, genocide, apartheid, slavery and torture.
The evidence supporting the emergence of the jus cogens rule is essentially the same as that required to establish the establishment of a new rule of customary international law. Indeed, juicy cogens can be considered a custom-made principle with super-nicknames jury views . The European Court of Human Rights has emphasized the international public policy aspect of juog cogens.
General principles of law
The scope of general principles of law, of which Article 38 (1) of the ICJ Statute refers, is unclear and controversial but may include general legal principles for a large number of municipal legal systems. Given the limits of treaties or customs as a source of international law, Article 38 (1) may be viewed as a directive to the Court to fill the loopholes in the law and prevent nonliquets by referring to general principles.
In the early stages of the development of international law, the rule is often derived from municipal law. In the nineteenth century, legal positivists rejected the idea that international law could come from any source that does not involve the intentions or consent of the state but is prepared to permit the application of general legal principles, provided that they have in some way been accepted by declaring it as part of the legal order. Thus Article 38 (1) (c), for example, speaks of general principles "recognized" by the state. An area that demonstrates the adoption of a municipal approach is a law applied to relations between international officials and the organizations that employ them, although these principles are now regarded as established international law.
The importance of general principles is undoubtedly reduced by the increased intensity of treaties and institutional relationships between countries. However, the concept of estoppel and equity has been used in the adjudication of international disputes. For example, a country which, by its behavior, encourages other countries to believe in the existence of certain legal or factual situations, and to rely on that belief, can be excluded from affirming conflicting situations in its affairs. The principle of good faith is said by the ICJ as "[of] the basic principle governing the creation and implementation of legal obligations". Similarly, there are many references to equities. It is generally agreed that equity can not be used to subvert the rule of law (ie, operate contra legem ). This perception of "equity as law" is reinforced by a reference to fair principles in the text of the United Nations Convention on the Law of the Sea 1982, although this may be little more than a recognition of the existence, and the legitimacy, of the wisdom of the adjudicator.
However, the principle of estoppel and equality in an international context does not retain all the connotations they do under common law. References to principles as "general" indicate that, if rules must be adapted from the laws of the city, they must be at a general level sufficient to include similar rules existing in many municipal systems. The principles of municipal law should be regarded as a source of inspiration rather than as a source of direct implementation rules.
Judicial and legal judgment
According to Article 38 (1) (d) of the Statute, the ICJ is also to apply "court rulings and teachings of the most qualified publishers of different nationalities, as an additional means for the determination of the rule of law". It is difficult to say what effect this material has on the development of the law. Applications in cases before the ICJ are often full of references to legal cases and legal literature.
Court decision
The decision of an international and municipal tribunal and academic publication may be referred, not as a source of such law, but as a means of recognizing laws established at other sources. In practice, the International Court of Justice does not refer to domestic decisions even if it invokes the law of the previous case.
There is no staid decisis rule in international law. The Court's decision has no binding power except between the parties and in connection with a particular case. However, often the Court will refer to previous advisory decisions and opinions to support his explanation of the current case.
Often the International Court of Justice will consider General Assembly resolutions as an indication of customary international law.
Juristic Writing
Article 38 (1) (d) The Statute of the International Tribunal states that 'the most qualified public relations doctrines of different nationalities' are also included in 'additional means for the determination of the rule of law'. The scientific work of prominent jurists is not a source of international law but is essential in developing rules that stem from covenants, customs, and general legal principles. This is a practice accepted in the interpretation of international law and used by the United States Supreme Court in the case of The Paquete Habana (175 AS (1900) 677 at 700-1).
See also
- International law
- Opening to the Charter of the United Nations
References
Further reading
- Thirlway, H., International Customary Law and its Codification (A. W. Sijthoff: Leiden, 1972).
External links
- Brief Primary on International Law With cases and comments. Nathaniel Burney, 2007.
- The official website of the United Nations
- The official UN website on International Law
- The International Court's official website
- International Law Resources, University of Geneva course on 'International Public Law' by Robert Kolb.
Source of the article : Wikipedia
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