Class Essay Example
changed since the end of the Second World War?
What are the main sources of international law, and has their relative importance
International laws are made up of rules and set principles which deals with the way states and international organizations carry out their relationship with each other as well as with private citizens. The International Court of Justice (ICJ) is the main judicial organ of the United Nation. Article 38 of the statute contains a comprehensive list of sources of international laws. The listing has been under contention on basis of hierarchy of sources. The laws are made by the states which in some instances act as a disadvantage. This is due to some states being reluctant to adopt laws which will affect their interests. For the laws to be successful, consensus must be arrived at by the involved states (D’amato, 2004). According to article 38 of the statute, sources of the international laws are listed as treaties, customary law, decisions of courts and tribunals, unilateral acts and general principles of law. As international organizations have gained prominence worldwide, they have become a source of international law. Lack of inclusion in the statute is due to fact that the statute was made when international organizations were not well established. There have been several changes since the end of the world war relating to the importance of the sources of international law (Breau, 2013). This essay will list the sources of international laws and analyze them. The essay will also explain the changes in their relative importance since the end of the world war.
Treaties are referred to be the most common source of international law. International laws such as the environmental laws have some of their parts being under regulation of treaties. Treaties are known by different names such as pacts, agreement, protocol and convention. The form of treaty depends on the number of states that are involved. This leads to treaties being bilateral, multilateral or universal. Bilateral treaties involve two countries while multilateral treaties involve more than two states. Universal treaties bind all states. An example of a universal treaty is the UN charter of 1945. Treaties take time to be accepted and implemented. The process of making treaties involves expert deliberation, acceptance by a political body and finally taking to the state conference where it is completed. Upon completion, the treaty has to be ratified by the involved states so that it can be implemented (Fitzmaurice & Quast, 2007).
Customary international law
The customary norms used in international law occur when there is an accepted practice among states. This is a practice that is done by states due to law obligation. The general international law is mostly based on the customary law. Formation of international law based on the customary law is in most cases a slow process. This is due to fact that it’s hard to determine the criteria for creating such a law. For customary law to be adopted, it must have consistency, generality and have relevance to the states involved. The difficult also arises due to the fact that states in most cases fail to explain their motive behind the customary laws. There has been an established connection between the international law and the customary law. This is through codification, crystallization and formation (D’amato, 2004).
General principles of international law
This is referred as a source of international law under article 38 of the ICJ statutes. The statute refers to it as general principles of law that are recognized by the civilized nations. The environmental treaties are in most cases based on this principle. This source is fundamental due to the promotion of creativity to the judges (Breau, 2013). The general principle of law helps in sealing the gap left by treaties and the customary law. This is done through comparison with the state’s legal system. This source has been under contention due to ambiguity in interpretation. Their lack of positive proof of existence has also been a problem in their application (D’amato, 2004).
Decisions of courts and tribunals
These are subsidiary means of developing international law. The decisions provides vital material for developing the international law. The decisions importance differs amongst the decisions. The main use of the courts and tribunal decisions has been advancement of the law. The decisions of the international courts are very important as they are used to identify various rules of the international laws. In a strict sense, the court of law and scholars of law are not supposed to create the international laws, but are supposed to help in enlightening on the existing laws. This can be illustrated during the process of making treaties. In this process, legal scholars and scholarly publications are consulted (D’amato, 2004).
Decisions of international organizations
The rise in prominence of the international organizations has made them to be a source of international laws. Though they are not mentioned under article 38 of the ICJ, they serve as an important source for international law. The statute document was drafted long before international organization gained power in the international life as they are today. The main problem with international organization decisions is the fact that they offer some of the decisions which cannot be used as laws. This occurs in situations where the decision made is a domestic legislation or recommendations. Recommendations are sometimes used in legal arguments. The voting pattern of the countries involved serves as an important determinant of the decision made. This helps in determining whether the decision can be used in developing an international law or not (Jose, 2006).
These are sources of international law that were specified by ICJ in 1974. One of laws from these acts is nuclear test. Their binding power comes from the will of the states and is based on good faith. The unilateral acts are regarded as exceptional situations since they are binding under special circumstances (D’amato, 2004).
Changes in relative relevance since world war two
One of the major changes in sources of international laws since world war two is treaties. The treaties that were made prior to world war two were contributors to the war. This led to the treaties that were made after war to be more oriented in preventing another war. The Nuremberg trial was a major event that helped in shaping international laws concerning war crimes. This trial led to rejuvenation of the international criminal laws. To make sure culprits of the war crimes do not escape the law, the development of international laws paid more attention to prosecution of war crimes. One of the major development in the international law since World War 2 is creation of the international criminal court (Craven, Fitzmaurice & Vogiatzi, 2007).
There has been more importance in treaties that have enabled world peace. Some of the treaties involve use of nuclear weapons and space laws. There has also emergence of the international organizations as a source of international law. The relative importance of international organizations as a source of international law has increased (Craven, Fitzmaurice & Vogiatzi, 2007).
International laws sources are listed in article 38 of the international court of justice statute. Among the sources, treaties are the most popular source of international laws. The rest of the sources are general principles of law, customary laws, unilateral acts and judicial decisions. International organizations have become an instrument of international laws of late due to their rise in importance. Since the end of the World War 2, international organizations have grown in prominence making them a source. The importance of treaties has also been emphasized in a bid to promote world peace. The creation of international criminal court has been an important use of treaties to ensure war perpetrators are held accountable.
Breau, S.C 2013, International law 2013 and 2014. Oxford: Oxford University Press.
Craven, M. C. R., Fitzmaurice, M & Vogiatzi, M 2007, Time, history and international law,
Leiden, M. Nijhoff.
D’amato, A.A 2004, International law sources, Leiden, Martinus Nijhoff.
Fitzmaurice, M & Quast, A 2007, Law of treaties, London, University of London Press
Jose, A 2006, International Organizations as Law‐Makers, Oxford, Oxford University Press.
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