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THE MAIN SOURCES OF INTERNATIONAL LAW AND THEIR RELATIVE IMPORTANCE CHANGED SINCE THE END OF THE SECOND WORLD WAR
International Law is defined as the set of rules and regulations that countries follow in dealing with each other appropriately. Thus, this is a clear suggestion that international laws are meant to ensure peaceful and harmonious coexistence between various nations. As well, it is worth noting that there are three main distinct legal processes associated with the international laws. One of the most significant is public international law that is involved in governing the relationship between sovereign states and international organizations such as international criminal court (ICC). The second element is the private international laws that are mainly aimed at issues of jurisdiction in conflicts. Finally, it is consist of supranational laws which are the set of laws that sovereign states adhere to voluntarily. On the other hand, it is somehow difficult to really understand and establish what international law is because there is no world government. As such, there is no world congress that is responsible in making international laws as compared to the country congress. Therefore, there are several sources that have been successfully used as the sources of international laws (Malanczuk, 2002 pp.6).
One of the most significant sources of international laws is customs. This is one of the oldest sources and generates binding rules between various states. The most significant characteristic of this type of source is that it is not written this leads to the difficulty of ascertaining them as compared to written treaty. One of the most applicable customary laws is granting of immunity to a visiting head of state. This consist of two main elements namely; the practice of the state and the and opinion juris. First of all, the state must have a consistent practice of granting immunity to any visiting head of state. Secondly, it is imperative that the must have opinion juris whereby they do this knowing that it is their obligation. However, it is imperative to note that customary laws are associated with numerous disadvantages. Malanczuk asserts that “How widespread must this practice must this practice be? How long does it take to be established?” (Malanczuk, 2002 pp.9). As well, it is problematic to replace such international laws with another rule of the same kind. Another disadvantage is that customary international law can be difficult to prove. As a result, it requires in-depth research to come up with conclusive remarks. In most cases customary laws are mostly vague and open to conflicting interpretations. Presently, there have been great changes in the international customary laws. For instance, states have acknowledged that internationally murdering civilians during is prohibited by the international law. Thus, the main challenge associated with customary laws is determining them. Primarily, this is mainly because they are not written as compared to treaties.
The second source of international laws is treaties, also regarded as agreements, conventions, protocols or exchange of notes. They are similar to contracts that exist between countries where promises are exchanged and finalized through writing and signing. To come up with effective treaties the states engage in debates and finally develop binding and written provisions. There are several issues that are addressed by treaties in the nations involved. One of the most significant of this is trade and nuclear control treaties. These treaties between two nations are called bilateral while those between several countries are regarded as multilateral. Each of these types of treaties has its own ways of enforcement such as arbitration (Janis, 1999 pp.3). It is imperative to note that treaties bind the nations that are only members. As well, the choice to be member or not entirely depends on the organization thus there is no requirement to sign a treaty. Presently, there have been several changes on the adoption of treaties. Some of the most affected areas with these changes since the Second World War include war, terrorism, diplomacy, and treaty making. The relevance of these changes is that they have played a crucial role in reducing issues such as terrorism and war between these nations since agreements of peaceful and harmonious coexistence have been signed.
The third source of international laws are general principles of law which are theoretically equivalent to customary or treaties. However, the main objectives of these principles are to close the gaps that are left by both treaties and customary laws. General principles of law are generated by comparing the national legal systems of the involved states and the common rules are applied in the international laws. One of the most common of this principle is the principles of procedural fairness before the court of law. Most legal systems beliefs that all individuals act on good faith in that they work with the objective of complying with the agreements they make (Simons, 2000 pp.821). This is the main reason the court tries to examine if an individual acted on good faith or not. The use of good faith in most courts therefore can be incorporated in the international laws. Conclusively, general laws are broadly applied where customary laws and treaties are not effective.
The fourth source of international law is the decision of the courts and tribunals. This is considered as the subsidiary means for determining the rules of law. In actual sense, these are not the real source of the international law but instead they are called upon to shade more light on the existing laws (Janis, 1999 pp.4). All scholars studying international law in detail can attest to the fact that courts and arbitral tribunals have played a crucial role in advancement of laws. For instance, professors are sometimes consulted by governments or become judges thus are involved in important matters such as treaty making and state practices. Decisions of courts and tribunals thus help to prove the existence of specific rule of international law. As well, legal scholarships plays avital role in describing the widely used rules of law across the globe.
The final source of international laws is the decisions of international organizations. There are several disadvantages associated with the use of these decisions as the source of international law. First of all, internal organizations make substantially diverse decisions thus defy any generalized analysis. However, this problem has been suppressed by the fact that these decisions are sourced from regional organizations such as European community and other global originations such as the United Nations. Some of these decisions contain binding rules that are comparable to domestic legislation (Simons, 2000 pp.822). On the contrary, it is imperative to note that not all of these decisions are equally authoritative. As a result, this calls for the need for analysis of various factors such as countries voting in favor and confirmation through repetition.
In conclusion, it is imperative to note that the relative importance of these sources of international laws has substantially changed since the end of the Second World War. For instance, several treaties have been signed to govern issues such as terrorism, war, and nuclear controls. These agreements have substantially fostered peaceful and harmonious coexistence between various nations.
Janis, M. W. 1999. An Introduction to International Law. Aspen Publishers, Pp.1-35.
Malanczuk, P., 2002. Akehurst’s Modern Introduction to International Law. Routhledge.
Simons, B. A., 2000. International Law and State Behavior: Commitment and Compliance in International Monetary Affairs. Journal of American Political Science Review, 94 (04), Pp.819-835.
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