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Question one. 1. what are the main sources of international law, and has their relative importance changed since the end of the Second World War?
International law refers to law that defines rightful duties of States at the time when they interact with other states, and the way they treat individuals within the state boundaries. Its domain comprises a variety of international concern issues such as war conduct, using of force, how prisoners are treated, nationality problems, migration, refugees, international crime, disarmament and human rights. International law also regulates global commons like world trade, global communications, outer space, international waters, sustainable development, and the environment. International law has sources. This essay will therefore address, in detail, the main sources of this law and the argument that if the relative importance of these particular sources has experienced change since the end of the Second World War.
According to Article 38 of ICJ’s Statute, (International Court of Justice), there exist four main international law sources: Treaties and conventions, custom, law principles in general and qualified publicists’ views.
Treaties and conventions.
Treaties are agreements between countries and do vary in solemnity formality’s level in which they are concluded with. The parties enter into treaties and commit themselves in a way that other parties should rightfully rely in a legal way. Occasionally, treaty disputes arise whether an understanding or agreement between two states or countries has been attained, and if that is the case, whether the participating parties had the intention to make legal commitments that are binding, to them. These and other issues which are the pervasive role played by international relations treaties are addressed in the Law of Treaties of Vienna, 1969, or otherwise, the ‘ treaty on treaties.’ Just as any other treaty, the Vienna Convention terms bind strictly its parties, as USA, one of the international society important members, are not bound to it. Yet, it’s accepted generally that a good number of the treaty’s provisions comprise international law of the custom, which binds the ones who are not members (John, 2002).
The Vienna Convention comprises of the core provisions, which are: treaties are only made by and with states as provided in international law; when a treaty is signed, a state should comply, in good faith, with its provisions and should not undercut its provisions; once ratified domestically under the ratifying country’s laws, and the other parties notified, a treaty should impose legal obligations corresponding to its provisions on the party that ratifies it, and creates interests that are internationally recognized for all the parties to this treaty; interpretation of a treaty should be done by referring to its text and this text is obliged to construe in light of this treaty’s objective; A treaty’s terms shouldn’t conflict with the international behavior’s peremptory norms; just as its parties shouldn’t be forced to engage in treaties through fraud or duress, they also have freedom of withdrawal or renunciation from these treaties, provided they follow the necessary conditions for doing this (Baderman, J., 2002).
There exist 3 conditions within which the behavior of states in general becomes a regulation or rule of international law of custom: If there exists widespread of the behavior, practices are adhered to over a significant time and its practitioners view it as provided by law. Some, among the international law rules originated as practices of custom among states which, subsequently, were corded under treaties, or continue their derivation from that custom. With proliferation of these treaties and diversification of the international society as from its cultural roots of West Europe, those who are willing for a uniform behavior standard among the states largely depend on treaties for the extrapolation of customary law, which all states are obliged to be bound regardless their participation in specific treaty regimes. The impact is some kind of symbiosis between law of treaty and international law of custom (Malcom, 2008).The application of international law of custom therefore requires attempts for the reconciliation of universality belonging to its rights and obligations with rights of national type such as consent and sovereignty. The impact is a doctrines-mishmash.
Law principles & qualified publicists’ views
The 3rd broadly recognized international law source is the principles of law (general) which is recognized within the jurisdiction of civil nations. It’s intention is to incorporate mainly the broad law principles in all modern systems of legality which are reasonably developed, example, wrongs should be subjected to remedies, defendants and claimants should be provided with fair opportunities for presenting and defending their positions, decisions should be subjected to reasoned evidence analysis, and impartial decision-making. The purpose of legitimizing, sanctifying and ascertaining the principles of law in general depends on the consensus existence, among scholars of international law who are highly qualified and jurists concerning whether a certain rule or behavior is considerable, as per the mandate of international law and independent of what countries or states accepted or did (Mires, 2013).
Institutions, as sources of international law
International law, as an institution of culture, is adaptable and dynamic. Human beings fashion it for service of their needs which vary depending on environment, place and time. International law’s final source, therefore, is obliged to account for institutions, human beings, and contingencies of economics and politics which shape, deploy and interpret law for the service of particular ends. Examples of these laws are rarely produced by specific doctrines, procedures or rules than they are subjected to interested subgroups’ policy preferences within the international society. Sometimes laws that are applicable are ascertained more by particular group’s needs than shared practices and formalistic resort for written texts (Schlesinger, S., 2003).
The relative importance of these sources of international law has not experienced change after the Second World War. The change was recognizable only before the Second World War. In the modern international law, (international law after World War 2), treaty, as a source of international law constitutes of ‘consent’ as one of its functioning concepts. This concept was introduced after the Second World War, and it still applies to date. This shows the similarity in relevance of the treaty, as a source of international law, within the period we are now and the period after World War 2 or since World War 2 (Slomason, 2011).
The relevance of custom, as a source of international law has not experienced change since the two requirements that are obligatory to this source of international law as stipulated by Article 38 (1) (b) of the International Court of Justice apply since the end of World War 2 to date. These requirements constitute: state party’s requirement and acceptance of that particular practice as obligatory, (opinion juris sive necessitatis). In the early stages of international law development, rules were drawn frequently from the law of municipality. Since the Second World War to date, legal positivists argued and rejected this idea that this type of law could emanate from whatever source that didn’t involve the will or consent of state. This therefore impacted to the stipulation of the concepts of equity and estoppels in the international disputes adjudication, since the end of World War 2. Thus, it was agreed, generally, that the perception of “equity as law” should be reinforced be referring to principles of equity in the United Nation Convention’s text (Schlesinger, S., (2003).
In conclusion, international law constitutes of sources which are treaties, custom, law principles in general and qualified publicists’ views. These sources have relevance amounting to their general purpose of ‘sources of international law,’ and this relevance has been the same or is similar since the end of the Second World War to date, and only different prior to the end of this particular war, as seen and discussed in the above paragraphs of this essay.
Baderman, J. (2002). International law in antiquity: Cambridge. 35-67
Formerand, J. (2009). The A to Z of the United Nations. Lanhalm, MD. 45-67.
John, R. (2002). International Criminal Court: Letter to UN Secretary, US Department of State.12-23.
Malcom, S. (2008). International Law. New York. Cambridge University Press. 72-93.
Mires C. (2013). Capital of the World: The Race to Host the United Nations. New York. 34-56.
Schlesinger, S. (2003). The Founding of the United Nations. Boulder, CO. 67-90.
Slomason, W. (2011). Fundamental Perspective of International Law. Boston, USA: Wadsworth.4-5.
Statute of the International Court of Justice, Article 38(2).
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