Unit Essay Example
What are the main sources of international law, and has their relative importance changed since the end of the Second World War?
In the past, international laws were made by sovereign states to be applied to sovereign states. International law deals with issues of military, territory and diplomatic relations. The fact that the laws are made by states leads to delay or obstruction when implementing the laws. This happens in instances where there is a conflict of interests between states. This is evident in cases such as implementation of global climate control. The countries who are main polluters are in most cases slow in response, making it hard to implement. The main pillar of international law is consent among the signatory states (Shaw, 2003). According to the International Court of Justice, which is the main judicial organ of the United Nations, its article 38 gives the list of the source of international law. The listed main sources of international laws are treaties, customary law, General principles of law and decisions of courts and tribunals. Decisions of the international organizations, though not included are a recent source of international law. Their inclusion has been due to their rise in prominence over the past years. Since the end of Second World War, there have been changes in their relative importance. This essay will look at sources of international laws and explain the changes in their relative importance since the end of Second World War (D’amato, 2004).
Treaties refer to agreements that are sealed between sovereign states. Treaties are referred by several names such as pacts, charter and protocols. The nature of treaties differs and can be bilateral or multilateral. Multilateral treaties are large and lead to involvement of those tasked with developing of international laws. Successful treaties are emulated by several states and leads to stability in regions using them. The main problem with making treaties is time consuming and cumbersome. Some of the treaties take years before they are accepted and implemented. Treaties involve several steps in making them. The first step is expert deliberation. This involves a body which has credibility like the International Law Commission. The draft has then to be accepted by the political body and afterwards taken to a state conference where it is finalized. After finalizing, the treaty has to be ratified by member countries so that it becomes enforceable. Treaties have been cited to be at the top of the hierarchy due to their popularity among the rest (D’amato, 2004).
These are laws that arise from behaviors exercised among states. If a behavior is based on legal obligation, this may lead to creation of an international law. The main problem with customary law is ambiguity. This leads to conflicting interpretations which can lead to the law being challenged. The process of formation of the customary laws is also slow due to the process of determining qualification. In some cases, states fail to give an explanation of the reason why or motive of the practice. At the moment, international laws have most of their important areas based on the customary laws (D’amato, 2004).
General principles of law
This is a source that is mostly used in sealing gaps which are left by the treaties and customary laws. The inclusion of the general principles of law as a source of international law acted to affirm democracy. General principles are fundamental to the legal system and helps in promoting creativity in judges. To seal the gaps, general principles have to be compared with the national legal system (Andreas, 2003). The international arbitral tribunals in most cases use the source due to its importance. The main problem with the general principles of law is lack of positive proof in their existence which leads to complicated application. This has been one of the most contested sources of international law due to ambiguity in interpretation. Despite this, general principles of law are part of the international law as listed in the statute (D’amato, 2004).
Decisions of international organization
The decisions of the international organization are another source of international law. Though missing in Statute of the International Court of Justice, it is one of the most recent sources. Its absence in the list is due to fact that the statute was established before international organizations had gained prominence. The main problem that lies on this source is the diversity of the decisions. Some of the decisions made are rules and in most cases acts as domestic legislation and recommendations. This leads to the issue of the legal nature of the decisions. To determine the legality of the decisions by international organizations requires deep analysis. This involves looking at the voting pattern of the countries involved and also confirmation. The precise intention of the organization determines the legal nature of the resolution (Epps & Graham, 2011).
Decisions of the courts and tribunals
Decisions of the courts and tribunals act as minor sources of international laws. This is due to fact that they provide material for development of the international laws. The decisions acts in shedding more light in the laws that is in practice and gives clarifications. The courts and tribunals have been used in advancing international law (D’amato, 2004).
Changes in their relative importance since World War 2
After the Second World War, treaties become more important. The treaty making process after world war two have become more elaborate than prior to world war two. The treaties that were signed after First World War had contributed to Second World War in some ways and most of them were not honored. This made the treaties made after the Second World War to be stronger to prevent another war.
The Nuremberg trial served as an avenue which showed that prior treaties were inadequate to protect against another war. Though Nuremberg was later condemned as unfair, it served in laying foundation for modernization of the criminal laws. There were drastic changes in the international law development. This was evidenced by treaties which punished war crimes (Craven, Fitzmaurice & Vogiatzi, 2007). International Criminal Court has been a major development in the international law that has been focused in preventing war crimes such as those witnessed in the First World War. This has helped in making it possible to prosecute those found committing war atrocities. The nuclear technology is a recent development that has led to changes in development of international laws. There has been development of the space laws which were enacted in 1960s. International organizations have turned to be a source of international laws. Prior to world war two, international organizations did not play a major role in enactment of the laws. The prominence of the organizations has made them an important part of international laws (Breau, 2013).
In conclusion, international laws have drawn great interest on their sources. There has been discussion among scholars on the hierarchy of sources of the international laws. This has led to some scholars taking treaties as the major source of international laws. The classic sources under the Article 38 of the International Court of Justice are treaties, customary laws, general principles of law and the judicial decisions. The decisions made by the international organizations cannot be down played on their contribution to the international laws. This is due to the prominence that international organizations have gained in the recent years. Since the end of the Second World War, the relative importance of these sources has increased. There have been more efforts that have been directed at ensuring peace and human rights are upheld worldwide. The rise in prominence of the international organizations has also made them to be a source of international laws through their decisions.
Andreas, L., 2003, ‘Investment Agreements and International Law’, Columbia Journal
of Transnational Law, vol. 42, no 1, pp. 400-403.
Breau, S 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.
Epps, V & Graham, L 2011, International law, Austin, Wolters Kluwer.
Shaw, M 2003, International law, Cambridge, U.K., Cambridge University Press.
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