From Advocatespedia, The Law Encyclopedia
N. The body of law that governs relations between different countries, composed of custom and practice, rules and statutes, international treaties, and other sources.
Body of legal rules governing interaction between sovereign states (Public International Law) and the rights and the duties of the citizens of sovereign states towards the citizens of other sovereign states (Private International Law). Since there has never been a law making body for international law, it has been built up piecemeal through accords, agreements, charters, compromises, conventions, memorandums, protocols, treaties, tribunals, understandings etc. The statute of the International Court of Justice (judicial arm of the UN which has no enforcement power, and can adjudicate only where both sides agree to abide by its decisions) states the basis on which it adjudicates cases before it as
(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states
(b) international custom, as evidence of a general practice accepted as law
(c) the general principles of law recognised by civilized nations.
It is not a 'World Law' but law between consenting sovereign states ( each government can decide which law it will adhere to or not) and has not been able to solve the problems of inter-state aggression, conflict, terrorism andd war. Despite its limited applicability, however, it has played a vital role over the centuries in developing a system of procedures and rules in areas (such as air, land, sea, outer-space, himan rights) where one state's existence impinges that of the others. The General Assembly of the UN is entrusted with developing international law. Also called law of nations.
The term international law has been defined in a variety of ways by different jurists.
OPPENHEIM: Law of Nations or international law is the name for the body of customary law and conventional rules which are considered binding by civilized states in their intercourse with each other.
ALF ROSS: Alf Ross defines the term international law as, 'International Law is the body of legal rules binding upon states in their relations with one another.
LAWRENCE: According to him, International Law is the rules which determines the conduct of the general body of civilized state in their mutual dealings.
Definition in latest edition of Oppenheim's book
International Law has always been in a continuous state of change. In a modern period the term International Law may rightly be defined as, "That body of legal rules which regulates the relationship of the Nation States with each other, as well as, their relationship with other International actors." International law can be divided into two branches viz. Public International Law and Private International Law. Public International Law may be defined as a body of legal rules which regulates the relation of states inter se as well as their relations with other non-state entities. On the other hand Private International Law may be defined as that branch of International Law which determines that which law is to be applied to a specific case containing a foreign element.
Public international law (commonly referred to as ‘international law’) governs relationships between and among entities with international legal personality: sovereign states and other international actors, such as inter-governmental organisations and individual natural persons. The legal personality attributed to these entities means that they have rights, protections, responsibilities and liabilities under international law.
SOURCES OF INTERNATIONAL LAW
1. INTERNATIONAL CONVENTIONS
International treaties are contracts signed between states. They are legally binding and impose mutual obligations on the states that are party to any particular treaty (states parties). The main particularity of human rights treaties is that they impose obligations on states about the manner in which they treat all individuals within their jurisdiction. Even though the sources of international law are not hierarchical, treaties have some degree of primacy. More than forty major international conventions for the protection of human rights have been adopted. International human rights treaties bear various titles, including ‘covenant’, ‘convention’ and ‘protocol’; but what they share are the explicit indication of states parties to be bound by their terms. Human rights treaties have been adopted at the universal level (within the framework of the United Nations and its specialised agencies, for instance, the ILO and UNESCO) as well as under the auspices of regional organisations, such as the Council of Europe (CoE), the Organisation of American States (OAS) and the African Union (AU) (formerly the Organisation of African Unity (OAU)). These organisations have greatly contributed to the codification of a comprehensive and consistent body of human rights law.
• UNIVERSAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS
Human rights had already found expression in the Covenant of the League of Nations, which led, inter alia, to the creation of the International Labour Organisation. At the San Francisco Conference in 1945, held to draft the Charter of the United Nations, a proposal to adopt a ‘Declaration on the Essential Rights of Man’ was put forward but was not examined because it required more detailed consideration than was possible at the time. Nonetheless, the UN Charter clearly speaks of ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’ (Article 1, para. 3). The idea of promulgating an ‘international bill of rights’ was developed immediately afterwards and led to the adoption in 1948 of the Universal Declaration of Human Rights (UDHR). The UDHR, adopted by a resolution of the United Nations General Assembly (UNGA), although not a treaty, is the earliest comprehensive human rights instrument adopted by the international community. On the same day that it adopted the Universal Declaration, the UNGA requested the UN Commission on Human Rights toprepare, as a matter of priority, a legally binding human rights convention. Wide differences in economic and social philosophies hampered efforts to achieve agreement on a single instrument, but in 1954 two draft conventions were completed and submitted to the UNGA for consideration. Twelve years later, in 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were adopted, as well as the First Optional Protocol to the ICCPR, which established an individual complaints procedure. Both Covenants and the Optional Protocol entered into force in 1976. A Second Optional Protocol to the ICCPR, on the abolition of the death penalty, was adopted in 1989 and entered into force in 1991.
The ‘International Bill of Human Rights’ consists of the Universal Declaration of Human Rights, the ICESCR and the ICCPR and its two Optional Protocols. The International Bill of Rights is the basis for numerous conventions and national constitutions. The ICESCR and the ICCPR are key international human rights instruments. They have a common Preamble and Article 1, in which the right to self-determination is defined. The ICCPR primarily contains civil and political rights. The supervisory body is the Human Rights Committee. The Committee provides supervision in the form of review of reports of states parties to the Covenant, as well as decisions on inter-state complaints. Individuals alleging violations of their rights under the Covenant can also bring claims against states to the Committee provided the state concerned is party to the First Optional Protocol. By March 2010, a total of 165 states were parties to the Covenant, 113 to the First Optional Protocol and 72 to the Second Optional Protocol (see II§1.C).
The ICESCR consists of a catalogue of economic, social and cultural rights in the same vein as the ‘social’ part of the UDHR. Supervision is provided for in the form of reporting by states parties to the Covenant and review of state reports has been entrusted by the UN Economic and Social Council (ECOSOC) to the Committee on Economic, Social and Cultural Rights. An Optional Protocol establishing a system of individual and collective complaints was adopted on 10 December 2008. It will be opened for signature and ratification in March 2009.In March 2010, a total of 160 states were parties to the Covenant (see II§1.C).
Besides the International Bill of Human Rights, a number of other instruments have been adopted under the auspices of the UN and other international agencies. They may be divided into three groups:
a) Conventions elaborating on certain rights, inter alia:
The Convention on the Prevention and Punishment of the Crime of Genocide (1948)
ILO 98 concerning the Right to Organise and to Bargain Collectively (1949)
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
International Convention for the Protection of All Persons from Enforced Disappearance (2006)
b) Conventions dealing with certain categories of persons which may need special protection, inter alia:
The Convention relating to the Status of Refugees (1951), and the 1967 Protocol thereto
The Convention on the Rights of the Child (1989)
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (2000)
Optional Protocol to the Convention on the Rights of the Child on the sale of children,child prostitution and child pornography (2000)
ILO 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989)
The International Convention on the Protection of the Rights of All Migrant Workers andMembers of Their Families (1990)
The Convention on the Rights of Persons with Disabilities (2006)
c) Conventions seeking to eliminate discrimination
ILO 111 concerning Discrimination in respect of Employment and Occupation (1958)
UNESCO Convention against Discrimination in Education (1960)
The International Convention on the Elimination of All Forms of Racial Discrimination (1965)
The International Convention on the Suppression and Punishment of the Crime of Apartheid(1973)
The Convention on the Elimination of All Forms of Discrimination Against Women (1979)and its Optional Protocol (2000)
• REGIONAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS
The UN Charter encourages the adoption of regional instruments for the establishment of human rights obligations, many of which have been of crucial importance for the development of international human rights law. The Council of Europe adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950 (see II§2.C), supplemented by the European Social Charter in 1961, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in 1987, and the Framework Convention on National Minorities in 1994. The American Convention on Human Rights was adopted in 1969, under the auspices of the Organisation of American States. This Convention has been complemented by two protocols, the 1988 Protocol of San Salvador on economic, social and cultural rights and the 1990 Protocol to abolish the death penalty. Other Inter-American Conventions include the Convention to Prevent and Punish Torture (1985), the Convention on the Forced Disappearances of Persons (1994), the Convention on the Prevention, Punishment and Eradication of Violence against Women (1995) and the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities.
In 1981, the Organisation of African Unity, now the African Union, adopted the African Charter on Human and Peoples’ Rights. Three protocols to the Charter have been adopted: the Additional Protocol on the Establishment of the African Court on Human and Peoples’ Rights (1998), the Protocol on the Rights of Women in Africa (2003) and the Protocol on the Statute of the African Court of Justice and Human Rights (2008). Other African instruments include the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) and the African Charter on the Rights and Welfare of the Child (1990).
2. INTERNATIONAL CUSTOM
The important elements here are state practice, the tenacity and acceptance of such practice as law, also known as ‘opinion juris.' Customary law may not be as ‘visible' as treaty.‘ it represents the essential basis upon which modern human rights is grounded’. Custom is regarded as a form of ‘tacit agreement', the behaviours of states to each other in an acceptable way leads to tacit accent to the acceptable behaviour. The problem of this view is that if agreement kicks it on, absence of agreement can kick it off. Customary law emanates as law from practice of states .Dixon refers to it as the ‘foundation stones of the modern law of nations' and this was backed up in the Gulf of Maine case that custom is the ideal right size for the general principles and always on ground to fill the vacuum any time obligation and law of treaties are not gaining global acceptance. Can customary law change? Customary law can change on the principle of ‘apprehension' and ‘acquiescence' but that does not mean customary law is not a strong rule of law, the process of customary law continuously is a good omen to international law because it can meet up with the timely needs of international law as the world and law develop, though, it may have its own disadvantages of more relaxed and slow formation process, it lacks certainty and visibility unlike treaty. it has advantage as regards to its variety of wide scopes in similarities with state activities. Treaty has advantage where custom has disadvantage, they are like twin pillars ready to work together in other to strengthen the sources of international law. Hugh said, ‘the way things have always been done becomes the way things must be done rules, international law does not deviate from the pattern discernible in municipal legal systems'.
State practice as one of the elements of customary law, it is a continuous and constant state practice of international acts over a period of time, Governmental actions, rule makings and execution of policies, governmental declaration and pronouncement, administrative procedures and policies within states constitute good links and sources of state practice. In Assylum case (Colombia v Peru), to form customary law, it must be ‘in accordance with a constant and uniform usage practised by states in question’. This was stated in Fisheries case(United Kingdom V Norway).The ‘uniformity' and ‘consistency' test is ‘general practice' and not a ‘universal practice' and ‘practice of most influential and powerful states would carry the greatest weight’, deducing from the above, it doesn't mean all states participation in the practice. ‘Once a practice is established as forming part of customary International law', all states are bound including states and the new states that failed to contribute to the practice initially. Nevertheless, we cannot rule out the ‘opt out' possibility for the ‘persistent objectors' at the formative stage of the law, as Thruway put it, ‘an attractive option' which will disallow the imposition of specific rule by the majority over the minority., it has been deeply criticised in international law, as a result of this, the practice is as stated earlier, states are bound as a general rule either as ‘objectors' or not. Consistency of state practice as another element is significant to the alteration of an existing custom. In Lotus case, the court said customs must be ‘constant and uniform'. It must not be ‘totally uniform and constant'; it must at least be significantly constant state practice to become customary international law. Also, it is well stated in Anglo-Norwegian Fisheries case that the consistency required may vary in degree based on circumstance. Generality of Practice as another element in customary law is about the knowledge of the Custom, to significant number of states. It is a general adoption of practice by state, in North Sea Continental Shelf Cases, it may be difficult to determine the number of state to participate in international law before a general practice can become law because it is not about majority of votes cast, the degree depends on the various subject matters.
Opinio juris is the second element broadly considered necessary for the formation of customary international law with state practice, Opinio juris which constitute ‘subjective element'(verbal act) while state practice is the ‘objective element'(behavioural act) and this was well articulated by Kammerhofer in his article that verbal act can form a practice with their content forming ‘expression of the subjective element', a statement of an act and that ‘subjective element may be dominant factor in the behavioural act itself'. Dixion however holds that ‘state practice must be accompanied by a belief that the practice is obligatory, the belief in the obligatory nature of the practice is called the opinio juris' but ICJ on several occasion refer to opinio juris as having equal footing with ‘state practice' in Continental shelf case(Libyan Arab Jamahinya V Malta) and legality of Nuclear Weapons Advisory Opinion .Also in Lotus case ,opinio juris was seen as essential element of customary international law and this was affirmed in North Sea Continental Shelf Cases but the judges however held that opinio juris can not be implied from repeated activities, this made the proof of opinio juris difficult but the dissenting judges in the case realized the difficulty when they held otherwise in their minority judgement, its proof however depends on the subject matter, thus attainment of rule to jus cogen status required strong evidence of opinio juris apart from the fact of consistence state practice. In Nicaragua case where state practice and opinio juris was alluded to arrive at a conclusion that use of force had attained the status of customary rule of jus cogen before the advent of UN charter of 1945.The time element and duration of customary law varies. The comparison of treaty with customary law is important because they are the two major sources of international law, the Nicaragua case mentioned briefly above affirmed the complementary relationship between treaty and international custom. It also shows that treaty may codify International custom and treaty may also revert to international custom if the treaty is abandoned by states. They are interrelated though there may be conflict where the interrelated part tends toward different obligations; ICJ may resolve the conflict depending on the stronger obligation. In the Nicaragua case, customary law will not cease to bind because it has been codified by treaty. Parties to treaty will be bound by it and the non-parties will be bound by custom. if treaty falls away, customary law will take over but where there is conflict, if treaty is latter than custom, it will prevail, this is based on common principle of law and more so that treaty is a deliberate ‘act of law creation ‘where custom is latter than treaty, the treaty will still prevail on parties.
3. GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED STATES
This is unclear and controversial area of the source. Positivist earlier rejected this principle because it did not conform to state will and consent like treaty and custom, but they latter accepted it; provided it is accepted as part of state legal order. ‘The general principles of law recognised by civilized nations' as a source tend towards exclusion of uncivilized nations. Naturalist believes it tends to incorporate natural law into international law, they believe law exist before any law whether treaty or custom, this differs from positive law. It is apparently conspicuous that paragraph 1(c) added nothing to the sources which treaty and custom had taken care of and due to this ICJ barely invoke it, it gradually went into oblivion and remain dormant until it appeared that new areas of international law had gap and the rule was revitalized and applied to area like international criminal law and international administrative law, recourse can be made to the general principle of law common to all ‘major legal systems of members of the community of nations', if treaty and custom had been exhausted with gap,that is, estoppels, equity, and so on .Judge McNair in the ‘International Status of South West Africa Case said that national law can be a pointer to the type of rules that might be of assistance in international law like ‘the concept of limited liability' in Barcelona Traction case. Whether procedural, administrative, or substantive rules, they can be imported to international law, it however need no treaty or custom for its validation. It is well settled that concepts have ‘pre-existing legal validity’. This principle tends more to dualistic doctrine. Principle of equity is applicable to international Tribunals that is general principles of equity and fairness within the scope of paragraph 1(c).it applies in decisions according to law and not by abstractness outside law like ex aequo et bono in Article 38(2),example of equitable principle applied are acquiescence and estoppels in River Meuse case. Paragraph 1(c) may include ‘general principles of International law' which are similar to principle in National legal system. In general, treaty and custom growth and intensity have reduced the weight of general principle of law as the source of international law.
4. DECISIONS OF JUDICIAL AND ARBITRAL TRIBUNALS
Article 38(1) d ‘shall apply subject to the provisions of Article 59,Judicial decisions…' and Article 59 of the ICJ statutes states that the court decisions have ‘no binding force except between the parties and in respect of that particular case'. Judicial decisions are material area of Sources of law. Though, there may be no stare decisis as stated in Article 59, recourse can still be made by court to its past decisions res judicata and advisory opinion to substantiate current case as authoritative evidence of legal position, for example, in Nauru case,the principle of Nicaragua case were relied upon to reach the majority decisions. Also, judicial decisions constitute much of the source of ‘international maritime law' and ‘it is clear that the ICJ pays great regard to both the actual decisions it has reached in previous cases and to the law it has declared therein'. It is submitted that ICJ participates in law making process and technical impediment on this is more in theory than in practice. Court participates in law making process through case law, judges' rule and advisory opinion in breaking new area of international law. Dixon confirmed this by saying ‘The attempt to protect state sovereignty by limiting the functions of the ICJ and ICC to one of simple adjudication rather than law creation largely has failed'.Antonio also said ‘ICJ has gone so far as, in fact , to set new international rule in spite of its aforementioned lack of formal power to do so' Writing of Publicists which paragraph1 (d) refers to as ‘subsidiary means'. Arbitral tribunals and national courts consult writing of publicist while international court make little use of ‘doctrine' but where the writing of publicist is productive is the draft article, reports and secretariat memorandum produced by the International Law Commission and Resolution of the Institute of International Law Commission and that of the Institute of International Law. Nowadays the opinion of writers has become less important since states now express themselves well through organs of UN and most importantly that writers are subjective in their writings due to opinionated reasons.
5. JURISTIC WORKS
Article 38(1)(d) of the International Court of Justice Statute states that the 'teachings of the most highly qualified publicists of the various nations' are also among the 'subsidiary means for the determination of the rules of law'. The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. This is accepted practice in the interpretation of international law and was utilized by the United States Supreme Court in The Paquete Habana case (175 US (1900) 677 at 700-1).
6. DECISIONS OR DETERMINATIONS OF THE ORGANS OF INTERNATIONAL INSTITUTIONS
• DECISIONS OF POLITICAL ORGANS
Decisions of political organs involving political obligations play a special role and can have an impact on human rights standard setting, e.g., certain documents of the Organisation on Security and Co-operation in Europe (OSCE) (Conference on Security and Co-operation in Europe until 1995). Since 1975, the OSCE has devoted much attention to the so-called Human Dimension of European cooperation. OSCE documents are often drafted in a relatively short period of time and do not pretend to be legally binding. Thus, they offer the advantage of flexibility and relevance to current events exercising influence upon states. For instance, the Document of the Copenhagen Meeting of the Conference of the Human Dimension of the CSCE of 1990 made optimal use of the changes that had taken place in Europe after the fall of the Berlin Wall in 1989. This document included paragraphs on national minorities, which have been used as standards to protect minorities and as guidelines for later bilateral treaties. Although this kind of document reflects the dynamism of international human rights law, some experts worry that the political nature of these documents may lead to confusion, as newer texts might contradict existing instruments or broaden the scope of attention for human rights excessively by including too many related issues.
• DECISIONS OF SUPERVISORY ORGANS
Numerous human rights supervisory mechanisms have been established to monitor the compliance by states with international human rights standards. Within the UN context, these supervisory bodies are often called ‘treaty bodies’. They interpret international treaties, make recommendations and, in some cases, make decisions on cases brought before them. These decisions, opinions and recommendations may not be legally bindingper se, but their impact on international human rights law (standards) is significant.In this context, treaty bodies often prepare so-called General Comments or Recommendations, elaborating on the various articles and provisions of their respective human rights instruments. The purpose of these general comments or recommendations is to assist the states parties in fulfilling their obligations. The Human Rights Committee and the Committee on Economic, Social and Cultural Rights are highly regarded for their practice in this respect. These general comments/recommendations reflect the developments within each Committee as to the interpretation of specific provisions and they aim to provide authoritative guidance to states parties. As such, they have a significant influence on the behaviour of states parties.
7. SUBSIDIARY SOURCES
According to Article 38 of the Statute of the International Court of Justice, judicial decisions and the teachings of the most qualified publicists are ‘subsidiary means for the determination of rules of law’. Therefore, they are not, strictly speaking, formal sources, but they are regarded as evidence of the state of the law. As for the judicial decisions, Article 38 of the Statute of the International Court of Justice is not confined to international decisions (such as the judgements of the International Court of Justice, the Inter-American Court, the European Court and the future African Court on Justice and Human Rights); decisions of national tribunals relating to human rights are also subsidiary sources of law. The writings of scholars contribute to the development and analysis of human rights law. Compared to the formal standard setting of international organs the impact is indirect. Nevertheless, influential contributions have been made by scholars and experts working in human rights fora, for instance, in the UN Sub-Commission on the Promotion and Protection of Human Rights, as well as by highly regarded NGOs, such as Amnesty International and the International Commission of Jurists.
8. INTERNATIONAL COMMUNIITY
The ‘international community’ has become a heavily travelled site in political and public discourse. Whether it is the protection of human rights, the fight against global terrorism, crisis management of and response to environmental disasters and humanitarian emergencies, or international negotiations with regimes such as Iran and North Korea – in the age of globalization the international community seems to be at the forefront whenever global peace and security are under threat. While talk would suggest that there exists some kind of unitary and durable actor called ‘international community’, it is far from clear who or what it represents. International lawyers and International Relations theorists alike have dealt with the formation, role and nature of the concept, though this has not resulted in any clear, consensual account. In this short essay, I will pull some of this research together in order to stipulate the principal conceptual issues scholars have to consider when working with the notion of ‘international community’.
The concept of ‘international community’ has been approached from two main disciplinary perspectives. The first one is a legal perspective that focuses on the nature and extent of the norms and principles that form the constitutional core of international law. An international legal community (Voelkerrechtsgemeinschaft) comes into being when states consensually agree to establish certain constitutional elements that set out the basic criteria for global law-making. Mosler (1980) is perhaps the classical exponent of this view, but it is also present in the works of Tomuschat (1993) and Fassbender (2009). For Mosler (1990: 15), it is the constitution, understood as the highest law of society, which ‘transforms a society into a community governed by law’. Any society, he claimed, ‘must have one essential constitutional rule in the absence of which it would not be a community. Todays’ image of an international (legal) community is closely linked to progressive moral ideals, most notably human rights and equality, and it is frequently associated with the UN Charter and the substantive rules and normative goals imbued in it. Bruno Simma’s (1994) essay From Bilateralism to Community Interest in International Law tellingly captures the essence of the way in which both the making and character of international law have evolved. Rather than a purely legal entity, this suggests that ‘international community’ stands for, and is the key manifestation of, the progressive cosmopolitan development of modern international law.
9. STATE PRACTICE
When examining state practice to determine relevant rules of international law, it is necessary to take into account every activity of the organs and officials of states that relate to that purpose. There has been continuing debate over where a distinction should be drawn as to the weight that should be attributed to what states do, rather than what they say represents the law. In its most extreme form, this would involve rejecting what states say as practice and relegating it to the status of evidence of opinion juries. A more moderate version would evaluate what a state says by reference to the occasion on which the statement was made. It is only relatively powerful countries with extensive international contacts and interests that have regular opportunities of contributing by deed to the practice of international law. The principal means of contribution to state practice for the majority of states will be at meetings of international organizations, particularly the UN General Assembly, by voting and otherwise expressing their view on matters under consideration. Moreover, there are circumstances in which what states say may be the only evidence of their view as to what conduct is required in a particular situation. The notion of practice establishing a customary rule implies that the practice is followed regularly, or that such state practice must be "common, consistent and concordant". Given the size of the international community, the practice does not have to encompass all states or be completely uniform. There has to be a sufficient degree of participation, especially on the part of states whose interests are likely to be most affected, and an absence of substantial dissent. There have been a number of occasions on which the ICJ has rejected claims that a customary rule existed because of a lack of consistency in the practice brought to its attention. Within the context of a specific dispute, however, it is not necessary to establish the generality of practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because the two states belong to a group of states between which the rule applies. A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate its persistent objection to that rule, either as a member of a regional group or by virtue of its membership of the international community. It is not easy for a single state to maintain its dissent. Also, rules of the jus cogens have a universal character and apply to all states, irrespective of their wishes. Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that there can be, in appropriate circumstances, such a concept as "instant custom". Even within traditional doctrine, the ICJ has recognized that passage of a short period of time is not necessarily a bar to the formation of a new rule. Because of this, the question is sometimes raised as to whether the word "custom" is suitable to a process that could occur with great rapidity.
10. STATE GUIDANCE
Governments frequently wish to record in writing the terms of an understanding or arrangement between them without, by so doing, creating obligations that would be binding under international law. The language, titles, and techniques used for this purpose vary considerably. While not binding under international law, a non-binding instrument may carry significant moral or political weight. Such instruments are often used in our international relations to establish political commitments. Ambiguity as to whether or not a document is legally binding should be avoided. When negotiating a nonbinding instrument, both/all sides should confirm their understanding that the instrument does not give rise to binding obligations under international law. Certain formal, stylistic, and linguistic features tend to be associated with agreements binding under international law, while other features tend to reflect an intention on the part of the participants to produce an arrangement of a purely political nature. In order to avoid ambiguity, we offer the following general guidance:
i. With respect to the title of a non-binding document, negotiators should avoid using the terms “treaty” or “agreement.” While the use of a title such as “Memorandum of Understanding” is common for non-binding documents, we caution that simply calling a document a “Memorandum of Understanding” does not automatically denote for the United States that the document is non-binding under international law. The United States has entered into MOU’s that we consider to be binding international agreements.
ii. We advise negotiators to avoid using the term “Parties” in non-binding documents. Rather, we encourage the use of other terms such as “Participants.”
iii. With respect to the actions to be taken, we advise that negotiators avoid terms such as “shall”, “agree”, or “undertake.” In many cases, we have urged that terms such as “should” or “intend to” or “expect to” be utilized in a non-binding document.
iv. We further advise that negotiators avoid use of the term “entry into force” and consider expressing that the document “is to come into operation” or that “activities are to commence” for the “participants.”
v. While non-binding documents may be translated into different language versions, we advise that non-binding documents do not mention or reference the “equal authenticity” of different language versions.
vi. Finally, depending on the circumstances, it may be useful for a non-binding document to include a disclaimer in the text of the document expressly providing that it is not legally binding under international law.
The asymmetry can cause states to act differently against a common treaty. ... Similarly, states revaluate their compliance to international law when treaties are brought into disrepute by scandals or disputes over membership.
12. EQUITY AND JUSTICE
Article 38(2) of the Statute of International Court of Justice says that "This provision shall not prejudice the power of Court to decide a case ex aequo et bono, if the parties agree thereto". Article 38(2) provides exception to it means that the Court may travel beyond the principles laid down in Article 38(1) and can travel beyond the law, if the parties agrees to. Though, the Statute of International Court of Justice has not explicit mentioned that the Equity and Justice is a source of International Law, Article 38(1) implied it saying that Courts should follow International Conventions, customs etc. Though principles of Equity cannot be straight away be applied in cases related to International Law, it is of immense use in cases where there are no rules already laid down. Hence, Equity and Justice can be used in the formation of new law because these principles help in providing equitable results.
The principles of Equity and Justice are adopted in the new International Economic Order, new Law of Sea, the Law of Air Space and Outerspace etc. Agitation against the violation of Human Rights is a part of Equity and Justice.
Ex acquo et bono is the opposite of principles of Equity and Justice. Hence if parties agrees to settle the dispute using it, they are explicitly moving away from the application of rules as per International Law.
13. ORDER OF THE USE OF SOURCES OF INTERNATIONAL LAW
All the sources discussed above can all be found in the practice of UN and where they cannot be found they kowtow and bow to the resolutions of the Security Council and it will remain binding on members and even on non-members, aberration of which can be faced with sanctions. It is submitted that UN has provided a true complement for the gap created in what is supposed to be accurate reflection of other sources of international law and its activities has positively affected law making ways by resolutions and faster means by 15 members of Security Council and 191 members of the General Assembly as greater needs Arise for fast development of international law codified by International law commission. CASES RELATED TO INTERNATIONAL LAW
• Nicaragua Case (1986)
Nicaragua charged that the US, in recruiting, training, arming, equipping + otherwise encouraging military and paramilitary actions in and against Nicaragua had violated its treaty obligations to Nicaragua. Also charged that US had breached international law by violating sovereignty, using force, intervening in internal affairs etc.US argued that it was exercising a right of collective self-defence with El Savador.US argued that the ICJ did not have jurisdiction.
Court determined that it had jurisdiction on the basis of both compulsory jurisdiction under Art36 (2) or the 1956 Treaty of Friendship.The ICJ has jurisdiction to hear a dispute between two states if each accept the court’s jurisdiction.
ICJ ruled in favour of Nicaragua and against the US and awarded reparations to Nicaragua NB: The US refused to participate in the proceedings after the Court rejected its arguments about jurisdiction.The US later blocked enforcement of the judgment by the UNSC and thereby prevented Nicaragua from obtaining any actual compensation.
• Norwegian Loans Case (France v Norway) (1957)
France referred the matter to the ICJ on the basis of declarations made by France and Norway under art36 (2) accepting compulsory jurisdiction.
Court had no jurisdiction to decide the dispute as France’s declaration contained a reservation excluding differences relating to matters which were essentially within national jurisdiction in accordance with conditions of reciprocity embodied in Art36(2). Norway was therefore entitled to except from the compulsory jurisdiction of the Court, disputes understood by Norway to be essentially within its national jurisdiction.
On the basis of reciprocity the Court did NOT have jurisdiction to hear the matter under Art36 (2).
• Nicaragua vs United States (an analysis of the jurisprudence relating to customary international law)1986
In July 1979, the Government of President Somoza was replaced by a government installed by Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the former Somoza Government and former members of the National Guard opposed the new government. The US – initially supportive of the new government – changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 the United States stopped its aid to Nicaragua and in September 1981, according to Nicaragua, the United States “decided to plan and undertake activities directed against Nicaragua”.
The armed activities against the new Government was carried out mainly by (1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica. Initial US support to these groups fighting against the Nicaraguan Government (called “contras”) was covert. Later, the United States officially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting “directly or indirectly military or paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the contras, the United States devised their strategy and directed their tactics, and that the contras were paid for and directly controlled by the United States. Nicaragua also alleged that some attacks against Nicaragua were carried out, directly, by the United States military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports, and other attacks on ports, oil installations, and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence, supply to the contras in the field, and to intimidate the population. The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN Charter when it provided “upon request proportionate and appropriate assistance…” to Costa Rica, Honduras, and El Salvador in response to Nicaragua’s acts of aggression against those countries (paras 126, 128). Decision-
The United States violated customary international law in relation to (1), (2), (4) and (5) above. On (3), the Court found that the United States could not rely on collective self-defence to justify its use of force against Nicaragua.
The Court held that the United States violated its customary international law obligation not to use force against another State when its activities with the contras resulted in the threat or use of force.
• Asylum Case (Colombia/Peru)1950Court: ICJ.
Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and refused to grant safe passage.
The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the competence to make a provisional qualification of the offence (for example, as a political offence) and the territorial State has the right to give consent to this qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had to decide if such a decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of international law or by way of regional or local custom.
The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana Convention or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting State (Colombia) to send the person granted asylum outside its national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum granted to him and refused to grant safe conduct.
• Permanent Court of International Justice, Contentious Case: The Lotus Case (France vs Turkey)1927
A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with manslaughter. Demons, a French national, were sentenced to 80 days of imprisonment and a fine. The French government protested, demanding the release of Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).
Turkey, by instituting criminal proceedings against Demons, did not violate international law.
The Court held that a ship in the high seas is assimilated to the territory of the flag State. This State may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish territory. The Court held that the “… offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners.” The Court concluded that Turkey had jurisdiction over this case.
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International law, commonly referred to as "public international law," regulates relations and activities between nations. It also contains rules regarding the operations of international organizations, such as the United Nations. In addition, it governs state treatment of individuals and juridical persons (i.e., non-natural persons, such as a corporation, association or partnership). International law is distinct from "private international law" (also known as "conflict of laws"), which regulates dealings between individuals and juridical persons from different nations. Note that international law refers to nations as sovereign states. In this context, sovereign states does not mean states within a nation. Furthermore, in the United States, individual states lack authority to engage in international dealings. The U.S. Constitution explicitly denies states this power, and vests it with the federal government.