The “Sources” of Public International Law
International law is the body of laws that is made by sovereign states to guide their relationship. International law deals with the diplomatic relationship, military issues and the sovereign territory of states. International law main cornerstone is the consent of the states to be bound by the provisions of international law. The sources of international law include the following: treaties; customary international law; general principles of law and judicial decisions. This essay will review about the strength and weakness of the source of law and discuss how it differs from the source of law in Australia.
This section will discuss about the strength of the source of the public international law. Among other sources, treaties are the most important sources of law responsible for framing the general rules between independent states and international organisations. These can be bipartite or multipartite. The law making treaties are consistent in nature as the obligations framed by them continue in the future, whereas treaty contracts are not continuous in nature and are signed by few states.
I strongly believe that the major strength of treaty is to prevent the violation of human rights along with the concept of sovereignty. North Korea has continued to violate human rights and has been devoid of the right to life, right to privacy, freedom of expression, right to food and many others. Public international law looked into the human rights and economic needs of the North Koreans and will serve as a means of changing the state to a democratic place. Currently, Syria's humanitarian crisis and the outflow of refugees are having a profound impact on Turkey government or the international community. Even though few countries in Europe have stopped taking Syrian refugees, Austria, Germany and England announced that they take more Syrian refugees in response to the worsening humanitarian crisis under International Law.
Customary international law in which legal obligation is posed on the individuals to behave in a particular way. North Sea Case,  and Nicaragua Case  contributed much towards a more refine theory of customary law. It is mandatory to comply with the legal laws irrespective of acts like friendship or courtesy and essential for the validity of customary law that should include both material and psychological element. It basic strength is that it draws its authority from the general and consistent practices of nation-states without making any reference to any form of representative practice.
Principles of law are the third in terms of hierarchy. General principles of law are applicable in so far as there are no treaty provisions or any recognized customary law about a particular legal problem. They can be found in virtually every legal system hence making them easy to access. They can be regime specific, for instance, nonrefoulement in Refugee Law.
Lastly, judicial decisions serve as a subsidiary source of public international law. Their role is to provide judgements and advice of the International Court of Justice. In any case, if the judicial decisions do not provide best solutions in any case, then the State has the liberty to change or cancel the rules. For example, an important role has been played by the International Court of Justice in the case of Maritime Delimitation in the Indian Ocean between Somalia and Kenya.
International Law is not a perfect system and is needed to be enhanced and reformed by the nations. The United Nations and other international organizations propose some changes in the procedure of the law, but the improvement of the system ultimately depends on the sovereign state's political will.
In 1960, Hersch Lauterpacht described International Law as 'immature' in character, imprecise and uncertain in its rules. HLA Hart supported Lauterpacht's argument and referred to the absence of an international legislature, of courts of compulsory jurisdiction, and of centrally organised sanctions in The Concept of Law.
The weakness of treaties can be found in the fact that they only bind the States that have consented to their application. Reservations and declarations that state parties enter in view of the application of certain treaty provision is a major problem as they weaken the application of the law universally. Certain groups are denied protection by these actions. In the case of North Korea, at the time of failure of the State to protect the humans right, an intervention is essential in the form of international organizations and the UN Security Council. In spite of the fact that North Korea is not the member of any treaty like Comprehensive Test Ban Treaty (CTBT) or Partial Test Ban Treaty or Limited Test Ban Treaty, they are still engaged in the nuclear weapon testing.
Customary law generated on the base of Treaty text which requires further analysis of understanding of the conditions necessary for the formation and existence of customary law and its typical characteristic. Sometimes states only follow them when it is in their interest rather than as a matter of obligation. It is difficult to determine general and consistent the practice and opino juris of 191 states. In addition to this, they cannot bind a state that persistently objects to their application.
There was debate whether general principle can be applicable as a source of international law, the definition, 'the general principle of law recognised by civilised nations', was inserted into the ICJ Statute. Like customary international law general principles of law places little significance to the consent of state parties. Normally the ICJ is mandated to “discover” the principles hence it cannot be said the respective states create them. International criminal courts and tribunals have conceived of general international principle of law as a subsidiary source of international criminal law.
Lastly, the judicial decisions of the Court have no binding effect on the other states that are not parties to a particular case. The doctrine of stare decisis or precedent does not apply in the circumstances. However, the Court can refer to its earlier decisions. Domestic decisions cannot be invoked at the Court .
International Law vs. Source of Law in Australia
Blackstone described International Law, as 'a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world…'. These rules could not be dictated by one state to another but necessarily resulted from principles of natural justice agreed upon by 'the learned of every nation' or 'on compacts or treaties'.
Traditional Australian common law is influenced by the ideas of International Law reflecting English origin. Though the contemporary idea of Australian law is taken from International Law, they are separate and distinct in nature. Unlike international judicial laws that do not recognize the doctrine, common law decisions were invoked as primary authority is subsequent disputes of a similar nature. In this sense, they were binding on the Courts, unlike the international judicial decisions that are not binding on the International Court of Justice.
International Law provides various legal, moral and ethical principles to be followed by nations so as to ensure peaceful terms with different nations, Australian law is very vital to ensure law and order in Australia. The sources of International Law includes various treaties and agreements between nations, customs followed across nations, the UN charter and general principles of law. On the other hand, the sources of Australian law include the Commonwealth of Australia Constitution Act, statute law and common law of UK. The statute is the main source of law; however, common law has remained to be the vital player in defining the legal system. Unlike the international sources of law which are dependent on one another, common law is separate from the statutes. It does not draw its authority or support from any Parliamentary legislation. In Australia, the statute is the main source of law; however, common law has remained to be the vital player in defining the legal system.
Furthermore, the customs that led to the development of the laws in Australia are based on the preferences and habits of the people of Australia, and they differ greatly in comparison to the customs prevailing in the international community. While considering the other sources of law in both Australia and the international community, the disregard of the Constitution of Australia and the UN Charter, which regulates the international law to a great extent, would be a mistake. Constitutional law of Australia mostly deals with the powers to be divided among the various bodies of the Australian government, whereas the UN charter works with the purpose of promoting development across the world and to maintain peace among the various nations of the world.
A main source of common law in Australia is the laws enacted by Parliament. Another source of common law is the precedents of the courts, which are the decisions taken by the courts on previous cases with the same object on which the principle of stare decisis may apply. The numbers of International Law cases that are available to be considered as precedents are few, and every case in the international court is different in some manner or the other. Due to this, the development of International Law, with the help of precedents, is restricted to a great extent.
As my research result, there are a lot of differences in the sources of International Law and Australian common law. I believe that these differences are not only restricted to the number of sources but also on the basis of the principles on which they operate. These principles play an important role in deciding the law, statute, or rules and regulations to be implemented.
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I received 98.5/100 for the final exam and GPA 6/7.