Global Law

Global Law

 

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.[1]  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.

 


Strengths of the Source of Public International Law

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.[2]  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.[3]

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.[4]  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.[5] 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.[6]

 

Customary international law in which legal obligation is posed on the individuals to behave in a particular way. North Sea Case, [7] and Nicaragua Case [8] 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.[9]

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.[10]  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.[11]

 

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.[12] 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.[13]

 

Weakness of the Source of Public International Law

 

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.[14] 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.[15]

 

The weakness of treaties can be found in the fact that they only bind the States that have consented to their application.[16]  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.[17] 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.[18]  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.[19]

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',[20]  was inserted into the ICJ Statute.[21]  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.[22] International criminal courts  and tribunals have conceived of general international principle of law as a subsidiary source of international criminal law.[23]

 

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 .[24]

 

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…'.[25]  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'.[26]

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.[27]  The sources of International Law includes various treaties and agreements between nations, customs followed across nations, the UN charter and general principles of law.[28]  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.[29]

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.

 


[1] Christoph Schreuer,  'Sources of international law: scope and application' (2000)  Emirates Center for Strategic Studies and Research 2-18.

[2] Ademola Abass, International law, (Oxford University Press, 2nd ed, 2014) 28-30.

[3] Martin Dixon, The nature of international law and the international system (Cambridge University Press, 7th ed, 2013 ) <http://www.jgu.edu.in/joss/PDF/internationallegalsystem.pdf>.

[4] The North Korea Now,  International Treaties and Associated Bodies: Understanding the Human Rights Violations Perpetrated in North Korea <http://www.northkoreanow.org/international law/>.

[5]  Osman Bahadır Dinçer et al, Turkey And Syrian Refugees: The Limits Of Hospitality (Brookings, 2013) 33.

[6] UN, Universal Declaration of Human Rights, Article 14.

[7]  ICJ Report 1969 3ff.

[8]  ICJ Report 1986 12ff.

[9] McGinnis, J. O. The Comparative Disadvantage of Customary International Law’ (2006)  Harvard Journal of Law and Public Policy 30, 7-14.

[10] Ibid.

[11] Ibid.

[12] Enabulele A. and Bazuaye B., Teachings on Basic Topics in Public International Law, (AMBIK PRESS, 2014) 18.

[13] International Court Of Justice, 'Somalia institutes proceedings against Kenya with regard to “a dispute concerning maritime delimitation in the Indian Ocean”' (Press Release, 2014/27, August 2014) <http://www.icj-cij.org/docket/files/161/18360.pdf>.

[14] Hunter Valley and Pokolbin, International Law and Australian Domestic Law (21 August 2009) <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj21aug09.pdf>.

[15] H.L.A Hart, The Concept of Law, (Oxford University Press, 3rd ed, 2012).

[16] Christoph Schreuer,  'Sources of international law: scope and application' (2000)  Emirates Center for Strategic Studies and Research 2-18.

[17] Ibid.

[18] Mark Eugen Villiger, Customary International Law and Treaties: A Study of Their Interactions and Interrelations, with Special Consideration of the 1969 Vienna Convention on the Law of Treaties (BRILL, 1985) 3.

[19] Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge University Press, 1999) 40.

[20] See ICJ Statutes, art. 38, para. 1 (c).

[21] Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge University Press, 1994) 3.

[22] Ellis, Jaye, 'General Principles and Comparative Law' (2011)  22(4)  European Journal of International Law 949-971.

[23] Fabián Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (BRILL, 2008) 171.

[24] Martinez, Jenny. S, 'Towards an international judicial system' (2003) 56(2)  Stanford Law Review 429-529.

[25] William Blackstone, Commentaries on the Laws of England, (Clarendon Press, 3rd ed, 1769), 566-67.

[26] Goldsmith et al, The Limits of International Law, (Oxford University Press, 2005) 3.

[27] Michael Kirby, The growing impact of international law on  the common law (2012)  33 (1). <http://www.austlii.edu.au/au/journals/AdelLawRw/2012/1.pdf>.

[28] Robin Banks and Public Interest Advocacy Centre,  Australian Legal System (2007) 60<http://www.utas.edu.au/__data/assets/pdf_file/0017/334232/aust_leg_syst_601.pdf>.

[29] Michael Kirby, The growing impact of international law on  the common law (2012)  33 (1) <http://www.austlii.edu.au/au/journals/AdelLawRw/2012/1.pdf>.

 


Bibliography

 

A  Articles / Books / Reports

Abass, Ademola, International Law (Oxford University Press, 2nd ed, 2014)

Bahadır Dinçer  Osman et al, Turkey and Syrian Refugees: The Limits of Hospitality  (USAK, 2013)

Blackstone, William, Commentaries on the Laws of England (Clarendon Press, 3rd ed, 1769)

Bruce Kercher, The Unruly Child: A History of Law in Australia (Sydney: Allen & Unwin, 1995)

Boyle Alan  and  Chinkin Christine,The Making of International Law (OUP Oxford, 2007)

Buğra Kanat Kılıç, Üstün Kadir, Turkey’s Syrian Refugees: Toward Integration (SETA, 2015)

Chapman Russell, Syria: Refugees and Rebels (Russell Chapman, 2014)

Christoph Schreuer,  'Sources of international law: scope and application' (2000Emirates

Center for Strategic Studies and Research

Commins, David , Lesch, David W , Historical Dictionary of Syria (Scarecrow Press, 2013)

Cordesman Anthony H and Khazai  Sam,  Iraq in Crisis (Rowman & Littlefield, 2014)

Choi, Shine, Re-Imagining North Korea in International Politics: Problems and Alternatives (Routledge, 1st ed, 2014)

Edwin Borchard, Strength and Weakness of the New International Court (Faculty Scholarship Series, 1922)

Ellis, Jaye, 'General Principles and Comparative Law' (2011)  22(4)  European Journal of International Law

Enabulele A. and Bazuaye B., Teachings on Basic Topics in Public International Law (AMBIK PRESS, 2014)

Eric De Brabandere, Investment Treaty Arbitration as Public International Law (Cambridge University Press,  2014)

Evans, Malcolm D, International Law (Oxford University Press, 2014)

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Fitzmaurice M , Law of treaties (University of London Press, 2007)

Goldsmith, Jack L  et al, The Limits of International Law (Oxford University Press, USA, 2005)

Güçer Mehmet, Karaca Sema, Bahadır Dinçer Osman, The Struggle For Life Between Borders: Syrian Refugees (USAK, 2013)

Hart, H.L.A, The Concept of Law, (Oxford University Press, 3rd ed,, 2012)

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Jazairi Lara El, Overtaken By Need: The world's failure to meet Syria's humanitarian crisis (Oxfam, 2013)

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Lauterpacht, Hersch, The Function of Law in the International Community (Oxford University Press, 2011)

Lauterpacht, Hersch , The Development of International Law by the International Court(Cambridge University Press, 1982)

Lepard , Brian D, Customary International Law: A New Theory with Practical Applications (Cambridge University Press, 2010)

Lillich, Richard B, The Human Rights of Aliens in Contemporary International Law(Manchester University Press, 1984)

Martinez, Jenny. S, 'Towards an international judicial system' (2003) 56(2)  Stanford Law Review Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge University Press, 1999)

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O'Connell, Mary Ellen, The Power and Purpose of International Law (Oxford University Press, 2008)

Oh, Seung Jin,  A historical, biblical evaluation of the comity agreement and its implication for South Korean churches' comity strategy for North Korea (Cornell University, 2008)

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Sassoon Joseph, The Iraqi Refugees: The New Crisis in the Middle-East (I.B.Tauris, 2008)

Schlütter Birgit, Developments in Customary International Law (BRILL, 2010)

Sein, Khin Maung, Public international law: a practical approach (Pearson Prentice Hall,2006)

Silva Mario, State Legitimacy and Failure in International Law (Martinus Nijhoff Publishers, 2014)

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Slomanson,  William, Fundamental Perspectives on International Law (Cengage Learning, 6th ed, 2010)

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Ullah, AKM Ahsan, Refugee Politics in the Middle East and North Africa: Human Rights,Safety, and Identity (Palgrave Macmillan, 2014)

Weissbrodt David S and Vega Connie de la, International Human Rights Law: An Introduction (University of Pennsylvania Press, 2007)

Withana Radhika, Power, Politics, Law: International Law and State Behaviour DuringInternational Crises (BRILL, 2008)

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B  Cases

Concerning The Military And Paramilitary Activities In And Against Nicaragua

(Nicaragua v. United States of America) [1986] ICJ Rep 14

 

C  Legislation

D  Treaties

E  Other

Bourke Latika, Syrian refugee crisis: Abbott government minister suggests temporary

Kosovo-style option (7 September 2015) <http://www.smh.com.au/federal-politics/political-news/syrian-refugee-crisis-abbott-government-minister-suggests-temporary-kosovostyle-option-20150906-gjgh65.html>

David P Fidle, International Law, <http://www.who.int/trade/distance_learning/gpgh/gpgh7/en/index17.html>

Caslav Pejovic,  Civil law and common law: two different paths leading to the same goal (2001) < http://www.victoria.ac.nz/law/NZACL/PDFS/Vol_6_2000/Pejovic.pdf>

Dixon, Martin, The nature of international law and the international system (Cambridge University Press, 7th ed, 2013 <http://www.jgu.edu.in/joss/PDF/internationallegalsystem.pdf>

Election Standards, Why Public International Law? <http://electionstandards.cartercenter.org/concepts/why-public-international-law/>

Guardian News & Media Limited, North Korean diplomats storm out of UN human rights event <http://www.theguardian.com/world/2015/apr/30/north-korea-un-human-rights>

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MercyCorp, Quick facts: What you need to know about the Syria crisis (2 September 2015)<http://www.mercycorps.org/articles/turkey-iraq-jordan-lebanon-syria/quick-facts-what-you-need-know-about-syria-crisis>

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Ruwanthika Gunaratne, Nicaragua vs United States: An analysis of jurisprudence on customary internet law (19 March 2014) <https://ruwanthikagunaratne.wordpress.com/tag/relationship-between-customary-and-treaty-law/>

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