International Law: The Sources of International Law

- by Stephen J. Spielman (modified IUS, February 2010)

Introduction
This essay provides you with a first look at the generally accepted sources of international law. Sources answer the question "Where does international law come from?" To help your understanding of these sources, here are a few preliminary points: First, International law consists of the rules and principles that govern the relations and dealings of nations with each other and outside their borders. In the last 50 years, the term "international law" has been expanded to include the rules, and practices of International Organizations (membership of which consists of member States). Today, a growing body of opinion is trying to further expand the definition of international laws to also add some aspects of relationships of States to persons within their own borders (particularly in the area of Human Rights). The study of international law increasingly calls for an understanding of the philosophies, ideologies and values that underpin the legal systems of different nations. This comparison of principles underlying country law is referred to as the study of Comparative Law. When we are discussing rights between several States; or the State with international organizations citizens or with subjects of other nations, we are talking about Public International Law. For example, the questions of state boundaries, extradition or of a person's citizenship are matters of Public International Law. In contrast, Private International Law deals with relationships between private persons of businesses arising out of situations where there is significant connection to more than one nation. The enforceability of a private contract to import goods into the UK from China is a matter of Private International Law. This can be confusing. In fact, in recent years the line between public and private international law has become increasingly uncertain. International Law (in most circumstances but not all) is based on "acceptance" by the nation of its international legal obligation. This need (mostly) for State consent is what makes international so difficult but also challenging and interesting. Agreement comes through State signature to formal docuements but also through customary practice

The Sources of International Law

Agreements (Conventional International Law): International Agreements and Treaties are a
primary source of international law. These international agreements may take any form that the contracting parties agree upon. Agreements may be made about any matter whatsoever except that agreement may not conflict with the rules of international law as to the basic standards of international conduct or obligations of a member State under the Charter of the United Nations. International agreements create law only for the parties to the agreement. They do not bind parties that have not agreed to be bound. Sometimes it is also not clear if an Agreement is intended to be binding upon those who sign it or is just a general statement of good intentions. One example is the "UN Declaration of Human Rights". The lawyers who draft international Agreements often intentionally build in ambiguity (vagueness) so that more States will be willing to sign and ratify the Agreement. A State may sign/ratify with reservations that reject or modify terms of the Agreement but not refuse to accept the fundamental (called "non-derogable") provisions of the Agreement. 1

Customary International Law Even if there is no formal agreement, in some situations, the consistent
behavior of states may lead to the creation of a general practice accepted as law. This is called "customary international law". This happens when the behavior is in fact acted upon and widely accepted by nations involved. As you can imagine, it is sometimes not clear if there is enough consistency and clarity in the behavior for the behavior to be customary international law. International agreements and customary law have equal authority as international law. Parties may assign higher priority to one or the other of the sources by agreement. This Custom and practice is a second primary source of international law. The reasoning that justifies treating customary practices as "law" is as follows: If States act in a certain way consistently or for a period of time, those actions suggest that they have implicitly agreed to a norm of behaviot, this is the same (or almost the same) as a signature on an agreement. The States must have acted out of a sense of legal obligation. If the State did not act out of a sense of legal obligation but simply out of "respect", the actions do not become customary international law. In other words, if a State makes clear it is not acting on the basis of a legal obligation, its actions does not create "customary law". Recently much customary law was codified in the Vienna Convention on the Law of Treaties. Here is one scholar/author (J. August) summary about the requirements to establish international custom & Practice: 1. Defined: Rules that have been around for a long time or which are generally accepted. a. Caveat: Customary rules are constantly changing. 2. Establishing the Existence of a Customary Law: Must show two elementsone behavioral and one psychological: a. Usus (Latin for: usage): Is the consistent and recurring action (or lack of action if the custom is one of noninvolvement) by states. 1) Does not have to be a lengthy practice. 2) Does not have to be followed by all states. b. Opinio juris sive necessitatis (Latin for: "of the opinion that it is a necessary law."): The custom must be regarded by states observing it as one that they must obligatorily follow. 3. Exceptions to the Application of Custom a. Persistent objector: A state which persistently objects to a practice during its formative stages does not become a party to it. b. A state allowed by the international community to deviate from a customary practice.

General Principles: General principles common to systems of national law are a secondary source of
international law. They may be applied in situations where there is no relevant conventional (agreements) or no customary international law. In this circumstance, a general principle may be treated as a rule of international law but only if it is a general principle common to the major legal systems of the world. This is not always easy to determine. It is especially difficult to find shared common principles in our modern age where a growing diversity of belief systems, cultures and legal approaches all seek to influence international law. Two often-cited examples of such general principles are: (a) confidentiality between lawyer and client 2

(b)

independence of the judicial system from other parts of government.

Do you agree that these examples are so just common and shared, so equitable, so universally recognized that they rise to the status of law? Can you see the argument that these principles are principles of western law? What about an individuals entitlement to due process of law or not allowing taking of private property without proper compensation.

Here again is one scholar/author (J. August) summary about the requirements to establish international General Principles of law: 1. General Principles Defined: General principles of law common to the community of states. 2. Common Sources: Domestic procedural laws of states (but not their substantive laws). 3. Examples of General Principles
a. A state must consent before being bound to an international agreement. b. States must be treated equally regardless of their size or strength. c. The awards and judgments of international tribunals are to be respected as final. d. One state will not interfere in the domestic jurisdiction of another state Are these still valid (especially d)

Court Opinions and Scholarly Articles: To a limited extent, prior opinions of the International
Court of Justice (World Court at The Hague) may be looked to as guidance on international law. However, the Doctrine of stare decisis ("Maintain what has been decided and do not alter that which has been established") mainly does not apply in international courts and tribunals Similarly, scholarly articles are given some limited weight.

International Law and a Country's Own Law

International law is a part of the law of a country (e.g. the United States) only on questions of its international rights and duties. International law usully does not restrict the State or country from making laws governing its own territory. Many countries assert that international treaties or other law must be in accord with their country's highest law-usually its Constitution. On the other side, important questions are being asked about the right of a State to authorize or take actions that violates international law. For example, the fact that Germany's domestic law authorized genocide did not make it acceptable under international law.

International Law and Individuals

There are two interrelated concerns: Status of the individual in international law: Until very recently, international law did not concern itself with rights, duties or obligations of individuals. As discussed in detail elsewhere, individuals were historically not the "subject" of international law. This may be changing. Current trends suggest that an international consensus may be developing that international law, in certain situations, also imposes upon the 3

nations certain duties with respect to individuals within their borders. Keep in mind that individuals and their businesses have always been involved in private international commercecreating a self-interest of business in finding a place for settlement of differences, Where can individuals bring their claims: International law has very few places where individuals can bring their complaints as individuals. Historically, the State chose whether or not it wished to bring a complaint to an international tribunal on behalf of its citizens. Of course, this made little sense if the citizen was complaining about its own State's conduct. Nonetheless, except in a very few circumstances, individuals usually cannot bring their complaint before any recognized international tribunal. The International Court of Justice in The Hague only hears cases brought and defended by States. Cases before the International Criminal Court must be initiated by States or through the U.N., not by individuals. The EU has opened some doors to individuals and business complaints In a few situations, such as the World Trade Organization's Dispute Settlement Board and the European Court of Human Rights, individual complaints are sometimes allowed.. In addition, efforts are being made to (1) establish the rights of "citizen groups" to bring complaints on behalf of individuals and (2) allow "class" actions by groups of persons that claim to have suffered injury from similar behavior of the same party. Needless to say, there is much resistance by States to all such efforts because they see the creation of jurisdiction to hear individual complaints as (a) an invitation to endless lawsuits about imagined as well as real grievances (b) an invitation to political abuse and use of the tribunal for propaganda purposes but, first and foremost (c) an invasion and dilution of the States' right of sovereignty.

International Law and International Organizations

International organizations (IO) play an increasingly important role in the relationships between nations. IOs are organizations with membership made up of States, like the UN, WTO and World Bank. IOs are different from NGOs (non-governmental organizations) NGOs are, by definition, non-State organizations. The UN, the most influential among international organizations, was created on June 26, 1945. The declared purposes of UN are to maintain peace and security, to develop friendly relations among nations, to achieve international cooperation in solving international problems, and to be a center for harmonizing the actions of the nations in attaining their common ends. The Charter of the UN has been acknowledged by virtually all States. But is it binding beyond being a statement of good intentions. The International Court of Justice ("World Court") was established by the UN Charter as its principal judicial organ. The function of this Court is to resolve civil cases where the parties (must be brought by States not by individuals or businesses) have consented to World Court authority. The World Court has no authority to act without the consent of the States involved in the dispute. This is a serious limitation on its effectiveness. A second international judicial bodies is the International Criminal Court (ICC) which, although now established (1 July 2002) by ratification of the required number of UN members, has not been ratified by many major nations, including not by the United States, China and Russia.