Author: Bilean Daniel Beraki
Publication date: 05.06.2024
Public International law governs relationships between independent States. State sovereignty is essential to this type of law, meaning that no authority higher than a State, and laws can only be passed with their consent. While the traditional view considered only States as subjects of International law, the more contemporary approach acknowledges other actors such as international organizations and individuals. Naturally, the next occurring question would be: where to find the legal authority for public international law ?
The Legal Authority
The traditional framework of International law can be found in Article 38(1) of the Statute of the International Court of Justice (ICJ). Article 38 recognizes three sources of international law: treaties, customary law, and general principles of law. Additionally, the statute also lists two sources of secondary law: judicial decisions and the teachings of highly qualified publicists.
Treaties
Treaties are considered as primary sources of law because they represent agreements between states and play a central role in regulating these relations. The outline of how to write international treaties is found in the Vienna Convention on the Laws of Treaties (VCLT) 1969 and is commonly known as the Treaties of Treaties. It covers how treaties are put into action, their purpose and application, and the reasons they may be terminated. Treaty law is based on State Sovereignty, making coercion illegal. Treaties are founded on the principle of ‘pacta sunt servanda’, which means that agreements should be honored and practiced in good faith.
Customary International Law
Customary international law is quoted by Article 38 (1) (b) of the ICJ Statute as ‘evidence of a general practice accepted as law’. A key difference between this source of law and treaties is that, customary international law is binding on all countries. It is established through consistent actions by a large number of states in the international community. There is a two-fold criteria to be fulfilled for a rule to be considered as a custom. Firstly there should be a general consistent practice among states, shown through their actions and statements. Secondly, opinion juirs, the collective acceptance that this practice has legal merit.
Customary international law and treaties have a mutually important relationship, with one often coming to embody the other. For example, the VCLT is a convention that codified numerous elements of customary international law regarding the establishment, interpretation, and termination of treaties. Moreover, because it reflects the nature of customary international law, the VCLT is binding on all states, displaying the intricate relationship between these primary sources of law.
Jus Cogen Norms
Above these primary sources of law sit the Jus Cogen norms. These are a set of absolute norms that cannot be overridden, even in times of war, because of their fundamental value. For a norm to get this status it must be widely accepted by the international community. These norms are limited to the most atrocious crimes like the prohibition of torture, slavery, genocide, and human trafficking. Opinions differ on what exactly jus cogens include, where it comes from, how to identify it, or how exactly it should be used. Despite these ongoing discussions, jus cogens have been mentioned in multiple legal documents within the law of treaties and beyond. According to the VCLT, if a treaty violates a jus cogen norm then it is immediately null.
General Principles of Law and the Secondary Sources
In cases where specific international treaties or customary laws do not provide adequate answers, international tribunals turn to general principles to resolve disputes. Examples of these principles include good faith and impartiality of judges. These principles help maintain a degree of consistency in international law by drawing on widely accepted norms. They can be found in previous judgments of bodies like the ICJ or verdicts from courts of member states, which demonstrate how these principles are applied domestically. The inclusion of the secondary sources like judicial decisions and academic writings, ensures that these principles are well-grounded in practice and theory, offering a wide framework for legal interpretation.
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