Sources of International law

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Public international law is interesting. There are no legislative bodies to make international laws and no judicial bodies to interpret and extend the law.

This problem stems from the anarchic nature of the international system and the competing nature of sovereign states. To better understand we go back to the Westphalian principle of legal equality, no state is more powerful than the other hence anarchy and unavoidable competition.  

Goldstein (2005) in conjunction with Article 38 of the Statue of the International Court of Justice outlines the four sources of international law: treaties (conventions), custom, general principles of law (such as equity), and legal scholarship (including past judicial decisions).  

…..“Treaties and other written conventions signed by states are the most important source. International treaties now fill more than a thousand thick volumes, with tens of thousands of individual agreements. There is a principle in international law that treaties once signed and ratified must be observed (pacta sunt servanda). States violate the terms of treaties they have signed only if the matter is very important or the penalties for such a violation seem very small.

Custom is the second major source of international law. If states behave towards each other in a certain way for long enough, their behaviour may become generally accepted practice with the status of law. Western international law tends to be positivist in this regard – it draws on actual customs, the practical realities of self-interest, and the need for consent rather than on an abstract concept of divine or natural law.

General principles of law also serve as a source of international law. Actions such as theft and assault recognized in most legal systems as crimes tend to have the same meaning in an international context. Iraq’s invasion of Kuwait was illegal under treaties signed by Iraq (including the UN Charter and that of the Arab League) and under the custom Iraq and Kuwait had established of living in peace as sovereign states. Beyond treaty or custom, the invasion violated international law because of the general principle that one state may not overrun its neighbor’s territory and annex it by force. (Of course, a state may still think it can get away with such a violation of international law.)

The fourth source of international law, recognized by the World Court as subsidiary to the others, is legal scholarship – the written arguments of judges and lawyers around the world on the issues in question. Only the writings of the most highly qualified and respected legal figures can be taken into account, and then only to resolve points not resolved by the first sources of international law.”….. (Goldstein, 2005, pp. 277-279)  

The notion of reciprocity makes states think twice before violating a treaty. By state we refer to key decision makers, their high level advisors and bureaucrats including the public. The decision makers in this case will use cost-benefit analysis or other decision making models to carefully  make a decision.

This is possible because international law according to Goldstein (ibid.) recognizes in certain circumstances the legitimacy of reprisals. These are actions that would have been illegal under international law may sometimes be legal if taken in response to the illegal actions of another state.

That means, if PNG violates the 1986 treaty signed with Indonesia in support West Papuan liberation by allowingindex rebels to cross the border freely, and supply ammunitions to arm rebels, killing in the process Indonesian soldiers and citizens. Then if Indonesia launches a missile to blow Vanimo town based on their intelligence that most of the rebels travel to the provincial capital for treatment and military supplies then this action will be deemed as legal.

According to Goldstein (2005), states follow international law because of the general or long-term costs that could come from disregarding international law. Goldstein’s (ibid.) statement that if a state cheats on the terms of treaties it signs, other states will not sign future treaties with it can lead to isolationism.

A state that breaks international law may also face a collective response by a group of states; this is another interesting point made by Goldstein (ibid.). The collective response could be in the form of sanctions against the violator. In most cases trade sanctions on a certain commodity (most often military goods) are used to punish the violator.

A sanctioned state is known as a pariah in the community of nations. This tag comes at a great cost because the economic well-being of any nation in the international system depends on its trade and economic exchanges in the world market according to Goldstein (ibid.).

Libya suffered for decades from its isolated status in the international community. This prompted Libya to admit its responsibility for past terrorism and also compelled the nation to pay compensation to victims. Libya, in addition, agreed to disclose and dismantle its nuclear, chemical, and biological weapons program.

Reference

Goldstein, J. (2005). International relations (6th ed.). Beijing: Peking University Press.

Shaw, M. N. (2009). International Law (6th ed.). Cambridge: Cambridge University Press.

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