Sources and subjects of international law

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Sources of International law
Municipal law is different to international law. One clear cut difference is the fact that sources of law at the domestic level are acts, statues or organic laws made by the legislative arm of the government. Another source is judicial case law, which refers to decisions made by the judiciary which are not outlined in any acts, statues or organic laws made by the legislature.

Thus the legislature and the judiciary both have prominent roles to play in making and interpreting various laws. Sadly, that is not case in international law. There is no legislative body to make international laws and no judicial body 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’s explanation
Goldstein (2005) in conjunction with Article 38 of the Statue of the International Court of Justice outline the four sources of international law: treaties (conventions), custom, general principles of law (such as equity), and legal scholarship (including past judicial decisions).
The following paragraphs are excerpts from Goldstein’s work which eloquently gives us greater insight into treaties and conventions which are an important source from our perspective as individuals who are interested in understanding international relations.

“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. 

Treaties and other international obligations such as debts are binding on successor government whether the new government takes power through an election, a coup, or a revolution. After the revolutions in Eastern Europe in 1990, newly democratic governments were held responsible for debts incurred by their communist predecessors. Even when the Soviet Union broke up, Russia as the successor state had to guarantee that Soviet debts would be paid and Soviet treaties honoured. 

Because of the universal commitment for all states to respect certain basic principles of international law, the UN Charter is one of the world’s most important treaties. Its implications are broad and far-reaching, in contrast to more specific treaties such as a fisheries management agreement. The specialized agreements are usually easier to interpret and more enforceable than broad treaties such as the Charter.

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)

Subjects of international law
Shaw (2009) states that there are three subjects of international law: States (including their governments, embassies, high commissions and consulates), International organizations and individuals. 

In our case we will focus on the state as the most important subject of international law including international organizations. However, challenge yourself to read about the case of individuals as subjects to further develop your understanding of international law.

Goldstein’s explanation
The notion of reciprocity makes states think twice before violating a treaty. From our understanding, 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 as well as the prisoner’s dilemma to carefully calculate their decision. Their decision is influenced to some degree by the public as well in advance democracies.

This is possible because international law according to Goldstein (ibid.) recognizes in certain circumstances the legitimacy of reprisals. This 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 allowing 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 which is very bad in this day and age of globalization. 

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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