The rules of international law - Free Essay Example

Although there is no rule of stare decisions in international law, the role of judicial decisions in establishing both customary international law and general principles of law has meant that a defacto rule of precedent has now emerged. The rules of international law are created primarily by states for their own purpose. In a nutshell international law is meant to regulate activities between sovereign states. However, in recent times, the scope of international has expanded and now includes international organisations and non state actors. The most cogent argument for the existence of international law as a system of law is that members of the international community recognise that there exists a body of rules binding upon them as law.[1] In short, there is not much that is done in the international arena that is not regulated by international law and international law now governs certain aspects of relations between distinct units within a sovereign state, such as the territories of federal Canada or the devolved regions of the United Kingdom.[2] International law has developed and grown tremendously over the years. The rules of international law are being adhered to everyday and it is now normal to obey and respect international law. International law is no longer seen as a set of principles that states can flout at will. However, despite all the progress made by international law in recent years, a lot still remains to be done. International law is very fascinating and very complex. International law is not an adversarial system of law; many of its rules have evolved from the practice of states and often this do not stipulate rigid obligations or confer overriding legal rights.[3] Stare decisions is the doctrine of law, that stipulates, that previous court decisions establish a binding precedent for cases of similar facts or situations.[4] There is no rule of stare decision in international law, whereby it is made obligatory for a court to follow its previous decisions.[5] However, the International Court of Justice as well as international tribunals do examine previous decisions and may take them in to consideration when taking decision on a matter before it.[6] This in no small measure helps to promote judicial consistency.[7] This essay will discuss the following question; ‘although there is no rule of stare decisions in international law, the role of judicial decisions in establishing both customary international law and general principles of law has meant that a defacto rule of precedent has now emerged’. I will start by taking a brief look at the history and role of international law. Role and history of international law International law is a system of law that governs relationship between states as well as other international legal person or organisations. Public international law deals with the conduct and structure of states and other international organisations. The evolution of the international community can be divided in to four stages. The peace of Westphalia is often citied as being the birth of the modern nation states establishing states as sovereigns answering to no one within its own boarders. The first stage can be classified as the period from the 16th century to the 17th century. This is the period that modern nation states rose. The rise of modern nation states enhanced the rise of modern international law, before then the Church and the Emperor were the supreme authorities. Some commentators assert that internat ional law developed to deal with new states arising after the peace of Westphalia. Some other commentators argue that the lack of influence of the Pope and the Catholic Church gave rise to the need for new generally accepted coded in Europe. The second stage can be classified as the period leading up to and including the First World War. After the First World War, the nations of the world decided to form an international body. The then president of the United States of America, Woodrow Wilson came up with the idea of a League of Nations. However the League of Nations failed for various reasons, the least not being the lack of cooperation amongst member states and its inherent institutional deficiencies. The third stage can be classified as the period the United Nations was founded to the end of the cold war. The then president of the United States, F.D Roosevelt on January 1 1942 issued a Declaration by the United Nations, on behalf of 26 nations, that had pledged to fight aga inst the axis powers. On October 24 1945, the United Nations officially came in to existence. Modern international law is often affirmed as a product of modern European civilization. The European Communities that came in to existence in the aftermath of the Second World, had the main trust for the creation of the EU, to a large extent, from its desire not to repeat the mistakes made by the victorious powers in the inter-war years and the recognition and the need for mutual interdependence by Western European States.[8] Where as the concern of international law deals with maintenance of international peace and security; world trade and development; ensuring that the human rights and dignity of people are respected; environmental issues and use of common air space, sea and Antarctica among other concerns. The third stage can be classified as the period the cold war ended to this present day. International law has continued to evolve. International law operates alongside with int ernational politics and diplomacy. Today international law touches on many aspects of our lives ranging from economics, human rights, labour law, environment and even consumer protection and legal order. However, it appears that international law was modelled in such a way as to legitimise, codify and protect the interest of great powers and respect for law in international law appears to be made dependent on power.[9] The United Nations represents the general interest of the World Community and is completely independent from any government or body. The United Nations acts as the guardian of so many international multilateral and bilateral treaties. The Security Council under the Charter of the United Nations may carry out enforcement action against a state when the state poses a threat to world peace or has committed an act of aggression or breach of peace.[10] The United Nations has the responsibility of ensuring that the other institutions and the Member States observe their i nternational law obligations. The International Court of Justice is the principal judicial organ of the United Nations and the International Criminal Court, which deals with individuals that have committed grave violations of international law, particularly abuse of human rights with impunity. A state is not under any obligation to engage the International Court of Justice in order to resolve a legal dispute, however if a matter is referred to the International Court of Justice, the award of the Court is binding on the parties and must be enforced.[11] The Sources of International Law International law is unique in the sense that it does not possess formal institutions responsible for making laws. However, despite the absence of formal institutions that are responsible for making laws in international law, there are recognised and generally accepted methods by which legal rules come in to existence in international law as well as how the precise content of legal rules can b e identified.[12] International law has three primary sources, namely, international treaties, customs and general principles of law. However attempts have been made to codify international customary law with the formation of the International Law Commission (ILC). Treaties are a means whereby states consciously and voluntarily create international law and it may cover any area of international law. Treaties may involve several nations (multilateral) or it may be just between two states (bilateral). Once a treaty has satisfied all the formal requirements for its existence and has entered in to force it automatically imposes obligations on the state parties which they must carry out and if they fail to carry out their obligations under the binding treaty, they will incur international responsibility unless they can provide a valid defence. A lot of multilateral treaties are a mixture of codification of current customary law and the progressive development of the law.[13] Cus tomary international law is that law which has its origin from practice or customs of states. It is the foundation stone of the modern law of nations.[14] Customary international law is an ongoing phenomenon and it fills the void in any event that the legal regime of a treaty fails to gain universal acceptance.[15] Article 38 of the statute of the International Court of Justice is not an exhaustive list of the sources of international law, rather it is direction to the Court authorising it to consider various materials when deciding disputes submitted to it.[16] According to paragraph 1 (c ) of Article 38, general principles of law are also sources of international law; however there is no general consensus amongst academics as to the precise interpretation of Article 38 1 (c ), while some argue that it represents an acknowledgement by states that there are sources of international law outside state control others argue that paragraph 1 (c ) merely describes general, non-speci fic principles that have already been validated as law by the real formal sources such as customs and treaty.[17] Article 38 of the Statute of the International Court of Justice stipulates as follows: ‘(1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply, (a) International conventions, whether general or particular, establishing rules expressly recognised by the contesting States; (b) International custom, as evidence of a general practice accepted as law; (c) The general principles of law recognised by civilised nations; (d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law. (2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree to it.’[18] According to Dixon , ‘article 38 of the Statute does not provide a complete and unambiguous statement of the sources of international law and it leaves several questions unanswered. Still it would be a mistake to underestimate the importance of Article 38, not least because it is vital that a reasonably clear and precise statement of the sources be available. It is because Article 38 more or less fulfils this role that it has been accepted as authoritative by the Court and by the states themselves’.[19] A judicial decision by the International Court of Justice may give the stamp of law to an alleged rule of custom.[20] The International Court of Justice in 1974 pronounced as follows, ‘’†¦two concepts have crystallised as customary law in recent years arising out of the general consensus revealed at that conference (1960, law of the sea conference). The first is the concept of fishing zone. The second is the concept of preferential rights of fishing in adjacent waters in favour of the coastal state in a situation of special dependency on its coastal fisheries†¦Ã¢â‚¬â„¢Ã¢â‚¬â„¢[21] Conclusion Judicial decisions do not make customary international law neither do they make general principles of law, but they are declaratory of pre existing laws. They are law identifying or material sources of law.[22] Article 59 of the International Court of Justice Statute, states that, ‘’the decision of the Court has no binding force except between parties and in respect of that particular case’’. See also Nauru v Australia, Preliminary Objections (1993) 32 ILM 46. However, while it is true that Article 59 of the International Court of Justice Statute deliberately excludes a formal doctrine of stare decisis in the international legal system, the Article is still open to challenge. No doubt, it is clear that the International Court of Justice pays great regard to both the actual decisions it has reached in previous cases and to the law it has declared therein.[23] See the Interpretation of peace Treaties Case (1950) ICJ Rep.65, where the Court took out time to distinguish the earlier decision of the old PCIJ in the Eastern Carelia Case (1923) PCIJ Ser. B No.5, assuming we are to take Article 59 on its face value, then the court will not bother to take out time to distinguish the earlier decision from the one before it. The International Court of Justice has also followed its earlier decisions. See the Exchange of Greek and Turkish Populations Case (1925) PCIJ Ser. B No.10, where the Court specifically referred to the precedent afforded by the Wimbledon case.[24] The International Court of Justice do not regard its decisions as guidelines for future decisions, but rather the Court regards its decisions as authority for future decisions.[25] See Nicaragua v United States of America (1984) ICJ Rep 169. The International Court of Justice attempts to develop and maintain a coherent and consistent b ody of legal principles and rules and thereby circumvents Article 59 in practice. I agree with Dixon that the International Court of Justice is more involved in the process of law creation than either Article 59 or Article 38 of its Statute suggests.[26] The Court has been able to establish in recent times a consistent body of precedents that it adheres to and a decision of the Court usually has a profound impact on customary international law. See the Anglo-Norwegian Fisheries and Libya v Chad (1994) ICJ Rep 6. Finally, although technically the International Court of Justice can not participate in law making due to the fact that stare decisions is not applicable in international law, in practice it does not work out because the decisions of the Courts have gone a long way in establishing both customary international law and general principles of law that one can cautiously say that rules of precedent are gradually emerging in international law. I will end this essay by quoting D ixon, ‘the decisions of the court have a similar impact in international law as do decisions of the House of Lords in UK law, without the formal doctrine of binding precedent†¦the attempt to protect state sovereignty by limiting the function of the International Court of Justice to one simple adjudication rather than law creation has largely failed’.[27] Bibliography Becks Law Dictionary (2008) A compendium of International Law terms and Phrases, Washburn University School of Law Library, Washburn Cassese, A (1995) Self Determination of Peoples: A legal appraisal, Cambridge University Press, Cambridge Cheng, B (2007) General Principles of Law as Applied by International Courts and Tribunals, Cambridge University Press, Cambridge Dixon, M (2005) Text Book on International law, Fifth Edition, Oxford University Press, Oxford Fairhurst, J (2007) Law of the European Union, Sixth Edition, Pearson, Harlow Knop k, (2002) Diversity and Self-Determinatio n in International Law, Cambridge University Press, Cambridge Malanczuk, P (1977) Akehurst’s Modern Introduction to International Law, Seventh Edition Routledge, London Musgrave, T (1997) Self determination and National Minorities, Oxford University Press, Oxford Shaw, M (2005) International Law, Fifth Edition, Cambridge University Press, Cambridge Wallace, R.M.M (2005) International law, Fifth Edition, Sweet and Maxwell, London 1 Footnotes [1] Dixon (2005) p.4 [2] Dixon (2005) p.3 [3] Dixon (2005) p.11 [4] Becks Law Dictionary (2008) [5] Wallace (2005) p.26 [6] Wallace (2005) p.26 [7] Wallace (2005) p.26 [8] Fairhurst (2007) p.3-4 [9] Cassese (1995) p.11-15 [10] See Article 39 and Chapter VII of the United Nations Charter [11] Dixon (2005) p.8 [12] Dixon (2005) p.21 [13] Dixon (2005) p.26 [14] Dixon (2005) p.28 [15] Dixon (2005) p.28 [16] Dixon (2005) p.21 [17] Dixon (2005) p.38 [18] See Article 38 of the Statute of the International Court of Justice [19] Dixon (2005) p.22 [20] Wallace (2005) p.27 [21] Fisheries Jurisdiction merit citied in Wallace (2005) p.28 [22] Dixon (2005) p.41 [23] Dixon (2005) p.42 [24] Citied in Dixon (2005) p.42 [25] Dixon (2005) p.42 [26] Dixon (2005) p.42 [27] Dixon (2005) p.43