Online Assignment Coversheet

Fill the following details

CfPS Student Registration Number :-

Your group ( 1st year Weekend / 1st year Weekday / 2nd year /3rd year ). Type the relevant group.

3rd Year
Subject :-
Public International Law

Instructions

1. Please fill in the details of this coversheet and type your answers on the page below.
2. Answers should be typed in.
3. The maximum number of words that you can include in your answer is 1,750
4. Do not type the question. You have to type only the answer.
5. Submit your answer to the online Assignment submission area on or before 11.55 pm on
22nd November 2020. Answers submitted in any other form will not be marked.
 Start typing your answer from this page

Your answer cannot contain more than 1,750 words

International law consists of a set of binding rules which regulates relations between International
individuals, organizations, companies and countries. International law(IL) has a different system than the
domestic law where enactments of binding rules are carried by a law making body, where as
international law does not comprise of such element. It has no existence of a ‘code of International Law’
nor a Parliament in IL, thereby complexity arises due to what creates legal binding rules or legislation in
this platform.

The sources of IL are the fundamental basis which has the force to create rights and obligations on the
parties or MS involved. Although, there’s no universally agreed definition, the traditional sources are
listed under Article 38(1) of the statue of International Court of Justice; “The Court, … is to decide in
accordance with International law such disputes […] shall apply; (a) International Conventions, (b)
International Customs, (c) General principles, (d) Judicial decisions”. Article 38(1)(a-c) are law-creating
or formal sources and Article38(1)(d) are law-identifying or material source. However, Article 38 ICJ
excludes other sources of law such as soft law, ideals and recommendations therefore it is right to say
that the list itself is incomplete but can be used as helpful guidance for the ICJ on how to apply and
abide to the sources listed for disputes before them.

Article 38 ICJ does not establish a hierarchy but sets out a hierarchy of procedure for the application of
international law for settlements of disputes between the parties involved. Generally, legally binding
rules are created by these two mechanisms.

International treaties which replaced international conventions, is the most important and superior
formal source of IL. Article 2(1)(a) the Vienna Convention on the Law of Treaties (VCLT)1969 defines
treaties as “an international agreement concluded between States in written form and governed by
international law…”. These are binding agreements, declarations, covenants, exchange of notes or
protocols which bind the states involved, such treaty agreements are governed by IL. Treaties could be
bilateral between two states or even multilateral between many states or organizations. States will be
bound if they consent, sign and by expression and it requires by the State ‘pacta sunt servanda’ –
promises must be kept. Treaties are defined as a source of obligation instead of a source of law. There
are two types of treaties; law making treaties which is essentially legislation and contractual treaties.
The law making treaty is divided into two; universal application treaty and international treaty. The UN
Charter is universally applicable. International Treaties specifically deals with the 1958 Geneva
Conventions on the Law of the Sea.

Further, the VCLT 1969 codified many rules relating to how treaties operate. However, on the other
side, treaties have its inadequacies. One issue is regardless of bilateral or multilateral, the treaties with
general character seem to never obtain universal acceptance on the parts of the states. A state will
attach extensive reservations permitting them to exclude or modify legal provisions or the effect of the
treaties, although the process itself is time consuming. The extent to which certain procedures are
followed by a national legal system before a treaty is approved as it directly threatens its sovereignty. If
this is the case, when the treaties are not approved by the national legal system, it could lead to
repercussions. Another problem associated is in treaties are that genuine consent is required hence it
cannot be forced to ratify treaties between states.

International Customs are defined under Article 38(1)(b) ICJ as ‘evidence of general practice accepted as
law’. Although not a written source, there are 2 important elements of CIL which can be considered as
the rule of customary law. Firstly, there must be consistent “state of practice” the subjective element
(verbal) and secondly there must be ‘opinio juris’ the objective element (behavioral) the psychological
element behind this state. It is clear that new customary rule cannot be created unless these 2
requirements have been satisfied. In the Lotus Case courts held customs must be ‘constant and
uniform’. In the Asylum Case the ICJ held requirements for a rule to be classed as a custom “parties
must prove that custom is established in such a manner that it has become binding on the other party”.
The Lotus Case stated consistent practice alone without opinio juris is not sufficient for a new custom.
“State of practice” not only refers to government practice but also courts and parliaments of that State.
The Lotus Case saw opinio juris as an essential element of customary law; this was affirmed in the North
Sea Continental Shelf. Once there is sufficient state practice together with opinio juris a new custom is
formed, subjected to the “persistent objector” principle the new rule binds all States. This allows a State
which has persistently rejected a new rule even before it emerged as such to avoid its application. Also
jus cogens norms were accepted and recognized by the international community as a whole and no
derogation will be allowed and it could only be modified using another jus cogens norm. In CIL, consent
is implicit that it applies to all states unlike in treaties which affect only declared states. CIL have its own
flaws.Customs are vague and open to conflicting interpretations. Sometimes, a treaty can expressly state
a rule of CIL, while a rule found in a treaty can become a rule in CIL overtime. Secondly, if the perceived
interests of certain states change their boldness, customary international law will change and may be
challenged subsequently. Moreover, countries customs are an invention of their precise economic
making it inconsistent and unsuitable to adopt in other countries.

General principles of law at first were rejected as it did not conform to state will and consent like
primary sources but later accepted as a part of state legal order as a secondary source. River Meuse
Case stated, ‘the principle of equity is applicable to international Tribunals that are general principles of
equity and fairness within the scope of paragraph 1(c)’. General principles of law compare the national
legal system in every state, the ICJ rarely invoke them resulting with fewer decided cases. The nature of
international law accepts the absence of legislating method in order to provide new regulation to
regulate new situations, this is why the provision ‘general principles of law’ is considered as a source
under Article 38 ICJ. The phrase ‘civilised nations’ under Article 38(1)(c) perhaps means to exclude weak
or underdeveloped legal systems rather than refering to the economic/political statues of countries.
However, in present time this is irrelevant. The purpose of this section is to ensure international law
includes common rules and principles to all legal systems as it will be part of the structure of law.
However, it is impossible for all states around the world to have the same law thus making this a
weakness as this source of international law cannot be a universally acceptable principle of law. One of
the biggest criticisms being that this source of law as the systemic difference prevents the existence of
common general principles. Sources such as treaties and customs have reduced the impact of general
principles being a source of international law.

Judicial decisions are said to be academically, international courts do not make law they merely identify
and declare pre-existent law, established by Article 59 of the ICJ Statute. Article 59 further explains
decisions of court will not have any binding power but only bind relevant parties in the particular case.
Conversely, the practical issue is whether the courts function is indeed limited to the determination of
disputes according to the pre-existing rule or not. The ICJ is more involved in the process of law creation
rather than Article 38 or 59 had suggested. It is definite that the court will decide the substance in the
dispute submitted to it, from thereon as per the statute the parties are bound by the decisions. Ideally
courts are not supposed to participate in any law-making process in practice this is solely an impractical
review.

The sources discussed in this essay are the traditional sources under Article 38 highlight its insufficiency.
To evaluate if the sources of law had effectively developed over the years the weaknesses of each
source have been discussed above. Article 38 ICJ regulated applicable law concerning specific disputes
brought before the ICJ. However, there are certainly debatable areas such as ‘soft law’. Soft law is a term
used to describe two different but related circumstances in international law. Soft law are rules of
international law that do not specify concrete rights or obligations for the legal persons to whom they
are addressed. The content is flexible although the rules are regulating which is said to be the rule of
law. These rules reduce the chance of conflict as they give space for states to decide how to act. ‘Soft
law’ is a description of those guidelines, ideas, values and proposals which may develop into rules of
international law but have not done so yet.

Overall, all the sources can be found in the practice of the UN. However, inadequacies highlighted above
in each source and Article 38 itself could arguably deny it to be a universal rule of governing the list of
sources of international law. Soft law covers the gaps which traditional sources fail to cover. Despite all
of this the sources of international law have been efficient and usefully applied over the years however
only to a certain extent due to the shortcomings discussed above. Therefore, the statement ‘sources of
international law are not static, and continue to evolve’ is that it requires to expand into new
dimensions on sources and also regulations must be added according to modern needs of the
international law.