INTRODUCTION
The world needs international law, because no state acting alone can achieve its aims. International co-operation is necessary: and international law is the framework within which international co-operation takes place.1
The rules of international law arise from three main sources of obligations; treaties, customary international law, and the principles of natural law. Article 38 of the statute of International Court of Justice (ICJ), directs the court to decide cases before it on the basis of:
- International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- International custom, as evidence of a general practice accepted as law;
- The general principles of law recognized by civilized nations.
Treaties and custom as the main sources of international law and their relationships are the main point of consideration in this discussion.
CUSTOM
Custom is regarded as an authentic expression of needs and values of the community at any given time. In international law is a dynamic source of law in the light of the nature of the international system and its lack of centralized government organs.
Customary international laws are aspects of law derived from international community. Custom is considered by the International Court of Justice, jurist, the UN, and its member states to be among the primary sources of international law.
For a rule of customary international law to exist, it must be manifested in the general practice of states. Article 38.1(b) of the ICJ statute refers to “International custom” as a source of international law, specifically, emphasizing the two requirements of state practice plus acceptance of the practice as obligatory. Hence, the challenge is how can one tell when a particular line of action adopted by a state reflects a legal rule or is merely prompted by courtesy?
The duration of a particular international states’ practice is what qualifies it into customary international law. Customary law systems generally suppose that the rule that they apply are long-established. The main reason for the concerned with time is a matter of authority. Proof that a practice has long been followed is good evidence that the rule evidence d by the practice is firmly established. The main challenge with regards to the time factor, are concern with the speed of creation of new rules and the effect of protest.
On the other hand , in the North Sea Continental Shelf cases in 19692 ,the ICJ expressly accepted the possibility that a wide spread and representative practice could generate a rule of customary international law even without the passage of any considerable period of time. This is referred to as instant customary law.
Advantages of custom as a source of law:
- Custom is recognized as being of value since it is activated by spontaneous behavior and thus mirrors the contemporary concern of society.
- It is democratic in that all states may share in the formulation of new rule. The factor of equality of states being constant.
- If states are unhappy with a particular law, it can be changed relatively quickly without necessity of convening and successfully completing a world conference.
Critics of this source of international law have denied its significance today stating, it is too clumsy and slow moving to accommodate the evolution of international law any more. Hence, since international law now has contended with a massive increase in the pace and variety of state activities as well as having to come to terms with many different cultural and political traditions, the role of custom is perceived diminished3.
The pro custom as a source of international law, recognize it as a dynamic process of law creation and more important than treaties since it is of universal application.
TREATIES
Treaties are known by variety of different names, but all this terms refer to a similar transaction. This is, the creation of written agreement between states whereby the states participating bind themselves legally to act in a particular relation between themselves.
Treaties, thus, signify written instrument in which the participants (usually but not always states) agree to be bound by the negotiated terms.
Treaties are divided into:
- Law-making treaties-these are multilateral treaties and mainly intend to have universal or general relevance.
- Treaty-contracts-this treaties apply only between two or small number of states. They are mainly bilateral treaties.
Treaties are express agreement and are a form of sustitute legislation undertaken by states.Treaties as source of international law originates from mainly the law making treaties which are intended to have a general effect. The law-making treaties are those agreements whereby states elaborate their perception of international law upon any given topic or establish new rules which are to guide them for the future in the international conduct. These are multilateral treaties and may produce rules that bind all states irrespective of their consent.
Article 384 states that, “international conventions, whether general or particular, establishes rules expressly recognized by the contracting states.” Treaties are thus, entered into by consent of states. A general rule illustrated in the North Sea Continental cases5 is that parties that do not sign & ratify the particular treaty in question are not bound by its terms.
However where treaties reflect customary law then non-parties are bound, not because it is a treaty provision but because it reaffirms a rule or rules of customary international law.
The pro treaties as a source of international law scholars view it as the most important source of international law. This is because; in their view they require the express consent of the contracting parties. Treaties are thus view by these scholars as superior to custom, which is regarded in any event as a form tacit agreement6.
Critics of this source of international law see it as a difficult process. One can imagine how difficult it is to try and achieve conformity of views and approaches in relation to a multilateral instrument that is intended to be comprehensive – even where the instrument’s subject matter is relatively narrow.
Even if you can settle the text of a law-making treaty you then face the risk that it may conflict with other law-making treaties. And the legal principles for resolving these conflicts may prove – in particular cases – to be anything but clear and simple.
Treaties are codified, making it easy to refer and address a wide range of issues.
Relationship between treaties and custom as a source of international law
The source of treaties and custom are the primary inter-relation between them. The interaction between them often exists from the beginning of the life of these judicial bodies.
Customary law is the practice followed generally by the nations. A treaty is not a necessity here. On that logic treaty law could evolve from the long practiced customs if state parties wish to have a codified form of their customary practice.
In the North Sea Continental shelf case the court set out three distinct ways in which a rule of law set out in a treaty text could be an accurate reflection of a rule of customary international law:
- The treaty could have codified pre-existing international law.
- A treaty may crystallize an emergent rule of customary international law.
- The treaty might pass into customary international law after its conclusion.
Customary laws have been the primary laws to commence any case in the international crimes while treaties play a vital role during jurisdiction. The relationship is also reflected in that the obligatory nature of treaties is founded upon the customary international law principle that agreements are binding (pacta sunt servanda).
CONCLUSIONS
In practice, the unending interplay between custom and treaty, in the sense that a treaty rule is fleshed out by practice which in turn becomes evidence of a general practice accepted as law.
Treaties have been favored on one hand as the customary process and its results are vague, slow, malleable and uncertain but treaties can be made relatively spontaneously in specific terms. On the other hand as well, the making of multilateral treaty is recognized as a cumbersome process that may well outlast the formation of a custom outside its framework.
While the interplay between treaties and custom is a constant in international law, there is strong sense in insisting that the two sources maintain separate existences. The question of the extent to which treaty rules, together with their attendant conditions for application, may affect the customary rules of identical content, and vice versa, is still in need of a consistent line of criteria, while taking into account the circumstances of each concrete case7.
It is also felt that customary law as a formal source of international law has an enduring role that cannot be diminished, whatever the situation is with efforts in treaty-making. A treaty will always display rigidity in the face of fast-changing conditions of this globalizing world; whereas custom has flexibility and responsiveness to such changing conditions8.
It is thus evidence from the above analysis that there is strong sense in insisting that the two sources maintain separate existences but are inter-related. Hence, the international community cannot rely on one in the absence of the other as a source of international law.
BIBLIOGRAPHY
Books:
- C.De Visscher, Theory & Reality in Public international law 3rd edn.Princeton,1969.
- Lowe,Vaughan, International law
- Malcom Shaw-International law 6th edition
- Utopia-by Thomas More
Online sources:
- http://www.lycoze.com
- http://treaties .un.org
Statutes:
- International Court of Justice statute.
Case reports:
- International Court of Justice reports.
1 Lowe, Vaughan, International law. Pg.1
2 ICJ REPORTS
3 C.De Visscher, Theory and Reality in Public international law,3rd edn.Princeton,1969,pg 16
4 ICJ statute
5 ICJ Reports,1969,pp.3,25:41
6 Tunkin, Theory of international law,pp.91-113.
7 http://chinesejil.oxfordjournals.org/content/9/1/81.full
8 . St-Fleur, Aerial Belligerency within a Humanitarian Rhetoric: Exploring the Theorizing of the Law of War/Terrorizing of Civilians' Rights Nexus, 8 Chinese JIL (2009) 347, 356–358.
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