Договоры как основной источник международного права: анализ их роли и влияния на государства

Hello to all, this blog which comes after along gap is the result of requests from some of my juniors to write a blog on sources of International Law (and this could be probably because those little lazy mutts might not want to make the notes of the topic themselves). So here have tried to make brief notes on sources of International Law, which could come handy for a quick revision, and also for interesting reading. These notes are made after a sincere reading, apart from other works, from ‘A Modern Introduction to International Law’ by Michael Akehurst, therefore, the incidents of similarity in expressions are high. So, there we go. Sources of International Law Determination of sources of IL has attracted wide debates and discussions, and this is probably because of absence of any universal law making authority analogous to national legislation. Art. 38 of Statute of International Court of Justice solves this problem to some extent by laying down the basis on which it is to decide the International disputes submitted to it. The list, so given in Art. 38, is the most widely accepted list on the sources of international law. Though some authors point out that the list is inadequate and does not include all the sources of international law, but none of the other lists ever provided have generated the kind of wide acceptance which has been accorded to Art. 38. It must be observed that Art. 38 nowhere contains the word ‘sources’ but the it has been taken since 1920 as stating the relevant sources. Here an important discussion pertains to the question whether the sources given in Art. 38 are ‘formal’ sources of int’l law or are the ‘material’ sources of int’l law. According to Salmond, the distinction between formal sources and material sources is, ‘A formal source is that from which a rule derives its force and validity. The material sources are those from which is derived the matter, and it supplies the substance of the rule to which the formal source gives the force and nature of law’. A far more simpler distinction, which is stated to be derived from constitutional law, is that formal source constitute what law is, while material sources identify where the law may be found. Brownlie, however, argues that such distinctions derived from constitutional law are not appropriate, given the nature of international society. Some authors question if the differences of nomenclature are so important as ICJ has not devoted any attention to the controversy. Treaties as a Source of International Law Coming to the first source of International Law as provided by Art. 38 (1), ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting States.’ Conventions mean treaties, and the expression ‘treaty’ comprises a large number of instruments that may use different names, such as agreement, pace, protocol, covenant, declaration etc. but, as Akehurst, points out that some of these words have alternate meaning which can mean something other that treaties, thus making the problem of terminology even more confusing. The best way I could think of coming out of this confusion is to look for the definition of ‘Treaties’ in Article 2(1) of Vienna Convention on Law of Treaties. Treaties are the maids of all work in International law. They are considered to be major sources of law as treaties arise from the express consent of a State. Being based on consent the general principle is that only the parties to a treaty are bound by its terms (but there are exceptions to this principle where the states not parties to the treaties are also bound by it, examples are, a) when treaties codify customary law; and b) distinctive category of ‘depositive treaties’ that create an objective legal regime binding upon third states). Law Making Treaties and Treaty Contracts Treaties are generally divided into law making treaties, known as, ‘traits-lois’; and treaty contracts, known as, ‘traits-contrats’. Some writers argue that only law making treaties should be regarded as source of law as treaty contracts are not sources of law, but merely legal transactions. But Akehurst points out that most of the treaties are on a border line case and it becomes hard to classify, though the classification is not entirely useless, but the better view is to regard all treaties as a source of International Law. Personally, I do not see any reason as to why contractual treaties should not be considered as a source of int’l law, as, the contractual terms which lay down rights and duties can be a source of law in absence of other laws of nature similar to that of the rights and duties so drawn under the contract. Treaties when Codify Customary Law Importance of treaties escalate when they codify customary law, as then they would not only be binding on the states parties to it, but also to the non party states. As the non parties may not be bound under the treaty per se, but they would be bound under obligations arising in customary international law, which the given treaty so codifies. Thus, a State can enforce an obligation on another State by showing that the treaty codifies customary law. In cases where treat is an amalgamation of customary law and provisions that seek to further the progressive development of the law, then the non parties will be bound only by those provisions that may be said to constitute customary international law. Note- I hope this might be of some help to people who have just been introduced to Public International Law. Though on request of my few juniors I intend to write whole series on all the sources of International Law, but that would also depend on the feedback from the readers. So if this writing has been useful to you in any manner and you would like to read on other sources of International Law through this blog space, please do leave a comment or ‘like’ it on facebook.