Sources of PIL

Sanzhar Amangeldy 20111717

Sources of PIL

Today people from different counties or even continents are able freely communicate with each other. They can explore new countries, meet new people and discover new cultures. This is possible, because of communications among countries. However, now one of them knows how people regulate these relations. The answer is simple. There are thousands of international treaties and conventions, general principals, customs and also judicial decisions, and in general we call it - Sources of Public International Law. This is all according to Article 38 of the Statute of the International Court of Justice (ICJ).

Article 38 (1) of the Statute of the International Court of Justice determines the following hierarchy of sources.  First, ‘international conventions, whether general or particular, establishing rules expressly recognized by the contenting states’. Second, ‘international custom, as evidence of a general practice accepted as law’. Third, ‘the general principles of law recognized by civilized nations’.  And the last one, ‘subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’.

Many scientists, who have been working in the sphere of Public International Law, have different opinions on the topic of Sources of Public International Law. For example we can see the dispute in work of James H, Wolfe (Modern International Law, 202, p. 154) on the question of whether the Article 38 creates a hierarchy of sources or it rather a direction to the Court, to which number of legal documents apply first. They also state that they were not created to represent the hierarchy of sources of law; however, it was accepted to be as such. There also were a lot of critics of this Article.

According to I. Brownlie (1990) international conventions are very important sources of law, for the reason that it refers to a source of mutual agreement, consequently, mutual obligations of the parties.  International conventions basically indicate conformity or settlement under international law among the subjects of Public International Law.  W.R. Slomanson (1999) defines the remark ‘International Agreement’ as it is the symbol as a result of which states can protect or defend their rights.  And this statement is strongly supported by the Article 8 of Montovideo Convention, which says that ‘no state has the right to intervene in the internal or external affairs of another’.

Thus, it means the right of the sovereign states, and apparently the idea behind article consists that by means of this article it is acceptable that state can protect its own right to the sovereignty. Moreover, it says that they are gratuitous to decide, whether to sign the international agreement or not, it is their personal craving to work in own interests. For that reason it means that no state is indebted to sign, ratify and adopt the international agreements. Additional criteria of international agreements - that it has to be in writing, it means that there has to be an official document to which subjects of Public International law can be taken as argument. The international conventions have to be made according to international law, between subjects of public international law. The States and the International Organizations, and it has to be in writing.

In the following paragraph reader may see principles that are consider as general principles of Public International Law: principles of consent, equality of states, finality of awards and settlements, and the legal validity of agreements, good faith, domestic jurisdiction, and the freedom of seas. (I. Brownlie, Principles of Public International Law, 1990, p. 15 - 19). At the outset, these principles were concerned as the practice of the state, now it is become as a consequence of general acceptance of many states. It is no longer unswervingly linked with the state practice. Regulations and principles, which universal to all legal systems are the right of natural or legal person to be a subject in a court, to play role in international relations etc.

Another point is about customs, which were the main criteria to regulate relations among countries; there are many customs, nowadays, which people transferred into written international laws. However, there are also many unwritten custom that were not forgiven, for instance, red carpet or round table and many other unwritten regulations.

Finally, last point about sources of Public International Law to squabble is judicial decisions and work of publicists. This part is the most arguable in this sphere. Difficulties lay that they are more used as ‘subsidiary’ means for the determination of law; it means that they are just material sources of law. Moreover, according to Martin Dixon (2007) judicial decision and work of publicists are not making a law, however, the advantage is that they can be declaratory of pre – existing law, it means that they can be powerful in a new emerging field of norm of customary law. It confirmed in the Article 59 of International Court of Justice that states ‘the decision of the Court has no binding force except between the parties and in respect of that particular case’.  The works of publicists are determined as a one of the sources of public international law, because there are not so many sources in its field. In the end, judicial decision and work of publicists do not make a law, but they may be essential or prominent in the case of new-fangled promising area of law.

To sum up, the functions of all these sources of law are almost certainly significant for the reason that they as all the branches of all try to make an order. These sources of Public International Law are: international conventions that is agreements or treaties, the participants of which are States and International Organizations; international customs that are legally practiced; subsequently is general principles of law like right to defend your rights in the court; the concluding ones are judicial decisions and works of publicists that do not make existence law. These sources are very important part in international integration. In my opinion, lately it will lead people to the thing, which is call ‘Global State’

References:

Official documents

International Court of Justice( art. 38, 59)

Convention on Montovideo (article 8)

Specialists in Public International Law

Z. Kembayev, (2013), Public International Law course

I. Brownlie, (1990), Principles of Public International Law, Oxford

M. Dixon (2007), International Law, Oxford

W.R. Slomanson (1999) Fundamental Perspectives on International Law, 3rd Edition, West

J. H. Wolfe, (2002), Modern International Law, Pearson Education, New Jersey