Knowing the Foundations of International Law (Essay Sample)
The task was about examining whether article 38 is an exhaustive source of international law. the paper argues that article 38 is not a full reference point for international law sources. The paper further argues that there are many other sources of law that are not classifiable as customs, conventions, or general principles outside of article 38source..
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For the most part, the legal foundations of society are determined by the sources of law. The international community, like individual nations, is privy to its own rules. However, unlike a sovereign nation, there are no universal compulsory judicial courts and legislature and a system in international law. As a result, it is a little more difficult to discern all the different dimensions of the law. Although article 38 of the Statute of the International Court of Justice in The Hague has often been interpreted as a comprehensive list of international legal sources, it simply serves only as a starting point for a review of the applicable laws. Therefore, this essay shows that Article 38 does not serve as a full reference point for international law sources. The essay begins with an examination of the elements of Article 38. (1). It then looks for other possible references which are not covered by article 38. The essay focuses on jus cogens norms and unilateral declarations since there are many possible references outside of article 38. After that, the essay will evaluate if these obligations are subject to the wider article 38(1) interpretation or are self-contained/ independent.
The Permanent Court of International Justice (PCIJ) introduced Article 38 in 1920, and then re-enacted it to the statute of 1946. Article 38(1) of the ICJ distinguishes between the primary and secondary sources of international law. Common law, Conventions or treaties and fundamental principles embraced by sovereign nations are among the key references that the Court often uses in its judgments. Secondary sources on the other hand refer to the teachings of extremely qualified publicists and judicial decisions. Treaties are the are the only way for two or more countries to officially enter into legal relations and are therefore most well-known sources of international law. Common national procedures that are recognised as legislation are referred to as customs. When a certain type of behaviour is first adopted as a common practice by Nations, and then recognized as legally binding by those States, international customary law comes into play. Since there is no foreign ‘law maker,' customs have been an especially valuable source of international law. Customary rule binds both nations until one of them consistently opposes. Similarly, in the absence of properly formulated statute, courts may rely on general principles of law recognized by civilized nations. These provisions were added as "gap fillers" into article 38 by the PCIJ Statute drafters to cover for cases whereby customs and treaties were unable to address legal problems. [Cornell, "Sources of International Law," LII / Legal Information Institute, last modified 2020, https://www.law.cornell.edu/wex/sources_of_international_law.] [Malgosia Fitzmaurice, "History of Article 38 of the Statute of the International Court of Justice by Malgosia Fitzmaurice :: SSRN," Search ELibrary :: SSRN last modified 2016, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2774354.] [ICJ, "Statute of the Court | International Court of Justice," Cour Internationale De Justice - International Court of Justice | Cour Internationale De Justice, last modified 2020, https://www.icj-cij.org/en/statute.]
Jus Cogens Norms as a Source of Article 38(1) or External Obligations
Jus cogens norms, also known as peremptory norms, are the first external source of law that courts apply. Because of the fact that they defend the legal system from conflicting rules, acts, and transactions, jus cogens functions as a means of public order. The prohibition of genocide, slavery, torture, aggression, the prohibition of piracy, the right to self-determination, and disastrous occurrences of environmental harm are just a few of the important jus cogens norms. Outside of article 38, jus cogens has official status as an unofficial source. The pertinence of jus cogens is highlighted by Orakhelashvili, an academic when he points out that when confronted by a superior customary norm of jus cogens, the power of states to draw up and implement treaties is significantly reduced.[UN, "Chapter V Peremptory norms of general international law (jus cogens)," United Nations, last modified 2018, https://legal.un.org/ilc/reports/2019/english/chp5.pdf.] [Alexander Orakhelashvili, "Changing Jus Cogens Through State Practice? — The Case of the Prohibition of the Use of Force and Its Exceptions by Alexander Orakhelashvili :: SSRN," Search ELibrary :: SSRN, last modified 2012, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2084829.]
The same is backed up by the Vienna Convention regarding the law of treaties 1969 (1155 UNTS 331). It states that, “a treaty is void if it, at the time of its conclusion…conflicts with a peremptory norm of general international law … [it is] a norm from which no derogation is permitted.” Similarly, according to article 64: “if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”. Therefore, the endorsement by articles 53 and 64, as well as the prior-mentioned scholars, explicitly establishes jus cogens as a full legal authority that exists independently of the ICJ's article 38 references.[UN, "UNTC," United Nations Treaty Collection, last modified 2020, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&clang=_en.] [Ibid]
In the apparent clarity of criticism of some activities under jus cogens, some commentators are not contented with the hierarchy of international legal norms. There also exists skepticism about how those standards are understood and defined. Peremptory norms, a comparatively recent idea, vehemently contrasts the historically cooperative essence of international law, which is thought to be sufficient for national sovereignty. A few peremptory norms describe criminal offenses that are prosecutable not only against individuals but also against nations. After the Nuremberg Trials, which saw the first application of international rules on persons in global history, this has been increasingly recognized and is currently seen as uncontroversial. However, in these trials, the language of peremptory standards was not used. For the most part, the premise for criminalizing and punishing Nazi atrocities was that society could not bear these atrocities being overlooked as it could not withstand their repetition.[Kamrul Hossain, "The Concept of Jus Cogens and the Obligation Under The U.N. Charter," Santa Clara Journal of International Law, last modified 2005, https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1011&context=scujil.] [Ibid]
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