Sources of International Law (Research Paper Sample)

Title: Sources of International Law
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Introduction
Traditionally, the international community comprises sovereign states that relate one with another. The relationship among sovereign nations is regulated by a legal framework that is presented in the form of international law. This law deals with matters such as military issues, diplomatic relations and state territory. The focus given to the relationship among states is said to confer a mixture of strength and weakness to the international law. The effectiveness of the international law depends to a greater extent on the control exercised by the states over the entire process of its formulation. It is uncommon for states to agree to the formulation of laws that conflict with their national laws. This follows that the international law agreed on by states must be in harmony with the national interests of the various states, unless the international laws fulfill this requirement, most states are likely not to abide by them.
The term ‘International Law’ denotes a set of rules regarded to govern relations among nations. This set of rules are generally accepted by the states and serves as a crucial framework which regulates organized international relations. This law differs from national laws in the sense that it concerns itself with nations and states rather than individuals. National laws may be transformed into international laws via treaties. International laws are usually domesticated in the nations and states that are party to it. This paper will seek to critically examine the sources international law and argue the statement which states that the Article 38 of the Statutes of ICJ offer an exhaustive list of the sources of international law.
The subject of international law can not be discussed without looking at the issue of state sovereignty. The application of international law is considered to be consent based, this means that a country is not obliged to follow the dictates of the international law unless it has expressly given its consent for compliance. The traditional branches of the international law include laws of nations (jus gentium) and agreements between nations (jus inter gentes)
The sources of international law can loosely be defined as the processes and materials out of which the rules and tenets governing the international community are fashioned. These sources are thought to have been influenced by a myriad of legal and political theories. In the 19th Century, international law was acknowledged by legal practitioners that a sovereign state could restrict or allow the jurisdiction of the international law to some extent. This provision is found in the principle of pacta sunt servanda. This is a basic principle of the international law which clearly demands that the consenting parties to an agreement keep their end of the bargain.
Pacta sunt servada relates to good faith and in the context of the international law, the principle stipulates that every treaty entered into by two or more nations or states is binding on the parties and that the parties must perform their obligations in good faith. This principle entitles the parties to demand that the agreement reached be respected. The good faith basis upon which international law is founded ensures that no nation or state can invoke the provisions of its national laws as a basis for a failure to honor an international agreement. However according to the principles of jus cogens (compelling law), an international agreement can go unfulfilled if a compelling change in the circumstances occur.
The international law is consensual in nature. This view has been amplified by the 1920 Statute of the Permanent Court of International Justice (ICJ) and enshrined in Article 38(1) of the 1946 Statute of the ICJ. Basically, Article 38(1) is considered the defining statement for the various sources of the international law. The article requires the Court to apply international conventions, international customs, general principles of law recognized by civilized nations and judicial decisions and precedents set by highly qualified jurists. The ICJ applies these four criteria in determining the disputes brought before the Court. 
Concerning the question of preference between the four sources of international law, the rules formulated from treaties takes precedence over the other sources of international law. An argument exists in the corridors of justice equating international treaties and international customs as sources of international law. This argument holds that the two sources of international law are of equal validity. This supposes that new customs can override old treaties as old customs get superseded by newer treaties. Furthermore, juristic writings and judicial decisions are regarded as secondary or auxiliary sources of international law.
It can be argued that the proceedings and practices of international bodies and organizations such as the United Nations , as recorded in the resolutions of its General Assembly and the Security Council, also constitute the sources of international law. This additional source of international law is not enshrined in Article 38(1)of the 1946 Statute of the ICJ primarily because these. Article is based on the provisions of the 1920 Statute of the Permanent Court of International Justice. As the date suggests, the Statute predates the role of the international organization that entered the international plane in the later years. The provisions of Article 38(1) are indeed dated as can be seen in the use of a phrase ‘civilized nations ’, a phrase that was used to refer to nations that had not come out of the process of decolonization. The process of decolonization occurred in the early 1960s and most of the liberated countries took part in the affairs of the world through the United Nations.
As stated earlier on in the discourse, States will only abide with those laws that are in line with their national interest. This means that the control exercised over the international law is likely to delay the implementation of vital decisions and protocols if the state regards the decision from the international law to be in conflict with the state’s interests. A good exemplar of this situation can be seen from the current efforts to control the emission of green house gases that contribute to global warming. The developed and industrialized countries who matter most, as far as matters international are concerned, are the most reluctant to comply with the Kyoto protocol. Yet, without the consent from these countries, the other states cannot achieve the desired progress.
The international law draws most of its strength from the consent it obtains from states and nations. The process of getting this consent is a rather complicated one and involves intensified communication and lobbying at different levels. Although the process is complex and laborious, the end product is worth the hustle. The process, if successful, yields outcomes that include the giving of explicit consent to the rule of the international law through a bilateral or multilateral treaty. Another outcome of the communications and lobbying is the agreement on customary international law, Both the treaties and customary law are cited as important sources of international law.
In the process of time, new areas of international law have emerged. These new areas do not fit into the traditional confines of a system of international law that deals with relations among sovereign states. These new areas of concern to the international community include international criminal law, international economic law and human rights law. International criminal law prescribes the manner in which interstate crimes ought to be dealt with. The International police (Interpol) is the law enforcement agency mandated with the task of enforcing the provisions of the international criminal law. International economic law outlines the manner in which private individuals and states interact in the international marketplace. The human rights laws on its part looks into the rights of individuals and groups,
The new areas of international law differ markedly with the traditional areas in the sense that they does not concern itself with balancing states’ interests. These new areas concern themselves with the rights and duties of companies, groups and individuals. Most if not all interests involved go past state boundaries. Some of the new areas of international law concerns the whole world. However, the legal framework through which these new areas of international law are applied is the same as that used by the traditional areas. Moreover, the new areas also needs the consent of states before they can be brought into full operations.
An up-close and candid look at the sources of the international law reveals two major themes. Firstly, the sources are not representatives of mutually exclusive set of decisions or rules but are rather a manifestation of the interrelation between a myriad of legal authorities. These sources are closely related one to another. Secondly, the current sources of international law which is controlled to a higher extent by states through consent is insufficient to handle the challenges presented by the modern world.
The statement that Article 38(1) of the 1946 Statutes of the International Court of Justice provides an exclusive listing of the sources of international law is greatly erroneous. As discussed earlier, this list only highlights the traditional areas or sources of international law and does not cover the modern sources of international law. At this juncture it is important to look at the various sources of international source in details. These sources are discussed hereunder:
Treaties
These are the noticeable source of international law. Treaties are agreements...