Critically examine custom and "soft law"as sources of international law. Are these sources in the same sense?
CRITICALLY EXAMINE CUSTOM AND “SOFT LAW” AS SOURCES OF INTERNATIONAL LAW. ARE THESE SOURCES IN THE SAME SENSE?
International law is known as the “jus gentium” meaning “law of nations” which governs and regulates the interrelationship between sovereign states and their rights and obligations in the event of a conflict with one another. According to the Statute of International Court of Justice, the usual sources of international law are (a) conventions, (b) treaties, (c) international custom and (d) general principles of law recognised by civilised nations. In effect, there are two formal sources of international law as outlined in the case of Nicaragua v. USA(1), these sources are “two parallel and sometimes overlapping” sources of international law namely, international customs and the international treaties(2) and they are unchallengeable(3).
International custom is the continuously followed practice that is generally accepted as a part of the law of the region. Opinio juris is an essential element of custom, which requires that custom should be regarded as a state practice constituting to a legal obligation, which is distinct from the mere usage. Furthermore, international custom are generally accepted as legally binding.
On the contrary, there always has been conceptual conflict between international treaties and international custom. To certain extend, treaties are generally legally binding on all parties but there have been conflicting instances when states consider disregarding the binding effect of treaties if the states interest is jeopardised by adherence to treaty obligations. In effect, “this overriding doctrine of necessity …. Would inevitably introduce a certain inherent instability into treaty relations.(4)”
On the other hand, international custom was more intensive source of international law and still remains to be conceptually challenging. Since custom are forms of legislation adopted from day-to-day practices of the whole states as a union, this contagious element of custom render and prone them to challenge. More explicitly, international custom was perceived as a “tactic treaty” adhered by those states that approved and were parties to the agreement. However, the current situation is conversely distinctive, as every state is subject to compliance of the international customary law without being a signatory to a treaty.
In other words, customary international law finds its existence from a universal, consistent and uniform practice of states adhered as a sense of legal obligation, which in effect establishes recognition and application in international customary law.
In accordance with the United Nations Charter, Article 38(1) (b) of the Statute incorporated into the charter by Article 92 confirms the existence of customary international law by the wording “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply... international custom, as evidence of a general practice accepted as law.”
The customary international law is developed from the practice of states and thereby identified under two-elements, which are the widespread repetition by states of similar international acts over time and the acts, which occur out of sense of obligation (opinio juris). Furthermore, it is essential that the acts must be approved under consensus by majority number of states and not be rejected by a considerable number of states(5). Rosenne defines customary international law as “rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way.(6)”
However, there is a process whereby a provision of a treaty generates a rule of customary law but its analysis is generally applicable to custom-creation. This was discussed by International Court of Justice in North Sea Continental, in the judgement of the ICJ stated that: ----
“Not only must the acts concerned amount to a settles practice but they must also be such, or be carried out in such a way as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, etc…, the existence of a subjective element, implicit in the very notion of the opinio juris sive necessitatis.(7)”
Clearly, the practice of states are defined as an “official governmental conduct reflected in a variety of acts, including official statements at international conferences and in diplomatic exchanges, formal instructions to diplomatic agents, national court decisions, legislative measures or other actions taken by governments to deal with matters of international concern.(8)”
International customary law is a unique law with distinctive character as it cannot be implemented or declared by a majority of states for their personal purposes or interest however, it can only be adopted and implemented by widespread practice by majority of states. Prior to the codification of laws of war into the Geneva Convention and other treaties, they were all classed as customary international law.
Furthermore, the doctrine of Jus Cogens is a fundamental principle under customary international law, which binds all states without allowing any room for any type of neither exception nor non-compliance. Jus Cogens is sometimes referred to as peremptory norms, rules can only constitute to Jus Cogens if they are recognised as such by the international community as a whole. States have no jurisdiction to opt out of the doctrine of Jus Cogens (e.g. act of genocide and crimes against humanity) even if a state attempt to do so by way of domestic legislation or an agreement.
Most significant and crucial role of the customary law is its application to all states which provides sufficient assistance to states in relation to bring disputes before the International Court Of Justice as all states are under compulsion to comply with customary rules without exceptions. Whereas, Treaties may not assist all states but only those that are signatory have a right of action against another state that must also be a signatory to be subject to an action under the specific treaties(9).
On the other side of the spectrum, there is a distinctive feature of international law known as “soft law” diverse from “hard law” as examined earlier. Soft law is concerned with quasi-legal instruments, which in effect do not have any legally binding effect. Adversely, in some cases it may be legally binding but with a weaker binding force than traditional sources of international law namely hard law(10).
When the term soft law is used under international context, it refers to a bundle of agreements reached between states. State is recognised as a sovereign and independent entity capable of entering into relations with other states and enjoying international legal personality. A country can only be recognised and considered as a state if it is decolonised and (a) have a permanent population (b) occupying a defined territory over which it exercises jurisdiction (c) an effective and organised government (d) possess both internal and external sovereignty(11). International law are international agreements are only effective on country that possess statehood but The Montevideo Convention applies also to country without a statehood. In the event that a new state is incorporated, it is automatically bound by the principles of international law(12).
Non-enforceability of soft law is derived and characterised from the fact that soft law consist of non-treaty obligation but it includes certain types of regulations of the United Nations(13) General Assembly (UNGA)(14). Despite of non-enforceable characteristics, to a some degree, depended upon the circumstances, soft law possesses significant normative weight. More significantly, law relating to the international treaty is the development and creation of a process whereby states’ conduct is regulated to emphasise the standard of conduct expected from each state. More explicitly, soft law is the creation of a process consisting of “norms from inspirational statements to rules and principles contained in draft constitutions…(15)”
The normative value of soft law established its root from the provision of resolutions to states disputes, which then crystallises into legal relevance(16). This significant factor encourages states to seek more specific legal resolutions to state related conduct specified in the declaration of intend. Soft law sometimes is employed as a term, which refers to a principle that underlines the expected form of behaviour by each state in conformity with the international rule of law. Additionally, soft law sometimes finds its place in the context of a binding agreement i.e. a weak commitment in a Treaty may be considered as a soft law because the weakness of the commitment adversely reflects the legally binding effect of the obligation(17).
Soft law’s application in the international order is advantageous in terms of achieving agreement easily, and providing a framework for the dispute resolution with a basis to implement legally forcible treaties. On the contrary, soft law has a weak verification and can be easily overridden by binding agreements (law)(18).
In comparison, customary international law has a better prospect of assurance of compliance with precision of states commitment to dispute resolution. Conversely, there are many controversies in customary international law as it is only recognised as being when there is a general practice. Thus, unless a practice is recognised as custom law it cannot be implemented into a practice by a state as recognised in North Sea Case. Further difficulty arises when a practice is new, known as instant custom, which is, deduced from declaration in General Assembly Resolutions constituting the element of state practice and evidence of opinio juris(19).
Further issue in customary law relates to the difficulty as in establishing the degree of widespread before inferring the existence of a customary law. This was considered in Nicaragua case, which examined whether there was sufficient widespread of customary rules forbidding the use of force or interference against a sovereign state. The International Court considered that “for a rule to be established as customary…” there was no need that “the corresponding practice must be in absolutely rigorous conformity with the rule”(20). Instead, the existence of customary rule is definite where the court deems it sufficient that the conduct of state should in general terms be consistent with such a rule and in the event of inconsistence that should be deemed as a breach of the customary rule.
The rapidly evolving customary law adopted by widespread practices of states and universally accepted rational conduct inevitably creates difficulties when attempting to recognise whether certain state conduct contravenes the principle of customary law, which in effect have not been recognised as such. However, Evans argues that “customary law in the traditional conception of it is not a rigid and unchangeable system though it is sometimes criticised as being so.(21)”
The most crucial element of normative order derives its root from soft law. Optimistic examination of soft law coherently demonstrates that soft law is not just a set of non-enforceable laws but in practice, they clearly possess substantial legal effect. This practicality substantiates the criticality and significance of the positive role of soft law, which has greater prominent character than a municipal states legal system. This indicates that soft law likely to escalate its international role in the agenda of international dispute resolution. Thus, the rational of soft law is recognised in sign agreements, which pave the way to a rationalised solution to disputes.
Regardless, of the subordination of soft law, sometimes they are effective as law to tackle state related disputes at an international level. This type of effectiveness is achieved by pressing political pressure on states through normative statements and agreements to induce states to adhere to the international practice. By this means, normative statements and agreements are incorporated into an instrument that does not possess legal force, which attracts states to participate, and renders it easier to appeal states to conformity with international behaviour(22).
Having examined the roles and characteristics of international custom and international soft law, there are clear evidence indicating the difficulties in compelling states to confine themselves to international practice and law to resolve disputes between sovereign states. Nonetheless, customary law bares a significant divergence from other binding treaties as customary law/rule is applicable to all states without exception whereas, treaties only play a role in states that are signatory to the treaty.
The growing intensity between states disputes particularly, in relation to recent events of two wars faced by Afghanistan and Iraq demonstrates the compelling need for infirmity and more intense application of international order. The rule of international law, which is committed to regulate international order within sovereign territories, is far from finalised. Customary law may be seen as a custom that compel the compliance of states and the less legally effectiveness of soft law may pave the way to more corruption of states to interfere with the territorial sovereignty of other states.
1Military & Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA) Merits Judgement, ICJ Report 1986, P14 para 190.
2 Koskenniemi, M “Sources of International Law” 2002 Athenaeum Press Ltd Chapter 2
3 Article 38 of the Statute of the International Court of Justice “…is the formal source of what the court has to apply and clearly reflects an abstruct view of what the source of international law generally are” Koskenniemi, M Sources of International law p77
4 Evans, MD International Law 2003 Oxford University Press p40
5 Rosenne, Practice and Methods of International Law, New York Oceana (1984) p. 55
6 Rosenne, Practice and Methods of International Law, New York Oceana (1984) p. 55
7 North Sea continental Shelf, Judgement, ICJ Reports 1969, p3, para77. See also Continental shelf (Libyan Arab Jamahiriya/Malta), Judgement ICJ Reports 1985, p13, para27; Military and parliamentary activities in and against Nicaragua (Nicaragua v. USA), Merits Judgement, ICJ Reports 1968, p14, para183 and 207.
8 http://www.law.berkeley.edu/library/classes/iflr/customary.html#customary Public International Law in a Nutshell, pp. 22-23
9 Gardener, RK, International Law 2003 Pearson Longman
10 http://en.wikipedia.org/wiki/Soft_law
11Declaration on the Granting of Independence to Colonial Territories, GA Res 1514 (14th December 1960)
12Brownlie, I “Principles of Public International Law” 6th edt. 2003 Oxford University Press
13United Nations is an international organisation created under the United Nations Charter in 1945 consisting of 5 (USA, Russia, China, France and UK) permanent member states which possess a veto power under Article 27
14http://en.wikipedia.org/wiki/Soft_law
15http://www.ciel.org/Publications/olp3ii.html
16http://www.ciel.org/Publications/olp3ii.html
17Example of a soft law in the context of a binding agreement is found in ICESCR (1966) Article 2(1)
18http://www.arts.monash.edu.au/politics/resources/handouts/plt2050-lect-2.pdf#search='conflict%20between%20soft%20law%20and%20customary%20international%20law'
19Cheng, B (1965) “United Nations Resolutions on Outer Space “Instant” Customary Law? Ind. JIL 23.
20Military and Paramilitary activities in and against Nicaragua (Nicaragua v. USA) Merits Judgement, ICJ. Reports 1986 p14 para 186.
21Evans, MD International Law 2003 Oxford University Press p128
22Shaw, MN International Law 2003 5th Edt. Cambridge University Press.
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