International Law Comprises not only Customary and Conventional Rules but also General Principles of Law

International Law Comprises not only Customary and Conventional Rules but also General Principles of Law. Illustrate & explain

Introduction

Law, as we know, is the set of rules and regulations set by the constitution and imposed by higher authority to protect the rights of people. The difference between rules and regulations set by general people to live their lives and law is that law is backed by punishment. Law is used to govern a State. When we add the word ‘International’ with ‘Law’, it becomes- the rules and regulations that govern the relation of one State with the other. However, recently, International Law does not just deal with States relationship; it also deals with individuals’ relationship and organizational relationship. International law first puts the nations as priority and the private citizens. International law has the following fields:

  • International Economic Law
  • International Security Law
  • International Criminal Law
  • International Environmental Law
  • Diplomatic Law
  • International Humanitarian Law or Law of War
  • International Human Rights Law

The concept of international law began with the beginning of the concept of “sovereign state”, that is, a nation that has a centralized system of government. The United Nations creates much of the framework of the international law. It was created in the year 1945 to maintain peace and to provide security. Its intention was also to create relationship. They asked for nation’s cooperation in solving problems which are a concern for everyone, internationally. To reach these goals, the United Nations Charter created International Court of Justice (ICJ) as its “principal judicial organ.” Its main purpose is to settle legal international disputes among states and to provide legal advises. ¹¹

There are two types of International Law. One is the Public International law which deals with relation and rights and duties of nations or/ and the citizens. On the other hand, Private International Law involves dealing with issues related to private individual, natural or juridical, who has been in a situation, which related to different nations. It covers the following field:

  • Treaty Law
  • International Criminal Law
  • International Humanitarian Law/ The Laws of War
  • International Human Rights Law

Public international law increased in the recent days due to the increase in international trade, communication and all the other issues that deals with foreign nations.

Sources of International Law

Source of international law means the materials and where and how the international law was developed. The definition the sources of International Law is well defined in Article 38 of International Court of Justice Treaty. Based on the Article, there are two sources of international law. One is the Customary Law and the other one is the Conventional Law. However, international law comprises not only customary and conventional rules but also General Principles of Law.

Customary Law

Customary Rules are rules followed by the States. These rules are mostly general practices which are done out of a need or sense of legal duties. The customary international law is defined in Article 38(1)(b) in The International Court of Justice (ICJ) as “evidence of a general practice accepted as law.” Customary rules are based upon general practice or norms of the state and what the state believes as law. First, the rules and guidelines or the principles have to be accepted by the state itself as a legal binding and then it can be considered as an international law. Not all general practice can be considered as international law. Customary laws can be seen as Jus Cogens (Latin for ‘compelling law’), that is, a peremptory norm that is accepted internationally. For example: torture, genocide, slavery, crimes against humanity. Customary human rights prohibit these acts globally in all social aspects as legal duties to ensure “universal respect.”

On the other hand, some of the practices can be acceptable as Opinio Juris (opinion of law) because the law believes that the action was necessary, For example- self-defense. When someone attacks you and you kill that person in your defense is not considered as crime.

It is said that jus cogens are all considered as customary international law which are not-derogable; but all customary international law cannot be considered as jus cogens because states can deviate from the law through treaties or agreements. When states deviate from the customary international law through treaties, it is called Codification of Customary International Law. For example, the laws of war were codified in The Hague Conventions and Geneva Conventions.

Conventional Law

Conventional Law means international agreements and treaties in which different states agrees to take part voluntarily. Treaties can be used as a contract or legislations to take care of business or issues related to anything that is international. These international agreements or treaties depend on the number of states agreeing with it. Some treaties are just the codification of the customary law, For example, Geneva Convention.

The Geneva Convention has four treaties. These were rules applied during wars for the people who are in the armed forces and also for the people who are suffering due to the wars. The first Geneva Convention took place in 1949 after the Second World War. Henry Dunant, who was later provided with the first Nobel peace prize, led it. The first convention was about the treatment of the injured, wounded and sick people at the battlefield. The second convention was about treatment of the injured, sick people who are fighting at sea. The third convention was about the treatment of the people who were kept as prisoners during the war. The fourth Geneva Convention is about the protection of the civilians who were suffering during the war.

  • “First Geneva Convention- for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1864
  • Second Geneva Convention- for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1906
  • Third Geneva Convention- relative to the Treatment of Prisoners of War, 1929
  • Fourth Geneva Convention- relative to the Protection of Civilian Persons in Time of War, 1949” ²

Customary International Laws are criticized of being inconsistent. Like said before, the rules and regulations has to be accepted by the state itself first and then internationally. Customary International Laws involves general practices but not all general practices of a state can be accepted internationally. The “general practice” can vary from one to state to another. Therefore, it is difficult to build a common ground or rule from it.

When a Customary law is codified, it becomes identical to the Conventional law. So the two concept mixes up. It becomes difficult to separate customary rules from the conventional rules. They happen to move in parallel, for instance.

There are situations when it is not wise to apply neither customary law nor conventional law. In such cases, the General Principle of Law can be used.

General Principle of Law

General principle of law is known as the third source of international law and it is considered as a secondary source. It is not a strictly binding force like the customary law nor is it a treaty that has to be agreed upon and followed. When customary and conventional rules cannot be applied general principles of law are used. It is used to “fill in the gap.” Whenever customary law and conventional law cannot be applied, sources are searched where a comparable national legal system has been used which is similar to the common legal principle. When such common legal system is found, it is treated as general principle of law. For example in the case of Right of Passage over Indian Territory, where the Portugal’s argued that it was right to passage over Indian territory. In Article 38 of the Statute of International Court of Justice explains this law as “the general principles of law recognized by civilized nations”. These principles are similar to the municipal law. Municipal laws are laws for the state, nation, region, territory etc. These are the ‘common laws’ or ‘civil laws’ for all. Similarly, in the context of international law, there is not much difference in constitutional law and ordinary law.

In an observation made by C. Wilfred Jenks, a British barrister, said in his book, The Common Law of Mankind (which was published by London Institute of World Affairs in 1958), that the development of all the countries starting from West to East has been influenced by either common law or by civil law. In spite of the differences between the two laws, the principles of common law and civil law are somewhat similar to the framework of general principles of international law. For example, in civil law, interpretations of norms are applied in cases like customary laws and on the other hand, common laws have binding forces like there are in an agreement or treaty. From these laws, general principle of laws can be collected to “fill in the gap.” There is no specific rule for general principle of law; the rules here are derived from already existing rules in the legal system. In some cases, they are seen as “principles of international legal logic.”

The Nature of General Principles

There are three elements that has been identifies from the general principle of law. They are:

  • Indeterminacy- No force binds it. It is an open room for scope and it is flexible. The general principle of law has a broad platform where something new always comes up.
  • Discretion of courts and tribunals- It gives room for a good judgment. It gives judges a platform to argue. However, it is sometimes criticized that too much space is given to the judges by general principles and that too much opinions take over the issue.
  • Dynamism- The general principle allows reconstructing the law dynamically, matching it with the situations today.

In conclusion drawing to general principles of law, these principles are based on constitutional structure. They follow the rule of law, that law is equal to all and provides the same level of security and certainty to people.

3. See Voigt, A.C. (2008). The Role of General Principles in International Law and their Relationship to Treaty Law. Retrieved from http://www.retfaerd.org/gamle_pdf/2008/2/Retfaerd_121_2008_2_s3_25.pdf

Preference of the Source of International Law

It is said that both customary law and conventional law has equal preference. However, there are debates about whether the general principles of law should be treated as one of the sources of international law.

Conclusion

Even though there are debates about whether general principles law should be treated as one of the sources of international law or not, it is still used. That is why; it is labeled as a secondary source or sometimes “nonconsensual” source. There it is said that international law comprises not only customary and conventional rules but also general principles of law.

Reference:

Apple, J.G. (2007) What are general principles of international law?. International

Judicial Monitor, 2, Retrieved from http://www.judicialmonitor.org/archive_0707/generalprinciples.html

Geneva Conventions. (n.d.). Retrieved March 14, 2013, from

http://en.wikipedia.org/wiki/Geneva_Conventions

Paust, J.J. (2009). The absolute prohibition of torture and necessary and appropriate

sanctions. Retrieved from http://www.american-buddha.com/torture.jordanpaustabsoluteprohibition.htm

Voigt, A.C. (2008). The Role of General Principles in International Law and their

Relationship to Treaty Law. Retrieved from http://www.retfaerd.org/gamle_pdf/2008/2/Retfaerd_121_2008_2_s3_25.pdf

http://legal-dictionary.thefreedictionary.com/International+Law

¹ see http://legal-dictionary.thefreedictionary.com/International+Law

2 see Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC].

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