International law deals with laws and rules that govern institutional subjects and sovereign states . International laws however are more biased toward regulation of states rather than individuals. International laws govern aspects that include human force, armed force, worldwide security, environmental protection, international postal services and telecommunications, among other services. Sources. One source of international law is customary law, and these are laws that are practiced by a number of states.
These laws should have been practiced by many countries and found to be acceptable, before they can be considered as sources of law. These laws have to be proven to contain opinio juris, which means that the practice is so common, that it can bound countries and be used as an international law. Another source includes principles that are recognized by countries that are categorized as civilized. Finally, another source of this law is international conventions. These are particular or general rules that come about through accords between nations and states.
Some people are of the opinion that justice and equity are other sources of international law. This is because ICJ judges are mandated to use justice and equity as guidance in ruling of cases. It is on the basis of this that these two principles are regarded as sources of these laws. Other sources of international laws, though not mentioned in Article 38(1), include resolutions that are passed by international bodies, for instance the UN. Unilateral acts are however not sources of international laws since they advocate for interests of individual countries.
They are therefore not capable of upholding the interests of all states. Hierarchy. There has been a big debate on treaties and customary laws. This is due to difference in perceptions about which of the two is superior to the other. Some people regard treaties as superior to customary law, while others argue that customary law has more weight. It is challenging to decide which is superior mainly due to their relationship. Some customary laws are replaced by treaties, and likewise, some treaties may replace customary laws . It is thus fair to conclude that both carry equal weight due to the nature of their relationship.
If one was superior to the other, then there would not have been a dual relationship between the two. The superior one would be dominant and would not have the possibility of being replaced by the inferior one. However, jus cogens may be considered as a law that is superior to the two, since it binds all countries. This represents norms that are considered to be importance for development of humans. Such laws are not to be broken by any country, and once this is done, it attracts adverse repercussions. Such laws involve slavery, torture, genocide and others.
Municipal decisions. These decisions are generally not acceptable as sources of international law due to several limitations that are present. One limitation is that municipal laws are seen as protective of the country that uses them. This means that municipal laws are created to serve the needs of individual countries. They can therefore not be used to govern different countries since they serve the unique needs of the countries . Countries would therefore have the right of refusing to implement international laws that go against their municipal laws, if they are adopted.
For instance, in the Lockerbie bombings, Libya refused to extradite suspects due to the argument that the international law goes against its laws . Others reasons why municipal laws are not acceptable include the conflict between municipal law formation, implementation and nature of subjects as compared to international laws. Exhaustiveness of Article 38(1) This article covers many issues related to international law. It cites the sources of international law that the judges will use to base their decisions.
These include customary laws, which are laws that have been practiced by many countries and found to be acceptable. Another source specified by Article 38(1) is principles that are recognized by countries that are civilized. Lastly, international conventions are also stated as sources of international. However, the article fails to give the hierarchy, and this has led to a debate on the issue. Without a clear guidance on the hierarchy, judges would find it a challenge when faced with a situation where two sources of law conflict.
This is a weakness that should be addressed by the ICJ. Another weakness comes from the use of customary laws. Sometimes these laws are biased towards specific regions and it is inappropriate to use them as sources of international law. ICJ judgments. Judgments by the ICJ are not usually used as sources of international law. This is because the independence of the court may be compromised if this situation is to take place . Powerful countries might take advantage of this situation and influence the passing of unfavorable laws that would be forced down the whole world.
However, individual countries are free to embrace the judgments of this court, which would be applicable within their jurisdiction. Conclusion. Article 38(1) is very important in defining the sources of law that are applicable internationally. It guides the courts in making their decisions since the court knows which laws should be applied. It however possesses weaknesses that have been discussed. These weaknesses should be solved in order for justice to be dispensed to all people.