Making Law in a Decentralised System:

Is International Law Law?

There are often claims that international law is not law because it lacks a central law-making body, it has no executive to ensure that “international law” is obeyed, and it lacks a judiciary to interpret the “laws” in the international space.

However, the actions of governments, international laws amongst others points to the fact that international law exists, as these bodies often invoke it for several purposes such as assertion of sovereignty, territoriality, amongst others.

What are the Sources of International Law?

The Statute of the International Court of Justice in Article 38 recognizes international conventions, international custom, general principles of law recognized by civilized countries, and the judicial decisions and teachings of the most highly qualified publicists as the sources of international law.

However, Dunnof et al asserted that the sources of law in Article 38 of the Statute of the International Court of Justice is only a starting point and not exhaustive of the sources of international law. The sources of law in Article 38 are believed to be supplemented by alternative sources of law in the form of the “standard-setting activities of international organizations, regional bodies, multinational enterprises, and non-governmental organizations.”

Are Some Sources of International Law More Important than Others?

Whilst article 38 does not explicitly state that there is a hierarchy in the sources of international law, Dunnof et al believes it is suggestive. In Article 38(1)(d) of the Statute of ICJ for instance, judicial decisions and teachings of most highly qualified publicist is characterised as a “subsidiary means for the determination of rules of law.” When disputes arise in the international scene, treaties are usually the preferred source of international law.

Understanding Treaties or Conventions:

In Article 2(1) of the Vienna Convention on the Law of Treaties, a treaty is an “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;”

Dunnof et al state that treaties “specify particular quid pro quo arrangements relating to narrow or specific interests of the parties, such as a treaty allocating fishing rights in a particular area or one defining the terms by which individuals accused of crimes may be extradited from one country to another.”

There has been an astronomical increase in the number of international treaties. This increase is largely the manifestation of the current use of treaties to codify existing international law and to create new international law.

An essential part of a treaty, like contracts, is that it must be formed between consenting states.

Advantages Treaties over Other Sources of International Law:

1. Definite content: The contents of treaties are relatively easy to determine. The fact that treaties are usually written agreements deliberately produced by states, means that what forms part of a treaty can easily be determined by reference to the written agreement.

2. Formal consent to be bound: Treaties represent an express consent by States to be bound to the terms of the treaty. It is like a binding contract between various parties. A ruling using the terms the parties in dispute themselves agreed to be bound is more likely to be accepted by the parties.

3. More familiar: Policy makes are more familiar with treaties than they are with other sources of law.

Disadvantages of Treaties in Relation to Customs:

1. Lesser applicability: Given that treaties require active consent to be formulated, it has lesser applicability when compared to custom. Customs do not require formal negotiation and express consent. For instance, the international custom of diplomatic immunity has had broad applicability than it would have if it were treaty.

Advantages of Soft Law over Treaties

Soft laws refer to agreements, norms, principles, and declarations that are not legally binding. These may include industry codes of conduct, UN General Assembly resolutions, concluding texts of international conferences.

1. Soft laws have low pre-agreement transaction costs: The treaty formation process can be expensive both in terms of time and capital.

Why Nations Enter into Treaties:

The primary reason for which States enter treaties is to obtain binding commitments from other States. According to Louis Henkin, ‘‘almost all nations observe . . . almost all of their [international] obligations almost all of the time.’’

Political scientists in the institutionalist school assert that States enter treaties for their mutual benefits. Dunnof concludes that “one advantage of treaties is that they may enable states to make their commitments credible.”

The formality associated with treaties are also used to signal the importance of the agreement and the significance of the terms or promises contained in the treaty. According to Dunnof et al, treaties “raise the political costs of noncompliance.” Thus, whilst States can choose to not comply with the terms contained in a treaty they are a party to, such act of non-compliance has immense negative effects on the non-complying State. The cost of non-compliance, is offset by the surety of compliance from other States as those States similarly try to not bear the negative consequences of non-compliance. A quid pro quo relationship.

What is the effect of non-compliance? A significant effect of non-compliance to the terms of a treaty is reputation damage. However, reputational damage from non-compliance is dependant on whether other countries have violated the treaty, the feasibility of adhering to the terms of treaty, or the ambiguity of the terms of treaty. Whilst some countries may be concerned about not appearing credible in the eyes of other countries, some countries simply do not care. Dunoff et al cites the example of sovereign debtors who do not wish to borrow again as less likely to care about their reputation of being worthy debtors.

However, when a country has a reputation for violating international treaties, such bad reputation affects how other willing other countries are to enter into quid pro quo agreements with a country with a bad reputation in honouring international agreements.

Another cost of non-compliance is that other States may impose sanctions on the non-conforming state.