Introduction
With the establishment of the International Court of Justice (hereinafter: ICJ) came the development of a statute that would govern the workings of ICJ. The primary objective of the court was to solve disputes that would arise between states, a phenomenon very prevalent in the 20th century. When the court renamed itself the International Court of Justice after the Second World War, it therefore also adopted the same statute that was created in 1922. The sources of international law have been fixed since 1922, and can be found in article 38(1). In this essay, I will argue why the sources of international law are in desperate need of an ‘update’, especially since the international community is close to hitting the 100-year mark of working with the same type of sources, in a world were conflicts and developments have been proven to be dynamic and ever changing.
First, a short paragraph will focus on the reason why the sources of international law remain unchanged under Article 38(1) and the positivist character of international law. Nevertheless, this perspective, as I argue, is outdated, and does not present and/or describe the state of a 21st century world. The second part will focus on this opinion. To do so, this paper focusses on two arguments, namely that (i) international law as created in the 1920’s focused on states, but the current international system sees an increasing number of non-state actors and, (ii) the development of fields in international relations asks for the development of international law. The paper will end with a small conclusion.
Positivist international law
The sources of international law are described in article 38(1) of the ICJ statute. These sources entail international conventions, international custom, general principles of law and judicial decisions and teachings of the most highly qualified publicists. Although the ICJ statute does not indicate a certain hierarchy in the sources of international law, many have regarded the order in which the sources are listed as “a rough hierarchy”. From this perspective also stems the understanding that treaties are the most authoritative sources of international law. This is also because, unlike customary law, judicial decisions or teachings, treaties are based on state consent. Their written form and clear legal structure in combination with the acceptance of states give a more certain legal basis. This hierarchy shows the “prevailing understanding of international law”. The formality and definition of treaties, as Cohen argues, are preferred above other, less tangible sources of law, and the sources listed in Article 38(1), treaties or other forms, display this clarity and positivist character even more. The sources in article 38(1) are accepted as sources of international law, and it can’t be disputed. This positivist character is what currently defines international law, and what has been defining it since the 1920’s.
Non-state actors
The fixed sources of international law don’t do justice to the changing nature of international life. With the development of international relations also comes the development of actors other than states. When the ICJ statute was created in 1922, the main actors in international relations were states. Since 1922, the world has gone through two World Wars and the Cold war, power relations have shifted accordingly and the number of states in the international system has increased. Especially the rise of non-state actors (NSA), who are unconnected to a particular state has changed international relations. On the one hand NSA’s created reports that can have a great influence in international relations. On the other hand, NSA’s also entail militia’s or rebels, who often have a significant influence in a conflict. In the case of the rebels and militia’s, it is (often) a positive thing that they can’t decide in the law-making process of international law, but for NGO’s this doesn’t apply, as their work can be of tremendous value for the development of new laws and perspectives.
There is some influence in the law-making process, and the fact that NSA’s don’t directly fall within scope of source of international law doesn’t mean that they don’t impact international law. As Ryngaert states in his work, NSA’s do influence to law-making agencies, which are states. Nevertheless, this is only an indirect influence, and NSA’s are still not able to make international law or policy.
Clear is that NSA’s play a very important role in international relations and consequential international law. The question is whether we should allow, for example, the agreements made by armed opposition groups or the work of NSA’s to be able to give rise to new laws, obligations and rights. Is the position of a widely known and accepted NGO different from a rebel group who partakes in a conflict? And how would we make a distinction between the two within the sources of international law? It is for these reasons that it is not yet so clear how to tackle the more practical problem in creating a new source of international law.
Human rights
Besides the rise of non-state actors in the field of international relations, there is also an ongoing increase of new fields in the international system.
One widely known document in international law is the Declaration of Human Rights (UDHR). It is adopted by the UNGA, but is debated whether it constitutes as binding international law. The UDHR, as it stipulates, is a declaration, a sign of goodwill but in international relations also a way to legitimize. However, even though it should not be underestimated what the influence of the UDHR is, it is not recognized as a source of international law under article 38 of the ICJ statute. It can be argued that declarations as the UDHR are a written testimony of customary law, which would mean that in an indirect way the declarations are a part of article 38. As seen in the case of non-state actors in international law, here too it is only an indirect influence of the UDHR on international law. Although I don’t want to argue that this indirect influence is bad, it does show the inefficiency of such a system: was it ever the purpose of international law to, with every new development, try to file the new source under the existing ones? Moreover, the seemingly present hierarchy in the sources would result in human rights being categorized under customary law (if they fulfill those requirements), having a position that might be regarded as weaker than treaty based law. In my opinion, the international community is missing the importance of international law and its sources. In 1922, the ICJ statute was up-to date, focusing on conflicts between states, but even during the 20th century it was proven how fast changing international relations can be.
Conclusion
Article 38 is the basis of international law, as it lays down the sources it provides clarity and strength to its users. Nevertheless, the sources of international law need to develop according to the changes in international relations, especially with the rise of non-state actors and human rights. International law is currently state centered, in accordance with international treaties. This state centered perspective neglects the importance of non-state actors in the international field, as NGO’s have an indirect way of influencing the international arena and law by reporting on, advising and making agreements with states. However, since their work doesn’t conform article 38 of the ICJ statute, they aren’t able to exercise any direct influence.
Furthermore, the development of new fields in international law and the fact that very important fields, like human rights, are based on non-binding declarations rather than binding treaties prohibits international law from effectively dealing with current conflicts and problems. It is again only an indirect form of influencing international law.
To conclude, the current approach to international law is positivist based. Written law is strong law. With this comes that article 38 restricts the inclusion of new sources, like non-state actor created agreements or reports and the very important UDHR. To be able to deal with the international world of the 21st century, where non-state actors and human rights are very important topics, the sources of international law should change accordingly.