International lawmaking: other law-creating processes (part I)

Custom and treaties constitute the two most important sources of international law. They are envisaged by two basic 'constitutional' rules of the international community, which lie at the very apex of the legal order.

Other sources of international law exist. Article 38 mentions two of them (general principles of law recognized by civilized nations and judicial decisions).

There are other sources to which that provision makes no reference, but which are nonetheless envisaged by international law and applied by the ICJ itself: unilateral acts of States creating rules, general principles of international law and binding decisions of international organizations.

Some of the above sources may be termed 'primary’, in that they are contemplated by general international law: custom, treaties, unilateral acts of States creating rules of conduct, general principles of international law. Binding decisions of international organizations, as well as judicial decisions made ex aequo et bono are ‘secondary’ sources, because they are provided for by rules produced by primary sources (treaties).

XI. Read the text and decide whether the statements are true or false.

1. Some sources of International Lawmaking may be termed “primary”; they are custom, treaties, judicial decisions, unilateral acts of States.

2. Some treaties grant international courts and tribunals the power to make decisions based on existing law and principles of equity.

3. International law encompasses subsidiary sources such as norm-setting process in addition to the rule produced by a primary or secondary source.

4. The ICJ has gone so far as, in fact, to set new international rules in spite of its lack of a formal power to do so.

5. Both “soft law” and “hard law” are a body of resolutions created within international organisations.

6. Taking into consideration that “soft law” relates to human rights, economic relations and protection of environment, it’s not still reasonable to think that it gradually may turn into law proper.

International lawmaking: other law-creating processes (part II)

That secondary sources of law are hedged around with these limitations is quite understandable. States only accept being bound by written rules other than those based on consent, if they have previously accepted the norm-creating process through a treaty, that is, have previously manifested in writing their willingness to be bound in future by rules set by an international body.

Some treaties grant, international courts and tribunals the power to make decisions based not on existing law, but rather on principles of equity. This power is also laid down in Article 38.2 of the ICJ Statute, although States have never granted the Court specific jurisdiction to make decisions ex aequo et bono.

In addition to primary and secondary sources of law, international law also encompasses subsidiary sources. These are norm-setting processes that bring about rules to which recourse may only be had if and when no rule produced by a primary or secondary source (treaties, customs, unilateral acts giving birth to obligations proper, general principles of international law, and so on) regulates a certain matter.

The ICJ has even gone so far as, in fact, to set new international rules, in spite of its aforementioned lack of a formal power to do so. As one distinguished commentator noted,⁵⁸ this happened when the ICJ set out the implied powers doctrine whereby international organizations may be deemed to pos­sess all the powers necessary for the fulfilment of their functions or goals (Reparations for Injuries};⁵⁹ developed a new regime of reservations to treaties.

SOFT LAW

In recent years a new phenomenon has taken shape in the international community: the formation of what has come to be termed 'soft law' (as opposed to 'hard law', which makes up international law proper). This is a body of standards, commitments, joint statements, or declarations of policy or intention.

These instruments or documents have three major features in common. First, they are indicative of the modern trends emerging in the world community, where international organizations or other collective bodies have the task pf promoting action on matters of general concern. Second, they deal with matters that reflect new concerns of the international community, to which previously this community was not sensitive or not sufficiently alert. Third, for political, economic, or other reason, it is, however hard for States to reach full convergence of views and standards on these matters so as to agree upon legally binding commitments. However, they may thus lay the ground or constitute the building blocks, for the gradual formation of customary rule or treaty.

(Mind these word combinations.)

To be hedged around with -быть окруженным

Principles of equity -принципы права справедливости

Subsidiary sources -второстепенные источники

To be envisaged by -рассматриваться кем-либо

To be contemplated -считаться, рассматриваться