1) The Principles, Role and Nature of International Law

Question 1

Question:
What are the sources of international law as outlined in Article 38(1), ICJ Statute, and how do they function within the international legal system?
(Hint: Refer to treaties, custom, and general principles.)

Answer 1

Answer:
The sources of international law include:

Treaties: Written agreements between states or organizations that are legally binding (e.g., the UN Charter).
Customary International Law: Practices consistently followed by states out of a sense of legal obligation (opinio juris).
General Principles of Law: Principles common to major legal systems, such as good faith.
Subsidiary Sources: Judicial decisions and writings of eminent jurists clarify and interpret primary sources.

Full Text of Article 38(1), ICJ Statute:
“The Court shall apply… international conventions, international custom, general principles of law, and judicial decisions and teachings as subsidiary means.”

Question 2

How does the rule of law operate in international law, and why is it important for maintaining global order?
(Hint: Consider equality, sovereignty, and pacta sunt servanda.)

Answer 2

Answer:
The rule of law ensures that:

Sovereign Equality: All states are legally equal, regardless of power.
Predictability: Laws provide a framework for stable and consistent international relations.
Accountability: States are bound to their legal commitments under the principle of pacta sunt servanda ("agreements must be kept").

Full Text of Pacta Sunt Servanda (Vienna Convention, Article 26):
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

Connection:
The rule of law reinforces fairness and cooperation but faces challenges such as selective enforcement and unequal power dynamics.

Question 3

Question:
What mechanisms exist to enforce international law, and how do they operate within the decentralized international legal system?
(Hint: Consider sanctions, judicial bodies, and state compliance.)

Answer 3

Answer:
Enforcement mechanisms include:

Sanctions: Economic or diplomatic penalties for breaches.
Judicial Accountability: Courts such as the ICJ and ICC provide forums for dispute resolution and accountability.
State Compliance: The legitimacy and moral authority of international law encourage adherence, even without coercive mechanisms.

Full Text of Article 39, UN Charter:
“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

Connection:
These mechanisms reflect the collaborative nature of international law, relying on state consent and collective action to address violations.