Senin, Maret 22, 2010


International Organization Assignment, December 26th 2009
Gracia Paramitha, 070710415

Introduction (The Emergence and Definition of International Law)
Speaking of law, it’s obviously defined as a legal rule and binding institution which make compliance or such control behavior. In international relations, there is international law which kindly different with national conventional law. According to Conway W. Handerson (2000), international law is the rules and norms that states, and other actors as subjects as law, feel an obligation to obey in their mutual relations and commonly do obey. International law can be meant as some regulation that manage relationship between states and other institutes, where the state and International Court of Justice (ICJ) controlled under UN Charter (Starke,1983). International law is also body of legal rules governing interaction between sovereign states (Public International Law) and the rights and duties of the citizens of sovereign states towards the citizens of other sovereign states-private international law (Business Dictionary, from It’s accessed on December 24th 2009). However, the nation conventional law is more about sovereignty and very strict regulations. To understand properly, there is table which explains the differences between international law and nation law:
Variable of differences Nation Law International Law
Source Some deal or consensus in domestic area National custom, internation treaty (from Europe)
Subject (Actor) Everything which bounds in one state State and non state
The power of law Very strict and forceful Tolérant, non-force, pacta sun servanda
Authority Clear and strict institution/apparatus There is no one single authority, no full power institution
In history, international law was from some custom from European countries. That custom means some rules or norms which manage human behavior/habit. The more people grow the more complex problems that must be controlled by legal and strict regulation. Therefore, some states were aware on the importance and role of international law. Those regulate all interactions beyond the states, either among states or states-non state relationship. Nowadays, the international conflict/ potential disputes were relied on the International Court of Justice (ICJ) and the International Criminal Court (ICC). Those are judicial arms of the UN which has no enforcement power, and can adjudicate only where both sides agree to abide by its decisions.
Based on article 38 (1) of the ICJ Statute, there were some primary function of ICJ in international organizations (Starke,1983). First, ICJ as International Convention, whether general or particular, establishing rules expressly recognized by the contesting states (Starke,1983). Second, International Custom, as evidence of a general practice accepted as law, represented of ICJ’s role (Starke,1983). Third, The General Principles of law recognized by civilized nations which include in ICJ’s body (Starke,1983). And the last, subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law (Starke,1983).
Source of International Law
General speaking, there are two main sources of international law, such as:
• Material: material/circumstances which form legal-binding norms, benchmarking of the behaviour of law.
• Formal: determine to procedure of law-making process (who and how to make law), and how the material law could be constituted
Based on Mochtar Kusumaatmadja, there were two types of source of international law, such as:
1. Primary source of international law:
a. international convention/treaty
Vienna Convention on the Law of Treaties (1969) Article 2 states:
“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”. By rephrasing the statement above, there are some requirements to make international treaty. First, there must be some actors/subject of international law  states (according to VCLT (1969) Article 2: 1a) and international organization (based on VCOI (1986) article 2:1a). Second, the treaty should be conducted by international law. Third, it has consequences of law. Fourth, it has a will to bind. And the last requirement is there should be resulted consensus which legally ratified.
Besides, there are some terms which used in UN Treaty Collection, such as: Treaty, Agreement, Convention, Charter, Arrangement, Protocol, Declaration, Memorandum of Understanding, Modus Vivendi, and Exchange of Note. There are also some categories of international treaty, such as: participant (Multilateral Treaty and Bilateral Treaty); structure (law making treaty and treaty contract); object (politic, economic); and validity (self executing and non-self executing). In bilateral treaties, the term should be defined as Treaty contract / Contractual treaties. It tends to be more source of “duty” than source of law. It isn’t arranged to create general principle which rule behaviour of parties and seems to be private contract. The examples of bilateral treaties are expedition treaty, security treaty. While in multilateral treaties, there is Law Making Treaty which creates “legal principles” and control international law directly. The instances are Treaty of Rome 1957 (European Economic Community), The UN Charter, UNCLOS 1982. And the legislative treaty is concluded by some states which purport to determine the law and obligation incumbent upon other states that are not parties.
b. customary international law
It’s the most fundamental role of international treaty. Article 38(1b) of ICJ statute: “International Custom, as evidence of a general practice accepted as law”. Customary international law contains of Opinio Juris; Duration; Uniformity and Consistency; and Generality. State practice: USSR, Breznev Doctrine (1968) Vs. US, Grenada Intervention (1983).

There is a process of customary international law:
International custom (1)

Customary international law (2)

International treaty (3)

International Law
c. general principle
According to ICJ Statue of Article 38(1)(c): “The General Principles of law recognized by civilized nations”, the general principle is defined as: general principle which is recognized by civilized states. The importance of general principle: to prevent non-liquet, give the way of ICJ to prepare general principle in the court, the position of ICJ is growing stronger, and the development of international law is increasing rapidly. The boundaries of general principle : Rules of procedure, basic principle of legal conduct (ex: good faith, res judicata,nemo judex in causa sua); Unarguable; incontrovertible; Universal. (Lord Walter Phillimore)
2. Subsidiary source of international law:
a. judicial decisions : ICJ, decision and advisory opinion; The Court of Justice of the European Communities; European Court of Human Rights; Arbitral Decision;
b. Teachings of the most highly qualified publicists: Mare liberum ( Hugo Grotius) Vs. Mare clausum (John Selden) (battle of books); Cornelis von Bynkershoek: terrae protestas finitur ubi finitur armorum vis.

Conclusion (individual opinion)
The international law has various sources and transformational process, which kindly conducted by International Court of Justice (ICJ) and International Criminal Court (ICC). This idealistic perspective is mutually related with global governance and democratically constructed in international relations. Compliance and peaceful world are the main purpose of international law which conducted in strong legal-binding institution like United Nations. However, in reality, some decision maker/parties frequently use this law as the tool to fulfill and maintain their interests, especially in term of political constellation. Even though realism people still believe that international law is delusion of manner, the existence of UN international law model is still properly develop and obeyed by all member states.

Handerson,Conway. W. 2000. International Relation: Conflict and Cooperation at The Turn of The 21st Century)
ICJ Statute ARTICLE 38
Kusumaatmadja,Mochtar.1989. Pengantar Hukum Internasional.Bandung: Bina Cipta.
Starke, J.G.1983. An Introductionto International Law. London: Butterwort & Co.
Vienna Convention on the Law of Treaties (1969) Article 2

Tidak ada komentar:

Posting Komentar