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March 2011

In attempting to discuss this issue, it would be pertinent to first and foremost expound on the meaning and character of law, sources of law, international law as an aspect of law, its meaning and its sources. In the long march and history of mankind a central role has always been played by an idea of regulation and law. This is informed by the idea that order is necessary when compared to chaos which is inimical to a just and stable development. Every society, whether it is large or small, powerful or weak, has created for itself a framework of principles within which to develop. Regardless of its form, every society fashions out acceptable standards of behaviour by spelling out what can be done, what cannot be done, permissible acts and forbidden acts. Law is that element which binds the members of the community together in their adherence to recognised values and standards. In all legal systems, the subject of law is an entity, which has enforceable rights and duties at the law1. It can be a company or an individual and both are defined as “legal person” by the law. Legal personality is the main clause for the entities to function or in other words to allege and enforce a claim. Law consists of a series of rules regulating behaviour and reflecting to some extent, the ideas and preoccupations of the society within which it functions. This means that with the needs in any particular community comes certain unique sets of regulations. Therefore, law is always peculiar to the community or society it is intended to regulate. The main characteristics of law are its binding force, the language of law and most importantly the psychological effect it produces on those it regulates. There are three main sources of law; these are customs, judicial precedents and legislations. Generally, law is a reflection of the customs of a set of people. Customs are the patterns of behaviour that are accepted as the general standards of behaviour. The important element of law is its psychological effect on the people who the law is meant to regulate. International law

http://www.wordnet.princeton.edu/perl/webwn, accessed on 01 march 2011


There are many contrasts between the laws from country to country because all societies have their own peculiar needs. In the same vein, there are many contrasts between law within a country (municipal law) and the law that operates outside and between nation-states. The necessity of law is most desired where there is any kind of integration and interaction between two or more interests. This is the foundation of international law which operates to regulate relations between international interests and subjects. International Law is the body of principles, rules, and standards that govern nations and other participants in international affairs in their relations with one another. Most international law consists of long-standing customs, provisions agreed to in treaties, and generally accepted principles of law recognized by nations. Some international law is also created by the rulings of international courts and organizations. The purposes of international law include resolution of problems of a regional or global scope (such as environmental pollution or global warming), regulation of areas outside the control of any one nation (such as outer space or the high seas), and adoption of common rules for multinational activities (such as air transport or postal service). International law also aims to maintain peaceful international relations when possible and resolve international tensions peacefully when they develop, to prevent needless suffering during wars, and to improve the human condition during peacetime. Sources of international law are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories. During the 19th century, it was recognised by legal positivists that a sovereign could limit its authority to act by consenting to an agreement according to the principle This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, and preserved in Article 38(1) of the 1946 Statute of the International Court of Justice3

Article 38(1) is generally recognised as a definitive statement of the sources of international law. It requires the Court to apply, among other things,

cases (1969). A treaty is based on the consent of the parties to it, is binding, and must be executed in good faith. The concept known by the Latin formula (“agreements must be kept”) is arguably the oldest principle of international law. Without such a rule, no international agreement would be binding or... 3 http://en.wikipedia.org/wiki/Sources_of_international_law#endnote_1



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International conventions "expressly recognized by the contesting states", and International custom, as evidence of a general practice accepted as law. The general principles of the law recognized by civilized nations. Judicial decisions and the most highly qualified juristic writings "as subsidiary means for the determination of rules of law".

Resolutions of international organizations as international conventions and customs
On the question of preference between sources of international law, rules established by treaty will take preference if such an instrument exists. It is also argued however that international treaties and international custom are sources of international law of equal validity4; this is that new custom may supersede older treaties and new treaties may override older custom. Certainly, judicial decisions and juristic writings are regarded as auxiliary sources of international law, whereas it is unclear whether the general principles of law recognized by 'civilized nations' should be recognized as a principal or auxiliary source of international law. It may be argued that the practice of international organizations, most notably that of the United Nations, as it appears in the resolutions of the Security Council and the General Assembly, are an additional source of international law, even though it is not mentioned as such in Article 38(1) of the 1946 Statute of the International Court of Justice. This in my view is owing to the fact that such resolutions of international organizations gradually come to become common practices producing some psychological effect thereby crystallizing into international customs. International law is constituted primarily by states and it is generally concerning the activities and the transactions of states. Fifty years ago, it was generally admitted that “states are the only legal persons of the international law”, but today conception is rather different, the participants can be regarded as; states, international organizations, regional organizations, non-governmental organizations, public companies, private companies and individuals.5 An international organization is an organization with an international membership, scope, or presence. There are two main types: International nongovernmental organizations (INGOs): non-governmental organizations (NGOs)
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that operate internationally. 6 These international organisations being subjects of international law also, by their practices and customs, form a source of international law especially as can regulate activities between such organizations and other international entities. One classic example is the Food and Agricultural Organization of the United Nations which has had some of its regulations and official reports enacted as international treaties and international law. Article 34(2) of the Statute of the International Court of Justice provides thus; “The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative”. This therefore means that the international court of justice in deciding matters before it is permitted to make reference to the resolutions of the international organizations in determining what the prescribed standard of behaviour should be. Another instance is in the determination of what amounts to state responsibility for a breach of international obligation. In line with this, the International Law Commission makes certain regulations and resolution on what should amount to state responsibility for international breach. Article one of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts provides thus; “every internationally wrongful act of a state entails the international responsibility of that state”. The article states the basic principle underlying the articles as a whole, which is that a breach of international law by a state entails its international responsibility. An internationally wrongful act of a state may consist in one or more actions or omissions or a combination of both. Whether there has been an intentionally wrongful act depends on the requirements of the obligation which is said to have been breached and secondly on the framework conditions for such an act.7 The permanent court of international justice applied this doctrine in a number of cases among which include; phosphates in morocco case8, the corfu channel case9, factory at Chorzow10. In the Trail smelter case of 1937 where in 1896, a smelter located in Trail, British Columbia, began operating und0er American ownership. However, in 1906, the Consolidated Mining and Smelting Company of Canada, Ltd. bought the

http://www.en.wikipedia.org/wiki/International_Organisations James Crawford, THE INTERNATIONAL LAW COMISSIONS’S ARTICLES ON STATE RESPONSIBILITY introduction, text and commentaries, Cambridge university press. Http://www.cambridge.org 8 1938, P.C.IJ., Series A/B, No. 74 9 I.C.J. Reports 1945, p.4 10 1928, P.C.I.J., Series A, No. 17, p.29


smelter plant in Trail. This company expanded the plant in size and in turn in its capacity to smelt zinc and lead ores. However, in 1925 and in 1927, two large, 400foot smoke stacks were built. There was a resulting increase in the amount of sulphur emitted into the air. Within that same time period the amount of sulphur released from the plant on a monthly basis almost doubled from what it had been in 1924. The amount of sulphur released in 1924 was about 4,700 tons per month. But in 1927, the amount had raised to9, 000 tons per month. These increases continued because this smelting operation of zinc and lead had become one of the largest in North America. Finally, the effect of these harmful amounts of sulphur being released was noticed in the State of Washington. The effects were noticeable because for every ton of sulphur released into the air there are two tons of sulphur dioxide created. It was this increase in sulphur dioxide that was detected through the rains. In the period between 1928 and 1935, the Government of the United States filed complaints with the Government of Canada that sulphur dioxide emissions from the Trail smelter had damaged the Columbia River Valley. On August 7, 1928, the issue was referred to the International Joint Commission by the United States and Canada (IJC-UC) for settlement. The IJC-UC decided on February 28, 1931that the Trail smelter should limit its sulphur dioxide emission sand that Canada should pay the United States US$350,000 as compensation for damages. More importantly, the arbitrator held that the state of Canada take responsibility for the acts of the international conduct of the smelter company. This goes to show that the resolutions of the international organisations reflect the accepted standards of behaviour or the members of the community in which the resolutions are intended to regulate.

International resolutions and treaties
The resolutions of international organizations also become treaties. Treaties can play the role of contracts between two or more parties, such as an extradition treaty or a defence pact. Treaties can also be legislation to regulate a particular aspect of international relations, or form the constitutions of international organisations. Whether or not all treaties can be regarded as sources of law, they are sources of obligation for the parties to them. Article 38(1)(a), which uses the term "international conventions", concentrates upon treaties as a source of contractual obligation but also


acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it is not formally a party. For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must either be capable of affecting non-parties or have consequences for parties more extensive than those specifically imposed by the treaty itself. The United Nation Universal Declaration of Human Rights11 is an example of a treaty, though signed by member states, forms an integral part of international law. 12 Most of these international treaties end up creating obligations that bind the international community regardless of whether such treaties were wholly signed. For instance, the United Nations Conference on the Human Environment, having met at Stockholm from 5 to 16 June 1972, having considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment. For instance, principle 2 of the Stockholm declaration provides that “the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate”. The court of justice in decided several cases with issues bordering on the environment relied on the obligations created in the treaty, though signed by few nations, as legally and internationally binding regulations.

In conclusion, though article 38(2) makes no mention of resolutions of international organisations as being sources of law, it is indeed clear that international law, just like law, regulates the interests and relations of the players on the international arena. The recognition of international organisations as subjects of international law brings to fore the fact that the resolutions of these international organisations must form a part of the legal regime that regulates the affairs of such international organisations.

G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948). On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights the full text of which appears in the following pages. Following this historic act the Assembly called upon all Member countries to publicize the text of the Declaration and "to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories."