Questions on International Law

1. What are the sources of international law?Sources of international law help us understand what constitutes international law, and how international law is created. It refers to where states, organizations, individuals and the courts can finds principles of international law. Sources of international law can be divided into two main types, which are the primary sources and the subsidiary sources.

The article 38 of the statute of the international court of justice establishes the five main sources of international law. They are; International conventions, international custom, general principles of law recognized by the civilized nations, judicial decisions, and the most highly qualified juristic writings of the scholars.

The first three are referred as primary sources, and the last two are referred as the secondary sources. Regarding the growing rule of international organizations, recent scholars of international law include the resolutions and other acts of international governmental organizations such as the United Nations as sources of international law.

2. What are the critical differences between Transformation and Incorporation doctrines with regards to treaties? As International treaties are one of the three main sources of international law, most of the rules which states in the treaties are been accepted in the domestic law. This could be done by following either the doctrine of Transformation, or the doctrine of incorporation.

The doctrine of transformation stipulates that the rules of the treaties do not became part of the national law until they have been expressly adopted by the state. In contrast, by the doctrine of Incorporation, a state automatically adopts the treaty law as part of the national law. This doctrine is an automatic reception of the international law into domestic law without the formal needs for official legislation to sanction it and give effect to it.

3. What are the theories of recognition of a state?Since States are considered as the principal subjects in International Law, recognition of a sate is the formal acknowledgment of the status of an independent State by other existing states. Recognition of a State is more of a political concept than a legal concept because there are no specific rules for recognition of a State. There are mainly two theories relevant to the recognition, the constitutive and the declaratory theory.

The constitutive theory asserts that States and governments do not legally exist until recognised by the international community, and the declaratory theory adopts that States and governments gain in the international personality when they come into existence. The “declarative” theory defines a state as a person in international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and 4) a capacity to enter into relations with other states. By contrast, the constitutive theory of statehood defines a state as a person of international law only if it is recognized as sovereign by other states.

4. Write a short note on precautionary principle.The precautionary principle states if an action or policy has a suspected risk of causing harm to the public or to the environment, in the absence of scientific consensus that the action or policy is harmful, the burden of proof that it is not harmful falls on those taking an act. This principle allows policy makers to make discretionary decisions in situations where there is the possibility of harm from taking a particular course or making a certain decision when extensive scientific knowledge on the matter is lacking.

The principle implies that there is a social responsibility to protect the public from exposure to harm, when scientific investigation has found a plausible risk. These protections can be relaxed only if further scientific findings emerge that provide sound evidence that no harm will result. In some legal systems, as in the law of the European Union, the application of the precautionary principle has been made a statutory requirement.

5. Why is the United Nations so important in international society? United Nations is said to be the most important inter-governmental organisation in the international society, because of its role in world affairs. Due to its enormous contributions in maintaining international peace and security and promoting cooperation among states and international development, it is also known as the most representative organisation. It leads the international society on the establishment of a just and reasonable international political and economic order.

Moreover, the importance of the United Nations can be found in its headship in helping nations work together to traverse through poverty, hunger, diseases and illiteracy. It also assists in the maintenance of human rights and humanitarian assistance. As a result of its irreplaceable role by any other organisation in the betterment of international affairs, United Nation’s importance in the international society is recognized.