Stephen Vasciannie
INTERNATIONAL LAW is the law that governs relations between and among states. Particularly in the period since World War II, international law has also come to embrace matters concerning human rights within countries, so that in some contexts individuals may bring claims against their countries pursuant to international law. This is, of course, a salutary development, because some governments have been apt to abuse citizens without regard to any law whatsoever. International law helps to reduce the possibility that Governments can act with impunity.
But how do we identify international law? Sometimes we tend to confuse it with other things. Some people, for instance, confuse international law with morality. They wish to say that "so and so" is wrong, but instead, they say "so and so" is contrary to international law. Alternatively, persons advocating a certain perspective on a social issue may say "International law requires this conclusion", when in fact it does no such thing.
MORALITY
The persons who confuse international law with morality may well be sincere in their analysis - but sincerity does not amount to legal correctness. And sometimes, when they confuse the issues, they also confuse other people. How many people, when told that international law requires a particular result, will stop the speaker and say, "That is complete nonsense"? Very few, because not many people are lawyers, and even fewer profess to be international lawyers.
Incidentally, re a column 'Vasciannie's error' published last week, the error lies in the failure of people to distinguish between international law, on the one hand, and morality, on the other.
So then, how do we identify international law and distinguish it from other things? The answer to this question accepted by international lawyers is that we must look at Article 38, paragraph 1, of the Statute of the International Court of Justice. Article 38 (1) indicates in essence that the sources of international law are: treaties, customary law, general principles of law recognised by 'civilised nations', and as subsidiary means, judicial decisions and the writings of the most qualified international lawyers of various countries.
What then is a rule of international law? It is a rule that takes its validity and content from the items listed in Article 38(1). If you want to find out what international law says on a particular point, it is advisable to check, first of all, whether there is a treaty on the subject.
In some instances, however, you will have to look beyond the treaty rules because your country may not be party to the treaty, or because the treaty does not cover the issue you are considering. In those instances, you are apt to find that customary law will be helpful.
CUSTOMARY LAW
Customary law is, generally speaking, formed by the practice of states, together with what states believe they are doing when they follow a particular practice. In most cases, treaties and customary law will cover the point of international law that is in question. In rare instances, international tribunals deciding cases will also rely on general principles and the subsidiary sources of judicial decisions from municipal courts and learned writings.
The insistence that interna-tional lawyers must respect the sources of the international lawyer is sensible. If you do not follow an identified list of sources of international law, then anyone can assert that any thought amounts to a rule of law. The idea of sources provides us with an agreed reference point for decision making. This is taken for granted in domestic law cases. In Jamaica, for instance, you look at legislation and previous decisions for your law - you don't, or you shouldn't, go shouting that the law is as long as the judge's foot. If you do that, you are in error.
Stephen Vasciannie is a head of the Department of Government, UWI, Mona and a Deputy Solicitor General in the Attorney-General's Chambers.
