Discuss The Rank Sequence Of Sources Of International Law

The sources of international law are a basic concept of international law. However, how to define it? Whether does the rate sequence between the sources exist? What is the rate sequence? All the problems have not been in the theoretical circle. What the basic reason is that the scholars adhere to different positions on philosophy of law. Three schools of international law, including natural law philosophy, empirical philosophy of law and social law philosophy put forward different views on the sources and rate sequences. However, contemporary international situation and international relations need a three-dimensional, more status, open system of sources of international law to constantly adapt to the new situation, to deal with the new problems brought by the development of globalization. Throughout the three schools, pluralism legal theory put forward by the social law philosophy happens to meet the demand today. According to the legal pluralism theory put forward by the social philosophy of law, the first-order and second-order specification norms are not simply co-exist but exist rank sequences. In the contemporary international situation, it is necessary to adhere to legal pluralism in response to numerous global problems, but also to determine the sequence of rank of the diverse sources of law to solve complex international practices. Pluralist legal theory of social philosophy of law undoubtedly gives sources of international law system construction a direction. Sources of international law system are not static. As the historical evolution of the international community, its composition and rank and have dynamic development. Only by dynamically grasping the changes of status and evolution of various origins of international law, it is impossible to fully and accurately determine the rank sequences of the international legal system. In the initial of international community, the most original source, customary law was used to adjust the current international relations, which was of great significance. However, due to the advocates of socialist countries as well as large numbers of the third world countries having entered on the international arena, the current number of members of the international community is far much more than that in customary law heyday. The position of customary law decreased:customary international law was broken by the emerging practice; the cases adjusted by customary international law were less and less in the emerging fields. Before middle ages, the number of treaties was extremely small. And they were limited to the restoration of peace, delineation of boundaries and other political matters. In modern international law, the number of treaties has greatly exceeded the number of customary law. Nowadays the legal relations between countries is mostly adjusted by the contemporary bilateral and multilateral treaties, not all regulated by customary international law. And, since the founding of the United Nations, international organizations and countries have concluded a number of treaties in various fields. General principles of law was brought into "the Statute of the Permanent Court" in1921,as a kind of blank complements as well as assistant sources for treaties and customary law. However they have been long dormant state whose applicable frequency is extremely rare. But this does not affect that they are still independently as a kind of sources of international law. As long as the new fields of international law have obvious loopholes, such general rules with its sources will be rejuvenated. In the1960s through the efforts of the developing countries and socialist countries, some of the basic rules of the traditional sources of law were raised to the higher level. And some certain norms adjusting the inter-State relations were given a higher rank than the basic treaties and general rules from customaries. So far jus cogens rules have been generated and added to the system of sources of international law, even received the highest rank. Recently in the process of developments of international law, a more striking phenomenon was emerged, namely the rise of much international soft law. International soft law both declares the common philosophy and objective of the international community today, and promotes the international legislation, which provides a viable solution to solve the problems in the field of international relations. However, the characteristics of its non-legally binding make it have to give way to force law, treaties, customary international law and general principles of law in the sources system. Diversified and stereo system of sources of international law has been constructed. It designs the rates of various sources in accordance with its binding strength, which successfully answer the confusion that the conflict among the various origins and provide a clear reference for the Magistrates of international judicial bodies to determine the sources of such cases. The first-order source of international law system is jus cogens norms with non-derogation mandatory; the second stage is the coexistence of three origins, namely treaties, customs and general principles of law. The conditions of the second-order sources or the dividing line between the two and three rates are independent judiciary applicability, the law binding on the subjects of international law but lack of non-derogation. There are just these three sources meeting such harsh conditions. The three origins are self-contained, equality. Although the general principles of law are supplement for treaties and customary law, it plays exactly the same role with the treaties and customary law and can independently provides substantive evidences for judges in the absence of treaties and customary provisions to be invoked. The third rate, that is broad international soft law, covering resolutions of international organizations, the court decisions, the theories of authoritative publicists and other legally binding literatures yet with some certain legal effect. The contemporary system of sources of international law such as the legal map Santos argued is three-dimensional, structured legal landscape drawn with the different size scales.