Problem 2
Learning subjective
- What are the sources of international law?
- What is the law of treaty?
- How does a treaty compare to customary law?
- Comment on Marshalls argument
L1: What are the sources of international law
Sources of law determine the rules of legal society and like nation legal society, the
international legal society has its own set of rules
Legal sources enable legal subjects to distinguish between norms of a legal
character and those of a ‘merely’ political, moral or ethnic culture.
Article 38 of the Statute of the International Court of Justice
Lists the sources of international law
- International conventions, whether general or particular, establishing rules
expressly recognized by the contesting states
- International custom, as evidence of a general practice accepted as law
- The general principles of law recognized by civilized nations
- Subject to the provisions of Article 59, judicial decisions
Although this article is purely directed to the court, it is considered of general
relevance
The first three sources are law creating, because they create new rights and
obligations, whereas the latter two are law identifying since they merely apply and
clarify the context of the existing law
1. Conventions (treaties) as a legal source
A treaty is the most direct and formal way for states to create rights and obligations
under international law
- The most important legal sources within a given area of international law are
often treaty-based
- The treaty is the only instrument available to two or more states that want to
enter into some sort of legal relationship
- The legal basis of treaty-based obligations is state consent and a treaty can
therefore only create legal obligations for the consenting states
- Consent is decisive
- The effect of a treaty is expressed in the principle: pacta sunt servanda:
according to which states are bound to honor their treaty-based obligations
, Bilateral treaties: A treaty concludes by two states
Multilateral treaties: A treaty concluded by multiple states
- These often have general application and possess ‘law-making’ features
Constituent treaty: when a treaty establishes an international organization
2. Custom as a source of international law
Often in societies, the way things have always been done becomes the way that
things must be done (customary).
- The exact content of customary law may not be as detailed as treaty law, but
is based on the everyday interaction of states and therefore had the ability to
adapt to changing circumstances;
- However, custom is controversial, and volumes have been written on the
theoretical difficulties associated with the acceptance of custom as a source of
international law.
International customary law arises when a particular way of behaving is
- Objective element: Followed as a general practice among states AND
- Subjective element: accepted by those as legally binding
One of challenges is to identify the point in time when behavior (the custom)
ceases to be optional and becomes legally binding
- Customary law binds all states, including a state that has not taken part in the
formation of the practice
- Customary international law may also develop regionally between a particular
group of states
The objective element
- Consistent repetition of a particular behavior; meaning that for considerable
period of time stated have behaved in a certain (identical) manner, when
confronted with the same facts
- The question raises, what counts as acts of a state;
All acts count
- Physical acts: the conducts of military operations
- Verbal acts: press release (these acts must be public)
- Resolutions and declarations by international organizations
Learning subjective
- What are the sources of international law?
- What is the law of treaty?
- How does a treaty compare to customary law?
- Comment on Marshalls argument
L1: What are the sources of international law
Sources of law determine the rules of legal society and like nation legal society, the
international legal society has its own set of rules
Legal sources enable legal subjects to distinguish between norms of a legal
character and those of a ‘merely’ political, moral or ethnic culture.
Article 38 of the Statute of the International Court of Justice
Lists the sources of international law
- International conventions, whether general or particular, establishing rules
expressly recognized by the contesting states
- International custom, as evidence of a general practice accepted as law
- The general principles of law recognized by civilized nations
- Subject to the provisions of Article 59, judicial decisions
Although this article is purely directed to the court, it is considered of general
relevance
The first three sources are law creating, because they create new rights and
obligations, whereas the latter two are law identifying since they merely apply and
clarify the context of the existing law
1. Conventions (treaties) as a legal source
A treaty is the most direct and formal way for states to create rights and obligations
under international law
- The most important legal sources within a given area of international law are
often treaty-based
- The treaty is the only instrument available to two or more states that want to
enter into some sort of legal relationship
- The legal basis of treaty-based obligations is state consent and a treaty can
therefore only create legal obligations for the consenting states
- Consent is decisive
- The effect of a treaty is expressed in the principle: pacta sunt servanda:
according to which states are bound to honor their treaty-based obligations
, Bilateral treaties: A treaty concludes by two states
Multilateral treaties: A treaty concluded by multiple states
- These often have general application and possess ‘law-making’ features
Constituent treaty: when a treaty establishes an international organization
2. Custom as a source of international law
Often in societies, the way things have always been done becomes the way that
things must be done (customary).
- The exact content of customary law may not be as detailed as treaty law, but
is based on the everyday interaction of states and therefore had the ability to
adapt to changing circumstances;
- However, custom is controversial, and volumes have been written on the
theoretical difficulties associated with the acceptance of custom as a source of
international law.
International customary law arises when a particular way of behaving is
- Objective element: Followed as a general practice among states AND
- Subjective element: accepted by those as legally binding
One of challenges is to identify the point in time when behavior (the custom)
ceases to be optional and becomes legally binding
- Customary law binds all states, including a state that has not taken part in the
formation of the practice
- Customary international law may also develop regionally between a particular
group of states
The objective element
- Consistent repetition of a particular behavior; meaning that for considerable
period of time stated have behaved in a certain (identical) manner, when
confronted with the same facts
- The question raises, what counts as acts of a state;
All acts count
- Physical acts: the conducts of military operations
- Verbal acts: press release (these acts must be public)
- Resolutions and declarations by international organizations
