19 The formal sources of International Law
How to Find Sources of International Law
It is sometimes said that international law is not law because it doesn't behave in the same way as domestic law, lacks enforcement and is not derived from legislative or other usual law-making sources. This argument is ongoing but it has been accepted by most that international law does exist and is used every day. So, how can you find the sources of international law? It's not hard to do and is a key foundation to understanding international law well.
Look to treaties first.Treaties are the main source of international law. Treaties can go by various names, such as international agreements, conventions, protocols etc. but they are in essence the same thing - a written international agreement concluded between two or more countries.
Be careful to ensure that your country has signedandratified the treaty in question before applying it to your domestic situation.Signature is only an indication of intent by a country to be bound to the treaty. Ratification is the point at which a country accepts its legal obligations under the treaty. Treaties only come into force when a specified number of countries have ratified it. Once in force, however, a treaty serves as a principal source of international law.
Consider custom.Custom comes into play when a country follows a law or legal principle consistently and uniformly in its everyday conduct, so as to indicate "state practice" (conduct). When this occurs, it tells the rest of the international community that this country is acting as if the international law or principle binds it. While a very useful source of international law (treaties often build on the foundation stones of custom), it can be very hard to establish universal practice. The Law of the Sea is a good example of state practice that is established and some that is not considered established. In addition, be aware that there is one principle of customary international law that applies no matter what:
- jus cogens- this refers to the rule that there are some laws that can never be violated. While there are few of these rules, the ones that do exist are very important ones, namely, the prohibitions on genocide, slavery and torture.
Be aware of the concept ofGeneral Principles of Law.These are said to be legal principles that are common to the majority of the world's legal systems. Equity is considered to be one such principle. However, it is important to note that this source of international law is considered to be very much under debate and is frequently questioned. Be aware of it and its limitations.
Read Article 38 of the Statute of the International Court of Justice.Here you will find what international lawyers call "subsidiary sources" of international law:
- Judicial decisions- although not a requirement to do so, international courts aim to follow the previous decisions of their own court and other international courts and tribunals. If they do follow precedent in this way, it may evidence growing acceptance of a principle or concept of international law.
- Writings of publicists- merely influential in the case of the writer being "highly influential" in the relevant international field. Generally cited in international courts.
Note that in the last example the "subsidiary sources" are not sources of international law in their own right but are influential in elucidating the content and interpretation of treaties and customary international law.
Learn these sources well in conjunction with their limitations as sources.That way, you will be able to write a coherent and convincing defence of international law in an exam or article.
- If you are not sure whether there is an international agreement regulating the area you are studying, go to the law library and look up references in general treatises and textbooks. If you do not find such books, ask your librarian.
- Countries may make reservations to treaties. This means that there are parts of a treaty to which they object or simply state they are unable to meet and that that part of the treaty does not apply to them. It's a little more complex than that, but this is the basic gist.
Video: 12_SOURCES OF INTERNATIONAL LAW & SOURCES OF INTERNATIONAL LAW
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