The starting point for any discussion of the sources of international law is usually Art. 38(1) of the Statute of the International Court of Justice, which describes the three types of material that should be considered international law. Treaties are the first listed, followed by international custom (or legal practice) and general principles of law (e.g., canon or Roman law
21 The sources of international law Rules of international law are found in the sources of public international law. These are listed in the first instance in Article 38 of the Statute of the ICJ and cover: international treaties; international custom, as evidence of a general practice accepted as law
This collection of chapters provides the most comprehensive study of the theory and practice on the contribution of international organisations and non-State actors to the formation of customary international law. It offers new practical and theoretical perspectives on one of the most complex questions about the making of international law, namely the possibility that actors other than states contribute to the making of customary international law. Notwithstanding the completion by the International Law Commission of its work on the identification of customary international law, the making of customary international law remains riddled with acute practical and theoretical controversies which have been left unresolved and which continue to be intensively debated in both practice and scholarship. Making extensively reference to the case-law of international law courts and tribunals as well as the practice of treaty-monitoring bodies while also engaging with the most recent scholarly work on customary international law, this new volume provides innovative tools and guidance to legal scholars, researchers in law, law students, lecturers in law, practitioners, legal advisers, judges, arbitrators, and counsels as well as tools to address contemporary questions of international law-making.
sources of international law, as well as proposals to extend them, and we use the international legal response to violence against women as a case study of the problems and potential of the sources of international law. The tension between feminist theoretical and pragmatic goals described in chapter 2 is evident in this discussion. While we argue that the accepted sources of international law sustain a
sources of international law in international legal thought and practice in Latin America. Afterwards, the attention turns to how this ambivalence manifests itself in the way in which the content is allocated to the concepts of international investment law like the international minimum standard and the standard of compensation. The chapter ends with a few concluding remarks on how
, transnational corporations, etc., presently participate in international law, as do indigenous peoples and minority groups. This ﬂexibility is reﬂected only to a limited extent in current articulations of sources of international law.6 The entities do not all participate in the same way: State rights are not the same as for 1 After N. Bobbio, The Age of Rights (Cambridge, Polity Press, 1996). Article 4.1 of the UN Charter. 3 In a vast literature, one of the best general accounts remains that by A. Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge
"It is the contention of this book that there was a notion of international law in the medieval period, and more specifically in the period 700 to 1200. It examines and analyses the ways and the extent to which such as system of rules was known and followed in the Middle Ages by exploring treaties as the main source of international law, and by following a known framework of evidencing it: that it was practised on a daily basis; that there was a reliance upon justification of action; that the majority of international legal rules were consistently obeyed; and finally, that it had the function to resolve disputed questions of fact and law.
This monograph further considers problems such as enforcement, deterrence, authority, and jurisdiction, considering carefully how they can be observed in the medieval evidence, and challenging traditional ideas over their role and function in the history of international law. This monograph then, attempts to make a leap forward in thinking about how rulers, communities, and political entities conducted diplomacy and regulated their interactions with each other in a period before fully fledged nation states.
will be whether IGOs, in exercising their autonomous competence, have the potential to produce laws in their own right, irrespective of whether their output then feeds into the traditional sources of international law – treaties, custom or general principles. If resolutions adopted by IGOs, matching certain legislative criteria, can be laws per se, it is unnecessary to wait to see if they are accepted in practice so as to become custom, but rather practice should be examined in order to evaluate the impact of those laws on the internal legal orders of organisations
malfunctioning of the dominant approach of custom as a ‘source’ of international law, and suggests avenues to refresh international lawyers’ reflections on customary international law. 1 Opinio juris and State practice in the dominant approach to customary international law Despite the widespread scholarly inclination to extract the two-element variant of the doctrine of customary law from Article 38 of the Statute of the Permanent Court of International Justice and the International Court of Justice, it can be defended that the two elements of custom, namely, practice
Commission plays in international law today, as it is argued below in this chapter, remains to be seen. 12 International Law Commission, A/CN.4/672 (n 3), 2/68, fn 6. 13 Sir RY Jennings , ‘ What Is International Law and How Do We Tell When We See It ’ in Martti Koskenniemi (ed), The Library of Essays in International Law: Sources of International Law ( Ashgate 1981 ) 60 . 14 International Law Commission, A/71/10 (n 7), 81. 15 ibid 101. 16 Once the General Assembly has taken action in relation to a final draft of the Commission, such as by