Sources of International Law
Terms in this set (22)
Public International Law
The terms given to the laws governing and determining the rights of independent nations during war or peace.
Public International Law by PCIJ, The Lotus SS Case
International law governs relations between independent states. The rules of law binding upon states, therefore, emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these coexisting independent communities or with a view to the achievement of common aims.
Types of Sources of Law
Formal and Material Sources
Material source is the place, normally a written document, where the teems of the rule can be found conntinently stated.
Formal Source is the legal element that gives to the rule its quality as law.
Types of International law defined by Oppenheim's International Law
Treaties are one formal source, and custom is another: thus, for example, the formal source of a particular rule may be custom, although its material source may be found in a bilateral treaty concluded many years previously, or in some states's unilateral declaration.
Article 38-Statute of the International Court of Justice
a. International Conventions
b. International Custom
c. General Principles of Law
d. Judicial Decision and the Teachings of the most Highly Qualified Publicists
ICJ-Article 38; Section A
International conventions, whether general or particular, establishing rules expressly recognized by the contesting states.
ICJ-Article 38; Section B
International Custom, as evidence of a general practice accepted as law.
ICJ-Article 38; Section C
The general principles of law recognized by civilized nation;
ICJ-Article 38; Section D
Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Treaties are the most certain source of law. We need only interpret the provisions of the treaty.
Treaties can be called as agreementsm conventions, convenants, protocals and exchanges of notes.
Customary law tends to be more substantive. It requires widespread consistent practice.
Firm Law, otherwise known as Lex Lata, are the rules that come from the law-making process from Article 39.1 (a)-(c) of ICJ.
Soft Law, otherwise known as Lex Ferenda, comes from the instruments that not directly enforceable in domestic or international tribunal but are still enforceable.
Basic Principle of Law of Treaties
Pacta Sunt Servanda which means every treaty in force is binding upon the parties to it and must be performed by them in good faith.
Types of Treaties
1. Law-Making Treaties
3. Treaties Codifying of existing Customary Law
This type of treaties declare what the law is or should be on a particular case.
Bilateral or multilateral treaties, that do not create any type of general ruling in international law but creates special rights or obligations like private law contracts.
Treaties Codifying of existing Customary Law
This type of treaties just codify already widely accepted customary law; or sometimes turn a treaty to a customary law because of it wide acceptance by states.
Ratification or depositing an instrument of accession shows that the state has accepted a treaty and is willingly binded to the requirements stated in a treaty.
Party to the Treaty
States that have consented on joining a treaty and that are now legally bound to a treaty by International law.
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Sources of International Law
Sources of international Law