Nature and Sources of International Law - Sources of international law

6 important questions on Nature and Sources of International Law - Sources of international law

What does the sources of IL mean?

How the rules and principes of IL are made and where those rules and principles are to be found.

What is the starting point of the sources of IL?

Art. 38 Statute of the International Court of Justice 1945.

What are the formal sources of IL?

  1. Treaties
  2. International custom
  3. General principles of Law
There is no hierarchy among the formal sources, especially between custom and treaty: it is accepted that the may coexist alongside each other.
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What is a helpful means to understand the sources in art. 38 of the ICJ Statute?

Is to understand the distinction between formal and material sources of law, by looking at the function of what the source is.
If the source is trying to create/define binding law: it is a formal sources.
If the source does nog create the law, but aims to define its content and scope, it is a material source only: it identifies the law but does not create the law. This category encompasses, in particular, judicial decisions and the scholarly writings of publicists (academics and international legal experts).

Additional sources of IL  are?

Unilateral acts of States: which can create obligations on those States, resolutions of organs of international organisations, in particular those of the UN General Assembly and Security Council and the work of the International Law Commission, a subsidiary organ of the General Assembly whose report aim at the codification and progressive development of IL. These are not enumerated in artikel 38 but are often relevant in the determination and identification of IL and may be further subsidiary sources.

Conclusion: the enduring relevance of source?

International law has traditionally derived the validity of its rules from State consent, and due to its decentralized character, its sources doctrine often appears fiendishly complex to the international law newcomer. However, the relative complexity of international legal thinking on sources should not mask the fact that, as with all legal systems, the classification of legal sources is driven by a search for relevance.

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