By: Sarfraz Saroya
International law devotes a great deal of attention to its sources. Scholars have produced a large body of work about both the conditions under which treaties, customs, or general principles of law bind actors and the hierarchy among the various doctrinal forms which might apply in a given instance. International law is made largely on a decentralized basis by the actions of the 193 States which make up the international community. Article 38 of the Statute of the International Court of Justice lists sources of international law on which the court may rely in its decisions. They are: treaties, customary international law, general principles of law that exist in most domestic legal systems and, as a subsidiary means, also judicial decisions and scholarly writings.
1. Customary International Law
Customary law is both the oldest source and the one which generates rules binding on all states. Customary law refers to the established practices of states that are supported by a subjective belief to be required by law. If a customary rule exists, it is binding on all states except where a state has persistently objected to this rule. Customary law is not a written source. A rule of customary law, e.g. requiring states to grant immunity to a visiting Head of State, is said to have two elements. First, there must be widespread and consistent state practice, i.e. States must, in general, have a practice of according immunity to a visiting Head of State. Secondly, there has to be what is called “opinio juris,” usually translated as “a belief in legal obligation, i.e. States must accord immunity because they believe they have a legal duty to do so.
A new rule of customary international law cannot be created unless both of these elements are present. Practice alone is not enough nor can a rule be created by opinio juris without actual practice.
Treaties (sometimes called agreements, conventions, exchanges of notes or protocols) between states – or sometimes between states and international organizations – are the other main source of international law.
Shaw observes that as a major source of international law, “treaties (or international conventions) are a modern and more deliberate method of creating international norms.”
Hence, the most important and most concrete sources of international law are bilateral and multilateral treaties. Multilateral treaties are usually prepared during long negotiations at diplomatic state conferences where a final treaty text is adopted and then opened for signature and ratification by states. When an agreed number of states have ratified the treaty, it enters into force and becomes binding on the member states.
However, a treaty is not a source of law so much as a source of obligation under law.
Read More: CHEMICAL WEAPONS AND THE INTERNATIONAL LAW
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