Sources Of International Law

20 Pages 5070 Words

Between the various sources of International Law there exists an obvious hierarchy, in which treaty holds undisputed authority. Discuss.

In an international system typified by the sovereign equality of states, above which exists no legislator or enforcer, much of international law emanates from the rules such states choose to be bound by. Treaties are a common method of doing this, but they are not the only one. Other sources of international law exist, and to suggestions that treaties hold undisputed authority are false. This essay shall begin with examining the statute of the International Court of Justice (ICJ). This Article indicates three primary sources of international law and some subsidiary sources. This will be followed by a brief description of each of the three main sources. Section 2 asserts that customary law holds equal status to treaty amongst the sources. This is seen through the operation of two principle maxims of interpretation; lex posterior derogat priori and lex specialis derogat generali. It will be shown that these maxims give preference to neither treaty nor custom, but treat them equally. Section 3 shall examine the concept of jus cogens norms in International Law. It shall be seen through both theoretical discussion and case law that jus cogens norms override both conventional (treaty) and customary law. They are principles that allow no derogation and nullify any treaty or custom with which there is conflict. However, it will be noted that the potential problems and difficulties associated with jus cogens norms has meant significant development has not been achieved. Nevertheless, it is seen how jus cogens norms sit atop the hierarchy of sources. Section 4 shall examine the source of law known as ‘General principles’. It shall be seen that though commonly and rightly considered to be subsidiary to conventional and customary law, this category can have implications which may limit their superiority. Ce...