sources of international law
CHAPTER – I INTRODUCTION
The sources of international law are not the same as those in domestic law. The two major sources creating legally binding rules of international law are treaty and custom. In domestic law the question of the source of a rule or law is seldom controversial. Common law systems rely upon statutes and the decisions to be found in court judgments for evidence of the existence of the rule or law; civil law systems rely upon the appropriate legislation or Codes. It is rarely necessary in either system to inquire whether a legal rule is in fact a legal rule and its existence, if not its interpretation, will be uncontroversial. Exceptionally a further question may arise as to the legitimacy of the rule. If it does it will usually concern the status of the rule that might be affected by procedural defects, or be beyond the power of the body that purported to create it. When such a question does arise there are other rules and procedures that allow for the testing of the validity of the rule in question.1
Various authors have described such domestic systems in terms of primary and secondary rules. The rules that simply govern conduct are the primary rules, while the ‘rules about the rules’ (that is, those used to determine their legitimacy) are said to be secondary. International law presents different problems, which is why all international law textbooks have a section devoted to the question of sources.2 Thus questions relating to the secondary rules are not only more frequent, but also more difficult to resolve. Uncertainty abounds in international law and customary international law is no exception. Not only is there uncertainty surrounding the exact nature of the two elements considered necessary for custom-formation - state practice and opinio juris. We also do not know how custom-formation works. It is not clear what precisely ‘state practice’ is,
The sources of international law are not the same as those in domestic law. The two major sources creating legally binding rules of international law are treaty and custom. In domestic law the question of the source of a rule or law is seldom controversial. Common law systems rely upon statutes and the decisions to be found in court judgments for evidence of the existence of the rule or law; civil law systems rely upon the appropriate legislation or Codes. It is rarely necessary in either system to inquire whether a legal rule is in fact a legal rule and its existence, if not its interpretation, will be uncontroversial. Exceptionally a further question may arise as to the legitimacy of the rule. If it does it will usually concern the status of the rule that might be affected by procedural defects, or be beyond the power of the body that purported to create it. When such a question does arise there are other rules and procedures that allow for the testing of the validity of the rule in question.1
Various authors have described such domestic systems in terms of primary and secondary rules. The rules that simply govern conduct are the primary rules, while the ‘rules about the rules’ (that is, those used to determine their legitimacy) are said to be secondary. International law presents different problems, which is why all international law textbooks have a section devoted to the question of sources.2 Thus questions relating to the secondary rules are not only more frequent, but also more difficult to resolve. Uncertainty abounds in international law and customary international law is no exception. Not only is there uncertainty surrounding the exact nature of the two elements considered necessary for custom-formation - state practice and opinio juris. We also do not know how custom-formation works. It is not clear what precisely ‘state practice’ is,