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Sources Of Law Essay

Law Notes > Public International Law Notes

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Question: The sources of International Law have largely remained unchanged for the last 85 years - discuss. The term "sources of International Law" may refer to the formal, or material, sources of law. This terminology, used by Schwarzenberger, is explained by Salmond: "a formal source is that from which a rule of law derives its force and validity...material sources are those from which is derived the matter". For example, customary international law (CIL) is the formal source, while "state practice" is the material source, elucidating the content of the rule. No attempt shall be made to analyse every development in the material sources of law: this would be a task of great magnitude: instead, the focus of this work is the formal sources of law. We will examine 2 "changes" in international law over the last 85 years - the UN and its GA resolutions and the inclusion of ius cogens in the Vienna Convention on the Law of Treaties (VCLT). After analysing the traditional position that GA resolutions and ius cogens do not represent a new source of law, but constitute CIL, it will be agreed GA resolutions are not new sources. However, it is contended that ius cogens are a separate source of law, as it does not fall within the existing categories. It does not represent a "change" to the sources of international law, despite its omission from the list in the Statute of the ICJ, as it was always a source of obligation in international law Below is a summary of art.38 of the Statute of the ICJ: by identifying the exclusive list of sources of law that the ICJ may apply, we may address the question of whether the sources have changed:

1. The Court...shall apply: a. international conventions b. international custom (state practice + opinio juris) c. the general principles of law recognized by civilized nations d. judicial decisions and the teachings of the most highly qualified publicists1 We will examine 2 "changes2" in international law: 1) GA resolutions and 2) ius cogens. These are certainly additions to the material sources of international law; this work addresses whether they are also additions to the formal sources.

1 2

subsidiary means for the determination of rules of law The change noted here is the creation of the UN and the mention of ius cogens in the VCLT

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