The making of International Law
3 important questions on The making of International Law
Consent-based or consensual system
Because states are sovereign and there is no authority above them it means that law can only be made with the consent of states.
Two elements of 'hierarchy' in art. 38 ICJ
- Judicial decisions and writing of most qualified publicists are subsidiary sources and art. 59 says there is no precedent effect.
- there is an agreement that the general principles fill in gaps so custom and treaties are stronger sources (because of consent)
Presumption of binding force
Normative utterances should be presumed to give rise to law, unless and until the opposite can somehow be proven.
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