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Sources Of International Law - Essay Example

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Sources Of International Law

2. Customary law:
International customs are the oldest and the original source of international as well as of law in general.3
Article 38 (b) of the statute of international court of justice recognises international custom as evidence of general practice accepted as law.
Elements of customary law.
i) Long duration: - This is true of a custom in municipal law. However, this requirement
is not necessary in international law. Article 38 of the statute of the international court of justice directs the world court to apply international custom as evidence of a general
practice accepted as law. Emphasis is not given on a practice being repeated

3.Oppenheim's International Law, note 4 p 25.
ii) Uniformity and consistency: The custom should be uniform and consistent. In the asylum case4 the International Court of Justice observed that the rule invoked should be in accordance with a constant and uniform usage practiced by the states in question.
Article 38 of the statute of the court, which refers to international custom as evidence of a general practice, accepted as law.
In its judgment of 27 June, 1986 in the case concerning Military and paramilitary activities in and against Nicaragua5 while referring occasional violations of the principles of non- intervention the International Court of Justice observed:
"It is not to be expected that in the practice of states the application of the rules in question should have been perfect in the sense that states should have refrained, with complete consistence, from the use of force or from intervention in each other's internal affairs. The court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous...
Whenever an international court decides an international dispute its first endeavour is to find out whether there is international treaty, the decision of the court is based on that treaty. According to article 2 of the Vienna convention on the law of the Treaties, 1969, "A treaty is an agreement
ii) Uniformity and consistency: The custom should be uniform and consistent. In the asylum case4 the International Court of Justice observed that the rule invoked should be in accordance with a constant and uniform usage practiced by the states in question.
In its judgment of 27 June, 1986 in the case concerning Military and paramilitary activities in and against Nicaragua5 while referring occasional violations of the principles of non- intervention the International Court of Justice observed:
"It is not to be expected that in the practice of states the application of the rules in question should have been perfect in the sense that states should have refrained, with complete consistence, from the use of force or from intervention in each other's internal affairs. The court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule."6
iv) Opinion juris et necessitates: - According to arti ...Show more

Summary

Sources of international law can be defined as the actual materials from which an international lawyer determines the rule applicable to a given situation.1 The term 'Source' refers to methods or procedure by which international law is created.2
In the modern period, international treaties are the most important source of international law…
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