Sources of International Law

Front Cover
Martinus Nijhoff Publishers, 1997 M05 21 - 564 pages
Many different, and even opposite, meanings are ascribed to the term 'sources' of international law. The author of this work goes back to the meaning of the term 'source' in general (spring or well) and analyses in detail the various sources of international law. He first explains the sources of general, and then those of particular international law. He starts with general principles of law, which is followed by common features of customary process of whatsoever kind, and then by general and by particular customary law. Custom will be followed by unilateral acts of States and with opposable situations in international law which are closely linked with this kind of sources of international law. The explanation ends with treaties in regard to which there are the least doctrinal controversies. The explanation cannot be quite homogeneous. There are still deep doctrinal misunderstandings in respect to general principles of law and of unilateral acts of States. The author therefore offers a critical analysis of representative views of other authors and tries to reach solutions to problems presented. He also gives a systematic explanation of recent pronouncements of international courts and tribunals with regard to customary law, and he examines the specific solutions prescribed in the 1969 Vienna Convention on the Law of Treaties.

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Contents

CHAPTER I
1
2 Lawcreating processes and lawdetermining agencies
8
CHAPTER II
14
5 St Thomas Aquinas on Eternal Divine natural
21
7 Vattels views of natural law
29
10 General principles of law in the Hague Conventions
41
12 A survey of practice of the two Hague Courts
53
recognized by civilized
68
57 Special case of acts of international organizations
275
UNILATERAL ACTS AND TREATIES 58 Introduction
278
59 Unilateral acts within the treatymaking and treatyexecuting process
279
60 Unilateral acts provided by treaties
282
VARIOUS CATEGORIES OF UNILATERAL ACTS IN RELATION TO INTERNATIONAL LAW 61 Introduction
283
62 Conditions of validity of a unilateral act
286
63 Promise
287
A special case Optionalclause system under Article 362 of the Statute of the Hague Court
306

15 State sovereignty v general principles of
74
16 The socalled fundamental principles
83
17 The rules of legal reasoning and legal principles
89
18 Analogy in international law
99
19 Dynamic elements in general principles of law
105
20 General principles of law and new problems of legal regulations
108
APPENDIX 21 General principles of law in transnational law
113
22 General principles of law in supranational law
126
23 Summing up
136
CHAPTER III
142
25 Two elements of customary legal rules
143
practice Practice by whom?
147
27 Density uniformity and consistency of practice
150
28 The element of time
152
29 The quality of practice
155
opinio juris sive necessitatis
162
31 Material sources and documentary evidences of customary law
174
custom as a social process
177
CHAPTER IV
179
34 Gradual customary process
185
35 Articulated customary process
189
36 Judicial decisions
192
37 Unilateral acts and attitudes of States
193
38 Resolutions of the UN General Assembly
194
39 Codification conventions
201
40 Law declaratory rules
204
41 Law crystallizing rules
207
42 Law generating rules
211
43 Contractual provisions in conventions on codification
215
44 Jus cogens in general customary international law
216
45 Jus dispositivum in general customary law
237
46 Summing up
240
CHAPTER V
243
48 Local custom
246
50 Special custom within treaty relations
250
51 Conclusion
252
CHAPTER VI
253
53 Development of basic legal concepts
254
54 Unilateral acts in modern doctrine and practice of international law
255
55 Summing up
270
B THE CAPACITY OF MAKING UNILATERAL ACTS 56 States and belligerents
274
65 Waiver
316
66 Unilateral acts creating new rights for States
325
67 Occupation of terra nullius
326
68 Prescription and historic titles
330
69 Unilateral acts in the present law of the sea
333
CHAPTER VII
339
71 Recognition
344
72 Protest
346
73 Acquiescence
348
CHAPTER VIII
355
75 The concept of treaty
357
76 The socalled political agreements
358
A PARTIES TO A TREATY 77 State
362
78 International organizations
366
79 Internationalized territories
377
80 Belligerents
384
81 Parties to a contract
393
B EFFECTS OF A TREATY 82 The principle pacta sunt servanda and its scope of application
394
83 Effects of a treaty upon its parties and their organs
403
84 Effects of a treaty in relations between its parties
408
85 Effects of a treaty upon thirds
413
TREATY AS A DYNAMIC SOURCE OF INTERNATIONAL LAW 86 Conflict of treaties relating to the same subjectmatter
423
87 Modification of treaties peaceful change
437
88 Suspension of the operation termination of and withdrawal from a treaty
447
89 Mutuus dissensus
452
Termination of a treaty by operation of its own clauses
455
91 Impossibility of performance
457
92 Material breach of a treaty
470
APPLICATION OF LEGAL RULES ON SOME TYPES OF TREATIES 93 On classifications of treaties
475
94 Written and oral agreements
477
95 Bilateral and multilateral treaties
483
96 Traitécontrat and traitéloi
489
97 Treaties constituting international organizations
496
98 The obligation to negotiate pactum de contrahendo
503
CHAPTER IX
515
100 Relationship between various sources especially between treaty and custom
517
SELECTED BIBLIOGRAPHY
525
TABLE OF CASES
536
INDEX OF AUTHORS CITED
544
SUBJECT INDEX
548
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