Source of International Law - Custom

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SOURCES OF INTERNATIONAL LAW – CUSTOM 1. Distinction between national and international law sources On the national plane, the formal sources of law are constitutions, legislative and administrative acts, and, in countries where the doctrine of precedent prevails (stare decisis), the decisions of judicial tribunals. On the international plane, there is no constitution or other fundamental document, no legislature with the power to promulgate laws, no administrative agencies to produce regulations and implement legislative enactments. Moreover, the ICJ lacks plenary power over international disputes, and its decisions are binding only on the states that are parties to the dispute. They have no precedential value because stare decisis is not a rule of international law. Art. 59 ICJ Statute “The decision of the Court has no binding force except between the parties and in respect to that particular case.” 2. Distinction between traditional and modern international law Traditional law - dominated by individualism, which made consent an essential part of law formation - treaties were formed through the express consent of the contracting States, while custom was said to reflect a tacit agreement. See West Rand Central Gold Mining; see also the S.S. Lotus case. Antelope Case, US Supreme Court, 1825 - The U.S. Supreme Court restated the principle of equality of nations and the principle that no state may impose its will on another. He then pointed out that the right to engage in slave trade (which was vested in all by the consent of all, can be divested only by consent; therefore, that right must remain lawful as to those (like Spain) who have not renounced to it. While this regime is still valid today, some new trends have emerged and attenuated States’ unfettered freedom. New trends - The Vienna Convention of 1969 on the Law of Treaties, followed
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