Skip to main content Accessibility help
×
Hostname: page-component-78c5997874-4rdpn Total loading time: 0 Render date: 2024-11-07T06:28:47.374Z Has data issue: false hasContentIssue false

8 - Law-making and sources

from Part III - Techniques and arenas

Published online by Cambridge University Press:  05 July 2015

Hilary Charlesworth
Affiliation:
Australian National University
James Crawford
Affiliation:
University of Cambridge
Martti Koskenniemi
Affiliation:
University of Helsinki
Get access

Summary

Introduction

International law is constantly under challenge as a legal system. Some scholars depict it as weak, mutable, unstable (Morgenthau 1948, 284), some as the mere product of states maximising their interests (Goldsmith and Posner 2005), some point to it as the framework of many mundane activities, for example as the basis of airline travel or international postal services (Henkin 1979, 29–30), while others explain its value as a ‘placemarker for justice’ or as a vehicle for the ‘regulative ideal of the international community’ (Koskenniemi 2007, 30). Perhaps because there is so much anxiety about whether international law can claim to be a branch of law, the topic of the making and sources of international law dominates most introductory works. It is as if pinning down the well-springs of international law will provide certainty and authority for the discipline.

Where does international law come from? The sources of international law are a complex tangle of ideas, commitments and aspirations. In national legal systems, law is typically regarded as the product of legislatures or court systems; it is relatively straightforward to identify the legal principle at stake in a dispute, even if there is debate about its application in a particular case. There are also institutions at the national level that enforce the law, such as police forces and civil authorities, reinforcing the significance of legal status. By contrast, modern international law is to some extent the product of the behaviour and agreement of states, and to some extent the product of abstract values such as ‘humanity’ (Peters 2009), ‘fairness’ (Franck 1998), or ‘communitarian values’ (Tasioulas 1996). Jurists debate the proper respective contributions of state consent and moral values to international law, although of course the two may sometimes coincide. However defined, this mixture is a volatile one, which, together with the less-certain enforcement of international law, makes it appear more negotiable and uncertain than domestic law.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Anghie, A. and Chimni, B., 2004. ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflict’, in Ratner, S. and Slaughter, A.-M. (eds.), The Methods of International Law, Washington, DC: The American Society of International Law, 185–210Google Scholar
Besson, S., 2010. ‘Theorizing the Sources of International Law’, in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law, Oxford University Press, 163–186Google Scholar
Boyle, A. and Chinkin, C., 2007. The Making of International Law, Oxford University PressGoogle Scholar
Brownlie, I., 2008. Principles of Public International Law, 7th edn., Oxford University PressGoogle Scholar
Charlesworth, H. and Chinkin, C., 2000. The Boundaries of International Law: A Feminist Analysis, Manchester University PressGoogle Scholar
Charney, J., 1993. ‘Universal International Law’, American Journal of International Law, 87, 529–551CrossRefGoogle Scholar
D’Amato, A., 1971. The Concept of Custom in International Law, Ithaca, NY: Cornell University PressGoogle Scholar
D’Amato, A., 2009. ‘Softness in International Law: A Self-serving Quest for New Legal Materials. A Reply to Jean d’Aspremont’, European Journal of International Law, 20, 897–910CrossRefGoogle Scholar
Franck, T., 1998. Fairness in International Law and Institutions, Oxford University PressCrossRefGoogle Scholar
Goldsmith, J. and Posner, E., 2005. The Limits of International Law, Oxford University PressGoogle Scholar
Henckaerts, J.-M., 2005. ‘Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict’, International Review of the Red Cross, 87, 175–212CrossRefGoogle Scholar
Henkin, L., 1979. How Nations Behave: Law and Foreign Policy, New York: Columbia University PressGoogle Scholar
Koskenniemi, M., 2005. From Apology to Utopia: The Structure of International Legal Argument. Reissue with a New Epilogue, Cambridge University PressGoogle Scholar
Koskenniemi, M., 2007. ‘The Fate of Public International Law: Between Technique and Politics’, Modern Law Review, 70, 1–30CrossRefGoogle Scholar
Koskenniemi, M., 2000. (ed.), Sources of International Law, Farnham: Ashgate
Klabbers, J., 1996. ‘The Redundancy of Soft Law’, Nordic Journal of International Law, 65, 167–182CrossRefGoogle Scholar
Lauterpacht, H., 1950. International Law and Human Rights, London: Stevens & SonsGoogle Scholar
Lauterpacht, H., 1958. The Development of International Law by the International Court, New York: PraegerGoogle Scholar
Morgenthau, H., 1948. Politics Among Nations: The Struggle for Power and Peace, New York: Alfred A. KnopfGoogle Scholar
Peters, A., 2009. ‘Humanity as the A and Ω of Sovereignty’, European Journal of International Law, 20, 513–544CrossRefGoogle Scholar
Roberts, A., 2001. ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’, American Journal of International Law, 95, 757–791CrossRefGoogle Scholar
Schachter, O., 1991. International Law in Theory and Practice, The Hague: Martinus NijhoffGoogle Scholar
Simma, B. and Alston, P., 1988. ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’, Australian Year Book of International Law, 12, 82–108Google Scholar
Tasioulas, J., 1996. ‘In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case’, Oxford Journal of Legal Studies, 16, 85–128CrossRefGoogle Scholar
Tasioulas, J., 2007. ‘Opinio Juris and the Genesis of Custom: A Solution to the “Paradox”’, Australian Year Book of International Law, 26, 199–206CrossRefGoogle Scholar
van Hoof, G., 1983. Rethinking the Sources of International Law, Deventer: KluwerGoogle Scholar
Weil, P., 1983. ‘Towards Relative Normativity in International Law?’, American Journal of International Law, 77, 413–442CrossRefGoogle Scholar

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×