EJIL: Talk! - Blog of the European Journal of International Law
Unlike national or domestic law, international law is not set down in any legislation approved by a parliament. Even multilateral treaties do not apply to all states, but only to those which have consented to be so bound, by signing and ratifying or acceding to them. As a result, the precise rules of international law are often more difficult to identify than national laws, and may be found in a variety of sources.
Article 38 of the Statute of the International Court of Justice directs the Court to apply the following sources of law in deciding disputes:. Widely accepted multilateral treaties, such as the Vienna Convention on the Law of Treaties itself, are often taken as firm indicators of the content of customary international law on the topic. The Irish Treaty Series contains further information on treaties and a database of treaties to which Ireland is a party.
Section of International Law
In the absence of a treaty governing relations between two or more states on a particular topic, what is important is evidence of the existence of consensus among states as to what the law should be, or, in other words, state practice combined with recognition that a certain practice is obligatory. If sufficiently widespread and consistent, such practice and consensus may constitute customary international law. However, as with all matters of evidence, the weight which can be given to a particular statement varies greatly depending on the circumstances in which it was made.
Apart from decisions of international judicial bodies, decisions of a national court may amount to a statement of what that court considers to be international law on a particular matter. Such a decision would only carry weight as evidence of international law where the court is of very high standing and where the international law issue is central to the case and receives careful consideration.
In addition, decisions of national courts may in themselves be evidence of state practice on a particular topic. In an important early case, The Lotus the Permanent Court of International Justice examined decisions of French national courts in order to discover what the state practice of France was on the subject at hand.
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