International Law: Hierarchy and Applicability of Sources

This discussion forum post explores the sources and hierarchy of international law, with a focus on treaties and customary international law. The post begins by defining customary international law and its relationship to treaties, highlighting that both are primary sources of international law, despite varying opinions on the specific rules. The author then delves into the applicability of treaty rules, noting that treaties are binding on states that become parties and can codify or innovate customary law. The discussion addresses informal and material hierarchies of sources, including jus cogens, which are peremptory norms. The post concludes by emphasizing the importance of custom and treaties, as well as the general principles recognized by civilized nations and the status of jus cogens in international law. The author also provides a summary post that includes references and personal viewpoints on the topic.

DISCUSSION FORUM

TABLE OF CONTENTS
INITIAL POST ...............................................................................................................................1
MAIN BODY ..................................................................................................................................2
CONCLUSION ...............................................................................................................................4
SUMMARY POST .........................................................................................................................5

INITIAL POST
Customary international laws are part of the international laws that principles of the
custom. With the general treaties and the principle of laws, customs are considered by
International Court of the Jurists, Justice, UN and member states among primary sources of the
international laws. Governments accept existence of the customary international laws but there
are varying opinions on the rules contained. It consists of the rules and laws derived from
consistent conduct of the States that act out of belief that it is requirement of law to act in that
manner.
In the international law, no hierarchy of the rules or sources is there as between two
primary process of law creation which are treaty and custom. These processes and set of rules
created by them have equal status and rank. Reason for state of the affairs can be referred that
States do not intends to place the limitation over sovereign powers which are not implicitly or
expressly by them. Special class of the general rules which are made by the custom are endowed
with special legal forces are peremptory in the nature and it makes up jus cogens, in this they
could not be derogated from the treaty. If it is there derogating rules could be declared void and
null. Therefore the peremptory norms have status and rank superior from all other rules of
international community.
Discipline of the international laws like the academic disciplines are built around set of
the accepted intuitions, histories and truths. Many of the legal scholars considers it as central fact
of the international laws and starting point to theorize the international laws. The conventional
accounts of the international laws. There are many scholars who tends to express the preferences
on particular sources as these sources have brought to possess the specific qualities or also
uphold the certain values that are deemed desirable.
REFERENCES
Chimni, B. S., 2018. Customary international law: A third world perspective. American Journal
of International Law. 112(1). pp.1-46.
Crootof, R., 2016. Change without consent: how customary international law modifies
treaties. Yale J. Int'l L.. 41. p.237.
Dodge, W. S., 2017. Customary International Law, Change, and the Constitution. Geo. LJ. 106.
p.1559.
1

CUSTOMARY INTERNATIONAL LAWS
The topic in the current discussion is about issues in hierarchies and the applicability of
sources of international law. It is considered that the treaties also known as conventions,
agreements or protocols between the States and also with international organisations which are
main source of the law. It is considered strictly treaty is not source of the law as could be
described as source of the obligation in law. The treaties bind only States that become its parties
and choice are independent for becoming a party to it or not (Dumberry, 2018). Treaty is binding
over the States due to rule of the customary international laws that requires all the States to
comply with the treaties. This main reason why treaty is described accurately as source of
obligations under the law.
There are number of treaties which are important as the authoritative statements of the
customary law. Treaty is negotiated freely between large number of the States and considers
writing down the unwritten rules of the customary laws. It is obviously case where the treaty
provision has been intended as codificatory of existing laws. In my view Vienna Convention on
Law of the Treaties is good example of it. Less than half of States in world are the parties but the
every court that has considered matter had treated the main provisions of treaty codifying the
customary laws and due to this treated as applicable to all the States whether or not they are
parties to Convention.
It consider that in the theoretical aspects where treaty provisions codifies rule of the
customary laws, source of the laws is original practice and also provisions of treaty are merely
evidence. It is generally overlooks fact that the writing of unwritten rules causes change in the
original rule.
Applicability of Treaty Rules
Since that, everyone looks at written provisions and debates regarding extent of
applicability of rule revolves mainly around interpretation of the written text than analysis of
underlying practice (Dumberry, 2019).
REFERENCES
Dumberry, P., 2017. Has the fair and equitable treatment standard become a rule of customary
international law?. Journal of International Dispute Settlement. 8(1). pp.155-178.
Dumberry, P., 2018. The formation and identification of rules of customary international law in
international investment law(Vol. 119). Cambridge University Press.
2

Moreover where the treaty provisions are not intended as codificatory but instead
innovation framed for changing rule and can become part of the customary law if accepted in the
practice. Short passage of time is necessarily not or itself bar to formation of new rules of the
customary international laws based on what was pure original conventional rule, indispensable
requirements will be as given in the question and it could be a State practice, inclusive of the
states interests of whom are affected specially, needs to be virtually uniform and extensive in
sense of provisions invoked. It should be occurred in way to show the general recognition that
rule of legal obligations or laws are involved.
The conventional account of the international law making depicts uncoordinated and
eclectic systems where the States as the sovereign equals and create the rules for own using
different processes and techniques which could be engaged simultaneously or also in competition
with each other. The sources of international laws have equal status and rank.
Functional equivalence of the sources shall not obscure fact that the international legal
practices and thoughts are replete with the different forms of the hierarchies, that are not
essentially acknowledged, they nevertheless runs deep in system and also inform ways through
which the international laws are conceptualised applied and made. There are mainly two types of
the sources hierarchy. First types of the hierarchy could be referred as informal hierarchies of the
pre- eminence. The informal hierarchy stem from fact that, this it will acknowledging formal or
functional equivalence of the sources.
The sources of Hierarchy
The hierarchies are transient and soft that depends very much on the circumstances,
contexts, identity of legal subjects and project which they could pursue. The processes are not
intrinsically superior to other. There is no constitution prevailing on the ordinary statutes, also
the statutory laws are not superior from common laws and no decisions of the high courts are
binding over decisions of the lower courts.
REFERENCES
McLachlan, C., 2016. Is There an Evolving Customary International Law on Investment?. ICSID
Review-Foreign Investment Law Journal. 31(2). pp.257-269.
Parlett, K., 2016. Claims under Customary International Law in ICSID Arbitration. ICSID
Review-Foreign Investment Law Journal. 31(2). pp.434-456.
Design of the International Agreements. 2020 .[Online] Available trough:
<https://academic.oup.com/ejil/article/16/4/579/381032>
3

Second source hierarchy are not concerned with normative worth of the individual sources that
way through which it operates in the practice. It stems from fact that the international laws
making processes that structurally favours the particular voices and the experiences while
marginalising the others. Despite the broad commitments to the legislative equalities for making
of the international laws. The material hierarchies, but is not exclusive for the international laws
pervasive in international order and fact that there is no formal, also pre determined hierarchies
among the recognised the sources of the international laws, no way indicate international systems
is leveled playing the field (Rosello, 2017). Making of the international laws are characterised by
the powerful hierarchy of the influence. The hierarchies stated are not the hierarchies between or
of recognised manifestation of the international laws.
CONCLUSION
Custom and treaties are important sources of the international laws, mentioned in the
Article 38 of ICJ Statute could not be ignored. The general principles recognised by the civilised
nations which is third source is mentioned seldom in the judgements. It is employed widely
where international tribunal or ICJ thinks of adopting legal concepts from particular legal
system. In reality large number of the States agree upon provisions of treaty which itself is
important piece of the State practice (Parlett, 2016). If these states and other apply subsequently
treaty provisions where especially states are not party to treaty and it could become quickly part
of the customary international laws.
There is always controversial question about hierarchy of norm in the international law.
The Article 38 have no reference to hierarchy but is possible for discerning the elements of
hierarchy in various respect. It has been acknowledged that few rules of the international law
have fundamental importance and have status of the jus cogens which is the peremptory norm
that do not permits derogation. Sates could always agree for departing from rules of the
customary international laws, but are not allowed to vary or depart from rule of the jus cogens.
REFERENCES
Petersen, N., 2017. The International Court of Justice and the judicial politics of identifying
customary international law. European Journal of International Law. 28(2). pp.357-
385.
4

Rosello, M., 2017. Cooperation and unregulated fishing: interactions between customary
international law, and the European Union IUU fishing regulation. Marine Policy. 84.
pp.306-312.
Therefore treaty that conflicts with the jus cogens is void and rule would prevail over the
inconsistent rules of the international laws.
There are certain rules which bear status of the jus cogens and criteria to achieve this
status is strict. It near to universal acceptance and not merely as rule but rule from where
derogation is not permitted. Situations of conflicts are rare and suggestions about existence of
such conflicts needs to be scrutinised carefully. It could be concluded that treaty will prevail over
the customary laws between parties of treaty but it would not affect rights of the States not a
party to treaty. Thus there is no strong sense of the hierarchy between customary laws and treaty,
contrary to something which is alleged sometimes.
SUMMARY POST
Initially I would be like to the peers__________ and the student's tutor _____ for the
deeper analysis and discussion in discussion forum.
I have discussed about the treaty and customs as sources in the international laws and also issues
of hierarchy of norm. I consider that treaties form basis of the majority parts in international law.
It serves for satisfying fundamental needs of the States for regulate the consent issues related to
common concerns and for brining stability in mutual relations. It is also considered as instrument
to ensure reliability, stability and the order in customary international relationship. In this treaties
are essential elements of the international security and peace.
Customary international laws are not written source and rules requires grant of immunity
to Head of the State. There needs to be consistent and widespread State practice and must also
have opinio juris that is translated as belief in the legal obligation. New rule of the customary
laws could not be created unless above elements are existing.
REFERENCES
Ryngaert, C. M. and Siccama, D. W. H., 2018. Ascertaining Customary International Law: An
Inquiry into the Methods Used by Domestic Courts. Netherlands International Law
Review. 65(1). pp.1-25.
Design of the International Agreements. 2020 .[Online] Available trough:
<https://academic.oup.com/ejil/article/16/4/579/381032>
5

Customary International Law. 2020.[Online] Available trough:
<https://law.duke.edu/ilrt/cust_law_2.htm>
There are various customary internation law which are recognised by the States. From
them some rise to level of the jus cogens by acceptance through international community as the
non derogable right. Other laws may be followed simply by smaller group of the states. The
States are bound by these CIL typically regardless of the states having been codified the laws
through treaties and domestically. It is said that international community are anarchical, that
there are no layer for the higher government having absolute power of treating the states as
citizens. Absence of the formal and rigid hierarchies in doctrine of the sources shall not serve for
concealing fact which states legal scholars and adjudicators have expressed the clear preferences
for the particular sources and has established the informal hierarchies, and if not valid, very less
importance or the pre eminence among the law making process.
REFERENCES
Sender, O. and Wood, M., 2016. The emergence of customary international law: Between theory
and practice. In Research Handbook on the Theory and Practice of International
Lawmaking. Edward Elgar Publishing.
Sources of Internatoinal Law. 2019.[Online] Available trough:
<https://legal.un.org/avl/pdf/ls/greenwood_outline.pdf>
Hierarchy of Rules in the International Law. 2020. [Online] Available trough:
<https://www.oxfordlawtrove.com/view/10.1093/he/9780199259397.001.0001/he-
9780199259397-chapter-11>
6

7