MATERIAL/HISTORICAL

SENSE FORMAL/LEGAL SENSE

It refers to a causal or
historical influence
explaining the factual
existence of a given rule of
law at a given place & time
The criteria under which a rule
is accepted as valid in the
given legal system at issue.
These criteria distinguishing
binding law from legally-non-
binding other social or moral
norms and the law de lege lata
(the law as it currently stands)
from the law de lege ferenda
(the law as it maybe in the
future)
MATERIAL/HISTORICAL
SENSE FORMAL/LEGAL SENSE
In this sense, terms of
sources related to
information sources,
research sources or
bibliographies in
international law.
In this sense, terms of
sources related to the law-
making process.
DEVELOPED NATIONAL LEGAL
SYSTEM
DECENTRALIZED
INTERNATIONAL LEGAL SYSTEM
Definite methods of
identifying the law
Primarily refering to the
constitution,
legislation/statutes & judicial
case law
Lacking hierarchical
structure
The problem of finding the
law more complicated
No authority to adopt
universally binding
legislation
No compulsary jurisdiction
of international courts &
tribunals without consent of
states
the court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply :
International conventions, whether general or
particular,...
International custom, as evidence of a general practice
accepted as law;
The general principles of law recognized by civilized
nations
J udicial decisions & the teachings of the most highly
qualified publicist of the various nations, as subsidiary
means for the determination of rules of law.
To some extent treaties have begun to
replace customary law, they are codified
by treaty. Where there is disagreement or
uncertainty, states tend to settle disputes
by ad hoc compromises which also take
the form of treaties.
LAW-MAKING TREATIES CONTRACT TREATIES
Treaty bisa disebut sumber
hukum internasional
bilamana treaty mirip
dengan konstitusi dasar
negara dalam suatu sistim
hukum nasional negara
tertentu.
Isi treaty (content) harus
sama dengan ini konstitusi
dasar & harus memiliki
struktur anatomi yang sama.

Treaty which resemble
contracts (agreement
between to states to lend
the money)
Not sources of law but
merely legal transactions
LAW-MAKING TREATIES CONTRACT TREATY
Treatiess purposes is to
conclude an agreement on
universal substantive legal
principles.
The parties to a law-making
treaty are more numerous
Treaty constitute
boderlinecase which are
hard to classify
The law of treaties applies to
both types of treaties
Contract treaty could be
terminated by the outbreak
of war between the parties
than a law-making treaty
Sometimes contract treaty
consist of states provision
which are contractual.
Particularly in a single treaty.
INTERNATIONAL TREATY
INTERNATIONALIZED
CONTRACTS
Only the subjects of
international law can
conclude the treaty (also
traditionally recognized
entities)
Usually adopted national law
system
In particular contract, the
parties between state &
powerful Multinational
Companies adopted
international law, general
principles of law or under
the provisions of the
contract itself.
As confirmed by the ICJ in the Nicaragua case, custom
is constitued by two elements, the objective one of a
general practice, & the subjective one accepted as law
the so-called opinio juris.
In the Continental Shelf (Libya v. Malta) case, the court
stated that the substance of customary international law
must be looked for primarily in the actual practice and
opinio juris of States.
From newspaper reports of action taken by states
From statements made by the government spokesmen to
parliament, to the press, at international conferences & at
meeting of international organizations.
From states laws & judicial decisions.
At times the Foreign Ministry of state publish extracts
from its archives (for example : when a state go to war
or becomes involved in a particular dispute)

From the documentary sources produced by the United
nations
From writings of international lawyers.
In judgements of national & international tribunals as
subsidiary means for the determination of rules of law.
What is the difference the
customary international law in
bilateral treaties and multilateral
treaties ?
In bilateral treaty the content does not
generally support a corresponding norm of
customary law.
In multilateral treaty the content definitely
constitute evidence of customary law.
A single precedent is not enough to establish a
customary rule, and that there must be a degree
of repetition overperiod of time.
Thus in the Asylum case, the International
Court of Justice suggested that customary rule
must be based on a constant & uniform usage.
In the Asylum case, Victor Raul Haya de la Torre, the
leader of unsuccessful rebellion in Peru in 1948, obtained
asylum in the Colombian Embassy in Lima. Peru &
Colombia referred to the court (ICJ) the question whether
Colombia had the right to grant asylum & whether he
should be handed over to the Peruvian authorities or be
granted safe-conduct out of the country.
In other words, what prevented the formation of a
customary rule in the Asylum case was not the
absence of repetition, but the presence of major
inconsistencies in the practice.