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The statements and title suggesting that treaty law is a more important source than customary law are not correct. There is no consensus. For example, Anthony D'Amato, a well-known writer on customary law, argues the reverse.
Since customary law can operate at a different logical level than treaty law - e.g. pacta sunt servanda, the oldest customary rule is a rule which is logically impossible to effectively incorporate into treaty law, such statements are misleading at best, and should be eliminated.
In addition, the consensus on reprisals is that they are only legal if they respect the UN Charter (which might need to be liberally interpreted in some cases). For the last two points, see Shaw's International Law - (The first chapter is on the web, and I think has the pacta sunt servanda point.) --John Z05:44, 7 August 2005 (UTC)[reply]
I don't see the statements and titles that you refer to in the first paragraph, and I'm not sure what you're referring to by "more important source". However, one thing I am sure of. A treaty has the power to negate any duty imposed by Customary international law that does not itself constitute a jus cogens norm, whereas custom does not negate a treaty obligation.
Also, though D'Amato is certainly an advocate for certain positions in international law, I don't believe he rises to the level of a highly recognized publicist, let alone one of the most highly recognized.InMyHumbleOpinion (talk) 07:28, 29 May 2008 (UTC)[reply]
Well, I was talking about things in the article almost three years ago. I'm happy to see and welcome a knowledgeable new editor! John Z (talk) 04:51, 30 May 2008 (UTC)[reply]
I believe you are misreading the Al-Adsani case, inter-state vs intra-state. Im quite sure the ruling did not state torture was not a preremptory norm. See this article in Ejil on the status of torture as a norm jus cogens. [1], you might also find these sources interesting, the first one actually related to the Al-Adsani case, the second a summary of it and the last two as even more evidence of torture being regarded as jus cogens (search for "torture" in order to locate the relevant sections). [2][3][4][5]
. --Cybbe15:17, 6 December 2005 (UTC)[reply]
I stand corrected. The European Court of Human Rights had no doubt "that the prohibition of torture has achieved the status of a preemtory norm in international law" (at 41-42). Nevertheless, by a majority of 9 to 8, the Coutr held that the prohibition on torture did not override the right of a foreign state to immunity in an action in the English courts with respect to damage caused outside the jurisdiction. This example could perhaps be incorporated in the article as an example of the relationship between customary rules and rules of jus cogens. Yeu Ninje04:43, 7 December 2005 (UTC)[reply]
Surely this is only a rewrite of a discrete part of the international law page. Maybe one day it might be merged back in if similar work is done with the rest of the international law page but I cannot see how it is simply a "rewrite".
Is there any general statement that can be made about the relationship between international law and the United Nations? Exactly what does the United Nations have to do in order to create new international law? What are the relationships between human rights, the United nations crap and international law's bull shitt
problems? What kind of documentation should Wikipedia have in order to say that something is a violation of human rights? --JWSchmidt00:42, 26 July 2006 (UTC)[reply]
The debate on source importance should be included under its own subheading. There are those who hold that treaties, customs and general principles are of equal importance. There is no question about the 'subsidiary' sources of law determination based on the statue language. Publicists, etc. are not as important as treaties. However, there are reasons to believe that this list is in a hierarchical order based on PCIJ, ICJ and arbitration actions. I'll try to dig up some stuff when I can.
Tenortoner1 (talk) 20:53, 24 November 2007 (UTC)[reply]
This is related to the talk section immediately above, but I suggest more. Essentially, all but the first paragraph should go under the contents list box. I suggest something like this:
Put the second paragraph as the first section. Can't think of the title, but it comes down to the basis for what what constitutes the sources, ie. Statute of the I.C.J. The debate as to more important sources should be a separate section, or incorporated into the pertinent sections.
In addition to the above, a list related to both pages, copied over from the Customary international law page.
This is both a personal to do list, as well as a proposal list, so if it looks like any of this is off, please say. But I do feel there are glaring holes between these two articles.
Explain that custom can be bilateral and any range of multilateral from three states to regional to general. Currently, the articles only discuss general customary international as if that's all there is or can be. Though that may be what's discussed in the more well known cases, international custom is not all or nothing with regard to how many states are bound by it.
Explain how treaties can create or recognize existing custom better, and distinguish between the two. This may be just how I'm looking at it now, but it seems as if the Sources of international law article is suggesting that treaties can create a customary norm oustide of the normal mechanism rather than as a part of the normal mechanism. That is the signing and ratifying the right sort of treay is a practice that reflects the ratifying state believes there is a legal obligation to follow certain or all terms even without the treaty. Treaties do not create customary norm except in so far as they constitute evidence of practice and opinio juris.
Discuss silence as practice/opinio juris. For the Customary International Law article, expand discussion of practice and opinio juris generally. The section on custom in the Sources of international law seems to have more than the Customary international law.
At the very least, the statement is too broad as to ILC drafts in general. That aside, authoratative is a pretty strong word and there should be some source for this. IMHO (talk) 04:18, 3 November 2008 (UTC)[reply]
The article has had a painfully long lead for too many years. I've broken it up by creating new sections and by moving some material into already existing sections. I've made minor changes or additions so the text reads well in the new organization, but I have not changed any subtance of what was there before. So there may be (I believe there is) some text that should be removed or changed. Also, this was meant to be a quick fix, so changing names of sections or further reorganization should be considered. Otherwise, expansion of some sections (history, modern views, and hierarchy being big examples). (signed later) IMHO (talk) 22:43, 25 November 2013 (UTC)[reply]
