The Material Source of International Law: Manifestations of the Universal Juridical Conscience

AbstractThis article studies the normative activity developed by the Security Council (SC) in recent years, particularly in the fight against terrorism. This legislative activity has aroused a great deal of controversy both among scholars and the States. Is the SC acting ultra vires? Has it revealed a new form of creating of international norms, which overrides definitively States' consent as the only material source of international law? This contribution tries to answer these questions by investigating the scope of the SC powers in the Charter, their historical background and the reaction of UN Member States towards its Resolutions. After this analysis, it is submitted that the SC does have a legislative capacity, but with important legal, political and practical limits.

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Case Law of the European Court of Human Rights as a Source of Human Rights Law

Baltic Yearbook of International Law Online ◽

10.1163/22115897_01701_008 ◽

2020 ◽

Vol 17 (1) ◽

pp. 143-165

Author(s):

Ineta Ziemele

Keyword(s):

Human Rights ◽

International Law ◽

Case Law ◽

Human Rights Law ◽

Anglo Saxon ◽

Material Source ◽

European Court ◽

Legal Nature ◽

Being There ◽

The Impact

The European Court of Human Rights with its case law has been for decades a particularly important actor in developing human rights law in Europe and beyond. At the same time the question as to the legal nature of its case law has not received a single answer. Most traditionally, the answer to this question has been that case law is binding on all States parties to the Convention at least to the extent that it contains lex interpretata as part of the Court’s authoritative interpretation of the Convention entrusted to it by the founding States of the Convention regime. In accordance with the Convention’s Article 46, judgments of the Court are binding on the respondent State. At the same time, judgments are followed more generally by the Contracting Parties while the Court’s case law has added to the original – admittedly open-ended – text of the Convention. This article explores the impact of civil law tradition, Anglo-Saxon tradition and the theory of sources of international law on better conceptualization of the legal nature of the case law of the Court. It arrives at the conclusion that at least for the time being, there is a coherent tendency in more advanced legal systems to acknowledge that the courts and judges do occasionally make law. The example of the European Court of Human Rights goes along with these developments. It is argued that case law is a material source of law while the overall consolidation of the Convention system begs for the conclusion that the Court’s case law has become a formal source of law.

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Legal History as a Source of International Law

10.1093/law/9780198745365.003.0014 ◽

2018 ◽

Author(s):

Robert Kolb

Keyword(s):

International Law ◽

Legal History ◽

Historical Context ◽

Structural Effects ◽

Material Source

This chapter examines to what extent ‘history’ can be considered a source of international law. It argues, in a classical way, that history is a material source of international law, though the chapter also examines some norms of positive international law which refer to historical facts. It first casts the question of history as a source of international law in its historical context. Classical international law, with its much greater emphasis on history as a factor of account, stands to by analysed, with reasons for the differences with today investigated. Hereafter, the chapter attends to the main expressions of ‘history as a source’ in the positive international law of today. Finally, the chapter considers the structural effects of historical facts and arguments on the interpreter.

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