Law Without a Legislator
International law is made by the entities it binds. There is no global parliament or police force. It is decentralised law, created and enforced by states themselves.
The Sources
Article 38 of the Statute of the International Court of Justice lists Three primary sources:
- International conventions: formal treaties between states.
- International custom: practice accepted as law.
- General principles of law: fundamental rules recognised by nations.
Judicial decisions and doctrine serve only as subsidiary means for finding rules.
Custom requires two distinct elements:
- A general practice across states.
- opinio juris, the conviction that the practice is legally binding.
A persistent objector openly opposes a custom from the outset and avoids being bound by it.
Treaties are governed by the Vienna Convention on the Law of Treaties. They rely on two fundamental rules:
- pacta sunt servanda: treaties bind their parties and require good faith performance.
- ius cogens: peremptory norms that void any conflicting treaty.
Reception in Spanish Law
| Monism | Dualism | |
|---|---|---|
| Legal orders | One | Two, separate |
| Internal effect | Direct | Requires reception |
| Key figure | Kelsen | Triepel |
Under Article 96.1 CE, valid treaties enter the Spanish legal order once officially published in Spain. Publication grants internal domestic effect, but international validity binds Spain immediately.
Soft Law
International trade uses standard contracts, arbitration rules, and private codes. Lawyers call these instruments soft law. They shape commercial behaviour without formal state enforcement.
Common pitfall: concluding that international law is not law because it lacks a central police force. The system enforces itself through countermeasures, reciprocity, and international institutions. Most states comply because they created the rules themselves.