118 Contents VIII, THE RELATION OF INTERNATIONAL LAW TO MUNICIPAL LAW page page 3.38 The hierarchy of the rules BAL Conflicts or collisions of international law 165 between international law 3.39. The relation between inter- and municipal law 168 national law and municipal 3.42 The primacy of inter- Taw 166 national law 170 3.40 The application of inter- BIBLIOGRAPHY Pa national law within the state 167 SECTION ONE PRELIMINARY 3.01 The basis and sources of international law International law, as any other species of law, invests its ‘subjects? with rights and duties. Such is the function of all legal systems, and the result is that every such system, together with the rules which compose it, stands above its subjects and has for them an obligatory character not affected by the fact that the principal ‘subjects’ of international law are sovereign political units, namely, states. But though the obligatory character of international law is indis- putable, derived from the quality of international law as law, the nature and scope of that system still require examination. Are they the same as those of municipal law so far as concerns its subjects? What, the origin and explanation of international law? How does it come about that a state, despite its sovereignty, is bound by the rules of a legal system in the creation of which it can happen that it played little or no part? ‘There are two questions here. It may first of all be asked with respect to international law as a whole how there can be a system of law binding upon states. This is the problem of the basis of international law. It poses largely theoretical questions affecting all legal systems, and the answers which have been given have been much coloured byThe basis and sources of international law 119 ideological considerations. Because of this, we will not stop to consider it. For all practical purposes the proj already laid down will suffice: international law exists and it is universally agreed that states are bound by it; the problem is merely to determine on given facts ‘what itis that international law forbids, permits or requires to be done; and to determine this the question already put must be put again, but this time in concrete terms. When a rule of international law is invoked in particular circumstances, it must be asked whether it is in truth a rule of international law; or, in other words, whether it is endowed with that obligatory character which rules of international law possess; or again, is ita valid rule of international law? This must clearly be ascertained before any rule under consideration can be applied or the effects of its application explored. It is thus a problem of the greatest practical importance, the solution to which is provided by the doctrine of the sources of international law. 3.02 Whence do rules of international law derive their validity? ‘Two sorts of answers may be given to the question whence the validity or binding force of a legal rule is derived, according to whether we consider the content of the rule or the way in which it has been created. The first sort is supplied by the doctrine of natural law. According to the tenets of this doctrine, the rules of natural law are binding upon ‘mankind because they conform to what some would call the divine will and others the dictates of reason, They are thus immutable and require only to be discovered. Their validity is independent of human inter- vention and they thus stand in contrast to the rules of positive law, which are laid down by human agency and whose content, because it depends upon the will of its creators, is varying and variable. From this it follows that positive law is valid and binding only if laid down in a ‘manner investing it with validity, namely if it proceeds from a recog- nized souree. 3.03 The notion of sources of law ‘The kinds and number of sources of law depend upon the character and the degree of development and organization of each community and of the legal system it possesses. Certain of them emerge and are relied upon in a more or less spontaneous manner as a result of the mere120 Preliminary interplay of communal relations as the latter come to be rationalized and to have a stable pattern. This is the case with customary law. ‘Others, by contrast, demand a high degree of political centralization ‘and the setting up of specialized organs possessing a high political authority. This is the case with legislation, Finally, the problem of the sources of law is very different in a state community from what it is in a community like the international community, which is but imperfectly organized. ‘The term ‘sources of law’ is traditionally confined to the methods of creation of legal rules, that is to say general and permanent rules capable of repeated application without any limit, It is not applied to the methods of creation of particular regimes involving rights and duties for individual subjects of the law only, namely, to use a term familiar to legal science — particular rules. ‘This restrictive view raises special problems in the international legal system, a characteristic of which is to contain relatively few rules of ‘general international law’, binding upon all states forming part of the international community. Very often the term ‘international law? is indeed employed to connote only ‘general international law’ in this sense, But international law contains also other rules of a general and permanent character which are, however, valid in relation to certain states only. Such is the case with rules laid down by multilateral treaties and with those constituting a ‘regional’ custom (3.14), Finally, there are certain rules which are still general and permanent in charac- ter, but which apply as between two states only. Such may arise from bilateral treaty; but they may no less be customary in origin (see the Right of Passage Case, (1960) ICJ Rep. 39)- ‘The question whether a given rule is or is not one of general international law may have great importance. For if it be such, it is sufficient to establish its existence, since it will bind every state, If it be not such, then not only must the existence of the rule be shown, but. it must also be shown to have come into existence in such a manner as to be binding upon the particular state to which it is averred to apply. Nevertheless, as will be demonstrated, the very same source, custom, can give rise to both rules of general international law and to rules applying to a small number of states, or even to only two states. A. treaty, moreover, may bind two states only or, as the Charter of the United Nations, virtually all members of the international community. In large measure, therefore, the same sources of law may be relied upon.