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A summary by Joan M. Veon

A most sophisticated phrase, "international law." It could mean anything, like beauty which is in the "eyes of the beholder." In order to understand what is really going on around us on the global level, we must understand the history, changes and future of international law.


Current Writings

In a book, "Introduction to the Study of International Organization," written by Putnam B. Potter, Ph.D., Assistant Professor of Political Science at the University of Wisconsin and published by The Century Company in New York in 1925, Dr. Potter writes this in his first chapter and first paragraph:

During the past twenty-five years a new phrase has come into common speech and into the formal literature of political science: international organization. The rise of the idea which this term expresses is no less significant than was the emergence of the idea of 'international law,' or a 'law of nations,' at an earlier time.... It is time that we devoted more attention to the aggregate of institutions and usages for governing the modern world, in so far as the world is governed as a unit. However, it is better, for various reasons, not to employ the obvious phrase 'world government,' but to use a title which indicates, to some extent, the nature of the chief process by which the world has come to enjoy some measure of unified government, namely, 'international organizations.' (p.3)

He goes on to define international law,

[International intercourse] is commercial and financial and cultural...and includes the many activities and practices in the development and maintenance of trade and travel and communication, and in the exchange of information and of artistic and scientific knowledge....The most obvious way in which this body of international intercourse may be affected by legal and political action is by the formulation of rules governing it by people engaged in it...This set of principles and rules is called international law, and it must itself be distinguished from international organization. The rules of international law are abstract formulae.

They describe and prescribe the relations and behavior of nations, and of their official representatives, in contact with one another, rather than the actions of private individuals, and they bear upon actual international intercourse in the economic and cultural sphere only indirectly, through state actions upon the individuals participating in that intercourse. These rules are to be south in unofficial treaties by private scholars, in public documents of various sorts (especially treaties), and in judicial and arbitral decisions in which they are embodied. (p.4-5)

However, where does international organization come into play? He states,

Rules of law, however, are of scant effect if unsupported by organs of government. it is here that international organization proper comes into view. The system of institutions and practices for the creation and enforcement of these rules of international law which govern the body of international intercourse constitutes the existing international organization.

The supports parts necessary to international law are:

This in the international field, we find the same sort of political organization and operation in the local and national life.

Prerequisites to international organization:

  1. There must be in existence certain states or nations or national states. There could be no international intercourse, law or organization if and whenever there should cease to exist in the world a number of free states. The existence of independent nations is indispensable.
  2. A certain degree of homogeneity is equally necessary. Some common denominators among the nations must be found in the intercourse among them.

  3. Stability of country - Too much of flux and flow, too rapid change in the political map of the world is not conducive to the development of an orderly international system.

  4. Equality - Every state shall be able to manage its own affairs in its own way. For that reason such an equality among states is needed ...eliminate domination on the part of some over the free actions of others.
  5. Territorial Domain - Modern international law and diplomacy are the products of a system of territorial states, in contrast to an earlier system of personal jurisdictions.
  6. Political Character - If the law and practice of nations is to reach its fullest fruitation, the states must be political in character.

  7. Contact among existing states

  8. Development of a Science of international relations must be developed to explain existing conditions and suggest the elaboration of new and legal political institutions.

National isolation results in paralysis of international growth. International organization proceeds by the voluntary cooperation of separately organized nations. The only feasible form of world government and the one which is at once feasible and safe, is international federation. (p.16)


In the term "negotiation" it should be confined to the first stage in the making of a treaty. In this stage of proceedings, the proposals of the negotiating parties are put forward, discussed, harmonized, and tentatively agreed upon. The next step, and a crucial one, is to draft a treaty or convention embodying the agreements in substance already reached and then sign it.

Certain treaties or joint international declarations set forth international law directly and expressly, and leave no additional act necessary to this result. On the other hand, international law can be derived form certain economic or political pacts only by a process of induction, of inference, by indirection, and by a somewhat hazardous generalization from the specific instance to a common principle. (p.177)

Modern International Law

--did not appear before the break-up of the feudal-imperial state-system and the formation of the society of free national states at the end of the Medieval period. p.179 "The process by which modern international law and the science of international law has been formed is somewhat curious. It reminds one of the man who was made a physician in spite of himself. International law as now practiced by the states of the world is largely the produce of private scholarship, taken over later by the states more or less in spite of their national instincts." p. 180

Roman Law

Among the older bodies of law now called on for new service was the law of Rome, reviewed and revised for use in the field of international relations--where it could be applied in some cases directly and in some cases only by a very liberal re-interpretation. Along with the law of classic Rome went the more recent civil and cannon law developed in medieval Europe on a basis of the classical law. Secular lawyers and ecclesiastical jurists alike contributed their work in the new field. In the same group are to be placed the commercial law,--continental and maritime, private, public, and mixed--of the period of the Renaissance; feudal law; and English law and equity. p. 181

..."As far as materials from older legal systems are concerned, the concept of territorial sovereignty and territorial jurisdiction was drawn from Medieval feudal law."

"Modern international law, therefore, runs back to the law of nature or the sense of reason and justice and right in man, on one side, and to various legal and governmental foundations, on the other, such as civil and canon law, feudal law, consular law and practice, the history of international diplomacy, and the conduct of war. The ultimate foundation of international law is justice....p.183

"International law has been allowed to grow up by itself, and the task of recording and codifying it has been left to private scholars." p. 365 "This common international law is held to be binding upon the individual state. it is not a loss of sovereignty? see page 386

Capt 22

Definition of peace: Peace may be conceived entirely as a negative thing, as the condition which exists when there is no war." p.357

It takes only one state to make war but it takes two, three--all--to keep the peace. "


It is within the competence of the General Assembly to initiate studies and make recommendations to promote progressive development and codification of international law, realization of human rights and fundamental freedoms for all, and international cooperation in political, economic, social, cultural, educational and health fields. p.82

"As distinguished from the decisions of the League Council, which were essentially recommendations, the decisions of the Security council are legally binding upon the Members of the United Nations. This is an important step toward consolidation of power in an international organization, notwithstanding the difficulty of actual application. " p. 87

"International law lays down the foundation of the objectives, procedures and functions of international organization, which, in turn, strengthens international law through enforcement, development, and codification of existing rules....Progressive development means ' the preparation of draft conventions or subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of states'; codification is 'the more precise formulation and systematization of rules of international law in fields where they already has been extensive state practice, precedent and doctrine.' The Hague Conferences, the League of Nations, and the United Nations have made due contributions to both of these."

Under the auspices of the League, the first Conference on the Progressive Codification of International law was held at The Hague in 1930. The Conference adopted one convention and three protocols on nationality, which came into force in 1937.

The Charter of the UN empowers the General Assembly to initiate studies and make recommendations for the purpose of 'encouraging the progressive development of international law and its codification.' At its first session, the General Assembly appointed a Committee on the Progressive Development of International Law and Its Codification to work out a plan for the fulfillment of this responsibility. The General Assembly adopted a resolution at its second session to establish an International Law Commission whose function is to "promote the progressive development of international law and its codification.'

The General Assembly has also encouraged the members and other organs of the UN, specialized agencies, and intergovernmental bodies to initiate studies for the common purpose of progressive development of international law and its codification.

At its first session in 1949, the International Law Commission selected fourteen topics for codification:

  1. Recognition of States and governments
  2. Succession of states and governments
  3. Jurisdiction immunities of states and their property
  4. Jurisdiction with regard to crimes committed outside national territory
  5. Regime of the high seas
  6. Regime of territorial waters
  7. Nationality, including statelessness
  8. Treatment of aliens
  9. Right of asylum
  10. Law of treaties
  11. Diplomatic intercourse and immunities
  12. Consular intercourse and immunities
  13. State responsibility
  14. Arbitral procedure. (p.223)

Under the auspices of the United Nations, the Conference on the Law of the Sea was held in 1958 and adopted Conventions on the Territorial of the Sea was held in 1958 and adopted Conventions on the Territorial Sea and Contiguous Zone, on the High Seas, on Fishing and Conservation of the Living Resources of the High Sea and on the Continental Shelf.

The General Assembly, the International Court of Justice, and other organs of the UN have done much toward the progressive development and codification of international law. (p.225)

As the international community has undergone vital changes in the 20th Century, a slow but steady trend toward universal acceptance of international law can be detected notwithstanding periodic setbacks caused by international power politics. The efforts of the League of Nations and the UN, have done much to promote this encouraging course. As explained before, international law lays down basic principles and rules governing the relationship among states and thus builds an important foundation for the functioning of international organization, which, as one of its principal objectives is to work for the development and observance of international law. (225)

With respect to the lawmaking body, it seem that the General Assembly of the UN is both a political and semi-legislative organ. Although its resolutions are not legally binding, they are more often than not observed by the Members...and may contribute to the development of new rules of international law. Many international conferences attended by representative from almost all the states are, in effect, law-making bodies; they have indeed adopted numerous treaties and conventions binding upon the signatories. The distinction between such conferences and the national legislature of a state is that they are not permanently established but convened for particular poses. The international community also provides means for enforcement of international law and sanctions against violations, even though the procedures are different from those of municipal law. p.226-7

International law - still incomplete

...The wholehearted support of the newly independent states for further study and development of international law at the UN and in particularly the Sixth Committee of the General Assembly is most encouraging. Admittedly international law at this stage is still incomplete. But no law is perfect and the difference is only a matter of degree.

Russia and International Law

There was general apprehension at the time of the Russian Revolution that a state founded on Marxism and world revolution could not possible follow the principles of international law. It did not take, however, the Soviet Union long to realize the improbability in the foreseeable future of overthrowing the established order of the world. Moscow has since adopted a flexible policy of coexistence to an extent not contradicting its national interests. The Eastern European countries, in like manner, have been getting along with the existing order and rules of international law. The Communists states differ from the west...particularly in their policies toward nationalization and confiscation of properties....Whatever divergent opinions they may hold toward particular phases of international law, such diversity is still within the general orbit of universality.

International Relations Documents and Readings, by Norman Hill, Professor of International Law and Relations, University of Nebraska, Oxford University Press, 1950


The claim that states are sovereign has led to untold complications in contemporary international politics. The idea of sovereignty was presented centuries ago by Jean Bodin, a French writer, and others, to justify the authority of kings against their subjects,....The results of such a doctrine are apparent. It prevented international law from possessing full and lasting binding force, made each state its own judge in controversies with others, and reduced the League of nations to Impotency. p. 9

History of International Law

"In their dealings with each other, governments frequently refer to rights and duties as established by international law. International law as we know it today is the result of centuries of development. Even in ancient Greece there were primitive rules to regularize the relationships among the city states, and in Rome the Jus Gentium was a system of law applicable to the different peoples within the Empire. As the modern state system emerged during the last Middle Ages and permanent diplomatic relations were established, rules were gradually developed which states followed in their dealings with each other. In 1625 Hugo Grotius, a Dutchman, wrote his famous book, The Law of War and Peace, which systematized and stated the law of his time so well that he is commonly referred to as the founder of modern international law.

"Since 1625 the law has been expanded in many ways. For years its exponents relied upon the law of nature (abstract principles of right and justice), but during the last century and a half they have stressed 'positive' sources, basing their deduction more on the practice of nations. During the last half of the nineteenth century the idea of codifying the law gained headway, particularly with relation to the law of war.

Two forms of International Law- Law of Peace and Law of War

In its present form international law has two divisions. First, there is the law of peace which deals with states as persons in international law, recognition, claims to territory, boundaries, intervention, treaties, the responsibility of states, jurisdiction over land, sea, and air, and diplomatic and consular representation.

The second division of the law, which relates to war, has to do with the beginning of war, the conduct of hostilities, the effect of war upon trade and treaties, the treatment of enemy aliens, and neutrality.

History of International Law and Arbitration

Arbitration was the first international procedure devised to settle disputes by law. it is an ancient procedure, and was revived as a modern practice by the Jay Treaty of 1794 between the United States and Great Britain. During the 19th Century there were scores of arbitration cases, and in 1899, a Permanent Court of Arbitration was set up at The Hague. The court is still in existence, but it has not handled a large number of cases.

In 1919 the Paris Peace Conference agreed to create a Permanent Court of International justice to settle disputes by a more strictly judicial process. After World War II the Permanent Court of International justice was supplanted by a new Court with a new Statute--'The International Court of Justice." It is part of the UN machinery. (124)

The reality of Law

From a purely theoretical point of view, it was formerly maintained by John Austin and others that law is the command of a political superior, and because international law does not have such a source, it is not law at all. This point of view is not widely held today. In the case of the Prometheus, Chief Justice Sir Henry Berkeley contended that international law is law in the strict sense. p. 127

International Law and the UN

Believing that a well-developed system of international law will be important help in the maintenance of peace, the General Assembly of the UN on 11 December 1946 set up a Committee on the Progressive Development of International Law and its Codification. The committee was composed of the representatives of 17 states, including all of the 5 permanent members of the Security council. After 30 meetings, the last of which was held on 17 June 1947, the Committee published its final report in a series of documents.


One of the most striking tendencies in diplomacy has been the increasing resort to the conference method of dealing with international problems. Since the modern state system was first recognized in the Peace of Westphalia 1648, conferences have been the usual means of establishing peace at the end of wars. The Congress of Utrecht 1713, the Congress of Vienna (1815), the Paris Conference (1856), the Portsmouth Conference (1905), the London Conference 1913 and the Paris Conference 1919 are evidence of this fact. Since the Holy Alliance after 1815 and the American Conference at Panama in 1826, the conference method has been extended to the treatment of peacetime problems of all sorts. During the 19th Century the Concert of Europe held meetings to deal with European issues and there were scores of other gatherings on such subjects as international law, arbitration, and postal communication. After WWI the tempo was stepped up and conferences became even more frequent. (p.163)

A Global Agenda: Issues Before the 48th General Assembly, Chapter VI "Legal Issues" by Jose E. Alvarez.

A number of actions taken by the Security Council and the 47th G.A. over the past year may have begun altering some fundamental concepts of international law, including basic principles of the UN charter, and even the meaning of "sovereignty." One major impetus for these developments have been the variety and quantity of peace and security issues brought to the UN's door in this post-Cold War era and ...the S-G's thought-provoking 'Agenda for Peace' with its recommendations for strengthening U.N. collective security mechanisms. (p.273)

International Law Commission

The ILC established to assist the General Assembly in the codification and progressive development of international Law met for its 44th session in 1992. That session, ...devoted more time than usual to planning the work of the next quinquennium. It also considered 3 matters still on the commission's agenda:

1. Creation of an international criminal court (on hand was the 10th report of its Special Rapporteur, addressing the possibility of establishing an international criminal court, (2) "state responsibility" and (3) international liability for injurious consequences arising out of acts not prohibited by international law.

International Criminal Court

The ILC has considered the possibility of an international criminal court since the 1950s; and in 1990 and in 1991, the G.A. asked for ILC guidance prior to deciding whether to ask it to begin drafting a statute for such a court. The Working Group offered a history of UN deliberations on the subject of an international criminal jurisdiction and, concluding that the establishment of an international criminal court is "possible," identified the following elements of a "workable system":

1. The court would be established by statute in the form of a multilateral treaty.

2. It would exercise jurisdiction over individuals not states, (emphasis added)

3. Court jurisdiction would extend to crimes already defined in international treaties (aircraft hijacking, hostage-taking, genocide and grave breaches of the Geneva Conventions on the protection of victims of armed conflict) as well as to the other crimes identified in the Draft Code of Crimes.

4. The court would not have compulsory or exclusive jurisdiction but would be available to the states that are parties to its statute, with each free to accept the jurisdiction of the court...

5. It would not be a standing permanent bogy but an ad hoc mechanism called into operation as needed.

6. Court procedures would be marked by due process, independence and impartiality.

"A Modern Introduction to International Law" by Michael Akehurst, Minerva Series, published by George Allen and Unwin Ltd., London, 1971.

Definition of international law and skepticism

International law (otherwise known as public international law or the law of nations) is the system of law which governs relations between states. The initial reaction of law students and laymen alike, when they are first told about international law, is usually high skeptical. They believe that states have little respect for international law and have no incentive to obey it in the absence of a supranational system of sanctions capable of being enforced against the law-breaker. In short, the popular belief is that international law is not really law....In fact, however, states do accept that international law is law; and what is more, they usually obey it.

Reasons why State Obey International Law

States obey international law far more than most people suppose.

1. The absence of a legislature is paradoxically a source of strength for international law.

All legal systems correspond to some extent to the prevailing climate of opinion in the society in which they operate but in national legal systems the concentration of legislative power in the hands of a small number of individual may result in the enactment of rules which most people do not way...In international law, the absence of a legislature means that states very largely create law for themselves, and it is unlikely that they will create law which is not in their interests or which they will be tempted to break.

2. International law is Largely Based on Custom

By obeying a customary rule, states strengthen the rule....

3. States are few in number and are composed of territory

In order to do business with each other...

History of International Law

It is necessary to ...describe the two main schools of through--naturalist and positivists (in international law)


The leading naturalist writer was the Dutchman Hugo Grotius (1583-1645), who is often regarded as the founder of modern international law; and Suarez (1548-1617), Gentili, an Italian protestant who fled to England (1552-1608), and the Englishman Zouche (1590-1660). There is one thing these writers agreed on and that was "that the basic principles of all law (national as well as international) were derived, not from any deliberate human choice or decision, but from principles of justice which had a universal and eternal validity and which could be discovered by pure reason; law was to be found, not made. These principles of law were called natural law. natural law was originally regarded as having a divine origin, but Grotius wrote that natural law would still have existed even if God had not existed; instead, Grotius considered that the existence of natural law was the automatic consequence of the fact that men lived together in society and were capable of understanding that certain rules were necessary for the preservation of society.---i.e. prohibition of murder. The theory of natural law has a long tradition, going back to Roman times, and is still the official philosophy of law accepted by the Roman Catholic church...Having religious overtones and being incapable of verification, the theory is suspect in a scientific and secular age....the theory of natural law must logically lead to a much more radical conclusion, namely, that an unjust rule is not law at all and can be disregarded by the judge; but this is a conclusion which no modern legal system would accept....

Positivism in International Law

After Grotius's death the intellectual climate became more skeptical, and international law would have lost respect if it had remained based on the theory of natural law. Men were beginning to argue by 1700 that law was largely positive, i.e. man-made; consequently, law and justice were not the same thing, and laws might vary from time to time and from place to place, according to the whim of the legislator. Applied to international law, positivism regarded the actual behavior of states as the basis of international law. The first great positivist writer on international law was another Dutchman, Cornelius van Bynkershoek (1673-1743), who was to some extent ahead of his time; positivism had its roots in the eighteenth century but was not fully accepted until the 19th century. Unfortunately, apart from collecting the texts of treaties, little attempt was made to study the practice of states scientifically until the 20th Century.

Combination of naturalism and positivism

Swiss writer Emerich de Vattel (1714-69), attempted to combine naturalism and positivism. he emphasized the inherent rights which states derived from natural law, but said that they were accountable only to their own consciences for the observance of the duties imposed by natural law, unless they had expressly agreed to treat those duties as part of positive law. Vattel exercised a strong and pernicious influence on many writers and states during the 18th, 19th and early 20th centuries...

The Communist Theory of International Law

A central article of Marxist faith is that economics is the determining force in society. Law and political institutions are merely the 'super-structure', reflecting the will of the ruling class (i.e. of the class which controls the means of production, distribution and exchange). Since there are different ruling classes in different states, one might imagine that there could be no international law of universal validity. But communist theory is unanimously of the opinion that an international law of universal validity does exist; indeed, to read some Russian writers, one might be forgiven for thinking that the Soviet Union had invented international law. The efforts to reconcile this position with the general Marxist theory of law have been long and tortuous. The Russians accept that there is only one system of international law, this system is said to reflect a compromise or coincidence of interests between different ruling classes in different states.

In 1956, Khrushchev proclaimed that war between 'capitalist' and 'socialist' states was not inevitable, and that communism would triumph throughout the world by peaceful means and/or international revolts, which would not necessarily lead to international war. The new doctrine was described as peaceful coexistence between states with different economic systems. Since then 'peaceful coexistence' has been incorporated into every Soviet definition of international law.

One striking characteristic of communist thinking about international law is the emphasis on sovereignty and the pre-eminence of the state. The idea of a world government, which is popular among progressive thinkers in the West, is anathema to the true communist; as long as states have different ruling classes, it is unthinkable that they will surrender their sovereignty; the only true world community will be a communist one, when states and law have both withered away; a "world state' or "world government" is contradiction in terms. More specifically, communist writers say that international law can be derived only from an agreement between states. In principle, when a state has agreed to a rule of international law, it cannot revoke its consent unilaterally. Similarly, the orthodox communist view used to be that only states enjoyed rights under international law. This has now been modified so as to allow international organizations (which are established by agreement between states) to enjoy rights under international law; but communist lawyers refuse to follow Western lawyers in recognizing that individuals can enjoy rights under international law. p.24

Sources of International Law

(1) Treaties

Treaties are the maids of all work in international law....The word 'convention' means a treaty, (subscript: Other words used as a synonym for treaties, or for particular types of treaty, are agreement, pact, protocol, charter, statute, act, covenant, declaration, engagement, arrangement, accord, regulations, provisions, etc...) Very often they resemble contracts in national systems of law, but they can also perform functions which in national systems would be carried out by Acts of Parliament...The only distinction between a law-making treaty and a 'contract-treaty' is one of content. As a result, many treaties constitute borderline cases, which are hard to classify...Treaties are of growing importance in international law.

(2) Custom

The second source of international law listed in the Statute of the International Court of Justice is 'international custom, as evidence of a general practice accepted as law.'

The main evidence of customary law is to be found in the actual practice of states, and a rough idea of a state's practice can be gathered from published material--from newspaper reports of actions taken by states, international conferences and at meetings of international organizations; and also from a state's laws and judicial decisions, because the legislature and the judiciary form part of a state just as much as the executive does.... Evidence of customary law may sometimes also be found in the writing of international lawyers, and in judgments of national and international tribunals, which are mentioned as subsidiary means for the determination of rules of law...Similarly, treaties can be evidence of customary law; but great care must be taken when inferring rules of customary law from treaties.

What states say and what states do. It is sometimes suggested that state practice consists only of what states do, not of what they say.... The psychological element in the formation of customary law and universality and the consensual theory of international law. In the Lotus case, the Permanent Court of International Justice said: 'The rules of law binding upon states...emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law...' This consensual theory, as it is called, has been criticized in the West, but it has been accepted with enthusiasm by Soviet lawyers. Soviet doctrine teaches that international law is the result of an agreement between states, and that the only difference between treaties and custom is one of form, treaties representing an express agreement and custom representing an implied agreement....p.37

Codification of customary law

The International Law Commission, a body of 25 international lawyers elected by the UN General Assembly is entrusted not only with the codification of international but also with its progressive development (i.e. the drafting of rules on topics where customary law is non-existent or insufficiently developed); in practice the distinction between codification and progressive development is often blurred. Sometimes the Commission seeks to codify the law, not by preparing a draft convention, but simply by summarizing the law in a report to the General Assembly. Such reports are not binding in the same way as treaties, but they do constitute valuable evidence of customary law; the commission's members are distinguished scholars, and they base their work on extensive research and on an attempt to ascertain and reconcile the views of the member-states of the United Nations (e.g. by circulating questionnaires and by inviting states to comment on their draft reports--the same procedure is followed during the preliminary work on draft conventions.) (p.39)

(3) General Principles of Law

The third source...listed in the Statute of the International Court of Justice is 'the general principles of law recognized by civilized nations'....[G]aps in international law may be filled by borrowing principles which are common to all or most national systems of law; specific rules of law usually vary from country to country, but the basic principles are often similar...General principles of law have proved most useful in 'new' areas of international law. Grotius drew heavily on Roman law and a Roman ancestry can still be detected in many of the rules which have not been transformed into customary law....In the present century international law, or something closely resembling international law has come to regulate certain contracts made by individuals or companies with states or international organizations, e.g. contracts of employment in international organizations, and oil concessions. Treaties and customary law contain few rules applicable to such topics and the gap has been filled by recourse to general principles of commercial and administrative law, borrowed from national legal systems.

(4) Judicial Decisions

The Statute of the International Courts of Justice directs the court to apply 'judicial subsidiary means for the determination of rules of law.'

(5) Academic Writers

The Court is also directed to 'apply 'the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.' The word 'publicists' means 'academic writers'. Like judicial decisions, academic writings can be evidence of customary

law, but they can also play a subsidiary role in developing new rules of law.

(6) Other Possible Sources of International Law

a. The Acts of international organizations

The growth of international organizations since the First World War has been accompanied by suggestions that the acts of international organizations should be recognized as a source of international law.

The Hierarchy of the Sources

What happens if a rule derived from one source of international law conflicts with a rule derived from another source? Which prevails over the other?

The relationship between treaties and custom is particularly difficult. Clearly a treaty, when it first comes into force, over-rides customary law as between the parties to the treaty; one of the main reasons why states make treaties is because they regard the relevant rules of customary law as inadequate. But treaties can come to an end through desuetude--a term used to describe the situation in which the treaty is consistently ignored by one or more parties, with the acquiescence of the other party or parties. Desuetude often takes the form of the emergence of a new rule of customary law, conflicting with the treaty.

since the main function of general principles of law is to fill gaps in treaty and customary law, it would appear that general principles of law are subordinate to treaties and custom (i.e. treaties and custom prevail over general principles of law in the even of conflict.) Judicial and academic writings are described in Article 38(1) as 'subsidiary means for the determination of rules of law', which suggests that they are subordinate to the other three sources listed--treaties, custom and general principles of law. Judicial decisions usually carry more weight than academic writings, but there is no hard-and fast rule; much depends on the quality of the reasoning which the judge or writer employs. (p.45)

Carroll Quigley - Tragedy and Hope - p. 1092

As a result of the American-Soviet stalemate as seen in the Cuban missile crisis, "one significant consequence of this situation was the almost total collapse of the system of international law that had been formulated in the 17th Century by the work of writers like Grotius. That system of international law had regarded the state as the embodiment of sovereignty, an organization of political power on a territorial basis. the criteria for the existence of such a sovereign state had been its ability to defend its boundaries against external aggression and to maintain law and public order among its inhabitants insides those boundaries.. By 1964, as a consequence of the power stalemate of the Cold War, dozens of 'states' (such as the Congo)_ which could perform neither of these actions were recognized as states by the Superpowers and their allies, and achieved this recognition in international law by being admitted to the UN. This development culminated over 50 years of destruction of the old established distinctions of international law such as the distinctions between war and peace (destroyed by the Cold War, which was neither), between belligerent and neutrals (destroyed by British economic warfare in World War II, or between civilians and combatants (destroyed by submarine warfare and city bombing). Nuclear stalemate in the Cold War context made it possible for political organizations with almost none of the traditional characteristics of a state not only to be recognized as states but to act in irresponsible ways and to survive on economic subsidies won from one bloc by threatening to join (or merely to accept subsidies from) the other bloc....As a consequence of this situation, all the realities of international affairs by 1964 had become covered with thick lawyers of law, theories, practices, and agreements that had no relationship to reality at all....