‘International Law Is Not Imposed on States – There Is No International Legislature.’ (Wallace, R.M. (2005) International Law, 5th Ed, Sweet & Maxwell)

i. ‘International Law is not imposed on States – there is no international legislature.’

(Wallace, R.M. (2005) International Law, 5th ed, Sweet & Maxwell)

When looking at this statement it is important for one to consider the concept of International Law and how this idea differs from the domestic legal order. Ascertaining the law on any given point within the domestic legal system is not usually a difficult process. In the US, for example, one will look to see as to whether a certain legal matter is covered within their codified constitution and through law reports view how similar matters were interpreted by the judiciary. However, when this method is compared with that of international law, as Malcolm M. Shaw observes, ‘the contrasts are striking’ (Malcolm, M. Shaw, 2003, pg 66). This is due to the nature and set-up of international law and the lack of an executive, legislature and a structure of a judicial system, each of which are paramount within domestic societies. Therefore, if this paper were to only consider this it would show that the statement above is indeed correct and that international law does not exist because, as the statement proposes, international law is not imposed on states.

However, it is feasible to show that the statement is flawed when we consider the number of sources available from which the rules of international law can be extracted and analysed. The ICJ’s statue refers to international custom as ‘evidence of a general practice accepted as law’ (Article 38); this source of international law evolves when states follow certain practices generally and consistently out of a sense of legal obligation. In domestic society custom is a rather primitive source, hence, the unimportance of it; however, due to the lack of a centralised government it is paramount in international law. There are contrasting views on the value of customary law with some writers arguing that custom cannot be significant in a modern legal system noting that it...