Introduction to Part II

Abstract

Within the vertical structure of the concept of law underlying the concept of public international law, rules of public international law are not seen as inherent in international society. Mainly through the prism of the framework of obligation, rules of public international law are regarded as emanating from a political process in the form of the sources of public international law. By implication from its subpara (d), Article 38, para 1, subparas (a)–(c), of the Statute of the International Court of Justice lists as primary sources: conventional international law, customary international law, and general principles of law. When situated within the mutual exclusivity of the framework of obligation and the framework of authorization, however, those sources of public international law do not, it is submitted, produce coherent rules of public international law. Even though conventional international law or customary international law may stipulate both rights and obligations, the mutual exclusivity of both frameworks only allows one or the other to be operative. The present part situates these traditional sources of public international law within the mutual exclusivity formed by the framework of obligation and the framework of authorization and describes how general principles of law, conventional international law, and customary international law may be resituated within the reformulated framework. This does not require transposing these sources to the reformulated framework, but delineating a transition from the incoherence of the mutual exclusivity of both frameworks to the reformulated framework. As a consequence of this transition, the function of rules of public international law produced by the sources of public international law would be transformed. Within the reformulated framework, general principles of law may be seen as transiting the reformulated framework and the constituting of international society. Customary international law may be regarded as involving the direct constituting of international society on the basis of the ground structure. Conventional international law may be regarded as transiting general principles of law and customary international law, incorporating both principles and rules.