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IX Some Alternative Approaches

From: The Sources of International Law (2nd Edition)

Hugh Thirlway

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 11 December 2023

Customary international law

This chapter discusses the inadequacy or irrelevance of recognized sources of international law and the role of ethical principles. It examines the insufficiencies of the theory of international customary law. It argues that the creation (or discovery) of international law can no longer be regarded as a process of generation from one or other of a list of recognized sources. It also argues that international law, as generated by the recognized sources, fails to take sufficient account of ethical or moral requirements. In particular, as regards the major source of law that is customary international law, the long-established ‘two-element’ theory is shown to be inadequate, unrealistic, or otherwise unsatisfactory.

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