Rethinking the sources of international law

That much said, Dr. G. H. J. van Hoof's book is a long-winded and meandering essay that reaches simplistic conclusions. There is very little here that justifies the title "rethinking." The author builds his thesis about sources on the bedrock of consent. Several untoward consequences follow: the author has to abandon the generally accepted distinction between general custom and special custom, he has to allow that "international law does not entail the same rights and duties for all its subjects" (p. 97), and he must argue that new states are not bound by preexisting rules of international law until they have accepted specific rules. He also fails to see the interaction between opinio juris and usage, finding the latter superfluous if one begins with opinio juris (but not specifying how one can begin with just opinio juris) (p. 98). While conceding that rules in treaties can give rise to rules of customary law, van Hoof's failure to distinguish between general and special custom leads to a fundamental misreading of the North Sea Continental Shelf cases. [FN1] In general, he disparages the jurisprudence of the World Court (p. 87 n.320) and thus misses an opportunity to analyze and learn from its leading cases.