Two sides of the same coin: law and obligation under international law1

In Symbolae Verzijl, Fitzmaurice argues that "[c]onsidered in themselves, and particularly in their inception,
treaties are, formally, a source of obligation rather than a source of law."2 It is submitted that this statement is incorrect. This
is because law and obligation in municipal law is understood differently in international law, where such a
dichotomy is more apparent than real. Therefore, it is incorrect to state that treaties are a source of obligation rather
than a source of law, the two being virtually indistinguishable for the purposes of determining the validity of a treaty
in international law.
Formal sources of law as the rules of recognition
The first step to demonstrating the falsity of the quoted statement is to determine its scope. Fitzmaurice
qualifies the statement, in both the title and the text, as relating to formal sources. Formal sources is defined as that
from which a rule of law derives its force and validity.3 This is similar to tertiary rules, rules of recognition, or
those which determine the identification of rules in a legal system.4
Thus, the issue here is whether or not the validity of a treaty stems from obligation or from law. It is
submitted, as will be shown in the subsequent section that in the context of international law, the dichotomy
between obligation and law is more apparent than real, and therefore a statement choosing one over the other as the
formal source of a treaty is erroneous.
Distinction between municipal and international law
Central to this submission is the distinction between municipal law and international law as regards the role
of obligation and law in determining validity of treaties or agreements.5
In municipal law, agreements are defined and regulated by (domestic) law. These will state and limit who can
enter into them, what can be entered into and how they are extinguished, among others. An obligation, in this case,
is a separate concept that is in turn also defined and regulated by (domestic) law. In other words, where there is no
law defining an agreement or obligation, or the case at hand does not comply with the limits prescribed, no
agreement or obligation can be said to exist with respect to that jurisdiction. In this case, obligation is easily
distinguishable from law, as the latter defines and limits the former.
On the other hand, in international law, the definition or regulation of a treaty does not stem from law or
from obligation in the same sense as in domestic law, for in fact there is no central legislature in this case to enact
laws in the sense used in municipal laws. In international law, that law which gives force and validity to treaties is
nothing more than a set of obligations which are not defined by a law enacted by a central body. The validity or
force of treaties come not from a law as it is understood in municipal law, but in the form of a treaty itself which
created obligations for the parties involved, specifically the Vienna Convention on the Law of Treaties.6 In other
words, it can be said that in international law, validity of treaties are not determined by obligation or by law (in a
municipal sense), rather, agreements have binding effect due to a treaty that embodies obligations, and these
constitute law as we know it in international law. In contrast to municipal law, the law generally does not define and
limit obligations
Conclusion
To reiterate, it is submitted that the force and validity of treaties in international law does not stem from
either an obligation or by law, in the same sense as in municipal law, but that in this case the obligations are valid or
in force because of the law, which is in turn composed of obligations themselves. This therefore means that
Firzmaurices statement that treaties are a source of obligation rather than law, is incorrect and inaccurate because in
the case of international law, the law is composed of obligations, and not laws as enacted by a supreme agency.
If we subscribe to Fitzmaurices view giving primacy to obligation instead of law in determining its force
and validity, a clear distinction has to be made between obligation and law, which, as discussed in the previous
section, is futile and conceptually impossible in international law, and split hairs where no distinctions are necessary,
possible, or proper.
Carlo Robert M. Mercado, Juris Doctor, University of the Philippines College of Law (2018).
Fitzmaurice, Some Problems Regarding the Formal Sources of International Law, in Harris, 42. Emphasis supplied.
3 Schwarzenberger, International Law, in Harris, Note 2, 19.
4 Cf Thirlway, The Sources of International Law, in Evans, 117.
5 In municipal law, these are generally denominated as agreements or contracts
6
This, however, does not preclude customs and general principles from having rules applicable treaties. Nevertheless, these will be
composed of obligations.
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