The theory and reality of the sources of international law

Anthea Roberts, Sandesh Sivakumaran

    Research output: Chapter in Book/Report/Conference proceedingChapter

    Abstract

    The classic starting point for identifying the sources of international law is Article 38 of the ICJ Statute, which refers to three sources: treaties, customary international law, and general principles of law; as well as two subsidiary means for determining rules of law, namely judicial decisions and the teachings of publicists. However, Article 38 does not adequately reflect how the doctrine of sources operates in practice because it omits important sources of international law while misrepresenting the nature and weight of others. To appreciate how sources operate in practice, international lawyers need to understand how international law is created through a dialogue among States, State-empowered entities, and non-State actors. States are important actors in this process, but they are not the only actors. It is only by understanding this process of dialogue that one can develop a full understanding of the theory —and reality—of the sources of international law.
    Original languageEnglish
    Title of host publicationInternational Law
    Editors Malcolm D. Evans
    Place of PublicationOxford, United Kingdom
    PublisherOxford University Press
    Pages89-118
    Edition5th
    ISBN (Print)9780198791836
    DOIs
    Publication statusPublished - 2018

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