An outdated ascertainment model: a review of the doctrine of sources of international law
Autor | Sebastián Correa Cruz |
Cargo del Autor | Abogado con profundización en Derecho Internacional y Derecho Comercial de la Universidad del Rosario |
Páginas | 77-96 |
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An outdated ascertainment model:
a review of the doctrine of sources
of international law
Sebastián Correa Cruz*
Traditionally, International law can be conceived as a set of rules that are
made by States according to the traditional international law-making
processes recognized by the doctrine of sources. Nonetheless, this concep-
tion of international law seems challenging as it parts from a prevailing
positivist understanding according to which States are the main actors of
international law, bound only by that to which they have consented under
a traditional international law-making process.1
e purpose of this article is to critically assess this positivist view of
international law by addressing the insuciency of the doctrine of sources
set in Article 38 of the Statute of the International Court of Justice, here-
inafter (“”), by arguing that the source thesis rests on non-formal criteria
molded by informal processes which depart from traditional law-making
processes. To support this, the phenomenon of the softness of international
* Abogado con profundización en Derecho Internacional y Derecho Comercial de la Uni-
versidad del Rosario. Candidato a magíster en Derecho Internacional de la Universidad de La
Sabana, miembro del Grupo de Investigación en Derecho Internacional de la Universidad de La
Sabana. Antiguo miembro del semillero de investigación en Litigio Internacional de la Facultad
de Jurisprudencia de la Universidad del Rosario.
1 Anghie, Anthony, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century
International Law, 40 . ’ . . 1, 2, 1999.
Derecho internacional público, derecho internacional de la inversión extranjera
78
law will be highlighted, and it will be explained that the list of sources
included in Article 38 of the Statute of the is indeed incomplete.
e Doctrine of Sources and the Nature
of Article 38 of the Statute
Bearing in mind the lack of a universal legislator as one of the features of
international law,2 the doctrine of sources is related to the idea that law is
identied by its pedigree, itself dened in formal terms, and that, as a result,
identifying the law boils down to a formal pedigree test. In that regard,
the doctrine of the sources of international law is embodied in the model
provided by Article 38 of the Statute of the 3 as the opening phrase of
the Article states the function of the Court to decide in accordance with
international law.4 According to authors such as Shaw, since all member
States of the United Nations are ipso facto parties to the Statute of the
by virtue of Article 93 of the United Nations Charter, there is no serious
contention that the provision expresses the universal perception as to the
enumeration of sources of international law.5 Hence, the objective of the
doctrine of sources is to reinforce the existence and functioning of a formal
standard in the identication of international law.6
Nevertheless, it is notable that Article 38 constitutes a provision which
aims to dene the law applicable by the . Such dispositions aim to
2 Cassese, Antonio, International Law, 2nd. ed. Cambridge, Cambridge University Press,
Ch.1, 2005.
3 D’Aspremont, Jean, e Conguration of Formal Ascertainment of International Law: e Source
esis, Formalism and the sources of International law. New York, Oxford University Press Inc., 2011.
4 Article 38 of the Statute of the reads as follows:
1. e Court, whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recog-
nized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualied publicists of the various nations, as subsidiary means for the determination of rules of law.
5 Shaw, Malcolm, International Law, Sixth Edition, Cambridge University Press, 2008, p. 71.
6 Diez de Velasco, Manuel, Instituciones de derecho internacional público, 15 edition, Madrid,
Tecnos, 2005, p. 113.
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