The Theory and Reality of the Sources of International Law

The Theory and Reality of the Sources of International Law (in Malcolm Evans, ed., International Law, 5th ed. 2018)

Posted: 19 Jan 2018 Last revised: 23 Jan 2018

See all articles by Anthea Roberts

Anthea Roberts

School of Regulation & Global Governance (RegNet)

Sandesh Sivakumaran

University of Nottingham

Date Written: January 12, 2018

Abstract

The classic starting point for identifying the sources of international law is Article 38 of the Statute of the International Court of Justice. Article 38 famously 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 the doctrine of sources operates 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.

Keywords: international law, sources, treaties, custom, customary international law, CIL, general principles, traditional, modern, theory, reality, states, state-empowered entities, non-state actors

Suggested Citation

Roberts, Anthea and Sivakumaran, Sandesh, The Theory and Reality of the Sources of International Law (January 12, 2018). The Theory and Reality of the Sources of International Law (in Malcolm Evans, ed., International Law, 5th ed. 2018), Available at SSRN: https://ssrn.com/abstract=3101042

Anthea Roberts (Contact Author)

School of Regulation & Global Governance (RegNet) ( email )

Canberra, Australian Capital Territory 0200
Australia

Sandesh Sivakumaran

University of Nottingham ( email )

University Park
Nottingham, NG8 1BB
United Kingdom

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