The International Court of Justice as the Master of the Sources
Carlos Espósito and Kate Parlett (eds), The Cambridge Companion to the International Court of Justice (Cambridge University Press, 2021)
22 Pages Posted: 6 Mar 2020
Date Written: February 5, 2020
This chapter shows that the uncontested and unrivalled mastery of the International Courts of Justice in terms of the sources of international law originates in a repressive construction, namely Article 38 which was originally meant to subdue the Court and repress its modes of decision-making. In doing so, this chapter offers a new story about the International Court of Justice, Article 38, and the sources of international law. It is a story where being repressed is what it takes to be a master.
This chapter starts by formulating some preliminary remarks on the widely recognized mastery of the Court with respect to the sources of international law (1). It then sheds light on the repressive dimension of Article 38 and particularly demonstrates how such repression was, in 1920, used as a means to justify the conferral of power upon the Court (2). It then elaborates on the concrete uses by the Court of its very mastery of the sources of international law, especially with respect to customary international law, treaties, and general principles (3). Finally, this chapter offers some concluding remarks and thoughts on why repression and mastery often work together in international legal thought (4).
Keywords: International Law; Sources of International Law; International Court of Justice; Article 38; International Legal Structures; Customary International Law; General Principles of Law; Treaties; Modern Legal Thought
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