Sources of law: international and theoretical and legal aspects
Journal Title: Альманах міжнародного права - Year 2016, Vol 14, Issue
Abstract
The article elucidates conception of sources of law that are used in international law and the general theory of law. The author analyzes fundamental international acts where the sources of international law are mentioned correlating them with the theory of law concerning the sources of law. Statute of the International Court of Justice provides as the sources of international law the following: a) international conventions, whether general or particular, establishing rules expressly rec- ognized 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 qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Thus, the article contains a reference to such sources of international law as: first, prescrip- tive text (that actualizes normativity approach to understanding of law); second, the custom (that updates the historical approach to understanding of law); thirdly, the principles of law (which ac- tualizes natural law understanding of law); fourth, judicial precedent (that actualizes sociological understanding of law); fifth, the legal doctrine (which actualizes the historical understanding of law). Although the statute indicates that «This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto». General theory of law provides as the sources of law: normative and legal act; normative con- tract; general principles of law; legal custom; legal precedent; legal doctrine; religious and legal text. Comparison of the forms of law with the forms of international law allows the author to draw a conclusion about not using by the International Court (and therefore non-recognition as a form of international law) of religious and legal text (even if we take into consideration part 2 ar- ticle 38 of the International Court of Justice) because “good and justice” are interpreted differently in various religions.
Authors and Affiliations
А. М. КУЧУК
Keywords
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