CYIL Vol. 5, 2014

SANDERIJN DUQUET – JAN WOUTERS CYIL 5 ȍ2014Ȏ still arise when the will of parties is unclear or when indirect legal consequences are produced. 8 An assessment of what counts as international law and what does not in light of the development of new, non-traditional, international norms requires insights on public international law and its sources. In traditional legal doctrine, Article 38(1) of the Statute of the International Court of Justice (ICJ) forms the basis of the discussion on sources of international law. This provision, in a way that is considered to be convenient for international lawmakers, names and orders the ‘traditional’ sources of international law: treaties, customary international law, general principles of law, judicial decisions, and juristic writings. It derives recognition and legitimacy from the collective will of states as primary actors in international law and serves as the foundation of a more general ‘doctrine of sources’ in international law. Notwithstanding, this list of sources also shows a number of drawbacks, which continue to give rise to considerable confusion. 9 First, the sources doctrine has been developed in a particular context and for a particular reason, namely to guide the ICJ in its determination of the law. Article 38 is primarily defined through case law. Therefore, it has been argued that sources doctrine confuses the role of a lex arbitri with that of a meta-source for all international law. 10 Second, sources doctrine does not recognize non-traditional norms. Non-legally binding norms currently do not form the object of PIL, as they cannot be invoked before courts in the same way as legally binding norms. An alternative theory seems to be lacking as well: no overall legal framework exists to order the norms and standards produced in global settings and adhered to by many national administrators. This leads to the question whether Article 38 ICJ is still an accurate reflection of the state of international law, which is fundamental in light of the necessity of the law to serve as an instrument for ordering its own normative processes and to keep up with the specific context of an ever-more complex society. Theoretically, Article 38 of the ICJ Statute can be adapted. The provision was never intended to be exhaustive and can be changed. 11 This would, however, require a change in the way PIL has been studied for many years. This is unlikely to happen. Rethinking dominant theories in international law is challenging, especially when it includes the re-assessment of constitutive elements of the body of PIL. In addition, States are the masters of lawmaking processes and the acceptance of new insights in the normative components thereof will depend on their agreement. Policymakers 8 D’Aspremont, J., “Softness in International Law: a Self-Serving Quest for New Legal Materials”, European Journal of International Law, Vol. 19, No. 5, pp. 1075-1093, at 1082. 9 Cohen, H. G., “Finding International Law: Rethinking the Doctrine of Sources”, Iowa Law Review , 2007-2008, Vol. 93, No. 1, pp. 65-130; Radi, Y., “Standardization: a Dynamic and Procedural Conceptualization of International Law-Making”, Leiden Journal of International Law , 2012, Vol. 25, No. 2, pp. 283-307. 10 Kammerhofer, J., “Uncertainty in the Formal Sources of International Law: Customary International Law and Some of its Problems”, European Journal of International Law , 2004, Vol. 15, No. 3, pp. 523-553. 11 Pauwelyn, J., “Is It International LawOr Not, and Does It EvenMatter?”. In: Pauwelyn, J., Wessel, R.A., Wouters, J., Informal International Lawmaking . Oxford: Oxford University Press, 2012, p. 132-133.