Step Relatives of Sources of International Law

Abstract

Article 38 §1 of the Statute of the International Court of Justice indicates a closed list of sources of law within the international system. Given the text of this Article, an international rule that has not been created as a conventional rule, as a customary rule, or as a general principle of law recognized by civilized nations cannot be considered valid within the international legal system. However, starting with the ’60, more and more scholarly voices questioned, with different degrees of intensity, the idea that the current configuration of the international system could still be conciliated with the exclusive list of sources of law indicated by Article 38. This paper aims to identify the causes and the confusions that justify and feed the doctrine of flexible sources, while also trying to demonstrate that most of such “revisionist” proposals lack the analytical rigor to give them viability. To this end, the paper evaluates the main pseudo-sources of international law, whose legal physiognomy might look as justifying, in an erroneous manner, the idea that they belong to the same family as the legitimate sources.