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date: 24 January 2020

Abstract and Keywords

This chapter argues that, from the perspective of a theory about the sources of international law, what matters is not so much to determine whether international law is really law, but, rather, what makes law ‘international’. It first recalls the structural reasons inherent to international law that explain the specificity and the crucial character of the issue of sources—understood as a process of legal identification—in that legal order, as opposed to sources in domestic law. The chapter then contextualizes Article 38 of the International Court of Justice (ICJ) Statute by recalling its specific purpose; that is, determining and delimiting international legality. Finally, the chapter questions whether and to what extent a theory of sources really achieves its objective of determining what unequivocally counts as international law. The chapter thus brings to light the awkward fact that international legality is not necessarily normatively exclusive.

Keywords: International Court of Justice (ICJ), General principles of international law, Sources of international law

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