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Logical Interaction Between Legal Sources In The ICJ Statute:Formal Closedness And Substantive Openness From The Perspective Of International Soft Law

Posted on:2020-04-20Degree:MasterType:Thesis
Country:ChinaCandidate:J LiuFull Text:PDF
GTID:2416330596480560Subject:International law
Abstract/Summary:PDF Full Text Request
Article 38 of the Statute of the International Court of Justice has always been regarded as an authoritative statement of the sources of international law.However,the evolution of the international system after World War II has continuously promoted the development of the theory and practice of international law,and its limitations as a historical product of international relations have also emerged.The rise and vigorous development of international soft law in the context of economic globalization further demonstrates that the interpretation of the sources of international law within the framework of Article 38 of the Statute of the International Court of Justice is no longer adapted to the practical needs of the modern international community for international law.Based on the important role of international soft law in the practice of international law,international soft law manipulated by great powers through procedural hegemony has caused a negative impact on international hard law,and relatively harmed the interests of developing countries.In this context,it is of great significance for China's practice of international law to reinterpret the sources of traditional international law under the framework of Article 38 of the Statute of the International Court of Justice from the perspective of international soft law,and to seek a new way to strengthen China's capacity of international law-making on this basis.The definition of the concept of soft law in academic circles varies with the dual contexts of domestic law and international law.Through comparative analysis,it can be made clear that international soft law in the context of international law has the basic connotation of non-legal,autonomy and flexibility.On this basis,the main extension of international soft law can be defined as four kinds: the subsidiary sources of professional community,the resolutions or model laws of international organizations,the universal documents of international conferences,international business practices and industrial standards.The openness of international law provides a logical starting point for the formation and development of international soft law.Under the combined effect of global economic integration and the integration of multi-ethnic cultures,the ever-developing international relations system since Westphalia Conference has deeply influenced the emergence and practice of modern international law.Under this background,the authority shift of international law-making,the fragmentation of international law and pursuit of the value of international justice respectively constitute the subjective basis,path choice and internal motive force of international soft law.At the same time,the different social bases of domestic law and international law,as well as the different standpoints of legislative centralism or judicial centralism,have influenced the understanding and application of the concept of legal source,and the distinction between legal source and legal form is an important manifestation of it.In the context of international law,the viewpoint of equating Article 38 of the Statute of the International Court of Justice with the sources of international law can not adapt to the changing international society because of its the historical characteristics.Therefore,the correct understanding of the relationship between the two should be based on the dynamic system of sources of international law,which is also the theoretical framework of studying Article 38 of the Statute of the International Court of Justice from the perspective of international soft law.As far as legal texts are concerned,Article 38 of the Statute of the International Court of Justice is formally closed in enumerative explanation of sources of international law,but in the long-term practice of international law,it still reflects a certain dynamic nature,which can be proved by the relativity of international treaties and customs and the dialectical relationship of the main and subsidiary sources.Judicial decisions and the teachings of the most highly qualified publicists of the various nations,which are regarded as subsidiary sources,also belong to the category of international soft law in a general sense,which to some extent indicates that the understanding of the sources of international law should include different dimensions of form and substance.At the same time,the phenomena of a large number of international soft law in the practice of international law also confirm the legal pluralism in the field of international law,and further illustrate the limitations of understanding the sources of international law within the framework of Article 38 of the Statute of the International Court of Justice.On the other hand,international soft law participates in the process of creation,interpretation and application of international treaties through its demonstration and supplement functions,serves as evidence resources of state practice or opinion juris in the process of confirming international customs,or influences the practice of international law in the form of judicial precedents and “teachings of publicists” under new circumstances.It could be argued that the interaction between international soft law and traditional sources of international law deeply reflects the substantive openness of Article 38 of the Statute of the International Court of Justice,thus international soft law can be conceptualized as a transitional state in the dynamic system of sources of international law.At the same time,based on the fact that international justice is the ultimate value of international law,the pursuit of the value of justice of international soft law embodied spontaneously or in the process of interacting with the traditional sources of international law,not only proves the natural law attribute of the sources of international law,but also reveals the natural law tendency of the future sources of international law to a certain extent.However,it has to be admitted that the openness of international law under the framework of modern international law also makes international politics or great power politics an important factor influencing or even inhibiting the pursuit of justice value in international soft law.Based on the important role of international soft law in the practice of international law and global governance,some great powers or hegemonic powers may manipulate international soft law through procedural hegemony along the logic of realism,thus influencing the effectiveness of existing international hard law or impeding the emergence of new rules of international law.Therefore,China,at the stage of peaceful rise,should look squarely at the dialectical relationship between international soft law and the traditional sources of international law under the framework of Article 38 of the Statute of the International Court of Justice,and the important position of international soft law in the dynamic system of sources of international law.Furthermore,China should give full play to initiative on the basis of the formation mechanism of international soft law,by embodying the harmonious value with certain justice connotation into the value system of international law,guiding the construction of professional community with legal authority,and enhancing the leading ability of international organizations,so as to strengthen the ability of international law-making of China and pursue international justice through diplomatic practice of a community of shared future for mankind and “The Belt and Road” initiative,and finally to lead the international community to achieve global justice.
Keywords/Search Tags:International Soft Law, the Statute of the International Court of Justice, sources of international law, global governance, international law-making
PDF Full Text Request
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