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Formalism and the Sources of International LawA Theory of the Ascertainment of Legal Rules$
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Jean d'Aspremont

Print publication date: 2011

Print ISBN-13: 9780199696314

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199696314.001.0001

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The Configuration of Formal Ascertainment of International Law: The Source Thesis

The Configuration of Formal Ascertainment of International Law: The Source Thesis

Chapter:
(p.148) 7 The Configuration of Formal Ascertainment of International Law: The Source Thesis
Source:
Formalism and the Sources of International Law
Author(s):

d'Aspremont Jean

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199696314.003.0007

This chapter examines the law-ascertainment yardsticks currently used in the mainstream theory of the sources of international law with a view to flagging and addressing some of their flaws. It simultaneously attempts to refresh law-ascertainment criteria in contemporary international law. Such a revitalization is endeavoured on the basis of the theoretical model mentioned above according to which rules are ascertained through their pedigree (the source thesis). This chapter first expounds on how the source thesis has materialized in the theory of the sources of international law and in the case-law of international courts and tribunals, showing that, to a large extent, the formal character of law-ascertainment has been fabricated. The illusion of formalism inherent in the concept of customary international law provides a good illustration thereof. The chapter then tries to shed some light on possible avenues for a modernization of the source thesis in the theory of sources of international law. In particular, drawing on some practical examples, a plea is made for a move away from the law-ascertaining role of intent especially in the theory of treaty-ascertainment.

Keywords:   source thesis, formalism, modernization, treaties, ascertainment

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