Reflections on the Role of Fairness for the Sources of International Law

What is it about?

The paper discusses the relationship between the sources of international law and fairness. The author intends to address this issue within the framework the following main question: what is the role of fairness for the formal sources of international law? By analysing the relationship between fairness and the formal sources of international law, the author also seeks to respond two other, although substantively relevant, questions: is the typology of these sources listed in Article 38 of the Statute of the ICJ fair?; is soft law a means to fairness in the sources? He claims that fairness is neither material or formal source of international law but it is a procedural value which supports the legitimacy of the making of international law. Thus, it is relevant to the formal, not material, sources of international law. The author’s proposition is that fairness is primary relevant to the sources conceived as processes and forms by which rules and principles are made. When the international law-making processes are fair, then their results, i.e., the formal sources conceived as instrumentum or ‘containers’ are also fair, and the law may be known. At the same time, the author seeks to point out that fairness does not occur in its pure form in practice. As such, fairness is a ‘matter of degree’ in the international law-making. That is why, a realistic goal of the international legal order is neutralization of unfairness as much as possible.

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