国际法渊源概念的剖析(英文）

　　Abstract:Since the concept of the origin of law was put forward, it has been controversial. As a sub-concept of the origin of law, the origin of international law is also controversial in the field of international law. Only by clarifying the meaning of origin, explaining the concept of origin of international law from the same semantics, clearly recognizing that the concept of origin of international law is the manifestation of rules, principles and systems of international law, distinguishing the manifestation of international law from the location where international law exists, can the concept of origin of international law be more accurately and reasonably generalized.

　　

　　Key word:Source of international law; Source of law; Form of expression;

　　

　　1. Questions raised

　　

　　In the field of international law, the concept of the origin of international law has always been a controversial issue. There are great differences between Chinese and foreign scholars on the concept of the origin of international law. Mr. Wang Tieya did not directly define the origin of international law, believing that “the origin of law is the first place where legal principles, rules and systems appear”. [1] Mr. Zhou Guosheng believes that the origin of international law is “the way or procedure in which international law is formed as an effective legal norm”. [2] Ian Brownley negated the distinction between formal and substantive sources, believing that substantive sources are the real sources of international law. [3] Jennings Watts agrees with the division of formal and substantive sources and holds that the concept of “source” of legal rules is important because it can make legal rules recognized and distinguished from other rules. [4] Mr. Wang Huhua clearly defined the concept of the origin of international law as “the real existence of the principles and rules of international law and the manifestation of their legal effects”. [5]

　　

　　Many scholars have heated discussions on the concept of the origin of international law. Whatever their views on the concept of the origin of international law, they have unanimously recognized that the origin of contemporary international law is the three origins of international treaties, international customs and general legal principles stipulated in Article 38 of the Statute of the International Court of Justice. Since the content of the origin of international law has been determined, why does it cause much discussion among scholars? How should the concept of the origin of international law be defined?

　　

　　2. The Impact of the Origin of Law on the Origin of International Law

　　

　　If we want to really clarify the concept of the origin of international law, we must first clarify the meaning of the legal term “origin”. As an independent subject, international law came into being very late. Generally speaking, the Westphalia Peace Treaty marked the starting point of modern international law. Therefore, many legal terms in international law inevitably need to draw lessons from the legal terms of domestic laws of various countries, and the word “origin” originated from the domestic laws of various countries and was introduced into international law by jurists. “The word `origin'comes from fonts Juris of Roman law, which means the source, source and source of law. Initially, the term `source of Law'refers to the source of the content of law. In the 19th century, Austin interpreted ”the origin of law“ as the source of legal effect. After Austin, two English jurists Clark and Bart Prock interpreted ”the origin of law“ as the information provided by epistemological law, i.e. the form of law. In addition, some scholars define the term ”origin“ as ”the place where the law is found“. Thus, the term ”source of law“ has produced four completely different meanings in the historical evolution: the source of law content, the source of legal effect, the form of law, and the location of law. International law scholars have defined the concept of origin of international law out of their self-understanding of the term ”origin“. However, due to the different starting points and meanings of different scholars, there are different opinions on the definition of the origin of international law.

　　

　　First of all, although Mr. Wang Tieya did not directly define the origin of international law, he indirectly gave his views on the concept of origin of international law. He believed that the origin of law was the first place where legal principles, rules and systems appeared. [1] To understand Mr. Wang Tieya's definition of the origin of international law, we must understand the term ”place of first appearance“. In fact, ”the first place“ explains the origin, origin and source of the principles, rules and systems of international law. That is to say, the origin of international law defined by Mr. Wang Tieya is the source of the principles, rules and contents of international law. This definition is based on the original meaning of the word ”origin“. It is called Fontes inuris in Roman law, Rechtsquellen in German, Sources Du droit in French and Sources of Law in English. [7] Mr. Wang Tieya defines the origin of international law from the angle of the origin of law. There are some problems in its definition. If the origin of international law is only defined as ”the place where it first appears“, does the rules, principles and systems of international law which appear in the second and third times belong to the origin of international law? Mr. Wang Tieya's viewpoint does not generalize the complete concept of origin.

　　

　　Secondly, Mr. Zhou Guosheng believes that the real source of international law is the way or procedure formed as an effective legal norm, not the place where the norms of international law first appeared. [2] Mr. Zhou Guosheng believes that the place where the norms of international law first appeared is the historical origin of international law, not the concept of the true origin of international law. Mr. Zhou Guosheng distinguishes two concepts here: the origin of international law and the historical origin of international law. The historical origin of international law refers to the concept of the origin or origin of the principles, rules and systems of international law, that is, the origin of law. From the essence of the word ”origin“, Zhou Yinsheng concludes that the origin meaning is the manifestation of the principles, rules and systems of international law. Although Mr. Zhou Guosheng directly defined the origin of international law as the manifestation of principles, rules and systems of international law, this definition essentially equates the origin of international law with the concept of manifestation of international law. What is the significance of the legal concept of origin of international law different from the manifestation of international law? Mr. Zhou did not give a clear explanation.

　　

　　Finally, Mr. Wang Huhua believes that the definition of the concept of the origin of international law is ”the real existence of the principles and rules of international law and the manifestation of their legal effects“. [5] Mr. Wang Huhua's definition of the concept of origin of international law has three connotations: firstly, the origin of international law should be identifiable; secondly, the origin of international law should have the effect of law; thirdly, the origin of international law should be the manifestation of the principles, rules and systems of international law. Unlike the views of the two scholars mentioned above, Mr. Wang Huhua compounded the concept of the origin of international law and made it have three meanings.

　　

　　But this view will inevitably bring the following two problems: First, the concept of the origin of international law is not clear. Ideally, a concept should have a layer of meaning, so as to maintain the clarity of a concept. According to Mr. Wang Huhua, the origin of international law is not only the manifestation of principles, rules and systems of international law, but also the identification of principles, rules and systems of international law. It is difficult for these two connotations to coexist in the same concept. It's like a water cup is the carrier of water, but the water cup itself can't recognize whether water or juice is in the water cup. In fact, the carrier is only the carrier, and it can not play the role of identifying the principles, rules, systems of international law and the principles, rules and systems of non-international law. The way to distinguish the principles, rules and systems of international law from those of non-international law is to analyze the attributes of these principles, rules and systems rather than rely on carriers to identify them. Second, the origin of international law can not be used to prove whether a rule, principle or system of international law has legal effect. Whether a principle, rule or system of international law has legal effect should be judged on a case-by-case basis. For example, a treaty has legal effect only for a Contracting Party and certainly not for a non-contracting party. This proves that the manifestation of international law can not prove whether a rule, principle and system of international law in general has legal effect. Therefore, the author has doubts about Mr. Wang Huhua's views in the above two points.

　　

　　3. Discovering the Existence of International Law and the Forms of International Law

　　

　　At present, the definition of the term ”origin“ in the mainstream jurisprudence circles has a major theoretical loophole, that is, the two concepts of the origin of law and the form of expression of law are difficult to distinguish. The origin of law as an independent legal concept must have its own independent value, otherwise this concept will be directly absorbed by the manifestation of law and will no longer exist. The important difference between the origin of law and the manifestation of law lies in the fact that it has already been. ”The origin of law is the finished product and preparatory storehouse of law, and it is the probable law and the possible law. The manifestation of law shows the existing and realistic concepts. [10] This kind of reserve bank can not only fulfill the function of discovering the law, but also help judges fill in the legal gaps and solve the problems that the law does not expressly stipulate.

　　

　　Turning to the perspective of international law, the concept of origin of international law should be the place where rules, principles, systems and corresponding forms of expression of international law exist. The premises do not include actual and discovered international law, but unknown international law. This premise contains Article 38 of the Statute of the International Court of Justice, which is not considered to be a manifestation of international law, such as judicial precedents and the doctrine of public jurists with the highest authority in all countries, but is not limited to it. Such as domestic law, basic principles of international law, international comity, principles of natural law and so on are places where international law exists.

　　

　　First, the discovery of the existence of international law can also solve cases without international treaties, international customs and general legal principles. Scholars cited the basic principles of international law, international comity to deal with such cases is in fact the use of the theory of finding the existence of international law. The basic principles of international law and international comity are not stipulated in any treaty, custom or general legal principle, but they can also help the International Court of Justice deal with practical cases.

　　

　　Secondly, the discovery of the existence of international law can explain the reasons for the formation and change of the manifestations of international law. Immediately following the example of the basic principles of international comity and international law in the preceding paragraph, some rules, principles or systems in the basic principles of international comity and international law can be transformed into rules, principles or systems of international law after repeated practice and wide acceptance by the international community. The aggregation of rules, principles or systems of a certain type of international law can become a new manifestation of international law with the wide recognition of the international community. By using the concept of finding the place where international law exists, we can clearly explain how the manifestations of international law come into being, and at the same time solve the problem of whether the manifestations of international law will change. The manifestation of international law originates from the discovery of the existence of international law, which has been tested by practice and recognized by various countries. It has risen from an unprecedented manifestation of international law to an existing manifestation of international law. Therefore, the author believes that the most reasonable interpretation of the origin of international law should be that the origin of international law is the place where the principles, rules, systems of international law and their corresponding manifestations exist.

　　

　　Explaining the origin of international law only in the form of expression is not because the interpretation is so correct. On the contrary, replacing the origin directly by the form of expression limits the value and significance of the term “origin”. As mentioned above, the interpretation of the origin of international law as a manifestation of international law confuses the discovery of the relationship between the location and manifestation of international law. But the reason why the concept of the origin of international law is only defined as the manifestation of the rules, principles and systems of international law is that this definition has been unanimously recognized by the international jurisprudence. Most international law scholars recognize Article 38 of the Statute of the International Court of Justice as an authoritative statement of the origin of international law, that is, the origin of international law is the manifestation of international treaties, international customs and general legal principles.

　　

　　In addition to recognizing that the origin of international law is a manifestation, the above scholars also believe that the origin of international law should have other connotations. But it is precisely the other connotations that scholars have identified that make the concept of the origin of international law more complex or logically contradictory. The views of representative scholars have been analyzed one by one above. In fact, back to the logical starting point, since the word “origin” has a variety of meanings, in fact, as long as one of the meanings is taken to clearly define the word “origin”, the concept of “origin” can be clearly explained. The problem lies in that in the field of jurisprudence, all kinds of explanations of “origin” are reasonable and difficult to choose, whether they are interpreted as “source of content of law”, “source of validity of law”, “manifestation of law” or “place of discovery of law”. However, this problem does not exist in international law, because the concept that the manifestation of international law is equivalent to the origin of international law has been deeply rooted in the hearts of the people, breaking this tradition and redefining the concept of the origin of international law is costly. It is advisable to define the origin of international law as the manifestation of rules, principles and systems of international law.

　　

　　The main reason for the long-standing controversy over the origin of international law in the field of international law lies in the various interpretative meanings of the origin of international law. The author only defines the origin of international law as the manifestation of rules, principles and systems of international law, mainly based on the unanimous recognition of the definition by academic circles. But in fact, the most reasonable definition of the origin of international law should be to find the existence of the principles, rules, systems and their corresponding manifestations of international law. Since the origin of international law has been clearly defined, defining “the place where international law exists” as the origin of international law will cause the concept of origin of international law to have double meanings, which is not conducive to the accuracy of the concept of origin of international law and the unification of the definition by the international law academia. Therefore, the author chooses to abandon “the place where international law exists” as the definition of the concept of origin of international law.

　　

　　conclusion

　　

　　It should be pointed out that if the concept of the origin of international law is to be clear and clear, it must have only one meaning and cannot be interpreted in many ways. At present, the most reasonable explanation for “origin” is “the place where the law is found”. The concept of “origin” should be different from the manifestation of law. However, due to the accumulated habits of international law theory, the origin of international law is generally defined as the manifestation of rules, principles and systems of international law. The concept of the origin of international law can be so fixed as customary law, but it must not be accompanied by other meanings. As for the important theoretical issue of finding the place of rules, principles and systems of international law, it can be defined in other terms of international law, and must not be confused with the manifestations of law.

　　

　　Reference

　　

　　[1] [6] Wang Tieya. International Law [M]. Beijing: Law Press, 1995.　　

　　[2] [8] Zhou Guosheng. International Law [M]. Wuhan: Wuhan University Press, 2007.　　

　　[3] [English] Ian Brownley. Principles of Public International Law [M]. Zeng Lingliang, Yu Minyou, Translation. Beijing: Law Press, 2003.　　

　　[4] [English] Jennings Watts Oppenhei International Law [M]. Wang Tieya, Chen Gongchuo, Translated. Beijing: China Encyclopedia Press, 1995.　　

　　[5] [9] Wang Huhua. Definition of the Origin of International Law [J]. Law, 2017 （1）。　　

　　[7] Chen Jinzhao. Jurisprudence [M]. Beijing: Peking University Press, 2010.　　

　　[10] Xie Hui, Chen Jinzhao. Jurisprudence [M]. Beijing: Higher Education Press, 2005.