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

Abstract

The paper discusses the relationship between the sources of international law and fairness. The author addresses 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 responds to two other, 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? The author claims that fairness is neither a material nor 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 term ‘formal sources’ is used in the paper in the twofold meaning. First, as instrumentum or ‘containers’ for rules and principles (where the law can be found), and, second, as processes and forms by which rules and principles are made. The author’s proposition is that fairness is primary relevant to the latter meaning. 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. Rules and principles of international law are fair when they satisfy the requirements of a fair international law-making process, in particular, certainty, transparency and authoritativeness/representativeness. That is why, fairness may be seen as a crucial criterion of the legitimacy of international law-making processes. There are close relationships between fairness, law-making, legal certainty, effectiveness of rules and principles and the rule of law. These relationships mark the place of fairness in the sources of international law. The author seeks to point out that fairness as a product of the constantly changing social and political environment, 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.