Die Rechtsquellen des Völkerrechts in der Globalisierung: Zu Notwendigkeit und Legitimation neuer Quellenkategorien

The contribution seeks to shed light on the need of new categories of sources in international law. The traditional sources of international law have experienced substantial changes and face new challenges due to novel developments in international relations in the era of globalisation. Traditional sources of international law such as those being enumerated in Article 38 Statute of the International Court of Justice only refer to the state as an actor on the international plane. However, new international legal personalities and non-state actors have broadened and enriched the sources of international law. As for concrete changes, firstly, there is an increased importance of some sources in international law. In particular, the proliferation of international justice and international dispute settlement mechanisms has contributed to the progress and further development of international law as well as to the revitalisation of general principles of law. Second, there has been a notable change in the creation of international law even within the traditional sources. While international treaties used to have been planned and adopted exclusively by states they are now to a greater extent prepared and elaborated by international organisations and non-state actors. The same applies to the rules of international customary law as these are not solely developed by state actors anymore. Third, even as a consequence of the aforementioned changes, especially international treaties not only engender certain third-party effects but also lead to the participation and responsibility of non-state actors in international law. The new actors and the related phenomena in the creation of international legal rules finally elucidate the confines of the concept of state consent as legitimation for international law. These changes in international law-making and international relations prompt the need for new categories of sources in international law and for a new foundation of international law beyond state consent. As regards new sources, 'soft law' being an infinite variety of traditionally non-legally binding instruments used in contemporary international relations by States and international organisations, appears to be quite promising as it is not subject to the formal requirement of State consent. Based on the assumption that only such soft law can be eligible to be an original source of international law whose legal relevance is not related to traditional sources, international law shall be stretched to soft law as informal way of law-making and incorporate the latter as a new source category of international law. Irrespective of those considerations, new source categories in general shall not only derive their validity from the idea of State consent serving the efficiency of and equality of states in international law, but from legitimacy assuring mechanisms such as participation, representation and consultation within the process of international law-making. Overall, it will become clear that the creation of new legal sources in international law and the changes with regard to traditional sources of international law entail an adjustment of the bases of validity and legitimation of the international law.