Abstract
A nineteenth century postulate of positivism suggested that a sovereign could limit his authority to act by consenting to an agreement (as per the principle of pacta sunt servanda) and that treaties bind only those privy to them (as per the principle of pacta tertiis nec nosunt, nec prosunt). This positivist, consensual view of international law remains preserved in Article 38 of the 1946 Statute of the International Court of Justice (ICJ), which is the definitive statement on the sources of international law. This article will discuss the relevance of Article 38 today and highlight some of its weaknesses and points for improvement.
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