论国际法渊源的范畴

On the Scope of International Law Source

长期以来,国际法的渊源问题在学界难以得到一致解释,但是相当一部分学者将国际法的渊源理解为国际法的表现形式。以这种理解作为前提,《国际法院规约》第38条只是国际法院的裁判依据,而非对国际法渊源的说明,但它又的确为探究国际法渊源的范畴提供了一条线索。在对第38条所罗列的裁判依据和其他类别国际资料进行逐个分析和评论之后,现阶段,国际法渊源的范畴应当是国际习惯和国际条约,且两者之间不存在等级关系。

For a long time, there is no unanimous explanation on the source of international law. But a large part of scholars consider it as the form of international law. Based on this understanding, it can be reached that the Article 38 of Statute of the International Court of Justice is just the basis of judicial judge rather than explanation of the source of international law while it does provide us with clues to the scope of the source of international law. After analysis of and comments on the items in and out of Article 38, it is concluded that the scope of the source of international law includes international convention and international eustom, both of which are equal to each other as far as the legal power.