The Material Source of International Law: Manifestations of the Universal Juridical Conscience

Abstract

Human conscience, - more precisely the universal juridical conscience, - appears as the ultimate material source of International Law, providing the intrinsic foundation of jus gentium, in pursuit of the realization of justice. The Martens clause sustains the continued applicability of the principles of International Law, the principles of humanity and the dictates of public conscience, independently of the emergence of new situations and of the development of technology. The universal juridical conscience, unlike the voluntarist conception, has consistently given expression to the fundamental principles of International Law. Such principles came to illuminate the formation and evolution of the international legal order, given the flagrant incapacity of legal positivism to explain the formation of customary norms, of visualizing Law as a means for the realization of justice, and of recognizing that the ultimate foundation of Law is necessarily found outside the positive legal order.Keywords:humanity; international law; international legal order; legal positivism; Martens Clause; material source; universal juridical conscience