• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Article 38 of the statute of the International Court of Justice(ICJ).

Extracts from this document...

Introduction

INTERNATIONAL LAW AND INSTITUTIONS M07914 COURSEWORK NAME: JACQUELINE YEE-BING, LEE STUDENT NUMBER: 01228801 NUMBER OF WORDS: 895 In relation to Article 38 of the statute of the International Court of Justice(ICJ), Schwarzenberger. defined; 'In order to enable the World court to apply any asserted rule of international law, it must be shown that it is the product of one, or more, of three law creating processes.'1 These processes are; treaties, international customary law, and the general principles of law recognized by civilized nations. References to judicial decisions or to the teachings of highly qualified publicist are secondary sources of international law. However, in accepting that there is a material and formal distinction between the sources of law, it is reasonable to assume that there is some form of hierarchy within the Article 38 as the sources cannot be equally important. Treaties are of growing importance and the 'maids-of-all-work'2 in international law. Often, they resemble contracts in national system of law, but they also perform functions, which in national systems, would be carried out by Acts of Parliament. The only distinction between a 'law-making treaty' and a 'contract-treaty' is one of content. However, there had been argument as to whether treaties are a formal source of law as opposed to simply being a source of obligation. Fitzmaurice explained through reference to the principle pacta sunt servanda3 (Gabcikovo-Nagymaros4 Case), there is an antecedent general principle of law5 that the obligation must be carried out, but that the obligation is not, in itself, law. ...read more.

Middle

In effect, this is what creates a hierarchy of the sources of law. When a treaty comes into force, it will overrides customary law as between the parties to the treaty (Wimbledon Case)12. States make treaties because they regard the relevant rules of customary law is inadequate. However, treaties can come to an end through desuetude13, which often takes the form of the appearance of a new rule of customary law, conflicting with the treaty. The only difference between treaties and custom is one of type, treaties representing an express agreement and custom characterising an implied agreement. . General principles is the third source of law, where principles that are common to all or most national systems of law is used to fill the holes in international law. Today, it has come to regulate certain contracts made by individuals or companies with states or international organizations such as, contracts of employment in international organizations. Treaties and customary law contain limited rules applicable to such topics and the gap has been filled by recourse to general principles of commercial and administrative law, borrowed from national legal systems. However, it is important to note that treaties and custom prevail over general principles of law in the event of conflict. Nevertheless, there may be other hierarchies based on other grounds as in Hulsroj article14, who thinks general principles of law is a better source of law than customs. ...read more.

Conclusion

* Sir Robert Jennings and Sir Arthur Watts, eds., Oppenheim's International Law, 9th ed. (London: Longman, 1996). 1 Schwarzenberger, The Inductive Approach To International Law (1965) 2 Akehurst's Modern Introduction To International Law-1997 Routledge p.37 3 Art. 26 Vienna Convention On The Law Of Treaties. 4 Gabcikovo-Nagymaros Case (1997) ICJ Reports, (1998) 37 ILM 162 5 Fitzmaurice, "Expression of Consent to be Bound by a Treaty as Developed in Certain Environmental Treaties" in Klabbers and Lefeber, eds., Essays on the Law of Treaties (1998), pp. 59-80. 6 Rosalyn Higgins -Problems and Process, Ch 2 7 Right Of Passage over Indian Territory, International Court of Justice (ICJ) Rep. 1960, p6 8 North Sea Continental Shelf Cases, ICJ, Rep. 1963, p.3 9 Asylum Case, I.C.J. Rep. 1950, p.266 10 Anglo-Norwegian Fisheries Case, I.C.J. Rep. 1951 p.116 11 Lotus Case, P.C.I.J. Rep., ser. A, No.10 (1927) 12 Wimbledon Case, P.C.I.J. Rep.,Ser. A, No.1 (1923) 13 Desuetude - a term used to describe the situation in which the treaty is consistently ignored by one or more parties, with the acquiescence of the other party or parties. 14 Hulsroj, Peter - Three Sources - No River .A Hard Look at the Sources of Public International Law With Particular Emphasis on Custom and ' General Principles of Law' Austr. JIL 54 (1999), 219 15 Nicaragua Case (Military and Paramilitary Activities in and against Nicaragua) (Nicaragua v. The United States) Case (Merits), ICJ. Rep. 1986 16 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon, 1994) ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree English Legal System section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree English Legal System essays

  1. Case Note on Belgium v Spain [1970] ICJ Rep. 4: Barcelona Traction Case: Its ...

    On the question of diplomatic protection, the court considered that international law was in continuous evolution and was called upon to recognize institutions of municipal law. Customary international law considers those rules generally accepted by municipal legal systems. Where it was a question of an unlawful act committed against a

  2. The right of silence long

    not necessarily mean that an adverse inference should be drawn, as the defendant might be distinctly weak and vulnerable so that it was not reasonable to expect him to give an account to the police; it was a matter for the jury.

  1. Ethics in practice

    They want to have choice, and they want to have confidence in a transparent and accountable industry. Legal services are crucial to people's ability to access justice. They must therefore be regulated and made available in such a way as to meet the needs of the public - individuals, families and businesses.

  2. To what degree of harm should Article 8 protect the right of the individual ...

    The difficulty that those seeking to use Article 8 to protect their right to consent to harm will face is that so often these cases are concerned with violence of some gravity. One could submit that this is obviously so for otherwise consent would most probably form a viable defence at domestic law.

  1. Discuss the origins of international law by examining a number of theories, which have ...

    Austin's theory is one of the theory which has "enjoyed wide acceptance is that international law is not true law, but a code of rules of conduct of moral force only" (Starke 1989:18). Dixon and McCorquodale (1991:3) suggest, according to Austin's theory, laws are the result of edicts issuing from a determinate sovereign legislative authority.

  2. The International Court of Justice (ICJ) is one of the six principal organs of ...

    of legal views or of the interests between two persons.'11 It is essential to note that for the dispute to be 'legal' or 'jurisdiciable' it must be one competent of legal analysis and for a dispute to arise, there must be evidence of disagreement.

  1. An Historical Introduction to the Constitution of the United States

    He became president in the election of 180019. The Sedition Act expired in 1801 and thanks to Jefferson it was not until 1917 that another sedition law was passed. bb. Espionage Act of 1917 The Espionage Act of 1917 prohibited any disloyal interference with the form of government in the U.S.20.

  2. The Dynamics of pre-legislative processes and the Dialectics of the Law Commissions Exercises[

    53 provided, "Such laws as may be applicable to all classes of inhabitants, due regard being had to the tights, feelings and peculiar usages of the people, shall be enacted and all laws and customs having the force of law within the territories shall be ascertained and consolidated and as occasion may require amended.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work