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