• 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...


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.


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.


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

    They appeal not to the general feeling of moral rightness, but to precedents, to treaties, and to opinions of specialists. They assume the existence among statesmen and publicists of a series of legal as distinguished from moral obligation in the affairs of nations".

  2. Insanity, diminished responsibility and automatism.

    He was then convicted for murder, on appeal he then tried to rely on the defence of provocation with which the jury might take into consideration the addiction to glue sniffing. Now, English law relies on two aspects both factual and regulative, the factual aspect being the accused loss of

  1. Public International Law.

    I will start with the UN resolution, a UN resolution cannot be seen as formal sources of law, states are not bound to follow resolutions even if they are adopted unanimously, therefore even if they voted in favour of the 1975 resolution, it has no binding effect.

  2. The right of silence long

    The case allowed for the averting of an inference if the defendant, having been advised to say nothing, genuinely believed that he was entitled to follow that advice without cost. Since the enactment of s.34 there has been a clear division between two schools of judicial thought concerning the impact

  1. "Critically discuss the role and importance of international commercial arbitration as an alternative dispute ...

    parties and therefore reduce the uncertainty about the resolution of the dispute. We can add that, even if a party cannot obtain agreement on its preferred juridiction, it can at least preclude litigation in highly undesirable forums. ICA can be ad hoc which involves selection by the parties of the

  2. The European Court of Justice

    6 The Council of Ministers, is a legislative body of the communities. Under article 145 it is responsible for the general co -ordination of the economic policies of the member states and has power to take decisions and legislate for the communities. It represents the interest of individual member states.

  1. Ethics in practice

    This is a conflict often difficult to resolve: and he should not be under pressure to decide it wrongly"12. Barristers are almost unique among professionals in that they have, until quite recently, remained almost immune from action brought against them for professional negligence.

  2. The International Criminal Court - An Idea Who's Time Has Come…

    "The ICC is an independent judiciary body capable of trying individuals and serving as a deterrent to the Hitlers, Pinochets and Milosevics of the future."1 The ICC will deal with the most serious crimes committed by individuals including genocide, crimes against humanity, war crimes and aggression.

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