Article 38 was drafted seventy years ago, to guide the PCIJ to be a comprehensive source for international law.

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Article 38 was drafted seventy years ago, to guide the PCIJ to be a comprehensive source for international law. Unlike in national legal systems, there is no supreme-authority that decides matters relating to international law. However these sources do exist even though they are more ambiguous than those in national laws. Article 38(1) of the Statute of the International Court of Justice lists the main sources of international law. In making decisions on International disputes submitted to it, Article 38 makes the ICJ apply the following:

  1. International conventions, general or particular, establishing rules expressly recognized by States;
  2. international custom, as evidence of a general practice accepted as law;

the general principles of law recognized by civilized nations.

The statute of the ICJ describes customary international law as, “evidence of a general practice accepted as law.” Custom is realized to be made up of two components state practice and opinio juris; state practice is when states generally practice the law on a consistent basis, opinio juris is when states carry out acts due to some sense of legal obligation. For example, states often give suspects the right to an attorney within a reasonable time. In most countries this practice is observed stringently and consistently and so it is a customary. However, there are laws that though a state professes to uphold yet doesn’t in practice and thus it can only be called customary in name. Most countries outlaw torture yet it continues in the world. It is for this reason that establishing a single rule of customary law is difficult. The requirement for such a rule would have to be based on treaties and conventions that states believe and uphold consistently and rigorously.

        In continuing one must also take into account the difference in what a state says and what it does. In the case of torture it is prohibited by virtually all civilized nations but not backed by actions. The weight then accorded to a state in terms of what it does is far greater than what it says. The idea of modern custom is different from that of traditional customs in that the former, “emphasizes opinio juris” while the latter emphasizes state practice. Modern custom in contrast with traditional custom is a deductive process which states general rules and then goes from there rather than state practices. In the modern world, treaties conventions and the declarations by organizations such as the U.N can create new customs, declare existing ones and, “crystallize emerging customs” Yet whether they become customs that are practiced consistently depends on a number of issues including whether they become part of state practice. For example, the merits decision in Military and Para-military Activities in and Against Nicaragua; The court paid lip-service to the traditional test of custom and instead derived its judgment of non-use of force and from non-intervention from statements from the U.N. 

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To take Anthony D’Amato’s distinction between actions and statements, “Actions can form custom only if accompanied by an articulation of the legality of the action.”

        The possibility of instant custom in today’s global world is clearly there. The theory of instant custom was officially introduced by the legal scholar Bin Cheng, who wrote, “As international law is a horizontal legal system in which states are both the law-makers and the subjects of the legal system, opinio juris can arise or change instantaneously.” To take a recent example, the newly formed Bush Doctrine is an example of an instant custom in the ...

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