Art 38(1) Chapter 2 Sources of International Law
Article 38 of statute of ICJ and the sources of international law – the function of the court
primarily to resolve disputes under international law, a) International conventions –
establish rules recognized by contesting States, b) International custom – evidence of
general practice accepted as law, c) general principles of law recognized by civilized
nations, d) subject to Art 59, judicial decisions, teachings of highly qualified publicists,
subsidiary means for determination of rule of law
The court are to use Article 38(1)(a) – (d) in the stance where the international law
applies to resolve a dispute. Art 38 is also seen as an authoritative statement for
international law, legally binding with ICJ because it is provided in the Statute and also it
reflects State practices
According to Article 38(2), the judge can decide the case ex aequo et bono, otherwise
than law, decide based on just and equitable in circumstances, only when parties agree to
it, however, until now there was no case decided under these provisions.
Treaties – Art 38(1)(a) of Statute of ICJ, apply international conventions, rules expressly
recognized by contesting States, convention = treaty, agreement between 2 or more States
or other subjects of international law, Law of Treaties govern treaties
Binding force of treaties – treaty based on consent, expressed by signature or ratification,
once it enters into force, it will be binding upon the parties under customary international
law rules of pacta sunt servanda, principle reiterated under Art 26, Vienna Convention
on Law of Treaties, 1969, ‘Every treaty in force is binding and the States must act upon it
in good faith’, if the State goes against it will incur responsibility unless there is a
concrete reason or defense (Case Concerning Gabcikovo-Nagymaros Project (Hungary-
Slovakia)), cannot impose treaty rules on 3rd party, based on Art 34 of Vienna Convention
on Law of Treaties.
Importance of treaties in international law – it is relatively faster in terms of law-making
process, is quite precise in terms of its law as well because treaty law is written law,
States may enter into a treaty at any point of time when a new rule is required, lack of
precision in customary rules, difficult to judge the exact contents.
Interaction between treaty and customary law – treaties as material source of custom:
concerned with significance of treaties, ratified multilateral treaties, identification of
customary international law, parties to treaties have a fundamental role in recording,
defining rules from custom, also develop them, participation factor plays a vital role with
corresponding to customary international law, near universal acceptance as treaties means
accepted by most of the States ( Prosecutor v Sam Hinga Norman ) – huge acceptance in
terms of international conventions, relevant provisions, Conventions on the Right of
Child, reflect customary international law, based on the case of North Sea Continental
Shelf, ICJ stated 3 ways that treaty interact with customary international law, a) codifies
pre-existing rule of customary international law, b) led to crystallization of rule of
customary international law that already appeared prior to the conclusion of treaty, c)
general practice accepted as law, and finally accepting a new rule of customary
international law, in the North Sea Continental Shelf, Federal Republic of Germany
against Denmark and the Netherlands, concerning delimitation of continental shelf in
, North Sea, although FRG not party to 1958 Geneva Convention, based on ‘equidistance
principle’, Art 6(2) applied due to the fact that the article embodied or crystalized
customary international law, after examining, court found Art 6 did not embody or
crystalize any pre-existing customary international law, court found Art 6 to be a
conventional rule, there was another argument whereby the fact that the rule having its
own impact and having a State practice and it has now been a customary international
law binding on all States, should be declared to the delimitation, court did not deny this
fact, however, certain conditions would have to be satisfied, it should be a ‘norm creating
character’, court doubtful whether Art 6 fulfilled this requirement, court found the
ratification is hardly sufficient to be binding on non-treaty States, State practice was
insufficient, missing on part of non-parties, finally based on this case, treaty may be
binding on all States if a) States are bound by obligation because they are parties to it, b)
States who are no parties also can be bound to it if they have connections with customary
international law, obligation same, origin different.
Parallel existence of treaty and customary rule – Nicaragua case, brought claim against
US because they used armed force and intervened in their affairs, US argued court got no
jurisdiction to hear the case, court had agreed not to intervene on disputes arising on a
multilateral treaty, UN Charter under Art 2(4), Nicaragua claims court had jurisdiction
because the claim can be highlighted under the rules of customary international law,
question was whether customary rules or UN Charter prevailed?, customary rules exist
and prevails against the treaty law.
Custom – it binds on every parties, under Art 38(1)(b), got 2 elements, State practice and
acceptance of that practice as law, also known as two-element approach, this can be seen
applicable under the case of North Sea Continental Shelf, whereby it is stated that the
state must render this as an obligation and abide to the legal obligation, based on the case
of Continental Shelf (Libya/Malta), it is stated that these two approach must be present in
order to create a new rule of customary international law.
State practice : The objective element – customary international law evolves from
practice of States, State practice can involve the exercise of executive, legislative and
judicial decisions, and it is also not limited to practices involving other parties or subjects
of international law but also practices within the State as well such as national legislation
and domestic court decisions, forms of State practice, a) diplomatic acts and
correspondence, b) conduct in connection with treaties, c) legislative acts, etc, now even
State practice can be considered to be in the form of verbal or written form, not just what
they do that counts, for example, a protest by one State addressed to another, Inaction
under certain circumstances can also be assume a certain State to be binding under the
legal obligation eventhough they are silent about it under the doctrine of acquiescence,
Ex: abstaining from instituting criminal proceedings, abstaining from threat or use of
force, to establish customary international law, must be general and consistent.
Generality of practice – got 2 ideas, sufficiently widespread and representative, these are
needed for the rule of customary international law to develop, it must be sufficiently
widespread in the sense that it must not be subdivided to different branches of solutions
as it will not be general then, it will end up being more specific to arise special custom in
Article 38 of statute of ICJ and the sources of international law – the function of the court
primarily to resolve disputes under international law, a) International conventions –
establish rules recognized by contesting States, b) International custom – evidence of
general practice accepted as law, c) general principles of law recognized by civilized
nations, d) subject to Art 59, judicial decisions, teachings of highly qualified publicists,
subsidiary means for determination of rule of law
The court are to use Article 38(1)(a) – (d) in the stance where the international law
applies to resolve a dispute. Art 38 is also seen as an authoritative statement for
international law, legally binding with ICJ because it is provided in the Statute and also it
reflects State practices
According to Article 38(2), the judge can decide the case ex aequo et bono, otherwise
than law, decide based on just and equitable in circumstances, only when parties agree to
it, however, until now there was no case decided under these provisions.
Treaties – Art 38(1)(a) of Statute of ICJ, apply international conventions, rules expressly
recognized by contesting States, convention = treaty, agreement between 2 or more States
or other subjects of international law, Law of Treaties govern treaties
Binding force of treaties – treaty based on consent, expressed by signature or ratification,
once it enters into force, it will be binding upon the parties under customary international
law rules of pacta sunt servanda, principle reiterated under Art 26, Vienna Convention
on Law of Treaties, 1969, ‘Every treaty in force is binding and the States must act upon it
in good faith’, if the State goes against it will incur responsibility unless there is a
concrete reason or defense (Case Concerning Gabcikovo-Nagymaros Project (Hungary-
Slovakia)), cannot impose treaty rules on 3rd party, based on Art 34 of Vienna Convention
on Law of Treaties.
Importance of treaties in international law – it is relatively faster in terms of law-making
process, is quite precise in terms of its law as well because treaty law is written law,
States may enter into a treaty at any point of time when a new rule is required, lack of
precision in customary rules, difficult to judge the exact contents.
Interaction between treaty and customary law – treaties as material source of custom:
concerned with significance of treaties, ratified multilateral treaties, identification of
customary international law, parties to treaties have a fundamental role in recording,
defining rules from custom, also develop them, participation factor plays a vital role with
corresponding to customary international law, near universal acceptance as treaties means
accepted by most of the States ( Prosecutor v Sam Hinga Norman ) – huge acceptance in
terms of international conventions, relevant provisions, Conventions on the Right of
Child, reflect customary international law, based on the case of North Sea Continental
Shelf, ICJ stated 3 ways that treaty interact with customary international law, a) codifies
pre-existing rule of customary international law, b) led to crystallization of rule of
customary international law that already appeared prior to the conclusion of treaty, c)
general practice accepted as law, and finally accepting a new rule of customary
international law, in the North Sea Continental Shelf, Federal Republic of Germany
against Denmark and the Netherlands, concerning delimitation of continental shelf in
, North Sea, although FRG not party to 1958 Geneva Convention, based on ‘equidistance
principle’, Art 6(2) applied due to the fact that the article embodied or crystalized
customary international law, after examining, court found Art 6 did not embody or
crystalize any pre-existing customary international law, court found Art 6 to be a
conventional rule, there was another argument whereby the fact that the rule having its
own impact and having a State practice and it has now been a customary international
law binding on all States, should be declared to the delimitation, court did not deny this
fact, however, certain conditions would have to be satisfied, it should be a ‘norm creating
character’, court doubtful whether Art 6 fulfilled this requirement, court found the
ratification is hardly sufficient to be binding on non-treaty States, State practice was
insufficient, missing on part of non-parties, finally based on this case, treaty may be
binding on all States if a) States are bound by obligation because they are parties to it, b)
States who are no parties also can be bound to it if they have connections with customary
international law, obligation same, origin different.
Parallel existence of treaty and customary rule – Nicaragua case, brought claim against
US because they used armed force and intervened in their affairs, US argued court got no
jurisdiction to hear the case, court had agreed not to intervene on disputes arising on a
multilateral treaty, UN Charter under Art 2(4), Nicaragua claims court had jurisdiction
because the claim can be highlighted under the rules of customary international law,
question was whether customary rules or UN Charter prevailed?, customary rules exist
and prevails against the treaty law.
Custom – it binds on every parties, under Art 38(1)(b), got 2 elements, State practice and
acceptance of that practice as law, also known as two-element approach, this can be seen
applicable under the case of North Sea Continental Shelf, whereby it is stated that the
state must render this as an obligation and abide to the legal obligation, based on the case
of Continental Shelf (Libya/Malta), it is stated that these two approach must be present in
order to create a new rule of customary international law.
State practice : The objective element – customary international law evolves from
practice of States, State practice can involve the exercise of executive, legislative and
judicial decisions, and it is also not limited to practices involving other parties or subjects
of international law but also practices within the State as well such as national legislation
and domestic court decisions, forms of State practice, a) diplomatic acts and
correspondence, b) conduct in connection with treaties, c) legislative acts, etc, now even
State practice can be considered to be in the form of verbal or written form, not just what
they do that counts, for example, a protest by one State addressed to another, Inaction
under certain circumstances can also be assume a certain State to be binding under the
legal obligation eventhough they are silent about it under the doctrine of acquiescence,
Ex: abstaining from instituting criminal proceedings, abstaining from threat or use of
force, to establish customary international law, must be general and consistent.
Generality of practice – got 2 ideas, sufficiently widespread and representative, these are
needed for the rule of customary international law to develop, it must be sufficiently
widespread in the sense that it must not be subdivided to different branches of solutions
as it will not be general then, it will end up being more specific to arise special custom in
