The law applicable in icj, sec 381 and 2 on the basis of article 38 of icj statute, 5 distinct sources can be identified. Another outcome, where such consent is more implicit, is customary. In this video i discuss sources of international law. Statute of the international court of justice article 38 1 this article, describing the law to be applied by the icj when deciding cases within its jurisdiction, is generally considered to be the most authoritative enumeration of the sources of international law all emphasis added 1. The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply. Article 38 of the statute of the international court of justice is convenient, but is it authoritative. Sources of international law icelandic human rights centre. Article 2 the court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law. Uncertainty in the formal sources of international law. In earlier stages of the development of international law, rules were frequently drawn from municipal law.
May 28, 2016 the interactional law framework takes seriously what international actors do, both as they continue to rely on sources listed in article 38, and as they develop new ways of making international law. B4 international law regarding each step is codified in the 1969 vienna convention on the law of treaties. This paper discusses the sources of international investment law and highlighted the distinctive features of this branch of international law visavis general. Table of contents overview of international law il 9. For any study of the sources of international law article 38 of the statute of the international court of justice1 is always the starting point,2 which is recognized as. State interest and the sources of international law. Sources of international law by advocate raja aleem. Introduction to international law public international law commonly referred to as international law governs relationships between and among entities with international legal personality. Private international law o also known as conflict of laws. In this sense, the catalogue of sources of international law is nothing. The statute of the international court of justice, part of the charter of the united nations, defines the sources of international law in the following language.
Sources of international law public international law. As opposed to the majority of existing works on the subject, state interest and the sources of international law takes a biggerpicture approach to a number of distinct problems in international law scholarship by looking at the building blocks of international relations on the one hand, and merging this with sources doctrine on the other. Article 38 of the statue of the international court of justice icj says how conflicts should be approached. Sources of international investment law moshe hirsch the point of departure for a discussion on sources of investment law is the recognized list of sources of general international law according to article 38 of the statute of the international. Article 381 of the statutes of icj provides a reflection of the sources of international law, though not accurate and article 38 did not expressly mention sources but it is usually invoked as sources of international law. Sources of international law public international law library. Historically, custom had played a great role in the formation of the rules of international law. The list of sources in article 38 of the statute is frequently criticised for being incomplete. The chapter, therefore, explores the lawmaking processes listed in article 38 in turn, and then moves on to consider newer processes. Pdf sources of international law in the light of the. Feb 20, 2015 article 381 of the statute of the international court of justice is widely recognized as the most authoritative statement as to the sources of international law.
The task of this essay is to examine if there is a need for the creation of new sources of international law besides those provided for in the statute or if the existing ones need improvement to cover all aspects of international law. The discussion usually revolves around the four classic sources contained in article 38 of the statute of the international court of justice. Introduction it is generally accepted that the sources of international law are listed in the article 381 of the statute of the international court of justice, which provides that the court shall apply. A rule of international law must derive from one of the recognized sources, namely. Statute of the court international court of justice. Table of contents overview of international law il 9 definition 9. One such outcome, in which consent is given explicitly to a rule of international law, is a treaty. Article pdf available august 2017 with 4,303 reads.
Article 381 of the statute of the international court of justice icj statute lists the traditional formal sources of public international law, which the international court of justice icj is bound to have regard to. Sources of international law sources of international law. For any study of the sources of international law article 38 of the statute of. International custom, as article 38 indicates, is one of the primary sources of international law which the icj shall apply. Jul 03, 2011 though formally the most widely applicable and emanating source of international law creating force of application, they are neither the only source nor the most authoritative one, for creating rights and obligations under international law. This article was downloaded from harvard universitys dash repository. Sources of international law according to article 38 of international court of justice statute, there are four sources of international law. According to oppenheim treaties and customs are regarded as the exclusive sources of international law. The earliest expressions of international law were the rules of war and diplomatic relations.
Statute of the international court of justice article 381 this article, describing the law to be applied by the icj when deciding cases within its jurisdiction, is generally considered to be the most authoritative enumeration of the sources of international law all emphasis added 1. Westlake also says that custom and reason are two sources of international law. Sources of international law, in manual of public international law 116 m. Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the league of nations, or to the permanent court of international justice, the matter shall, as between the parties to the present statute, be referred to the international court of justice. Article 381 of the statute of the international court of justice lists the sources that the icj uses to resolve disputes as follows. Article 38 of the statute of the international court of. The role of general international law gil within the system of international law sources can be discussed starting from the question of whether sources of international law are conceivable outside the realm of art 38 of the icj statute. Finally, the paper formulates a series of questions whose main aim is to make a call for rethinking the sources of international law.
Though formally the most widely applicable and emanating source of international law creating force of application, they are neither the only source nor the most authoritative one, for creating rights and obligations under international law. Sources of international criminal law publish your masters. Statute of the international court of justice article 381. International human rights law and article 381 of the.
Pdf sources of international law in the light of the article 38 of the. This article argues that two commonly used approaches to provide a theoretical underpinning deduction and induction are fundamentally flawed in their pure forms. What is the basis of our knowledge regarding customary lawmaking. Sources of international law in the light of the article 38 of the. Article 38 1 of the statute of the international court of justice is generally recognized as a.
Bariely and westlake says that main sources of international law are cause and reason. The sources of international law institute for international law. States can also ask the court to decide a case by using principles. Consequently, scholars, lawyers, and others involved with international law have been looking into the four sources of law that article 38. Sources of international law istanbul universitesi. The icj is the principal legal organ of the united nations. Article 38 of the statute of the international court of justice. Sources of international law refers to where states, organizations, individuals and courts can find principles of international law one broadly accepted definition of sources of international law includes article 38 of the icj treaty according to this article, the international court of justice shall apply the following sources of law, ranked in order of precedence.
Sources of international law soas, university of london. Although the article 38 is only limited to the sources of international law which the international court of justice must apply, it is generally accepted by the international community that this article identifies the general sources of international law 8. This article examined article 38 1 of the statute of the international court of justice 1945 as a source of international law, the article found out that it is obvious from the establishment of. Article 381 does not, of course, exhaust the list of the sources of international law. Rule not proposed by international law commission as an emerging rule of customary international law, it has not crystallized as a rule 3. International law is decentralized and is founded on the consent of states to accept obligations that limit their behavior. Given the limits of treaties or custom as sources of international law, article 381 may be looked upon as a directive to the court to fill any gap in the law and prevent a nonliquet by reference to the general principles. In fact, international customs constituted the bulk of the rules of international law. The sources of international law are many and states commit to them to different degrees. Article 38 of this statute provide for the sources of international law. Sources of international law can either be formal or material. Article 38 of which created an influential catalogue of sources of. Article 38 of icj mentions the sources of international law i.
A call for rethinking the sources of international law. For any study of the sources of international law article 38 of the statute of the international court. Public international law comprehensive course notes. Sources of international law in the light of the article 38. Formal sources constitute what the law is and material sources identify where the law is to be found. Oct 12, 2011 this positivist, consensual view of international law remains preserved in article 38 of the 1946 statute of the international court of justice icj, which is the definitive statement on the sources of international law. Christopher greenwood, professor of international law. This article will discuss the relevance of article 38 today and highlight some of its weaknesses and points for improvement.
Sources of international law in the light of the article. My attention is drawn to the fact that this very popular manual of international law does not even state that article 38 in fact constitutes the rule regulating the. Nov 12, 20 customary rules of international law are the rules which have been developed in a long process of historical development. Pdf a call for rethinking the sources of international law. Sources of international law l a w l i b r a r i a n a u g u s t 2 0 1 1 know introduction international law is split into two main areas. The internationally accepted classification of sources of international law is formulated in article 38 of the statute of the international court of justice. International conventions treaty customary international law general principals of law judicial decision and teaching of the most highly qualified publicist of international law 1. International law is made primarily by a customary international law and b treaties. Sources of international law in the light of the article 38 of the international court of justice by shagufta.