Sources of International Law in the Light of the Article 38 of the International Court of Justice

15 Pages Posted: 3 Jul 2011

See all articles by Shagufta Omar

Shagufta Omar

International Islamic University - Dawah Academy

Date Written: July 2, 2011

Abstract

International conventions and treaties are amongst the most important formal sources of modern international law, also termed as conventional sources. 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. For any study of the sources of international law Article 38 of the Statute of the International Court of Justice is always the starting point, which is recognized as a definitive statement of the sources of international law. It states: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) International conventions, whether general or particular, establishing rules recognized by the contesting States; (b) International custom, as evidence of a general practice accepted as law; (c) The general principles of law recognized by civilized nations; (d) Subject to the provisions of article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rule of law; 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. It is to be discussed in the essay whether is it exhaustive in detailing all the sources of international law? or there are other sources as well? What are the other sources? and is there any hierarchy between them? Discussing the term sources and various sources of international law the statements regarding authority of conventions and treaties as sole sources of international law will also be examined.

Suggested Citation

Omar, Shagufta, Sources of International Law in the Light of the Article 38 of the International Court of Justice (July 2, 2011). Available at SSRN: https://ssrn.com/abstract=1877123 or http://dx.doi.org/10.2139/ssrn.1877123

Shagufta Omar (Contact Author)

International Islamic University - Dawah Academy ( email )

PO Box 1243
Islamabad, Islamabad Capital Territory 46000
Pakistan

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