Article 38 of Icj Statute

NKUMBA UNIVERSITY

SCHOOL OF LAW AND INSTITUTE OF CRIMINAL JUSTICE

INDEX NO.

2013/AUG/ LLB /B12978

COURSE UNIT

PUBLIC INTERNATIONAL LAW

SEMESTER

2nd SEMESTER FEB –JUN 2016

LECTURER

PROF. FABIOUS OKUMU ALYA

SUBMISSION DATE:

1ST MARCH 2016

QUESTION

Critically analyse the import of Article 38 (1) (a) – (d) of the statute of the

international court of justice in understanding sources of international law in

the contemporary world.

International law is a law which consists of rules that deal with the relations between states. This

was the traditional approach in purview of what international law deals with and/or its major

concern. These rules of international law later on applied on other entities such as individuals,

international organisation that is to say, United Nation General Assembly, corporations and nongovernmental organisation. This indeed points out that the definition of international law bases

on a contextualised concept of defining it. In this regard a question arises what constitutes

international law or where does international law originates?

This draws us at article 38 of the ICJ statute which enumerates the sources of international law;

however, it is argued that the article is silent on whether the enumeration under it constitutes

sources of international law. Article 38 (1) inter alia provides that “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 expressly

recognised by the contesting states; b) international custom, as evidence of a general practice

accepted as law; c) general principles of law recognised by civilised nations; d) subject to the

provision of article 59, judicial decision and the teachings of the most highly qualified

publicists of the various nations as subsidiary means for the determination of rules of law”. A

person...