Exam (elaborations)
LCP 4801 ASSIGNMEMT 2 SEMESTER 1
- Institution
- University Of South Africa
LCP 4801 ASSIGNMEMT 2 SEMESTER 1
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A+LCP 4801
ASSIGNMEMT 2
SEMESTER 1
THIS DOCUMENT
CONTAINS ANSWERS
WORKINGS AND
SOLUTION TO THE
QUESTION BELOW
ADMIN
JIMMYCOSMAS
, Question 1
‘There is no hierarchy among the sources of customary international law listed in Article 38(1) of the ICJ
Statute. It is, in fact, nothing but an exercise in futility to attempt to justify a ranking of some sort among
these sources.’ To what extent does this statement represent the true nature of the provisions
contained in Article 38(1) of the ICJ Statute? (10)
The statement suggests that there is no hierarchy among the sources of customary international law
listed in Article 38(1) of the International Court of Justice (ICJ) Statute. However, the accuracy of this
assertion is subject to debate among legal scholars and practitioners.
Article 38(1) of the ICJ Statute outlines the sources of international law that the Court shall apply. These
sources are:
1. International conventions, whether general or particular, establishing rules expressly recognized
by the contesting states.
2. International custom, as evidence of a general practice accepted as law.
3. The general principles of law recognized by civilized nations.
4. Judicial decisions and the teachings of the most highly qualified publicists of various nations as
subsidiary means for the determination of rules of law.
While the provision does not explicitly establish a hierarchy among these sources, some argue that
certain sources may carry more weight or have greater authority in specific situations. For example,
treaties may prevail over customary law in case of a conflict. Additionally, the practice of states and
opinio juris, the belief that a certain practice is legally required, are essential elements for the formation
of customary international law.
In practice, the International Court of Justice and other international tribunals often consider these
sources in a holistic manner, weighing the specific circumstances of each case. Thus, asserting that it is
an "exercise in futility" to attempt to justify a ranking among these sources may oversimplify the
complex nature of international law and the way in which these sources interact.
In conclusion, while Article 38(1) of the ICJ Statute does not explicitly establish a hierarchy, the relative
importance of each source can vary depending on the circumstances. The statement captures the idea
that these sources are interrelated, and their application depends on the specific facts and legal
arguments presented in a given case.
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