, 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)
This statement reflects a perspective that rejects the notion of
hierarchy among the sources of customary international law
outlined in Article 38(1) of the Statute of the International Court of
Justice (ICJ). Let's break down the components:
1. Article 38(1) of the ICJ Statute: This article enumerates the
sources of international law that the ICJ should apply in cases
brought before it. These sources include international
conventions, international custom, general principles of law,
judicial decisions, and the teachings of the most highly
qualified publicists.
2. Hierarchy of Sources: Some scholars argue that there is a
hierarchy among these sources, with international conventions
and international custom being considered primary sources,
followed by general principles of law, judicial decisions, and
teachings of publicists.
3. Perspective in the Statement: The statement suggests that
attempting to establish a hierarchy among these sources is
futile. It implies that each source has its own significance and
contributes to the development and application of international
law in different ways.
4. Interpretation: The interpretation of Article 38(1) can vary
among scholars and practitioners of international law. Some
may argue for a hierarchical approach based on the relative
weight or authority of each source, while others may
emphasize the equal importance of all sources.
In your analysis, you would need to evaluate different
interpretations of Article 38(1) and assess to what extent the
statement accurately reflects the nature of the provisions contained
therein. You could consider arguments both for and against the
existence of a hierarchy among the sources of customary
international law outlined in Article 38(1) of the ICJ Statute.
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