, 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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