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ADB2601 Assignment 6 Due 18 OCT 2024
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- University Of Cape Town (UCT)
ADB2601 Assignment 6 Due 18 OCT 2024
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LVP4801ASSIGNMENT 2
2024
, QUESTION 1 (3 ANSWERS PROVIDED)
Article 38(1) of the Statute of the International Court of Justice lists the sources of
international law individually and consecutively, under points (a) to (d) as follows:
a. international conventions, whether general or particular, establishing rules
expressly 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 rules of law1
Although these sources have not been expressed in a single provision, pronouncing
the fact that all sources are of equal force and value, the reality is that this does not
indicate that any hierarchy exists with respect to such sources ‘in all cases’.2 To be
sure, Abbas remarks that the structure of Article 38(1) is ‘deceptive’ by implying that
the sources should be applied in the order in which they appear.3 Compounding the
apparent confusion is the phrase ‘subsidiary means’ included in the wording of Article
38(1)(d), which tends to convey that there are principal sources and subordinate
sources.4
The travaux préparatoires are helpful in determining whether or not a hierarchy exists.
Published evidence dating to 1920 reveals that the Permanent Court of International
Justice Advisory Committee of Jurists made it explicit that the sources should not be
considered ‘in the undermentioned order’ or ‘rank in the order of appearance in Article
38(1)’.5
Nevertheless, in practice, as a result of the crystallization and codification of the
principles of international law through treaties, it is arguable that treaties hold ‘primary
significance’.6 An example of this is case of Democratic Republic of the Congo v
1
Hennie Strydom (ed) et al, International Law (2 ed Oxford University Press 2020) 73.
2
Hennie Strydom (ed) et al, International Law (2 ed Oxford University Press 2020) 74.
3
Ademola Abass International Law: Cases, Text, Materials (Oxford University Press 2012) 59.
4
Ademola Abass International Law: Cases, Text, Materials (Oxford University Press 2012) 59. See also Erika De
Wet and Jure Vidmar (eds) Hierarchy in International Law: The place of Human Rights (Oxford University Press
2012) 14.
5
Ademola Abass International Law: Cases, Text, Materials (Oxford University Press 2012) 59-60.
6
Hennie Strydom (ed) et al, International Law (2 ed Oxford University Press 2020) 74.
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