Article 38 ICJ Statute:
«1. 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 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 law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bond, if the parties agree thereto.”
Critiques to this provision:
- It treats judicial decisions and the writings of publicists as being of equal importance, while in practice judicial decisiones have more weight than the writings of publicists.
- There is a discrepancy btw the English and the French texts of article 38 as to the role of judicial decisions and the writings of publicists which are referred to as ‘auxiliary’ in the French version, and as ‘subsidiary’ in the English version. Those terms do not have the same meaning.
- It is worded very generally and thus provide little assistance in resolving the issue of the hierarchy of sources. Notwithstanding this, article 38 indicates an order of importance, which in practice the Court may be expected to observe although it does not address the issue of a conflict btw different sources of law. Not hierarchy principle is applicable here.
- It does not reflect the evolution of IL. Thus, the reference to international principles ‘recognized by civilized nations’ appears today as at best archaic, and at worst insulting, implying as it does that some nations may not be civilized. Acts of IO which have greatly contributed to the formation of IL are not mentioned in art. 38. Moreover the concept of jus cogens, recognized by the 1969 VCLT, endorsed by the ICJ and other international and national courts and tribunals, and which plays a fundamental role in modern international law, is not a part of article 38.
- It does not reflect the importance of non/binding sources, in particular the so called soft law, which in many areas have greatly influenced the law/making process.