What is Article 38 of the ICJ Statute?
Article 38(1)of the ICJ divides the sources of international law into those of a primary and secondary nature. The primary sources, which the Court will consider in its decisions, include conventions (or treaties), customary law, and general principles recognized by civilized nations.
How do you cite the ICJ Statute?
The Statute of the International Court of Justice appears at the end of the Charter of the United Nations. Cite: Statute of the International Court of Justice, art. 38, ¶ 1.
What is the Compromissory clause?
Compromissory generally means related to a compromise. For example, a contract may have a compromissory clause in which the parties agree to subject a dispute to a third party for settlement.
What is the optional clause in the ICJ Statute?
That provision, known as the “Optional Clause,” provides that the states parties to the ICJ Statute (currently all the 185 UN member states and Nauru and Switzerland) may at any time file with the UN Secretary-General declarations stating that they recognize as compulsory, without special agreement, in relation to any …
What does Paragraph 2 of Art 38 of the Statute of ICJ provide?
2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.
What does Forum Prorogatum mean?
Indeed, the concept of forum. prorogatum, which has its origins in Roman law, literally means “prorogated jurisdiction”: this is to say the extension of the jurisdiction of a court by agreement of the parties in a case which would otherwise be outside its jurisdiction.
What is arbitration in Court?
Arbitration is essentially a paid private trial, in other words, a method to resolve disputes without going to court. Parties will submit the dispute to a third party neutral arbitrator rather than the courts.
Which treaties are considered a source of international law under Article 38 ICJ statute?
According to this Article 38, these sources are of two types: the primary sources that are represented by the international conventions, international custom and general principles of law; and the subsidiary sources that are represented by the decisions of courts and the opinions of legal scholars.
Is there a hierarchy of sources maintained under Art 38 of the Statute of the ICJ?
Although Article 38 lists the primary sources, it is in fact not based on lex specialis derogat generali (meaning ‘a law governing a specific subject matter overrides a law that only governs general matters’) and hence it should not have a hierarchy.
What is Article 38 (1) of the ICJ Statute?
Another view, however, is that Article 38 (1) of the ICJ Statute establishes two distinct lists. From this perspective, the first list (sub-paragraphs (a) to (c)) lays down exhaustively the formal sources from which legally valid rules of international law may emerge.
What is the function of the International Court of Justice 1945?
Statute of the International Court of Justice (1945) 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;
What is a subsidiary under the ICJ Statute?
The designation ‘subsidiary’ in Article 38 (1) (d) of the ICJ Statute serves to qualify the means in relation to the court or tribunal undertaking the determination.
What are the sources of the ICJ Statute?
Van Hoof, supra note 5, at 170. See, for instance, Boas et al., who assert that Art. 38 (1) of the ICJ Statute ‘refers to three primary sources and one subsidiary source’: G. Boas, J.L.J.D. Bischoff, and N.L. Reid, Elements of Crimes under International Law (2008), at 5, emphasis added.
Is Article 38 of ICJ exhaustive?
Lex lata, the formal sources listed in Article 38(1) is not exhaustive, and does not reflect the legal realities of contemporary international law. With the ‘evolving nature’ of international law, the legal lacunas in Article 38(1) are more pronounced.
Does Article 38 1 of the International Court of Justice ICJ Statute contain an exhaustive list of sources of international law?
It will be shown that Article 38 does not provide an exhaustive list of the sources of international law, missing out sources such as the instruments of the United Nations and other non-state actors (which do not fall neatly into any of the above categories), and only provides a very broad guide to the hierarchy of the …
What does Article 38 provide for?
(1)The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
How long may a judge sit in the ICJ?
nine-year
The International Court of Justice is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately. In order to be elected, a candidate must receive an absolute majority of the votes in both bodies.
What does Article 38 say?
What are the sources of international law as per Article 38 of the Statute of International Court of Justice?
Article 38(1) of the Statute of the International Court of Justice (ICJ) lists four sources of international law: treaties and conventions, custom, general principles of law, and judicial decisions and teachings.
What are the sources of international laws according to Art 38 of ICJ?
What is the meaning of opinio juris?
an opinion of law or necessity
Opinio juris is a shortened form of the Latin phrase opinio juris sive necessitatis, which means “an opinion of law or necessity.”
Is ICJ Statute a treaty?
The Statute of the International Court of Justice is an integral part of the United Nations Charter, as specified by Chapter XIV of the United Nations Charter, which established the International Court of Justice.
Can an individual file a case in ICJ?
Who may submit cases to the Court? Only States are eligible to appear before the Court in contentious cases. The Court has no jurisdiction to deal with applications from individuals, non-governmental organizations, corporations or any other private entity.
What is Article 38 of the ICJ?
Article 38 was originally adopted by the Permanent Court of International Justice (PCIJ) in 1920 and was re-enacted into the 1946 statute. Article 38 (1)of the ICJ divides the sources of international law into those of a primary and secondary nature.
What is Article 38 (1) of the Hague Convention?
Article 38 (1): 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;
What is the role of the ICJ?
The ICJ is the principal legal organ of the United Nations. Under Article 93 of the UN Charter, all UN member states are ipso facto parties to the ICJ Statute, but they are not required to submit any case to it except in cases where they have consented or promised to do so.