Sources Of International Law

20 Pages 5070 Words

rtainly, this source engenders confusion and disagreement amongst scholars and thus acts as a further indicator of a lack of “obvious hierarchy.” Finally, Section 5 shall examine the framing of the Statute of the ICJ. It shall be seen that suggestions to list the sources of international law in a hierarchical way were rejected by the framers. In conclusion, it shall be seen throughout this essay that treaties do not hold undisputed authority amongst the sources. Jus cogens norms hold this position, though they are difficult to ascertain. Below jus cogens, treaties hold equal authority to customary law, though general principles of law may still exert some influence, thus clouding this level of hierarchy.

1. The Statute of the ICJ & The Sources of International Law

The customary starting point for discussion of the sources of international law, as has been followed by most other authors in this field, is the Statute of the International Court of Justice (ICJ). This is the judiciary branch of the United Nations (UN) and is charged with the settlement of disputes between states.
Article 38(1) of the Statute of the ICJ provides;

The Court, whose function it 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 recognised by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognised by civilised nations;
(d) …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.

This article has been criticized by some authors as either omitting some sources from the list, and/or for including aspects which are not genuine sources of international law. However, for the purposes of this essay, this prov...