2011 ZA Q2

Every Legal system has criteria by which laws are recognised .The sources of a legal
system therefore need to be clear, even though international law does not possess
formal institution that is responsible for the law making process, there are recognised
and accepted methods by which legal rules are recognised.

The question put forward to us involves the discussion of Article 38 of the Statute of
the International Court of Justice, its criticisms and any possible improvements. Art.
38 is usually the traditional starting point of discussion of the sources of international
law it determines exactly what the ICJ may deem to be international law and what may
apply when deciding disputes between States.
There are five distinct sources can be identified from Article 38, these been: Treaties,
International Customs, General principles of International Law, Judicial decisions, and
writing of publicists.
Having discussed the nature of Article 38 of the ICJ we go on to discuss its criticisms
and its possible criticisms.

While Ive previously mentioned that Art.38 does embody the most important sources
of international, it also provides an incomplete list of them.
Among other things Art.38 is highly criticised on so many grounds.
As stated before Art.38 does not provide a completer list of the matters which the
court in fact considers when determining the rights and duties of a state, for instance
Art.38 makes no reference to the resolutions of the United National General Assembly
(UNGA) or to diplomatic correspondence; both of which stand prominently in
judgments of cases like Nicaragua V USA.
Art.38 solely focuses on activities of states. However, non-state entities in
international law have contributed in the law making process in the international field
for example: when international organisations conclude treaties or when actions of
individuals, groups or even multinational companies; Texaco V Libya.
One main reason for this omissions maybe that these matters are not regarded
universally as true sources of law but merely evidence of state practice and thus
incorporated in customary law. However, it is obvious that this is merely asks the
question as to what we mean by sources and it does not help explain why the
activities of non-state entities can have such an important impact on the content of
international law.
The lack of clarity in the provisions of Art.38 indicates that it may be in need of an
amendment to include a proper clear list of sources.

The next criticism we are about to discuss is that Art.38 has no set priority or hierarchy
of the source of international law.
We do not know the order in which the sources of law are to be applied, which
triumphs over the other.
Therefore in case of conflict it is vital to determine which source shall prevail ; would a
later treaty prevail over customery law so on and so forth.
This again shows