Public International Law
Public International Law
Assignment 24/10/2012
10340269
3BBL
As an expert you have been approached: (a) By the International Court of Justice to offer a brief opinion on the possible amendment of Article 38 of the Statute of the International Court of Justice to reflect the diversity of sources of international law
Introduction
Sources of international law has long been a contentious matter amongst legal commentators and academics in the sphere of the international legal system. At the root of all legal systems there is a fundamental need to clearly identify all sources of law, a view which is concisely expressed by former judge of the International Court of Justice (ICJ), Robert Jennings: ‘[A]lthough lawyers know that the quality of certainty of law is one on which there must be much compromise, not least in the interests of justice, it is a desideratum of any strong law that there is reasonable certainty about where one should look to find it.’
Given the absence of any official legislature in the area of international law, it is Article 38 of the Statute of the ICJ which responds to the basic need to identify the sources of international law. The contention surrounding Article 38 concerns an emerging belief that it should be amended to reflect the diversity of sources of international law. Ancillary to this is the criticism that the ambiguity concerning potential additional sources of international law, such as resolutions of the UN General Assembly and unilateral declarations/acts of state has given rise to the concept of “soft law”, which Sztucki condemns because it risks blurring the threshold between what is legally binding and what is not. A further criticism of Article 38 is that the ability to create new laws is constrained by subsection 2 of the article. Consequentially, it is argued that no formal system of precedent may exist as laws are only binding to the parties involved.
In essence, the question that must be addressed is
Assignment 24/10/2012
10340269
3BBL
As an expert you have been approached: (a) By the International Court of Justice to offer a brief opinion on the possible amendment of Article 38 of the Statute of the International Court of Justice to reflect the diversity of sources of international law
Introduction
Sources of international law has long been a contentious matter amongst legal commentators and academics in the sphere of the international legal system. At the root of all legal systems there is a fundamental need to clearly identify all sources of law, a view which is concisely expressed by former judge of the International Court of Justice (ICJ), Robert Jennings: ‘[A]lthough lawyers know that the quality of certainty of law is one on which there must be much compromise, not least in the interests of justice, it is a desideratum of any strong law that there is reasonable certainty about where one should look to find it.’
Given the absence of any official legislature in the area of international law, it is Article 38 of the Statute of the ICJ which responds to the basic need to identify the sources of international law. The contention surrounding Article 38 concerns an emerging belief that it should be amended to reflect the diversity of sources of international law. Ancillary to this is the criticism that the ambiguity concerning potential additional sources of international law, such as resolutions of the UN General Assembly and unilateral declarations/acts of state has given rise to the concept of “soft law”, which Sztucki condemns because it risks blurring the threshold between what is legally binding and what is not. A further criticism of Article 38 is that the ability to create new laws is constrained by subsection 2 of the article. Consequentially, it is argued that no formal system of precedent may exist as laws are only binding to the parties involved.
In essence, the question that must be addressed is