AYESHA YOUSSUF ABBASI

WHY DO WE STUDY
SOURCES OF LAW?
“ARTICLE 38(1) OF THE STATUTE OF
THE
INTERNATIONAL COURT OF
JUSTICE”
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 bono, if the parties agree
thereto.
a.International Conventions
b.International Customs
c.General Principles of law recognized by
civilized nations
d.Judicial decisions and Judicial works
(Secondary sources)
e.Equity and Conscience (Netherlands v.
Belgium 1937)
Other Sources
Decisions or determinations of the organs of international
institutions

Resolutions of International Conferences

Etc .
 International Conventions
• whether general or particular, establishing rules expressly recognized by the contesting states

• The term Convention in article 38 implies ‘any convention, treaty, protocol or agreement etc.
• Treaty is a written agreement between two or more countries

• Convention is a special type of treaty, involving large number of states concerning issues of
global significance
• Protocol is a method of alteration of a treaty
International Customs
• As evidence of a general practice accepted as law

• Subject to two conditions;

a. Uniform state practice

b. Practice with an element of obligation attached to it

GENERAL PRINCIPLES OF LAW ACCEPTED BY
CIVILIZED NATIONS
Principles so general as to apply within all systems of law

Examples;

• ‘Pacta Sunt Servanda’

• Audi alteram partem

• Res judicata

• Etc.
 JUDICIAL DECISIONS AND JURISTIC WORKS

• Judicial Decisions; Uniform decisions of Municipal courts of various nations

can serve as evidence of existence of an international custom.

• Juristic Works; Only resorted to when all other sources listed are not enough to
resolve the dispute

ICJ did not adopt the doctrine of precedent (stare decisis)