Article 38 of the Statue of the ICJ

And
Its Implications

Kamlesh Rai
Roll No. 21 (Sf)
Faculty of Law
Jamia Millia Islamia

Public International Law

Guided By- Noorjahan Momin
1|P a ge

Introduction:
An idea of an international court of justice arose in the political world at the First Hague Peace
Conference in 1899, where it was declared that arbitration between states was the easiest solution to
disputes, providing a temporary panel of judges to arbitrate in such cases, the Permanent Court of
Arbitration. The outbreak of the First World War, and, in particular, its conclusion made it clear to many
academics that some kind of world court was needed, and it was widely expected that one would be
established. 1 The International Court Of Justice (ICJ) is the successor of the Permanent Court of
International Justice (PCIJ), which was established by the League of Nations in 1920 and began its first
session in 1922. After the Second World War, both the League and the PCIJ were dissolved and replaced
by the United Nations and ICJ, respectively. Established in 1945 by the UN Charter, the court began work
in 1946 as the successor to the Permanent Court of International Justice. The Statute of the International
Court of Justice, like that of its predecessor, is the main constitutional document constituting and
regulating the court.2 It was therefore considered that-
members agreed that if there was a dispute between states they "recognize to be suitable for submission
to arbitration and which cannot be satisfactorily settled by diplomacy", the matter would be submitted to
the Court for arbitration, with suitable disputes being over the interpretation of an international treaty, a
question on international law, the validity of facts, which, if true, would breach international obligations
and the nature of any reparations to be made for breaching international obligations.
The ways and means whereby International Law nowadays manifest itself surely do not exhaust
themselves in the consideration of its formal “sources”. The growing complexity of the process of
formation of contemporary International Law is a challenge to its scholarship, nowadays perhaps to a
greater extent than in the past. This is a basic issue which cannot be dissociated, for example, from that of
the expansion of international legal personality in International Law.
Article 38 of the Statute of the PCIJ and the ICJ provides that, in the settlement of disputes submitted to
it, the Court will apply international conventions, international custom and general principles of law, to
which are added, as “subsidiary means”, judicial decisions and doctrine; the Court is, at last, entitled to
decide a question ex aequo et bono, “if the parties agree thereto”. It is to be kept in mind that Article 38,

1
Hudson, Manley O. (1927). "The Fifth Year of the Permanent Court of International Justice". The American Journal of
International Law. American Society of International Law
2
Scott, James Brown (1920). "A Permanent Court of International Justice". The American Journal of International Law.
American Society of International Law.
2|P a ge

however, was never intended to constitute a mandatory and exhaustive formulation of the “sources” of
International Law, but only a guide to the judicial operation of the Hague Court.3

International conventions:

As one of the primary sources of international law, Article 38 (1) of the ICJ Statute refers to international
conventions, whether general or particular, establishing rules expressly recognised by the contracting
states. This source of international law can be expressed in different names such as treaty, agreement,
protocol, pact, charter and covenant. All of these legal terms have an identical meaning that is “written
agreements whereby the states participating bind themselves legally to act in a particular way or to set up
particular relations between themselves.
Although Article 38 (1) of the ICJ Statue has divided conventions into two kinds, general conventions
and particular conventions, it is only the first kind, the general conventions or the so called the law-making
treaties, constitute a primary source of International law. The former kind has universal or general
application, while the latter kind applies only between two or a small number of states. The judges of the
ICJ applied considerably many of treaties to settle several international disputes, such as the Charter of
the United Nations, the four Geneva Conventions of 1949, the Vienna Convention on Diplomatic
Relations of 1961, the International Covenant on Civil and Political Rights of 1966 and the Convention
on the Law of the Sea of 1982.4

Custom
Article 38 of the Statute of the ICJ defines international custom as evidence of a general practice accepted
as law. This definition includes two elements for the formation of customary international law: a general
practice and its acceptance as law. The general practice or the actual behaviour of states is known as the
material or objective element, while the psychological or subjective element reflects the belief that such
practice is law. On one hand, the material element will cover various acts adopted by a State, such as
diplomatic correspondence, policy statement, executive decisions and practice and state legislation. There
are several aspects to be considered concerning the nature of a particular practice by states. First, state

3
Ch. Schreuer, “Recommendations and the Traditional Sources of International Law”, 20 German Yearbook of International Law (GYIL)
(1977)
4
Malcolm L. Shaw, “International Law”, (SCHAND 8th edn 2018)
3|P a ge

practice must be uniform and consistent as declared by the ICJ in the Asylum case in 19505. Second,
custom should, to some extent, mirror the perceptions of most states. In other words, state practice should
have a degree of relative generality. Certainly, universality is not required.6
General principles of law

Article 38 (1) (c) of the Statute of the ICJ refers to “the general principles of law recognized by civilized
nations” as a primary source of International Law. The term “civilized nations” had colonial connotations
and this term is no longer acceptable because all nations are now considered as civilized (Wallace, 1997).
Consequently, as long as the general principles of law for all nations are today recognised, this term must
be dropped from Article 38 (1) (c). This term “would be discriminatory and incompatible with the United
Nations Charter, which recognises the equality of all Member-States. This source is listed third after
international conventions and international customs. The Court shall apply the general principles of law
in cases where treaties and customs provide no rules to be applied. The Statute of the ICJ has not defined
the concept of “the general principles of law” and there is no treaty or other instrument that clarifies the
meaning of this concept.
Furthermore, there is no agreement within the international jurisprudence on what the concept means.
Several international scholars declared that the concept of the general principles of law includes the
principles that exist in the national laws of states worldwide and can be applied General principles of law.
Article 38 (1) (c) of the Statute of the ICJ refers to “the general principles of law recognized by civilized
nations” as a primary source of International Law. The term “civilized nations” had colonial connotations
and this term is no longer acceptable because all nations are now considered as civilized. Consequently,
as long as the general principles of law for all nations are today recognised, this term must be dropped
from Article 38 (1) (c). In particular, this term “would be discriminatory and incompatible with the United
Nations Charter, which recognises the equality of all Member-States” This source is listed third after
international conventions and international customs. The Court shall apply the general principles of law
in cases where treaties and customs provide no rules to be applied. The Statute of the ICJ has not defined
the concept of “the general principles of law” and there is no treaty or other instrument that clarifies the
meaning of this concept. Furthermore, there is no agreement within the international jurisprudence on
what the concept means. A number of international scholars declared that the concept of the general

5
ICJ Report 1950
6
D R. H.O. AGARWAL, “INTERNATIONAL LAW AND HUMAN RIGHTS” (Central Law Publication, Allahabad, 21st edn 2017)
4|P a ge

principles of law includes the principles that exist in the national laws of states worldwide and can be
applied within the international law system, such as the principle “no one shall be a judge in his own
case”7

Judicial Decisions and writings of international law scholars

Article 38 (1) (d) of the ICJ Statute describes judicial decisions and writings of the most highly qualified
publicist of the various nations, as subsidiary means for the determination of rules of law. It can be
understood from this wording that courts and scholars are not entitled to create the rules of international
law, but they can examine the primary sources (treaty, custom, general principles of law) and then decide
which international rules is applicable to an issue.

within the international law system, such as the principle “no one shall be a judge in his own
case”

Implications

Asylum Case (1950)

Fact:
Torre, head of the American People's Revolutionary Alliance sanctuary, after his faction lost a one-day
civil war in Peru on 3 October 1948, the unsuccessful leader of a military rebellion in Peru in 1948, sought
political asylum in the Columbian embassy in Lima. Peru refused to allow Torre to leave the country, and
insisted he be given over to Peru to be tried for military rebellion. Dispute referred to the ICJ, which first
decided that Columbia had no treaty right to declare that Torre was entitled to the status of a political
offender eligible for political asylum. The ICJ then turned to customary international law.
Background:
Article 14 of the Universal Declaration of Human Rights states that "Everyone has the right to seek and
to enjoy in other countries asylum from persecution." The United Nations 1951 Convention Relating to

7
Ibid
5|P a ge

the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees guides national legislation
concerning political asylum. Under these agreements, a refugee (or for cases where repressing base means
has been applied directly or environmentally to the defoulé refugee) is a person who is outside their own
country's territory (or place of habitual residence if stateless) owing to fear of persecution on protected
grounds. Protected grounds include race, nationality, religion, political opinions and membership and/or
participation in any particular social group or social activities.
Since the 1990s, sexual persecution has come to be accepted in some countries as a legitimate category
for asylum claims, when the claimant can prove that the state is unable or unwilling to provide protection.
Issue:
Whether there is a custom so established that it is binding to allow Columbia to grant political asylum.
Holding:
No evidence as to custom allowing Columbia to grant political asylum and binding Peru.
In the Asylum Case (Colombia v Perú), judgement 20 November 1950 (General List No. 7 (1949–1950)),
the International Court of Justice (ICJ) recognised that Article 38 of the Statute of the International Court
of Justice encompassed local custom as well as general custom, in much the same way as it encompasses
bilateral and multilateral treaties
Reasoning:
Columbia cited several conventions, of which some Peru was not a party so not binding, and others that
were accepted by so few states it is very weak. Columbia also refers to many cases where political asylum
was granted, but court cannot determine whether they were granted due to usage, or for political
expediency. Court says Columbian gov't has not through its arguments proven the existence of such a
custom. And, if there was such a custom, it could not be enforced against Peru, b/c they were not party to
the Montevideo convention which included matters of political asylum.
RULE:
To invoke a customary international law, you have to prove it has been used fairly often and adopted by
many states. Also, you cannot bind a state to a treaty to which it did not ratify.