Article 38 of the ICJ Statute and Applicable Law: Selected Issues in Recent CasesL’article 38 du Statut de la Cour internationale de Justice et le régime de droit applicable: Questions choisies et affaires récentes

Abstract

This article first highlights some salient features of Article 38 of the Statute of the International Court of Justice and the applicable law system. These include the primacy of States in international law making and the three dimensional process of identification (including proving), interpretation and application of applicable rules of law on the basis of the listed sources of law. It highlights some notable aspects of the Court’s application of Article 38 in selected cases decided in the past decade, by focusing on the identification of tacit agreements and conditions for unilateral acts to take effect; the identification of rules of customary international law; general principles of law as a direct source for rights and obligations and their identification; and judicial decisions and teachings of publicists as ‘subsidiary means’. Finally, the article expresses concerns about the uneven rigour with which the Court identifies and applies applicable rules of law and concludes with a call for a more rigorous and systematic approach in this area.