DILLA UNIVERSITY

COLLEGE OF LAW AND GOVERNANCE STUDIES

SCHOOL OF LAW

COURSE TITLE. PUBLIC INTERNATIONAL LAW

COURSE CODE. Laws 4021

ASSIGNMENT TITLE: possible sources of international laws other

than those stated under article 38(1) of ICJ statute

INDIVIDUAL ASSIGNMENT

BY: HABTAMUGABISA

ID.NO 3605/17

SUBMITTED TO INSTRUCTOR :EYILACHEWU.G (LLB,LLM)

SUBMISSION DATE MARCH 30 /2021

 Dilla Ethiopia

Introduction

International law devotes a great deal of attention to its sources. The sources of

international law constitute one of the most central patterns around which

international legal discourses and legal claims are built. A nineteenth century

postulate of positivism suggested that a sovereign could limit his authority to act

by consenting to an agreement (as per the principle of pacta sunt servanda) and

that treaties bind only those privy to them (as per the principle of pacta tertiis nec

nosunt, nec prosunt). Article 38 is addressed to I.C.J. justices and enumerates the

various sources they are to examine in finding the law necessary to resolve a

case. Article 38 of ICJ, which is the definitive statement on the sources of

international law,has been taken as a convenient catalog of international legal

sources generally. however article 38 does not provide an exhaustive list of the

sources of international law, missing out sources such as the instruments of the

United Nations and other non-state actors

Based on the aforementioned fact this paper will briefly discuss the other

possible source of international laws those are not mentioned under Article 38 of

ICJ.
Article 38(1) of the Statute of the International Court of Justice(‘ICJ Statute’) lists
the traditional"formal sourc”of public international law which the International
Court of Justice (ICJ) is bound to have regard to. However the is not exhaustive,
and does not reflect the legal realities of contemporary international law. With
the ‘evolving nature’ of international law, the legal lacunas in Article 38(1) are
more pronounced. There is a brave new world of international law where other
“material sources” or (“soft law”) ought to be considered.

Other possible sources of international laws

1.General Assembly resolutions

esolutions of the General Assembly is one of the principal instrumentalities of the

formation of the collective will and judgment of the community of nations
represented by the United Nations. Example: Charter of Economic Rights and
Duties of States, adopted in December 1974, resolution on the definition of
aggression passed in the year 1974 and Articles on State Responsibility adopted in
2001 are a good example). These have some impact upon the direction adopted
by modern international law, have normative value, able to speed up the process
of the legalisation of a state practice for establishment of new rule and thus
enable a speedier adaptation of customary law and opinio juris to the conditions
of modern life.

Some resolutions are part of the treaty making process, attaching a treaty text
negotiated in the framework of the United Nations and recommended to the
Member States by the Assembly (this was the case with the Convention against
Torture).

2.Decision of security council

Decisions taken by the Council under Chapter VII of the Charter and framed in
mandatory terms are legally binding on all States (Article 25 of the Charter)and
prevail over obligations under all other international agreements (Article 103)
3.Unilateral acts

unilateral acts are ‘an unequivocal expression of will which is formulated by a

State with the intention of producing legal effects in relation to one or more other
States or international organizations .unilateral acts of states found its way into
WTO dispute settlement. In European Union v United States of America, North
American Free Trade Agreement (NAFTA), General Agreement on Tariffs and
Trade (GATT), ILO law making power/ tripartite law making between state
representative of employers and employees through Trade Union. In certain
situations, the unilateral acts of states, including statements made by relevant
state officials, may give rise to international legal obligations.

4.Works of of Study Organization

The works of international law study organizations have been extremely helpful
to international codification efforts. The United Nations Commission on
International Trade Law (UNCITRAL) and the United Nations Conference on
Trade and Development (UNC-TAD), can one overlook the tremendous work of
the many specialised agencies like the International Labour Organisation and the
United Nations Educational, Scientific and Cultural Organisation (UNESCO),
which are constantly developing international law in their respective spheres.

5.International Law Commission

is a body composed of eminently qualified publicists, including many

governmental legal advisers, whose reports , studies and drafts may be used as or
may form the bases of international treaties, can lead to new rules of customary
law,and may create new law and evidence the opinio juris.

6.Institut de Droit International

International are the best known organisations which study and stimulate the
law of the world community,

7.Decision of international political organs

The Statute of the International Court of Justice containing this "official" list was
drafted about 80 years ago, long before international organizations became a
prominent feature of international life. Therefore, these decisions are a relatively
new phenomenon as a source of international law. Today their existence cannot
be denied.

Decisions of international political organs involving political obligations play a

special role and offer the advantage of flexibility and relevance to current events
and exercising influence upon states.example: European community, documents
of the Organisation on Security and Co-operation in Europe (OSCE) etc.

8.Decision of supervisory organs

These bodies often prepare so-called General Comments or Recommendations,

elaborating on the various articles and provisions of their respective human
rights instruments. These recommendations have their impact on international
human rights law (standards) and influence on the behaviour of states parties.

9.diplomatic correspondence between agents of States

diplomatic correspondence between States are not true sources of international

law, but are instead ‘merely evidence of state practice and thus subsumed under
the head of customary law’. This might be an explanation of the failure to list
diplomatic correspondence and unilateral declarations as sources of law in the
Statute, as these are State actions and so can be written off as incorporated under
Article 38(1)(b).

10.Soft law

Numerous international organs make decisions that concern human rights and
thereby strengthen the body of international human rights standards. Such non
binding human rights instruments are called ‘soft law’, and may shape the
practice of states, as well as establish and reflect agreement of states and experts
on the interpretation of certain standards.

11.Jus cogens

The very words 'jus cogens" mean "Thecompelling law"or"peremptory

norms."(for example, preservation of world order and safeguarding of
fundamental human rights. In Genocide' ' is now deemed ajus cogens violation
because its prohibition imposes on states certain duties and obligations erga
omnes. In reality, states are bound by jus cogens and erga omnes obligations, but
nothing in the statutory matrix explains the importance of these principles.

12.Equity

UNGA resolutions have noted that equity forms part of a “distributive

justice”equity has found more liberal understanding and huge importance in
international treaties and maritime boundary disputes. Courts have often applied
equity with no reference made to Article 38(1)(c).
Conclusion

Article 38 does not propound a hierarchical and exhaustive list of the sources of

public international law and incomplete in many respects. . It might be argued

that the fact that Article 38 fails to list all of the sources of international law is

problematic. Article 38 is said by some to not merely be a convenient collection of

various bases of international law. but in fact a provision which dictates the only

sources of international law which the International Court of Justice is permitted

to apply and take into consideration when dealing with disputes between parties

or advising States on the content of the law. that other “material sources” ought

to be considered.

These include UNGA resolutions, equity, unilateral acts of states. treaties not yet

in force, works of study organizations and principles of equity are becoming

increasingly important additional sources of law which do not fit easily into the

structure of Article 38(1).

In fact,Article 38 of the Statute is incomplete requires updating as to be welcomed

as keeping international law suitably, maintaining dynamic nature if

international laws and to provide an acceptable level of certainty

Reference

I .Books

Harris, D.J. Cases and Materials on International Law (Fifth Edition, 1998).

Jennings, R. and A. Watts. Oppenheim's International Law (Ninth Edition, 1992)

Malanczuk, P. Akehurst's Modern Introduction to International Law (Seventh

Edition, 1997)

Shaw, M.N. International Law (Sixth Edition ,2008 ).

Weisburd M, Failings of the International Court of Justice, (Oxford University

Press, 2015

II. Articles

Beiser M, Taylor L, ‘Article 38(1): an exhaustive statement on the sources of

international law’, [2004] S.L.T. 219

Dr. Đbrahim KAYA, The question of source of water concerning international

water course

KIRTHI JAYAKUMAR, OCT 12 2011 Where Does Article 38 Stand Today? Found at

https://www.e-ir.info/2011/10/12/where-does-article-38-stand-today/
Pritchard, R. (ed.) Economic Development, Foreign investment and the Law (1996)

Villalpando S, “On the International Court of Justice and the determination of the
rules of law”, [2013]