Analysis of Article 38 of the International Court of Justice / Starptautiskās Tiesas 38. Reglamenta analīze
The International Court of Justice, as stated in Article 1, was created by the Charter of the United Nations as the most important legal body of the United Nations and it has to be constituted and functioned in agreement with the provisions of the current Statute.
International law consists of special laws, which regulates the legal relationships between different states. Even International organizations can become subjects under the international law. The international law is drawn from a number of sources, according to Article 38 of the Statute of the International Court of Justice (the International Court of Justice is based in The Hague). The most important areas of the international law are international conventional and international customary laws. The Article 38 of the Statute of the International Court of Justice does provide adequate information about the sources of which the international law is made but not sufficient explanations of the processes by which the international law is made. This mainly is so, because of all Article 38 there is no definition of legal subjects of international law like countries and other legal organizations. Further more the article does not state the preconditions of customary law which is very important that is to know whether the practice has become enforceable. As stated in Article 38, international law is applied by (a) international conventions (treaties), 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 and (d) by 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 . Herewith these points, the Article 38 explains several sources used in applying international law, for instance, customary law and conventional law. These two conventions are primary sources of international law. Customary law is codified in the Vienna convention on law of the treaties and it results when states follow certain practices generally and consistently out of a sense of legal obligation but in the mean time this practice becomes enforceable as law. Therefore, the Article 38 states one of the sources by which the international law is made, except that this Article does not give sufficient information of the process how this law is made and whereas the customary law becomes law. As a result, it seems controversial as with this statement adequate information of the processes is not provided.
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