The international court article 38 provides sources from which a court applies in making legal rulings. The first application according to the article states that, the courts which function in deciding disputes in accordance with the international law shall apply first ,the international conversation which can be done publically or in specific from which rules expressed and recognised between parties are established, second, the International custom to prove that a practise is required by law, third, the general principles of law as recognised by the public, and finally, the provision of article 59 and decision of the Justices and teachings of the publicists with knowledge and qualifications of law, The second application requires that if parties agree, the case may be decided by the court following equity principles, ex aequo et bono .The Statute provides that customary law is derived from the general practise of countries. The International Law Association provides definition of such law that it is created and sustained by a common and uniform practice of states in influencing international legal relations negatively in a way that it may raise a similar conduct in future. In further definition, a consistent practise of such law participated by a good number of states results in the general customary law rule.
History of International Court article 38 decision
The idea of creating an international court to settle disputes was initiated during several conferences that produced the Hague conventions starting late 19th century. From the time Hague Convention was initiated in 1899, there were several peaceful settlements at international level from which it became a fundamental principle of relations at international level. The permanent court to arbitrate was first established which resulted in a league of National forming the Permanent Court of International Justice(PCIJ).From 1921 to 1939, PCIJ came up with many decisions that exceeded 30 decision but none related to the world war II issues particularly the issue of engulfing Europe which presented a prolonged crisis.
During discussions of the Charter of UN at San Francisco, a decision was made to establish an international tribunal with PCIJ still working though the idea had been present since the time of SWW.The idea of the International Court was also presented during SWW.The allied powers intended to enforce the idea after the end of the war to play a role in maintaining peace and security within international relations. This idea succeeded with the adoption of UN charter signed on 26 June 1945.PCIJ had developed a beneficial tradition and prestige which was useful and beneficial to the new court. Some participants of the San Francisco conferences wanted the PCIJ be dissolved with formation of a new court while other were in favour of maintaining the old court and suggested introduction of new amendments to the courts to corresponded to the new needs of replacing League of Nations which had failed to maintain securing during the period of the war (Fitzmaurice, 2016). This view intended to give PCIJ the power to interpret treaties within the existence of the so-called compromise clause. Other suggestions needed new court be adopted as it would be easier to implement than reviving PCIJ.The decision to adopt and create a new statute was accomplished reasons being, there were so many enemies and neutral states that continued to be parties to the old Statute. The mission of creating peace associated with the International Court of Justice (ICJ) began from preparation operations of the San Francisco Conference. This can be referenced from one of the reports produced by the first committee of the fourth commission which stated that the United Nations Charter would establish the new court to ensure Justice and law are granted and the usually judicial process is replaced with a new circumstantial strategy of preventing and facing war. The court was organized into chapters including chapter two of the statute which contains international article 38.
Significance of article 38
The international court article 38 decides cases that come before ICJ either from referrals through a special agreement between states or from a treaty provision with disputes that are under the treaty of court or from statements of parties needing compulsory jurisdiction. It calls for observation of significance of a territory in international relations because a state is defined by sovereignty over the land. This law recognizes the definition of state boundaries for the proper functioning of modern states. Boundaries are subject to conflicting territorial claims. Those claims can be divided into nine categories: treaties, history crisis, economic issues, cultural practices, geographical measure, control criteria, elitism, international customs, and ideology.ICJ has a great responsibility of solving these international conflicts. The territorial claims brought before ICJ fall under the international court article 38 and rulings are made applying the sources provided by the article.
Example of usage of the article
The cases of The North Sea Continental Shelf of German v Netherlands and German v Denmark is an example where the international court article 38 was used. The case looked at disputed land of the continental shelf areas in the North Sea because the states disagreed on the partial boundaries set by states previously. The parties brought the case to ICJ requesting a decision of delimitation according to principles and rules applicable under International law. Denmark and Netherlands looked forward into the application of equidistance principle. The principle was a method of determining a boundary such that every point has an equal distance from the nearest points of baselines as measured from the breath of territorial sea of each state. German, on the other hand, relied on getting a decision in favor of the notion that boundaries are governed by the principle that every coastal state is entitled to just and equitable share (Elferink, 2014). Germany argued that the equidistance principle was not a mandatory rule neither was it an international customary law binding on Germany. The court had to decide which rules and principles of internal law could be applied in the case. In that sense, the court focused at deciding whether the principles were binding through treaty law or customary international law. The court disregarded the use of equidistance method claiming that it had not crystalized into customary law and that the present proceedings did were not obligated into deliminating of the areas.
Of the relevant findings that led to the courts’ decision was article 6 of Geneva Convention which stated that equidistance would apply only if the parties agreed on the method to be used or if there was the existence of a special circumstance. Review and findings led to the decision that Article 6 has not attained customary law status after the Convention entered into force. The court gave three measures for a customary law to emerge. First, there must be a widespread and representative participation in convention with states with affected interests. Secondly, the practice should be uniform, and finally, there must be recognition of law by qualified publicists. A first criterion was not met because all states were not adequately represented. After the court had examined 15 similar cases where equidistance method was used with the Convention into force, it concluded that even with the practice favored in some states, the court could not disregard the Opinio Juris from this particular state practice. The North Sea Continental Shelf Cases confirmed the state practice and Opinio Juris as required conditions for the formation of customary law, and this was consistent with the international court article 38(1) (b) of the ICJ.The concept applied was that the acts concerned must be able to settle a practice and must also be exercised, with evidence of a belief that the practice was obligatory in accordance with the requirements of the rule of law. The court ruled that the equidistance principle neither binding by treaty nor customary international law because, with the customary law, the principle had not crystalized into international custody law with Geneva Convention in force. As such, it was not obligatory to use equidistance method for delimitation at that time.
Article 38 today
There have been discussions on the article 38 conceptual scope and framework of the sources on international law. The aim of the article is to determine what ICJ may consider as international law and what it may apply in making decisions of disputes. Consequently, scholars and lawyers have been researching in the four sources of the law namely: international conventions, international custom, general principle and judicial decisions and teachings of qualified publicists. Today, the article has been a good guide. No form of interpretation has been subjected to it, and it has not raised a debate on any international fora to suggest a review. Even with its redundant information and regularities, it cannot be reviewed because of plenty of reasons including the fallacious hierarchical arrangements of the sources, its resistance to evolution and resistance of applicability of legal principle to states, its emphasis that any legal system upon voluntary action be based on consent, its incompleteness in a many aspects including roles of resolutions, its form of language which brings redundancy and finally, the importance it attaches to the teachings of the most qualified publicists (McCaffrey, 2015).
Article 38 is one of the most important international law article formerly established to settle international disputes. They are just as important to international relations as to justice objective. The ICJ focuses on fulfilling its established statutes and maintaining peace and security at the international level. There are so many cases before that which have been settled by the article which will be applicable in future cases. The notion that the article may need to be reviewed is a just complicated matter than it seems because the article is said to be satisfactory in its form. The future of the article or the ICJ remains certain considering that there has been no initiates or prompts to manipulate the article. The fact that the court is given the right to decide which source is applicable makes it flexible to judge any case with logic and satisfactory decisions based on evidenced references. Article 38 of the ICJ is not a straight forward law with so many issues of irregularities and so many reasons why it can’t be reviewed. The problematic situation presented by the article today does not seem to change any time soon considering its long period of existence since 1946.
Elferink, A. G. O. (2014). The Delimitation of the Continental Shelf Between Denmark, Germany and the Netherlands: Arguing Law, Practicing Politics?. Cambridge University Press.
Fitzmaurice, M. (2016). History of Article 38 of the Statute of the International Court of Justice. Queen Mary School of Law Legal Studies Research Paper, (232). McCaffrey, S. C. (2015). Understanding International Law, 2015. LexisNexis.