Sources of international public law

Why Article 38 of the Statute of the International Court of Justice is in urgent need for change?

« International law is, for States, not only a set of norms, but also a common language. » Boutros-Ghali. By these terms, we mean that international law responds to a set of norms that is specific to it. This normative set in which it originates is enumerated in Article 38 of the Statute of the International Court of Justice. There are two sets which are the primary sources with the international conventions, the international custom and the secondary sources which are the judicial decisions and the doctrine of the publicists.

However, Article 38 of the Statute of the International Court of Justice (1) dates back to 1945 and has not changed since its drafting. While international law itself is evolving and new texts are appearing which are certainly not in line with the sources cited in Article 38.

Thus, it is legitimate to wonder, even to affirm that this article in question is obsolete. In other words, why Article 38 of the Statute of the International Court of Justice is in urgent need for change. To do so, we will first see that Article 38 does not mention sources that actually exist in international law. Then later, that this article does not provide for a real hierarchy of norms among its different sources.

I - The existence of sources not mentioned in article 38

A/ The existence of a secondary law arising from unilateral acts.

In the image of the EU member countries. The European Commission, the Council of the Union and the European Parliament, pursuant to the Treaties, may adopt secondary legislation. (2) This is particularly the case for directives and regulations. As an example one could mention the regulations on roaming in the European Union. Another example that we could give outside the European Union, is the decision of repudiation of Paraguay of 26 August 2005 (3) where the Paraguayan government took the decision by decree in which it refused to reimburse a debt because it considered it illegal. (3)

B/ Non-conventional concerted acts resulting from multilateral negotiations.

There are acts, born of inter-state consultation, regulating relations within an international organisation or outside an institutional space. While they play an important political role, these acts can also produce numerous legal effects. These acts in question are not covered by Article 38 of the Statute of the International Court of Justice. They are nevertheless important because this source of international law is frequently used. As an example one could cite the recommendations of international organisations. Such as the WHO, which recently recommended that governments and authorities should listen to their citizens and adapt their strategies according to their behaviour. (4)

II - Lack of prioritisation of rules.

A - The current principle.

All the sources are presented as a catalogue in the field of public international law. (5) As a result, this can create disputes as to the application of an international standard in the event that two sources are in contradiction.

The principle is

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