Abstract
Because people often wonder what rules of law are applied by a court of fifteen judges from as many different legal systems in the adjudication of disputes brought before it, it may be convenient to begin our study by reference to Article 38 of the Statute of the Court which provides:
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1.
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
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(a)
international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
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(b)
international custom, as evidence of a general practice accepted as law;
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(c)
the general principles of law recognized by civilized nations;
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(d)
subject to the provisions of Article 59, 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.
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(a)
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2.
This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
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References
Cf. Article 38 of the Rules. There are precise rules about the agent or diplomatic representative of the applicant.
Article 40 of the Rules.
Articles 44 to 46.
There are detailed rules as to the filing of Memorials, Counter-Memorials, Replies and Rejoinders and their contents. Cf. Articles 49 and 50.
Article 51. The same rules apply to all documents annexed to pleadings.
Cf. Article 4 of the Resolution.
Interim Protection, Order of 11 September 1976, I.C.J. Reports 1976, p. 3.
I.C.J. Reports 1980, p. 3.
Cf. the Dissenting Opinion of Judges Morozov and Ruda in the Aegean Sea Continental Shelf case.
Cf. the following observation by the Court in the Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,p. 253, at pp. 259–260: “In this connection, it should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the `inherent limitations on the exercise of the judicial function’ of the Court, and to `maintain its judicial character’ (Northern Cameroons, Judgment, I.C.J. Reports 1963,p. 29). Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded.”
Cf. Anglo-Iranian Oil Co. case, LC.J. Reports 1952, p. 93, and Fisheries Jurisdiction (United Kingdom v. Iceland) Judgment, I.C.J. Reports 1973, p. 3.
Cf. Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.LJ. Series A, No. 17; Legal Status of the South-Eastern Territory of Greenland, 1932, P.C.I.J. Series A/B, No. 48, p. 268; Interhandel, Judgment, I.C.J. Reports 1959, p. 6; Aegean Sea Continental Shelf case, I.C.J. Reports 1978, p. 3.
GJ. Reports 1976,p. 3.
Judgment of 20 December 1974, I.C.J. Reports 1974, p. 253.
Judges Onyeama, Dillard, Jimenez de Arechaga and Sir Humphrey Waldock, (op. cit.,pp. 63 to 122).
In the Certain German Interests in Polish Upper Silesia case P.C.I.J. Series A, No. 7, 1926,in respect of declarations made by Polish representatives before the Court it was held that “the Court can be in no doubt as to the binding character of these declarations.”
In the Factory at Chorzów case, P.C.I.J. Series A, No. 9 p. 19, the Court pointed out that: “It cannot take account of declarations, admissions or proposals which the Parties may have made in the course of direct negotiations which have taken place between them, declarations which, moreover, have been made without prejudice in the event of the points under discussion forming the subject of judicial proceedings. For the negotiations in question have not… led to an agreement between them.”
P. C.I.J. Series A/B, No. 53, p. 50.
I.C.J. Reports 1980, p. 3.
Cf. Separate Opinion of Judge Lachs and Dissenting Opinion of Judges Mozorow and Tarazi.
Cf. S.S. “Wimbledon’; 1923, P.C.LJ. Series A, No. 1,p. 80; Factory at Chorzów case, P.CLJ. Series A, No. 17,p. 29; the Corfu Channel case, LC.J. Reports 1949,p. 244.
Status of Eastern Carelia, Advisory Opinion, 1923, P. C.I.J. Series B, No. 5, p. 29.
First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 72.
LCJ. Reports 1956, p. 86.
Article 17, paragraph 2, of the Charter, Advisory Opinion, J.C.J. Reports 1962, p. 151.
LCJ. Reports 1971,p. 16.
CJ. Reports 1980,p. 17.
C.J. Reports 1956, p. 26.
I.C.J. Reports 1962, pp. 156–158.
P.C.U. Series B, No. 8,p. 50, at p. 282.
P. G I.J. Series A, No. 13, p. 15.
See also Interpretation of the Greco-Turkish Agreement of 1 December 1962, Advisory Opinion,1928, P.C.I.J. Series B No. 16,pp. 15–16.
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Elias, T.O. (1983). Methodological problems faced by the International Court of Justice in the application of international law. In: The International Court of Justice and some contemporary problems. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4865-0_2
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