What is Article 38 of the ICJ Statute?

What is Article 38 of the ICJ Statute?

Article 38(1)of the ICJ divides the sources of international law into those of a primary and secondary nature. The primary sources, which the Court will consider in its decisions, include conventions (or treaties), customary law, and general principles recognized by civilized nations.

How do you cite the ICJ statute?

The Statute of the International Court of Justice appears at the end of the Charter of the United Nations. Cite: Statute of the International Court of Justice, art. 38, ¶ 1.

What is Opinio Juris in customary international law?

In customary international law, opinio juris is the second element necessary to establish a legally binding custom. Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question.

What is the exhaustion of local remedies?

The customary international law rule of exhaustion of local remedies (ELR) aims at safeguarding state sovereignty by requiring individuals to seek redress for any harm allegedly caused by a state within its domestic legal system before pursuing international proceedings against that state.

Is Article 38 of ICJ outdated?

This positivist, consensual view of international law remains preserved in Article 38 of the 1946 Statute of the International Court of Justice (ICJ), which is the definitive statement on the sources of international law.

What does Article 59 of the ICJ mean?

Article 59 states that decisions of the International Court of Justice have “no binding force except between the parties and in respect of that particular case.” The Restatement of the Law (Third) of Foreign Relations Law of the United States identifies judicial decisions as “evidence” of international law.

Is the ICJ legally binding?

Are decisions of the Court binding? Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned.

Is Article 38 of ICJ exhaustive?

As a matter of practice, therefore, the fact that Article 38 is non-exhaustive has no great impact on the application of international law by the International Court of Justice.

What is an example of opinio juris?

In practice, a variety of sources tend to be used to demonstrate the existence of opinio juris, including evidence such as diplomatic correspondence, press releases and other government statements of policy, opinions of legal advisers, official manuals on legal questions, legislation, national and international …

What are the principal exceptions to the requirement of exhaustion of local remedies?

However, there are several exceptions to this rule. Generally, complainants are not required to pursue or exhaust domestic remedies where, for example: none exist, the procedure is unduly delayed, the procedure is not fair, or the available remedy cannot actually redress the alleged violation.

What is the remedy for human rights violation?

Major international and regional human rights treaties demand an effective remedy be available for individual victims of human rights violations. A remedy involves two elements: a victim’s access to the appropriate authorities to have his claim fairly heard and decided; and the redress or relief that he can receive.

What does Article 37 say?

Article 37 of the Constitution declares that the DPSP “shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.” It is not a mere coincidence that the apparent …

Can ICJ prosecute individuals?

The International Court of Justice has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court, it does not have a prosecutor able to initiate proceedings.

What are 3 sources of international law?

Nevertheless, treaty, custom, and general principles of law are generally recognized as primary sources of international law.

What are civil law remedies?

▶ A civil right is an enforceable right which if. interfered with by another gives rise to an action. for injury. ▶ Remedy denotes the manner in which a right is. enforced by a Court in case of its violation.