Make a summary and critical commentary on Articles 38 and 36(2) of the Statute of the International Court of Justice.
Summary:
Article 38 of the Statute of the International Court of Justice outlines the sources of law that the Court should apply when resolving disputes. These sources include international conventions, international custom, general principles of law, and judicial decisions and teachings of the most highly qualified publicists. Article 36(2) sets out the conditions under which states may accept the Court's jurisdiction, either by special agreement or by prior declaration.
Critical commentary:
Article 38 of the Statute of the International Court of Justice is a crucial provision that guides the Court in its decision-making process. By listing the sources of law that should be considered, the Court is able to draw on a wide range of legal principles and precedents when resolving disputes between states. However, the reliance on judicial decisions and teachings of publicists can sometimes lead to inconsistent interpretations, as these sources may not always be universally accepted.
Article 36(2) is important in determining the Court's jurisdiction and ensuring that states have a choice in whether or not to submit to its authority. By allowing states to make a special agreement or prior declaration, the Court is able to adjudicate disputes when both parties consent to its jurisdiction. However, this provision can also be limiting in cases where one party is unwilling to accept the Court's authority, leading to a lack of enforcement of its decisions.
Overall, Articles 38 and 36(2) of the Statute of the International Court of Justice play a crucial role in shaping the Court's decision-making process and determining its jurisdiction. While these provisions have helped establish the Court as an important international institution, they also highlight some of the challenges and limitations it faces in resolving disputes between states.