Make a summary and a critical commentary on b) Articles 38 and 36(2) of the Statute of the International Court of Justice.
Summary:
Articles 38 and 36(2) of the Statute of the International Court of Justice outline the sources of law that the court should refer to when making decisions. Article 38 lists four main sources of law: international conventions, international custom, general principles of law recognized by civilized nations, and judicial decisions and scholarly writings. This article gives the court broad discretion in determining what sources of law to reference in their decisions. Article 36(2) explains that states involved in a dispute must agree on the sources of law that will apply to their case. If the parties do not agree, the court will apply the sources listed in Article 38.
Critical commentary:
Articles 38 and 36(2) of the Statute of the International Court of Justice provide a solid framework for the court to reference when making decisions on international disputes. The inclusion of a variety of sources of law in Article 38 allows the court to draw on a wide range of legal doctrines and principles when resolving cases. However, the broad discretion given to the court in determining which sources to reference could lead to inconsistencies in decision-making and raise questions about the legitimacy of its rulings.
Additionally, the requirement in Article 36(2) for parties to agree on the sources of law that will apply to their case could potentially create obstacles in resolving disputes. If the parties cannot come to an agreement, it is up to the court to determine which sources to apply. This could lead to disagreements and delays in the resolution process. Overall, while Articles 38 and 36(2) provide a strong foundation for the functioning of the International Court of Justice, there are potential pitfalls that need to be addressed to ensure a fair and efficient process for resolving international disputes.