Although Article 38 has helped define international law as a discipline distinct from politics and international relations, it has fallen short of seeing the process through. As dynamic as society is, law needs to be one step ahead to ensure that there is a means to keep actions and omissions in check.
I always tell my students, when sitting an exam, that they have to answer the question that has been set rather than one that they feel comfortable with. No analogy is ever perfect, but this one sums up pretty neatly the outcome of the deliberations by the International Court of Justice (ICJ).
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