Sources of International Law (The Library of Essays in International Law) [1 ed.] 1840140976, 9781840140972

A collection of essays on the various aspects of the legal sources of international law, including theories of the origi

752 77 17MB

English Pages 600 Year 2000

Report DMCA / Copyright


Polecaj historie

Sources of International Law (The Library of Essays in International Law) [1 ed.]
 1840140976, 9781840140972

Table of contents :
Half Title
Series Preface
1 Oscar Schachter (1971), 'Towards a Theory of International Obligation', in Stephen Schwebel (ed.), The Effectiveness of International Decisions, pp. 9-31.
2 Robert Y. Jennings (1981), 'What is International Law and How Do We Tell It When We See It?', Schweitzerisches Jahrbuch für Internationales Recht, 37, pp. 59-88.
3 Gerald G. Fitzmaurice (1958), 'Some Problems Regarding the Formal Sources of International Law', Symbolae Verzijl, pp. 153-76.
4 David Kennedy (1980), 'Theses about International Law Discourse', German Yearbook of International Law, 23, pp. 353-91.
5 Prosper Weil (1983), 'Towards Relative Normativity in International Law?', American Journal of International Law. 77, dd. 413-42.
6 Ulrich Fastenrath (1993), 'Relative Normativity in International Law', European Journal of International Law. 4, pp. 305-40.
7 Jan Klabbers (1996), 'The Redundancy of Soft Law', Nordic Journal of International Law, 65, pp. 167-82.
8 John Tasioulas (1996), 'In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case', Oxford Journal of Legal Studies, 16, pp. 85-128.
9 Michael Akehurst (1976), 'Custom as a Source of International Law', British Year Book of International Law, 47, pp. 1-53.
10 Anthony D'Amato (1987), 'Human Rights as Norms of Customary International Law', in Anthony D'Amato (ed.), International Law: Prospect and Process, pp. 123-47.
11 Ted L. Stein (1985), 'The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law', Harvard International Law Journal, 26, pp. 457-82.
12 Martti Koskenniemi (1985), 'General Principles: Reflexions on Constructivist Thinking in International Law', Oikeustiede-Jurisprudentia, 18. pp. 120-63.
13 Vaughan Lowe (1992), 'The Role of Equity in International Law', Australian Year Book of International Law, 12, pp. 54-81.
14 Hersch Lauterpacht (1958), 'Some Observations on the Prohibition of "Non Liquet" and the Completeness of the Law', Symbolae Verzijl, pp. 196-221.
15 Julius Stone (1960), 'Non Liquet and the Function of Law in the International Community', British Year Book of International Law, 35, pp. 124-61.
16 W. Michael Reisman (1981), 'International Lawmaking: A Process of Communication: The Harold D. Lasswell Memorial Lecture', American Society of International Law Proceedings, pp. 101-20.
17 Gerry J. Simpson (1994), 'Imagined Consent: Democratic Liberalism in International Legal Theory', Australian Year Book of International Law, 15, pp. 103-28.
18 Martti Koskenniemi (1997), 'Faith, Identity, and the Killing of the Innocent: International Lawyers and Nuclear Weapons', Leiden Journal of International Law, 10, pp. 137-62.
Name Index

Citation preview

sources of international Law

Martti Koskenniemi

The Library of essays in inTernaTionaL Law

sources of international Law

Martti Koskenniemi

Sources of International Law

The Library of Essays in International Law General Editor: Robert McCorquodale Titles in the Series International Human Rights Law Michael Addo Indigenous Peoples in International Law Stephen James Anaya Law of the Sea Hugo Caminos Humanitarian Law Judith Gardam Sources of International Law Martti Koskenniemi Self-Determination in International Law Robert McCorquodale State Responsibility in International Law Rene Provost Jurisdiction in International Law W. Michael Reisman Title to Territory Malcolm Shaw Nature of International Law Gerry Simpson

Sources of International Law

Edited by

Martti Koskenniemi University of Helsinki



Routledc1e Taylor&Franci'cl


First published 2000 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright ©Marui Koskenniemi 2000. For copyright of individual articles please refer to the Acknowledgements . All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Sources of international law. - (The library of essays in international law) I. International law - Sources I. Koskenniemi, Martti 341.1 Library of Congress Cataloging-in-Publication Data Sources of international law I edited by Martti Koskenniemi . p. em. -(The library of essays in international law) Includes bibliographical references and index . ISBN l -840I-4097-6 I . International law. 2. International law-Sources . I. Koskenniemi , Martti . ~3410 . S67

341 21-dc21


ISI3 N 9781840 1409 72 (hbk)

Transfered to Digital Printing in 2012


Contents Acknowledgements Series Preface Introduction PARTI

2 3 4

5 6 7 8

9 10

3 27 57 81


Prosper Wei I (1983 ), 'Towards Relative Normativity in International Law?', American Journal of International Law, 77, pp. 413-42. Ulrich Fastenrath (1993), 'Relative Normativity in International Law', European Journal of International Law, 4, pp. 305-40. Jan Klabbers ( 1996), 'The Redundancy of Soft Law', Nordic Journal of International Law, 65, pp. 167-82. John Tasioulas (1996), 'In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case', Oxford Journal of Legal Studies, 16, pp. 85-128.





Oscar Schachter ( 1971 ), 'Towards a Theory of International Obligation', in Stephen Schwebel (ed.). The Effectiveness of International Decisions, pp. 9-31. Robert Y. Jennings (1981 ), 'What is International Law and How Do We Tell It When We See It?'. Schweitzerisches Jahrbuchfur lnternationales Recht, 37, pp. 59-88. Gerald G. Fitzmaurice ( 1958), 'Some Problems Regarding the Formal Sources of International Law', Symbolae Verzijl, pp. 153-76. David Kennedy (1980), 'Theses about International Law Discourse', German Yearbook of International Law, 23, pp. 353-91.



123 153 189 205


Michael Akehurst ( 1976), 'Custom as a Source of International Law', British Year Book of International Law, 47, pp. 1-53. Anthony D'Amato (1987), 'Human Rights as Norms of Customary International Law', in Anthony D' Amato (ed.), International Law: Prospect and Process, pp. 123-47.

251 305



Sources of International Law

Ted L. Stein ( I985), 'The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law', Harvard International Law Journal, 26,pp.457-82.

PART IV 12 13

14 15 16 17 18


Martti Koskenniemi (1985), 'General Principles: Reflexions on Constructivist Thinking in International Law', Oikeustiede-Jurisprudentia, 18, pp. 120-63. Vaughan Lowe ( 1992), 'The Role of Equity in International Law', Australian Year Book of International Law, 12, pp. 54-81.



359 403


Hersch Lauterpacht (1958), 'Some Observations on the Prohibition of "Non Liquet" and the Completeness of the Law', Symbolae Verzijl, pp. 196-221. Julius Stone (1960), 'Non Liquet and the Function of Law in the International Community', British Year Book of International Law, 35, pp. 124-61. W. Michael Reisman (1981), 'International Lawmaking: A Process of Communication: The Harold D. Lasswell Memorial Lecture', American Society of International Law Proceedings, pp. 101-20. Gerry J. Simpson (1994), 'Imagined Consent: Democratic Liberalism in International Legal Theory', Australian Year Book of International Law, 15, pp. 103-28. Martti Koskenniemi ( 1997), 'Faith, Identity, and the Killing of the Innocent: International Lawyers and Nuclear Weapons', Leiden Journal of International Law,10,pp. 137-62.

Name Index

433 459 497 517 543 569

Acknowledgements The editor and publishers wish to thank the following for permission to use copyright material. American Society oflntemational Law for the essays: Prosper Wei I ( 1983), 'Towards Relative Normativity in International Law?', American Journal of International Law, 77, pp. 413-42. Copyright © 1983 The American Society of International Law; W. Michael Reisman (1981 ), 'International Lawmaking: A Process of Communication: The Harold D. Lasswell Memorial Lecture', American Society of International Law Proceedings, pp. 101-20. Copyright © 1981 The American Society of International Law. Australian Year Book oflnternational Law for the essays: Vaughan Lowe (1992), 'The Role of Equity in International Law', Australian Year Book of International Law, 12, pp. 54--81; Gerry J. Simpson ( 1994 ), 'Imagined Consent: Democratic Liberalism in International Legal Theory', Australian Year Book of International Law, 15, pp. 103-28. Duncker und Humblot GmbH for the essay: David Kennedy ( 1980), 'Theses about International Law Discourse', German Yearbook of International Law, 23, pp. 353-91. European Journal of International Law for the essay: Ulrich Fastenrath (1993), 'Relative Normativity in International Law', European Journal of International Law, 4, pp. 305-40. Harvard Law School Publication Center for the essay: Ted L. Stein ( 1985), 'The Approach of the Different Drummer. The Principle ofthe Persistent Objector in International Law', Harvard International Law Journal, 26, pp. 457-82. Copyright © I 985 by the President and Fellows of Harvard College. Keele University, School and Department of Law for the essay: Michael Akehurst ( 1976), 'Custom as a Source of International Law', British Year Book of International Law, 47, pp. I53. Copyright© Keele University Law Department and Dr Michael Akehurst. Kluwer Academic Publishers for the essays: Gerald G. Fitzmaurice (I958), 'Some Problems Regarding the Formal Sources of International Law', Symbolae Verzijl, pp. I53-76; Hersch Lauterpacht (I 958), 'Some Observations on the Prohibition of "Non Liquet" and the Completeness of the Law', Symbolae Verzijl, pp. I 96-221. Kluwer Law International for the essay: Martti Koskenniemi ( 1997), 'Faith, Identity, and the Killing of the Innocent: International Lawyers and Nuclear Weapons', Leiden Journal of International Law, 10, pp. 137--62. With kind permission of Kluwer Law International.


Sources of international Law

Oxford University Press for the essays: John Tasioulas (1996), 'In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case', Oxford Journal of Legal Studies, 16, pp. 85-128. Copyright© 1996 Oxford University Press; Julius Stone (1960), 'Non Liquet and the Function of Law in the International Community', British Year Book of International Law, 35, pp. 124-61. Schweizerische Zeitschrift Fuer Internationales Und Europaeisches for the essay: Robert Y. Jennings (1981 ), 'What is International Law and How Do We Tell It When We See It?', Schweitzerisches Jahrbuchfor lnternationales Recht, 37, pp. 59-88. Suomalainen Lakimiesyhdistys (Finnish Lawyers' Association) for the essay: Martti Koskenniemi (1985), 'General Principles: Reflexions on Constructivist Thinking in International Law', Oikeustiede-Jurisprudentia, 18, pp. 120-63. Transnational Publishers, Inc. for the essay: Anthony D' Amato ( 1987), 'Human Rights as Norms of Customary International Law', in Anthony D' Amato (ed.), International Law: Prospect and Process, pp. 123-47. Reprinted from International Law: Prospect and Process, 2nd edition, Anthony D' Amato by permission of Transnational Publishers, Inc., Ardsley, New York. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface Open a newspaper, listen to the radio or watch television any day of the week and you will read or hear of some matter concerning international law. The range of matters include the extent to which issues of trade and human rights should be linked, concerns about refugees and labour conditions, negotiations of treaties and the settlement of disputes, and decisions by the United Nations Security Council concerning actions to ensure compliance with international law. International legal issues have impact on governments, corporations, organisations and people around the world and the process of globalisation has increased this impact. In the global legal environment, knowledge of international law is an indispensable tool for all scholars, legal practitioners, decision-makers and citizens of the 21st century. The Library of Essays in International Law is designed to provide the essential elements for the development of this knowledge. Each volume contains essays of central importance in the development of international law in a subject area. The proliferation of legal and other specialist journals, the increase in international materials and the use of the internet, has meant that it is increasingly difficult for legal scholars to have access to all the relevant articles on international law and many valuable older articles are now unable to be obtained readily. These problems are addressed by this series, which makes available an extensive range of materials in a manner that is of immeasurable value for both teaching and research at all levels. Each volume is written by a leading authority in the subject area who selects the articles and provides an informative introduction, which analyses the context of the articles and comments on their significance within the developments in that area. The volumes complement each other to give a clear view of the burgeoning area of international law. It is not an easy task to select, order and place in context essays from the enormous quantity of academic legal writing prublished in journals- in many languages- throughout the world. This task requires professional scholarly judgment and difficult choices. The editors in this series have done an excellent job, for which I thank and congratulate them. It has been a pleasure working with them. ROBERT McCORQUODALE General Series Editor Faculty of Law The Australian National University

Introduction Sources and Legal Pragmatism The doctrine of the sources of international law is part and parcel of an abstraction-oriented formalism that finds it increasingly difficult to defend itself against the various 'realist' and policy-oriented styles of legal argument that form today's diplomatic and doctrinal mainstream. It is not that international practice would no longer make reference to treaties, customary law, general principles and other formal 'sources', or be unconcerned about the distinction between 'law' and 'not-law'. The list of materials contained in Article 38 (1) of the Statute of the International Court of Justice continues to form a de facto authoritative statement of points of reference for formally competent statements about the law. 1 The problem lies in the paucity of intellectually respectable explanations for why it is that these orthodox types of arguments carry the pedigree they do; whether they form an exhaustive typology of permissible international legal arguments; and how each argument should be understood in its relationship with others. To phrase these questions in another way: why should international treaties and custom, rather than, say, action plans of international organizations or books of philosophy contain legitimate statements about the law. As Sir Robert Jennings, a former President of the International Court of Justice, observes in his essay (Chapter 2) 'What is International Law and How Do We Tell It When We See It?': 'I doubt whether anybody is going to dissent from the proposition that there has never been a time when there has been so much confusion about the tests of validity -or sources- of international law as the present' .2 It is, I believe, precisely due to the absence of a connecting theoretical explanation for sources doctrine, that the post-war realist mainstream has tended to take a 'soft' or a pragmatic view on it. From the perspective of a (realist) voluntarism, for instance, formal sources cannot have any independent normative force against State will. If States agree on something, what point would there be to insist that it still should not be enforced as law inasmuch as it does not present itself in the form of a treaty, or a custom, or a general principle of law? 3 The important thing, surely, is the agreement (or 'consent'), while sources only have significance as manifestations or evidence thereof. 4 Some of these problems are discussed in the essay by Sir Gerald Fitzmaurice (Chapter 3), 'Some Problems Regarding the Formal Sources oflnternational Law'.j He takes up the distinction between material and formal sources and accompanies it with the difference between sources of law and sources of obligation, both distinctions having to do with the hierarchy of a juristic reason that proceeds from what is at the surface (namely a text or a behaviour) to explain its binding force by what lies at a more 'fundamental' level (a higher level rule, community acceptance or the nature of the thing). 6 On the other hand, (realist) behaviouralism will continue to insist that the formally binding character of a standard (whatever 'formally binding' may mean) is much less significant than the factual 'compliance pull' a standard may possess. 7 If something is effectively followed, why insist that it still is not 'law' only because it cannot be fitted into an academic sources doctrine? For a realist, treaties, customs and general principles are not decisive for the


Sources of International Law

delimitation between 'law' and 'not-law' but at best only more or less reliable indicators of what it is that States will (if 'will' is thought as the foundation of law), or what standards are effectively enforced (in case effective enforcement should provide the decisive criterion). The presumption, however, must always remain rebuttable: in case State will or effectivity - or perhaps more equivocally, 'legitimacy'- point in some direction, why should a formal sources doctrine be thought to possess a normative force overriding them? Likewise, for theories that derive the law from some conception of justice, or of 'fundamental rights', or some idea of a Volkerreclztsgemeinschaft, 8 it seems equally difficult to defend a normatively strong sources doctrine. Inasmuch as those theories pretend to know the justice that the law should attain, or the character of an international community that the law should 'reflect', why would such theories need to invoke some particular form in which that justice or community should appear in order to seek its realization? A norm would then be validated simply by a test concerning its correspondence with the (postulated) conception of justice or community. If a treaty were substantively unjust- but nonetheless a treaty- its mere formal validity can hardly be thought an obstacle for overruling it. Would not then treaties simply have value as presumptions about, or indications of, justice- while, if that justice were known, there would be little reason to invoke the presumption, all the less so if the presumption pointed in an unjust direction? The problem of finding a credible explanation for the normative force of sources doctrine is to a great extent about the difficulty of constructing a 'grand theory' about the foundation or purpose- in short, the 'point'- of law within which 'sources' would have a central place. For no theory that looks outside the law (into State will, the needs of an international community, actual enforcement or political justice) in order to explain its point can sustain a formal sources doctrine as anything other than a presumption, a practical method, a rule of thumb, about how to reach that point. If the point is already assumed to be known, there can be no justification for invoking a sources argument against it. Yet, here perhaps lies the explanation for the surprising tenacity of arguments about treaties, customs and general principles. Could it not be the case that there is such a wide variety of theories about the point of international law, and such profound disagreement over them (and that even as some theory might be generally supported, it is so because it lends itself to deviating normative conclusions) that no such theory can plausibly be used as a reference point for reaching acceptable resolutions in normative problems. In such case, recourse should be had, by default as it were, to what treaties, customary behaviour and general principles might say, precisely to avoid engaging in interminable debates about the point of law. This might be so, even, as pointed out in the essay by Oscar Schachter (Chapter l ), 'Towards a Theory of International Obligation', if the question of the source of obligation- grand theory- cannot be permanently set aside to the extent that interpretative difficulties concerning treaties, custom and general principles seem capable of being discussed only in the context of some general theory. 9 Formalism is the credo of the practitioner, and with good reason. None of the theories (voluntarism, behaviouralism, naturalism and so on) that used to be offered as external explanations of the point of international law has been able to withstand apparently wellfounded criticisms. What the practitioner needs are not broad guidelines to realise 'justice', to give effect to 'rights', 'sovereign will' or 'community policy' but much more tangible linguistic units for the justification of resolutions to actual normative problems. 10 The normative force of

__________________________s_o_u_~_e_s~of~l__ nte~n_ar_io_n_a_l_La __w________________________x__ iii an independent, practice-oriented and formal sources doctrine lies in its ability to verify or validate the argumentative materiel that enables the legal profession to continue to carry out its legal job without having to transform itself into a legislative agency ('realise policy') or a priesthood of right and wrong.'' Indeed, is not the legal profession defined by the limitation of its perspective within that which is 'legal' and so does not concern itself with the law's moral or political point? In this sense, there is no 'fundamental' explanation for sources doctrine at all. Nor would there seem to be a need for such. Sources doctrine would then appear as a kind of user's manual; a practical checklist that professional lawyers have recourse to as part of their professional task and self-image. A melancholy second best, sources would provide handy tools to the extent that the external point of law seems contested, unclear or simply irrelevant - that is to say, in most of the contexts of work that lawyers are called upon to carry out. The question of the articulation of the 'source of sources' would then not arise. 12 For all intents and purposes, the identification of what count as sources would not be found in philosophy books but would be a function of a professional culture, a consensus among legal experts, an extrapolation of how lawyers, in fact, argue. 13

Sources Theory: Formal and Material It is customary to distinguish two meanings for the term legal 'source': a 'material' and a 'formal' . 14 On the one hand, there is the explanation of sources as the history, cause or basis from which law 'emerges'. This ('material') aspect of sources seeks to provide for the law's legitimacy, pointing to its origin in a legislative process, natural reason, a principle of justice or policy that resonates with our political sensibility and that we usually take as a good reason for applying the standard based on it. 15 A treaty is said to express the will of the parties. Because we feel that its capacity to express party will is a good reason for applying a standard, we defer to it. 16 Customary law is said to emerge from the general, continuous and uniform practice of States, accompanied by a belief that the practice is required by a rule of law (opinio juris)Y Because we think that law should reflect what States generally will, and we think of custom as an emanation of such will, we defer to it. 18 Or if asked as to why 'general principles of law recognised by civilized nations' should be listed among the sources that the International Court of Justice (ICJ) is called upon to apply, we may say, for instance, that they should because such principles emerge from, or give expression to, values and considerations that are widely shared among the community of States and we feel that in case of dispute, community values should be enforced on deviant members. The difficulty is that emphasis on this (material) aspect of sources deformalizes the law in a way that makes it vulnerable to contrasting understandings of the material cause that we invoke. In disputes about treaty interpretation, for instance, deviating constructions of what parties 'willed' when entering the treaty are routinely invoked against each other. It is hard to see how a third party could have such direct access to 'party will' that it could apply it and thereby overrule a party's own report about what it was that it had originally willed. 19 Yet, deference to the State's own report would of course leave the conflict unsettled. The standard solution is to construct a reasonable interpretation on the basis of the treaty text ('normal meaning'), its object and purpose and subsequent party behaviour, arguing these as best evidence of consent. 20


Sources of International Law

The paradox is that we now lose the ability to defend our construction by reference to party will- after all, recourse to it was premised upon our having no access to such will. The argument and the justification remain, in this sense, formal: the substantive point that we believe to exist as the reference (or meaning) of the formal rule ('State will') remains beyond reach. The acceptability of our resolution cannot reside in how it reflects some voluntary reality. Its acceptability lies simply in what it says on its surface, not in how it can be defended by something more fundamental (such as 'consent'). It is true of course that 'party will' is often a fiction, or shorthand for a technique that really seeks something else- for instance, what seems reasonable in the particular case. A (pure) voluntarism that takes the law's consensual justification seriously is dismissed as naive, 'Oh, consent provides a nice justification for the law. But nobody really uses it in practice- after all, how could we know what States - those anthropomorphic metaphors - actually "will'' or "believe"'. Hence, consensualism invariably turns out to rely on arguments about good faith, reciprocity or the legitimacy of expectations.Z 1 But to explain treaties (or any other source) from the perspective of a non-consensual assessment of contextual justice fares no better than explaining them as manifestations of consent. A justice-based view leads into the impasse of the indeterminacy of the concept of 'justice' and to the difficulty of explaining why our construction of it would be capable of overriding a treaty partner's differing construction. 22 David Kennedy's 1980 article (Chapter 4) links these argumentative moves and oppositions within doctrine and theory into a unified structural explanation that employs the heuristic device of a 'fundamental contradiction' to account for the often frustrating experience of an inability to arrive at an authoritative resolution. Still excellent as a description and explanation of the dilemmas and dead-ends of international lawyers' 'basic paradigm', the article consciously refrains from proposing (or indeed even examining) alternative modes of doctrinal or theoretical substance. 23 Now whether we think the material source of law lies in party will or in the bilateral or multilateral justice that a treaty seeks to create, we seem called upon to defend a contested view about the point of law (does law exist in order to realise the 'will' of sovereign States or perhaps some non-State related principle of international justice?) that seems impossible to defend within the canons of legal argument. As soon as we leave the immediate surface of the rule we are drawn into a debate that infects the rule itself with all the uncertainties that relate to the justifying reasons. This is the problem I have explored in my essay (Chapter 18) on 'Faith, Identity, and the Killing of the Innocent. International Lawyers and Nuclear Weapons' .24 At the level of justifying reasons, sources debate turns into a political or philosophical discussion about the point of law- and no distinctively legal service will have been rendered whatever our substantive resolution. 25 Aside from this material understanding that looks for the 'point' of law, there is of course the view of sources not as the origin or foundation of law (or as providers of access to them) but simply as places in which the law 'is'. Here the debate moves from the high heaven of the "legitimacy of standards to the pragmatics of legal epistemology: not what, or why, but where the law is.Z 6 A rule is applied because it is included in a formally valid treaty and it is the legal profession's task to apply, among other sources, such treaties. A treaty is defined as 'law' not because some philosophical or political explanation so dictates but through the professional practices in which legal dispute resolution is understood as being, among other things, 'application of treaties'. To ask for a further explanation, namely why it is that the profession

Sources of International Law


has defined its task in this way, is not a properly legal question. Rather it is seen as an anthropological or cultural question. To ask this question is to put oneself outside the practical and historical context in which the resolution of international normative legal problems takes place. It is not a nonsensical question, of course, but its relevance for the carrying out of legal jobs is no greater or smaller than that of the doubt we may occasionally entertain about whether legal education in fact enables lawyers to carry out legal jobs successfullyY A formal concept of sources focuses on materials that lawyers are entitled (or perhaps called upon) 28 to use when engaged in the resolution of normative problems. The formal and the material concept of sources relate to each other in the way that doing things (practice) and the contemplation of doing things (theory) do. There is a time for each; the two cannot be carried out simultaneously. Like spontaneity and reflection, debates about formal and material sources define themselves through mutual exclusion: when engaged in one, the other remains in abeyance, or bracketed. Sometimes one just has to take a decisionin which case contemplating the point of law is inappropriate. At other times, contemplation about why it is that we apply these materials, and not those, is necessary. Ideally both provide a vantage point from which the other can be critically evaluated. But neither can be reduced to the other. The 'doing' of the lawyer - the resolution of normative problems - is not a mechanical derivation from insights received during the 'contemplation' of the law's point. This is so because contemplation (reflecting about the point of law) is open-ended. Although consensual and non-consensual explanations of the law's binding force are (by definition) mutually exclusive, neither can be fully accepted nor rejected. But even if there were unanimity about the point of law, it would always remain open to interpretation about how it should be translated into practical criteria or guidelines justifying the resolution of a particular normative problem. It is not, then, the case that lawyers should be too concerned over the difficulty, in face of reductionist voluntarisms, realisms and naturalism, to justify a particular doctrine of legal sources. 29 In the context of legal practice, sources are handed down by the very tradition that constitutes what it means to be an 'international lawyer'. The nucleus of the professional consensus is that materials referred to in Article 38 of the ICJ Statute constitute the places in which the law, for practical purposes, should be looked at. Outside that nuclear agreement, there is dispute about whether and to what extent Jaw can be found in other places as well: UN General Assembly resolutions, reports of international organizations, principles of morality or natural law and so on. To what extent such (and other) materials may be used differs from case to case, such differences often being articulated in terms of differences between views concerning what I have above called the 'point of law'. For a lawyer with communitarian theory of justice, General Assembly resolutions often appear as part of the law because of their assumed ability to express (however unsatisfactorily) a general consensus of States. 3°For those insisting on the centrality of State will, the interpretations of a treaty by the treaty's implementation organ, for example, cannot bind parties unless otherwise provided in the treaty. 31 But such associations of particular (material) theories and (formal) doctrines are not linked in any determinate or permanent way. One's 'communitarianjustice' is another's power policy (General Assembly resolutions as the imposed will of a technical- and undemocratic- majority); one's 'State will' is another's principle of justice (protecting the right of self-determination). These are not debates in which lawyers as problem-solvers can usefully engage, although they need


Sources of International Law



to be contemplated outside that context (in legal education and research) so as to enable the establishment of a critically inclined international law profession. It would a mistake to assume that there is a material theory of sources (about the law's point) - or that we (or lawyers, or normative problem-solvers) should find it - that would then authentically determine which materials pern1anently qualify as formal sources of international law. The matter will remain open as long as the value of 'sources' is thought of in terms of their ability to express or manifest something else and as there is disagreement about what that 'something else' might be or how it should be understood. Theory's ability to provide normative guidance for practice is in this way very limited. Practitioners remain in a situation where they are called upon to justify their resolutions in some way that appears to cohere with the profession's canonical styles of legal argument while not departing too much from what they (intuitively) think as the most important considerations in the case. But that practice is notand cannot be- derived from the different kind of practice to which we often give the name 'theory' .32

Gaps in Law? One caveat needs to be made about sources language. The metaphor of sources aiding in 'finding' the law is premised upon a (positivist) understanding of the law existing 'out there' to be 'found', independently of the observer. Although this is a useful metaphor for some purposes (e.g. for describing the motivations jurists had for developing the doctrine), it clearly does not tell the whole truth about the law's constructive side, the aspect of law as a result of the legal argument and not a condition of it. This aspect is easiest to grasp in relation to the discussion about the possibility and character of 'gaps' in international law and the place of non liquet in judicial or arbitral practice. The idea of 'gaps' in law is premised on the idea that normally the law is there to be found, as a tangible object of professional scrutiny, external to the ways lawyers argue about it or the perspectives from which they do this. 33 Only such assumption can sustain the idea of lawapplication as distinct from law-creation, or legislation. If judges are called upon only to apply the law, and not to legislate it into existence, it follows that if there is no law, then it is necessary (however unfortunate that may seem) for them to say so and decline from deciding the case. 34 Such a view of gaps has been questioned from two perspectives. Kelsen pointed out that it is in the nature of a legal system that it is formally complete, that a State either is or is not under an obligation and that a third possibility is excluded. 35 This view is supported by what is often referred to as the Lotus principle in accordance with the famous judgment by the Permanent Court of International Justice 36 - namely that in the absence of clear law on a matter, State sovereignty should be presumed as prevailing. Under this view, 'gaps' are only uncertainties about positive law but constitute no bar for judicial decision. In the absence of clear prohibition, States must be assumed free to act. The difficulty- often noted- with this view is that it remains useless when two States' sovereignty is at issue and we do not know which to prefer. In the field of environmental protection, for instance, where clear-cut rules are notoriously ambiguous or lacking, it makes no sense to argue that States should be assumed 'free', for it does not tell whether to privilege the freedom of the State within whose

Sources of International Law


territory pollution is caused or the freedom of the State in which the pollution effects are manifested. 37 The other alternative is recourse to what could be called legal 'constructivism', exemplified by the essay in Chapter 14 by Sir Hersch Lauterpacht, 'Some Observations on the Prohibition of"Non Liquet" and the Completeness of the Law' .38 In the absence of a clear and unambiguously available legal rule, a court proceeds with whatever contextually applicable standards or considerations it may think relevant so as to 'construct' (instead of 'finding') a resolution to the case. For instance, in the Anglo-Norwegian Fisheries case, the ICJ observed that neither the so-called ten-mile rule nor any other technically precise rule had emerged to govern the drawing of straight baselines in a geographical situation such as the Norwegian archipelago. Nonetheless, it went on to state that: ... it does not at all follow that, in the absence of rules having the technically precise character alleged by the United Kingdom, the delimitation undertaken by the Norwegian Government in 1935 is not subject to certain principles which make it possible to judge as to its validity under intemationallaw. 39 The Court then outlined certain 'basic considerations' such as 'the close dependence of the territorial sea upon the land domain', 'the more or less close relationship existing between certain sea areas and the land formations' as well as 'certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage'. In other words, having first ascertained what seemed very much like a 'gap' in the positive regulation of baselines, it nonetheless found a number of 'considerations' that it could use so as to justify a decision. The judgment was, apparently, not about declaring the law already in existence but about 'constructing' it from whatever materials seemed available. 40 In such (and other) cases, there is no one simple 'gap' in the law. What may at first look like such a gap is only a primae impressionis argumentative difficulty, eventually overcome by a more complex argumentative structure that draws upon heterogenous 'considerations', that is, normative materials to which, as the Court has noted, 'there is no limit' .41 If this is the case, one is called upon to articulate a very broad listing of formal sources so as to make room also for the kinds of 'considerations' that the Court in the Anglo-Norwegian Fisheries case referred to, at least insofar as diplomatic reality excludes an open espousal of a 'free law' ideology by international tribunals. Whether in such cases one speaks of 'judicial legislation' depends on whether one shares a very rigid image of the law as an external, objective set of stone-carved standards, applicable in an on/off fashion; or whether one is prepared to relativize the law by reference to a constructivist view on it. Such constructivism has not gone without criticism. The essay by Julius Stone (Chapter 15) 'Non Liquet and the Function of Law in the International Community' 42 is a response to Lauterpacht. If formal law is unclear or lacking, a contrived argument back to general principles in fact is simply legislation in disguise. International lawyers may do more of a disservice to themselves and to the judicial function by arrogating de facto legislative functions to themselves, than by acknowledging the presence of a gap. On the other hand, Michael Reisman in his essay (Chapter 16) 'International Lawmaking: A Process of Communication' ,43 leads the debate beyond this traditional dichotomy and summarizes the views of the 'New Haven School' that conceptualizes law as a form of communication rather than derivations from formally valid legal sources. Here law is not distinguished from what works in practice. Finally, Gerry


Sources of International Law

Simpson's essay (Chapter 17) 'Imagined Consent: Democratic Liberalism in International Legal Theory' ,44 discusses the state of international legal theory today, describing and criticizing a series of 'liberal' views that derive international law in one way or another from the 'consent of the governed' or from a sense of the law's legitimacy.

The Priority of Form The virtue of formal sources is that they enable lawyers to proceed with their legal task without having to bother about large and ultimately indeterminate debates about the theoretical 'point' of law. It may be helpful to see how, precisely, formal sources develop an exit from what seems like an unending controversy about whether that point is located in the field of morality ('justice', 'equity', 'the good life') or sociology ('fact', 'behaviour', 'power'). No (formal) sources doctrine ever emerged in the writings of Grotius or de Vattel. There was no need for such doctrine because the validity of a putative norm could always be decided on the basis of whether that norm was 'just' in the light of earlier (Grotius) or contemporary (de Vattel) diplomatic practice. 45 Under modernity's moral agnosticism, however, ruminations about 'justice' seem too abstract and capable of being manipulated to provide for a useful legal technique. Hall, writing more than a hundred years ago, set out the fairly unified mainstream view about this issue: However useful therefore an absolute standard of right might be in presenting an ideal towards which law might be made to approach continuously nearer ... it can only be a source of confusion and mischief when it is regarded as a test of the legal value of existing practices.46 For the professional scholarship of the 19th century, as for most modern lawyers, 'justice' appeared as a fancy shell within which each State could dress its interests and political preferences. Indeed this was Grotius's point in the famous argument in which he moved from the jus ad bellum to jus in bello. To make belligerent rights and duties depend on the justice of the cause for which war was being waged would only have led to an endless debate. This was the problem in theological wars: to make the application of rules of war depend on the justice of the cause presupposed what was being contested, namely that there was a single normative framework from the perspective of which the position of the belligerents could be assessed. For Grotius, it was better to leave such contemplation to theologians as, for practical purposes, it was preferable to apply the laws of war in any formal war and in regard to any formal 'belligerent' whether or not a just cause could be invoked by someone. 47 The search for justice 'behind' law was replaced by a nationalist and liberal voluntarism, the search for State will as representative of the nation's Gemeinwille. This search may be associated with Enlightenment ideas about political legitimacy. Inasmuch as people were not born into a pre-existing normative world, they were born free and equal. because no pre-existing code dictated their hierarchical positions. How can social order between free and equal individuals be justified? Only by reference to their consent. The consent of the governed - what they willed- was moral agnosticism's decisive contribution to legal theory. 48 Through the domestic analogy. it became customary to apply this understanding also to the society of States. 49 An acceptable international order is that which reflects the wills of States. 50 Any other solution

Sources of International Law


would violate the principles of the subjectivity of value and illegitimately prefer some States' values to those of others. 5 1 Just like a successful naturalism, a successful voluntarism makes a formal sources doctrine unnecessary. The validity of a standard, whether it is law or not-law (or binding/not-binding) depends simply on whether it reflects the relevant authority's 'will' in an authentic way. International law becomes, to quote Hall again, ' ... those rules of conduct which modem civilized states regard as being binding on them'. 52 For such a view, 'international law is entirely phenomenological; it does not exist apart from the way representatives of States see it' .53 The difficulty here is, however, about access to such statal phenomenology: how is one to ascertain the 'views' of States or their representatives? Voluntarism is just as abstract, subjective, and subject to manipulation as naturalism. If taken seriously, voluntarism will insist that the State's report of what it believes should be taken as conclusive evidence of the law. As Hersch Lauterpacht observed in a famous passage about the 'autointerpretive' character of international law: An obligation whose scope is left to the free appreciation of the obligee, so that his will constitutes a legally recognized condition of the existence of the duty, does not constitute a legal bond. 54 The standard response to Lauterpacht's view is to argue about the presumed character of the will, as manifested in behaviour (estoppel, tacit agreement and so on). But this is a slippery slope. How do we know which forms of behaviour allow the presumption? Any behaviour may manifest any kind of will- intervention, for instance, may manifest both friendship and hostility -as we know the meaning of behaviour only by reference to an 'internal view' (opinio juris) about it. However, reference back to such internal view of the State seems excluded because it was the very premise of the argument that it could not be found. The criterion has to be a nonvoluntary one: is the result in accordance with good faith, legitimate expectations, or what it would be reasonable to consent to? 55 But these questions move us away from voluntarism to its contrary. 56 Nor is the tempting position that '[t]he basis of the doctrine of legal sources is in all cases actual practice and that alone' 57 any more useful as it says both too much and too little. It either makes no distance between what States do and the law -and thus ends up identifying any power as law- or it fails to indicate those actual 'places' in which State practice with a normative meaning could be found irrespectively of the States' own report about how they understood what they were doing. It thus turns into a moral standard of behavioural evaluation. Whether or not ideas about justice or State will and behaviour are needed to provide theoretical explanations of the law, in legal practice they need to be set aside in order to fix the law in some more tangible place that could be referred to in the event of normative uncertainty. Thus formal sources become substitutes for abstract speculation about natural law and about what States might will or have willed, do or have done. · It is important to see what happens in these two moves from naturalism (morality) and voluntarismlbehaviouralism (sociology) to formal sources. Initially, it seemed that the question about how to distinguish 'law' and 'non-law' could only be answered by reference to a fundamental explanation -a clarification of the 'point'- of law. Formal sources were understood as derivations from the results received at this fundamental level: mere surface elements (or supplements) to a law that was in fact dependent on (or perhaps identical with) more basic structures of political legitimacy, social justice or State will. As such, they possessed no

Sources of International Law

independent normative power against such structures, and hence became infected with whatever controversy or lack of clarity related to them. Now the relationship between the 'foundation' and the 'surface' has been overturned. Theories about the law's material point have been reduced into intangible abstractions that must be set aside in the day-to-day practice of applying the law. They now become the supplement, useful only in marginal or hard cases where disagreement about the normative nature of some standard is particularly important. But even then, it cannot be expected that this disagreement will be resolved in a way that can be translated into a legal decision. Something is always needed 'in between' the fundamental theory and the juristic resolution. That something is the set of formal sources that the profession has accepted as such. 58 Deformalizing Law All would be well if there existed a fixed set of formal sources with a determinate content and unquestioned authority. In such case, lawyers would never again need to bother about abstract theories to justify their practice. But the way back to a formalism sans peur et sans rep roche is no longer open. The spectres of abstraction and indeterminacy re-emerge immediately within debates about the various sources and seem to call fo_r resolution by reference to something outside them. For example, treaties constitute the most unequivocal formal source. There is no need to ask why a State should be bound by a treaty. A treaty is binding by definition. Yet what is a treaty?59 Persistent controversy reigns about borderline cases and principles of interpretation. Various kinds of gentlemen's agreements and executive agreements, press communiques and informal minutes have been deemed to give rise to legal obligations. 60 The important point, however, is that no classification can be really normatively important when the fact that an agreement remains unwritten is no formal 'bar to its contents becoming binding by way of estoppel or acquiescence. 61 In addition, questions about justice and will re-emerge as soon as treaties are being interpreted. Is the right interpretation that which corresponds to material justice (or good faith, equity, reasonableness) or that which is in accord with party will? Needless to say, there is no final resolution to such questions and treaty doctrines constantly oscillate between such various definitions. 62 Although custom is an unquestioned authority as a formal source of international law, what custom is and how it should be constructed have been among the most discussed questions of international legal doctrine. 63 The standard two-element theory (custom as a union of a material element and a psychological element) has been criticized as fictitious, logically incoherent and impossible to apply in practice. 64 Doctrines about customary law repeat the structural difficulties embedded in the social theory quandary about the meaning of behaviour. When should a pattern of behaviour be interpreted as 'custom'? On the one hand, the argument is that this can be inferred from the nature of the behaviour, that is, whether it is general and coherent. On the other hand, to examine only external behaviour fails to make a distinction between behaviour induced by coercion and behaviour induced by law. In order to make that distinction, the internal aspect (opinio juris) is needed, that is: does behaviour manifest the behaving agent's view that it is 'required by law'?65 But finding out the presence of the 'internal aspect' meets with the problems of standard voluntarism: how does one know what a State 'thinks' and, even more

Sources of International Law


importantly, is one ever entitled to invoke one's opinion about what the State thinks against that State itself?66 In practice, 'custom' has become a generic category for practically all binding non-treaty standards. 67 This is in line with agnosticism about natural law and general principles as it seems sometimes simply too difficult to argue about such principles within the conventions of legal rhetoric and proof. 'Custom' seems both more legitimate in origin and more tangible in application -even if the various standards thus classified as 'custom' cannot easily be fitted within the standard theory about the emergence and ascertainment of customary law. The discourse on custom and the ways in which it is constantly developing into a nonconsensual legislative technique are explored in the essays by Akehurst, D' Amato and Stein. First, Michael Akehurst in Chapter 9, in 'Custom as a Source of International Law' ,68 restates the 'two-element' theory of custom, arguing that statements in abstracto should be listed as forms of physical practice, while only statements in concreto are really credible evidence of the opinio juris. Referring to Akehurst's essay, Anthony D' Amato in Chapter 10, 'Human Rights as Norms of Customary International Law' ,69 defends a view according to which custom can also be generated by multilateral treaties, a view that contradicts Fitzmaurice's point about treaties being merely sources of obligation (instead of law) and lays groundwork for regarding treaty-making as a legislative technique. Ted Stein's essay (Chapter 11 ), 'The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law' ,70 describes the other side of the same coin, namely the widening opportunity that States have to qualify themselves as persistent objectors by reference to custom-formation's increasingly open and legislative character in a traditional description of an international order based on the equal sovereignty of formal States. The general law represented by custom and treaties is accompanied by a number of other kinds of legal argument enabling lawyers to examine and assess situations that seem difficult to squeeze within the confines of general law. Although the 'general principles of law recognized by civilized nations' have never been expressly applied by the International Court of Justice, the Court has frequently made reference to 'principles' without feeling a need to classify them under any other category of formal sources." Such principles play a large role in judicial practice, either as pragmatic rules of thumb or as rules that form part of the definition of any legal process. Often they are described as 'gap-fillers', that is, as second-order standards that become applicable in the absence of individual rules that would conclusively dictate a resolution. I have examined their nature and use in legal argumentation about principles in my essay (Chapter 12) on 'General Principles: Retlexions on Constructivist Thinking in International Law'. 72 Equity is not normally understood as an independent source of law but more an adjustment of or a deviation from it. Despite its recognized ambiguity, much legal practice would remain incomprehensible without reference to equity. Yet, as Vaughan Lowe points out in his essay (Chapter 13) 'The Role of Equity in International Law' ,73 understanding equity remains a puzzle: can it be constrained infra legem? To what extent is equity merely the application of legal policy? And from where comes the authority to apply such policy over States? Very often, equity crystallizes or transforms itself into the balancing of interests or the taking account of previous behaviour of the relevant States by reference to unilateral declarations, recognition, acquiescence and estoppel. Past behaviour is interpreted in terms of (tacit) understandings, good faith or a requirement of reciprocity.


Sources of International Law

Now this development engenders a deformalization that is familiar to modem welfare or bureaucratic law in general. 74 Formal and universally applicable standards either appear as too rigid and inflexible to be usefully applicable in particular cases or they seem acceptable only by way of incorporating an 'open texture' (semantically ambiguous or evaluative expressions) that enables the decision-maker to take account of the particularities of the case: to 'balance the relevant interests'. In such cases, reference back to the behaviour of the relevant States, in search for tacit agreement or equity seems necessary so as to attain a resolution enjoying the broadest possible legitimacy. Inasmuch as international law is particularly dependent on States viewing its application as legitimate and pays even less attention to formality than municipal law, and as the search for State consent makes it impossible to overrule any fact as potentially relevant for determining what the law should be, 7s recourse to 'balancing' and ad hoc decisionmaking seems particularly appropriate in the international realm. 76 Though it is familiar as a response to what may appear as the increasing complexity of social relations, and as a strategy to pave the way for future formal standards,77 such deformalization also carries familiar dangers. It leads into an ad hoc settlement of disputes by reference to particularized standards, loses the law's predictability and behaviour-guiding capacity. Social power is transferred from law-makers to law-appliers. The uses of equity and contextual standards (estoppel, acquiescence) rely on the wisdom and political skill oflawyers who become metamorphozed into bureaucratic or diplomatic manoeuvrers. 78 Deformalization, as Hedley Bull suspects: 'embodies a trend whose logical conclusion is the disappearance of international law as a distinct social science' .79 However, deformalization does not follow as an outside distortion on law but from real difficulties in a formal conception of law. Expressive of the familiar tensions between the requirements of generality and particularity, uniformity and contextual responsiveness, legal certainty and justice, it cannot be simply done away with. In regard to sources doctrine, it is also expressed by reference to the difficulties inherent in the idea, or the concept of 'binding force'. For many a realist thea!)', 'binding force' is but a metaphysical fiction, or an ideology,80 at best expressive of a psychological state related to complying behaviour ('feeling of being bound'). 81 For other (naturalist) theories, 'binding force' relates to the moral value of (formally valid) law so that a standard which otherwise is formally valid might still not have binding force if it violates some imperative notion of justice. From a formalist perspective, a law either is law or it is not. Binding force is an on/off affair that is simply tautologous with the concept of 'law' ('law' being by definition a 'binding standard') or, perhaps, 'valid law' .82 For a long time this conception has been under critique. It has been held that binding force is not such an on/off affair but that there are many types of standards that may have more or less binding force. This has been expressed in several ways. A first way is to argue this by making the point that legal norms exist at hierarchically higher or lower levels and that normative conflicts should be resolved by overruling the inferior norm by the superior one. 13 It may then be said that that superior norm is 'more binding' than the inferior one. Latin code words such as jus cogens, or obligations erga omnes, as well as the singling out of a specific category of delicts as 'international crimes' imply a distinction between norms that have a higher level quality and other ('ordinary') norms and resonate with the sense that at issue here is a novel (although mostly veiled) naturalism. 84 A second way to make the same point is to argue that there are some standards that perhaps do not quite meet the formal criteria that orthodox sources doctrine set to 'law' but which are

Sources of International Law


still important to take into account in legal practice. Such 'soft law' may include decisions of international bodies as well as informal declarations, programmes, communiques and statements by States and perhaps also by other international actors, as well as open-ended or 'political' provisions in formal treaties. It may be assumed that while such materials do not really amount to 'law' they still possess a relatively 'binding force' at least inasmuch as they provide persuasive arguments that lawyers should not, and in fact do not, in practice ignore. 81 A third way to distinguish between more and less binding standards comes from the distinction between hard rules and soft legal principles. It is often argued that legal rules have an on/off character; if they apply to a case, then they dictate a solution while principles do not have such an absolute character. They apply 'only' more or less, providing more or less persuasive arguments for deciding the case one way or another. 86 All of these ways to differentiate between more and less binding norms are, of course, disputed, sometimes vehemently. The essay by Prosper Wei! (Chapter 5) 'Towards Relative Normativity in International Law?' ,87 argues that hierarchization- 'relative normativity'- makes the binding force of ordinary norms more doubtful, that a questionable technique is thereby introduced for not applying a standard when in fact it should be applied. Also there is no agreement on the relationship between these graduations: a principle may, presumably, be jus cogens and still applicable only 'more or less', in the flexible (and not on/off) way in which the binding force of legal principles has been characterized. Deformalization achieves justice at the price of legal certainty. To counter this scepticism, Ulrich Fastenrath in the essay 'Relative Normativity in International Law' (Chapter 6), 88 retorts that it is pointless to insist on clear boundaries. All law involves interpretation and evaluative assessment. To deny that law's binding force is always necessarily 'relative' to such considerations is to close one's eyes to practical reality. For Fastenrath, relative normativity is a useful expression for the interpretive leeway that formal law always leaves to its applier. He also makes the eclectic argument that international law is a function of differing theories about it, each of which illuminates only some of its aspect(s). Relativity arises from relativism and makes the law responsive to social context in a way that formal law never can do. In his essay on 'The Redundancy of Soft Law' (Chapter 7), 89 Jan Klabbers retorts by disputing the need for a special category of 'soft law' to introduce interpretive subtlety into the law. True enough, formal law always leaves room for interpretation but it is perfectly able to cope with this by recourse to judicial discretion in which, however, the binary code of legaVillegal is always being reproduced. Finally, John Tasioulas in his essay 'In Defence of Relative Normativity' (Chapter 8), 90 argues in favour of a relativization of normativity from an expressly communitarian-naturalist viewpoint. Such attacks and counter-attacks focus on the fact that when a standard's value (normativity, applicability, 'binding force', and so on) is made dependent on material considerations beyond the formal validity of the standard itself, this shall automatically infect the (formally valid) rule with all the uncertainties and political disagreements that relate to those material considerations. Looking beyond formal validity- 'going down the anti-formalist road'- there may be no place to stop, as Stanley Fish has argued. 91 Reaching directly towards social functions, values or legislative purposes- in other words, the point of law- may erode whatever protective shield ordinary ('valid') law may have (which is not, of course, to say that it necessarily possesses any). There may be no solution to this dilemma. The way back to formalism in legal theory is


Sources of International Law

clearly no longer open. It is impossible to pretend that the realist critiques concerning the indetenninacy of treaty interpretation, or the circularity and fluidity of custom and general principles would not have devastated formalism's credibility as a theoretical articulation of the business of law-application. This is not the end of the matter, however. Practicing jurists continue to draw conclusions from the 'normal meaning' of treaty expressions, and argue more or less plausibly about the degree of generality of a practice when defending or attacking candidates for customary law. Clearly, in that professional context, only some arguments - and some conclusions - are plausible, others are not. A clause in a formally valid treaty is an extremely powerful practical legal argument however problematic in theory the concepts of 'treaty' or 'formal validity' might be and however much opposing lawyers are able to draw differing conclusions from the words of that clause. Reference to 'professional competence' as an explanation of the continuous hold by fonnalism on practicing lawyers may be altogether circular and theoretically insufficient as an explanation of that fact - but then again, given the radical separability of theory and practice, that should not be a cause for concern. For most (practicing) lawyers, 'professional competence' is about the most intuitively plausible explanation of the way in which some arguments count and others do not and, as a practical matter, that is what is also expressed in the juristic debate about the sources of international law.

Notes According to Article 38: (I) 'The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to 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. (2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.' 2 Robert Jennings (1981), 'What is International Law and How Do We Tell It When We See It?' 37, Schweitzerisches Jahrbuch for lnternationales Recht, at p. 60. A present judge in the same court, opines that the continuing 'jurisprudential debate' about the sources of international law is 'a damaging acknowledgment of inadequacies in a legal system', Rosalyn Higgins (1994), International Law and How We Use It, at p. 17. 3 This is clearly implied in the decision by the ICJ to hold the agreed minutes between Bahrain and Qatar (the Doha Minutes of 1990) as consituting a binding agreement, despite the informality of those minutes: Qatar-Bahrain Maritime Delimitation case, ICJ Reports 1994 pp. 121-22 (paras 2630) and comments in Jan Klabbers (1995), 'Qatar v. Bahrain: The Concept of "Treaty" in International Law', 33, Archiv des Volkerrechts, pp. 361-75 and Christine Chinkin (1997), 'A Mirage in the Sand? Distinguishing Binding and Non-Binding Relations between States', 10, Leiden Journal of International Law, pp. 223-47. A parallel view concerning the informal manner in which international custom may arise as a formless, even anarchic 'consensus', is taken in the famous articles by Roberto Ago (1957), 'Positive Law and International Law', 51, AJIL, pp. 691-753 and Bin Cheng (1965), 'United Nations' Resolutions on Outer Space: "Instant" International Customa.ry Law?', 5, Indian Journal of International Law, pp. 23-48 and Rene-Jean Dupuy ( 1974), 'Coutume sage et coutume sauvage', in: La communaute intemationale. Melanges offerts a Charles Rousseau, pp. 75-87.

Sources of International Law

4 5 6 7

8 9 10 11




15 16 17 18 19 20 21 22


See G. van Hoof (1983), Rethinking the Sources of International Law, pp. 76-82 passim. Gerald Fitzmaurice ( 1958), 'Some Problems Regarding the Formal Sources of International Law', Symbolae Verzijl. My intention in this Introduction is to reverse that relationship. See Thomas Franck (1990), The Power of Legitimacy among Nations, pp. 27-49 passim. For a standard realist argument stressing the enforcement of standards as the criterion of their 'reality' see J .S. Watson ( 1980), 'A Realistic Jurisprudence of International Law', 30, Year Book of World Affairs, pp. 265-85, reproduced in Martti Koskenniemi (ed.) (1991), International Law (The International Library of Essays in Law and Legal Theory), pp. 3-23. See James Brierly (1963), The Law of Nations (6th edn), pp. 49-51 and Alfred Verdross (1973), Die Que/len des universellen Volkerrechts. Eine Einfiihrung. Oscar Schachter (1971), 'Towards a Theory of International Obligation', in: Stephen Schwebel (ed.) The Effectiveness of International Decisions. On normative problems and their centrality to any theory of law see Martti Koskenniemi (1989), From Apology to Utopia, the Structure of International Legal Argument, pp. 9-12. Hence the official view of legal doctrine as simply a 'subsidiary' source of international law. Interestingly, however, H.S. Maine (1888), in his International Law, still regarded treatise-writers as the main source of international law, and their task as eminently creative. Indeed, Maine held international law as 'their system' (pp. 13-25). This seems acceptable inasmuch as doctrine's 'creative' task is still understood in terms of scientific objectivity- in which case the apparently all-important distinction between declaring and creating the law tends to vanish. For a useful discussion of doctrine's place as a 'subsidiary source' see also Clive Parry ( 1965), The Sources and Evidences of International Law, pp. 103-8. Basic works of doctrine locate- in a slightly embarrassed tone- the 'source of sources', that is, the rule that enumerates what the sources are, beyond law, into the realms of morality, philosophy or the conditions of a (changing) international community, for example, James Brierly (1977), The Basis of Obligation in International Law and Other Essays, pp. 64-7; Hugh Thirlway ( 1972), International Customary Law and Codification, pp. 36-45. In other words, the significance of sources doctrine might lie in its power to explain and systemize the common distinctions between law/morality, settled/unsettled law, and so on. Less a cause for such distinctions than a heuristic device for understanding them and participating in the intellectual practices we call 'law', its usefulness might lie in our inability to make sense of much juristic practice without something like a a sources doctrine. See Joseph Raz ( 1979), The Authority of Law, pp. 48-52. For example Robert Jennings and Arthur Watts ( 1992), Oppenheim s International Law (Vol. I, 9th edn), p. 23; Peter Malanczuk (1997), Akehursts Modem Introduction to International Law (7th edn), p. 35; Quoc Dinh, Daillier and Pellet ( 1994), Droit international public (5th edn), pp. 111-12. See also Gerald Fitzmaurice (1958), 'Some Problems Regarding the Formal Sources of International Law', Symbolae Verzijl. Such as, for instance, Oppenheim's 'common consent of nations', ibid., pp. 14--16,24. See Territorial Dispute (Chad- Libya), ICJ Reports 1994, p. 23 (para. 45 et seq.) and Clive Parry ( 1965), The Sources and Evidences of International Law, p. 55: the significance of treaties arising ' ... simply from their being one, but only one, of the means of expression of the view of States'. Nonh Sea Continental Shelf cases, ICJ Reports 1969, p. 44 (para. 77). 'For a rule of customary international law to emerge no particular form is required ... All that matters is that the generality of subjects of international Jaw accept the rule as law': Georg Schwarzenberger ( 1976), The Dynamics of International Law, p. 6. See Koskenniemi, op. cit. note 10, pp. 277-8, 381. For 'normal meaning', see Territorial Dispute (Chad- Libya), ICJ Reports 1994, p. 22 (para. 43). See Elisabeth Zoller ( 1977), La bonne foi en droit international public, pp. 78-95 and Nuclear Tests case, ICJ Reports 1974, pp. 267 and 268 (paras 43 and 46). See Koskenniemi, op. cit. note 10, pp. 291-302 and David Kennedy, 'The Sources of International Law', 2, Am.U.J.Int'l L & Pol'y, pp. 45-57, also published in Martti Koskenniemi (ed.) (1991), International Law, (The International Library of Essays in Law and Legal Theory), Aldershot: Dartmouth, p. 293.


23 24 25

26 27

28 29 30 31 32 33

34 35 36 37 38 39 40 41 42 43 44 45

Sources of International Law

David Kennedy (1980), 'Theses about International Law Discourse', German Yearbook of International Law, 23, pp. 353-91. Martti Koskenniemi (1997), 'Faith, Identity and the Killing of the Innocent: International Lawyers and Nuclear Weapons', 10, Leiden Journal of International Law, especially pp. 153-8. Thus Brierly, op. cit. note 12, states (at p. 67): ' ... I confess that I can see no general principle of solution. Ultimately, I suppose, we must fall back on metaphysics, and to say that we believe duty to be duty because we believe the world to be a kosmos, an ordered whole. Inevitably we shall never all see the details of the patterns alike, and when we differ we must resolve the difference ambulando as well as we can.' See generally Parry, op. cit. note 11. What 'constrains' the interpretation of formal rules cannot, then, be the substantive point to which the rule is supposed to refer: that is the end-point of interpretation, not its means. From this it follows that interpretive constraint can be neither textual (the ambiguity of the text was the starting-point of the effort) nor substantive (this is what interpretation aims at). But this does not mean that anything goes. There is no 'anarchy'. To quote Stanley Fish: 'Interpreters are constrained by their tacit awareness of what is possible and not possible to do, what is and what is not a reasonable thing to say, what will and will not be heard as evidence, in a given enterprise', Stanley Fish (1987), Doing Things Naturally. Change, Rhetoric and the Practice of Theory in Literary and Legal Studies, p. 98. At least three types of legal sources are commonly distinguished: those that must be taken into account, those that should normally be heeded, and those that may be considered. See Alexander Peczenik (1980), Juridikens metodliira (2nd edn), pp. 48-53. See Jennings and Higgins, op. cit. note 2. See Georges Abi-Saab (1987), Cours general de droit international public, 201, RCAD/, pp. 154-73. See the 'Preliminary Conclusions of International Law Commission on Reservations to Normative Multilateral Treaties including Human Rights Treaties', ILC Reports 1997, A/CN4/L.544/Add.2. My argument about the underivability of practice from theory and about the constructive role of the (legal) profession follows points made much more elaborately in Fish, op. cit. note 27 at pp. 215-46 and 378-98. On gaps in international law, see Hersch Lauterpacht ( 1933 ), The Function ofLaw in the International Community; Lucien Siorat (1959), Le Probleme des Lacunes en Droit International; Ulrich Fastenrath (1991 ), LUcken im VOlkerrecht. Zu Rechtscharakter, Quellen, Systemzusammenhang, Methodenlehre und Funktionen des Volkerrechts. Gerald Fitzmaurice (1974), 'The Problem of Non-Liquet: Prolegomena to a Restatement', Melanges offens a Charles Rousseau, p. 89 et seq. Hans Kelsen ( 1966), The Principles of International Law (Edited and revised by R. Tucker) pp. 438-9. Lotus case, PCIJ Ser. A.10, pp. 18-19. For a critique of the Lotus principle, see Gerald Fitzmaurice (1953), 'The Law and Procedure of the International Court of Justice 1951-1954: General Principles and Sources of Law', 30, BYIL. pp. 7-17. Hersch Lauterpacht (1958), 'Some Observations on the Prohibition of "Non Liquet" and the Completeness of the Law', Symbolae Verzijl, pp. 196-221. See also Hersch Lauterpacht (1958), The Development of International Law by the International Court (2nd edn). Anglo-Norwegian,ICJ Reports 1951 p. 132. The same can be said of the Court's argument in the Nonh Sea Continental Shelf cases, ICJ Reports 1969 p. 46 (para. 83). See also comments and discussion in Hugh Thirlway (1989), 'The Law and Procedure of the International Court of Justice 1960-1989', 66, BYIL, pp. 77-92. Nonh Sea Continental Shelf cases, ICJ Reports 1969 p. 50 (para. 93). Julius Stone (1959), 'Non Liquet and the Function of Law in the International Community', 35, BYIL, pp. 124-61. Michael Reisman (1981), 'International Lawmaking: A Process of Communication: The Harold D. Lasswell Memorial Lecture', ASIL Proceedings. pp. 101-20. Gerry Simpson (1994), 'Imagined Consent: Democratic Liberalism in International Legal Theory', 15, Australian Year Book of International Law, pp. 103-28. This is a simplification. The absoluteness of the adage lex injusta non est lex is constantly tempered by intermediate solutions that justified the (temporary) validity of positive Jaw even though there

Sources of International Law

46 47 48 49 50 51 52 53 54 55 56 57 58


60 61





might have been doubts about its moral character. An unjust law, notes John Finnis, fails to be law only in the focal sense of a rationally defensible standard: J. Finnis ( 1980), Natural Law and Natural Rights, pp. 363-Q. W.E. Hall (1875), A Treatise on International Law (4th edn), p. 5. See also, for example, Carl Bergbohm (1877), Staatsvertriige und Gesetze als Quellen des VOlkerrrechts, pp. 3-8. Hugo Grotius (1625/1925), •De jure belli ac pacis,libri tres', in Carnegie Endowment oflnternational Peace (ed.) The Classics of International Law, Bk III, Ch. IV (p. 641 et seq.). See also Schachter, op. cit. note 9, pp. 36-7. See Michael Waltzer (1992), Just and Unjust Wars (2nd edn), pp. 58->


Sources of International Law



Certainly judicial decisions must become even more important in direct ratio with the quantity and contradictory nature of modern material evidences of law. The difficulty of deciding what the customary law is, can only add authority to a judicial decision resulting from the careful consideration and weighing of such materials. It is interesting that this is precisely how judicial decision and precedent came to be so important in the conunon law. As Sir William Blackstone put it in his famous and inftucncial Commentaries (introduction, para. 3): «these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the conunon law.» Blackstone's conunent on the laws of England can be applied without change to international law today. Perhaps we ought, therefore, to give rather more thought to the ways in which we employ cases in argument. And for this it would seem reasonable to look at the experience of the conunon law, which is firstand-foremost a case law. One of the first things the conunon lawyer learns is the discipline of extracting from the Report of a Judgment, the ratio decidendi, and discarding the obiter dicta which, however interesting, were not essential to the decision on the facts before the Court and accordingly no part of the binding precedent. Certainly, there can be no binding precedent in international law, if only because there is no hierarchy of courts without which the notion of a binding precedent is impossible. Nevertheless, there is room for more discipline in the extraction of principle from decided cases, not least because they have become so important. Far too often the method found in writers on international law is to regard a Judgment as if it were a sort of holy writ, from which gobbets may be quoted often without relating these to their context in the Judgment as a whole, their relation to the decision, or the particular facts and issues in the case. The Court in the Anglo-French Arbitration Award of 1977 pointed the way when, considering some of the pronouncements of the ICJ in the North Sea cases concerning the customary rules governing the delimitation of the continental shelf, it said:« ... and in appreciating the implications of some of these pronouncements it may be necessary to bear in mind that they may here have in mind the particular context of the concave geographical configuration in that case involving the coasts of three adjoining States» (para. 76). There is another aspect of case law that merits consideration. In the conunon law at least, the reasoning of the Court will usually bear a 74


Sources of International Law WHAT IS INTERNATIONAL LAW?

close relationship to the arguments put before it by the parties. So much so, that it is not uncommon to «distinguish» precedents on the ground that a certain argument, thought in retrospect to be cogent or even decisive, was not put to the Court by either party. Thus it can be said that it is not a persuasive precedent; though there is still no doubt, of course, that it was res judicata. International tribunals have not felt the need to exercise any such restraint upon the scope of the reasons relied upon in the decision of award. The Nottebohm case, before the ICJ, was a notorious example of the Court finding for itself a somewhat novel principle of decision that had not been argued by either party. Another instance, less extreme than Nottebohm, but which has, nevertheless, attracted some criticism, was the principle of decision of the Court in the English Channel case, in regard to the western approaches. The French and the British arguments had both treated this as an opposite coast situation. The Court treated it with some cogency as having some of the qualities of adjacent coasts. But this had not been argued before the Court. Should the Parties not have been asked by the Court to comment on this possibility? This is something the common lawyer finds strange; in a common law Court it is exceedingly unlikely that anything that occurs to the mind of the Court will remain unargued, for the Court, if it has in mind a point that has not been argued, will ask the parties for their views on it. This degree of flexibility is not so easy in an international tribunal where counsel representing a sovereign State is usually on a tight rein and must always seek instructions to depart from his brief, and would certainly be in no position to give answers or reasons off the cuff. International tribunals are certainly asking more questions than they used to; and this is a tendency to be encouraged, even if it usually means that the answers must be submitted in writing, thus avoiding the true confrontation of arguments. I am not, of course, suggesting that it is in any way wrong for a Court to make an innovatory decision which reshapes the law. On the contrary, most of the great Judgments, whether of international law or domestic law, do precisely that; not exactly making new law, but perceiving that familiar, existing materials form a pattern, when looked at in a right or just novel, perspective, which has not hitherto been fully appreciated. The question I am asking, is whether it is right for a Court to surprise the parties with such a decision. Should not the point be first put to



Sources of International Law ROllERT Y. JENN£1\'GS

them for argument? Should they not first be given a chance to comment upon the law seen from a different perspective? To ensure this needs no more than an extension of the purpose of questions from the Court. Admittedly there arc difficulties in practice. Nevertheless, there is a point of principle. For what is the use of such lengthy written pleadings and oral argument- commonly four, and not infrequently five, stages of argument-if the Court is then to have a sort of 'clean slate' rule in respect of its actual decision? There is another aspect of, not so much the content of arguments, as of the form of pleadings, that calls for comment. Some domestic systems, like the English, make written pleadings short and formal, a mere preparation for the «day in court», which in a big case may be many days of oral argument. Others, like the American, though also common law, put everything into the written briefs, and the oral argument, including questions from the Court, even in a big case in the Supreme Court, may be measured in minutes. International tribunals mostly make the most of both written and oral proceedings: Memorials, usually volumes, then Counter Memorials, often a Reply, then two rounds of oral argument. Yet in the usual case of a special agreement or compromis, when written pleadings are exchanged simultaneously, the oral proceedings provide the first occasion on which there is a true confrontation of arguments. Each Counter Memorial, for instance, will be dealing with the arguments in the other side's Memorial of perhaps 6 months or more ago, which arguments may in their Counter-Memorial have been diminished or even abandoned, or replaced by new arguments. This is not always an efficient way of conducting an argument; and there is a question whether this usual procedure is a good way of getting the real issues known to the Court; or indeed to the Parties. It must be very frustrating to a Court to receive formally, and ceremoniously, on the same day, Memorials in many volumes from each side, and find that they seem almost to be addressed to different cases and meet at very few points. Yet, it is difficult to think of any solution for this problem, as long as governments are shy of being in the position of defendant. The International Law Reports comprise not only decisions of international courts and tribunals but also of many municipal-or domestic-



Sources of International Law WHAT IS INTERNATIONAL LAW?

courts. These are of great and probably increasing value, because more and more international law needs by its very nature to be mediated through domestic law, and it is there that the problems arise. Who, for example, could begin to understand the inner complexities and distinctions of the very old rule of international law about State immunity from jurisdiction, without recourse to domestic cases? And think how much poorer our law of international rivers would be, without the jurisprudence of the United States appellate courts on that subject. It is interesting to note that, in English Courts at least, it is now commonplace to cite foreign domestic cases, citing for that purpose the International Law Reports: this is not done, it is perhaps hardly necessary to add, in order to discover general principles of law, but rather to consult other experience regarding points of detail and applications of the law, exactly as with a Judgment of the ICJ. It may cause surprise that I have spent so long on merely one of the sources which is described in Article 38 as a «subsidiary means for the ascertainment of the law». This is because it is precisely here-the analysis, refinement, clarification, and systematising of a mass of existing law, or near-law, that our contemporary problem resides. Paradqxically, the subsidiary means are now, at least for a season, of the first importance. Let us, therefore, turn also to what the Statute quaintly calls :-«The teachings of the most highly qualified publicists».

The teachings of the most highly qualified publicists Text-writers have indeed been fortunate in the descriptions of their work, both in the Statute itself, and in Mr. JusTICE GRAY's Supreme Court Judgment: « ... jurists and commentators who by years of labour, research, and experience have made themselves peculiarly well acquainted with the subjects of which they t rca t.)}

Though it immediately adds a word of caution: «Such works arc resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.»



Sources of International Law HOUERT Y. JE(>;l\'INGS

The citation is automatically dated by the assumption that such a distinction may readily be made.

It is in a way natural that the place of text writers should decline as the importance of case law increases. Even a decade ago one might have subscribed to that view. Good writings were, of course, a help in understanding legal problems. But one did not go so much to writers to find out what the law is. One need only flick through the Judgments and Opinions in the ICJ to know that the function of text writers that Mr. Justice Gray had in mind is now at least secondary. There are other sources and evidences and the problem is not their sparseness so much as their richness. But I want to suggest that text writers have today a particular task to perform, which they alone can properly fulfil, and on which the future health of international law depends in no small measure. A principal burden of these lectures has been the difficulty of using the materials now available in such vast supply-digests, reports, State practice, papers, resolutions, recommendations, &c. &c.-and distilling from them what the law is. It may seem odd to suggest any addition to the already unmanageable mass of comment and material. But it is precisely in this situation that writers should come into their own again. Taking particular aspects or problems of the law, the writers can analyse, distil, explain, clarify, and describe the law, in a way that is not open to ?. Court which has to focus on the disposal of a particular problem. For there is this paradox: that at a time when there is a plethora of materials and practice, great areas of the accepted statements of the law are still in need of analysis and elaboration. Think, for example, of the leap forward that was taken at the UN Conference on the Law of the Sea when we stopped talking about 'innocent passage' tout court, and identified (now in Article 19 of the Draft Treaty) 12 kinds of noninnocent passage. Or think of the revolution of legal thinking when the late Sir Hersch Lauterpacht in his book, 'A Bill of Human Rights', moved on from general statements about 'fundamental' rights, or minimum international standards, to separate, defined rights in the Articles of a draft Statute. So the main burden of this part of my discourse has been, that the 'subsidiary means for the ascertainment of the law'- judicial decisions and commentators-are today probably of greater importance than



Sources of International Law WHAT IS INTERNATIONAL LAW?

ever before; and that it is these two sow·ces which are most likely to bring certainty and clarity in the places where the mass of material evide-nces is so large and confused, as to obscure the basic distinction between law and proposal.

New departures in the Third United Nations Conference on the Law of the Sea We began these lectures by remarking that, m international law, there tends to be a confusion of the ways of identifying what is law and what is not law, and the ways of making and changing law. It is no surprise, therefore, that the experience in that important governmental exercise, the Third United Nations Conference on the Law of the Sea, which has in its remit both the codifying of existing law and the making of new law, should be an indispensiable subject of study for any inquirer into the nature and sources of international law today. And, indeed, significant changes have come about at the Third United Nations Conference on the Law of the Sea (UNCLOS III). That conference, in spite of some disappointments, could still prove to be the most important thing that has happened in international law since the foundation of the United Nations itself. As an experiment in law-making, it has been innovatory to a degree. There has never been any diplomatic conference remotely like it. Whereas the 1958 Geneva law of the sea conference was in a world of some 80 States, this one has to comprehend getting on for twice that number, many of the newer ones with no previous experience of a diplomatic conference, and many delegations beginning with little or no understanding of the nature and fabric of international law itself.

Yet this is the conference which, in a decision that was bold to the point of seeming reckless, was given the task of welding into one single treaty of now 320 draft Articles, leaving aside Annexes, virtually the entirety of the existing law of the seas as well as inventing a brand-new regime for deep-sea mining in the areas beyond national jurisdiction. This involved wrestling with new problems such as pollution, conservation, and scientific research in sea areas. Nor could it simplify its task by the distinguishing between established law and new law, or between codification and progressive development; for the whole was to be what



48 Sources of International Law ~------------------------~ROllERT Y. JENNINGS

the modern jargon calls a «package deal»; that is, it was recognized at the outset that concessions in one part of the law might be made in return for complementary concessions in a different part of the law: trading, for example, transit through straits, for perhaps some question concerning the authority of the International Sea Agency in respect of deep-sea mining. So at a stroke the authority even of any codification clement was inescapably jeopardized; and because there was to be a large clement of political decision, the great experience and authority of the International Law Commission was excluded. Yet, it was to aim at «an international treaty of a universal character, generally agreed upon»-a formula which itself gives food for thought. Because the Group of 77 (actually more than 100) developing States had a working majority, and also, as they have demonstrated, remarkable solidity, yet accepting that the cooperation and agreement of some other, major States, especially maritime powers and industrial powers, would be essential, voting was eschewed and a concept of consensus employed to secure emergence of decisions. Consensus is much more flexible than an abstention mechanism; for it means that things get through when minorities do not feel minded actively and vigorously to oppose. And their torpor may be induced by more than sentiment. It may be a package deal, for instance. It may be all kinds of things. But that it has worked surprisingly effectively, nobody can deny. All in all, UNCLOS III suggests that there may be emerging an international machinery for decision-making, which is in one way remarkably novel, but in other ways firmly a part and extension of the traditional method of international diplomacy (in fact arguably more so than a procedure of adopting a text by two-thirds majority voting). Without doubt the most remarkable of the conference's innovatory mechanisms, and closely related to 'consensus', has been the succession of so-called negotiating texts, thus far in 6 versions: first the Informal Single Negotiating Text; then the Revised Single Negotiating Text; then the Informal Composite Negotiating Text (ICNT) Revs. I & 2, and now the Draft Treaty of 1980 . If the Conference were to cease to function at its next session, the draft treaty would still be not only an important source of law, but probably the most important source of principles and rules on this very large part of international law. The origin of these negotiating texts was the necessity for a conference of 5000 delegates to have a single text on which discussion can focus. 80


Sources of International Law WHAT IS INTERNATIONAL LAW?

The conference, doing without the preparatory work of the ILC, did not have one. So a negotiating text had to be produced; and these texts were produced, each part under the authority of the several chairmen of committees but ultimately of the President of the Conference himself. The texts can have no authority as such, for their function is to serve as a point of departure for discussion and negotiation, and this is insisted upon in the introductions. Nevertheless, the idea was a brilliant invention and a new contribution to the resources of international diplomacy; and the Draft Treaty, despite its curious parentage, is possibly the most important single document of all time in the field of substantive international law. Apart from that observation, it is not possible to generalize about the Draft Treaty; for its content ranges from codification, through every possible mixture of consolidation and development, to the very new principles of Part Xl-- Traaionjudgment, however, the Court pointed out that "the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality." Id. at 47. This passage is not euy to reconcile with the earlier one. 77 (1976]1 Y.B. INT'L L. CoMM"N 71. 74



Sources of International Law




declaratory judgmt"nt, an individual constituent of the omnes could claim. Is punishment envisaged? In the absence of any judicial channels organized to that end, that would mean that any state, in the name of higher values as determined by itself, could appoint itself the avenger of the international community. Thus, under the banner of law, chaos and violence would come to reign among states, and international law would turn on and rend itself with the loftiest of intentions.

Obligations Omnium 27. Where those owing international obligations are concerned, we find that the normativity drift, though less blatant than in the case of obligations erga omnes, is fraught with even heavier consequences. According to the familiar classic doctrine expressed in the Lotus judgment, the source and test of a rule's opposability to a given state lie in that state's intention, as "expressed in conventions or by usages generally accepted as expressing principles of Iaw.'' 78 Where conventional rules are concerned, the formality that presides over the conclusion of treaties and the principle of relative effect have enabled consensualism to be established without ambiguity or restriction: whether a state is committed by a treaty, and as from when, can be precisely ascertained. Matters have never been so clear as regards customary rules: it has always been difficult to determine whether a given state is bound by a rule of that kind and, if so, as from what moment. Nevertheless, thanks to a subtle interplay of tacit intention and nonopposability, acceptance never ceased to be a linchpin of the classic theory of custom. Hence it remained possible for any state unwilling to be bound by a norm, whether of customary or conventional origin, not to be bound by it, and for the states owing this or that international obligation to be as easily identifiable as, conversely, those possessing this or that right. This situation is changing before our very eyes. Customary rules are now being described as general rules, and general rules are being analyzed as universal rules that are binding on all states without distinction, regardless of individual consent. As for that bastion of voluntarism, the conventional rules, a process is at work of absorbing them into the body of customary rules so as to subject them also to dilution. The Evolution of the Customary Rule. 28. It was the customary rule, the Achilles' heel of the consensualist outlook, that was most readily to lend itself to the indeterminancy of the subj~cts of international obligations. The classic theory of custom depends on a delicate, indeed precarious, equilibrium between two opposite concerns: on the one hand, to permit customary rules to emerge without demanding the individual consent of every state; on the other hand, to permit individual states to escape being bound by any rule they do not recognize as such. To meet the first of these concerns, the classic theory narrows down the individual participation of each state to each of the two factors it regards as " 1927 PCIJ, ser. A, No. I 0, at 18.

Sources of International Law




[Vol. 77

indispensable to the formation of a customary rule. The practice that constitutes the corpus of the customary rule is defined as "general," "consistent," "settled," "constant and uniform," "both extensive and virtually uniform"but never as "unanimous" or "universal." As far back as 1925, Charles De Visscher pointed out that "to rely on a customary rule against a state, it is not always necessary to be able to prove that that state, by its personal actions, contributed to the establishment of the international practice from which the rule derived," and he referred in illustration to customary rules that had come into being on the basis of practices accepted by maritime nations but in whose elaboration the landlocked states had taken no part. 79 Similarly, it is not required that each state, individually and personally, should have had the feeling of "conforming to what amounts to a legal obligation,'' 80 which constitutes opinio juris, the second traditi1:1nal condition for the existence of custom. But while it is possible for a customary rule to coalesce without the consensus omnium, the classic theory nevertheles.~ permits a state to escape its application by making known its refusal of it in time: the Asylum and Fi.shnies Judgments make this point in categoric terms. 81 It is this opportunity for each individual state to opt out of a customary rule that constitutes the acid test of custom's voluntarist nature. 82 To put the matter another way: while a customary rule may indeed be formed on the basis of consent that, though general, does not have to be universal, the scope of the normativity attributable to it once formed will likewise be, though general, not necessarily universal. This both facilitates the formation of customary rules and avoids the domination of the minority by the majority. It is this equilibrium that is threatened today. For the past several years, the degree of generality required of a practice, to enable it to serve as the basis of a customary rule, has been steadily diminished, while, on the contrary, the binding character of such a rule once formed is being conceived of as increasingly general in scope. The result is a danger of imposing more and more customary rules on more and more states, even against their clearly expressed will. 29. The fact of ever-decreasing fastidiousness about the degree of generality demanded of practice is evident from the novel and, in some regards, rather obscure theory of "quasi-univc:rsal treaties." It has never been denied that a provision in a convention, though binding as such only on states parties thereto, could play a role in the formation of a customary rule that would also be binding on third states (provided they had not manifested any objection to it). Even so, it would still be necessary for that provision to have been corroborated by state practice, whether before or after its enactment. In other words, while a provision of treaty law might 11 Ik Visscher, 1..4 C«Jijic41iqn du droit inttrnGtimual, 6 R£CUEIL DES CoURS !125, !161-62 (1925 1). 10 Nonh Sea Continental Shelf, 1969 ICJ REP. at 44. 11 Colombian-Peruvian asylum, 1950 ICJ REP. 266, 278 Uudgment of Nov. 20); Fisheries (UK v. Nor.), 1951 1CJ REP. 116, 1!11 Uudgment of Dec. 18). 11 CJ I C. RoUSSEAU, svtwa note 2, at 520; Akehurst, Cwloln tU a SI1Uru of lnttrnGtional LAw, 47 BRIT. Y.B. 1NT'L L. I, 24 (1974-75);jimcnez de Arechaga, svtwa note 64, at 30.

Sources of International Law





find a place in the formation of a customary rule, in which the essential element was the conduct of states, it could never, on its own, be any substitute for that conduct. Nowadays, there is a tendency to accept that a conventional provision can stand in for the "general" practice, provided the clause in question has been adopted by a sufficient number of states, and in particular by the states whose interests can be regarded as the most nearly affected. In that way a treaty clause can give birth to "instant custom" -or so says the theory of quasiuniversal treaties: instruments embodying rules that, simply because they have been accepted qua conventional by a large number of states, are supposed to be binding qua customary on the others. This is no mere acceleration of the custom-formation process, but a veritable revolution in the theory of custom. 30. To bolster this new view of things, reliance has been placed on that famous passage in the North Sea Continental ShelfJudgment where the Court, envisaging the transformation of a conventional rule into a rule of general international law, explains how "it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected. " 85 Since the Court indicates elsewhere in the same Judgment that "the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule," 84 nothing more was needed to prompt the conclusion that, in the eyes of the Court, a provision of treaty law adopted by enough sufficiently representative states could undergo instantaneous transmutation into a rule of customary international law. A few months later, in the Barcelona Traction case, the Court was explicitly to mention "international instruments of a universal or quasi-universal character. " 8 ~ 31. In truth, it is by no means sure that these dicta of the Court bear the construction thus placed upon them. 86 But however frail its jurisprudential underpinning, the theory of quasi-universal treaties has certainly gained ground. According to some, a customary rule prohibiting certain nuclear tests has emerged from the 1963 Moscow Treaty. At least in this case, as in that of the 1958 Continental Shelf Convention, the treaty involved is one already in force. But the apparently all-conquering elan of "instant custom" does not stop there: why, after all, should a treaty not yet in force not also give birth per se to new customary rules, thanks to the magic of "instant custom"? Thus, it has been asserted that the Additional Protocol to the Geneva Conventions of August 12, 1949 on the Protection of the Victims of International Armed Conflicts, adopted in 1977 by the Diplomatic Conference on Humanitarian 84 !d. at 43. " 1969 1Cj REP. at 42. n 1970 ICJ REP. at 32. •• When the passages quoted from the North St11 Continmtal Shtlf Judgment are reinserted in context, it will be seen that the Court by no means discounts the actual conduct of states, to which it in fact attaches, as it has always attached, decisive importance. Cf 1969 ICJ REP. at 41 and 43. As for that quoted from the &rultmtJ TrtJctitm Judgment, it rders to the possibility of claiming observance of a rule embodied in a quasi-universal treaty, and not to the possibility of creating, by such a treaty, obligations bind·ing on all states.

Sources of international Law




(Vol. 77

Law, has, even before entry into force, established rules which "reflect . . . the universal, or almost universal opinio juris on what should henceforth be considered as governing any international armed confiict." 87 Tomorrow we may encounter the application of the same reasoning to this or that provision of the new Convention on the l..:l.w of the Sea, even before its entry into force-and a fortiori after. But why stop there? Why should "instant customs" not spring from mere resolutions of international organizations, considering that they are acknowledged to possess a "certain legal value"? 32. There is scarcely any need to emphasize the ambiguities inherent in this theory of quasi-universal treaties. At what point can the participation in a convention be regarded as sufficiently "widespread and representative"? Are only states having ratified or acceded to the convention to be counted, or are all signatories to be included? Are the "states whose interests were specially affected" to be identified by geographic, economic, ideological tests? We have come a long way from the representativity of the maritime states that have created customary norms in the law of the sea, and from the representativity of the founding states of an international organization whose objective international personality, according to the ReparatWn.s Opinion, becomes opposable to all, thanks to the participation of states "representing the vast majority of the members of the international. community.'' 88 lJlJ. While, under the influence of this development, the generality of practice has been reduced to a minimal requirement, the generality of the normative effects of customary rules has been undergoing the reverse process of constant expansion. Central to this process is the concept "rule of general internationallaw,"&9 which is both the key to it and the instrument of its advance. This term was not much employed in classic international law, where it denoted a rule applicable except in the event of a particular derogation, more especially of a regional kind: for instance, general-also called universal-international law was contrasted with American internationallaw; 90 and reference was also made to particular historical situations embodying derogations from common or general internationallaw. 91 While continuing sometimes to be taken in that sense, 92 the expression "rule of general international law" is nowadays being increasingly used as a synonym of "customary rule.'' Thus, in the North Sea Continental Shelf Judgment the Court speaks indiscriminately of "customary 17 Nahlik, DroU dit "dt GmM" tl droil dit ".U LA HiJ]t": uniali ou dwslilt1, 1978 ANNUAIRE FRANCAIS DROIT INT'L 27. 18 1949 ICJ REP. at 185. "Manin, u jugt intmuJtitmtJ tlliJ riglt pnlriJit, 80 REV. GENERAL£ DROIT INT'L Puauc 7 (1976). 00 Cf. Judge Alvarez in Asylum, 1950 ICJ REP. at 293-94 (diss. op. Alvarez, J.). ' 1 Stt, t.g., Fisherie~ Judgment, 1951 ICJ REP. at 50. n In 1976 the International Law Commission was still in certain place~ contrUting "general" international law to the "panicular" international law concluded between two or more states, t.g., its 1976 Rcpon, sup4 note 53, at 92; elsewhere, however, it wed the tenn "general international law" to denote customary, as opposed to conventional, rules, t.g., id. at 80-81. Similarly, the expression "peremptory norm of general international law" in Anicle 55 of the: Vienna Convention on the Law ofT rea tie~ is mostly construed as referring to rulc:s of universal application, as opposed to rule~ ofregional or bilateral scope. Stt, t.g., Virally, sujn'IJ note 45, at 15.


Sources of International Law




international law," 9 ' "general international law," 94 "general or customary internationallaw," 95 or even (more rarely) "general rule of international law" or "general rule of law." 96 The idea behind this terminological permutation is clear: to establish a contrast between the conventional rule, which only binds states parties to a treaty, and the rule of customary international law, which is more "generally" binding on a less strictly delineated number of states. Above, we have pointed out that a customary rule used not to be opposable to any state that had personally objected to it in appropriate circumstances: generality suffered exceptions. But now the very generality of a rule of customary international law is held to make it binding on all states without distinction. Thus, what used to be mertly general tends nowadays to be viewed as impervious to individual derogations, as-in a word-universal. 34. This slithering from the customary rule to the general rule, then from the general rule to the universal rule, is strikingly illustrated by that very same Judgment in the NMlh Sea Continental Shelf cases, since in it the Court also considered the question whether the equidistance principle of the 1958 Convention, though "not in the nature of a merely conventional obligation" undertaken by the Federal Republic of Germany, might not be opposable to it as "a rule that is part of the corpus of general international law," which, "like other rules of general or customary international law, is binding on the Federal Republic automatically and independently of any specific assent, direct or indirect, given by the latter." 97 In fact, the Court gave a negative answer to that question; however, the implication was that the equidistance rule could otherwise have been imposed upon the Federal Republic even though it had expressly opposed that rule, and even though it was that very opposition which had lain behind its refusal to ratify the Convention. 35. The opposability of custom was admittedly, hitherto, a presumption, but one that could be overturned by a state in its own particular case. Henceforth, custom is opposable to all, with no possibility of escape. Explicit acceptance of a customary rule has never been required; from now on, even explicit rejection is ineffective. The transition has been made from presumptive acceptance to imposed acceptance. 98 A decreasingly generalized practice-re., 1969 ICJ REP. at 28, 3'/, 39, 40, 4I, 43, 45. 94 Jd. at 24, 28, 41. •• ld. at 28, 38. 06 Id. at 42. The decision of June SO, I 977 of the coun of arbitration in IHlimiuUion of tlu Continmtal Slulf{France/United Kingdom){CMND. 7438 {1978), reprinud in I8 lLM !197 (I979)) [hereinafter cited as I 977 Decision] also, though less frequently, uses the term "general internationallaw" to indicate customary law (e.g., in para. 62). 97 I 969 ICJ REP. at 28; cf. p. 41. Sometimes the same significance is read into the passage where the Coun refers to "general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international comm!lnity, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour." Jd. at !18-!19. It is clear, however, that this passage is solely aimed at precluding reservations to provisions that, though conventional as to form, are customary as to substance (cf. infra para. !19), and is therdore not concerned with the universally binding character of general rules as such. 91 CJ Marek, I.e Problmu des s:nerces du droil inumatiornll da'II.S l'arrit sur le plauau amtinmtal dt la IIIIT du Nord, 6 REV. BELGE DROIT INT'L 44, 54 (1970); Manin, supra note 89, at 44 tl uq.; Jimenez de Arechaga, supra note 64, at 28. Admittedly, in the Barcelona Traction Judgment, the Court, referring to the evolution of foreign investment protection law, was to oboerve: "Here as elsewhere, a body of rules could only have developed with the consent of those conc~ed" (1970


Sources of lnrernarional Law



(Vol. 77

ducible in some cases to a convention signed by the states "specially affected," or even to a resolution by an international organization-may give birth to a norm of customary law, which, under the pretense of its generality, will be universally imposed on all states, including its opponents. This quite upsets the delicate balance on which the classic theory of custom was based, since opinio juris is by the same token dissolved in an ill-defined majority consent and more or less reduced to a vague "consensus. " 99 Rarely can so immense an upheaval have taken place under the cloak of a mere terminological mutation. The Evolution of the Conventional Rule. 36. As one might well expect, the conventional norm has put up greater resistance to this process of increasing indeterminacy of the subjects of international obligations: treaty-conclusion procedures comprise too many tangible signs, and the principle of relative effect is too respectably entrenched, for the distinction between parties and third persons to be easily overcome. Hence, the conventional norm has not been frontally assaulted but cunningly outflanked. The principle remains that an international treaty binds only the states that have become parties to it, and cannot create obligations incumbent upon third states. Yet behind the mask of classicism thus retained there has been a change of substance: in reality, the conventional norm itself may now create obligations incumbent upon all states, including those not parties to the convention in question. 37. What was needed in order to reach this point was, in the first place, to erode the autonomy of the conventional rule vis-a-vis the customary rule. Admittedly, these two categories have never been divided by an insuperable barrier, and it has always been accepted that a treaty could codify or contribute to the formation of a customary norm. 100 But these once exceptional phenomena are now of such frequent occurrence and far-reaching scope as to have become intrinsically altered. Treaty clauses that are declaratory of preexistent customary norms, or crystallize customary norms in process of formation, or attract concordant practice "like iron filings to a magnet": 101 these three variant erasers of the frontier between conventional and customary norms have been too often discussed to require further comment here. The relationship between the conventional rule and the customary rule goes much farther, however, than the mere "interaction" or "interpenetration" described by writers. 102 The conventional norm-once regarded as the archetypal rule of international law because the p11rest expression of classic consensualism-is now considered to be a minor va.-iety unable to attain full ICJ RE.P. at 47): howevcr,Jimenez de Arechaga sees this, not as the reintroduction of some form of voluntarism into the theory of custom, but as merely a reference "to aggregate consent" (supra note 64, at 29). 911 Stem, LA Coulu1111 au cotUr du droil intnnalional: qiUlqiUs rijltxions, in MEuNGE.S REUTER, suprtJ note 14, at 479. Cf Jimenez de Arechaga, supra note 64, at 29. 100 As far back as the S.S. Wimbltdon case, J. Basdevant spoke of a rule posscssing "the dual quality of being both a conventional rule and a customary rule." 192S PCIJ, ser. C, No. 3-1, at 182. 101 Baxter, TroatUs tJnd Customs, 129 RE.CUEll. DE.S CouRS 25, 73 (1970 1). 101 Marek, supra note 98, at 72; Jimenez de Arechaga, supra note 64, at 23, 27.


Sources of International Law




stature until, ceasing to be "purely conventional or contractual," it has "passed into the general corpus of internationallaw." 105 The decision of the court of arbitration on the Delimitation of the Continental Shelf between France and the United Kingdom bears witness to this tendency towards outright identification of the conventional norm (in casu, Article 6 of the Geneva Convention on the Continental Shelf) with the general (understood: customary) norm, since the court regards the former as the "particular expression" of the latter. 10~ An even more striking illustration of the premium placed on rules of customary law, held to be of superior quality, was given by the International Court of Justice in the Case concerning United States Diplomatic and Consular Staff in Tehran, where it pointed out that the obligations violated by Iran "are not merely contractual obligations established by the Vienna Conventions of 1961 and 1963, but also obligations under general internationallaw." 103 Time was when no call would have been felt to stray outside the terra firma of the conventional norms that bound the parties; here, apparently, the Court did not regard it as sufficient to take that ground but felt it necessary, in order to underscore the normative character of the rules breached by Iran, to point out that those rules had passed into the general corpus of international law-or, in other words, that they were also rules of customary law. And so we find a veritable de-conventionalization of conventional rules taking place on every hand. 38. Once the conventional norm had been absorbed into the customary norm and deprived of its specificity, all that remained to be done, in the second place, was to submit it to that increasing indeterminacy of the subjects of international obligations which we have seen affecting the customary norm. Thus, through the relay of the customary norm-itself qualified as a general rule or rule of general international law-the conventional norm, too, comes to be imposed on all states, including those who never became parties to the convention in question or never even signed it. 39. From this turmoil the law of treaties is emerging profoundly altered. Once hallowed by the prestige of consensualism, now fallen victim to the fascination exerted by the general rule, the conventional norm is being not only devalued against the other sources of law but forced to abandon what hitherto have been the characteristic features of its legal regime. While it is true that the Vienna Convention has confirmed both the classic procedures for the conclusion of treaties and the principle of their relative effect, this confirmation is reduced to an empty shell if a formally conventional provision can be analyzed as being substantively customary, and thus be submitted to the vagaries of a customary rul.e that, in turn, has become a rule of general international law. In such a situation there is virtually no difference any longer between a state that is a party to the Convention and a state that is not: the norm in question will be applicable to both. Neither will there be any difference bo::tween a convention that has entered into force and a convention that has not: did not the International Court of Justice and arbitral tribunals apply 104 1977 Decision, supra note 96, para. 70. 1969 ICJ REP. at 41. 1980 ICJ REP. at 31 (emphasis added); cf. pp. 24 and 44; sualso 1979 ICJ REP. 7, 10, 20 (Order of Dec. 15). In its 1951 Advisory Opinion on IUUTINJtilms to 1M Gmocidt C~~t~wntima, the Court had already made a similar observation. 1951 ICJ REP. 15, 23 (Advisory Opinion of May 10 ' 10 '


Sources of International Law




[Vol. 77

provisions of the Vienna Convention on the Law of Treaties many a time before it came into force, and do so in regard to states that had not ratified it, or did not intend to ratify it in future? 106 Whether that Convention is in force or not vis-a-vis a given state is after all, it seems, not so important. Not only that: if it is now possible for a customary rule to spring not merely from an actually adopted convention but even from the "general assent" manifested at an international conference, there no longer remains much difference between "near-agreements" and agreements actually achieved. 107 Many other fundamental aspects of the law of treaties are also being eroded: it is surely out of the question to enter reservations to a treaty provision that has been construed to be a rule of general international law, or to denounce a treaty enshrining such provisions. Besides, what useful purpose would such a denunciation serve, considering that the provisions would continue to be binding on the denouncer as general rules of international law? In sum, the intention manifested by a state in regard to a given convention is henceforth of little account: whether it signs it or not, becomes party to it or not, enters reservations to such and such a clause or not, it will in any case be bound by any provisions of the convention that are recognized to possess the character of rules of customary or general international law. Thus, while nearly all the distinctions established by the classic law of treaties have finally been more or less blurred, it has at the same time become necessary to differentiate, within each conventional instrument, between those provisions which are subject to the diluted regime of the customary norm and those remaining subject to the strict traditional discipline of classic conventional norms. One shudders to think of the controversies that may lie in wait over the opposability, to states not parties, of certain provisions of the Convention on the Law of the Sea. IV. CONCLUSION

40. A system builder by vocation, the jurist cannot dispense with a minimum of conceptual scaffolding. It is impossible, therefore, for him not to feel disturbed by a development that-whatever its merits from other viewpoints-subjects normativity to gradations of strength while at the same time extending its scope ratione personae beyond all discernible bounds. Furthermore, the relationships between the various concepts involved raise problems whose solution is far from easy. Do obligations erga omnes and obligations omnium wholly, or at least partly, overlap, like "peremptory" and "essential" norms? Are the "high-grade" norms precisely those which are also valid erga omnes or binding on every state? To succumb to the heady enticements of oversubtlety and loose thinking is to risk launching the normative system of 100 Legal Coruequences for States of the Continued Presence of South Africa in Namibia, 1971 1CJ REP. 16, 47 (Advisory Opinion ofJune 21); Fuheriesjurisdiction (UK v.Iceland),Jurisdiction of the Court, 1973 ICJ REP. !, 14 (judgment of feb. 2); Aegean Sea Continental Shelf (Greece v. Turkey), 1978 ICJ REP. S, !9 (Judgment of Dec. 19); Interpretation of the Agreement of 25 March 1951 between the WHO and .Egypt, 1980 ICJ REP. at92, 95. Cf awards in Beagle Channel, 17 ILM 645 (1978), para. 7, and German Exu,mal Debts, 19 ILM 1!170 (1980), para. 16. 107 Cf. Fisheries Jurisdiction (UK v. Iceland), Merits, 1974 ICJ REP. !I, 23 (Judgment of July 25).


Sources of International Law




international law on an inexorable drift towards the relative and the random. It is one thing for the socioiogist to note down and allow for the infinite gradations of social phenomena. It is quite another thing for his example to be followed by the man of law, to whom a simplifying rigor is essential. 4 I. But even that is not the most serious aspect. What is yet more disquieting in this relativization of normativity is that it may eventually disable international law from fulfilling what have always been its proper functions. The rules of general international law tend no longer to be elaborated, at present, by the states ut singuli to which they are addressed, but by the international community of states as a whole. It is also this community which raises certain rules from the rank of "ordinary" to that of "peremptory" or "essential" rules, thus becoming the central agent of both the formation of the rules and their situation on the normativity scale. However, as the international community still remains an imprecise entity, the normative power nominally vested in it is in fact entrusted to a directorate of this community, a de facto oligarchy. There is a danger of the implantation in international society of a legislative power enabling certain states-the most powerful or numerous-to promulgate norms that will be imposed on the others. The fundamental distinction between lex lata and lex ferenda will be blurred, since the "law desired" by certain states will immediately become the "law established" for all, including the others. The consequences of such an upheaval are all too obvious. The sovereign equality of states is in danger of becoming an empty catch phrase: for now some states are more equal than others. Those privileged to partake of that legislative power are in a position to make sure that their own hierarchy of values prevails and to arrogate the right of requiring others to observe it. In this way the concepts of "legal conscience" and "international community" may become code words, lending themselves to all kinds of manipulation, under whose cloak certain states may strive to implant an ideological system of law that would be a negation of the inherent pluralism of international society. 42. The shifting of the axis of international law away from states towards the international community would undoubtedly represent a decisive step forward if it corresponded to any real transformation in international relations. If such were the case, there would surely be cause for rejoicing, both on account of the dream-come-true of the unification of the human race, and because of the no less yearned-for victory of the ethical values common to all mankind over the centrifugal forces that had kept nations apart. But, for the time being, it has to be acknowledged that the international community "is an order in posse in the minds of men; in the realities of the international scene it is still groping towards existence; it d~s not represent an actually established order." 108 Regret it as one may, the international scene today is still made up of the juxtaposition of equally sovereign states seeking, irrespective of their differences, to ensure their peaceful coexistence and cooperation. Undeniably, 108 C. D~ Vissch~r. supra not~ 32, at 8: "~stun ord~ ~n puissanc~ dans !'esprit des homm.,.; dans 1.,. realites d~ Ia vie intemationale ell~ ~n est ~ncore a ~ ch~rch~r. elle ne correspond pas a un ordre effectiv~ment ctabli." On th~ international community as a "historical" reality and as a "mythical valu~." ·~~ R.-J. DUPUY, LECON INAUCURALE (Paris: College d~ France, 1980).

Sources of International Law




(Vol. 77

the present trends must command assent insofar as they represent the expression of an aspiration towards some more clearly envisioned solidarity, some more assertive legal conscience. But it is impossible to approve them insofar as they are aiming to set up here and now a normative system that the present structures of international society are not ready to accommodate. By seeking to create today the law of tomorrow's international society, one runs the risk of cutting a key that will not fit the lock it will have to open. By projecting on today's international society the concepts appropriate to a different society, the present trends are indulging in the pleasures of anticipation in ways that, at best, are naively altruistic; at worst, amount to the hijacking of man's "better feelings" for the ends of power or ideology. 43. Adorned with the trappings of modernism, the legal fashions here denounced tend to lull new states-weak and underdeveloped as they often are-into illusions heightened by deceptive rhetoric. Yet, here as elsewhere, it is law with its rigor-not to be confused with rigidity-that comes between the weak and the mighty to protect and deliver. Of course, classic international law has not discharged its functions to perfection-very far from it, since it has failed to prevent wars and has lent itself to being manipulated to the advantage of certain interests of political power. But the reflection that classic international law has been too open to rough handling in the past cannot mitigate the present and future seriousness of any abandonment of its intrinsically positive aspects. 44. Admittedly, all is not yet lost. The theory of international crimes still remains at the teething stage, and, more than a dozen years li-fter the signature of the Vienna Convention on the Law of Treaties, the theory of jus cogrns has not yet been put to any practical test. Thus, while in the Case concerning United Staus Diplomatic and Consular Staff in Tehran the International Court ofJustice stressed the "fundamental character" and "cardinal importance" of the rules governing diplomacy as an institution and pointed to the "universal recognition" they enjoyed, it did not consider it necessary to describe them as rules of jus rogrns or to define the responsibility of the state that had violated them other than in terms of ordinary responsibility giving rise to a traditional obligation to make reparation. This was a fine opportunity to give concrete shape to the concept of superio_r norms, but the Court did not take it. 109 As for the obligation omnium erga omnes, this likewise has not yet moved on from the stage of the potential to the regime of positive law. There is still some way to go before the dislocation of the normative structure of international law and the perversion of its functions become irreversible facts. There is still time for jurists to react. 100 Admittedly, it might be possible to place: another construction on the silence of the Court. Perhaps it considered that the rules of diplomatic inviolability could validly be set aside or modified by two Slates in the context of their bilateral relations and that they comprise their own system of sanctions. If so, it would have been for reasons peculiar to the case at hand that the Court reprded it as inappropriate to mention jw ugms and international crimes, and not because of any reluctance to accept the actual principle of these theories.

[6] Relative Normativity in International Law Ulrich Fastenrath• Introduction In a well-known article published ten years ago, 1 Prosper Wei! spoke out against several developments in the theory and practice of international law which aim at a gradual differentiation of the normativity of international legal norms: (i) the emergence of soft law, culminating in a fierce debate on the legal effects of certain resolutions of the UN General Assembly;2 (ii) the distinction made by the !LC between international crimes and international delicts, based on the further distinction between


Professor of Law, University of Dresden. P. Wei!, 'Towards Relative Normativity in International Law?', 77 AJIL (1983) 413 et seq. (enlarged English version of: 'Vcrs une nonnativit~ relative en droit intern:ltional?', R6 RGD/P [ 1982)5 et seq.). The concept of 'soft law', as employed in the following, denotes instruments which do not belong to the formal sources of international law. On the concept of soft law in general and on its various meanings: R.R. Baxter, 'International Law in "Her Infinite Variety"', 29/CLQ (1980) 549 et seq.; R. Ida, 'Formation des normes intemationales dans une monde en mutation: Critique de Ia notion de soft law', in u droit illl~mational au servic~ d~ Ia paix, d~ Ia justice et du dtvelopp~m~nt. Milanges Michel Vi rally ( 1991) 333 et seq. With particular regard to resolutions of the UN General Assembly, cf. B. Sloan, 'General Assembly Resolutions ~evisited, (Forty Years After)', 58 BYIL (1987) 39 et seq.

4 EJIL (1993) 305-340

Sources of International Law


Ulrich Fastenrath

obligations erga omnes and obligations which are owed only to individual States;3 as well as (iii) the recognition of ius cogens as confirmed in Articles 53 and 64 of both the 1969 and the 1986 Vienna Conventions on the Law of Treaties. 4 Professor Wei! regarded these developments as pathological; they are to cause concern to the lawyer in his role as a 'system builder by vocation'. According to him, international law would no longer be capable of fultilling its function- the ordering of international relations in a heterogeneous, pluralist world - were the existence of rights or obligations to be determined through the importation of material criteria into the law. That would be to give uncertuin weight to such rights und obligations und to ubunuon a ncutrul evaluation to be effected through the application of formal legal criteria. 5 Other observers,6 approaching these developments from different theoretical frameworks, did not understand the stir caused by Professor Weil's article. In their view, relative normativity in international law is unavoidable. It is a simple reflection of fact. In the following, I will demonstrate that the second view is correct, even from the standpoint of the type of positivism championed by Professor Wei!, which, in reliance on the terminology of German methodological literature, I will call legal positivism (Gesetzespositivismus) (I). I will then demonstrate that relative normativity of international law appearing within this theory correlates with such relative normativity to be found on the basis of other theories of law (II). Finally, I will draw attention to the fact that the coexistence of different theories gives rise to a further relativization of the normativity of international legal norms (III).

I. Relative Normativity in Legal Positivism A. Forms of Positivism Applied to Law Legal Positivism is a form of positivism. The latter is, in general philosophical terms, based on the idea that, logic and mathematics apart, only phenomena which can be recognized by the senses are amenable to scientific knowledge. Thus, science is restricted to observable events and regularities or to a purely structural methodology devoid of content. Applied to the field of law, this premise of positivism has the consequence that jurisprudence may only concern itself with (i) internal or (ii) external behaviour of human beings, (iii) with the material embodiment of law in legal texts, judgements, etc., or alternatively, (iv) that it must disregard the content of rules and view itself as a general theory of law, taking note only of fundamental concepts which are necessary for all legal thinking.

3 4

5 6


An. 19 of the ILC Draft on State Responsibility, YILC 1976111/2, at 95 et seq. 1155 UNTS'331, respectively 25 ILM (1986) 543. Sec supra note I, at 416, 418 et seq., 440. E.g., R.A. Falk, 'To What Extent are International Law and International Lawyers Ideologically Neutral?', in A. Cassese, J.H.H. Weiler (eds), Change and Stability in lnttmrarional un•··Making (1988) 137.


Sources of International Law Relative Normativity in International Law

Common to all positivist doctrines is a view of the law as an objectively given fact. Views vary, however, according to the different focus of their observations: thus, voluntarism concentrates on the will of law-makers; sociological jurisprudence on regularly repeated types of behaviour; legal realism on legal decisions (supposedly based upon a legal consciousness which itself is inaccessible to scientific knowledge); legal positivism on legal texts (particularly statutes). Finally, logical positivism, in terms of Kelsen's Pure Theory of Law, tries to establish legal science as a purely formalist approach to law. Of these positivist conceptions, only legal positivism and logical positivism, often interconnected with each other, attempt to deny the relative normativity of legal norms. Although it is generally recognized today that the premises of these two conceptions cannot be sustained, 7 it is still necessary to examine them more closely in order to show how gradual relativization of normativity can be encountered at all levels of the hierarchical structure of the legal order established by these theories: on the level of interpretation of legal rules (infra B.2.(a)), on that of the identification and formulation of customary rules and general principles (B.2.(b)) as well as on that of the validity of legal norms (B.2.(c)).

B. Legal Positivism I. Conception

(a) The validity of legal propositions (Rechtssiitze) Legal positivism identifies law with legal propositions (Rechtssiitze), i.e. the wording of positive rules, which come about as the product of a legislative or other law-creating process, as well as with the meaning of these texts which is to be determined by purely semantic operations. Whereas the text of rules is fixed at the end of the law-creating process, its normative content has a dynamic of its own since the meaning of words is to a certain degree indeterminate and may change over time. At the core of legal positivism lies the concept of validity (Geltung). It only refers to legal propositions (Rechtssiitze), i.e. the verbally-fixed products of a law-creating process, without affecting normative content. Legal validity, based either upon another legal proposition (Rechtssatz) superior in rank (corresponding to H.L.A. Hart's secondary rules 8) or upon acceptance by the legal community, is decisive as to whether a legal proposition (Rechtssatz) forms part of the legal system or not. No further differentiation~ are possible. A legal proposition (Rechtssatz) cannot be valid to a greater or a lesser extent unu thus constitute more or less luw. The question us to tht.: validity of a legal proposition ( Rechtssatz) can only be answered with yes or no.

7 !I

For a comprehensive treatment see U. Fastenrath, Uick~n im Volkurechr: Zu R~chrscharakrer, Que/len. Sysrem~usammt'llhang, Merhodenlehre und Funkrionen des Volkerrechrs ( 1991) 60-64. II. L.A. H:~n. Tilt• Crmapt of Lt111' (I 96 I) 79.


Sources of lnternational Law


Ulrich Fastenrath

From the viewpoint of the Pure Theory of Law only texts which can be deduced from a legal constitution, or, at the extreme, from a single basic nonn,9 are to be considered as legal propositions ( Rechtssiitze). They must have been generated by means of a law-creating process provided for in the constitution, or have been incorporated in the legal order in some. other constitutional manner. 10 Thus a legal rule is characterized by its constitutional validity. 11 Any contradictions between individual legal propositions (Rechtssiitze) are to be solved through the application of conflict rules such as the lex posterior-, lex specialis- or lex superior-rule. By applying these rules, one of two contradicting legal propositions ( Rechtssiitze) is deprived of the legal validity which it had only supposedly and provisionally achieved through a lawcreating procedure. For the positivist dogma to be maintained, the primacy of the legal proposition ( Rechtssatz) that is winning out in this process must be ascertained with reference to such external criteria as, for example, the date of its promulgation, or the fact of its generation in a higher-ranking legislative process, as is the case with the generation or amendment of domestic constitutions. The model developed by the Vienna School, of the hierarchical structure of the legal order, does not lead to a gradual differentiation in the validity of legal propositions (Rechtssiitze). Rather, the hierarchy built into legal orders is relevant only for the application of the lex superiorrule. Thus, Professor Weil's critique of Articles 53 and 64 of the Vienna Conventions on the Law of Treaties does not concern the higher status of some norms as such, but is aimed at the fact that ius cogens cannot be identified on the basis of formal criteria. 12 In contrast to the Vienna School, H.L.A. Hart regards the existence of a constitution as a luxury. International law which, in his opinion, is primitive requires only individual recognition of each norm as a legal nonn.l3 Gidon Gottlieb 14 and Friedrich V. Kratochwil 15 find evidence of such acceptance in the fact that international actors feel bound by such norms or have recourse to them without questioning them or giving reasons for their validity.

9 10


12 13 14 15


In particular, H. Kelsen, Reine Rechts/ehre (2nd ed., 1960) 196 et seq.; P. Guggenheim, Traire de droit international public, I (2nd ed., 1967) 37 et seq. The procedure of norm-creation or incorporation may also be established- indirectly - by a norm which has come into being in accordance .with t..'le constitution. An ex?.mple of this is the law of international organizations, the enactment of which is regulated in the constitutional ins!ruments of these organizations, i.e. in international treaties. Cf. e.g., R. Ago, 'Begriff des positiven Rechts', 6 ArchVR (1956157) 257, at 263 et seq.; P. Guggenheim, 'Was ist positives VOikerrecht?', Vlli ASDI (195 1) 31 et seq.; Kelsen, supra note 9, at 199 et seq. Following Hart, supra note 8, we might also regard the 'constitution' as not regulating the law-creating processes, but as decidine which norms are to belong to the taw, cf. B. J. Combacau, 'Le droit international: bric-a-brac ou systeme?', 31 Archives de philosophie du droit (1986) 85, 90 et seq. Weil, supra note I, at 423 et seq. Han, supra note 8, at 229. 'The Nature of International Law: Towards a Second Concept of Law', in C.E. Black, R.A. Falk (eds), Th~ Futur~ of the International Legal Order, IV (1972) 365. 'Is International Law "Proper" Law?', LXIX Archiv for Rechts- und Sozialphilosophie (1983) 13, at 38 et seq.

Sources of International Law


Relative Normativity in International Law

The juridical quality of a legal proposition ( Rechtssatz) need not, however, merely depend upon the behaviour of actors in the stage of its application. One can also take into consideration the conduct of the actors during the creation of a legal proposition (Rechtssatz). In this context, Nicholas Onuf16 relies on the 'speech act' theory developed by Austin, Searle and Habermas. According to this theory, language does not merely convey content, it is thus not simply to be understood as a locutionary act. The speaker also performs an action in saying something. He/she may, for instance, express a warning or issue an order. Action of this kind, which determines the communicative function of the content uttered, is termed an illocutionary act. In the case of a legal proposition (Rechtssatz), the illocutionary act consists in the creation of legal rights and duties, while the locutionary act provides information as to the content of these rights or duties. It is obvious that, since speech act theory regards understanding, and hence the understanding of norms, as the result of a process of communication, the speaker (in the legal sphere: the creator of norms) is not the only person who decides upon the illocutionary role of a legal proposition (Rechtssatz). He/ she can only intend such a role. For the speech act to be successful, the addressees of the offer embodied in it will have to understand this intention and accept the intended illocutionary role. This second element, acceptance, is vital for the obligatory effect of norms. A legal proposition (Rechtssatz) may thus be defined as a speech act whose illocutionary role has been successfully carried out and in this sense has attained legal normativity. 17 (b) The meaning oflegal propositions (Rechtssatze)

In order to sustain its pure positivist concept, legal positivism must base itself on the premise that the enactment of a legal proposition (Rechtssatz) carries with it the description of a precise normative content which only needs to be disclosed by those who then apply the law. This perception has a long tradition. It lies at the basis of Montesquieu' s ideal of the separation of powers, under which a judge was to act only as a 'bouche qui prononce les paroles de Ia loi' .18 Similarly, it was the guiding inspiration of the codification movement on the European continent in the closing years of the 18th century . 19 In general philosophy, attempts to bind words to an exact meaning range from Plato's famous shadows on the wall to Wittgenstein's Tractatus Logico-Philosophicus. 20 It is not by accident that the latter had its roots in the positivist philosophy prevalent in Vienna at the tum of the century.

16 17 18 19 20

N. Onuf, 'Do Rules Say What They Do? From Ordinary Language to International Law', 26 Harvard lnt'/ LJ. (I 985) 385 et seq. Ibid., at 408. Cf. de Montesquieu, D~ /'esprit des lois (I 748), Ch. 6. Cf. H. Coing, Epochen d~r &chtsg~schichte (1967) Ch. 3. L. Wingenstein, Schriften, I (1963) Ch. 3.



Sources of International Law Ulrich Fastenrath

2. The Openness of the Legal-Positivist System (a) At the level of interpretation Already Kelsen had recognized that words used in legal texts have no determinate meaning. His conclusion was that, where different interpretations were possible, the appliers of law were free to choose between these various - equally valid meanings.2 1 This solution of the problem of the openness of meaning saved Kelsen's positivist position at the high cost of excluding any questions as to the actual content of the Jaw. To borrow a term from cybernetics, the decision-maker acts as a 'black-box' (as was also the view of legal realism). In the course of my enquiry I will demonstrate that Kelsen, in setting limits to meanings, demanded more of legal texts than they could provide. On the other hand, the followers of legal realism, of the German Free Law movement ( Freirechtslehre ), of the policy-oriented jurisprudence of McDougal eta/., of the Topics school, and finally, of the Critical Legal Studies movement, go a step too far.22 The common denominator of these views is a strong tendency to disregard the wording of laws and international treaties because of their definitional openness. Instead, these views focus directly on normative content. However, such methods cannot explain the great importance attached to the wording in legislation or treaty-making. Rather, I believe that analytical linguistics and hermeneutics offer satisfactory means to truly reflect the role granted to the text of the law in practice, and, at the same time, avoid the futile attempt to give an exhaustive and finite meaning to the content of such text. In their essence, the arguments that follow apply to all types of legal propositions (Rechtssiitze), irrespective of the source through which they are created. Since, however, as far as international law is concerned, an authentic wording of rules only exists in the case of treaties, I shall mainly examine such written instruments. (i) The indeterminacy of concepts Colloquial languages, upon which the technical language of international law is based, constitute universal communication systems. As such they must enable the speakers to express verbally every aspect of the material with which they work. Obviously this does not mean that language must- or at least must possess the capacity to - reflect fully the infinite number of ways in which the world may be classified.23 Restrictions of vocabulary and limits to the calculable capacity of linguistic conventions make this impossible. Both common language and technical legal language make distinctions 21 22



Kelsen, supra note 9, at 346-352. On these different legal theories cf. Fastenrath, supra note 7, at 33, 63, 73 et seq., 78 et seq.; M.S. McDougal, M.W. Reisman, 'International Law in Policy-Oriented Perspective', in R.StJ. Macdonald, D.M. Johnston (eds), The Structure and Process of International Law (1983) 103 et seq.; M. Koskenniemi, 'The Politics of International Law', I EJIL (1990) 4 et seq. J. Lyons, Introduction to Theoretical linguistics ( 1969) 45, 426; N. Oksaar, •Sprache als Problem und Werkzeug des Juristen', 53 Archiv for Rechts- und Sozialphi/osophie (1967) 91, at 116.


Sources of International Law Relative Normativity in International Law

only in so far as ordinary situations require. A large number of possible distinctions remain disregarded. If the precept is to be sustained that it must be possible to verbally describe everything in the world, words may not, however, simply delimit only one particular class of characteristics. Instead, language must, to a certain degree, remain indeterminate, so that those wishing to communicate but possessing only a limited vocabulary may make themselves understood in further and as yet unidentified classifications. It is only through the indeterminacy of the 'referential boundaries' of lexical items that language can adjust itself to the changing experiences of the speechcommunity and is able to reflect new physical elements as well as changes in social and cultural perspectives. Thus, while remaining constant in form, the vagueness in content of living languages is indispensable. Such vagueness is a necessity in the case of multilingual international legal texts, which, as a consequence of the use of different national languages, may remain deeply rooted in national legal terminology. Where concepts have no natural, predetermined existence but rather arise in response to the requirements of normal life, different languages may develop divergent semantic fields, that is, impose different categorizations upon the world. 24 This is common in the face of different living conditions and, in particular, as a result of different cultural perceptions. For it is language and its classification that enables individuals to create their own world along the lines of their cultural perception;25 the world we experience is no more than the reflection of what we have made of it for ourselves. The greater the degree of cultural diversity the less likely it is that concepts will have a common meaning. This is particularly true for legal language, since each national legal system can be regarded as the 'property' of the nation concerned. In Europe alone, many different legal cultures have developed their own divergent legal institutions, often without counterparts in the other systems. To comprehend the legal framework of even more distant cultures within the categories of our domestic legal systems is all the more impossible. Divergent semantic fields in different languages and the creation of different legal institutions within various legal systems not only lead to extreme difficulties of translation, 26 they also demand openness in the use of language. It is only in such a way that, despite a plurality of authentic texts in various languages, treaties may retain a common meaning, as presumed in Article 33(3) of the Vienna Convention on the Law of Treaties. 24 25 26

M. Hilf. Die Au.,fe~:rm.~ meltrspmclri~:rr Vrrtriige. Eine Unrer.wc/umg wm Viilkerreclrr untf ~um Sraarsrec/tr tier Bwult·srepublik Deur.,·c/rfmrd (I \173) 20 et seq.; Lyons, .\"llflrtl note 23. ut426, 429. 457; Oksaar, supra note 23, at 103.

A. Kaufmann, Beirriige zur jurisrischen Hermeneutik (1984) at 103; similarly, H.·G. Gadamer, Wn/rrlreir rmd Methode: Grrmdzii.~r riner philn.wphi.tchrn Hemreneutik (3rd ed .. 1972) 415 et seq.; Lyons, supra note 23, at 432 et seq.; Oksaar. •·upra note 23. at I 03. J. Hardy, 'The Interpretation of Plurilingual Treaties by International Couns and Tribunals', 37 BYIL ( 1961) 72 et seq.; Hilf, supra note 24, at 23 et seq.; Lyons, supra note 23, at 429; Oksaar, supra note 23, at 127 et seq.; A. Ostrower, Language. Law and Diplomacy- A Study of Linguistic Diversity in Official btrematiumrl Relcrrium am/ brtemcrriunaf Lllw ( 1965)

479 et seq.


Sources of International Law


Ulrich Fastenrath

(ii) Linguistic conventions According to the legal methodology now codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, the starting-point for the interpretation of legal terms is their ordinary meaning. Referral to the ordinary meaning of a term does not, however, imply referral to a certain definition. Contrary to the assumptions of legal positivism, the conclusion of a treaty does not constitute the end of the process of lawcreation. Treaty provisions are not 'finished products' ,2 7 requiring only implementation and nothing else. On the other hand, in spite of their indefiniteness, treaty provisions are not meaningless either, and thus normativity remains possible on their basis. The conveyance of meaning from the speaker (the writer, the law-maker) to the listener (the reader, the law-applier) does not consist in the 'handing over' of what is indicated by the words of a treaty, which would imply that an exact definition of what is indicated constitutes a precondition for successful communication. The whole process can be much better explained if it is accepted that the speakers of a particular language agree upon the 'use' of the words (i.e. what these words refer to and what they imply), to a degree sufficient to exclude misunderstandings in most instances. 28 Such 'use' of words is determined by commonly experienced, habitually used, or even agreed-upon linguistic conventions. However, these conventions are neither completely clear nor fully homogeneous and may also change over time. Linguistic conventions can be identified as definitions which lay down a concept extensionally or intensionally. Extensional definitions involve the listing of all objects to which a word may refer. Intensional definitions clarify the characteristics common to all objects to which a word may refer, and distinguish them from other objects. Linguistic conventions within a mother tongue evolve with that language and are internalised as it is learned. Subsequently, they are (largely subconsciously) adjusted through the use of the language. The same holds true for linguistic conventions governing the use of a technical language. Compared to those applying to the mother tongue, conventions on the use of technical language have the advantage of being more clearly defined and therefore leading to a more precise use of language. In this regard the potentialities of legal terminology- at least insofar as it is manifested in laws- are limited. Because of its function in influencing social behaviour, legal terminology must never entirely divorce itself from common language. 29 As law affects society, (technical) language employed in legal propositions (Rechtssiitze) must stand the test of daily social usage. In this context, individual acts

27 28 29


M. Bos, A Methodology of International ww (1984) 22 et seq. Lyons, supra note 23, at 4 I 2. Kaufmann, supra note 25, at 115; Oksaar, supra note 23, at 95. Cf. also, Hegel's Philosophy of Right (translated with notes by T.M. Knox) (Reprint 1965), sec. 215: 'To hang the laws so high that no citizen could read them (as Dionysius the Tyrant did) is injustice of one and the same kind as to bury them in row upon row of learned tomes, collections of dissenting judgements and opinions, records of customs, &c .• and in a dead language too, so that knowledge of the law of the land is accessible only to those who have made it their professional study. •


Sources of International Law Relative Normativity in International Law of application may be seen as continuous extensional definitions of the terms embodied in the text ofthe treaty. It is in this sense that one of the Special Rapporteurs of the ILC on the Jaw of treaties, Sir Humphrey Waldeck, saw in subsequent practice 'an authentic interpretation comparable to interpretative agreement' .3° Also, the commentary of the ILC on Article 27 of its final draft on this subject-matter states that subsequent practice 'constitutes objective evidence of the understanding of the parties as to the meaning of the Treaty'. 3! It is with good reason, therefore, that Article 31(3)(b) of the Vienna Convention identifies such practice as a legitimate tool for the interpretation of treaties. A similar function may be ascribed to decisions of international courts and to statements made by individual States, by organs of international organizations, as well as by scholars of intemationallaw. Thus, through the evaluation of the (il)legality of individual acts and through the provision of, at least, interpretational suggestions for the relevant legal propositions (Rechtssiitze), the process of concept-building continues. Occasionally, intensional definitions gain the status of legal definitions by way of their inclusion in treaties.32 They are, however, more frequently found in infonnal definitional agreements of the type foreseen by Article 31(3)(a) of the Vienna Convention, in interpretative explanations, in the ratio decidendi of judgements, in the resolutions of the Jnstitut de Droit international, in the drafts elaborated by the ILC or in the general comments of the Human Rights Committee and other treaty bodies.3 3 Academic exchanges between scholars also Jessen the divergence between concepts to an extent that should not be underestimated. Obviously, such exchanges cannot give rise to concepts that are identical world-wide, since any communication will itself require interpretation. Further, it must be recognized that the limited human capacity to 'handle data', as well as limited linguistic abilities interfere with the development of a global, direct communication network composed of the entire community of international lawyers. Moreover, it is unavoidable that these jurists remain anchored in their own domestic legal thought. This problem notwithstanding, Article 38(l)(d) of the ICJ Statute rightly cites (the most widely read) teachings of the most highly qualified publicists as a subsidiary source of international law, which is to be regarded as much more than a mere source d'information.3 4 These teachings are influential through the detennination and homogenization of legal concepts which they effect. 35 Paramount importance in this context must, however, be attached to 'soft law' instruments such as 30 31 32 33 34


Sixth Repon on the Law of Treaties, by Sir H. Waldock, YILC 1966 IT, at 98 para. 18. Ibid. 221 para. 15. Cf. All. I of the Convention relating to the Status of Refugees of28 July 1951, 189 UNTS 150. Cf., e.g. An. 40(4) of the International Covenant on Civil and Political Rights, of 19 December 1966. But, cf. F. Gihl, 'Lacunes de droit international', 3 Acta Scandinavica Juris Gentium (1932) 37, at48. In a similar vein, Ricci-Busatti, member of the Judicial Committee for the Preparation ofthe Statute of the Permanent Coull of International Justice, l'roc~s-Verlmux, 336: 'Doctrine and jurisprudence no doubt do not create law; but they assist in determining rules which exist. A judge should make use of both jurisprudence and doctrine, but they should only serve as elucidation.' In this sense, cf. P. Allott, 'Language, Method and the Nature of International Law', 45 BYIL (1971) 7lJ, :11 liM.


Sources of International Law


Ulrich Fastenrath

resolutions of the UN General Assembly and instruments adopted by intergovernmental conferences. Such instruments can rapidly generate a wide-ranging consensus on international definitions, by either explicitly laying down a concept36 or by developing legal standards37 which may then be effected through an extensive or restrictive application of already established legal rules. 38 An effect similar to that of resolutions may be attributed to certain multilateral treaties which are not yet in force, and to (even unsuccessful) codification conferences. 3 ~ The importance of such informal instruments in the development of law intra legem has frequently been confirmed by judicial decisions and doctrine. For instance, the US Court of Appeal for the Second Circuit stated in Filartiga v. Pena lrala40 that '[These] UN declarations are significant because they specify with great precision the obligations of Member States under the Charter. Since their adoption, members can no longer contend that they do not know what human rights they promised in the Charter to promote.' Judge Jimenez de Arechaga took an analogous view in his separate opinion in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case:' ... even if a new accepted trend does not yet qualify as a rule of customary law, it may still have a bearing on the decision of the Court, not as part of applicable law, but as an element in the existing rules or an indication of the direction in which such rules should be interpreted' .41 In legal literature, Daniel Thilrer has declared soft law to be 'an orientational aid to interpretation' 42 while Alfred Verdross and Bruno Simma claim that certain resolutions of the General Assembly lay down 'the perimeters for future arguments as to the applicable law' .4 3 36 37




41 42 43


E.g. G.A. Res. 3314 (XXIX). Cf. e.g., G.A. Res. 2131 (XX) (Inadmissibility of Imervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty), and 2625 (XXV) (Principles of lmernational Law Concerning Friendly Relations and Co-operation among States in Accordance with the UN Charter), as well as the CSCE Final Act. Cf. A. Bleckmann, Grundprobl~m~ und Methoden des Volkerrechts ( 1982) 340; similarly. N. Quoc Dinh, in id., P. Dallier, A. Pellet (eds), Droit imemarional public ( 1987) 347 et seq.; D. Thiiret, ...Soft Law"- eine neue Form vom Volkerrecht', 104 Zeitsc!Jrift ftir schwei~erisches R~clu (1985) 429, at 445 et seq.; in relation to codes of conduct, cf., H. W. Baade, 'The Legal Effects of Codes of Conduct for Multinational Enterprises'. 22 GYIL (1979) II, at 34 et seq.; cf. also, C. Schreuer, 'Recommendations and the Traditional Sources of International Law', 20 GYIL ( 1977) 103, at 112 et seq. R.Y. Jennings, 'Law-making and Package Deal', in Milanges offerrs a Paul Reuter (1981) 348; T. Schweisfunh, 'Influence of the Third United Nations Conference on the Law of the Sea·. 43 ZaoRV ( 1983) 566, at 580 et seq; I. M. Sinclair, 'The Impact of the Unratified Codification Convention', in Realism in Law-making: Essays on International Law in Honour of Will em Riphagen ( 1986) 211 et seq. 19ILM ( 1980) 973. On the influence of behavioural standards, developed through soft law, on 'open' legal concepts, cf. also E. Riedel, 'Standards and Sources: Farewell to the Exclusivity of the Sources Triad in International Law?', 2 EJIL ( 1991) 58 et seq., and id., Theorie der Menschenreclttssrandards (1986). ICJ Reports 1982, I08 et seq .• para. 33. ThUrer, supra note 38, at 446. A. Verdross, B. Simma, Universelles Volkerrechr (3rd ed. 1984) sec. 636; similarly. Riedel. 'Standards and Sources', suora note 40, at 66 et seq.


Sources of International Law Relative Nonnativity in International Law

Linguistic conventions, in whatever way they were developed, are not legally binding, with the exception of legal definitions embodied in treaty provisions and, according to some views (based on discussions at the founding conference in San Francisco44 ), with the exception of generally accepted definitions of temts contained in the UN Charter and adopted by UN organs. Such conventions do, however, have an impact on the development of international legal discourse by leading to a common understanding of certain terms. Hence, one function of soft law is the clarification of our understanding of hard law and thus its closer definition. For instance, the Friendly Relations Declaration4 5 has undoubtedly provided a clearer (though not conclusive) determination of what is meant by the rather vague term 'force' used in Article 2 (4) of the UN Charter. Similarly, Resolution 3314 (XXIX) provides a clearer definition of the term 'aggression· found in Article 39 of the Charter. It will be very difficult for any State to resist the application of such definitions, irrespective of whether it had not participated in their elaboration or had even actively opposed them. Thus, States will be well advised to accommodate themselves to the understanding of legal terms embodied in these resolutions. Meta-legal linguistic conventions (to which even legal positivism must have recourse if it is to ensure that legal propositions (Rechtssiitze) have any meaning at all) may have different degrees of authority. They receive different levels of acceptance from different States, also at different points of time. In addition, they are always subject to adjustments, themselves of varying degrees of authority. Thus, legal positivism is unavoidably forced to accept a graduation of normativity at the level of content. Since such variations in the use of language will mostly be of minor significance they will, as a rule, only affect the periphery of a concept. In some cases, however, these differences can have an impact on the very core of a concept. The liberal versus the Marxist-Leninist concept of 'freedom' in the understanding of human rights constituted a classic example. In such instances, the delimitation of a concept, and with this the clarification of the scope of the legal proposition (Rechtssatz) concerned, will depend upon the degree of authority and acceptance ascribed to the linguistic conventions in question. (iii) Diachronic openness: dynamic interpretation If, as a result of the indeterminacy of legal language, the meaning of legal propositions (Rechtssiitze) can never be determinate, law will always remain diachronically amenable to development. The content of a legal proposition (Rechtssatz) is never 'finite'. Thus, the ICJ was right in asserting in its 1971 advisory opinion on Namibia (South West Africa) that 'an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation. In the domain to which the present proceedings relate, ... the corpus 44

Cf. Sloan. mpra note 2. at 59.


G.A. Res.


the method of jurisprudence; it is the method by which the law has been gradually evolved in every country resulting in the definition and settlement of legal relations between States as well as between private individuals.IOO The ICJ correctly refuted this view when it spoke of principles of equity and justice and not of rules. Even though principles or criteria are occasionally designated as 'rules', only the former are applied by weighing them up against each other before a decision is taken.

2. Justice as a Goal of the Law Hence, modem day supporters of natural law also presuppose a positive law which is no longer understood as a reflection of justic:e. Rather, it is now conceived as an order 'whose meaning is essentially committed to the value of justice' . 10 1 This conceptual linkage justifies the power of the law to impose duties and, also, creates a pattern of meaning which, through the identification of the (ultimate) object and purpose of all norms, influences positive Jaw (cf. Art. 31( 1) of the Vienna Convention on the Law of Treaties). The ICJ made explicit reference to this role in the Continental Shelf (Tunisia/Libya) case: ... when applying positive international law, the court may choose among several possible interpretations of the law the one which appears, in the light of the circumstances of the case, to be the closest to the requirements of just.ict!.l 02 3. Justice as a Parameter of Law

Since it is the linkage between positive Jaw and justice which establishes the power of the Jaw to impose duties, the reverse is also true, to the effect that an unjust norm has no claim to legal validity. Thus, in addition to its functions as an interpretational aid and filler of lacunae, natural law sets limits to positive law.103 4. Relative Nonnativity in Natural Law

The social effectiveness of norms deduced from principles of justice or equity, as well as the persuasive power of acts of interpretation founded upon such principles, is adversely affected by the large degree of variance in perceptions of justice. In the face 100 VI RIM 112, at 114. 101 A. Vcrdross, Die Verfa.uung cler Viilkerreclttsgemein.•·clrafr (1926) 3: 'gruncl.1 YtaT Boolr. of International Law I at 6 and 18.

Sources of International Law SPRING 1996

Communitarian Values and the Nicaragua Case



The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of states should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a state acts in a way prima-facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the state's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule. 53

So, while the Court formally reaffinned the 'essential role' of general practice in customary norm formation, drawing a contrast with conventional rules in this regard, 5 4 it effectively adopted a revolutionary technique that enabled it to derive customary norms prohibiting the use afforce and intervention despite the absence of supporting general state practice, and in the face of considerable inconsistent practice. The majority judgment therefore seems to exhibit a blatant inconsistency between the abstract endorsement of a traditional conception of customary international law as compounded of both state practice and opinio juris and the demotion of state practice to a marginal, if not non-existent role, in its actual derivation of specific customary norms. As Theodor Meron has put it, 'the Nicaragua Court's emphasis on the need to establish the existence of practice was more in the nature of a verbal protestation than a serious inquiry into the presence of the necessary elements of customary internationallaw'. 55

(i) The customary norm of non-use of force Beginning its analysis by noting both parties' acceptance that the rules on use of force in the United Nations Charter correspond 'in essentials' to those in customary law, ie that Article 2( 4) expressed 'the fundamental principle in this area', 56 the Court proceeded directly to the element of opinio juris as to the binding character of the abstention it requires. This could be derived, 'though with all due caution', inter alia, from the attitude of the parties and of states towards certain General Assembly resolutions, particularly resolution 2625 (XXV) ('The Declaration on Principles oflnternational Law Concerning Friendly " 1986 ICJ Rep at 98, para 186. 54 '(I]n the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Coun must satisfy·irself that the existence of the rule in question in the opinio juris of states is confirmed by practice'. Ibid at 98, para 184. The Coun also quoted its statement in Continental Shelf (Lbyan Arab Jamahiriya/Malta) 1985 ICJ Rep 13 at 29-30, para 27 to the effect that it is 'axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of states, even though multilateral conventions may have an imponant role to play in recording and defining rules deriving from custom, or indeed in developing them'. 1986 ICJ Rep at 97, para 183. " Meron, above n 50 at 110. See also J. I. Charney, 'Customary International Law in the Ni&artJgUQ Case Judgment on the Merits', (1988) HagtU Year Book of Inurmational Law 16, at 17 and Charlesworth, above n 52 at 27. 56 1986 ICJ Rep at 99, para 188. The Chaner norm was held to impose on the parties 'a treaty-law obliption to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations Charter'. Ibid at 99-100, para 188.

Sources of International Law



Oxford Journal of Legal Studies

VOL. 16

Relations and Co-operation among States in accordance with the Charter of the United Nations'). In a critical passage, the Court observed: The effect of consent to the text of such resolutions cannot be understood as merely that of'reiteration or elucidation' of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. The principle of non-use of force, for example, may thus be regarded as a principle of customary international law, not as such conditioned by its provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter. It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule (or set of rules), to be thenceforth treated separately from the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter. 57

Further support for the opinio juris element, particularly with respect to the United States, was found in the resolution of the Sixth International Conference of American States condemning aggression, its ratification of the Montevideo Convention on Rights and Duties of States, its acceptance of the principle contained in the Helsinki accord/ 8 and its asserted status as a jus cogens norm. 59

(ii) The customary norm of non-intervention The majority found that the principle of non-intervention, which 'involves the right of every sovereign State to conduct its affairs without outside interference', is 'part and parcel of customary international law' even though 'examples of trespass against this principle are not infrequent'. 60 The importance of this principle from a world order perspective as an 'essential foundation of international relations'/ 1 a corollary of the principle of the sovereign equality of states,62 set the stage for this self-conscious disregard of state practice. The Court began again with the expression of opinio juris regarding the rule's existence. Given that it had removed the requirement of deriving normative intent from state practice generally consistent with the rule, examples of this psychological element became unsurprisingly 'numerous and not difficult to find'. 63 Again, the Court emphasized a variety of international instruments/4 including resolutions supported by the United States solely as statements of political intention (eg General Assembly Resolution 2131 (XX), the 'Declaration on the Inadmissibility Ibid at 100, para J!i8. Ibid at 100, para 189. " Ibid at 100-l, pan 190. 60 Ibid at I 06, para 202. Formulating it later aa the obligation correlative to this right, the Court holds that the principle 'forbida all States or poups of States to intervene direcdy or indirecdy in internal or external affain of other States. A prohibited intervention muat accordingly be one bearing on manen in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methoda of coercion in regard to such choices, which muat remain free ones.' Ibid at 108, para 205. 61 Ibid quoting from the CDrfw Clld11na Cue (UKv A/ba11ia), 1949 IC] Rep 4 at 35. 12 Ibid at 106, para 202, referring toGA Res 2625(XXV) . ., Ibid. 64 Ibid at 106--8, paras 202-4. 57 51


Sources of International Law SPRING 1996

Communitan'an Values and the Nicaragua Case


of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty') and its acceptance of the principle in a declaration presented as binding only inter partes (the Helsinki Accord). 65 In contrast to the derivation of the non-use of force norm, the Court did explicitly formulate the question whether practice was sufficiently in conformity with the principle of non-intervention to establish it as a customary norm. 66 Observing that in recent years 'a number of instances of foreign intervention for the benefit of forces opposed to the government of another state' have occurred,67 it countered that it was not concerned with the process of decolonization (the remarkable implication being that these instances were predominantly part of that process). In the end, the question was effectively bypassed by proceeding on the basis of a presupposition as to the existence of a customary norm prohibiting intervention. The Court then considered whether there existed a practice illustrative of belief in a general right for states to intervene, whether directly or indirectly, with or without armed force, in support of an internal opposition in another state, 'whose cause appeared particularly wort.lty by reason of the political and moral values with which it was identified'. 68 Thus, while ostensibly still concerned with the existence of the principle of non-intervention as a customary norm, the element of state practice was considered solely in the context of a permissive modification of the principle that would have allowed intervention in support of rebel forces. This amounts to a reversal of the traditional doctrine that the party seeking to establish a restrictive customary norm bears the burden of proof. 69 It also indicates, more radically, that state practice was never considered in a context where its absence would have the potential effect of denying the rule legal status. In the end, the notion of opinio jun's was deployed to dispel the implication that such a modification existed: the cases of state conduct prima facie inconsistent with it were not accompanied by an opinio juris to the effect that contravention was permissible in the specified circumstances. The Court focused on the nature of the ground offered as justification in these cases and found that states have not justified their conduct by reference to a new right of intervention or a new exception to the customary principle that prohibits it. 70

1986 ICJ Rep at 107, para 204. Ibid at 108, paras 205-6. Ibid at I 08, para 206. 68 Ibid. It has been argued that in giving such credence to the potentially self-serving statements of states, the Nicaragua approach to custom entails a vast diminution in the conoibution of state practice--undentood as actions having physical consequences-to the formation of customary norms. Sec Charlesworth, above n 52 at 21. 69 The claim that a customary norm can be proved by disproving the existence of its opposite- violates the classical principle formulated in the Lorw case that the freedom of states is only limited by constraints imposed by international legal rules enunciated in 1M SS 'Locw' (Fr v Tur.l:), 1927 PCIJ (ser A) No I 0 at 18. See Charney, above n 55 at 26 and Charlesworth, above n 52 at 25. 70 1986 ICJ Rep at 109, para 207. Statements by US authorities apparently of contrary effect were dismissed as 'statements of international policy, and not an assertion of rules of existing international law'. (Ibid at I 09, para 208). For criticism of thls aspect of the decision, see Charlesworth, above n 52 at 25. 65 66


Sources of International Law



Oxford Journal of Legal Studies

VOL. 16

The Nicaragua judgment manifests the relativist trend most clearly in the diminished degree of state practice it tolerates as an element in norm-formation, even allowing for the fact that the norms in question here were norms of prohibition. This is highlighted by the massive amount of inconsistent practice that existed with respect to the two principles of non-use of force and nonintervention that were derived by the Court as customary norms. 71 And even when practice is considered, it is deprived of any real independent probative force by the technique of characterizing inconsistent practice, by virtue of an appeal to opinio juris, as a violation of the putative rule of customary international law, or as an attempt to come within a recognized exception to that rule, or else as indicative of the existence of a new customary rule. An important aspect of the decision is the emphasis placed on opinio juris, not as a normative intent associated with state practice consistent with the putative rule, but as expressed in the normative words of treaties, resolutions and other international instruments. Thus, the aspirational instruments cited by the Court provide a basis for the derivation of customary norms. This manifestly presupposes the capacity of the General Assembly to transcend its normal recommendatory role and contribute in a more direct manner to the formation of customary norms through the passing of widely accepted resolutions. Note, finally, that a similar down-grading of the importance of state practice is evident in the Court's analysis of a number of other customary norms. 72

B. Universal Scope The extent to which the Nicaragua judgment affirms the other element of the doctrine of obligations omnium, ie the attribution of universal normative scope to a customary norm irrespective of its non-acceptance or rejection by some states, is Jess evident. It may be that the customary norms of non-use of force and non-intervention bind only the states that have accepted the treaties and resolutions relied upon by the Court in their derivation, so that they are not universal in scope. This interpretation has been advanced by Fred L. Morrison: The new international law thus created would apparently be binding only between states that acquiesced in the declarations in question, and as such would give rise to a new body of multilateral, but not universal, law. The consequence is a solution less 71 As D'Amato points out, above n 51 at 103, the Court ignores instances of humanitarian intervention, antiterrorist reprisals, individual and collective enforcement measures and new uses of transboundary force (eg the Israeli attack on the Iraqi nuclear reactor). See also T. M. Franck, 'Some Observations on the ICJ's Procedmal and Substantive Innovations', 81 Amtrica" JIL 116 at 119 (1987). This scepticism is also expressed in the dissenting opinion of Judge Schwebel, 1986 ICJ Rep at 303-4, para 94 (re non-use of force) and at 305, para 98 (re non-intervention). 72 These include those pertaining to: collective self-defence (1986 ICJ Rep at 103-5, paras 194-a); the requirement of reporting to the United Nations Security Council in connection with the invocation of the right of self-defence (at 105-6, paras 200-1); the right of a third party to take counter-measures (at 11()-11, paras 21 0-11); state sovereignty (at Ill, para 212); coastal jurisdiction in the territorial sea and ports (at 111-12, paras 213-14); the duty to give notice of the placement of mines at sea (at 112, para 215); and humanitarian law (at 113-15, paras 217-20). See generally Charney, above n 55, at 19 and 21. For an extended discussion of th~ Court's treaunent of customary humanitarian law, see Meron, above n 50 at 25-37.


Sources of International Law SPRING 1996

Communitarian Values and the Nicaragua Case


drastic than one that would recognize a universal validity for such resolutions. It will nevertheless enhance the legal status of those resolutions and consequently the importance of express negative votes in international organizations (not necessarily only the General Assembly), if the state is not fully satisfied that every provision of the proposed resolution, separately and literally applied, is acceptable to it. 73

Now Morrison's motivation for limiting the normative scope of customary norms derived through the Nicaragua method turns mainly on his interpretation of that method. According to this, a customary norm may come into existence 'instantly' if it is embodied in a widely adopted resolution of the United Nations General Assembly--or even of some other intemational organization-and there is no state practice that reflects acceptance of a contrary norm. 74 In other words, the Nicaragua judgment 'changes General Assembly resolutions from a step in the evolution of international law to the end result of that process'. 75 The restriction of the scope of the resultant customary norms to the states that supported or acquiesced in the resolutions that generated them is intended to decrease the incidence of states being subject to customary obligations they do not accept and which are merely 'imposed' upon them by the fiat of an international organization. But, as I argue in section III, the construal of the Nicaragua approach as straightforwardly endowing General Assembly Resolutions with legislative (or quasi-legislative) status is too simplistic; in particular, it fails to take into account the vital role of substantive world order considerations relating to the content of the putative norms. If so, this particular motivation for limiting the scope of Nicaragua-style customary norms is severely undercut. 76 A more detailed consideration of the question of scope is undertaken by Hilary Charlesworth. 77 She discerns in the judgment an unresolved tension between a strand of voluntaristic positivism and a natural law orientation that emphasizes the formation of customary norms within a value-laden 'societal context'. 78 Remnants of the former approach are to be found, in particular, in the fact that the Court to a very large extent self-consciously concentrated on the activities of the United States and Nicaragua in its enquiries regarding both the state practice and opinio juris elements, almost as though the issue were one of the existence of a regional custom rather than of a customary norm of potentially universal scope. 79 Further, the decision seems to lend some credence to the idea that the scope of the two norms is subject to the persistent objector rule, according to which a state can escape the normative effects of a customary rule by persistently objecting to its establishment during its process of formation and right up until the present. Thus, in seeking evidence of opinio juris as to the F. L. Morrison, 'Legal Issues in the NU:aragua Opinion', 81 AmericanJIL 160 at 162 (1987). This interpretation seems to be endorsed by other commentators, eg D'Amato, above n 51 at I 02 ~d Charney, Rbove n 55 at 22. 7 l Morrison, above n 73 at 162. 76 But not eliminated. I consider the problems of universality of scope in greater detail in section IV, below. 77 Charlesworth, above n 52 at 5, 22-5, and 30-1. 71 Ibid at 30. 79 1986 ICJ Rep at 98-101, paras 187-90 (the non-use of force principle); 107, paras 203-4 and 109, paras 207-8 (the non-intervention principle). 7J 74


Sources of International Law


Oxford Journal of Legal Studies

VOL. 16

principle of non-intervention the Court refers, inter alia, to the United States' vote in support of General Assembly Resolution 2131 (XX). Observing that the vote was qualified by a statement at the time of its adoption by the First Committee that it was 'only a statement of political intention and not a formulation of law', the Court countered that the United States is still subject to the nonintervention principle because 'the essentials of resolution 2131 (XX) are repeated in the Declaration approved by resolution 2625 (XXV), which set out principles which the General Assembly declared to be "basic principles" of international law, and on the adoption of which no analogous starement was made by the United States representative'. 80 Indeed, as Charlesworth points out, the Court here appears to go beyond the traditional understanding of the rule by implying that a qualified or negative vote on a resolution in an international organization can constitute a 'persistent' objection and thereby exempt a state from the ambit of a customary norm subsequent to its formation. 81 But against the considerations adduced in the previous paragraph there must be placed at least the following points. First, although the Court focused its enquiries on the United States and Nicaragua in seeking to establish state practice and opinio juris, it by no means ignored the activities of other states or organizations. So, for example, reference was made to: the acceptance by other states of relevant treaty norms 82 and General Assembly resolutions; 83 previous decisions of the World Court; 84 and commentaries of the International Law Commission. 8 ' Second, the Court referred to the norms prohibiting the use of force and intervention in terms that implied its ascription to them of a universal scope. Thus, it was held that the non-use of force norms embodied in both the United Nations Charter and in customary international law 'flow from a common fundamental principle outlawing the use of force in international relations' .86 Regarding the non-intervention norm, the Court held that it can be inferred that the text of the Helsinki Accord 'testifies to the existence, and the acceptance by the United States, of a customary principle of universal application'. 87 In connection with the Court's seeming indulgence of the so-called persistent objector rule, there are three countervailing observations. First, the Court does not explicitly refer to, let alone endorse, the rule. 88 Second, the existence of the

Ibid at 107, para 203. Charleawonh, above n 52 at 3Q-1. 12 1986 ICJ Rep at 100, para 190, re !he use offorce norm and Article 2(4) of !he United Nations Charter. ., Ibid at 100, para 188 (t>pinio ju..U for !he non-use of force norm). Ibid at 106, para 202 (opinio ju..U for !he non-intervention nonn). 14 Ibid at I 06-7, para 202 (opinio jurU for !he non-intervention norm). 1' Ibid at I 00, para 190 (t>pinio jurU for !he non-use of force norm). 16 Ibid It 97, para 181. l1 Ibid It 107, para 204. • Indeed, u Charney has pointed out, the World Court has referred to the rule only twice (in obiur dicra): A,W..Ntnfi¥P.,. Filllnia Cue (UKv Nor), 1951 ICJ Rep 116 at 131, 138-9 (December 18) and Atylum Ctu• (Gel Y .P.rv), 1950 ICJ Rep 266 at 278 (20 November). See J. I. Charney, 'Univenal International law'. 87 ArrwricanJIL 529 at 539-40 (1993). 10


Sources of International Law SPRING 1996

Communitarian Values and the Nicaragua Case



rule in contemporary international law is itself a highly contentious matter. 89 And, finally, even if the rule survives in contemporary law, it is widely acknowledged by its advocates to be inapplicable to norms of jus cogens, which retain a universal scope irrespective of non-consent or persistent objection to them. 90 The relevance of this point is that there are strong indications in the Nicaragua judgment that the Court regarded at least the principle prohibiting the use of force as a peremptory norm of jus cogens. Admittedly, the majority judges make no direct application of such a peremptory norm as furnishing a dispositive rule. But the frequent invocation by states (including the United States and Nicaragua) and other agents of such a norm is relied on as one factor evidencing the existence of an opinio jun's requisite to establish an independent norm of customary law essentially identical to Article 2( 4) of the United Nations Charter: A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law. The International Law Commission, in the course of its work on rhe condition of the law of treaties, expressed the view that 'rhe law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens' .91

The separate opinions of two members of the majority, President Singh and Judge Sette-Camara, involve a more unequivocal endorsement of the jus cogens status of the non-use of force and (in the case of Judge Sette-Camara) nonintervention norms. 92 Noting, then, that the Nicaragua Court's position on the scope of the customary norms of non-use of force and non-intervention is not entirely free from doubt, I think there are sufficient considerations telling in favour of a universalistic

19 For scepticism about the persistent objector rule on both legal and more general normative grounds, see Charney, above n 88 at 53~2. See also ]. I. Charney, 'The Persistent Objector Rule and the Development of Customary International Law', (1985) 56 British Year Book of International Law I. But efT. Stein, 'The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law', 26 Haroard ILJ 457 (1985). 90 See Charney, above n 88 at 541-2. For a contrary view, see A. Cassese, International Law in a DitJUkd W&rid ( 1986) at 178-9. 91 The Court proceeded to refer to the views of the parties on this point: 'Nicaragua in its Memorial on the Merits submitted in the present case states that the principle prohibiting the use of force embodied in Article 2, paragraph 4, of the Charter of the United Nations "has come to be recognized as jw a1gms". The United States, in its Counter-Memorial on the questions of jurisdiction and admissibility, found it material to quote rhe views of scholars that this principle is a "universal norm", a "universal international law", a "universally recognized principle of international law", and a "principle ofjw cogenJ".' 1986 ICJ Rep at 100-1, para 190. 92 President Singh characterized the Court's decision as a contribution to 'emphasizing that the principle of non-use of force belongs to the realm of jw cogens, and is the very cornerstone of the human effon to promote peace in a world tom by strife'. Ibid at 153. Judge Sette-Camara assened: 'The non-use of force as well as nonintervention-the latter as a corollary of equality of States and self-determination--are not only cardinal principles of customary international law but could in addition be recognized as peremptory rules of customary international law which impose obligations on aU States'. Ibid at 199. See also Christenson, above n 49. The jw cogens status of the two norms is defended in Cassese, above n 90 at 141 and 147-8.

Sources of International Law



Oxford Journal of Legal Studies

VOL. 16

interpretation to justify the conclusion that the decision exemplifies the doctrine of obligations omnium in this respect as well.

III. Indetenninacy A. The Problem in General One of Weil's two central objections to relative normativity is that it renders the international legal process increasingly indeterminate, thereby seriously damaging its capacity to perform its functions: A system builder by vocation, the jurist cannot dispense with a minimum of conceptual scaffolding. It is impossible, therefore, for him not to feel disturbed by a development that-whatever its merits from other viewpoints-subjects normativity to graduations of strength while at the same time extending its scope ratione personae beyond all discernible bounds ... To succumb to the heady enticements of oversubtlety and loose thinking is to risk launching the normative system of international law on an inexorable drift towards the relative and the random. It is one thing for the sociologist to note down and allow for the infinite gradations of social phenomena. It is quite another thing for his example to be followed by the man of law, to whom a simplifying rigor is essential. 91

This wide-ranging objection raises the more specific question of whether the natural law tradition furnishes a principled basis for the determination of the existence and content of customary obligations omnium. The aim of this section is to suggest an affirmative answer to this question. Before embarking on this, a number of preliminary points should be registered. First, the problem of indeterminacy is partly amenable to an institutional solution. As Wei! concedes/ 4 the problem would be alleviated if the World Court asserted an activist role in determining customary norms on the basis of considerations of world public order, eg in the applicability of the jus cogens concept in concrete cases. 95 It is just such a role that the Court asserts in Nicaragua. 96 Second, it is common currency, at least since the time of Legal Realists like Karl Uewellyn, that the invocation of value considerations in the process of adjudication can actually enhance determinacy by making explicit, and reflectively articulating, the genuine reasons on which decisions are based. In abstraction from this teleological context, formal rules are susceptible to many more rival and conflicting interpretations. To this extent, self-consciously value-based adjudication can enhance, rather than 93 Weil, above n 2 at 40-1. •• Ibid at 427. 95 This role is supponed by Article 66 of the Vienna Convention on the Law of Treaties. Nor should it be thought that courts are the only acton relevant in effecting an instirutional diminution of indeterminacy. Similar results can be achieved through the activities of states, intellllltional organizations, non-governmental groups, and individuals, see T. M. Franck, 1M Power of ugir:imacy Amophy 357 at 373-4. ll< Dworkin, above n 123 at 257: 'The constraint fit imposes on substance ... is ... the constraint of one type of political conviction [ic integrity] on another in the overall judgment which interpretation makes a political record the best it can be overall, everything taken into account.' "' Ibid at 246-7. " 6 Ibid at 257.

Sources of International Law



Oxford Journal of Legal Studies

VOL. 16

and opinio juris. Part of the reason why we can tolerate the poor fit of the norms prohibiting the use of force and intervention with general state practice is that the responsiveness of the dimension of fit to background substantive ethical considerations extends to our theory of the categories of data an interpretation must fit, the relationship between them and their relative weight in determining satisfactoriness of fit. In this regard, Nicaragua makes four main assumptions about opinio jun's: (a) that it is an independent ingredient in the formation of custom and not merely a nonnative attitude to be inferred, inductively, from general state practice; (b) that it may be derived from norms enshrined in widely accepted treaties or resolutions of international organizations; (c) that it can, in appropriate cases, provide a sufficient basis for the derivation of a norm despite the absence of consistency with general state practice; and, (d) that the scope of the resultant customary norm may be universal and therefore binding on states that have not expressed the requisite opinio juris or, indeed, that have persistently opposed it. Consider an objection to this line of thought. The original criticism of the relativist trend was that it was productive of indeterminacy. The resort to Dworkin's interpretative concept of law, far from allaying this concern, merely reinforces it. The interplay between fit and substance, on which the sliding scale conception of custom depends, has the effect of obliterating the fundamental distinction between 'discovering' and 'inventing' the law. This was just the distinction that the dimension of fit was supposed to secure by imposing a minimum threshold. The responsiveness of fit to background normative considerations entails that no objective threshold exists. Fit becomes redundant, it is always tailored to substance; construction crowds out interpretation. Thus, the requirement of conformity with general state practice is not a genuine constraint on the interpretative process. From the perspective of Dworkin's jurisprudence, the reply to this kind of objection is a repudiation of the simplistic distinction between 'discovering' and 'inventing' the law that it presupposes. 137 The dimension of fit, though con' ditioned by substantive considerations, does impose a real constraint on the overall interpretative judgement: Different judges will set this threshold differently. But anyone who accepts law as integrity must accept that the actual political history of his community will sometimes check his other political convictions in his overall interpretive judgement. If he does not-if his threshold of fit is wholly derivative from and adjustable to his convictions of justice, so that the latter automatically provide an eligible interpretation-then he cannot claim in good faith to be interpreting his legal practice at all. 138 The idea that the raw data impose a constraint on interpretation is retained, but the character of the constraint is not that of an 'objective', theory-independent datum external to the interpretative process that competing interpretations m Ibid at 225, 228 and 234. Ibid at 255; see also 236-7.


Sources of International Law SPRING 1996

Communitarian Values and the Nicaragua Case

235 115

must confront. 139 Instead, this constraint (hence also the distinction between interpretation and invention) is conceived as internal to an essentially holistic interpretative method: 'Both major types of convictions any interpreter has ... are internal to his overall scheme of beliefs and attitudes; neither type is independent of that scheme in some way that the other is not' . 140 The constraint of fit with the raw data, expressing 'the structural constraint of different kinds of principle within a system of principle', 141 operates to limit the role that other substantive considerations can play in determining the interpretative outcome. Thus, the determinacy of interpretation is emergent upon the tension among, and the process of mutual adjustment between, the different convictions of fit and substance the interpreter accepts: 'Whether any interpreter's convictions actually check one another, as they must if he is genuinely interpreting at all, depends on the complexity and t.~e structure of his pertinent opinions as a whole' . 142 The interplay between convictions of fit and substance notwithstanding, a genuine distinction between interpretation and invention will result provided that t..hey are sufficiently independent of each other to enable the former to impose a nonnative 'drag' on the latter. 143 Opponents of reiative normativity such as Wei! thus hav'! the harder task of showing that the sliding scale conception of custom does not articulate a sufficiently complex relation between fit and substance to produce the requisite tension in any particular case. But, contra Dworkin, it is precisely the holistic nature of interpretation, and in particular the interplay between fit and substance, that explains why there is not always a uniquely correct interpretation in each case. For, once we admit that, eg the normative consequences of general state practice and opinio juris can only be determined through the mediation of an interpretative process involving a balar.cing of diverse criteria of assessment that express incommensurable values, then the idea that there is always one right answer in every case begins to lose what grip it had on us. 144 In this way, we can eschew the dogmatism of the 'single right answer' view, while simultaneously exorcising the spectre of radical indeterminacy conjured up by positivists such as Wei!.

IV. Anti-Pluralism My response to the indeterminacy objection turned on the possibility of understanding the process of deriving and defining customary obligations omnium 119 This would be to entenain the empiricist illusion that cne can break out of the 'hermeneutical circle' by appealing to a 'unit of information which is not the deliverance of a judgment, which has by definition no clement in it of reading or interpretation, which is a bruie datum'. C. Taylor, 'Interpretation and the Sciences of Man', in Philosophy and U.t Human Scinu:ts (1985) ~t 19. It would be interesting to speculate on the possible connections between the classical conception of custom advocated by Weil-with the role it accords to the 'material' element of general state practice as the foundational building-block of custom-and broader modernist -epistemological notions such as the empiricist idea that the 'brute data' of experience form the bas1s of all knowledge. 140 Dworkin, above n 123 at 235. See also R. M. Dworkin, A Matter of Principk (1985) at 168. 1" Dworkin, above n 123 at 257. "' Ibid at 237, see also ibid at 239. 143 Dworkin, above n 140 at 169-70. 104 Finnis, above n 133 at 371---6. For a detailed survey of issues of indeterminacy as they arise in Dworkin's legal theory, see B. Bix, Law, Languag•, and Legal /ndettnninacy ( 1993) ch 4.

Sources of International Law



Oxford Journal of Legal Studies

VOL. 16

as one of constructive interpretation. But now one can readily imagine a further objection being. raised. It might be argued that the interpretative account is impotent to allay the concern about indeterminacy because it rests on the mistaken assumption that we can make sense, and not simply as an ideal unconnected with the realities of world politics, of the notion of an international society that is characterized by a deep and wide-ranging consensus on values of world public order. It is here that the first general criticism of relative normativity I claimed to discern in Weil's article-that it generates a degree of indeterminacy that is inimical to the operation of the rule of law-dovetails with the second criticism, that it is a disturbing violation of the inherently pluralistic nature of international society. It is only to be expected that relativistic doctrines will be indeterminate if there are no universally accepted criteria in terms of which the value judgements they require may be assessed. From this it is evident that the anti-pluralism charge is the more fundamental of Weil's two objections, since it explains why in the last resort any appeal to values in international law processes is inevitably indeterminate.

A. Two Conceptions of International Society The plausibility of Weil's anti-pluralism charge, and the way in which he presses it, turns mainly on his adoption of a 'statist' conception of international society. This is aptly conveyed by his reference to 'the traditional society made up of juxtaposed egoisms' . 145 On this conception, international society is a heterogeneous association of 'sovereign and equal states' pursuing their particular, often conflicting, interests. States form the irreducible units of the international community and, given the absence of a system of organic representation, the idea of such a community is nothing other than the sum total of these states. In Weil's tellingly reductive slogan, 'the international community means states' . 146 Being motivated by its particular and self-interested concerns, a state's commitment to the international normative system is purely instrumental. It is premised on the supposed capacity of the system to facilitate the attainment of a state's interests and goals by furnishing a stable global environment and a framework for inter-state co-operation. Ultimately, international law-and the rights and obligations it generates-is underwritten by the contingent outcome of states' prudential or self-interested calculations. This conception of international society naturally fits with a voluntaristic analysis of legal norms, ie the son of analysis classically formulated by the Permanent Court of International Justice in the Lotus case and cited with unqualified approval by Weil: 'The rules of law binding upon States ... emanate from their own free will' . 147 For if, from the legal point of view, international society is fundamentally a collocation of selfregarding states-states not ex ante characterized by a shared aspiration toward 145 146 141

Wei!, above n 2 at 423. See also ibid at 431. Ibid at 426. The SS 'Locus' (Fr v Turk), 1927 PC!J (ser A) No I 0 at 18 (7 Sept}. See Weil, above n 2 at 420.


Sources of International Law SPRING 1996

Communitarian Values and the Nicaragua Case


the realization of certain communal value:s-then binding norms can only viably be thought of as precarious constructions out of the co-ordination of disparate state volitions. By contrast, the trend towards relative normativity is best reconstructed as presupposing a very different-'communitarian'--conception of international society. This denies the priority of the state over international society. It affirms, instead, that it is only as members of the community of humankind as a whole-a community whose self-understanding is integrally oriented in part by the acknowledgement of shared values--that its components (be they states, peoples, organizations or individuals) can understand their own identities. This ideal-involving conception of the international society is formally analogous to has been termed a 'constitutive' conception of community. 148 The members of such a community are conceived as essentially members thereof, united ultimately by shared aspirations of world public ordt>r that are definitive of their identities and hence are not merely the emanations of a normatively unconstrained will. In the international case, what underlies these aspirations is a sense of common humanity and of the conditions of human dignity and well-being. Membership of this community and subjection to at least its basic norms cannot be understood as an optional matter hinging on anterior expressions of state volition. In delineating the nature of the international community the relativist trend reveals the limitations of the concept of state will as an explanation of the source of legal obligation. 149 Thus, customary obligations omnium and the peremptory norms of jus cogens encapsulate the fundamental aspects of the antecedent commitment to world public order that undergirds the idea of an international community. Derogation from them, whether through agreement inter partes or unilateral action, involves an abnegation of a state's identity as a member of that community. To the extent that fundamental values of world public order provide the basis for international norms that are opposable even against states that have not consented to them, or that have expressly repudiated them, the international community may be thought of as incorporating certain 'constitutional' elements. This is compatible with the idea that, at a sub-constitutional level, consent is an 148 '[T]o say that members of a society are bound by u sense of community is not simply to say that a great many of them profess communitarian sentiments and pursue communitarian aims, but rather than they conceive their identity-the subject and not just the object of their feelings and aspirations-as defined to some extent by the community of which they are a part.' M. J. Sandel, Liberalism and che Limiu of Jwciu (1982) at 150. For recent auemprs to develop a more communitarian account of international sodety, see H. MOsler, 'International Legal Community' (1984) 7 Et~cydopaedia of Public Incemational Law 309 at 311-12; M.S. McDougal, W. M. Roisman and A. R. Willard, 'The World Community: A Planetary Social Process', 21 UC Davis LR 807 (1988); P. Allott, Eunomia: New Order for a New World (1990); F. R. Tos6n, 'Tho Kantian Theory of International Law', 92 Columbia LR 53 (1992); Tomuschat, above n 101 ar chi. Sec also Our G/Qbal Neighbourhood: The Report ojche Commission on Global Go-vernance (1995) at ch 2. For some elaboration of the implications of Dworkin's theory of 'law as integrity' in the international sphere, and in particular the idea that obligations are incurred as a result of membership of the international community, see T. M. Franck, 'Legitimacy in the International System', 82 Ameriean]IL 705 at 735-59 (1988) and Franck, above n 95 at chs 10-12. For an attempt to apply the theory of 'law as integrity' to human rights law, see K. T. Jackson, 'Global Rights and Regional Jurisprudence' (1993) 12 Law and Phws~hy 157. As this footnote amply demonstrates, my characterization of the 'communitarian' concept of international society is meant to be compatible with a large variety of conflicting specifications of that concept. In particular, it is intended to accommodate many of tho theori., that style thomselves as 'liberal'. 149 Seo also Tomuschat, ahovo n I 0 I at 210-11.

Sources of International Law



Oxford Journal of Legal Studies

VOL. 16

important element in the generation of international law. But consent has this role only in virtue of the existence of constitutional and non-consent based norms such as that of pacta sunt servanda. 150 And that norm, in turn, is conditioned by other norms of constitutional standing so that, for example, a treaty in violation of a jus cogens norm will not be regarded as legally valid. 151 At the heart of Weil's disquiet with relative normativity is a deep and widely shared scepticism about the communitarian notion of society it presupposes. For him, the brute fact that 'the international scene today is still made up of the juxtaposition of equally sovereign states, seeking irrespective of their differences, to ensure their peaceful co-existence and co-operation', 152 precludes the attribution of any substance to the communitarian ideal. It is, instead, merely a theoretical construct which does not 'correspond to any real transformation in international relations'. 153 If the idea of an international community is a chimera, what its invocation validates is a 'de facto oligarchy' that is fundamentally at odds with the pluralism of international society: ... as the international community still remains an imprecise entity, the normative power nominally vested in it is in fact entrusted to a directorate of this community, a de facto oligarchy. There is a danger of the implantation in international society of a legislative power enabling certain states-the most powerful or numerous-to promulgate norms that will be imposed on others . . . The consequences of such an upheaval are all too obvious. The sovereign equality of states is in danger of becoming an empty catch phrase for now some states are more equal than others. Those privileged to partake of that legi~lative power are in a position to make sure that their own hierarchy of values prevails and to arrogate the right of requiring others to observe it. In this way the concepts of 'legal conscience' and 'legal community' may become code words, lending themselves to all kinds of manipulation, under whose cloak certain states may strive to implant an ideological system of law that would be a negation of the inherent pluralism of international society. 154

On the foregoing analysis, Weil's claim that the relativist trends are essentially anti-pluralistic in their outcomes implicates a strongly statist conception of 150 See MOsler, above n 148 at 311-12; Franck, above n 148 at 756-7; Franck, above n 95 at 187; and Tomuschat, above n I 0 I at ch I. "' Vienna Convention on the Law of Treaties, An 26. "' Wei!, kbove n 2 at 442. 153 Ibid at 441. 154 Ibid. Punuing a related line cf !bought, Charney has argued !hat the discounting of state practice involved in the Nicaragua approach to custom threatens to disconnect customary law from the reality of international relations, !hereby risking 'the effectiveness and legitimacy of customary international law, not only with respect to !he individual rules, but ultimately wilh respect to the system as a whole'. Charney, above n 55 at 24. Note, however, that the full force of this criticism depends upon Charney's interptetation of the Nicart~gua approach to custom as entailing that 'customary international law will be found if a rule is placed within a widely adopted treaty and resolutions of the United Nations or regional organizations so long as state practice predicated upon a contrary norm is absent'. Ibid at 22, But this crude criterion is quite different from the complex process of constructive interpretation that I argued in section III could be seen as underlying the NU:aragua Court's approach to the formation of customary iinemational law. On the analysis offered in that section, !he interpretation of the Nicaragua judgment advanced by Charney is flawed because it remains entrapped within the orbit of a positivistic understanding of custom, one !hat seeks to determine customary norms without resort to substantive considerations of world public order but by reference to some such value-free notion as, eg, enacunent in a widely accepted international instrument.


Sources of International Law SPRING 1996

Communitarian Values and the Nicaragua Case


international society. Mediating the conflict between the statist and communitarian conceptions is a central problem in the theory of international law, and not one that can be resolved here. 155 However, in what follows I present a line of argument in favour of the communitarian view that picks up on the dialectic I have been pursuing between Weil's article and the Nicaragua case. Again, our touchstone is the functionalist criterion settled on earlier. We need to ask which conception of international society best secures the prospects for international co-existence and co-operation. From this functionalist viewpoint, the case for relative normativity and its attendant communitarianism seems overwhelming. The communitarian conception of international society is not, as Wei! tries to depict it, a vague utopian imagining unconnected with the reality of international relations. Instead, it is an ethical-political imperative that is emergent upon a basic datum of modern international life: the ongoing process of increased interdependence among states and their citizens, and the consequent 'global' character of many of the most serious problems that confront human beings. 156 These processes necessitate the establishment and elaboration of universal norms of obligation that constrain the activities of all states, since many vital world order objectives cannot be secured in the absence of norms imposing a requirement of compliance that would be binding even on non-consenting or recalcitrant states. 157 And central among these world order objectives is that of co-:existence, an objective that assumes even greater prominence in the wake of technological advances that have made possible the eradication of the human species in a nuclear confl.agration. 158 In this light, the World Court's derivation of customary norms outlawing the use of force and intervention in the Nicaragua case is a vital contribution to the realization of the minimum world order objective of peaceful co-existence. Relative norrnativity is revealed in that case as indispensable in articulating and securing the objective of co-existence. Should this objective require anything less by way of legal protection, its status as a grounding objective, and the functional character ofWeil's critique, are manifestly called into question. It is equally obvious, on the other hand, that were the positivistic method applied in that case, neither the norm against the use of force nor that prohibiting intervention would have been

"' Perhaps any such resolution would consist in part in a re-drawing of the contrast between the two conceptions, rendering it less stark, or entertaining the possibility of conceptions of international society th:lt are intermediate between the strictly statist and the ambitiously communitarian. For a discussion of Alfred Verdross's attempt to capture the truth in both conceptions, see B. Simma, 'The Contribution of Alfred Verdross to the Theory of International Law' (1995) 6 European JIL 33 at 40-1. 156 See, eg, V. Vereshchetin and R MOllerson, 'International Law in an Interdependent World', 28 Columbia J Transnational L 291 (1990). 157 For a compelling elaboration of this point, see Charney, above n 88 at 529-30. 158 'The most insistent problem of humankind remains that of establishing and maintaining a minimum order, in the sense of effective control over unauthorized violence and coercion, which might both contribute toward human survival and promote an optimum order in maximization of all values.' M. S. McDougal and W. M. Reisman, 'International Law in Policy-Oriented Perspective', in R. Macdonald and D. Johnston (eds), above n 23 at 109.

Sources of International Law



Oxford Journal of Legal Studies

VOL. 16

applicable. m To this extent, Wei! seems to fall foul of the maxim that he who wills the end also wills the means. If he acknowledges co-existence as a grounding objective of the international normative system, then he cannot legitimately be indifferent to the fact that it is most effec:tively secured through mechanisms afforded by the relativist trend. Appeals to neutrality are especially unavailing in averting this conclusion for, as Falk rightly urges, the international normative system should no more be neutral towards the objectives of world public order than a physician is to the aim of ensuring the health of his patients. 160 Weil's critique of relative normativity was, after all, an attempt to portray it as irremediably dysfunctional. In this context, one should recall that the importance of the putatively functional dimension ofWeil's analysis cannot be underestimated. It is meant to intercept the charge that he is simply concerned with the integrity of a theoretical construct the preservation of which is only precariously related to the ideals of world public order. It thereby connects his critique of relative normativity with the fundamental values which ground our commitment to a system of public international law. Nor can Wei! resuscitate the anti-pluralism objection by simply appealing to the idea of state sovereignty, if only because such a manoeuvre would be plainly question-begging. This is because the notion of state sovereignty is ambiguous between at least two rival conceptions, and each conception finds its natural place within the statist and the communitarian conceptions of society respectively. On an 'intra-legal' conception of that notion, sovereignty is conceived as a legal status conferred upon states by the international normative system in order to best achieve that system's goals. In one prominent formulation, it guarantees, inter alia, the inviolability of each state's 'territorial integrity and political independence' and safeguards to each state the right 'freely to choose and develop its political, social, economic and cultural systems'. 161 In invoking state sovereignty as an ideal that is undermined by the relativist trend, Weil clearly has in mind an 'extra-legal' conception of state sovere:ignty. On this view, sovereignty is not primarily a legal status but rather a kind of brute fact, or fundamental extralegal principle, that stands outside the normative system and conditions its functioning and hence its processes of norm formation and application. In particular, it leads to a voluntarist explanation of legal obligation. It implies that the subjection of a state to legal norms is illegitimate unless the state in question has consented to those norms or has had the opportunity to dissent from them and thereby escape their effects. To invoke international norms, on the basis of the importance of the values they reflect, against a state that does not accept those values is to fail to respect that state's sovereign equality. 159 It might be objected that the situation that arose in NiaJragua was quite exceptional, in that the Court was there precluded by the Vandenberg reservation to the United States' acceptance of Article 36(2) jurisdiction from applying the norms concerning use of force in the United Nations and Organization of American States Charten. But this objection neglects the vital practical importance of establishing a customary norm independent of a treaty norm which may be similar in content, see Meron, above n 50 at 3-1 0, 79-81. 160 Falln made, the Tribunal shall decide rr atq••o



Sources of International Law 'NON LIQUET' AND THE COMPLETENESS OF THE LAW 219

sporadic eruptions of disapproval of the established doctrine and practice of the completeness of the international legal system and the resulting prohibition of non liqtul. This being so, there would appear to be room for a re-examination of some of the questions pertinent to the issue. Is it inconsistent with the function of tribunals to express a view - negative, if necessary - on the adequacy of the law which it is their duty to administer? Highest municipal tribunals, whose subordination to the sovereignty of the existing law is uncontroverted, do it frequently and - on occasions - pungently. Their judgments have often constituted a direct invitation to a change in the law. It might be thought that if a tribunal, when laying down the law binding upon the parties, at the same time exhorts them to show readiness to abate their insistence on legal rights by reference to moral duty and political reason, it is adding to rather than detracting from the legally binding force of its pronouncement. It might be thought that although any such expression of opinion may weaken the moral authority of the particular legal rule which it administers, it adds to the authority of the law as the body of rules capable of development and adjustment. It would also appear that recommendations, which are not binding, for modifications in the legal position may more usefully come from a tribunal which, in the process of arriving at its legal conclusions, has the opportunity- on the basis of the written and oral argument submitted by the parties -to make itself fully acquainted with the intricacies of the problem before it.l The fact that a Tribunal is bound to apply the law does not necessarily mean that it must apply it uncritically. A legal rule or principle is not in need of all the virtues of excellence in order to claim the right - including the moral right - to be applied. The boroc, ha,·ing r~gard to the general principles of international law, while re-;pectinp; the contractual obligations and the final decisions of international tribunals which are binding on the parties". !':o opinion i~ here expre~scd on the question as to whether the new formula has darifit'd matters. For the text of the first draft of the Con· vention see Coruultalit't Assembly, 7th Session, First Part (1055), vol. II, Doc. 356, p. 16. I Of this, an interesting example will be found in the award gi\'en in 1921 by Walter D. Hines, Arbitrator, concerning the ce~sion of l'tssrls a"d Tugs far Navigatio,. o,. 1/u Da"Nbt. After ha\·ing rendered his decision on the substanth·e issue before him, the Arbitrator said in his Conclusions: "Having disposed of the questions submitted for his determination, the Arbitrator now ,·entures to ex pres> two thoughts which are outside of his functions as Arbitrator, but which he re!(ards a< of creal importance to all the countri~ upon the Danube." He proceeded to elaborate these thoughts in some detail. /"ltr..alifi4J Arbitral AU'ards, I (1948), p. 10.


Sources of International Law 220


decisive consideration is that it is the rule or principle in force. But that fact does not mean that the Tribunal, by ignoring any reference to the shortcomings of the law or the possibility of its emendation by the voluntary action of the parties, must follow a path of aloofness which is apt to create the impression of ethical indifference or relativism. This is so in particular when we consider that in many cases the preponderance of legal merit- as between the successful and the defeated party - is inconsiderable and that the decision, even if unanimous, might well have gone the other way. Both in the international and the municipal sphere the position is seldom such that a clear legal right is opposed to a clear absence of legal right. As stated, the decision is brought about by the preponderance, however slight, of legal merit. A decision, final and authoritative, there must be; there must be no non l£quet. But that does not mean that there is a sacro-sanctity about it which precludes, in proper cases, an expression of opinion on the desirability of a voluntary modification of the binding decision. There may be cases in which a party may welcome a recommendation of this kind as making it more easy for it, having regard to its own public opinion or the possible objections of its Treasury, to adopt an attitude of neighbourliness, generosity and accommodation. It may not be necessary for such recommendation to be formally expressed in the operative part of the pronouncement. It may figure, with an efficacy which is sufficient for many practical purposes, in the reasoning of the Tribunal. No opprobrium can justifiably attach to the refusal of a Government to act upon any such recommendation, wherever and however expressed. A party which insists on its legal right owes no apology for or explanation of its attitude. It is the best judge of its moral duties. Also, it may rightly attach importance to the degree of persuasive power of the reasoning of any such recommendation and to the majority by which it has been formulated. On the other hand, as stated, circumstances may arise in which some such recommendation may be found useful by both parties and pave the way for a settlement which, being based on the full agreement of the parties, partakes of a finality transcending that of a legal judgment.



Sources of International Law



It has been thought useful to present in this essay, without expressing a preference for either of the opposing views, the considerations militating both in favour and against the propriety and justification of some such method of recommendation over and above a judicial or arbitral decision. They are intended as showing the propriety and justification of an examination of that question, which is intimately connected with the ever-recurrent question of the rationality of a system of compulsory jurisdiction of tribunals bound in every case to give a decision irrespective of the shortcomings and uncertainties of the existing law in a society in which ordinary legislative processes are conspicuous for their absence. Subject to the desirability of a renewed examination of this question, it does not appear that a case has been made out for casting doubt upon the principle of the completeness of the international legal order and its corollary, namely, the prohibition of non liqr~et. Those principles lend themselves to the somewhat easy reproach of formalism and lack of realism. It may be wise not to attribute undue importance to that particular emanation of the jurisprudential tendency which describes itself as realistic. For those principles represent existing and, essentially, sound law. Neither is their force weakened on account of their possible or occasional inconsistency with a rational solution of a particular dispute in conformity with moral justice. The moral justice of the law - or of a particular law - is not necessarily determined by its approximation to moral justice in an individual case. At the same time, while the limits of the function of courts to secure results which are ethically, politically and socially desirable, as distinguished from their task to apply existing law, are narrowly drawn, this does not necessarily mean that the area within these limits is negligible. When properly ascertained and wisely observed, these limits may permit judicial or arbitral expression of opinion which might provide an accession of strength to the basic principle of the completeness of the law.






THE re-exploration of fundamental questions concerning the legal order is important, not merely for its own sake, but in fairness to the succession of generations through whom knowledge and understanding must be transmitted. Recent contributions to the problem of non liquet are essentially of this nature. One of the latest of these not only restates the case for regarding the rule prohibiting the declaration of a non liquet as 'a fully established principle both of jurisprudence and arbitral and judicial practice', but also opens new facets of particular importance in the present dynamic stage of international relations. For even though to some minds the non liquet issue may seem so minute that even its very existence is controverted, it may be that this minuteness indicates not triviality, but rather that we are here approaching the fundamental structure of the law. Even so, if the metaphor be not extravagant, general scientific concern with sub-atomic particles has accompanied the deeper penetrations of modern physics into the nature of matter. Even if we have been satisfied in the past to assume that international courts have the duty never to refuse to give a decision 'on the ground that the law is non-existent, controversial, or uncertain, or lacking in clarity', 2 the traumatic impact on the law of the changefulness of the age may require us to re-examine the assumptions and the instruments of thought to which we have become accustomed in approaching international legal problems. The non liquet probl~m is sometimes placed under a widely extended notion of non-justiciability. From the present standpoint it should certainly be examined apart. For while both problems bear closely upon the supposed insusceptibility of certain international disputes to settlement by law-to 'the rule of law' in a broad sense-they do so from different positions. Non-justiciability in the more precise sense is concerned with the overriding assertion of certain State interests even when they may be contra or at least extra legem. Non liquet comes into argument rather when applicable rules of appropriate content and precision are simply not available for adjusting the particular clash of interests. ' Professor J. Stone, 196o.

• Both the above quotations are from Lauterpacht, 'Some Observations on the Prohibition of Non Liquet and the Completeneu of the Legal Order', in Symboltu Verzijl (1958), p. 196, at pp. 198, 199. For the present writer's earlier treatment seep. 125, n. 2. For a suggested classification of such deficiencies see below, section VI.


Sources of International Law



The non liquet question, in the present view, inevitably draws one into controversies concerning the source of validity of international law, and the authority of international tribunals, and especially the International Court of Justice, to develop, adapt and create rules of law of new content.' Highly speculative questions of legal theory, as well as very technical legal questions, have become entangled in it. In the present writer's earlier treatment he gave reasons for believing that the issue cannot be conclusively resolved by technical legal arguments.• It was there submitted that the mere absence of cases in which courts have declared a non liquet cannot ground any safe conclusion that such a declaration is as a matter of law forbidden. It was also questioned whether (at least on the dominant positivist view) it was logically consistent to say, on the one hand, that the validity of rules of international law and the jurisdiction of international courts both depend upon State consent, and, on the other, that the possibility of a court requiring the parties' consent before applying rules of law newly created by a court to their disputes must on 'self-evident principle' be excluded. 3 The opinion was there also added that we cannot reduce the problem to a technicality by regarding it, as the International Law Commission's Draft on Arbitral Procedure later 4 tended to do, as a mere matter of procedure. Judge Lauterpacht has pointed out that the Commission's inclusion of a draft article forbidding the declaration of a non liquet reflected, not a doubt as to this rule, but the view that 'a self-evident principle which is valid without saying so gains in effectiveness by being formally incorporated as part of codified law'.s Yet even granted that this is a correct interpretation of the view of the Commission members, it in no way disposes of the question already raised whether the principle is thus self-evident. Moreover, for related reasons, the present writer expressed the view that the non liquet problem can probably be fully posed for clear determination only in a legal order in which compulsory jurisdiction over future disputes is fairly 1 Siorat, L~ Problem~ d~s lacun~s m droit int~ationa/ (1959) (here cited as 'Siorat'), is therefore profoundly right in openly treating the problem of non liquet as but n part of a study of judicial competence and methods for the creation and development of international law. (See esp, pp. 273-463.) Despite some dissents on M. Siorat's particular conclusions, therefore, the present writer thinks that this work may earn a place, if not a stature, in the doctn'ne of the international judicial process, reminiscent of that of Fran~ois Geny's Mlthodc d'int"Pretation (1899), and Science et teclmique . .. (1913-24, 4 vols.), in that of the municipal judicial process. It is, however, regrettable that on the precise issues with which the present article is concerned, M. Siorat has not apparently taken into account either Sir Hersch Lauterpacht's important study in Symbol~ V~zijl (1958), nor the present writer's Legal Control! of Int~ational Conflict (1954). And see below, section VI. 2 Stone, Legal Control! of lnt~ational Conflict (1954), 153-64, esp. pp. 161-4. 3 But see Lauterpacht's interpretation, op. cit., p. 196, of the view of the members of the International Law Conunission, and below, p. 1:z8. • i.e. after the manuscript of the above volume went to press. ' Op. cit., p. 196. He makes a similar point as to Judgment No. t t (August t:z, 1953) o£ the International Labour Organisation Administrative Tribunal in the Desranges case, 35 I.L.O., Bull~tin Officiel, No. 7, p. 212.

Sources of International Law



generally accepted. For obviously in merely ad hoc submissions the disputants will normally have explored the legal rules available for application to the case, before deciding to submit. And most other cases before the International Court have arisen from the terms of treaties, where submission to the Court's interpretation may be argued to imply a consent that the Court find some meaning of the terms in any event.• In his comprehensive reassertion of the supposed rule prohibiting the declaration of a non l~t, Sir Hersch Lauterpacht is concerned (as the above quotations indicate) to base himself 'on practically universal arbitral and judicial practice', that is, on 'positive' international law. It was, he urges, a customary rule of international law based on firmly established uniform practice even before the adoption of Article 38 of the Statute of the Court. The reference to 'the general principles of law recognised by civilised nations' in Article 38 (I) (c) incorporated into international law 'the principle of the completeness of the legal order' as one of these 'general principles'. The learned writer seeks therefore to concentrate scholarly attention on the supposed technical legal foundation of the supposed rule against non liquet, within the existing positive legal order of international law. The interest which is attached to this important reformulation is heightened by the appearance in 1959 of a substantial monograph by Lucien Siorat on Le Probleme des lacunes en droit international, which purports to reach on the basis of practice conclusions strikingly contradicting in some respects those of Sir Hersch Lauterpacht. One of the present writer's main points has been precisely that this is not a question which can in strictness be decided in such terms, and that finally the main positions in this debate rest on meta-legal premises. Sir Hersch believes, however, that he has sufficiently based the rule excluding 11Qn liquet on 'positive' international law to render irrelevant the question how far the supporters of this rule have in the past argued from 'meta-legal or other inarticulate major premisses', concerning, for example, the nature and functions of international law, or of law generally, or concerning the judicial function.~ Though he reasserts in his latest contribution the prin' An argument not of course necessarily valid. See, for example, to the contrary, Judge Max Huber, dissenting in the Upp.r Siusia (Minority Sc:hoou) case, P.C.I.J., Series A, No. 15, pp. s.-ss. And see below, at pp. 141 et seq. • Among recent writers Siorat, op. cit., above, p. zzs, n. 1, has provided an interesting instance of a theory purporting explicitly to reject any a pri01ri or meta-legal base and to proceed only on empirical and positivist study of practice. The interest is twofold. First, despite this explicit rejection, an important part of his arguments still rests on a distinction which he draws between the riglemmtation of the international legal order, namely, '!'ensemble des r~gles coutwnil:res et conventionnelles exiatant l un moment donn4!'; and, on the other hand, 'le droit' of this order (see, for example, pp. 26, 157, 246): 'Mais il faut bien voir l quoi eat imputable cette d4!faillance de l'ordre juridique: ce n'est pas au droit international, mais aux r~glea de droit international.' Nor ia thia contrast wholly a~butable to the fact, accepted also by the present writer, that any legal order embraces not merely propositions of law but also the traditional techniques and ideals through which these precepts and principles are· applied to particular problenu. For, while



Sources of International Law



ciple of the necessary completeness of any legal system, he believes that he has demonstrated this as a 'positive principle' concluding the present issue. 1 Another main point of the present writer's analysis. has been that, whatever might be the correct answer on the technical legal level, the main importance of the non liquet debate concerned the law-creative as distinct from the merely law-applying competence of international courts. In particular, it concerns the question, What is a wise disposition of this competence in the existing conditions of the world? It is the present view that the fact that such a competence is generally conceded to municipal courts cannot conclude the matter on the international level. For the municipal judicial authority derives from, and its work is generally subject to correction by, an appropriate legislature capable of making law without the consent of the subjects. There is no international legislature capable, independently of the consent of the States concerned, either of conferring law-creative authority upon courts, of correcting the pronouncements of the courts as to the applicable law, or of itself making a legislative adjustment of the rights and duties of States generally. The nearest that is reached municipally to the international law position is the power of courts to strike down executive or legislative action as unconstitutional, when the constitution-amending process makes it difficult to correct judicial errors. And it is well to remember that for this situation the American doctrine of judicial review of legislation is not the universal solution of all States. This point also Sir Hersch has sought to meet in his recent paper, by acknowledging that there may be a power and even a duty of international courts, after deciding cases (including those involving the non liquet issue), to declare that the rule of law which they have applied is for some reason unsuitable and ought to be the subject of 'a voluntary modification of the binding decision'. On both these heads, that of the supposed 'positive' legal basis of the supposed rule excluding non liquet, and that of the wisdom and expediency of such a rule for the quasi-legislative adjustment of the legal rights and duties of States, Sir Hersch's important positions merit most careful study. acknowledging that Ia rlglementation of this order provides no rules for the judge as to the declaration of non liquet (see pp. 194, 198), M. Siorat feels nble to draw such rules from 'In fonction propre du juge', and from 'les limites d'une compt!tence judiciaire par nature', under 'le droit international'. (And seep. 2.41, where the implication seems to be that the judgment in the Haya de Ia To"e case is an illustration of these 'natural' limits, on which see below, p. 142., n. 3· Second, in so far as he thus depends for his baaic categorization of cases (see below, section VI) on an analysis par natllre, his theory gives the appearance of an unusual instance of a 'narurol law' approach which leads to the conclusion that in at leaat one category of 'silence' of the law, that of' insuffisance sociale', the tribunal is not only permitted to declare a non liquet but is obliged to do so. On the tenability of the categorization see below, pp. 144-5, n. 4· ' Of course, even if we assume the necessary completeness of a legal order the question always atill remains whether a particular order at its actual stage of development is a legal order in that full sense.

Sources of International Law



II. PosiTIVE LEGAL BASIS OF THE ExcLUSION OF NoN LIQUET Judge Lauterpacht is at pains, from the start, to distinguish the problem of jurisdiction of international courts, where the requirement of State consent is undeniable, from the problem of the applicable law, as to which his position in the non liquet controversy could negate any requirement of State consent. Formulating this negatively, Sir Hersch observes that 'the prohibition of non liquet does not mean that a court must not decline to give a decision on any ground. It only means that a court, otherwise endowed with jurisdiction, must not refuse to give a decision on the ground that the law is non-existent or controversial, or uncertain and lacking in clarity'. It is only when the refusal to give a decision, after the court has assumed jurisdiction, is based·on the absence or insufficiency of the applicable substantive law that the question of a non liquet may properly arise. 1 'The prohibition of non liquet', Sir Hersch contends, 'constitutes one of the most undisputably established rules of positive international law as evidenced by an uninterrupted continuity of international arbitral and judicial practice.' 2 He is careful to say that while this makes 'the rejection of non liquet appear as self-evident', it is not really so, since 'the development may well have gone the other way'.J While, on the one hand, Sir Hersch seems thus to renounce any claim to self-evidence of the rule of rejection, he still seems concerned to show that this rule can also be deduced from the nature of the legal order:~ He continues to "link the problem with the principle of the completeness of legal orders, saying that the prohibition of non liquet under international law is the corollary of the completeness of the international legal order, 5 and that 'the principle affirming the completeness of the legal order ... is the positive formulation of the prohibition of non liquet'. 6 How far the assertion of this relation may be said to be based on positive practice, how far it must be regarded as based on meta-legal assumptions concerning the international legal order and legal orders generally, is obviously of some concern to the learned writer. The principle of completeness means, from this angle, that 'in regard to contentious proceedings, a legal tribunal is-and must always be-in the position to determine whether a claim is justified in law and whether judgment must therefore be given for the plaintiff or the defendant'. 7 In his Op. cit., p. 199· • p. zoo. p. zo6. The preaent writer would add that the course of practice relied upon may be interpreted u rather leas in its import than the above words auggest. Siorat thinka it baa 'gone the other way' in material respects. See below, aection VI. The differencea between these interpretations of the course of the practice ia crucial to the non liqrut iasue, and will be examined below, sections V and VI. • On p. zo8 he otill refers to this related 'completeness' principle u 'a fundamental juris6 p. 199. prudential principle'. s p. ZZI. 7 With respect to advisory proceedings, Sir Hersch seems to acknowledge the difficulties, 1




Sources of International Law



opinion, Article 38 (1) (c) of the Statute of the Court 'elevated "the general principles of law recognised by civilis(!d States" to the authority of one of the principal and formal sources of international law' . 1 Furthermore, 'in so much as the principle of the completeness of the legal order is in itself a general principle of law, it became on that account part of the law henceforth to be applied by the Court'. z This general principle, he thinks, 'has asserted itself through judicial and arbitral effort more active and more fertile than reliance upon the principle that, in the absence of a restraining rule of law, recourse must be had to the maxim that what is not expressly prohibited is permitted'. 3 The latter maxim or principle, Sir Hersch asserts, is 'of controversial doctrinal value and of limited practical utility'. 4 In this, and in doubt whether this supposed maxim is of legal, logical or ontological force, the present writer has already joined Sir Hersch. Judge Lauterpacht, then, seems not to consider this principle of the prohibition of non liquet as an a priori axiom of law;s and he appears, therefore, to set himself apart from such views as those of Kelsen, Radbruch, Cossio and Garcia Maynez. He believes rather that this principle, and the related principle of compl•~teness, are customary rules of international law ;6 and he seeks to prove the correctness of his belief by showing that international tribunals faced with the possibility of declaring a non liquet have always refrained from doing so. 7 While he admits that there might be some exceptions, he thinks these are negligible. 8 The paucity of cases in which a declaration of non liquet was sought by a party or clearly admitting that in such proceedings 'the problems assume a different complexion'. But he does not think that this need be further discussed, save by suggesting that 'the prohibition of non liquet applies there to the full extent in the sense that, as a rule, every question forming the subjectmatter of the request for an opinion may be couched in the form of a claim, for instance, in proceedings for a declaratory judgment' (p. 199, n . 2). This, with respect, scarcely answers the main point. By its own terms ('as a rule') some cases will not be explained by it. It is also not easy to see why proceedings for a declaratory judgment must take an adversary form, as distinct, for example, from a joint request in the nature ofjiniurn regundOTUm. And finally, even if such a claim can be couched in adversary form, we often cannot be sure, until the claim is actUally instituted, who is the Applicant (or Claimant). Yet the results of the adversary principle depend on who is the Claimant. Despite the learned writer's view, therefore, there is certainly some need for some further 'discussion' of advisory opinions. 1 p. 205. 4 p. 208. • Ibid. ' pp. 207 et seq. ' So cf. Siorat, pp. 292 etaeq. M. Siorat explidtly rejects the possibility of any a priori demonstration of any rules either requiring, forbidding or permitting a n011liquet. He rejects with particular emphasis the residual negative principle that everything that is not prohibited is permitted (see pp. 199etseq., 292). Cf. the similar view ofProfeasorCouzinet in the Preface, at p. 1 I. Though M. Siorat does not refer to Sir Hersch's 1958 views, he purports to follow a similar method in demonstrating what is the rule as to declaration of non liquet, namely, an empirical method of inquiry into the decisions of international tribunals. As will be noted below, his similar method, applied to similar data, yielcb resulu contradictory in important respects to Sir Hersch's (see below, section VI). As to the concealed extra-positivist reference in M. Siorat's use of the notion of 'competence judiciare par nature', see above, pp. r26-7, n. 2. 1 pp. 201-46 Lauterpacht, op. cit., p. 196. • p. 199. B 851B


Sources of International Law 130


made by a court is common ground in this controversy. What is not common, and what the article under discussion has scarcely advanced, is the question, What binding rule for future decision can be drawn from this course of practice? The multiplication of precedents which is urged as implying the exclusion of non h'quet may perhaps conclude the question whether in appropriate circumstances the court is legally obliged to declare a non liquet; though even here reasons have been given for doubting whether 'undisputably' the precedents carry us even so far. But however this last question be, it must be observed even at this point that the precedents certainly cannot conclude the question whether the court is at liberty (or has a discretion) either to declare a non liquet or to proceed to decision. 1 Although Judge Lauterpacht regards the international legal order as 'complete', he nevertheless recognizes the problems of 'absence of law' in relation to it: and of gaps or lacunae in it, 3 arising from the absence of that degree of agreement of States to a rule which is 'a hallmark of a rule of positive international law'. Indeed, he thinks these phenomena are 'a typical occurrence' of international law. Such gaps are, in his view, not gaps in the international legal order, but only in 'the applicable substantive law'. 4 Lacunae may also be spoken of, rather improperly, he thinks, 'in the political and moral sense', that is where such rules as are agreed are morally questionable, politically reprehensible or obsolete, or otherwise inadequate for the situation to be regulated. 5 The fact that international tribunals have not shown a disposition to act upon the view that there is in such cases a gap calling for a pronouncement of a non liquet, indicates for Sir Hersch how firmly established must be the principles of completeness of the legal system and the prohibition of non liquet.



Sir Hersch's view of the role which an international judge must attribute to considerations of justice or adequacy of the rules in deciding what rule to apply in a given case has, at first sight, great attractiveness. In the first place, he says, 'the question whether the existing law is satisfactory from the point of view of taking into account political and economic interests in accordance with justice and reason has nothing to do with its completeness. When it is said that the law is complet(:, the intention is not to assert that the law is excellent and above criticism.' 6 What the principle of the completeness of the law means is only that 'once the parties have agreed to 1 These criticisms are mentioned here for perspective; they will be more fully developed later 2 p. I99· 1 p. 204. 4 p. 199. (see below, pp. 139-40). . 6 p. 200. 5 See pp. 198, 202, 204- And cf. below, section VI.



Sources of International Law



entrust a tribunal with jurisdiction, they cannot avoid their obligation by contending that the dispute is not a legal dispute in the sense that there are no legal rules by reference to which it can be solved, and that the tribunal cannot decline to give a decision on the ground of the absence of an applicable rule of law' . 1 The learned writer believes that the judicial duty thus to apply the law in its postulated completeness, even when not 'in accordance with justice and reason', may require courts to arrive at decisions which are ethically, politically or socially unsatisfactory.z This leads him to a thesis which, as we shall later show, offers hope of a critical break-through of thought in this whole area. 3 It is that after a court has given judgment based on law which it recognizes as unsatisfactory, it is proper and may even be desirable for the court to add, following the operative part of its judgment, a recommendation as to what the law in the given case ought to be (or rather what modification the law ought to receive). 'A decision, final and authoritative, there must be; there must be no non liquet. But that does not mean that there is a sacrosanctity about it which precludes, in proper cases, an expression of opinion on the desirability of a voluntary modification of the binding decision.'• These propositions assume that in so far as the legal system is complete, the content of the rule of law applicable to the particular case can be ascertained by the court without judicial inquiries into its ethical, political or social satisfactoriness. For in so far as such inquiries are involved in giving content to the rule, especially in a non liquet situation, it can scarcely mean very much to say that the question whether the existing law is satisfactory 'has nothing to do with its completeness'. In so far as the court must exercise a creative choice in giving content to the rule postulated by the principle of completeness, the court's view of the satisfactoriness of the alternative possibilities must clearly have a great deal to do with it. We are here brought back to the point that the non liquet question raises basic issues not only of judicial competence but also of law-creative (or, in a broad sense, legislative) competence in the international community. 5





Once the problem of non liquet is envisaged (as the present writer believes it must be) not as a mere incident of judicial procedure but as a reflection of the undeveloped state of legislative organs in the international legal order, a more balanced view is possible of the postulated completeness of Ibid. • pp. 121, 198. s Cf. Siorat, cited above, pp. 126-7, n.


1 2.

See below, p. 153.

• p.


Sources of International Law 132


the international legal order as an approach to the human situation. For when a Kelsen, or a Lauterpacht, or other less careful expositors than these, offer us this notion as a compulsive one, sometimes as even inherent in any legal order, they appear to be talking about judicial competence. And this seems very plausible to us because we are already accustomed to the notion of judicial tribunals making decisions on disputes submitted to them by States. But when the adequacy of the content of existing law for a dispute is brought into focus by the non liquet controversy, quite a different aspect emerges. It is then seen that what is being urged by those who accept such programmes goes not merely to law-applying but, even more importantly, to law-creative competence of courts over States. And any thesis concerning the extension of legislative competence drags with it, as a test of its good sense, also the question of executive and enforcement competence. It drags with it also, of course, the question how much human competence for such heavy tasks is already in sight. On this level the problem is much wider than what is usually discussed under the caption of non liquet. The present writer has elsewhere tried to show, for example, that even within the apparently limited area of judicial interpretation of treaties, the traditional legal canons of interpretation cover over the widest indeterminacies, ambiguities and circuities, in the norms of judicial judgment. And where there is indeterminacy, ambiguity and circuity in the rules applied, there is law-creating power in the court which applies them. It was there suggested, rather tentatively, that we may have to attribute this covertness of creative judicial activities, not to conscious deceptiveness of tribunals, but to the wellnigh intolerable burden which the condition of legislative and executive powers in the international community forces on to judicial shoulders. 1 It is, indeed, central to the present writer's position that to prohibit non liquet entails the imposition upon the court of a duty to develop new rules limited only by the novelty and range of the matters coming before it for decision. 2 It is, we are convinced, not possible to escape the recognition that, in the debated area of decision where non liquet is a real issue, the court must either declare a non liquet or necessarily engage in the creation of law by a judicial act of choice between more or less equally available legal alternatives. And since Sir Hersch does not explicitly grant this recognition, it is important to inquire whether his analysis is such as to permit him to dispense with such recognition. At first blush the need for this recognition 1 See Stone, 'Fictional Elements in Treaty Interpretation', Sydney Law Rnnew, I (I 955), p. 3-44, esp. pp. 35~8. • So Siorat's recent study of the problem (cited above, p. 125, n. I, esp. at pp. J:ZJ-f public and private media arrangements addressed to an extraordinarily heterogeneous and modular world audience is engaged in this comprehensive pre- or sublawmaking function. Events that shape the attention focus of world audiences may include, for better or worse, the ter· rorists' propaganda of the deed on through to the solitary artistic creation of an Uncle 'Ibm's Cabin, a Guernica, or a Heldenleben. The struggle over the soi-disant New International Information Order, a euphemism for a program to consolidate official elite control over the content of transnational communications, indicates the awareness and ambition of the international politician. The international law· yer and scholar cannot afford to ign