law. Of importance among the early writers on international law who followed Grotius is the German scholar,Samu Pufendorf(1632-1694).In his De ure Natura Gentium (1672),Pufendorf espoused the view that natural law was the source or basis of international law.An individual whose influence rivaled that of Grotius for a considerable period of time was the Swiss diplomat,Emmerich de Vattel(1714-1767). His principal work,The Law of Nations(1758),a practical guide to international lav for diplomats,was widely cited and relied upon by governments well into the 19 century.See F.Ruddy,International Law in the Enlightenment(1975). While Pufendorf and Vattel advanced the view that natural law was the true source of international law,the English legal scholar,Richard Zouche (1590-1660), was one of the early positivists.Partisans of positivism looked to state practice as the source of inter natio al law,see ng the sis of this law in the conse of the states-its subjects.Both schools of thought found some support in Grotius'writings, because his theories about international law relied on natural law and on custom established by the practice of states.These two schools dominated the philosophical discourse about the nature of international law into the early decades of the 20th century. dually e as the leading to the acceptance of the e view that intern onal law as law depended upon the sovereigr consent of the states comprising the international community.The requisite consent had to be sought in the practice of states deemed by them to have the force of law. See infra 5 2-3. s 1-16.Historical milestones a number of eve nts or historical milestone mark the development ofmoder rna nal law.A these are the Peace Westphalia,the Congress of Vienna,the establishment of the League of Nations and the adoption of the charter of the United Nations. The Peace of Westphalia ended the Thirty Years'War (1618-1648)and established a treaty-based system or framework for peace and cooperation in Europe that endured provided alia,for the coexistence in certain parts of Europe of Catholicism and Protestantism thu planting early seeds of religious freedom in Europe.The foundations for multi-state diplomatic congresses and negotiations were laid at the conferences that produced the two basic treaties comprising the peace of westphalia.these agreements also oroclaimed the doctrine of pacta s sunt servanda(treaties are to be observed)- fundamental principle of international law -and established a machir nery for the settlement of disputes arising between the signatories The Final Act of the Congress of Vienna(1815)formally ended the Napoleonic Wars and fashioned a sophisticated multilateral system of political and economic cooperation in Europe.The major aspects of this system survived until the outbreak of the First World War. The adopted the first compre set of rules governing diplomatic protocol,it formally condemned the slave trade,and it established the principle of free and unimpeded navigation on international rivers traversing the region.The Congress laid the foundation for the recognition of the neutrality of Switzerland and its guarantee by the principal European powers. >
7 law. Of importance among the early writers on international law who followed Grotius is the German scholar, Samuel Pufendorf (1632-1694). In his De Jure Naturae Gentium (1672), Pufendorf espoused the view that natural law was the source or basis of international law. An individual whose influence rivaled that of Grotius for a considerable period of time was the Swiss diplomat, Emmerich de Vattel (1714-1767). His principal work, The Law of Nations (1758), a practical guide to international law for diplomats, was widely cited and relied upon by governments well into the 19th century. See F. Ruddy, International Law in the Enlightenment (1975). While Pufendorf and Vattel advanced the view that natural law was the true source of international law, the English legal scholar, Richard Zouche (1590-1660), was one of the early positivists. Partisans of positivism looked to state practice as the source of international law, seeking the basis of this law in the consent of the states-its subjects. Both schools of thought found some support in Grotius' writings, because his theories about international law relied on natural law and on custom established by the practice of states. These two schools dominated the philosophical discourse about the nature of international law into the early decades of the 20th century. Positivism gradually emerged as the dominant theory, leading to the acceptance of the view that international law as law depended upon the sovereign consent of the states comprising the international community. The requisite consent had to be sought in the practice of states deemed by them to have the force of law. See infra § 2-3. § 1-16. Historical milestones. A number of events or historical milestones mark the development of modern international law. Among these are the Peace of Westphalia, the Congress of Vienna, the establishment of the League of Nations and the adoption of the Charter of the United Nations. The Peace of Westphalia ended the Thirty Years' War (1618-1648) and established a treaty-based system or framework for peace and cooperation in Europe, that endured for more than a hundred years. It provided, inter alia, for the coexistence in certain parts of Europe of Catholicism and Protestantism, thus planting early seeds of religious freedom in Europe. The foundations for multi-state diplomatic congresses and negotiations were laid at the conferences that produced the two basic treaties comprising the Peace of Westphalia. These agreements also proclaimed the doctrine of pacta sunt servanda (treaties are to be observed)-a fundamental principle of international law-and established a machinery for the settlement of disputes arising between the signatories. The Final Act of the Congress of Vienna (1815) formally ended the Napoleonic Wars and fashioned a sophisticated multilateral system of political and economic cooperation in Europe. The major aspects of this system survived until the outbreak of the First World War. The Congress adopted the first comprehensive set of rules governing diplomatic protocol, it formally condemned the slave trade, and it established the principle of free and unimpeded navigation on international rivers traversing the region. The Congress laid the foundation for the recognition of the neutrality of Switzerland and its guarantee by the principal European powers
Attached to the Final Act,furthermore,were various multilateral and bilateral oether wih the taties that emered omnlldpon alia,provided Europe with a sub antial body of internation law and contributed in a very significant manner to the development of modern international law. The League of Nations came into being in 1920 with the entry into force of its Covenant.The Covenant formed an integral part of the Treaty of Versailles,which ended World War the failu e of the Le eagu of Natio ns to pre event World War ll is a we known historical fact,it is important to rememb er that the League constituted the first serious effort by states to create a permanent inter-governmental institutional framework for the resolution of political disputes and the preservation of peace.It was the League that established the Permanent Court of Inte national Justi the first such inte to all state The machinery created by the League for the protection of the right orities in eastern and southeastern Europe and for the supervision of certain non-self-governing territories (Mandates)constituted the first international attempt to establish international institutions for the protection of human rights.The League contributed in numerous other ways to the developmentand codification of internat al law.Mo eover,th odern law o nte orga izations s came into being with the establishment of the League of Nations and the legal precedents it set See infrach.3. The United Nations,which was founded in 1945,is discussed in detail in Chapter 3.Here it needs to be emphasized only that the mere existence of the United Nations, ionala nd political weaknesses,constitutes a further advance in th inenational munity omantetion more effective tool for the preservation of international peace and the improvement of the human condition throughout the world.The United Nations'legal and political achievements, if measured by the job that remains to be done,are limited at best;but its contributions gain greatly in significance if judged in relation to the accomplishments of the internat organizations that preceded the United Nations Whether international law and organizations can in today's world make a truly significant contribution to the solution of the problems facing mankind remains the most critical issue for international lawyers everywhere.It should be the fundamental theme that animates and permeates the study of international law. END OF CHAPTER 1 CHAPTER 2 SOURCES OF INTERNATIONAL LAW I.INTRODUCTION The formal sources of national law are the constitution,if a state has one, 8
8 Attached to the Final Act, furthermore, were various multilateral and bilateral agreements which, together with the treaties that emerged from and followed upon the Peace of Westphalia, provided Europe with a substantial body of international law and contributed in a very significant manner to the development of modern international law. The League of Nations came into being in 1920 with the entry into force of its Covenant. The Covenant formed an integral part of the Treaty of Versailles, which ended World War 1. Although the failure of the League of Nations to prevent World War II is a well-known historical fact, it is important to remember that the League constituted the first serious effort by states to create a permanent inter-governmental institutional framework for the resolution of political disputes and the preservation of peace. It was the League that established the Permanent Court of International Justice, the first such international tribunal open to all states. The machinery created by the League for the protection of the rights of minorities in eastern and southeastern Europe and for the supervision of certain non-self-governing territories (Mandates) constituted the first international attempt to establish international institutions for the protection of human rights. The League contributed in numerous other ways to the development and codification of international law. Moreover, the modern law of international organizations came into being with the establishment of the League of Nations and the legal precedents it set. See infra ch. 3. The United Nations, which was founded in 1945, is discussed in detail in Chapter 3. Here it needs to be emphasized only that the mere existence of the United Nations, whatever its institutional and political weaknesses, constitutes a further advance in the efforts of the international community to make international law a more effective tool for the preservation of international peace and the improvement of the human condition throughout the world. The United Nations' legal and political achievements, if measured by the job that remains to be done, are limited at best; but its contributions gain greatly in significance if judged in relation to the accomplishments of the international law and organizations that preceded the United Nations. Whether international law and organizations can in today's world make a truly significant contribution to the solution of the problems facing mankind remains the most critical issue for international lawyers everywhere. It should be the fundamental theme that animates and permeates the study of international law. END OF CHAPTER 1 CHAPTER 2 SOURCES OF INTERNATIONAL LAW I. INTRODUCTION The formal sources of national law are the constitution, if a state has one
legislative and administrative enactments and.where the doctrine of binding ed,"how do you know tha rule is the law? he or sh would point to one of these sources.Another way of looking at sources of law is to ask,"how is law made?"The answer,on the national plane,is to point to the constitutional,legislative,administrative or judicial process from which law ema anates,and to certain generally accepted legal principles. The situation is more compl ed with regard to international law.Viewed in terms of law-making international law is a primitive legal system.The international community lacks a constitution that can be viewed as a fundamental source of law. There exists no institution comparable to a national legislature with power to promulgate laws of general applicability,nor administrative agencies to produce regulations.Moreo er,the International Court of Justice(IC.J.)(dis ussed infra ch.4) lacks plenary jurisdiction over disputes arising under international law,and the decisions of the Court are legally binding only on the parties to the dispute.They have no precedential value in a formal sense because stare decisis is not a rule of international law.See lC/.Statute.art.59. given rule is international law?This question sources of internation l law and by analyzing the manner in which international law is made or how it becomes law binding on the international plane.This chapter deals with this question as well as with issues relating to the manner in which the existence or non-existence of a rule of international law may be pr oved.See generallyI Oppenheim's International Law 22 etseq.(R.Jennings A.v ds,1992 Il.PRIMARY SOURCES $2-1.Article 38(1)ofthe l.C.J.Statute.This provision is generally considered to be the most authoritative enumeration of the sources of international law.It reads as follows 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.internati nal custor as evidence of a general practice accepted as law. c.the general principles of aw recognized by civilized natic d.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. 52-2.Meaning of Article 38 of the I.CJ.Statute.Article 38 was included in the I.C.Statute to describe the nature of the international law that the Court was to apply.Article 38(1)indicates tha t internationa Ilaw consist ts of or basis in onal conventions(treaties),international custom,and general principles of law.It follows that a rule cannot be deemed to be international law unless it is derived from one of these three sources.See American Law Institute,Restatement of the Foreign Relations Law of the United States(Third)5 102(1)(1987)(Restatement 9
9 legislative and administrative enactments and, where the doctrine of binding precedent (stare decisis) prevails, decisions of judicial tribunals (case law). Thus, if a U.S. lawyer were to be asked, "how do you know that this rule is the law?", he or she would point to one of these sources. Another way of looking at sources of law is to ask, "how is law made?" The answer, on the national plane, is to point to the constitutional, legislative, administrative or judicial process from which law emanates, and to certain generally accepted legal principles. The situation is more complicated with regard to international law. Viewed in terms of law-making ,international law is a primitive legal system. The international community lacks a constitution that can be viewed as a fundamental source of law. There exists no institution comparable to a national legislature with power to promulgate laws of general applicability, nor administrative agencies to produce regulations. Moreover, the International Court of Justice (I.C.J.) (discussed infra ch. 4) lacks plenary jurisdiction over disputes arising under international law, and the decisions of the Court are legally binding only on the parties to the dispute. They have no precedential value in a formal sense because stare decisis is not a rule of international law. See I.C.J. Statute, art. 59. How then do we know whether a given rule is international law? This question can be answered only by reference to the sources of international law and by analyzing the manner in which international law is made or how it becomes law binding on the international plane. This chapter deals with this question as well as with issues relating to the manner in which the existence or non-existence of a rule of international law may be proved. See generally I Oppenheim 's International Law 22 et seq. (R.Jennings & A. Watts eds., 1992). II. PRIMARY SOURCES § 2-1. Article 38 (1) of the I.C.J. Statute. This provision is generally considered to be the most authoritative enumeration of the sources of international law. It reads as follows: 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 bv 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. . . . 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. §2-2. Meaning of Article 38 of the I.C.J. Statute. Article 38 was included in the I.C.J. Statute to describe the nature of the international law that the Court was to apply. Article 38(1) indicates that international law consists of or has its basis in international conventions (treaties), international custom, and general principles of law. It follows that a rule cannot be deemed to be international law unless it is derived from one of these three sources. See American Law Institute, Restatement of the Foreign Relations Law of the United States(Third) § 102(1) (1987) (Restatement
(Third)). "Judicial decisions"and the"teachings"of the publicists are not sources of law as such;they are "subsidiary means for finding what the law is;International lawyers look to these authorities as evidence to determine whether a given norm can be deemed to have been accepted as a rule of international law.See The Paquete Habana,175 U.S.677(1900);Restatement (Third)5 102,rptrs.note 1. Article 38(1)is silent on the question of whether the three primary sources it lists have the sar hierarchic value,that is,whethert rea custom and custom over general principles of law.Although precedence ove ther disagreement on the subject,in practice it would appear that an international court, faced with a dispute between two states,would give precedence to a specific treaty provision binding on the parties over a conflicting rule of customary international law tter did not have the status of a perempt yor fun amental norm of e)icha treaty may not nli Sevien nve on the Law of Treaties,May 23,1969,art.53,1155 U.N.T.S.331,8 1.L.M.679 (VCLT) see a/so infras 5-13.By the same token,a rule of customary international law would be given preference over a general principle of law.Thus,there is a vague parallel between legislation,common law and legal principles in a national setting,on the one ha nd a nd tr ties, nd general prin es in an inte tional ntext the othe 5 2-3.Customary international law. Under I.C.J.Statute Article 38(I)(b),"a general practice accepted as law"is an international custom.The Restotement(Third) s 102 (2)provides a more meaningful and functionally sounder definition: esults fro a g eral and c onsistent practice of states followed by them from a sense of legal obligation."Hence, a rule or principle reflected in the practice or conduct of states,must be accepted by them,expressly or tacitly,as being legally binding on the international plane in order to be considered a rule of international law Customary international law develops from the practice of states.To international lawyers,"the practice of s states"means official governmental al condu reflected in a variety of acts,including offical statements at international conferences and in diplomatic exchanges.formal instructions to diplomatic agents. national court decisions,legislative measures or other actions taken by governments to deal with matters of international concern.Inaction can also be deemed a form of state practice.On this poim on Legality of the Threat or Use of Nuclear Wepons,1 para.67(uly A practice does not become a rule of customary international law merely because it is widely followed.It must,in addition,be deemed by states to be obligatory as a matter of law.This test will not be satisfied if the practice is followed time.The practice must comply with the "opinio juris requirement(short for the Latin opinio juris sive necessitates-a conviction that the rule is obligatory)to transform it into customary international law. Although the opinio Juris requirement may be implied from the fact that a
10 (Third)). "Judicial decisions" and the "teachings" of the publicists are not sources of law as such; they are "subsidiary means" for finding what the law is; International lawyers look to these authorities as evidence to determine whether a given norm can be deemed to have been accepted as a rule of international law. See The Paquete Habana, 175 U.S. 677(1900); Restatement (Third) § 102, rptrs. note 1. Article 38 (1) is silent on the question of whether the three primary sources it lists have the same hierarchic value, that is, whether treaties take precedence over custom and custom over general principles of law. Although there is some disagreement on the subject, in practice it would appear that an international court, faced with a dispute between two states, would give precedence to a specific treaty provision binding on the parties over a conflicting rule of customary international law, provided the latter did not have the status of a peremptory or fundamental norm of international law (jus cogens) which a treaty may not nullify. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 53,1155 U.N.T.S. 331, 8 I.L.M. 679 (VCLT); see a/so infra§ 5-13. By the same token, a rule of customary international law would be given preference over a general principle of law. Thus, there is a vague parallel between legislation, common law and legal principles in a national setting, on the one hand, and treaties, custom and general principles in an international context, on the other. § 2-3. Customary international law. Under I.C.J. Statute Article 38 (l) (b), "a general practice accepted as law" is an international custom. The Restatement (Third) § 102 (2) provides a more meaningful and functionally sounder definition: "customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation." Hence, a rule or principle, reflected in the practice or conduct of states, must be accepted by them, expressly or tacitly, as being legally binding on the international plane in order to be considered a rule of international law. Customary international law develops from the practice of states. To international lawyers, "the practice of states" means official governmental conduct reflected in a variety of acts, including official statements at international conferences and in diplomatic exchanges, formal instructions to diplomatic agents, national court decisions, legislative measures or other actions taken by governments to deal with matters of international concern. Inaction can also be deemed a form of state practice. On this point, see Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, 1994 I.C.J. 226, para. 67 (July 8). A practice does not become a rule of customary international law merely because it is widely followed. It must, in addition, be deemed by states to be obligatory as a matter of law. This test will not be satisfied if the practice is followed out of courtesy or if states believe that they are legally free to depart from it at any time. The practice must comply with the "opinio juris" requirement (short for the Latin opinio juris sive necessitates-a conviction that the rule is obligatory) to transform it into customary international law. Although the opinio Juris requirement may be implied from the fact that a
rule has been generally and consistently followed over a long period of time.it is much more know how widely accepted must be to meet the test.That undisputed the conclusion that,in general,the practice must be one that is accepted by the world's major powers and by states directly affected by it.There must also not be a significant number of states that have consistently rejected it.Beyond that,it is difficult to be more specific.It should not be forgotten,however,that there exists a vas body of customary international law whose legal status is not disputed. Problems of proof arise primarily in areas of the law affected by ideological disputes or technological advances.See,e.g.,North Sea Continental Shelf Cases(F.R.G.v.Den.; F.R.G.v.Neth.),1969 1.C.J.3(Feb.20);Continental Shelf (Libya/Malta),1985 1.C.J.13 (June 3). Since international law is consensual in nature and since a practice does not have to be universally accepted to become a rule of customary international law,it follows that a state which has consistently rejected a practice before it became law, will not be bound by it.Although this is not a frequent occurrence,states may "contract out"of customary international law during its formative stage by ently obje g to it.Cf.Fisheries Case(U.K.v.Nor.),19 511C11161De 181 ce h as acquired the status of law,it is c obligatory for all tate have not objected to it. There is some disagreement over whether newly independent states are bound by all rules of international law in force at the time they become subiects of international law.The Restatement(Third)$102,cmt.d,ansv ers the question in the ative.Se e generally M.Vi ources of Int tional Law, in M Public International Law 132,137-39(M.Sorensened.1968) s 2-4.Conventional international law.In its enumeration of the sources of international law,Article 38(l)(a)of the I.C.J.Statute speaks of "international conventions,whether general or particular,establishing rules expressly recognized by the contesting states."The refer to inte ea tic both bilateral and multilateral.(For the law of treaties,see infra ch.5.)Although a bilateral treaty between State A and State B would be a source of law in a dispute between them concerning an issue governed by the treaty,it is not a source of international law for the international community in general. Some treaties ho ngive rise to or be a source of customary international law The Restatement (Third)102(3)makes that point in the followine terms:"[i]nternational agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.These treaties can perform a function comparable to legislation on the national plane. Resort to this type of internati aw-mak increased years,in because customary international law usually develops much too slowly to meet the contemporary needs of the international community for new law.In a formal sense as the Restatement(Third)points out,these legislative or law-making treaties bind only the states parties to them.But if a very large number of states informally 11
11 rule has been generally and consistently followed over a long period of time, it is much more difficult to know how widely accepted a practice must be to meet the test. That it does not have to be universal seems to be clear. Equally undisputed is the conclusion that, in general, the practice must be one that is accepted by the world's major powers and by states directly affected by it. There must also not be a significant number of states that have consistently rejected it. Beyond that, it is difficult to be more specific. It should not be forgotten, however, that there exists a vast body of customary international law whose legal status is not disputed. Problems of proof arise primarily in areas of the law affected by ideological disputes or technological advances. See, e.g., North Sea Continental Shelf Cases (F.R.G. v. Den.; F.R.G. v. Neth.),1969 I.C.J. 3 (Feb. 20); Continental Shelf (Libya/Malta), 1985 I.C.J. 13 (June 3). Since international law is consensual in nature and since a practice does not have to be universally accepted to become a rule of customary international law, it follows that a state which has consistently rejected a practice before it became law, will not be bound by it. Although this is not a frequent occurrence, states may "contract out" of customary international law during its formative stage by persistently objecting to it. Cf. Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116 (Dec. 18). But once a practice has acquired the status of law, it is obligatory for all states that have not objected to it. There is some disagreement over whether newly independent states are bound by all rules of international law in force at the time they become subjects of international law. The Restatement (Third) § 102, cmt. d, answers the question in the affirmative. See generally M. Virally, The Sources of International Law, in Manual of Public International Law 132, 137-39 (M. Sorensen ed., 1968). § 2-4. Conventional international law. In its enumeration of the sources of international law, Article 38(l)(a) of the I.C.J. Statute speaks of "international conventions, whether general or particular, establishing rules expressly recognized by the contesting states." The reference here is to international agreements or treaties, both bilateral and multilateral. (For the law of treaties, see infra ch.5.) Although a bilateral treaty between State A and State B would be a source of law in a dispute between them concerning an issue governed by the treaty, it is not a source of international law for the international community in general. Some treaties, however, can give rise to or be a source of customary international law. The Restatement (Third) § 102(3) makes that point in the following terms: "[i]nternational agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted." These treaties can perform a function comparable to legislation on the national plane. Resort to this type of international law-making has increased in recent years, in part because customary international law usually develops much too slowly to meet the contemporary needs of the international community for new law. In a formal sense, as the Restatement (Third) points out, these legislative or law-making treaties bind only the states parties to them. But if a very large number of states informally