accepts the provisions of the treaties as law even without becoming parties to them, to that extent they can be viewed as an independent source of inte national law for those states well Examples of are the VCLT,the on Diplomatic Rebtions,Ap.18 191 Us.T enna Conve 3227,500 U.N.T.S.95,and the Convention on the Prevention and Punishment of the Crime of Genocide,Dec.9, 1948,78 U.N.T.S.277,as well as various provisions of the U.N.Charter.See generally 1. Brownlie,Principles of Public international Law 11-15(5th ed.1998). not alv thatarethougtobedeclhaicryofprexisingLsiomearyinte d y to distinguish these "eislative treatie from agreement atonal law.In on sense,the latter are merely evidence of what a group of states considers customary international law to be.The fewer the states that ratify the treaty or agree with the characterization.the less the treaty will be viewed as reflecting customary international law.On the other hand if e to the aty or ether it is declaratory of customary law loses significance.See generally R.Higgins,Problems and Process: International Law and How We Use It 28(1994).At some point.the agreement wil come to be viewed as an independent source of general international law.The VCLT gone thr ough these law-making stages. of law. urces of international law listed d in Article 38(1)are"the general principles of law recognized by civilized nations.Today we speak of general principles of law recognized by or common to the world's major legal systems.Historically,general principles of law played an mportant role in the evolution of international law.the rules derived from them ere often only n rms available nd acceptable to states to egulate thei international relations.They were accepted as a source of law on the theory tha where states have universally applied similar principles in their national law,their consent to be bound by those same principles on the international plane could be inferred.The legal rules governing the responsibility of states for iniuries to aliens were at one time e based almost exclusively o n that source Modern inte ational law relies less n general principles of law as a source of law.This is so in part because of the extraordinary growth of treaties and international institutions as a means of regulating interstate relations.and in part because many of the norms that were originally derived from general principles have over time become customary international law.The process of law-making by so-called"egisati "has also re educed the need for gener principles of lav tofill substantive lacunae in the internationl lega ystem.That is why the Restotement (Third)quite soundly characterizes general principles as a "secondary source of international law."Restatement(Third)$102,cmt.1. General principles are still used to fill gaps,primarily for procedural matters and problems of inter nal judicial admini resort to general principles,for example,to rule that the doctrine of res judicat laches is part of international law,or that international judges have to conduct themselves in a manner that does not cast doubt on their impartiality or independence.For a review of some illustrative cases that rely on general principles
12 accepts the provisions of the treaties as law even without becoming parties to them, to that extent they can be viewed as an independent source of international law for those states as well. Examples of such treaties are the VCLT, the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, and the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, as well as various provisions of the U.N. Charter. See generally I. Brownlie, Principles of Public international Law 11-15 (5th ed. 1998). It is not always easy to distinguish these "legislative treaties" from agreements that are thought to be declaratory of preexisting customary international law. In one sense, the latter are merely evidence of what a group of states considers customary international law to be. The fewer the states that ratify the treaty or agree with the characterization, the less the treaty will be viewed as reflecting customary international law. On the other hand, if very many states adhere to the treaty or otherwise accept it as stating what the law is, the question whether it is declaratory of customary law loses significance. See generally R. Higgins, Problems and Process: International Law and How We Use It 28 (1994). At some point, the agreement will come to be viewed as an independent source of general international law. The VCLT would appear to have gone through these law-making stages. § 2-5. General principles of law. Among the sources of international law listed in Article 38 (1) are "the general principles of law recognized by civilized nations." Today we speak of general principles of law recognized by or common to the world's major legal systems. Historically, general principles of law played an important role in the evolution of international law. The rules derived from them were often the only norms available and acceptable to states to regulate their international relations. They were accepted as a source of law on the theory that where states have universally applied similar principles in their national law, their consent to be bound by those same principles on the international plane could be inferred. The legal rules governing the responsibility of states for injuries to aliens were at one time based almost exclusively on that source. Modern international law relies less on general principles of law as a source of law. This is so in part because of the extraordinary growth of treaties and international institutions as a means of regulating interstate relations, and in part because many of the norms that were originally derived from general principles have over time become customary international law. The process of law-making by so-called "legislative treaties" has also reduced the need for general principles of law to fill substantive lacunae in the international legal system. That is why the Restatement (Third) quite soundly characterizes general principles as a "secondary source of international law." Restatement (Third) § 102, cmt.1. General principles are still used to fill gaps, primarily for procedural matters and problems of international judicial administration. An international tribunal might resort to general principles, for example, to rule that the doctrine of res judicata or laches is part of international law, or that international judges have to conduct themselves in a manner that does not cast doubt on their impartiality or independence. For a review of some illustrative cases that rely on general principles
see M.Shaw,International Low 77-82 (4th ed,1997). 2-6.Character of mod na.The discussion in the precedin sec ctions indi ates that modern principally of convention and customary international law.The fact that legislative treaties now play an important role in the law-making process is beginning to transform international law into a more dynamic legal system.The development of customary international law on the whole,more cumb me and consequently less suited for the fast pace of odern life.General principles perform an ever more marginal role as a source of law IlIl.SECONDARY SOURCES OR EVIDENCE 2-7.Evidence of international law. Article 38()(d)lists judicial decisions and views of duly qualified publicists "as subsidiary means for the determination of rules of law."This provision is generally understood to mean that the existence of a rule of international law may be proved by reference to the above mentioned "subsidiary means."Restatement (Third)s 103.These sources are cited ition is or is not international law Although judicial decisions and the teachings of publicists appear to be treated in Article 38 as being of equal weight,this seems not to be true in practice.Certain judicial decisions enjoy much greater status as legal authority than the views of the publicists.Thus,I.C.J.decisions are by far the most authoritative of these"subsidiary means"on internat ional plar For example,ift th e L.C.J.concl a give proposition has become a rule of customary international law,that holding,while not binding precedent in theory.is "the law"for all practical purposes.It would be extremely difficult,if not impossible,to refute such a holding on the international plane.Similarly,decisions of other modern international tribunals,particularly ch 4 ar ned to be highly authoritative Much le importance attaches to decisions of national courts applying international law.Wha weight they will be given depends on the prestige and perceived impartiality of the national court,on whether the decision is in conflict with decisions of international courts.and on the forum where the decision is being cited.a decision of the u.s Supreme Court interp ng international law is conclusive in the United states despite a contrary opinio n even of the I.CJ.but in Belgium,for example,the U.S decision will most certainly be less authoritative than a decision of an internationa arbitral tribunal.The result would probably be the same in a U.S.court,if it had to choose between a decision of the Belgian supreme court and that of an international tribunal The mea of the phrase,"teachings of the most highly qualified publicists," must also be clarified.The reference is not only to individual publicists or writer although that is what was probably meant at one time.Today it includes entities such as the International Law Commission(I.L.C.),which was established by the United Nations to encourage "the progressive development of international law and its 13
13 see M. Shaw, International Law 77-82 (4th ed, 1997). § 2-6. Character of modern international law. The discussion in the preceding sections indicates that modern international law consists principally of conventional and customary international law. The fact that legislative treaties now play an important role in the law-making process is beginning to transform international law into a more dynamic legal system. The development of customary international law is, on the whole, more cumbersome and consequently less suited for the fast pace of modern life. General principles perform an ever more marginal role as a source of law. III． SECONDARY SOURCES OR EVIDENCE § 2-7. Evidence of international law. Article 38 (l) (d) lists judicial decisions and the views of duly qualified publicists "as subsidiary means for the determination of rules of law." This provision is generally understood to mean that the existence of a rule of international law may be proved by reference to the above mentioned "subsidiary means." Restatement (Third) § 103. These sources are cited by international lawyers as authoritative evidence that a given proposition is or is not international law. Although judicial decisions and the teachings of publicists appear to be treated in Article 38 as being of equal weight, this seems not to be true in practice. Certain judicial decisions enjoy much greater status as legal authority than the views of the publicists. Thus, I.C.J. decisions are by far the most authoritative of these "subsidiary means" on the international plane. For example, if the I.C.J. concludes that a given proposition has become a rule of customary international law, that holding, while not binding precedent in theory, is "the law" for all practical purposes. It would be extremely difficult, if not impossible, to refute such a holding on the international plane. Similarly, decisions of other modern international tribunals, particularly permanent ones, see infra ch. 4, are deemed to be highly authoritative. Much less importance attaches to decisions of national courts applying international law. What weight they will be given depends on the prestige and perceived impartiality of the national court, on whether the decision is in conflict with decisions of international courts, and on the forum where the decision is being cited. A decision of the U.S. Supreme Court interpreting international law is conclusive in the United States, despite a contrary opinion even of the I.C.J.; but in Belgium, for example, the U.S. decision will most certainly be less authoritative than a decision of an international arbitral tribunal. The result would probably be the same in a U.S. court, if it had to choose between a decision of the Belgian Supreme Court and that of an international tribunal. The meaning of the phrase, "teachings of the most highly qualified publicists," must also be clarified. The reference is not only to individual publicists or writers, although that is what was probably meant at one time. Today it includes entities such as the International Law Commission (I.L.C.), which was established by the United Nations to encourage "the progressive development of international law and its
codification."U.N.Charter,art.13(l)(a);see infra 3-15.The I.L.C.is composed of distinguished international lawyers from all regions of the world.On the inte national plane,its ons would undoubtedy be considered authoritative than the judicial opinions of national courts,for example "teachings"of prestigious private scholarly institutions having a membership consisting of lawyers from all major legal systems of the world,such as,for example, the Institut de Droit International,would also be accorded greater respect than some types of judicial s.Note too th hat international la wers trained ir states wh al systems follow the civil law tradition are mo re likely to give greate weight to scholarly writings than are common law lawyers,who tend to view judicial decisions as more authoritative.In a U.S.court,furthermore,the Restatement(Third)would likely be given greater weight as evidence of international law than many types of foreign and inte ationl judicial opi inions recent decades resolutions and simila acts of intergovernmenta international organizations have acquired a very significant status both as sources and as evidence of international law.Some of these resolutions are legally binding on the member states of the organizations.That is true,for example,with regard to some U.N.Security Council resolutions.See U.N.Charter,arts.24-25;Advisory ion n Lego for States of the co ntinued pr of South Afric in Namibia(South-West Africa)Notwithstanding Security Council Resolution 276 (1970),1971 1.C.J.16,at 40-41(June 21).It is also true of various legislative measures promulgated by the International Civil Aviation Organization.See T.Buergenthal, Law-Making in the International Civil Aviation Organization 57(1969).The binding character of these e enactments is provided for in the treaties establishing the organizations The resolutions in question consequently are a form of treaty law and to that extent,a source of law.See J.Charney,Universal International Law,87 Am.J. Int1L.529(1993). The vast maiority of resolutions of international organizations are not.however formally binding in character.This is true,for example,of resolutions of the U.N. General Ass sembly 53-14.Some of the resolutions (declaration recommendations,etc.)can and do become authoritative evidence of internationa law.See Restatement (Third)6 103.cmt.c.To understand how acts of international organizations acquire this status,it is important to recall that customary international law evolves through state practice to which states conform out of a sense of legal obligation.How states an d what they say in interation org s is a fo of state practice.Its significance in the law-making process depends upon the extent to which this state practice is consistent with the contemporaneous conduct and pronouncements of states in other contexts.Thus,for example,if a U.N.General Assembly resolution declares a given principle to be a rule of international law,that ent does not make it the law,but it is som e evidence on the subiect.If the resolu ition is adopted unanimously or by an overwhelming majority,which includes the major powers of the world,and if it is repeated in subsequent resolutions over a period of time,and relied upon by states in other contexts,it may well reach the stage where its character as being declaratory of international law 10
14 codification." U.N. Charter, art.13(l)(a); see infra § 3-15. The I.L.C. is composed of distinguished international lawyers from all regions of the world. On the international plane, its conclusions would undoubtedly be considered more authoritative than the judicial opinions of national courts, for example. The "teachings" of prestigious private scholarly institutions having a membership consisting of lawyers from all major legal systems of the world, such as, for example, the Institut de Droit International, would also be accorded greater respect than some types of judicial opinions. Note too that international lawyers trained in states whose legal systems follow the civil law tradition are more likely to give greater weight to scholarly writings than are common law lawyers, who tend to view judicial decisions as more authoritative. In a U.S. court, furthermore, the Restatement (Third) would likely be given greater weight as evidence of international law than many types of foreign and international judicial opinions. In recent decades, resolutions and similar acts of intergovernmental international organizations have acquired a very significant status both as sources and as evidence of international law. Some of these resolutions are legally binding on the member states of the organizations. That is true, for example, with regard to some U.N. Security Council resolutions. See U.N. Charter, arts. 24-25; Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16, at 40-41 (June 21). It is also true of various legislative measures promulgated by the International Civil Aviation Organization. See T. Buergenthal, Law-Making in the International Civil Aviation Organization 57 (1969). The binding character of these enactments is provided for in the treaties establishing the organizations. The resolutions in question consequently are a form of treaty law and, to that extent, a source of law. See J. Charney, Universal International Law, 87 Am. J. Int'l L. 529 (1993). The vast majority of resolutions of international organizations are not, however, formally binding in character. This is true, for example, of resolutions of the U.N. General Assembly. See infra § 3-14. Some of these resolutions (declarations, recommendations, etc.) can and do become authoritative evidence of international law. See Restatement (Third) § 103, cmt. c. To understand how acts of international organizations acquire this status, it is important to recall that customary international law evolves through state practice to which states conform out of a sense of legal obligation. How states vote and what they say in international organizations is a form of state practice. Its significance in the law-making process depends upon the extent to which this state practice is consistent with the contemporaneous conduct and pronouncements of states in other contexts. Thus, for example, if a U.N. General Assembly resolution declares a given principle to be a rule of international law, that pronouncement does not make it the law, but it is some evidence on the subject. If the resolution is adopted unanimously or by an overwhelming majority, which includes the major powers of the world, and if it is repeated in subsequent resolutions over a period of time, and relied upon by states in other contexts, it may well reach the stage where its character as being declaratory of international law
becomes conclusive.when that stage is reached is difficult to determine.but that ing pronounceme Court Justice is particularly relevant on this entire subject:The Court notes that General Assembly resolutions,even if they are not binding,may sometimes have normative value.They can.in certain circumstances.provide evidence important for establishing the existence of a rule or the eme rgen ce of an opinio juris.To establish whether this is true of a given General Assembly resolution,it is necessary to look at its content and the conditions of its adoption;it is also necessary to see whether an opinio juris exists as to its normative character.Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons,1996 1.C.J. 6.) f course,not very many measures adopted by international organizations acquire normative status.The resolutions or declarations in question usually have to proclaim one or more principles and identify them either as preexisting international law or as rules that states in general should comply with as a matter of law.these a egislative"re that are not all that dissimilar supras 2-4 Resolutions dealing with human rights,decolonization,outer space,ocean resources environmental issues,use of force,etc.,are at times formulated to perform that purpose.See,e.g.,Military and Paramilitary Activities in and against Nicaragua (Nicar y US)19 861.C.J.14,at 100-1(June 27);Advisory Opinion or Western Saho 19751.CJ.12,at23-33(0ct161.ti s not n in some o these areas for th "legislative"declarations to be followed up by a formal treaty open to accession by the international community in general.On this subject generally,see R.Higgins, Problems and Process:International Law and How We Use It 22-32(1994). s2-8.Law-making process.Because of the consensual character of customary and inter nal lay nd be se of the abs of a legislative or judicial system,states play a dual rolein the law-making process:they act both as legislators and as advocates or lobbyists.See M.McDougal,The Hydrogen Bomb Tests and the International Law of the Sea,49 Am.J.Int'l L.356-58(1955). They are legislators or law-makers in the sense that.as we have already seen.the nractice of states and the treaties which states nclude create internatio nal lay States also assert certain claims on the i ternational plane in their diplomatic correspondence,in international courts,in international organizations,etc.,through which they seek to obtain new rules of international law or to modify existing ones Their individual assertions about what is or is not law.particularly customary law.is a form of lobbying or advocacy;it becomes law-making when these claims find the broad-base pport that is required to tra hem into law Claim governments about what is or is not law must take the law-making consequences of their actions into account. 2-9.Where to find the evidence.It is not always easy to prove the existence of a practice deemed by states to be obligatory,especially if unambiguous judicial
15 becomes conclusive. When that stage is reached is difficult to determine, but that these resolutions play an important part in the international law-making process can no longer be doubted. The following pronouncement of the International Court of Justice is particularly relevant on this entire subject: The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, para. 70 (July 8). Of course, not very many measures adopted by international organizations acquire normative status. The resolutions or declarations in question usually have to proclaim one or more principles and identify them either as preexisting international law or as rules that states in general should comply with as a matter of law. These acts might be characterized as "legislative" resolutions that are not all that dissimilar in their content or purpose from the "legislative treaties" discussed supra§ 2-4. Resolutions dealing with human rights, decolonization, outer space, ocean resources, environmental issues, use of force, etc., are at times formulated to perform that purpose. See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, at 100-1 (June 27); Advisory Opinion on Western Sahara, 1975 I.C.J. 12, at 23-33 (Oct. 16). It is not uncommon in some of these areas for the "legislative" declarations to be followed up by a formal treaty open to accession by the international community in general. On this subject generally, see R. Higgins, Problems and Process: International Law and How We Use It 22-32 (1994). § 2-8. Law-making process. Because of the consensual character of customary and conventional international law, and because of the absence of a centralized legislative or judicial system, states play a dual role in the law-making process: they act both as legislators and as advocates or lobbyists. See M. McDougal, The Hydrogen Bomb Tests and the International Law of the Sea, 49 Am. J. Int'l L. 356-58 (1955). They are legislators or law-makers in the sense that, as we have already seen, the practice of states and the treaties which states conclude create international law. States also assert certain claims on the international plane in their diplomatic correspondence, in international courts, in international organizations, etc., through which they seek to obtain new rules of international law or to modify existing ones. Their individual assertions about what is or is not law, particularly customary law, is a form of lobbying or advocacy; it becomes law-making when these claims find the broad-based support that is required to transform them into law. Claims by governments about what is or is not law must take the law-making consequences of their actions into account. § 2-9. Where to find the evidence. It is not always easy to prove the existence of a practice deemed by states to be obligatory, especially if unambiguous judicial
decisions or other authoritative pronouncements relating to it are not available.To gather the necessary proof,international lawyers exa mina government p onthe subct nation ates and resolutions of international organizations,minutes and final acts of diplomatic conferences.This search is frequently facilitated by the availability of digests or compilations dealing with the international law practice of individual nations.A number of private collections containing decisions of national courts on questions of als oavailable,as are compilat of d isions of inter tional arbitral tribur s and of permanent courts.International law tre s writte renowned legal scholars in different parts of the world are usually also consulted and cited by international lawyers.The U.N.and various regional organizations as well as individual states publish official and unofficial collections of international agreements Historical ons,especially those dealing with diplom y, also vield informatio concerning the existence of customary rule international Increasingly,this information is available on the Internet.For an overview of the reference material mentioned in this section and for a guide to conducting international legal research,see infra ch.13. END OF CHAPTER 2 CHAPTER 3 STATES AND INTERNATIONAL ORGANIZATIONS I.INTRODUCTION This chapter considers the principal "actors"in international law:states and international organizations created by states.First,this chapter discusses the law and practice associated with "recognizing"the creation of a new state or formation of a new government that has come to power through no n-constitutional means.Second this chapter introduces the core legal issues that arise with respect to international organizations,paying particular attention to the United Nations and the European Union.Finally,this chapter briefly notes the role of non-governmental organizations in the formation and implementation of international law. IL STATES s3-1.Recognition doctrine generally.When an extraordinary political event occurs-the emergence of a new state or the rise to power of a new government by other than routine processes-other states in the world community indicate their willingness to accept both the fact of change andthe legal consequences arising from that fact by either newstateo ent 3-2.Recognition of states. Under traditional international legal theory, entity aspiring to be recognized as a new state first had to meet certain factua conditions.The aspiring entity had to have:(1)a defined territory;(2)a permanent population;(3)an effective government;and(4)the capacity to enter into relations
16 decisions or other authoritative pronouncements relating to it are not available. To gather the necessary proof, international lawyers examine, inter alia, relevant government pronouncements on the subject, national judicial decisions, debates and resolutions of international organizations, minutes and final acts of diplomatic conferences. This search is frequently facilitated by the availability of digests or compilations dealing with the international law practice of individual nations. A number of private collections containing decisions of national courts on questions of international law are also available, as are compilations of decisions of international arbitral tribunals and of permanent courts. International law treatises written by renowned legal scholars in different parts of the world are usually also consulted and cited by international lawyers. The U.N. and various regional organizations as well as individual states publish official and unofficial collections of international agreements. Historical collections, especially those dealing with diplomacy, may also yield useful information concerning the existence of customary rules of international law. Increasingly, this information is available on the Internet. For an overview of the reference material mentioned in this section and for a guide to conducting international legal research, see infra ch.l3. END OF CHAPTER 2 CHAPTER 3 STATES AND INTERNATIONAL ORGANIZATIONS I. INTRODUCTION This chapter considers the principal "actors" in international law: states and international organizations created by states. First, this chapter discusses the law and practice associated with "recognizing" the creation of a new state or formation of a new government that has come to power through non-constitutional means. Second, this chapter introduces the core legal issues that arise with respect to international organizations, paying particular attention to the United Nations and the European Union. Finally, this chapter briefly notes the role of non-governmental organizations in the formation and implementation of international law. II. STATES § 3-1. Recognition doctrine generally. When an extraordinary political event occurs-the emergence of a new state or the rise to power of a new government by other than routine processes-other states in the world community indicate their willingness to accept both the fact of change andthe legal consequences arising from that fact by either explicitly or implicitly "recognizing" the new state or government. § 3-2. Recognition of states. Under traditional international legal theory, an entity aspiring to be recognized as a new state first had to meet certain factual conditions. The aspiring entity had to have: (1) a defined territory; (2) a permanent population; (3) an effective government; and (4) the capacity to enter into relations