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The Sources of International Law.

American Journal of International Law - Vol. 109 Nbr. 2, April 2015

Author: Noyes, John E.

Position:: Book review

Id. vLex: VLEX-636910325

Link: http://vlex.com/vid/the-sources-of-international-636910325

Text

Contenidos
The Sources of International Law. By Hugh Thirlway. Oxford, New York: Oxford University Press,
2014. Pp. xxi, 239. Index. $145, 70 [pounds sterling], cloth; $45, 24.99 [pounds sterling], paper.

In The Sources of International Law, Hugh Thirlway, former principal legal secretary of the
International Court of Justice (ICJ) and former professor of international law at the Graduate
Institute of International and Development Studies in Geneva, defends the notion that
international law derives its authority and content from established sources. Adopting Lassa
Oppenheim's conception of a formal source--'"the source from which the legal rule derives its
legal validity'" (p. 4)--Thirlway sets out "to convey an understanding of the traditional approach"
of sources (p. 9). He explores whether, under current thinking, international law may derive from
sources other than treaties, custom, and general principles of law, as enumerated in Article 38 of
the Statute of the ICJ (1) and its predecessor, the Statute of the Permanent Court of International
Justice. More broadly, he asks whether developments such as the proliferation of international
courts, the growth of human rights and other specialized areas of international law, the
international activity of nonstate actors, and the emergence of new theories about international
law have undercut the significance of traditional sources. Thirlway finds that Article 38 has "cast[]
along shadow" (p. 200), extending well beyond the ICJ. In the conclusion of The Sources of
International Law, he leaves us with the image of Article 38 as "the rock not yet undermined or
swept away by the crashing waves of international developments" (p. 231).

Following the opening chapter on "The Nature of International Law and the Concept of Sources,"
Thirlway turns to treaties and conventions (chapter 2), customary international law (chapter 3),
general principles of law as a source of law (chapter 4), and the "subsidiary" sources listed in
Article 38(l)(d), namely, judicial decisions and the teachings of publicists (chapter 5). Chapter 6
explores the interaction or hierarchy among sources, and chapter 7 delves into the "specialities"
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of jus cogens, obligations erga omnes, and soft law. Chapter 8, "Subsystems of International
Law," asks whether human rights law, humanitarian law, trade and investment law, international
environmental issues, and international criminal law have incorporated sources different from
those listed in Article 38(1). In chapter 9, Thirlway considers how some modern theories (Andrew
Guzman's rational choice approach, Jean d'Aspremont's formalist language theory, and Matthias
Goldmann's system of standard instruments used to exercise public authority) relate to the
doctrine of sources, and he critiques efforts by Brian Lepard and Anthea Roberts to
reconceptualize customary international law. The Sources of International Law concludes with a
brief chapter 10 that highlights major themes.

The idea that international law should be understood in terms of formal sources is under fire.
Critics argue that the doctrine of sources artificially divorces law from nonlaw, separating
international law from its historical, political, cultural, and ethical contexts, and, to the extent the
doctrine is state-centric, marginalizes nonstate communities. According to Thirlway, alternatives
to the concept of sources include determining the validity of international law rules "by looking at
the quality of the rule"; considering the sociological question of "how the necessarily conflicting
interests of States can most effectively be harmonized"; or focusing on how either sanctions or
"norms that have not emerged from the traditional source-process" affect state behavior (pp. 201-
02). Yet, however insightful such perspectives may be, they incorporate extralegal considerations
or verge into expositions of what law ought to be, a path "barred to the international judge" (p.
202). "Many modern theories 'of' international law," Thirlway argues, "are in fact not directed to
the question to which the concept of sources was traditionally supposed to supply the answer,
namely, why is international law binding upon international actors (primarily States), and how
does it relate to the 'sovereignty' with which States are, equally traditionally, endowed?" (p. 29).
He accordingly devotes little attention to investigating modern theoretical perspectives, except as
they bear directly on the doctrine of sources.

Although Thirlway contends that The Sources of International Law is not "necessarily imbued
solely with a positivist spirit" (p. 3), he acknowledges that "the concept of sources is primarily
associated with legal positivism, of which the central tenet is that international law derives from
the consent of the States that are its subjects" (p. 10). International law's essential features are
recognized rules and norms, not process: "The function of sources in the international legal
structure is to supply the rules of law that make up that system; if no source can credibly be cited
for a rule that is claimed to exist, then the conclusion follows that the alleged rule does not exist"
(p. 13). According to Thirlway, "All law has ultimately to be put to the test of 'How would a court
decide?,' ... even when ... there exists no mechanism for judicial examination and settlement
unless and until the parties so agree" (p. 2). Absent a third-party decision maker, this prism may
make it difficult to verify assertions about legality, but it emphasizes Thirlway's vision of law as an
impartial application of legal rules.

Thirlway's perspective is state-centric. International law rules and norms derive from state
consent, in the case of treaties, and "established practice, accepted and created by States" (p.
84), in the case of custom; even general principles of law, intended to fill gaps but little used by
the ICJ, exhibit a "substantial consensual element" (p. 16). (These formal sources count as "law"
either because they are necessary (e.g., with respect to treaties, "apactum--an agreement--is
necessarily servandum--something that has to be complied with" (p. 51)) or because they
correspond to origins that states recognize and find appropriate (pp. 11-13, 31-34, 53-56, 99-
100).) Thirlway does concede that although "the extent to which, and the way in which, a natural
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100).) Thirlway does concede that although "the extent to which, and the way in which, a natural
person may be a subject of international law is a developing issue, ... the individual is no longer
totally invisible on the international plane" (2) (p. 17). But he finds "no trace of a new legal
philosophy empowering [individuals, international organizations, or other non-state actors] to
make a contribution in a form suggestive of the birth of a new source of international law" (p. 19).

Thirlway's views about the durability of traditional sources are nuanced. He deserves high praise
for thoughtfully engaging with important philosophical and international legal scholarship
(especially in French and English, with occasional references to works in German and Italian).
The following illustrations briefly characterize Thirlway's positions on the possible emergence of
new sources.

Thirlway links most developments in international law to treaties or customary international law.
For example, one type of soft law is found in treaties where the drafters have made clear that they
intended "a mere soft-law commitment" (p. 167). Similarly, soft-law instruments themselves "[t]o a
large extent ... may be referred back ultimately to a treaty or convention as a source, even if this
involves a lengthy line of descent" from a treaty-based organization, to a specified organ, to a
sub-organ or sub-sub-organ (id.). If such instruments purport to give only nonbinding guidance,
the status of that guidance as law is as unremarkable as if the "soft" phrasing occurred in the
original treaty. Thirlway also explores the "more difficult question" whether soft law may arise
through nontreaty sources (p. 169). Soft law may be "correctly classified as a form of 'law'" if
grounded in custom (p. 171), but he cautions about the need to marshal evidence. For example,
a General Assembly resolution may provide "some evidence" of opinio juris, but, for the
resolution to count as law, Thirlway would also require conforming "consistent actual practice"
among specially affected states (p. 81). He resists the position that customary international law
may, drawing on soft-law instruments, comprise persuasive norms rather than legally binding
ones.

No need exists to depart from the standard sources to explain the status of unilateral
declarations, despite the ICJ's statement in the Nuclear Tests cases "that declarations made by
way of unilateral acts ... may have the effect of creating legal obligations." (3) Thirlway suggests,
based on his close examination of those cases, other invocations of the unilateral-declaration
concept, and the work of the International Law Commission, that unilateral declarations "amount
to inchoate treaties, since they normally remain ineffective unless and until there is express or
tacit acceptance by the State addressed" (p. 192). The Nuclear Tests decision itself, if it is
"anything other than an anomaly, a judicial device to escape a politico-legal difficulty, ... must
perhaps be regarded as based on something analogous to pacta sunt servanda" (p. 51), a
commitment with which, in line with the understanding of states having an interest in question,
compliance is necessary.

Rules of human rights law, for Thirlway, mostly derive from "the treaty-obligation accepted by the
State concerned" (p. 180). He is less happy with grounding human rights law in custom, since
doing so would involve the "virtual abandonment of any element corresponding to the [interstate]
practice traditionally required"; the argument that human rights derive from general principles of
law must also "be regarded as unproved" (p. 181). Jus cogens norms, though, are "essentially a
feature of general customary law" (p. 160), despite the obvious differences from "ordinary"
custom (no persistent objection; no lex specialis derogation). Although jus cogens norms contain
an "ineradicable moral element" (p. 162), Thirlway does not conclude that jus cogens is a type of
fundamental law based on ethical precepts. Rather, jus cogens norms have "been chosen by the
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international community" (p. 163), an operation for which, in Thirlway's view, the appropriate
source is custom.

Other potential new sources of law also fold into the recognized sources. Judicial decisions and
the opinions of scholars remain subsidiary material sources, providing evidence of Article
38(l)(a)-(c) formal sources; municipal judicial decisions may also double as evidence of state
practice for establishing custom. The ICJ's invocation of "elementary considerations of humanity"
(4) may be better explained as a principle "existing under customary law" or a principle derived
from treaty than as a general principle of law (p. 102), but no new source is needed to justify the
invocation. Equity almost always operates infra legem, within rules established by treaty or
customary international law; "in some limited contexts," equity operates independently but then is
"better regarded" as a general principle of law and not "an independent source" (p. 110).

In general, international law's claims to unity and universality mean that "the individual legal,
political, or religious system of a State does not impinge on its acceptance of, and compliance
with, general international law" (p. 26). Islamic law, however, could challenge the established
system of sources with respect to human rights, an area involving the relationships between
states and their own citizens. Thirlway suggests that conflicts with Islamic law may be minimized
when Islamic states employ treaty reservations, and he examines possibilities for reading
international human rights law and Islamic teachings as complementary. But he concludes there
could be

a real conflict between modern human rights law and Islamic teachings; and if such
accommodations cannot be reached, the logical position of the Islamicists cannot be other than
an assertion of religion as a source of law which is not only separate but overriding. That stage
may never be reached; but intellectually it cannot be evaded. (P. 184) Thirlway's reluctance to
depart from treaty, custom, and general principles of law as sources may be traced to several
premises. First, he considers natural law too uncertain to provide a foundation for international
law. Second, he sees the list of sources in Article 38(1) of the ICJ Statute as exclusive, a position
that logically blocks recognition of new sources of international law. Third, because scholars
have not accepted any "single coherent alternative" to "the formalist system of sources," parties
and courts "cling" to that system (p. 200). This review examines each of these premises in turn.

Thirlway quotes Gerald Fitzmaurice's suggestion that international law has '"continually
oscillated between' " positivism and natural law and then considers Christian Dominice's
assertion that natural law may be having a resurgence (p. 103). Today, one is more likely to see
references to fundamental norms, ethical principles, or justice than to natural law, but, regardless
of the terminology, normative considerations play a significant role in many modern theories. One
thinks, for example, of the New Haven School's emphasis on human dignity; of the assertions
that democratic or rule-of-law values underpin international institutionalization and
constitutionalization; and of the roles for values--it seems incomplete just to label them interests--
such as protecting peace, preserving the human environment, and enhancing economic
development in international cooperation regimes. Thirlway does not evaluate how theories
grounded in sociology, political science, or international relations construct or incorporate values;
such an evaluation would draw him away from his focus on sources. He instead considers
whether natural law may be a formal source of legal rules, a possibility that he greets with
skepticism. Thirlway finds two overarching explanations--"external" and "internal" justifications--
why international law may bind states and how it relates to state sovereignty. First, "'external'
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justification" appeals "to a standard outside and above sovereignty, primarily one of an ethical or
divinely decreed nature, but possibly also based upon historical necessity" (p. 29). However, this
external justification is problematic because "it implies, if not the existence and nature of a deity,
a degree of shared recognition of the relevant ethical principles that is hard to come by--or a
fragmentation of law in parallel to differences of ethical background" (id. (footnote omitted)).
Thirlway thus prefers the second, "'internal' justification," under which "sovereignty is self-limiting
... to the extent that the sovereign entity abides by what it has agreed to, explicitly or implicitly"
(id.). Thirlway acknowledges the historical significance of natural law theories in international law
but suggests that natural law has been "succeeded" by positive law (p. 15).

From Thirlway's "internal" positivist perspective, ethical considerations may influence the
positions that states take in practice and when concluding treaties. He thinks that such
considerations ought not invade international law more directly, through rule interpretation.
Oriented as he is towards consensual rules and neutral decision makers, Thirlway is loath to
accord an independent normative role either to treaty interpreters or to those weighing evidences
of state practice and opinio juris. Treaty "[i]Interpretation carries its dangers," he warns. For
example, an "observer must not ... do[] [the parties'] work for them by writing into the text what the
observer thinks would have been appropriate" (p. 113 n.83). With respect to customary
international law, "in general it is not the role of the judge or other interpreter of existing law to
deny recognition to an established practice, accepted and created by States, as somehow
improper" (p. 84). General principles of law reflect logical principles essential for the operation of
any legal system; they do not (pace Hersch Lauterpacht and Alfred von Verdross) provide a
vehicle for incorporating natural law into international law. Yet, to this reviewer, treaty
interpretation and the process of determining and applying custom and general principles leave
room for judgment. A decision maker acting in good faith may have a range of choices, some
more in line with precepts of justice than others.

Thirlway also considers whether ethical considerations might reshape the concept of customary
international law. They could do so either by influencing how opinio juris is determined or by
affecting, in particular settings, the relative weight accorded evidences of practice, on the one
hand, and opinio juris, on the other. Thirlway engages with Lepard's and Roberts's theories, (5)
expressing concern that they not inappropriately emphasize a legal role for ethical norms.
Roberts's effort to reconcile traditional and modern understandings of custom, Thirlway suggests,
may "make[] possible discovery of the solution that most appeals to the moral conceptions, or--
dare one say it?--the prejudices of the observer" (p. 229). And "the traditional jurist of positivist
inclination" may feel that Lepard's emphasis on the "ethical dimension" involves "some fairly
radical transformation" of customary international law (p. 224); "a transition directly from high
principles to customary law" is not permissible "without the mediating ... input of practice guided
by opinio juris' (p. 190). Yet conceptions of custom have changed. Some scholars historically
regarded custom as an organic outgrowth of behaviors that reflected preexisting values of a
community; others focused on the belief that legal rules supporting a common practice were
reasonable. Thirlway's own more positivist account of custom has been influential, but The
Sources of International Law will not put to rest the debate over the relevance of natural law in its
various modern guises.

For Thirlway, Article 38(1) represents a "closed category" (p. 160), making it difficult, if not
impossible, for new sources of international law to emerge. As Thirlway reads that article, "no
international law is to be found elsewhere" than in treaties, custom, and general principles of law
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international law is to be found elsewhere" than in treaties, custom, and general principles of law
(p. 6). This limitation particularly constrains the ICJ, which is bound to follow its Statute. One of
Thirlway's responses to assertions that jus cogens norms constitute an autonomous body of
superior rules derived from some source other than treaties, custom, or general principles of law
is that "the International Court has recognized the concept of jus cogens, and has declared and
applied certain precepts as falling within that category. If these do not fall within the scope of
Article 38, paragraph 1, of the ICJ Statute," Thirlway asks rhetorically, "on what basis may the
Court apply them, without acting ultra vires?" (p. 155). Anyone proposing a new system to
explain how international law is created must "contemplate a modification of legal thinking that,
logically, can only take effect through the medium of the existing system" (p. 200). A new source
of law cannot "come into being beside the old categories" without "lift[ing] itself by its own
bootstraps, as it were" (id.). It is one thing for new rules of international law to develop; that
eventuality is straightforward with treaties and possible with custom, despite custom's "logical
difficulties" and "untidiness" (pp. 200, 221) (notably the classic enigma of how a new customary
norm can develop if opinio juris requires belief that a norm is already legally binding). It is
another thing altogether for new sources of law to emerge: that would constitute a revolution.

Thirlway adds a practical defense of positivist sources doctrine: it is well established, and
nothing has supplanted it. His claim that the traditional doctrine "works" does not prompt him to
investigate sociological questions concerning either states' compliance with international law
rules or the effectiveness of international courts. Rather, traditional sources thinking has
influenced how international lawyers and courts conceptualize legal issues and decide cases:
"decisions of international tribunals, in particular the ICJ," along with diplomatic exchanges
concerning international law, "proceed[] most frequently on the basis of a classical conception of
law as source-derived" (p. 16). Article 38 "is tolerably clear (in the light of years of application)"
and "firmly established in the practice of States and of international tribunals" (p. 200).

International lawyers operating with a sources mind-set may question whether treaties, custom,
and general principles of law constitute all the sources of international law. Consider judicial
opinions. Thirlway accepts "that a judicial decision ... adds something to the corpus of law on the
subject of the dispute" (p. 118) but insists that a judicial decision derives its authority from an
established formal source of international law. Thus, in the World Trade Organization (WTO)
system, "judicial 'interpretation' [of WTO treaty provisions] may appear to have reached a point of
utter detachment from, or inconsistency with these provisions" (p. 191). That fact, however, "does
not affect the principle of the subsidiarity of the judicial decision as a source" (id.). It may well
strike some observers as overly formalistic to insist that WTO dispute resolution bodies do not
make law. With respect to the law of maritime boundary delimitation as well, decisions of the ICJ,
the International Tribunal for the Law of the Sea, and arbitral tribunals contain judicial
innovations that do not merely reflect consistent state practice and opinio juris. Judicial decisions
shape international law, albeit often incrementally or interstitially in the context of deciding
particular fact-specific disputes. The significance of such decisions is growing with the expansion
of international courts and tribunals. Thirlway acknowledges this significance when he writes that
judicial decisions, even if they do not cross the threshold of formal sources, are "material sources
having a special degree of authority" (p. 117). But the number of observers who would go further
and "regard the principle that a judicial body does not create law as a pious fiction" (p. 118) may
well increase, particularly in some issue areas.

Over time, accepted formulations about what constitutes international law change, often

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gradually. The changes may relate to sources. During the mid-nineteenth century, for example,
some writers of a positivist bent still invoked divine law, but those invocations eventually
disappeared. Although it is possible linguistically to connect divine law to Article 38 sources--in
Thirlway's view, "the authority of the law stated as natural law rested on what would now be
called the general principles of law" (id.)--the more straightforward explanation is that modern
international lawyers think differently about what counts as international law. In the twenty-first
century, further changes may be in store. For example, as complex international institutional
procedures develop, so may the impetus to recognize, as a part of international law,
"constitutional" principles relating to fair process and derived from conceptions of justice.
Increased international roles for nonstate actors may affect whether decision makers will
recognize new sources of law not created by states.

Article 38 of the ICJ Statute is a product of a particular historical era. Thirlway's case that Article
38's time has not passed reflects sensitivity to the importance of state autonomy and self-
governance, as well as concern for the stability associated with tradition and an ordered legal
system. Debates may arise about what characteristics define treaties, custom, and general
principles of law, but for Thirlway those debates are carried on inside a closed system. This
reviewer is sympathetic to the view that thinking about international law in terms of sources helps
to order conceptions of the field, but that view need not lead one to stretch to find today that the
formal sources specified in Article 38 represent an exclusive set. Sources may develop
organically, with actors and decision makers gradually recognizing new sources. For example,
the efforts of judges to determine rights and obligations responsive to the needs of international
society in contextualized fact situations may yield authoritative decisions recognized as "law." A
sources orientation also need not be relentlessly positivist and may instead reflect continuing
efforts to mediate between modern versions of natural law and consensualism in international
law.

A broader debate is whether an approach that conceptualizes international law in terms of

sources, rather than in terms of actors or transnational interactions, will dominate in the future.
Thirlway is surely correct that a focus on sources has influenced conceptions of international law,
but that focus has never been the only way to understand the field. A question that deserves
continuing study is which theories of international law shape the views of judges on the various
international and municipal courts and tribunals, international lawyers working in different
subsystems of international law, and government officials in different countries (and even in
different administrations within one country). The Sources of International Law draws heavily on
ICJ cases--understandably, given Thirlway's expertise concerning the Court (6)--and he refers on
occasion to the views of individual ICJ judges that reflect "different schools of legal thinking" (p.
114). But one short book cannot investigate in depth how judges and international lawyers
working in different settings regard questions of theory.

The Sources of International Law is an erudite work about particular sources of international law
and more generally about the concept of sources. International lawyers, positivist and
nonpositivist alike, will find in it much to contemplate. So, too, will those who approach
international law from an interdisciplinary perspective and who want to understand one influential
legal theory about the discipline. Thirlway pushes all of us to think anew about "What counts as
law?," "Why are rules binding?," and why those questions are important.

JOHN E. NOYES
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California Western School of Law

(1) Article 38(1) of the ICJ Statute provides:

1. 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 the 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) As discussed at pages 176-80, Thirlway has thus modified his 1972 view that "one of the
most fundamental tenets of international law [is] that individuals and private corporations are not
subjects of international law." H. W. A. Thirlway, International Customary Law and Codification 7
(1972). That view is consistent with a state-centric positivist theory. However, although much of
international human rights law developed in the aftermath of World War II, eighteenth- and
nineteenth-century theories of the law of nations found that individuals were subjects of
international law, and municipal courts have long determined that individuals had rights and
responsibilities under international law. See MARK WESTON JANIS, INTERNATIONAL LAW
251-59 (6th ed. 2012).

(3) Nuclear Tests (Austl. v. Fr.), 1974 ICJ REP. 253, para. 43 (Dec. 20); Nuclear Tests (N.Z.. v.
Fr.), 1974 ICJ REP. 457, para. 46 (Dec. 20).

(4) Corfu Channel (UK v. Alb.), 1949 ICJ REP. 4, 22 (Apr. 9).

(5) See BRIAN D. LEPARD, CUSTOMARY INTERNATIONAL Law: A New Theory with practical
APPLICATIONS (2010);Anthea Elizabeth Roberts, Traditional and Modern Approaches to
Customary International Law: A Reconciliation, 95 AJIL 757 (2001). For another thoughtful
examination of the role of ethics in customary international law, see John Tasioulas, Customary
International Law and the Quest for Global Justice, in THE NATURE OF CUSTOMARY LAW
307 (Amanda Perreau-Saussine & James Bernard Murphy eds., 2007).

(6) See 1-2 Hugh Thirlway, The Law and Procedure OF THE INTERNATIONAL COURT OF
JUSTICE: Fifty Years of Jurisprudence (2013).

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