00 Course Material Public International Law

Study Material
on
PUBLIC INTERNATIONAL LAW
[B.A./B.B.A. LL.B. 7th Semester]
Complied by
Dr. Chandreshwari Minhas
Assistant Professor of Law
Himachal Pradesh National Law University, Shimla

16 Miles, Shimla-Mandi National Highway Ghandal,
District Shimla, HP-171014
Note: This material is provided only for the Academic Purpose. The students are required to
refer to prescribed Text Books and e-Library as well.
HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA
SEMESTER- VII
B.A. /B.B.A. LL.B. (Hons.) PAPER CODE: LL.B
COURSE TITLE: PUBLIC INTERNATIONAL LAW
CREDITS-04
MODULE – I
INTRODUCTION
1.1 Meaning, Evolution, Definitions, Nature and Legality of International Law
1.2 Theories as to the Basis of International Law
1.3 Development of International Law
1.4 Subjects of International Law
1.5 Relationship between International Law and Municipal Law
MODULE-2
SOURCES
2.1 Custom
2.2 Treaties
2.3 General Assembly Resolutions
2.4 General Principles
2.5 2.5 Juristic Works and Other Sources
HPNLU Shimla For Private Crculation Only Page No.1

MODULE- 3
RECOGNITION, EXTRADITION AND LAW OF THE SEA
3.1 Meaning of Recognition, Theories of Recognition, De facto, De jure Recognition, Implied

Recognition
3.2 Withdrawal of Recognition, Retroactive Effects of Recognition, Legal Effects of

Recognition, Indian Policy and Practice of Recognition of Governments and States
3.3 Extradition: State Jurisdiction, Customary Law Basis, Treaty Law, The Nature of
Obligation
3.4 Law of the Sea: Codification of the Law of the Sea under the UN, The Territorial Sea, The
Contiguous Zone, The Exclusive Economic Zone, The Continental Shelf, The High Seas, The
International Sea Bed
3.5 Settlement of Disputes, The International Tribunal for the Law of the Sea
MODULE- IV
SETTLEMENT OF INTERNATIONAL DISPUTES AND INTERNATIONAL

ORGANISATIONS
4.1 United Nations, United Nations General Assembly, Other Organs of the United Nations
4.2 Role of International Organisations (UN, ICJ etc.) in Dispute Settlements, Diplomatic and
Peaceful Methods of Dispute settlement
4.3 Arbitration: Concept and Nature, Future Prospects of International Arbitration
4.4 International Court of Justice: Composition, Jurisdiction
4.5 International Criminal Court: Need, Structure and Jurisdiction
Prescibed Books:
1. Starke, Introduction to International Law, Oxford University Press, 2013
2. S.K. Kapoor, International Law, Human Rights, Central Law Agency, 2009 7. Brownlie,
International Law and the Use of Force by States, Oxford: Clarendon Press, 1991

3. Gurdip Singh, International Law, Eastern Book Company, 2015(3rd Edn.).
References:
1. Shaw, International Law, Cambridge University Press, 2008 (6th Edn.).

2. Oppenheim, International Law, Biblio Bazaar, LIC, 2010.
3. James Crawford Brownlie, Principles of International Law, Oxford University Press, 2013.
4. A. Boyle & C. Chinkin, The Making of International Law, Foundations of Public International
Law, Oxford University Press, 2007.
5. R. P. Dhokalia, The Codification of Public International Law, United Kingdom: Manchester
University Press, 1970.
6. Mark Villiger, “The Factual Framework: Codification in Past and Present”, in Customary
International Law and Treaties, Mark Villger, pp.63-113, The Netherlands: Martinus Nijhoff,
1985.
7. Davis Harris and Sandeep Sivakumaran, Cases and Materials on International Law, Sweet and
Maxwell, 2015 (8th Edn.).
8. Martin Dixon, Robert Mccorquodale and Sarah Williams, Cases and Material on International
Law, Oxford University Press, 2011(6th Edn.).
9. K.C. Joshi, International Law and Human Rights, Eastern Book Company, 2016 (3rd Edn.)

Penn State International Law Review
Volume 17
Article 3
Number 2 Dickinson Journal of International Law
1-1-1999
The Basis of International Law: Why Nations

Observe
Jianming Shen
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Part of the International Law Commons
Recommended Citation
Shen, Jianming (1999) "The Basis of International Law: Why Nations Observe," Penn State International Law Review: Vol. 17: No. 2,
Article 3.
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The Basis of International Law: Why
Nations Observe
Jianming Shen, S.J.D.*
I. Introduction ................................ 289
II. The Naturalist Theories ....................... 290
A. Naturalism in General ..................... 291
1. The General Teachings of Naturalism ........ 291
2. General Critiques ...................... 296
B. The Doctrine of "Social Contract".............. 297
1. The Doctrine .......................... 297
2. Critiques ............................. 300
C. The Doctrine of Fundamental Rights of the State .. 303
1. The Doctrine .......................... 303
2. Critiques ............................. 304
D. The Theory of "Necessity of Law".............. 306
1. The Theory ........................... 306
2. Critiques ............................. 308
III. Positivist Theories ........................... 309
A. Positivism inGeneral ...................... 309
B. The Doctrine of the Will of the State ........... 311
1. The Doctrine .......................... 311
2. Critiques ............................. 313
C. The Doctrine of Consent ..................... 314
1. The Doctrine .......................... 314
2. Critiques ............................. 316
D. Voluntarism and the Doctrine of Automatic Limita-
tion ................................... 321
1. The Doctrine .......................... 321
2. Critiques ............................. 322
E. The Doctrine of Pacta Sunt Servanda .......... 323
1. The Doctrine .......................... 323
* Visiting Professor of Law, St. John's University School of Law, New York.
Professor Shen was formerly Research Fellow in International Law, University of
Hong Kong, Faculty of Law, Hong Kong; Kenneth Wang Research Professor of
Law, St. John's University School of Law, New York, and Assistant Professor of
International Law, Peking University Faculty of Law, Beijing.

288 DICKINSON JOURNAL OF INTERNATIONAL LAW [Vol. 17:2
2. Critiques ............................. 324

IV. Contemporary Doctrines and Approaches ......... 325
A. Neo-Naturalism .......................... 326
1. The Doctrine .......................... 326
2. Critiques.............................. 328
B. Neo-Positivism/Normativism/"PureScience of Law" 330
1. The Doctrine .......................... 330
2. Critiques ............................. 333
C. The Doctrine of Peaceful Co-Existence ......... 334
1. The Doctrine .......................... 334
2. Critiques ............................. 334
D. The Theory of Power Politics ................ 335
1. The Theory ........................... 335
2. Critiques ............................. 336
E. The Policy-Oriented Theory ................. 337
1. The Theory ........................... 337
2. Critiques ............................. 338
V. Factors Affecting Compliance ................... 340
A. Legal Belief and Legal Habit ................ 340
B. Consent and Pacta Sunt Servanda ............. 341
C. Necessity of InternationalRelations ............ 342
D. Interests ................................ 345
E. Reputation .............................. 348
F Reprisals and Sanctions .................... 349
VI. The Decisive Factor: Compromised Wills of States . . 350
VII. Conclusions ................................ 352

1999l THE BASIS OF INTERNATIONAL LAW
I. Introduction
"Implementation, Compliance, and Effectiveness" was the
main theme of the 91st Annual Meeting of the American Society
of International Law (ASIL) (1997). This theme reminded interna-
tional law scholars about Professor Henkin's familiar and well-
known statement with which the program description of the ASIL's
meeting began: "Almost all nations observe almost all principles of
international law and almost all of their obligations almost all of
the time. ' From this statement, one might infer the following:
First, "almost all nations," except for a very small number, observe
international law most of the time. Second, the phrase "almost all
principles of international law and almost all.., obligations"
suggests that there may be very few international law principles and
obligations that are not routinely observed by a given State(s).
Third, there must be very few instances when States do not comply
with international law, even with respect to those principles and
obligations which they do routinely observe. The 91st ASIL
Annual Meeting sought to address questions concerning (1) the
degree to which States observe international law, (2) the reasons
why they observe or disobey international law, (3) the enforcement
or implementation of international law within the domestic legal
system and (4) the effectiveness of the international legal system.
Regarding these four questions, the first one has been thoroughly
addressed in Professor Henkin's work. The second question is the
primary focus of this article. The third and fourth questions, while
related, present different broad issues that may be better dealt with
in a separate or more comprehensive treatment.
Generally speaking, international law is treated and observed
by States as law with binding authority, and States generally comply
with their international obligations. Yet, what makes international
law "work" has never been easily answered. Many international
law scholars and practitioners have been bewildered by questions
such as: Why do States generally comply with obligations imposed
by rules of international law? Where does international law derive
its validity? Why does international law have its binding force?
Given the complexity of these issues, these questions deserve
1. Louis HENKIN, How NATIONS BEHAVE 47 (2d ed. 1979) [hereinafter

HENKIN, 2nd ed.]; Louis HENKIN, ET AL., INTERNATIONAL LAW: CASES AND
MATERIALS 35 (3rd ed. 1993) [hereinafter HENKIN, et al. 3rd ed.]; see also LOUIS
HENKIN, How NATIONS BEHAVE 41-42 (1st ed. 1968) [hereinafter HENKIN, 1st
ed.] (stating that States observe international law on a routine basis).

further study and discussion. This article will examine what drives
States to generally comply with their obligations under internation-
al law.
For the purpose of this article, the phrase "international
obligations" denotes those obligations required of a State or States
by general and special international law rules of conduct. In this
context, one must distinguish between obligations imposed by
international law and those imposed by international politics. For
example, it is one thing that States comply with rules of interna-
tional law. It is quite another that they may choose to comply with
a call for sanctions against a given State deemed to have violated
international law. 2 It is important to note that compliance with or
an affirmative response to a call for sanctions should not be
confused with compliance with international law.3 This article will
address compliance with international law and not compliance with
a call for sanctions.
An integral part of a discussion on this subject should be
devoted to the main-stream schools of thought regarding the basis
of validity of international law. Accordingly, Parts II and III,
discuss the most influential traditional doctrines of naturalism,
positivism, and their variations. Part IV evaluates some contempo-
rary doctrines and approaches. Finally, Part V examines a non-
exclusive list of extrinsic factors that affect a State's choice to
comply with international law and attempts to explain the ultimate
driving force behind States' general adherence to their obligations
under international law.
II. The Naturalist Theories

Various doctrines exist regarding the basis for the binding
authority of international law.4 The two most prominent schools
2. This latter type of compliance may involve a legal obligation, as in the case
of compliance with Security Council resolutions under Article 25 of the Charter
of the United Nations.
3. On the topic of compliance with sanctions, see, e.g., Christopher C. Joyner,
Sanctions, Compliance and InternationalLaw: Reflections on the United Nations'
Experience against Iraq, 32 VA. J. INT'L. L. 1-46 (1991).
4. A number of cases of international tribunals and municipal courts have
touched upon the question of the basis of the validity of international law. See,
e.g., The Scotia, 81 U.S. (14 Wall.) 170 (1871); West Rand Central Gold Mining Co.
v. The King, 2 K.B. 391 (1905); The Prometheus 2 H.K.L. Rep. 207 (1906, Hong
Kong); The Wimbledon Case P.C.I.J. Ser. A, No. 1 (1923); Eastern Carelia Case,
P.C.I.J. Ser. B, No. 5 (1923); The Lotus Case, P.C.I.J., Ser. A, No. 10, pp. 17-18
(1927); Aerial Incident Case, I.C.J. Rep. 127 (1959).

1999] THE BASIS OF INTERNATIONAL LAW
of thought are naturalism and positivism. Many other doctrines are

either derived from or founded upon these two doctrines.
In the 17th and 18th centuries and earlier times, under the
influence of theology and the "law of nature," the science and
study of international law was dominated by the naturalist school.
This school maintained that the validity of international law was
based upon the will of God and that sovereigns were subject not
only to divine law, but also to the laws of nature established by
God. From the 19th century and onwards, positivism gradually
replaced the dominant role of naturalism. The positivist school
generally taught that the will of the State was the ultimate source
of all laws, international and domestic, and the basis of the binding
force of international law could only be sought from the fact that
States consented to be bound by it.5 Between the naturalist and
the positivist schools, there was an "eclectic school," also known as
the "Grotian" school, which attempted to harmonize naturalism
and positivism. However the proponents of eclecticism were either
"more naturalist" or "more positivist," thereby making it difficult
to regard the eclectic school as a separate discipline. For example,
the renowned "eclecticists," Baron Christian von Wolff (1679-
1754)6 and Emerich de Vattel (1714-1767), essentially belonged to
the naturalist school.7
A. Naturalism in General
1. The General Teachings of Naturalism-The naturalist

school generally negates the necessity, and denies the existence, of
positive law. It proposes that besides natural law (us naturae),
there is no room for any other law and that international law and
other systems of law all belong to the system of the law of nature.
The basis of the legal validity of all legal systems, to the naturalists,
5. Cf., e.g., 1 L.F.L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE 92 (8th

ed. by Hersch Lauterpacht,, London and New York: Longmans, Green, 1955)
[hereinafter OPPENHEIM, 8th ed.]; J. STARKE, AN INTRODUCTION TO INTERNA-
TIONAL LAW 22-27 (10th ed., London: Butterworths, 1989) [hereinafter STARKE,
10th ed.]; H.J. Morgenthau, Positivism, Functionalism and InternationalLaw, 34
AM. J. INT'L L. 260 ff (1940).
6. 1676-1756, according to another source. See URBAN G. WHITAKER, JR.,
POLITICS AND POWER: A TEXT IN INTERNATIONAL LAW 586 (New York: Harper
& Row, 1964).
7. Id.

rests on the will of the Supreme Being, God-created law or the law
of nature.8
The so-called "natural law" is a system of "natural law of
morality" invented and advocated by early European theologians
and philosophers, and recognized and accepted by later naturalists
and eclecticists. 9 It is a system that represents the "celestial" will
or the will of God and is otherwise known as "divine law" or that
body of legal norms and principles created by God.1 °
The notion of "jus naturae" may be traced back to Stoicism of
the Ancient Greek times in about the third century A.D. Stoicism
taught that man was a reasonable being, and the basis of natural
law was the reason of man. "Jus gentium" of the Ancient Romans
was a system of law based on the adoption of the concept of
natural law. The teaching of Saint Thomas Aquinas (1225-1274),
an Italian theologian and philosopher of the medieval times,
represented a historical apex in the development of natural law.11
It is observed that, according to Aquinas, "all human laws derive
from, and are subordinate to, the law of God. This law is partly
reflected in the law of nature, a body of permanent principles
grounded
12
in the Divine Order, and partly revealed in the Scrip-
ture.'1
Nevertheless, the formation, development and domination of
naturalism as a matured theoretical school was largely a matter for
the scholars of the 16th, 17th and 18th centuries. Early writers that
can be labeled as "naturalists" include the two well-known Spanish
theologians and jurists, Francisco de Vitoria (1486-1546) and
Francisco Suirez (1548-1617). For Vitoria, the law of nations "was
founded on the universal law of nature."' 3 Similarly, Sudrez
believed that international law was the derivation from or extension
8. See HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 243.(2nd ed.

1966) [hereinafter KELSEN, 2nd ed.]; JOHN FENNIS, NATURAL LAW AND
NATURAL RIGHTS 25-29 (Oxford: Clarendon Press, 1980, imprint 1988).
9. FENNIS, supra note 8, at 26 (quoting Joseph Raz, Kelsen's Theory of the
Basic Norm, 19 AM. J. JURIS. 94, 100 (1974)).
10. See KELSEN, 2nd ed., supra note 8, at 243; see also CHARLES DE
VISSCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW 16 (P.E.
Corbett trans., rev. ed. 1968) [hereinafter VISSCHER].
11. See Ernest Barker, Introduction to 1 OTTO FRIEDRICH VON GIERKE (1841-
1921), NATURAL LAW AND THE THEORY OF SOCIETY, 1500-1800 xxxiv-xliii
(transi. 1934).
12. HENKIN, ET AL, supra note 1, at xxiv.
13. MALCOLM N. SHAW, INTERNATIONAL LAW 22 (3rd ed. 1991, imprint
1995) [hereinafter SHAW, 3rd ed.] Vitoria's major works include DE INDIS ET DE
JURE BELLI RELECTIONES (Carnegie Classics 1917) (1696).

of natural law, and that natural law was the basis of international
law.4
Theories based on the "law of nature" became even more
popular and dominant in the 17th and 18th centuries. Insofar as
concerns the field of international law, the German jurist, Sammuel
Pufendorf (1632-1694) was the most prominent pioneer and
representative of the 17th century doctrines of natural law. An
extreme naturalist, Pufendorf (and his followers) denied the
existence of any positive rule, holding that only natural law
contained legally binding norms.15 Pufendorf and his followers
not only considered that the basis of international law was the law
of nature, but also viewed international law as16 part of natural law
or completely identified the two as the same.
Also influenced by and representative of the 17th and early
18th century naturalism were Christian Thomasius (1655-1728),
another German jurist, and two well-known English political and
juridical thinkers, Thomas Hobbes (1588-1679) and John Locke
(1632-1704). Thomasius' central theme of writings was about the
"law of nature." A celebrated international law scientist though,
Thomasius hardly showed "any great concern with the special
problems of international law" even if his major work bears the
title of ". . . jus naturae et gentium. '' 17 While Hobbes and Locke
14. See SHAW, 3rd ed., supra note 13, at 22 (observing Suirez's belief that "the
obligatory character of international law was based upon Natural Law, while its
substance derived from the Natural Law rule of carrying out agreements entered
into"). Sudrez's main contribution is his TRACTATUS DE LEGIBUS AC DEO LEGIS-
LATORE (Carnegie Classics 1944) (1612).
15. Pufendorf's absolute naturalism is reflected in his DE JURE NATURAE ET
GENTIUM LIBRI ocro (1672 & 1688, Carnegie Classics ed., Washington, 1934) and
ELEMENTORUM JURISPRUDENTIAE UNIVERSALIS LIBRI DUO (1672, Carnegie
Classics ed., Washington, 1931).
16. See ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS
148 (1954) (stating that "Pufendorf arrives at the unfortunate idea that there is no
independent jus gentium at all, and that jural relations among nations can be found
only in natural law," and "Pufendorf in fact sets out to prove that every rule
actually observed among nations is nothing but law of nature"). See also G.
SCHWARZENBERGER & E.D. BROWN, A MANUAL OF INTERNATIONAL LAW 16
(6th ed., rev. 2nd impression, 1978) [hereinafter SCHWARZENBERGER & BROWN];
STARKE, 10th ed., supra note 5, at 22.
17. NUSSBAUM, supra note 16, at 164, 338, n.102. Two of Thomasius' main
works were: CHRISTIAN THOMASIUS, FUNDAMENTA JURIS NATURAE ET GENTIUM
(Foundations of the Law of Nature and Nations) (1705) (referred to in NUSS-
BAUM, supra, at 338; STIG STROMHOLM, A SHORT HISTORY OF LEGAL THINKING
IN THE WEST 190 (1985)); CHRISTIAN THOMASIUS, INSTITUTIONES JURISPRU-
DENTIAE DIVINAE (1688). Another major work of Thomasius' was titled De
optima respublica, but the publication year is unavailable to the present author.

have sometimes been labeled "founders" of positivism,18 their

natural law orientation is also beyond doubt. Hobbes' naturalist
preference is reflected in his doctrines of social contract and "the
state of nature."1 9 The law of nature occupied an important part
in the writings of Hobbes, who believed that the law of nature
forbid such acts as theft, murder, adultery, and all injuries, are
forbid by the laws of nature. 2' For Hobbes, with whom Pufendorf 21
agreed, "there is no law among nations except natural law.
Locke, who "clung to the notion of just war by asserting that only
in the case of such a war did the victor acquire a right over the
vanquished, 22 developed a whole new set of ideas (vis-d-vis
Hobbes') on natural rights, state of nature, social contract and laws
of nature.23
The Dutch writer Hugo Grotius (1583-1645), widely considered
to be the "founder" or "father" of the Law of Nations, 24 also had
natural law as "a dominant element" in his teachings. 25 However
Grotius' work was authority to both naturalists and positivists.
Commenting on Grotius, the late Judge Laches observed:
Grotius was extremely able in combining theory and prac-
tice .... He did not abandon the concept of immutable
natural law. Without identifying it with divine law, still less
with the law of nations, he regarded it has a moral code and as
an independent, superior source of law; it was thus the guardian
of justice, not of the status quo, and he saw in it no barrier to
18. See, e.g., Theodore P. Rebard, A Few Words on John Locke, 40 AM. J.
JURIS. 199 (1995) (stating that the "dubious honor" of being "founder of the
powerful school of legal positivism ...must belong in the modern age to
Machiavelli and to Hobbes" and that "Locke stands as an historical founder of
legal positivism in a broad sense, to include matters not only of legislation but also
of political and juridical practice"); Rex J. Zedalis, On First Considering Whether
Law Binds, 69 IND. L.J. 137, 143, n.27 (1993) (stating that "the historical
antecedents of positivism extend at least to ... John Locke, who maintained that
consent created a majoritarian community that succeeded to the earlier state of
nature and gave rise to the notion of legal obligation," citing JOHN LOCKE, THE
SECOND TREATISE ON CIVIL GOVERNMENT ch. VIII, at 95-99, reprinted in JOHN
LOCKE, ON POLITICS AND EDUCATION 75, 123-25 (Classics Club ed. 1947).
19. THOMAS HOBBES, LEVIATHAN, Pt. II, ch. XVIII (Everyman 1914) (1651).
20. THOMAS HOBBES, ELEMENTA PHILOSOPHICA DE CIVE, reprinted in
THOMAS HOBBES: MAN AND CITIZEN 185 (1642, B. Gert ed., 1991).
21. NASSBAUM, supra note 16, at 148.
22. Id., at 164.
23. JOHN LOCKE, Two TREATISES OF CIVIL GOVERNMENT, bk. 2, ch. 13, at
149 ff (1690, W. Carpenter ed. 1924).
24. See NUSSBAUM, supra note 16, at 113; SHAW, 3rd ed., supra note 13, at 22.
25. NUSSBAUM, supra note 14, at 135. For more discussion of Grotius' teach-
ings, see id. at 106-114.

the evolution of jus voluntarium. Within this evolution,

potential new rules, based upon the will of States, not imposed
but exercised by consent, could regulate international problems
in a progressive manner.2
Grotius' works attracted a number of followers, known as the

"Grotians" who sought to refine the concept of natural law.
Among these followers included the proponents of the eclectic
school of the eighteenth century. The great Swiss writers of Wolff
and Vattel are regarded as the the 18th century, are regarded the
leading exponents of the eclectic school.27 The eclecticists at-
tempted to combine elements of both naturalism and positivism but
leaned more toward the former than toward the latter. In 1758,
e.g., Vattel wrote:
We use the term necessary Law of Nations for that law which
results from applying the natural law to nations. It is necessary,
because nations are absolutely bound to observe it. It contains
those precepts which the natural law dictates to States, and it is
no less binding upon them than it is upon individuals. For
States are composed of men, their policies are determined by
men, and these men are subject to the natural law under
whatever capacity they act. This same law is called by Grotius
and his followers the international Law of Nations, inasmuch as
it is binding upon the conscience of nations. Several Writers call
it the natural Law of Nations.2"
Naturalism and its variations, in numerous ramifications, begin
with the assumption that, according to its nature, the law is a super-
sensibly valid order and must therefore also, in the last instance,
derive its validity from a super-sensual source. This super-sensual
source has been sought in, for example, the will of God, pure
reason inherent in man, the idea of justice and social solidarity.
According to naturalists, the individual has some rights which can
be deduced directly from nature in general, and, in particular, from
26. MANFRED LACHS, THE TEACHER IN INTERNATIONAL LAW 53 (2nd rev.

ed. 1982) (citing HUGO GROTIUS, DE JURE BELLI Ac PACIS LIBRI TRES (THE
LAW OF WAR AND PEACE) paras. 40-41. (trans., London vol. 2, book 1, 1925)
(1646).
27.See SCHWARZENBERGER & BROWN, supra note 16, at 17.
28.EMERICH DE VATrEL, LE DROIT DES GENS OU PRINCIPES DE LA Lol
NATURELLE APPLIQUtS A LA CONDUITE ET AUX AFFAIRES DES NATIONS ET DES
SOuvERAINs (The Law of Nations), Preliminaries, para. 7, Carnegie Classics 1916
(1758). For Wolff's teachings, see infra text accompanying notes 68-69.

nature as created by God. 29 The nature from which these rights

are deduced is mostly considered to be the nature of man himself,
in particular his reason. Consequently, one speaks of inborn or
inherent rights as distinct from those rights conferred upon man by
positive law. "These rights," remarks the well-known Viennese
jurist Hans Kelsen (1881-1973), "include freedom, equality,
property [and] self-preservation., 31 Starke observes that "there
are . . . writers ... who treat . . . 'natural law' as [being] identical
with reason and justice applied to the international community and
who look upon it as thereby elucidating the lines of the future
development of international law."31
2. General Critiques-There are several criticisms of the

doctrine of natural law. First, each naturalist uses the "law of
nature" as "a metaphor for some more concrete conception such as
reason, justice, utility, the general interests of the international
community, necessity, or religious dictates" and these various
interpretations of natural law may differ so widely as to lead "to a
great deal of confusion. 3 2 Additionally, Schwarzenberger and
Brown have noted that the propositions of the naturalist school
"were so vague as to become practically meaningless. 3 3 A second
criticism of naturalism involves it's disconnection with reality. By
denying the existence of rules of positive law, extreme naturalists
espouse a doctrine that many modern scholars view as simply not
being supported by reality.34 According to these critics, the
29. See NUSSBAUM, supra note 16, at 147-164; KELSEN, 2nd ed., supra note 8,
at 243 ff
30. KELSEN, 2nd ed., supra note 8, at 243. See also STARKE, 10th ed., supra
note 5, at 22-23.
31. STARKE, 10th ed., supra note 5, at 23.
33. SCHWARZENBERGER & BROWN, supra note 16, at 16.
34. Many modern and contemporary influential writers favor a positivist ap-
proach. See, e.g., 1 OPPENHEIM, 8th ed., supra note 5, at 18-19; L.F.L. OPPEN-
HELM, INTERNATIONAL LAW: A TREATISE, VOL. I, PEACE 14-15 (9th ed. by Sir
Robert Jennings & Sir Arthur Watts, London and New York: Longmans, 1992)
[hereinafter OPPENHEIM, 9th ed.]; ANZILOTrI, infra note 126; TRIEPEL, infra note
90; G.I. TUNKIN, DROIT INTERNATIONAL PUBLIC: PROBLkMES THtORIQUES 80
(French transl. from Russian, Paris, 1965); G.I. Tunkin, The Contemporary Soviet
Theory of International Law, [1978] CURRENT LEGAL PROB. 177 (1978); F.I.
KOZHEVNIKOV, ED., INTERNATIONAL LAW: A TEXTBOOK FOR USE IN LAW
SCHOOLS 1 (Academy of Sciences of the U.S.S.R. Institute of State and Law,
English trans. from Russian by Dennis Ogden, Moscow: Foreign Languages
Publishing House, 1960) [hereinafter [KOZHEVNIKOV, ED.] (defining international
law); see also Hart, Positivism and the Separation of Law and Morals, 71 HARV.
L. REV. 593 (1958).

doctrine of natural law is aloof from the realities of international

life and lacks emphasis on the actual practice of relations between
States.35
Last but not the least the question of whether "natural law"
exists is itself problematic. Under natural law, the right of one
individual or entity presupposes the duty of another and there
cannot be any right in the absence of a corresponding obligation.
Thus, natural law proponents argue that natural law imposes duties
upon persons in relation to others. Critics contend that this
position is absurd and instead argue that the so-called notions of
''natural law,' ''inherent human rights" and the like are purely
artificial creations of theoreticians and that such concepts do not
exist in the absence of positive law-making. As is properly noted
by Kelsen, duties and rights presuppose the existence of a legal
system, which can only be established by acts of men or associa-
tions of men.36
On the other hand, naturalism is not completely meaningless
and worthless. According to Starke, the notion of natural law, due
to "its rational and idealistic character,... has had a tremendous
[positive] influence ...on the development of international law
..., has at least generated respect for international law, and
provided.., moral foundations" for international law.37 Some of
these moral foundations derived from natural law include the
doctrines of social contract, fundamental rights of States, the
necessity of law and the like. These doctrines may each emphasize
different aspects of the structure of rights, however, each is derived
from the doctrine of naturalism.
B. The Doctrine of "Social Contract"
1. The Doctrine-The doctrine of social contract, otherwise

known as the school of social bond or the doctrine of social
solidarity, is a theory derived from the naturalist school. The
concept of social contract can be traced to the teachings of ancient
Greek Sophists (meaning teachers of wisdom or specialists im
wisdom). Some of the Sophists believed that "law and society are
based upon a contract between those concerned ('the social
contract') and ... this fact has an impact upon the contests of legal
35. Id.
36. See KELSEN, 2nd ed., supra note 8, at 243-244.

system. 38 It was further developed by Hobbes, Locke and most

notably by the French jurist and political philosopher Jean Jacques
Rousseau (1712-1778)." 9 According to the doctrine of social
contract, all laws are the result of society and their validity is based
on a kind of social bond, social contract or social solidarity,4"
which is the case with domestic law as well as with international
law."
For the proponents of this doctrine, the individual is born free
and equal. He is only bound by his own will and not by any
external force.42 On the other hand, the individual does not live
in a vacuum, but co-exists with other individuals in a social bond.
Thus, there arises the need and necessity to regulate the common
behavior of and mutual relations between all individuals, and to
establish a certain social order among them. The only way of
establishing such a social order is to "conclude" a social contract
between free and equal individuals, which will be binding upon all
individuals due to their common consent.4 3 As a result, a society
emerges comprising individuals, State authority and social order
(the State). In the interest of himself and others, each individual
voluntarily places limitation on part of his inherent freedom and
"natural" rights. This social bond between men necessitates the
establishment of a certain legal order and determines the binding
validity of such order." The doctrine's point is well stated in
Rousseau's famous Contrat social.45
38. STROMHOLM, supra note 17, at 28.

39. See WAYNE MORRISON, JURISPRUDENCE: FROM THE GREEKS TO POST-
MODERNISM 107, n.7 (London: Cavendish Publishing Ltd., 1997) (quoting and
discussing Hobbes' concept of "social contract" in his LEVIATHAN (Ch. 21:265, 269
(stating that "every subject is Author of every act the Sovereign both.., the Con-
sent of a Subject to Sovereign Power, is contained in these words, I Authorise, or
take upon me, all his actions")), 398 (briefly discussing Locke's philosophy and'
referring to Locke as "the classical social contract theorist") & 153-62 (discussing
Rousseau's "expressive idea of the social contract").
40. See KELSEN, 2nd ed., supra note 8, at 146-148; NUSSBAUM, supra note 146
at 20 & 29-30.
41. See KELSEN, 2nd ed., supra note 68 at 147-148.
42. See id. at 446.
43. See id. at 247-248.
44. See id. See also J.L. BRIERLY, THE LAW OF NATIONS 50 (6th ed. by Sir
Humphrey Waldock, New York & Oxford: Oxford University Press, 1963)
[hereinafter BRIERLY, 6th ed.]; 1 D.P. O'CONNELL, INTERNATIONAL LAW 297
(1970).
45. JEAN JACQUES ROUSSEAU, CONTRAT SOCIAL (1762). See Joseph Raz.
The Obligation to Obey: Revision and Tradition, 1 J. L., Ethics & Pub. Pol'y 139-
299, 297 (1984) (stating that "Rousseau was the most important eighteenth century
thinker to highlight the intrinsic value of the social contract as the act which

Similarly, according to the doctrine of social contract, the

State, before becoming part of an international society, possesses
sovereignty and fundamental rights conferred upon it by nature; it
is only bound by its own will, and is not subject to any extraneous
authority. Nevertheless, the State does not exist alone. Rather, it
co-lives with other States in a social bond - the international
society, from which it cannot separate itself.'4 For a State to take
part in the international society, that State must voluntarily limit
some of its own inherent natural rights. Thus, it becomes necessary
to establish a certain order for the international society and to
regulate the behavior of and relations between all State by entering
into social contracts.4 7
Besides Rousseau and a few other writers of his time,
proponents of the social bond doctrine include the American jurist
Roscoe Pound (1870-1964), the Dutch jurist H. Krabbe (1859-1936)
and the French jurist Leon Duguit (1859-1928). Pound held that
international law had a social function and it was necessary for
international law to meet the need of constant changes of the
international society.' According to Krabbe, law derives from
man's perception of right or their conscience, and such perception
of right or conscience is, like moral and religious perception, man's
inherent psychological quality. International law is born when men
of different States under external influence apply their perception
of rights and legal conscience to international relations. That is,
the validity of international law rests upon the legal conscience of
various nations or their ruling class.4 9
Duguit wrote that "there is no sociological philosopher who
has tried to determine the exact moment when a social norm really
becomes a juridical norm. Jurists should do this, and in France the
only one who has really tried is... Grny."5 To Duguit, "law is
not a creation of the state; ... it exists apart from the state; . . . the
idea of law is entirely independent of the idea of the state;
and ... a rule of law is imposed upon the state as upon individu-
constitutes civil society, as well as the personality of those who belong to it").
46. See KELSEN, 2nd ed., supra note 6, at 147-148.
47. See id.
48. R. Pound, PhilosophicalTheory and InternationalLaw, in 1 BIBLIOTHECA
VISSERIANA (1923).
49. See H. Krabbe, L'Idee moderne de I'Etat, 13 RECUEIL DES COURS 513
(1926).
50. L. Duguit, Objective Law, 20 COLUMBIA L. REv. 816 (1920); 21
COLUMBIA L. REV. 17, 126 (1921).

als."51 He emphasized the "social fact" character of the basis of

international law, and proposed that international law should be
properly called "inter-social law." He believed that religious,
moral, material and economic factors united individuals so that they
felt the need for unifying their "feeling." Such "social fact" created
social norms and law, without which the society cannot exist
52
anymore.
Under the social contract doctrine, without doubt, there are
preconditions before the individual or the State agrees to be bound
by a certain social contract. The individual enters into the society
and agrees to a social bond on the condition that, on the one hand,
his natural rights be saved from the authority of the State, and on
the other hand, that other individuals exercise the same self-
restrictions, compromise and reservation. Similarly, the State
enters into the international society and agrees to be bound by a
certain legal order on the condition that its fundamental rights are
preserved and other States make their self-limitation and reserva-
tion in the same manner. That is to say, the individuals are by
nature free and equal. The State, as the society of men, comes into
existence due to two facts: (1) that free and equal individuals
consent to an agreement upon a social order to regulate their
mutual behavior; and (2) that every individual voluntarily restricts
his freedom in the interest of others, provided that others restrict
theirs in the same way. Likewise, the State exists as a subject (a
personality) of natural rights (sovereignty, independence, jurisdic-
tion, etc.) before it enters into the international society. When the
State voluntarily enters into the community of nations, it impliedly
submits itself to international law, resulting in implied restriction of
its natural rights and freedom. Yet, the State does so not only on
the condition that it retains certain fundamental "natural" rights,
but also on the condition that other States consent to the same
restriction on their rights and freedom.
2. Critiques-The doctrine of social contract may appear to

be more persuasive than other naturalist doctrines. Nevertheless,
like the whole system of naturalist theories, the "social contract"
doctrine is still vulnerable to criticism. It is true that just as the
individual is a social entity, no State exists alone in a vacuum.
51. Id. at 21.

52. 1 L. DUGUIT, TRArrt DE DROIT CONSITUTIONNELY 17 & 67 (1927); see
also Joseph C. Gidynski, Duguit's Sociological Approach to the Bases of
InternationalLaw, 31 IOWA L. REV. 599 (1946).

19991 THE BASIS OF INTERNATIONAL LAW
Rather, each State must enter into relations or transactions with

other members of the international society. However, as stated
earlier, natural law and natural rights do not exist at all. The
reason that the State inevitably has to enter into international
relations is not because of the exercise of its "natural" and
"inherent" rights, but rather because such intercourse is determined
by the State's national will, which in essence is the will of the
decision-making class of the State. Sovereignty and other "funda-
mental rights" of the State are not "natural rights," but are the
requirements and expressions of the wills of the State. The so-
called "legal conscience" and similar concepts are unable to find
their basis from nature. This indicates that the basic point of the
doctrine of social contract is erroneous and groundless.
Further, in the sense of international law, it is not that the
need arises for the State to participate in the international society
after the State enjoys its rights (and undertakes its obligations), but
rather it is the reverse. It is because of the need for States to take
part in international life and after States do enter into international
relations that the legal relations of rights and obligations between
States are created. As far as the original creation of the fundamen-
tal rights and obligations of States in international law is concerned,
these rights and obligations were the result of States' mutual
compromise between, and reciprocal recognition of, one another.
Therefore, the rights and obligations of States, no matter how
fundamental they are, are neither natural rights nor obligations
accorded to States by "God," but rather are "man-made," positive
rights and obligations.
Third, the so-called "social bond" or "social contract" is also
a fictitious concept. According to the doctrine of social bond, the
State's entry into the international society is impliedly conditional
(the so-called social contract). This doctrine seems to suggest that
the State either may or may not participate in international life,
because a contract can be entered into only on a voluntary basis.
The reality is that the State is the creation of, and exists in, an
international society. The social attribute of a State is in a sense
beyond the control of its will. As long as it acquires or possesses
the capacity to enter into international relations (and therefore
physically constitutes a sovereign State), it inevitably has to become
a participant in international relations regardless of its willingness
or unwillingness. The proposition that the State enters into the
international society on implied conditions (social contract) is thus
without merit.

Fourth, the doctrine of social contract suggests that the social

bond (or implied social contract) between man and man or
between State and State "is somehow less natural, or less a part of
the whole personality, than the individuality of the man or the
state." 3 That is, the existence of individuals or States precedes
their social connections. This proposition, however, is without
merit. The only individuals are individuals in society. All men are
born into a preexisting society. They enter into a social bond at
the same time they become existent in the world. The social
contract doctrine is in no better position when applied to interna-
tional relations. No State evolves in a vacuum. A State becomes
a player in the international system from the very moment of its
inception. It is not that States enter into the family of nations on
the condition that their "natural" rights be preserved and their
individuality and freedom be emphasized, but that their rights (and
duties) are contingent upon recognition by international law and,
in the end, upon their interdependence and upon their mutual
recognition inter se. It is thus especially misleading to apply the
view of the doctrine of the social bond to the international society
of States. In the society of States, if there is a sense in the notion
of "social bond," the need is not for greater liberty for the
individual States, but for enhancing the "social bond" between
them or strengthening their reciprocal relations and interdepen-
dence.
Fifth, the social attribute of the State naturally determines that
States cannot exist without intercourse between one another. It also
calls for the establishment of an international legal system for the
regulation of such intercourse between States. However, the social
attribute of the State is not itself the basis of the validity of
international law. It is the States themselves that together (1)
participate in the creation, formation, perfection and acceptance of
international law and (2) accord international law with legally
binding validity. Therefore, the basis of international law and of its
validity must be sought in the wills of States,54 not in the so-called
"social bond" between States or the social attribute of their being.
Since the doctrine of social contract (1) over-emphasizes the
social attribute of the State, (2) overlooks the fact that the basic
constituent units of the international society are sovereign States
53. BRIERLY, 6th ed., supra note 44, at 50.

54. Of course, the "wills of States" are not the individual wills of one State or
a group of States, nor the "common" wills of all States, but the compromised and
coordinated wills of States in general.

themselves and (3) ignores the sovereign wills of the State, this
doctrine is bound to enter into a theoretical dead end, being unable
to explain why international law is legally valid and binding."
C. The Doctrine of Fundamental Rights of the State
1. The Doctrine-The doctrines of fundamental rights of the

State and of social bond are closely related theories based on the
law of nature. As de Visscher pointed out, the doctrine of
fundamental rights of States and the doctrine of social contract,
"far from being mutually exclusive, were complementary. Both
were essentially individualistic."56 These two theories both
prevailed in the 18th and 19th centuries, and still have their
supporters in the 20th century.57
Indeed, the doctrine of fundamental rights of the State, from
a somewhat different angle, expresses the same idea as the "social
contract" theory. Under the "fundamental rights" doctrine,
principles of international law can be deduced from the essential
nature of the State. According to this doctrine, every State by
virtue of its statehood and its capacity as a member of the family
of nations is.endowed with certain fundamental, inherent or natural
rights.5 These rights are not created by general customary or
conventional international law, but originate in the nature of the
State. The norms underlying these fundamental rights of the State
are the ultimate basis and source of positive international law, and
have a greater obligatory force than the rules of positive interna-
59
tional law which exist in the form of customs and treaties.
55. See GuoJI FA (International Law) 7 (Wang Tieya & Wei Min, eds.,
Beijing: Law Publishing House, 1st ed. 1981, 4th imprint 1985) [hereinafter WANG
& WEI, eds.].
56. VISSCHER, supra note 10, at 17-18.
57. Cf., e.g., CHARLES G. FENWICK, INTERNATIONAL LAW 32-33 (4th ed.,
New York: Appleton-Century-Crofts, 1965), where it is stated that
...states are not juridical abstractions; they are corporate groups made
up of individual human beings with common moral and material interests
transcending territorial boundaries. Hence the same forces that have
driven individual men to unite in civil society, to organize separate
national groups, have driven states to recognize the need of developing
a law to govern their mutual relations .... International law is thus
based ultimately upon the realization by states that in spite of their
national divergencies they have certain common ideals and common
moral and material interests which give to their collective group the
character of a community.
58. See id. at 49.
59. See id.

The doctrine of fundamental rights of States, as summarized61

by Brierly,6 ° stems from the doctrine of the "state of nature.,
According to the latter doctrine, individuals lived in a "state of
nature" before forming themselves into political communities or
States. 62 This doctrine implies that the state of nature is a pre-
political condition of the human race. This is not necessarily a
condition in which individuals have ever actually lived in history,
but a condition in which they would find themselves to be living
together without a State for the ordering of their lives. The
doctrine of the "state of nature" is designed to explain and justify
the establishment of the State above individuals and the "eventual"
establishment of a "supranational" entity above States.
The doctrine of "the state of nature" (1) considers the State as
being a supra-individual institution which individuals have together
agreed to set up so as to substitute law and order for the inconve-
nient anarchy of their natural condition and, likewise, (2) deems a
"super-State" as being a supranational organization which States
will likely agree to establish together in order to replace the
inconvenient international anarchy of their natural condition with
a "world" law and a "world" order. Under the doctrine of
fundamental rights of States, since States have not formed
themselves into a supranational entity or a super-State, they are
still supposed to be living in a "state of nature." In other words, the
overriding philosophy of rights of States as of today is still natural
rights, i.e., States existing in a "state of nature," lacking a suprana-
tional entity or a "super-State" as a political institution above them
all.
2. Critiques-Brierly suggested that the doctrine of funda-

mental rights must be read subject to the two following conditions.
First, the identification of the doctrine of natural or fundamental
rights with the doctrine of natural law must be guarded against.
Second, it must be borne in mind that the doctrine of fundamental
rights of States, like that of the natural rights of individuals, has
exercised a salutary influence at certain stage of the history of the
63
law.
60. See BRIERLY, 6th ed., supra note 44, at 49; J.L. BRIERLY, THE BASIS OF
OBLIGATION IN INTERNATIONAL LAW 3-4 (1958) [hereinafter BRIERLY, BASIS].
61. The conception of "the state of nature" is illustrated in the works of both
Hobbes and Locke. See notes 18-23 & 39 supra and accompanying text.
62. BRIERLY, BASIS, supra note 60, at 3-4 & 33.
63. See BRIERLY, BASIS, supra note 60, at 8; see also BRIERLY, 6th ed., supra
note 44, at 49-50.

Brierly's position is credible to the extent (1) that the doctrine

of fundamental rights of the State is but a variation of the natural-
ist school and (2) that both the traditional naturalism and the idea
of natural or fundamental rights of men and States have played
positive roles in the development and perfection of human society
and of national and international legal systems. Beyond these,
however, one has to admit that the doctrine of fundamental or
natural rights of the State, like any other variation of the naturalist
school, is neither historically sound nor theoretically justified. The
reasons are as follows.
In the first place, the doctrine of fundamental rights is against
the weight of history because it regards the State as something
stagnant instead of being the product of a historical process of
which the main outlines can be traced.6' The doctrine overlooks
the fact that States underwent a long process of historical develop-
ment and the fact that the attribution to States of such notions as
sovereignty, independence and equality, which is often labeled as
"inherent" and "natural" fundamental rights of States, is merely
one of the many stages in that historical process. After all, States'
sovereignty, independence, equality and other fundamental rights
(and corresponding obligations) were not established and recog-
nized until modern times.6 5
Second, the normal or typical State, as necessarily assumed by
the doctrine of fundamental rights, is a product of imagination.
What exists is not "the typical State," but "States" which differ
from each other in an indefinite number of ways. This difficulty
cannot be eluded by maintaining that the doctrine of fundamental
rights is intended to apply only to States that have entered into the
international community and submitted to international law or only
to States that are members of the so-called family of nations. This
would be the equivalent of saying that rights are inherent not in
States as such but only in those States in which they are inherent.
It would also result in the abandoning of the very essence of this
doctrine itself and ultimately lead to the conclusion that the rights
are derived not from the "nature of the State," but from member-
ship in a juridical system.
Third, it is clear that the doctrine of fundamental rights is a
product of the pure doctrine of individualism. As de Visscher
criticized, "[b]orn with modern States, the theory of fundamental
64. See BRIERLY, BASIS, supra note 60, at 5.

65. See BRIERLY, 6th ed., supra note 44, at 51.

rights betrays its origin; it is the direct reflection of their struggles

for independence and 'a product of the pure gospel of individual-
ism applied in the international domain'. 66
Fourth, the doctrine of fundamental rights appears as if it
emphasizes nature, reality and society and has made a connection
between the law on the one hand and nature, reality and society on
the other. However, it neglects the fact that the international
community is composed of sovereign States whose obedience to the
law of nations is not based on any "inherent" fundamental rights
when they enter into international relations, but rather based on
their compromised political wills and consent.
Fifth, it is theoretically defective to draw analogies between
individuals and States, or between a society of men (normally a
State) and a society of States (the so-called international communi-
ty). Although it is proper to "personify" States in international law
for the sake of convenience, the State and the individual are such
different beings that it would be more appropriate not to place
them in the same category by analogy with reference to one
another. The basis of the validity of international law and the
rights (and duties) of States thereunder may not be explained in
light of the positive rights (and duties) of individuals under the
domestic legal system, not to mention the irrelevance of any "natural
rights" of individuals.
Lastly, a "right" is a meaningless term unless the existence of
an objective legal system from which it derives its validity is
presupposed.67 It is a fallacy to imagine that a system of law can
be constructed out of rights as existing in the nature of things.
Nature knows nothing of such human creations as rights and
obligations and "law." Rights and obligations exist only in the
thoughts of human beings as recognized by a certain legal system
established by human beings themselves.
D. The Theory of "Necessity of Law"
1. The Theory-The doctrine of necessity of law is another

theory closely related to the doctrine of social bond, but with
different emphases. Brierly observes that the subjection of States
to law needs no special philosophical explanation other than that
66. VISSCHER, supra note 10, at 18, citing J.L. Brierly, Le fondement de la
force obligatoiredu droit international,23 RECUEIL DES COURS 472,474 (1928 III).
67. See KELSEN, 2nd ed., supra note 6, at 243-244. For more discussion, see
BRIERLY, BASIS, supra note 60, at 5-9.

by which one explains the subjection of individuals to the law of

the State. 68 "[T]here are important differences between interna-
tional law and the law under which individuals live in a state, but
those differences do not lie in metaphysics nor in any mystical
qualities of the entity called state sovereignty." 69 Under this
assumption, some jurists were able to develop a theory of "necessi-
ty of law" that would purportedly apply to all laws, domestic and
international.
The doctrine of necessity of law grows out of the Latin maxim
ubi societas,ibi jus (where there is a society, there is law), and is in
fact another form of expression of the doctrine of social contract.
According to this doctrine, law is not a mere accidental develop-
ment of history, but an essential element of human association.
Where there is a human society, there is the need for law. By the
same token, international law is an essential and necessary element
of inter-State relations and, as such, is bound to exist as long as
there exists an international society. The need of the international
society for international law is the same as the need of human
society for domestic law.
Aristotle (384-322 B.C.), the great ancient Greek philosopher
and scientist, pointed out that man was by his very nature a social
being and by his very nature in need of law. Likewise, the State,
despite its corporate character, had itself become "a social being"
in relation to other members of the international community. He
believed that "[t]he state is the perfect natural society" within
whose circle man might fulfill all of his needs.7"
Baron Christian von Wolff (1679-1754), the 18th century
Prussian philosopher and eclecticist (more often considered a
naturalist) mentioned earlier, created the concepts of jus necessari-
um (necessary law) and jus gentium necessarium (necessary
international law) and believed that international law had four
sources: natural international law, voluntary international law, 71
conventional international law and customary international law.

69. Id. at 55.
70. See 1 J. PASQUAZI, IUS INTERNATIONALE PUBLICUM (Public International
Law) 43 (Rome, 1935).
71. Wolff's ideas are reflected in his eight-volume treatise, Jus NATURAE
METHODO SCIENTIFICA PERTRACTUM (The Law of Nature According to the
Scientific Method) (1740-1748), and another important volume of his, Jus
GENTIUM METHODO SCIENTIFICA PERTRACTUM (The Law of Nations According
to the Scientific Method) (1749) (Oxford: The Clarendon Press; Carnegie Classics,
Washington, 1934).

According to his interpretation, natural international law is

."necessary international law," because he had the belief that the
nature of man required him to continuously improve his own
72
perfection and promote that of others.
Sir Robert Phillimore (1810-1885), an English naturalist who
believed that custom and usage expressed "the consent of nations
to things which are naturally, that is by the law of God, binding
upon them," developed this theory in more explicit terms. He
stated:
To move, and live, and have its being in the great community
of nations, is as much the normal condition of a single nation,
as to live in a social state is the normal condition of a single
man. From the nature of states, as from the nature of individu-
als, certain rights and obligations towards each other necessarily
73
spring; these are defined and governed by certain laws.
According to the doctrine of "necessity of law," the inter-
dependence of States is a fact and there exists a community of
interests between States in the same sense as there exists a
community of interests between individual men. The need of law
between States is as great as the need of law between individuals.
The prevention of war, the regulation of conflicting claims, and the
promotion of the general welfare of the group are conditions which
create a moral and material unity among States in the same manner
that they create a moral and material unity between individuals
within the State. That States have common interests constitutes an
actual community of States and demands a rule of law. Therefore,
the necessity for international law and the constant contact of
human beings with one another constitutes the very basis of
74
international law.
2. Critiques-The doctrine of necessity of law is partly

correct in that States, which do not exist in a political vacuum but
in consecutive political relations with one another, do have and
realize the need for a system of order in which their inter-depen-
dent activities may be carried on. The major defect of this
doctrine, however, is that it offers only a marginal explanation of
72. Id.
73. 1 SIR R. PHILLIMORE, COMMENTARIES UPON INTERNATIONAL LAW 3 (3rd
ed., London, 1879, reprinted by F.B. Rothman, 1985).
74. See FENWICK, supra note 57, at 36-37.

the basis of international law, which constitutes a philosophical or

sociological explanation rather than a legal one.
Another defect of this theory is that it starts with the concept
of natural law. It teaches that where there is a society, there is law.
At the same time, it ignores the decisive roles played by the will of
States, holding that certain rights and duties of States are inherent
in the very nature of the State. More obviously, the necessity of
law theorists consider (as Sir Robert Phillimore did) international
law as being "naturally" binding upon States, that is, by virtue of
"the law of God." The so-called "law of God" or "law of nature,"
like "God" per se, is non-existent.
Also, it is improper to match the State being a society of men
with a society of States. While it may be argued that the State is
the perfect society of men in which men may fulfill all their needs,
there is no comparable entity at the international level to be called
a "perfect society of States."
Nevertheless, the doctrine of "necessity of law" can serve as a
marginal explanation to the validity of international law if, and only
if, it is "purified" by excluding any element of natural law.
III. Positivist Theories
A. Positivism in General
In direct opposition to the naturalist theories are positivism
and various derivative positivist theories. Positivism generally
teaches that the law of nations is the aggregate of positive rules by
which States have consented to be bound, exclusive of any concepts
of natural law such as "reason" and "justice." For the positivists,
nothing can be called "law" among States to which they have not
consented. The proponents of the positivist doctrines maintain that
the will of the State is absolutely sovereign and that it is the source
of the validity of all law. The validity of all laws, whether domestic
or international, depends upon the supreme will of the State. The
positivists believe, as Starke observes, that the rules of international
law are, in the end, similar to domestic law in the sense that they
both derive their binding force from the will of the State.75
Alberico Gentilis (1552-1608), the English writer of Italian
origin, and Richard Zouche (1590-1660), another English writer,
may be said to be the originators of the school of positive law.
Although Gentilis formulated the school of the so-called "jus
75. See STARKE, 10th ed., supra note 5, at 23-24.

naturaeet gentium" (natural law and international law), his doctrine

had already departed from theology and canon law.76 He opposed
to the idea of identifying international law with natural law,
advocated the interpretation of international law from the perspec-
tive of reality, recognized the existence of different nation-States,
believed that every nation-State in reality had equal rights and for
the first time attributed the basis or foundation of international law
to the practice (and will) of the State, as reflected in treaties,
voluntary obligations, custom and history.77 On the other hand,
some critics decline to regard Gentilis a positivist because there was
not enough concern with State practice in his works despite the
influence he received from realism."
On the basis of Gentilis' doctrine, Zouche completely negated
natural law.79 Zouche no longer used the term jus gentium to
denote international law and instead used the expression jus inter
gentes.s He believed that international law, being the law among
States, was a law recognized by States with sovereign authority - "a
law 'which has been accepted [through] custom conforming to
reason among most nations or which has been agreed upon by
single nations,' to be observed in time of peace and war.""s
During the time of the renowned Dutch jurist
Cornelis van
Bynkershoek (1673-1743), one of the most learned and respected
of the early positivist thinkers, positivism gained another opportuni-
ty for further development. Admittedly, due to the naturalist
influence of his time, Bynkershoek particularly emphasized the
"principle of bona fides" as being the theoretical foundation of all
agreements between States, and reason occupied an important place
in his thinking. And "his own protestations notwithstanding," one
commentator observes, Bynkershoek "must be accorded a place
76. See LACHS, supra note 26, at 50.

77. See id., at 50-51. See also WESLEY L. GOULD, AN INTRODUCTION TO
INTERNATIONAL LAW 45-47 & 57 (New York: Harper & Brothers, 1956);
SCHWARZENBERGER & BROWN, supra note 16, at 15-16; MAX SORENSEN, ed.,
MANUAL OF INTERNATIONAL LAW 15-16 (New York: St. Martin's Press, 1968).
Gentilis' ideas were mainly reflected in two works of his. A. GENTILIs, DE
LEGATIONIBUS LIBRI TRES (On Embassies) (London, 1585); id. DE JURE BELLI
COMMENTATIONES (On the Law of War) (London, 1588-1589).
78. See e.g., NUSSBAUM, supra note 16, at 164.
79. See SHAW, 3rd ed., supra note 13, at 24.
80. See NUSSBAUM, supra note 146 at 165-166.
81. Id. at 167, quoting RICHARD ZOUCHE, JURIS ET JUDICII FECIALIS, SIVE
JURIS INTER GENTES, ET QUAESTIONUM DE EODEM EXPLICATIO (Fetial Law and
Procedure, or Law among Nations, and Questions concerning Same) (Oxford,
1650, Carnegie Classics, Washington, 1911).

among the Grotian eclectics who found a bridge between positive

and natural law.",82 Nevertheless, Bynkershoek's strong positivist
orientation must be recognized. In his famous Quaestionumjuris
publici, Bynkershoek emphasized the importance of the practice of
modern States, custom and treaties, completely ignored the "law of
nature" and held (1) that the rules of international law were
established through the consent of States, and (2) that all agree-
ments between States were the products of their sovereign wills.8 3
Despite the teaching of early positivist thinkers, positivism did
not begin to take over the theoretical domination by naturalism
until the 19th century. Since then, positive international law
underwent important development under the influence of positiv-
ism and the most obvious examples include Europe-centered
international conferences, various international conventions and
institutions of international law that emerged in the stages of the
nineteenth century. The expansions of Western Powers, the
maturation of the system of international law, and the continuing
spread of the positivist school led men to the belief that law is
essentially the command issued by sovereigns or sovereign entities,
that is to say, it is the body of rules of conduct prescribed by
human beings. Any concept of "reason," "morality" or "justice" is
totally irrelevant to the issue of validity of such "man-made" law.
The validity of domestic law of one State depends in the last
analysis on the sovereign will of the State itself, while that of
international law depends on the collective wills of all sovereign
States.
Within the positivist school there are several doctrines or
variations: the doctrine of the will of the State, the doctrine of
consent, the doctrine of auto-limitation, and the doctrine of pacta
sunt servanda. These doctrines or variations have one thing in
common: they all maintain positivism and oppose naturalism,
though from different perspectives or with different emphases.
B. The Doctrine of the Will of the State
1. The Doctrine-While Gentilis was the first to maintain

that the basis of international law was the will of States, Georg
Wilhelm Friedrich Hegel (1770-1831) was perhaps the first to have
systematically advanced and analyzed the doctrine of the will of the
82. WHITAKER, supra note 6, at 311.

83. C. BYNKERSHOEK, QUAESTIONES JURIS PUBLICI (Questions of Public
Law) (Leiden, 1737).

State.' Hegel taught that the individual belonged to the State

because the State contained the wills of all citizens, and those wills
were transformed into a higher-level will of the State.85 Law was
also subject to the abstract concept of the "State" because the State
itself was sovereign and supreme, therefore nothing could be
beyond the State, or there was no room to subject the State to any
other authority.86 On this met the minds of Hegel and Jean
Bodin. According to Jean Bodin, the state "has an absolute power
over its subjects, and that power is not limited by any law. The
state alone can issue laws, without being bound by them, and laws,
in fact, are nothing but the sovereign's commands."'
Of course, Hegel and his followers also recognized the
existence of international law. They considered international law
as the "external public law" (auj3eres Staasrecht) of the State, and
emphasized the principle of pacta sunt servanda. On the other
hand, they believed that the will of the State determined the
existence and concrete contents of treaties.8 8 Hegel even believed
that the State in its own interest might declare war against another,
so as to preserve itself and even to expand the sphere of its
sovereign influence.89
Heinrich Triepel (1868-1946), one of the spokesmen of
dualism, is another supporter of the doctrine of the will of the
State. He attempted to extend the binding force of international
law without completely denying its voluntary nature by developing
the doctrine of the "general will" or the "common will" (Gemein-
wille) and the notion of agreements between States (Vereinba-
rung).9 He was of the opinion that the individual will of each
State, if isolated from one another, could not give rise to interna-
tional law. Only when these individual national wills met together
84. Hegel's main works included the well-known GRUNDLINIEN DER PHILO-
SOPHIE DES RECHTS (1820). See W.G. FRIEDMANN, LEGAL THEORY 164-176 (5th
ed., London: Stevens & Sons, 1967).
85. See VISSCHER, supra note 10, at 35-36 (discussing "the Hegolian concept
of the State") & 61 (observing Hegel's concept of "ethical will" of "nation-
States"). See also FRIEDMANN, supra note 81, at 167-68; LACHS, supra note 24, at
15-16.
86. See FRIEDMANN, supra note 84, at 169-70.
87. STROMHOLM, supra note 17, at 151.
88. For example, Georg Jellinek was of the view. See BRIERLY, BASIS, supra
note 60, at 13-14 (citing Jellinek's GESETZ UND VERORDNUNG 197). For more
discussion on Jellinek, see text accompanying notes 120-122 infra.
89. See FRIEDMANN, supra note 81, at 170. See also SCHLOMO AVINERI,
HEGEL'S THEORY OF THE MODERN STATE (1972).
90. H. TRIEPEL, VOLKERRECHT UND LANDESRECHT (International Law and
Municipal Law) (1899).

could there be law-making treaties and the general will of States

ultimately determined the contents and validity of international
law.91
2. Critiques-The positivist doctrine of the will of the State

represents a major theoretical progress in that it recognizes the
objective linkage between the basis of validity of international law
and the will of States. It is inaccurate, however, to state that the
binding force of international law depends simply on the will of the
State or the common will of the States. If the will of the individual
State determined the validity of international law, then each State
might have easily renounced a given rule of international law
merely on the ground that such rule was against its supreme will,
thus resulting not in the affirmation but in the very negation of the
validity of international law. If "the will of States" denoted the
common wills of all States upon which the binding force of
international law were founded, then one must say every rule of the
law ought to be based on such "common wills." But this is not the
case in real international life either. Although, in certain circum-
stances, it is not impossible for States at large to have one or more
common will, it is virtually impossible to imagine the presence of
common wills of all States with regard to every and all customary
and conventional rules of international law, considering the
tremendous diversity and variance of nation-States in terms of size,
population, history, culture, religious belief, geographical location,
economic development and political systems.
Kelsen even held that States were bound by general interna-
tional law without, and even against, their will.9 According to
Kelsen, when a new State comes into existence, it has all the rights
and duties stipulated by general international law, without any act
of recognition of general international law on the part of the new
State being necessary.93 For Kelsen, "[j]ust as the individual does
not submit [himself] voluntarily to the domestic law of [his] state
which is binding upon him without and even against his will, a state
does not submit voluntarily to international law, which is binding
upon it whether it does recognize international law or does not
91. See id. This work of Triepel's was generally considered an improvement
over earlier ideas of auto-limitation discussed below. However, the "common will"
(Gemeinwille) doctrine neither eliminated the voluntary aspect of international law
nor satisfactorily proved its binding force.
92. KELSEN, 2nd ed., supra note 8, at 247. For further discussion of Kelsen's
neo-positivism, see text accompanying notes 148 ff infra.
93. KELSEN, 2nd ed., supra note 8, at 247.

recognize it."'94 The present author does not agree with Kelsen's
analogy of States with individuals, but he agrees that not all rules
of international law reflect the true and original will of a given
State, especially in the case of a newly independent State, which
typically played no significant role or no role at all in the formation
of existing international legal rules.
C. The Doctrine of Consent
1. The Doctrine-The exponents of the doctrine of consent

also maintain that the will of the State is the controlling element of
the binding force of international law, but their emphasis is on the
mechanism of State consent through which the will of the State is
expressed. For them, the rules of international law become positive
law when the will of the State consents to being bound by them
whether expressly or impliedly. According to the consent doctrine,
it is the sovereign and supreme will of the State that commands
obedience. This will of the State is said to be expressed in the case
of domestic law through State legislation and in the case of
international law through consent to international rules. Being a
main theory of positivism, the doctrine of consent generally teaches
that the consent or common consent of States voluntarily entering
the international community constitutes the basis of validity of
international law. States are said to be bound by international law
because they have given their consent.
An extreme faction of the consent theory, on the one hand,
professes that a State is not bound by any legal norm to which it
has not explicitly consented.95 To some positivists, observed
Bhattacharya, international law is essentially a species of "conven-
tional law" consisting of treaties and agreements entered into
among States in their mutual intercourses and it is in such treaties
and agreements that international law has its binding force.96
According to the observation of Ross, "[t]he positivist theories take
it for granted that all International Law is conventional law ...and
that all validity of International Law is in the last instance derived
from a union of the wills of the sovereign states."97 This emphasis
on the "conventional" nature (that is, the element of explicit
94. Id.
95. See, e.g., SIR JOHN SALMOND, JURISPRUDENCE 55 (2nd ed.), (quoted &
cited in) BRIERLY, BASIS, supra note 60, at 10. Brierly also observed similar view-
points of other jurists. BRIERLY, BASIS, supra, at 10-11.
96. See K.K. BHATTACHARYA, INTERNATIONAL LAW 14 (6th ed., India, 1982).
97. ALF Ross, A TEXT-BOOK OF INTERNATIONAL LAW 94 (1947).

consent) of international law could arguably lead to the denial of

the binding force of customary international law.
On the other hand, another faction of the consent doctrine
holds that if a State (especially a newly created or newly indepen-
dent State) has not openly and expressly objected to a certain norm
of international custom, it may be said to have given its implicit
consent to such norm.9" In other words, the consent of States to
a given rule of international law may be either explicit as indicated
in a treaty, or tacit as implied in the acquiescence in a customary
rule. In the case of custom it is the implied consent and in the case
of treaties it is the express consent that is said to serve as the basis
for the validity of international law. When States exercise their
wills to explicitly or implicitly accept and consent to be bound by
certain rules of law, those rules become positive rules of interna-
tional law and acquire legally binding validity.
As far back as early 18th century, Bynkershoek took the
position that the basis of obligations in international law derived
from either the express consent or implied consent of States, and
that there was no room for the existence of inter-State law beyond
what States had accepted as binding by means of express or implied
consent.99 Triepel, while believing that the Gemeinwill (common
will) of States was the basis for the validity of international law,
pointed out (1) that international law depended upon Vereinbarung
(agreements between States), which included not only treaties but
98. See, e.g., EMMERICH DE VATrEL, LAW OF NATIONS 316 (Joseph Chitty
trans., 1863) (stating that "if custom has introduced certain formalities in the
business, those nations who, by adopting the custom, have given their tacit consent
to such formalities, are under an obligation of observing them"); Albert
Lapradelle, Introductionto 3 EMMERICH DE VATrEL, THE LAW OF NATIONS OR
THE PRINCIPLES OF NATURAL LAW APPLIED TO THE CONDUCT AND THE
AFFAIRS OF NATIONS AND OF SOVEREIGNS ' 27, at 9 (Charles G. Fenwick trans.,
Carnegie ed. 1916) (1758) (noting that there are three divisions that "form
together the positive Law of Nations, for they all proceed from the agreement of
Nations[:] the voluntary law from their presumed consent; the conventional law
from their express consent; and the customary law from their tacit consent");
Antonio F. Perez, Who Killed Sovereignty? Or: Changing Norms Concerning
Sovereignty in InternationalLaw, 14 WIS. INT'L L.J. 463, 467, n.20 (1996) (dis-
cussing the proposition that "[t]he voluntary assumption of treaty obligations
should not be regarded as a limitation upon but rather as an expression of the
state's sovereignty" (quoting HANS BLIX, SOVEREIGNTY, AGGRESSION, AND
NEUTRALITY 11 (1970)) by noting that "Blix's argument need not be limited to
treaties, since customary law equally involves the transfer based on tacit consent
of such entitlements and even new states might be said to have consented ... to
limits on their sovereignty under customary law" (emphasis added)).
99. C. VAN BYNKERSHOEK, DE FORO LEGATORUM LIBER SINGULARIS (1st ed.
1721, 2nd ed. 1744, Carnegie Classics, Oxford, 1946).

also custom, and (2) that Vereinbarungwas the only creative source
of international law.' 0 FL. Oppenheim (1858-1919), a modern
master of international law, also belonged to the positivist school
of State consent. For him and his followers, the basis of interna-
tional law was nothing else but the explicit or implicit consent of
States.1"'
2. Critiques-The consent doctrine and the doctrine of the

will of the State express virtually the same idea. There is certain
sense in these positivist doctrines. The most obvious merit of these
two doctrines is that they approach the history, development and
reality of international law more than any other doctrines. It is
correct to say that international law, being a system of law of
coordination and cooperation among States, is the reflection of the
will of sovereign States. The creation and continuing validity of
such legal system must be dependent on the general consent,
acquiescence and/or acceptance of States at large. Further, legal
obligation may arise en consensu. State consent plays an important
role in maintaining an international legal order. The obligation of
a contract in civil law, or the obligation of a treaty in international
law, clearly arises by way of consent.
Fenwick is particularly critical of the positivist consent views
regarding the basis of international law. 1 2 He points out that the
positivist theory is incorrect because it goes against the principles
and things which the States accepted "from their very incep-
tion."' 3 In his opinion, the theory that international law is based
upon the consent of States is "inadequate to explain the assumption
upon which governments appear to have acted from the beginning
of international law."'" Whatever the position taken by writers,
he observes, governments have always looked upon international
law as having an objective character, as being binding because it is
the "law," not because States find it convenient to observe. 10 5
100. TRIEPEL, supra note 90. Triepel's ideas are discussed in BRIERLY, BASIS,
supra note 60, at 15-16; NUSSBAUM, supra note 146 at 235.
101. 1 L.F.L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE 1 (1st ed., 1905-
1906) [hereinafter OPPENHEIM, 1st ed.]; vol. 1, 8th ed., supra note, at 16-17; 1
OPPENHEINM, 9th ed., supra note 34, at 14 (stating that "[tihe common consent
that is meant is ... not consent to particular rules but ... the express or tacit
consent of states to the body of rules comprising international law as a whole at
any particular time").
102. FENWICK, supra note 57, at 35-6.
103. Id. at 36.
104. Id.
105. See id.

Brierly opines that the assumption that international law

consists of nothing except what the States have consented to is an
inadequate account of the international legal system as can be seen
in its actual operation. Brierly even argues that implied consent is
not a philosophically sound explanation of customary law, but
merely a fiction invented by the theorist, since a customary rule is
observed not because it has been consented to but because it is
believed to be binding. He concludes that States do not regard
their international legal relations as resulting from consent, except
10 6
when the consent was express.
The present author agrees that there are situations where
States may be treated as being bound by rules and principles to
which they did not consent. For example, a defeated State may
find itself to be in a situation in which it must comply with
obligations imposed upon it by other States at large collectively or
individually. Nevertheless, the present author rejects the opinion
that implied consent does not exist. When a customary rule of
international law is generally observed by States, some States,
especially those which participated in the initiation of the custom
or pattern of behavior in question, follow the rule or continue to
follow it actively partly because they have tacitly consented to the
pattern of behavior as a legal norm. Such active and voluntary
behavior may be properly said to be implying a tacit consent of the
States concerned. On the other hand, for other players, especially
for new States which did not contribute to the formation of the
rule, they observe it or at least do not object to it passively,
because they feel themselves to be compelled to do so even against
their will due to an overwhelming number of existing States
following the rule. Such passive and even involuntary submission
to a rule, although sometimes described as implied consent, may
hardly be said to constitute "consent" in the strict sense of the
word.
Therefore, the words "consent" and "implied consent," as they
appear in international legal literature, must be understood with
care and/or qualification. Even some of those who believe common
consent to be the basis of international law admit that common
consent does not necessarily mean that consent has been given by
each and every State. It is stated, for example, that "common
consent merely means the express or tacit consent of so over-
whelming a majority of States that those who do not consent are of
106. See BRIERLY, 6th ed., supra note 41, at 51-52.

no significance as compared to any community viewed as an entity

in contradistinction to the will of its single member."' 0 7 Irrespec-
tive of the above, the major point here is that although consent
plays an important role, it is not the only or the ultimate factor
determining the validity of the rules of international law.
One of the defects of the pure consent theory is that it may be
used to justify the withdrawal of consent, leading to the denial of
a given rule of international law. If a State concludes a treaty with
another, such a treaty will be binding upon the parties. But if the
consent once given is subsequently withdrawn, will the State still be
bound by the treaty? If the treaty was said to be no longer binding
after withdrawal of consent, it would lead to the conclusion that a
State can by its unilateral act enforce its unconditional right to
relieve itself from any obligation to which it was bound under the
treaty. Under this assumption, the State could not still be held to
be under the obligation, for the consent which allegedly was the
very basis of such obligation no longer existed after such withdraw-
al. Similarly, since custom was said to be the tacit consent of
States, a State might, at will, withdraw this tacit consent by
changing its direction of behavior or breaking a given custom. As
Brierly comments, a consistently consensual theory would have to
admit that if consent is withdrawn, the obligation created by it
comes to an end." 8
To overcome this difficulty, Oppenheim, as edited by Lauter-
pacht, points out:
[N]o State can at some time or another declare that it will in
future no longer submit to a certain recognised rule of the Law
of Nations. The body of the rules of this law can be altered by
common consent only, not by a unilateral declaration on the
part of one State. This applies not only to customary rules, but
also to such conventional rules as have been called into
existence through a law-making treaty for the purpose of
creating a permanent mode of future international conduct
without a right of the signatory Powers to give notice of
withdrawal. It would, for instance, be a violation of Interna-
tional Law on the part of a signatory of the General Treaty for
107. 1 OPPENHEIM, 8th ed., supra note 5, at 17. See also 1 id., 9th ed., supra
note 34, at 14 (stating that the words "common consent" "cannot mean ... that
all states must at all times expressly consent to every part of the body of rules
constituting international law, for such common consent could never in practice be
established").
108. BRIERLY, 6th ed., supra note 44, at 51-52.

the Renunciation of War of 1928 to declare that it has ceased

to be a party.°9
It is true that once "common consent" is reached it may be
changed, withdrawn, or replaced only by way of another "common
consent." It is also true that common consent of States at large
forms a partial explanation why States observe international law.
Yet, in the last analysis, and for the reasons stated above,11 °
common consent is not the ultimate basis of the validity of the law.
While common consent may be an important and, at times, a major
factor, in the formation of rules of international law, it certainly is
not the sole factor and in certain circumstances is even not a
decisive factor."1
First of all, the term "consent" is inappropriate when applied
to new States, since new States did not participate in the process of
formulating existing rules of international law. They may not be
said to have consented to every and all existing rules of internation-
al law when or before they acquired or regained independence
and/or became formally established or reestablished."' Of
course, newly independent States and new States created through
other means, after attaining their statehood and becoming a
participant in the international community, have the right to
expressly or impliedly indicate their acceptance as binding law the
whole body or part of existing rules of international law. If such
explicit or implicit acceptance by new States may be said to have
the significance of constituting "subsequent consent," then such
consent, essentially, is the result of the compromise of their
national will. It is difficult to maintain that new States' acceptance
of existing rules of international law, the creation of which they did
not take part in, stems from their true and whole-hearted consent.
Further, even in the course of formation of specific norms of
international law by existing States, there may be situations where
no common consent is ever reached at all. For example, the
consent doctrine is incapable of taking into account "the tremen-
dous growth in international institutions and the network of rules
109. 1 OPPENHEIM, 8th ed., supra note 4, at 18-19.

110. See text accompanying notes 107-108 supra.
111. It must be noted that common consent of States does not equate the so-
called "common wills" of States. Consent is not necessarily a process of expressing
the will of the State; rather, it is a process of concession, compromise and
understanding.
112. See N. SHAW, INTERNATIONAL LAW 9-10 (2nd ed., Cambridge: Grotius,
1986) [hereinafter SHAW, 2nd ed.].

and regulations that have emerged from them within the last
generation. ' Although none of the existing international
organizations constitutes a legislative body above States, their
significant role in facilitating the evolution and development of new
rules and principles of international law cannot be ignored.114
Many of the new rules have been drafted and formulated by a
handful of legal experts from various leading legal systems under
the auspices of international organizations, particularly the
International Law Commission of the United*Nations, and are
gradually accepted and/or adhered to by an increasing number of
nations. 15 This law-creating process would better be called a
process of compromising rather than a process of consent.
In addition, it must not be forgotten that consent cannot by
itself create an obligation. It can do so only within a system of law
which declares that consent duly given shall be binding on the party
consenting. In other words, a contract or treaty is capable of
having this legally binding effect only because there exists an
underlying general principle of law - pacta sunt servanda - that
gives effect to the terms of a contract or treaty. On the other
hand, the validity of this general legal principle again rests upon an
entire system of law which recognizes it. Without a legal principle
to that effect, and without a legal system giving effect to that
principle, it would be meaningless to talk about rights and
obligations arising from consent (mainly contract or treaty).
Finally, the notion of pacta sunt servanda is an important
principle of international law and may be said to be the immediate
(though not the ultimate) basis of obligations arising from interna-
tional treaties. If one assumes that the validity of international law
is based on the consent of States, then this principle itself as part
of the body of legal rules must also be regarded as being based on
consent. But this assumption is circular, absurd and unsound as
one cannot say that a legal principle is the basis of obligations
arising from consent while at the same time that principle is also
based on consent.116 One may well speak of a legal obligation as
consensual, meaning only that the occasion out of which it arises is
113. Id. at 10.

114. See Jianming Shen, The Role of the United Nations in the Determination
and Development of InternationalLaw (Chinese), 1995 CH. Y.B. INT'L L. (1996)
115. See id.
116. See SHAW, 3rd ed., supra note 13, at 10 (stating that "the principle that
agreements are binding (pacta sunt servanda) upon which all treaty law must be
based cannot itself be based on consent").

a consensus of parties, but without implying that its immediate

basis, the rule of law which gives binding effect to the consensus,
is itself consensual in character. "To say that the rule pacta sunt
servanda is itself founded on consent is to argue in a circle," as
Brierly correctly points out." 7
D. Voluntarism and the Doctrine of Automatic Limitation
1. The Doctrine-The consent theory as originally propound-

ed was later modified in certain respects by followers of the
positivist school. It later developed into the auto-limitation or self-
limitation doctrine (also known as "voluntarist positivism" or
"voluntarism"),1 1 and the doctrine of pacta sunt servanda.
Some proponents of the auto-limitation doctrine attribute a
will to States, clothe that will with full sovereignty and authority,
and maintain that international law consists of those rules which
the wills of the various States have accepted by a process of
voluntary self-restriction. The doctrine of States' auto-limitation or
self-limitation is thus another traditional theory of the positivist
school. It teaches that international law is the outcome of the
exercise of self-limitation by States, and that the basis of its validity
is the wills and voluntarism of States. The self-limitation doctrine
proclaims that States are sovereigns, whose wills reject any type of
external limitation, and if their sovereignty is in any way limited,
that limitation cannot be from any external force, but only be
imposed by the States themselves. 9
Voluntarism stemmed from the teaching of Hegel12 ° and was
put forward and fully developed by the Austrian, Georg Jellinek
(1851-1911), on the basis of the main postulates of positivism. In
the view of Jellinek, the supra will of the State by consenting to be
bound by customary and conventional rules of international law
places limitations on its sovereignty. The rules of international law
derive their binding force by self-limitation of the sovereign will of
States through consent. The will of the State being sovereign could
not be subordinated to any external power unless it consented to
it. Jellinek was more concerned with the effect of consent on the
will of the State rather than with the source of the binding force of
117.BRIERLY, 6th ed., supra note 44, at 53.

118.See VISSCHER, supra note 10, at 51-54.
119.For an account of the doctrine of States's self or auto-limitation, see
BRIERLY, 6th ed., supra note 44, at 53-54; VISSCHER, supra note 10, at 51-54.
120. See BRIERLY, 6th ed., supra note 41, at 53.

international law. He believed that the international community

was an emanation of the rights of individual States - hence its
imperfection, lacunae and imbalance. The voluntarists recognized
the existence of rules of international law, but did not regard these
rules absolute because the legal validity of such rules was contin-
gent upon the self-limitation of States. If international rules ever
conflicted with a State's sovereignty, then they had to yield to
it.121 This theory thus appears to have come together with the
naturalist theory of social contract.122
2. Critiques-Jellinek'stheory is not only incapable of ade-
quately explaining the basis of international law, but it also contains
a certain element of danger. In the relationship between State
sovereignty and international law, there does exist an element of a
kind of self-restriction by States on their sovereign power, but it
would go too far to maintain that such self-limitation on a State's
sovereignty constitutes the basis of validity of international law. It
would also be incorrect to say that such self-limitation may be
withdrawn at a State's will.
Visscher is particularly critical of Jellinek's theory. He points
out that ". . . caught between the search for a higher objective
order and respect for sovereignties, Jellinek finally surrendered to
the latter. Sovereignty, he says, implies the absence of any
subordinations other than those created by the State's capacity to
bind itself., 123 In reality, the voluntarist theory is scoffed at by
some on the ground, among others, that a voluntarily self-imposed
limitation "is no limitation at all., 124 In case of any complicity
between State interest and individual right and between State
sovereignty and international order on the other, as Friedmann
remarks, the voluntarist theory is bound to come down on the side
of State sovereignty. In the absence of a superior legal order and
authority, the State can revoke its voluntary self-limitation
internally by altering the constitutional functions of its organs, and
internationally by revoking its voluntary observation of rules of
121. See NUSSBAUM, supra note 16, at 235, citing GEORG JELLINEK, DIE
RECHTLICHE NATUR DER STAATS-VERTRAGE (Vienna, 1880). See also GEORG
JELLINEK, ALLGEMEINE RECHTSLEHRE (Vienna, 1905); id., SYSTEM DES SUBJEKT-
IVEN OFFENTLICHEN RECHTS (1905).

conduct.12 5 The objective result of voluntarism would thus appear

obvious: a classical denial of international law itself.
The truth is that international law and its binding validity come
from the compromise between different and at times conflicting
wills of various States. The compromise and "consent" of States
result in both gains and losses. The rules of international law,
when created by the compromised wills of sovereign States in the
form of "consent," become legally binding upon those States whose
compromised national wills so "consent" from the very moment of
the creation of these rules. Thus, States may not unilaterally
withdraw, at will, their compromise "consent" to the coordinative
rules of law thus created, nor can they unilaterally withdraw their
"self-limitation" on their sovereignty no matter how "voluntary"
the self-limitation may be.
E. The Doctrine of Pacta Sunt Servanda
1. The Doctrine-Itwas "the true [Italian] Maestro" Dionisio

Anzilotti (1869-1950) that formulated the theory of pacta sunt
servanda to explain the basis of the validity of international
law. 12 6 He regards the rules of international law to be either
customary rules or rules arising out of treaties or agreements
among States and considers the doctrine of pacta sunt servianda as
"an absolute postulate of the international legal system.' ' 127
Anzilotti considered States to be bound to obey such rules by
reason of a pact both express and implied and "stressed the openly
or tacitly conventional character of international law, which in his
view relied on pacta sunt servanda.' 121 In his famous standard
textbook of international law, Anzilotti writes:
Every legal order consists of a complex of norms which derive
their obligatory character from a fundamental norm to which
they all relate, directly or indirectly. The fundamental norm
determines, in this way, which norms compose a given legal
order and gives unity to the whole. The international legal
125. SeeFRIEDMANN, supra note 84, at 388.

126. LACHS, supra note 24, at 97. For Anzilotti's accomplishments, see 1 D.
ANZILOTrI, CORSO DI DIRITTO INTERZIONALE (3rd ed., Rome, 1928); id.,
TEORIA GENERALE DELLA RESPONSABILITA DELLO STATO NEL DIRITrO
INTERNAZIONALE (Florence, 1902); id., IL DIRiTTO INTERNAZIONALE NEI GUIDIZE
INTERNI (Bologna, 1905).
127. J. STARKE, AN INTRODUCTION TO INTERNATIONAL LAW 24 (9th ed.,
London: Butterworths, 1984) [hereinafter STARKE, 9th ed.].
128. LACHS, supra note 26, at 97.

order is distinguished by the fact that, in this order, the

principle pacta sunt servanda does not depend, as in internation-
al law, upon a superior norm; it is itself the supreme norm. The
rule according to which "States must respect the agreements
concluded between them," thus constitutes the formal criterion
which distinguishes the norms of which we speak from other
norms and gives unity to the whole; all norms, and only the
norms, which depend upon this principle as the necessary and
exclusive source of their obligatory character, belong to the
category of those with which we are concerned here (italics
original).' 29
Anzilotti's doctrine is analogous to the normativist school
discussed below,13 ° especially to the proposition of Hans Kelsen
and Alfred Verdross (1890-1980). Kelsen observes that in
accordance with the principle of pacta sunt servanda, the basic
norm of customary international law is identical with that of
conventional international law. That is:
[T]he principle pacta sunt servanda, as a rule of natural law,
serves as the basic norm of the whole legal system we call
international law. The essential function of this theory is to
maintain the principle that a State can be legally bound only by
its own will, and hence by its consent to the norms regulating
its behaviour. In this way the
13
theory maintains the dogma of
the sovereignty of the state. '
Verdross also believes that the dogma of pacta sunt servanda is the
source of validity of all norms of international law, and treats this
dogma as a "basic norm" in the international legal system.132
2. Critiques-Again, the principle of pacta sunt servanda

again is a partial explanation of the basis of the validity of
international law. In the first place, it only explains why treaties
have obligatory force. The notion of "implied pact" in the form of
custom and usages is hardly convincing. The consent of States does
not equal an agreement or a pact. A pact is only one of the ways
of expressing the consent of States, and it specifically denotes a
formal and normally written agreement reached between two or
more States creating specific legal rights and obligations. Consent
129. ANZILoTrI, CORSO, supra note 126, at 43 (the English translation of the
paragraph quoted above appears at STARKE, 10th ed., supra note 5, at 25).
130. See text accompanying notes 148 ff infra.

can be either express or implied, but an agreement or pact must

always be express. Although in a sense custom may express an
implied consent of States, it would be too far to attribute custom
to the formal status of a "pact" even though it is preceded with the
word "implied." Starke holds that the view of Anzilotti that
customary international law is binding by virtue of an implied pact
is no more persuasive than the "tacit" consent arguments of other
positivists.'33
Secondly, one has to further question the validity of the
principle of pacta sunt servanda, which gives validity to express
consent in the form of a pact. Lacking an underlying legal system,
the principle that agreements must be observed per se is not
capable of ultimately answering the question why international law
is legally binding. Obviously, the principle that pacta sunt servanda
itself must be based on a certain legal system. If the system of
international law had not recognized the principle of pacta sunt
servanda, then that principle would have become legally meaning-
less and all agreements reached between States would have been
rendered ineffective and non-binding. Thus, the doctrine of pacta
sunt servandafails to offer a satisfactory explanation of the basis of
validity of international law.
IV. Contemporary Doctrines and Approaches

In the 20th century, there emerged the so-called "neo-
naturalism."" 4 As a result, the naturalist thought revived for a
period of time. On the other hand, the positivist school continued
its influence in various forms and on the basis of the traditional
positivist doctrine, gave rise to the so-called "neo-positivism" which
is also known as Kelsen's pure theory of law.135 In addition, the
emergence .of the doctrines of neo-realism (the power politics
theory and the policy-oriented theory) as well as the doctrine of
peaceful co-existence have complicated the theory and practice of

134. See text accompanying notes 137 f. infra.
135. See text accompanying notes 148 ff infra.

international law.136 None of these doctrines, however, has been

overwhelmingly dominant during the 20th century.
In a sense, neo-naturalism and neo-positivism respectively
represent the continuation of the traditional naturalist school and
positivist school, but neo-positivism contains certain elements of the
school of natural law.
The so-called neo-realism is mainly reflected in the doctrine of
power politics and the policy-oriented theory. Commonly, these
two doctrines mingle law with politics or State policy, and mix
international law with international politics or the foreign policy of
States. These two contemporary theories in effect depreciate the
value and function of international law, displace international law
with power politics or policy, or interpret international law on the
basis of power politics and power policy and ultimately deny,
subjectively or objectively, the validity of international law.
The doctrine of "peaceful coexistence" over-emphasizes the
role played by the need of peaceful coexistence, and overlooks the
fact that such need is determined by the compromised wills of
States. Indeed, these contemporary approaches have created more
confusions than provided solutions.
A. Neo-Naturalism
1. The Doctrine-Theterm "neo-naturalism" broadly denotes

those newly-emerged theories that are based on the school of
natural law, and designed to revive naturalism by emphasizing the
concepts of inherent sense of justice, moral standards and the
like.'37 The doctrine of the "law of nature," as Kelsen noticed,
"has again in the 20th [century] re-entered the foreground of social
and legal philosophy, in company with religious and metaphysical
136. Schwarzenberger's inductive, inter-disciplinary and relativist method, which

is beyond the scope of discussion here, constitutes another unique approach to the
study of international law. See SCHWARZENBERGER & BROWN, 6th ed., supra
note 16, at 17-19. For a study and criticism of some of the contemporary theories
of international law, see B.S. CHIMNI, INTERNATIONAL LAW AND WORLD ORDER:
A CRITIQUE OF CONTEMPORARY APPROACHES (New Delhi: Sage Publications,
1993).
137. See 1 M.M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 21 (1963);
SHAW, 2nd ed., supra note 112, at 44-49; Alfred Verdross & Heribert Franz
Koeck, NaturalLaw: The Tradition of UniversalReason and Authority, in RONALD
ST. J. MACDONALD & DOUGLAS M. JOHNSTON, eds., THE STRUCTURE AND PRO-
CESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY DOCTRINE AND
THEORY [hereinafter MACDONALD & JOHNSTON, eds.] 17, 40-41 (Dordrecht, The
Netherlands: Martinus Nijhoff, 1983); LACHS, supra note 26, at 91.

speculation."13' 8 Starke observes (1) that the 20th century move-

ment toward obliging States to observe human rights and funda-
mental freedom by international covenants is colored by the natural
law approach, and (2) that the Draft Declaration on the Rights and
Duties of States of 1949 outlined by the International Law
Commission
9
was also founded on the philosophy of "natural
, 13
law."
The neo-naturalist school has adopted different approaches of
thoughts in the pursuit of moral bases of law. One of the ap-
proaches is to simply re-propagate the principles of natural law
advanced by Aquinas and recognized and adopted by the tenets of
Christianity. This approach recognizes the importance of the
dignity of human beings and the supremacy of reason, and
emphasizes that if any law that is contrary 4to reason and the law of
God is binding, it at the least is immoral.
Another method is the formalist and logic-oriented ap-
proach. 141 It proposes to establish a legal structure that conforms
to logic so as to include the concept of a "natural law with
changing contents. ' It also differentiates between "legal
concept" and "legal idea," the former containing abstract and
formal legal definitions with universal applicability, and the latter
comprising the goal and direction of systems of law and legal
definitions with different contents in different societies and
143
cultures.
A third method is the sociological approach of France Cois
Grny (1861-1959), Duguit and others."4 It opposes any emphasis
on formality and proposes to define and interpret "natural law"
with physical, psychological, social, historical and other elements
138. H. Kelsen, The Foundation of the Theory of Natural Law, in ESSAYS IN

LEGAL AND MORAL PHILOSOPHY ch. VI, 114 ff, at 141 (1973).
140. See JACQUES MARITAIN (1882-1973), MAN AND THE STATE (University
of Chicago Press, 1951); JEAN DABIN, GENERAL THEORY OF LAW (2nd ed.,
1950).
141. See RUDOLF STAMMLER (1856-1938), THEORY OF JUSTICE (1921, trans.
by Isaac Husik, N.Y.: Macmillan, 1925); GIORGIO DEL VECCHIO, FORMAL BASES
OF LAW (trans. by John Lisle, New York: Macmillan, 1914, imprint 1969).
142. STAMMLER, supra note 141.
143. See id.
144. See FR. GtNY, MODE D'INTERPRtTATION EN DROIT PRIVt POSITIF (1899);
1 L. DUGUIT, TRAITt DE DROIT CONSITUTIONNEL 17 & 67 (1927); L. Duguit,
Objective Law, 20 COLUM. L. REV. 817 (1920). See also Joseph C. Gidynski,
Duguit's Sociological Approach to the Bases of International Law, 31 IOWA L.
REV. 599-613 (1946).

that dominate the structure of society. The doctrine of social

contract discussed earlier in essence belongs to this approach.
After the two World Wars, especially after World War II,
naturalism once again became popular, although it was picked up
in revised forms. Gustav Radbruch (1878-1949), a German legal
philosopher, proposed a new theory maintaining that positive law
has failed to personalize the society within and outside of the State
and that the mere reliance on positive law was not sufficient to
punish war crimes, crimes against peace and anti-humanitarian
crimes.45 He further maintained that all unjust laws must be
opposed to on the basis of the supreme law of nature.'46 The
proponents of neo-naturalism believe that their theories have
provided moral bases to the development of new areas of interna-
tional law, such as, opposition to aggression and international
41 7
protection of human rights.
2. Critiques-The critiques of naturalist theories earlier

generally apply here. Ideas originating from old or new naturalism
have objectively played certain progressive roles in the promotion
of and respect for human rights. Nevertheless, no matter which
approach is adopted, neo-naturalism, like the traditional naturalist
school, was still unable to explain the question of why international
law has legally binding validity. The attachment of importance to
the dignity of human beings is plausible and appreciated, but the
concept of reason has been always subjective and difficult to
ascertain. It may be meaningful within the context of one culture,
but not necessarily so in another. It is hardly imaginable how the
reason growing out of one culture can be applied to a universal
legal system. No matter how progressive and how desirable the
notion of reason is, it leads States with different histories, tradi-
tions, religions and cultures to no where without being distilled by
them to a higher level of existence. That is to say, reason, or the
so-called natural law, means nothing to the international legal
system unless and until it is raised to the level of concrete rules and
principles through the positive adoption by States as such.
Similarly, the division between legal concept and legal idea by
the formalist approach is not convincing enough, either. It is true
that, by coincidence or through mutual copying and adoption, there
145. G. RADBRUCH, INTRODUcTION TO LEGAL PHILOSOPHY (1947).

146. See id. See also G. RADBRUCH, RECHTSPHILOSOPHIE 336, 337 & 352 (5th
ed., 1956).
147. See SHAW, 2nd ed., supra note 112, at 49.

may exist legal provisions or principles that are similar or common

to essentially all legal systems. These common principles form part
of the notion of "general principles of law recognized by ... na-
tions" that constitutes a supplementary source of international law
in accordance with, inter alia, Article 38(1)(c) of the Statute of the
International Court of Justice. However, this does not mean that
a legal concept that may happen to be general or common to
different legal systems has any control over the contents and
validity of rules under these legal systems. What makes such a
common legal concept work is not the concept itself or naturallaw,
but rather the fact that it happens to reflect what exists in the body
of positive law of different nations.
Further, the idea of "natural law with changing contents" does
not respond to the reality of the international legal system and
diversified national legal systems. In practice, few legal systems
expressly recognize "natural law" with binding authority. Natural
law, if it does exist at all, is non-law. It is only an artificially
created body of legal doctrines, proposed "laws," theoretical ideas,
and the like. This non-law "law" may play a certain role, at times
a significant role, in the promotion and formation of concrete legal
rules in the sense that they may lead to being adopted into
legislation or international law-making by States. Nevertheless,
without this positive adoption, the non-law "natural law" would
have no place in the day-to-day observation and application of law
nationally and internationally. One must differentiate between lex
ferenda and lex lata, just as one has to do between legal theories
and "the law."
Moreover, general principles of law that may be said to be
common to the legal systems of all States are very few, and they
exist only in limited legal fields and to a limited scope. A parallel
existence of a universal legal concept and distinct legal ideas with
respect to every legal rule is but a fiction. Without such a parallel
existence, one does not see how legal ideas with different contents
derive their validity from legal concepts that allegedly are of
universal applicability. In other words, one does not see evidence
indicating that the concrete rules and principles (legal ideas) in
different legal systems, including the international legal system, are
rooted in their respective common or universal sources - natural
law (legal concepts).
Furthermore, although neo-naturalism and its predecessors
played certain roles in the promotion and creation of some new
rules and regimes of international law, the so-called law of nature,
which is largely intangible and non-existent, is neither law nor

something that turns legal values into legal rules or turns lex
ferenda into lex lata. The calls for self-determination, anti-aggres-
sion, protection of fundamental human rights and the like are real,
concrete, tangible, and positive demands made by "men" and
"States." These are not "inherent" rights and powers vested in
men or States by nature. Only within the scope authorized by
States and recognized by international law can these concepts
become part of the rights and obligations of States. After all, any
reference in a doctrine to the notion of God, the law of God or the
like would make the doctrine too religious, too superstitious, too
arbitrary, too abstract, too unpredictable, too non-identifiable, and
too non-real to prevail.
B. Neo-PositivismlNormativisml"PureScience of Law"
1. The Doctrine-Theso-called "neo-positivist" school, which

is another 20th-century theoretical school on the nature and bases
of law in general and international law in particular, attempts to
defend positive law by attacking the various naturalist theories.
Neo-positivism, 14 otherwise known as the famous "Vienna school
of jurisprudence,"' 4 9 was greatly influenced by the teaching of its
founder and architect Hans Kelsen (1886-1973), i" ° and it was
maintained and modified by his followers and revisionists, including
Alfred Verdross 5' and Josef L. Kunz (1890-1970).152 Since neo-
positivism focuses on studying all legal systems from the perspec-
tive of "legal norms" (that is, laws whose social contents are
extracted away), it is also called "normative theory," "normativist
school"' 53 or "pure science of law."' 54
Neo-positivism is alleged to have developed positivism to a
peak.'55 Kelsen is sharply critical of naturalism, but he does not
148. See VISSCHER, supra note 10, at 66.

150. Kelsen's theory was developed in, among others, a number of works in
English. See, e.g., KELSEN, 2nd ed., supra note 8; HANS KELSEN, GENERAL
THEORY OF LAW AND STATE (1945) [hereinafter KELSEN, GENERAL THEORY].
152. Josef L. Kunz, The "Vienna School" and International Law, [1934]
N.Y.U.L.Q. (1934); id., The "Vienna School" and International Law, in THE
CHANGING LAW OF NATIONS: ESSAYS ON INTERNATIONAL LAW 59 & 89
(Columbus: Ohio State University Press, 1968) [hereinafter Kunz, Vienna School].
153. See WANG & WEI, eds., supra note 55, at 7-8.
154. See NUSSBAUM, supra note 16, at 280-281.
155. See WAYNE MORRISON, JURISPRUDENCE: FROM THE GREEKS TO POST-
MODERNISM 323 (London: Cavendish Publishing Ltd., 1997).

completely agree with all of the positions of traditional positivist

theories (especially the doctrine of self-limitation or voluntar-
ism).' 56 He seeks to establish a pure theory of law by making a
sharp distinction between positive law and "transcendental" justice
(natural law).'57 He does not believe the existence of natural law
or rights and duties created by nature and concludes that "it is
impossible to deduce from 'nature' any rights."158 ' For him,
positive law is the rule that must be obeyed, and only positive rules
of law are legal norms with binding effect. In other words, only
human beings through the expression of their "will" may create
"binding" or "authorizing" norms. In contrast, nature does not
have a "will," and the so-called "natural rights" are not positive
legal norms but are merely an assumption. 5 9
Kelsen envisages law as a pyramid of normative rules, i.e., a
pure normative system which is unaffected by outside influences
such as politics, morals, ethics and sociology. The reason why the
norms of positive law have binding force, he believes, is because
these norms ultimately rest upon a fundamental assumption (a
Grundnorm). 6° He states that the question as to why a norm is
binding would necessarily return one to an utmost basic norm
whose basis of validity is no longer questioned. 6 In domestic
law, the basic norm is that certain acts are lawful because they are
done under the authority of the constitution. A rule becomes law
by reason of the power of the State to make it obligatory. State
and law are identical because the State is merely the expression of
a legal system. The reason why a certain enforcement action is
legal is that it is authorized by a certain norm such as a judicial
decision. The reason why such norm (judicial decision) is binding
is because it is conforming to the provisions of the criminal law.
Criminal law has binding authority because it is enacted by the
legislature in accordance with the provisions of the constitution,
and the constitution derives its power from an older constitution.
When one goes back to the first constitution, the question of the
basis of its validity then becomes an ultimate "hypothesis of juristic
thinking," that is, a Grundnorm: people should behave in accor-

157. See id.
158. Id.
159. See id. at 244.
160. See id. at 557.

61 2
dance with the behavior of the drafters of the first constitution.
This Grundnorm ("basic norm") makes it possible to determine
what rules of law in force contradict those rules which ought to be
in force.
On the international level, the basic norm or assumption,
Kelsen maintains, must be a norm recognizing that custom is the
law-creating fact and has the creative force to make rules of
law.'63 That is say, States should behave in accordance with their
customary mode of behavior." 6 Under this basic norm is a
pyramid consisting of (1) customs, including the customary norm
pacta sunt servanda, as the first stage of norms, (2) treaties as tthe
second stage of norms, and (3) norms created by authority
established under a treaty as the third stage of norms, such as
resolutions and decisions of international organizations or judg-
ments and decisions of international tribunals.'6 5
Elsewhere, Kelsen has made this pyramid even clearer.
"Customary international law, developed on the basis of this norm,
is the first stage within the international legal order,"'6 6 then
come treaties deriving their force from the rule of customary law
pacta sunt servanda, and then come rules created by international
organs, which themselves are created by treaties.167 For Kelsen,
the validity of resolutions, decisions and judgments of international
organizations and tribunals is based upon treaties. 6 ' The validity
of treaties is again based on the norm of customary international
law pacta sunt servanda, customary international law being superior
to conventional international law.'69 Presumably, for the pure
legal scientists, the validity of customary international law would in
turn stem from a higher norm, ie., the "basic norm" (Grund-
norm). 7 ° Then, what is the basis of this Grundnorm? Kelsen
continued:
The binding force of customary international law rests in the
last resort on a fundamental assumption: on the hypothesis that
international custom is a law-creating fact. This hypothesis may
162. Id. at 559.

163. See id. at 441-442.
164. See id. at 564.
165. See id. See also NUSSBAUM, supra note 16, at 280-281.
166. KELSEN, GENERAL THEORY, supra note 150.
167. See id. See also H. KENSEN, LAW AND PEACE IN INTERNATIONAL RELA-
TIONS (Cambridge, 1945).
168. KELSEN, 2nd ed., supra note 8, at 441-442.
169. See id.
170. See id. at 442 & 557.

be called the basic norm. It is not a norm of positive law; it is

not created by acts of will of human beings; it is presupposed by
the jurists interpreting legally the conduct of states.171
2. Critiques-Perhapsno other modern theories have been

the targets of (and perhaps deserve) more comments and criticism
than the pure theory of law. Kelsen's theory has been commented
upon and criticized by such well-known writers as Lauterpacht,1 72
Tunkin, 173 and Visscher, 74 and Wang Tieya, 17' among others.
Visscher, for example, stated:
Kelsen's neopositivism is of all contemporary doctrines the most
deliberately and most completely isolated from social realities.
For the author 'any content whatever can be law', for the
positivity of norms depends solely on their quality of being
logically reducible to one fundamental (and moreover hypothet-
ical) norm (Grundnorm),
176
regarded as the ultimate source of the
legal order.
Quoting the words of G6ny, Visscher continued to remark that

Kelsen's abuse of intellectual constructs leads him to an "....
extreme and ... dizzy [height where] the idea, completely det
ached from its object, finds its own realization and lives a life of its
own deprived of all contact with the living reality. At this point,
abstraction can play nothing more than the role of a tool operating
in a vacuum."177
'
More importantly, being unable to explain why the so-called

basic norm is binding from the point of view of positivism,
members of the Vienna School, who labeled themselves, or were
labeled, as neo-positivists, have ultimately found themselves to be
still among the various naturalists. As a matter of fact, the system
of the pure theory of law as a whole did not completely rid itself
of naturalism. To the contrary, Verdross, in the latter part of his
171.Id at 446. See also Kunz, Vienna School, supra note 152, at 59 ff & 89 ff
172.H. Lauterpacht, Kelsen's Pure Science of Law, in 7 MODERN THEORIES
OF LAW 105-138 (1933); H. LAUTERPACHT, THE FUNCTION OF LAW IN THE
INTERNATIONAL COMMUNITY 402 ff (Oxford: Clarendon Press, 1933).
173. G.I. TUNKIN, THEORY OF INTERNATIONAL LAW (1974).
175. WANG & WEI, EDS., supra note 55, at 7-8.
176. VISSCHER, supra note 10, at 66.
177. Id. at 68, quoting 1 FRANCOIS G9NY (1861-1959), SCIENCE ET TECHNIQUE
EN DROIT PRIVt POSITiF: NOUVELLE CONTRIBUTION A LA CRITIQUE DE LA
METHODE JURIDIQUE (Doctrine and Technique in Private Positive Law: A New
Contribution to the Critique of Legal Method) 133 (1914).

life, reached out closer and closer to natural law.1 78 According to

Professor Wang Tieya and the late Professor Wei Min of Peking
University, the neo-positivists' inability to further explain the basis
of the so-called "Grundnorm" lead them to admit that the ultimate
source of the basic norm would have to be found in philosophical
relativism, legal conscience and reason, which again lead them to
the registry of naturalism.1 7 9
C. The Doctrine of Peaceful Co-Existence
1. The Doctrine-The doctrine of peaceful coexistence and

cooperation has been typically maintained by former Soviet writers
and best explained in a standard Soviet textbook of international
law published in the 1960's.180 It is held that the present-day
international law is the law of peaceful co-existence, and peaceful
co-existence presupposes the possibility of and need for economic,
political, and cultural cooperation between nations. Such co-
existence and cooperation between States are possible only if the
generally recognized principles and rules of international law are
consistently observed. 81 Section 4 of the above mentioned
textbook is even captioned "Peaceful Coexistence and Co-operation
Between States - The Basis of International Law."' 82 The text-
book maintains (1) that the existence of generally recognized rules
and principles of international law is out of the objective and vital
demands of international relations and (2) that successful interna-
tional cooperation is possible only when States strictly adhere to
these generally recognized rules and principles of international law,
which are considered "the legal foundation on which peaceful
coexistence and co-operation between States can and must be
implemented. 18 3 Elsewhere, writers of the former Soviet Union
also frequented the use of peaceful coexistence as a basis of
international law and international relations.1"
2. Critiques-It is proper to emphasize co-existence and co-

operation between States, especially between States with different

179. WANG & WEI, eds., supra note 55, at 7-8.
180. See KOZHEVNIKOV, ED., supra note 34, at 15-17.
181. See id.
182. Id. at 15.
183. Id. at 16-17.
184. See, e.g., I. Tunkin, Co-Existence and International Law, 95 REC. DES
COURS 1 (1958 III).

political systems, but it would be out of focus to overstate the role

of the principle of peaceful co-existence to an unrealistic degree.
Although peaceful co-existence is, and should be, a fundamental
and important principle of international law in the relations
between States, this principle itself is not the basis of international
law. The need for peaceful co-existence, like the need for
cooperation, can at most be said to be one of the many factors in
motivating States' general compliance with rules of international
law.
D. The Theory of Power Politics
1. The Theory-The doctrine of power politics, also known as

the "power theory of politics," is an extreme form of expression of
the positivist doctrine of the will of the State. In his early days, the
German jurist, Erich Kaufmann (1880-1972), was the first to put
forward the slogan "Nur der, der kann, darfauch" (only those who
can may). 85 He distinguished between "Macht" (authority,
power) and "Gewalt" (force, power) and held that "Macht" should
always be based on morality, while "Gewalt" was not required to
be accompanied with such moral basis.18 6 He further believes
that if treaty obligations come into conflicts with the interests of the
State, the State is entitled to denounce the treaty.187
Hans J. Morgenthau (1904-1980), a well-known American
political scientist and jurist, may be said to have further developed
and become a chief proponent of the power theory of politics. He
emphasizes the significance of political context and the comprehen-
sion of international relations in the context of power, influence
and dominance.188 For him and his supporters, politics is focal,
while law is only secondary. Even where normative law exists, its
basis of validity cannot independently be ascertained other than
from a political analysis. 189 International law is binding only
185. E. KAUFMANN, DAS WESEM DES VOLKERRECHTS UND DIE CLAUSULA

REBUS SIC STANTIBUS (1911).
186. See id.
187. See id. However, Kaufmann, in his middle and late ages, completely
changed his attitude and viewpoints. He became a theoretical enemy of
positivism. This change is reflected in his belief that the State must be bound by
natural law. See LACHS, supra note 26, at 142-143.
188. See Hans J. Morgenthau, Positivism, Functionalism,and InternationalLaw,
34 A.J.I.L. 260 ff (1940).
189. See id.

"more or less" and even the merely "more or less" binding force
of international law is determined by international politics.19 °
2. Critiques-The most deplorable point of the theory of

power politics is that it confuses law with politics, substitutes
international politics for international law, and in the end denies
the validity and existence of international law. It must be pointed
out that what international politics "adjusts" must be what
international law does not adjust or what is not yet governed by
international law. In other words, what international politics solves
must be problems to which international law is unable to provide
direct solutions.
What's more, international political affairs must be conducted
within the sphere permitted by international law. In this sense, it
is not quite that international politics dominates existing and stable
international law, but rather that existing international legal rules
govern international politics which are more of an expediential
nature. The power politics approach will necessarily result in the
disbelief and even negation of international law. As indeed
indicated in Morgenthau's writing, it considers international law to
be not uniformly and absolutely binding, but only marginally
binding subject to the influence of politics. 9 ' It makes much
' 192
sense for this approach to be properly labeled as "skepticism.
It is true that power politics, unfortunately, has in reality affected
both the formation and observation of rules of international law,
but once a rule has been created and established, it must prevail
over politics. Departures from established rules of international law
do take place from time to time, especially by some major powers.
Nevertheless, most rules are observed by most States most of the
time. Occasional ignorance of established rules of international law
by decision makers, in no way affecting their binding authority,
may be considered nothing but gross violations of such rules that
undoubtedly give rise to State responsibilities.
190. Id. See also HANS J.MORGENTHAU, POLITICS AMONG NATIONS (4th ed.,
New York: Knopf, 1967); KENNETH W. THOMPSON, POLITICAL REALISM AND
THE CRISIS OF WORLD POLITICS: AN AMERICAN APPROACH TO FOREIGN POLICY
(1960, reprinted 1982). For further comments on the power theory of politics, see
VISSCHER, supra note 10, at 78-87.
191. Morgenthau, POSITIVISM, supra note 188.
192. For an analysis of this approach, see MARTrI KOSKENNIEMI, FROM
APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT
167-170 (Helsinki: Lakimiesliiton Kustannus, 1989). See also WANG & WEI, eds.,
supra note 55, at 7-8.

19991 THE BASIS OF INTERNATIONAL LAW
E. The Policy-Oriented Theory
1. The Theory-The policy-oriented approach was adopted

mainly by Professor Myers McDougal of the Yale Law School and
his followers. 9 3 Like the theory of power politics, the policy-
oriented theory also analyzes and interprets international law from
the perspectives of politics and power, but it substitutes the words
"policy" and "decision-making."1 94'
This theory holds that policy
is the essence of politics and that decision-making is the core of
power. It defines international law as a "flow of decision in which
community prescriptions are formulated, invalidated and in fact
applied,' 9 5 and regards international law as a comprehensive and
complex process of decision-making rather than an established
body of rules.
The policy-oriented approach, from the viewpoint of establish-
ing and maintaining a so-called "world public order," focuses on
value-dependent policies and a wide range of factors utilized by
decision-makers. It asks sociological and behavioral questions such
as why, how, when and to what extent, 196 but overlooks questions
relating to the validity and content of international law. McDougal
and his followers diminish the role played by rules of law and hold
that the notion of international law "quite obviously offers but the
faintest glimpse of the structures, procedures and types of decision
that take place in the contemporary world community."'' In the
end, according to the policy-oriented approach, policy itself is law,
while the process of formulating policy (the decision-making
process) is the process of formulating and enforcing law. To the
exponents of that approach, international law is the expression of
the foreign policy of the State and its validity depends on national
foreign policy and ultimately on the state of mind and decision of
193. Myres S. McDougal, InternationalLaw, Power and Policy: A Contempo-

rary Conception, 82 RECUEIL DES COURS 133-259, 181 (1953 I) [hereinafter
McDougal, Power and Policy].
194. See id.
195. Id.
196. See LUNG-CHU CHEN, AN INTRODUCTION TO CONTEMPORARY INTERNA-
TIONAL LAW: A POLICY-ORIENTED PERSPECTIVE 14-20 (New Haven & London:
Yale University Press, 1989); Myers S. McDougal & W. Michael Reisman, Interna-
tional Law in Policy-Oriented Perspective, in MACDONALD & JOHNSTON, eds.,
supra note 137, pp. 103-129, at 123-128 [hereinafter McDougal & Reisman, Policy].
197. MYERS S. MCDOUGAL & W. MICHAEL REISMAN, INTERNATIONAL LAW
IN CONTEMPORARY PERSPECTIVE: THE PUBLIC ORDER OF THE WORLD
COMMUNITY: CASES AND MATERIALS 5 (Mineola, N.Y.: Foundation Press, 1981).

those institutions and individuals who control and formulate the

foreign policy of the State.
2. Critiques-Since the founder and followers of the policy-

oriented approach are mostly from Yale Law School, it is some-
times known as the "New Haven School of Law."198 ' Its study
and examination of international law allegedly focus on phenome-
na, therefore, this approach is also otherwise known as the "pheno-
menological approach."1 99
'
The theoretical value of the "New
Haven School" is subject to skeptics. Although advocation for and
comment on the "policy-oriented approach" has been seen in
numerous articles and books, 2°° in the theoretical field, this
approach is far less influential than neo-positivism. The policy-
oriented theory, like that of power politics, has been under attacks
and criticism by many contemporary writers and other legal
commentators 2°1 since it is sound neither in jurisprudence nor in
practice.
In the first place, the policy-oriented approach overly minimiz-
es the concept of international law and fails to recognize the fact
that States generally obey the established rules of international
law.2 2 If one considers international law to be a process of
decision-making, then there would never exist a permanent body
of relatively steady and expressive rules of international law, for
198. See CHEN, supra note 196, at 14-20.

199. See id.
200. See MYERS S. MCDOUGAL & FLORENTINO P. FELICIANO, LAW AND
MINIMUM WORLD PUBLIC ORDER (New Haven and London: Yale University
Press, 1961); McDougal, Power and Policy, supra note 193; McDougal, Lasswell
& W.M. Reisman, Theories about InternationalLaw: Prologue to a Configurative
Jurisprudence,8 VA. J. INT'L L. 188 (1968); M.S. McDougal, InternationalLaw and
the Future, 50 Miss. L.J. 259 (1979); McDougal & Reisman, Policy, supra note 196,
at 103-129.
201. For a comment and/or criticism of the policy-oriented theory, see Philip
Allott, Language, Method and the Nature of InternationalLaw, 45 B.Y.I.L. 79-135
(1971); Sir Gerald Fitzmaurice, Vae Victis or Woe to the Negotiators! 65 A.J.I.L.
358-373, at 360-367 (1971); Rosalyn Higgins, Policy Considerationsand the Interna-
tional Judicial Process, 17 I.C.L.Q. 58 (1968); KOSKENNIEMI, supra note 192, at
170-178; Oscar Schachter, International Law in Theory and Practice: General
Course in Public InternationalLaw, 178 RECUEIL DES COURS 9-396, at 44-54 (1982
V); AHMED SHEIKH, INTERNATIONAL LAW AND NATIONAL BEHAVIOR: A
BEHAVIORAL INTERPRETATION OF CONTEMPORARY INTERNATIONAL LAW AND
POLITICS (New York-London-Sydney-Toronto, 1974). See also Richard Falk, New
Approaches to the Study of InternationalLaw, in NEW APPROACHES TO INTER-
NATIONAL RELATIONS 357-380 (Morton A. Kaplan, ed., 1968); CHIMNI, supra note
136, at 73-145.
202. See Allott, supra note 201, at 79.

each time the "decision-makers" made a decision there would be

a new rule created, and the result would be a lawless and chaotic
international community in which the strong and powerful direct
and dominate the weak and powerless, with the strong balanced
powers themselves trying to dominate one another.
Moreover, the policy-oriented approach, as one commentator
points out, "seems like a useless exercise in academic theory."2 °3
Unlike what the policy-oriented approach suggests, what "decision-
makers" are really interested in is not simply which decisions will
fulfill which values, but more importantly which rules are valid and
which are not. That is to say, the formulators of various nations'
foreign policy must consider positive and existing binding legal
rules rather than those impractical sociological idle dreams. It is
further pointed out that to avoid apologetics, the policy-oriented
approach would have to take a position that would undermine its
self-claimed scientist assumptions.2 4
More importantly, although international law is closely linked
with international politics and the foreign policies of States, it is
groundless and anti-scientific to delegate (as the policy-oriented
theory does) the validity of international law to the "decision-
makers" of a nation's foreign policies, or liken it to foreign
policies.2 5 It is much more appropriate to say that a nation's
foreign policy and its formulating process must be subject to
existing international law reflecting the compromised wills of States,
than to say that international law is subject to individual and
expediential policy and decision-making. Only when sovereign
States at large, through new compromise and coordination between
their wills, change or supplement existing rules of international law
(be this process labeled what the policy-oriented approaches would
call "decision-making"!) may it be said that such collective
"decision-making" has played a decisive role.
In any case, the process of such collective "decision-making"
is a process of continuing compromise and coordination between
the wills of sovereign States. In reality, the policy-oriented
approach and the power theory of politics, besides having the effect
of minimizing and negating international law, represent a potential
danger. The danger lies in that these approaches are likely to
become readily available theoretical tools which strong powers
could find most useful in carrying out their power politics and
203. See KOSKENNIEMI, supra note 192, at 174-175.

204. See id.
205. Cf.WANG & WEI, eds., supra note 55, at 8-9.

hegemonism. To be more precise, and following the logic of the

"policy-oriented approach," the rules of international law would be
contingent upon the foreign policy of the State or would be the
reflection, or part, of the "might policy" of the State. The so-called
"world public order" would be an international order established
or to be established by those powerful "decision-makers" of the
world. It is obvious that in a rather unbalanced international
society, any emphasis on "policy" and "decision-making" would
facilitate and promote the rise and growth of might policy, power
politics and hegemonism in the absence of a body of existing rules,
principles, regulations and institutions of international law.
V. Factors Affecting Compliance

Some of the doctrines discussed above to some extent offer
partial explanations why rules of international law are generally
complied with. The following identifies, not exclusively, factors
which, from the point of view of philosophy, sociology, behavioral
science, and phenomenology, play certain roles in the process of
promoting States' observation of international law.
A. Legal Belief and Legal Habit

Whether a nation believes a rule to be binding and to what
extent it possesses such legal belief matters. By "legal belief" the
present author means legal consciousness, reason, sense of justice,
legal thought, legal sense, and opinio juris sive necessitatis which
States themselves formed in their long mutual intercourses and
their own respective State practices. What the present author calls
"legal belief" here is distinguishable from the naturalist concepts of
"legal conscience," "justice" and "reason." What the naturalists
emphasize is the inherence, intrinsic-ness and naturalness of the so-
called human conscience and reason,2" while the "legal belief"
(including legal conscience, reason and sense of justice) of various
States referred to here emphasizes the objectivity, practicality,
historicity and reality of such belief.
The conscience of human beings or nations, their sense of
justice and reason, or their legal conviction all has stemmed from
their prolonged social (inter-personal) or international practice.
None of these is inherent in or naturally-given to human beings or
nations. Different nations or States do not share a completely

uniform and common legal belief. Yet, certain common or similar

beliefs and practices between different States exist and continue to
evolve on such fundamental issues as good and evil, just and unjust,
moral and immoral and legal and illegal. Agreements on such
issues may also be established between States through their mutual
compromise and influence. A nation with strong legal belief is
more likely to follow than to disobey what it deems to be legal
rules and norms regulating inter-State relations and governing
States' foreign behavior.
Similarly, a nation's "legal habit" directly affects its observa-
tion of international law. Such "legal habit" is inseparable from its
legal conscience, especially its conscience of international law. A
State with strong legal conscience normally has a relatively good
legal habit. A State that habitually is accustomed to observing
international law, due to such habit itself, is normally reluctant to
violate and disobey international law. Thus, legal belief, legal habit
and legal conscience of States may be said to offer partial explana-
tions why international law is generally observed.
B. Consent and Pacta Sunt Servanda

Whether a State has consented to the formation and regulating
force of a given alleged rule of international law to a large extent
determines the willingness or lack of willingness of that State to
comply with such a rule. As stated before, international law is and
should be largely a law of coordination and cooperation.2 "7 The
creation and continuing validity of such a legal system is condi-
tioned upon the consent, acquiescence and acceptance of States
ultimately to be determined by their compromised national wills.
Without the consent, acquiescence, acceptance or at least non-
objection of States, it would have been impossible for States to
formulate and develop a system of law among themselves with
legally binding force and the issue of the basis of validity of
international law would have been moot. Express and implied
consent of States thus constitutes a partial basis for the validity of
international law.
Where a State has, in contractual forms, consented to be
bound by certain rules or obligations of international law, such
explicit consent requires the consenting State to honor its obliga-
tions. The maxim "pactasunt servanda" is a universally recognized
jus cogens principle of international law established through long
207. See texts following note 101 supra.

international practice. 20 8 Realistically speaking, since there is

almost no State that opposes or does not recognize this principle,
States have no reason to not comply with those general rules of
international law to which they have agreed through the conclusion
of international treaties. Similarly, there would be no reasons for
States not to perform specific contractual obligations which they
have agreed to undertake under international agreements. In this
sense, the principle of pacta sunt servanda constitutes another
partial explanation why States generally comply with their obliga-
tions under international law.
C. Necessity of InternationalRelations
International law is both the product and regulating force of
international relations. States are inevitable to enter into relations
with one another. This is particularly so in an age of globalization.
Such indispensable international relations give rise to the needs for
the formation and development of international law, international
order, peaceful co-existence, reciprocity, and international coopera-
tion. These needs that arise in international relations in return
dictate that States behave in an as lawful, orderly and peaceful
manner as possible.
The notion of "necessity of law," that is, the objective demand
of States and the international society for legal rules, partly
explains why international law has legally binding effect. 2 9 States
are "social" beings and they are not isolated existents in a vacuum.
The social attribute of States determines that they are bound to
enter into relations with one another, while international law is a
by-product of international relations. As one commentator said:
No nation of the world can keep itself aloof from the rest of the
world. It is the interdependence of the interests, i.e., national
interests that plays an important role in determining the
international relations. So each nation while framing the
outlines of its own national policy is bound to take into
consideration interest of other nations as well as other possible
reactions. The dominant role of course is played by powerful
nations of the world.21 °
Along with the increase of mutual intercourse and the
deepening of interdependence among States, international law
208. See texts accompanying notes 126-133 supra.

210. BHATTACHARYA, supra note 96, at 5.

"emerged" as required by history in the sense that it was (1)

deemed necessary and (2) created by States for the purpose of
regulating their international relations. It has been thus stated:
In order to maintain normal relations with other countries, we
must be able to predict the behavior of others, and this can be
done only in a relatively stable situation. The observance of the
known rules 211
of international law thus becomes a requirement
for states.
The necessity of law in the international society may therefore be
said to be an extrinsic factor determining the validity of interna-
tional law.
In the second place, the needs for peaceful co-existence and
international order similarly require routine observation of rules of
conduct by States in their relations to one another. "Peaceful co-
existence" and "international order" represent two other aspects of
the same issue as "necessity of law." The majority of peace-loving
nations generally desire to establish and maintain a certain interna-
tional order under which they peacefully cope with the relations
among themselves. This desire, as an extrinsic element, has the
objective effect of helping impel States to cooperate with each
other for the establishment, observance, and maintenance of an
international legal system.
On the one hand, in a world with unbalanced forces, if there
were no commonly observed law and order at all, such a world
would be one in which States would struggle for domination and
supremacy. It would be one in which big and strong powers would
conquer small and weak nations, and peaceful co-existence would
be but a dream. The pre-modern world history is precisely a
history without order and international law. It is a history wherein
the strong among themselves fought with and conquered one
another, and a history of individual or collective aggression,
invasion, exploitation, plunder and colonial domination by the
strong against the weak. For the majority of nations, especially for
the weak and small, an orderly and peaceful international society
is always more desirable than one in chaos.
On the other hand, Western powers, confronted with the rising
power of developing countries (the Third World) in the contempo-
rary era, would also naturally stress the importance of world order
211. G. VON GLAHN, LAW AMONG NATIONS 7 (5th ed., 1989).

and peace. Brierly, rejecting the definition of law as a command,

states that
[the] ultimate explanation of the binding force of all law is that
man, whether he is a single individual or whether he is associat-
ed with other men in a state, is constrained, in so far as he is a
reasonable being, to believe that order and not chaos 21is2 the
governing principle of the world in which he has to live.
Brierly is correct in stating the general realization that order rather
than chaos is what the international society needs. A chaotic world
is not beneficial to big and powerful nations and is even more
harmful to small and weak nations. Therefore, it has become a
general desire and demand of the majority of members of the
international society to establish, maintain and improve a relatively
peaceful, just and rational international legal order. This general
desire and demand for world order and peace would necessarily
call for the general acceptance and observation of international law
by States. Otherwise, it would be pointless to establish and
maintain international order and world peace.
Nevertheless, internationalorder and world peace are by no
means supra-nationalorder and peace. Still less should there be an
"order" and "peace" in which a few strong and powerful nations
dictate to and dominate the rest of the world. Rather, what is
needed is a system of international law and order established and
maintained by equal and sovereign States on the basis of consulta-
tion, cooperation, and compromise.
In addition, the needs for international cooperation require
regulation by existing norms and principles and lead to develop-
ment of new rules to govern further cooperation among States.
Simply put, "international cooperation" represents another
necessity that the social attributes of States demands. Such
cooperation has more significance and is practical in the present
day of high scientific and technological development. Cooperation
between States is necessary because of mutual interests. The
pursuit of common interest and the need for international coopera-
tion may well constitute one of the significant reasons why States
generally observe international law. International cooperation
facilitates the formation of rules of international law, while further
progress in international cooperation relies on the guidance and
coordination of existing international legal rules.

Finally, the law of "reciprocity" demands that States observe

rules of conduct of international law in their mutual relations.
Reciprocity by definition signifies mutual benefits and reciprocal
advantages. If in the relations among States only one or a few
States are subject to a rule of conduct while another or some others
are not, such rule has no practical significance. Self-imposed
limitations by a State without reciprocal limitations by another are
not limitations after all. However, once a State agrees to limit
itself on the basis of reciprocity vis-dt-vis another State, such
limitations become legally binding international obligations. In
discussing the importance of reciprocity in international affairs,
Schwarzenberger and Brown state:
Even in a world society engulfed in a system of power politics,
States find it to their benefit, on a basis of reciprocity, to limit
the crude play of power and force. Especially in spheres which
are irrelevant or peripheral from the point of view of power
politics, the law of reciprocity can be seen at work. In matters
such as diplomatic immunity, extradition, commerce, communi-
cations and transport, rules of international law freely and
beneficially develop on a footing of reciprocity. On the levels
of partly or fully organized international society, international
law is primarily a law of reciprocity. Yet, even in the thick of
power politics, that is, in time of war, some scope exists for the
law of reciprocity. The laws of war and neutrality owe their
existence to typical considerations of this kind which tend to
impose restraints on belligerent and neutral States alike.1 3
In essence, matters of international concern are (or should be)
always reciprocal. No State in the world is willing to participate in
the formation of and willing to be bound by a rule of international
law that only restricts itself but not other States, or that is only
beneficial to other States but not to itself. In the absence of the
principle of reciprocity, it would have been impossible for interna-
tional law to emerge with universal binding validity.
D. Interests
In some cases, the interests of a nation may be of significant
importance in promoting or affecting compliance with international
law by that nation. The present author is not suggesting that a
nation should observe international law only when it is in their
interests to do so. What he is suggesting is that it is generally to
213. SCHWARZENBERGER & BROWN, 6th ed., supra note 16, at 10.

the benefits of States for them to observe international law, while

in exceptional circumstances the interests of a State may direct to
the opposite.
There are areas in which States have relative freedom to
decide upon its mode of behavior because international law does
not yet regulate all aspects of international relations. When a State
makes such decision, its national interests may play a decisive role.
In other words, where there is an international legal vacuum, it is
up to each individual State to determine how it is to behave in
accordance with its best national interests. In this sense, interests
may be said to not only affect but even dominate the behavior of
the State in question. Where a certain conduct is already regulated
by international law, the role of interests becomes less important.
In such cases, national interests may still affect State behavior, but,
generally speaking, they do so only to the extent to which rules of
international law are not violated.
It is noticeable that a State may find it against its fundamental
national interests to follow the rules on one particular occasion
concerning one particular matter. The magnitude of conflicts
between such national interests and international obligations may
affect or change the pattern of State behavior. This is particularly
true in the case of mighty and stronger powers. However, even
when national interests disfavor compliance with international
obligations, the decision-making will necessarily include a "gain and
loss" balance and comparison between observance and violation of
international law. On the one hand, not all rules of international
law are absolutely in accord with the interests of a given State. On
the other hand, a given rule of international law is not necessarily
always in absolute accord with the interests of all States. A given
State may well find that none of the rules of existing international
law is completely in line with its national interests, but each such
rule contains elements to its advantage. Thus, it is necessary for the
State to weigh the overall advantages and disadvantages of the
system of international law as a whole.
The State, during its course of participation in the creation and
formation of rules of international law, likely takes into consider-
ation the overall advantages and disadvantages of such rules. Its
agreement to be bound by international law as a whole system, or
by specific rules of international law, is preceded by, or connected
to, its assessment of the consequences for its national interests.
Generally, it is not in the interest of a State to violate a given rule
of international law since the violation may in turn provoke similar
breaching actions to its disadvantage by other States. As Akehurst

says, a State is normally unwilling to create situations that may be

used against it in the future.214
It must be admitted that there always may be conflicts between
the regulating force of international law and national interests.
Violations of international law most often occur in situations where
a balance cannot be maintained between the observance of rules of
international law and the loss of vital national interests. Using the
words of Williams and Mestral:
Where, after weighing all relevant matters, a state decides that
the only way to protect its vital interests is to break a rule of
international law, it will be done. It will be a case of cost-
benefit analysis. It will weigh its short and long term vital
interests against the immediate and long term repercussions of
such conduct.215
If a State has become bound by a given rule or principle of interna-
tional law by way of treaty or custom, its departure from the rule
because of vital national interests is utterly unjustifiable. Such law-
breaking behavior should be discouraged, condemned, prevented,
and prohibited.
Nevertheless, as there are cases of violations by the individual
of the law in the domestic legal system, it is not surprising that
there are in fact violations by the State of international law. The
focal theme of discussion of this study is why States, at least most
States, do generally observe international law rather than why some
of them sometimes violate it. It is enough to state here that in
normal and most circumstances, the State is willing to and in fact
does observe international law. Then, one of the significant
reasons is that, generally, the State, by complying with international
law, gains much more than it loses, and compliance is much more
advantageous than disadvantageous to the State. In other words,
the benefits of observing international law far outweigh the costs
of non-observance. By the same token, the losses and other
disadvantageous consequences far exceed the expedient yet often
transient gains and interests following the State's non-compliance.
After all, international law is the result of compromise and
cooperation among members of the international community and
is, generally speaking, beneficial to all nations. Therefore, States
214. M. AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW 9

(5th ed., London: George Allen and Unwin Ltd., 1984).
215. SHARON ANNE WILLIAMS & A.L.C. DE MESTRAL, AN INTRODUCTION TO
INTERNATIONAL LAW 9 (2nd ed., Toronto: Butterworths, 1987).

normally comply with international law in order to receive one or

more gains at the cost of some less significant loss.
E. Reputation
Individual behavior to some extent is often influenced by the
individual's concern or lack of concern about his or her personal
reputation. The degree to which a State and its political leaders
mind the nation's reputation affects the nation's behavior in its
external relations pretty much in the same way as in the case of
individuals. In essence, national reputation is but one of the
aspects of national interests. Reputation serves to promote
compliance with international law when the concerned State cares
much about its image. At stake are reputation-related concepts of
world public opinion, social approval, and credibility.
World public opinion, to a certain extent, is a factor that a
State needs to take into consideration when choosing between
observance and violation of international law. Among today's
media in the world, Western media occupies an overwhelmingly
dominant place in terms of volume and power. For various
reasons, their propaganda and news coverage are frequently biased,
subjective, predetermined and even hostile, and they fail to
represent the positions and opinions of most States, especially those
of the developing nations. Therefore, international or world public
opinion may not be understood simply as the voice of news media
(particularly Western media) or whatever is louder, but as the
attitudes, comments and opinions of the majority of nations. Such
world public opinion may imperceptibly influence the attitude,
decision making and behavioral practice of a State and sometimes
functions as an underlying factor in the prevention and deterrence
of violations of international law. Nevertheless, the impact and
function of this "soft weapon" are very limited.
Whether State behavior meets social approval matters. Social
approval not only facilitates the formation of customary rules of
international law, but also contributes to their observance and
enforcement. If a State's practice has gained universal approval,
impliedly or explicitly, of the international society, such practice
will continue. In contrast, if a certain conduct or practice of a State
fails to gain such approval, the conduct or practice in question is
often likely to be discontinued and abandoned. When a rule of
international law is firmly established, State behavior which does
not conform with such rule will meet disapproval by the interna-

tional community. In this regard, social approval functions

similarly as world public opinion.
Likewise, the credibility of a State has some impact upon its
pattern of behavior. By "credibility" the present author means the
fame, reputation, and reliability of a State. States generally wish
to maintain a good reputation rather than to undermine and
destroy their reputation in exchange for transient gains and
interests by violating international law. If a State, no matter how
affluent or powerful it is, acquires the reputation of "a frequent
violator of international law," it only hurts its interests. State
credibility has the objective effect of contributing to the observance
and enforcement of international law, and constitutes one of the
extrinsic elements affecting the State's behaviors, too.
E Reprisals and Sanctions

To some extent, the existence of such limited remedial mecha-
nism as reprisals and sanctions helps deter violations of internation-
al law. A State may wish to depart from its international obliga-
tions but nevertheless refrains from doing so partly out of fear for
reprisals by the infringed State or for sanctions by that State or
members of the international community which stand behind the
infringed State. By fear for reprisals, the present author means the
psychological concern of a State over possible retaliation or other
remedial acts of States that might be offended by its violative
conduct against international law. This fear constitutes an extrinsic
factor which States sometimes take into consideration in deciding
whether or not to violate international law. Under international
law, when a State sustains injury as a result of the international
dereliction of another State, the former is entitled to take appropri-
ate and reasonable remedial or retaliatory measures against the
latter. These measures include requests for restoring status quo
ante, requests for official apology, claims for damages, counterat-
tack in self-defence and other measures corresponding to the
international delict of the offending State. The consequences of
such remedial or retaliating measures often place the offending
State in a much more unfavorable position. This has to be taken
into account by potential offending States, especially those less than
powerful States, before they decide to violate international law.
Fear for sanctions can similarly cause some States to refrain
from breaching international legal order and peace. As in the case
of fear for reprisals, some States may have the intention to breach
international law, but in the end often desist, partly out of the need

to avoid or the fear for possible collective or international sanctions

and their consequences. It is true that sanctions are not guaranteed
by international law, but in certain circumstances, sanctions,
especially collective sanctions, constitute a manifestation of
international law enforcement to some degree.
VI. The Decisive Factor: Compromised Wills of States

While the above factors - legal belief and legal habit, consent,
pacta sunt servanda, necessity of international relations, interests,
reputation, and reprisals and sanctions - serve to enhance the
binding validity and promote the observation of international law,
none of them provides an ultimate answer to the question why
international law is binding. The present author believes there is
a decisive factor that makes compliance with international law the
rule rather than an exception, and this factor is the compromise
among the wills of nations. We must not overlook the fact that
while international law has binding force upon sovereign States, it
at the same time derives its binding force from the same sovereign
States. This, at first glance, may appear to be self-contradictory, but
it is determined by the uniqueness of international law and reflects
the reality of international life more than any of the factors and
doctrine discussed above and earlier.
According to common sense and knowledge, law is a set of
standards of conduct representing and originating from the will of
the decision-making class of the State (though sometimes in the
name of the people), having legally binding force and being
enforced under the guarantee by a certain mechanism. No law is
separable from the will of the decision-making class, although such
will is often expressed in the form of the will of the State or the
will of its people. This concept of law would cover both domestic
law and international law.
Needless to say, international law is made and enforced in a
way different from that in which domestic law is made and
enforced and the legal validity of the two systems of law must
necessarily be demonstrated in different modes. At the internation-
al level, the State is not only the subject of rights and obligations
in international law, but also the participant in formulating,
accepting, and enforcing the rules, principles, regulations, and
institutions of international law, as well as, in arbitrating interna-
tional disputes. The most fundamental reason why States partici-
pate in the above international activities is because they are
required and directed to do so by their own national wills.

When reflected in international law, the wills of States are not

necessarily the original individual will of one single State or
another, nor the common wills of all States. Rather, they are the
aggregate of the harmonized wills of different States after they have
compromised,explicitly or implicitly, between or among themselves.
States, large or small, strong or weak, generally observe rather
than violate international law. The reason why people incorrectly
perceive that "violations are more than observations" is partly
because violative behaviors tend to get more attention and publicity
by and among the media and the public. States generally observe
international law because their compromised and coordinated
national wills per se require that they behave in a certain manner
in accordance with those norms of conduct of international law
which they have participated in formulating, amending, and
developing. Accordingly, the ultimate basis of validity of internation-
al law rests in the compromise and coordination between the wills of
different States. This is a legal and jurisprudential interpretation of
the issue in question, and is also the decisive and fundamental
factor in States' general observation of international law.
The ultimate explanation of the basis of international law, i.e.,
why States generally comply with rules of international law instead
of disregarding them, may also be seen from the perspective of
international legal sources. Although they are sometimes confused
in legal literature, the terms "bases" and "sources" denote very
different concepts despite their similarities and close links. In fact,
an analysis of the sources of international law may help reveal why
States generally observe rather than violate international law.
The sources of international law denote the place(s) of origin
where rules, principles, regulations, and institutions [hereinafter
collectively "rules"] of international law first emerge and become
known, established, and binding. International law is a distinctive
legal system. At the international level, there is neither a central
legislature nor a complete and comprehensive code of State
conduct. The rules of international law originate from the explicit
or implicit consent of sovereign States following their compromise
and coordination between and among their national wills. Rules so
established will necessarily reflect the compromised and aggregated
wills of different States.
Generally speaking, States express their explicit consent by
concluding treaties between or among themselves and imply their
implicit consent by way of custom and general principles of law. In
other words, the sources of international law comprise three catego-
ries: international treaties, international custom and general

principles of law. Treaties and custom contain crystallized rules

and norms of international law. On the other hand, general
principles of law comprise general legal principles that are common
to various national legal systems and/or those that are deduced,
induced, or generalized from crystallized rules of international law.
The process in which States give their explicit consent (by way of
treaties) and implicit consent (by way of custom and general
principles of law) is in itself a process of compromise among
themselves. One of the necessary elements of custom is the
acceptance by States, as law, of opinio juris sive necessitatis
(necessary legal conviction). In treaties, this opinio juris of States
is expressed in more explicit forms. When States accept conven-
tional rules and customary rules as law, no matter how much
compromise they have made and whether the gains and losses are
balanced, as long as they accept certain practice or rules as law in
accordance with their compromised wills (even if against their
original wish), those national "wills" will inevitably require States
to observe the body of law among nations which they themselves
formulated or accepted as binding upon their external conduct. In
short, international law is the result of compromise and coordina-
tion of the wills of sovereign States; and likewise its basis of
validity.
VII. Conclusions
Justice, reason and some other assertions of the naturalists and
new-naturalists have certain progressive significance. The doctrines
of social bond and necessity of law, if isolated from naturalism, may
partly explain why States observe international law. However,
since various doctrines of naturalism do not start from State
practice but from the so-called "celestial will," God-made law and
natural rights, they have distanced themselves from the objective
international history and reality of life. Consequently, these
doctrines are incapable of satisfactorily explaining why international
law is legally binding.
The normativist school (neo-positivism) and the neo-realist
doctrines contain beliefs that to some extent reflect the reality of
international life, but their obvious defects have greatly diminished
their credibility. In the end, the proponents of normativism, when
unable to explain the basis of validity of "Grundnorm," consciously
or unconsciously find themselves in-line with the naturalists. The
doctrine of power politics and that of policy-orientation have not

only caused theoretical fallacy and confusion, but they are also
somewhat dangerous and reactionary.
Among the various theories discussed earlier, the positivist
doctrines of State will and State consent are closer to the reality of
international life and are hence the most progressive and signifi-
cant. These doctrines associate international law with the will of
the State, thereby completely negating naturalism. In the forma-
tion of international legal rules, the necessary consent of the State
is the expression of the State will, while the will of the State in
return requires the consent of the State. Many of the legal
obligations of a State under international law, especially those
provided in treaties, are the immediate result of State consent.
Compromised "common" consent of States plays a significant role
in establishing and maintaining a certain international legal order.
Nevertheless, the doctrines of "State consent" and "State will"
alone are not the ultimate basis of validity of international law. If
the "will of the State" here denoted the will of one single State or
the separate wills of different States, then the possibility of
formulating a system of international law acceptable by and
applicable to all States would not exist. That would be because
each State would have its own national will different from that of
others, and the separate wills of different States would give rise to
the demands for different legal rules regulating each State's
external relations, and resulting in different "laws." Such different
and even conflicting external public laws of States would not
constitute international law (the law among States), but would in
fact be part of the internal law of different States.
On the other hand, even if one maintains that the will of the
State means the "general will" or "common will" of all States, such
a belief is still contrary to history and reality. The nation-States are
distinct from one another in terms of nation, history, tradition,
culture, custom, social system, and particularly national interest.
This makes it extremely difficult and virtually impossible for States
to form among themselves a "common" or "general" will of their
respective decision-making class without reciprocal compromise.
Reality indicates that all States, large and small, generally
observe rather than violate international law, although violations
are far more widely publicized than observance. They do so for a
variety of reasons. Any, or any combination, of the following non-
exclusive factors may have been taken into account when interna-
tional law is complied with: legal conscience and belief, opiniojuris,
consent, pacta sunt servanda, necessity, reciprocity, world public
opinion, credibility, self-interests, costs and benefits, social

approval, legal habit, fear for reprisals and sanctions, and other
disadvantages of noncompliance.
It is because of the regulating force of international law that
order and stability of the international community are maintained.
International law affords common standards of behavior for States
and the observance of such standards is normally to the common
benefits of States. Among the above mentioned factors, certain
elements, such as legal conscience and belief, opinio juris, the
necessity for law, order and cooperation, reciprocity, and the
principle pacta sunt servanda, may be of more importance. Other
factors such as the fears for reprisals or sanctions may be less
significant. States generally comply with international law not
merely because of possible consequential sanctions against them,
but more importantly because of "a sense of conscience, duty,
reciprocity and the need to live together in peace."216'
Notwithstanding, none of the above-mentioned factors by itself
constitutes the ultimate legal basis of international law. None of
the above explanations adequately touches upon the real and
conclusive basis of the law. The explanation must be sought from
the will of States. As the Permanent Court of International Justice
stated in The Lotus case, "[t]he rules of law binding upon
States ... emanate from their own free will."217 ' States are both
the creators and the addressees of international law - they make
the "law" for themselves in the exercise of their sovereign will.
Absent the will of the State in the form of consent, international
law would not be performing its functions, and even its creation
and existence would have been in doubt. One must not overlook
the fact that international law is "enforced" in a different way from
domestic law. At the international level, it is the States themselves,
as subjects of international law, that create, observe, interpret, and
enforce the law. The States simultaneously function as the
"legislators," arbiters and law-enforcement agents of the interna-
tional legal system, although they do so in a manner different from
their counterparts in domestic legal systems. One must seek an
answer to the question why States observe international law from
the same States that make, obey and enforce the law.
In addition, one should not ignore the fact that the legal rules
and standards for State behaviors in international relations are
established through a process of compromise and coordination
216. Id., at 12.

217. 1927 PCIJ, ser. A, No. 10, at 18.

between the sovereign wills of States. The true, genuine and

ultimate basis behind the binding force of international law is the
compromised wills of States. It is the States themselves being its
subjects that give international law the validity of law through
compromises in explicit and tacit international agreements. Such
compromised and coordinated wills of States may be expressed in
the form of compromised consent with gains and concessions being
taken into consideration. In the case of conventional rules of
international law, it is the explicit and written compromised consent
of States that directly gives rise to contractual rights and duties
enforceable under the notion of pacta sunt servanda. Indeed, the
notion of pacta sunt servanda is deeply rooted in the legal con-
science of States or in the minds of the policy-makers of the State,
and this notion is deeply felt to be a basic legal norm underlying
contractual rights and obligations. It is the compromised wills of
States that give effect to the fundamental principle of pacta sunt
servanda. In the case of customary international law, it is the tacit
and usually non-written compromised consent of States that directly
creates customary rules and norms. Different States act, and
believe to be bound to act, in a certain manner so as to express
their implied compromised common consent to these rules. That
is, their behavior and opinio juris are the implied expression of the
compromise in their "wills." In the end, it is such compromised
wills of sovereign States that make routine compliance with
international law the norm rather than the exception.

2 international law
For example, if two Englishmen make a contract in France to sell goods

1 situated in Paris, an English court would apply French law as regards the
validity of that contract. By contrast, public international law is not sim-
ply an adjunct of a legal order, but a separate system altogether,3 and it is
The nature and development of international law this field that will be considered in this book.
Public international law covers relations between states in all their myr-
iad forms, from war to satellites, and regulates the operations of the many
international institutions. It may be universal or general, in which case the
stipulated rules bind all the states (or practically all depending upon the
In the long march of mankind from the cave to the computer a central role nature of the rule), or regional, whereby a group of states linked geograph-
has always been played by the idea of law – the idea that order is necessary ically or ideologically may recognise special rules applying only to them,
and chaos inimical to a just and stable existence. Every society, whether for example, the practice of diplomatic asylum that has developed to its
it be large or small, powerful or weak, has created for itself a framework greatest extent in Latin America.4 The rules of international law must be
of principles within which to develop. What can be done, what cannot distinguished from what is called international comity, or practices such as
be done, permissible acts, forbidden acts, have all been spelt out within saluting the flags of foreign warships at sea, which are implemented solely
the consciousness of that community. Progress, with its inexplicable leaps through courtesy and are not regarded as legally binding.5 Similarly, the
and bounds, has always been based upon the group as men and women mistake of confusing international law with international morality must
combine to pursue commonly accepted goals, whether these be hunting be avoided. While they may meet at certain points, the former discipline
animals, growing food or simply making money. is a legal one both as regards its content and its form, while the concept of
Law is that element which binds the members of the community to- international morality is a branch of ethics. This does not mean, however,
gether in their adherence to recognised values and standards. It is both that international law can be divorced from its values.
permissive in allowing individuals to establish their own legal relations In this chapter and the next, the characteristics of the international
with rights and duties, as in the creation of contracts, and coercive, as legal system and the historical and theoretical background necessary to a
it punishes those who infringe its regulations. Law consists of a series of proper appreciation of the part to be played by the law in international
rules regulating behaviour, and reflecting, to some extent, the ideas and law will be examined.
preoccupations of the society within which it functions.
And so it is with what is termed international law, with the important
difference that the principal subjects of international law are nation-states, Law and politics in the world community
not individual citizens. There are many contrasts between the law within It is the legal quality of international law that is the first question to be
a country (municipal law) and the law that operates outside and between posed. Each side to an international dispute will doubtless claim legal
states, international organisations and, in certain cases, individuals. justification for its actions and within the international system there is
International law itself is divided into conflict of laws (or private inter- no independent institution able to determine the issue and give a final
national law as it is sometimes called) and public international law (usually decision.
just termed international law).1 The former deals with those cases, within Virtually everybody who starts reading about international law does so
particular legal systems, in which foreign elements obtrude, raising ques- having learned or absorbed something about the principal characteristics
tions as to the application of foreign law or the role of foreign courts.2 of ordinary or domestic law. Such identifying marks would include the
1 This term was first used by J. Bentham: see Introduction to the Principles of Morals and 3 See the Serbian Loans case, PCIJ, Series A, No. 14, pp. 41–2.
Legislation, London, 1780. 4 See further below, p. 92.
2 See e.g. C. Cheshire and P. North, Private International Law, 13th edn, London, 1999. 5 North Sea Continental Shelf cases, ICJ Reports, 1969, p. 44; 41 ILR, p. 29. See also M.
1 Akehurst, ‘Custom as a Source of International Law’, 47 BYIL, 1974–5, p. 1.

development of international law 13 14 international law
in structure and content. To fail to recognise this encourages a utopian behaviour, and international law filled the gap. But although the law of
approach which, when faced with reality, will fail.47 On the other hand, the nations took root and flowered with the sophistication of Renaissance
cynical attitude with its obsession with brute power is equally inaccurate, Europe, the seeds of this particular hybrid plant are of far older lineage.
if more depressing. They reach far back into history.
It is the medium road, recognising the strength and weakness of in-
ternational law and pointing out what it can achieve and what it cannot,
which offers the best hope. Man seeks order, welfare and justice not only Early origins
within the state in which he lives, but also within the international system While the modern international system can be traced back some 400 years,
in which he lives. certain of the basic concepts of international law can be discerned in polit-
ical relationships thousands of years ago.49 Around 2100 BC, for instance,
Historical development48 a solemn treaty was signed between the rulers of Lagash and Umma, the
city-states situated in the area known to historians as Mesopotamia. It
The foundations of international law (or the law of nations) as it is under- was inscribed on a stone block and concerned the establishment of a
stood today lie firmly in the development of Western culture and political defined boundary to be respected by both sides under pain of alienating
organisation. a number of Sumerian gods.50 The next major instance known of an im-
The growth of European notions of sovereignty and the independent portant, binding, international treaty is that concluded over 1,000 years
nation-state required an acceptable method whereby inter-state relations later between Rameses II of Egypt and the king of the Hittites for the
could be conducted in accordance with commonly accepted standards of establishment of eternal peace and brotherhood.51 Other points covered
in that agreement signed, it would seem, at Kadesh, north of Damascus,
47 Note, of course, the important distinction between the existence of an obligation under included respect for each other’s territorial integrity, the termination of a
international law and the question of the enforcement of that obligation. Problems with state of aggression and the setting up of a form of defensive alliance.
regard to enforcing a duty cannot affect the legal validity of that duty: see e.g. Judge Since that date many agreements between the rival Middle Eastern
Weeramantry’s Separate Opinion in the Order of 13 September 1993, in the Bosnia case,
ICJ Reports, 1993, pp. 325, 374; 95 ILR, pp. 43, 92. powers were concluded, usually aimed at embodying in a ritual form a
48 See in particular A. Nussbaum, A Concise History of the Law of Nations, rev. edn, New state of subservience between the parties or attempting to create a political
York, 1954; Encyclopedia of Public International Law (ed. R. Bernhardt), Amsterdam, 1984, alliance to contain the influence of an over-powerful empire.52
vol. VII, pp. 127–273; J. W. Verzijl, International Law in Historical Perspective, Leiden,
10 vols., 1968–79, and M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and
Fall of International Law, 1870–1960, Cambridge, 2001. See also W. Grewe, The Epochs of
International Law (trans. and rev. M. Byers), New York, 2000; A. Cassese, International 49 See D. J. Bederman, International Law in Antiquity, Cambridge, 2001.
Law in a Divided World, Oxford, 1986, and Cassese, International Law, 2nd edn, Oxford, 50 Nussbaum, Law of Nations, pp. 1–2. Note the discovery in the excavated city of Ebla, the
2005, chapter 2; Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, capital of a civilisation at least 4,500 years old, of a copy of a political treaty between Ebla
7th edn, Paris, 2002, p. 41; H. Thierry, ‘L’Evolution du Droit International’, 222 HR, 1990 and the city of Abarsal: see Times Higher Education Supplement, 19 May 1995, p. 20. See
III, p. 9; P. Guggenheim, ‘Contribution à l’Histoire des Sources du Droit des Gens’, 94 also R. Cohen, On Diplomacy in the Ancient Near East: The Amarna Letters, Discussion
HR, 1958 II, p. 5; A. Truyol y Serra, Histoire de Droit International Public, Paris, 1995; Paper of the Centre for the Study of Diplomacy, University of Leicester, 1995; O. Butkevych,
D. Gaurier, Histoire du Droit International Public, Rennes, 2005; D. Korff, ‘Introduction à ‘History of Ancient International Law: Challenges and Prospects’, 5 Journal of the History
l’Histoire de Droit International Public’, 1 HR, 1923 I, p. 1; P. Le Fur, ‘Le Développement of International Law, 2003, p. 189; A. Altman, ‘Tracing the Earliest Recorded Concepts of
Historique de Droit International’, 41 HR, 1932 III, p. 501; O. Yasuaki, ‘When was the International Law. The Early Dynastic Period in Southern Mesopotamia’, 6 Journal of the
Law of International Society Born? An Inquiry of the History of International Law from History of International Law, 2004, p. 153, and ‘Tracing the Earliest Recorded Concepts of
an Intercivilisational Perpective’, 2 Journal of the History of International Law, 2000, p. 1, International Law. (2) The Old Akkadian and Ur III Periods in Mesopotamia’, 7 Journal of
and A. Kemmerer, ‘The Turning Aside: On International Law and its History’ in Progress the History of International Law, 2005, p. 115.
in International Organisation (eds. R. A. Miller and R. Bratspies), Leiden, 2008, p. 71. 51 Nussbaum, Law of Nations, pp. 1–2.
For a general bibliography, see P. Macalister-Smith and J. Schwietzke, ‘Literature and 52 Preiser emphasises that the era between the seventeenth and fifteenth centuries BC wit-
Documentary Sources relating to the History of International Law’, 1 Journal of the History nessed something of a competing state system involving five independent (at various times)
of International Law, 1999, p. 136. states: Bernhardt, Encyclopedia, vol. VII, pp. 133–4.

Yet, on the other hand, the doctrine of Natural Law has been employed of aristocratic élites, foreign policy characterised both the positive and the
to preserve the absoluteness of sovereignty and the sanctity of private negative faces of nationalism. Self-determination emerged to threaten the
possessions. The theory has a reactionary aspect because it could be argued multinational empires of Central and Eastern Europe, while nationalism
that what was, ought to be, since it evolved from the social contract or reached its peak in the unifications of Germany and Italy and began to
was divinely ordained, depending upon how secular one construed the exhibit features such as expansionism and doctrines of racial superior-
law of nature to be. ity. Democracy brought to the individual political influence and a say
in government. It also brought home the realities of responsibility, for
The nineteenth century wars became the concern of all. Conscription was introduced throughout
the Continent and large national armies replaced the small professional
The eighteenth century was a ferment of intellectual ideas and ratio- forces.93 The Industrial Revolution mechanised Europe, created the eco-
nalist philosophies that contributed to the evolution of the doctrine of nomic dichotomy of capital and labour and propelled Western influence
international law. The nineteenth century by contrast was a practical, ex- throughout the world. All these factors created an enormous increase
pansionist and positivist era. The Congress of Vienna, which marked the in the number and variety of both public and private international in-
conclusion of the Napoleonic wars, enshrined the new international order stitutions, and international law grew rapidly to accommodate them.94
which was to be based upon the European balance of power. International The development of trade and communications necessitated greater in-
law became Eurocentric, the preserve of the civilised, Christian states, into ternational co-operation as a matter of practical need. In 1815, the Final
which overseas and foreign nations could enter only with the consent of Act of the Congress of Vienna established the principle of freedom of
and on the conditions laid down by the Western powers. Paradoxically, navigation with regard to international waterways and set up a Central
whilst international law became geographically internationalised through Commission of the Rhine to regulate its use. In 1856 a commission for the
the expansion of the European empires, it became less universalist in con- Danube was created and a number of other European rivers also became
ception and more, theoretically as well as practically, a reflection of Eu- the subject of international agreements and arrangements. In 1865 the In-
ropean values.90 This theme, the relationship between universalism and ternational Telegraphic Union was established and in 1874 the Universal
particularism, appears time and again in international law. This century Postal Union.95
also saw the coming to independence of Latin America and the forging European conferences proliferated and contributed greatly to the de-
of a distinctive approach to certain elements of international law by the velopment of rules governing the waging of war. The International Com-
states of that region, especially with regard to, for example, diplomatic mittee of the Red Cross, founded in 1863, helped promote the series of
asylum and the treatment of foreign enterprises and nationals.91 Geneva Conventions beginning in 1864 dealing with the ‘humanisation’
There are many other features that mark the nineteenth century. of conflict, and the Hague Conferences of 1899 and 1907 established the
Democracy and nationalism, both spurred on by the wars of the French Permanent Court of Arbitration and dealt with the treatment of prisoners
revolution and empire, spread throughout the Continent and changed and the control of warfare.96 Numerous other conferences, conventions
the essence of international relations.92 No longer the exclusive concern and congresses emphasised the expansion of the rules of international law
and the close network of international relations. In addition, the academic
90 See Nussbaum, Law of Nations, pp. 186–250, and, e.g., C. H. Alexandrowicz, The European– study of international law within higher education developed with the ap-
African Confrontation, Leiden, 1973. See also B. Bowden, ‘The Colonial Origins of Interna- pointment of professors of the subject and the appearance of specialist
tional Law. European Expansion and the Classical Standard of Civilisation’, 7 Journal of the
History of International Law, 2005, p. 1, and C. Sylvest, ‘International Law in Nineteenth- textbooks emphasising the practice of states.
Century Britain’, 75 BYIL, 2004, p. 9.
91 See below, chapters 3 and 14 respectively. See also H. Gros Espiell, ‘La Doctrine du Droit 93 G. Best, Humanity in Warfare, London, 1980; Best, War and Law Since 1945, Oxford, 1994,
International en Amérique Latine avant la Première Conférence Panaméricaine’, 3 Journal
of the History of International Law, 2001, p. 1. and S. Bailey, Prohibitions and Restraints in War, Oxford, 1972.
94 See e.g. Bowett’s Law of International Institutions, and The Evolution of International Or-
92 See especially A. Cobban, The Nation State and National Self-Determination, London,
1969. ganisations (ed. E. Luard), Oxford, 1966.
95 96 See further below, chapter 21.
See further below, chapter 23.

Positivist theories dominate this century. The proliferation of the pow- treaties and customs) and because it was dictated by the ‘common will’
ers of states and the increasing sophistication of municipal legislation of the states it could not be unilaterally altered.99
gave force to the idea that laws were basically commands issuing from a This led to a paradox. Could this common will bind individual states
sovereign person or body. Any question of ethics or morality was irrele- and, if so, why? It would appear to lead to the conclusion that the will of
vant to a discussion of the validity of man-made laws. The approach was the sovereign state could give birth to a rule over which it had no control.
transferred onto the international scene and immediately came face to The state will was not, therefore, supreme but inferior to a collection
face with the reality of a lack of supreme authority. of states’ wills. Triepel did not discuss these points, but left them open
Since law was ultimately dependent upon the will of the sovereign in as depending upon legal matters. Thus did positivist theories weaken
national systems, it seemed to follow that international law depended their own positivist outlook by regarding the essence of law as beyond
upon the will of the sovereign states. juridical description. The nineteenth century also saw the publication of
This implied a confusion of the supreme legislator within a state with numerous works on international law, which emphasised state practice
the state itself and thus positivism had to accept the metaphysical identity and the importance of the behaviour of countries to the development of
of the state. The state had a life and will of its own and so was able to rules of international law.100
dominate international law. This stress on the abstract nature of the state
did not appear in all positivist theories and was a late development.97
The twentieth century
It was the German thinker Hegel who first analysed and proposed
the doctrine of the will of the state. The individual was subordinate to The First World War marked the close of a dynamic and optimistic cen-
the state, because the latter enshrined the ‘wills’ of all citizens and had tury. European empires ruled the world and European ideologies reigned
evolved into a higher will, and on the external scene the state was sovereign supreme, but the 1914–18 Great War undermined the foundations of Eu-
and supreme.98 Such philosophies led to disturbing results in the twenti- ropean civilisation. Self-confidence faded, if slowly, the edifice weakened
eth century and provoked a re-awakening of the law of nature, dormant and the universally accepted assumptions of progress were increasingly
throughout the nineteenth century. doubted. Self-questioning was the order of the day and law as well as art
The growth of international agreements, customs and regulations in- reflected this.
duced positivist theorists to tackle this problem of international law and The most important legacy of the 1919 Peace Treaty from the point of
the state; and as a result two schools of thought emerged. view of international relations was the creation of the League of Nations. 101
The monists claimed that there was one fundamental principle which The old anarchic system had failed and it was felt that new institutions
underlay both national and international law. This was variously posited to preserve and secure peace were necessary. The League consisted of an
as ‘right’ or social solidarity or the rule that agreements must be car- Assembly and an executive Council, but was crippled from the start by
ried out (pacta sunt servanda). The dualists, more numerous and in the absence of the United States and the Soviet Union for most of its life
a more truly positivist frame of mind, emphasised the element of and remained a basically European organisation.
consent. While it did have certain minor successes with regard to the mainte-
For Triepel, another German theorist, international law and domestic nance of international order, it failed when confronted with determined
(or municipal) law existed on separate planes, the former governing in- aggressors. Japan invaded China in 1931 and two years later withdrew from
ternational relations, the latter relations between individuals and between the League. Italy attacked Ethiopia, and Germany embarked unhindered
the individual and the state. International law was based upon agreements
between states (and such agreements included, according to Triepel, both 99 Friedmann Legal Theory, pp. 576–7. See also below, chapter 4.
100 See e.g. H. Wheaton, Elements of International Law, New York, 1836; W. E. Hall, A Treatise
on International Law, Oxford, 1880; Von Martens, Völkerrecht, Berlin, 2 vols., 1883–6;
97
Pradier-Fodéré, Traité de Droit International Public, Paris, 8 vols., 1855–1906; and Fiore,
See below, chapter 2. Il Diritto Internazionale Codificato e la Sua Sanzione Giuridica, 1890.
98 See e.g. S. Avineri, Hegel’s Theory of the Modern State, London, 1972, and Friedmann, Legal 101 See Nussbaum, Law of Nations, pp. 251–90, and below, chapter 22.
Theory, pp. 164–76.

development of international law 31
upon a series of internal and external aggressions. The Soviet Union, in

a final gesture, was expelled from the organisation in 1939 following its
invasion of Finland.
Nevertheless much useful groundwork was achieved by the League in
its short existence and this helped to consolidate the United Nations later
on.102
The Permanent Court of International Justice was set up in 1921 at The
Hague and was succeeded in 1946 by the International Court of Justice.103
The International Labour Organisation was established soon after the end
of the First World War and still exists today, and many other international
institutions were inaugurated or increased their work during this period.
Other ideas of international law that first appeared between the wars
included the system of mandates, by which colonies of the defeated powers
were administered by the Allies for the benefit of their inhabitants rather
than being annexed outright, and the attempt was made to provide a form
of minority protection guaranteed by the League. This latter creation was
not a great success but it paved the way for later concern to secure human
rights.104
After the trauma of the Second World War the League was succeeded in
1946 by the United Nations Organisation, which tried to remedy many of
the defects of its predecessor. It established its site at New York, reflecting
the realities of the shift of power away from Europe, and determined to
become a truly universal institution. The advent of decolonisation fulfilled
this expectation and the General Assembly of the United Nations currently
has 192 member states.105
Many of the trends which first came to prominence in the nineteenth
century have continued to this day. The vast increase in the number of
international agreements and customs, the strengthening of the system
of arbitration and the development of international organisations have
established the essence of international law as it exists today.
Communist approaches to international law

Classic Marxist theory described law and politics as the means whereby
the ruling classes maintained their domination of society. The essence
of economic life was the ownership of the means of production, and all
102 See also G. Scott, The Rise and Fall of the League of Nations, London, 1973.
103 104 See below, chapter 6.
See below, chapter 19.
105 Following the admission of Montenegro on 28 June 2006.

The Subjects of International Law
Author(s): M. Seara Vazquez and Michel Vale
Source: International Journal of Politics , Spring - Summer, 1976, Vol. 6, No. 1/2, Latin
American Approaches to International Law (Spring - Summer, 1976), pp. 133-137
Published by: Taylor & Francis, Ltd.
Stable URL: https://www.jstor.org/stable/40469817
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Derecho Internacional Público, 4th ed.
(Mexico: Editorial Porrua, 1974)
M. Seara Vazquez (Mexico)
THE SUBJECTS OF INTERNATIONAL LAW
1.3. The theory of recognition. A distinction must be dra

between recognition of states and recognition of governme
1.3.1. Recognition of states. The birth of a state is of co
a question of fact, independent of law. States are formed in
historical process; they are subject to international law only
after they have been formed.
Two different theories concerning the recognition of states
may be distinguished.
1.3.1.1. The constitutive theory, according to which before
recognition the political community in question does not have
the full capacity of a state, of a subject of international law,
and it is the recognition by other states that gives it this ca-
pacity .
1.3.1.2. The declarative theory, which holds that the new
community possesses the properties of a state even before rec-
ognition and that a state which grants recognition does no more
than accept a fact.
Both theories agree that recognition is a discretionary act
of states, which may refuse to grant it, with international law
stipulating no particular obligation in this respect.
This selection is from pp. 85-87 of Vazquez's book.
133

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134 M. Seara Vazquez
We are inclined to favor the declarative theory. Indeed, if

the birth of a state is a pure historical fact, independent of law,
it cannot make its international identity subject to the recogni-
tion of other states. To be sure, recognition is a discretionary
act, but nonrecognition by a particular state does not give it the
right to consider that the state that has just been born does not
exist and does not permit it (international practice proves this)
to intervene, for example, in its internal affairs. Recognition
shall be limited to creating broader relations between the rec-
ognized state and the state granting recognition but does not
exempt the latter from the minimum norms of coexistence set
down by international law. This is the thesis of the Convention
on the Rights and Duties of States, adopted at Montevideo on
December 26, 1933, which states that "the juridical existence
of a state is independent of its recognition by other states."
Recognition of a state may take an explicit form, in which the
other state declares (in a treaty or in a unilateral declaration)
that it shall consider the new state to be a full subject of inter-
national law; however, it may also be given tacitly, when the
conduct of the former bears testimony to a willingness to treat
the latter on an equal basis.
1.3.2. Recognition of governments. In principle the recogni-
tion of a state contains implicitly the recognition of a govern-
ment. The particular problem of the recognition of a govern-
ment appears when the latter has taken power by overthrowing
the constitutional order.
The question, then, is to determine if states are or are not

obligated to grant recognition to such governments. Three doc-
trines, one contradicting the other two, all originating on the
American continent, attempt to provide a solution.
1.3.2.1. The Tobar Doctrine derives from the Ecuadorian
secretary of foreign relations and dates from 1907 . It holds
that recognition should be withheld from governments imp
by force and with no constitutional legitimation. The Tobar
Doctrine, which was essentially well intentioned, was meant to
serve as an obstacle to the frequent revolutions and coups
d'e'tat that occurred in Spanish American countries; however,

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Subjects of International Law 135
it did not accurately reflect all the danger

from this sort of intervention in internal
ing a judgment on the legitimacy of new g
Betancourt Doctrine, which was a variant of the Tobar Doctrine,
was put forth by Ro'mulo Betancourt when he was president of
Venezuela; it proposed to limit nonrecognition to governments
imposed by military coups d'etat.
There has been much discussion as to whether recognition
could be conditional, i.e., if the state granting it could place
certain conditions on it. At first glance it would appear that by
virtue of the juridical principle of tThe who can do the most can
do the least, " concession of the discretionary power to grant or
not to grant recognition would also carry with it the capacity to
set terms for that recognition; however, if this possibility is
considered from a broader perspective, it is evident that the
principle of equality among nations implies an obligation of mu-
tual respect and nonintervention. Memories of the abuses that
conditional recognition has engendered in the past compel us
necessarily to conclude that present international law rejects
making the act of recognition contingent on any conditions what-
soever .
1.3.2.2. Estrada Doctrine. This doctrine was put forth in

1930 by the Mexican secretary of foreign relations, Estrada,
and states that Mexico would not take a formal position on the
question of the granting of recognition because this would be an
offensive practice, which, aside from representing an encroach-
ment on the sovereignty of other nations, would subject the in-
ternal affairs of these nations to the approval or disapproval of
other governments; accordingly, Mexico limited itself to main-
taining or breaking off its diplomatic relations, without that de-
cision implying an approval or disapproval of revolutionary
governments .
With the Estrada Doctrine Mexico is actually claiming that
the issue involved in what in international law is known as an
act of recognition is not the legitimacy or legality of the gover
ment in question, but the interests of Mexico itself, since if it
were the former it would be tantamount to an interference or

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136 M. Seara Vazquez
the pronouncement of a
macy or illegitimacy. If
of the discretion which international law considers essential in
the doctrine of recognition.
The Estrada Doctrine has frequently been incorrectly inter-
preted. Thus no less than Oppenheim (Lauterpacht) speaks of
the so-called nEstrada Doctrine put forth in 1930 by the Mexi-
can minister of foreign affairs, stating the duty to continue dip-
lomatic relations as far as possible, without any consideration
for revolutionary changes. "
In response to the notion, which gained credence during
World War II, that Mexico had abandoned the Estrada Doctrine
because of, among other things:
a) the Resolution of the Rio de Janeiro Conference, which
created the Advisory Emergency Committee for the Political
Defense of the American Continent;
b) Mexico fs adherence to the Montevideo Resolution, which
established a system of deliberative meetings in the case of
governments formed by force; and
c) Mexico Ts conduct in the cases of Bolivia and Argentina:
the secretary of foreign relations published a declaration spec-
ifying the meaning of the doctrine and stressing that its appli-
cation did not automatically imply the maintaining of relations,
but that Mexico would maintain or recall its diplomatic agents
when it felt it necessary .
1.3.2.3. The Diaz Ordaz Doctrine, or the thesis of continuity.
With regard to Mexico fs relations with the Spanish American
nations, this thesis meant an abandonment of the Estrada Doc-
trine or, better, a modification, as we shall explain below.
It was formally put forth by the Mexican secretary of foreign
affairs, Antonio Carrillo Flores, in a speech given April 15,
1969, in which, referring to guidelines laid down by President
Diaz Ordaz on the subject, he stated that "the nations of Latin
America should not be deprived of channels of communication,
and that therefore Mexico did not wish to break the continuity
in its relations with the other Latin American nations, what-
ever the nature or orientation of their governments."

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Subjects of International Law 137
We said that this doctrine did not mean an abandonment of

the Estrada Doctrine because Mexico continues to abstain
from speaking of the recognition or nonrecognition of the g

ernments at issue; however, it is a modification in the sense
that Mexico does explicitly state its desire to continue rela-
tions independently of the "character and orientation" of the
governments concerned.
An antecedent of this doctrine is to be found in Declaration
XXXV of the Ninth Pan-American Conference of Bogota, on the
"Exercise of the Right of Legation," which states that it "is
desirable to maintain continuity in diplomatic relations among
the American states."

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Global Journal of Politics and Law Research
Vol.6, No.1, pp.1-11, Febuary 2017
___Published by European Centre for Research Training and Development UK (www.eajournals.org)
THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND NATIONAL LAW
Dr. Luljeta Kodra

Head of Law Department
Faculty of Juridical and Political Sciences
Mediterranean University of Albania
ABSTRACT: The relationship between international law and national law as well as the concept
of supremacy of international law are currently very controversial issues. Many authors accept
the supremacy of international law as a value that allows the existence of an international legal
rule.Although the domestic law of many states in today's conditionscomply with the ever-
increasing demands of international law, it is generally refused to accept the unconditional
supremacy of international law on constitutional principles. Most states have declared their
supreme constitutions.Some international treaties obligate States Parties to adapt their national
legislation or to undertake other measures to meet with the international obligations they have
undertaken. States have the right not to become part of an international act that may be in conflict
with their constitution. They can also avoid the conflict between the international act and their
constitution by making a reservation against the international act in order to protect their domestic
law projections and to prevent conflict at international level or by amending their
constitution.There is a principle according to which it is the internal law that permits the
application of international law in the domestic legal system, since international acts must first be
ratified by the parliaments of states in order to become part of the interior right of a state.
KEYWORDS: international law, national law, States parties, civil codes, criminal codes.
INTRODUCTION
Entry
International law consists of rules, customs and legal decisions that regulate relations between
states.The entirety of the acts constituting this right is related to issues such as human rights,
humanitarian interventions, diplomatic and consular rights, etc.In contrast to international law,
domestic law regulates the relations of individuals and legal persons within the borders of each
individual state.The main acts constituting domestic law are: Civil Codes and Criminal Codes.
When disagreements or conflicts arise in relations between sovereign states, they are resolved
under the rules of international public law. International law provides that in international relations
all parties should be considered as sovereign and equal states.
1
Print ISSN: ISSN 2053-6321(Print), Online ISSN: ISSN 2053-6593(Online)

There are conflicts in the sense of international public law when two states have openly different
views regarding the implementation or non-implementation of the provisions of a treaty or the
general principles of international law recognized by all.1These conflicts can be solved through
diplomatic or judicial means provided by international public law. Diplomatic means include direct
diplomatic talks between the parties, good intentional service, mediation, committee commissions
(divided into commission of inquiry and reconciliation).In judicial remedies are included
Arbitration and the International Court.The International Court of Justice has jurisdiction: Firstly,
when conflicting countries agree to an agreement, called a compromise, to pass the case to the
International Court of Justice; Secondly, when a treaty specifies the international court as a
sovereign legal authority in relation to the resolution of the dispute.2
International law, which is made up of international customs3and treaties4,was created through the
agreement of states. The way of establishing international law norms varies with the legislative
process that creates the domestic law of states. International treaties are legally binding agreement
of the states that are part of them.Treaties are usually agreements ratified by the highest organs of
a state and in many states once treaties are ratified, they become part of the country's domestic
legal system.
Many authors consider international law and domestic law as two independent entities, claiming
that they regulate separate issues and exist in quite different spheres. According to them,
international law norms regulate the behavior of states and their interaction with each other, while
domestic norms on the other hand govern the conduct of people within a sovereign state.
Other authors claim that both types of right usually interact when the domestic law of a state
recognizes and has made its part of the rules of international law. But there are other authors who
believe that international law and domestic law are both part of the same legal system.Advocates
of this opinion claim that international law has priority over domestic law of states even in the
judicial processes of the states.5
Supremacy of international law
1
E drejta ndërkombëtare publike, Arben Puto, fq 424.
2
How to Distinguish International Law from Municipal (http://www.wikihow.com/Distinguish-International-Law-
from-Municipal-Law)
3
International custom, as one of the sources of international law are created when a country generally and consistently
adheres to a particular practice which it considers as a legal obligation. They are not written and are less formal than
all kinds of international laws.
4
International treaties are acts that establish, modify or suspend the rights and obligations between the parties. They
can get different denominations like pact, convention, deal etc, but their legal value remains the same.
5
How to Distinguish International Law from Municipal.
2

If we talk about the relationship between a country's international law and domestic law, we will
conclude that this report varies depends on the different views.According to author Heisenberg6,
We start from the perspective of the domestic law of a state and of constitutionalism, results that
are internal law and state constitutions that define the criteria for acceptance or rejection of the
norms of international law in the domestic legal system of a country.So, internal acts are those that
determine what requirements must be met before a government takes on the commitments of
international treaties; what place will the international treaties have in the domestic legal system
of the state; to what degree will be recognized and will be accepted the interference of customary
international law; in what ways national courts have to deal with international law, and so on.
On the other hand, if the relationship between the international law and the domestic law of a state
is seen from the perspective of international law, the point of view changes.The application of
international law depends on the consent of the states, whether express or implied. When a state
undertakes the commitment to an international treaty, it is associated with this commitment and
must fulfill all obligations arising from it.
Gerald Fitzmaurice has also expressed in the debate about the international law and domestic law
report the concept of supremacy of international law.7Systems of international law and domestic
law in his view can not come into conflict because they belong to different kingdoms.A state that
fails because of the supremacy of its domestic law in the implementation of its international
obligations has committed a violation of its international obligations.The concept that Fitzmaurice
presents is more like a description of a divergence between international law and domestic law
than with a theory of reconciliation between these two types of rights.
The author Hersch Lauterpacht8 says that the supremacy of international law is a concept designed
to oversee human rights abuses at the national and international level.International law contains
basic principles that set the standard by which states must agree on the treatment of the very
important issue of respect for human rights.However, international law can not play an absolute
role in this regard, because it is quite obvious the problem of international customary law as a
complementary source of international law, which has an endlessly unfathomablecontent and is
very difficult to implement.9Difficulties include also the application of the general principles of
international law.
6
Heisenberg, The Heisenberg Uncertainty Principle and the Challenge of Resisting - or Engaging - Transnational
Constitutional Law, Alabama Law Review, Vol. 66, 2014, 12 March 2015.
7
General Principles of International Law, Gerald Fitzmaurice, lectures, Hague, 1957.
8
International Law and Human Rights, Hersch Lauterpacht, Archon books, 1968.
9
The supremacy of International Law? – Part One, Published on June 2, 2016, Daniel Bethlehem KCMG QC.
3

The concept of supremacy of international law has been and is still a powerful tool to turn
international law into a set of principles that govern the behavior of states in a system of strict rules
that regulate their behavior.
The current debate about the supremacy of international law shows the success, effectiveness and
authority that has achieved the international law.This debate, contrary to what the other authors
suggest, does not signal the weakness of international law, but rather its power and commitment
in all aspects of international life.10
Both international and national law has developed the principles of coordination and reconciliation
between them. Here we can mention the principle reflected in Article 27 of the Vienna Convention
of 1969 "On the Law of Treaties", according to which "a State can not be justified by the provisions
of its domestic legislation for its failure to implement the obligations deriving from a treaty“. But
also, there are other principles about this coordination between the two types of rights.
There has also been a development of theoretical thought by international jurists on starting the re-
conceptualization of the relationship between international law and domestic law regarding the
issue of supremacy of international law, at least in cases when the fundamental human rights are
in dispute. We can mention Andre Nollkaemper authors and Anne Peters, but there are also many
other contributions in this regard.
Daniel Bethlehem has expressed his opinion that international law prevails over the domestic law
of states. In the view of this author, the application of international law in the domestic area should
not be diminished and the application and effect of international law should not be undermined.
This is the concept of supremacy, at least in the form that applies in today's international space,
and this is what everyone should expect in the decisions of the International Court of Justice.
Concerning the concept of supremacy of international law, also the author Andre Nollkaemper has
expressed his opinion. According to him, the concept of supremacy of international law is the key
to the international rule of law, which requires states to exercise their powers in accordance with
international law rather than domestic law. Again, according to this author, allowing states to give
priority to the domestic legal arrangements of the state in relation to international law, can cause
the effectiveness of international law and the consequent undermining of international rule of law.
Despite the idea he expresses, this author believes that many scholars in Europe may be convinced
of the need to prioritize the fundamental freedoms on the arbitrary use of power by international
organizations, but this raises the question of how to distinguish challenges based on fundamental
10
The supremacy of International Law? – Part Two, Published on June 3, 2016, Daniel Bethlehem KCMG QC.
4

human rights as claimed and built in Western Europe and challenges based on other reasons that
may undermine any achievement of international law.11
All we mentioned above is about the doctrinal debate about the relationship between international
law and domestic law and the supremacy of international law. However, it is quite obvious that in
the practice of relations between states, the positionation can be very different from the theoretical
aspect or position, especially in matters relating to national security. This is related to the fact that
a country is more likely to be guided by its domestic law provisions even in cases where its
domestic law is in violation of international law.
The constitutions of states refer to international law
The constitutions of states traditionally are referred to international law. However, in recent
decades, there has been an increase in reference to international law by the constitutions of States
which nowadays provide and enforce the binding force of international law in the domestic legal
area, although the priority of international law on the domestic constitution is often not accepted.
It may be mentioned also that in the constitutions of the EU member states are made provisions
for the transfer of sovereign powers of the states to the EU, while specific provisions of state
constitutions contain international human rights and give them priority over their domestic law.
More and more the various national constitutions are referring to international law and there are
several factors that influence in explaining this trend. The most important factors are the collapse
of the communist bloc in the 1990s, which increased the need for the elaboration of new
constitutions for the former communist countries that came to rule of law and accepted the market
economy; the integration of states into international organizations, a process that has demanded
that member states of these international organizations amend their internal constitutions12; some
of the members of the international community have overseen the change of political regimes of
many states and have promoted the creation or have themselves created new constitutions in these
countries. Typical cases are the constitution of Bosnia-Herzegovina in 1995, Afghanistan in 2004,
Kosovo in 2008.
As the domestic constitutional right of many states in today's conditions responds to ever-
increasing demands to comply with international law, despite the refusal to accept unconditional
supremacy of international law on constitutional principles, results that international law and
constitutional law of the states increasingly converge and that the constitutions of different states
11
Rethinking the Supremaci of International Law, Andre Nollkaemper, Amsterdam Center for International Law,
Working Papers 2009.
12
The Maastricht Treaty of 1992, which established the EU and substantially reformed European Community,
imposed revisions to constitutions in most member states, including powerful members such as France and Germany.
5

have more and more similarities. In particular, the new constitutions of states drafted according to
international principles have many similarities with each other. They are based on the fundamental
principles of law, rule of law, democracy, and the separation of powers. As we noted, one reason
for this convergence of international law with the constitutional right of states is that states have
strong political motives to amend and reform the constitutions of their states in order to become
members of different international organizations. The greatest pressure for reforming internal
constitutions has been exercised by organizations such as the EC, the EU and NATO. Eastern and
Central European States had to undertake serious constitutional reforms in order to be recognized
as EC members. Conditions that were settled for the membership of these countries in important
international organizations, were the most related with the implementation of fundamental human
rights and democratic norms.13
Traditionally, the domestic constitutional principles of states have been exported internationally.
For example, the national principle of democracy was transformed into a principle of international
law, self-determination. On the other hand, nowadays, international standards relating to the
protection of human rights, good governance, and democracy are often incorporated into internal
constitutions. The most important thing in this regard is the concept of human rights which was
recognized as a legal obligation 2 centuries ago at national level and internationally adapted and
became recognized after World War II.14 This interaction of international law with the domestic
constitutional law of the states, which mainly deals with the acceptance of international standards
at the national level has led to the globalization of the constitutions of States and to the
constitutionalization of international law.
European integration has contributed to a fundamental structural change, which has to do with the
creation of constitutions that have the supremacy over ordinary laws.
In the contemporary practice of relations between states, there is a new phenomenon. This
phenomenon has to do with the interpretation of the constitutions of particular states in the light
of international law. This interpretation has increasingly reduced the clash between domestic
constitutional law and international law. For example, the Portuguese Constitution of 1976, the
Spanish Constitution of 1978, the Romanian Constitution of 1991 and the Constitution of South
Africa 1996, explicitly require that the state constitution should be interpreted in accordance with
with international law on human rights.15 The practice of voluntary acceptance of the authority of
international law on constitutional law contributes to constitutional harmonization.
13
E drejta ndërkombëtare publike, Arben Puto, Tirana 2009.
14
Anne Peters, Supremacy Lost: International Law Meets Domestic Constitutional Law, Vol 3, 3/2009.
15
Anne Peters, Supremacy Lost: International Law Meets Domestic Constitutional Law, Vol 3, 3/2009.
6

The controversial supremacy of international law on domestic constitutional law.
There are some constitutions that accept the supremacy of international law on the domestic law
of states even though they are limited in number. So the constitutions of some states place
international human rights treaties and in particular the European Convention on Human Rights in
the hierarchy of the sources of law at a higher level than the domestic laws of the state. So the
constitutions of some countries after the transition, such as Romania in 1991, Slovakia in 1992,
the Czech Republic in 1992, explicitly give international treaties on human rights precedence over
domestic law.
The constitutions of some states have given to the international instruments an equal status as the
state constitution. For example, according to the Austrian constitutional law until 2008, any
provision of international treaties that could raise constitutional problems, was declared in order
to proceed, if necessary, with the review of the Austrian Constitution.
So, the supremacy of international law on the domestic law of states is generally accepted, but
there are also refusals to accept this sovereignty over domestic constitutional law. Only the
constitutions of some states seem to accept the call for supremacy over the domestic constitutional
law. Here we can mention the Constitution of Belgium of 1994 and the 1983 Constitution of the
Netherlands, which give international law precedence over constitutional law.
The position of many international trial organisms nowadays is that international law has
precedence over all national laws, including constitutions of states.
But while international courts claim supremacy of international law against all national laws
including constitutional law, this claim is increasingly being rejected by domestic actors. A number
of states have refused to recognize the supremacy of international law over their constitutional law.
Most states do not give international or european law a priority over their constitutions. The
Constitution of Belarus of 1994, the Constitution of Georgia of 1995, the Constitution of South
Africa of 1996 are some of the constitutions of states which expressly claim the superiority of their
constitutional right over international law. While some other constitutions, such as the 1975 Greek
Constitution, the 1992 Estonian Constitution and the 1997 Constitution of Poland, expressly
recognize the priority of international law over ordinary laws, but not on the Constitution of their
country. According to the French Constitution, the ratification of an international agreement that
is in conflict with the constitution, can only be made after a constitutional revision. This means
that the French Constitution stands above international law.
Another argument we can mention in terms of refusing to recognize the supremacy of international
law in relation to the constitutional right of states is also the one that deals with the positioning of
the European Convention on Human Rights in the hierarchy of resources of the right for the
7

member states of the Council of Europe. In most Member States, the European Convention on
Human Rights, in the hierarchy of the sources of law, comes under the constitutions of states or
between constitutions and laws or at the same level as the domestic laws of the state. Exceptionally
in some member states such as Austria and Italy, the European Convention on Human Rights has
the same status as domestic constitutional law. While in the Netherlands and Belgium, the
European Convention of Human Rights is set in the hierarchy of the sources of the law above the
domestic constitution of the state.
Challenges of the supremacy of international law at the national level
As we discussed above, few countries recognize the supreme supremacy of international law
against domestic law and, above all, to domestic constitutions. Most states have declared their
supreme constitutions, while other states have decided that in case of conflict between international
law and domestic law, supreme is national or international rule, depending by the will expressed
by the Parliament.
There is a principle according to which is the domestic law that allows the application of
international law to the domestic legal system. In countries that accept this principle (including
here, Albania), international law norms lie in the hierarchy of the sources of justice at a higher
level than the domestic laws, but no higher than the state constitution. According to the legislation
of the Republic of Albania in case of conflict between international norms and domestic laws,
international norms will have priority, but we should remember that an international norm becomes
part of the internal legal system of the Republic of Albania only if it is ratified by the parliament.16
So it is the national law that paves the way for the international norm. In other words, the
supremacy of international law is not always recognized.
States have the right not to become part of an international act that may be in conflict with their
constitution. They can also avoid the conflict between the international act and their constitution
by making a reservation against the international act in order to protect their domestic law
projections and to prevent conflict at international level or by amending their constitution. It is
clear that in such cases there will be no conflict between international law and domestic law and
the issue of supremacy of international law will not arise. A controversial issue is how to act in
situations where states are united with international acts and at a later stage constitutional conflict
appears. Can States in this case give priority to their domestic law?
The issue of compliance of domestic law with international obligations is a matter of international
law because firstly, discrepancy undermines the effectiveness of international law and second,
16
Articles 116 and 122 of the Constitution of the Republic of Albania.
8

when failing to enforce their international obligations, states may face international
accountability.17
The international courts have also consistently admitted that the national law of the states can not
prevail over the international legal obligations, and also have rejected any claims by states that
contradict this rule. This general principle of supremacy of international law at the international
level is driven by the mutual interests of states in the implementation of international obligations
and by the overall interest of a stable international legal system.
Actually, the principle of supremacy of international law on the domestic law of states, does not
imply that international law is necessarily insensitive to domestic laws that may impede the
implementation of international obligations. Many international obligations explicitly open the
way to domestic law.
However, if we accept that states based on their domestic law provisions could justify non-
compliance with international obligations, this could lead to the underlying undermining of the
effectiveness of international law, it could eliminate the limits of legality and may lead to the
perception of international law, as unfair, as a system of non-enforceable principles of
implementation, which have little or no power to limit state power.
The number of cases in which states or courts may give priority to domestic law may be increasing,
if both international and domestic legal systems can, in some respects, meet the defect in defending
another system. As a result of this co-operation, states may be more willing to allow international
law to apply to their domestic legal system because they would make sure that international law
would not violate their basic rules. Some international treaties oblige States Parties to adapt their
national legislation or take other measures to meet the international obligations they have
undertaken.
In the area of Human Rights we can mention the provision of Article 2/2 of the ICCPR, according
to which "Any State Party to the Convention undertakes to take the necessary steps, in accordance
with its constitutional processes and with the provisions of the Convention, to adopt such laws or
other measures as may be necessary to give effect to the rights recognized in the Convention"; Or
Article 2 (a) CEDAW: "States shall take appropriate measures to include the principle of equality
17
Rethinking the Supremaci of International Law, Andre Nollkaemper, Amsterdam Center for International Law,
Working Papers 2009.
9

between men and women in their national constitutions or in their legislation and to provide by
law or other appropriate means, practical realization Of this principle "18
Other examples of obligations, under international treaties, include the obligation to establish
national preventive, independent mechanisms for the prevention of torture and ill-treatment at
national level, as well as Article 49 of the four Geneva Conventions of 1949, according to which
"The high contracting parties undertake to enact any law necessary to ensure effective criminal
sanctions for persons committing or ordering the commission of any of those considered serious
breaches of the Convention."
Konkluzione
The intensification of global governance in recent decades has increased the potential for conflicts
between international law and the constitutional law of the states, provoking also the issue of
hierarchy between them. This has been accompanied by efforts to seek other ways of resolving
this conflict.
Because in the practice of relations between them, despite the acceptance of the supremacy of
international law, states may prefer to be guided by their internal law projections, it remains an
obligation for international jurists to find ways to be more effective on ensuring the realization of
a closer interaction between the domestic law of the states and international law, in relation to
those that exist.
The relationship between the international law and the domestic law of a state varies depending
on different perspectives.
No country can be justified for its failure to enforce international obligations based on the
supremacy of its domestic law.
The current debate on the supremacy of international law demonstrates the success, effectiveness
and authority that has ensured international law. This debate, contrary to what some authors
suggest, does not signal the weakness of international law, but rather its power and engagement in
all aspects of international life.
The constitutions of many states have been reformed not only to adapt with the general
international law but also because of the demands placed on states by the most important
international organizations, in order to be accepted as members of these organizations.
Literature
18
Relationship between national and international law, Amrei Muller, Public International Law, University of Oslo,
14 October 2013, page 9.
10

1. Constitution of the Republic of Albania, integrated version with draft constitutional

amendments as approved by the Special Parliamentary Committee on Justice System
Reform, 14.06. 2016.
2. Relationship between national and international law, Amrei Muller, Public International
Law, University of Oslo, 14 October 2013.
3. The supremacy of International Law? – Part One, Published on June 2, 2016, Daniel
Bethlehem KCMG QC.
4. The supremacy of International Law? – Part Two, Published on June 3, 2016, Daniel
Bethlehem KCMG QC.
5. Rethinking the Supremaci of International Law, Andre Nollkaemper, Amsterdam Center for
International Law, Working Papers 2009.
6. How to Distinguish International Law from Municipal
Law(http://www.wikihow.com/Distinguish-International-Law-from-Municipal-Law)
7. General Principles of International Law, Gerald Fitzmaurice, lectures, Hague, 1957.
8. International Law and Human Rights.. Hersch Lauterpacht, Archon books, 1968.
9. Heisenberg, The Heisenberg Uncertainty Principle and the Challenge of Resisting - or
Engaging - Transnational Constitutional Law, Alabama Law Review, Vol. 66, 2014, 12
March 2015.
10. Anne Peters, Supremacy Lost: International Law Meets Domestic Constitutional Law, Vol
3, 3/2009.
11. E drejta ndërkombëtare publike, Arben Puto, Tirana 2009.
11

International Law Commission
UFRGSMUN | UFRGS Model United Nations Journal

ISSN: 2318-3195 | v1, 2013| p.182-201
Formation and Evidence of Customary International

Law
André da Rocha Ferreira

Cristieli Carvalho
Fernanda Graeff Machry
Pedro Barreto Vianna Rigon
1. Historical background
Since the establishment of the international community, two were the mainly
sources of law: treaties between States and custom. Scholars often sustain that
international law emerged in Europe, specifically after the Peace of Westphalia in
1648. It is possible to identify a development of relations between different political
actors already in the ancient times and, at that time, we can note the presence of
the custom in this relations. In fact:
“[t]o assume that international law has developed only during the last four or
five centuries and only in Europe, or that Christian civilization has enjoyed a
monopoly in regard to prescription of rules is to govern inter-state conduct. As
Majid Khadduri points out: “in each civilization the population tended to develop
within itself a community of political entities—a family of nations—whose
interrelationships were regulated by a single authority and a single system of law.
Several families of nations existed and coexisted in areas such as the ancient Near
East, Greece and Rome, China, Islam and Western Christendom, where at least
one distinct civilization had developed in each of them. Within each civilization
a body of principles and rules developed for regulating the conduct of states with
one another in peace and war” (Anad in Malanczuk 1997, 9).
At that age, both sources had the same hierarchy as a rule, being equally
treated in the law practice. Furthermore, it is important to state that both had one
particular characteristic: they did not bind States to rules that they did not commit
to obey; in other words, there was no interference of an outside legislator in the
rules of States. At first sight, it could be reasonable to ponder that customary
law was not a source formally ratified by the State, so bind it would be a kind
of interference (Cassese 2001). Nevertheless, States had a pactum tacitum (tacit
consent) in the matter of custom, an idea that were brought by medieval jurists
from Roman tradition. Such consent is not attached to a contractual view, but to
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the tradition, something very similar with the present view of custom. An Italian
medieval jurist, Bartolus de Sassoferrato (1313 – 1357), assumed that:
“A statute obtains [its] consent expressly, and therefore does not require other
conjectures [about its existence]. But custom requires tacit [consent]. Therefore
a long passage of time is necessary, so that [the custom] may become apparent
through the consent of the people and their perseverance [in the act]” (Kadens
and Young 2013, 889-890).
As it is possible to perceive in our time, medieval jurists did not agree on
which acts were considered as customary. There were many debates concerning
for how long or how many times an act should be practiced for it to be considered
a custom. There was even some discussion on whether a judge should declare an
act as a custom before it was considered law, what reminds us of the necessity of
opinio juris that many scholars nowadays claim. Despite the relevant density of the
debates, custom in the middle ages was, as a matter of fact, “not a defined thing
but rather a more or less indeterminate set of possible conforming behaviors”
(Kadens and Young 2013, 895). In other words, the idea of custom was used and
manipulated to achieve a desired decision.
More than three centuries later, Spanish scholar Francisco Suárez wrote in
his book Treatise on Laws and God the Lawgiver, that the concept of jus gentium
(the “law of nations”) is attached to customs that were agreed upon and adhered
by nations worldwide. In fact, the position defended by Suárez was more related
to the ones of medieval times, often developing similar arguments (Kadens and
Young 2013) The jurist Savigny was also an enthusiast of the customary law rules’
binding status, since they were a consensus in the State’s practice (D’Amato 1970,
70). Furthermore, it is necessary to highlight the importance of customary law in
international humanitarian law, mainly with the adoption in 1899 at the Hague
Peace Conference, of the Martens Clause, which stated that:
“[I]n cases not included in the Regulations adopted by them (the Hague Peace
Convention’s rules of war) those inhabitants and the belligerents remain under
protection and the rule (sous la sauvegarde et sous l’empire) of the principles of the
law of nations as they result from the usages established among civilized peoples,
from the laws of humanity, and the dictates of the public conscience” (Cassese
2005, 160).
In modern times, mainly after World War II, the most accepted definition of
custom can be found in the Statute of the International Court of Justice (ICJ), in
its Article 38(1)(b).In its jurisprudence, the Court settled, basically, two necessary
components for the constitution of custom; the State practice and the opinio juris;
a subjective element that is related to the consent of the State in the legal status of
the conduct in question (International Law Association 2000).
The jurisprudence of the ICJ and also of its predecessor, the Permanent Court
of International Justice (PCIJ), has helped to clarify many issues concerning the
183

formation of customary international law, in cases such as the Lotus (1927), the
Asylum (1950), the North Sea Continental Shelf (1969) and the Nicaragua (1986)
cases. Nonetheless, it important to remark that, in the last decade, the Court has
not made much progress in several topics concerning custom, keeping a very
cautious behavior in ascertaining the existence of customary norms. For instance,
the Court avoided pronunciation about issues as the customary character of
universal criminal jurisdiction, the legal status of United Nations General Assembly
Resolutions and others topics that concern scholars and the legal international
community. It is possible to perceive that, despite the long history of custom, it
still gives rise to debate.
2. Statement of the issue

2.1. Sources of international law
In every legal system, there is a body of rules and principles that establishes
the rights and obligations of its subjects, which can be called “primary rules”.
Alongside them, each system contains what may be called “secondary rules”, which
are the rules “applied to determine what are the primary rules, how they come into
existence and how they can be changed” (Thirlway 2010, 95). In municipal legal
systems, these are, for example, the rules establishing the process that must be
followed for legislation to pass, and the resulting legislation would join the body
of primary rules of the system.
Similarly, international law also contains secondary rules, which are referred
to as sources of international law. They are, however, less clearly defined than
municipal secondary rules, since, at the international level, there is neither a
legislative body comparable to a national Parliament nor a system of binding
precedents (Thirlway 2010, 96).
A distinction may be drawn between the material and the formal sources of
international law. The former “provide evidence of the existence of rules which,
when proved, have the status of legally binding rules of general application”
(Brownlie 2008, 3). Simply put, they are the place in which a rules’ terms are laid
down, encompassing the actual content of a rule (Shaw 2003, 67).The formal
sources of international law, on the other hand, are the binding legal procedures
for the creation of international rules, conferring authority upon them (Thirlway
2010, 97).
2.1.1. Article 38 of the Statute of the International Court of Justice

Usually, the sources of international law are accepted as set out in Article 38
(1) of the Statute of the International Court of Justice [hereinafter ICJ Statute]
(Thirlway 2008, 98), which reproduces almost identically the text of Article 38 of
the Statute of the Permanent Court of International Justice. The provision reads
as follows:
184

“[a]rticle 38.1. 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.”
Although the expression “sources” is not present in the wording of Article 38
(1), it is clear that it was the intent of its drafters to indicate that, by applying what
is listed, the ICJ would be applying international law, warranting the conclusion
that items “a” to “d” constitute its recognized sources. This is, however, by no means
an undisputed matter, since there has been criticism of Article 38 as a definition
of the sources of international law. According to Cançado Trindade, Article 38 is
not and never had the intention to be a mandatory and exhaustive formulation of
the sources of international law, but only a guide for the Court’s judicial operation
(Trindade 2010, 114-115). Nonetheless, the practice of States has not endorsed
any new approach (Thirlway 2010, 99).
According to the text of Article 38 (1), the three main sources of international
law are treaties, custom and general principles of law. The order in which they are
presented is not to be perceived as hierarchical, although treaties and custom are
usually considered to be in a more prominent position than general principles of
law, since the latter were included in the list in order to provide a “fall-back source
of law” for cases in which no conventional or customary norm could be found.
There is not, however, any indication of a hierarchy between treaties and custom
(Thirlway 2010, 113-114).
In addition to these three formal—because they refer to an authoritative
process—sources, the ICJ may apply judicial decisions and doctrinal teachings as
subsidiary means. These are material sources, since they do not generate rules, but
rather provide evidence of their existence. The reason for them to be applied in a
subsidiary manner is that, as taught by Thirlway:
“(...) if a rule of international law is stated in a judicial decision, or in a textbook,
it will be stated as a rule deriving either from treaty, custom or the general
principles of law. The judge, or the author of the textbook, will not assert that the
rule stated is law because he has stated it; he will state it because he considers that
it derives from one of the three principal sources indicated in paragraph (a) to (c)
of Article 38” (Thirlway 2010, 110).
The focus of the ILC in the present topic will be on the source contained in
Article 38(1)(b): international custom, to which we must now turn our attention.
185

2.2. Definition and nature of customary international law

Article 38(1)(b), as quoted above, provides the most authoritative definition of
international custom (Cassese 2005, 156), even if not an undisputed one (Kunz
1953, 664), describing it as “evidence of a general practice accepted as law”. This
formulation reflects the widely accepted two-element theory that states that
custom is composed of two elements: State practice and opinio juris, both of which
will be further explored in the next section of this study guide
International custom, described by Hans Kelsen as “unconscious and
unintentional law-making”, does not arise from a deliberate legislative process, but
rather as a collateral effect of the conduct of States in their international relations
(Cassese 2005, 156). Another distinguishing feature of custom is that it binds all
the members of the international community, or of a regional group, in the case of
a regional custom—differently from treaties, which are binding only upon those
States that gave their express consent through signature and ratification.
As to its nature, custom may be regarded as a form of tacit agreement, by which
States, in behaving in certain ways towards each other, tacitly agree to guide their
future conduct by it and be legally bound by it (Thirlway 2010, 102). This view,
based on the voluntarist or consensual theory of the nature of international law,
according to which States must consent in order to be legally bound, presents
certain theoretical difficulties. Among them, is the reason why new States are
bound by existing customary international law, to which they have not consented
to (Harris 2010, 33). However this approach is rejected by the overwhelming
majority of writers (Kunz 1953, 664), it is still the one to which the ICJ adheres
(Harris 2010, 33).
The typical approach of the natural law doctrine is to consider custom not as a
procedure for the creation of norms, but only the evidence of a pre-existing legal
rule. The same view was taken in Savigny’s historical jurisprudence—law is found,
not made—and in Duguit’s sociological—law as the product of social solidarity—
and Scelle’s biological jurisprudence—law as a translation of a biological social
necessity. The same ideas can be found in the writings of international law’s
prominent scholars Hersch Lauterpacht and Roberto Ago (Kunz 1953, 664).
The positivist approach is that customary law must be seen, like all law, as man-
made, positive law, which regulates its own creation. It is an independent procedure
for international law creation, which can lead to norms of general—binding on all
States—or particular international law. Treaties are a different procedure, that can
only produce norms of particular international law, i.e. norms binding only the
State parties to the treaty (Kunz 1953, 665).
2.3. Elements of customary international law

2.3.1. The two-element theory
However custom can be described as a legal obligation deriving from a settled
186

conduct which creates a legitimate expectation, it has long been acknowledged, in

international law, that the mere existence of a consistent practice does not suffice
to create an international rule. For that purpose, it is required that said practice be
accompanied by a psychological or subjective element, consistent in the belief that
adherence to it is required by a rule of law (Thirlway 2010, 101-102).
This combination is traditionally referred to as the “two-element theory”, by
which for a customary rule to arise, two elements must be present: on the one
hand, there must be a significant State practice, and, on the other hand, the practice
must follow from opinio juris, i.e. the belief that such practice reflects international
law (Cassese 2005, 156).
2.3.2. The objective element: State practice

Let us turn, firstly, to the objective or material element of customary
international law: State practice, also referred to as “constant and uniform usage”
in the Asylum case (Colombian-Peruvian Asylum 1950, 14). In analyzing State
practice, the following issues must be taken into consideration: whose practice is
relevant, which forms may practice take, how uniform must it be, for how long
must it observed, and what is the role of specially affected States.
2.3.2.1. Whose practice counts?

It is widely accepted that the reiterated conduct of States fulfills the objective
element for the formation of customary norms. However, it is not clear whose
conduct, among State organs, is relevant. The notion of “State” comprises the
executive, the legislature and the judiciary, as well as private persons and entities
acting on behalf of the State (Mendelson 1998, 198).
Authors from the early 20th century took the position that only the conduct of
those entitled to express the State’s consent to be bound, assuming international
obligations on its behalf (normally, the Heads of State and Government and the
Minister of Foreign Affairs), should be considered as relevant to the formation
of customary international law. This view derives from the notion of custom as a
form of unwritten treaty law or tacit agreement (Mendelson 1998, 198).
Nonetheless, acts by a State’s legislature and public administration may also
affect its international relations and the rights of foreigners—being, therefore,
relevant to international law. Additionally, decisions by domestic courts, as well
as the ones by international tribunals, may be evidence of State practice. It can
be said that judicial decisions have a dual function in the formation of customary
rules: on the one hand, they may be an evidence of State practice within the
meaning of Article 38 (1) (b) of the ICJ Statute, and, on the other hand, they are
“subsidiary means for the determination of rules of law”, as laid out in Article 38
(1) (d) (Mendelson 1998, 200).
Moreover, it is important to highlight that it is not only the conduct of States
187

that affects the formation of customary rules. The practice of international

organizations may also contribute to it, since, in many situations, they act in their
own name and may possess international personality (Shaw 2003, 241). It may
be argued, however, that the practice of, for instance, the United Nations General
Assembly represents the practice or the belief (as will be seen in section 2.3.2 of
this guide) of the member States, rather than that of the organization itself. In
a broader sense, contributions to the formation of customary international law
may also be made by other entities, such as non-governmental organizations,
multinational corporations and even individuals, however in an indirect manner
(Mendelson 1998, 203).
Regarding this matter, the International Law Association, in its work on the
formation of customary international law, proposed the following principles as
applicable to it (International Law Association 2000):
“7. Acts of individuals, corporations etc. do not count as State practice, unless
carried out on behalf of the State or adopted (“ratified”) by it.
8. The activities of territorial governmental entities within a State which do not
enjoy separate international legal personality do not as such normally constitute
State practice, unless carried out on behalf of the State or adopted (“ratified”) by it.
9. The practice of the executive, legislative and judicial organs of the State is to be
considered, according to the circumstances, as State practice.
10. Although international courts and tribunals ultimately derive their authority
from States, it is not appropriate to regard their decisions as a form of State
practice.”
11. The practice of intergovernmental organizations in their own right is a form
of “State practice.”.
2.3.2.2. Forms of practice

Along with the question of whose practice counts, there is the issue of which
forms may practice take, a matter closely related with the identification of norms
of customary international law. Custom may be evidenced by numerous material
sources, such as, among others, diplomatic correspondence, policy statements,
press releases, official legal advisers’ opinions, military manuals, state legislation,
judicial decisions by national and international courts, resolutions of the UN
General Assembly (Brownlie 2008, 6-7).
Firstly, there is the question of whether statements count as State practice. On
the one hand, it may be argued that verbal acts, however they can articulate a
norm, cannot configure the objective element of custom (D’Amato 1971, 88). On
the other hand, statements may be considered a form of practice, since important
acts of a State, such as the recognition of another State, are not necessarily physical
acts(Kammerhofer 2004, 526). One may also consider that the difference between
physical and verbal acts is not substantial, although statements usually carry less
weight as evidence of State practice (Mendelson 1998, 205).
According to Mendelson, an act does not count as practice if it is not
188

communicated to at least one other State (Mendelson 1998, 204). The same
conclusion was reached by the International Law Association’s Committee on
Formation of Customary Law and is found in Principle 5 of the Report: “5. Acts do
not count as practice if they are not public.”(International Law Association 2000,
15). Therefore, acts such as secret military instructions and internal memoranda
would not count as State practice.
In some cases, omissions can also count as State practice. For example, by
abstaining from the prosecution of foreign diplomats suspected or accused of
crimes, States contributed significantly to the creation of the rule of diplomatic
immunity (Mendelson 1998). However, there must be caution when considering
omissions as evidence of State practice, as the jurisprudence demonstrates. In
the Lotus case, the Permanent Court of International Justice rejected France’s
argument in favor of a rule restricting jurisdiction over negligent acts committed
on board of a ship to the flag State, which it justified by citing the almost complete
absence of prosecutions by States others than the flag State. The PCIJ considered
that such omission was not a clear evidence of custom, since the abstention
from prosecution could be motivated by various reasons—not necessarily by
the existence of a customary norm(The Case of the S.S. “Lotus” 1927). The same
approach was taken by the ICJ in the Advisory Opinion on Legality of the Threat
or Use of Nuclear Weapons, when it dismissed the argument that there was a
customary rule prohibiting the use of such weapons because States had refrained
from using them since 1945 (Legality of the Use or Threat of Nuclear Weapons
1996).
2.3.2.3. Duration and uniformity of practice

However the passage of time may evidence the generality and consistency of a
practice, international law does not require a minimum duration of it (Brownlie
2008, 7). Practice must be continued and reiterated, but there is no rule establishing
for how long such a practice must have been repeated (Kunz 1953, 666). The ICJ,
in the judgment of the North Sea Continental Shelf cases, stated that the passage
of only a short period of time was not an obstacle to the formation of a customary
rule, as long as, during that time, State practice was extensive and virtually uniform
(North Sea Continental Shelf 1969, at 74). In some areas of international law, such
as airspace and outer space law, rules have emerged quite quickly, in what was
called “instant” customary international law (Cheng 1997, 136).
As to the uniformity of the practice, the ICJ has pronounced, in the Asylum
case that a practice does not need to be completely uniform to be the basis of
international custom, as long as it is consistent (Colombian-Peruvian Asylum
1950, at 276-277). This was reaffirmed in the North Sea Continental Shelf cases
(North Sea Continental Shelf 1969, at 73). In the Nicaragua case, the Court noted
that a practice does not always need to be followed for it to indicate a customary
rule, sufficing that any departure from it is considered a breach of international
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law (Military and Paramilitary Activities in and against Nicaragua 1986, at 186).
In addition to its affirmation that practice does not have to be completely
uniform, the ICJ, in the North Sea Continental Shelf decision, highlighted the
importance of the practice of “States whose interests are specially affected” (North
Sea Continental Shelf 1969, at 74). It is sometimes argued—as it was, for instance,
by Germany in the Fisheries Jurisdiction case—that a new custom cannot arise
without the acceptance of the specially affected States. However, there is no
evidence in support of such an affirmation (Danilenko 1993, 95).
2.3.2. The subjective element: opinio juris sive necessitatis

Having dealt with the main ideas on the objective element of custom, let us now
turn to its subjective or psychological aspect, known by the Latin expression opinio
juris sive necessitatis, which literally translates as “opinion of law or necessity”, or
simply opinio juris. It is reflected in the text of Article 38 (1) (b), as it provides
that, for custom to exist, a general practice must be accepted as law. It continues,
however, to be the most disputed and least comprehended facet of customary
international law (Kammerhofer 2004, 532).
2.3.2.1. Meaning and function of opinio juris sive necessitatis

Mendelson defines opinio juris sive necessitatis as “a belief in the legally
permissible or obligatory nature of the conduct in question, or of its
necessity”(Mendelson 1998, 269). The International Court of Justice corroborated
this idea in its judgment in the North Sea Continental Shelf cases, in what became
the judicial locus classicus on the matter (Thirlway 2010, 102), affirming that:
“Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The
need for such a belief, i.e., the existence of a subjective element, is implicit in the
very notion of the opinio juris sive necessitatis.” (International Court of Justice
1969, at 77).
Therefore, for a State practice to be significant, it must be accompanied by such
conviction. In that sense, opinio juris is necessary in order to distinguish a rule of
customary international law from a rule of international comity, which is based
upon a consistent practice in inter-State relations, but without the “feeling of legal
obligation”(Harris 2010, 30). An example of a practice amounting to international
comity, but not custom, is the saluting at sea by a ship of another ship flying a
different flag (Harris 2010, 30). The ICJ has pointed this out in the North Sea
Continental Shelf judgment, establishing opinio juris as the main distinguishing
feature between custom and comity or courtesy:
“The frequency, or even habitual character of the acts is not in itself enough. There
are many international acts, e.g., in the field of ceremonial and protocol, which
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are performed almost invariably, but which are motivated only by considerations
of courtesy, convenience or tradition, and not by any sense of legal duty.” (North
Sea Continental Shelf 1969, at 77).
Despite its long-standing recognition in international law as an element of
custom, opinio juris presents a significant paradox: how can a practice develop
into a customary norm if States must believe the rule already exists before their
practice can be significant for its creation? Can an initially erroneous belief in
the existence of a rule produce law when shared among States? Some approaches
have been taken in order to solve this problem: to deny the two-element theory;
to assume that opinio juris is the only essential element, State practice being
merely a proof of it; to consider custom as essentially practice, opinio juris being
relevant only to differentiate it from mere comity or courtesy (Thirlway 2010, 102-
103).Nonetheless, it is still not possible to find a widely agreed solution to the
paradox.
2.3.2.2. Evidence of opinio juris sive necessitatis

Given the abstract, “state of mind” nature of opinio juris sive necessitatis, it is
difficult to attribute it to a State (Thirlway 2010, 103), thus proof is the essential
problem of the subjective element (Brownlie 2008, 8). Also, opinio juris can often
be demonstrated by the same acts, statements or omissions used to prove State
practice, blurring the distinction between the two elements.
In the practice of the ICJ, two methods of approach can be identified. The first,
more flexible method, which was followed by the Court in many cases, is to assume
the existence of opinio juris from the evidence of State practice. The other, more
rigorous approach, adopted by the Court in a minority of cases, requires more
positive evidence of the belief that a given practice is legally obligatory (Brownlie
2008, 8-9).
The stricter method was applied in three important cases: by the PCIJ in the
Lotus case and by the ICJ in the North Sea Continental Shelf and Nicaragua1 cases
(Brownlie 2008, 9-10). In these cases, a higher standard of proof was required,
since the Court did not accept that a continuous practice was prima facie evidence
of the belief in the existence of a legal obligation (Brownlie 2008, 9-10).
In a recent decision, the Special Tribunal for Lebanon (STL) provided an
interesting example of the identification of customary norms, when it recognized
a customary definition of terrorism in time of peace. The STL considered judicial
decisions as evidence of opinio juris, under the justification that they reflected a
legal opinion as to the essential elements of the crime of terrorism (Ayyash et al.
2011, at 100).
1 Alvarez-Jiménez states that the Court adopted in the Nicaragua case what he calls “flexible deductive approach”
—as opposed to the “strict inductive approach” observed in the North Sea Continental Shelf cases—, by which it
loosens the requirements for the verification of opinio juris. In Nicaragua, it did so by inferring opinio juris from
an UNGA Resolution, to which practice followed (Alvarez-Jiménez 2011).
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2.4. Applicability of customary international law

As aforementioned, customary international law, as opposed to treaties, which
are applicable only to State parties, applies to all States. Nonetheless, there are a
few situations in which customary norms are binding on only a few States or, on
the other hand, may not bind a specific State. These two possible exceptions to the
universal applicability of customary international law are, respectively, local or
special custom and the theory of persistent objection.
2.4.1. Local or special custom

A local or special customary international rule binds only a group of States,
regional or not. A well-known example of local customary is the practice of
diplomatic asylum in Latin American countries, that was the subject of the Asylum
and Haya de la Torre cases before the ICJ(Thirlway 2010). In the Asylum case,
the Court, however not recognizing the applicability of the local customary rule
to Peru, acknowledged the existence of this kind of rule (Colombian-Peruvian
Asylum 1950).
There is not a minimum number of States required for the formation of a
local customary norm. In the Right of Passage over Indian Territory case, in
which Portugal claimed that a custom existed between itself and India, the ICJ
recognized the possibility of the continued practice between two States forming
the basis of mutual rights and obligations between them (Right of Passage over
Indian Territory 1960, at 37).
From the ruling of the ICJ in the Asylum case2, it would seem that a local
customary rule must be based on the same two elements as all customary
norms: State practice and opinio juris. Nevertheless, it must meet two additional
requirements: the tacit acceptance of all parties concerned and the allocation of
the burden of proof on the State claiming the existence of the rule (Cassese 2005,
164).
2.4.2. The persistent objector theory

The persistent objector theory contemplates the possibility of a State contracting
out of a customary rule in the process of its formation. There must be clear evidence
of objection, since there is a presumption of acceptance that has to be rebutted.
The principle was recognized by the ICJ in the Anglo-Norwegian Fisheries and
Asylum cases (Brownlie 2008, 11).
However, there is considerable criticism to the theory, since there is not much
2 “The Court cannot therefore find that the Colombian Government has proved the existence of such a custom.
But even if it could be supposed that such a custom existed between certain Latin-American States only, it could
not be invoked against Peru which, far from having by its attitude adhered to it, has, on the contrary,repudiated
it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a
rule concerning the qualification of the offence in matters of diplomatic asylum.” (Colombian-Peruvian Asylum
Case 1950, 277-278).
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State practice to support it (Thirlway 2010, 108, Cassese 2005, 163). Neither
is the international case law very supportive of the principle, since the ICJ’s
pronouncements in Anglo-Norwegian Fisheries and Asylum were obiter dicta3.
Additionally, it may be argued that it would be very difficult for an individual State
to opt out of a customary rule, since it would face the pressure of the vast majority
of the members of the international community (Cassese 2005, 163).
2.5. Relationship between customary international law and other law-making

processes
2.5.1. Customary international law and treaties
Treaties, along with custom, are one of the main sources of international law,
according to Article 38 (1) (a) of the ICJ Statute. They consist of “international
agreements concluded between States in written form and governed by
international law” (Vienna Convention on the Law of Treaties, Article 2(1)(1)).
The main features that distinguish treaty law from customary law are related to
the fact that the former is binding only upon State parties and it is presented in
written form.
Despite these differences and the fact that they are distinct processes of law-
making, treaties and custom sometimes are intertwined. That is mainly because
custom arises from continued practice of States and treaties are one of the most
typical and important acts of a State in relation to other States (Thirlway 2010,
111).
In the North Sea Continental Shelf cases, the ICJ identified three ways in which
treaties and custom may be related. Firstly, treaties can be declaratory of a pre-
existing rule of customary international law, in its entirety or partially—the first
hypothesis being rather unlikely. That is the case of many rules contained in treaties
such as the Vienna Convention on Diplomatic Relations, the Vienna Convention
on the Law of Treaties and the Montego Bay Convention on the Law of the Sea.
Secondly, treaties can crystallize developing customary rules, thus transforming
lex ferenda in lex lata4. That is usually the case of conventions which result from
the works of the International Law Commission, since its objective is precisely the
codification and progressive development of international law.
Finally, custom can arise from practice, after the adoption of a treaty, of State
that are not parties to that treaty. Such was the argument presented by Denmark
and the Netherlands in the North Sea Continental Shelf cases, which was rejected
with respect to the delimitation article, but accepted in relation with other articles
of the 1958 Geneva Convention on the Continental Shelf.
3 An obiter dictum is an observation that, however included in the Court’s decision, is not necessary to its reasoning,
i.e., it is a dispensable part of the judgment or opinion.
4 Lex ferenda means “law which ought to be made”, developing law; lex lata means “law which has been made,
positive law” (Thirlway 2010, 96). In the present context, a custom in a late stage of development (lex ferenda) is
made positive law (lex lata) through its crystallization in a treaty.
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Another important remark of the ICJ in this decision is that, for a treaty rule
to pass to the corpus of customary international law, it must be of a norm-creating
character. For that matter, one must observe if the rule at hand may be derogated
or if it may be subject of reservations.(North Sea Continental Shelf 1969, Thirlway
2010, 102-103).
2.5.2. Customary international law and soft law

Soft law is a term used to describe a range of non-legally binding instruments
used by States and international organizations in contemporary international
relations, as opposed to hard law, which is always binding. Therefore, treaties
in force are by definition hard law, and so are UN Security Council resolutions
adopted under Chapter VII of the UN Charter, since all UN member States have
agreed to accept and execute such decisions, in accordance with Article 25 of the
Charter. However, UN General Assembly resolutions and declarations, as non-
binding or “soft” agreements, fall into the definition of soft law (Boyle 2010, 124).
The non-legally binding character of resolutions of international organizations,
such as UN General Assembly resolutions, and of multilateral declarations by
States, for instance the Universal Declaration of Human Rights, does not prevent
its effect on customary international law. As with treaties, for a non-binding
resolution to form customary rules, its wording must be of a norm-creating
character(Boyle 2010, 134).
The context in which these instruments are negotiated is relevant when
analyzing the opinio juris of States—since their motives to vote for or against a
resolution are not necessarily related to the conviction in the existence of a rule
of law (Thirlway 2010, 118). Nonetheless, they can provide a record of the belief
of States in a certain rule, thus serving as evidence of opinio juris. The degree of
support should also be taken into consideration, since a resolution approved by
unanimous vote or consensus will weigh more than one agreed on by a two-thirds
majority of States. The opposition of the most affected States, for instance, may
prevent the law-making effect of a resolution (Boyle 2010, 135).
2.5.3. Customary international law and jus cogens

Peremptory norms of international law or norms of jus cogens have a superior
hierarchy in relation to other rules. This classification is reflected in the text of
Article 53 of the Vienna Convention on the Law of Treaties, according to which
a treaty is void if it conflicts with a peremptory norm of international law. In the
words of Article 53,
“(...) a peremptory norm of general international law is a norm accepted and
recognized by the international community of States as a whole as a norm
from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character”.
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Normally, a rule of jus cogens is a rule of customary law, as it is implied in

Article 53 (“general international law”), thus it must be based on consistent State
practice and opinio juris. For a rule to be of a superior hierarchy, there must be
a conviction that a developing rule is of that nature—a kind of “superior opinio
juris” (Thirlway 2010, 119)
The usefulness of this concept is, however, very much disputed. The jus
cogens character of certain norms has been argued before the ICJ in a handful
of cases, such as the recent Jurisdictional Immunities of the State case, in which
Italy contended that the prohibition of forced labor was norm of jus cogens and
that it derogated the State immunity rule—a thesis the Court did not uphold
(Jurisdictional Immunities of the State 2012). The ICJ has, indeed, recognized the
jus cogens nature of the rules such as the prohibition of the use of force (Military
and Paramilitary Activities in and against Nicaragua 1986) and the prohibition
of torture (Questions relating to the obligation to prosecute or extradite 2012).
Nonetheless, these pronouncements were obiter dicta.
2.6. Case law

2.6.1. PCIJ: Lotus case (France v. Turkey)
The S.S. Lotus case was judged in 1927 by the Permanent Court of International
Justice, which was the principal judicial organ of the League of Nations and whose
Statute was later reproduced in the ICJ Statute. The case, however the earliest
judicial pronouncement on the formation and verification of customary norms,
remains relevant until the present days.
The case was proposed by France against Turkey, due to the criminal
proceedings the latter had initiated in its national courts against a French national.
The proceedings concerned the collision between the S.S. Lotus, a ship flying the
French flag, and the Boz-Kourt, which flew the Turkish flag. According to France,
Turkey lacked jurisdiction to prosecute the French lieutenant. The Court, therefore,
had to pronounce on whether there was a rule of international law prohibiting
the exercise of jurisdiction by Turkey in the case concerned. After analyzing the
evidence brought by France, it concluded that it was not possible to verify the
existence of a customary norm affirming that the jurisdiction in collision cases
was of the flag State.
This case is often cited as supportive of the positivist view of international law,
due to its affirmation that all international rules are based on the consent of States
(Janis and Noyes 2006, 115). Moreover, the Court put the burden of proof on
France, requiring a high standard of evidence in order to prove the existence of
custom, as the following passage demonstrates:
“Even if the rarity of the judicial decisions to be found among the reported
cases were sufficient to prove in point of fact the circumstance alleged by the
Agent for the French Government, it would merely show that States had often,
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in practice, abstained from instituting criminal proceedings, and not that they
recognized themselves as being obliged to do so ; for only if such abstention
were based on their being conscious of having a duty to abstain would it be
possible to speak of an international custom. The alleged fact does not allow
one to infer that States have been conscious of having such a duty ; on the
other hand, as will presently be seen, there are other circumstances calculated
to show that the contrary is true.” (S. S. Lotus 1927, 28).
2.6.2. ICJ: Asylum case (Colombia v. Peru)

The Colombian-Peruvian Asylum case, or simply Asylum case, was brought
before the ICJ by Colombia against Peru. It concerned the situation of a Peruvian
general, who, after an unsuccessful overthrow, sought refuge in the Colombian
embassy in Lima. The main dispute in the case was whether Peru was bound or
not by an alleged local custom that granted diplomatic asylum, which would force
Peru to allow a safe passage of the general to Colombia.
In order to prove the existence of this customary rule, Colombia presented
many cases in which diplomatic asylum was respected. However, Colombia
could not prove this as a rule, since many of those cases were contradictory and,
furthermore, it was impossible to define whether it was a matter of politics or
law, thus being impossible to conclude that there was opinio juris. Moreover, the
Court stated that Peru could not be bound to this custom, even if Colombia had
successfully proven its existence, since Peru had never had attitudes adhering to it
and had, actually, on the contrary, objected to the rule (Briggs 1951, Colombian-
Peruvian Asylum 1950).
2.6.3. ICJ: North Sea Continental Shelf cases (Germany v. Denmark and
Germany v. The Netherlands)
The judgment in the North Sea Continental Shelf cases, delivered by the ICJ in
1969, is one of the most important decisions of the Court’s jurisprudence and one
of the few occasions in which it went deeply into the analysis of the formation and
identification of customary international law (Harris 2010, 27).
The case was proposed by the Federal Republic of Germany against, separately,
the Netherlands and Denmark, being reunited in one single case by the ICJ (North
Sea Continental Shelf, at 17). The main controversy of the case was whether the
rule of delimitation of the continental shelf contained in Article 6 of the 1958
Geneva Convention on the Continental Shelf—the equidistance principle—had
become a customary rule binding on Germany—who was not a party to said
convention.
The Court decided that, however a treaty rule can also be a rule of customary
law, this was not the case of Article 6. In its reasoning, it established in which
ways custom and treaties may interact: they can be declaratory of pre-existing
customary law, crystallize developing customary law, or give rise to a custom after
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its adoption. Also, for a rule of treaty to be also considered a customary rule, it must
have a norm-creating character, which means that it cannot admit derogations or
be subject to reservations (North Sea Continental Shelf 1969, at 71-72).
It was also in this case that the Court highlighted the importance of the
practice of the specially affected States, considering it a determining factor in the
incorporation of treaty norms into the corpus of customary international law. As
to the necessary duration of practice, it was affirmed that the passing of only a
short period of time was not an obstacle to the formation of a customary rule, as
long as during that time the practice is extensive and representative, including that
of the States whose interests are specially affected (North Sea Continental Shelf
1969, at 74).
2.6.4. ICJ: Nicaragua case (Nicaragua v. United States of America)

Another important judgment that delimits the notion of custom as law is
the one in the Military and Paramilitary Activities in and against Nicaragua case
(Bederman 2010), proposed by Nicaragua against the United States of America and
decided by the Court in 1986. The dispute concerns the actions of the United States
towards Nicaragua in the context of the Sandinista Revolution. Nicaragua claimed
that the United States had breached international law by using direct armed force
against it and by giving assistance to the “contras”, which were guerrillas fighting
to depose the Sandinista government (Harris 2010, 727).
The use of force is outlawed by Article 2(4) of the UN Charter. Nonetheless,
the United States had made a reservation to its acceptance to the ICJ’s jurisdiction,
excluding “disputes arising under a multilateral treaty” from it. Therefore, the
Court could decide whether the United States had violated Article 2(4), since the
UN Charter is a multilateral treaty. However, the Court ruled that the prohibition
of the use of force was also a rule of customary international law, thus it could
exercise jurisdiction in respect of the application of such rules (Harris 2010, 727,
Military and Paramilitary Activities in and against Nicaragua 1986, at 185).
In its reasoning, the Court affirmed that, for the establishment of a customary
rule, the conduct of States does not need to have been completely consistent. It is
sufficient that the practice of States is, in general, consistent with the rule, and that
situations of conduct inconsistent with it are treated as breaches of that rule, and
not as indicative of the existence of a new rule. Also, if a State acts in a manner
which is considered incompatible with a customary rule, but tries to justify its
conduct by resorting to exceptions and justifications contained within the rule,
this behavior confirms, rather than weakens, the rule (Military and Paramilitary
Activities in and against Nicaragua 1986, at 186).
3. Previous work by ILC

However the International Law Commission (ILC) has developed an extensive
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debate on sources of international law, this debate was mainly restrained to the
law of treaties. Trying to amplify the debate on the matter of custom as a source
of international law, and recognizing its importance, the ILC has, in 2011,
incorporated the subject “Formation and evidence of customary international
law” in its long-term programme of work (A/67/10). The main scope of the ILC
studies on this matter are focused on the formation and finding of evidences of
customary international law (A/CN.4/653)
Nonetheless, the Commission has debated the topic before. In its article 24, the
statute of the ILC provides that:
“The Commission shall consider ways and means for making the evidence of
customary international law more readily available, such as the collection and
publication of documents concerning State practice and of the decisions of
national and international courts on questions of international law, and shall
make a report to the General Assembly on this matter.”
In this regard, the ILC had debates already in its second session aiming at
“making the evidence of customary international law more readily available” (ILC
1950, 367). These evidences were related to the State practice and international
courts’ decisions (ILC 1950). Since then, and in other opportunities, the
International Law Commission has tried to seek and evaluate different kinds of
practices that could constitute a custom.
For instance, the ILC has adopted measures in order to standardize the idea of
State practice (A/CN.4/659) and these procedures were considered by the ILC as
fundamental to identify custom as a rule in international law. Therefore, the ILC
has tried to fulfill with definitions the subjective spaces of custom identification as
a rule of international law.
The International Law Commission recognizes that State practice is found “in
the conjunct of internal law, municipal court decisions, practice of the executive
branch, diplomatic practice and treaty practice”. (A/CN.4/659, 14.). Nonetheless,
the ILC has drawn a scenario in which the State practice must been seen with
some limits:
“[p]ractice does not offer examples of countermeasures taken by non-injured
States or international organizations against a responsible international
organization. On the other hand, in the context of the rarity of cases in which
countermeasures against an international organization could have been taken by
a non-injured State or international organization, the absence of practice relating
to countermeasures cannot lead to the conclusion that countermeasures by non-
injured States or international organizations would be inadmissible.”
In addition, the ILC has made statements related to the subjective element,
the opinio juris, supporting the idea that the subjective element is a “sense among
States of the existence or non-existence of an obligatory rule.” (A/CN.4/659, p. 17).
To identify this common sense between States, the Commission tries to enumerate
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a non-exhaustive list of conducts such as the State’s practice in treaties, decisions

of municipal courts and others (A/CN.4/659).
Moreover, the Commission recognizes the significance of judicial
pronouncements and scholars’ opinions to identify custom as part of international
law system. For example: “on balance, State practice and judicial decisions support
the view that necessity may constitute a circumstance precluding wrongfulness
under certain very limited conditions, and this view is embodied in article 25”
(ILC 2001, 114).
Finally, it is important to highlight that the International Law Commission
has tried to clarify its position on this process. Although the Commission plays
an important role in codification, it also has considerable jobs associated to
progressive development of international law. In fact, the Commission intends to
reduce these differences and in many works such difference does not appear. As
a result, the emergence of a customary rule in the international law system is not
only part of the progressive development of international law, but also a source for
future codifications (A/CN.4/659).
4. Questions to ponder
1. When considering the proposed topic, the ILC members are recommended
to bear in mind the following questions.
2. What are the elements of customary international law? Is the two-element
theory still relevant? Can there be custom without one of these elements?
3. What constitutes State practice? What kind of State behavior is relevant to
the formation of customary international law and how can one identify it?
4. What constitutes opinio juris? Where can one find evidence of it in the
practice of States and how is it different from the objective element of custom?
5. How do norms of local or special customary international law arise? What
distinguish them from norms of general customary international law?
6. What is the relevance of the persistent objector theory to the formation of
customary international law?
7. How does custom interact with other forms of international law-making
(treaties, soft law, jus cogens)?
8. What can we learn from the practice of international courts, such as the
International Court of Justice, in the identification of customary norms?
9. The answer for these and other question that may arise in the course of the
debates shall be found in norms of customary international law. It is the role of the
Commission to crystallize such norms, the existence of which shall be determined
by observing the existence of State practice and opinio juris. As a result, the ILC
member shall submit a set of draft articles, guiding principles or a report on its
conclusions to the UN General Assembly.
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Questions relating to the obligation to prosecute or extradite. (International Court of Justice , July
20, 2012).
Right of Passage over Indian Territory. (International Court of Justice, April 12, 1960).
Shaw, Malcolm. International Law. Cambridge: Cambridge University Press, 2003.
The Case of the S.S. “Lotus”. (Permanent Court of International Justice, September 7, 1927).
Thirlway, Hugh. “The Sources of International Law.” In International Law, by Malcolm D. Evans,
95-121. New York: Oxford University Press, 2010.
Trindade, Antônio Augusto Cançado. International Law for Humankind: Toward a New Jus
Gentium. Leiden/Boston: Martinus Nijhoff Publishers, 2010.
Vienna Convention on the Law of Treaties. 1969. http://untreaty.un.org/ilc/texts/instruments/
english/conventions/1_1_1969.pdf (accessed May 11, 2013).
Abstract
It is widely accepted that custom, alongside treaties and general principles of law, is one of
the main sources of public international law, as enumerated in Article 38 (1) of the Statute of
the International Court of Justice (ICJ). Nonetheless, international custom is often seen as a
problematic means of law-making, mainly due to the grey area involving its character, consistency
and acceptance. For that reason, the international community is concerned with establishing a
coherent theoretical basis for the formation and evidence of customary international law. Article
38 (1) (b) defines custom “as evidence of a general practice accepted as law”. This definition
leads to the widely accepted two-element theory, according to which international custom is
composed of two main elements: State practice and opinio juris sive necessitatis. The first can be
described as an objective element consisting of any act, articulation or other behavior of a State,
and the second, as the notion, by the State, that such practice is required by, or consistent with
prevailing international law. This last element, although often considered in a superficial manner,
as presumed from the existence of practice, is essential to distinguish international custom from
mere comity, as the ICJ has recognized in a number of cases. Setting aside the mists surrounding
international custom has also been the main task of the International Law Commission, in its
work of codification of international norms.
201

The Concept of Special Custom in International Law
Author(s): Anthony A. D'Amato
Source: The American Journal of International Law , Apr., 1969, Vol. 63, No. 2 (Apr.,
1969), pp. 211-223
Published by: Cambridge University Press
Stable URL: https://www.jstor.org/stable/2197411
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to The American Journal of International Law

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THE CONCEPT OF SPECIAL CUSTOM IN
INTERNATIONAL LAW
By Anthony A. D'Amato*
There are regrettably few cases in international law that go into the
question of the proof necessary to establish a customary rule binding upon
the defendant state. And from those few cases, notably those decided
by the World Court, most writers have drawn pessimistic conclusions as
to the proof needed for custom because of the Court's apparent insistence,
in Professor Falk's words, upon "some tangible evidence of consent on
the part of the state that is bound."' A showing of consent is a very
difficult proposition. Many legal disputes arise precisely because neither
side has previously consented to the same rule. As Lauterpacht argued,
to say that prior consent must be shown in order to reach a legal con-
clusion in any given international dispute is tantamount to rejecting the
possibility of the existence of the vast majority of the rules of international
law.2 But then, how can we explain the World Court's reasoning in the
Asylum, Right of Passage, and Fisheries Cases 3 in which the element of
consent on the part of the defendant states seemed to play such a vital
role in the Court's reasoning concerning the existence of binding rules
of law 4
The purpose of this essay is to argue that the widely accepted view of
the World Court's jurisprudence as emphasizing the requirement of a
* Northwestern University School of Law, Chicago.

1Falk, "On the Quasi-Legislative Competence of the General Assembly," 60 A.J.I.L.
782 (1966).
2Lauterpacht, The Development of International Law by the International Court
(1958).
S Asylum Case, [1950] I.C.J. Rep. 266; Right of Passage Case, [1960] ibid. 4;
Fisheries Case, [1951] ibid. 116.
4 The Lotus Case, P.C.I.J., Ser. A, No. 10, at 4 (1927), cited by Professor Falk,
note 1 above, at 784, to support his argument that the World Court relies even in
cases of general custom on a showing of consent, does not, upon closer inspection,
stand for that proposition. The Court in that case held that "the rules of law bind-
ing upon States therefore emanate from their own free will as expressed in conventions
or by usages generally accepted as expressing principles of law . . ." (at p. 18). Far
from being a statement that each particular state must consent to each particular rule
alleged to be binding upon it, this language indicates that the Court had in mind
aggregate consent. It accords with Professor Jaffe 's statement that "consent is given
to international law as a system rather than to each and every relationship contained
in it." Jaffe, Judicial Aspects of Foreign Relations 90 (1933). For evidence in the
Lotus Case the Court did not look only to situations in which Turkey had consented
to a rule of law, but rather considered four municipal law cases involving collisions
(which were, as it happened, divided evenly on the relevant rule), none of which in-
volved either Turkey or a Turkish vessel. This demonstrates that the Court was not
looking for individual consent by Turkey to the rule alleged by France, the plaintiff
state.
211

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212 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 63
showing of consent is a mistaken view, not because scholars have misread

the cases but rather because of a widespread failure to draw a basic dis-
tinction between special (or "local" or "particular") customary inter-
national law and general customary international law. The cases just
cited, which shall be examined shortly, dealt with special, not general,
custom. The stringent requirements of proof of consent in these cases
thus do not apply to the large body of general norms of international law
binding upon all states, but rather apply only in similar cases of "special"
custom.
I. THE Two TYPEs OF CUSTOM
The distinction between special and general custom is conceptually

simple. General customary law applies to all states, while special custom
concerns relations between a smaller set of states. As Professor McDougal
has put it, "some prescriptions are inclusive of the globe; other prescrip-
tions recognize self-direction by smaller units." 5 An analogous instance
might be conventional international law: since no treaty to date has been
signed by each and every state in the world, a given treaty is an explicit
manifestation of consent by a group of states smaller than the totality of
states. Professor Lissitzyn has vividly written that
the "particular" international law . . . created by treaty could be

visualized as consisting of a vast and ever changing number of circles
of different and often fluctuating sizes, each enclosing a special "legal
community" composed of the parties to a treaty.6
General customary international law contains rules, norms, and prin-

ciples that, even upon mere inspection, seem applicable to any state and
not to a particular state or an exclusive grouping of states. For example,
norms relating to the high seas, to airspace and outer space, to diplomatic
immunities, to the rules of warfare, and so forth, apply equally to all states
having occasion to be concerned with these areas. Similarly, the facts of
a given case may suggest exclusively the application of general custom-
such as cases concerning collision on the high seas between ships of dif-
ferent countries, cases involving general principles of international law,
cases turning on the construction of treaties under general customary
canons of construction, and in general cases where the plaintiff and de-
fendant states could theoretically be interchanged with any other states
without affecting the content of the rules of law cited by either side in
the dispute. By contrast, special customary international law deals with
non-generalizable topics such as title to or rights in specific portions of
5 McDougal, Studies in World Public Order 15 (1960). The term "general" is more
commonly used than the word "universal" and avoids the latter 's complications aris-
ing from a single recalcitrant state or a self-declared international-outlaw state. As
stated by Justice Chase in the classic case of Ware v. Hylton, "general" international
law is "universal" and thus binding upon "all nations." 3 Dall. 199, 227 (1796).
6Lissitzyn, International Law Today and Tomorrow 7 (1965). There may also be
sub-classes within the smaller groups; e.g., two states within a region may make a
treaty applying only to themselves that derogates from the regional rule.

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1969] SPECIAL CUSTOM IN INTERNATIONAL LAW 213
world real estate (e.g., cases of acquisitive prescription, boundary disputes,

and so-called international servitudes), or with rules expressly limited
to countries of a certain region (such as the law of asylum in Latin
America). The line separating general from special custom is similar
to that in English common law, where a particular custom "must apply
to a definitely limited though indeterminate class of persons" and to a
limited geographic area; if the usage is laid in too wide a geographic area,
for example, it is taken out of the realm of custom and must be pleaded
as an ordinary claim at law.7
The bifurcation of special and general custom is rooted in Roman law
and English common law. As the Roman Empire expanded, centrally
enacted legislation was extended in its applicability to outlying communi-
ties and to the peregrini (foreigners within the Empire). Such statutes
of necessity pre-empted local law and customs to the contrary. Yet Roman
law recognized the force of a principle known as desuetude: that the
centrally enacted legislation could actually be canceled by virtue of lack
of applieation and enforcement in a given community over a period of
time.8 The statute stayed on the books, of course, and its cancellation
applied only to the particular communities in which it was not enforced.
This particular desuetude of a statute thus amounted to a negative special
custom in favor of the relevant communities.9
In English common law, Blackstone summed up the historic distinction
between the two types of custom:
general customs, which are the universal rule of the whole kingdom,
and form the common law . [and] particular customs, which, for
the most part, affect only the inhabitants of particular districts.""
The former are determinable, according to Blackstone, by the application

of experience, study, and the following of precedents.1" In sharp con-
trast are the rules for proving special custom. The rules are strict,
Blackstone writes, because they are (or can be) in derogation of the
common law or general custom.12 Thus, special customs must be specially
pleaded, must be proved by a jury, must have been in use a long time,
must have been non-contentious, continuous, reasonable, certain, and in-
ternally consistent.13 The common law also required in many cases a
showing of opinio juris (that the custom was observed as a matter of
right) and that it was notorious (the defendant being expected to have
7 Salt, "The Local Ambit of a Custom," in Cambridge Legal Essays 279, 283 (1926
8 See Bucklamd, A Text-Book of Roman Law 52 (2nd ed., 1950); Jolowicz, Histori
Introduction to the Study of Roman Law 363-364 (2nd ed., 1961).
9 Desuetudo is the verbal opposite of consuetudo (custom). Cf. Kelsen, General
Theory of Law and the State 119 (1945).
10 Blackstone, Commentaries *67. 11 Ibid. at *69-70.
12 An example of such a special custom is that of gavellcind in Kent, that all sons
alike succeed to the father's estate. This is in derogation of the general customary
rule of primogeniture. Ibid. at *7475.
is Ibid. at *76-78. See Braybrooke, " Custom as a Source of English Law," 50
Mich. Law Rev. 71 (1951).

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known of it).14 It is certainly clear that the vague and flexible rules given
by Blackstone for the determination of general custom were quite unlike
the difficult burdens of proof that would have to be met to win a case
based on special custom.
II. Tim IMPORTANCE OF THE DISTINCTION
Many scholars, including Professor Falk cited at the beginning of this

essay, have expressed deep pessimism about the World Court's contribution
to the growth of international law due to the Court's alleged insistence
on proof of consent before a defendant state can be bound. A recent
strongly worded statement of this position may be found in Dr. Wilfred
Jenks' book, The Prospects of International Adjudication. Dr. Jenks
cites the World Court's statement in the Anglo-Norwegian Fisheries Case:
the ten-mile rule would appear to be inapplicable as against Norway

inasmuch as she has always opposed any attempt to apply it to the
Norwegian coast.15
Assuming that the Court is dealing at this point with general custom,
Dr. Jenks finds in the Court's language a rule of proof of custom that,
in his words,
may appear to verge upon the extreme positivist position that no

State is bound by custom in the absence of proof of its own recogni-
tion of the alleged custom in deference to an opinio juris sive necessi-
tatis. This position involves a frontal challenge to any possibility of
the development of international law by means of international ad-
judication."'
Seeing no reasonable alternative to his own reading of the language of the

Court in the Fisheries Case, Dr. Jenks proceeds to disparage the Court,
the case, and international law in general. He labels international law
"primitive," in an attempt to excuse the Fisheries result.'7 Second, he
suggests that decisions such as the Fisheries decision may simply have to
be changed by states in their international practice by a good deal of law-
breaking, if not violent, activity, since recourse to the Court is obviously
a barrier to progress.18 Third, he cites long extracts from the dissenting
opinions in the case, all of which take on a far harsher tone out of context
than they might to a reader who has first read the Court's majority opinion
in its entirety. Finally, Dr. Jenks pleads that the Court should exercise
in the future much more discretion in matters of finding custom.19 He
14 Salmond, Jurisprudence 264 (9th ed., 1937); Allen, Law in the Making 136 (3d
ed., 1939). To the extent that Blackstone had a concept of opinio juris, he thought
of it as part of the meaning of custom and not as an independent determinant of
custom. The concept of opinio juris, however, has taken on a life of its own in inter-
national law, stemming largely from the misapplication of Geny's use of the term in
his famous M6thode d'interpr6tation et sources en droit priv6 positif ?110 (1899).
15 [1951] I.C.J. Rep. 116, at 131.
l6 Jenks, The Prospects of International Adjudication 237 (1964).
17 Ibid. 18 Ibid. at 261.
19 Ibid. at 263.

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would have the Court avoid adducing evidence of custom which "in the
nature of the case it may frequently be impossible to furnish." 20
It would seem that all of these alternatives proposed by Dr. Jenks
would reduce, and not advance, his avowed purpose of promoting recourse
to international adjudication. Calling international law "primitive "
does not encourage states to seek authoritative determinations of the rule
of law from international courts, and in any event is a completely irrele-
vant observation even if true. Suggesting that states may have to resort
to force to make progress in the teeth of reactionary decisions such as
that in the Fisheries Case is similarly unhelpful. The citation of long
passages from dissenting opinions is a dangerous and misleading practice
for any scholar in any legal system, for the court obviously was aware of
these dissents when it reached its decision and usually deals with them
in the way the majority opinion is organized and written. In context,
dissents can throw light on the interpretation of the majority opinion,
but out of context they may appear to be disjointed polemics. In inter-
national law in particular, the lack of compulsory jurisdiction and cen-
tralized enforcement procedures make it very difficult for an international
tribunal to reverse itself or to depart from its own precedents in future
cases, for most of the court's authority depends upon the soundness and
consistency of its reaso-ning. Thus, dissenting opinions carry less weight
in international law (unlike the Holmes-Brandeis dissents as predictors
of changes in later American Constitutional law), and international
scholars should accordingly refrain from citing such dissents just because
they feel that the dissents are more persuasive than the majority opinions.
Finally, Dr. Jenks' plea for more discretion by the Court in finding custom
can hardly promote greater recourse to the Court by states in the future.
No state wants to submit to adjudication of its disputes when the result
is completely unpredictable, yet the greater the discretion used by the
Court in finding custom the greater becomes the unpredictability of its
decisions.
Clearly, a plea for greater discretion in the finding of customary rules
of law is a step backward from the idea of law as a science of prediction
giving nations advance notice of the legal propriety of their contemplated
actions. Dr. Jenks' conclusions therefore reinforce the importance of re-
reading and re-analyzing the crucial decision in the Fisheries Case and
other key cases dealing with customary international law. The next sec-
tion accordingly is an attempt to argue that these cases were not cases of
general customary law at all, and that therefore the Court's insistence
on a showing of consent that Dr. Jenks found so objectionable applies only
to the limited class of similar cases of "special" custom.
III. WORLD COURT CASES ON SPECIAL CUSTOM
Professor Briggs has emphasized the World Court's reasoning in the

Asylum Case as "admirably illustrat[ing] how international customary
20 Ibid. at 264.

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216 THE AMERICAN JOURNAL OF InTERNATIONAL LAW [Vol. 63
law in general is proved," 21 and Judge De Visscher said that the decision
"fixes [the Court's] jurisprudence on this subject." 22 However, the
Court in that case was not dealing with customary law in general, but
rather with special custom. One passage, quoted by many writers, con-
tains the essence of the Court's reasoning. The Court began by referring
to the reliance by the Colombian Government "on an alleged regional or
local custom peculiar to Latin-American States." The Court then held:
The Party which relies on a custom of this kind must prove that
this custom is established in such a manner that it has become binding
on the other Party. The Colombian Government must prove that
the rule invoked by it is in accordance with a constant and uniform
usage practised by the States in question, and that this usage is the
expression of a right appertaining to the State granting asylum and
a duty incumbent on the territorial State. This follows from Article
38 of the Statute of the Court, which refers to international custom
"as evidence of a general practice accepted as law."' 23
The Court then proceeded to find no evidence of a constant and uniform

usage in the matter of diplomatic asylum in Latin America, due to the
uncertainty, contradiction, fluctuation, discrepancy, and political expedi-
ency in the various cases and instances on the subject. Moreover, it held
that Peru had "repudiated" the Montevideo Conventions of 1933 and
1939 (which contained the rule Colombia was contending for) by its failure
to ratify those conventions.24
Since there was no proof of a "custom of this kind," the Court denied
Colombia's plea of "an alleged regional or local custom." It is of funda-
mental importance to note that the Court used the arguments in the
preceding paragraph solely with respect to this "local custom." A
reading of what came before this section in the Court's opinion shows
that the Court also considered matters of general custom, including
treaty interpretation, yet nowhere in discussing those matters did the
Court require a showing of the strict elements of special custom just
quoted. For example, the Court discussed the concept of "derogation
from territorial sovereignty" without referring to constant and uniform
practice or explicit rights and duties.25 Also, in dealing with treaty inter-
pretation, there was no reference to the strict elements of special custom.
Rather, these elements were restricted to the section of the opinion where
the Court explicitly dealt with "an alleged regional or local custom" or,
in other words, special custom.
Additional support for the preceding interpretation may be found in
the dissenting opinion of Judge Alvarez which highlights the Court's
particular concern with the matter of a special custom in Latin America,26
and also in the majority opinion in the later case of the Nationals in
Morocco. This case dealt with many separate contentions relating to
21 Briggs, " The Colombian-Peruvian Asylum Case and Proof of Customary Inter-
national Law," 45 A.J.I.L. 728, 730 (1951).
22 De Visseher, Theory and Reality in Public International Law 148 (1957).
23 [1950] I.C.J. Rep. 266, at 276-277. 24 Ibid. at 277.
25 Ibid. at 274-275. 26 Ibid. at 290-302.

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matters of general custom and treaty interpretation, but also with a

special question of specific American capitulatory rights in Morocco. It
was only with respect to this latter issue that the Court cited its earlier
statement in the Asylum Case on special custom.27 Moreover, it introduced
the citation by a qualification that the Court's language in the Asylum
Case on this point dealt with "the question of the establishment of a local
custom peculiar to Latin-American States." 28
The portion of the Nationals in Morocco opinion dealing with capitula-
tory rights, by citing the Asylutm Case on special custom, provides us
with a good example of special customary law. For there is clearly no
general rule of international law granting all states extraterritorial rights
in other states. If among any particular states extraterritorial rights
exist, they either stem from a treaty or from special customary practice
that amounts to consent on the part of the territorial state. Perhaps the
only general rule on the subject in present international law may take
the form of a presumption, or pressure, against the existence of capitula-
tory rights, an "old and dying institution" in the words of Professor
Verzijl.29 The manner in which the Court analyzed the rights of the
parties in the Nationals in Morocco Case lends support to this interpreta-
tion. There was no finding of a rule of general customary law in behalf
of the United States' claim to extraterritorial rights in Morocco. And the
citation of the Asylum Case, with its restrictive view of the necessary ele-
ments for proving the existence of a "regional or local custom," indicates
that with respect to certain kinds of subjects, such as capitulatory rights,
the plaintiff must prove in a very specific way that the defendant has
expressly or impliedly consented to the alleged "derogation from [its]
territorial sovereignty. " 30
Nor are the preceding interpretations invalidated by the Court's refer-
ence to Article 38 in the Asylum Case, quoted previously, and again in the
Nationals in Morocco Case when the Court quoted its own prior language.
To repeat the quotation, the Court held that the elements of special custom
follow from the reference in Article 38 of the Statute of the Court to
international custom "as evidence of a general practice accepted as law."
At first impression, the word "general" in this clause might appear to be
inconsistent with a finding of special custom. But historically the ap-
parent discrepancy is easily resolved. In 1936 Professor Basdevant
pointed out the need for a broad interpretation of Article 38 to include
special custom.31 Such an interpretation was necessary in order to fulfill
the reasonable expectations of states who often order and regularize
special relationships among themselves in the manner discussed previously.
The World Court must have agreed with Professor Basdevant's reasoning,
even before 1936, since it has refrained entirely from mentioning Article
27 [1952] I.C.J. Rep. 176, at 199-200. 28Ibid. at 199.

29 2 Verzijl, The Jurisprudence of the World Court 135 (1966).
30 [1950] I.C.J. Rep. 266, at 274-275.
31 Basdevant, "RI gles generales du droit de la paix," 58 Hague Academy, Recueil
des Cours 471, 486 (1936).

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38 in all of the numerous cases involving general custom, while mentioning

it explicitly in the portions of the Asylum and Nationals in Morocco Cases
dealing exclusively with special custom. In so doing, the Court has fixed
upon Article 38 the broad interpretation called for by Professor Basdevant.
Additionally, to make the matter crystal clear, the Court stated in the
Right of Passage Case:
[I] t is objected on behalf of India that no local custom could be

established between only two States. It is difficult to see why the
number of States between which a local custom may be established
on the basis of long practice must necessarily be larger than two.
The Court sees no reason why long continued practice between two
States accepted by them as regulating their relations should not form
the basis of mutual rights and obligations between the two States.32
Thus, to the extent that the Indian representative had contended, in

pleadings that were not always models of clarity, that "customary inter-
national law" could not apply in this case, the Court set the record straight
by showing, in the passage just quoted, that this was not a matter of
general customary law affecting a large number of states but rather a
matter of "local custom" exclusively regulating the particular rights and
obligations between Portugal and India.
Let us consider this case more closely. In it the Court held that Portu-
gal had a right of passage over Indian territory with respect to private
persons, civil officials, and goods in general, for the purpose of reaching
the Portuguese enclaves in India.33 The International Court's holding
was based on evidence of a local custom, continuous over a period ex-
ceeding a century and a quarter, "accepted as law" by the parties, and
constant and uniform. This case, according to Professor Wolfke, contains
"the most decisive recognition of particular customary rules," as opposed
to general customary rules.34 The Court went on to reject other alleged
rights also on the basis of special custom. It found no special custom
entitling Portugal to transport armed forces, police, or ammunition over
Indian soil.85 Thus the heart of the case concerned special custom as the
secondary rule of law-determination with respect to the bundle of alleged
rights of passage.
An entirely new section of the Court's opinion, preceded by an asterisk
break, deals with the parties' arguments on general custom. With respect
to the non-military right of passage, the Court held it superfluous to in-
quire whether general custom would yield the same result as special
custom. As to the alleged military right, the situation was more complex.
Portugal did not advance any convincing arguments either in the briefs
or in the oral presentation that a right of military access existed under
general customary international law. Much of the argumentation con-
sisted of analogies to municipal law granting access to private persons
over the land of another, but these did not involve military access.
32 [1960] I.C.J. Rep. 4, at 39. 33 Ibid. at 40.

34 Wolfke, Custom in Present International Law 90 (1964).
35 [1960] I.C.J. Rep. 4, at 43.

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Therefore, since the Court was able to find a distinction in the special
customary practice between Portugal and India as to non-military and
military rights, it refused to deal with the alleged general custom of
military access. The Court noted that the situation was "a concrete case
having special features," that the practice between the two states was
"clearly established," and that therefore "such a particular practice must
prevail over any general rules." SB
Thus the Court in the Right of Passage Case clearly distinguished be-
tween special custom and general custom in international law. How-
ever, it was not so clear as to which type of custom would have priority
in the event of a clash. For its assertion of the primacy of special custom
in this case was made possible largely by the absence of any convincing
demonstration by Portugal of a general custom of military access to en-
claves. Moreover, the Court would not have argued the superfluity of
examining Portugal's contention of general custom with respect to non-
military access if it could have disposed of this point simply by stating
that special custom in all cases pre-empts general custom. It is obviously
too early in international jurisprudence to state with any degree of con-
viction clear "conflict-of-law" principles with respect to special and
general custom. The Right of Passage Case seems to suggest that when
special custom is easily proved and general custom on the other hand is
vague and dependent upon analogies to situations which are not directly
in point, the Court will accept the former and not make any particular
effort to inquire into the latter. This is, of course, an elusive relationship,
to say the least, but even more elusive ones are possible. Thus, in the
Nationals in Morocco Case, there may have been hovering in the back-
ground a rule or principle of general customary law to the effect that
capitulatory rights are, or ought to be, construed narrowly if at all. This
general customary prescription may have made it harder for the United
States to prove the existence of a special custom establishing such a
capitulatory regime. Conversely, it is not difficult to imagine a rule of
general customary law that makes it easier to establish specific bilateral
relationships. Thus, although all the instances of claim-conflicts with
respect to alleged submarine rights on the continental shelf prior to the
1958 Geneva Convention involved specific parties making specific claims,
the coastal state consistently had the better claim due, arguably, to the
existence of a general rule of coastal state rights over the continental
shelf that was simultaneously emerging.
Another possible relationship between general and special custom might
be that when the former is too vague to cover a specific case area (even
though it could clearly apply to different cases), a decisive role might
be played by special custom when otherwise special custom would not be
invoked at all. This seems to have occurred in the complex case of the
Anglo-Norwegian Fisheries. The Court's opinion is not easy to analyze;
Douma lists over fifty articles devoted to the case, offering conflicting
36 Ibid. at 44.

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interpretations.37 The opinion is rambling and cryptic, possibly reflecting

the fact that the judges deliberated only fifty days despite the voluminous
pleadings and lengthy oral arguments.38 It has been severely criticized,39
particularly by losing counsel.40 Yet if the opinion is read in its entirety,
taking all the passages together and in context, a rational scheme becomes
evident.
The most important parameter in the Court's judgment is that Norway's
delimitation of its territorial waters must accord with general international
law:
The delimitation of sea areas has always an international aspect;

it cannot be dependent merely upon the will of the coastal State as
expressed in its municipal law. Although it is true that the act of
delimitation is necessarily a unilateral act, because only the coastal
State is competent to undertake it, the validity of the delimitation
with regard to other States depends upon international law.4'
The Court then gave three indications of the requirements of general

customary international law in this area: (a) "the drawing of base-lines
must not depart to any appreciable extent from the general direction of
the coast"; 42 (b) if the coastline is unusually rugged, the choice of base-
lines should be "liberally applied"; 43 and (c) as a general principle
''governing any delimitation of the territorial sea," the "base-lines must
be drawn in such a way as to respect the general direction of the coast
and . . . must be drawn in a reasonable manner." 44 That these are all
statements of general customary rules is evident from the fact that the
Court simply takes judicial notice of them, with no attempt to offer inde-
pendent proof. It is moreover important to note that, although the state-
ments may not offer precise guidelines in close cases, they certainly rule
out arbitrary and excessive claims and thus serve the function of any
general rule of law in indicating broad standards of permissible conduct.
The opinion also contains statements of general custom for which the
Court does offer or allude to evidence of state practice. An example is
the statement that for the purpose of measuring the breadth of the terri-
torial sea "it is the low-water mark . . . which has generally been adopted
in the practice of States." 45 There are also instances of atleged general
rules which the Court found not to be accurate statements of international
law. The most important example of this was Great Britain 's claim
that, to be considered as internal waters, a "bay" may not have, under
general customary law, a closing line of its indentation that exceeds ten
sea miles. But the Court held that
37 Douma, Bibliography of the International Court of Justice, including the Perma-

ment Court, 1918-1964, at 203-207 (1966).
38Hudson, "The Thirtieth Year of the World Court," 46 A.J.I.L. 1, 25-26 (1952).
39 See Jenks, op. cit. note 16 above, at 247-251.
40 See Waldock, "The Anglo-Norwegian Fisheries Case," 28 Brit. Yr. Bk. Imt. Law
114 (1951). 41 [1951] I.C.J. Rep. 116, at 132.
42 Ibid. at 133. 43 Ibid.
44 Ibid. at 140-141. 45 Ibid. at 128.

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although the ten-mile rule has been adopted by certain States both in
their national law and in their treaties and conventions, and although
certain arbitral decisions have applied it as between these States,
other States have adopted a different limit. Consequently, the ten-
mile rule has not acquired the authority of a general rule of inter-
national law.46
It is within the parameters of the preceding formulations of general

customary law that the Court considers matters of special custom. One
large class of instances of special custom occurring in different places
throughout the opinion is the matter of "historic waters." These are,
of course, instances of prescription. As Judge Fitzmaurice has analyzed
the matter,
the acquisition of a historic right by prescriptive means is merely a

special case of the creation of right by custom or usage.47
In such an instance,
the element of consent, that is to say, acquiescence with full knowl-

edge, on the part of the [complaining] State is not only present, but
necessary, to the formation of the right.48
Indeed, Great Britain did not contest the validity of prescriptive rights,
conceding that the "historic waters" belonged to Norway if possessio longi
temporis was proven in each instance.49
Some other examples of special custom in the Court's opinion have
caused considerable trouble for critics of the case who have not dis-
tinguished between the two types of custom. First, we have already seen
that the Court rejected the ten-mile rule for bays as far as general cus-
tomary law was concerned. But then the Court added an argument
addressed specifically to the two parties in the litigation:
In any event the ten-mile rule would appear to be inapplicable as

against Norway inasmuch as she has always opposed any attempt to
apply it to the Norwegian coast.50
In short, the Court considered the ten-mile rule both in general and in
special custom. It upheld Norway on the general ground because of
the division of state practice throughout the world. And it upheld
Norway on the special ground because, as between Norway and Great
Britain, Norway had not consented to the practice (indeed she opposed
it). Here the Court was in effect saying that Norway's delimitation of
bays was not unreasonable in light of general customary practice, and
therefore Great Britain could not limit Norway's rights within the ambit
of reasonableness unless Norway consented to the establishment of such
a special custom.
46 Ibid. at 131.
47 Fitzmaurice, "The Law and Procedure of the International Court of Justice,
1951-54: General Principles and Sources of Law," 30 Brit. Yr. Bk. Int. Law 1, 39
(1953). 48 Ibid. at 68-69.
49 [1951] I.C.J. Rep. 116, at 130. 50 Ibid. at 131.

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But if Norway has certain rights within the ambit of reasonableness,

Great Britain may also have similar rights. For if a certain area is con-
tested, one cannot say a priori that the coastal state and not the state that
is attempting to fish in the area has the better pre-emptive claim to what-
ever may reasonably be claimed. Thus it became relevant to see if Great
Britain had consented or acquiesced to Norway's use of any part of the
area defined by the general customary rules previously stated by the
Court. Thus, as a second example of special custom, and with respect
to the questions of the ten-mile rule, the historic waters, and their appli-
cations to the "skjaergaard" and other specific configurations of the Nor-
wegian coast, the Court took specific account of the notoriety of the
Norwegian claims and the failure of Great Britain to engage in sub-
stantial protest:
The Court notes that in respect of a situation which could only be

strengthened with the passage of time, the United Kingdom Govern-
ment refrained from formulating reservations.
The notoriety of the facts, the general toleration of the international
community, Great Britain's position in the North Sea, her own in-
terest in the question, and her prolonged abstention would in any
case warrant Norway's enforcement of her system against the United
Kingdom.5'
This language, coming near the end of the Court's opinion, points up the
Court's concern for the special aspects of the bilateral relationship be-
tween Norway and the United Kingdom.52 It would be a mistake to
apply to general custom the Court's reasoning on toleration and lack of
protest, for these served a specific purpose relating to consent in the
matter of special customary rights within the disputed ambit of the
reasonable possible extensions of Norway 's internal waters.
To round out the practice of the World Court, two additional cases,
other than those dealing with acquisitive prescription,"3 may be briefly
mentioned. In 1927 the Court dealt with the question whether the Euro-
pean Commission of the Danube had jurisdictional powers over navigation
of the river from Galatz to above Braila.54 The Court looked to "usage
51 Ibid. at 139. This language resembles a traditional test of estoppel in domestic
law. For a recent doctoral dissertation contending that customary international law
is nothing other than a form of estoppel, see Slouka, International Custom and the
Continental Shelf (unpub. dissertation, Columbia U., 1965). A difficulty with such a
thesis is that international customary law itself in the final analysis gives content to
the notion of estoppel in international law to the extent that the latter may be opera-
tive. Thus only a verbal substitution, that of "estoppel" for "custom," is effected,
but there is no gain in explication.
52 It is conceivable that a different plaintiff state might prevail against Norway on
the same issues, as several writers have suggested; it is perhaps more likely that the
Court's reasoning would not be extended to coastal situations involving future de-
fendants other than Norway.
53 For an instance of special custom in a prescriptive setting, see the Minquiers and
Ecrehos Case, [1953] I.C.J. Rep. 47. For a brief discussion of the Lotus Case, see
note 4 above.
54 European Commission of the Danube, Advisory Opinion, P.C.I.J., Ser. B, No. 14,
at 6 (1927).

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having juridical force simply because it has grown up and been consistently
applied with the unanimous consent of all the States concerned." 66 This
was clearly a matter of special custom, inasmuch as the case was about a
specific commission for a specific river; no one has ever suggested the
existence of a general rule setting up river commissions and giving them
precise jurisdictional powers. Hence the idea of "unanimous consent"
was restricted to a situation of special custom. Similarly, in 1930 the
Court delivered an advisory opinion concerning a specific place-the Free
City of Danzig. It based its holding that Poland did not have absolute
rights regarding the conduct of the foreign relations of Danzig on a
practice, which seems now to be well understood by both Parties . . .

[that] gradually emerged from the decisions of the High Commis-
sioner and from subsequent understandings and agreements arrived
at between the Parties under the auspices of the League.56
Again, the attempt to show consent was necessary in a situation of speeial

custom.
The cases just examined do not afford a complete picture of the require-
ments for proving special custom in international law. Indeed, it is
possible that the requirements may change, depending upon the type of
case involved-whether it is a case of prescription, or boundaries, or re-
gional law, or whatever.57 In this area, as in so many others in inter-
national law, the richest collection of evidence-diplomatic correspondence
among nations-has hardly begun to be tapped in any systematic way.
New methods in the social sciences, particularly the content analysis of
documents 58 combined with statistical factor analysis of the relevant com-
ponents of decision and conflict resolution,59 may offer a way to mine these
resources of state practice.
But apart from the problem of the refinement of criteria for special
custom, the most significant conclusion to draw from the preceding analy-
sis is that special custom should be sharply distinguished from general
customary law. The particular problems of proving consent on the part
of the defendant state in any claim-conflict situation that are assoeiated
with a claim of special custom need not be extended to the broader question
of norms of general custom, at least insofar as the World Court's cases
are concerned. Arn important analytical step forward can be taken if the
problem of the proof of general custom is seen to be an entirely separate
question from the problem of proving the requisite consent for special
custom.
55 Ibid. at 17.
56 Free City of Danzig, Advisory Opinion, P.C.I.J., Ser. B, No. 18, at 4, 12-13 (1930).
57 Special custom in Latin America seems to have its own rules. See Judge Alvarez'
dissenting opinion in the Asylum Case, [1950] I.C.J. Rep. 266, at 290-302. See also
G. Cohen-Jonathan, "La coutume loeale," 7 Annuaire franqais de droit int. 119 (1961).
58 See, e.g., North et al., Content Analysis (1963).
59 See, e.g., Rummel, "Understanding Factor Analysis," 11 J. Conflict Resolution
444 (1967); cf. D'Amato, "Psychological Constructs in Foreign Policy Prediction,"
ibid. at 294.

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Northwestern University School of Law
Northwestern University School of Law Scholarly Commons
Faculty Working Papers
1962
Treaties As a Source of General Rules of

International Law
Anthony D'Amato
Northwestern University School of Law, a-damato@law.northwestern.edu
Repository Citation
D'Amato, Anthony, "Treaties As a Source of General Rules of International Law" (1962). Faculty Working Papers. Paper 120.
http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/120
This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for
inclusion in Faculty Working Papers by an authorized administrator of Northwestern University School of Law Scholarly Commons.

Treaties As a Source of General Rules of International Law,*
by Anthony D’Amato, 3 Harvard International Law Journal 1-43 (1962)
Abstract: Attempts a theoretical explanation of the power of treaties to extend their rules to nations not parties to
them—to rationalize, in a nonpejorative use of that term, the Court=s citation of the Bancroft treaties in Nottebohm
and its use of treaty provisions in other cases—and to provide a basis for the continued use of the contents of treaties
in assessing the requirements of international law. Thus this paper is basically argumentative—it attempts to state
what the law ought to be by demonstrating that the law as it is logically compels the adoption of the present thesis.
Tags: Treaties, International Law, Bancroft Treaties, Nottebohm Case, Asylum Case, Lotus Case
[pg1]** I. INTRODUCTION
In 1955 the International Court of Justice rendered its highly significant decision in the
Nottebohm case. FN1 Cited in the opinion were the Bancroft treaties FN2 and the Pan-American
Convention of 1906.FN3 Judge ad hoc M. Guggenheim, dissenting, stated that he considered it
incorrect to regard the eighteen or so Bancroft treatiesFN4 Aas constituting a precedent@ for the
decision inasmuch as they were bilateral treaties involving neither of the parties to the
Nottebohm case.FN5 Indeed, the use of a set of treaties and a unilateral convention by the Court
as the only specific precedents cited came as a surprise to many observers. Professor Josef Kunz
has commented that the Bancroft treaties were Abinding only on the contracting parties@ and thus
Anot pertinent@ to the Nottebohm case.FN6 He concludes that there is no international law
precedent for Nottebohm.FN7 This is a startling conclusion, given the significance of the case.
[pg2] But it would be an inaccurate conclusion, given the hypothesis that treaties are capable of
constituting precedents of general international law binding on nonsignatories.
The Nottebohm case is by no means an isolated example of such use of treaties. The
reports of international tribunals often have reference to citations of treaties introduced by the
parties as support for their contentions although the parties were not signatories of the treaties:
FN8 Colombia cited a large number of extradition treaties in the Asylum case, FN9 which the
International Court of Justice found inapposite to the question of diplomatic (nonterritorial)
asylum without stating whether such treaties were irrelevant as precedent.FN10 Some courts
have found that similar provisions in many extradition treaties have become applicable to states
which have not expressly accepted the treaties.FN11 On its first decision, the Permanent Court
of International Justice inferred from treaties creating the Panama and Suez Canals a rule that a
state remains neutral even though it allows passage through an international waterway of ships
carrying munitions to belligerents.FN12 In the Lotus caseFN13 the Court interpreted the
intended scope of rules in a large number of treaties, though refusing to make any dedications
therefrom because the treaty provisions neither related to common-law offenses nor to collision
cases.FN14 Other examples of the use of treaties as general precedents by international arbitral
and judicial tribunals have been cited.FN15 Particularly in the large number of [pg3] treaties
relating to international rivers have writers begun to discern the emergence of a requirement of
arbitration or negotiation if the upper riparian threatens substantial diversion of the waters.FN16
It may in any case be unwise to dismiss the considered judgment of the International

Court of Justice in the Nottebohm case quite as easily as does Kunz. Indeed the Court may be
thought to have extended an implied invitation to writers reflecting on its decision to analyze the
question whether treaties may constitute precedents in international law binding on
nonsignatories.FN17
II. SCOPE OF STUDY
In this paper we are considering not the treaty alone, but the implementation of the treaty
in actual practice,FN18 and I will be contending not merely that a large number of treaties create
a rule, but that a single, isolated treaty on an issue should contain as much precedent value
before an international tribunal as the practice it includes would have contained, had the practice
occurred in absence of the treatyFN19—and in some cases, for reasons that will later be [pg4]
shown, more precedent value than the practice; that there is no difference in kind between one
and one hundred treaties; that the same logical explanation applies to all, though the decisive
power of one hundred treaties is necessarily stronger than the power of one.
I wish to attempt a theoretical explanation of the power of treaties to extend their rules to
nations not parties to them—to rationalize, in a nonpejorative use of that term, the Court=s
citation of the Bancroft treaties in Nottebohm and its use of treaty provisions in other cases—and
to provide a basis for the continued use of the contents of treaties in assessing the requirements
of international law. Thus this paper is basically argumentative—it attempts to state what the
law ought to be by demonstrating that the law as it is logically compels the adoption of the
present thesis.
At the turn of the century, it appears, a large number of publicists essayed the rudiments
of a view that treaties Aare in some sense a fountain of law to others than the signatory states.@
FN20 But then there appeared the writings of W.E. Hall, who viewed treaties as contracts and
laid down the Anglo-American view of the subject which has persisted rather steadily since then.
Treaties, wrote Hall, are either declaratory of law, or in derogatory of it, or Amere bargains@ in
which, without reference to law, something has been bought for a price.FN21 Many writers since
Hall have adopted this line of thought, with the result that treaties are broadly believed to be all
but irrelevant to international law—for if a treaty can be either in confirmation or derogation of
existing law, then barring a statement within the treaty as to which of the alternatives is the case,
an observer must look outside the treaty to discover the law. The treaty, then has been entirely
irrelevant to determination of the law.
Some writers following after Hall have argued that a treaty must be in derogation of
existing law, for otherwise there would be no need to enter into the agreement. But it seems
clear that such a view is not in accord with practice. It may easily be said that Awhen the law is
uncertain, practical men will naturally seek to clarify the position by making special
arrangements.@FN22 Even where the law is clear it may be reasonable for the parties to desire
[pg5] evidence as concrete as a signed statement of intent. Certainly it would be assuming too
much to declare that states are invariably aware of what the customary international law is in the
absence of a treaty—in instances of doubt or difficulties of determination it must be appealing to

take the relatively simple step of making an agreement which will be binding whatever the
custom proves to be.
I do not suppose that Hall=s original statement is entirely unreasonable. One may argue,
however, that it has proven rather a sterile line of thought, and by its general acceptance has
discouraged views which might have been more fruitful, depriving the international law of
benefits which the consideration of treaty provisions might have produced.
Specifically, with the emergence of new problems and new solutions to old problems, the
needs and possibilities of law constantly change. How, then, is a nation to deal with a problem
when custom is outmoded? How, in the absence of an international legislature, can unworkable
customary law be changed? A nation can, if it wishes, simply act illegally. But more often it
will prudently conclude a treaty or treaties.
Indeed, most of the substantive rules regulating international affairs today are found in
the myriad treaties concluded between and among nations. Customary international rules make
up only a small portion of the operative international norms, and daily the sphere of treaty
regulation intrudes on what is left of the area of customary practice. Some arenas of
international law have developed so completely in modern times that they have been preempted
entirely by treaties. For example, it would be hard to find customary rules regulating flights
through the airspace in the sense of Acustom@ apart from treaty. Treaties have given rise to the
international rule of sovereignty over the superjacent airspace. But Ait would betray confusion of
thought,@ states Hyde, Ato intimate that in the absence of agreement there is, in an international
sense, no law of the air.@FN23 This law of sovereignty, binding on all nations, has not arisen
from the classic usage-into-custom pattern of customary international law. Bilateral and
multilateral treaties have been concluded on this and thousands of subjects, and the rule-making
potentialities of these treaties thus becomes an important question in the ordering of international
life. To hold uncompromisingly to the Hall position that these treaties are nothing more than
contracts, to declare that a nation lacking a specific treaty must abide by hundred-year-old
custom even if several treaties have pre-empted the field in more recent years, is to give the
Adead hand@ of custom unreasonable sway over modernized and progressive agreements.FN24 If
[pg6] indeed most of the developments in international matters in the last half century have been
treaty developments, to deny their relevance to international law would be to nullify the effects
of recent legal thinking and international events and refuse the courts benefit from them. It
would seem that the carefully considered opinion of the treaty makers deserves some weight,
particularly if it is widespread and reflected in several treaties and agreements.
It is, of course, much easier simply to declare that no amount of contracting can change
existing law, and that in the absence of a specific treaty hundred-year-old custom emerges again
to rule the parties. Certainly the ease of this reasoning lends it a surface attractiveness, and I do
not promise an equally facile theory. Rather, an examination must be made in some detail of the
nature of a treaty and the nature of customary law, as well as the kinds of treaties that are capable
of rule-making power, and finally, of the compatibility of the present thesis with the goals of
international law.

III. THE PARITY OF CUSTOM AND CONVENTION
International law has allowed for a curious inroad into the maxim pacta tertiis nec nocent
nec prosuntFN25 in that it is said that when a rule is repeated in a large number of treaties the
rule Apasses@ into customary law, or that when an important multilateral convention has been in
existence for some time, its provisions become absorbed into the stream of customary
international law.FN26 Yet [pg7] the manner in which the treaty rule becomes a customary rule
has not been examined satisfactorily by publicists. There is great disagreement as to the amount
of time which must elapse, for example, before such treaties become absorbed into customary
law. Dr. Jenks regards the pace as very slow; he states that it is doubtful that by the time of the
first World War the 1856 Declaration of Paris had acquired the status of customary law.FN27
But Corbett writes that the terms of the Declaration of Paris became part of the customary law of
nations by the time of the Spanish-American War, when the United States Department of State
may be taken to have assented by issuing such rules to American diplomats.FN28
Schwarzenberger pinpoints the time at which a rule becomes transformed into international
customary law as the time it Abegins to be considered self-evident and is discarded in drafting as
redundant . . . .@FN29 But surely it is strange to look to the treaties themselves as evidencing a
time when the old treaty rules have passed into customary law, since the contracting parties are
free, by virtue of the freedom of contract, to accept or reject the old rules. The one thing that
customary law by and large does not do is tell nations what to put in their treaties.
On closer examination it is found that the language of publicists is far from clear on the
process of transformation of treaty into custom. Corbett refers to provisions in consular treaties
regarding the exercise of jurisdiction over merchant vessels in foreign ports as Anow in the
process of hardening into law.@FN30 Pradier-Fodere indicates that a uniform resolution of a
matter in a series of treaties Ainterprets@ (traduisant) the opinion of nations on the matter.FN31
Fauchille omits to mention any [pg8] Ahardening@ process, simply saying that identical
stipulations in consular, extradition, and copy right treaties, for example, give birth to a rule of
customary law.FN32 In the Wimbledon case the Court applied conventions relating to other
waterways to the case at hand and found the treaties to be Aillustrations of the general
opinion.@FN33 In the Mavromatis case, a general conclusion was based on the Areservation made
in many arbitration treaties,@ although citations were not given.FN34 Yet the International Court
has not applied the psychological element, opinio juris, to any of these cases, and thus Sørensen
finds it difficult to explain the cases other than by considering it a matter of the relatively free
discretion of the Court.FN35
It is submitted that jurists who have had occasion to deal with the question of the
Apassage@ into customary law of provisions in treaties have not yet fully examined the matter and
have for the most part covered a very nebulous idea with words such as Ahardening@ and
Atransformation.@ It is inherently difficult to find evidence that provisions in a treaty have
become part of customary international law in the sense of usage and opinio juris; this is due to
the fact that the nations concerned with the particular activity are usually the signatories or later

ratifiers of the multi-lateral convention, or the signors of bilateral treaties. And since these
treaties usually have not expired, it is natural that the involved nations consider their obligations
to stem from the treaty rather than from a Platonic sort of international law which the treaties
have created. Further, the great divergences of view as to the length of time it takes for the
treaties to Aripen@ into customary international law bears witness to the inability to find any
evidence external to the treaty of such process of ripening.FN36 These considerations show the
difficulty of proving that treaties have entered into the stream of customary international law in
the sense that the jurists= making the claim think of customary law. But the fact still remains that
[pg9] the courts and writers in the field regard similar provisions in a large number of treaties or
a provision in a large multilateral treaty as having a thrust on the universal international law. Is
it not possible to conclude that the treaties themselves have become recognized—albeit dimly—
as sources of the law of nations in much the same manner that the practice of states, absent a
treaty, becomes binding?
I have often wondered if there does not exist too much of a fondness for the purity of
customary law, and a resulting distaste for the intricacies of treaty law. Jurists seem often to
claim too much for customary law. For example, Oppenheim and othersFN37 say that it is a rule
of customary international law that treaty obligations are binding. But how could this statement
be proved? It is just as easy to say that treaty law accounts for the binding force of treaty law, or
of customary law. Or that the norm pacta sunt servanda applies equally to treaty law and
custom. The same fondness for customary law may lie behind the attempt to find the Apassage@
into such law of repeated treaty provisions, even in the face of extreme difficulty in explaining
how this comes about.
International rules as to the interpretation of treaties are not themselves traceable solely
to customary rules. International law indicates Awhen an agreement becomes binding, how it is
to be interpreted during its effective life, and how it may be terminated.@FN38 But these rules
did not come about merely because of the way in which nations in practice felt an obligation to
interpret the treaties; they also derived from rules found by the courts to be most consistent with
the intention of the parties. The fact that a court examines a treaty does not mean that its finding
is necessarily a rule of customary international law. Indeed, most of the rules of treaty
interpretation are probably traceable to treaties, as Schwarzenberger suggests.FN39 Later treaties
may spell out, for instance, what is meant by a most-favored nation clause in an earlier treaty,
and in the constant process of revision of treaties by nations general rules emerge. It is treaty
law that has laid down the most-favored national standard containing the features that the
standard Ais incompatible with discrimination against the beneficiary, that it does not exclude
discrimination in favor of the beneficiary, that third States constitute the tertium comparationis,
and that it does not require compliance with any definite and objective rules of conduct.@FN40
These rules of law are not customary in origin, but rather indicate that a great amount of
international [pg10] law is traceable rather directly to treaties which are not necessarily required
to have the express consent of the parties in a particular litigation in order for the treaties to be
relevant to their case.
In sum, my intention is to suggest, not that treaties can form or pass into customary law,

or even that they pass after a certain amount of time into a comparable treaty law, but that
treaties, from the very first treaty on a question, are useful as precedents before courts and form
an international treaty law, its force varying with the number or breadth of the treaties, which is
comparable to, and as valid as, customary law.
It has been said that there is doubt whether, despite the myriad treaties on extradition, a
state has an obligation to extradite in the absence of a treaty. Does this quite reasonable doubt
indicate authority against the thesis of this paper? I think not. Rather it seems to be an
illustration of the situation described above—the separateness of treaty law and customary law.
To the extent that an international tribunal might now hold that there is no duty of
extradition in the absence of a treaty, the decision may be explained as the result of the presence
of the contrary right of asylum in customary international law.FN41 It is of course easier for a
rule of law to become binding on all states if there is no ingrained rule to the contrary. Here, if
the question were only one of extradition or nonextradition, the various treaties by now would
probably have set up a different treaty practice for nations. But the customary right of asylum
had to be worn down and offered considerable resistance to the rule of extradition. Specifically,
it might be said that implicit in the terms of the normal extradition treaty is the safeguarding of
the right of asylum in cases where the exact treaty provisions are not met. This contrary
presumption is not true of many other areas of international relations. But even despite the
pressure of the rule of asylum, a number of cases have indicated that the recurrence of similar
provisions in extradition treaties has set up a duty of extradition. FN42 And, very significantly,
there is an increasing sense of duty to conclude an extradition treaty—Hyde says it has become
regarded almost as an unfriendly act for one state persistently to refuse to enter into an
extradition treaty with another.FN43 The paucity of cases on the extradition of common
criminals, as opposed to political refugees, about whom the treaties are not uniform, further
[pg11] suggests that there is considerable inroad on the right of asylum in practice. AIn actual
fact,@ Morgenstern observes, A>common= criminals are usually surrendered.@FN44
It seems clear that the matter of extradition is an example of simple clash which the
above discussion of the parity of treaty law and customary law explains and which parity is in
turn clarified by the clash. Customary law and treaty law are two separate and comparable
forces at work. They happened, in the matter of extradition to have precisely opposing points of
view. The fact that nations appear lately to feel an obligation to conclude extradition treaties
indicates that treaty law may be gradually taking precedence over customary law on this
questions.
IV. SOME DEFINITIONS
A. Treaties
Hereinafter when the word "treaty" is used, it is intended to mean any international
agreement. Jessup writes: AIt is of no legal consequence . . . whether an agreement between or

among states is called a treaty, a convention, a statute, an agreement, a protocol, or a covenant or
charter.@FN45
B. Source
The term "source of law" has been subjected to vast criticism, for it has been said to
denote ambiguously the cause of international law, its origin, its basis of validity, evidence as to
its content, and its "immediate," "formal" or "material" source.FN46 Professor Briggs has
mentioned that the meaning assigned to the term "source" is Aoften colored by . . . doctrinal
predispositions as to the basis of legal obligations in international law.@FN47 A certain amount
of common sense may go a long way toward obviating these apparent difficulties with language.
Thus a proposal that treaties are a source of international law means that courts, international
lawyers, and state [pg12] department officials will look to treaties in order to determine Awhat
are the rules of international law on a given question at any particular time.@FN48
A further clarification is needed with respect to the present thesis: that while treaties are
quite often referred to as Asources of international law,@FN49 writers for the most part are
referring to treaties as obligatory only for the signatory states and therefore are referring to the
realm of "conventional" as opposed to "customary" law.FN50 The present paper attacks this
usage, and in referring to treaties as a source of law means that a treaty signed only by states A
and B may be a source of rules—though not the only source and in any given case perhaps not
the most important—for states C, D, and E as well.
C. Evidence
It is not unusual for writers to state that treaties may be evidence of international law.
However, the meaning that the overwhelming majority intend is rather like the meaning of
"evidence" in the statement, Aa lawyer=s opinion is evidence in the state of the law.@ Evidence in
that sense is a sort of weak indication but little more. It is not even accurate to say, in that sense,
that treaties are evidence of international law, since, as Hall pointed out, signatories may have no
intention of embodying the law.FN51 And even should they state the intent to do so they well
might be entirely in error.
A preferable meaning for the word "evidence" would be that employed in Article 38 of
the Statute of the International Court of Justice, which states that the Court shall apply
Ainternational [pg13] custom, as evidence of a general practice accepted by law.@ In this sense
evidence becomes a synonym for Asource,@ since in effect a court looks to international custom in
order to find evidence of legal precedent for determining the rights and duties of states.
Lauterpacht has indicated with respect to municipal decisions that it is excess verbalization to
distinguish between custom and evidence of custom.FN52
V. THESIS LIMITED TO LAW-MAKING TREATIES

A. A Treaty Need Not be a Contract
The Anglo-American view that treaties have no effect on third parties—except in the
third-party beneficiary situation, which is excluded from this paper because such treaties apply
only to particular third parties and are not potential sources of general rules applying to all
states—derives in large part from the eagerness to equate treaties with municipal-law
contracts.FN53 This attitude tends to obscure the true nature of treaties, by providing too facile
an analogy. It is true that treaties are agreements, but so also is a Constitution an agreement
among the citizens. The Charter of the United Nations is an example of a treaty agreement that
much more closely resembles a Constitution than a contract. Statutes are also agreements—
bargains between legislators, and compromises between departments of the sovereign power in a
state, such as the system of checks and balances in the United States. Similarly, treaties are
agreements between sovereigns, and many multipartite conventions resemble legislation much
more than they resemble contracts—Manley O. Hudson has collected over a thousand of these in
his volumes entitled International Legislation. Unlike contracts, treaties may create new
sovereign states, mandates and trust territories; they may create international waterways,
servitudes, and other permanent changes in status.FN54 They may establish international
tribunals and other bodies with general rule-making authority. Nor are treaties interpreted as are
contracts: for example, the rules relating to duress are entirely different, and the doctrine of
clausula rebus sic stantibus if applied to common-law contracts Awould have a devastating
effect.@FN55 In dealing with [pg14] the conflict of law-making treaties, exclusive reliance
cannot be placed on municipal contract analogies.FN56 The fact that travaux préparatoires are
relevant in treaty interpretation is not more analogous to examining the intent of the parties to a
contract than it is to looking to the intent of a legislature or the purpose of the framers of a
Constitution. In sum, the effect of treaties in international law should not be prejudged on the
basis of an apparent similarity with the simple municipal-law contract.
B. Kinds of Treaties—Bargain or Common Aim
What sort of treaty may contain potential objective rules of international law? This
question is by no means a new one to international jurisprudence; it was considered as early as
1877 by BergbohmFN57 and in 1899 by Triepel.FN58 These writers and the Italian schoolFN59
created a classification distinguishing between rechtsgeschaeftlichen and rechtssetzende treaties,
the former corresponding to a contract in municipal law and the latter to an act of the
legislature.FN60 This distinction has pervaded international literatureFN61 but it has been for
the most part a solely verbal distinction in Anglo-American writings.FN62 Thus
OppenheimFN63 and BrierlyFN64 accept certain treaties as "law-making,"but do not draw
consequences at all different from them than they draw from "contract" treaties. Lord McNair
finds that the law-making treaties have an effect on third parties, but he confines his inquiry to
huge multilateral conventions or to situations where the effect is a particular one, such as
creating a status for the Aaland Island.FN65 [pg15] But the continental jurists did not elaborate
the distinction between contract and law-making treaties solely for verbal purposes; they
considered that a difference in kind between the types of treaties led to different juristic results
as to the effect on nonsignatories.

Perhaps the simplest distinction that could be offered is that law-making treaties lay
down a general rule of conduct or rights and privileges and duties binding on both parties which
is to take effect upon ratification or conclusion of the treaty and continue in effect. Ordinary
contractual treaties lack such a rule. Rather they are addressed to an exchange of dissimilar
goods, as in the case of a sale, or of dissimilar practices, as when nation A agrees not to divert
water that flows into nation B if Nation B, the lower riparian, grants navigational access to the
sea. Conveyances, or in general dispositive treaties are of this contractual type. Jessup writes
that Asome agreements are essentially contracts, as, for example, agreements for the sale of
surplus war supplies, loan agreements, or agreements for the maintenance of national
monuments or memorials.@FN66 Treaties which relate to a determinate business, such as a treaty
of servitude, may be excluded for the purpose of this paper, even though they often have obvious
effect on nonsignatories since they affect status.FN67
Bergbohm, and later Lord McNair, distinguish contract from law-making treaties in that
in the former each party wants something that the other party has and is willing to give up
something else in return. Thus the arrangement is one of mutual exchange.FN68 It may be
noted that such an arrangement could not lead to a change in general law without the most
disruptive and unsettling results for everyone concerned. For example, if nations A and B have
agreed that A will give so many bushels of wheat to B each year for five years in return for so
many of B=s sheep each year. It does not become a rule of law that every nation must sell wheat
for sheep or that such agreements must be made in five year units or that the wheat-to-sheep
ratio must be the same for all nations. Scelle sums it up by saying that contractual treaties
Arealize a particular juridical operation@ and Adisappear as soon as that operation is realized.@
Law-making treaties Apresent an entirely different interest of stability and generality. They aim
to establish a rule of law and are true legislative acts.@FN69
It seems irrelevant to draw a distinction between multilateral and bilateral treaties,

although this is often done.FN70 If state A signs a bilateral agreement with B, B signs a similar
agreement with C, and C signs a similar agreement with A, the effect is exactly [pg16] the same
as if A, B and C joined in a multilateral convention; the same reasoning applies to a sixty nation
multilateral convention. The difference is only one of degree—the rule of law will gain
increasing force with an increase in the number of states involved, just as does a rule of
customary law, but the form of the treaty which assures their participation is not relevant.
Treaties which lay down a rule for both parties have the power to lay down an ordering
different in kind from contract treaties. Here nation A does not give up something in exchange
for a right for something belonging to B, but rather each nation joins with the other in
proclaiming a rule which is binding on both. It is not accurate to speak here of exchange—since
the same thing does not change hands, or if it did would be merely a futile gesture as exchanging
a dollar bill for a dollar bill. Professor Fuller has elaborated the distinction between organization
by reciprocity and organization by common aim.FN71 ATo make organization by reciprocity
effective the participants must want different things,@ he writes; organization by common aims
requires that the participants want the same thing or things.@FN72 Gihl has tried to break down

the fundamental difference between these two types of agreement by the argument that in both
situations the parties want the same things: in the law-making treaty they both want the Awhole
of the arrangement comprised in their agreement.@FN73 But this criticism, as Levi tends to
suggest, FN74 is irrelevant: of course in each situation, since A and B are entering into a treaty,
both may have consented to the whole of the arrangement. The distinction is that in one case
they expect to derive from their agreement different things and in the other case the same thing
or things. As may be imagined, the distinction usually becomes very clear in practice.
A different objection might be raised along these lines: that even though A and B had the
common aim to set down a rule of law in a treaty, and both sides did in fact sign such a treaty,
nevertheless there may be an underlying bargain if either side paid something extra to the other
to induce it to sign the treaty. The answer to this is that it, also, is logically irrelevant. The
motives of A and B may be entirely different for entering into a treaty. A, for instance, might like
to sign treaties, while B might be generally intractable, and do nothing unless payment is offered.
Or, A may be a better bargainer than B, or may be mistaken as to the desirability of signing the
treaty. But the resulting rule of law given effect by the treaty is the same for both sides—if not,
of course, it is not a law-making treaty. The fact that the rule of law is the same for both sides is
the operative fact, just as it is in municipal law where the motives of legislators in swapping
votes or pleasing [pg17] minority groups in the constituency are irrelevant to the application of
resulting legislation.
The difference between law-making treaties and simple agreements of exchange is

outlined at this point not only to emphasize that the present thesis is concerned primarily with
the law-making treaties, but also to provide a basis for analogizing treaties with statutes at a later
time.FN75
VI. TREATIES AND CUSTOM COMPARED
A. Theory of the Tacit Treaty
A few decades ago a few writers of positivist convictions publicized the theory that
international custom is in fact tacit treaty, distinguishable from treaties Astrictly so-called@ only
by its form.FN76 The idea was not new. It dated back to Grotius, Bynkershoek, and Vattel, but
the dualistic doctrine contributed to its revival.FN77 The theory went out of favor, and it has
been until recent years fashionable to discredit it along with the general discrediting of the
Aexaggerated regard for sovereignty@FN78 thought to underlie the theories of its proponents.
The doctrine of tacit [pg18] treaties has been labeled Apurely fictitious@FN79 or, alternatively,
criticized on specific grounds which had a surface plausibility. In the latter manner Brierly
writes that the theory of implied consent as the basis of custom fails to explain why international
law is binding and observed by other nations which cannot be said to have consented expressly
or impliedly. FN80 AA customary rule,@ he states, Ais observed not because it has been consented
to, but because it is believed to be binding. . . .@FN81 Such a criticism misconstrues the tacit
treaty theory. The theory does not hold that in order for nation D to be bound by a rule of
10

customary law nation D must itself have consented impliedly to the rule. Rather, once a rule has
become customary among nations A, B and C, the general doctrine of international law will
apply such a rule to nation D. The reason for Brierly=s confusion appears to be his own
conception that the words "consent" and "treaty," once mentioned, must be strictly limited to the
participants of the consent or the signatories of the treaty.FN82 It is clear that this reasoning, if
it is the source of Brierly=s confusion, is circular.FN83 While international custom is grounded in
the consent of specific nations, it comes to be of general validity, even as applied to nations who
have given no tract of consent. This is true in practice whatever theory is given to explain it—
the [pg19] last states involved will be bound by international custom. It may be helpful to
consider that the first states have in a sense acted as representatives for the entire body of states
in the matter.FN84 To say, as Brierly does, that the rule is observed Anot because it has been
consented to, but because it is believed to be binding@ is really only to say that it has become
international law. How it became so is still the question, and it seems that at some point in the
development the important factor was consent.
B. Consent in Treaty and Custom
The controversy just examined has proceeded for the most part on assertions and counter-
assertions by publicists who have had an axe to grind with respect to positivism and dualism.
But a recent article by MacGibbon in the British Yearbook has demonstrated that the element of
consent at the basis of international custom is indeed the true explanation of such custom.FN85
MacGibbon=s article is so documented and well-reasoned that it is difficult to believe that future
discussion of customary international law will ever again assume the form it took prior to the
publication of his paper. For present purposes it will suffice to examine MacGibbon=s principal
contentions with respect to general customary international law.FN86
MacGibbon relies heavily on a statement of Sir Gerald Fitzmaurice that is well worth
quoting again:
Where a general rule of customary law is built up by the common practice of States,
although it may be a little unnecessary to have recourse to the notion of agreement (and a
little difficult to detect it in what is often the uncoordinated, independent, if similar,
action of States), it is probably true to say that consent is latent in the mutual tolerations
that allow the practice to be built up at all; and actually patent in the eventual acceptance
(even if tacit) of the practice, as constituting a binding rule of law.FN87
[pg20] It is clear that consent is at the heart of the matter. The opposite of consent, or
protest, has the contrary effect of disestablishing the practice as legal. The presence of consent
or acquiescence, however evidenced, tends to endow the practice with a general stamp of
approval, and after a reasonable period of practice tends to throw the burden on other states to
protest. Absent protest, a law is formulated binding on the world community.
The problem of how to find evidence of this consent and what to do with the notion of
opinio juris in this regard was considered in detail by MacGibbon and shall be examined shortly.
11

For the present, however, let us assume it is possible to show consent to a practice by a state.
Under this assumption, consider the relation between custom and treaty in the following
hypothetical examples:
(a.) The United States launches a number of reconnaissance satellites over a continuous
period of time to fly over the airspace of the Soviet Union for the purpose of photographing
Russian military installations. Although able to do so, Russia decides not to shoot down or
otherwise interfere with these flights.
(b.) The United States and Russia sign a treaty, one provision being that neither nation
will interfere with reconnaissance satellites launched by the other. The United States then
launches a number of such satellites over a continuous period of time, and Russia does not
interfere with them.
1. Duration of the Consent.COne of the apparent differences between the above two
cases seen at first glance is that in case (a.) Russia seems to be tacitly agreeing indefinitely to
satellite overflights, a precedent obliging her to permit them henceforward, while in case (b.)
she agrees conditionally until such time as she might choose to terminate the treaty.
To answer this problem, reference might be had to the basic norm of international law:
pacta sunt servanda.FN88 From the consent view [pg21] of international law it is seen that this
is the norm which gives custom its binding force. Thus, in case (a), if Russia allows four
satellites to fly over its airspace, tacit consent enjoins it from shooting the fifth. Similarly, pacta
sunt servanda requires that Russia keep its treaty obligations in case (b). Russia would be
violating essentially the same norm whether it broke a treaty to fire on the satellite or violated a
custom to which they had tacitly acquiesced.
A more difficult question arises if the treaty is of limited duration, explicitly extending
for, say, two years. If at the end of that time Russia informs the United States that the treaty will
not be renewed and that further flights will be interfered with, she would be within her rights
according to the original agreement. For the United States, in consenting to a two-year limit,
impliedly consented to the possibility of an opposite rule at the end of two years. But a similar
result could be arrived at by custom. Russia could submit initially a conditional protest—a
protest that the United States stop its flights after two years, though they may continue in the
interim. Even in this case of limited duration treaties, there is great similarity therefore between
their operation and the operation of custom. However, it is only reasonable to consider such
treaties very limited in the effect they may exert on customary international law, for if a treaty
promises less than a universal rule of law, it cannot, barring special circumstances, be considered
the equivalent of customary practice. Most law-making treaties, however, and to a slightly lesser
extent those treaties that extend for a given period of time with the proviso that they are to
continue in force indefinitely unless notice be given in advance of termination, set up rules that
purport to remain in existence indefinitely. Such treaties are closest to customary practices.
2. Time at Which the Consent is Given.—Barring the question of limited duration
12

treaties, the differences between case (a.), overflights permitted, and case (b.), overflights
permitted by treaty, are slight, and in many situations or instances would favor case (b.). [pg22]
For example, in case (b.) Russia=s consent is unequivocal. Secondly, there is explicit reciprocal
consent by the United States, rather than consent implied because the United States is the acting
nation.FN89 Finally, from a practical standpoint in the modern world, it would be dangerous if
situations analogous to case (a.) were to be the usual way of creating law. The United States
would be risking the destruction by Russia of the satellites and moreover the heightening of
international tension. Making certain of Russia=s consent before launching obviates this danger.
However, classic theory would hold that case (a.) would tend to generate international
custom, and not case (b.). (Of course several other nations or several more acts would be
required, in the usual case, before a rule of noninterference with reconnaissance satellites would
achieve universal recognition as binding.) Is it not unreasonable to find a complete absence of
rule-making force in the second set of facts? The only great difference is a formal one—that
Russia=s consent was received in advance rather than "discovered." The operative, substantive
facts are the same. Underlying the treaty, so to speak, is the practice of the states. The only
element that has shifted is the time in which consent is given. In the first case the acting country,
the United States, has impliedly consented to reciprocal acts by Russia simply because the
United States launched the satellite. Russia=s consent to the same principle is also implied. Thus
there is in this tacit agreement a union of wills—that reconnaissance satellites may travel
unmolested. In case (b) the same proposition is explicit. Indeed, it may here be seen that custom
resembles treaty practice in a very real sense.FN90 The treaty is a formal agreement to do acts
which are in respect the same as acts which could form custom in the absence of treaty—the
same pressures and motives may be inferred to exist in the states which perform these acts. In
other words, absent the treaty, the parties would have felt a growing need to do things in the way
they legalized through the treaty.
In 1806 Madison suggested this line of thought. AOne evidence of general consent,@ he
wrote, Ais general usage, which implies general consent.@ The rhetorical question followed:
ACan express consent be an inferior evidence. . .?@FN91
[pg23] 3. Opinio Juris Reduced to Consent.—We have discussed, then, the similarity of
consent in treaty and custom, in that consent may certainly exist in both, may be clearer in a
treaty, and is perhaps different only as to the time it becomes evident. Still, there is another
matter which may be raised concerning a possible difference between the types of consent in
cases (a) and (b), one which goes to the question of its quality.
Under the classic theory, customary international law is composed of two elements:
1. usage—the repetition of similar acts by various states.
2. opinio juris sive necessitatis—the habit of doing certain actions Aunder the aegis of the
conviction that these actions are legally necessary or legally right.@FN92
13

The important question here is the nature of this latter psychological element. Under the analysis
of MacGibbon, the rather artificial psychological elementFN93 is replaced by the concepts of
consent and acquiescence. It might be helpful to present the consent thesis in a somewhat
diagrammatic form. Let us denote nation A as a somewhat diagrammatic form. Let us denote
nation A as the acting state and nation B as the state which is "involved" in this action. Nation C
is totally uninvolved, unconcerned, and unaffected by the acts of A. There are three kinds of
international acts possible—act X might be the sending of a satellite over the other nation. This
is a simple act, since B need do nothing positive in the way of acquiescence to allow this act to
take place. Act Y requires the positive cooperation of state B. For example, by force majeure a
vessel of A must dock within the territorial sea of B, and B assumedly must cooperate in the
docking of the vessel. The trickiest act is act Z, which is abstention from acting. In the Lotus
situation, act Z would mean that state A abstained from exercising criminal jurisdiction over a
national of B, who on the high seas was responsible for a collision involving a vessel of A.
When the opinio juris is thought of in terms of obligation, as MacGibbon tends to view
it,FN94 proof would be required that when A performed act X, B would be obliged not to
interfere. An immediate difficulty of course is that if B does not interfere, there is little chance
of discovering whether such inaction is due to a belief that interference is illegal or simply not
worth the trouble and effort. Nevertheless, there is some slight assumption that might be made.
The fact that B was aware of the act and did not complain tends to show that B thought the act
legal. Of course, [pg24] this is very flimsy evidence, particularly in the case of a new act, such
as the flight of a satellite, where there is no international law. Here it is especially difficult to
come to any conclusion as to B=s state of mind on the question of legality, since even if B were
aware of the problem, B could not discover what international law would hold on the problem, as
there would be no international law on the problem. However, a state would likely protest if it
objected to the action and felt protest reasonable, for fear that not doing so would establish an
unwanted precedent.FN95
On A=s side, to conceive of the act in terms of a claim of right presents similar
difficulties. How is it discoverable whether A did act X because A felt it was legal to do so, or
because it desired to enough to act in a way it fell illegal, or that it acted without any
consideration of the legality?
In regard to act Y it is perhaps slightly less difficult to find opinio juris. The fact of B=s
action might be prima facie evidence of a feeling on B=s part that B ought to assist. However,
this manner of reasoning has drawbacks also, as it views nations as basically unfriendly, acting
only in response to legal obligation.
In practice, the only use of opinio juris by the International Court of Justice occurred
with respect to act Z.FN96 In situation Z, state B is totally unaffected in physical sense. What
has transpired is simply that nation A has not acted with respect to a national of B. This is the
most extreme situation. It is highly unlikely that any evidence of state of mind can be found with
respect to B, the nation whose state of mind might have been construed in situations X or Y.
Therefore the Court could not hope to find anything of international precedent value in
14

examining the practices of B. It had to look to state A. But state A, by hypothesis, did nothing.
Here the Court laid down the requirement of opinio juris—that A=s abstention would have to be
proved to [pg25] have been in response to a conviction of an international law requirement for
abstention on A=s part. Since A is the "actor" it would also be possible for the Court to see if A
abstained under a claim of right, but while logically possible, this is absurd in practice. No
nation would feel the need to proclaim that it has a legal right not to exercise criminal
jurisdiction over the national of another state in such a situation. The Court=s use of opinio juris
in this, the most extreme situation does not logically compel the use of opinio juris in situations
X and Y. Indeed, as MacGibbon has shown, international tribunals have not resorted in practice
to this artificial element advanced by the test writers.
MacGibbon=s essay demonstrated that the operative fact about the reactions of B to the
acts by A is whether or not B consented to the acts. In older terminology, the wording would
have been: whether there existed a tacit treaty between A and B. The opinio juris is a by-
product, as it were, of this consent: AAcceptance of a course of conduct as lawful seems
necessarily to involve the further otiose conviction that participants in the course of conduct are
entitled to act as they are doing; and this in turn appears to leave little alternative to submission
in the belief that submission is obligatory.@ And, it must be remembered, the opinio juris is
really needed as evidence of the consent only in the extreme case where there is the absence of a
positive act by the "acting" state.
The foregoing analysis should not be compared with the formation of general
international law by treaty. Consent by way of a tacit treaty (custom) is not different in kind
from consent in an express treaty. The element referred to as opinio juris is only a by-product of
consent used to give clear evidence of the consent. But in situation Z, where the opinio juris is
particularly relevant, a treaty would obviate the need for such opinio juris. Thus if A agreed with
B that neither would extend criminal jurisdiction over nationals of the other involved in
collisions on the high seas, positive proof would be therein available of the consent. No
operative facts would change. A would feel an obligation, under international law, not to
exercise such jurisdiction. Similarly, in cases X and Y, can proceed under a claim of right, and B
is under an express treaty obligation to allow and assist A=s acts. It might be argued that, absent
the treaty, A might feel the opinio juris not to exercise jurisdiction over the nationals of B, C, or
D, while with the treaty A merely feel committed to a Aparticular@ law obliging A not to exercise
such jurisdiction with respect to nationals of B only. But this argument is no proof against the
present thesis, which contends that if A and B sign such a treaty, the treaty tends to establish
international law for all nations to the same degree that the development of a custom between A
and B with respect to their own nationals would tend to form international law binding on all
nations. Thus under the present thesis, if A signs such a treaty with B. there is some precedent—
namely, the treaty itself—for requiring A and B, a well as C and D, not to exercise jurisdiction
over nationals of any other state who are involved in collisions on their own flag vessels on the
high seas.
[pg26] 4. Proof of Consent and the Class of Acts to Which Consent May be Given. —
MacGibbon=s thesis, so complete in its analysis of opinio juris, does not seem adequately to
15

explain the operation of proof of acquiescence or consent. When does usage become binding
upon states? In situations X, Y, and Z outlined above, there is usually no pressing need for states
A or B to make legal claims about the validity or invalidity of their actions. How then is a Aclaim
of right@ and consent to that claim of right evidenced? One way would be for the nations to say
so, diplomatically or otherwise. But as we have seen, there is no obvious motive for the states to
make such claims. Another way would be for A to execute an act and B to protest initially but
eventually cease protesting while A continues the act. This situation, which is probably
relatively rare, would present evidence that A continues to act under a claim of right, since A=s
attention was drawn to the question of legality by B=s protest. Protest is indeed a useful device
for proving that the act is done under a claim of right, but MacGibbon does not appear to have
successfully resolved the dilemma that this creates; namely, that the only clear cases then where
A is acting under a claim of right are the cases where B protests. And yet it is precisely these
cases which are practically useless for proving the existence or nature of an international rule
simply because A=s assertion of right is canceled by B=s equally valid assertion that A lacks right.
It appears, therefore, that (1) protest is the most valuable, or one of the most valuable, of
tools for discovering whether a nation acts under a claim of right or submits under a felt duty,
but (2) protest serves to cancel out the ability of the act to shape custom binding upon all nations.
Another approach is needed to determine legal consent or acquiescence. I submit the following
one, which appears to be consistent with judicial decisions:
A presumption of consent is set up wherever a state executes an act which is capable of

having international legal repercussions.FN97 For example, the denial by State A of a passport to
one of its nationals is not generally considered to be an act coming under international law. But
if a passport to leave state A is arbitrarily denied to a national of state B, such an act is capable of
being regulated by international law. For there is a felt effect, a repercussion, on state B, even in
this rather extreme case where the effect is on a national of B. If state B has knowledge of this
act yet fails to protest, state B is presumed to have acquiesced, and a rule of international law is
on its way toward crystallization, to the effect that aliens have no right of egress. Admittedly,
the test of an act being generally viewed as coming within or without international law is not a
static test, for the same reason that the sphere of international law is not static. But this is not to
say that the definition is circular, for it is not the opinion of A or B alone which is relevant, but
the opinion of the court, publicists, and nations. The contest of treaties will play a substantial
role [pg27] in indicating the expanding scope of international acts. But for the most part the
scope will be clear enough: an act of sending up a missile over another country would
unquestionably be of international character; similarly, questions affecting the seas, outer space,
diplomatic questions, etc., would easily be determinable as to their international legal character.
This presumption seems to accord with the large claims made for the operation of
customary international law by textwriters who certainly do not cite judicial opinions for every
proposition advanced. However, the test of presumed consent does not cover the Lotus situation,
since there inaction could not be said to have an unambiguous Aeffect@ on the international scene.
Thus the present test does not contradict the reasoning of the Court in the Lotus case, the only
case examining the psychological element in custom which the presumed-consent test replaces in
16

all but Lotus situations.
This presumption forces states to protest or submit to practice which will become
custom-forming. It would be just as logical to have a presumption in favor of protest unless
consent is manifested. But such a presumption would not accord with results reached in most
cases before international tribunals and cases involving international law before municipal
tribunals. For these tribunals have not had much difficulty in finding a transition from usage to
custom, which difficulty would be painfully obvious if the presumption were reversed.FN98
As mentioned above, there remains some problem in determining which acts are of
international character, especially since the scope of international law may be expanding to
encompass acts which were heretofore thought to be entirely within the sovereignty of a state—
for example, the diversion of water from a transboundary river at a point within the land area of
the upper riparian. With regard to treaties, however, the difficulty is obviated. If a matter is
included in a treaty, then—with one provisoFN99—the matter is ipso facto of international
character.
In sum, the differences between treaty and custom are that the treaty is a more reliable
instrument of the evidence of international practice, of consent, and of international character of
the act. The similarities are the most crucial: both are based on consent, and both involve
practices undertaken in response to the compelling force of the norm pacta sunt servanda. Both
can encompass a large number of nations in the first instance, and both may affect a large
number of third states. Therefore whether the practice of states in the [pg28] international arena
be consented to latently or patently, the practice itself together with the consent should be
regarded as precedent for rules of international law. This is not to say that treaties are a form of
customary international law, or vice versa. Rather, they are on a par with each other and should
thus be considered as precedents for international law decisions.
C. The Role of Treaty and Custom in the Formation of New Law
1. In General. — Nations sometimes enter into a treaty expecting or even saying that
they are departing inter alia from the customary rule, but do not intend that the general rule of
international law be changed as a result of the treaty departure. For example, Article I of a treaty
may recite the general rule of international law, and Article II may spell out an exception limited
to the signatories. The problem presented is the effect to be given to the signatory states= view
that the international rule should remain the same for everyone else. It is a logical corollary of
the present thesis that the parties to a treaty should be denied the power of "removing the effect"
of their treaty on the general rule of law. Nations A and B ought not to be permitted to deviate
from the rule at the expense of depriving other nations (in the absence of other treaties) of the
new accommodation between A and B. An international community is best made possible if
rules of law tend to become general—that what is true for A and B becomes an addition to
previous practices and tends to be a thrust toward a general rule. Certainly this is the effect in
the absence of treaty: a change of practice between A and B would have international customary
repercussions on the underlying international rule. Even if A and B issue statements that the rule
17

of law for all other nations remains the same and is unaffected by the difference evidenced in the
customary practice between A and B, and international tribunal would have no difficulty in
holding such statements irrelevant—the operative fact being that the practice of A and B showed
a tendency to change the international rule itself. The only difference, again, that the treaty
makes is that consent to the practice was achieved before, and not during, the practice.
But at this point the reader might nevertheless object: Do not A and B have the freedom
and right to make a contract deviating from the international rule inter sese? Why should they
be burdened with the necessary corollary that their contract is a precedent for a change in the
underlying rule for other states? The answer is, I think, that the problem is not one of freedom of
contract; it is international law, and not A and B, which indicates what the effect shall be of A=s
and B=s actions on nations not party to the treaty between A and B. And international law ought,
consistently, to say to A and B that they cannot have their cake and eat it too—if they in fact
change an international rule to suit themselves, other nations may benefit from the change.
Otherwise it would be like giving effect to dictum of the most flagrant sort—that A and B do one
thing, but lay down, not an irrelevant but an opposite, rule for nonparties. The principle of
freedom of [pg29] contract still allows A and B to make treaties with the other states,
incorporating a rule that is opposite from the A-B rule. In this manner they can isolate their own
treaty. But this burden of effort should be on A and B since they are claiming the benefit of
international law in their use of a treaty.
It should be emphasized that all these cases are extreme ones, used to demonstrate a
thesis. Nations usually would be happy, for instance, if the general rules they adopt in treaties
were extended to all nations; a rule is essentially a reciprocal accommodation. Moreover, a
single attempt by A and B to set up a treaty differing from the underlying customary (or treaty-
established) rule would have little affect in changing the underlying rule. A clearly established
rule of international law will not be overthrown because of one bilateral treaty to the contrary,
any more than it would be overthrown by a contrary practice developing between two states.
But if there are many treaties of the A-B type, or if there is multilateral agreement, then the
customary rule may be held to be changed. And if this occurs, the treaties are proof positive that
the other states did approve of the A-B "deviation."
2. The Problem of Change in the Law.FN100 — Deserving of special attention is the

situation in which by general acknowledgment there has been established a fairly clear rule of
customary international law in a given area. If A and B conclude a treaty setting up a rule that
derogates from this customary law, then, to the extent that this treaty is given effect as precedent
for nonsignatories, is not the treaty illegal? To state the matter differently: It may be argued
that classic theory allows A and B to make a conventional rule between themselves that differs
from the general customary rule precisely because the conventional rules does not have legal
effect on states other than A and B. If it did have such an effect, to that extent it could be argued
that there is a violation of the existing customary rule.
Two approaches shall be offered to meet this objection. The first corresponds to the
18

argument that has been advanced in this paper. The second is a modification which might appeal
to the reader who decides not to accept the present thesis in its full form.
(1) The problem of bringing about peaceful change in international law, absent a super-
legislation, raises greater logical obstacles with respect to custom than it does in the case of
treaties. If nation A acts in a manner opposed to the rule of customary law—for the only way to
change customary law is to initiate a contrary practice—such an act will be illegal with [pg30]
respect to the rest of the international community. But if nation A enters into a treaty with nation
B allowing such an act, then the ensuing act is illegal—as stated above—with respect to all
members of the international legal community except B. Thus there is slightly less illegality
about the act when a treaty precedes it. In most cases B is likely to be the nation most affected
by the act, so that the interests of C, D, and E are not so gravely affected by the breach of
international customary law. Further, in many situations A will sign a treaty with the several
nations affected, which again removes the brunt of the illegality with respect to the states most
affected and involved.
But there is a more significant obstacle if changes in the law are to be brought about by
the process of custom—an obstacle that does not seem to have been noticed by the publicists. It
is black-letter law that actions, in order to become customary and thus obligatory for other states,
must be done Aunder the aegis of the conviction that these actions are legally necessary or legally
right.@FN101 Yet given the hypothesis that nation A wants to change the law by acting in a
manner contrary to the clear customary rule on the subject, it is difficult to see how A could think
its actions were anything but illegal and wrong under international law. Since A, again by
hypothesis, is the first nation to act in contravention of international law, black-letter law would
ascribe no force to the change of custom by A=s acts, since A lacked the requisite psychological
intent to act in conformity with the law. Thus the underlying customary law is totally unaffected
by A=s acts. By extension, when B does the same acts that A did, B likewise will have no effect
on the underlying customary rule. The only conclusion from this is that, once established, a
customary rule cannot be changed by the forces of custom.
Under the argument advanced in this paper, however, if nation A signs a treaty with B
that A may do an act which would be contrary to the customary rule, at least A has the
psychological assurance of acting correctly under the treaty. In this sense, A has a claim of right
to do the acts allowed by the treaty, the claim traceable back to international law and pacta sunt
servanda. Thus international law has furnished a way for A to do the act under a claim of right, a
way which is logically impossible to do legally in absence of a treaty. And indeed, it may be
argued that this is precisely what has happened under international law. In modern times, states
have realized in many areas that the customary rule is outmoded, but rather than try to break
down the customary rule by illegal actions which theoretically could not have an effect on
changing the customary rule, the states have entered into treaties with other states who are
principally involved in the contemplated action allowing such action. Nations have turned to
treaties because the process of customary law does not allow for change and modernization of
the customary law. In these circumstances, it would be anomalous to deny effect to the
thousands of treaties, intended by the parties to bring about a change in the customary law, by
19

pretending that the treaties are nonexistent [pg31] except as to the signatories.
(2) A second way to deal with the problem of the illegality of a treaty with respect to
third parties would be to deny to the first few treaties laying down a rule that is in clear
derogation of international law any effect on third parties. When these treaties are made public
(by deposit with the United Nations or otherwise), other nations have the opportunity and
obligation to give them scholarly and diplomatic consideration because the treaties are clearly
stated and carefully concluded statements by the signatories as to what good practice is between
them. Schwarzenberger writes that Anone of the members of the international society can help
being acutely interested in . . . the arrangements made between other States and the concessions
made by them to each other.@FN102 After the passage of some time, and after the provisions
have had a chance to sink into the prevailing international thought—and assuming little or no
protect from other states—then the entire body of the similar provisions in these treaties effect a
change in the particular international rule.
It is perhaps a matter of the quantity of the treaties containing similar provisions and the
time that has elapsed since the first treaty to have such a provision was ratified. No hard and fast
rule may be given when the difference in degree (the number of treaties) becomes a difference in
kind (a change in the general international law). But this problem is one that must always be
faced, whether new customary practices are being compared with old ones, or whether new
treatiesChowever theoretically affecting customCare being compared with the old rule. The
basic problem with the second alternative theory is that a difference in degree is held at some
point to become a difference in kind. Although this might indeed explain what international
tribunals have done when faced with a large number of situations of treaties, the explanation
seems at once less logical in a strict sense and more palatable in an immediate sense.
To deny that the principle of pacta tertiis can be entirely and comfortably reconciled with
the modern world—in which most nations find it prudent to embody what they feel ought to be
done and what they might well do anyway in treaty form—is quite possible. But to deny that
treaties ought to have an effect on custom is to risk stagnation of customary international law.
VII. TREATIES AND SETTLEMENTS
A. The Nature of Settlements
Although many treaties may be concluded with an intention to depart inter alia from the
customary rule of law, and many may be [pg32] concluded without much consideration of what
the law is, there exist a very significant number of bilateral or multilateral treaties concluded as a
compromise or settlement of the parties= divergent opinions as to what actually is the underlying
international rule. What has ordinarily occurred in these cases is the rise of a dispute, its passage
into diplomatic channels, its examination in legal terms and finally the agreement to settle the
matter by treaty.
A clear preliminary warning must be given against the idea that treaty settlements are
20

precisely the same as, say, a judicial decision on the dispute. The operation of reaching the
decision is rather different. Should one hundred thousand acre-feet of water per month be the
source of a dispute between states A and B, and should the diplomats of both states concede that
an international tribunal would be about sixty per cent likely to decide for state A, the resulting
treaty may well give sixty thousand acre-feet to A and forty thousand to B. Before a tribunal the
decision is much less apt to be so like a compromise.
This is not to say that such treaties should have less weight than judicial decisions.
Perhaps there is even reason to argue that, being in some sense more practical and being the
decision of the parties involved, they should have more weight. But there is no real necessity to
decide. The important matter is that, though different in some respects from judicial decisions,
such treaties are similar in others and should not be overlooked as evidence of what in fact is
operative international law. Indeed, international tribunals are themselves set up ordinarily by
treaties, and it is logically awkward to maintain that their decisions are far-reaching while the
instruments that set up are not. In practice, of course, there is no such awkwardness simply
because people are psychologically prepared to accept judicial decisions as precedent-setting.
But in practice also may many of the similarities between settlement treaties and judicial
decisions be seen. Practically speaking, treaty settlements of disputes are merely short-cut
substitutes for judicial decisions. Neither is there much difference between the two nations
agreeing to have a judge decide the dispute, and agreeing to let two foreign-office officials
decide by drawing up a treaty. Like judges, the treaty-makers consider the position of existing
law and work out a settlement based upon law that is, in its compromises, likely to be more
practical than a decision. Like a court, in this type of treaty, they will try to find" law rather than
"make" it. Both a decision and a treaty are in this sense "evidence" of law. One ought not make
too much of the word "evidence" in this connection; what is here argued is that such a treaty is
valuable precedent for third parties, just as the judicial decision is precedent for parties other
than the plaintiff and defendant.
The treaty need not, of course, state a broad rule on its face in order to be labeled "law-
making"; one may be implied from the dispositions under the treaty. When the treaty is the
result of a settlement, what the parties have actually done—not necessarily the wording—may be
generalized into a rule of law. That is, the rule is deduced from the treaty as a whole and perhaps
from the actual implementation as well. For example, the United [pg33] States-Mexico treaty of
1906FN103 does not say that the United States has a duty not to divert water from the Rio
Grande. Indeed the contemporaneous Harmon doctrineFN104 stated that the United States had a
sovereign privilege to divert such water. However, the treaty specifically provided for the
guaranteed delivery to Mexico of a certain amount of water in the Rio Grande. Taken as a
whole, the treaty cuts against the contention of the United States that sovereignty allows
diversion from a river without regard to hardships felt therefrom by the lower riparian.FN105
Thus a treaty which appears to be a "contract" may, taken in a broader sense, indicate the view of
the parties as to the requirement of international law. Of course, when dealing with such a treaty
it is relevant to consider whether there was a quid pro quo felt to be the equivalent of the
"concession." In this case, if the United States agreed not to divert water in return for the
disavowal of outstanding Mexican claims against the United States, and if the parties at the time
21

felt this to be an even exchange, no broad principle is deducible from such an exchange which
would be relevant to the Harmon questions. Lacking such evidence of bargaining, however, the
treaty will be a reliable reflection of the opinions of a number of diplomats, lawyers, and
legislators, and perhaps large segments of the populace of the nations as well. As it should be
accorded some influence in international law.
But why, it might be asked, should a settlement be at all regarded as evidence or a source
of international law while in municipal law settlements are not precedents for judicial decisions?
There are, perhaps, no strong reasons why municipal settlements are not more important.
Practice might easily have evolved to the contrary. Had there been a custom of recording out-of-
court settlements in early English law, subsequent courts, particularly when faced with issues
which had no judicial precedent, most probably would have looked to the reports of the out-of-
court settlements as precedent. Parties certainly act on the basis of these settlements; money
changes hands; and all in all the settlements are very good evidence of what two opposing
lawyers agreed was the force or state of the law in regard to their particular case. Such
settlements are more apt to be well-considered than some statements found in treaties; the latter
may be written as fancy or responsibility dictates, but there is no cash payment if the statement is
wrong. Since most cases filed in court are settled out of court, there would have been a huge
body of testimonial evidence to the actual operative rules of law in society had publishers of
legal decisions extended their publication to settlements. In a different context, a writer on the
Nuremberg trials said: AI need not repeat what has so often been emphasized, that to construct a
system of common or customary law [pg34] must necessarily involve a system of law
reporting.@FN106 The importance of this factor is too easily taken for granted. While common-
law will not suffer irreparable damage if it is denied access to reports of settlements—simply
because of the large number of decisions and statutes—international law in which most of the
action is taken through treaties should not thoughtlessly overlook the relevance of a treaty
settlement as persuasive evidence of what the parties agreed shall be, and has been, the operative
rule of international law.
B. EXAMPLESCDiversion of Water from Transboundary Rivers
A set of examples of the sort of settlements by treaty to which I refer has arisen out of
disputes over transboundary rivers, and one of these, the Indus River dispute, has been much in
the news lately. A detailed examination of some of these river agreements should serve to
clarify the argument being presented. Initially, several questions may be asked: Does an upper
riparian have a duty under international law not to make substantial diversions which would
cause damage to the lower riparian? Is there simply a duty to work out an equitable arrangement
with the lower riparian, whatever it may be? Or is the Harmon doctrine of absolute sovereignty
the rule of international law? It is now so much relevant what the answers are as, finally, how
and from what sources have the answers been obtained.
1. United States-Mexico.CThe Harmon opinion was delivered in December, 1895, when

the question of diversion of the Rio Grande was becoming the serious center of a dispute
between the United States and Mexico. But an indication of the non-adoption of Harmon=s
22

absolute sovereignty principle was the action of the United States in enjoining a private company
from building a dam at Elephant Butte, on the Rio Grande within the United States. In 1906 the
two countries concluded a treaty, wherein the United States agreed to deliver a stated amount of
acre-feet of Rio Grande water to Mexico annually. The treaty was highly detailed, and did not
refer to broad principles of law except to disclaim any legal basis for Mexican damage claims
against the United States. The treaty included concessions by both sides: Article II stated that
the United States would bear all the expense of construction of a dam which would operate on
the Rio Grande where it is part of the boundary. Mexico, on the other hand, waived all damage
claims arising from the diversion of water by citizens of the United States.
Taken alone, it is difficult to draw any generalization that could lead to a rule of
international law with regard to this treaty. The negotiations and final treaty reveal too many
exchanges and concessions by both sides, and it is very hard to determine what weight was given
by the parties= understanding of the international [pg35] law requirement in absence of a treaty.
It is possible to note the closeness of time between the Harmon doctrine and the treaty, and
conclude that the United States did not in fact rely on the absolute sovereignty principle, for
indeed the treaty Ain fact apportioned the water.@FN107 One writer says of the treaty that
Aalthough the United States Government formally reserved its legal position, the actual dispute
was settled by a rational agreement,@ and that Athe United States Government did not act upon
his [Harmon=s] opinion in their relations with Mexico. . . .@ FN108 But if Mexico "paid" for the
treaty insofar as it derogated from what the United States would have done in exercise of
absolute sovereignty, very little can be deduced from the fact of the signing of the treaty. On the
other hand, nations often behave in a very practical manner; it may have been true that Mexico
was able to bargain for a better than "equitable" arrangement in return for allowing the United
States to place in the treaty the disclaimer that the treaty should not be evidence of any legal
concession by the United States. This would not have been an unreasonable stand by Mexico—
if she secured the substance of what she wanted, what difference would it make if the United
States could recite words in a treaty disclaiming any legal obligation to do what the United
States in fact did? A legal advisor to the State Department has written that Ait is necessary to
distinguish between what states say and what they do.@FN109 In this mode of analysis, it would
be possible to conclude that the treaty of 1906 was in fact a settlement, and bears witness to an
understanding by both countries that some kind of equitable apportionment is required by
international law.
Further support for this view may be derived from testimony before the Senate
Committee on Foreign Relations which helped clear the way for the ratification of a treaty with
Mexico limiting river diversions and setting up joint development and diversion projects.FN110
The State Department testified that international law requires that the United States cannot refuse
to arbitrate a demand by Mexico for additional waters of the Colorado.FN111 Counsel for the
United States section of the International Boundary Commission testified in part that Attorney
General Harmon=s opinion Ahas never been followed either by the United States or by any other
country of which I am aware.@FN112 [pg36]These statements are helpful authority for the
proposition that the 1906 settlement was required by international law and can thus be used as
evidence of it. The 1906 treaty as a whole may well be an instance of Thalmann=s general
23

conclusion that Atreaties concerning international waterways are therefore not so much the
expression of a view deviating from generally accepted principles, but are rather a concrete
application of them.@FN113
2. United States-Canada.—Concurrently with the Mexican negotiations, the United

States was involved in diversion problems with Canada. What was the effect of the Harmon
opinion, which had been drafted with the Mexican situation in mind, in the Canadian
deliberations? No written statement by any of the United States negotiators has been found
which indicates that the resulting Boundary Waters Treaty of 1909FN114 was intended to
incorporate the Harmon rule of absolute sovereign control over diversions.FN115 The Canadian
understanding was probably that it was not so intended.FN116 But Article II of the treaty does
reserve to each Party Athe exclusive jurisdiction and control over the use and diversion. . . of all
waters on its own side of the line. . . .@ Yet in the same sentence it is provided that injured
parties on either side of the boundary line are entitled to sue in local courts (of the other side) for
damages resulting from any diversion. This might be interpreted to read consistently with
Aexclusive jurisdiction@ in that neither Canada nor the United States may tell each other what to
do, but will have to pay compensation for any injuries suffered. Griffin reads the article more
liberally; he does not see in the treaty any preclusion of resort to international channels by
government espousal of claims in the event that injury results from diversion and the local courts
do not provide a remedy.FN117 This is in part substantiated by the remarks of Secretary Root
before the Senate Committee on Foreign Relations, what the phrase giving jurisdiction to local
courts was inserted merely to expedite proceedings.FN118 In sum, although this treaty contains
a general rule-type statement in Article II, it is far from clear what is intended—the Harmon rule
or a modification.
[pg37] Article II excepts from its scope other provisions in the Boundary Waters Treaty,
and these other provisions are of importance. Article VI subjects two rivers, the St. Mary (which
flows north into Canada) and the Milk (which flows south into the United States) to the principle
of equal apportionment. Another special agreement concluded contemporaneously with the
treaty was the modification by the United States of the Minnesota project, which had proposed to
divert waters from the generation of electricity, so as to provide for diverting only an amount of
water which would not materially interfere with Canadian public use of any of the waters.FN119
A study of the circumstances surrounding the United States-Canada negotiations and ensuing
treaty does not lead to any conclusive results concerning the question whether these nations
entered into a settlement, in part or entirely, which was the best view of either side as to the
requirements of international law in the absence of settlement. Yet the facts again show that,
despite what the parties said, numerous provisions and agreements were made which are
Ainconsistent with the theory that the territorial sovereign can do as he pleases with the water
upon his own territory.@FN120
3. India-Pakistan.—Even in a recent diversion dispute, it is difficult to uncover what the

parties had in mind when they made various agreements. When Pakistan became a separate state
in 1947, an untouched question was what would happen to the various river systems crossing the
boundary. There was a period when the two nations exchanged notes and gave mutual
24

assurances, from 1947 to 1951. Then in September 1951 India announced that she would
diminish waters running down into Pakistan for Indian irrigation, in the exercise of her absolute
sovereign rights.FN121 There was then a temporary truce as a United States-sponsored
Lillienthal proposal was studied, but in 1954 India announced that she would not accept these
proposals.FN122 A timely study by the International Law Association resulted in some
agreements in Dubrovink, however. Between 1954 and 1958, India progressively increased its
withdrawals, yet did so Afor the most part under ad hoc agreements with Pakistan which related
the increases to Pakistan=s ability to effect replacement with equivalent supplies from Pakistan=s
western rivers.@FN123 In the New York conference of the International Law Association in
1958, India and Pakistan agreed to a proposal that the United Nations Charter=s Article 33
procedures be followed [pg38] and after a period of negotiations the dispute was reconciled by
the signing of the Indus Waters Treaty.FN124 Although India argued throughout the proceedings
that under a Harmon-type doctrine of absolute sovereignty she was entitled to withdraw any
water, she did make the concessions outlined under pressure of world public opinion.FN125
Counsel for Pakistan were confident that if the matter went before an international tribunal the
tribunal would not hold the strict Harmon doctrine applied, but the preliminary stumbling block
was that India would not agree to arbitral jurisdiction.FN126 If a treaty does result from these
negotiations which provides for equitable treatment in light of the particular circumstances of
each river, it may be deduced that India felt that if she did not sign such a treaty world public
opinion would require her to submit to arbitration or to the International Court of Justice over the
matter, and that this might result in a judgment worse from India=s standpoint than the treaty.
Similarly, Pakistan may be surmised to have decided that the uncertainty of an international
arbitration should give way toward the effort to agree upon a concrete treaty which would avoid
further friction between the parties.
The conclusions above reached with regard to the United States-Mexico, United States-
Canada, and India-Pakistan river disputes have been tentative and uncertain. The materials
available on these negotiations are probably as extensive as any available on many other treaty
negotiations. It is difficult to assess the various motives of the parties involved, if indeed strict
assessment is desirable or even accurate. Perhaps with respect to river disputes a generalization
might be made that seems to follow from the fact that more than sixty states riparian to
international rivers have made arbitral commitments with one or more of their neighbors,
whereas only fifteen instances have been found where states have made no such
commitmentsFN127—that by virtue of the process of settlement and avoidance of litigation,
there may be said to have been created a rule of international law negating the Harmon doctrine.
It may be accurate that Athe frequency with which treaties on the utilization of boundary waters
on modern state boundaries are concluded indicates that the prohibition of the unrestricted
diversion of water corresponds to a universal legal principle.FN128
[pg39]VIII. TREATIES AND STATUTES
During an inquiry into the effect of a treaty on nonsignatories, a parallel situation in
25

municipal law may be noticed: the effect of a statute of one jurisdiction on a judicial decision in
a separate jurisdiction. It is becoming commonplace for courts in the United States to cite
statutes in other jurisdictions in order to reach a result similar to such statutes judicially.FN129
Statutes have been responsible for giving rise to civil and criminal conspiracy laws, and the
statutes of frauds and uses have often been invoked in principle although not enacted in the
particular jurisdiction.FN130 Married women=s acts, for example, have had enormous effect on
the law of torts, domestic relations, etc.FN131
It is more important to note the reasons for such use of statutes in common-law cases
than to cite examples of such use. Landis gives the example of Rylands v. Fletcher to show an
important reason for citation of a statute. This case, which has had an enormous impact on
American tort law, was based on analogies with wild animals. If Parliament in 1868 had adopted
a rule similar to the Rylands decision, Landis notes, even if it had been the result of a thorough
inquiry by a Royal Commission, and even if it had been approved by the same lords in the House
of Lords who voted for Fletcher=s claim, such a statute in the Blackstonian-oriented nineteenth
century would have Acaused no ripple in the processes of adjudication either in England or on the
other side of the Atlantic . . . .@FN132 The lesson about the wastefulness of ignoring so much
legal thinking has in large part been learned since 1868, and it is now seen that the policy
reasons which ought to underlay judicial decision may be as validly evidenced by statutes as by
previous judicial decisions. Indeed, the public policy of a nation is more democratically and at
least prima facie more accurately represented in legislation than it is in judicial decision.
I would like to suggest that treaties of a law-making sort are, rather than being similar to
contracts, very similar to statutes and should be similarly used—as precedent for decisions
affecting third parties.
It would be unenlightening to label as a contract the agreement that becomes a statute—

the agreement between Congress and president on a bill. Rather, there is a unity of wills in
regard to the common aim. A law-making treaty (defined earlierFN133 where [pg40] the many
differences between it and a contract were more fully discussed) much more closely resembles
that sort of an agreement than it does a contract. Its signatories are sovereign states on an equal
footing; when these states agree on a rule binding for them the situation is very different from
that which occurs when two men make a contract between themselves.FN134 It is very much
like a situation when a court agrees on a decision, or legislators agree on a law, or when a court
agrees on a decision, or legislators agree on a law, or perhaps when the people and their
legislators make an agreement which defines or by referendum approves of a municipal law
statute.FN135 Even in voting, the people elect legislators to do the public will; the resulting
legislation binds both the people and the legislators. In a parallel manner the treaty binds its
signatories and can hold legal sway over as large numbers of people as municipal legislation.
But even if treaties were as similar to contracts as to statutes, their close resemblance to
statutes argues for their being treated as are statutes. Manley O. Hudson published a collection
of some thousands of treaties entitled International Legislation; it is this aspect of treaties that
should not be ignored in judicial practice. Since legislation itself has been recognized as a fit
26

precedent in judicial decision, ought not treaties to be accorded comparable recognition on the
plane of international law?
IX. THE BROADER VIEW POINTCSOME QUOTATIONS
To extend to treaties recognition as sources of law would not, I think, be inconsistent

with the broad aims of international law. Law itself exists because of the social nature of states;
Agiven the idea of a community the idea of law follows as an immediate corollary.@FN136
Individuals as well as states have social needs and are interdependent in the community.FN137
In Brierly=s words, Athe existence of some kind of international law is simply one of the [pg41]
inevitable consequences of coexistence in a world of a plurality of states necessarily brought into
relations one with another.@FN138 Unless law in general serves the purposes of making an
international community possible, it defeats itself. For men only obey the law when they respect
it, and they respect it when they can associate with the purpose of the law, which is to promote
the community.FN139 Within a nation, this purpose is safeguarded to a large extent by a
legislature responsive to the needs and desires of the community as a whole. But internationally,
the absence of a world legislature calls for particular attention to the compatibility of any
proposed or existing source of law to the general purpose of the international community.
Treaties are inherently peaceful (treaties of alliance, if universally extended, would leave
no enemies to the alliance) and inherently accommodative. These broad qualities serve to
identify treaty law with the purposes of international law. A number of writers have noticed
these characteristics and have elaborated on them. Thus, with regard to treaties as a source of
general law, Madison wrote that they are formed in
a mutual spirit of liberality and accommodation. . . necessarily founded in principle of

reciprocal justice and interest. . . . [In the negotiation of treaties of peace and treaties of
commerce] the respective efforts and interests of the parties form those mutual checks,
require those mutual concessions, and involve those mutual appeals to a moral standard
of right, which are most likely to make both parties converge to a just and reasonable
conclusion. Nor is a sense of character without its effect on such occasions. Nations
would not stipulate in the face of the world things, which each of them would separately
do, in pursuit of its selfish objects.FN140
Also in the nineteenth century Calvo stated his agreement with Heffter that the texts of
treaties are the most evident witnesses of Al=accord des gouvernements.@FN141 This sense of the
compatibility of treaties and the improvement of international relations has been well restated by
Hyde in 1940:
Bi-partite as well as multi-partite treaties are useful repositories and enlightening vehicles
of areas the acceptance of which by the international [pg42] society may be anticipated
when they are worthy of it and when the success of the contractual experiment
encourages the assumption of like obligations throughout its membership. Agreements
between States are thus becoming increasingly regarded as the sources of law. . . .FN142
27

Finally, a quotation from Doctor Jenks, written in 1952, which applies equally to bilateral
treaties:
The obligations of multipartite legislative instruments are not, however, badges of

continuing servitude; they are a necessary part of full cooperation in the international
community and participation in them must therefore be regarded as one of the hallmarks
of emancipation. . . . We live in an age of rapid economic and social change, and if our
legal system fails to respond to the widely felt and urgent needs of a developing
international society, both its authority as a legal system and the prospect of developing a
peaceful international order will be gravely prejudiced.FN143
X. CONCLUSION
Unless treaties are accepted as a source of law for nonparties, international law will
anomalously apply custom formulated a half century or more ago instead of the rules found in
treaties, which have taken the place of custom in recent years. And as the conclusion of treaties
becomes more commonplace, changes in the law will be reflected entirely in the treaties. Thus
in many instances the application of the old customary rule will mean that the new standard of
conduct prescribed in the treaties will be overlooked. International law will, perhaps
dangerously, apply outmoded rules of conduct to new situations. For unless the present thesis is
accepted, the only way to change customary international law (apart from a multilateral
convention adopted by each and every existing state) would be through the process of usage
accompanied by a claim of right consented by the involved states—a process which may lead to
friction, miscalculation, misunderstanding, and over-assertiveness in order to gain desired
concessions. Nor would the claim of right be more than an empty claim, or the action derogation
of custom be anything but illegal. Should the development of international law be halted when
nations secure the consent of other nations in advance of practice by way of treaty? Has the
[pg43] jurisprudence of international law placed states A and B in the position that if they
conclude a secret treaty, a court may view the ensuing practice as a usage and may give it
international effect in shaping customary law, whereas if the treaty were revealed to the world
the same practice following the treaty would be dismissed as irrelevant to general international
law?
The practice of international tribunals as well as states indicates that the maxim of pacta
tertiis has not been strictly followed. But the lack of a theoretical explanation why it ought not
to be followed has resulted in some inconsistencies of application as well as indeterminacy of
predictability of international law. Landis wrote of statutes in 1934 that Aperhaps, the major
portion of the law is now skeletonized between the covers of the statute books.@FN144 The same
is true of treaty law today; collections treaties in force far exceed any library shelf of
commentaries on customary international law. The vast treasures and resources of these treaties,
representing the deliberate results of negotiations between states, should not be by-passed in the
serious study of rules to guide the rights and duties of states.
28

Footnotes
*Member, NY Bar. Honor paper in International Law Problems Seminar at the Harvard Law
School.
**Numbers in the format pg1 etc. refer to the pagination of the original article.
FN1 [1955] I.C.J. Rep. 4.
FN2 Id. at 22-23. See, e.g., Treaty with the North German Union, Feb. 22, 1868, 15 Stat. 615,
T.S. No.261.
FN3 August 13, 1906, 37 Stat. 1653, T.S. No. 575.
FN4 [1955] I.C.J Rep. at 41.
FN5 Id. at 59.
FN6 Josef Kunz, AThe Nottebohm Judgment (Second Phase),@ 54 AJIL 536, 557 (1960).
FN7 Ibid. The same conclusion is reached in Goldschmidt, Recent Applications of

Domestic Nationality Laws by International Tribunals, 28 FORDHAM L. REV. 689 (1960).
FN8 See SØRENSEN, LES SOURCES DU DROIT INTERNATIONAL 95-98 (1946).
FN9 [1950] I.C.J. Rep. 266, 277.
FN10 Ibid. See also the Court=s remarks at ibid. in reference to the Ainconsistency in the rapid
succession of conventions on asylum@—implying that if consistent they would have been
relevant as a source of law.
FN11 Extradition Case (Germany and Czechoslovakia), [1919-22] Ann. Dig. 259 (No. 182); In
re Fernando Benet, [1925-26] Ann. Dig. 301 (No. 225); In re Tsiaras, [1929-30] Ann. Dig. 276
(No. 173); In re Placido Martinez Areal, [1929-30] Ann. Dig. 277 (No. 174); In re Vilca,
[1931-32] Ann. Dig. 293 (No. 156).
FN12 The Wimbledon, P.C.I.J. Rep., Ser. A, No. 1, at 25 (1924).
FN13 P.C.I.J., Ser. A, No. 10 (1927).
FN14 Id. at 27.
FN15 See Lazare Kopelmanas, Custom as a Means of the Creation of International Law, 18
29

BYIL 127, 136-37 (1937); Manley O. Hudson, The Law Applicable by the Permanent Court of
International Justice, in HARVARD LEGAL ESSAYS 133, 149 (1934). In Chrichton v. Samos
Navig. Co., [1925-26] Ann. Dig. 3 (No. 1), the Mixed Court of Appeal in Egypt held that an
international convention to regulate salvage on the high seas was applicable to Egypt which had
not expressly adhered to the treaty.
FN16 See Laylin, Indus River System—Comments, [1960] PROCEEDINGS AM. SOC=Y. INT=L. L.
144. In HERBERT W. BRIGGS, THE LAW OF NATIONS 274 (1952) the rule of absolute sovereign
control is stated. But Professor Briggs has indicated to me that this will be modified in the next
edition.
FN17 Dr. C. Wilfred Jenks has pleaded for a greater study of law-making treaties Ain
transforming the scope and content of international law . . . .@ C. Wilfred Jenks, The Conflict of
Law-Making Treaties, 30 B.Y.I.L., 401, 402 (1953).
FN18 Proof of such practice should not be strictly required. There is a very strong presumption
that if nations sign a treaty, they intend to implement it and may be taken to have done so. It
would be very difficult to find evidence of practice in accordance with treaty provisions since
such practice, being required or privileged by law, would not normally be recorded.
FN19 It is clear that the International Court of Justice may apply treaties as precedents for
nonsignatories, as it in fact did in Nottebohm. It may apply Article 38(1)(b) of the Statute of the
International Court of Justice which because of its loose wording may as easily admit of treaties
as precedents for Ainternational custom@ as it admits of the decisions of municipal courts as
contended by Hersch Lauterpacht, Decisions of Municipal Courts as a Source of International
Law, 10 BYIL 65 (1929). Or it may simply apply international law, which Hudson has shown
the nature of the Court compels it to do, despite the seemly restrictive wording of Article 38.
Manley O. Hudson, The Law Applicable by the Permanent Court of International Justice, in
HARVARD LEGAL ESSAYS 133-34 (1934). Alf Ross has demonstrated that no statement of
sources of the law can be exhaustive, for Athe doctrine of the sources can never rest on precepts
contained in one among the legal sources the existence of which the doctrine itself was meant to
prove.@ ALF ROSS, A TEXTBOOK OF INTERNATIONAL LAW 83 (1947).
FN20 W.E. HALL, INTERNATIONAL LAW 7 (8th ed. Higgins 1924). The writers included Calvo,
Ortolan, Hautefeuille, Despagnet, and Bluntschli. TORSTEN GIHL, INTERNATIONAL LEGISLATION
54 n.2 (1937). See also PAUL PRADIER-FODERE, DROIT INTERNATIONAL PUBLIC (1885); PAUL
FAUCHILLE, TRAITE DE DROIT INTERNATIONAL PUBLIC (1922).
FN21 W.E. HALL, INTERNATIONAL LAW 8 (8th ed. Higgins 1924).
FN22 C. Wilfred Jenks, State Succession in Respect of Law-Making Treaties, 29 BYIL 105, 138
(1952).
FN23 1 HYDE, INTERNATIONAL LAW 604 (2d ed. 1947). See also Note, National Sovereignty of
30

Outer Space, 74 HARV. L. REV. 1154, 1163-65 (1961).
FN24 There are also wide areas of the law where customary rules are so broad as to be useless in
the solution of particular cases. For example, there is a lack of customary law in the case of
diplomatic envoys in regard to the extent of diplomatic immunities, the immunities of the subject
of the receiving state, the immunities of person combining diplomatic and consular functions,
immunities in respect of movable and immovable property, immunities in actions brought in
connection with non-diplomatic activities (e.g., commercial) of the envoy, the aspects of express
and implied renunciation of immunity, and matters relating to execution, set off, counterclaim,
etc. These have been pointed out by Hersch Lauterpacht, Decisions of Municipal Courts as a
Source of International Law, 10 BYIL 65, 87-88 (1929). If a treaty to which the diplomat=s state
and the receiving state have signed is silent on any of these points, it is likely that a court would
have resort in part to other treaties between different states in order to find some precedent for
deciding the issue. Hyde has pointed out that as a practical matter conventional rules have
influenced non-signatories and acted to modify Athe customary right of jurisdiction which a State
may have been supposed to possess in relation to such [consular] officers.@ 1 HYDE,
INTERNATIONAL LAW 142 (2d. ed. 1947).
FN25 Treaties do not impose any burden, nor confer any benefit, upon third parties.
FN26 See 1 CARLOS CALVO, LE DROIT INTERNATIONAl 136 (3d ed. 1880); Lazare Kopelmanas,
Custom as a Means of the Creation of International Law, 18 BYIL 127, 136-38 (1937);
SØRENSEN, LES SOURCES DU DROIT INTERNATIONAL 95-98 (1946).
FN27 C. Wilfred Jenks, State Succession in Respect of Law-Making Treaties, 29 BYIL 105, 108
(1952).
FN28 P.E. Corbett, The Consent of States and the Sources of the Law of Nations, 6 BYIL 20, 27
n.2 (1925). In the Nuernberg judgment, it was held that the rules of land warfare in the Hague
Convention of 1907 Awere recognized by all civilized nations@ by 1939 “and were regarded as
being declaratory of the laws and customs of war . . . .@ Office of US Chief of Counsel for
Prosecution of Axis Criminality, Nazi Conspiracy and Aggression: Opinion and Judgment 83
(1947).
FN29 Georg Schwarzenberger, The Inductive Approach to International Law, 60 HARV. L. REV.
539, 563 (1946).
FN30 P.E. Corbett, The Consent of States and Sources of the Law of Nations, 6 BYIL 20, 24
(1925).
FN31 1 PAUL PRADIER-FODERE, DROIT INTERNATIONAL PUBLIC 85 (1885); cf. 1 CARLOS CALVO,
LE DROIT INTERNATIONAL 136 (3d ed. 1880).
FN32 1 PAUL FAUCHILLE, TRAITE DE DROIT INTERNATIONAL PUBLIC 45-46 (1922). A further
31

example of a lack of reference to temporal process of Apassage@ occurs in the Muscat Dhows
(France v. Great Britain) case, in Scott, Hague Court Reports 95 (Perm. Ct. Arb. 1916), where it
was held that principles in capitulation treaties contained the general law on the point. Cf. The
Paquete Habana, 175 US 677 (1899); Frederick Pollock, The Sources of International Law, 2
COLUM. L. REV. 511, 512 (1902).
FN33 P.C.I.J., Ser. A, No. 1, at 25-28 (1923).
FN34 P.C.I.J., Ser. A, No. 2, at 35 (1924).
FN35 SØRENSEN, LES SOURCES DU DROIT INTERNATIONAL 98 (1946).
FN36 Alf Ross has noted that to refer the binding force of multilateral conventions on nonparties
Ato a later formulation of customary law will often be illusory.@ ALF ROSS, A TEXTBOOK OF
INTERNATIONAL LAW 84 (1947).
FN37 LASSA OPPENHEIM, INTERNATIONAL LAW 28 (8th ed. Hersch Lauterpacht 1955); see, e.g.,
Josef Kunz, The Nature of Customary International Law, 47 AJIL 662, 665 (1953).
FN38 PHILIP C. JESSUP, A MODERN LAW OF NATIONS 125 (1948).
FN39 Georg Schwarzenberger, THE MOST-FAVORED-NATION STANDARD IN BRITISH STATE

PRACTICE, 22 BYIL 96, 117 (1945).
FN40 Id. at 119-20.
FN41 See GEORGE FINCH, THE SOURCES OF MODERN INTERNATIONAL LAW 56 (1937); Felice
Morgenstern, "Extra-Territorial" Asylum, 25 BYIL 236 (1948).
FN42 See Extradition Case (Germany v. Czechoslovakia), [1919-22] Ann. Dig. 259 (No. 182);
In re Fernando Benet, [1925-26] Ann. Dig. 301 (No. 225); In re Tsiaras, [1929-30] Ann. Dig.
276 (No. 173); In re Placido Martinez Areal, [1929-30] Ann. Dig. 277 (No. 174); In re Vilca,
[1931-32] Ann. Dig. 293 (No. 156).
FN43 2 HYDE, INTERNATIONAL LAW 1014 (2d ed. 1947). See also GEORGE FINCH, THE SOURCES
OF MODERN INTERNATIONAL LAW 57 (1937).
FN44 Felice Morgenstern, The Right of Asylum, 26 BYIL 327, 329 (1949).
FN45 PHILIP C. JESSUP, A MODERN LAW OF NATIONS 123 (1948); see Denys P. Myers, The
Names and Scope of Treaties, 51 AJIL 574 (1959).
FN46 See P.E. Corbett, The Consent of States and the Sources of the Law of Nations, 6 BYIL 20,
22-27 (1925); TORSTEN GIHL, INTERNATIONAL LEGISLATION 1 (1937); SØRENSEN, LES SOURCES
32

DU DROIT INTERNATIONAL 13-27 (1946).
FN47 HERBERT W. BRIGGS, THE LAW OF NATIONS 44 (2d ed. 1952).
FN48 Id. at 43. Alf Ross in part expresses the meaning of Asources@ as Athe general factors
(motive components) that determine the concrete content of law in international judicial
decisions.@ ALF ROSS, A TEXTBOOK OF INTERNATIONAL LAW 83 (1947).
FN49 HERBERT W. BRIGGS, THE LAW OF NATIONS 45 (2d ed. 1952); LASSA OPPENHEIM,
INTERNATIONAL LAW 27 (8th ed. Hersch Lauterpacht 1955).
FN50 Some writers go even further, stating that it is inaccurate to say that treaties set up
"particular" law since the only rule of international law involved therein is that treaties bind the
signatories, not that a rule within a treaty is itself a "rule" of international law. See, e.g., P.E.
Corbett, The Consent of States and the Sources of the Law of Nations, 6 BYIL 20, 27-29 (1925).
FN51 W.E. HALL, INTERNATIONAL LAW 7-8 (8th ed. Higgins 1924).
FN52 Hersch Lauterpacht, Decisions of Municipal Courts as a Source of International Law, 10

BYIL 65, 81-82 (1929).
FN53 See, e.g., Gerald Fitzmaurice, Some Problems Regarding the Formal Sources of
International Law, in SYMBOLAE VERZIJL 153, 154-57 (1958), stating without reasons that
treaties are no more a source of law than contracts are in private law.
FN54 See Arnold McNair, Functions and Differing Legal Character of Treaties, 11 BYIL 100,
103-04 (1930).
FN55 Arnold McNair, So-Called State Servitude, 6 BYIL 111, 122 (1925).
FN56 C. Wilfred Jenks, The Conflict of Law-Making Treaties, 30 BYIL 401, 406 (1953).
FN57 BERGBOHM, STAATSVERTRAEGE UND GESETZE ALS QUELLON DES VOELKERRECHTS 79

(1877).
FN58 HEINRICH TRIEPEL, VOLKERRECHT AND LANDESRECHT 53 (1889).
FN59 See ADOLF HEILBORN, GRUNDBEGRIFFE DES VOELKERRECHTS 40 (1912).
FN60 These are more familiarly denoted as Vertrag (contract type) and Vereinbarung
(legislative type). See Arnold McNair, The Functions and Differing Legal Character of Treaties,
11 BYIL 100, 105-06 (1930); HERSCH LAUTERPACHT, PRIVATE LAW SOURCES AND ANALOGIES
OF INTERNATIONAL LAW sec. 70 (1927).
33

FN61 See, e.g., J.G. Starke, Treaties as a "Source" of International Law, 23 BYIL 341 (1946);
Werner Levi, Law-Making Treaties, 28 MINN. L. REV. 247, 250-54 (1944).
FN62 A slight exception is Levi, supra note 61.
FN63 LASSA OPPENHEIM, INTERNATIONAL LAW 28 (8th ed. Hersch Lauterpacht 1955).
FN64 JAMES BRIERLY, THE LAW OF NATIONS 59 (5th ed. 1955).
FN65 Arnold McNair, supra, note 60, at 114-16.
FN66 PHILIP C. JESSUP, A MODERN LAW OF NATIONS 123-24 (1948).
FN67 See DANIEL O=CONNELL, THE LAW OF STATE SUCCESSION (1956).
FN68 See Arnold McNair, supra note 60, at 101-05.
FN69 GEORGES SCELLE, LE PACTE DES NATIONS ET SA LIAISON AVEC LE TRAITE DE PAIX 49
(1919).
FN70 See, e.g., Starke, supra note 61; McNair, supra note 60.
FN71 FULLER, THE FORMS AND LIMITATIONS OF ADJUDICATION 4 (limited publication 1959).
FN72 Id. at 5.
FN73 TORSTEN GIHL, INTERNATIONAL LEGISLATION 12 (1937).
FN74 See Werner Levi, supra note 61, at 250-51.
FN75 Infra, at 39-40.
FN76 See CAVAGLIERI, CORSO DI DIRITTO INTERNAZIONALE 56-62 (3rd ed. 1934); Strupp, Les
Regles Generales du droit de la paix, in 47 RECUEIL DES COURS 263, 301-12 (1934); 1 DIONISIO
ANZILOTTI, COURS DU DROIT INTERNATIONAL 73-76 (1929). Strupp says that international rules
taken as a whole form a treaty in the large sense, composed of formal treaties and tacit treaties.
Strupp, supra at 298-301; see SØRENSEN, LES SOURCES DU DROIT INTERNATIONAL 17 (1946).
FN77 Hugo Grotius, DE JURE BELLI AC PACIS, PROLEGOMENA, secs. 1, 17 (1646); EMMERICH DE
VATTEL, LE DROIT DES GENS sec. 25 (1758); James Madison, Examination of the British
Doctrine (1806), in 2 LETTERS AND OTHER WRITINGS OF JAMES MADISON 229, 262 n.*(1867)
(references to Bynkershoek). See also STRUPP, ELEMENTS DU DROIT INTERNATIONAL PUBLIC
(1927); THOMAS LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 95 (7th ed. 1915); 1 JOHN
WESTLAKE, INTERNATIONAL LAW 14 (1904); AMOS HERSHEY, THE ESSENTIALS OF
34

INTERNATIONAL PUBLIC LAW 19-20 (1921; Corbett, The Consent of States and the Sources of the
Law of Nations, 6 BYIL 20, 25 (1925).
FN78 Hersch Lauterpacht, Decisions of Municipal Courts as a Source of International Law, 10

BYIL 65, 83 (19-29).
FN79 Josef Kunz, The Nature of Customary International Law, 47 AJIL 662, 664 (1953).
FN80 JAMES BRIERLY, THE LAW OF NATIONS 52 (5th ed. 1955).
FN 81 Id. at 53.
FN82 This indeed Triepel=s view of customary law—that it becomes particular law applying
only to the tacitly agreeing states. TRIEPEL, VOLKERRECHT UND LANDESRECHT (1899). It is this
type of extreme view for which most writers blame the positivists.
FN83 Brierly, Kelsen, and Gihl have made the same unwarranted extension of the idea of tacit
treaty to new states or one which has had no opportunity to agree tacitly to a practice—as a
nation which has just been given an outlet to the sea and is deemed subject to the international
rules regarding the seas. See James Brierly, supra note 80, at 53; HANS KELSEN, PRINCIPLES OF
INTERNATIONAL LAW 312 (1952); TORSTEN GIHL, INTERNATIONAL LEGISLATION 13 (1937).
These writers assert that new nations (old nations in new circumstances) could not possibly have
consented, expressly or tacitly, to the long-developed customary practice. But here again the
same error has been made and the same answer applies. Whatever the reasons for a nation=s
submission to international law, the tacit treaty theory simply points out that consent is at the
root of the original formation of customary law, and that law, once formed, may be applied to
nations previously entirely uninvolved.
One writer has argued that some law-making treaties must have a direct effect on new states;
he is impatient with the long process of these treaties becoming Aabsorbed@ into customary
international law. C. Wilfred Jenks, State Succession in Respect of Law-Making Treaties, 29
BYIL 105, 107-08, 142 (1952).
FN84 Indeed, there is nothing strange about one nation acting as a representative for later
nations in consenting to practice. The same is very much the basis of the power of judicial
decisions—the parties to a case present arguments that are presumably more or less
representative of the views of all states, and the decision rendered becomes a precedent for all
nations.
FN85 I.C. MacGibbon, Customary International Law and Acquiescence, 33 BYIL 115 (1957).
FN86 MacGibbon devotes considerable space to the law of prescription, which is excluded from
the scope of the present paper because of the specificity of effect of such law.
FN87 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951-
35

54: General Principles and Source of Law, 30 BYIL 1, 68 (1953).
FN88 Writers have disagreed whether it is, in fact, the basic norm. However there seems to be
little else it can be called and little that can be accomplished without it. It is a moral and a legal
norm. Oppenheim and others have called it a rule of customary international law, implying that
customary law is on a higher plane than treaty law. See TORSTEN GIHL, INTERNATIONAL
LEGISLATION 14 (1937); DIONISIO ANZILOTTI, COURS DE DROIT INTERNATIONAL 44 (1929). But
cf. J. Walter Jones, The "Pure" Theory of International Law, 16 BYIL 5, 10 (1935). This
approach is erroneous both logically and historically. Treaties were among the first international
acts; states would give assurances to diplomatic envoys of other states. See GEORG
SCHWARZENBERGER, INTERNATIONAL LAW 24 (4th ed. 1960). Logically it would be
contradictory if a different rule could replace pacta sunt servanda, which is an idea implied
saying that it is a mere rule of customary law. Pacta non sunt servanda would frustrate all
international law based upon consent. Nations would not bother to promise anything since such
promises would have no force. Thus nothing would be accomplished and the capacity to enter
into agreements would be lost. It is hard to see how such a logically unimaginable result could
ever be formed through the ordinary processes of customary law, much less the process of treaty
law-making, since the latter would make the rule inconsistent on its face—i.e., AI promise not to
obey any more promises.@ Hobbes showed that agreement or contract is the primary means
whereby man can extricate himself from the warlike state of nature. If the agreements are not
kept, there is a return to war. International life would be impossible without the binding force of
promises underlying tacit consent as well as constituting express consent.
FN89 It shall later be considered what happens when A=s action is consciously in derogation of
existing law. See infra, p. 30. When A does so act, can we readily infer consent from A=s act that
other nations may also break the law?
FN90 An unratified treaty, if nevertheless implemented for some reason or other by the
formulating states, would similarly have the element of underlying custom. There would be a
question, though, whether the unratified treaty might indicate consent or the absence of consent.
FN91 James Madison, Examination of the British Doctrine (1806), in 2 LETTERS AND OTHER
WRITINGS OF JAMES MADISON 262 (1867). Compare P.E. Corbett, The Consent of States and the
Sources of the Law of Nations, 6 BYIL 20, 25 (1925): ACustom proves the achievement of
general consent. Treaties, considered as agreements, are acts of consent; considered as
documents, they are records or evidence of consent.@
FN92 LASSA OPPENHEIM, INTERNATIONAL LAW 22 (8th ed. Hersch Lauterpacht 1955).
FN93 Cf. SØRENSEN, LES SOURCES DU DROIT INTERNATIONAL 100-01 (1946).
FN94 I.C. MacGibbon, supra note 85, at 126. The more usual, though strictly speaking
inaccurate, way to interpret opinio juris is to conceive of it in terms of a right or an obligation to
act in conformity with international law. See Lassa Oppenheim, supra note 92, at 22.
36

FN95 Josef Kunz has noted the problem of the original formulation of a norm of customary law.
When there is no prior law on a point, Athe very coming into existence of such norm would pre-
suppose that the states acted in legal error.@ Josef Kunz, The Nature of Customary International
Law, 47 AJIL 662, 667 (1953). But after criticizing the Kelsen and Verdross explanations, Kunz
concludes that it is Aa challenging theoretical problem which, as far as this writer can see, has not
yet found a satisfactory solution.@ Ibid. I submit that the opinio juris approach here is a blind
alley; attention rather should be focused on tacit consent and a presumption that such consent is
given if the act is of an international character.
FN96 Apart from the individual opinion of Judge Negulesco in the Advisory Opinion concerning
European Commission of the Danube, P.C.I.J., Ser. B, No. 14 (1927), the only emphasis of
psychological element of custom by the International Court has been in the Lotus case.
SØRENSEN, LES SOURCES DU DROIT INTERNATIONAL 109-10 (1946).
FN97 Manley O. Hudson has used the phrase Aa type of situation falling within the domain of
international relations@ in an otherwise restrictive view of the elements necessary to establish a
rule of customary international law. See UN Doc. A/CN, 4/16 (1950), at 5.
FN98 In the Justice trial at Nurenberg it was pointed out in an implicit adoption of a passage
from Hyde (HYDE, INTERNATIONAL LAW 9 (1945)) that a binding rule of law could become
established by Athe failure of interested States to make appropriate objections to practical
applications of it.” 3 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY
TRIBUNALS 967 (1950).
FN99 The proviso is that a treaty may Ainclude@ a matter by stating that it is within the domestic
jurisdiction of the signatories and thus subject to no international regulation by the treaty.
FN100 In 1836 Wheaton wrote that treaties have an effect on third parties if they relax the Arigor
of the primitive law of nations in their favor.@ HENRY WHEATON, THE ELEMENTS OF
INTERNATIONAL LAW 50 (1st ed. 1836). But Wheaton omitted this observation from the last
edition revised by himself (1846).
FN101 Lassa Oppenheim, supra note 92.
FN102 Georg Schwarzenberger, The Most-Favored-Nation Standard in British State Practice,

22 BYIL 96, 98 (1945).
FN103 Treaty with Mexico concerning Equitable Distribution of Waters of the Rio Grande, May
21, 1906, 34 Stat. 2953, T.S. No. 455.
FN104 21 Ops. Att=y Gen. 274 (1898).
FN105 This conclusion is documented later. See infra at 34-36.
37

FN106 Wright, Foreword to XV United Nations War Crimes Comm=n, LAW REPORTS OF TRIALS
OF WAR CRIMINALS xv (1949).
FN107 Griffin, Legal Aspects of the Use of Systems of International Waters, S. Doc. No. 18,
85th Cong., 2d Sess. 10 (1958).
FN108 HERBERT SMITH, THE ECONOMIC USES OF INTERNATIONAL RIVERS 145-146 (1931).
FN109 Griffin, supra note 107, at 9.
FN110 Treaty With Mexico, Nov. 14, 1944, 59 Stat. 1219, T.S. No. 944.
FN111 Hearings Before the Senate Committee on Foreign Relations on Treaty With Mexico
Relating to Utilization of Waters of Certain Rivers, 79th Cong., 1st Sess., pt. 5, at 1762 (1945).
FN112 Id., pt. 1, at 97-98.
FN113 Thalmann, Grundprinzipien des Modernen Zwischenstaatlichen Nachbarrechts 136

(1951).
FN114 Treaty With Great Britain Concerning Boundary Waters and Questions Arising Along
the Boundary between the United States of American and Canada, Jan. 11, 1909, 36 Stat. 2448,
T.S. No. 548.
FN115 Griffin, supra note 107, at 61.
FN116 Id. at 50.
FN117 Id. at 62.
FN118 Hearings on Senate Res. 278 Before the Subcommittee of the Senate Committee on
Foreign Relations, 62nd Cong., 2d Sess. 1006 (1911).
FN119 James Simsarian, The Diversion of Waters Affecting the United States and Canada, 32
AJIL 488, 495 (1938).
FN120 Smith, op. cit. supra note 108, at 147.
FN121 See Government of Pakistan, The Indus Basin Irrigation Water Dispute passim (Official
Document 1952).
FN122 Laylin, Indus River System—Comments, in [1960] Proceedings of the A.S.I.L. 144, 147.
38

FN123 Id. at 148.
FN124 Pakistan-India, Indus Waters Treaty, Sept. 19, 1960, in 55 AJIL 797-822 (1961).
FN125 Interview With Professor Roger Fisher, of Counsel to Pakistan, March 19, 1961.
FN126 Ibid.
FN127 Laylin, supra note 122, at 147 n. 18.
FN128 Thalmann, op. cit. supra note 113, at 136.
FN129 See, e.g., Second Bank-State Street Trust Co. v. Pinion, 170 N.E. 2d. 350, 353-54 (Mass.
1960).
FN130 See generally Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS 213
(1934).
FN131 Id. at 223.
FN132 Id. at 221.
FN133 Supra at 13-14.
FN134 As Professor Roger Fisher has shown, it makes much more sense to regard international
law as analogous not to municipal law as between persons, but to those areas of municipal law
where a sovereign is one of the parties in litigation. This would apply more to legislation than to
contract. Roger Fisher, Bringing Law to Bear on Governments, 74 HARV. L. REV. 1130 (1961).
FN135 Scelle has pointed out, for example, that in a court composed of several judges a majority
judgment, though based on agreement, is hardly a contract. He holds the same to be true for an
act of legislation. See Georges Scelle, Theorie Juridique de la Revision des Traites 38-45
(1931).
FN136 P.E. Corbett, The Consent of States and the Sources of the Law of Nations, 6 BYIL 20, 22
(1925).
FN137 James W. Garner, Book Review: La Coutume en Droit International, 26 AJIL 433
(1932).
FN138 JAMES BRIERLY, OUTLOOK FOR INTERNATIONAL LAW 4 (1944).
FN139 C. Wilfred Jenks, AThe Scope of International Law,@ 31 BYIL 1, 4-7 (1954).
39

FN140 James Madison, Examination of the British Doctrine (1806), in 2 LETTERS AND OTHER
WRITINGS OF JAMES MADISON 229, 263 (1867).
FN141 1 CARLOS CALVO, LE DROIT INTERNATIONAL 136 (3d ed. 1880).
FN142 1 HYDE, INTERNATIONAL LAW 10 (2d ed. 1947).
FN143 C. Wilfred Jenks, State Succession in Respect of Law-Making Treaties, 29 BYIL 105,
108, 110 (1952).
FN144 Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS 213 (1934)
40

THE YALE LAW JOURNAL
VOLUME 53 JUNE, 1944 NUMBER 3
RECOGNITION OF STATES IN
INTERNATIONAL LAW
By H. LAUTERPACHT I
I.
INTRODUCTORY
Principles of the Recognition of States. To recognize a community as

a State is to declare that it fulfills the conditions of statehood as required
by international law. If these conditions are present, existing States are
under the duty to grant recognition. In the absence of an international
organ competent to ascertain and authoritatively to declare the presence
of requirements of full international personality, States already estab-
lished fulfill that function in their capacity as organs of international
law. In thus acting they administer the law of nations. This rule of law
signifies that in granting or withholding recognition States do not claim
and are not entitled to serve exclusively the interests of their national
policy and convenience regardless of the principles of international law
in the matter. Although recognition is thus declaratory of an existing
fact, such declaration, made in the impartial fulfillment of a legal duty,
is constitutive, as between the recognizing State and the new community,
of international rights and duties associated with full statehood. Prior to
recognition such rights and obligations exist only to the extent to which
they have been expressly conceded or legitimately asserted by reference
to compelling rules of humanity and justice, either by the existing mem-
bers of international society or by the community claiming recognition.,
These principles are believed to have been accepted by the preponder-
ant practice of States. They are also considered to represent rules of con-
duct most consistent with the fundamental requirements of international
law conceived as a system of law. However, while followed in prac-
i Whewell Professor of International Law, University of Cambridge.
1. These principles underlie the author's exposition of the doctrine uf recugnitiun
in 1 OPPENHEIM, IxTERNArnoNAL LAW (5th ed. 1937) §§ 71a, 75bb, 75g-i, mid in his lec-
tures delivered at the Hague Academy of International Law in 1937, Reyles Gti:eralcs dat
droit de la Paiz (1937) 4 REcuEL DEs CouRs 95, 243-62. It is hoped to give them a
systematic form in a comprehensive work on Recognition in International Law.

THE YALE LAW JOURNAL (Vol. 53: 385
tice with some regularity, they cannot be regarded as having been uni-
formly acted upon or clearly perceived by governments. Neither have
they secured the assent of the majority of writers on the subject.
The Problem of Recognition in the Science of InternationalLaw. The

majority of writers still adhere to the view that the act of recognition as
such is not a matter governed by law, but a question of policy. They urge
that recognition is the result of a decision taken not in obedience to a
legal duty, but in pursuance of the exigencies of national interest. If this
is so, it will be asked, how is it that recognition looms so large in the writ-
ings of those very jurists who hold that it is outside the law? The answer
is that, while denying the quality of law to the act of recognition, some
of them maintain that this act of policy, once accomplished, entails legal
consequences inasmuch as it is the starting point of international per-
sonality with all the rights pertaining thereto; that, in any case, the form
and the circumstances of recognition are of legal interest and necessi-
tate the consideration of such questions as the distinction between de jure
and de facto recognition, implied recognition, and conditional recognition;
and that important questions of law arise when that act of policy consti-
tutes so-called premature recognition in disregard of the rights of exist-
ing States. But the dominant fact remains that the very commencement
of the international personality of States and their legal right to existence
are declared by these writers to be outside the orbit of international law.
This fact has been obscured by the circumstance that the problem of
recognition of States has been identified with the controversy between
the rival doctrines of the declaratory and the constitutive character of
recognition. The opposition of these two doctrines has for a long time
dominated discussion on the subject. Both theories have denied that
recognition is a matter of legal duty in relation to the community which
claims it. The constitutive theory, as commonly propounded, culminates
in two assertions. The first is that prior to recognition the community in
question possesses neither the rights nor the obligations which interna-
tional law associates with full statehood; the second is that recognition
is a matter of absolute political discretion as distinguished from a legal
duty owed to the community concerned. These two assertions, it will be
shown, are not inconsistent. The theory of the declaratory nature of
recognition fully accepts the view of its rival that there does not exist
in any circumstances a legal duty to grant recognition. At the same time,
with an obvious lack of consistency, it maintains that prior to recogni-
tion the nascent community exists as a State and is entitled to many of
the most important attributes of statehood. This means, upon analysis,
that the newcomer is entitled as a matter of legal right to claim what are
usually regarded as the normal legal consequences of recognition, but
that it is not entitled to claim recognition as such. The apparent logical

1944] RECOGNITION OF STATES
difficulty has been thought to be met by dint of the assertion--which is

contrary to the practice of governments and of courts-that the only
meaning of recognition is a political declaration of willingness to enter
into normal diplomatic relations. This questionable solution has been
regarded as preferable to accepting the main tenet of the constitutive
doctrine according to which a purely discretionary political act of recog-
nition is creative of substantive rights-indeed, of the very existence-
of statehood.
The denial of the legal nature of recognition, that is, the denial of the
existence of a duty to recognize and of a right to recognition, notwith-
standing the presence of requisite factual conditions, is grounded in the
same attitude which has brought into being the orthodox constitutive
doctrine. It is the attitude congenial to the type of positivism current in
the literature of international law. If, in conformity with positivist teach-
ing, the will of the State is the sole source of its obligations, then it is
impossible to concede that the existing States can have new duties thrust
upon them as the result of the emergence of a politically organized com-
munity which they are henceforth bound to recognize as a State.
It would have been natural for those adhering to the declaratory doc-
trine to feel no hesitation in accepting the view of recognition as a juri-
dical act performed in the fulfillment of a legal duty. For there is but one
step-which is certainly not a revolutionary one-between maintaining
that an act is merely declaratory of a fact of primary importance in the
life of a nation and treating that act as one of legal duty. However, such
is the lure of respectability, which has attached to the positivist creed, that
most of those holding the declaratory view have felt it incumbent upon
them to join the opposing doctrine in denying the legal nature of the act
of recognition and in finding in such denial the hallmark of positivist
orthodoxy.2
The Place of Recognition in the Relations of States. Concentration on

the dispute between the constitutive and the declaratory doctrines as well
as the tendency to apply positivist method also in this branch of inter-
national law have been responsible for the present unsatisfactory state
of the law of recognition. The practice of States, after allowance has
been made for discrepancies due to the political implications of the func-
tion of recognition, supplies a satisfactory basis for conceiving and pre-
senting the process of recognition in all its manifestations as an act of
2. Kunz goes to the length of maintaining that most of the adherents of the declara-
tory view are positivists. KuNz, Dm ANxaKENNUNG voN STAATrE uD REGmnUNGr=
m V5LmwxaCHT (1928) 67. This is probably an emaggeration. But there are, in fact,
some positivists who incline to the declaratory view of recognition. See, e.g.,
1 Dz Lou-
"=,LE Daorr INTERAWr0oAL PuBuc Posrrir (Fr. trans. 1920) 216; LiszTr, V6L=-
RacHr (12th ed., Fleischmann, 1925) 91; ULLMANN, V6LNEMRECUT (2d ed. 1903) 67.

THE YALE LAW JOURNAL [Vol, 53 :385
law as distinguished from policy. From that practice it is possible to

extract legal principles capable of general application. There ought to
be no doubt as to the urgency and the intrinsic justification of such
principles. For the problem of recognition touches the life of States in
its most vital aspects. It confronts it in the form of recognition of state-
hood at the point of its emergence into the international arena; it faces
the State in the form of recognition of governments at times of inter-
nal and external crises brought about by a revolutionary break in the
legal continuity of its constitutional existence; and it confronts it in the
shape of recognition of belligerency at periods of violent commotions
when on the battlefields of civil war the nation seeks a solution of violent
clashes of creed and interests. Yet, notwithstanding its obvious signifi-
cance, recognition, as taught by writers, constitutes one of the weakest
links in international law. The science of international law can no longer
avoid the task of inquiring whether this state of affairs is due to a clear
defect of international law as expressed in the practice of States or
whether it is attributable to the failure of lawyers to analyze construc-
tively the practice of States by reference to a jurisprudential principle
of order as distinguished from amorphous maxims of policy. An inquiry
of this nature is of special urgency at a time when the foundations are
being laid of an improved international order.
There is an instructive analogy in this matter between recognition and
the place of war in international law. Thus, prior to the General Treaty
for the Renunciation of War of 1928, the admissibility of war as an
instrument both for enforcing and for changing the law constituted the
principal defect of the law of nations. In time of peace States were rig-
idly bound to respect the existence, the independence, and even the dig-
nity of other members of international society. Recourse to reprisals
was regulated by principles circumscribing the conditions and the extent
of their application. But by availing itself of its unlimited right to
declare war the State could gain entire freedom from these restraints
and acquire the right to treat its neighbor thus attacked as a veritable
caput lupinum to the point of legally permissible annihilation through
conquest and annexation. The legal admissibility of war showed how
unreal was the borderline between law and lawlessness, between the duty
to let live and the right to extinguish. It showed that law obtained only
so long as States were willing to tolerate it and that it was left to them
to divest themselves of the most fundamental of all duties by one legally
authorized arbitrary act.
This glaring gap in the effective validity of international law has been
chosen here as an example not only for the reason that it constitutes a
weakness much more real than the absence of enforcement or of over-
riding international legislation. It has been selected because it throws
light upon a phenomenon similar to that created by the law of recogni-

tion-assuming always that the prevalent doctrine gives an accurate

account of the existing practice. The State is bound by minute rules
to respect the sovereignty and independence of other States. But, as in
the traditional view of war the State is left to its free discretion by avail-
ing itself of the unlimited right of war to assail the very existence of other
States, so, in the light of the predominant doctrine of recognition, it is free
to decide according to its unfettered discretion and by consulting its
own interests only whether another community shall enjoy the rights of
sovereignty and independence inherent in statehood. By the simple de-
vice of refusing--or possibly of withdrawing--recognition, a State is
legally entitled, according to a widely adopted view, to deny the right of
independent existence to a political community apparently fulfilling the
conditions of statehood.
The position is analogous in the case of recognition of governments.
A State participates in the benefits of international law largely through
the medium of its government. To decline to recognize the government
of a State is to refuse, to a substantial extent, to recognize the State itself
and to accord it what is its due in the international sphere. Such a re-
fusal implies the denial of normal international intercourse; it results in
ignoring the legislative, judicial, and administrative acts of the State
whose government has been refused recognition; it entails in many cases
the suspension of the operation of treaties concluded by former govern-
ments; and it has even been suggested that it deprives the government
in question of the capacity to wage war.3 In the case of a civil war the
consequences of that alleged right to grant or refuse recognition accord-
ing to discretion show themselves in an even more glaring manner. A
right thus conceived may, in effect, amount to granting to foreign States
a license to withdraw recognition from the lawful government and to
bestow it arbitrarily upon the rebels, with all the profound consequences
following from that change in the legal status of the two sides. 4 To say,
3. "In view of the fact that the Government of the United States has not recognized
the existence in the Republic of Costa Rica of a de jure or even a legitimately de facto
Government, but holds that only the people of Costa Rica can as a moral force set up in
that country a government constitutional in character and duly sanctioned by law, it fol-
lows naturally that the Government of the United States could not recognize as legally
existent any manifestation of such a Government.
"To declare war is one of the highest acts of sovereignty. The Government of Costa
Rica being for the Government of the United States legally nonexistent, it follows that
so far as the Government of the United States is concerned, no state of war could exist
between Costa Rica and the Imperial German Government. Obviously there could be no
question so far as this Government was concerned as to signing with Costa Rica the
Treaty of Peace of Versailles." Memo of Secretary Lansing to President Wilson, Aug.
16, 1919, 1 Fop- RE.. U. S. 1919 (U. S. Dep't State 1934) 852.
4. See, for instance, the recognition of the revolutionary government in Spain by
Italy and Germany in November, 1936, at the beginning of the civil war. New York
Times, Nov. 19, 1936, p. 1, col. .

THE YALE LAW JOURNAL [Vol. 53: 385
therefore, that the granting of recognition to a new government is a mat-

ter of discretion unfettered by legal principle is to maintain that in this
matter also the line dividing law and freedom from legal restraint is
altogether illusory. Similar consequences in a different sphere follow
from the view that in the case of a civil war the recognition of belliger-
ency with all the rights attaching thereto is a matter of pure grace and
political convenience on the part of foreign States.
In all these cases the view that recognition is not a function consisting
in the fulfillment of an international duty, but a measure of national
policy independent of binding legal principle, has had the further result
of divorcing recognition from the scientific basis of fact on which all
law must ultimately rest. That basis is the assumption that international
personality, governmental capacity, and the competence to exercise the
rights of a belligerent in a civil war, must all be determined primarily
by reference to the actual conditions of power and effectiveness of the
authorities claiming recognition in these various capacities. Law must
be based on facts-insofar as such facts are not in themselves contrary
to law. Successful secession from the parent State is a fact which is not
contrary to international law; the same applies to a rebellion resulting in
a revolutionary government or in a civil war. This being so, these
events are facts which, if law is to approximate to social reality, must
through the medium of the legally obligatory act of recognition be per-
mitted to produce the appropriate legal results.
II.
THE LEGAL NATURE OF RECOGNITION AND
THE PRACTICE OF STATES
The Legal Conception of Recognition and the Notion of Premature
Recognition. The principal feature of the prevalent doctrine of recogni-
tion of States is the assertion that recognition is in its essential aspect,
namely, in relation to the community claiming it, an act of policy as
distinguished from the fulfillment of a legal duty. It is possible to criti-
cize that view by reference to compelling legal principle, which forbids
us to admit that a legal system either fails to determine what are the
requirements of legal personality or, what is the same, that it lays down
that legal personality shall be the gift of the already existing members
of the community acting by exclusive reference to their own interests,
to the passing whim of their sympathies, or to considerations of oppor-
tunism. We are not at liberty to assume without overwhelming proof
the existence of a gap so detrimental to the reality of the international
legal order.
It is proper to test the political view of recognition by the professed
standard of most of its adherents, namely, the practice of States. Does

19441 RECOGNITION OF STATES
the practice of States suggest that the granting or refusal of recogni-

tion is a matter of political expediency and not of binding legal princi-
ple? Do States in this matter profess allegiance-and it is their disclosed
profession that is of juridical interest, not surmised political motive
and interest behind it-to a compelling rule of law or do they act as if
they were free to do as suits their political convenience? In particular, is
there any aspect of recognition of States which by general consent is
regarded as being governed by rules of law as distinguished from policy,
and if so, what is its relevance to the question of the nature of the act
of recognition, namely, to the problem of the right to be recognized and
of the duty to recognize?
There is no doubt that at least one aspect of the matter is by general
agreement governed by international law, namely, what may be called
the tortious or delictual aspect of recognition. It is contrary to interna-
tional law to grant premature recognition. Communities claiming politi-
cal independence arise as a rule by secession from the parent State. It
is generally agreed that in relation to the parent State recognition is gov-
erned by a duty of restraint the disregard of which entails responsibility
on the part of the recognizing State. It is almost exclusively from this
point of view that recognition of States has been discussed in the litera-
ture of international law and in diplomatic correspondence. The question
whether France committed a breach of international law by her early
recognition of the United States in 1778; the protracted controversy
concerning the Spanish protests against the recognition of the Latin-
American Republics by the United States and Great Britain; the demand
of the Confederate States for recognition during the American Civil
War, a demand which was discussed mainly not from the point of view
of the right of the Confederacy to recognition, but by reference to the
propriety of such a step in relation to the United States; the recognition
of Panama by the United States in 1903, which has been debated from
the same point of view-all these incidents have occupied international
lawyers as questions of premature recognition. It is generally agreed
that premature recognition is more than an unfriendly act; it is an act
of intervention and an international delinquency.' The community claim-
ing recognition must fulfill certain conditions of permanency and politi-
cal cohesion; in particular, the parent State must in fact have ceased to
5. There is practically unanimity among international lawyers about this aspect of
the law. But see for a clear assertion to the contrary, Auzurrz, Co. so DXDzuuro I:-
TER AzioNALE (1923) 93: "11 riconoscimento non L legato a particolari condizioni o
presupposti . . . il diritto internazionale non conosce casi di riconoscimento lecito o ille-
cito, vietato o imposto; le considerazioni sulla tempestivitA del riconoscimento . . . sem-
brano di natura politica pii che giuridica." This ex'treme positivist assertion, which is
contrary to frequent pronouncements of governments, is a consistent application of the
doctrine that the grant or refusal of recognition is the result of a political decision in all
circumstances.

THE YALE LAW JOURNAL [Vol. 53 : 385
make efforts promising success to reassert its authority. Recognition is

unlawful if granted durante bello, when the outcome of the struggle is
altogether uncertain. Such recognition is a denial of the sovereignty of
the parent State. It has not the excuse of being dictated by the necessities
of intercourse, for international law, notwithstanding the vagaries and
the artificialities of the doctrine of implied recognition, permits various
forms of intercourse short of recognition of a government or a new
State. International law does not condemn rebellion or secession aiming
at acquisition of independence. At the same time, save for collective
measures of permissible intervention for the sake of humanity or general
international settlement, as in the case of the recognition of Greek inde-
pendence in 1827 or Belgian independence in 1831, it forbids third States
to favor insurrection by recognizing its statehood before it has succeeded
in establishing itself beyond a doubt. This principle was clearly expressed
by a distinguished Secretary of State of the United States as early as
1823, at a time when inclination and policy might have counseled a less
restrained course: "So long as a contest of arms, with a rational or
even remote prospect of eventual success, was maintained by Spain, the
United States could not recognise the independence of the colonies as
existing de facto without trespassing on their duties to Spain by assum-
ing as decided that which was precisely the question of the war." 0
Premature recognition is a wrong not only because, in denying the
sovereignty of the parent State actively engaged in asserting its author-
ity, it amounts to unlawful intervention.' It is a wrong because it con-
stitutes an abuse of the power of recognition. It acknowledges as an
independent State a community which is not, in law, independent and
which does not therefore fulfill the essential conditions of statehood. It
is therefore a recognition which an international tribunal would declare
not only to constitute a wrong,8 but probably also to be in itself invalid.
6. Instruction of Mr. Adams to Mr. Anderson, United States Minister to Colombia,
May 27, 1823. 1 MANNING, DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES CON-
CERNING INDEPENDENCE OF THE LATIN-A-uEmCAN NATIONS (1925) 194.
7. On occasion, premature recognition has been described as an unfriendly act. See,
e.g., President Jackson's Message with respect to Texas, Dec. 21, 1836, 1 MooRE, INTERNA-
TIoNAL LAw DIGEST (1906) 98 (hereinafter cited as MoORE, INTERNATIONAL LAW). See
also 1 FEnozzI ND ROMANo, TRAT'TATo D DnuTTo INTERNAZIONALE (1933) 193: "Tanto
un riconoscimento tardato, quanto d'altro lato un riconscimento prematuro, possono esserre
considerati come atti non amichevoli." Actually, such recognition is an illegal, as distin-
guished from an unfriendly act. It will be noticed that Fedozzi refers in this connection
also to tardy recognition. Professor Borchard states in Recognition&and Non-Recogni-
tion (1942) 36 Am. J. INT. LA w 108, 110, that it is true that since, as Kelsen correctly says,
premature recognition is unlawful, the same would apply also to tardy, delayed recognition.
See pages 450, 454-55 infra.
8. Moore, for example, regards the recognition of the United States by France in
1778 as an act of intervention. 1 MooRE, INTFRNATIONAL LAW, 73. And see id. at 110, as
to the Joint Resolution of Congress, approved April 20, 1898, declaring the people of Cuba
to be free and independent.

Tests of Premature Recognition. Whether recognition is premature

is a question of fact. The practice of States is not devoid of useful guid-
ance in the matter. Thus mere protests and assertions of sovereignty
unaccompanied by attempts to restore the challenged authority can safely
be and have been disregarded. Apart from temporary and futile attempts
to introduce the principle of legitimacy, formal renunciation of sover-
eignty by the parent State has never been regarded as a condition of the
lawfulness of recognition. 9 For parent States are naturally slow in
acknowledging the independence of revolted provinces. They often an-
nounce with pathetic finality that no such acknowledgment will ever be
forthcoming.' 0 The Netherlands declared their independence of Spain
in 1576. Twenty years later that independence was recognized by Great
Britain and France. But the Spanish renunciation of her sovereignty
did not take place until the Treaty of Miinster of 1648. Portugal, which
became separated from Spain in 1640, was recognized by her in 1668.
Belgium, whose independence was recognized by the European Powers
in 1831,1" was not recognized by the mother country until 1839. The
independence of Mexico and other Latin-American States was recog-
nized by the United States in 1822 and by Great Britain soon after, but
the mother country did not recognize Mexico until 1836. The indepen-
dence of Panama was recognized by most States within a year of her
secession from Colombia in 1903. But when Colombia joined the League
of Nations in 1920, she recorded the fact that her acceptance of Article
10 of the Covenant did not imply the recognition of the independence
of the Republic of Panama.1
9. For a clear statement to the effect that third States can validly recognize the
new State before the mother country has given its recognition, see Deutsche Continental
Gas-Gesellschaft v. Polish State, German-Polish Mixed Arbitral Tribunal, Aug. 1, 1929,
reported in ANNUAL DIGEST OF PUBLIC INTERNATIONAL LAw CAsES 1929-193D, Case No.
5.
10. This may on occasion be an imprudent announcement, since it supplies third States
with an excellent reason for disregarding altogether the attitude of the parent State:
"For this [Spanish] declaration plainly shows, that the complaint against us, is not merely
as to the mode, or the time of our advances towards those States; it shows that the dis-
pute between us and Spain is not merely as to the question of fact . . . it shows that no
extent or forbearance on our part would have satisfied Spain . . . if the argument on
which this declaration is founded be true, it is eternal:' Canni~g's note to the Spanish
Minister in London, March 25, 1825, 12 BR. AND FoR. STATE PAPERs (1825) 909, 914-15.
11. De Louter, a Dutch author, describes this recognition as premature in the follow-
ing words: ". . . sans meme attendre que la Holland pft reconnaitre le nouvel dtat de
choses, renoncer formellement ;ison opposition ou s'avouer incapable d'touffer l'insur-
rection." DE LouTv_, op. cit. mstra note 2, at 222. In this case, probably the very fact
that the recognition took place through a collective act of the Powers in a manner indica-
tive of an international settlement raises the presumption that the recognition was not
premature.
12. 1 FoR. RE_. U. S. 1920 (U. S. Dep't State 1936) 825.

On the other hand, the initial success of the rebellion, even if appar-
ently complete, does not establish the independence of the insurgent com-
munity in a manner to make recognition permissible. The shifting for-
tunes of the war of independence of the South American Republics
afford a good example of the danger of drawing too hasty conclusions
from apparently well-established facts."3 Similarly, occasions may arise
when the mother country because of revolutionary commotions or simi-
lar reasons is temporarily prostrate and not in a position to assert her
authority. This was the case, for instance, with the various States which
arose in 1917 and 1918 within the territory of Russia. The United States
and, to some extent, Great Britain refused for a long time recognition
de jure to Estonia, Latvia, and Finland on the ground that the prospect
of a united Russia, then in the throes of revolutionary convulsions, was
not altogether outside the range of possibilities. 4 This very hesitation,
13. The Chilean revolution broke out in 1810. It was suppressed by the Spanish troops
in 1814. Not until 1817 did the insurgents gain a decisive victory.
14. It appears from the records that as late as October, 1920, Great Britain consid-
ered the possibility of a reconstituted and unified Russia as a reason for delaying the
recognition de jure of the Baltic States. It was felt in some quarters that if de jiurc
recognition were granted to the Baltic provinces, their request for admission to the League
of Nations could not be refused and that as a result, members of the League might in
consequence of Article 10 of the Covenant come into conflict with a reconstituted Russia.
The attitude of the United States in the matter was officially stated on a number of occa-
sions. The full independence de jure of Estonia, Latvia, and Lithuania was announced
by the United States on July 28, 1922, in the following terms: "The Governments of Es-
thonia, Latvia and Lithuania have been recognized either de jure or de facto by the prin-
cipal Governments of Europe and have entered into treaty relations with their neighbours.
"In extending to them recognition on its part, the Government of the United States
takes cognizance of the actual existence of these Governments during a considerable pe-
riod of time and of the successful maintenance within their borders of political and eco-
nomic stability.
"The United States has consistently maintained that the disturbed conditions of Rus-
sian affairs may not be made the occasion for the alienation of Russian territory, and
this principle is not deemed to be infringed by the recognition at this time of the Govern-
ments of Esthonia, Latvia and Lithuania which have been set up and maintained by an
indigenous population." 2 Fo. REL. U. S. 1922 (U. S. Dep't State 1938) 873-74. On the
original attitude of the United States with regard to the recognition of Lithuania and
other Baltic States, see 3 Fop- REL. U. S. 1920 (U. S. Dep't State 1936) 465-66: "We are
unwilling that while it Is helpless in the grip of non-representative government, whose
only sanction is brutal force, Russia shall be weakened still further by a policy of dis-
memberment, conceived in other than Russian interests." See also the statement: "The
Government has held constantly to the belief that Russia-the Russia of 1917-must her-
self be a party to any readjustments of her frontiers." Id. at 659. For these reasons the
United States recognized the independence of Armenia, but refused to recognize that
of Georgia and Azerbaijan. The recognition extended to Armenia was "to the govern-
ment of the Armenian State as a de facto Government on the condition that this recogni-
tion in no way prejudices the question of the eventual frontiers." Id. at 777-78. See also
Laserson, The Recognition of Latviza (1943) 37 Am. J. INT. L. 233, 242. For some inter-
esting details concerning the early history of the various States and governments which
arose within the territory of Russia in 1917 and 1918, see 2 Fo. R.L. U. S. 1918, RussrA
(U. S. Dep't State 1932).

which a hasty estimate may mistake for an infusion of an arbitrary ele-

ment of politics into the process of recognition, is on the contrary an
instructive example of a painstaking desire to steer clear of the illegality
of premature recognition.
Prohibitionof PrematureRecognition and the Legal Nature of Recog-

nition. The clearly established rule of international law prohibiting pre-
mature recognition of States is not without bearing on the seemingly
different question as to the right of the new community to recognition
by third States and as to the duty of the latter to grant recognition. For,
upon analysis, the substance of the rule relating to premature recognition
is to give expression to the objective requirements which make the grant
of recognition legally permissible. It is to give expression to the objec-
tive conditions making the grant of recognition a step which is in accord-
ance with the requirements of international stability and intercourse, so
as to justify what would otherwise constitute an interference with estab-
lished legal rights of the old State. This being so, the insistence on the
difference between the right to recognize (in relation to the parent State)
and the duty to recognize (in relation to the new community) may be
formally correct, but is not as convincing as appears at first sight. It is
not easy to concede that in substance the objective conditions of recogni-
tion are different when looked at from the point of view of the duty to
the parent State and from that of the obligation to the community asking
for recognition.
When the struggle for independence has reached a tangible measure
of success accompanied by reasonable prospect of permanency, interna-
tional law authorizes third States to declare by means of recognition of
the nascent community that the sovereignty of the parent State is ex-
tinct. This means that international law attaches a distinct legal effect
to the situation thus created. That effect cannot be limited to the rela-
tions of the parent State and the third States. It necessarily enures to
the benefit of the new State. This explains the interesting phenomenon
that while governments in diplomatic correspondence answer the com-
plaints of the parent State by asserting their right under international
law to recognize the rebellious community, they are often driven to invoke
their duty to grant recognition." Similarly, in refusing recognition which
they regard ;is premature, governments often put the matter in such a
way as to deny that in the circumstances of the case the community which
has risen in revolt is entitled to recognition. Thus we find President
McKinley in his Annual Message of April 11, 1898, stating that "recog-
nition of independent statehood is not due to a revolted dependency until
the danger of its being again subjugated by the parent state las entirely
15. See pages 39S-402 infra.

THE YALE LAW JOURNAL (Vol. 53, 385
passed away." 16 On a previous occasion he commended to the consid-

eration of Congress the question "whether the Cuban insurrection pos-
sesses beyond dispute the attributes of statehood which alone can demand
the recognition of belligerency in its favor." 11
- III.
THE DUTY OF RECOGNITION AND THE PRACTICE OF STATES
The Practice of Great Britain. What has been described as the tor-
tious aspect of recognition supplies indirect evidence in support of the
view that recognition of States is essentially a matter of legal right and
duty as between the States granting and receiving recognition. But can
we find more direct proof in support of the legal view of recognition?
Such direct evidence must be sought in the declarations and correspon-
dence of governments insofar as they discuss the question of recognition
as a matter of principle. Of these there are two kinds. There are gov-
ernmental pronouncements defending the right to grant recognition in
the particular case irrespective of the attitude of the mother country;
there are, secondly, pronouncements relating to the duty to recognize.
The first are frequent. The second, more directly relevant to the issue
here discussed, are rare. They are so for the simple reason that States
have as a rule no compelling reason or inclination to expatiate on their
duty to the seceding community; on the other hand, they have had occa-
sion to vindicate as against the complaints of the parent State their right
to grant recognition. It is this last aspect of the matter which has loomed
large in diplomatic correspondence. As a result, the impression has
gained ground that the question of recognition in relation to the com-
munity claiming it is not affirmatively governed by rules of law at all.
Yet, although conditions have not been propitious, there is available
some substantial evidence bearing on this aspect of the problem. The
cumulative effect of that evidence renders it difficult to understand why,
apart from the ascendancy of the positivist school, the predominant po-
litical view of recognition has become so firmly established. The pro-
nouncements in question are of two kinds. Some admit clearly either
the right of the seceding community to recognition or the corresponding
duty of established States to grant recognition. Others lay down, in
effect, the same principle by maintaining that the existence of a State is
a question of fact.
Before surveying the available evidence, it is useful to note that there
is probably no deliberate pronouncement of a government on record in
which the granting or refusal of recognition of statehood is expressly
16. 1 MooRE, INmmRNATIONAL LAW, 109.
17. Ibid.

claimed to be a matter of grace or political expediency. There is, to the

author's knowledge, no State document in existence which professes
to be based on a principle such as is, for instance, laid down by Fauchille
(an author who was an adherent of the declaratory view of recogni-
tion): "Les Etats sont libres de reconnaitre ou de ne pas reconnaitre
un Etat rcemment form6, de se determiner selon les convenances de leur
politique." 18 The only passage known to the author approaching a claim
of this nature is the statement by Canning made in his dispatch of No-
vember 30, 1822, to the British Minister in Madrid, in which he said:
"The Recognition [of the new States of Latin-America] or any other
Power [other than Spain] may undoubtedly be given or withholden at
its own good Pleasure and may be made contingent or conditional." 10
The context of the passage shows that what was intended was not an
assertion of an arbitrary right in relation to the communities which had
risen in revolt, but a clear and emphatic reservation of the right to grant
or to refuse recognition irrespective of the attitude of Spain. The dis-
patch was sent in connection with the proposed mediation by Great Brit-
ain. "A Rower," explained Canning, "which while undertaking to
mediate between the Parties should declare its Recognition of the Col-
onies to be contingent upon that of the mother country, would, in truth,
be anything but impartial: it would throw its whole weight into the
Scale of Spain, and would (in case of a failure of the Negotiation) leave
the Colonies in a worse situation than it found them." 20 It is difficult
to maintain that the element of Great Britain's own convenience and
commercial interest did not enter into the matter at all. But these factors
were not antagonistic to-they were part of-considerations of a more
general nature; they were part of the convenience and commercial inter-
ests of the world at large; they were claimed to have been adopted for
reasons of humanity and by reference to general principles of interna-
tional law ;21 they were dictated by a sense of the practical necessities of
the situation in which a mere pretension asserted itself hopelessly against
the triumphant independence of the rebellious republics. "No man," said
Canning in the crucial memorandum to the Cabinet of November 15,
1822, "will say that there is a reasonable hope of her recovering that
jurisdiction. No man will say that under such circumstances our Recog-
nition of these States can be indefinitely postponed." " In another com.
munication Canning gave eloquent expression to the underlying facts of
the situation. In his dispatch of January 30, 1824, to the British Min-
ister in Madrid he said:
18. 1 FAUCHiLLE, T~ur= DEDROIT INTERNATIONAL PunLIc (1922) pt. 1, 313.
19. 1 SMIH, GREAT BRITAIN AND THE LAW OF NXATIois (1932) 132; printed also
in 2 WEs R, BRITAIN AND) THE INDEPENDENCE OF LATiN-AuER.CA, 1812-1830 (1938) 400.
20. Ibid.
21. See pages 399-400 infra.
22. 2 WEasTER, op. cit. supra note 19, at 394.

THE YALE LAW JOURNAL [Vol. 53:'385
"It appears manifest to the British Government that, if so large

a portion of the globe should remain much longer without any recog-
nized political existence or any definite political connexion with the
established Governments of Europe, the consequences of such a state
of things must be at once most embarrassing to those Governments,
and most injurious to the interests of all European nations. For this
reason, and not from mere views of selfish policy, the British Gov-
ernment is decidedly of opinion that the Recognition of such of the
New States as have established, de facto, their separate political
existence, cannot be much longer delayed." 23
The discretion which Great Britain claimed for herself in the matter
was one of the time and of the degree of recognition. That time was
undoubtedly hastened by what Canning called the "overbearing arrogance
of Spain," who after a time embarked upon seizing British ships, not
because they were carrying contraband or were guilty of breach of a
blockade, but for the reason that they were engaged in trade with her
former dependencies.
There was no intention to refuse to consider the situation from the
point of view of the right of the insurgent communities to claim recogni-
tion. Thus in the final communication of March 25, 1825, addressed
to the Chevalier de Los Rios, Spanish Minister to Great Britain, Can-
ning asked: "Has it ever been admitted as an axiom, or ever been ob-
served by any nation or Government, as a practical maxim, that no cir-
cumstances and no time, should entitle a de facto government to recogni-
tion?" 24 Neither did he show any inclination to refute the idea that the
South American Republics could be entitled to recognition when Sir
James Mackintosh presented on June 15, 1824, the Petition from the
Merchants of the City of London humbly submitting that "these states
have established, de facto, their separate political existence; and are, ac-
cording to the practice of nations in former instances, entitled to be rec-
ognised as independent governments." 25 He agreed with Sir James
Mackintosh that "we have no pretence to be so difficult and scrupulous,
as to insist that a new government shall have all the stability of an old
one before we acknowledge its independence"; but he urged "some degree
of caution before we can give our fiat." 2
In the important dispatch of March 14, 1825,7 addressed to Sir
Charles Stuart, British Special Minister to Lisbon, Canning reverted to
23. Id. at 414; printed also in 3 MANNING, op.cit. supra note 6, at 1516.
24. 3 MANNING, op. cit. supra note 6, at 1544.
25. The Petition is printed in 5 THE SPEECHES OF TH RIGHT HONOoAuLE GEORGE
CANNING (2d ed., Therry, 1830) 291-94.
26. Id. at 302.
27. 1 Wzssm, op. cit. supra note 19, at 264. In the same dispatch there occurs the
following significant passage: "The questions to be decided . . . in each case of a Col-

1944] RECOGNITION OF STATES 399
the same theme. Once, he said, "that essential requisite," namely, "the
establishment of a substantive political existence with a competent power
to maintain it at home and to cause it to be respected abroad" had been
ascertained with respect to the several Spanish American provinces,
"there was nothing to prevent our acknowledgment of each as it became
entitled to be considered as practically independent." There followed the
statement that "our interests loudly prescribed the adjustment and culti-
vation of commercial relations with each of those several States." Such
references to the recognizing State's own interests are a conspicuous
feature in the pronouncements of that period in the matter of recogni-
tion. They do not seriously affect the view, expressed with equal fre-
quency, that recognition was due for the reason that the rebellious Prov-
inces were "entitled" to be considered as independent. They rather tend
to show, as in the analogous cases of recognition of belligerency, that
recognition was being granted for reasons other than gratuitous inter-
ference.
In general, Canning's utterances clearly indicated the lines of the sub-
sequent practice. That practice can best be summarized in the form of
the proposition that governments base their attitude in matters of rec-
ognition not on any right to follow their own particular interests, but
on principles derived from general considerations of international justice
and utility. The frequently quoted British Note addressed by Canning
to Spain on March 25, 1825, in reply to the Spanish protest against Brit-
ish recognition of the independence of the Latin-American States is an
instructive instance of this approach to the subject. It relies to a large
extent on principles governing State responsibility. It is convenient to
quote the relevant passage in full:
".. . all political Communities are responsible to other Political

Communities for their condut,-that is, they are bound to perform
the ordinary international duties, and to afford redress for any viola-
tion of the Rights of others by their Citizens or Subjects.
"Now, either the Mother Country must have continued responsible
for acts, over which it could no longer exercise the shadow of a con-
trol; or the inhabitants of those Countries, whose independent politi-
cal existence was, in fact, established, but to whom the acknowledg-
ment of that Independence was denied, must have been placed in a
situation in which they were either wholly irresponsible for all their
actions, or were to be visited, for such of those actions as might fur-
nish ground of complaint to other Nations, with the punishment due
to Pirates and Outlaws.
ony separating itself from the Mother Country were questions of fact and of time rather
than of principle, and as to time, the decision of each recognizing State was necessarily to
be guided by considerations of its own just interests and of general e.-pediency. .. " Id.
at 263.

"If the former of these alternatives,-the total irresponsibility of

unrecognized States,-be too absurd to be maintained; and if the
latter,--the treatment of their inhabitants as pirates and outlaws,-
be too monstrous to be applied, for an indefinite length of time, to a
large portion of the habitable globe :--no other choice remained for
Great Britain, or for any Country having intercourse with the Span-
ish American Provinces, but to recognise, in due time, their political
existence as States, and thus to bring them within the pale of those
rights and duties, which civilized Nations are bound mutually to re-
spect, and are entitled reciprocally to claim from each other." 28
It is from the point of view of the right of the new communities to

recognition that Hall summarizes the British attitude with regard to the
wars of independence of the Latin-American Republics as governed by
the principle "that recognition cannot be withheld when it has been
earned." 2 He quotes Lord Liverpool's declaration as coinciding in this
matter with the views of Canning, Lord Lansdowne, and Sir James
Mackintosh that "there was no right to recognition while the contest
was actually going on. . . ." The question of the right was not in dis-
pute; what was controversial was whether the contest was still going
on. The actual, and not merely verbal, continuation of the struggle was
necessary in order, to quote Hall once more, "to prevent foreign coun-
tries from falling under an obligation to recognise as a state the com-
munity claiming to have become one." "0
28. 12 B. AND FoR. STATE PAPERs (1846) 912-13. The following passage from Can-
ning's dispatch to Wellington, Oct. 15, 1822, is of interest in this connection: "In the
present situation of Spain with respect to her Colonies, we suffer equally from the main-
tenance of her claim of sovereignty by herself, and from the violation of it by her lawless
subjects. By our determination to abstain from all interference in the internal struggles
of Spain, we do not abandon our right to vindicate ourselves against its external vio-
lences." 2 WEmsTER, op. cit. mpra note 19, at 75. The combination of the two elements--
of the duty of recognition owed to the new community and of reasons of the nature of
those adduced by Canning-had already been clearly expressed in the dispatch of the
United States Secretary of State to the Minister in Great Britain, Jan. 1, 1819: ". . . we
wish the British Government and all the European Allies, to consider, how important it
is to them as well as to us, that these newly formed States should be regularly recognized:
not only because the right to such recognition cannot with Justice be long denied to them,
but that they may be held to observe on their part the ordinary rules of the Law of Na-
tions, in their intercourse with the civilized World. We particularly believe that the only
effectual means of repressing the excessive irregularities and piratical depredations of
armed vessels under their flags and bearing their Commissions, will be to require of them
the observance of the principles, sanctioned by the practice of maritime Nations. It is
not to be expected that they will feel themselves bound by the ordinary duties of Sover-
eign States, while they are denied the enjoyment of all their rights." 1 MANNING, op. cit.
supra note 6, at 87.
29. HALL, INTERNATIONAL LAW (4th ed. 1895) § 26.
30. Ibid.

During the American Civil War, Great Britain had occasion once
more to formulate principles of recognition including the indirect ac-
knowledgment of the duty to recognize the seceding community as soon
as it fulfills the necessary requirements. In the British answer to the
pressing demands of the Confederacy for recognition we find the fol-
lowing passage:
"In order to be entitled to a place among the independent nations

of the earth, a State ought to have not only strength and resources
for a time, but afford promise of stability and permanence." 31
The French view admitting the right to recognition was also expressed
at that time. While assuring the United States that no hasty or precipi-
tate action would be taken with regard to the recognition of the inde-
pendence of the Confederacy, the French Government affirmed that "the
practice and usage of the present century had fully established the right
of de facto Governments to recognition when a proper case was made
out for the decision of foreign Powers." 12
The Practice of the United States. It is in particular in pronounce-

ments of the successive Presidents and Secretaries of State of the United
States that the view of recognition conceived as the performance of a
legal duty towards the community entitled to claim it has found frequent
expression. *While for various reasons conspicuous changes of emphasis
have taken place in the practice of the United States in the matter of
recognition of governments, the consistency of its attitude with regard
to recognition of States is both impressive and instructive. The utter-
ances in question refer almost exclusively to the situation created by
the secession of the Latin-American States. They were undoubtedly in-
fluenced by such factors as the revolutionary origin of the United States
itself and the disapproval of the principle of monarchic legitimacy involv-
ing the possibility of European intervention. But these considerations
do not detract from the significance of the legal principle to wlich they
gave rise. Already on April 20, 1818, we find Jol Quincy Adams, Sec-
retary of State, writing to the United States Minister to Spain: "None
of the Revolutionary Governments has yet been formally acknowledged;
but if that of Buenos Ayres, should maintain the stability which it ap-
pears to have acquired since the Declaration of Independence of 9 July
1816 it cannot be long before they will demand that acknowledgment of
right-and however questionable that right may be now considered; it
31. Earl Russell to Mr. Mason, Aug. 2, 1862, I FONTES JuRus GE;Tiiumx, DIGEST OF
THE DIPLO.mATIC CORRESPONDENCE OF THE EUROPEAN STATES, 1856-1871 (1932) 142.
32. BERNARD, A HIsTORicAL ACCOUNT OF THE NEUTRALITY OF GREAT BrITAIN DURING
THE AmRCAN CrvIL ,VAx (1870) 126, n. 1.

will deserve very seriously the consideration of the European Powers,

as well as of the United States, how long that acknowledgment can right-
fully be refused." 33
In a communication addressed to President Monroe on August 24,
1818, the Secretary of State, Mr. Adams, expressed this view in an even
more definite form: "But there is a stage in such contests when the par-
ties struggling for independence have . . . a right to demand its ac-
knowledgment by neutral parties, and when the acknowledgment may
be granted without departure from the obligations of neutrality. It is
the stage when independence is established as a matter of fact so as to
leave the chances of the opposite party to recover their dominion utterly
desperate." "'
In the Message of January 30, 1822, announcing the intention to rec-
ognize the independence of some of the South American Republics, the
President referred to the question whether ". . . their right to the rank
of independent nations . . . is not complete," 8 as a matter for serious
consideration. In the Message communicated to the House of Repre-
sentatives on March 8, 1822, the President said once more, referring to
the success which crowned the efforts of the insurgent States: "When
the result of such a contest is manifestly settled, the new Governments
have a claim to recognition by other Powers, which ought not to be
resisted." 30
Even more explicit is the passage in the reply of the United States of
April 6, 1822, to the Spanish protest following upon the announcement
of the intention to recognize the independence of the revolted provinces.
The Secretary of State affirmed that the Government of the United
States, far from consulting the dictates of a policy questionable in its
morality, "yielded to an obligation of duty of the highest order, by recog-
nizing as Independent States, Nations which, after deliberately asserting
their right to that character, have maintained and established it against
all the resistance which had been or could be brought to oppose it." 81
The recognition, the Note proceeded, was "the mere acknowledgment
of existing facts." 38 These views were elaborated a year later with an
emphatic insistence on principle in various instructions sent to the United
States representatives in Latin-America. In his Instructions of May 17,
1823, to Mr. Rodney, United States Minister at Buenos Ayres, the Sec-
retary of State wrote:
33. 1 MANNING, op. cit. smpra note 6, at 61.

34. I MooRE, INTERNATIONAL LAW, 78 (italics supplied).
35. Id. at 85.
36. 1 MANNING, Op. cit. supra note 6, at 147.
37. Id. at 157.
38. Ibid.

"The foundation of our municipal Institutions is equal rights. The

basis of all our intercourse with foreign powers is Reciprocity. We
have not demanded, nor would we have accepted special privileges
of any kind in return for an acknowledgment of Independence. But
that which we have not desired and would not have accepted for
ourselves, we have a right to insist ought not to be granted others.
Recognition is in its nature, not a subject of equivalent; it is clam-
able of right or not at all. You will therefore strenuously maintain
the right of the United States to be treated in every respect on the
30
footing of the most favoured . . . nation."
He reiterated these views in his Instructions to Mr. Anderson, United

States Minister to Colombia, May 27, 1823:
"The European alliance of Emperors and Kings have assumed, as

the foundation of human society, the doctrine of unalienable alle-
giance. Our doctrine is founded upon the principle of unalienable
right. The European allies, therefore, have viewed the cause of the
South Americans as rebellion against their lawful sovereign. We
have considered it as the assertion of natural right." 40
In his Instructions of November 29, 1823, to Mr. Rush, United States

Minister to Great Britain, the Secretary of State, after pointing to the
fact that in the opinion of both Great Britain and the United States there
was no hope for the recovery of the Spanish authority, said: "Having
arrived at that conclusion, we considered that the people of these emanci-
pated Colonies, were, of right, independent of all other nations, and that
it was our duty so to acknowledge them." He urged earnestly upon the
consideration of Great Britain that after conceding the hopelessness of
the Spanish position, she could no longer regard the question of recogni-
tion as one of "time and circumstances." 41
The events connected with the recognition of Paraguay in 1845 and
1846 showed the disinclination of the United States to depart from that
conception of recognition as a legal duty. In these years Paraguay, after
having seceded from Argentina, made repeated approaches to the United
States in the matter of recognition. At that time Argentina was con-
fronted by the hostile action of the combined fleets of Great Britain and
France attempting to force a passage up the La Plata and the Paran.
In the circumstances, the sympathies of the United States were with the
Argentine Republic exposed to foreign armed intervention. An induce-
ment was thus present to delay recognition in order not to create a sem-
39. Id. at 191. See also for a similar line of reasoning the Instruction of Mr. Clay,
Secretary of State, to the United States Minister to Mexico, id. at 230.
40. Id. at 198.
4L Id. at 211.

THE YALE LAW JOURNAL (Vol. 53:'385
blance of solidarity with the European Powers. Actually, no departure

was made from the established principle; neither was there undue delay
in its application. "You are aware," wrote Mr. Buchanan, Secretary of
State, to the United States Charg6 d'Affaires at Buenos Ayres on March
30, 1846, "that it is the settled policy of the United States to recognise
the independence of all governments which have manifested to the world
that they are de facto independent. This duty has been eagerly performed
towards our sister Republics on this continent." 42 The Minister was
instructed to prepare the Argentine Government for the recognition of
the independence of Paraguay "in pursuance of the long established and
well settled policy of the American Government." ,4
There was no change of attitude when during the Civil War the United
States were confronted with the attempts by the Confederate States to
obtain the recognition of their independence. These attempts were strenu-
ously resisted.4 The experience of the Civil War, moreover, had the
indirect effect of imparting a measure of legitimism to the practice of
the United States in the field of recognition of governments. In the mat-
ter of recognition of States the well-established principle was not aban-
doned in deference to the exigencies of a grave moment. In a com-
42. 1 MANNING, DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES, INTER-AMERIt-

CAN AFFAIRS, 1831-1860, ARGENTINA (1932) 30.
43. Id. at 31.
44. In a circular note, Feb. 28, 1861, the Ministers of the United States in various
capitals were instructed to counteract any suggestion of recognition of the Confederacy
and to urge upon the Governments concerned that: "It must be very evident that it is the
right of this government to ask of all foreign powers that the latter shall take no steps
which may tend to encourage the revolutionary movement of the seceding States; or in-
crease the danger of disaffection in those which still remain loyal." DIPLOMATIC Colt-
RESPONDENCE OF THE UNITED STATES, 1861-1862 (U. S. Dep't State) 15. In April, 1861,
Mr. Seward, the United States Secretary of State, wrote as follows in an instruction to
the United States Minister in Great Britain: "To recognize the independence of a new
state, and so favor, possibly determine its admission into the family of nations, is the high-
est possible exercise of sovereign power, because it affects in any case the welfare of
two nations and often the peace of the world. In the European system this power is now
seldom attempted to be exercised without invoking a consultation or congress of nations.
That system has not been extended to this continent. But there is even a greater neces-
sity for prudence in such cases in regard to American States than in regard to the nations
of Europe." Id. at 79. The United States were inclined to treat even recognition of bel-
ligerency as an unfriendly act and for a time insisted that compensation on account of
premature grant of belligerent rights should be included within the purview of arbitral
settlement. In a communication addressed to the United States Minister in London, Mr.
Seward treated the recognition of belligerency as interference with the sovereign rights of
the United States. Referring to the British proclamation of neutrality he said: "That
proclamation, unmodified and unexplained, would leave us no alternative but to regard
the government of Great Britain as questioning our free exercise of all the rights of self-
defense guaranteed to us by our Constitution and the laws of nature and of nations to
suppress the insurrection." Id. at 97.

munication of April 10, 1861, by Secretary Seward to Mr. Adams there

occurs the following passage: "NVe freely admit that a nation may, and
even ought, to recognize a new State which has absolutely and beyond
question effected its independence. . . ." The Secretary of State added:
"Seen in the light of this principle, the several nations of the earth con-
stitute one great federal republic. WhVlen one of them casts its suffrages
for the admission of a new member into that republic, it ought to act
under a profound sense of moral obligation, and be governed by consid-
erations as pure, disinterested and elevated as the general interest of so-
ciety and the advancement of human nature." "
The controversy between the United States and Colombia concerning
the premature recognition of Panama is particularly instructive in this
connection. The Government of the United States did not, although the
temptation was considerable, have recourse to the argument that in grant-
ing recognition it was entitled to take into account its own interests only.
In rejecting the Colombian claim for arbitration in the matter it confined
itself to declaring that "questions of foreign policy and of tile recogni-
tion or nonrecognition of foreign states are of a purely political nature,
and do not fall within the domain of judicial decision. . . ." 4' In a
previous note of January 5, 1904, Secretary Hay refrained from sup-
porting the conduct of the United States by any claim of a right to grant
recognition by consulting the interest of his country only and irrespective
of international principle. After referring to the fact that Panama had
been recognized by all the Great Powers and by a number of other
States, he said:
"The law of nations does not undertake to fix the precise time at
which recognition shall or may be extended to a new state. This is a
question to be determined by each state upon its own just sense of
international rights and obligations; and it has rarely happened,
where a new state has been formed and recognized within the limits of
an existing state, that the parent state has not complained that the
recognition was premature. And if in the present instance the powers
of the world gave their recognition with unwonted promptitude, it
is only because they entertained the common conviction that inter-
ests of vast importance to the whole civilized world were at stake,
which would by any other course be put in peril." 4
45. FoR. REL U. S. 1861 (U. S. Dep't State 1862) 76-79.

46. Mr. Hay, Secretary of State, to the Colombian Minister, Jan. 5, 1904, 3 Moo.-,
INTERNATIONAL LAW, 105.
47. Id. at 90-91. It is of interest to note that when, eleven years later, Mr. Bryan,
the Secretary of State, advocated before Congress the Bill providing compensation to
Colombia, he referred to the action of the United States in 1903 as an instance of the
exercise of the right of international eminent domain in the interest of the world. See
CALLcoTr, THE CARIBBEAN POLICY OF THE UNITED STATES (1942) 383.

406 THE YALE LAW JOURNAL [Vol. 53 :385
Recognition as a Question of Fact. In addition to admitting express-

ly the right of new States to recognition, governments have on occasion
voiced the same principle by declaring that the existence of new States
is a question of fact. It was in this sense that Canning referred to the
question of recognition of the Latin-American States as being one "of
fact and of time rather than of principle." 48 It was in this sense that on
numerous occasions he pointed to the distinction between "mere acknowl-
edgment" of the existence of the new States-which, he insisted, was a
question of fact-and their formal recognition de lure which expressed
a title and whose grant was a matter for the parent State.Y
Numerous pronouncements of the Government of the United States
express the same attitude. In reply to the Mexican protest against the
recognition of the independence of Texas, Mr. Forsyth, United States
Secretary of State, wrote in 1837: "The independence of other nations
has always been regarded by the United States as question of fact mere-
ly, and that of every people has been invariably recognized by them when-
ever the actual enjoyment of it was accompanied by satisfactory evidence
of their power and determination permanently and effectually to main-
tain it." 50 In 1875, in a message concerning the question of the recogni-
tion of Cuba, President Grant said: "In such cases [of recognition of
new States] other nations simply deal with an actually existing condition
of things, and recognize as one of the powers of the earth that body
politic which, possessing the necessary elements, has, in fact, become a
new power. In a word, the creation of a new state is a fact." 51 The
reply in a similar vein to the Spanish protest in 1822 has already been
52
noted.
What is the meaning of the principle that the question whether a State
exists is a question of fact? It means negatively that recognition is not
48. See page 398 supra. And see his speech in the House of Commons, June 15,
1824: "It [recognition] has clearly two senses, in which it is to be differently understood.
If the colonies say to the mother country, 'We assert our independence,' and the mother
country answers, 'I admit it,' that is recognition in one sense. If the colonies say to an-
other state, 'We are independent,' and that other state replies, 'I allow that you are so,'
that is recognition in another sense of the term. That other state simply acknowledges
the fact, or rather its opinion of the fact; . . ." 5 CANNING'S SPEECHES, op. Cit. supra
note 25, at 299.
49. For an interesting distinction, based on the same reasoning, between acknowledg-
ment of independence and recognition, see Wellington's observations on Canning's notes
on Chateaubriand's dispatch concerning the recognition of the independence of the South
American Republics. 2 WanSTER, op. cit. supra note 19, at 141, n. 1; printed also in Thai-
PERIY, FOREIGN PoLIcY OF CANNING, 1822-1827 (1925) 543.
50. 1 MooE, INTRMNAT10NAL LAw, 102.
51. Id. at 107.
52. See page 402 supra.

a question of unfettered discretion, of contractual bargain, or of political

expediency. It means positively that the State called upon to grant
recognition must judge whether the required conditions of fact exist
and that it is entitled to exercise its discretion in arriving at that judg-
ment. This is a judicial discretion, however, aimed at ascertaining the
existence of the relevant facts. When the Declaration of London laid
down in Article 3 that the effectiveness of a blockade is a question of
fact, the intention was to lay down that the requirement of effectiveness
is an undoubted rule of law and that if the blockade is effective, it must
be treated by neutrals as valid, though it may be difficult to lay down in
advance the precise conditions of the operation of the requirement of
effectiveness. To predicate that a given legal result is a question of fact
is to assert that it is not a question of arbitrary discretion. This is in
general the meaning of the jurisprudential distinction between questions
of fact and of law. The emphasis-and that emphasis is a constant
feature of diplomatic correspondence-on the principle that the existence
of a State is a question of fact signifies that, whenever the necessary
factual requirements exist, the granting of recognition is a matter of
legal duty.
Governmental Professions and the Creation of Legal Rules. The pre-

ceding examination of the practice of States and of pronouncements of
governments showing the acknowledgment of the duty of recognition
whenever there exist the requisite conditions of fact is open to the retort
that in deducing a legal rule from the practice of States we must not look
to the professions of governments, but to their motives. Any such
retort is probably unsound. Official pronouncements of governments
express what in their view are the right legal rules and principles capable
of general application. It is with these alone that the jurist is concerned.
The particular legal rule may suit the political interest and convenience
of the State enunciating it. But the lawyer abandons his legitimate prov-
ince once he begins to probe into the motives which have induced gov-
ernments to express their obligation to act upon a legal rule. Such real-
ism may be appropriate for the historian and the sociologist. The jurist
is concerned with the legal rule upon which governments profess to act.
The fact that the particular rule has been found to suit the interests of
States does not derogate from its legal value; it adds to it. International
law is not so rich as to be able to discard, in a spirit of realism of ques-
tionable propriety, legal rules acknowledged and acted upon by States."
53. Such attempts at realism have occurred, it will be noted, in other fields of inter-
national law. Witness, for instance, the political interpretation of international leases as
disguised cessions calculated to spare the susceptibilities of the lessor State. See LAuTza-
PAcHT, PRIVATE LAW SOURCES AND ANALOGIES OF INTEnNATIONAL LAW (1927) 184-90.

IV.
THE LEGAL DUTY OF RECOGNITION AND THE
CONDITIONS OF STATEHOOD
The Practice of States and the Essential Conditions of Recognition.

The preceding survey of the practice of States illustrating the legal na-
ture of recognition has shown at the same time the conditions which give
rise to a legitimate claim to recognition of statehood. These coincide with
the conditions which permit a third State to recognize a seceding com-
munity without committing an illegality in relation to the parent State.
They are identical with the requirements of statehood as laid down by
international law and as uniformly expressed in text-books, namely, the
existence of an independent government exercising effective authority
within a defined area. These requirements will now be considered.
An Independent Government. There must exist a government actually

independent of that of any other State, including the parent State. The
independence thus required is one irrespective of the attitude of the
mother country. The attitude of the latter is of importance only insofar
as the recognition by the mother country of the independence of the
rebellious province naturally raises a strong, although not conclusive,
presumption that such independence actually exists. On the other hand,
it is clearly established that the refusal of the mother country to recognize
such independence is not conclusive. The legal title of the parent State
is relevant to the extent that conclusive evidence is required showing that
it has been definitely displaced and that the effectiveness of its authority
does not exceed a mere assertion of right. But once such evidence is
available, the illegality of the new State's origin from the point of view
of the constitutional law of the parent State is of no consequence. The
principle of legitimacy, although proclaimed for a short time by the
Powers of the Holy Alliance at the beginning of the nineteenth century,64
54. These Powers did not include Great Britain, who refused to subscribe to that
principle, although a contemporary American critic described the British attitude as not
uninfluenced by "The mystic Virtues of Legitimacy." Mr. Adams, United States Minister
to Great Britain, to Mr. Monroe, Jan. 22, 1816. 3 MANNING, op. cit. supra note 6, at
1433. In 1822 Great Britain at the Verona Conference formally proposed to the Holy
Alliance some measure of recognition de facto of the South American Republics as a
necessary condition for effectively combating piracy and the slave traffic in those regions.
While the attitude of Prussia and Russia was purely negative in their assertion of the
iipprescriptible rights of the King of Spain (at that time confronted with a civil war
within his European possessions), the position taken up by Austria and France was an
interesting mixture of legitimism and the de facto principle. The Austrian delegate de-
clared:
"1. Que Sa Majest6 Impdriale, invariablement fidle aux grands principes sur les-
quels repose l'ordre social et le maintien des gouvernements 16gitimes, ne reconnaltra

has never become part of international law. It has been proclaimed on

occasion by absolutist government," but it has never struck deep roots
in the law of nations. When in Article 10 of the Covenant of the League
members of the League of Nations mutually guaranteed their territorial
integrity and political independence, they limited the guarantee to exter-
nal aggression as distinguished from internal revolution. An interna-
tional law which does not possess power to effect territorial and political
changes within and between States cannot take upon itself the task of
perpetuating existing conditions by refusing to recognize changes of
sovereignty effected in violation of the constitutional law of States.
The meaning of independence, however, is not confined to the achieve-
ment of actual independence of the mother country. In includes also
independence of any State other than the mother country. If a commu-
nity, after having become detached from the parent State, were to become
legally or actually a satellite of another State, it would not be fulfilling
the primary condition of independence and would not, accordingly, be
entitled to recognition as a State. This has probably been the position
of Manchuria since 1932,"" following its forcible separation from China
as the result of invasion by Japan. Apart from the considerations aris-
ing out of the principle of non-recognition,"7 that province, controlled
jamais l'ind~pendence des Provinces Espagnoles de l'Am~rique tant que S. M. Cathulique
n'aura pas librement et formellement renonc6 au- droits de Souverainetd qu'Elle a jus-
qu'ici exerc6 sur ces provinces.
"2. Que plus Sa Majeste Imptriale est dtcidte a±ne pas stcarter de cette ligne de
conduite, plus Elle se croira libre, dans l'6tat actuel des choses, et tant que l'Espagne se
trouvera elle-mfme sous un rtgime que les Chefs de la rtvolution out imposc. do fail au
Roi et a Son pays, d'adopter 6galement vis-A-vis des Colonies Espagnoles telle attitude
de failt que des consid6rations d'inttrtt ou d'utilit6 g6n6rale pourrant Lui sugg~rer, toute
fois sous la rtserve expresse que telle que puisse tre cette attitude, eile ne portera aucun
pr6judice permanent aux droits imprescriptibles du Roi et de la Couronne d'Espagne."
2 XVEsimR, op. cit. =pra note 19, at SO.
The French declaration, after reiterating the principle of legitimacy, proceeded to
sacrifice it to more compelling considerations:
"Ntanmoins la France avoue avec l'Angleterre que lorsque des troubles se prolon-
gent et que le droit des nations ne peut plus s'exercer pour cause d'impuissance d'une des
parties bellig6rantes, le droit naturel reprend son empire; elle convient qu'il y a des pre-
scriptions intvitables; qu'un Gouvernement apris avoir longtemps rtsist6, est quclquefois
oblig6 de c6der la force des choses, pour mettre fin A beaucoup de maux et pour ne pas
priver un Etat des avantages dont d'autres Etats pourraient exclusivement profiter." Id.
at S1. For these declarations, see also 3 MANNING, op. Cit. mlpra note 6, at 1539-41.
55. Thus in reply to the request of the United States for assurances that no recogni-
tion would be granted to the governments of the Confederate States, Russia answered
that "from the principle of unrelenting opposition to all revolutionary movements, [she]
would be the last to recognize any de facid Government of the disaffected States of the
American Union." BERNARD, op. cit. supra note 32, at 126, n. 1.
57. See Note 122 infra.

politically and strategically by Japan, has not fulfilled the primary re-
quirement of statehood, that is, sovereignty exercised by an independent
government. The same applies to such ephemeral creations as Slovakia
or Croatia during the second World War.
Effective Authority. The second essential requirement of statehood is

a sufficient degree of internal stability as expressed through the func-
tioning of a government enjoying the habitual obedience of the bulk of
the population. A community may have succeeded in shaking off alle-
giance to the mother country, but if it is in a condition of such internal
instability as to be deprived of a representative and effective government,
it will be lacking in a vital condition of statehood. This combination of
the requirements of external independence and internal stability is shown
in an instructive way in the questions formulated by Canning in con-
nection with the proposed recognition of the independence of Mexico
and that of other American States. These questions were:
"lst. Has the Government so constituted already notified by a

publick Act its determination to remain independent of Spain, and
to admit no terms of accommodation with the Mother Country?
"2ndly. Is it in military possession of the country, and also in
a respectable condition of military defence against any probable attack
from Europe?
"3rdly. Does it appear to have acquired a reasonable degree of con-
sistency, and to enjoy the confidence and goodwill of the several or-
ders of the people?" "
An identical view was expressed by successive Governments of the

United States with regard to the recognition of Cuban independence.
Thus President Grant, in his Annual Message of December 7, 1875, while
admitting the probability of the Spanish domination having been finally
displaced, denied the Cuban claim to recognition on the ground that no
effective and stable government had been established. There must exist,
he said, "some known and defined form of government, acknowledged
by those subject thereto, in which the functions of government are
administered by usual methods, competent to mete out justice to citizens
and strangers, to afford remedies for public and for private wrongs, and
able to assume the correlative international obligations and capable of
performing the corresponding international duties resulting from its
58. Canning's dispatch of October 10, 1823, printed in 1 WEnsR, op. cit. supra note
19, at 435. As to the fourth condition relating to the slave trade, see page 417 in!ra.
See also Canning's Note to Woodbine Parish, Aug. 23, 1824, concerning the conditions of
recognition of Argentina, id. at 114.

acquisition of the rights of sovereignty." "' For this reason the recog-
nition of a new State often takes place in the form of recognition of its
government. Thus when on May 3, 1919, it was decided that Great
Britain and the United States should severally recognize the independence
of Finland, the following communication was sent to Finland by Great
Britain:
"His Majesty's Government seeing in recent elections and in estab-
lishment of a new Government a clear expression of the desire of the
Finnish people and of their determination to follow the path of order
and of constitutional development have decided to recognise the inde-
pendence of Finland and to enter into formal relations with the pres-
ent Finnish Government. They desire to congratulate the people of
Finland on having vindicated their title to the rights of an indepen-
dent sovereign State." co
The importance of the requirement of an effective government may be

gauged from the fact that the Committee of Jurists, who were asked
to give an opinion in the matter of the Aaland Islands, held that notwith-
standing the above acts of recognition, Finland was not at that date a
59. 1 fOoRE, INTERNATIONAL LAW, 107-08. See also the statement of the same prin-
ciple in the messages of President Cleveland in 1896, id. at 108, and of President McKinley
in 1898, id. at 108-09.
60. 117 BR. AND Foa. STATE PAPERS (1923) 19. On May 5, 1919, the Depart-
ment of State of the United States announced that "in view of the fact that the
people of Finland have established a representative Government, the Government of the
United States of America declares that it recognizes the Government, so constituted, as
the de facto Government of an independent Finland." 2 Fop. R.. U. S. 1919 (U. S.
Dep't State 1934) 214. Similarly, the British recognition of Poland, Feb. 25, 1919, was
in the form of the "formal recognition of the Government of Poland:' The French recog-
nition was in the form of the "official recognition of Poland as an independent and sover-
eign State and of its government as a regular government." In December, 184, Great
Britain and a number of other States recognized the Association of Congo as a friendly
government. The importance of the existence of an effective government explains why
some authors maintain that there is no recognition of a State apart from the recognition
of its government. See, e.g., KLIEsT, DIE vOLKERRECIITLIcHE Axa;Ena:., .*uG SUWJ'E-
RUSSLANDS (1934) 19; Redslob, La reconnaisancede l'&Iot connc stniet de Drolt Inter-
national (France, 1934) 13 REvUE DE DRorr INTMNATioNAL 429, 433. Fur a refutation
of this view, see SCALFATI, IL RICONOSCENTO DI STATO NEL Dnui-ro I:.TAz=.azloN-,.z
(1938) 17-28. See also Erich, La Nalissance c la Reconnaissance des Elats (1926) 13
REcuEu. DEs Cours 431, 488-90, who discusses the recognition of Finland by France in
January, 1918, and the alleged withdrawal of that recognition in October, 1918. He points
out-rightly, it is believed-that the recognition in January was one relating to statehood,
while the note of October, 1918, intimated unwillingness to recognize a particular regime.
See also the case of Albania during the First Assembly of the League; that country,
although recognized in principle as a State in 1913 by the Conference of London, vas
apparently in 1920 in the position of not having a recognized government.

State in the contemplation of international law having regard to her un-

settled condition and the absence of an orderly administration. 0 '
Defined Territory. The possession of territory is, notwithstanding

some jurisprudential controversy which has gathered round the sub-
ject, 62 a regular requirement of statehood. Normally possession and ad-
nministration of a defined territory is essential, since without it there
cannot be a stable and effective government.6 3 On the other hand, it has
been held that the fact that the frontiers of a new State have not yet
been definitely decided does not constitute an impediment in the way of
its statehood.64 Most of the new States which arose after the War of
1914-1918 were recognized de facto or de lure before their frontiers
were finally laid down in treaties, although as a rule such recognition was
accompanied by stipulations relating to the acceptance by the State con-
cerned of the frontiers to be laid down by the peace conference. Thus
the British recognition of Finland was accompanied by a declaration that
"in recognising the independence of Finland His Majesty's Government
do so with confidence [and] understanding that the Finnish Govern-
ment accepts the decision to be taken by the Peace Conference as to the
drawing of her frontiers. " 65 However, when doubts as to the
future frontiers were regarded as being of a serious nature, recognition
was postponed. Thus when in 1919 Estonia and Latvia were recognized
by the Allied Powers, no recognition was granted to Lithuania on the
express ground that owing to the Vilna dispute her frontiers were not
yet fixed.
Irrelevant Tests of Recognition of Statehood. The existence of the

conditions of statehood outlined above-external independence and ef-
61. See page 432 infra.
62. See, e.g., DONATI, STATo E TmuRiTopo (1924) 27, 30; KELSEN, DAS PRODLEM DEl
SOUVERANITT UND DIE THEORIE DES V6LKERRECHTS (1920) 70-76; SALMOND, JURISPIW-
DENCE (1937) §38.
63. The dispossession of the lawful government by the invader pendente bello is no
more than an incident of military operations. The fact that Belgium during the first World
War or numerous countries occupied by Germany during the second World War con-
tinued to exist as States with governments functioning in exile, is irrelevant to the ques-
tion of the possibility of the existence of a State without territory.
64. Deutsche Continental Gas-Gesellschaft v. Polish State, German-Polish Mixed
Arbitral Tribunal, Aug. 1, 1929, reported in ANNUAL DIGEST OF PUBLIC INTNATIONAL
LAW CASES 1929-1930, Case No. 5. The Tribunal said: "In order to say that a State
exists and can be recognized as such . . . it is enough that this territory has a sufficient
consistency, even though its boundaries have not yet been accurately delimited ...
There are numerous examples of cases in which States have existed without their state-
hood being called into doubt . . . at a time when the frontier between them was not
accurately traced." Id. at 15.
65. For a similar proviso in connection with the recognition by the United States of
the Yugoslav State, see 2 FoP, REL. U. S.1919 (U. S. Dep't State 1934) 900.

fective internal government within a reasonably well-defined territory-

may be and has often been controversial in reference to particular situa-
tions. But, in essence, these conditions are definite and exhaustive. They
have nothing to do with the degree of civilization of the new State,c"
with the legitimacy of its origin, with its religion, or with its political
system. Once considerations of that nature are introduced as a condi-
tion of recognition, the clear path of law is abandoned, and the door
opened wide to arbitrariness, to attempts at extortion, and to interven-
tion at the very threshold of statehood. The legal irrelevance of these
various considerations as factors in the process of recognition has not
always been perceived. This may be seen, for instance, from Lorimer's
treatment of the subject. He begins his exposition by emphasizing the
fundamental importance of recognition in the system of international
law. It is recognition, he says, which makes of international law a science.
He lays down in an unexceptional manner that rights and duties have
their origin in and are limited by the facts of natural life: "Any doc-
trine . . . which professes to regard it [recognition] as an act of cour-
tesy, comity, or the like, the exercise of which may be jurally withheld,
-- deprives international law of a permanent basis in nature, and fails
to bring it within the sphere of jurisprudence." " The question, he says,
is one of ascertaining whether there exist the necessary requirements of
statehood. He then advances the more debatable contention that in the
present state of international law, it is for each State to lay down what
these conditions are, while the business of the science of international
law is to assist States in determining these conditions. Lorimer then
proceeds to suggest what the proper tests are. He divides humanity into
three concentric spheres: into civilized, barbarous, and savage peoples.
The last two are excluded from recognition. They are excluded because
they are unable to fulfill the fundamental condition of possessing what
Lorimer calls a "reciprocating will." That requirement disposes not only
66. International law today knows of no distinction between civilized and uncivilized
States or between States within and outside the international community of civilized
States. It is, therefore, unnecessary to discuss this aspect of the question in any detail.
In Lorimer's writings the student will find picturesque descriptions of varying degrees of
civilization with reference to recognition. Loanltn, TnE INSTiTumS OF TuE L w oF
NATio--Ns (1883). See page 414 infra. Fauchille followed his example, 1 FAucmuLx, op.
cit. supra note 18, at 327-28. Kunz distinguishes between recognition and "reception into
the community of nations." He describes recognition prior to reception into the interna-
tional community as partial recognition, as in the case of Turkey with whom various
States entertained diplomatic relations and concluded treaties prior to her admission to
the benefits "of the public law and of the Concert of Europe" as the result of Article 7of the
Treaty of Paris of 1856. KuNz, op. cit. sitpra note 2, at 25-34, 105-09. Actually, modem
international law knows nothing of reception into the international community as dis-
tinguished from recognition of a State. The legal position of Turkey remained unaffected
by Article 7, whose legal significance is somewhat elusive.
67. 1 LoanR.u, op. cit. mtpra note 66, at 104.

THE YALE LAW JOURNAL [Vol. 53.- 385
of savage or barbarous peoples as candidates for statehood. It elimi-

nates religious creeds whose doctrine renders impossible the presumption
of reciprocating will, as, for example, the Mohammedan religion."' It ex-
cludes, further, secular creeds which are devoid of the "reciprocating
will," such as intolerant monarchies ("the very name of monarchy sa-
yours of exclusiveness"), intolerant republics (like that of the French
Convention of 1793), intolerant anarchies, communities wedded to com-
munism or nihilism (which are "prohibited by the law of nations"), and
communities under personal or class governments (on the ground that
their form of government renders them incapable of expressing or reach-
ing a reciprocating will). Lorimer's treatment of the subject conveys the
impression of absurdity. It has been deemed useful to summarize it at
somewhat excessive length as a not unnecessary reminder of the conse-
quences which may follow from the introduction of tests divorced from
the solid basis of reality on which all law must ultimately rest.
V.
THE POLITICAL ASPECT
National Interest and the Duty of Recognition. It has been submitted

in the preceding sections that the legal view of recognition, that is, of
recognition conceived as a declaration, made in the fulfillment of a
legal duty, of the existence of the requisite conditions of statehood, can
be regarded as being in accordance with the general practice of States.
At the same time it is a fact that the tests of recognition as outlined
above, although supported by the bulk of State practice and by cogent
legal principle, have often yielded to motives and considerations essen-
tially foreign to the purpose of recognition. This has been so for the
reason that governments have not always found it possible to divorce the
fulfillment of a duty implied in the act of recognition from the achieve-
ment, on that occasion, of specific advantages. In a properly constituted
political society the function-which is perhaps the most important func-
tion of any legal system-of ascertaining the presence of the conditions
of legal capacity and existence is performed by impartial organs dele-
gated by the law for that purpose. In international society that task is
as a rule fulfilled by individual States acting on their own responsibility
and endowed with wide discretion in the appreciation of the relevant
facts. That discretion is unfettered only in the meaning that, at present,
the State which takes a decision on the issue of recognition is not ac-
68. "To talk of the recognition of Mahometan States as a question of time, is to talk
nonsense." Id. at 123.

countable for its acts to any superior jurisdiction. In essence, it is a

discretion determined by international law. In granting or refusing rec-
ognition the State administers international law; it does not perform a
legally indifferent act of national policy. In the imperfectly developed
international society States are often called upon to act in the fulfillment
of a legal duty or in the assertion of their legal interest without being
directly and immediately responsible to a higher authority. This does
not mean that in these matters States are not bound by law at all. They
have freedom in ascertaining the facts and assessing their significance;
but they are not free to assert a liberty to disregard the facts or to act
in defiance of them. 9
While the task of ascertaining the existence of conditions of state-
hood is essentially one of administration of international law, it is at the
same time, however, a political act fraught with political consequences
involving the interests of the State called upon to grant recognition. In
some cases its interests may be identical with those of the international
community at large in such a manner that their consideration is not in-
compatible with the loyal application of the objective tests of recogni-
tion. That possibility is clearly illustrated by the substance of the British
answers, quoted above, 0 in reply to the Spanish protest against the rec-
ognition of the Latin-American Republics.
Recognition in Consideration of Benefits. The identity of natiunal

and international interest is in this matter by no means a constant phe-
nomenon. International practice is rich in examples of an abuse of the
function of recognition for the purpose of securing particular national
advantages. Even the lofty position assumed by the United States on
the question of recognition of the independence of the Latin-American
States was not always entirely free from attempts to safeguard the par-
ticular interests of the United States. Thus in 1819 the United States
made it to some extent a condition of its recognition of Argentina that
no special privileges of indefinite duration should be granted to Spain.
This, it was said, was not to be interpreted as making recognition an
object of bargaining. The reason for the delay in recognition was that
if such rights were to be reserved to Spain, it would not be quite clear
69. The manner in which the Assembly of the League interpreted the obligations of
its members under Article 16 of the Covenant may be referred to as an illustration. The
Second Assembly laid down that "it is the duty of each member of the League to decide
for itself whether a breach of the Covenant has been committed." At the same time the
Assembly insisted that the fulfillment of that duty, though dependent upon the member's
finding as to the existence of the requisite facts, was a clear legal obligation under the
Covenant.
70. See pages 398-400 supra.

THE YALE LAW JOURNAL [Vol. 53 :385
whether "the independence of Buenos Ayres would be complete." 71

There is agreement among historians that the recognition of the United
States by France in 1778 was not entirely disinterested. That event, it
may be added, showed how shifting and haphazard in their operation
may be mere considerations of opportunism in connection with recogni-
tion. When the American Colonies declared their independence in 1776,
Turgot advised the King of France that it was in the French interest
that the insurrection be suppressed because the insurgents when subdued
would require a considerable British force to keep them down perma-
nently and as a result, Great Britain would become a peaceable or at least
a harmless neighbor. 2 In February, 1778, France concluded treaties
of commerce and alliance with the United States which amounted to
recognition and which brought about the war with Great Britain.
Neither are instances lacking in more modern history of attempts to
make recognition an object of a bargain or a matter dependent upon
political conditions or considerations. In May, 1918, the British Min-
ister at Stockholm informed the Finnish Charg6 d'Affaires that Great
Britain was prepared to recognize provisionally the de facto Finnish
Government pending final settlement at the peace conference, if the Fin-
nish Government would obtain the release of British subjects arrested
on Finnish territory by the Germans and give guarantees for the main-
tenance of neutrality (including the passage of Allied ships through Fin-
nish territorial waters) .7 The attitude of the United States was not
dissimilar. The instructions to the United States Representative at Hel-
singfors were that "recognition as a de facto government could be given
to any properly constituted government established on democratic prin-
ciples and with a policy not in conflict with the Allies, which may result
from the recent Finnish elections." 74
One of the reasons given by the United States in 1920 for refusing to
recognize Georgia and Azerbaidjan was the "reaction on the minds of
71. Mr. Adams, Secretary of State, to Mr. Monroe, Jan. 28, 1819, 1 MANNING, op.
cit. supra note 6, at 93. "If Buenos Ayres," wrote Mr. Adams to President Monroe in
1818, "confined its demand of recognition to the provinces of which it is in actual posses-
sion, and if it would assert its entire independence by agreeing to place the United States
upon the footing of the nwst favored nation, . . . I should think the time now arrived
when its government might be recognized without a breach of neutrality." 1 MoORE, IN-
TERNATIONAL LAW, 79.
72. See the letter of Mr. Adams, United States Minister to Great Britain, to Mr.
Monroe, United States Secretary of State, Jan. 22, 1816, 3 MANNING, op. cit, supra note
6, at 1433.
73. Communication of the British Ambassador to the United States Secretary of State,
May 4, 1918, 2 FoR. REL. U. S.1918, RussIA (U. S. Dep't State 1932) 784. See also the
statement of the British Foreign Secretary, The Times, Jan. 31, 1918, p. 5, col. 4.
74. Acting Secretary of State to the Consul at Helsingfors, March 20, 1919. 2 FoIL
RE.. U. S.1919 (U. S. Dep't State 1934) 213.

1944) RECOGNITION OF STATES
the Russians, hitherto friendly to the Allied and Associated Governments,

of such a recognition." -I The element of national interest as a deter-
mining factor in matters of recognition is shown in connection with the
recognition of Latvia. In October, 1920, Poland informed the Latvian
Government that she was willing to grant immediate recognition de jure
to Latvia provided that the latter offer a ninety-nine years' lease of a
port, to be declared a free port.
When the question of recognition of Albania came before the United
States Secretary of State in 1922, both the persons acting on behalf of
Albania and the United States Secretary of Commerce pointed to some
connection between the grant of recognition by the United States and
the grant of oil concessions by Albania.7 The Secretary of State in-
formed the Secretary of Commerce that there were "naturally various
considerations involved in the question of recognition." -' On July 28,
1922, recognition de jure was extended. When the United States, on
April 25, 1922, recognized the independence of Egypt, it made the rec-
ognition "subject to the maintenance of the rights of the United States
of America as they have hitherto existed." 7 This was done in order not
to leave doubts as to the maintenance of the capitulatory and commercial
rights of the United States. When in 1928 the Kingdom of Hejaz and
Nejd approached the United States with a request for recognition, the
Department of State, in a communication to the American Legation at
Cairo, expressed the opinion that "the final decision would be largely
influenced by the character and extent of American commercial interests,
actual as well as potential, in Hejaz." "
Conditions of recognition have been exacted which, although not im-
posed in the selfish interest of the State in question, have been unrelated
to the purpose of recognition. Thus when in 1823 Great Britain admitted
in principle the propriety of recognizing the new State of Brazil, she
insisted, as a condition of recognition, upon the renunciation of the slave
traffic on the part of Brazil.80 The condition, accompanying the recogni-
tion at the Berlin Congress in 1878 of Bulgaria, Montenegro, Serbia, and
Roumania, is another instance of the same practice. In general, it follows
from the conception of recognition-whether conceived as being of con-
75. 3 Fop- REL. U. S.1920 (U. S. Dep't State 1936) 778.
76. 1 FoR. RI._ U. S. 1922 (U. S. Dep't State 1938) 594-95.
77. Id. at 600. The United States consular representative at Tangier was instructed
to inquire, inter alia, as to the "Albanian administration's attitude towards the protection
of American interests and its degree and willingness to afford most-favored-nation treat-
ment to the United States." 1 HAcKwoRTH, DIGEST OF INTERNATIO , L LAw (1940) 197.
78. 2 Fo. 1EI_ U. S. 1922 (U. S. Dep't State 1938) 105. See HAcxwoaru, op. cit.
supra note 77, at 209.
79. Id. at 218.
80. See Canning's dispatch, Feb. 15, 1823, 1 Srr, op. cit. supra note 19, at 187;
printed also in 1 WEBSTmR, op. cit. supra note 19, at 221.

stitutive or of declaratory effect in relation to the rights of the recognized

community-as a declaration of the existence of the requisite conditions
of statehood, that it cannot properly be granted upon conditions (other
than the implied condition that if these conditions cease to exist, recogni-
tion may be withdrawn). Similarly, it follows from that conception
of recognition that the only difference between de fiere and de facto rec-
ognition is that the latter is provisional in the sense that its eventual
finality is dependent upon the stabilization of the as yet precarious factual
8
conditions of statehood. 1
The Incidental Political Element of Recognition. The political impli-

cations of recognition reveal themselves in the fact that even when it is
broached in good faith and in a spirit of impartiality, recognition or its
denial may expose the recognizing State to protests, reprisals, and even
war on the part of the parent State. The vehemence of the Spanish pro-
test against the recognition of the Latin-American Republics by Great
Britain and the United States offers an instructive example of the inher-
ent difficulty of the situation."2 In 1861 the United States contemplated
a declaration of war against any State recognizing the independence of
the Confederacy. 3 When in 1778 France recognized prematurely the
independence of the United States, she adduced general reasons of legal
principle and of necessities of peace in support of her action. She was
answered by a declaration of war. When Holland in the same year con-
cluded a draft treaty with the representatives of the United States, she
made the recognition of the independence of the United States condi-
tional upon its previous acknowledgment by Great Britain, a precaution
which did not in the long run prevent a British declaration of war. In
fact, governments do not as a rule invoke considerations of national
policy as a factor in granting or refusing recognition, except when they
refer to the danger of being embroiled with the parent State on account
of premature recognition. 4 On the other hand, continued refusal to
grant recognition may provoke the lasting enmity of the new State in
addition to immediate measures of retorsion or reprisals such as the with-
81. Detailed discussion of conditional recognition and of the difference between de

jure and de facto recognition must be reserved for some future occasion.
82. See as to this, the communication of Mr. Adams, United States Minister to Great
Britain, to Mr. Monroe, Jan. 22, 1816, 3 MANNING, op. cit. supra note 6, at 1434.
83. See GOEBEL, THE RECOGNITION POLICY OF THE UNITED STATES (1915) 171-92.
84. The case of Georgia indicates the possibility of recognition not being in the inter-
est of the community about to receive it. Thus on January 26, 1921, the Supreme Council
of the Allied Powers in Paris decided to recognize de jure Estonia and Latvia and also
Georgia "provided it was clearly established that the latter desired immediate recogni-
tion." It had been pointed out that the Georgians might not welcome immediate recogni-
tion, as it might expose them to Bolshevik attack.

drawal of the exequatur of consuls,"5 and the legal, commercial, and dip-
lomatic inconvenience resulting from the refusal to recognize a de facto
authority.
The instances referred to in the preceding paragraph are in the same
category as those in which the introduction of a distinct element of na-
tional interest is unobjectionable on the ground that it coincides with
general international interest. For when the decision to grant or to refuse
recognition is determined by the wish to avoid war or reprisals, the mo-
fives are such that international law could hardly disapprove. Both types
of case, however, testify to the unsatisfactory nature of the situation
resulting from the fact that the task of determining the admission to
membership of international society is entrusted to individual States
called upon to combine two incongruous functions in circumstances likely
to blur the disinterestedness of judicial detachment
It is necessary to keep in mind, lest we fail to perceive the wood for
the trees, that the admitted-and decisive-infusion of political interest
into the process of recognition is not the typical and normal occurrence.
Undoubtedly, considerations of national interest cannot always be di-
vorced from the exercise of the function of recognition which, even when
performed in a spirit of detachment and of impartial fulfillment of an
international duty, may still have far-reaching political repercussions.
This, as will be suggested,"0 is a good reason for making a change in the
existing machinery in the direction of collectivization of the process of
recognition. It is not an adequate reason for misinterpreting the prepon-
derant evidence of the practice of States according to which recognition
is conceived in terms of the fulfillment of a legal obligation owed to the
community combining the requisite elements of statehood. If we keep
that fact in mind, we shall be in a position to approach with a better
prospect of success the consideration of the respective merits of the con-
stitutive and the declaratory doctrines of recognition.
VI.
THE RivAL DOCTRINES
The Constitutive View. Consideration of the theory of recognition in

international law has traditionally taken place in terms of the conflict
between the constitutive and the declaratory doctrines. The orthodox
constitutive view, which deduces the legal existence of new States from
the will of those already established, dates back to Hegel, one of the
85. As was the case when in 1860 upon the refusal of certain German States to recog-
nize the new Kingdom of Italy, Count Cavour withdrew the exequaturs of their consuls.
86. See pages 447-49 inra.

spiritual fathers of the nineteenth century doctrines of positivism and of

the absolute sovereignty of the State in the international sphere. States,
he taught, enter into legal relations with one another in conformity with
their own will by virtue of the act of recognition. Prior to that act no
relations of a legal nature can exist between then. 87 It was natural that
that view commended itself to those wedded to the conception of inter-
national law as a loose "law of co-ordination" based on agreement as dis-
tinguished from the overriding command of a superior rule of law. This
applies in particular to Jellinek, who gave the first modern formulation
of the constitutive doctrine. He insisted that legal relations in the form
of legal rights and duties .between two entities not subject to a superior
legal order can arise only as the result of mutual recognition of legal
personality. 8 He admitted that every State which is actually a part of
organized humanity enters ipso facto into the general community of
States, but he urged that recognition is necessary in order to make it
part of the juridical community of States. This confusing distinction
between (natural) statehood which is independent of recognition and
membership of the international community (or full international per-
sonality) which alone is a source of rights and which is dependent on
recognition, was taken over literally by a number of writers, including
Liszt 89 and Oppenheim. 0 The distinction seems to be of little value.
There is in law no substance in the assertion that a community is a State
unless we attach to the fact of statehood rights and competencies within
the internal or international sphere which international law is ready to
recognize. It seems irrelevant to predicate that a community exists as a
State unless such existence is treated as implying legal consequences.
Subsequently, the theory of constitutive consent as a basis of recogni-
tion, clearly foreshadowed by Triepel, 1 was developed by Anzilotti and
others as resting on a contract proper. Anzilotti's view may be summar-
ized as follows :92 Rules of international law are created by the consent
of States. Accordingly, a subject of international law comes into exist-
ence simultaneously with, but not before, the conclusion of the first agree-
87. HEGEL, ENZYKLOPXDIE DER PHILOSOPHISCUEN WISSENSCHAFTEN Im GRUNDRISSE
(Rosenkranz ed. 1870) §§ 545, 547. It is, however, significant that at the same time, Hegel
clearly perceived the importance of recognition as "the general principle of so-called inter-
nation law," id. § 547, and insisted that, given the necessary requirements, it is "the first
absolute right of a State" to be recognized by others. See also VON SoLZ, HoEiEs
STAATSPHILOSOPHIE UND DAS INTERNATIONALE RECHT (1932).
88. JELLINEK, DIE LEHRE VOx DNE STAATENVERBINDUNGEN (1882) 92-99; DIE RmuT-
LICHE NATUR DER STAATENVERTRAGE (1880) 48.
89. LiszT, loc. cit. szora note 2.
90. 1 OPPENHEIM, INTERNATIONAL LAW (3d ed. 1920) § 71.
91. He regarded recognition as part of a "Vereinbarung" (law-making agreement).
TRIEPEL, VOLKERRECHT UND LANDESRECHT (1899) 102.
92. See ANZILO-rI, CouRs DE DROIT INTERNATIONAL (Gidel trans. 1929) 160 et seq.

ment as expressed by the treaty of recognition or its equivalent. Such

recognition is reciprocal and constitutive (that is, creative of rights and
obligations which have not existed so far). Like any other treaty it is,
in the last resort, binding by virtue of the fundamental rule pacta slzet
servanda. This last proviso is a precaution calculated to meet effectively
the criticism of those who insist that if the existence of a State is ground-
ed in a treaty, that is, in the will of another State, then the State recog-
nized can no longer be regarded as anything else than a delegated and,
therefore, not sovereign part of the recognizing State. For, says Anzi-
lotti, the operation of the treaty is reciprocal and is supported by the over-
riding norm pacta suit servanda " by virtue of which the treaty is, hence-
forth, binding equally upon both States in conformity with a higher rule
of law.
The theory of mutual constitutive recognition as based on contract has
been assailed on a number of grounds. One of them, which is of some
cogency,9" has been that in actual experience there is no mutuality at all
in the process of recognition since the recognizing State appears to grant
a benefit without a compensating quid pro quo." The second, and much
more persistent, criticism has been that it is impossible to understand
how an entity which does not possess a juridical existence can conclude a
treaty which presupposes its personality. This immanental criticism has
93. It is useful to reproduce here the wording in the original: "la personalitA inter-
nazionale, resa possibile de questa norme, diviene attuale €±concreta col riconoscimento.
Questo, secondo noi, e puramente e semplicemente l'accordo iniziale a cui si collega il
sorgere di norme giuridiche per dati subietti e quindi la loro personalita l'uno di fronte
all'altro; pel suo stesso concetto 6 reciproco e costitutivo." Axz!omT, op. cit. sipra note
5, at 148. For more recent and occasionally somewhat modified affirmations of the con-
stitutive theory of recognition as based on reciprocal agreement, see Kzunm., DIE SUn-
jEKTE DEs V&s mumcr~s (1928) 317 ct seq.; PERAssE, LEzIoxI Di Dnurro INT=flA-
zioxAI (1922) 52-55; Heuss, Autfnahnme in die V5lkcrrechtsgencinshaft und vSI:errect-
liche Anerkennung (Deutschland, 1934) 18 ZErrsciUFT ftr V6LnERIEcnT 37, esp.
63 et seq.; Redslob, supra note 60. See also SpmoPouLos, T sT, DFDno n I1TznruvAT1o:x-
ALPuBuc (1933) 48.
94. Mutuality of advantage is absent only in the sense that recognition is for the new
State, as a rule, of more immediate political, economic, and sentimental value. When the
news of the recognition of Colombia by Great Britain readed Bogota, a British observer
reported that "Rockets are flying in all directions, bands of musick parading the street,
and the Colombians galloping about like madmen, exclaiming, 'We are now an independent
nation lll'" 1 VsraT, op. cit. supra note 19, at 385. On the other hand, it is difficult
to deny that in requesting recognition or acknowledging it when granted, the new State
undertakes by implication to comply with rules of international law in relation to the
recognizing State. To that extent, the transaction is not altogether one-sided.
95. ". . . la tesi della reciprocath bilateralitA del riconoscimento nettamente smen-
tita dalla pratica, la quale conosce soltanto latto di riconoscimento de parte dei vecchi
Stati verso il nuovo, senze che questo si sogni di riconoscere i vecchi . 1 Fnaozzr
I."
AD RomsANo, op. cit. supra note 7, at 103.

THE YALE LAW JOURNAL ' [Vol. 53: 385
been voiced by numerous writers, including for a time Kelsen, 96 Kunz,97

Diena, 5 and Cavaglieri."0 The last named, in order to meet the objec-
tion-more formidable in logic' 0 0 than in practice-that a community
which does not exist in law cannot take part in a legal transaction estab-
lishing its personality, has put forward the view that recognition is a
constitutive unilateral act on the part of the recognizing State. Recogni-
tion, he says, "does not declare an already existing quality; it creates
and attributes it" ;101 "it is a manifestation of the will of the already
existing States addressing itself to the new State." 102 The objection that
such unilateral conferment of personality is contrary to the principle of
State equality receives the easy answer that that principle applies only
in the relations of already existing States. 10 3 The precautions taken by
Cavaglieri and others against the charge of logical inconsistency may not
be altogether effective seeing that they are open to the retort that a uni-
lateral act, if conceived as having juridical effects, must have reference
to an entity which already exists within the legal system in question.
The other criticisms of the orthodox constitutive view are discussed
below." ° Whatever may be their merits, they fail to point to the cardinal
96. See Kelsen, Thgorie Gingrale du droit International Public (1932) 42 RECUMIL
DES COURS 121, 260, 268 et seq. More recently, Professor Kelsen has expressed his adher-
ence to the current constitutive view of recognition. See Kelsen, Recognition in Inter-
national Law (1943) 35 Am. J.IN-T. L. 605, 608-09.
97. KuNz, op. cit. supra note 2, at 90. See ROMANO, CoRso Di DiTro ITERN'AZION-
ALE (2d ed. 1929) 59.
98. Diena, Ancora qualche ossenuazione in tema di riconiscimento degli Stati (Italia,
1932) 24 R'ISTA DI DianTro INTERNAzioNALE 465, 478-79.
99. CAVAGLIERI, CoRso DI Diararo INTERNAZIONALE (1934) 213; La situazionw quiri-
dica dello Stato non-diconosciuto (Italia, 1932) 24 RiviSTA DnrrO INTERNAZIOIIALE
304, 338.
100. "To maintain that the legal personality of a State is the result of an act In which
it is created by that very State is to put forward an assertion reminiscent of the attempt
by Baron Munchhausen to extricate himself with the aid of his pigtail from the morass
into which he had fallen." Kelsen, supra note 96, 42 RECUEIL DES COURs at 269. However,
Professor Kelson now adheres to the constitutive view, and it is by some such act,
though considerably more complicated, that he explains the process of recognition. In the
first instance, he says, the new State proclaims itself a State with the effect that it "be-
comes a subject of international law for itself." It is then recognized with a constitutive
effect by other States. Finally, it, in turn, extends recognition to these States. See Kel-
sen, sunpra note 96, 35 Am. 3. INT. L. at 609.
101. CAVAGLIERI, op. cit. supra note 99, at 204.
102. Id. at 214.
103. Id. at 216. Strupp's theory of recognition follows similar lines. STRUmi, GRUND-
ZOGE DES POSITIVEN VOLKERRECHTS (1932) 75-78; Les Rgles G6n'ralcs do Droil da la
Paix (1934) 47 RECUEIL DES Couns 263, 301. For a valuable statement of the constitu-
tive view on different grounds, see Sander, Das Fakium der Rcvolution und die Konttini-
tit der Rechtsordnung (Deutschland, 1919) 1 ZEITSCHRIFT FOR 6FIFENTLiCuES RECUT 132.

defect of the constitutive doctrine as generally propounded, namely, that

the constitutive act creative of statehood is an act of unfettered political
will divorced from binding considerations of legal principle.
The Declaratory View of Recognition. The declaratory doctrine of

recognition can be stated in simple terms. A State exists as a subject of
international law-as a subject of international rights and duties-as
soon as it "exists" as a fact, that is, as soon as it fulfills the conditions of
statehood as laid down in international law. Recognition merely declares
the existence of that fact. These propositions are regarded by the adher-
ents of the declaratory view 105 as self-evident. In the words of MArign-
hac:
"La reconnaissance, en effet, prend l'Etat dj. existant et se borne
A constater qu'il rdunit les conditions voulues pour qu'on puisse en-
tretenir avec lui les rapports internationaux ordinaires. Donc
l'Etat existait avant la reconnaissance, car, autrement, il n'aurait pu
Etre question de reconnaissance: on ne reconnait pas le ntant." 100
105. These, to give what is believed to be a representative selection, include Brnuuu,

THE LAW OF NATIONS (3d ed. 1942) 100; 1 BUSTAMANTE, Dnoir INTEMATIO::AL PULUc
(trans. 1934) 171; 1 DELouT, op. cit. supra note 2, at 216-18; HEmLomz, GnuiDDE-
GRFFE DES V6L RaCHTS (1912) 59-69; KuNz, op. cit. supra note 2, at 85-95; 1 Nys,
LE DRorr INTER-ATIONALE (1912) 74; ULIAIA-, op. cit. supra note 2, at 67; VErnnoss,
V5LKERRECHT (1937) 114-16; Erich, mpra note 60, at 461 ct seq.; Williams, La Doc-
trine de la Reconnai.7sance en Droit Internatlonal ct ses D'cloppentcnts RLccts (1933)
44 REcTE. DES Cours 203, 236-38; and see page 432 infra. See also the Resolutions of
the Institute of International Law of 1936, note 130 infra. The declaratory vie'' of rec-
ognition of States seems to underlie also the Pan-American Convention on Rights and
Duties of States, Dec. 26, 1933. Article 3 of the Convention stated: "The political exist-
ence of the state is independent of recognition by other states. Even before recognition
the state has the right to defend its integrity and independence, to provide for its conser-
vation and prosperity, and consequently to organize itself as it sees fit, to legislate upon
its interests, administer its services, and to define the jurisdiction and competence of its
courts." Article 6 laid down the proposition that "the recognition of a state merely [sic]
signifies that the state which recognizes it accepts the personality of the other vith all the
rights and duties determined by international law." 6 HuDsoN, INT.MATioNA= LEG s A-
TiON (1937) 622-23. In signing the Convention the United States added a reservation,
which described as unfortunate the fact that the conference did not prepare a definition
or interpretation of the fundamental terms used in the Convention so as to "enable every
government to proceed in a uniform way without any difference of opinion or interpreta-
tions." Id. at 625. For a judicial affirmation of the declaratory view, see Deutsche Conti-
nental Gas-Gesellschaft v. Polish State, German-Polish Mixed Arbitral Tribunal, Aug.
1, 1929, reported in ANNUAL. DIGEST OF PUBLIC INTERNATIONAL IXM CASES 1929-1930,
Case No. 5. For discussion of this case, see Herz, Lo Problime do Ia Aaissane do L'l-tat
et la Decision du Tribunal Arbitral Mixte GeruIno-Polonaisdn Icr, Azout 1929 (France,
1936) 17 REvUE DE Daorr INTERNATIONAL Er BE LirsLAt, CoMPRLE 564.
106. MEMGNHAc, TRasrr BE Daorr PUBLIC INTERNATIONAL. (1905) 328.

THE YALE LAW JOURNAL [Vol. 53 -385
Or, in the more modern formulation of Erich:

"Quand un gouvernement 6tranger reconnalt un nouvel Etat il con-
state, par IAmme, qu'on se trouve devant un fait, un statut organis6
dont l'existence lui parait incontestable. On le reconnait parce qu'il
existe. On ne le reconnait pas afin qu'il prenne naissance." 101
If recognition is purely declaratory of an existing fact, what is its

juridical significance? The answer which, granting the premises, seems
to be most logical and which is often given, is that recognition is a politi-
cal rather than a legal act.' 03 Others maintain that its sole legal effect is
to establish ordinary diplomatic relations between the recognizing and the
recognized State. 0 9 This probably is also the intention of that large
number of adherents of the declaratory doctrine for whom recognition
signifies the acceptance of the new State as a member of the international
community." 0 Others still explain the declaratory effect of recognition
by the view that while prior to it the new State possesses all rights of
statehood under international law, only after recognition is it assured of
enjoying them."' Finally, some interpret the function of recognition as
being of evidential value because the recognizing State is henceforth
bound by its own declaration" 2
107. Erich, supra note 60.
108. BRIERLY, loc. cit. supra note 105; Miceli, II Problema del Riconoscimento nd
dirotto Internazionale (Italia, 1927) 19 RIViSTA DI Dn'rro INTERNAZIONALB 169.
109. See, in particular, KuNz, op. cit. supra note 2, at 95; ROMANO, op. cit. supra note
97, at 98; VER Ross, op. cit. supra note 105; possibly also FEDozzI AND ROMANo, op. Cit.
supra note 7, at 191; PALL EmI, Dia'rro INTERNAZIONALE PUBLICO (1937) 191-92; PERAssl,
op. cit. supranote 93, at 37; ScALFATI, op. cit. supra note 60, at 53. See also for an earlier
but weighty statement of this view, Strisower, Handbuch des VVlkerrechts (Deutsch-
land, 1890) 17 GRONHur's ZErTSCHRIFT FOR DAS PRIVATE UND 6FFNTICIIE RECIIT 716-
17.
110. See, e.g., 1 CALVO, DROIT INTERNATIONAL (5th ed. 1896) 240-41; 1 Nys, op. cit.
supra note 105, at 70; Holtzendorff, Entstehung und Untergang der Staaten in 2 HAND-
BUCH DES V6LKERRECHTS (1887) 18; Rougier, Les Rgcentes Guerres Civiles (France,
1904) 11 REvuE GENERALE DE DROIT INTERNATIONAL PUBLIc 225.
111. See, e.g., 1 FAucHiLLE, op. cit. supra note 18, at 306; FIORE, INTERNATIONAL LAW
CODIFIED (Borchard ed. 1918) 145; 1 PRADiER-FODERE, TRAITE BE Daor INTERNATIONAL
(1885) 237; 1 RiviER, PRINCIPES Du DaoIr DEs GENS (1896) 57; Diena, supra note
98, at 482, who distinguishes between "la capacita di diritto" (prior to recognition) and
"capacita di agire" (after recognition).
112. This, possibly, is the intention of Erich in stating that the declaratory nature of
recognition "nemp~che pas que la reconnaissance oblige celui qui reconnalt d'observer
une certaine attitude qu'il n'6tait pas oblig6 d'observer envers le mme tat avant la
reconnaissance." Erich, supra note 60, at 461. See Kelsen's statement that while
recognition is juridically of no significance, it may be of some usefulness as introducing
an element of certainty and stability. KELsEr, op. cit. supra note 62, at 231. It seems
that Professor Kelsen's view on the matter subsequently underwent some modification.

19441 RECOGNITION OF STATES 425
VII.
THE DECLARATORY VIEW OF RECOGNITION
The Declaratory View and the Practice of Courts. The above survey
of the various interpretations of the declaratory view of recognition can-
not claim the merit of clarity; for the differences between them are elu-
sive, and there is little correspondence between them and the practice of
courts and governments. This divorce from practice is strikingly illus-
trated by some of the main contentions of the adherents of the doctrine
of the declaratory nature of recognition. One of them is that courts rec-
ognize both the internal competence and the international rights of States
prior to recognition. Actually, if, as is often said, the answer to the
question as to the nature of recognition lies in the juridical position of
unrecognized States, 13 then the declaratory doctrine is untenable when
gauged by current judicial practice.
It is true that the purely declaratory effect of recognition and the full
internal and international existence of the State prior to recognition have
on occasion been maintained both by members of international tribunals
and by judges in municipal courts as a matter of national dignity and
interest. This was the case with the American members of the British-
American Mixed Commission under Article 6 of the Jay Treaty, when
they asserted that the United States were "in fact . . . independent so
early as 1775, and on the ever glorious and memorable fourth of July,
1776, they solemnly and formally declared to the world they were inde-
pendent, and from that period have maintained their independence with
honor and prosperity." 114 Numerous decisions of the Austrian, Polish,
Czechoslovak, and other succession States established by the Peace
Treaties of 1919 were in similar vein. Thus, for instance, the Czecho-
slovak courts repeatedly declined to admit the view that the Czechoslovak
State came into existence as the result of the coming into force of the
Peace Treaties. They held that the sovereignty of the Czechoslovak Re-
Thus in 1929, while denying that recognition is constitutive of international personality,
he admits that it may have important juridical (i.e. constitutive) results. Kelsen, La
naissance de MJtat et la formation de sa nationalit Les principes Icur application atu cas
de la Tclecoslovaquie (France, 1929) 4 Rauv D DROIT INTM.:AmrIoIJAL 613, 617. In
a more recent contribution Professor Kelsen, while distinguishing betveen political and
legal recognition, regards the latter as constitutive. Kelsen, supra note 96, 35 Am. J.
IxT. L. at 605-09. See also Salvioli, 11 Riconosciniento Dcgli Stali (Italia, 1926) 18
RIwSTA DI Dmrr-o INTERAzioNALR 330, maintaining that prior to recognition, the State
possesses the so-called fundamental, that is, univerally admitted rights under international
law, but that in many other respects recognition is constitutive.
113. See, e.g., Kunz's statement that "the juridical solution of the entire problem
of recognition of States depends on the proper understanding of the legal position of the
unrecognized State." KuNz, op. cit. supra note 2, at 42.
114. 3 AlooRa, INTElATioA. AuDmxcATioxs (1931) 244.

426 THE YALE LAW JOURNAL [Vol. 53: 385
public was established by the revolution of October 28, 1918, on which

day the Czechoslovak National Committee assumed sovereignty in all its
aspects." 5 The authority of these and similar pronouncements is limited.
It is natural for municipal courts or arbitrators appointed by the State,
especially in the period following the establishment of national indepen-
dence amidst turmoil and suffering, to use proud and resounding lan-
guage in relation to the "glorious and memorable" event of the proclama-
tion of national independence. Moreover, for the purposes of the muni-
cipal law of the State concerned, it is reasonable and proper that the
autonomous act of the will of its population should be regarded as decisive
for fixing the commencement of national independence. But these cases
do not decide the question of the international validity of the internal
acts of the newly established State. In foreign courts, the unrecognized
State and its acts do not legally exist prior to recognition. English and
American courts have been consistent in this attitude to the point not
only of refusing to admit the validity of acts of unrecognized States,
but also of continuing to apply the law of the parent State,' of declin-
ing to grant to the unrecognized State the ordinary jurisdictional immu-
nities,' of denying to it the right to sue, 118 and even of withholding
115. See the decision in the Establishment of the Czechoslovak State, Supreme Ad-
ministrative Court of Czechoslovakia, May 9, 1925, reported in ANNUAL DIGEST OF
PUBLIC INTERNATIONAL LAW CASES 1925-1926, Case No. 8; and see Foreign Bills De-
cree, Supreme Administrative Court of Czechoslovakia, March 14, 1925, reported id.
Case No. 9; Payment of War Tax (Czechoslovakia) Case, Supreme Administrative
Court of Czechoslovakia, Jan. 21, 1921, reported in ANNUAL DIGEST OF PUBLIC
INTERNATIONAL LAw CASES 1919-1922, Case No. 4; Rights of Citizenship (Estab-
lishment of Czechoslovak State) Case, Supreme Administrative Court of Czechoslo-
vakia, April 26, 1921, reported id. Case No. 5; Rights of Citizenship (Establishment of
Czechoslovak Nationality) Case, Supreme Administrative Court of Czechoslovakia, Dec.
15, 1921, reported id. Case No. 6. As to Poland, see Republic of Poland v. Harajewicz,
Polish Supreme Court, Jan. 16, 1923, reported in ANNUAL DIGEST OF INTERNATIONAL
LAw CASES 1923-1924, Case No. f. As to Austria, see A. L. B. v. Federal Ministry for
the Interior, Austrian-Administrative Court, Feb. 11, 1922, reported in ANNUAL DIGEST
OF PUBLIC INTERNATIONAL LAw CASES 1919-1922, Case No. 7, where the Court said:
".. . the Peace Treaty presupposes that the new States already existed legally before
it came into force, otherwise the new States could not have been parties. The legal
existence of the new Republic of Austria began on 30 October, 1918, the moment when
she came into life by the fundamental law of the Provisional National Assembly." Id. at
20-21. The same considerations apply to such cases as Mcllwaine v. Coxe's Lessee, 4
Cranch (U. S. 1808) 207, in which a United States Court found that a person born
in New Jersey after the Declaration of Independence acquired the nationality of that
State; or to the decision Del Vecchio v. Connio, Court of Appeal, Milan, Nov. 24, 1920,
46 FoRo ITALIANo, 1921 I. 209 (relating to Fiume).
116. Gelston v. Hoyt, 3 Wheat. (U. S. 1818) 246; The Nereide, 9 Branch (U. S.
1815) 388; Rose v. Himely, 4 Cranch (U. S. 1808) 241.
117. The Annette, The Dora, [1919] P. 105.
118. City of Berne v. Bank of England, 9 Ves. 347, 32 Eng. Rep. R. 636 (1804).

relief in claims for whose maintenance it was necessary to allege the exist-
ence of an unrecognized State. 119 The attitude of the courts of other
countries has, on the whole, been the same, although in most cases it can
be gauged only indirectly by reference to the decisions of those courts in
connection with unrecognized governments." 0
The "Existence" of a State and the Commnenceewnt of International

Persoiality. The principal feature of the declaratory view is the confi-
dent assertion that as the existence of a State is a fact, recognition is a
formal act of political rather than legal relevance. However, it seems
unhelpful and tautologous to say that recognition is purely formal and
declaratory for the reason that a State becomes a subject of international
law as soon as it exists or that a State exists as soon as there exist the
requirements of statehood. For such existence may be and often is the
question at issue. In municipal law the beginning of the existence of
physical or juridical persons is as a rule determinable by external tests.
With regard to physical persons there has been some discussion, espe-
cially in the domain of criminal law, as to the precise moment of the
beginning of life, but the question does not on the whole give rise to
undue difficulties. Neither is it irrelevant that, apart from the question
of its commencement, the mere physical existence of a person does not
119. Taylor v. Barclay, 2 Sim. 213, 57 Eng. Rep. R. 769 (1828) ; Thompson v. Powles,
2 Sim. 194, 57 Eng. Rep. R. 761 (1828) ; Jones v. Garcia del Rio, Turn. and Russ, 297, 37
Eng. Rep. R. 1113 (1823). See as to all these cases, Bushe-Fox, The Court of Chanecry
and Recognition 1804-31 (1931) 12 Bnm'rsH YEAR BoOr OF IxoznI:ATXo:A, LAW 63.
That rigid attitude was modified to a slight extent by common law courts, as distin-
guished from Chancery, but not to the extent of granting any rights to the unrecognized
State or of applying its law. See Bushe-Fox, Unrecognized States: Cases i; the .4dwir-
alty and Comnwn Law Courts1805-26 (1932) 13 BaRmsn YEAR BOOK oF IN=TsuATI'o;AL
LAW 39.
120. See, e.g., as to France, HENRY, LES GOUVERNEuFInTS DE FAIT DEVANT rF JCGE
(1927) 97-99; as to Italy, see the decision in Katsik-is c. Societa Fati Svorori, Tribunal
de Gbnes, May 14, 1923, 50 J. D. I. 1021, 1024, where the court stated that "la rezon-
aissance politique de l'ktat 6tranger est une condition indispensable A le exercice de son
activit6 juridique dans les rapports avec les autres Etats." As to Switzerland, see the
decision relating to non-recognition of the law of Soviet Russia, De cuius russe, Civil
Tribunal, Berne, July 21, 1924, 52 CLUNEr 491. The practice of States contradicts also
another assertion often propounded by the adherents of the declaratory view, naindy,
that the effect and purpose of recognition is nothing more than a declaration of willing-
ness to enter into diplomatic relations. The treatment of the immediate effects of recog-
nition (or, what amounts to the same thing, of the effects of non-recognition) before
judicial tribunals negatives that view, which is equally inconsistent vith the fact that a
decision to terminate diplomatic relations with a recognized State--a not uncommon oc-
currence not only in time of war-has never been regarded as tantamount to withdrawal
of recognition. See, e.g., Princess Alga Paley v. Weisz, [1929] K. B. 718, a case in which
the principle of Luther v. Sagor, [1921] 1 K. B. 456, was followed notwithstanding the
fact that in the meantime diplomatic relations had been severed.

428 THE YALE LAW JOURNAL (Vol. 53: 385
necessarily carry with it full legal personality. Thus there have been sys-
tems of law which, in admitting the institution of slavery, have regarded
certain physical persons as incapable, wholly or in part, of possessing
legal rights. Legal personality is a creature of law, not of nature. Neither
is the rise of juristic persons like corporations an automatic question of
fact, although, as in the case of companies, the nature of the various re-
quirements of registration, minimum capital, and the like is such as to
render their ascertainment comparatively easy.
This is not the case with regard to the determination of the beginning
of the existence of States. When we assert that a State exists as a nor-
mal subject of international law by virtue of the fact of its existence, we
must necessarily have in mind a State fulfilling the conditions of state-
hood as laid down in international law; in particular, we must be referr-
ing to an independent State, that is, a State with a government indepen-
dent of any other State. But such independence is often a controversial
question which cannot be answered by the tautologous test of existence.
In the first instance, in the case of communities aspiring to independent
statehood subsequent to secession from the parent State, the sovereignty
of the mother country is a legally relevant factor so long as it is not
abundantly clear that the lawful government has lost all hope or aban-
doned all effort to reassert its dominion. It is a self-deception to assume
that a difficult problem has been solved by such statements as the one that
the Latin-American Republics existed as States as soon as they became
independent of the mother country. For the question of actual indepen-
dence is not one capable of any easy or automatic answer. A temporary
success resulting in such independence would not, so long as there exists
a reasonable prospect of the mother country asserting her authority, jus-
tify in law the recognition of statehood. The same applies to the asser-
tion that the American Confederacy during the Civil War was, as it
claimed to be, a State because it "existed," or that the United States
existed in international law as a State as soon as they declared their in-
dependence-as soon as they "existed." 121 The fact that the mother
country does not, for the time being, make an effort to regain sovereignty
may not always be decisive. In all cases in which, on an objective esti-
mate, recognition is premature and as such violative of international law,
the seceding community, although actually wielding a substantial degree
of independence of the lawful authority, is not a State in international
law although it may claim that it "exists."
121. Only a few months before the recognition of the United States by France, the
French Ambassador informed the British Government that "We [France] have repeatedly
told them [the United States], you call yourselves an independent State, but you are not
so; when Great Britain has acknowledged that Independency, then we will treat with
you, but not before; at present you are at War with your Sovereign who by no means
admits the Independency you assume." Cited in GoEmFL, op. cit. spra note 83, at 89.

Similarly, apart from secession from the mother country, mere "exist-
ence" as a State offers no answer to the question of existence as a State
in international law, that is, as a normal subject of international law. The
"State" in question must be independent of other States. As is clearly
shown by the example of Manchukuo, such independence cannot be as-
certained by any simple test of "existence." Did Manchukuo, established
by Japan as a State subsequent to her invasion of the Chinese province
of Manchuria in 1932, constitute a State by the very fact of its "exist-
ence"? Apart from the continued claims of the mother country and the
so-called principle of non-recognition,1 - the decisive question governing
the matter was whether Manchukuo was independent of the State which
had detached that province from China. The answer which commended
itself to impartial observers has been that that province, being under the
military occupation and the controlling domination of Japan generally
in most aspects of its internal and external government, was not indepen-
dent.ma The example of Manchukuo shows that it serves no useful pur-
pose to declare that a community is a State because it "exists" or claims
to exist. The question is: Does it exist as a State independent of other
States? It is unhelpful to say that Manchukuo existed as a State inde-
pendently of recognition. For the prior question must be answered,
whether it "existed" as a State in the meaning of international law. Pro-
fessor Borchard has suggested that "Manchukuo exists whether the fact
122. The principle of non-recognition of territorial changes and situations brought
about by means contrary to international law was, subsequent to the announcement of
the attitude of the United States and of the League of Nations in connection with the
invasion of Mlanchuria, largely responsible for the recrudescence of the declaratory view
of recognition. The principle of non-recognition is not, it will be noted, inconsistent with
the legal and constitutive view of recognition as here put forward, namely, the view of
recognition as a legal obligation to recognize statehood whenever there exist the requisite
conditions of fact not inconsistent with international law. See pages 403-12 supra. See
also, with reference to Manchukuo, Lauterpacht, The Pri:ciple of Non-Recogni on in
InternationalLaw in LEGAL. PROBLEmS IN THE FAR EAsTEaw Co:Nrucr (Vright ed. 1941)
129. The facts giving rise to and the situation brought about by the establishment of
Manchukuo were in violation of international law. However, in the case of Manchukuo
non-recognition follows with equal cogency from the absence of one of the essential con-
ditions of statehood, namely, independence.
123. Yet it is apparently with reference to Manchukuo that Dr. Baty speaks of a "per-
fectly independent community" being denied the rights of a State. Baty, Abuse of Terns:
"Recognition"; "IVar" (1936) 30 Am. J. INT. L. 377. Similarly, an Italian writer spohe
in 1938 of "e completa dimostrazione della esistenza, nella Manciuria, di tutti gli elementi
di uno Stato indipendente." ScALPATi, op. cit. supra note 60, at 215. So, in 1942, does
Professor Borchard, supra note 7, 108. See also to the same effect, Cavare, La Rccon-
iwissance de L'Etate et- le Manchoukuo (France, 1935) 42 REvuE Gm.Eirnmx D DMorr
IxTERauNATIOxAL PuLIc 10. When, therefore, Erich says: "les Litats souverains sont, dans
l'organisation actuelle du monde, de par leur mEmne, des personnes," the solution is unhelp-
ful without a prior determination whether the State is "souverain' or not. Erich, wupra
note 60, at 463.

430 THE YALE LAW JOURNAL [Val. 53 : 385
is recognized or not." 124 It is respectfully submitted that "the fact"

which in his view clearly "exists" is not an independent State in the con-
templation of international law. Can it be accurately maintained that in
1942, or at any preceding date, Manchukuo existed as an independent
State, that is, as a State in international law, and not as a subservient
province of Japan endowed for the purpose of deception, which was not
even intended to deceive, with flimsy and transparent paraphernalia of
a spurious statehood?
In February, 1944, Soviet Russia adopted amendments to her consti-
tution by virtue of which each Republic of the Union acquired "the right
to enter into direct relations with States, to conclude agreements with
them and exchange diplomatic representatives with them." 125 It was
maintained by some that by virtue of these amendments the Republics of
the Union acquired the position of independent States entitled to full
equality and voting at international conferences and that their recogni-
tion as such was unnecessary in view of the obvious fact of their "exist-
ence."
The Automatic Test of "Existence." Reliance on the automatic test

of existence is the gist of the declaratory doctrine of recognition, and it
is, therefore, profitable to adduce some further examples showing the un-
helpfulness of that test. Thus the State of the Vatican City as estab-
lished by the Lateran Treaty of 1929 suggests that not only independence
but also the existence of other requirements may be a subject of contro-
versy. The territory of the Vatican City does not exceed forty acres;
one element of statehood is thus reduced to a vanishing point. The ques-
tion whether, notwithstanding the smallness of its territory, a community
is entitled to the rank of a State in international law is not one which can
be answered by a simple reference to the fact of its existence. The case
of the Vatican City also suggests that the second element of statehood,
namely, the existence of a population subject to the natural process of
renewal and growth, may equally be a subject of controversy. The popu-
lation of the Vatican City is composed almost exclusively of persons re-
siding there by virtue of their office. It is thus of a radically different
nature from the population of any other State, and for this reason, also,
doubts have been expressed whether it can be deemed to be a State.
Moreover, its statehood has been questioned for the reason that it was
set up for the fulfillment of purposes other than those usually associated
with temporal States. Finally, its very independence has been put in
question in relation to both the Italian State and the Holy See. No view
is expressed as to the justification of these doubts concerning the state-
124. Borchard, supra note 7, at 109.
125. Russia: Law of Feb. 1, 1944, on the Granting to Union Republics of Authority
in the Sphere of Foreign Relations.

hood of the Vatican City. They are conclusively answered, it is believed,

by the fact of the almost universal recognition of the Vatican City by
other States. But it is that recognition-not the "existence" of the Vati-
can City as a State-which alone is conclusive.
By the same token, a protected State is not a State in international
law, although it may claim to "exist" as a State and is as a rule referred
to as such. British courts have treated the native States of Johore, of
Kelantan, of Baroda, and others as sovereign and independent States in
actions involving jurisdictional immunities, but it would be misleading
to assert that they are States in international lav because they "exist."
The question is whether they are independent in the meaning of inter-
national law. But this is not a question admitting of an automatic and
self-evident answer.
In 1871 a certain Sydney Burt and some other adventurous British
subjects constituted a government in the Fiji Islands, an uncivilized un-
recognized State under King Thakombau, who was the puppet of tile
government thus set up. Was that community and its government a
State because it "existed"? This was not the view of the Law Officers
who, in a series of Opinions, reported that notwvithstanding any recogni-
tion de facto of the Fiji authorities, the British subjects in question should
not be accepted as subjects of the new State, not yet duly recognized, and
that "Her Majesty's Government may interfere with the acts and engage-
ments of British subjects within Fiji and may declare certain acts and
engagements to be legal or illegal in the case of British subjects within
Fiji." 12
In 1894 Mr. Harden Hicky, formerly director of a commercial jour-
nal in Paris, purported to establish a State on an island seven hundred
miles off the coast of Brazil. He claimed recognition as a State and
addressed his request to Switzerland asking for admission to the Univer-
sal Postal Union. The Federal Council intimated that in these matters
it was proper for the colonial and maritime Powers to take the initia-
tive. 27 Did Mr. Hicky's commonwealth enjoy international personality
by virtue of the fact of its "existence" independently of recognition?
The above examples may appear unduly numerous and polemical.
But a measure of elaboration is perhaps indicated if the science of inter-
national law is to be freed of a plausible but unhelpful formula often
126. Opinion of Law Officers, Aug. 9, 1871, F. 0. 83/2314 (unpublished). See also
to the same effect, Opinions of June 14, 1872; July 18, 1872; Dec. 9, 1872 (all unpub-
lished). See also the Fijian Land Claims, American-British Claims Tribunal, Oct. 2',
1923, NmLsoN, A.,Aaxc A n BarmsH CLAImS AnrRmArIoN UxnE THE SPUCIAL AGREE-
MENT OF AUGUST 18, 1910: REPORT (1926) 588, with regard to some questions of State
succession concerning land grants by native chiefs.
127. (France, 1934) 1 RavuE GENEnALE DE Dnoir INTEPUNATIONAL PuDLIc 179; Le
Temps, Jan. 30, 1894, p. 2, col. 2.

THE YALE LAW JOURNAL [Vol. 53:' 385
relied upon by writers of distinction. We find, for instance, Sir John

Fischer Williams lending the weight of his authority to the automatic
test of "existence." He quotes in support of the declaratory view of
recognition the Greek poet's saying: "This is alone beyond the power of
Heaven, To make what has been not to have been." 128 But the real ques-
tion is whether the thing "has been." Sir John himself deplores as un-
fortunate the premature grant of recognition of statehood to some com-
munities after the first World War. Did these communities "exist"? It
is only recognition given in good faith in pursuance of legal principles
that can decide. There is little force in the often repeated argument that
France was fully justified in insisting, in her answer to the British com-
plaints, that she recognized the United States for the reason that the
United States "existed" as a State. The question is whether it existed
as an independent State, that is, whether the recognizing State was jus-
tified in its view that the proclaimed independence was effective, in the
sense that the chance of the mother country asserting her sovereignty
had disappeared beyond all hope and was no more than a brutum fuinten.
Neither is it always clear whether the new community claiming to exist
as a State possesses an effective government of a sufficient degree of sta-
bility. The manner in which the authoritative Committee of Jurists in
the controversy concerning the Aaland Islands decided that Finland, not-
withstanding its recognition by a number of States, was not a State at
the crucial date because of the absence of effective governmental con-
trol, is instructive.'29
128. See Williams, supra note 105; Sonw Thoughts on the Doctrine of Recognition in
International Law (1934) 47 HAv. L. REV. 776, 785.
129. The Committee of Jurists which in 1920 was entrusted by the Council of the
League of Nations with the task of giving an Advisory Opinion upon the legal aspects
of the Aaland Islands question expressed the view that, although Finland was recognized
by Soviet Russia on January 4, 1918, by Sweden on the same date, by France on January
5, by Denmark and Norway on January 10, by Switzerland on February 22, and by num-
erous other States, "these facts by themselves do not suffice to prove that Finland, from
this time onwards, became a sovereign State." The Aaland Islands Question. Report
of the Committee of Jurists (1920) LEAGUE OF NATIoNs OFFICIAL JOURNAL, Spec. Supp,,
No. 3, 8. This was so because, in the view of the Committee, Finland at that time lacked
a stable political organization and because the public authorities were not strong enough
to assert themselves throughout the territory of the State without the assistance of for-
eign troops. Id. at 9. See also Report of the Permanent Mandates Commission (1931)
12 LEAGUE OF NATiONS OFFICIAL JOURNAL 2176, on the question of the conditions under
which a territory can be released from the mandatory regime. These included: (a) a
settled government and an administration capable of maintaining the regular operation
of essential government services; (b) capacity to.maintain its territorial integrity and
political independence; (c) capacity to maintain peace throughout the territory. For a
somewhat different formulation of the conditions of statehood, see the Memorandum of
the Belgian Government, What Is the Nationality of Territories Placed under Mandate?
(1522) 3 LEAGUE OF NATONS OrFCIAL JOURNAL 607.

It is clear from what has been said that there is no substance in the
assertion that a State commences its international existence with concom-
mitant rights and duties as soon as it "exists."" On the contrary, recog-
nition, when given in the fulfillment of a legal duty as an act of appli-
cation of international law, is a momentous, decisive, and indispensable
function of ascertaining and declaring the existence of the requisite ele-
ments of statehood with a constitutive effect for the commencement of
the international rights and duties of the community in question.
VIII.
THE CONSTITUTIVE VIEW OF RECOGNITION
Criticism of the Constitutive View on Ethical Grounds. It will be

apparent from the preceding analysis of the declaratory doctrine of rec-
ognition that it is not regarded by the author as acceptable. For reasons
already given and to be stated in more detail, the constitutive view is here
considered to be in accordance with the practice of States and with sound
legal principle-though it is not the constitutive view as generally pro-
pounded, namely, the view that recognition is an act of policy not imply-
ing any legal duty to the community claiming recognition.
One of the principal grounds of the criticism raised against the con-
stitutive view by its rival doctrine has been that it is offensive to consid-
erations of ethics and humanity. Thus it has been argued that if the
community in question does not in the contemplation of international
law exist prior to recognition, then it is neither protected by international
law in the essential aspects of its existence nor bound to respect the
equally vital legal interests of other States. It has been maintained that
on the constitutive view of recognition the territory of the unrecognized
State could be invaded; that (as in the case of secession from an already
recognized State) its subjects, hitherto indirectly protected by interna-
tional law, would suffer a calamitous capitis dimninuto; that it could be
treated in a war with utter disregard of rules of warfare; and that, in any
war in which it may be engaged, third States would not be bound by obli-
gations of neutrality. Similarly, it has been pointed out that all these
iniquities may, mutatis mutandis, be inflicted by the unrecognized State
130. These criticisms apply also to the Resolution of the Institute of International Law
of April, 1936, which lays down that "recognition of a new State is the free act by which
one or more States acknowledge the existence" of certain facts creative of statehood; that
"recognition has a declaratory effect"; and that "the existence of a new State with all
the juridical effects which are attached to that existence, is not affected by the refusal
of recognition by one or more States." (1936) Am. J. IyT. L., Supp., 85. The description
of recognition as being a "free" act apparently means that, although it has only a "declara-
tory effect," it can be withheld at discretion.

upon already existing States. These perturbing possibilities have been

vividly painted by writers. 13' However, the prospects involved in this
criticism of the constitutive view are not as terrifying as may appear at
first sight. The territory of the unrecognized community is liable to inva-
sion but, under traditional international law,1"' a State may invade the
territory of a recognized State as soon as it has gone through the for-
mality of declaring war or has otherwise manifested its animus belliger-
endi. Should an unrecognized community become engaged in war, then
in all probability the mutual observance of most rules of warfare will
naturally follow for reasons of humanity, of fear of retaliation, of mili-
tary convenience, of conservation of military energy, and, generally, for
reasons similar to those for which rules of warfare are observed in a civil
war between the lawful government and the rebels declared to be traitors.
For the same reason third States will, unless they decide to become bel-
ligerents, observe neutral conduct in any wars in which the unrecognized
community may be involved. The subjects of the unrecognized commu-
nity may, it is true, be maltreated in foreign States without internation-
al law offering any protection, but here again the legal position repre-
sents only inadequately the realities of the situation. If a State is deter-
mined to treat some aliens in defiance of the canons of civilization or of
generally recognized international law, and if the State affected is a weak
State unable or unwilling to protect its subjects by retaliation or other-
wise, then recognition will seldom prevent that kind of conduct. On the
other hand, if the unrecognized State is in a position effectively to show
its displeasure, the absence of recognition will not be likely to cause se-
rious injury to its interests or to those of its subjects. Moreover, absence
of recognition does not necessarily render impossible regular intercourse
in connection with the protection of nationals abroad and with other
purposes; neither does it prevent measures of accommodation calculated
to meet the circumstances of the case.
Similar considerations apply to the converse case, namely, to such acts
of the unrecognized community as would, if performed by a recognized
State, constitute a violation of international law. Experience does not
show that the fact of non-recognition is taken advantage of by either
side as an Opportunity for committing acts otherwise illegal under inter-
national law.
131. See, e.g., BRImLY, op. cit. rpra note 105, at 100; KuNz, op. cit. supra note 2, at
89; Williams; supra note 105, at 237-38.
132. As distinguished from international law established by the Covenant of the League
and the General Treaty for the Renunciation of War. In theory, a State which has been
recognized by two-thirds of the members of the League who have voted for its admis-
sion may, through Article 17 of the Covenant, secure the advantages of assistance against
invasion by the non-recognizing State.

Full recognition is refused as a rule for the reason that the conditions
of recognition of statehood or governmental capacity are not entirely
fulfilled. But it does not follow that the unrecognized community must
be ignored altogether, as is convincingly shown by the manifold forms of
official and unofficial intercourse with unrecognized governments. The
unrecognized community is taken notice of so far as this proves neces-
sary. Thus, for instance, an unrecognized State or government or bel-
ligerent cannot in reliance on the formal logic of its non-recognition
claim the right to commit acts which if done by a recognized authority
would constitute a violation of international law. States cannot be com-
pelled to choose between recognition, which they deem themselves right-
fully entitled to refuse, and passive toleration of unlawful acts. They
can have recourse to remonstrances, protests, retorsion, reprisals, or war.
They need not-and probably will not-pay much attention to the argu-
ment that a State or government which has not been recognized does not
exist as a subject of international rights and duties and that it cannot
therefore be saddled with effective responsibility. 1 3 The answer to such
arguments is twofold. First, there can be no objection to treating the
unrecognized State as if it were bound by obligations of international law
if these obligations are so compelling as to be universally recognized and
if the non-recognizing State acknowledge itself to be bound by them.
To that extent the community in question, although not recognized gen-
erally, may be recognized for particular purposes on the not unreason-
able ground that the rules in question are general and mutual in their
operation. Secondly, if the offending authority declines because of its
non-recognition to act or to be dealt with on the basis of law, it must
be dealt with-and suppressed-as a physical evil. There is in cases of
this description a discrepancy--an unavoidable one-between law and
fact. The seceding community possesses a measure of statehood; it does
not possess enough of it to justify full recognition. In such cases
the flexible logic of the law adapts itself to circumstances. It re-
fuses to accept the easy dichotomy: either no rights and duties or all
rights and duties following upon recognition. A situation is created in
which the unrecognized community is treated for somc purposes as if it
were a subject of international law. It thus becomes a subject of inter-
national law to the extent to which existing States elect to treat it as such
in conformity with general rules of international law. In many cases sub-
stantial rights of statehood have been accorded, notwithstanding the ab-
133. For a clear example in which a State was held bound, in relation to the State
which had refused to grant recognition, by the obligations contracted by a government
to which the recognition had been refused, see the award in the Dispute between Great
Britain and Costa Rica, Taft, sole arbitrator, Oct. 18, 1923, reported in AmNUAL DiGEsT
OF PUBLIC INTER.NATIONAL LAW CAsEs 1923-24, Case No. 15.

sence of recognition
34
as a State, through recognition of belligerency or
insurgency.1
The "Right" of Existing States to Determine Statehood. The circum-

stances which reduce.to its true proportions the possible mischief of the
constitutive view do not, it must be admitted, dispose altogether of the
possibility that because of the improper exercise of the function of rec-
ognition, a community may through no fault of its own be deprived of
the benefits of international intercourse, that the rights acquired under
its laws may be without effect abroad, and that its citizens may remain
without the usual diplomatic protection. These are weighty considera-
tions. They are only partly met by the suggestion that these rights will
be enjoyed in relation to the States which agree to grant recognition,
that the number of these States will in the long run be in some propor-
tion to the merits of the claim to recognition, and that in relation to the
others the weapon of retaliation may prove to be not altogether without
effect. The fact is that the denial of rights of statehood to a community
which seems to be entitled to them is an anomaly which it is difficult to
justify. But these apparent consequences of the constitutive view are, in
fact, attributable to a cause fundamentally different from the antinomy
of the constitutive doctrine conceived in its essential aspect. They are
due not to the circumstance that recognition is constitutive, but to the
fact that insofar as it is treated as a matter of policy and not of legal
duty, it may be liable to abuse. This particular criticism leveled against
the constitutive view is, in fact, based not on its being constitutive, but
on its being political and arbitrary. But this defect is an aberration, not
an unavoidable consequence of the constitutive view.
These considerations, it may be noted, supply also the answer to a ques-
tion which is often asked: Why should the mere accident of prior exist-
134. Similar results may be reached by way of the doctrine of so-called fundamental
rights of the individual. It may be argued that, notwithstanding the absence of recogni-
tion, a community is entitled to the rights which the conscience of mankind gives to indi-
viduals, regardless of whether they act in isolation or collectively. The fundamental rights
of the individual are not lost for the sole reason that he acts in conjunction with other
individuals. Recognition makes a community a normal subject of international law or,
as it is sometimes said, a full member of the international community with all the normal
consequences attaching thereto. That does not mean that in the absence of such recogni-
tion, it is in conformity with the spirit of international law that the individuals compos-
ing the community in question should be treated as being altogether outside the pale of
law. Similarly, individuals composing a community unrecognized as a State cannot be-
cause of that fact acquire an immunity from the fulfillment of duties corresponding to the
fundamental rights of the individual. The doctrine of the fundamental rights of the indi-
vidual protected by international law is, of course, a highly controversial, although-it
is to be hoped-not entirely discredited doctrine. It acquires a special significance in
situations connected with the rise of international personality in cases in which the border
line between law and fact as well as between law and morals is necessarily lacking in
precision.

ence give to some States the right to call into being the full international
personality of rising communities? 115 The answer is that personality as
such cannot be automatic and that as its ascertainment requires the prior
determination of difficult circumstances of fact and law, there must be
someone to perform that task. In the absence of a preferable solution,
such as the setting up of an impartial international organ to perform that
function, it must be fulfilled by already existing States. The valid objec-
tion is not against the fact of their discharging it, but against their car-
rying it out as a matter of arbitrary policy as distinguished from legal
duty. Criticism must properly be directed not against the constitutive
nature of recognition, but against the abuse of 3a
its true function, which
is one of applying a rule of international law.
Tie Logical Argument against the Constitutive Viewz. We may now

consider the various criticisms which have been raised against the con-
stitutive view on logical grounds. The first is directed against that aspect
of the constitutive doctrine which considers recognition to be in the
nature of an agreement between the old and new States. It points to the
logical impossibility of the creation of international personality taking
place by means of a treaty which presupposes the existence of the State
in question.' 37 The notion of recognition as a bilateral agreement cannot
be accepted, not for reasons of logic, but mainly because it finds no sup-
port in the practice of States, where recognition is as a rule the result
of a unilateral request by one party and unilateral compliance by the
other. 3 ' But it is useful to attempt to meet that particular logical criti-
cism because it has a bearing on the question previously discussed wheth-
er communities which have not been recognized as States may not have
a limited international capacity insofar as it has been expressly conceded
to them. The cogency of the argument as to the logical impossibility of
a new State taking part in its own creation as an international person by
means of a treaty which presupposes its existence is more apparent than
real. The fact that recognition is provided for in a treaty does not imply
that it is due to the treaty. It is not difficult to regard a given treaty as
fulfilling two purposes at the same time, namely, as recording the uni-
lateral act of recognition of the new State, which thereupon takes part
135. See, e.g., Williams, supra note 105, at 236.
136. The constitutive doctrine of recognition is not, it may be noted, a case of impor-
tation into the domain of law of the idealistic principle of "esse est percipi" in philosophy.
The analogy, if any, is superficial. There is no kind of compulsion to induce perception.
But there is a legal duty of recognition.
138. Similarly, the contention, occasionally advanced, that in order to establish the
plenitude of international rights and duties between the established and the new com-
munities, it is also necessary for the latter to recognize the former, belongs to the domain
of pure theory. That contention is, upon analysis, a variation of the contractual theory.

THE Y4LE LAW JOURNAL [Vol. 53 : 385
in the contractual determination of the details of the future relationship.

The practice of States shows frequent examples of such treaties preceded
or accompanied by recognition in one and the same instrument. This, in
fact, is the typical form of treaties of this description. Thus, for instance,
Article 1 of the Definitive Treaty of Peace between Great Britain and
the United States of September 3, 1783, provided that "His Britannic
Majesty acknowledges the said United States . . . to be free, sovereign
and independent States. . . ."; and that "he treats with them as such,
and for himself, his heirs and successors, relinquishes all claims to the
Government, propriety and territorial rights of the same, and every part
thereof." ' The same Treaty then laid down the details of the settle-
ment of the principal matters at issue between the two countries. In the
Treaty of August 29, 1825, between Portugal and Brazil, 140 Article 1
provided as follows: "His Most Faithful Majesty recognizes Brazil as
an Empire, independent and separate from the Kingdoms of Portugal
and Algarve. . . ." There followed detailed provisions touching the
future relationship of these two States.
In these and similar treaties recognition, although expressed in the
treaty, does not form part of the contractual arrangement. The treaty is
merely a convenient and suitable opportunity for registering the fact of
recognition. If the treaty were to lapse, for instance, as the result of a
subsequent declaration of war. the recognition expressed therein would
nevertheless remain in full vigor. 141 Recognition is independent of the
content of the treaty.
Another objection to the constitutive view on logical grounds is direct-
ed against the notion of recognition as a unilateralact on the part of the
recognizing State. That criticism is based on the contention that juri-
dical effects even of a unilateral act cafinot be conceived except between
entities already having juridical personality. 14 It is unnecessary to dis-
cuss that criticism in detail for, even if justified with regard to the uni-
lateral character of the constitutive act of recognition conceived as an
act of purely political discretion, it does not apply to a constitutive act
of recognition conceived as an act of application of international law in
pursuance of a legal duty. What happens in the latter case is that the
international legal system as represented by the States already existing
extends its orbit to cover a new component part of the international so-
139. 3 MooRE, op. cit. supra note 114, at 2-3.
140. 12 BR. AND FOR. STATE PAPER (1846) 675.
141. There was little justification, therefore, for the apprehension expressed in Society
for the Propagation of the Gospel in Foreign Parts v. New Haven, 8 Wheat. 464 (U. S.
1823), that the War of 1812 might be regarded as terminating all former treaties with
Great Britain; ". . . even the treaty of 1783, so far as it fixed our limits, and acknowl-
edged our independence, would be gone, and we should have had again to struggle for
both upon original revolutionary principles." Id. at 494.
142. See page 422 supra.

ciety. This may, because of the absence of a central organ of recogni-

tion, amount to a complicated and baffling procedure inasmuch as the
existing States may not all speak with the same voice. Apart from this,
the process of recognition thus conceived as a unilateral act is not open
to objection. The practice of States shows that recognition is as a rule
a unilateral act, unless we regard the request for recognition, which is
usually but not universally made by the new State, as an offer to recog-
mze the existing State with the implied obligation to respect the rules of
international law in relation to it, and the actual recognition as accept-
ance of the offer. But such a construction is artificial and unnecessary.
It begs the question inasmuch as it postulates that all obligations of inter-
national law must have their source in voluntary agreement. 143
Similarly, it is difficult to accept the view that if recognition is regard-
ed as constitutive, it amounts to a subordination of the recognized com-
munity to the recognizing State by transforming it into a delegated
authority derived from the law of that State. Even if it were true that
the existence of the new State is derived from the will of the recog-
nizing State, this fact could not leave any permanent stigma of subordi-
nation, for recognition once given creates an obligation which like any
other international obligation owes its continued binding force to inter-
national law and not to the will of the State concerned. Moreover, there
would be a measure of subjection if recognition were an act of policy
as distinguished from one of application of international law. But, as
stated, that assumption does not necessarily follow from the constitutive
view, although it does follow from the notion of recognition conceived
as an unfettered act of policy.
Finally, it is not easy to admit the relevance of the criticism that under
the constitutive view a situation is created in which a new community
exists as a State for those States which have recognized it, but not for
others. For this is a criticism not of the constitutive doctrine, but of the
imperfection of international organization due to the fact that there is
no international authority competent to recognize the existence of the
new State. The declaratory view, it is true, avoids this particular difficul-
ty, but it does so by the easy device of asserting that a State exists in
international law as soon as it exists and that, accordingly, recognition
is a formality. It has been shown that that formula offers no solution
143. There are isolated instances of mutual recognition of a semi-contractual nature.
See, e.g., the official communique issued after the ceremony of the signature of the Lat-
eran Treaty, Feb. 11, 1929, stating that the Holy See "recognizes the Kingdom of Italy
under the dynasty of the House of Savoy, with Rome as the capital of the Italian State"
and that "Italy, on its side, recognizes the State of the Vatican City under the sovereignty
of the Supreme Pontiff. Docuta. m;rs oF INTERNATIONAL AFFAms 1929 (1930) 216, 22.
There is no such mutual recognition in the text of the Treaty. Mutual recognition in this
particular case might also be explained by reference to the necessity of recognition on the
part of the Vatican City of the anne.mtion by Italy of the Papal State in 1870.

of the difficulty. On the other hand, once recognition is conceived not 144
as subject to the vicissitudes of political bargaining and concessions,
but as an impartial ascertainment of facts in accordance with interna-
tional law, the likelihood of divergent findings is substantially dimin-
ished.
Retroactivity of Recognition and Traditional Doctrines. The princi-

ple of retroactivity of recognition as acted upon by courts has proved a
stumbling block both for the constitutive and for the declaratory doctrine.
It is, therefore, convenient to attempt to assess its place in the field of
recognition, although the judicial pronouncements on the matter bear
almost exclusively on the question of recognition of governments.1 4
Recognition is retroactive in the meaning that, once granted, it dates back
to the actual commencement of the activities of the recognized author-
ity with regard to international rights and duties and, in particular, with
regard to the recognition by foreign courts of the validity of its internal
acts. That principle is obviously an embarrassment for the declaratory
view. 4 ' For if a State is a subject of international rights and duties as
soon as it "exists," then there is no necessity for a special judicial doc-
trine sanctioning the validity of those rights and duties ab initio. In fact,
the principle of retroactivity is an indirect but clear refutation of the
declaratory view. It seems equally to be incompatible with the consti-
144. The adherents of the political constitutive view of recognition have attempted to
minimize the effects of the resulting divergency of action by maintaining, as does Cavag-
lieri, that recognition by the majority of States, especially the most influential Powers,
"sembra avere invece per effeto di investire ilnuovo Stato di una qualificazione soggettiva
rilev~nte erga omnes," inasmuch as the silence of other States must be regarded as tacit
acquiescence. CAVAGLIERI, Op. cit. supra note 99, at 218. For a criticism of the theory
of tacit consent, see KuNz, op. cit. supra note 2, at 91, and Strupp, supra note 103, 47
RECUEIL DES CouRs at 444.
145. With regard to recognition of States, see the views of the American Commission-
ers in the Andrew Allen Case, British-American Mixed Commission under the Jay
Treaty, 3 MooRE, op. cit. supra note 114, at 238-52; printed also in 1 LAPILADELLE-PO-
LITIS, R.ECUEIL DES ARBITRAGES INTERNATIONAUX (1905) 24-25. For the suggestion that
the principle of retroactivity ought to have been invoked by Chile in the case of The Mace-
donian before the United States-Chilean Commission of 1858, see the note doctrinale in
2 LAPRADELLE-POLITIS, supra (Italian ed. 1923) 217.
On the other hand, the principle of retroactivity of recognition of governments has
received repeated and emphatic application. United States v. Belmont, 301 U. S. 324
(1937) ; Oetjen v. Central Leather Co., 246 U. S. 297 (1918) ; Underhill v. Hernandez,
1'68 U. S.250 (1897); Dougherty v. The Equitable Life Assurance Soc., 266 N. Y. 71,
193 N. E. 897 (1934) ; Princess Paley Olga v. Weisz, [1929] 1 K. B. 718; Luther v. Sagor,
(1921] 3 K. B. 532; The Jupiter, [1927] P. 122, 250; White, Child, & Beney, Ltd. v.
Simmons, 38 T. L. R. 616 (A. C. 1922); A. S. Kolbin & Sons v. William Kinnear & Co.,
[1930] Sess. C. 724; In re Marmatscheff, Tribunal of the Seine, March 7, 1929, reported
in ANNUAL DIGEST OF PUBLIC INTERNATIONAL LAW CASES 1929-1930, Case No. 150.
146. See, e.g., KUNZ, op. cit. supra note 2, at 100.

tutive view, which knows of no rights and obligations prior to recog-

nition. However, retroactivity may still be conceived as an exception to
the constitutive doctrine '41--an
7
exception adopted for purposes of con-
venience and stability, with the object of preserving legal continuity be-
tween the old and the new order of things.14 Inasmuch as preservation
of the legal continuity of the municipal system torn asunder by revolu-
tionary convulsions is one of the objects of international law, it is dif-
ficult not to approve of that exception. For the same reasons of con-
venience the principle of retroactivity has been applied not only to de jure,
but also to de facto recognition. 149 Essentially, the principle of retro-
activity is one of convenience. It would not be conducive to the mainte-
nance of friendly relations if, for instance, after recognition has been
given, courts were to continue to proceed on the theory that legislative
acts of expropriation prior to recognition were acts of "thieves and rob-
bers" and conferred no title."' There has been no hesitation to abandon
that principle of convenience when opposed by more cogent considera-
147. It cannot logically be conceived as an exception to the declaratory view. It is

logically opposed to it. For a suggestion that it is altogether contrary to juridical logic,
see Jones, The Retroacti'e Effect of the Recognition of States and Govrniments (1935)
16 BparnsHa YEAR BOOK OF INTERNATIONAL LAw 42, 55. And see Nisut, Is the Recogni-
tion of a Governtent Retroactive? (1943) 21 CAN. B. Rzv. 627, for a cogent statement
of the view that the principle of retroactivity is not a rule of interntional law.
148. Where these considerations do not arise, there may be some reluctance to apply
the doctrine of retroactivity. See, e.g., the observations of the Permanent Court of Inter-
national Justice in the Case of German Interests in Polish Upper Silesia, P. C. L J., Ser.
A, No. 7, at 27-29 (1926). And see Erich, supra note 60, at 499-502.
149. See Luther v. Sagor, [1921] 3 K B. 532, and other cases cited supra note 145. It
will be noted that the principle of retroactivity has been adopted not only with regard to
the rights, but also with regard to the duties of the recognized authority. In particular,
it is now clearly established that the recognized State or government originating in revo-
lution is responsible, as from the commencement of the civil war, for the positive obliga-
tions undertaken by it as well as for any acts contrary to international law. Thus it has
been held in a series of cases decided by the Claims Commissions of 1839 and 1849 be-
tween the United States and Mexico that the latter was responsible for certain monies and
supplies furnished by citizens of the United States to the leaders of the revolutionary
government engaged in revolt against Spain before the independence of Mexico was recog-
nized. See 4 Mooa, HisTORY AND DIGEST OF INTERNATIONAL AnurIr ArO.:S (1S93)
3426-32. A similar award was given in the Idler Case, United States-Venezuelan Claims
Commission, 1885, id. at 3491-3544 (in respect of supplies furnished to the agents of Boli-
var in 1817). See also the observations in Williams v. Bruffy, 96 U. S. 176 (1877). As
to governments set up by successful insurgents, see The Puerto Cabello and Valencia
Railway Case, reported in RULSTON, VENEZUELAN ARriTRAT ONS O 1903 (1904) 455;
Bolivar Railway Co. Case, id. at 388; Hughes Case, 3 IMooRE, snpra at 2972. See also
BORcHAR, DLOMATIC PROTECrION OF CnimzENs ABROAD (1916) §96; 1 HYDE, INTE1R-
NATIONAL LAw (1922) § 302; 6 MOORE, INTERNATIONAL LAW, 991; RALSTON, TnE LAw
AND PROcMURE OF INTERNATIONAL TRmuNALs (1926) 615; id. (Supp. 1936), 615a.
150. This aspect of the matter was stressed by the Supreme Court in United States v.
Pink, 315 U. S. 203 (1942).

tions. Thus it has been held by the Supreme Court of the United States
that the principle of retroactivity is not applicable to transactions in the
United States between American nationals and the predecessor of the
1
newly recognized government."
Ix.
THE LEGAL DUTY OF RECOGNITION
The Problem of the Legal Nature of Recognition. It has been sub-

mitted here that the declaratory view of recognition is inconsistent with
the practice of States, that its conception of the function of recognition
is oversimplified and devoid of usefulness, and that its criticisms of the
constitutive view prove on analysis to be without foundation. This being
so, what, it must be asked, are the reasons for the wide acceptance of
the declaratory view? The answer is that it is the reaction against the
conception of recognition as a political act pure and simple which has
led most writers to subscribe to the declaratory view of recognition.
There is a natural disinclination to regard recognition as constitutive of
the international rights and duties of the new State if it is merely an act
of policy, a bargain, or a concession of grace on the part of the recogniz-
ing State. Professor Brierly's and Sir John Fischer Williams' treatment
of this question well illustrate this explanation of the declaratory theory.
Thus Sir John, after expressing what is believed to be the accurate view,
namely, that "The Members of the Family [of Nations], acting in the
absence of a central authority, when they admit to membership, have a
duty to act as in discharge of a duty to the Family and therefore upon
some general principle, not in a merely selfish and arbitrary interest,"' "
maintains, somewhat surprisingly, that in the matter of recognition "each
State cannot be conceived as doing more than declaring its own policy."
It is difficult to see how recognition can at the same time be a matter
both of legal duty and of policy, but the b~lief that it is an act of policy
probably explains his preference for the declaratory view. "And as each
151. Guaranty Trust Company v. United States, 304 U. S. 126 (1938). This limita-
tion was relied upon by the Appellate Division of the Supreme Court of New York in
Koninklijke Lederfabriek "Oisterwijk" N. V. v. Chase National Bank, 263 App. Div.
815, 32 N. Y. S. (2d) 131 (1st Dep't 1941), aff'g 177 Misc. 186, 30 N. Y. S. (2d) 518
(Sup. Ct. 1941), where the Court pointed out that "recognition does not undo the legal
consequences of previous recognition." Id. at 193, 30 N. Y. S. (2d) at 527. See also
Union of Soviet Socialist Republics v. National City Bank of New York, 41 F. Supp. 353
(S. D. N. Y. 1941).
152. Williams, supra note 128, 47 HARv. L. REv. at 780. It is possible that the learned
author, like some other writers, has inclined to the declaratory view because of his oppo-
sition to the principle of non-recognition, a reason which may be regarded as of a tran-
sient character.

State," he says, "cannot be conceived as doing more than declaring its

own policy, it is also clear that the nature of the act of each State can-
not be creative in the sense of making a new international person, but
must be limited to a declaration that it personally accepts the fact that
a new international person has come into being." 'r*Similarly, Profes-
sor Brierly seems to start from the proposition that international law
delegates to each State the power to decide whether a community claim-
ing the quality of statehood satisfies the necessary requirements.," How-
ever, from the circumstance that the act of recognition is liable to be
abused for political purposes and that the recognizing State is free to
take a decision according to its own appreciation of the facts, he draws
the conclusion that recognition is merely "an act of policy and not of
law and that no juridical consequences attach thereto." 25
It is this negation of the element of legal obligation and the assertion
of the State's right to full freedom of action in the matter of recogni-
tion which has identified the established constitutive view so closely with
the extreme assertion of sovereignty and rendered it so conspicuously
open to attack. That denial of the legal nature of recognition is, it is
true, common also to the declaratory view. But there it is relatively in-
nocuous. For on the declaratory view recognition is a formality or the
expression of the wish to enter into diplomatic relations. This being so,
the circumstance that recognition is a question of political discretion
would be of little consequence. But a theory which makes the very rise
of international personality and of the concomitant rights and duties
depend on the unrestricted will of sovereign States brings once more
into prominence the doctrine of sovereignty in its most uncompromising
form. It is not surprising that it has become the subject of disapproval
and attack. What is not so easy to understand is why criticism directed
against the traditional constitutive view has assailed the sound heart of
that doctrine, namely, that recognition is constitutive in its nature and
has associated itself with the objectionable aspect of the constitutive
doctrine, namely, with the conception of recognition as a political func-
tion.
Undoubtedly, the refusal or the grant of recognition are acts of politi-
cal importance. Most legal transactions in the international sphere are
of political significance and have political consequences. This naturally
applies in particular to matters connected with the rise and the extinction
of States. But it does not by any means follow that such transactions
are "acts of policy" not governed by considerations of legal right and
duty. It has been shown here that there is no warrant for describing
153. Ibid.
154. Brierly, Rbgles G&6rales du Droit de la Pais (1936) 58 RUELL DEs CourS 23,
52.
155. Id. at 59.

444 THE YALE LAW JOURNAL [Vol. 53: 38b
recognition of States as an act of policy in this meaning. Courts "0 and

governments have frequently described recognition as being a political
and not a judicial question. But the intention of such pronouncements
is to convey that the grant of recognition is a matter for the political as
distinguished from the judicial organs of the State. They are not an
authority for the view that in performing the function of recognition
the political branch of the government is entitled to act arbitrarily with-
out reference to applicable legal principles.
Once we have assimilated the idea that recognition is not primarily a
manifestation of national policy, but the fulfillment of international duty,
we shall have removed the principal objection to acceptance of the view
that recognition marks the rise of rights and duties which constitute the
international rights and duties of the State. That view is in accordance
with the weight of the practice of governments, with decisions of courts,
and, in particular, with the requirement of international intercourse. The
existing procedural position in the matter of recognition is undoubtedly
unsatisfactory. There are, theoretically, two ways of meeting the diffi-
culty. It is possible to approach the subject by minimizing the importance
of the act of recognition in its present procedural stage of development
and to assert that as recognition is a purely political fact, it can be only
declaratory of rights and duties. This method of approach has been
shown to be both contrary to practice and unworkable. The better meth-
od, and one which is more consonant with practice and principle, is to
admit the constitutive character of recognition and to bring it-the pri-
mary and perhaps the most fundamental aspect of international rela-
tions-under the sway of legal right and obligation. This is not what
most international lawyers have done.
Acknowledgment of the Legal Nature of Recognition. The majority

of writers deny the legal nature of the act of recognition of States. That
majority includes the adherents both of the declaratory and of the con-
stitutive view.' The first have no difficulty in denying that there is ever
a duty to grant recognition. They are in a position to do so without em-
156. See Guaranty Trust Company v. United States, 304 U. S. 126, 137 (1938) ; Oetjcin
v. Central Leather Co., 246 U. S. 297, 302 (1918). And see other cases to the same effect,
cited in 1 HACKWORTH, op. cit. mupra note 77, at 165.
157. The following is a selection of those who deny that recognition can properly be
regarded as a matter of legal duty to the community claiming it; ANZILOTrI, Op. Cit. supra
note 5, at 149; BRiERLY, op. cit. supra note 105, at 100; 1 FAUCHILLE, op. cit. supra note
18, at 317; HENRY, op. cit. supra note 120, at 220; HERSHEY, THE ESSENTIALS OF PUn-
LIC INTERNATIONAL LAW AND ORGANIZATION (rev. ed. 1927) § 123; KUNZ, op. cit. supra
note 2, at 43; 1 DELouTER, op. cit. supra note 2, at 219; 1 OPPENHEiM, INTERNATIONAL
LAW (4th ed., McNair, 1928) § 71; PALLIERI, Op. cit. supra note 109, at 193-94; SCALFATI,
op. cit. supra note 60, at 232; VERDROSs, VERFASSUNG DER V6LXERRECHITSGFMEINSCIIAIT
(1926) 141, 164; V6LKERRECHT (1927) 116; Kelsen, supra note 96, 35 ANI. J. INT. L. at
610; Strupp, spra note 103, 47 REcUEIL DES CouRs at 445; Williams, supra note 105.

barrassment for the reason that in their eyes recognition is devoid of

any legally relevant substance; it is largely synonymous with a political
decision to enter into diplomatic relations. The others are compelled to
adopt the same view for the reason that it follows inevitably from the
positivist attitude which, based in turn on the theories of sovereignty and
consent as the foundation of international law, finds it impossible to
admit that States may without their consent be constrained to be bound
by rules of law in relation to a newcomer. In addition, the opinion that
recognition, being a political act, can never be demanded as a matter of
right, has found support from writers not wedded to any doctrinal view
in terms of accepted terminology.2 8
However, the political view of recognition has not remained unchal-
lenged. Alongside the predominant doctrine there has been a substantial
body of opinion which has treated recognition from the angle of the ful-
fillment of a legal duty to the community asking for recognition and to
the international society in general. Bluntschli, writing in 1868, put the
point with all requisite clearness. He says:
"31. So long as the open struggle for the establishment of the

new State lasts and so long as it is doubtful whether a new State has
arisen, no other State is bound to recognize the new State...
35. The newly created State has a right to enter into the interna-
tional community and to be recognised by other States if its exist-
ence is undoubted and secure. It has that right because it exists
and because international law unites the States of the world into a
common legal system .. .59 36. The existing State can no more
158. Thus we find Sir William Harcourt saying: "It is sometimes said that the ques-
tion of recognition is one of policy-and this is true, if considered with respect to the com-
munity which has recently asserted its independence. With respect to such a community,
foreign powers have as yet contracted no duties similar to those which are incumbent on
them in reference to established Governments with whom they have already entered into
relations. It is entirely a matter of discretion and policy how, and how soon, they will
admit such communities into the society of nations of which they are themselves mem-
bers." HAxcouRT, LrzaERs By Hisr oicus oN SoM QUESTIONS oF INTEaxMTIO.-AL LAw
(1863) 12-13. Similarly, Sir Travers Twiss says: "Every other State is at liberty to grant
or withhold this recognition, subject to the consequences of its own conduct in this respect;
as, for instance, if it grants such recognition, it may incur the hostility of the State from
which the new State has separated itself; if it refuses such recognition, it may incur the
hostility of the new State or its allies." Twiss, THE LAw OF NATIONs (1884) 20.
159. He adds: "It is true that the recognition of a true State by other States takes
place in the form of a free act of sovereign States, but it is not an absolutely arbitrary
act, for international law unites the existing States into a human society even against
their own will. The view often put forward in the older literature that it depends on the
mere whim of a State whether it will or will not recognize another State, ignores the legal
necessity of international law and would be correct only if international law were based
solely on the arbitrary will of States, i.e., if it were purely contractual law." BLu:.T-
scULi, DAs MODERNE V6LKERBECHT DER cInLISIEmRTE STAATtN A I RECn'sucH D. %nEs-
TELLT (1868) 71.

THE YALE LAW JOURNAL [Vol. 53. 385
arbitrarily exclude a State from the society of States than they can
themselves withdraw arbitrarily from that society." 100
Hall's emphatic assertion of the right of the new State to recognition

has been noted above. 16' More recently, Hyde says: "When a country
has by any process attained the likeness of a State and proceeds to exer-
cise the functions thereof, it is justified in demanding recognition." 102
Scelle's view is the same: "La reconnaissance 6tant constation est due,
ou si l'on pref~re obligatoire." 163
While those directly admitting the legal nature of recognition in rela-
tion to the community claiming it are in a minority, careful examination
reveals that it is often indirectly admitted by those who deny it. This
applies even to thoroughly positivist writers wedded to the constitutive
view. When, for instance, Anzilotti says that "one must deny that rec-
ognition may depend on any enquiry touching the legitimacy of the new
State," 104 that statement must be interpreted as meaning that at least
there is a duty not to refuse recognition on the ground of illegitimate
origin. However, it is mainly from the adherents of the declaratory view
that there has come the indirect acknowledgment of the legal nature of
recognition. Such indirect admission must be deemed to be inherent in
the assertion that statehood in the field of international law-that is, the
quality of a subject of international law-and most consequences of
statehood are independent of recognition. That assertion means that the
seceding community is entitled as a matter of legal right to demand and
the existing States are bound as a matter of legal duty to concede to it,
international rights which according to the constitutive view flow from
recognition and are dependent on it. As soon as the conditions of state-
hood exist, says Kunz, "the State newly arisen within the territorial do-
main of the family of nations becomes ipso facto and regardless of its
consent a member of the international community and from that moment
160. Id. at 69-71.
161. See page 400 supra. And see pages 455-56 infra.
162. 1 HYDE, op. cit. supra note 111, at 56.
163. Scelle, R~gles Ginrales dic Droit de la Paix (1933) 46 RECVEIL DES CouRs 330,
388. See also, to the same effect, FIORE, op. cit. sitpra note 111, § 174, where unjustifiable
refusal of recognition is described as contrary to international law, although in section 169
it is referred to as being in its nature a political act; GAREIS, INSTITUTIONEX DES V6LICER-
RECHTS (2d, ed. 1901) 57; KLi4BER, EUROPAISCIIES V6u.,ERECHT (2d ed. 1851) §45; 1
PRADIER-FODERE, op. cit. supra note 111, at 241; ULLMAN, op. cit. supra note 2, at 185;
Holtzendorff, supra note 110, at 25. Probably, there ought to be included in this category
writers who emphasize the judicial discretion of States granting or refusing recognition.
Thus Normand says: "C'est formellement un acte libre de l'Etat. Mais ce n'est pas un acte
arbitraire. II doit traduire la conviction de l'Etate qui constate l'existence de certaines condi-
tions materiaellement exig~es." NORMAND, LA RECONNAISANCE INTERNATIONALE sr SES DI-
VERSEs APPLicATioNS (1899) 228.
164. ANZILOrrI, op. cit. supra note 92, at 169.

it becomes subject to all international rights and duties." 100 The declara-
tory view of recognition postulates that the new State is entitled, as soon
as it "exists," to most of the rights (for instance, jurisdictional immuni-
ties) enjoyed by already recognized States. The new State is thus, it
would appear, entitled as a matter of law to what normally follows from
recognition, but not to recognition as such. The unsatisfactory nature of
the solution thus suggested reveals the confusing dilemma resulting from
the uncritical repetition of the phrase that there is no right to recognition.
From that dilemma the adherents of the declaratory view have attempted
to escape by devitalizing the function of recognition, that is, by reducing
it either to a formality or to a gesture of assurance of enjoyment of
already existing rights or to a declaration of willingness to enter into
diplomatic relations. It has been shown that no one of these interpreta-
tions of the function of recognition can be accepted as even remotely in
accordance with international practice.
X.
IMPROVEMENTS IN THE PROCESS OF RECOGNITION
Collectivization of the Process of Recognition. The preceding criti-

cism of the declaratory view of recognition does not imply that the
present position under which existing States in compliance with a legal
duty fulfill the function of recognition with a constitutive effect, is satis-
factory and that it ought to be perpetuated. It is true that an acknowl-
edged and decisive infusion of the element of national interest has not
been a typical feature of the process of recognition. But, as has been
shown, 0 6 the exceptions are frequent and disquieting. Neither is it pos-
sible to ignore the political implications and repercussions of the process
of recognition, even when it takes place in the fulfillment of a duty owed
to international society and to the community in question. The dual posi-
tion of the recognizing State as an organ administering international
law and as a guardian of its own interest must reveal itself in a disturb-
ing fashion whenever there is an occasion for successfully using the wea-
165. KuJz, op. cit. supra note 2, at 88. See also Verdross, according to whom States
are from the moment of their establishment subjects of international law il posse, but do
not actually become such except by recognition on the ground that in the absence of a
positive rule of international law to that effect, neither the new State nor the others are
bound to entertain international relations and that there is ininternational law neither
an obligation to recognize nor a right to recognition. VERnooss, VnrFAssuN(a, op. Cit.
supra note 157, at 164. It is not easy to follow this argument because Verdross maintains
at the same time that existing States are bound to treat as valid the internal acts of the
unrecognized community. The maintenance of international intercourse does not exhaust
the scope of international rights and duties.

448 THE YALE LAW JOURNAL [Vol. 53 : 385
pon of recognition for the purpose of achieving political advantages.

Situations will arise in which a State may see in the manner of the exer-
cise of the function of recognition an opportunity for securing for itself
benefits from the parent State or from the community claiming recogni-
tion. Consideration of such benefits cannot be regarded as legitimate, but
it cannot always be absent in the decision of the recognizing State. It
would be futile to deny either the existence of the difficulty or the fact
that it is due to an obvious imperfection of international organization.
The solution of that difficulty would seem to lie in transferring that func-
tion to an international organ not laboring under the conflict between
interest and duty. An innovation of this nature would also abolish the
glaring anomaly of a community existing as a State in relation to some
6 7
but not to other States.1
Collectivization of the process of recognition depends clearly upon a
high degree of political integration of the international community in the
form of an international organization of States. Recognition of States,
though consisting in the application of a legal principle and in the ascer-
tainment of the existence of conditions of statehood as laid down by
international law, could and probably ought to be placed, in view of its
political implications, within the competence of the highest executive and
legislative organs. The thorough collectivization of recognition in this
way would be possible only if the international organization were both
universal and compulsory, that is, an organization to which by a sover-
eign act of international legislation all States would be made to adhere
and from which there could be neither withdrawal nor expulsion. An
international organization which is not universal would make possible
the collectivization of recognition only in the mutual relations of its
members, though, politically, the authority of such recognition would
extend outside the scope of its membership. In a universal international
organization on a compulsory basis recognition by an appropriate major-
ity of its highest organs corresponding to the Council or Assembly of
the League of Nations would automatically involve membership. In an
international organization which is not universal or in which member-
ship is voluntary, admission by the competent organ would automatically
involve recognition by all the members of the organization. The position
would have to be made clear by a constitutional provision lifting the fact
of automatic recognition above the uncertainty and the controversy with
which it was surrounded in the Covenant of the League of Nations.
Development in the direction of collectivization of recognition may be
facilitated by the realization that instances of collective recognition are
not absent from international practice-to mention only the cases of
recognition of Greece by the Treaty of London of 1830, of Belgium by

the Treaty of London of 1831, of the German Empire by the Protocol

of London of 1871, of the Balkan States by the Berlin Treaty of 1878,
of the Congo State by the Berlin Treaty of 1885, of the creation of Al-
bania by the Treaty of London of 1913 as well as the recognition of her
independence by the Conference of Ambassadors in 1921, and the va-
rious instances of collective recognition of new States by the Allied Pow-
ers after the War of 1914-1918.' Moreover, diplomatic practice shows
that, as in the case of recognition of governments, recognition of States,
even when granted separately, is often preceded by negotiations aimed
at establishing a common line of action. The attempts made by Great
Britain to secure at the Congress of Verona joint action with other Euro-
pean Powers in the matter of the recognition of the Latin-American
States, as well as the attempts of the United States to secure the cobpera-
tion of Great Britain in the same matter, may be mentioned as exam-
69
ples.1
International Courts as Agencies of Recognition. It is not believed

that a promising avenue of progress would lie in conferring upon the
highest international judicial authority the power to grant recognition
on the application of the community claiming it. On the face of it, this
would seem to be the natural course. It would appear that a function
consisting in the application of international law and in the ascertain-
ment of the existence of requisite conditions of fact may and ought prop-
erly to be fulfilled by a judicial organ of the highest authority and impar-
tiality. There is no doubt that so far as its Statute, including the rules
of law applicable thereunder, is concerned, the Permanent Court of Inter-
national Justice would be in a position to act in that capacity. Yet it seems
undesirable to burden the Court with a task whose implications and the
circumstances of whose performance are of capital political significance.
This applies in particular to cases where the question of recognition of
States arises in connection with a revolt against and secession from the
parent State. For these reasons it is, from the practical point of view,
more appropriate that this particular function of applying the law should
be performed not by the judicial, but by the highest executive or legisla-
tive organs of the international community. The Court might still make
168. See, e.g., the Note addressed by the President of the Inter-Allied Conference at
Paris to the President of the Estonian Delegation, Jan. 26, 1921: "Le Conseil Suprazme
des Puissances allides, prenant en considdration les demandes prgsentdes i diverses reprises
par votre Gouvernement, a d&cidd, tans sa stance d'aujourd'hui, de reconnaitre l'Esthonie
comme ktat de jure." 114 BP-AND FoR. STATE P.pns (1921) 558.
169. See, e.g., the Instructions of Mr. Adams to Mr. Andersun, United States Minis-
ter to Colombia, May 27, 1823, pointing out that in August, 1818, the United States made
a formal proposal to the British Government "for a concerted and contemporary recogni-
tion of the independence of Buenos Ayres." 1 MANNING, op. cit. supra note 6, at 195.

a useful contribution in pronouncing by way of advisory opinions or in

a similar capacity on any questions of law incidental to recognition.
Neither do objections apply to the ability and the propriety of the Court's
giving redress in the form of compensation for injury actually suffered
for arbitrary delay of recognition by one State in face of practically uni-
versal recognition by other States. In this connection the claim of the
United States in the case of the Bergen Prizes, a case of non-recognition
of belligerency, is of some interest."'
Municipal Courts and the Function of Recognition. The foregoing

considerations explain also why no amelioration of the present position
can be expected from transferring the function of recognition to munici-
pal courts as distinguished from the executive organs of the State. More-
over, the possibility must be envisaged of different tribunals of the same
State reaching different conclusions as to the existence of the require-
ments of statehood in any given case. In addition, the contingency would
still remain of the courts of various countries arriving at divergent views
on the matter.
It is convenient in this connection to consider the criticism which has
been levelled against two principles-one of a procedural, the other of a
substantive nature-obtaining in Great Britain and in the United States,
as well as in other States in the matter of recognition.
The procedural rule of unchallenged authority is that in the matter of
recognition as on other questions relating to foreign affairs, the position
taken up by the executive department of government is of decisive weight.
The question whether a foreign community exists as a State in the con-
templation of international law is answered by the courts in strict re-
lianceupon the statement of the Executive informing the court whether
and to what extent recognition has been granted. The practical justifica-
tion of that procedural principle is that it would be inconvenient for the
State and its neighbors if its various organs were to assume divergent
positions in the matter of its external relations."' It is proper that courts

171. For a clear statement of both practice and principle as applied by British courts,
see McNair, Judicial Recognition of State and Governments, and the Immunity of Public
Ships (1921) BRiTisH YEAR BOOK OF INTERNATIONAL LAw 57. And see, for a critical
survey and discussion of the existing rule, JAFFE, JUDIcIAL AsPEc'rs OF FoREIN RI.A-
TIONS (1933). See also Dickinson, Recognition Cases 1925-1930 (1931) 25 Am. J. INT.
L. 214; Makarov, Die Anerkentung der Sowletregierung durch die Vereinigten Staaten
(Deutschland, 1934) 4 ZEITscnRiFr FOR AUSLANDISCHES 6FFENTLICHES REcUT UND
VULKERRCHT 1; Tennant, Recognition Cases in American Courts 1923-1930 (1931)
29 MicE. L. REV. 708. For a thorough judicial treatment of the question, see Duff De-
velopment Co. v. The Government of Kelantan, [1924] A. C. 797. See also The Annette,
The Dora, [1919] P. 105. As to the identical position in France, see HENRY, op. cit. supra

should act on the information of the Executive for the reason that the
latter in reaching a decision on the question of recognition does not act
arbitrarily. In granting recognition of statehood the Executive is sup-
posed to act on the applicable principles of international law. This is one
of the frequent cases in which the executive organs are entrusted with
quasi-judicial functions of administering law. The fact that the Execu-
tive is presumed to proceed in accordance with international law on this
matter of recognition ought to free the decisions of courts of any re-
proach of artificiality or opportunism. It is a sound and convenient prin-
ciple that in some matters pertaining to relations with foreign States the
rules of international law should be applied by the Executive and not by
the courts. Recognition is one of them. This being so, it is difficult to
assent to the view that the existing rule is open to objection.'
The fact that as a rule the decision of the executive department is and
is presumed to be in accordance with international law explains the sec-
ond, substantive, principle which governs the attitude of courts in the
matter of recognition. That principle is that in the absence of recogni-
tion the community in question and the acts of its authorities are legally
nonexistent. It is a principle the soundness of which is self-evident so
long as the decision as to recognition is a decision in conformity with
international law, that is, one which does not arbitrarily ignore the legally
relevant facts of the situation. It would be improper and unreasonable
if courts were to treat as States communities which are not States-the
fact that they are not States being evidenced by the circumstance that
recognition has been refused to them by an organ which does not act
arbitrarily, but which conscientiously takes into consideration the rele-
vant facts in conformity with international law. The rule on which courts
act in this matter would be open to criticism if the governments in grant-
ing or refusing recognition claimed or were entitled to act without refer-
ence to legal principle. Since legal principle does control, however, it is
proper and inevitable that what the executive173authority has declared to be
nonexistent should be so treated by courts.
Adherents of the declaratory view of recognition have occasionally
attempted to show that courts admit the validity of the acts of State
note 120, at 85-87. See also Mann in 29 TRa.sAcAToNs OF Tn- GnorLus Sociur. (1943).
172. In Duff Development Co. v. The Government of Kelantan, [19241 A. C. 797,
826, Lord Sumner described the principle that in these matters "the Courts of the King
should act in unison with the Government of the King" as being "rather a maxim of
policy than a rule." It is believed that that principle is both a rule of law and a sound
maxim of policy. The position is different when, in the circumstances of the case, the
attitude of the Executive is obscure or indefinite. See the observations of Sir Wilfrid
Green (as he then was) in Kawasaki Kisen Kabushiki Kaisha of Kobe v. Bantham S. S.,
[1939] 2 K. B. 544, 552-56.
173. For an able presentation of the contrary view, see JAFr, op. cit. supra note 171.

authorities prior to recognition.' 7 4 Actually, the courts of practically all

countries refuse to recognize the validity of the acts of unrecognized
States in the same way as they have refused to recognize the judicial and
legislative measures of unrecognized governments.
The uniform practice of courts in this matter has been subject to two
exceptions only, both of them more apparent than real. In the first in-
stance, courts have on occasion given effect to the judicial or legislative
acts of an unrecognized State or of an unrecognized government when
considerations of equity, convenience, and fair dealing required that
account should be taken of the acts in question. It appears clearly from
the pronouncements of courts that in these cases there was no question of
acknowledging the validity of the legal acts of a foreign authority in the
same way as effect is given to foreign legislation in conformity with
the rules of private international law. Rather was it a question of treat-
ing such legislation merely as a fact the disregard of which in relation
to private parties would be contrary to equity and common sense. 175
174. Professor Verdross, VE.DRoss, op. cit. supra note 157, VERFASSUNG, at 132 ct seq.,
V8LKERRECHT, at 113, has been prominent in this interpretation of the judicial practice,
That interpretation has been accepted by many, including Kelsen, supra note 96, 42 RE-
CUEIL DES COURs, and KuNz, op. cit. supra note 2. An examination of the decisions enum-
erated by Verdross shows that-as had already been tentatively suggested by Strupp, supra
note 103, 47 RECUEIL DES COURS, and Cavaglieri, supra note 99, 24 RivisTA DI Dmrrro IN-
TERNAZioNALE-they are in no way an authority for the view contended for. This applies,
it is believed, to all the cases relied upon by Verdross. See notes 115, 145 supra, as to the
cases of Andrew Allen, Mclwain v. Coe's Lessee, and the decision of the Court of Milan
of 1920. And see note 175 infra, as to Sokoloff v. National City Bank and Russian Re.
insurance Co. v. Stoddard. Of the two remaining cases, one is an obiter dictuo, probably
referring to recognition of governments in a dispute between two Swiss Cantons con-
cerning rights of water, Ziegler ca. Kanton Schaffhausen, Swiss Federal Court, Oct. 5,
1905, cited in (Deutschland, 1907) 1 ZEITSCRaIsr FOR V6LKERRECHT 276, 280; the other
is the decision relating to certain acts of the South African Republic after its annexa-
tion by Great Britain, Van Deventer v. Hancke and Mossop, Supreme Court Transvaal,
[1903] T. S.457.
175. This is the true import of the often cited decision in Sokoloff v. National City
Bank, 239 N. Y. 158, 145 N. E. 917 (1924) (a case which arose out of the non-recognition
of Soviet Russia by the United States, but in which the court relied on a number of judi-
cial decisions in connection with the acts of the Confederate States during the Civil War).
The intention to deny the legal nature of. the foreign acts of which account is taken is
clearly expressed in Russian Reinsurance Co. v. Stoddard, 240 N. Y. 149, 147 N. E. 703
(1925). The court said: "The courts in considering that question assume as a premise
that until recognition these acts are not in full sense law. Their conclusion must depend
upon whether these have nevertheless had such an actual effect that they may not be
disregarded. In such case we deal with result rather than cause. We do not pass upon
what such an unrecognized governmental authority may do, or upon the right or wrong
of what it has done; we consider the effect upon others of that which has been done, pri.
marily from the point of view of fact rather than of theory." Id. at 158, 147 N. E. at
705. This is also the meaning of the decision in Hausner v. International Commercial
Bank of Petrograd, Swiss Federal Court, April 6, 1925, 51 ENTSCHEIDUNGEN DES SCIIWEI-

The second exception, made in the case of recognition of governments,

has arisen where the decision to deny recognition was admittedly due to
the adoption of questionable tests of recognition unrelated to the actual
existence and the normal functioning of the government in question." 0
CONCLUSIONS
Meaning of the Legal Duty of Recognition. The view of recognition
which has here been submitted as approximating most closely the prac-
tice of States and a working juridical principle is: (a) that recognition
consists in the application of a rule of international law through the
ascertainment of the existence of the requisite conditions of statehood;
and (b) that the fulfillment of that function in the affirmative sense (and
nothing else) brings into being the plenitude of normal rights and duties
which international law attaches to statehood. Both principles introduce
an essential element of order into what is a fundamental aspect of inter-
national relations. Both prevent it from being treated as a purely physi-
cal phenomenon uncontrolled by a legal rule and left entirely within the
precarious orbit of politics.
It is necessary at this stage to push analysis still further at the risk of
a reproach of undue refinement. How is it possible to put forward two
zERIscHEN BuTNDESGERICHTs, pt. iii, 64. See also Wilbuschewitz v. Trust Office of the City
of Zurich, Swiss Federal Court, July 13, 1925, reported in A..uAL DIGEsT oF PunUc
INTEIIATiONAL LAW CASES 1925-1926, Case No. 75.
For similar reasons governments have on occasion relaxed the consequences following
from non-recognition. On December 30, 1919, the Lithuanian Executive Committee in
Washington informed the Secretary of State that the Provisional Government of Lithu-
ania constituted that Committee its diplomatic agent in the United States. The Com-
mittee were thereupon informed by the Secretary of State that the United States not
having recognized the Lithuanian Government, they could not attribute to the Committee
any diplomatic character. At the same time it was stated that within these limitations
the Department was prepared to deal informally with individuals and groups acting dis-
interestedly on behalf of the Lithuanian people. The Committee were also informed that
notwithstanding the refusal to recognize, the United States were ready to coilperate in
removing some of the resulting inconveniences. Thus in the matter of passports persons
of Lithuanian origin were allowed to depart from the United States on affidavits of iden-
tity and nationality approved by the State Department. 3 Foa. Rm. U. S. 1920 (U. S.
Dep't State 1936) 642.
176. In Salimoff & Co. v. Standard Oil Company of New York, 262 N. Y. 220, 186
N. E. 679 (1933), aff'g 237 App. Div. 6S6, 262 N. Y. Supp. 693 (1st Dep't 1933), the
State Department of the United States informed the court that the "Department of State is
cognizant of the fact that the Soviet regime is exercising control and power in territory
of the former Russian Empire and the Department of State has no disposition to ignore
that fact." Id. at 224, 186 N. E. at 681. The refusal to recognize was stated to be based
"on other facts." In view of this clear admission that the unrecognized government actu-
ally existed, it was not easy for the court to act upon the natural implication of non-recog-
nition and to treat the unrecognized authority and its legislation as nonexistent.

apparently contradictory propositions, namely, that recognition is con-

stitutive of the normal rights of statehood of the seceding community
and that, given the required conditions of fact, there is a duty of recog-
nition? If there are no rights prior to recognition-and this appears to
be the effect and the meaning of the constitutive view-is it permissible
to assert the existence of a duty in relation to an entity which is incapa-
ble of possessing and asserting rights? It is possible to exaggerate the
embarrassment caused by these questions."' In the first instance, as the
established States act in this matter on behalf of the international com-
munity, they may be deemed to owe to that community a duty of recog-
nition, notwithstanding the fact that the substantive right is not yet fully
vested in the beneficiary directly concerned. The law of most States is
in many respects based on the principle that certain rules of conduct must
be observed in relation to other persons, although the latter do not pos-
sess a private right enforceable in their own name. Under the criminal
law we are bound by certain duties of conduct towards others, but to
these duties there does not correspond a specific private right of the actual
or potential victims of the criminal act or design. From a different angle,
the paramount logic of the duty of recognition flows irresistibly from the
fact that a society cannot exist without members. When the rise of per-
sonality depends, as the constitutive view properly asserts, upon an act
of the existing members, that act cannot be the result of arbitrary will,
but one of duty to the society at large.
Secondly, it must be constantly borne in mind that although recogni-
tion is constitutive of the international rights and duties of the new State,
it consists in the ascertainment-in a declaration, if we wish-that there
are present in the particular case the conditions of statehood as laid down
by international law. To that extent recognition, while constitutive of
the international personality of the new State, is declaratory of an exist-
ing physical fact. If this fact is present, the established States fall under
a duty to declare its existence and thus to bring into being the interna-
tional rights and duties of the new State. This means once more that
although prior to recognition the community in question does not possess
the ordinary rights of statehood, it is entitled to claim recognition. In
the existing state of international law this is, as a rule, an unenforce-
able and therefore imperfect right. But circumstances are conceivable
in which that dormant and unenforceable right may acquire legal effect-
iveness. In an international society in which the obligatory jurisdiction
of international tribunals will become the rule, the new State, after hav-
ing been recognized, would be in a position to claim damages for spe-
177. Some embarrassment there must, of course, remain. A certain logical hiatus is
inherent in a situation in which the formal rise of legal personality is the result of the
acts of the individual members of the community and not of the community as a whole.

cific losses resulting from unwarranted and arbitrary delay in the grant-
ing of recognition. Of this, the case of the Bergen Prizes, although re-
lating primarily to rights of belligerency, is an instructive example.'"
Recognition as Declaratory of Facts and as Constitutive of Rights.

These considerations suggest, in relation to the current terminology in
the matter of recognition, that the antinomy of the declaratory and con-
stitutive doctrines, although relevant and important, does not exhaust
the legal problem at issue. As we have seen, while recognition is consti-
tutive in one sphere, it is declaratory in the other. It is declaratory in the
meaning that its object is to ascertain the existence of the requirements
of statehood and the consequent right of the new State to be treated
henceforth as a normal subject of international law. It is declaratory in
the sense that in the contemplation of the law the community in question
is entitled to recognition as a matter of right and that we may safely
disregard the objection that, not being recognized, it cannot be "legally
entitled" to anything. On the other hand, recognition is constitutive in
the meaning that it is decisive for the creation of the international per-
sonality of the State and of the rights normally associated with it. It is
constitutive in the sense that, provided the existing State acts in good
faith in the exercise of the discretion left to it by international law, it is
not bound to concede to the community in question the normal rights
of statehood. A State may exist as a physical fact. But it is a physical
fact which is of no relevance for the commencement of particular inter-
national rights and duties until by recognition-and by nothing else-
it has been lifted into the sphere of law, until by recognition it has be-
come a juridical fact. Recognition declares the existence of a physical,
not of a legal phenomenon. This explains why, although declaratory of
a fact, it is at the same time constitutive of legal consequences. It is, if
we wish, merely evidence of facts to which the law attaches importance.
But it is indispensable evidence without which potential international
rights are a mere claim. In the'absence of a judgment of a higher author-
ity endowed with the requisite jurisdiction, a claim of this nature must
remain without effective legal validity. Hall's precise analysis of the
process of recognition, which is perhaps the most valuable contribution
178. In this case the United States pressed for a long time against Denmark a claim
for compensation on account of the action of the latter in denying to the United States
belligerent rights at a time when, during the War of Independence, Denmark had not
recognized it as a belligerent. That action consisted in the restoration to Great Britain of
some prizes captured by the United States and brought into the Danish port of Bergen.
See 1 MooRE, INTERNATIONAL LAWV, § 60; VHEAToN, Et-.ENrs OF INTER:ATIONAL
LAw (Lawrence ed. 1863) 41, n. 16. See also the observations by Rolin on The Macedonian,
a case between the United States and Chile, in 2 LAPRADELLE-POLtIIS, op. cit. mupra note
145 (Italian ed. 1923), at 215-17.

to the subject by any text-book writer, expresses this point of view with
all possible clarity. 7 '
Antinomy of the Legal and Political Character of Recognition. These

are the reasons why there is room for the opinion that it may be more
conducive to the understanding of the problem of recognition if we treat
it not as one of a choice between the declaratory and the constitutive
character of recognition, but as one between the legal and political, or
juridical and diplomatic, view of its function. For it may be said that
the decisive question is whether this fundamental aspect of international
relations is one which can be brought within the orbit of the rule of inter-
national law or whether it is and must remain yet another manifestation
of the weakness of the law of nations. The correct answer to these
doubts is probably that the problem of recognition cannot be properly
understood without a clear appreciation of both its essential elements,
namely, of its constitutive character and of the legal nature of its func-
tion. The antinomy between the constitutive and the declaratory nature
of recognition is as real as that between the legal and political view of
its function. Undoubtedly, the basis of any scientific theory of recogni-
tion must b6 the realization that there exists a law above States; that that
law determines the conditions of statehood; that a society cannot exist
without members; that those who compose it at any given time must, if
there be no other competent organs, apply the law which determines the
conditions of membership; and that full international personality is not
a concession of grace on the part of the existing States. But the law
embodying these principles is not an automatic abstract rule; nor is it
pure jurisprudential speculation. It has no reality until it has been ap-
plied by a competent organ acting in good faith and in the fulfillment
of a duty; and it has no meaning unless, when thus applied, it is the
indispensable condition for the Tise of statehood as part of the interna-
tional legal system. The legal character of recognition extricates the
process of recognition from the arbitrariness of policy; its constitutive
character liberates it from an equally disintegrating element of uncer-
tainty and controversy.
179. He fully adopts what is here described as the legal view of recognition: "Theo-
retically a politically organized community enters of right . . . into the family of states
and must be treated in accordance with law, so soon as it is able to show that it possesses
the marks of a state . . . . no state has a right to withhold recognition when it has been
earned. . . ." HALL, loc. cit. supra note 29. At the same time he adopts the constitutive
view of the effect of recognition: "The commencement of a state dates nevertheless from
its recognition by other powers . . . although the right to be treated as a state is inde-
pendent of recognition, recognition is the necessary evidence that the right has been ac-
quired." Ibid. His view on the question has often been described as contradictory. In
fact it reveals the true nature of recognition.

1944] RECOGVITION OF STATES
This being so, what is the explanation of the wide acceptance of the
declaratory view? Its appeal lies not in any approximation to the prac-
tice of governments and courts, but in the fact that it has been a reaction
against the constitutive view as commonly propounded-against a doc-
trine, that is to say, which, basing itself on a radical positivist approach
and on an extreme assertion of the sovereignty of existing States, de-
duces the international personality of new States from the will of those
already established. Nowhere is the brand of positivism current in the
science of international law more offensive and repulsive than in its
application to recognition of States. It elevates the arbitrary will of
States to the authority of the source not only of particular rights, how-
ever fundamental, of States, but of their very rise and existence. An
attempt has been made here to show that this latter aspect of the consti-
tutive doctrine is in no way essential to it and that its value as a scien-
tific theory receives a refreshing and decisive accession of strength after
it has discarded the assertion that the will of States granting or refusing
recognition is altogether unfettered by law. Once this blemish-intro-
duced by writers and unsupported by practice-has been removed, the
constitutive view reveals itself as being in accordance with positive law
and, indeed, as inevitable from the point of view of principle.
The Problem of Recognition and the Political Integration of Interna-

tional Society. Much of the preceding discussion may tend to create the
impression of being of a somewhat abstract nature. However, in assess-
ing the necessity for a detailed analytical examination such as has been
here undertaken, it must be borne in mind that the problem of the recog-
nition of States, of fundamental importance in itself, is also the basis of
a satisfactory treatment of recognition of governments and belligerency.
The question of recognition of States is one of the rise of international
personality in a legal system which is deprived of the normal and objec-
tive means of ascertaining juridical personality and which achieves that
end by a precarious process of delegation to not altogether disinterested
agencies. It is a question of the application of principles of law to a
political phenomenon, frequently taking place at times of historical up-
heavals and international crises. Yet, so long as international law claims
the name of law, it is difficult to concede without overwhelming proof
that this fundamental aspect of international relations takes place outside
the law and that it is in its principal manifestation a matter of polities
pure and simple. There is no such proof. On the contrary, much of the
available evidence points to what has here been described as the legal
view of recognition. Only that view of recognition, coupled with a clear
realization of its constitutive effect, permits us to introduce a principle
of order into what would otherwise be a pure manifestation of power
and of negation of order. The grotesque spectacle of a community being

a State in relation to some, but not to other States is a grave reflection

upon international law. It cannot be explained away amidst some com-
placency by questionable analogies to private law "' or to philosophical
relativism."8 ' That paradoxical phenomenon which more than anything
else signifies the negation of the unity of international law as a system
of law may be unavoidable pending the collectivization of the process of
recognition. In that intermediate period adherence to the legal view of
recognition-that is, recognition given or refused in accordance with
principles of law and in the fulfillment of a legal duty-will naturally
tend to reduce the occasions for divergency.
We are not in a position to say either that there is a clear and uniform
State practice in support of the legal view of recognition or that the pro-
cess of recognition has invariably taken place in all its aspects under the
aegis of international law. But the balance of the articulate practice of
States enables us to maintain that the imperfections of machinery, that is,
the absence of a central organ of recognition, have not decisively affected
its essential nature. 8 2 That practice permits us to comprehend the recogni-
tion of States not as a source of weakness of international law, but as a
substantial factor in its development to a true system of law. It is to be
hoped that the political integration of the international community,
which in the long run is the absolute condition of the full development
of the potentialities of man and humanity, may, alongside of other im-
provements, render possible the collectivization of the process of recogni-
tion as best in keeping with its nature and purpose. Pending that con-
summation it is preeminently desirable that the recognition of interna-
tional personality and of governmental capacity should continue to take
place-though more uniformly, more consciously, and more conscien-
tiously than has been the case in the past-in accordance with legal prin-
ciples and in pursuance of a legal duty owed to the community of States.
180. As does ANZILOTTI, op. cit. supra note 92, at 168, who points out that in private
law a person may be possessed of rights in relation to some persons only. Apart from
slavery, private law knows of no cases in which a person, physical or juridical, possesses
legal personality in relation to some members of the community, but not to others.
181. Kelsen, supra note 96, 35 Am. J.INT. L. at 609.
182. A persistent feature of the discussions on the subject is the difficulty which writ-
ers experience in comprehending the possibility of a rule of law being administered by the
individual members of the society acting as agents of the law. See, e.g., SCAL"ATI, op. cit.
supra note 60, at 229, and HENRY, op. cit. supra note 120, at 220, who regard the
fact that there is no international agency for determining the existence of conditions of
statehood as sufficient reason for denying its legal nature in present-day international law,

ISSN: 2477-4081
Vol. 1 | No.1
The Disputes of South China Sea

From International Law Perspective
Surya Wiranto*, Hikmahanto Juwana**, Sobar Sutisna** and Kresno Buntoro**
*Coordinating Ministry for Politic, Legal and Security Affairs of Indonesia

**University of Jayabaya
ARTICLE INFO ABSTRACT

Keywords: ȱȱȱȱȱȱǻǼȱȱȱȱȱ£ȱȱȱ-
Ěȱǰȱ ȱȱȱ¢ȱȱȱǰȱȱȱ ȱȱȱ
ȱ ǰȱ ȱȱȱȱȱȱǯȱ ȱȱȱȱȱȱȱ
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ȱȱ ȱȱ ȱȱşȱȱȱȱǯȱ ȱ
¢£ȱȱȱȱǰȱȱ ȱȱ¢ȱȱ Ȭ
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ȱȱȱęȱȱȱȦȱȱȱȱȱȱ
ȱȱęȱȱȱǯȱȱȱȱȱȱ¢ȱ
Corresponding Author: ȱȱ ȱȱȱȱȱǰȱȱȱ
kres_toro@yahoo.com ȱ¢£ȱȱȱȱǯȱĚȱȱȱȱ
ȱȱȱȱȱ¢ȱȱǯȱȱȱĴȱ
¢ȱȱȱȱȱȱȱǰȱǰȱǰȱȱ
ȱ ȱȱȱ ǰȱ ȱȱȱȱȱȱ
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ȱȱȱŜȱƸȱŚȱƸȱŘȱȱŜȱƸȱŚȱƸȱŗȱƸȱŗǰȱȱ¢ȱȱ¢ȱȱ
ȱȱȱȱęȱȱǯ
The Southeast Asia Law Journal

Volume 1 Nomor 1
Juli-Desember 2015
ISSN. 2477-4081
hh. 1–10 ©2015 NK. All rights reserved.

-1-
The Southeast Asia Law Journal Volume 1 No.1 Juli 2015
ћѡџќёѢѐѡіќћ ȱ ǯȱ ȱ ȱ ȱ ȱ ȱ

South China Sea issues is motivated by three (3) ȱ¢ȱȱěȱȱȱĴ-
strategic factor, namely political, economic and stra- ȱȱȱĚǰȱȱȱęȬȱ-
tegic. Three of these factors is the primary motive ¢ȱȱȱȱȱ¢ǯȱ ȱȱĴȱ
for the Claimant States to strive for their rights in the diplomacy, the Indonesian government participated
South China Sea. Which became the object of dispute in the preparation of the Declaration on the Conduct
of the parties in the South China Sea focused on two of Parties in the South China Sea (DoC), Conduct-
(2) major islands, namely the Spratly and Paracel. ing cooperative contained in the DoC while respect-
The States claimants to the Spratly Islands are Bru- ing the sovereignty and integrity of each other, and
nei, China, Malaysia, the Philippines, Taiwan, and ȱ ȱ ěȱ ȱ ȱ £ȱ ȱ
Vietnam. Taiwan and Vietnam also claim ownership (Code of Conduct) to be applied in the South China
of the Paracel Islands which are under the control of Sea. Against the CoC, Indonesian political stance is
China since 1974.. ȱȱ¢ȱǰȱȱȱȱȱęȱ
ĴȱȱȱĚǯ
Indonesia, although not directly involved in the
dispute in the South China Sea, but Indonesia has ȱęȱĴȱȱȱĚȱȱȱȱ
sovereignty in the waters of Indonesia and the sov- countries that claim territory in the South China
ereign rights in the waters of the jurisdiction of the Sea. In searching for a peaceful solution to the South
South China Sea region, so as to have the interests ȱȱĚǰȱȱȱȱȱȱĴȱ
of the security in the region. Indonesian interest in does not compromise its claims against China over
parts of the South China Sea consists of the territo- the South China Sea, have an impact on the interests
rial integrity, regional stability and the economy. In- ȱ ȱȱȱȱȱȱĚǯȱȱ
terest in the territorial integrity associated with the People’s Republic of China through nine dashed
People’s Republic of China claims limit nine dashed ȱ£ȱ ȱěȱĴȱ¢ȱ
lines over the South China Sea region that can not ȱ¢ȱ¢ȱęȱȂȱȱȱ
ȱęǰȱȱȱȱȱȱȱȱȱ China against Indonesia Exclusive Economic Zone
waters of Indonesia, which is Exclusive Economic and the Natuna Sea and protected by the govern-
Zone and Indonesia continental shelf in the North ment ships People’s Republic of China, it indicates
Sea Natuna. that there is indeed a big problem between two (2)
countries (Ali, 2012) ,
Indonesian National Interests in the South China
ȱȱę¢ȱȱȱ ȱǻŘǼȱǰȱ ȱ From the several problems that arise as a result of
is the interests Vital (Survival) and the main interest the disputed South China Sea region, the Indone-
(Major). This vital interests are the interests of Indo- sian government has yet to fully anticipate the im-
nesia that can not be negotiated because it involves pact of the dispute, including the impact of the deci-
the survival of the nation and the state. Shall include sion of the Arbitration Court is ongoing, while the
the vital interests of the sovereignty and sovereign PRC provocation activities by reclaiming the Spratly
rights in sea areas of national jurisdiction. Under Islands deepened. The Indonesian government it-
UNCLOS (The United Nations Convention on the self also has not determined its position whether as
Law of the Sea) in 1982, has been arranged sover- claimant or claimants not jurisdiction Indonesian
eignty and sovereign rights of Indonesia in jurisdic- waters in the South China Sea that overlaps with
tions Rl bordering other countries, including the claims PRC nine dashed lines.
sovereign rights (sovereign rights) for the purpose
of exploration, exploitation, management, conserva- In this study, The researcher wanted to indicate the
tion natural resources, and protection of the citizen main problems of the dispute in the South China Sea
(Indonesian citizen) that the activity around the bor- ȱ ȱ ȱ ȱ ȱ ȱ ȱ ěȱ -
der of the Republic of Indonesia (Republic of Indo- tween das sollen and das sein, between the legislation
nesia) from the violation of sovereignty and law, as and the existing theory and reality. Based on the
well as the threat of state violence claimants (the as- description above, in this manuscript research prob-
pect of national security). lem formulation is as follows: (1) Why do still occur
maritime territorial disputes in the South China Sea
ȱĴȱȱ ȱȱȱȱȱȱ- ?; (2) How is the construction of national interests in
Ěȱ ȱȱȱȱȱȱ ȱȱȱȱ ȱȱȱȱǵǲȱǻřǼȱ ȱȱĚȱ-
Ěȱȱȱǰȱȱȱȱ ȱ tion are legally facing maritime territorial disputes
the sovereignty and law enforcement in the Indone- in the South China Sea?.

-2-
Wiranto, Juwana, Sutisna, Buntoro/The Disputes of South China Sea...International Law Perspective
Article 1 (3) of the Constitution of the Republic of including state border treaty between 1 (one) coun-
Indonesia Year 1945 states that “The State of Indo- try to another. Claims against the features of an area
nesia shall be a state based on the rule of law”. State can be used theory claims against features, such as
law in question is the country that uphold the rule islands, coral, reefs, elevation at low tide, shallow
of law to uphold truth and justice, and there is no and atolls, while claims against the sea area can use
power which is not accountability (MPR, 2010). As a the theory claims against marine areas, both territo-
country that adopts the State of Law, the Indonesian rial waters (internal waters, the archipelagic waters,
government imposed a three (3) basic principles, and the territorial sea), as well as jurisdiction (con-
namely the supremacy of law, equality before the tiguous zone, EEZ and continental shelf).
ǰȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ ȱ ȱ Ěȱ
with due process of law (Fuady, 2009). The prin- ȱ ȱ ȱ ȱ ȱ ȱ ȱ -
ciple of supremacy of law is applied to all legisla- tions between the Nation with regard to territory in
tion both nationally and internationally, including the South China Sea, will always confront two (2)
the 1982 UNCLOS and other maritime regulations. ȱ ǰȱ ¢ȱ ȱ ȱ ȱ Ěȱ
The principle of equality before the law is applied over maritime areas and issues of cooperation in
to the Indonesian government in any maritime ȱǯȱȱĚȱȱȱȱȱȱě-
boundary negotiations with both the neighboring ences in determining the maritime boundaries of
ȱ ȱȱȱ¢ȱȱǰȱȱ ȱ each country claimants and dissent in cooperating
as large countries such as China. The rule of law is ȱ ȱ ȱ ǰȱ ȱ ȱ ȱ ȱ ȱ Ěǯȱ
applied to any violations of the territory and mari- ¢ȱȱĚȱȱȱȱȱȱȱ
time Indonesian law by the imposition of sanctions to solve and resolve the dispute in the South China
in accordance with the applicable legislation. The Sea.
concept of due process of law is actually contained
in the concept of fundamental rights that can be ap- Maritime territorial disputes in the South China
plied in the determination of the territorial waters of ȱȱ¢ȱȱȱȱȱĚȱȱȱ
a country that has full sovereign rights and jurisdic- with a variety of motifs, such as political interests,
tion of the territorial waters of which have sovereign economic, and military strategy. Characteristics of
rights. While the concept of independence/ordered ȱĚȱȱȱǰȱȱȱȱĚȱȱȱ
liberty is an implementation of the sovereign rights ǰȱ Ěȱ ȱ ȱ ȱ ȱ ȱ ȱ
and sovereignty is based on the legislation in force ǰȱȱĚȱȱȱǰȱ-
(Fuady, 2009) ȱȱĚȱ¡ǰȱȱ ȱȱĚȱ
ȱ ęǰȱ ȱ ȱ Ěȱ ȱ ȱ
Indonesia as the country’s laws apply theories of in- used also varies depending on the characteristics of
ternational law in running the government. Use of ȱĚȱȱǯ
international law in maintaining relations between
nations with other countries. In the context of the In a dispute over maritime areas in the South Chi-
problems occurred in the South China Sea involv- na Sea, considering not only involves six (6) State
ing several claimant states and other countries con- claimants, but also involves several countries the
cerned, the role of international law, particularly the Non claimants and other States that have an interest
1982 UNCLOS and other international habits is very ȱ ȱ ǰȱ ȱ ȱ ȱ ȱ ȱ ȱ Ěȱ
important in dealing with various legal issues. can not be resolved bilaterally or trilateral alone, but
ȱȱȱ¢ǯȱĚȱȱ
International law set the various interests of the State in resolving the dispute in addition to using the ba-
in dealing 1 (one) each other. These interests include sic international law, also use habits of international
the interests of territorial integrity and sovereign and bilateral agreements or other multilateral agree-
rights of a country to the area of land, sea and the air ȱ ȱ ȱ ȱ ęȱ ȱ ȱ ȱ ȱ
thereon. International law regulates the internation- the States involved in the agreement.
al community and the legal order of coordination of
a number of States are independent and sovereign, ђѠђюџѐѕȱђѡѕќёѠ
while the national legal order of each state is merely This type of research is a normative legal research.
a sub-ordination of international law. ȱȱȱȱǻŘŖŗŖǼǰȱȱ
legal study includes an inventory of the principles
Maritime territorial dispute that occurred in the of the law, the systematic law, research into law en-
South China Sea can be solved by using the theo- forcement both running operationally by the institu-
ries of international law and international practices, ȱȱȱȱȱȱĴȱȱȱ ȱȱ

-3-
practice, and then conducted research into the level namely historical (history) and the laws. If we want
of vertical sync and horizontal, comparative law to examine aspects of the history, the claimants state
and legal history. In consideration of the above, the that uses this basis only 3 (three) parties, that is Chi-
starting point of research on the disputed region of na, Taiwan and Vietnam. For China, began during
South China Sea is an analysis of the Law of the Sea ȱȱ ȱȱȱ Ȭȱȱ
UNCLOS 1982, the international conventions, bilat- ŗşŚŝȱȱȱȱȱȱȱ ȱ-
eral agreements, and the habits of international and ers almost the entire South China Sea region. This
national legislation governing sovereign territory was reiterated by Zhou En-Lai who asserts a claim
and jurisdictions in the sea. over the territory in 1951, but in its claim, the Chi-
nese did not explain the legal aspects of maritime
In connection the type of research is a normative ¢ȱǯȱĴȱȱȱ-
legal research it is necessary to approach the prob- ritorial disputes can only be done based on interna-
lem. In this research the authors used four (4) ap- tional law or UNCLOS in 1982, but the claim is not
proach to answer the existing problems (Ibrahim, recognized in the history of UNCLOS.
2010), that is statute approach, the conceptual ap-
proach, historical approach as well as the approach Indonesia claimed the territory sovereignty and na-
of case study. Materials used in the study of law is tional jurisdiction of Indonesia through the creation
adjusted to review by the authors of the resolution of the Indonesian Government Regulation Number
ȱȱĚȱȱȱȱȱǯȱ - 38 of 2002 on List Baselines of Indonesia, and Gov-
dients such laws are: (1) The primary legal materi- ernment Regulation No. 37 of 2008 on the Amend-
als used include 1945, maritime legislation (Law no. ment to Government Regulation No. 38 of 2002 on
1/1973 on the Continental Shelf, Law no. 5/1983 of Geographic Coordinates Point the base-point line
EEZI), bilateral agreements continental shelf bound- ȱ ȱ ǻȱ £Ĵȱ ȱ ȱ ȱ
ary between Indonesia and Malaysia and Indone- of Indonesia 2002 Number 72, Supplement to State
sia-Vietnam), China’s national legislation, and the £Ĵȱȱȱȱȱ ȱȱŚŘŗŗǼǯ
jurisprudence of the council over ownership of the
territory; (2) secondary law derived from the text Products of this law on the basis of Article 75 Para-
ȱȱȱȱȱȱȱȱȱ ǰȱȱ graph (2) of UNCLOS 1982 has been deposited to
ȱȱȱȱȱȱȱȱȱȱ ȱȱ¢ȱ ǰȱȱȱȱĜ¢ȱ
Sea, as well as the opinions of scholars and legal ex- and in order to get a response from other countries.
ȱȱĚȱȱȱȱȱȱȱȱ Ĝ¢ȱ ȱ ȱ ¢ȱ ȱ ȱ ȱ
the China Sea South; and (3) tertiary legal materials the deposit List Baselines of Indonesia and to date
ȱȱȱȱȱȱęȱ ę¢ȱȱȱȱȱȱȱȱ¢ȱ
for the primary and secondary legal materials. For protested against the claim. The products of this law
example, foreign language translation dictionaries, has been strengthened with the issuance of the Law
encyclopedias, etc. of the Republic of Indonesia Number 43 of 2008 on
ȱ¢ȱȱȱȱ ȱȱȱěȱ
The collection of legal materials needed for this from the regulations enacted on November 14, 2008.
study were collected based on topics the problems
that have been formulated and assessed according The problem is not automatically resolved the state
ȱȱęȱ¢ȱȱȱ¢ȱȱ border with statutory, because in fact the state bor-
in a comprehensive manner. Analysis of the data in der will be obtained after going through bilateral or
the processing of legal material that is carried out multilateral negotiations which resulted in agree-
deductively drawing conclusions from a territorial ment between the parties. In the Act No. 43 of 2008
dispute that occurred in the South China Sea. Fur- ȱŗȱȱȱȱę¢ȱȱȱ¢ȱȱ
ther material existing laws are analyzed to solve the the land areas, internal waters, archipelagic waters,
fundamental problem of disputes in South China territorial sea as well as the seabed and subsoil and
Sea. air space above it. In connection with the foregoing,
and to uphold the rule of law in the Indonesian ju-
ђѠѢљѡѠȱюћёȱіѠѐѢѠѠіќћ risdiction required the establishment of maritime
іѠѝѢѡђȱ ѡѕђȱ юџіѡіњђȱ ђџџіѡќџѦȱ іћȱ ѡѕђȱ ќѢѡѕȱ boundaries Indonesia in the South China Sea in full.
ѕіћюȱђю Maritime delimitation is carried out under the pro-
visions of the International Law of the Sea, which is
The main basis of the South China Sea territorial
ȱȱȱŗşŞŘȱȱȱęȱ¢ȱȱ
claims actually only consists of two (2) aspects,
Indonesian government through Act No. 17 in 1985.

-4-
ȱ ȱ ȱ ęȱ ȱ ȱ ȱ ȱ the rule of law which is upheld by Indonesia (Indo-
management of the maritime borders which include nesian Maritime Institute, 2013).
sea borders with neighboring countries and that is
not bordered by another state. As for the maritime International legal theory used to resolve disputes in
boundaries of the Republic of Indonesia and neigh- this region came from several theories, including the
boring countries (in accordance unilateral claims) theory of natural law, willingness the state, willing-
covering the territorial sea, contiguous zone bound- ness with the state, and legal norms. Together with
ary, the boundary EEZ and continental shelf bound- the willingness countries such dispute to resolve
aries, which the illustrations for this new form of the problem by peaceful means, then the appropri-
Homeland maps which are updated every year. Un- ate international legal norms that can be applied to
til now only claim unilateral EEZI depicted on the ensure justice for all countries concerned. Accord-
map Homeland, but not yet deposited to the UN ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
Secretary General, so it does not have the force of the mandatory nature of the rules of international
law. law is an empirical fact that the countries would
insist on maintaining their rights according to the
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ rules. According Djalal (2013) that the basic tie the
March 23, 2015 has stated unequivocally that the ȱ ȱ ¢ȱ ¢ȱ ȱ ȱ ȱ ȱ ęȱ ȱ
PRC Claims nine dashed lines in the South China needs of the nations, and the theory of international
Sea is unfounded and does not have a strong legal maritime law is most appropriate for arranging the
foundation (Reuters in the Yomiuri, 2015). Political- ownership status of the region consisting of theory
¢ǰȱȱ ȱȱȱĜȱ ȱȱȱ claims against the territorial sea and the claims of
ASEAN to be similar in terms of maritime territorial the features in the South China Sea in accordance
ȱ ȱ ȱ ȱ ȱ ǯȱ ȱ ȱ UNCLOS 1982.
ǻŘŖŗŚǼȱ ȱ ęȱ ȱ ȱ ȱ ȱ ȱ ȱ
ȱ ȱ ȱ ǰȱ ȱ ěȱ ȱ - Possession of territory and jurisdiction in the South
¢ȱ ȱ ȱ ¢ǰȱ ȱ ȱ ȱ China Sea as the claim made by the government of
instructed the TNI to build up the strength of the Indonesia, can be explained using the theory claims
Army, Navy, and Air Force in Natuna to maintain against sea area consists of Claim ownership of
the sovereignty of Indonesia ,. Inland Waterway (in accordance with Article 7 of
UNCLOS 1982), claim archipelagic waters (in ac-
ȱȱȱȱȱȱȱȱȱęȱ cordance with Article 49 of UNCLOS 1982), Claim
by the Chinese government to a certain extent that is Territorial Sea (in accordance with Article 2 of UN-
not described in detail coordinates. Such claims are CLOS 1982), Claim Zone Supplement (in accordance
depicted in a map cartography made in China up to with Article 33 of UNCLOS 1982), claims the Exclu-
now not recognized by the international legitimacy. sive Economic Zone (in accordance with Article 55
ȱȱȱȱȱĴȱȱĴȱ of UNCLOS 1982), and Claims Continental Shelf (in
ȱ ǻȱ ȱ Ǽǰȱ ȱ ȱ Ĝ¢ȱ - accordance with Article 76 of UNCLOS 1982). The-
form the international community that the maritime ory claims to features can be applied to the articles
boundary maps are very important to the country’s of the UNCLOS 1982 as follows: Claims against the
claim in the South China Sea, including the Spratly island using Article 121 of UNCLOS in 1982; claims
and Paracel Islands. against the coral reef and use Article 6 of UNCLOS
in 1982; claims against the elevation at low tide,
PRC and Indonesia are both international maritime shallow and atolls use of article 13 of UNCLOS 1982.
ȱęȱȱȱŗşŞŘǰȱȱȱ¢ȱ ȱ- These claims tied to the legal status of the maritime
spect the regime of maritime and sovereignty and zone and its features.
ȱȱȱȱ¢ǰȱȱȱȱěȱ-
plication. Indonesia more consistent use of the legal Djalal (2013) also found a legal perspective in this
ȱȱȱŗşŞŘȱ ȱȱȱęȱȱ dispute is also rooted in problems of international
ȱǯȱŗŝȱȱŗşŞśȱȱȱęȱȱȱ customary law, which may be the freedom of the
in 1982 in the claim area of its territory, while the sea, the cooperation of regional countries, handling
ȱȱȱȱȱ¢ȱȱȱȱ disputes peacefully, as well as international conven-
respect for international law and practice. The ap- tions and treaties, such as the UNCLOS 1982 , agree-
plication of the rule of law and law enforcement in ments or bilateral agreements (such as the delimi-
resolving the maritime boundary claims as part of tation of the continental shelf between Indonesia
and Malaysia and Indonesia-Vietnam) and regional

-5-
agreements, including the provisions of the UN and truth and justice, and there is no power which is
other international conventions, such as the IMO, not accounted for in accountability. In the theory of
ICAO and UNESCO. state law declared that all legal materials national,
regional and international force in the territory of
ȱȱĴȱ ȱǻŘŖŗśǼȱȱȱȱ the Republic of Indonesia, and the three basic prin-
dashed lines by PRC are not based on international ciples of a state of law, which must be adhered to,
ȱ ȱ ȱ Ĵȱ ȱ ȱ ȱ ȱ ȱ ȱ - which is the rule of law (supremacy of law), equality
vance the rule of international law. PRC as a state before the law (equality before the law ), and law en-
party for UNCLOS in 1982, but did not apply the rule ȱȱȱ ¢ȱȱȱĚȱ ȱȱ ȱǻȱ
of law in nine claims dashed lines, so it is a denial of process of law).
the rule of international law. PRC prefers products
made domestic law is not based on international The Indonesian Government in resolving the issue,
law in applying its maritime territorial claims in the both domestically and abroad should always be
South China Sea. Conditions such as these that com- ȱȱȱȱȱ ǯȱȱȱ
plicate dispute resolution, so that the South China that the main elements that reinforce the mandatory
Sea dispute is up to date can not be solved. nature of the rules of international law is the empiri-
cal fact that the countries would insist on maintain-
юѡіќћюљȱіћѡђџђѠѡѠȱќѓȱѡѕђȱђѝѢяљіѐȱќѓȱ ћёќћђѠіюȱ ing their rights according to the rules of the country
іћȱќѢѡѕȱѕіћюȱђю ȱȱ¢ȱȱǯȱĴȱȱȱ
Maritime territorial disputes in the South China Sea boundary claims is part of the rule of law which
generally has not involving Indonesia, the Indone- is upheld by the Indonesian government and has
sian government is still stated that the Indonesian ȱȱȱȱ ȱȱȱȱȱ
maritime territory there is no problem with the ǯȱȱȱȱȱȱȱȱ
claims of PRC territories. Indonesian government national interest to resolve the claim boundaries in
ȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ the South China Sea, decisive action is needed as the
with 10 (ten) neighboring countries, namely India, mandate and constitutional obligations that must be
Thailand, Malaysia, Singapore, Vietnam, Philip- implemented by the Indonesian government given
pines, Palau, Papua New Guinea, East Timor, and the increasingly aggressive presence of PRC in the
Australia. Indonesia is not including the claimants South China Sea.
in the South China Sea, but Indonesia has a national
interest of the territory in the form of Indonesian The national interests of a country is to strive remem-
waters and jurisdictions in the form of jurisdictional bering the international world is the arena of power
waters. struggle or anarchy so that every country should be
able to defend itself and its interests in order not op-
This waters in the Indonesia territory has full sov- pressed by other countries. National interest which
ereignty in the waters of Indonesia and the sover- ¢ȱ ȱ ȱ ęȱ ȱ ǰȱ ȱ ȱ -
eign rights in the waters of the jurisdiction of Indo- curity. Indonesia’s interests at sea must be fought
nesia for the exploration and exploitation of natural include the Survival (part of the political interest) in
resources both on the surface of the sea, in the sea, the form of sovereignty and sovereign rights to ter-
and the subsoil. South China Sea is the main line of ritorial waters and jurisdiction of Indonesia are not
ships in or out of Indonesian territory through AL- negotiable, because it involves the lives of the people
KI-I, when it was declared unsafe waters, the ship- of Indonesia, and the interests of Major that such as
ments will be higher insurance costs resulting price ensuring maritime safety, the safety of navigation of
of goods exports and imports will rise. the threat of violence and lawlessness, transnational
crimes and environmental safety, which is a shared
ȱȱȱ¢ȱȱ ȱȱĚȱȱȱ interest for the nations in the region.
1 Paragraph (3) of the Constitution in 1945, adheres
to the principle of the rule of law and the law is the Other purposes relating to territorial integrity (limit
source of sovereignty. In the theory of the rule of maritime claims), regional stability (security Indo-
law to use the rule of law developed by Dicey, and nesia and the region, part of ASEAN) and economic
in the United States become jargon The Rule of Law (sovereign rights) relating to exploration and ex-
and Not a Man, which is the principle that consid- ploitation, conservation and management of natural
ers not the person who is the leader, but the law as resources of biological and non-biological from the
leaders themselves. In terms of law enforcement, the waters above the seabed and the seabed and ground
state is obliged to uphold the rule of law to defend base beneath and with regard to other activities

-6-
such as the production of energy from water, cur- ȱ ȱ Ěȱ ȱ ¢ǰȱ ȱ Ěȱ
rents and winds. ȱȱȱ ¢ȱȱȱȱȱĚǯ
юѐіћєȱќћѓљіѐѡȱіѠѝѢѡђȱђѠќљѢѡіќћȱюџіѡіњђȱ ȱȱĚȱȱȱȱ¢ȱȱȱ
ђџџіѡќџѦȱіћȱѡѕђȱќѢѡѕȱѕіћюȱђю ȱ¢ȱǯȱȱȱĚȱ¢ȱȱȱ
In order to uphold the sovereignty and laws in the done by using diplomatic means, or with physical
South China Sea required a complete maritime de- activity, such as building a lighthouse, established
limitation based on UNCLOS 1982 and Act No. 17 of a boundary post in the border area between the two
1985. Considering that Indonesia is a country of law, countries. Siswanto (2014) states that in using means
ȱȱȱȱȱĚȱȱȱȱ¢ȱ of diplomacy with various theoretical approaches,
the law. This is to create legal certainty that can sup- ȱȱȱ¢ȱȱĚǰȱĚȱȱ-
port a wide range of maritime such as sovereignty ory, the theory of international relations, diplomacy
ȱ ȱǰȱęǰȱȱ¡ȱȱ ¢ȱȱȱ¢ȱȱȱ¢ǯȱĴ-
exploitation of natural resources, in addition to giv- ȱȱȱĚȱ¢ȱȱǰȱȱ-
ȱęȱȱ¢ȱ¢ȱȱȱ¢ȱ hite (2012) performed with hard power such as the
Republic of Indonesia. ability to force others to do something. This action
may include bringing the power of the military or
ȱĚȱȱȱ¢ȱǱȱǻǼȱȦ government apparatus to impose its will, as is often
multilateral; (ii) seminars and conferences; (iii) the carried out by Navy ships and ship PRC Govern-
ȱ ȱ ǯȱ ȱ Ȃȱ ¢ȱ ȱ Ěȱ ment in the South China Sea. Disputes in the South
ȱȱȱȱǰȱȱǱȱ- China Sea has been frequently discussed in forums
ǰȱ ȱ ȱ ȱ ȱ ȱ - ĚȱǰȱȱǱȱǻǼȱȱȱ-
ȱ ȱ ȱ ȱ ȱ ȱ Ĵȱ ȱ eral Forum. (ii) Seminars and conferences. (iii) AMF
strategies of the warring parties can through me- and ARF.
diation, negotiation, or arbitration, especially at the
ȱȦǯȱ ȱȱȱȱȱĴȱ ȱǻŘŖŗřǼȱȱȱȱěȱȱȱĚȱ
by peaceful means, then it is done by presenting a is often done through the forum of ASEAN political
ȱ¢ȱȱȱȱȱȱȱĴǰȱ and security cooperation, namely by practicing ele-
namely by managing along the disputed territory. ȱȱĚǰȱȱȱȱȱȱȱ
ȱ Ěǰȱ ¢ȱ ȱ ȱ ȱ
ȱ ȱ ȱ ȱ Ěȱ ȱ ȱ the interests of the same by means of multilateral co-
often used can be, coersion (by force or use of force), ȱȱȱ¢ǯȱĚȱȱ
negotiation, bargaining, adjudication (through in- ¢ȱ ȱ ȱȱȱȱ¢ǱȱǻǼȱǲȱ
ternational courts), mediation (using a third party), ǻǼȱȱǰȱǲȱǻǼȱȱȱ-
ȱ ǻȱ ¢ȱ ȱ Ěȱ ȱ - ȱȱȱȱȱȱĴȱȱ
cepted and obeyed by both parties, if the third party strategies of the warring parties could be through
can not be selected, then the government appointed mediation, negotiation, and arbitration especially at
ǼǯȱĴȱȱȱ ¢ǰȱ¢ȱ¢ȱ- ȱȱȱȱǯȱĴȱȱȱ
tion or facilitation of a third party such as the Inter- by peaceful means can be done by presenting the
national Court of Justice (ICJ), the Permanent Court third party as a mediator, while the peace building
of Arbitration (PCA) or the International Tribunal ěȱȱȱ£ȱ¢ȱȱȱȱ-
on the Law of the Sea (ITLOS). puted territory.
In discussions about international relations or re- Indonesian government in dealing with maritime
lations between nations needs to learn two major territorial disputes in the South China Sea, faced
ǰȱ¢ǲȱĚȱȱǯȱ ȱ with two choices, as a country not as a claimant or
Ěȱ¢ȱȱǱȱȱ ȱǰȱȱȱ claimants state jurisdictional waters of Indonesia.
ȱ Ěȱ ȱ ȱ ȱ ȱ Ěǰȱ ȱ ȱ - From the analysis of the advantages and disadvan-
ĚȱȱȱȱȱȱȱȱĚȱ ȱ tages when Indonesia to act as claimants territorial
countries, because actors are not the only countries ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ĵȱ
claimants but also other countries concerned in the as shown by the government to date, so from the
ǯȱȱȱĚȱȱȱȱ¢Ǳȱȱ standpoint of formal judicial it’s time for the gov-
Ěȱȱȱǰȱȱȱȱȱȱȱȱ ȱȱȱęȱȱȱȱȱȱȱ-
to control the territory controlled by another coun- rial waters of the jurisdiction of Indonesia in North
¢ǯȱ ȱ Ěȱ ȱ ȱ ȱ ¢ȱ ȱ ȱ Natuna.

-7-
ђѐќњњђћёюѡіќћѠ
Unequivocal statement claims against the waters of First, considering the problem of the disputed mari-
the jurisdiction of Indonesia to uphold the rule of time area is very complex and has continued until
law and strengthen the delimitation of the continen- today, the government must maintain good rela-
tal shelf between Indonesia and Malaysia as well as tions with the countries of claimants and non-claim-
Indonesia and Vietnam, and complement a unilat- ants, particularly the ASEAN countries, and main-
eral claim of Indonesia to coordinate fundamental taining regional security and stability in the South
points that have been deposited to the UN Secretary China Sea. Role as a mediator is still being done in
General, as it also strengthens marine maps Indone- ȱȱȱȱȱȱȱĴȱ
sia and Candy CTF 354 number of Regional Fisher- of the dispute.
ies Management the Republic of Indonesia.
Secondly, Indonesia’s national the vital interests of
ќћѐљѢѠіќћ must be fought in the forums of bilateral, regional,
First, the maritime territorial disputes in the South and international levels. Into our own country, the
China Sea has lasted a long time and is still happen- ȱȱ¢ȱę£ȱȱ-
ing, because PRC persisted in its claim nine dashed ing of the additional zones that are still dormant,
lines reinforced by national legislation Rules PRC and revise Law No. 5 of 1983 concerning EEZI and
No. 55 in 1992, but contrary to international mari- continue the revision of Law No. 73 of 1971 on the
time law UNCLOS in 1982. The claim is based on continental shelf, which is adapted to the provisions
the history of the region (PRC, Taiwan, Vietnam), of the UNCLOS 1982.
ȱȱȱȱ ȱǻȱǼǰȱȱ
ȱĜȱȱȱȱ ǯ ¢ǰȱ ȱ Ěȱ ȱ ȱ ȱ ȱ ȱ
South China Sea should be resolved legally and
Secondly, even though Indonesia is not a country ȱ ǯȱ ȱ Ĵȱ ȱ ȱ ȱ ȱ
claimants to the features in the Spratly Islands, but national legislation, bilateral agreements and inter-
Indonesia has a vital interest of national form of sov- national law, and the Indonesian government must
ereign rights in the waters of the jurisdiction of the ¢ȱȱȱȱȱȱȱȱ
Indonesian Exclusive Economic Zone and continen- proceedings in the PCA.
tal shelf which should be maintained, and the main
interest to ensure the safety and maritime safety in This research is certainly not free from the limita-
the South China Sea. Indonesia as a state legally tions in both scope and depth, some topics are left
obliged to enforce national laws, bilateral agree- in this study include advanced EEZ boundary ne-
ments and international law applicable in order to gotiations between Indonesia and Vietnam, and the
maintain the sovereignty of the Republic of Indone- EEZ boundary negotiations between Indonesia and
sia. Malaysia, which of course starts from the territorial
boundary negotiations beforehand. Some of these
ThirdlyǰȱȱȱȱȱĚȱȱȱȱ activities include depositing Indonesian EEZ claims
Sea dispute has been done legally and diplomacy to ȱȱȱ ȱȱ¢ȱǰȱȱ
ȱǯȱȱĴȱěȱȱȱȱ law on Indonesian EEZ and the continental shelf
bilaterally, through regional forums, to the Perma- as well as legislate the establishment of maritime
nent Court of Arbitration, while the completion of boundaries between Indonesia and China. These
the build CBMs performed with various maritime ȱȱȱȱȱȱ¢ȱȱȱȱ
cooperation in order to build together the region ȱ ǰȱ ȱ ȱ ¡ȱ ȱ ȱ ȱ ȱ
ȱĚǯ study that will be addressed in future studies.
ђѓђџђћѐђѠ
Ali, Alman Helvas. (2012). Focus Group Discussion Sopsal tentang Hubungan Kerjasama RI-PRC dan Sensitivas
Klaim Laut Tiongkok Selatan. Wisma Elang Laut: 6 Juli 2012.
ASEAN, TAC 1976 (Treaty of Amity and Cooperation in Southeast Asia)
ȏȏȏȏȏȏȏǰȱȱȱȱǻȱȱȱȱǼ
Ĵǰȱǯȱ ȱ ǯȱ ǻŗşŞŘǼǯȱ Ȧęȱ ȱ ȱ ȃȄȱ ȱ -
atanegaraan. Majalah Hukum dan Pembangunan ǯȱŚȱȱȱ ȱ ǰȱŗşŞŘȱ
-8-
ȱȱȱDeklarasi Republik Indonesia Sebagai Negara Kepulauan. 13 Desember 1957
Fuady, Munir. (2009). Teori Negara Hukum Modern (Rehctstaat)ǯȱǱȱęȱǯ
Indonesia Maritime Institute. (2013). ĚȱȱǱȱȱ ȱȱ.
Johnny Ibrahim. (2010). Teori dan Metodologi Penelitian Hukum Normatif. Malang: Bayumedia Publishing.
ǯȱǻŘŖŗśǼǯȱ ȱȱȱȱȱȱȱȱȱȱȱ ȱ -

sional. Surat kabar Jepang, Yomiuri mengutip Reuters. 23 Maret 2015.
Keppres Nomor 12 Tahun 2014, tanggal 14 Maret tahun 2014 tentang pencabutan Surat Edaran Presidium
Kabinet Ampera Nomor SE-06/Pred.Kab/6/1967, tanggal 28 Juni tahun 1967
ȱȱȱ ȱȱŞşȱȱŗşŜşȱȱȱȱȱ-
tinen di laut China Selatan antara pemerintah Indonesia dan Malaysia
ȱȱ ȱȱŗŞşşȱȱŗşŖŝȱȱ¢ȱȱ ȱȱ
ȱȱȱŗşśŞȱȱ ȱȱ
ȱȱȱŗşŞŘȱȱ ȱȱ ȱŗşŞŘȱǻȱŗşŞŘǼ
ȱȱȱ ȱȱŘŖŖŞȱȱŗŝŝǯȱ
ȱ¢ ȱ¢ȱȱ ǯȱǻŘŖŗŖǼǯȱPanduan Pemasyarakatan Undang-Undang Dasar

Republik Indonesia tahun 1945 (Sesuai dengan Urutan Bab, Pasal dan Ayat)ǯȱ Ǳȱȱ ȱȬ
RI.
ǯȱǻŘŖŗŚǼǯȱModernisasi Kekuatan Laut Negara ASEAN Akibat Situasi Laut China Selatan, Wall Street Jour-
nal Asia, Desember 2014.
ȱȱȱ ȱȱřŝȱȱŘŖŖŞȱȱȱȱȱ
ȱřŞȱȱȱŘŖŖŘȱȱȱ ȱ ęȱȬȱ ȱȱ ȱ -
nesia
ȱȱȱ ȱȱřŞȱȱŘŖŖŘȱȱȱ ȱ ęȱȬ

ȱ ȱȱ ȱ
ȱȱȱ ȱȱŜŗȱȱŗşşŞȱȱȱ ȱ ęȱȬ

ȱ ȱȱ ȱ ȱȱȱ ȱ
ȱȱ ȱȱȱȱȱȱȱȱ ȱȱȱ

¢ȱȱ ȱǰȱȱŘŝȱȱŗşŜşȱ
ȱȱŗŝŞȱȱŘŖŗŚȱȱȱǰȱȱŗśȱȱŘŖŗŚ
Ras, Abdul Rivai. (2001). Ěȱȱȱȱȱ ȱȱȬęǰȱȱȱ .

Ǳȱǯ
Sastroamidjojo, Ali. (1974). Tonggak-Tonggak di Perjalanankuǯȱ Ǳȱȱ ǯ
ǰȱȱȱȱǯȱǻŘŖŗŖǼǯȱȱ ȱǱȱȱȱǯȱ Ǳȱ-

jawali Pers.

-9-
ȱȱȱȱȱŘŞŘŜȦ ȦŗşŜŖȱȱŘŘȱȱŗşŜŖȱȱȱȬ
Perjanjian Dengan Negara Lain
ȱȱȱȱ ȱȱȱȱǻǼǰȱȱȱ¢ȱȱȱȱȱŗşŞŘǰȱ
2006
ȱȱȱȱȱȱ ȱȱȱǯȱǻŗşŞŘǼǯȱȱ ȱȱ¢ȱȱȱ

negara pantai.
Treves, Tullio. (2013) ȱȱȱȱȱǰȱ Ǳȱ¢ȱȱǯȱȱȱ ȱ

Roundtable di Laut Cina Selatan,ȱ ȱ ȱȱǰȱŘŝȬŘŞȱ ȱŘŖŗřȱȱǯ
ȱǻŗşřşǼǯȱȱȱȱǰȱǻȱ ȱǼ
Ȭȱȱȱ ȱȱŗşŚś
Undang-Undang Nomor 17 tahun 1985 tentang Pengesahan UNCLOS tahun 1982
Undang-Undang Nomor 37 tahun 1999 tentang Hubungan Luar Negeri
Undang-Undang Nomor 4 Prp tahun 1960 tentang Perairan Indonesia
Undang-Undang Nomor 6 tahun 1996 tentang Perairan Indonesia
Ȭȱȱ ȱȱŗȱȱŗşŝřȱȱȱȱ ȱ
Ȭȱȱ ȱȱŗŞȱȱŘŖŖŝǰȱȱȱȱ ȱȱ-

ȱȱȱȱȱȱȱȱǰȱŘŜȱ ȱŘŖŖř
Ȭȱȱ ȱȱŚřȱȱŘŖŖŞȱȱ¢ȱǯȱ
Ȭȱȱ ȱȱŚřȱȱŘŖŖŞȱȱ¢ȱ
Ȭȱȱ ȱȱśȱȱŗşŞřȱȱȱȱȱ
Ȭȱ ȱȱȱŘŚȱȱŘŖŖŖǰȱȱȱ
United Nations (1958) Convention on the Continental Shelf 1958

-10-
General Principles of the Law of the Sea
Office of the Staff Judge Advocate
97 INT’L L. STUD. 27 (2021)
Volume 97 2021
Published by the Stockton Center for International Law

ISSN 2375-2831

International Law Studies 2021
General Principles of the Law of the Sea
Office of the Staff Judge Advocate, U.S. Indo-Pacific Command ∗
∗
Prepared by Captain Raul (Pete) Pedrozo, JAGC, U.S. Navy (Ret.); edited by Com-
mander Matthew Wooten, JAGC, U.S. Navy and Lieutenant Commander Miles Young, U.S.
Coast Guard; and approved by Colonel Thomas McCann, U.S. Marine Corps.
The thoughts and opinions expressed are not necessarily those of the U.S. government,
the U.S. Department of the Navy, or the U.S. Naval War College.
27

General Principles of the Law of the Sea Vol. 97
T he world’s oceans are divided into maritime zones—internal waters, ar-

chipelagic waters, territorial seas, contiguous zones, exclusive economic
zones (EEZs), continental shelves, high seas, and the Area (see the Maritime
Zones figure below). International law, as reflected in the U.N. Convention
on the Law of the Sea (UNCLOS), 1 establishes functional rights, obligations,
and jurisdiction over each zone. These rights and obligations include navi-
gation and overflight of the oceans; exploration, exploitation, and conserva-
tion of ocean-based living and non-living resources; protection of the marine
environment; and marine scientific research. Coastal State rights and juris-
diction in offshore areas diminish as the distance from the shoreline in-
creases. Conversely, the rights and freedoms of the international community
increase farther from land.
28

Baselines. All maritime

zones are measured from
the baseline. Under inter-
national law, the normal
baseline for measuring
the breadth of these
zones is the low-water
line along the coast as
marked on large-scale
charts officially recog-
nized by the coastal
State. 2 Straight baselines
may be used, but only in
very limited circum-
stances, as detailed in the
four permissible uses be-
low.
Permissible Use of Straight Baselines

• In localities where the coastline is deeply indented and cut into, or if there
is a fringe of islands along the coast in its immediate vicinity.
• Where because of the presence of a delta and other natural conditions the
coastline is highly unstable.
• Across the mouth of a river that flows directly into the sea.
• To close the natural entrance of a bay, not to exceed 24 nm. 3
29

Internal Waters. Internal waters are all waters landward of the baseline
along the coast. Lakes, rivers, some bays, roadsteads, harbors, canals, and
lagoons are examples of internal waters. Coastal States exercise sovereignty
over their internal waters and superjacent airspace, and foreign ships or air-
craft may not enter internal waters without coastal State consent. 4
Territorial Sea. All States may claim a 12 nm territorial sea. Within the ter-
ritorial sea, the coastal State exercises complete sovereignty over the water
column, the seabed and subsoil, and the airspace above the territorial sea,
subject to the right of innocent passage. 5
30

Innocent Passage. All ships,

An inclusive list of activities consid-
including warships, regardless ered to be non-innocent include:
of armament, cargo, or means
of propulsion, enjoy the right - Any threat or use of force against the
of innocent passage through sovereignty, territorial integrity, or po-
the territorial seas without litical independence of the coastal
coastal State notice or con- State, or in any other manner in viola-
sent. 6 Submarines and other tion of the principles of international
underwater craft engaged in in- law embodied in the U.N. Charter
nocent passage are required to - Any exercise or practice of weapons
navigate on the surface and
- Any act aimed at collecting infor-
show their flag. 7 Innocent pas-
mation to the prejudice of the defense
sage must be continuous and or security of the coastal State.
expeditious, but may include
stopping and anchoring (1) if - Any act of propaganda aimed at af-
incidental to ordinary naviga- fecting the defense or security of the
coastal State.
tion, (2) if rendered necessary
by force majeure or distress, or - The launching, landing, or taking on
(3) to render assistance to per- board of any aircraft or military device
sons, ships or aircraft in danger - The loading or unloading of any
or distress at sea. 8 Passage is in- commodity, currency, or person con-
nocent so long as it is not prej- trary to the customs, fiscal, immigra-
udicial to the peace, good order tion or sanitary laws and regulations of
or security of the coastal State. the coastal State
Innocent passage does not in- - Any act of willful and serious pollu-
clude a right of overflight tion
through national airspace
- Any fishing activities
above the territorial sea or sub-
merged transit by submarines. 9 - Research or survey activities
- Any act aimed at interfering with any
systems of communication of the
coastal State.
- Any other activity not having a direct
bearing on passage
31

International Straits. There are seven types of international straits: (1)

straits used for international navigation where transit passage applies (e.g.,
Straits of Malacca and Singapore); (2) geographic straits through which a
high-seas corridor exists (e.g., Taiwan Strait); (3) straits governed by long-
standing conventions (e.g., Turkish Straits); (4) straits with routes through the
high seas or exclusive economic zone (EEZ) that are of similar convenience
(e.g., Japanese Straits--Soya, Tsugaru, Osumi and Tsushima Straits); (5) straits
formed by islands (e.g., Messina Strait); (6) archipelagic straits, governed by
archipelagic sea lanes passage (ASLP); and (7) dead end straits (e.g., Strait of
Tiran). Each type of strait has its unique characteristics and passage regimes.
For example, high seas freedoms of navigation and overflight apply in geo-
graphic straits (Taiwan Strait) and in straits with an EEZ/high sea route of
similar convenience (Japanese Straits).
Transit Passage. All military and commercial ships and aircraft enjoy a right
of unimpeded transit passage through straits used for international naviga-
tion in the normal mode of operation without bordering States notice or
consent. 10 “Normal mode of operation” means that submarines may transit
submerged, military aircraft may overfly in combat formation and with nor-
mal equipment operation, and surface ships may transit in a manner con-
sistent with vessel security, to include formation steaming and launch and
recovery of aircraft, if consistent with sound navigational practices. 11 The
bordering States may not suspend transit passage for any purpose, including
military exercises, and are prohibited from adopting laws or regulations that
have the practical effect of denying, hampering or impairing the right of
transit passage. 12
Archipelagic Waters. An archipelagic State is a nation constituted wholly

of one or more groups of islands. 13 The Philippines and Indonesia are con-
sidered archipelagic States. Such nations may draw straight archipelagic base-
lines joining the outermost points of their outermost islands, if the ratio of
water to land within the baselines is between 1:1 and 9:1. 14 The waters en-
closed within the archipelagic baselines are archipelagic waters, which are
subject to archipelagic State sovereignty. 15 Archipelagic baselines are also
used to measure the archipelagic State’s territorial sea, contiguous zone, and
EEZ. 16 Archipelagic States may (but are not required to) designate archipe-
lagic sea lanes (ASL) through their archipelagic waters suitable for continu-
ous and expeditious passage of ships and aircraft. All normal routes used for
32

international navigation and overflight are to be included in the designation,

and must be adopted by the International Maritime Organization. 17 If the
archipelagic State does not designate or makes only a partial designation of
ASLs, vessels and aircraft of all nations may continue to exercise the right of
archipelagic sea lanes passage (ASLP) in all normal passage routes used for
international navigation and overflight through the archipelago. 18 The right
of innocent passage applies in archipelagic waters not covered by the ASLP
regime. 19
Archipelagic Sea Lanes Passage. ASLP applies within archipelagic waters

and the adjacent territorial sea whether or not the archipelagic State has des-
ignated ASLs, and is virtually identical to transit passage. ASLP is the exercise
of the rights of navigation and overflight in the normal mode of operation
solely for the purpose of continuous, expeditious, and unobstructed transit
through archipelagic waters. All military and commercial ships and aircraft
enjoy the right of ASLP while transiting through, under, or over archipelagic
waters and adjacent territorial seas via all normal passage routes used as
routes for international navigation or overflight. 20 The archipelagic State may
not impede or suspend the right of ASLP for any reason. 21
Contiguous Zone. Coastal States may claim a 24-nm contiguous zone

measured from the baseline in which the coastal State may exercise limited
control necessary to prevent or punish infringement of its customs, fiscal,
immigration, or sanitary laws and regulations in its territory or territorial sea.
The coastal State does not exercise sovereignty over its contiguous zone. 22
Military and commercial ships and aircraft of all States enjoy the same high
seas freedom of navigation and overflight, and other internationally lawful
uses of the seas associated with those freedoms, in the contiguous zone that
apply in the EEZ and on the high seas. 23
33

Exclusive Economic Zone. Coastal States may claim a 200-nm EEZ meas-
ured from the baseline. 24 The EEZ is not subject to coastal State sover-
eignty. 25 Within this zone, the coastal State enjoys sovereign rights for the
purpose of exploring, exploiting, conserving and managing living and non-
living natural resources, as well as jurisdiction over resource-related off-
shore installations and structures, marine scientific research (MSR), and the
protection and preservation of the marine environment. The production of
energy from the water, currents, and winds also falls under the jurisdiction
of the coastal State. The concept of the EEZ is new in international law. The
zone comprises 38 percent of the world’s oceans that just three decades ago
was entirely high seas. The EEZ was created for the sole purpose of granting
coastal states greater control over the resources adjacent to their coasts out
to 200 nm. Efforts by a handful of nations to expand coastal State jurisdic-
tion in the EEZ to include security matters were not accepted by the majority
of the delegations participating in the negotiations. 26
EEZ boundary representation is not necessarily authoritative
34

High Seas Freedoms. Within the EEZ, all States enjoy high seas freedoms
of navigation and overflight, laying of submarine cables and pipelines, and
other internationally lawful uses of the seas related to those freedoms, such
as those associated with the operation of ships, aircraft and submarine cables
and pipelines, which are compatible with the coastal State’s resource rights
and jurisdiction. 27 Lawful military activities that can be conducted in the
EEZ without coastal State notice or consent include, inter alia: intelligence,
surveillance and reconnaissance (ISR) operations; oceanographic surveys
and marine data collection; military exercises, use of weapons and flight op-
erations; freedom of navigation and presence operations; maritime security
operations to counter the slave trade, repress piracy, suppress unauthorized
broadcasting, and suppress narcotics trafficking; and the exercise of belliger-
ent right of visit and search during wartime and the peacetime right of ap-
proach and visit, rending assistance, and hot pursuit. 28
Continental Shelf. Coastal States also exercise sovereign rights over their
continental shelf for the purpose of exploring and exploiting its natural re-
sources, including mineral and other non-living resources of the seabed and
subsoil together with living organisms belonging to sedentary species. 29 The
continental shelf includes the seabed and subsoil of the submarine areas that
extend beyond the territorial sea throughout the natural prolongation of its
land territory to the outer edge of the continental margin, or to a distance of
200 nm from the baselines where the outer edge of the continental margin
does not extend up to that distance. 30 Continental shelf claims that extend
beyond 200 nm must be submitted to the Commission on the Limits of the
Continental Shelf, an independent technical international organization, to
consider and make recommendations to coastal States on matters related to
such claims. 31 The continental shelf regime preserves high seas freedoms of
navigation and overflight in the zone by providing that coastal State rights
over the seabed do not affect the status of the superjacent waters or airspace
above those waters. 32
High Seas. Beyond the 200 nm EEZ lies the high seas, which remain open
to all States. 33 No State may validly purport to subject any part of the high
seas to its sovereignty. 34 Freedom of the high seas includes: freedom of nav-
igation and overflight; freedom to lay submarine cables and pipelines; free-
dom to construct artificial islands and other installations; freedom of fishing;
freedom of scientific research; and other internationally lawful uses of the
sea. 35 Warships and military aircraft enjoy freedom of movement and
35

operation on and over the high seas, including, inter alia, task force maneu-
vering, flight operations, military exercises, submarine operations, ISR activ-
ities, military marine data collection, and ordnance testing and firing.
The Area. The deep seabed and its mineral resources located beyond the
EEZ and continental shelf comprises the Area. Mineral resources of the
Area are administered by the International Seabed Authority. 36 Navigational
freedoms and other high seas freedoms (such as scientific research and tele-
communications) in the Area are preserved to the international community
by UNCLOS, which provides that neither Part XI nor any rights granted or
exercised pursuant thereto shall affect the legal status of the waters superja-
cent to the Area or that of the air space above those waters. 37
36

1. The United States did not sign the Convention when it was opened for signature on
December 10, 1982 because of its objections to Part XI on deep seabed mining. However,
on March 10, 1983, President Ronald Reagan issued an Ocean Policy Statement that recog-
nized that the convention contains provisions that generally confirm existing maritime law
with respect to traditional uses of the oceans and fairly balance the interests of all States.
Accordingly, President Reagan announced that the United States would accept and act in
accordance with the balance of interests relating to traditional uses of the oceans, such as
navigation and overflight, and would recognize the rights of other States in the waters off
their coasts so long as the rights and freedoms of the United States are recognized by such
coastal States. See President Ronald Reagan, Statement on United States Oceans Policy (Mar.
10, 1983).
2. United Nations Convention on the Law of the Sea art. 5, Dec. 10, 1982, 1833
U.N.T.S. 397 [hereinafter UNCLOS].
3. Id. arts. 7, 9, 10.
4. Id. art. 8.
5. Id. arts. 2, 3; Convention on International Civil Aviation (Chicago Convention), art.
1, Dec. 7, 1944, U.N.T.S. 295 [hereinafter Chicago Convention].
6. UNCLOS, supra note 2, art. 17.
7. Id. art. 20.
8. Id. art. 18.
9. Chicago Convention, supra note 5, arts. 1–3bis; UNCLOS, supra note 2, arts. 18, 20.
11. Id. art. 39.
12. Id. art. 42.
13. Id. art. 46.
14. Id. art. 47.
15. Id. art. 49.
16. Id. art. 48.
17. Id. art. 53.
18. Id. art. 53(12); IMO Doc. SN/Circ.206/Corr.1, Guidance for Ships Transiting Ar-
chipelagic Waters, Mar. 1, 1999; IMO Doc. A.571(14), General Provisions on Ships’ Route-
ing, Nov. 20, 1985, Part I; IMO Doc. SN/Circ. 206, Guidance for Ships Transiting Archi-
pelagic Waters, Mar. 1, 1999, ¶ 2.1.1.
20. Id. art. 53.
21. Id. art. 54.
22. Id. art. 33.
23. Id. art. 58.
24. Id. art. 57.
25. Id. arts. 56, 58.
26. 2 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMEN-
TARY 529–44 (Satya N. Nandan & Shabtai Rosenne eds., 1993) [hereinafter 2 VIRGINIA
COMMENTARY].
37

28. UNCLOS, supra note 2, arts. 56, 58, 86–87, 89–92, 94–96, 98–112; 2 VIRGINIA
COMMENTARY, supra note 26, at 60–71; see generally id. at 491–821.
30. Id. art. 76.
31. Id.
32. Id. art. 78.
33. Id. art. 87.
34. Id. art. 89.
35. Id. art. 87.
36. Id. Part IX; Agreement Relating to the Implementation of Part XI of the United
Nations Convention on the Law of the Sea of 10 December 1982, July 28, 1994, 1836
U.N.T.S. 3 (entered into force July 28, 1996).
38

Mendip Communications Job ID: 9407BK--0000-6 1- 1 Rev: 13-03-2003 PAGE: 1 TIME: 14:08 SIZE: 61,00 Area: JNLS OP
䉷 EJIL 2003
.............................................................................................
International Dispute
Settlement: A Network of
Cooperational Duties
Anne Peters*
Abstract
This article identifies various duties of cooperation both in political and legal settlement
strategies. A general, customary law-based duty of cooperation with a view to settlement,
comprising a duty to negotiate, is inherent in the obligation to settle disputes peacefully. On
the other hand, a general ‘political exhaustion doctrine’ does not exist. In diplomatic third
party-based settlement, we find specific, i.e. procedural, obligations of cooperation. With
regard to adjudication, the evolution of treaty law has seen the cooperational act of
submission given at an increasingly early stage. The doctrine of non-frustration of
adjudication functions as a corollary to the duties of cooperation. In international criminal
justice, manifold duties of cooperation are binding erga omnes partes. The cooperational
duties are placed in the context of two antagonistic trends in dispute settlement. One is the
rise of adjudication which is found, for instance, in the creation of new courts. On the other
hand, new and varied political means are resorted to, and justified by novel arguments, such
as alternative dispute resolution (ADR). The international law of dispute settlement may be
envisaged as a network of obligations. The hierarchical strand of the network is dominant
where (quasi-)compulsory jurisidiction exists. Yet horizontal Westphalian elements persist.
Finally, the network image applied to dispute settlement visualizes the oscillation of
international law between Westphalianism and Constitutionalism.
Introduction
The thesis put forward in this article is that the international law of dispute settlement
is transcending the phase of mere cooperation, as identified by Wolfgang Friedman,1
* Prof. Dr. iw., LLM (Harvard), University of Basel, Switzerland.

1
W. Friedman, The Changing Structure of International Law (1964). See only the Declaration of President
Bedjaoui, President of the ICJ, appended to the Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, 35 ILM (1996), 1345, para. 13: ‘Witness . . . the gradual substitution of an
international law of cooperation for the traditional international law of co-existence, the emergence of
the concept of “international community” . . . The resolutely positivist, voluntarist approach of
international law . . . has been replaced by an objective conception of international law, a law more
readily seen as the reflection of a collective juridical conscience and as a response to the social necessities
of States organized as a community.’
..............................................................................................................................................................
EJIL (2003), Vol. 14 No. 1, 1–34
2 EJIL 14 (2003), 1–34
and is displaying characteristics of a network. ‘Cooperation’ is the joint action of two or

more subjects of international law or other international bodies, and means more
than ‘coexistence’ or ‘coordination’. It means proactively working together, serving
objectives that cannot be attained by a single actor.2 International cooperation is the
guiding principle of the United Nations.3 A general inter-state duty to cooperate in all
fields is asserted by the Friendly Relations Declaration.4 Specific duties of cooperation
have been established (in more or less hard law and more or less consistently) in
international economic relations.5 In the 1970s and 1980s they were reclaimed with
a view to a right to development, often associated with a novel concept of ‘solidarity’.6
Duties of cooperation play an important role in international environmental law7 and
in the battle against terrorism.8 In contrast, the law of dispute settlement has rarely
been analysed in this perspective.
I will argue that the international law of dispute settlement is not only built on
cooperation, but even constitutes a network, as political scientists understand the
term.9 A network is a structure situated on the scale between a horizontal/loose/
market-like structure and a hierarchical/institutionalized/state-like one.10 ‘In con-
trast to the type of a “state” with the structuring principle of hierarchy and of a
2
Wolfrum, ‘International Law of Cooperation’, II EPIL (1995), 1242.
3
Arts 1 para. 3; 11; 13; Chap. IX of the UN Charter.
4
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among
States in Accordance with the Charter of the United Nations (Annex to GA Res. 2625 (XXV) of 24
October, 1970, 9 ILM (1970), 1292 et seq.).
5
UN GA Declaration on the Establishment of a New International Economic Order of 1 May 1974 (UN Doc.
A/RES/3201 (S-VI)), 13 ILM (1974), 715; GA Res. 3281 (XXIX), Charter of Economic Rights and Duties
of States (1974), 69 AJIL (1975), 484; UN GA Declaration on International Economic Co-operation, in
particular the Revitalization of Economic Growth and Development of the Developing Countries of 1 May
1990 (UN Doc. A/RES/S-18/3); GA Res. 49/97 on Strengthening International Organizations in the
Area of Multilateral Trade of 19 Dec. 1994 (UN Doc. A/RES/49/97).
6
See, e.g., Flory, ‘Essai de typologie de la coopération bilatérale pour le développement’, Annuaire français de
droit international 19 (1973) 696; Idem, ‘Souveraineté des Etats et coopération pour le développement’,
141 RdC (1974, I), 255; Abi-Saab, ‘Le droit au développement’, 44 Schweizerisches Jahrbuch für
internationales Recht (1988) 9; P.-M. Dupuy, Droit international public (4th ed., 1998), at 567–577.
7
WTO Appellate Body Report in: United States-Import Prohibition of Shrimp (WT/DS58/AB/R) of 12
October 1998, 38 ILM (1999), 121 et seq., para. 168, with reference to various documents mandating
cooperation, concertation or consensus in order to achieve the goals of environmental protection.
8
See only SC Res. 1368 of 12 Sept. 2001, para. 4 of the preamble; SC Res. 1373 of 28 Sept. 2001, para. 7 of
the preamble and para. 3(c) of the operative part.
9
In the political scientists’ network analysis, the network concept is applied to political actors of entities,
not primarily to individuals. The political science term ‘network’, which I rely on, does not mean social
network, i.e. linkages between people in communities and organizations. My analysis is not based on the
social scientists’ social network analysis as represented, e.g. by P. V. Marsden and N. Lin (eds), Social
Structure and Network Analysis (1982) or by M. Castells, The Information Age: Economy, Society and Culture,
vol. I: The Rise of the Network Society (1996).
10
Atkinson and Coleman, ‘Policy Networks, Policy Communities and the Problems of Governance’, 5
Governance: An International Journal of Policy and Administration (1992) 154; Mayntz, ‘Policy-Netzwerke
und die Logik von Verhandlungssystemen’, in A. Héritier (ed.) Policy-Analyse (Politische Viertel-
jahresschrift Special issue 24/1993), (1993), 39; Snyder, ‘Governing Economic Globalisation: Global
Legal Pluralism and European Law’, 5 ELJ (1999) 334, at 372 and 339.

International Dispute Settlement 3
“market” with the structuring principle of anarchy, the particular feature of networks
is the loose coupling of its components.’11
The paper first defines the concept of international dispute settlement (Section 1). It
then revisits the traditional canon of dispute settlement means (Section 2). It
continues to discuss general questions, such as an intrinsic general duty of
cooperation in dispute settlement (Section 3), the principle of free choice (Section 4),
the political-exhaustion doctrine (Section 5), and the principle of good faith as a
source of cooperational duties (Section 6). The paper then presents some specific forms
of cooperation in different forms of adjudication (Sections 7–9). The paper concludes
that we have a genuine law of cooperation which needs to be seen in the context of
antagonist trends in dispute settlement. The criss-cross of horizontal and vertical
relationships in which states and dispute settlement institutions cooperate may be
described as a network (Section 10).
1 The International Law Principle of Peaceful Settlement of

Disputes
The principle of peaceful settlement of disputes is central to the UN system. It is
enshrined in numerous conventions and is a customary law principle.12 A ‘dispute’
was defined by the Permanent Court of International Justice in the Mavrommatis case
of 1924 as ‘a disagreement on a point of law or fact, a conflict of legal views or interests
between two persons’.13 The principle of peaceful settlement of disputes relates to
‘international’ disputes14 as opposed to ‘national’ or ‘domestic’ ones. What separates
‘the international’ from ‘the national’? I submit that the international element lies
neither in the trans-border dimension nor is the concept of international disputes
restricted to disputes between states. The criterion of ‘internationality’ of a dispute lies
in the legal substance of the dispute. International disputes are those in which the
rivalling claims are based on international law. This will normally go hand in hand
with the parties being (at least so-called ‘limited’) subjects of international law.
Correspondingly, international dispute settlement is present when the competent body
or mechanism (tribunal, settlement conference, or other) is (at least in part)
11
Jachtenfuchs, ‘Democracy and Governance in the European Union’, in A. Føllesdahl and P. Koslowski
(eds), Democracy and the European Union (1998) 37, at 55.
12
ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua, Merits (Nicaragua v.
USA), ICJ Reports (1986) 14, para. 290.
13
Mavrommatis Palestine Concessions Case (1924), PCIJ, Ser. A, No. 2, at 11. See on the existence of a dispute
with reference to the Mavrommatis definition, ICJ, Case Concerning Questions of Interpretation and
Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, Preliminary
Objections (Libyan Arab Jamahiriya v. USA), judgment of 27 February 1998, 37 ILM (1998) 587, at 598,
paras 21–38.
14
Compare the wording of Art. 2 para. 3 UN Charter.

4 EJIL 14 (2003), 1–34
constituted under and functions according to international, not purely national,

rules.15
2 The Traditional Canon of Dispute Settlement Strategies

The pacific means of dispute settlement are traditionally classified into two groups:
diplomatic-political means on the one hand, and adjudicational-legal means on the
other. This distinction is based on the standards applied and on the binding nature of
the process. Diplomatic-political procedures (such as negotiation, inquiry, mediation,
conciliation) seek to reconcile interests and their outcome is not in itself binding. An
ultimately binding result is reached only in the ideal case that the parties to the dispute
reach an agreement. Legal-adjudicational procedures (arbitration and litigation)
apply international law and determine rights; they culminate in a binding decision
which cannot be unilaterally evaded by one party. I will now very briefly review the
gamut of settlement strategies.
A ‘Political’ Means
1 Negotiation
Negotiation is communication, without third-party involvement, directed at achiev-
ing a joint decision. Negotiations are still the basic means of dispute settlement;16 they
figure as such in almost all general dispute settlement conventions17 and in virtually
15
This includes international arbitration tribunals choosing as their procedural law (as the lex arbitri) the
domestic law of their seat because such choice is allowed by international law. An international dispute
(defined by the applicable law) may also be resolved by a national institution, e.g. by a domestic court. For
example, violations of crimes against humanity and serious violations of international humanitarian law
are tried by national courts which have jurisdiction under the principle of universal jurisdiction. See the
Belgian trials initiated in April 2001 on crimes committed during the 1994 massacres in Rwanda. The
legal basis is a Belgian Act of 1993 Concerning the Punishment of Grave Breaches of the Geneva
Conventions and the Act Concerning the Punishment of Grave Breaches of International Humanitarian
Law of 10 February 1999 which implements the Genocide Convention of 1948 (transl. of the latter Act,
38 ILM (1999), at 918 et seq.). Nevertheless, conflicts of jurisdiction between national and international
courts may arise.
16
ICJ, North Sea Continental Shelf Cases, ICJ Reports (1969) 3, at 47, para. 86: ‘There is no need to insist on
the fundamental character of this method of settlement.’ Negotiations are of course also a basic form of
cooperation in all kinds of situations, but this general function will be left aside here.
17
See Art. 1 of the General Act (Pacific Settlement of Disputes) of 26 September 1928, LNTS vol. XCIII, no.
2123, 343; Art. 1 of the Revised General Act for the Pacific Settlement of International Disputes, adopted
by the General Assembly on 28 April 1949, UNTS 71, no. 912, 101; Art. 2, para. 2 of the Pact of Bogotá
(American Treaty on Pacific Settlement of 30 April 1948, UNTS vol. 30 (1949), no. 449 (Eng. text at
84)); Art. 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, UNTS
(1958), no. 320, at 243–256.

all settlement clauses incorporated in material treaties.18 Negotiations aim to produce

a consensual resolution to a dispute. Such resolution draws its legitimacy from
consent, but this legitimacy is tainted by power disparities.
2 Fact-finding
The second diplomatic strategy is inquiry or fact-finding. The purpose of fact-finding
commissions is to facilitate the solution of disputes arising predominantly from a
difference of opinion on facts by elucidating these facts.19 In recent decades, the
concept of fact-finding has been visibly positively reappraised.20 International
conventions, such as the United Nations Convention on the Law of the Non-
Navigational Uses of International Watercourses of 1997, even provide for compulsory
fact-finding in the event of a dispute.21
Commissions of inquiry have been established, both on the national plane after the
collapse of illegitimate regimes (recall the Truth Commissions in South Africa), and on
the international plane. One important example is Guatemala’s Historical Clarifi-
cation Commission, which has been characterized by its coordinator as a ‘hybrid
institution’ ‘located in a no man’s land between domestic and international law’.22
3 Mediation, Good Offices and Conciliation
The next so-called diplomatic strategies are mediation, good offices and conciliation. The
description of international mediation given in Article 4 of the Convention for the
18
See only Art. 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes of the
WTO Agreement (WTO DSU), 33 ILM (1994), 1126 et seq.: ‘Consultations’; Art. 283 of the United
Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS), 21 ILM (1982) 1261–1354:
‘Obligation to exchange views’.
19
Cf. Art. 9 of the Convention for the Pacific Settlement of International Disputes of 18 October 1907, in
Permanent Court of Arbitration (ed.), Basic Documents (1999), 17 et seq.
20
See only the Permanent Court of Arbitration Optional Rules for Fact-Finding Commissions of Inquiry,
effective 15 December 1997, in: Permanent Court of Arbitration, supra note 19, at 177 et seq. Provision
for an international fact-finding commission for the investigation of serious violations of humanitarian
law is made by Art. 90 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relating
to the protection of victims in international armed conflicts (Protocol I) of 8 June 1977, 16 ILM (1977),
1391, 1429. But although more than 50 contracting parties have accepted the commission’s
competence, no single case has been investigated yet. See Condorelli, ‘La Commission internationale
humanitaire d’établissement des faits: un outil obsolète ou un moyen utile de mise en oeuvre du droit
international humanitaire?’, 83 IRRC (June 2001), 393.
21
36 ILM (1997), 700, art. 33, paras 3 to 9: Establishment of an impartial fact-finding commission at the
request of any party to the dispute. The Commission must adopt a report by a majority vote. As regards
fact-finding, an interesting feature of the WTO DSU panel procedure is the interim review stage (Art. 15
DSU (note 18)). The panel establishes the facts (which are in most cases very complicated and disputed) in
an interim report that is formulated in cooperation with the parties. See similarly Arts 2016–2017
NAFTA Agreement (Canada-Mexico-United States: North American Free Trade Area Agreement) of
December 1992, 32 ILM (1993) 605 et seq.
22
Tomuschat, ‘Between National and International Law: Guatemala’s Historical Clarification Com-
mission’, in: V. Götz, P. Selmer and R. Wolfrum (eds), Liber amicorum Günther Jaenicke — zum 85
Geburtstag (1998) 991, quotations at 1010–1011. Another example is the ‘International Commission of
Inquiry concerning the assassination of the President of Burundi on 21 October 1993 and the massacres
that followed’, which was established by the Secretary-General pursuant to SC Res. 1012 (1995) of 28
August 1995, and which published its report (S/1996/682) in 1996.

6 EJIL 14 (2003), 1–34
Pacific Settlement of International Disputes of 1907 remains valid. It reads: ‘The part
of the mediator consists in reconciling the opposing claims and appeasing the feelings
of resentment which may have arisen between the States at variance.’23 Good offices
are very similar to mediation, and are not even specifically mentioned in Article 33 of
the UN Charter. Conciliation differs from mediation only by degrees. Some distinguish
these strategies by their state of institutionalization. Others emphasize the more
limited mandate of the conciliator, who is in a strict sense not supposed to recommend
solutions to the parties. But even if the mediator may be slightly more proactive than a
classical conciliator, his proposals are only non-binding recommendations. Thus,
importantly, these two strategies share the quality of not having the power to impose
solutions, but only to assist the parties in crafting their own. I will therefore use these
terms interchangeably.24
In the last 20 years or so, mediation and conciliation (though, in general, not on the
international plane) have been explored thoroughly by conflict- and negotiation-
theory. The insights gained from these studies, together with growing dissatisfaction
with domestic arbitration and litigation in particular sectors, have led to the new
discipline of alternative dispute resolution (ADR). The main thrust of ADR literature is
that ‘alternative’ means of dispute settlement are more flexible, more constructive,
and avoid the typical adjudicatory winner-takes-all solution. It is therefore commonly
assumed that in all situations in which the parties want to or have to continue their
relationship after the dispute (the prime example in domestic law being divorce
proceedings when children are involved), mediation is preferable to adjudication
because it is less adversarial and creates more win-win types of solutions.
If this assumption is correct, we have quite a powerful argument for ADR on the
international plane because in the age of globalization there are very few transna-
tional relationships within the global fabric that can be completely disrupted in the
aftermath of a dispute. Moreover, the mediator’s decision can only be a non-binding
proposal, but it is exactly this limited effect that is especially important in international
law: it protects sovereignty.
If we now fuse the arguments for mediation and conciliation formulated by ADR
theory with the traditional international law concern for sovereignty, international
mediation or conciliation appears as the ideal dispute settlement strategy. It shares the
advantages of adjudication, namely the issuance of an informed, reasoned, neutral
judgment, while at the same time imposing no commitment on the parties to accept
the recommended award — thus ‘the niceties of sovereignty are observed’, as Abram
and Antonia Chayes put it.25 This is the background to the recent popularity of
optional mediation and conciliation rules in international instruments.
However, the expectations of theorists and law-makers have been defeated in
23
In: Permanent Court of Arbitration, supra note 19, at 17 et seq.
24
As here, Sander, ‘Alternative Methods of Dispute Resolution: An Overview’, 37 University of Florida Law
Review (1985) 1, at 4.
25
A. Chayes and A. H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements
(1995), at 24–25.

practice. Conciliation procedures are resorted to only very infrequently. They are
neither fully accepted by states,26 nor by private actors in investor-to-state disputes.27
Why is this so? The main reason seems to be that states want to externalize
responsibility in order to appear in a better light before their constituencies. They want
a binding decision by a tribunal or court in order to be able to say to the people: Look,
we have fought hard for our position, now we can’t help the result. It is not our fault,
we have to abide with the decision of the arbitrators or judges.
B ‘Legal’ Means
The so-called legal means of dispute settlement are arbitration and adjudication.
1 The Blurry Distinction between Courts and Arbitration
The difference between arbitration and adjudication is that, at least in the perception
of states, arbitration is more flexible overall because the principle of party autonomy
governs the process. Therefore, international arbitration is traditionally considered as
more yielding to sovereignty than litigation before an international court.
2 Arbitration
International arbitration can be divided into the classical state-state arbitration on the
one hand, and state-private party arbitration on the other.
(a) State-state Arbitration
Currently, the most important state-state arbitration is practised by WTO panels and
the Appellate Body. A recent example of the institutionalization of state-state
arbitration can be seen in the Ethiopian-Eritrean Boundary Commission and a Claims
Commission, both created in 2000.28 The establishment of these commissions is
significant because two developing countries are involved, and it indicates that the
ideological, highly sovereignty-conscious reserved attitude of so-called third world
countries towards binding adjudication is most likely diminishing. The financing of
these new bodies, however, remains a serious problem.
(b) Mixed Arbitration
The second type of international arbitration concerns disputes between states and
private parties, mostly in commercial matters. The expansion of this ‘mixed
arbitration’ is a ‘quiet revolution’ of international dispute settlement, and perhaps of
26
The most recent textbook example of successful, state-state conciliation is the Jan Mayen Award, given by
a conciliation commission in a dispute between Norway and Iceland on the Continental Shelf Area
between Iceland and Jan Mayen, 20 ILM (1981), 797 et seq.
27
See for the settlement of investor-to-state disputes the Convention on the Settlement of Investment
Disputes between States and Nationals of other States (ICSID Convention) of 18 March 1965, UNTS 575,
no. 8359, 159 et seq., 4 ILM (1965), 532 et seq. Since the first ICSID case of 1972, 69 disputes have been
settled by resort to ICSID rules, and apparently only three by conciliation. Of the currently pending 45
proceedings, all are arbitral proceedings (information from http://www.worldbank.org/icsid/
index.html), visited 3 February 2003. See on conciliation under the auspices of the International
Chamber of Commerce: Schwartz, ‘International Conciliation and the ICC’, 10 ICSID Rev. (1995) 98.
28
Bilateral agreement of 12 December 2000, 40 ILM (2001), at 259. Both bodies are seated in The Hague.

8 EJIL 14 (2003), 1–34
international law in general, as two eminent specialists of dispute settlement, John

Collier and Vaughan Lowe, write.29 Mixed arbitration is encouraged in the OECD
Guidelines 2000,30 as well as in the Stability Pact for South Eastern Europe of the same
year.31 Two examples of functioning ‘mixed’ arbitration are the US-Iran Claims
Tribunal, which was established after the hostage crisis of 1979 (operating under a
modified version of the UNCITRAL Arbitration Rules32), and, with regard to
investment disputes, the ICSID framework.33
(c) The Internationalization of Cooperational Duties in Arbitration

Both state-state and mixed arbitration are characterized by a continuing inter-
nationalization of arbitral procedures. Traditionally, the arbitral process was, absent a
special agreement between the parties, governed by the lex loci arbitri, the law of the
official seat of the tribunal, hence the domestic procedural law of a particular state.
But this forum law has become increasingly complemented or even completely
substituted by international procedural law, codified in multilateral conventions such
as the aforementioned ICSID convention of 1965,34 or in other optional international
arbitration rules.35 These sets of rules are, in turn, resorted to in bilateral arbitration
clauses or in submission agreements. For instance, the Dayton Peace Accords36
foresee arbitration under UNCITRAL rules;37 the NAFTA Agreement provides for
investor versus state arbitration under either ICSID rules or under UNCITRAL rules,38
and so on. This internationalization of procedures of course means an inter-
nationalization of cooperational duties as well.
We encounter various specific duties of cooperation not only in arbitration but also
in the other types of international dispute settlement just described. However, before
29
J. Collier and V. Lowe, The Settlement of Disputes in International Law (1999), at 191.
30
OECD Guidelines of Multinational Enterprises of 27 June 2000, ILM 40 (2000), 237, at 239.
31
Stability Pact for South Eastern Europe: South-East Compact for Reform, Investment, Integrity and
Growth of 10 February 2000, 39 ILM (2001), 962.
32
Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the
Settlement of Claims by the Government of the United States of America and the Government of the
Islamic Republic of Iran of 19 January 1981, 20 ILM (1981), 230, Art. III para. 2, referring to the
UNCITRAL Arbitration Rules of 28 April 1976, 15 ILM (1976), 701 et seq.
33
Supra note 27.
34
Ibid.
35
See, apart from the rules mentioned in the text below, various optional rules formulated by the
Permanent Court of Arbitration, for arbitrating disputes between two parties of which only one is a state,
for disputes involving international organizations and a state, for arbitration between International
Organizations and private parties, and so on. Many of them are reprinted in: Permanent Court of
Arbitration (note 19). A recent example for special rules is the Permanent Court’s Optional Rules for
Arbitration of Disputes relating to Natural Resources and the Environment of 19 June 2001, repr. in ILM
41 (2002), 202 et seq.
36
Art. V (3) of Annex 2 to the Dayton Peace Accords (General Framework Agreement for Peace in Bosnia
and Herzegovina) of 14 December 1995, 35 ILM (1996) 75, at 113. See the final award in a dispute over
the inter-entity boundary in Brcko (final award of 5 March 1999, 38 ILM (1999) 534, para. 57)),
applying the UNCITRAL Arbitration Rules.
37
Supra note 32.
38
Art. 1120 NAFTA Agreement (supra note 21).

looking at their possible legal foundation (good faith, Section 6) and at their contents
(Sections 7–9), it seems useful to identify two only seemingly irreconcilable general
concepts: the general duty of cooperation on the one hand (Section 3), and the
principle of free choice on the other (Section 4).
3 The General Duty to Cooperate in Dispute Settlement

A general obligation to cooperate in the disposal of a given dispute receives specific
mention in some international treaties and other documents. A most recent example
is the Anti-Personnel Mines Convention of 1997, whose Article 10 paragraph 1 reads:
‘The States Parties shall consult and cooperate with each other to settle any dispute
that may arise with regard to the application or the interpretation of this
Convention.’39 Such cooperation involves action taken over a certain period of time,
which may produce various positive results that are not definable ex ante. The general
obligation to cooperate in that disposal is therefore an obligation of conduct. (In
contrast, the obligation to settle disputes is an obligation to reach a particular and
measurable outcome: the disposal of the dispute.40)
It is submitted here that a contextualized, but still unspecified, duty to cooperate in
dispute settlement is not only a matter of conventional law, but shares, by force of
necessity, the customary law quality of a general obligation to settle disputes
peacefully. While the dispute itself implies disagreement and non-cooperation, some
kind of cooperation, in procedure or in substance, between the parties is needed for its
resolution. Without cooperation, no settlement. Therefore a general, customary
law-based duty of cooperation with a view to a settlement is inherent in the obligation
to settle disputes peacefully.
39
UN Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on their Destruction of 18 September 1997, 36 ILM (1997) 1507. See also Art. 2003 NAFTA
Agreement, the leading provision of Ch. 20, Subchap. B. ‘Dispute Settlement’: ‘The Parties shall at all
times endeavor to agree on the interpretation and application of this Agreement, and shall make every
attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any
matter that might affect its operation’, supra note 21, et seq. (emphasis added). Furthermore, a general
duty to cooperate in dispute settlement is mentioned in some CSCE texts ultimately leading to the CSCE
Convention on Arbitration and Conciliation of 15 December 1992, 32 ILM (1993) 551, but not in that
Convention itself. See the Charter of Paris, asking for ‘appropriate mechanisms for the peaceful resolution
of any dispute that may arise’, undertaking ‘to seek new forms of cooperation in this area, in particular a
range of methods for the peaceful settlement of disputes, including mandatory third-party involvement’
(Charter of Paris for a New Europe of 21 November 1990, under the heading ‘Guidelines for the Future —
Security’, 30 ILM (1991) 190, at 201 (emphasis added)). See also Sec. IX of the CSCE Valetta Report on
Dispute Settlement of 8 February 1991, 30 ILM (1991) 382, at 393.
40
Cf. ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 35 ILM (1996) 1345, para.
99: ‘The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation
involved here is an obligation to achieve a precise result — nuclear disarmament in all its aspects — by
adopting a particular course of conduct, namely the pursuit of negotiations on the matter in good faith’
(emphasis added). Para. 100 speaks of a ‘twofold obligation to pursue and to conclude negotiations’.
These statements refer to a contractual obligation to negotiate an agreement independent of the
existence of a concrete dispute, but they support the proposition that where concrete and measurable
results are desired, obligations to reach this result are conceivable.

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10 EJIL 14 (2003), 1–34
The less institutionalized and the more flexible a dispute settlement procedure is, the
less it assigns specific, legally fixed procedural duties of cooperation and the more its
functioning depends on the general obligation to cooperate.41 But despite the potential
significance of that general obligation, it seems more helpful in practice to identify
specific and concrete duties of cooperation whose fulfilment can be readily ascertained
and measured and whose non-fulfilment constitutes clearly identifiable unlawful acts.
Before turning to such concrete duties, let us look at the apparently anti-cooperative
principle of free choice.
4 The Principle of Free Choice

Within the general obligation to settle their disputes peacefully, states are left, absent a
specific contractual obligation to resort to a particular means, a wide margin of
discretion. The relationship between the various settlement mechanisms is governed
by the principle of free choice of means. This principle was designed within a
perspective in which states are the primary actors, and ultimately stems from the
principle of sovereignty.
A The Persistence of the Principle

International legal texts which emphasize the principle of free choice are plentiful.
They were mostly adopted during the period of the Cold War, when preference for
political means on the one side or for legal dispute settlement procedures on the other
corresponded to the ideological split of the world:42 see the Pact of Bogotá,43 the
Convention on the Law of the Sea,44 or, as soft law, the Friendly Relations
Declaration.45 This tendency is most pronounced in the Manila Declaration of 1982,
in which the virtues of negotiation (as opposed to adjudication) are especially
highlighted.46 But even in the ostensibly New World Order, the idea of free choice
persists. This is illustrated, for instance, by the relevant provisions of the Rio
Framework Convention on Climate Change of 199247 or the Anti-personnel Mines
Convention of 1997.48
41
Cf., for a different context, the two human rights pacts: in the CESCR we find more references to
cooperation (Art. 2 para. 1; Art. 11 para. 1) than in the CCPR. Here as well general obligations to
cooperate seem to be a correlate of less enforceability or justiciability.
42
The impact of ideology is demonstrated by the fact that Art. 28 of the European Convention for the
Peaceful Settlement of Disputes of 29 April 1957, supra note 17, places significantly less emphasis on free
choice and displays a preference for binding adjudication.
43
Art. 3 Pact of Bogotá, supra note 17.
44
Art. 280 UNCLOS, supra note 18.
45
Friendly Relations Declaration, supra note 4, para. 5 of the Principle of Dispute Settlement.
46
See Arts 1, 3, 5, and 10 of GA Res. 37/10 of 15 November 1982, 21 ILM (1982) 449.
47
Art. 14 para. 1 of the Rio Framework Convention on Climate Change of 9 May 1992, 31 ILM (1992),
849.
48
Art. 10, para. 2, supra note 39.

B The Problem of Impasse

Obviously, the still-valid principle of free choice creates the danger of an impasse in
dispute settlement, even if both parties act in good faith. If ‘free choice’ is the
governing principle, one party may take the view that only negotiations can bring
about a satisfactory solution, while the other party may consider that a court
judgment constitutes the only satisfactory mode of settlement.49
Two constructions point a way out of this impasse. Firstly, one might argue that the
principle of free choice is tempered by the antagonistic principle of cooperation, which
might force or at least direct parties to reach an agreement on a single dispute
settlement procedure. The second argument against the inevitable impasse is a
teleological, effet utile type of argument, based on the idea that any legal rule or
principle must at least have some effect. If we allow for an impasse, then the principle of
dispute settlement would be disabled, undermined, empty. This cannot be the
intention of the international community which has adopted this principle. If the
principle of peaceful settlement of disputes is to mean anything, it must at least mean
that the mechanism resorted to is that which is the least intrusive on sovereignty, and
that is negotiation. We can therefore say that a duty to negotiate is an intrinsic
element of the principle of dispute settlement; otherwise the principle would be devoid
of meaning.50 Therefore, in the absence of special contractual obligations, no state
may, once a concrete dispute has arisen, refuse to negotiate.
5 Exhaustion of Negotiations as a Pre-condition for Resort

to Adjudication?
I have just argued that a duty (at least) to negotiate is inherent in the principle of
dispute settlement. The ensuing question is whether parties must, as a matter of
conventional or customary law, in the event of a dispute, always negotiate first.
This question is a very practical one because it is used as a frequent objection to
jurisdiction made by respondents, for instance before the International Court of
Justice. For example, in the suit instituted by Nicaragua, the United States argued that
the Contadora Peace process was pending, and that negotiations had not been
exhausted.51 If such an exhaustion of negotiations were a strict pre-requisite for
49
Tomuschat in B. Simma (ed.), The Charter of the United Nations: A Commentary, vol. 1 (2nd ed., 2002), Art.
33 UN Charter, para. 20. See H. Thierry et al., Droit international public (5th ed., 1986), 588: ‘La situation
des États peut être comparée à ce sujet à celle d’une personne qui aurait le devoir de se rendre dans un lieu
déterminé mais qui aurait la faculté de refuser d’emprunter chacun des chemins qui y conduisent.’
50
Cf. ICJ, North Sea Continental Shelf Cases, supra note 16, at para. 86: The obligation to negotiate an
agreement as means of dispute settlement is ‘a principle which underlies all international relations’; ICJ,
Fisheries Jurisdiction Case (UK and Northern Ireland v. Iceland), ICJ Reports (1974) 3, at 32, para. 74: an
obligation to negotiate the extent of disputed preferential fishing rights for a coastal state is ‘implicit in the
[customary law] concept of preferential rights’.
51
ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua, Preliminary Objections
(Nicaragua v. USA), ICJ Reports (1984), at 392, para. 11.

12 EJIL 14 (2003), 1–34
adjudication, non-exhaustion would entail a lack of jurisdiction, and the seized court
would have to declare the application inadmissible.
A Negotiation Clauses and the Problem of ‘Exhaustion’

In the early general and multilateral dispute settlement treaties up to the post-World
War Two period, negotiations were stipulated as a pre-requisite to adjudication.52
Similarly, arbitration clauses (compromis) in material treaties frequently provide for
consultations as a mandatory first step for dispute settlement.
Requirements of ‘termination’/‘exhaustion’/‘failure’ of negotiations or consul-
tations, such as in Article 286 UNCLOS,53 or in Article 5 paragraph 3 WTO DSU,54
pose the problem of determining when this point of exhaustion is reached. The locus
classicus on this question is, again, the Mavrommatis Palestine Concessions case. The
PCIJ stated ‘that the question of the importance and chances of success of diplomatic
negotiations is essentially a relative one. . . . No general and absolute rule can be laid
52
See Art. 38 of the Convention for the Pacific Settlement of International Disputes of 18 October 1907,
supra note 19: ‘In questions of a legal nature, and especially in the interpretation or application of
International Conventions, arbitration is recognized by the Contracting Parties as the most effective, and
at the same time, the most equitable means of settling disputes which diplomacy has failed to settle.’ Ibid.,
Art. 41: ‘With the object of facilitating an immediate recourse to arbitration for international differences,
which it has not been possible to settle by diplomacy, the Contracting Powers undertake to maintain the
Permanent Court of Arbitration . . .’ (emphases added). Art. 1 of the General Act (Pacific Settlement of
Disputes) of 26 September 1928, supra note 17: ‘Disputes of every kind between two or more Parties to
the present General Act which it has not been possible to settle by diplomacy shall, . . . be submitted . . . to
the procedure of conciliation.’ See, similarly, Art. 1 of the Revised General Act for the Pacific Settlement of
International Disputes of 1949, supra note 17. Art. 32 of the Pact of Bogotá, supra note 17 makes
conciliation a prerequisite for unilateral recourse to the ICJ. In the Mavrommatis Palestine Concessions
Case, supra note 13, at 15, the PCIJ interpreted a treaty provision (the Mandate) which makes
negotiations a prerequisite for legal action: ‘[B]efore a dispute can be made the subject of an action at law,
its subject-matter should have been clearly defined by diplomatic negotiations.’ But see Chap. I, Art. 2
para. 2 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, supra note
17: ‘The parties to a dispute may agree to resort to the procedure of conciliation before that of judicial
settlement’ (emphasis added).
53
Art. 286 UNCLOS, supra note 18 figures in Part V, Sec. 2, entitled: ‘Compulsory Procedures Entailing
Binding Decisions’. The provision runs: ‘Subject to section 3, any dispute concerning the interpretation
or application of this Convention shall, where no settlement has been reached by recourse to section 1 [on
consultations and conciliation], be submitted at the request of any party to the dispute to the court or
tribunal having jurisdiction under this section’ (emphasis added). See also Art. 4 Pact of Bogotá, supra
note 17, ‘Once any pacific procedure has been initiated, whether by agreement between the parties or in
fulfilment of the present Treaty or a previous pact, no other procedure may be commenced until that
procedure is concluded’ (emphasis added).
54
Under Art. 5 paras 3 and 4 WTO DSU, supra note 18, the establishment of a panel may be requested by the
complaining party after diplomatic procedures are ‘terminated’, but not before 60 days have elapsed after
the complainant’s request for diplomatic procedures. The 60-day interim period is supposed to encourage
conciliation.

down in this respect.’55 I think that this is indeed the most precise answer we can give.
The PCIJ’s resolution of the concrete issue was a very modern one: It found that the
extensive, but ‘private’ negotiations conducted between the investor Mavrommatis
himself and the Palestine authorities had been perfectly sufficient to fulfil the
negotiation requirement. It was not necessary that the Greek government reopen or
repeat the discussion on behalf of its national.56
Recent awards, for instance, under the Montreal Convention57 or under the ICSID
Convention,58 have confirmed this flexible interpretation of negotiation clauses,
oriented towards the concrete circumstances of the case, and governed by the
principle of good faith. In the Southern Bluefin Tuna dispute (Australia and New
Zealand v. Japan), the political-exhaustion clauses of Article 16 para. 1 of the Bluefin
Tuna Convention and of Articles 283 and 286 UNCLOS were pertinent. Australia and
New Zealand had formally requested urgent consultations and negotiations with
regard to Japan’s unilateral ‘experimental fishing program’. They were conducted for
over a year, partly within the Commission for the Conservation of the Southern
Bluefin Tuna, but led to no accord. Japan then commenced unilateral fishing, which
was considered by the applicants as a termination of the negotiations and thus as an
authorization to begin compulsory dispute settlement under Part XV, Sec. 2 UNCLOS.
Japan, in turn, replied that it had no intention of terminating the negotiations. In an
order indicating provisional measures, the International Tribunal for the Law of the
Sea (ITLOS) left it entirely to the claimants to conclude unilaterally that the
possibilities of diplomatic settlement had been exhausted and dismissed the respon-
dent’s contention to the contrary.59 An arbitral tribunal, constituted under Article
287 para. 1 lit. (c) UNCLOS and competent to decide on the main issue then looked
more closely at the concrete circumstances of the case and held:
55
PCIJ, Ser. A (1924), No. 2, supra note 13, at 13. The Court went on: ‘Negotiations do not of necessity
always presuppose a more or less lengthy series of notes and dispatches; it may suffice that a discussion
should have been commenced, and this discussion may have been very short; this will be the case if a
dead lock is reached, or if finally a point is reached at which one of the Parties definitely declares himself
unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by
diplomatic negotiation.’ Relying on Mavrommatis: ICJ, South West Africa Case (Ethiopia and Liberia v.
South Africa) ICJ Reports (1962) 319, at 344–345.
56
PCIJ, Ser. A (1924), no. 2 (supra note 13), at 15.
57
ICJ, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention (supra note
13), para. 20: The dispute could not be settled by negotiation, because the Respondent had denied the
existence of a dispute; hence the requirement of Art. 14 of the Montreal Convention (Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971, 10 ILM (1971)
1151, 1155) was fulfilled.
58
Tradex Hellas S.A. (Greece) v. Republic of Albania, decision on jurisdiction in the Arbitration ARB/94/2 of
the ICSID of 24 December 1996, 14 ICSID Rev. (1999) 161, at 182–184. The Tribunal found five letters
of complaint addressed by the investor to the Albanian Ministry of Agriculture ‘to be a sufficient good
faith effort to reach an amicable settlement’ within the meaning of the pertinent negotiation clause of the
relevant Albanian law.
59
ITLOS, provisional order of 27 August 1999, 38 ILM (1999), 1624, paras 56–60. Under Art. 290 para. 5
UNCLOS, supra note 18, jurisdiction for provisional orders is concentrated at ITLOS, independent of the
choice of procedure for the main issue.

14 EJIL 14 (2003), 1–34
It is true that every means listed in [the negotiation clause] has not been tried; indeed, the
Applicants have not accepted proposals of Japan for mediation and for arbitration under the
[Convention], essentially, it seems, because Japan was unwilling to suspend pursuance of its
unilateral Experimental Fishing Program during the pendency of such recourse. . . . [I]n the
view of the Tribunal, this provision does not require the Parties to negotiate indefinitely while
denying a Party the option of concluding, for purposes of both Articles 281(1) and 283
[UNCLOS], that no settlement has been reached. To read art. 16 [of the Bluefin Tuna
Convention] otherwise would be unreasonable.60
Because of the impossibility of laying down a general rule on the exhaustion of

negotiations, it seems reasonable to complement the ‘negotiation clause’ with simple
time limits. For instance, the Energy Charter Treaty of 1994 speaks of a ‘reasonable
period of time’ to be given for diplomatic settlement.61 Other important international
agreements are more precise. The most prominent examples are the World Trade
Organization’s Dispute Settlement Understanding (DSU) and the NAFTA Agreement.
Under the WTO DSU, consultations must be entered into within no more than 30
days. If consultations are not entered into, the complaining party must wait 30 more
days, and then (after 60 days in total) may request a panel.62
B No Customary-law Stepladder of Settlement Procedures

Absent specific stipulations, there is, I submit, contrary to a traditional assumption, no
customary-law stepladder of dispute settlement procedures, ranging from the most
sovereignty-conscious, least offensive means to the more intrusive ones; in other
words, a general ‘political-exhaustion doctrine’ does not exist. The old assumption of a
general, customary law-based stepladder feeds on the premise that sovereignty is a
‘fundamental right’, to be preserved as far as possible, from which any international
duty must be wrought as a kind of concession.
But this theory is, firstly, not reconcilable with the idea of free choice (which works
in both directions), and, secondly, it is contradicted by the fact that states consider it
necessary to insert specific reservations in that sense in their agreements. It is
therefore laudable that the ICJ has, in recent case law, especially in the 1998 Case
concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria), decision, unequivocally rejected the stepladder theory and the limitation of
access to courts going with it: ‘Neither in the Charter nor otherwise in international
60
Para. 55 of the tribunal’s award on jurisdiction and admissibility of 4 August 2000, 39 ILM (2000)
1359, at 1389.
61
Treaty of 17 December 1994, 34 ILM (1995) 360, at 381, Art. 27 para. 1: ‘Contracting Parties shall
endeavor to settle disputes concerning the application or interpretation of this treaty through diplomatic
channels.’ Para. 2: ‘If a dispute has not been settled in accordance with para. (1) within a reasonable
period of time, either party may . . . [resort to an ad hoc tribunal]’.
62
Art. 4 para. 4 WTO DSU (supra note 18). The provision’s wording covers only the case that the other
Member ‘does not respond’ or ‘does not enter into consultations’. But the time limits seem to apply also
(absent a mutual agreement on another period) in those situations where consultations are entered into,
but fail. Anyway, the consultations period is in most cases extended by mutual agreement. Art. 5 para. 4
DSU clarifies that even if within the 60-day period, the other side suggests third-party diplomatic
settlement (good offices, conciliation, mediation), the complaining party may still (after 60 days) request
the panel.

law is any general rule to be found to the effect that the exhaustion of diplomatic
negotiations constitutes a precondition for a matter to be referred to the Court.’63 We
here witness an important development in the case law, which refuses to focus on
sovereignty as a starting-point for the determination of procedural duties in dispute
settlement. This does not deny that, in the event of a dispute, it is most natural to talk
first, and to define the conflict by formulating the positions, and this is what is
normally done. However, respondent states can, as a general rule, not rely on pending
negotiations as a bar to jurisdiction and thereby block adjudication. But this rule is, in
turn, moderated by the principle of good faith: if negotiations or conciliation
proceedings are ongoing and are meaningfully conducted by both sides, then the
seizure of a court may appear as an abuse of the court procedure. Under such
circumstances, a court may be obliged to decline jurisdiction in order to encourage a
diplomatic settlement.
6 The Principle of Good Faith is a Source of Duties to

Cooperate
We have just seen that the idea of good faith helps to determine when the complaining
party may go to court. The principle of good faith has been acknowledged by the
International Court to be an intrinsic element of international cooperation in
general.64 In the context of dispute settlement, the principle of good faith is referred to
in various treaties65 and other international documents.66
Concrete consequences, some of which I have already mentioned, are:
1. The parties must embark with sincerity on one dispute settlement procedure.
63
Case Concerning Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), ICJ
Reports (1998) 275, at 303, para. 56. In contrast, ICJ, South West Africa Case, supra note 55, at 344–346,
still had implicitly held the failure of negotiations (even without a contractual provision in that sense) to
be a precondition of ICJ jurisdiction. The first case to break with this assumption was ICJ, Aegean Sea
Continental Shelf Case (Greece v. Turkey), ICJ Reports (1978) 3, at 12, para. 29; see also United States
Diplomatic and Consular Staff in Tehran (USA v. Iran), ICJ Reports (1980) 3, at 23, para. 43; Case Concerning
Military and Paramilitary Activities in and against Nicaragua, Preliminary Objections, supra note 51, paras
106, 108.
64
ICJ, Nuclear Tests Case (Australia v. France), ICJ Reports (1974) 253, at 268, para. 46: ‘One of the basic
principles governing the creation and performance of legal obligations, whatever their source, is the
principle of good faith. Trust and confidence are inherent in international cooperation, in particular in an age
when this cooperation in many fields is becoming increasingly essential’ (emphasis added).
65
Under Art. 2 para. 2 of the UN Charter, all Members ‘shall fulfill in good faith the obligations assumed by
them in accordance with the . . . Charter’, and the principle to settle disputes in a peaceful manner is,
under Art. 33, an obligation stemming from the Charter. See also Art. 34 para. 1 ICSID Convention, supra
note 27: cooperation in good faith with Conciliation Commission; Art. 3 para. 10 WTO DSU, supra note
18.
66
Ch. I, paras 1 and 5 of the Manila Declaration, supra note 46; Art. 11 of the Permanent Court of
Arbitration Optional Conciliation Rules (1996) in: http://www.pca-cpa.org/BD/conciliationenglish.htm
(visited on 8 May 2001).

16 EJIL 14 (2003), 1–34
2. In particular, states must negotiate meaningfully, so as to reach an agreement.67

3. This also means that one party may not prematurely abandon the chosen
procedure, for instance negotiations. In particular, parties must not abuse the
court procedure.
4. Correspondingly, in the event of an objective failure of one strategy, the principle
of good faith obliges the parties to continue to strive for settlement with a new
means.68
5. Next, the principle of good faith requires complete cooperation of states with
international criminal tribunals.69 I will come back to this in Section 9.
6. Finally, good faith is required in the implementation of awards, especially, but not
only, when those awards are non-binding.70
In sum, good faith relates to all stages of the settlement procedure, and obviously
becomes more important the more flexible the procedures and the less concrete the
parties’ respective duties of cooperation are. Fortunately, concrete duties of cooper-
ation do exist. The following sections offer examples in the field of adjudication,
including arbitration and criminal justice.
67
ICJ, North Sea Continental Shelf Cases (supra note 16), para. 85: ‘[T]he parties are under an obligation to
enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal
process of negotiation . . . ; they are under an obligation so to conduct themselves that the negotiations
are meaningful, which will not be the case when either of them insists upon its own position without
contemplating any modification of it’. See already PCIJ, Railway Traffic between Lithuania and Poland, PCIJ
Ser. A/B, no. 42 (1931), at 116: Where the parties are under an obligation to negotiate [in casu under a
Resolution of the Council of the League of Nations], they are under an obligation ‘not only to enter into
negotiations, but also to pursue them as far as possible with a view to concluding agreements. . . . But an
obligation to negotiate does not imply an obligation to reach an agreement.’ See also the Manila
Declaration (supra note 46), Ch. I, para. 10.
68
Friendly Relations Declaration of 24 October (supra note 4), para. 3 of the Principle of Dispute Settlement:
‘The parties to a dispute have the duty, in the event of failure to reach a solution by any of the . . . peaceful
means, to continue to seek a settlement of the dispute by other peaceful means agreed upon them’. See
also Art. 16 para. 2 of the Southern Bluefin Tuna Convention of 10 May 1993 in: http://sedac.ciesin.org/
entri/texts/acrc/Bluefin.txt.html (visited on 27 August 2001): ‘[F]ailure to reach agreement on reference
to the ICJ or to arbitration shall not absolve the parties to the dispute from the responsibility of continuing
to seek to resolve it by any of the various peaceful means referred to in para. 1 above’.
69
Art. 86 of the Statute of the International Criminal Court (ICC Statute) of 17 July 1998, 37 ILM (1998), at
999 et seq., holds: ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully
with the Court in the investigation and prosecution of crimes within the jurisdiction of the Court’
(emphasis added). ‘Fully’ alludes to the principle of good faith (Kreß, et al., in O. Triffterer (ed.),
Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Art. by Art. (1999),
Art. 86, para. 9).
70
See Art. 37 para. 2 of the Convention for the Pacific Settlement of International Disputes of 18 October
1907, supra note 19: ‘Recourse to arbitration implies an engagement to submit in good faith to the
award.’ Under Art. 11 para. 5 of the Vienna Ozone Layer Convention of 22 March 1985 (26 ILM (1987),
1529), a mandatory conciliation commission ‘shall render a final and recommendatory award, which
the parties shall consider in good faith.’

7 Cooperation in Adjudication
A Submission to Jurisdiction
Because adjudicatory bodies issue binding awards which must be implemented by the
defeated party, the traditional concept of sovereignty requires that both parties have
consented at some earlier point to submit their dispute to the institution. In other
words, when it comes to issuing legally binding awards, we have no compulsory
jurisdiction in international law.71 We only have moderations of the consensus
requirement. Consent to adjudication remains the crucial act of cooperation in the
field of legal dispute settlement.
1 Ex-Post Submission to Adjudication

The highest barrier to adjudication is raised when no adjudication is provided for prior
to the outbreak of a specific dispute, but when, after its outbreak, both parties must
agree to submit the dispute to a court or arbitration. The possibility of such specific
ex-post agreements is, for example, mentioned in the 1993 C-Weapons Treaty.72
2 Ex Ante Optional Submission

The parties bind themselves more tightly, if they abide to adjudication before the
outbreak of a specific dispute, for all future disputes arising from a treaty, or for certain
categories of disputes, under the condition of reciprocity. Such voluntary general
submission to adjudication is encouraged by conventions or clauses dealing
specifically with dispute settlement, the most prominent one being the optional clause
of Article 36 paragraph 2 of the ICJ Statute. However, to date, only some 60 states (i.e.,
less than one third of the entire international community), have recognized as
compulsory the jurisdiction of the ICJ. These declarations are, in proportion to the
increased number of states entitled to make them, even less numerous than during the
time of the PCIJ. Moreover, ample reservations ‘often make more symbolic than real
the obligation assumed by States making them’.73 Finally, powerful states such as the
United States and France have withdrawn their declarations after defeat in
litigation.74
More recently designed optional clauses have fared no better. Take as an example
71
Only recently, the ICJ recalled that its jurisdiction ‘only exists within the limits within which it has been
accepted’ (Case Concerning the Aerial Incident of 10 August 1999 (Pakistan v. India), judgment on
jurisdiction of the Court of 21 June 2000, 39 ILM (2000), 1116, para. 36). In that case, the Court denied
jurisdiction because of India’s Commonwealth reservation.
72
Art. VI, para. 2 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on their Destruction (C-Weapons Treaty) of 13 January 1993; G. Fahl (ed.),
International Law of Arms Control: Material and Comment, vol. 2 (2000), Text E/14.2.
73
Treves, ‘Recent Trends in the Settlement of International Disputes’, in Cursos Euroméditerráneos Bancaja
de Derecho Internacional, vol. I (1997) 397, at 403.
74
France in the Nuclear Tests Proceeding in 1974; The USA in the Nicaragua proceeding in 1985. See for
the USA: Department of State Letter and Statement Concerning Termination of Acceptance of ICJ
Compulsory Jurisdiction, 24 ILM (1985) 1742.

18 EJIL 14 (2003), 1–34
for a multilateral instrument on dispute settlement the 1992 Convention on

Conciliation and Arbitration within the OSCE, which foresees reciprocal declarations
on ex ante submission to an arbitral tribunal.75 Thirty-two states have ratified the
Convention, but only five of them have declared that they recognize as compulsory,
ipso facto and without special agreement the jurisdiction of such a tribunal.76
3 Ex ante Submission qua Membership to a Material Treaty Regime
Because states are extremely reluctant to give an isolated blanket permission to
adjudication, the alternative means of establishing a ‘compulsory’ jurisdiction is to
link it directly to the material treaty. This path has been chosen in important recent
conventions. They do not contain optional clauses, but make adjudication compul-
sory. States wanting to become a party to the club must simultaneously accept
jurisdiction of a court or tribunal.
(a) Examples
An important example is the World Trade Organization. The 1994 WTO Agreement
contains as an integral part the Understanding on Dispute Settlement, which grants
parties a ‘right to a panel’, and thus a right to a rule-oriented, arbitration-like
procedure ending in binding reports of the panel and the Appellate Body.77 This
system reclaims primacy and exclusiveness for all WTO-related disputes.78 However,
the compulsory character of the dispute settlement mechanism is mitigated by the fact
that the dispute settlement institution’s recommendations are not centrally enforced
and that compliance is currently the weak spot of the system. Arguably, the Member
States’ veto power has simply been shifted to the enforcement stage (cf. Art. 22 para. 6
WTO DSU).79 Other conventions coupled with compulsory jurisdiction are the 1994
Energy Charter Treaty,80 and the Danube River Convention of the same year.81 In the
cases concerning questions of interpretation and application of the 1971 Montreal
Convention arising from the aerial incident at Lockerbie, the ICJ held that the
75
Convention on Conciliation and Arbitration within the OSCE (former CSCE) of 5 December 1992, 32 ILM
(1992), at 551 et seq., Art. 26 para. 2.
76
Status of 9 November 2001 in: http://www.osce.org/cca/documents/ratification.pdf (visited on 3
February 2003).
77
Art. II.2 of the Agreement Establishing the WTO (WTO Agreement), 33 ILM (1994), 1140, 1144; Art. 6
para. 1 WTO DSU, supra note 18.
78
Art. 23 WTO DSU, supra note 18. See also Art. 12 of the ICC Statute, supra note 69, under which every
state party accepts the jurisdiction of the Court. To exercise jurisdiction, acceptance of jurisdiction by
either the state of nationality or by the state in which the crime has been committed, is needed. So
nationals of non-state parties may be tried without consent of the home state.
79
Hauser, ‘Die WTO Streitschlichtung aus einer Law and Economics Perspektive’, in H. Berg (ed.), Theorie
der Wirtschaftspolitik (2001) 79, at 106.
80
Treaty of 17 December 1994, supra note 61, Art. 27: Unilateral resort to an ad hoc tribunal.
81
Art. 24 of the Convention on Cooperation for the Protection and Sustainable Use of the Danube River of
29 June 1994, in: http://ksh.fgg.uni-lj.si/danube/envconv/ (visited on 27 August 2001). If the parties to
the dispute are not able to settle the dispute in accordance with paragraph 1 (i.e., negotiation or any other
means) within no more than 12 months, the dispute shall be submitted for compulsory decision to the ICJ
or to arbitration in accordance with Annex V.

requirements of that Convention’s jurisdictional clause82 were fulfilled, notwithstand-

ing the pertinent decisions of the Security Council in this highly politicized matter.
Given the failure of negotiations and the failure to agree on arbitration, the ICJ has
compulsory jurisdiction under Article 14 of the Montreal Convention.83
Another important, but debatable example of compulsory adjudication qua
membership is the 1982 Convention on the Law of the Sea. At first sight the
Convention appears to foresee binding arbitration as a last resort.84 But resort to
compulsory arbitration under Article 281 UNCLOS is conditioned on the absence of
an agreement to the contrary. This provision was interpreted in the recent Bluefin
Tuna Arbitral Award as requiring only an implicit agreement to eclipse compulsory
UNCLOS arbitration, in that case the Bluefin Tuna Convention of 1993.85 The Arbitral
Tribunal opined ‘that UNCLOS falls significantly short of establishing a truly
comprehensive regime of compulsory jurisdiction entailing binding decisions’.86 The
Tribunal concluded that, under the terms of UNCLOS itself, it needed consensual
jurisdiction, which was absent due to the Japanese refusal, and that therefore the
Tribunal could not reach the merits of the dispute.87 This award may undermine
compulsory jurisdiction in a largely decentralized international legal system. Its
sovereignty-deferent argument that any agreement of the parties to exclude otherwise
binding compulsory jurisdiction may be inferred implies a presumption against
compulsory jurisdiction. It might in the future be used to block compulsory
jurisdiction clauses elsewhere.88
A contrary approach was taken by the Inter-American Court of Human Rights. In
1999, when Peru attempted to withdraw unilaterally from the jurisdiction of the
Court, it even construed as binding the Member State’s initially optional acceptance of
the Court’s jurisdiction under Article 62 of the Inter-American Convention of Human
82
Art. 14 para. 1 of the Montreal Convention of 1971 (supra note 57): compulsory arbitration, or, if no
agreement on the organization of the arbitration, unilateral referral to the ICJ.
83
Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the
Aerial Incident at Lockerbie — Preliminary Objections (Libyan Arab Jamahiriya v. United Kingdom and v.
USA), judgments of 27 February 1998, para. 39 and para. 38 respectively. See for Libya v. United
Kingdom in: http://www.icj-cij.org/icjwww/idecisions/isummaries/iluksummary19980227.html
(visited on 31 August 2001); for Libya v. USA see supra note 13.
84
Art. 286, Art. 287 para. 5 UNCLOS (supra note 18).
85
The intent of Art. 16 of the Bluefin Tuna Convention (supra note 68) is to remove proceedings under that
Article from the reach of the compulsory procedures of Section 2 of Part XV of UNCLOS (supra note 18).
The arbitration contemplated by Art. 16 is not compulsory, but autonomous and consensual arbitration
provided for in the Tuna Convention Annex (see Arbitral Tribunal (supra note 60), paras 57–59).
86
Ibid., paras 57 and 62.
87
Ibid., paras 52–65. See on that case Devine, ‘Compulsory Dispute Settlement in UNCLOS Undermined?’,
25 South Afr. YB Int’l L (2000) 97; Oxman, ‘Complementary Agreements and Compulsory Jurisdiction’,
95 AJIL (2001) 277.
88
Oxman, supra note 87, 278 and 297. Note that as early as 1939, the PCIJ had, in a similar constellation,
reasoned more pro-compulsory jurisdiction: a subsequent treaty between the parties for submission of a
dispute to the Court did not supersede or qualify the Court’s jurisdiction under the optional clause. The
Court saw ‘no justification for holding that [the parties] intended to weaken the obligations which they
had previously entered into . . .’ (i.e. declaring acceptance of PCIJ’s compulsory jurisdiction) (PCIJ,
Electricity Co. of Sofia and Bulgaria (preliminary objection), PCIJ Ser. A/B, No. 77, 60, at 76).

20 EJIL 14 (2003), 1–34
Rights. Notwithstanding the fact that submission to jurisdiction was not compulsory,
the jurisdiction of the Tribunal — once accepted by a state party to the Human Rights
Convention — forms an integral part of the Convention. This function precludes any
right to unilateral modification on the part of the Member States. Therefore,
withdrawal from submission to jurisdiction is only possible by denouncing the treaty
as a whole. The Inter-American Court thereby transformed the optional clause into a
quasi-compulsory one. It justified this move with the specific, ‘objective’ and
‘law-making’ character of human rights treaties and emphasized the difference
between human rights cases and interstate litigation.89 However, treaties that are not
human rights-related may seek to protect ‘higher common values’,90 and the essential
and indispensable function of the respective tribunal’s compulsory jurisdiction is
obvious when submission is made ab initio compulsory for the states parties to such a
Convention.
(b) The Inadmissibility of Reservations to Compulsory Dispute Settlement

Clauses
With regard to material agreements foreseeing adjudication qua membership, the
question arises whether states may opt out of adjudication by ratifying with a
reservation to the respective dispute settlement clause. This is what Yugoslavia
attempted in April 2001 with regard to the Genocide Convention.91 The ICJ had, in
1996, on the application of Bosnia and Herzegovina, issued a judgment confirming its
jurisdiction on the basis of Article IX of the Genocide Convention.92 Yugoslavia
requested a revision of that judgment under Article 61 of the Statute of the Court. It
argued that its admission to the United Nations as a new member in 2000 constituted
a ‘new fact’ which makes clear that Yugoslavia did not continue the international
legal personality of the Socialist Federal Republic of Yugoslavia, and was therefore not
party to the Genocide Convention.93 Leaving apart the problems of state continuity in
this case and assuming, arguendo, that Yugoslavia could re-accede to the Genocide
Convention, our question is whether a reservation to Article IX, added to its request
for re-accession of March 2001, would have been admissible.
I submit that it is not because a compulsory dispute settlement clause of this type,
which is not an optional clause, precisely intends to rule out the necessity of a separate
consent to adjudication beyond ratification of the material treaty. This object would be
89
Caso no. 54, Ivcher Bronstein — Competencia, paras 32–55; Case no. 55, Caso del Tribunal Constitutional,
paras 31–54; both judgments of 24 September 1999 in: http://www.nu.or.cr/ci/PUBLICAC/SERIE
C/C 54 and C 55 respectively ESP.HTM (visited on 31 August 2001); see also Sokol, Case Note, 95 AJIL
(2001) 178.
90
Bronstein Case, supra note 89, at para. 42.
91
Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, UNTS 78,
no. 1021, 277.
92
Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), judgment on preliminary objections of 11 July 1996, ICJ
Reports (1996), at 595.
93
Application for revision by Yugoslavia of 24 April 2001, available at http://www.icj-cij.org/icjwww/
idocket/iybh/iybhframe.htm (visited on 3 September 2001).

nullified if reservations could be made. Because binding adjudication forms an

indispensable part of the whole package, such a reservation would be incompatible
with the object and purpose of the treaty (Article 19 lit. c) Vienna Convention on the
Law of Treaties).94 Admittedly, numerous states have lodged reservations to Article IX
of the Genocide Convention — but most of the states appertaining to the former
Communist Bloc withdrew that reservation after 1989.95 Moreover, several other
States Parties objected to them precisely with the argument of incompatibility.96
Yugoslavia was therefore well advised to drop its reservation upon accession on 12
March 2001. A different, and hotly disputed, question is what legal consequences
arise from that incompatibility. Current state practice and case law indicates that even
an ‘objectively’ incompatible reservation will be valid and will modify the Treaty in
relation to the non-objecting parties. For example, in the Case concerning the Legality of
the Use of Force, the Court found that the reservations by Spain and the USA
(previously unobjected by the claimant Yugoslavia) had the effect of excluding Article
IX from the provisions of the Convention in force between the parties and therefore
could not constitute a basis of jurisdiction, not even prima facie.97 However, this ruling
does not answer the question of what happens in relation to the objecting contracting
parties. A ‘constitutionalist’ answer is that an objection lodged in timely fashion may
have the effect of upholding and protecting the jurisdiction of the Court against
reservations attempting to circumvent compulsory jurisdiction.
4 Moderations of the Consent Requirement

My conclusion on the cooperational act of consent is that consent to adjudication is,
throughout the evolution of treaty law, given in a continuously earlier stage. The
sooner that consent must be given and the more general it must be, the less foreseeable
will be the outcomes of an eventual particular litigation and the greater the risk that
the party will be forced by a later (unforeseeable) binding award into a specific
behaviour. However, there is of course still no customary law obligation to consent to
binding adjudication.
94
See for the CCPR, Human Rights Committee General Comment 24/52 of 2 November 1994 (UN Doc.
CCPR/C/21/Rev. 1/Add. 6), HRLJ 15 (1994), at 464 et seq., para. 11. See for the ECHR, Explanatory
Report to Protocol No. 11 of 11 May 1994 (establishing compulsory jurisdiction of a permanent court for
state and individual applications): ‘This Protocol does not contain any provisions on reservations. By its
very nature, this amending Protocol excludes the making of reservations.’ (33 ILM (1994), 958, para.
115).
95
Reservations to Art. IX Genocide Convention were made by 27 states upon ratification, but currently
only 16 are upheld, inter alia by China, India, Spain and the USA. Tables and texts of reservations in:
http://www.preventgenocide.org /law/convention/reservations/ (visited on 3 February 2003).
96
Objections explicitly in these terms by Brazil, China, Mexico, the Netherlands, the United Kingdom and
Croatia. See generally Sychold, ‘Ratification of the Genocide Convention: The Legal Effects in Light of
Reservations and Objections’, 8 SZIER (1998) 533; ICJ, Application for Revision of the Judgment of 11
July 1996 in the Case concerning the Application of the Convention on the Crime of Genocide,
Preliminary Objections (Yugoslavia v. Bosnia and Hercegovina), judgment of 3 February 2003, paras
52–53.
97
ICJ, orders of 2 June 1999, Case Concerning the Legality of the Use of Force (Yugoslavia v. Spain), 38 ILM
(1999), 1149 et seq., paras 32–33; Yugoslavia v. USA, ibid., 1188 et seq., paras 24–25.

22 EJIL 14 (2003), 1–34
B Cooperation to Resolve Conflicts of Jurisdiction

Another problem of cooperation in adjudication arises from the proliferation of courts,
which entails conflicts of jurisdiction.98 A recent clash arose in the swordfish dispute
between Chile and the European Community.99 Here Chile claimed that the EC failed
to cooperate with the coastal state to ensure the conservation of the highly migratory
species, in violation of UNCLOS. The EC claimed that the Chilean domestic law
prohibition was inconsistent with the GATT 1994 provisions on freedom of transit.100
At the end of 2000, the EC therefore requested the establishment of a WTO panel
against Chile,101 whereas Chile initiated action under the dispute settlement
provisions of Part XV UNCLOS.102 Currently, this conflict of jurisdiction is in a state of
postponement or has perhaps even been resolved by an amicable settlement, operative
since March 2001, which effectively suspends proceedings in both fora.103 We have
here an example of the resolution of a jurisdictional conflict through cooperation.
8 The Doctrine of Non-frustration of Adjudication

The doctrine of non-frustration of adjudication is an important corollary to obligations
to cooperate. Non-frustration means that judicial or arbitral proceedings will not be
thwarted by one party’s lack of cooperation.
A Non-appearance of a Party to a Dispute

The first application of the principle of non-frustration can be seen in the rules on
non-appearance of one party, mostly of the defendant. Non-appearance occurs in all
stages of proceedings before international adjudicatory bodies. I will limit myself to the
98
Cf. in this context Article 2005 NAFTA Agreement, supra note 21: Para. 1: Disputes regarding any
matter arising both in the NAFTA Agreement and the GATT or any successor agreement ‘may be settled
in either forum at the discretion of the complaining Party’.
99
See for an overview Neumann, ‘Die materielle und prozessuale Koordination völkerrechtlicher
Ordnungen: die Problematik paralleler Streitbeilegungsverfahren am Beispiel des Schwertfisch-Falles’,
61 ZaöRV (2001) 529.
100
Art. V. 3: Freedom of transit of goods through the territory of each contracting party on their way to or
from other contracting parties. The EC also relied on Art. XI (prohibiting quantitative restrictions on
imports or exports). Under GATT, Chile could try to defend itself by relying on Art. XX(g), which allows
contracting parties to adopt and enforce measures relating to the conservation of natural resources.
101
European Request of 8 December 2000 in: http://docsonline.wto.org/ under WT/DSB/W/151 (visited on
31 August 2001).
102
In December 2000, Chile and the EC agreed to submit to a special chamber of the ITLOS to be formed in
accordance with Art. 15 para. 2 of the Statute of the Tribunal (order of ITLOS of 20 December 2000 on
the constitution of a chamber, 40 ILM (2001) 475).
103
Provisional agreement of 25 January 2001, which became operational in March 2001. It rests on a pilot
phase in which the parties undertake to resume bilateral cooperation. If this provisional arrangement
fails, proceedings will resume. For the arrangement see http://docsonline.wto.org/ at WT/DS193/3 of 6
April 2001, visited 3 February 2003.

ICJ.104 Here, there have been at least five instances of defendants not appearing,
mostly because they contested the jurisdiction of the Court. They might have feared
that their appearance would be interpreted as a consent to jurisdiction (under the
doctrine of forum prorogatum), but they certainly also sought to exercise pressure on
the Court. The last case of this type was the Nicaragua proceeding of 1986, in which,
after the Court had indicated provisional measures and found jurisdiction, the United
States refused to participate further.105 Article 53 of the Statute of the ICJ deals with
this situation. Paragraph 1 of that provision reads: ‘Whenever one of the parties does
not appear before the Court, or fails to defend its case, the other party may call upon
the Court to decide in favour of its claim.’ To begin with, this paragraph implies that
there is no legal obligation to appear. Nor does such an obligation figure elsewhere in the
Statute or in the Rules of the Court. This also means that there is no direct procedural
sanction for non-appearance. The absence of an obligation and of sanctions may be
due to sovereignty concerns. However, the provision at least protects the Court and
the other party to the dispute from obstruction by the non-appearing party:
non-appearance does not terminate the proceeding. It is impossible for one state to
paralyse the Court. Put differently: once a state has given its consent to ICJ
jurisdiction, its unilateral decision to withdraw this consent in the course of an
already pending proceeding is devoid of legal effects. This rule is an important
manifestation of the idea of non-frustration.
However, the element of sanction that is embodied in the threat of a continuing
proceeding is tempered by paragraph 2 of Article 53. Here it says: ‘The Court must,
before [deciding], satisfy itself, not only that it has jurisdiction . . ., but also that the
claim is well founded in fact and in law.’ This provision precludes a judgment in
default in a technical sense with the court relying on the facts as presented by the
plaintiff. Article 53 forces the Court to make a full, in-depth, not merely summary,
factual and legal assessment of the case. It may not, as in most municipal civil
procedures, base its judgment on the plaintiff’s factual allegations.106 In this way, the
procedural disadvantage suffered by the non-appearing party is minimized. The
non-appearing state is thus protected, more than ordinary non-appearing parties in
domestic proceedings under the laws of civil procedure of most states. The reason for
this protection of the absent state again goes back to concerns of sovereign equality.
As the ICJ formulated in the Nicaragua case: ‘[T]he equality of the parties must remain
104
See in the literature Fitzmaurice, ‘The Problem of the “Non-Appearing” Defendant Government’, 51
BYbIL (1980) 89; J. B. Elkind, Non-Appearance before the International Court of Justice (1984); H. W. A.
Thirlway, Non-Appearance before the International Court of Justice (1985); Arangio-Ruiz, ‘Non-Appearance
before the International Court of Justice, Final Report’, 64 YB Inst. of Int’l Law (1991) 280; Alexandrov,
‘Non-Appearance before the International Court of Justice’, 33 Columbia J. Transnational Law (1995) 41.
105
Case Concerning Military and Paramilitary Activities in and against Nicaragua — Merits, supra note 12, paras
26–28. Previous instances of non-appearance before the court in chronological order are: Nuclear Tests
Case (supra note 64), para. 15; Aegean Sea Continental Shelf Case, supra note 63, at 3, 7 para. 15; Case
Concerning United States Diplomatic and Consular Staff in Tehran, supra note 63.
106
See for a comparative overview of default in municipal law, Elkind, supra note 104, 1–30.

24 EJIL 14 (2003), 1–34
the basic principle . . . The intention of Article 53 was that in a case of non-appearance
neither party should be placed at a disadvantage.’107
To conclude, we must admit that the ICJ statute’s response to non-appearance
oscillates between sovereignty-consciousness and the idea of non-frustration. It
depends on the Vorverständnis of the observer which of the competing and
antagonistic elements he or she ranks in the foreground.
Summing up: The principle of non-frustration becomes more important as
obligations for cooperation become less specific and less enforceable. If there is no
enforceable duty of cooperation and if there are no direct procedural sanctions for
non-cooperation, then we have at least one ‘sanction’ in a larger sense: the
proceedings will continue and a fully binding judgment or award will be issued. And
because a non-pleading defendant cannot raise defences, this judgment is normally
not in favour of the uncooperative party.108
B Truncated Tribunals
Another type of non-cooperation, relevant only in arbitral proceedings, is the failure
to appoint the national arbitrator by one of the parties to the dispute, or to withdraw
him under some pretext in the course of the proceeding. Such actions belong to the
usual repertoire of tricks for delaying arbitration. For instance, during the work of the
Iran-US Claims Tribunal, Iran very frequently forced its arbitrators to resign.109
Obstruction of this type leads to what is called a truncated tribunal. It has long been
debated whether such a truncated tribunal has the authority to render a binding
award. Nowadays, it is generally acknowledged that truncated tribunals may, as a
rule, continue to hear a case and to render an award even in the absence of the
party-appointed arbitrator.110 This rule stems, first, from an effectiveness-oriented
(effet utile) reading of the respective parties’ arbitration clauses or agreements. It is to
be assumed that parties providing for arbitration do not intend that either of the
parties could unilaterally frustrate arbitration by withdrawing its arbitrator.111
The second justification is the principle of non-frustration of the arbitral process,
which is an indispensable element of the modern, i.e. post-World War II, philosophy of
arbitration. When arbitration was regarded as a diplomatic, conciliation-like process,
the agreement of the parties was an essential condition in every stage of the
proceedings. But when, as today, arbitration has a quasi-judicial function, it is an
intrinsic element of this conception that one party may not render nugatory the
107
ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua — Merits, supra note 12, at
para. 31.
108
As non-appearance is indirectly ‘sanctioned’ by forfeiture of procedural rights, we might construe the
duty to appear as a ‘soft’ duty (in German law on civil procedure called ‘Obliegenheit’).
109
See G. H. Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996), at 9–43, 458–463.
110
The most detailed analysis is S. M. Schwebel, International Arbitration: Three Salient Problems (1987), at
144–296; see succinctly also Collier and Lowe, supra note 29, 225–227.
111
Schwebel, supra note 110, at 214–215.

undertaking.112 Consequently, modern rules on truncated tribunals, such as in the

NAFTA Agreement or in the 1998 International Chamber of Commerce Rules on
Arbitration, are effectively designed to overcome a blocking of the arbitral process,
either by empowering an authority to appoint arbitrators or by allowing for binding
awards despite non-participation of individual arbitrators.113
9 Duties of Cooperation in International Criminal Justice114

The ICTY, the Rwanda Tribunal and the International Criminal Court are neither
explicitly nor implicitly endowed with enforcement functions. Yet, both indispensable
evidence and suspect persons are usually located in territories under sovereign
authority of states. All criminal courts are therefore dependent on the cooperation of
states.115 The drafters of the respective statutes took this into account and imposed on
all states the obligation to lend cooperation and judicial assistance to the courts.
A Cooperation with the ICTY

The obligation to cooperate with the ICTY is laid down in Article 29 of the Tribunal’s
Statute. Article 29 paragraph 1 runs: ‘States shall cooperate with the International
Tribunal in the investigation and prosecution of persons accused of committing
serious violations of humanitarian law.’ The binding force of this obligation derives
from the provisions of Chapter VII and Article 25 of the UN Charter and from the
112
Ibid., at 150; clearly Collier and Lowe, supra note 29, at 226. See the Report of the International Law
Commission covering the work of its fourth session of 4 June–8 August 1952, GA OR 7th Sess., Supp. no.
9 (A/2163), 2 et seq. on the principle of effectiveness of the process of arbitration (esp. para. 19, at 3).
113
Art. 38 of the ICSID Convention, supra note 27: If the Tribunal is not constituted within 90 days, the
Chairman shall appoint the arbitrator or arbitrators not yet appointed, but not nationals of one party.
Arts 6 and 7 of the UNCITRAL Arbitration Rules (15 ILM (1976), 701) confer authority to the
Secretary-General of the Permanent Court of Arbitration. Art. 13 para. 3 of the Permanent Court of
Arbitration Optional Rules for Arbitrating Disputes between Two States, in: Permanent Court of
Arbitration, supra note 19, at 53: ‘If an arbitrator on a three- or five-person tribunal fails to participate in
the arbitration, the other arbitrators shall, unless the parties agree otherwise, have the power in their sole
discretion to continue the arbitration and to make any decisions, ruling or award, notwithstanding the
failure of one arbitrator to participate.’ Art. 1124 of the NAFTA Agreement, supra note 21: ‘Constitution
of Tribunal When a Party Fails to Appoint an Arbitrator or the Disputing Parties Are Unable to Agree on a
Presiding Arbitrator’, provides that in investor-to-state arbitration, the Secretary-General of the ICSID
shall appoint the arbitrators. Art. 25 para. 1 of the ICC Rules of Arbitration, in force as from 1 January,
1998: ‘if there be no majority, the Award shall be made by the chairman of the Arbitral Tribunal alone’,
36 ILM (1997), 1604 et seq.
114
See on cooperation with the ICTY and the ICTR Sluiter, ‘To Cooperate or Not to Cooperate? The Case of
the Failed Transfer of Ntakirutimana to the Rwanda Tribunal’, 11 J Int’l Law (1998) 383; Bank,
‘Cooperation with the ICTY in the Production of Evidence’, 4 Max Planck YB UN (2000) 233; Bothe,
‘International Humanitarian Law and War Crimes Tribunals, Recent Developments and Perspectives’, in
International Law: Theory and Practice, Essays in Honor of Eric Suy (1998) 581. See on cooperation with the
ICC the commentary on Part 9 ICC Statute in Triffterer, supra note 69.
115
Cassese, ‘Reflections on International Criminal Justice’, 61 MLR (1998) 1, at 10. See also Case no.
IT-95-14-T, Prosecutor v. Tihomir Blaskic, Judgment of 29 October 1997, http://www.un.org/icty/ind-
e.htm (visited on 4 October 2001) see there: Blaskic IT-95-14 (‘Lasva Valley’) Trial Chamber, Decisions &
Orders 29 October 1997, para. 26.

26 EJIL 14 (2003), 1–34
Security Council Resolution116 adopted pursuant to those provisions and establishing

the Tribunal.117 A request by the Tribunal for cooperation is an application of an
enforcement measure under Chapter VII and therefore binding.118
1 Evidence
An important type of cooperation is the production of evidence (Article 29 para. 2 lit.
(a) of the ICTY Statute). The landmark decision on evidence is the Blaskic Subpoena
judgment of the Appeals Chamber of 1997.119 Here the Appeals Chamber held that, by
virtue of Article 29 of the Statute and Chapter VII of the UN Charter, states must
comply with requests for evidence.120
In the Todorovic decision of 2000121 the obligation to cooperate under Article 29
was extended to international organizations. Here, Trial Chamber III ordered that the
NATO-led Stabilization Force in Bosnia and Herzegovina, the ‘SFOR and its
responsible authority, the North Atlantic Council’ as well as all 33 ‘States
participating in SFOR [. . .] disclose to the Defence’ various documents, items and
material ‘relating to the apprehension of the accused’. The Trial Chamber justified this
request with a ‘purposive construction’ of Article 29. Although the provision is on its
face confined to states, its purpose to secure investigation and prosecution of serious
violations of international humanitarian law supports its application to collective
enterprises undertaken by states, in the framework of international organizations.
116
SC Res. 827 (1993) of 25 May 1993, para. 4: Here the Security Council decided ‘that all States shall
cooperate fully with the International Tribunal and its organs in accordance with the present resolution
and the Statute of the International Tribunal and that consequently all States shall take any measure
necessary under their domestic law to implement the provisions of the present resolution and the Statute,
including the obligation of States to comply with requests for assistance or orders issued by a Trial
Chamber under Article 29 of the Statute’ (32 ILM (1993), 1203 et seq., emphasis added).
117
Blaskic judgment, supra note 115, at para. 26.
118
Report of the Secretary-General pursuant to para. 2 of SC Res. 808 (1993) [on the establishment of an
International Tribunal], 32 ILM (1993), 1163 et seq., 1188, paras 125–127: ‘[T]he establishment of the
International Tribunal creates a binding obligation on all States to take whatever steps are required to
implement the decision. In practical terms, this means that all States would be under an obligation to
cooperate with the International Tribunal . . . an order by a Trial Chamber for the surrender or transfer of
persons to the custody of the International Tribunal shall be considered to be the application of an
enforcement measure under Chapter VII of the Charter of the United Nations.’
119
Supra note 115. See in scholarship on this judgment Wedgwood, ‘International Criminal Tribunals and
State Sources of Proof: The Case of Tihomir Blaskic’, 11 LJIL (1998) 635; Sarooshi, ‘The Powers of the
United Nations International Criminal Tribunal’, 2 Max Planck YB UN (1998) 141. The Blaskic principles
were applied in Prosecutor v. Kordic, Trial Chamber, order of 4 February 1999, in which the Trial
Chamber ordered the Republic of Croatia to disclose to the Prosecution specific documents listed in a
confidential annex in: http://www.un.org/icty/ind-e.htm (visited 4 October 2001), see there: Kordic and
Cerkez, IT-95-14/2 (‘Lasva Valley’) Trial Chamber, Order of 4 February 1999.
120
A court order for evidence must satisfy the following conditions to be binding: It must identify specific
documents and not broad categories, it must set out succinctly the reasons why such documents are
deemed relevant, it must not be unduly onerous, and it must give the requested state sufficient time for
compliance, Blaskic judgment supra note 115, para. 31).
121
Decision on Motion for Judicial Assistance to be provided by SFOR and Others of 18 October 2000, Trial
Chamber III (Prosecutor v. B. Simic, M. Simic, Tadic, Todorovic, Zaric, Case no. IT-95-9-PT), in:
http://www.un.org/icty/ind-e.htm (visited on 5 September 2001) see there: Simic et al., IT-95-9,
‘Bosanski Samac’, Trial Chamber, Judgment of 18 October 2000.

‘Article 29 of the Statute should therefore be read as conferring on the Tribunal a

power to require an international organization or its competent organ such as SFOR
to cooperate with it’, according to the Trial Chamber.122
In a 1999 decision in the Simic proceedings, a Trial Chamber ruled on an important
exemption from the duty to cooperate with the ICTY.123 The question here was
whether a former employee of the International Committee of the Red Cross, the ICRC,
may be called to give evidence of facts that he came to know by virtue of his
employment. The Trial Chamber found that the ICRC’s operating principles of
neutrality and impartiality creates a relevant and genuine confidentiality interest of
the ICRC.124 Cooperation in the form of testimony before the Court might be perceived
by one or other of the parties to a conflict as taking a stand against them and might, as
a consequence, have detrimental effects on present and future humanitarian
operations of the Red Cross. Therefore the ICRC has an absolute and unqualified
customary law right of non-disclosure of information. No balancing against the
interests of justice is possible. The ICTY is definitely barred from admitting information
obtained from a person while performing official ICRC functions and relating to that
work.125
2 Surrender
Article 29 para. 2 lit. e) of the ICTY Statute explicitly obliges states to ‘comply without
undue delay with any request for . . . surrender or the transfer of the accused to the
International Tribunal’ (emphasis added). This of course applies to former Yugoslav
President Slobodan Milosevic, who had been indicted already in May 1999 by the
ICTY Prosecutor for crimes against humanity and violation of humanitarian law.126
In 2001, the United States and the European Community exercised political pressure
on the new government in Yugoslavia in order to compel surrender. An American list
with demands contained, inter alia, very detailed elements of a draft law on
cooperation with the Tribunal. Milosevic was arrested by the Yugoslav police in April
2001 and was transferred to the custody of the Tribunal one month later. Most likely,
the FRY was less impressed by the frequent reminders by the UN Secretary-General,
the Tribunal’s President and the Prosecutor that the FRY was legally obliged to
cooperate with the Tribunal than by the American threat to cut off humanitarian aid
122
Ibid.
123
Simic et al., Decision on the Persecution on Motion under Rule 73 for a Ruling concerning the Testimony
of a witness of 27 July 1999, http://www.un.org/icty/ind-e.htm (visited on 4 October 2001) see there
Simic et al. (IT-95-9-PT) ‘Bosanski Samac’, Trial Chamber, Decision of 27 July 1999. See on this decision
Jeannet, ‘Testimony of ICRC Delegates before the International Criminal Court’, 82 ICCR (2000) 993.
124
Simic, supra note 123, at paras 45, 55.
125
Ibid., at para. 76. Confirmed in The Prosecutor v. Simic et al., No. IT-95-9-PT, in a Trial Chamber III
‘Decision Denying Request for Assistance in Securing Documents and Witnesses from the International
Committee of the Red Cross’, of 7 June 2000, http://www.un.org/icty/ind-e.htm (visited on 30 October
2001) see there: Simic et al. (IT-95-9-PT) ‘Bosanski Samac’, Trial Chamber, Decision of 7 June 2000.
126
Because of the ‘renewed’ UN membership of the Federal Republic of Yugoslavia on 1 November 2000, the
warrants of arrest and orders for surrender were re-issued and once more delivered personally to FRY
authorities.

28 EJIL 14 (2003), 1–34
and to vote against loans for Yugoslavia in the World Bank and the IMF in the event of
non-cooperation.
B Cooperation with the International Criminal Court

The legal basis for the obligation to cooperate with the ICC is Part 9 of the Rome
Statute of 1998,127 entitled ‘International Cooperation and Judicial Assistance’. Its
first clause, Article 86, is a general obligation to cooperate: ‘States Parties shall, in
accordance with the provisions of this Statute, cooperate fully with the Court in the
investigation and prosecution of crimes within the jurisdiction of the Court.’128 Court
orders requesting cooperation under Part 9 will derive their binding force from the
simple fact that they activate binding, contractual obligations of the states parties to the
Statute. Court orders will therefore be binding ‘secondary treaty law’.129
The ICC cooperation regime contains some innovative elements departing from the
traditional ‘horizontal’ regime of inter-state cooperation in criminal matters. First of
all, new terms, such as ‘surrender’ to the Court, as opposed to ‘extradition’, manifest
the novel, ‘vertical’ approach to cooperation. According to Article 91 para. 2 lit. c) of
the Rome Statute, states responding to requests for arrest and surrender should take
into account ‘the distinct nature of the Court’. Strict grounds for refusal of
cooperation, as they exist in almost every inter-state cooperation regime, are virtually
absent. Under Article 99 para. 4, the Court has limited, but significant power to
conduct on-site investigations.
On the other hand, the more traditional elements of form and procedure are: states
parties surrender persons and render other forms of cooperation ‘under procedures of
national law’.130 In substance, traditional solutions have not been radically aban-
doned. There still are grounds for refusal to cooperate, as in the inter-state ‘horizontal’
setting, but they are more flexible. For instance, mere postponement is envisaged (see,
e.g., Article 93, para. 5).
The failure of a state party to cooperate with the Court will be addressed by an
official finding of the Court and a referral of the matter to the Assembly of States
Parties or, where the Security Council referred the matter to the Court, to the Security
Council (Article 87, para. 7 ICC Statute). The Security Council may then act under
Chapter VII and oblige all UN Member States to cooperate with the Court.131
127
ICC Statute, supra note 69, at 999.
128
Emphasis added. Unlike Art. 29 Statute of the ICTY of 25 May 1993 (32 ILM (1993) 1163, 1203), this is
no free-standing obligation to cooperate. Art. 86 serves as a guideline for the interpretation of the specific
obligations laid down in Part 9.
129
Kreß and Prost, in Triffterer, supra note 69, Art. 87, para. 32.
130
Art. 93, para. 1; similarly Art. 89, para. 1. One of the most critical issues in the negotiations of Part 9 was
whether or not there should be a reference to the national provisions. The ultimately agreed text reflects
the compromise.
131
An interesting question is whether we here have a self-contained regime, i.e. an exhaustive set of rules
concerning the international wrongfulness of non-cooperation. On the one hand, the carefully balanced
grounds for refusal to cooperate may be undermined by relying on a circumstance precluding
wrongfulness under general customary law, such as a state of necessity (cf. Art. 26 of the ILC Draft
Articles on State Responsibility (2000)), adopted by the Drafting Committee on second reading on 11

States not parties to the Rome Statute might be obliged to cooperate with the ICC by
virtue of Article 1 of the Geneva Conventions and corresponding customary law.132
The said provision requires states to ‘ensure’ respect of international humanitarian
law. This means that states parties to the Geneva Conventions must react
appropriately to any violation of international humanitarian standards, even if the
underlying act is not attributable to that state. It is conceivable that in a given case
some form of cooperation with the Court constitutes the only way for non-states
parties to the Rome Statute to discharge this obligation,133 at least as far as war crimes
are concerned, perhaps even with regard to other crimes within the jurisdiction of the
Court.
10 Evaluation and Outlook

A The Foreground: Summary of Cooperational Duties
The main findings of the preceding parts may be summed up as follows: a general (but
context-bound) duty to cooperate with a view to a settlement is inherent in the
customary law obligation to settle disputes peacefully, because resolution of a dispute
would otherwise be impossible. This general obligation comprises the duty at least to
negotiate, as it would otherwise be meaningless. On the other hand, there is no
customary law obligation to negotiate first, if the other party is willing to resort to
another means of settlement, in particular to adjudication. Good faith relates to all
stages of the settlement procedure, and it obviously becomes more important as the
procedures become more flexible and the parties’ respective duties of cooperation
become less concrete.
In diplomatic third-party-based settlement, we find some, albeit weak, specific
obligations of cooperation. First of all, an offer of mediation (or good offices, or
conciliation) gives rise to at least one negative obligation of the parties to the dispute:
they may not regard the offer as an unfriendly act.134 When conciliation is made
compulsory, as in many recent treaties, we have a procedural obligation to go
through the procedure. In the absence of an award which binds the parties per se,
cooperation becomes crucial in the phase of implementation of a mediator’s or
conciliator’s recommendation.135 The most important act of cooperation of the parties
August 2000, A/CN.4/L.600 in: http://www.law.cam.ac.uk/rcil/ILCSR/Statresp.htm (visited on 5

September 2001). On the other hand, it seems hardly justifiable to radically preclude resort to general
grounds for refusal such as force majeure (see Kreß and Prost, in Triffterer, supra note 69, Art. 87, para.
33).
132
See in detail on the duty to ensure respect of humanitarian law B. Kessler, Die Durchsetzung der Genfer
Abkommen von 1949 in nicht internationalen bewaffneten Konflikten auf Grundlage ihres gemeinsamen Art. 1
(2001).
133
Kreß and Prost, in Triffterer, supra note 69, Art. 87 ICC Statute, supra note 69, para. 20.
134
Art. 3 of the Hague Convention of 1907, supra note 19.
135
This is why for instance the CSCE Valetta Report on Dispute Settlement of 1991 (supra note 39) contains
the following provision: ‘The parties will consider in good faith and in the spirit of cooperation any
comment or advice of the [Dispute Settlement] Mechanism’ (Sec. IX, first sentence, emphasis added).

30 EJIL 14 (2003), 1–34
is to agree on a material resolution of the dispute, but there clearly is no obligation to

do so.
In legal dispute settlement, too, the primary act of cooperation is consent, but in a
different phase. Here we need consent to jurisdiction of a court or tribunal. This
consent is formal and procedural, not — as in a successful political dispute settlement
— a consent in substance. Here as there, we have no customary law obligation to
consent. However, throughout the evolution of treaty law, we see a tendency to
require consent in increasingly early stages. In particular, the instrument of
compulsory adjudication qua membership to a material treaty, to which no
reservations are possible, constitutes an important strengthening of adjudication.
In third-party dispute settlement, obligations, such as a contractual obligation to
exhaust previous negotiations as a pre-requisite of jurisdiction, may at first sight exist
only vis-à-vis the dispute settlement body, but they protect the other party to the
dispute as well.
In highly institutionalized dispute settlement systems, obligations to cooperate even
seem to be ‘obligations erga omnes partes’, which means that they are incumbent on
every member state of the system vis-à-vis all other member states and posit a
community interest in their observance.136 They protect not only the other party to
the dispute, but all other parties to the system. The reason is that cooperation in this
instance is not only called for in order to resolve a specific dispute, but with a view to
the good and sustainable functioning of the entire settlement system.
The failure to fulfil a concrete obligation to cooperate is normally a breach of an
international obligation and triggers the state’s international responsibility.137 If, as in
the case of the ICTY and the ICC, the court is entitled to make a judicial finding on a
failure to cooperate, this is the formal establishment of an internationally wrongful
act.138 In sum, we can safely speak of an international law of cooperation in dispute
settlement.
B The Background: Two Antagonistic Trends in Dispute Settlement

The cooperational duties just summarized must be seen against the background of two
antagonistic trends in dispute settlement.
1 On the One Hand: Rise of Adjudication
On the one hand, we witness a rise of adjudication. The ideological battle between
(mostly) Western partisans of binding adjudication139 and (mostly) socialist/third-
world proponents of non-binding, diplomatic dispute settlement, which essentially
hinged on sovereignty, is over. Since 1989, reluctance to accept binding adjudication
has somewhat decreased.
The rise of adjudication is manifest in the creation of new courts, which I have
136
Blaskic judgment, supra note 115, para. 26.
137
Ibid., at para. 35.
138
Kreß and Prost, in Triffterer, supra note 69, Art. 87 ICC Statute, supra note 69, para. 35.
139
The opposing camps of course reflected only roughly the East-West split. For instance, France and the
USA both withdrew from the optional clause and the USA was never a party to the PCIJ.

already mentioned. It is also illustrated by the fact that new actors participate in the
process of adjudication. Although states are certainly still the primary actors — think
of access to the ICJ or to the WTO Dispute Settlement Body — this primacy of states is
eroding. Some of the most interesting duties of cooperation involve private-law
corporations or individuals. I have mentioned the international criminal courts trying
individuals, and the ‘innovative and sweeping’140 obligations of cooperation with
those courts incumbent on the states parties. I have also mentioned the growing
importance of mixed arbitration, and in this context the doctrine of non-frustration of
arbitration functions as an incentive to cooperation in the arbitral process.
Finally, NGOs are engaged in international adjudication.141 For example, inter-
national (and national) trade unions may sue states under Part IV D of the Revised
European Social Charter of 1996.142 In situations where NGOs do not themselves have
standing, they may render assistance to the parties, e.g., by submitting amicus curiae
briefs.143
The ‘privatization’ of international disputes effected by the integration of non-state
actors has the positive effects of avoiding inter-state conflicts and of improving the
protection of material rights because the states’ discretion (and reluctance) to exercise
diplomatic protection is foreclosed. It also increases the effectiveness of adjudication
because the strong self-interests of the private stakeholders contribute to promoting
legal security.144
2 On the Other Hand: New and Varied ‘Political’ Mechanisms
On the other hand, actual resort to manifold new provisions for arbitral or judicial
settlement is still comparatively rare in the state-state context.145 Moreover, support
for non-binding strategies comes from a totally new camp: from domestic alternative
dispute resolution theory, as explained in the beginning. A preference for ‘new’ or
‘alternative’ means is visible in the trend to straddle or combine the traditional
140
Blaskic judgment, supra note 115, at para. 64.
141
See generally Shelton, ‘The Participation of NGOs in International Judicial Proceedings’, 88 AJIL (1994)
611.
142
ETS no. 163; incorporating the Additional Protocol to the European Social Charter Providing for a
System of Collective Complaint of 9 November 1995, ETS no. 158.
143
The WTO Appellate Body considered amicus curiae briefs from NGOs attached to the submission of either
appellant or appellee to be ‘at least prima facie an integral part of that participant’s submission’ (WTO
Appellate Body Report in: United States — Import Prohibition of Shrimp (WT/DS58/AB/R) of 12 October
1998, 38 ILM (1999), 121 et seq., paras 79–91). As regards additional information furnished, e.g., by
NGOs independent from the submissions of the participants, a panel has the discretionary authority
either to accept and consider or to reject it, whether requested by a panel or not (ibid., at paras 99–110).
The ICTY took note of the amicus briefs to the Blaskic case, see frequent quotes in the judgment (supra note
115).
144
Petersmann, ‘Proposals for Strengthening the UN Dispute Settlement System’, 3 Max Planck YB UN
(1999) 105, at 144.
145
This is not equally true for the private business-state context, e.g. under the ICSID Convention.

32 EJIL 14 (2003), 1–34
methods,146 as well as in the trend to entrust a designated body of an organization or,

under a multilateral convention, a conference or meeting of the states parties with
compliance management in a non-adversarial context. A most recent example is the
Cartagena Protocol on Biosafety of 2000.147 Another revitalization of political means
lies in the new tool of compulsory or directed conciliation, which can be found in
numerous multilateral conventions of the 1980s and 1990s.148 All in all, it may well
be that non-binding mechanisms will continue to dominate dispute settlement, albeit
with the help of a new set of arguments and in novel forms.
C The Whole Picture: A Network of Cooperational Duties

The international law of dispute settlement, which is becoming increasingly
institutionalized, may be imagined as a network of obligations. The network idea builds
on, and intensifies, the concept of cooperation. While inter-state cooperation still
presupposes horizontal relationships between sovereign actors, the network idea
allows for hierarchy in the international legal system. A network is, as pointed out in
the Introduction to this paper, something between anarchy and hierarchy. It is a
mixture of vertical and horizontal relationships, a criss-cross of relationships. It is
146
An example is the UN Compensation Commission, which was set up on the basis of Security Council
Resolutions and which settles claims against Iraq related to its unlawful invasion of Kuwait in 1990 and
awards damages out of a compensation fund constituted by a 30% levy on the proceeds of Iraqi oil sales.
The Commission is a subsidiary body of the Security Council and an extraordinary and as yet unique
hybrid political-judicial body. Report of the UN Secretary-General of 2 May 1991, UN Doc. S/22559, in
M. Weller (ed.), Iraq and Kuwait: The Hostilities and Their Aftermath (1993) 537, at 539. It is, however,
doubtful, whether this particular blend will serve as a model for future dispute settlement because it owes
its existence to the very specific situation after the Gulf War and the unequivocal and complete
condemnation of Iraq by the United Nations.
147
Art. 34 of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity of 29 January
2000, 39 ILM (2000) 1027, at 1042. See also Art. VI para. 4 of the Comprehensive Nuclear Test Ban
Treaty (CTB Treaty) of 10 September 1996 (in Fahl, supra note 72, Text E/18.2): Conference of the States
Parties; Art. 17 of the Kyoto Protocol of 12 December 1997 to the framework Convention on Climate
Change, 37 ILM (1998), 32: Conference of the Parties serving as the Meeting of the Parties to the
protocol; Art. 10 para. 1 of the Anti-Personnel Mines Convention (supra note 39): Meeting of the States
Parties; Art. 10(n) of the Convention on the Conservation and Management of Highly Migratory Fish
Stocks in the Western and Central Pacific Ocean of 4 September 2000 (40 ILM (2001), 278) on the tasks
of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western
and Central Pacific Ocean, empowering a Commission to ‘promote the peaceful settlement of disputes’.
148
See the Vienna Ozone Layer Convention (supra note 70) Art. 11, paras 4 and 5: Mandatory submission to
a conciliation commission that must, in the absence of an agreement, render a final and recommendatory
award, which the parties shall consider in good faith. Another example is the Vienna Convention on the
Law of Treaties between States and International Organizations or between International Organizations
of 21 March, 1986, 25 ILM (1986), at 543 et seq.: With respect to a dispute concerning the application of
any of the Articles in Part V (invalidity, termination, and suspension of the operation of treaties), other
than those regarding jus cogens, any of the parties may set in motion a conciliation procedure specified in
the Annex to the Convention (Art. 66 para. 4). See also Art. 14, para. 5 of the Rio Framework Convention
on Climate Change (supra note 47) and Art. 20 of the Convention on Conciliation and Arbitration within
the OSCE (supra note 39). Under Art. 5, para. 3 of the WTO DSU (supra note 18), ‘[g]ood offices,
conciliation or mediation may be requested at any time by any party to a dispute’. On the other hand, Art.
5, para. 1 says that ‘[g]ood offices, conciliation and mediation are procedures that are undertaken
voluntarily if the parties to the dispute so agree’.

partly rigid, partly flexible. The network embodies not only different types of
cooperational duties, but also duties with different degrees of bindingness, depending,
inter alia, on the different actors involved.
Within this network, the duties to cooperate between the parties form the
‘horizontal’ threads, whereas the duties of the parties vis-à-vis the dispute settlement
institution or mediator may be figuratively depicted as ‘vertical’ ones. Such a
criss-cross is more and more acknowledged in international judicial reasoning: With
regard to the ICTY and the International Criminal Court, it was debated whether the
obligations to cooperate with the courts are ‘horizontal’ duties similar to those in
state-state relations or ‘vertical’ obligations. The ‘horizontal’ approach to cooperation
has sovereignty as its starting-point, favours references to domestic law and rigid
grounds for refusals to cooperate. The ‘vertical’ approach presupposes a hierarchical
relationship between the international courts and the states, attaches greater weight
to community interests in international criminal prosecution and consequently
refuses to give states a final say on their cooperation. The Appeals Chamber in the
Blaskic case opined that ‘[c]learly, a “vertical” relationship was . . . established’
between the ICTY and the UN Member States.149 Referring to universal criminal
jurisdiction, ICJ Justices recently held that states asserting universal jurisdiction
‘invoke the concept of acting as “agents for the international community”. This
vertical notion of the authority of action is significantly different from the horizontal
system of international law envisaged in the Lotus case.’150
The hierarchical strand of the network is dominant where we have compulsory
jurisdiction. The rise of adjudication, as just described, contributes to that strand. This
phenomenon may be interpreted as a strengthening of constitutionalist, rule-of-law-
conscious elements of the international legal order.151 Audacious decisions such as
the Inter-American Court’s Bronstein judgment place emphasis on the constitutional
features of some dispute settlement instruments.
On the other hand, Westphalian elements persist in the form of mere horizontal,
inter-state cooperation in political dispute settlement. The Bluefin Tuna awards
represent the Westphalian approach in which nothing goes without consent.
Moreover, partisans of the Westphalian model can argue that almost all of the
cooperational duties I have mentioned are contractual ones to which the states have
‘voluntarily’ adhered by signature and ratification. Relying on a formal notion of
sovereignty and focusing on a state’s free will to enter into contractual obligations or
not permits the conclusion that sovereignty is of course not impaired by these rules. If,
in contrast, we adopt a material view of sovereignty, it is not decisive that contractual
obligations were entered into ‘freely’ or ‘voluntarily’. What counts is that states have
149
Ibid., at para. 47.
150
See ICJ, Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v. Belgium), judgment of 14 February 2002, joint separate opinion of Judges Higgins, Koojmans and
Buergenthal, para. 51. See http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe ijudg-
ment 20020214.pdf.
151
See Peters, ‘There is Nothing More Practical than a Good Theory: An Overview over Contemporary
Approaches to International Law’, 44 German Yearbook of International Law (2001) 25, at 35–36.

SYMPOSIUM
The International Arbitrator: From the

Perspective of the ICC International
Court of Arbitration
Stephen R. Bond*
I. INTRODUCTION
Every arbitration aficionado knows the expression: "An arbitration
is only as good as the arbitrator" ("Tant vaut l'arbitre, tant vaut
l'arbitrage").However, the party or arbitral institution which wishes to
find a "good" arbitrator must nonetheless step back before making any
selection in order first to formulate a clear definition of "arbitration" it-
self and its objectives.
Of course, articles, books and entire conferences have been devoted
to the subject of arbitration, but for the purposes of this article it is possi-
ble to be brief. From the point of view of the International Chamber of
Commerce and the International Court of Arbitration1 it established in
1923, arbitration is a means of helping to promote and facilitate interna-
* Secretary General of the International Court of Arbitration. The opinions expressed herein
are those of the author and do not bind or necessarily reflect those of the International Court of
Arbitration.
1 The word "international" was added to the Court's name by a decision of the Council of the
International Chamber of Commerce in 1989 in order to better reflect the nature of the composition
of the Court (as of 1991 there are some 55 Court members of 47 different nationalities) and the basic
premises underlying its Rules and its approach to the arbitrations it administers.

Northwestern Journal of
International Law & Business 12:1(1991)
tional commerce and investment by providing a neutral, independent and

impartial method of resolving international commercial disputes through
effective and reasonably predictable procedures.
These objectives should be achieved as rapidly and inexpensively as
the circumstances of each case permits as it cannot be forgotten that for
the business person time is money and money is also money. Moreover,
the parties will accept the alternative of arbitration only insofar as they
are confident that the objectives sought are truly obtainable and the
means required to reach these objectives are available. In this regard,
each international contract permits the parties to "vote with their arbi-
tration clauses" for the arbitral institution or set of rules which they con-
sider to best meet their needs.
Let it also not be forgotten that, as Eric Robine, Chief of the Legal
Service of GEC Alsthom recently stated,2 "if the parties have resort to
arbitration, it is because they have not been able to reach a friendly settle-
ment. The only thing that the arbitrators must do then, is to decide in
law.... A request for arbitration, and this should be obvious, is not a
request for conciliation."
In short, an arbitrator must have what Professor Pierre Lalive has
called' the "ability to judge," which implies a capacity to evaluate con-
flicting statements of law and/or fact and to have the wisdom, courage
and expertise to reach and render a decision in such a way that the par-
ties - and perhaps most of all the losing party - will recognize both the
essential fairness of the procedure and the futility of efforts to overturn
the award or oppose its execution. Only when this occurs, as happens in
about ninety percent of ICC cases, can arbitration truly achieve the rela-
tive economy, celerity and finality sought by the business community.
With this understanding of what the "good" arbitration consists of,
we return to the question of how best to select the "good" arbitrator only
to realize that the observation with which this paper began, repeated so
often as to become a cich6, in fact offers no practical guidance to the
parties and the arbitral institutions facing the daunting task of selecting,
and sometimes removing, arbitrators.
Inspired by Lord Justice Michael Mustill's statement that the ICC
Court's "recent concentration on practical issues, rather than debates on
overworked theoretical questions, has created a climate in which the seri-
ous problems which face international commercial arbitration today can
2 Le choix des Arbitres, REVUE DE L'ARB1TRAGE 330 (1990).

3 P. Lalive, Remarks at the CCPIT-ICC International Commercial Arbitration Seminar (Bei-
jing, June 1988).

The InternationalArbitrator
12:1(1991)
be faced in a truly ecumenical intellectual spirit,"4 this paper will en-

deavor to provide concrete, practical information by drawing upon the
experience of the ICC International Court of Arbitration.
During the past twelve years, some 3500 arbitration cases have been
submitted to the ICC Court5 (itself composed of experienced lawyers of
some forty-seven nationalities) involving many thousands of parties from
over 100 countries around the world. From the thousands of arbitrators
of over fifty nationalities proposed by parties and confirmed (or, more
rarely, not confirmed) by the ICC Court, from the thousands of sole arbi-
trators or chairpersons of Arbitral Tribunals appointed by the ICC
Court, and from the hundred or so challenges of arbitrators acted upon
by the ICC Court, certain pragmatic observations may be distilled even if
eternal verities are harder to find.
II. THE QUALIFCATIONS OF THE "IDEAL" ARBITRATOR

One "eternal verity" is, however, immediately apparent. Just as
there does not exist an ideal arbitration clause suitable for every con-
tract,6 neither does there exist any arbitrator suitable for every
arbitration.
While perhaps also true for purely domestic arbitrations, it is espe-
cially evident that the "perfect" arbitrator does not exist in the field of
international commercial arbitration given the multiplicity of changing
elements (nationalities, languages, situs, applicable law(s), etc.).
A. Selection of Arbitrators by a Party: Some Factors

to Take into Account
L How Many ArbitratorsShould There Be?
This question arises because in their arbitral clause the parties may,
under the rules of many arbitration systems including the ICC, either
decide the point or leave it open (as does the standard ICC Clause). In
1990, 58.3% of the cases initiated before the ICC Court had three-mem-
ber arbitral tribunals. Regarding the stage at which the decision was
made to have an arbitral tribunal consisting of three persons, in 50% of
the cases the decision was contained in the arbitral clause itself, in 30%
of the cases there was a subsequent agreement to this effect by the parties,
4 Mustill, Arbitration: History and Background, 6 J. INT'L ARB. 48 (1989).

5 Case 7000 was submitted to the ICC in late 1990. It took 55 years for the first 3500 cases to be
submitted to the ICC, this simple statistic being one evidence of the growing importance of interna-
tional commercial arbitration in a world of expanding international trade and investment.
6 Bond, How to Draft an Arbitration Clause (Revisited), 1 ICC INTERNATIONAL COURT OF
ARBrrATION BULLETIN 14 (1990).

and in the remaining 20% of the cases the decision was made by the ICC
Court.
Of the 41.7% of the cases in which a sole arbitrator was decided
upon, in only 10% of these cases was the decision contained in the arbi-
tral clause. The parties subsequently agreed to have a sole arbitrator in
44.7% of the cases and the ICC Court itself made this decision in the
remaining 45.6% of the cases.
Obviously, the choice of three arbitrators generally permits each
party to participate in the constitution of the arbitral tribunal by propos-
ing a co-arbitrator, with all of the attendant advantages and disadvan-
tages. The general consensus seems to be that in cases involving complex
questions of law or fact, the deliberations of a panel of arbitrators help
assure a more thorough analysis of the issues.
In contrast, the ICC experience indicates that where there is a sole
arbitrator, he or she will be selected by a third-party, most often the
institution administering the arbitration. Thus, in only 14% of the 1990
cases with a sole arbitrator did the parties themselves reach agreement on
the actual person who should be named. It can, therefore, readily be seen
that in exchange for the economy and rapidity of a sole arbitrator as
compared to a larger arbitral tribunal, the parties in most instances relin-
quish the opportunity to have any role whatsoever in the selection of the
arbitral tribunal. This may help explain why in the past many parties
from Eastern Europe and developing countries have been quite insistent
that there be three arbitrators, even when this is counterproductive from
the point of view of cost. (The explanation for this is given below.)
2. When Should the Selection of an ArbitratorBe Made?

Occasionally a desire for absolute certainty leads parties to insert in
the arbitration clause contained in their contract the identities of the ar-
bitrator(s). The problems apparent in this approach are obvious: when a
dispute actually arises sometime thereafter, the person(s) named in the
clause may no longer be independent, available, trusted, or even alive.
Of course, there may still be a few countries in the world where
legislation or jurisprudence requires that the arbitrators be named in the
arbitral clause. For example, this appears to be the case for domestic
Egyptian arbitrations. Some Egyptian defendants in certain arbitrations
have argued that the relevant provision of the civil code is also applicable
in international arbitrations. This is, apparently, a minority view. The
Egyptian Cour de Cassation already decided7 that the provision did not
7 Judgment of Apr. 26, 1982, Decision No. 714 of the judicial year 47.

12:1(1991)
apply in a case where the situs of the arbitration was outside of Egypt.
The Court of Appeal of Cairo recently decided along the same lines in a
case where the situs of the international arbitration was within Egypt.'
However, in general it is certainly preferable to avoid naming the arbitral
tribunal in the arbitration clause. Indeed, during the six years during
which the author has been with the ICC, such a clause has appeared but
once or twice.
3. ProfessionalQualifications
In certain countries, especially those of the common law, a debate
over professional qualifications can degenerate into something akin to a
gladiator contest. Those with experience in "maritime" or "commodity"
arbitration, for example, will point out that non-lawyers can and do han-
dle such arbitrations to the general satisfaction of all concerned.
However, in international commercial arbitrations, where awards
must generally set out the reasoning of the arbitral tribunal; where the
validity and enforceability of awards, if challenged, are decided upon by
judges; and where questions of jurisdiction, applicable law and statutory
interpretation must often (and increasingly) be decided upon by the arbi-
tral tribunal, legal training is a minimum requirement and legal practice
is preferable.
In ICC arbitrations the latter position, with some notable excep-
tions, has essentially carried the day in that at least 95% of the arbitra-
tors proposed by the parties themselves are lawyers, professors of law, in-
house counsel, or other legal professionals.
The author can recall one case where the arbitration clause called
for a three-person tribunal to be composed of "commercial-men" and
each party ended up proposing a lawyer.
4. Nationality
Except for a decreasing number of arbitral institutions with a closed
list of arbitrators who have the nationality of the country where the insti-
tution is located, parties are generally free to choose an arbitrator of any
nationality whatsoever. The ICC does not even have a "list" of
arbitrators.9
8 Hohafazat of Port Said, Suez Canal Authority v. Polaco Holding S.A., Casino Palace Port
Said SAE, International Chamber of Commerce.
9 On occasion one sees a C.V. or other document where a person denominates him or herself as
an "ICC Arbitrator". No such qualification in fact exists, as a French Court pointed out several
years ago. Tribunal de Grande Instance, Paris (ord. r6f.), January 15, 1988, Revue de l'Arbitrage
316, 1988. At most, a person can say that he or she has served as an arbitrator in one or more ICC
arbitrations.

The question thus arises whether the co-arbitrator to be proposed

should have the nationality of the proposing party, of the country which
is the situs of the arbitration, or of the country the law of which is
applicable.
While no statistics are yet available, the general impression of the
author is that parties from developing countries and Eastern Europe
have traditionally placed considerable importance on proposing a co-
arbitrator of their own nationality while Western parties place more pri-
ority on proposing a co-arbitrator with a particular expertise in the appli-
cable national law, the field of law concerned (construction, high-tech,
etc.) or a general expertise in arbitration regardless of nationality. Of
course, the arbitrator proposed by the non-Western party may be of
equal or greater expertise than his or her Western counterpart. The point
is simply that the non-Western party will make greater efforts to find a
person with the requisite expertise and the same nationality as that party.
The main reason for this differing approach can well be imagined:
the non-Western party often considers that an arbitrator with an intimate
knowledge of the legal and economic context within which the party op-
erates and coming from the same social, cultural and linguistic milieu as
that party best ensures that the party's position on the issues before the
arbitral tribunal is well understood by all of the arbitrators. This would
be an entirely legitimate objective, fully consistent with the requirement
for independence and will be further discussed below. Interestingly, the
former "socialist" countries of Central and Eastern Europe now appear
to be increasingly willing to accept a sole arbitrator as opposed to three
(see point A (1) above) and this trend may eventually translate into a
lessening of the traditional preference to appoint a fellow national as a
co-arbitrator.
5. Age and Health

Law is one of the blessed professions in which age is considered to
impart wisdom. Nonetheless, where an arbitration will obviously be
complex and lengthy, a party may wish to try to determine whether the
health of a potential co-arbitrator will allow him or her to function effi-
ciently under conditions of stress, travel, etc.
6. Sex
Very few arbitrators have been women, but this is no doubt a reflec-
tion of what has been the past situation in the legal profession, a situation
which is rapidly changing. Apart from a very few special cases (in Saudi
Arabia, for example, an arbitrator apparently must be male, Muslim and

12:1(1991)
of good character, although these requirements appear not to be applica-

ble to arbitrations outside of Saudi Arabia unless the parties have agreed
that the procedural rules of Saudi Arabia govern the arbitration), there is
no evident reason why any distinction should be made between qualified
arbitrators on the basis of gender.
Z Linguistic Ability
A formal requirement that a co-arbitrator have particular linguistic
skills is exceedingly rare. However, where the co-arbitrator does not
speak the agreed language of the arbitration, the proposing party may
well end up bearing the costs of translation and/or interpretation. Per-
haps more importantly, the co-arbitrator who can converse with the
other members of the tribunal in a common language may establish
greater rapport with them, a psychological factor which should not be
underestimated.
8. Availability
The availability of an arbitrator is an essential concern that is often
overlooked or ignored by the parties. Many claimants who wish their
case to proceed as rapidly as possible will make strenuous efforts to se-
cure a "top" arbitrator yet fail to inquire whether he or she has the time
available to permit the case to be brought to a rapid conclusion. Too
often we have heard of an arbitral tribunal of three highly sought-after
arbitrators who are simply unable to find an available date for a hearing
during the next six months or before the next university vacation period.
9. Independence
Under the rules of many arbitral institutions, including those of the
ICC, an arbitrator must be "independent" of both of the parties. The
party which proposes a non-independent arbitrator not only risks having
its choice refused confirmation, or challenged and removed, but also runs
the risk that even if not removed the non-independent arbitrator will lack
credibility with the other co-arbitrator or chairperson of the arbitral
tribunal.
The author is firmly convinced that the wisest choice for any party
is a co-arbitrator who is sympathetic to the proposing party and who will
endeavor to see that this party's position is clearly understood by the
arbitral tribunal, while at the same time maintaining the required dis-
tance from the proposing party (meaning no discussion of the merits of
the case prior to appointment and no unilateral contacts with the party
subsequent to appointment unless authorized by the arbitral tribunal)

and an absolute and obvious freedom of mind to find against that party
should the facts and the law lead to that conclusion.
B. Selection of Arbitrators by the ICC Court: The Factors to be

Taken into Account
While every arbitral institution may have its own rules and proce-
dures, each institution which wishes to have more than a fleeting exist-
ence must also endeavor to meet the legitimate expectations of the parties
which select it over the national courts or another arbitral institution.
The arbitral institutions therefore have a vital interest in protecting their
integrity, i.e. their ability to carry out the responsibilities incumbent
upon them by virtue of their rules. In addition, the best of the arbitral
institutions also recognize a general mission not tied to any specific arbi-
tration case, namely to encourage and promote international arbitration
as a means of dispute resolution with advantages not elsewhere available
(relative speed and economy, independence and neutrality, confidential-
ity, etc.) and which promotes the general good by facilitating the interna-
tional flow of trade and investment.
The two interests coincide with but are not subsumed by the nar-
rower interests of the parties. The arbitral institutions are therefore not
only conscious of their responsibility to satisfy as best they can the legiti-
mate expectations of the parties, but that failure to do so places in jeop-
ardy their own reputation and perhaps that of international arbitration as
a means of dispute resolution. Under these circumstances, it can safely
be said that the ICC Court is keenly aware of the importance that must
be attached to the selection of arbitrators in every one of its cases.
Indeed, the hope of the ICC Court in each case is that it will not
have to undertake this task at all because the parties will have done it.
Consistent with a philosophy that endeavors to combine the safety-net
and guarantees of supervised arbitration along with a high degree of
party autonomy, the ICC Rules provide that the parties may not only
decide the number of arbitrators, but also that the parties may nominate
the sole arbitrator (Art. 2 (3)) and the co-arbitrators may nominate the
third arbitrator (Art. 2 (4)). ICC practice obviously also permits the par-
ties themselves to nominate the third arbitrator, i.e. the Chairperson of
the Arbitral Tribunal. The English practice whereby an "umpire" may
be appointed is not authorized by the ICC Rules.
Understandably, however, the ICC Court is often called upon to
carry out the duty of selecting the sole arbitrator or chairperson. Thus,
of the sole arbitrators appointed in 1990, as has already been mentioned,
only 14% were agreed upon by the parties themselves. Of the Chairper-

12:1(1991)
sons appointed, last year some 30% were named by either the parties
themselves or the co-arbitrators. Thus, some 70% of the Chairpersons
were appointed by the ICC, almost always through proposals made by
the various ICC National Committees around the world. Much more
rarely, the arbitration clause calls for direct appointment by, for example,
the President of the ICC or the Chairperson of the ICC Court.
When it is the ICC Court in lieu of the parties that must select a sole
arbitrator or chairperson of a National Committee, what qualifications
are sought by it and the relevant National Committee of the ICC?
Obviously, the general considerations set out above concerning the
number of arbitrators, age and health, gender, linguistic ability, availabil-
ity, and professional qualifications are also relevant for the ICC Court.
However, the considerations concerning nationality and independence
comprise elements which go beyond what the parties take into account
when selecting a co-arbitrator.
L Objective Neutrality
Objective neutrality is a formal requirement of the ICC Rules. Arti-
cle 2(6) states that "The sole arbitrator or the chair[person] of the arbi-
tral tribunal shall be chosen from a country other than those of which the
parties are nationals."
This requirement (which can be and occasionally is waived by the
agreement of both parties) is designed to help instill in the parties the
conviction that the arbitral tribunal is neutral and independent. It is this
conviction, the ICC believes, that facilitates the decision of so many los-
ing parties to honor voluntarily ICC arbitral awards.
2. Subjective Neutrality
Going from the objective to the subjective, the best international ar-
bitrators must have an open-mindness, a cultural openess and a lack of
prejudice, as well as be "internationally minded." 1 Too often one hears
complaints from parties, often from Eastern Europe or a developing
country, about an arbitrator, no doubt a competent jurist, who is per-
ceived as displaying a combination of arrogance, superiority, contempt
and impatience with the party in question.
Even if those perceptions are inaccurate, or a function of hyper-sen-
sitivity, the superior arbitrators will never lose sight of the importance of
being perceived as independent and impartial as well as actually being so
and make significant efforts to avoid conveying negative impressions.
10 Lalive, supra note 3.

3. ManagerialAbility
Today's arbitrations are sufficiently complex and hard-fought to re-
quire sole arbitrators and chairpersons who can "manage" the arbitra-
tion in every sense of the term. 1 They must be able to inspire and lead
the co-arbitrators, tread the very thin line between laxity and undue de-
lay on the one hand and dictatorial, unreasonable demands on the other.
They must be able to sort, store, and retrieve what may be mountains of
evidence and other information. The brilliant student of law who knows
not the world beyond his or her doctoral thesis has no place here.
4. Competence
An able lawyer of a neutral nationality who antagonizes no one and
is completely open-minded may nonetheless not be fit to be a sole arbitra-
tor or chairperson should he or she not be able to analyze, understand
and appreciate the various different national legal systems and the rea-
sons for the differing assumptions, presumptions, expectations and de-
mands of the parties. Such "legal internationalism" is the professional
complement to the "subjective neutrality" described above and the arbi-
trator with this quality will fully understand that one of the reasons why
the parties chose arbitration was precisely to avoid having the rigors of
the procedural rules of any one legal system applied as though they were
before the national courts of the arbitrator's country.
The description could go on, but by now the attentive readers will
realize that the "perfect" arbitrator does not exist on this side of heaven.
It can be hoped, though, that the above may serve as a check-list when-
ever the reader has the very heavy responsibility of selecting a co-arbitra-
tor, sole arbitrator or chairperson.
III. INDEPENDENCE OF THE ARBITRATORS:
CONFIRMATION AND CHALLENGE
Of the various qualities to look for when selecting an arbitrator, few

constitute requirements in the strict sense of the term (i.e. conditions
which if not met would lead the ICC Court to refuse to confirm or ap-
point a prospective arbitrator or even to remove a sitting arbitrator).
"Independence" is one of the few ICC mandated requirements and
continues to be the subject of tremendous interest in both legal literature
and actual practice. The ICC Rules and practice in this area will be out-
lined below.
We first return to the underlying presumption that parties would
11 Wetter, The Conduct of the Arbitration, 2 J.INT'L ARB. 7 (1985).

12:1(1991)
never agree to arbitration in the first place unless they had confidence
that the arbitration system would take every reasonable measure to en-
sure the independence and neutrality of the arbitral tribunal. The word
"reasonable" is stressed for reasons that will be made apparent in the last
paragraphs of this paper. This has long been the position of the ICC and
it appears that the international arbitration community is swinging deci-
sively to the view that all arbitrators, including those proposed by the
parties, should be neutral and independent. 12 (The AAA still maintains
certain reservations on this matter. 3 ) Thus, an unstated corollary to the
dictum with which this paper opened is that "an arbitrator must not only
be good, but should appear to be good."
The ICC Rules and practice relative to the constitution of the arbi-
tral tribunal are precisely designed to produce an arbitral tribunal which
is "good" both in reality and in the eyes of the parties. This task is espe-
cially challenging in ICC arbitration because of the extreme diversity of
nationalities, legal systems, and cultures involved in ICC arbitrations.
During 1990, for example, the 365 requests for arbitration received (the
highest number in the history of the ICC) involved parties from eighty-
six different countries and the ICC Court confirmed or appointed arbitra-
tors of forty-nine different nationalities.
A. ICC Rules and Procedures Relative to Independence

In an ICC arbitration, parties may propose a co-arbitrator, sole arbi-
trator or chairperson of any nationality or profession. However, "[e]very
arbitrator appointed or confirmed by the Court must be and remain in-
dependent of the parties involved in the arbitration" (ICC Rules, Article
(7) paragraph 1).
ICC Rules and practice provide for a number of overlapping proce-
dures aimed at advising the parties and prospective arbitrators of the re-
quirement of independence and enabling the Secretariat and the
International Court of Arbitration to fulfill their responsibilities with re-
spect to this requirement. Underlying these rules and practices are three
fundamental principles.
First, no one may become an arbitrator without being either con-
firmed or appointed by the International Court of Arbitration. In gen-
eral, the ICC Rules utilize the term "confirms" when the ICC Court acts
upon an arbitrator nominated by one or more parties and the term "ap-
12 Werner, Editorial,7 J. INT'L ARB. 5 (1990).

13 R. Coulson, AN AMERICAN CRITIQUE OF THE IBA's ETHICS FOR INTERNATIONAL ARBI-
TRATION 103 (1987).

points" when the ICC Court acts in regard to an arbitrator not nomi-
nated by a party.
Second, regarding the requirement of independence, no distinction is
made in the rules between persons nominated by a party and those
appointed by the Court. All must be independent.
Third, the parties are automatically notified of any matter disclosed
by an arbitrator relative to his or her independence so that the party may
comment prior to the Court's decision. Facts so notified may not, after a
set period of time, become the basis for a challenge. (Art. 2 (8)).
1. "Independence" and "Impartiality"

What are the standards of independence applied by the Court?
What are the responsibilities of the arbitrators as regards their duty of
disclosure?
The term "independence" was explicitly added to the ICC Rules as
regards co-arbitrators in 1975, and only in the 1980 Internal Rules of the
Court was "independence" explicitly required for sole arbitrators and
chairpersons.
Just before completion of the review that resulted in the amended
ICC Rules in force as of January 1, 1988, the suggestion was made to
include the concept of "impartiality" in the rules as a requirement for
ICC arbitrators. This proposal was not accepted for several reasons.
First, the suggestion was made late in the revision process and to fully
examine the meaning and implications of the proposal would have signif-
icantly delayed adoption of the amended rules. Second, discussion fo-
cused on the more "objective" nature of the concept of "independence"
as compared to the "subjective" nature of the concept of "impartiality."
Third, no one could offer a satisfactory definition of "impartiality."
However, partially in response to this debate, Article 2, paragraph 8, of
the ICC Rules now explicitly provides what the Court had always under-
stood, namely that an arbitrator could be challenged "whether for an
alleged lack of independence or otherwise" (emphasis added).
Thus, the absence of a mention of "impartiality" in the ICC Rules
must not be understood as an endorsement of the idea that an arbitrator
has the right to be biased so long as he or she is independent. Nor must
the absence be understood as implying that the ICC considers that arbi-
trators nominated by a party are inherently incapable of being "impar-
tial" (however that concept is defined).

12:1(1991)
2.The Arbitrator'sResponsibility of DisclosurePrior

to Confirmation/Appointment
If the concept of arbitrator independence is to be a reality upon
which the confidence of the parties may legitimately be based rather than
a mere theory to be greeted with cynicism, the parties must demand
more than blind faith. Most especially, a meaningful procedure must
exist whereby prospective arbitrators disclose relevant information to the
parties for assessing the independence of the prospective arbitrator
concerned.
Article 2 (7) paragraph 2 of the ICC Rules provides that "Before
appointment or confirmation by the Court, a prospective arbitrator shall
disclose in writing to the Secretary General of the Court any facts or
circumstances which might be of such a nature as to call into question
the arbitrator's independence in the eyes of the parties."
Regarding the phrase "in the eyes of the parties," it must not be
read as limitative (i.e. as encouraging the potential arbitrator to say,
"Well, I would consider that fact X is pertinent to an assessment of my
independence, but I doubt the parties would do so and therefore I won't
disclose it"). Rather, the phrase is intended to encourage the arbitrator
to stretch his or her mind, to disclose facts that he or she might not
consider as "calling into question" his or her independence, but which
might do so "in the eyes of the parties." In an ICC arbitration, the par-
ties are generally of different nationalities, and therefore at least one
party is of a nationality other than that of the prospective arbitrator. In
the case of a sole arbitrator or chairperson, usually neither party is of the
same nationality. Accordingly, it is especially important that a prospec-
tive arbitrator reach beyond a purely national and domestic perspective
and make a special effort to consider the facts and circumstances relative
to his or her independence as the parties might view and construe them.
This is also desirable because, pursuant to a provision added to the
ICC Rules in 1988, a party must raise a challenge within thirty days
from the date when the party is informed of the facts on which the chal-
lenge is to be based. Thus, it is preferable to disclose as early as possible
any matters which might lead a party to question an arbitrator's indepen-
dence in order to minimize the likelihood of a challenge at a later stage of
the arbitral procedure when the consequences are most costly in terms of
both time and money, especially should the challenge be sustained.
3. The ICC "'Arbitrator'sStatement of Independence"

To further the objectives just described, in late 1989 the Bureau of
the ICC Court (consisting of the Chairman and seven Vice-Chairmen of

the Court from, respectively, France, Egypt, India, Japan, Mexico, Swe-
den, Switzerland and the United States) approved a revised text of the
"Arbitrator's Statement of Independence" which every ICC arbitrator
14
must fill out.
One element of the new form has aroused some controversy among
several arbitrators in Switzerland and Belgium, namely that past or pres-
ent relationships with the counsel of the parties as well as with the parties
themselves should be mentioned if the relationship "might be of such a
nature as to call into question [the arbitrator's] independence in the eyes
of any of the parties."' 5
One expressed reason for concern is that in a country such as Swit-
zerland or Belgium where the legal community is relatively small and
many jurists know or have professional relations with each other, the
addition of the word "counsel" to the Statement of Independence can
unfairly disqualify well-known attorneys in these countries from ever be-
coming arbitrators.
A second and broader concern is premised on the proposition that in
general lawyer-to-arbitrator relationships should be considered as differ-
ent than party-to-arbitrator relations in that when they are routine (i.e.
not close or lasting or involving the earning of significant professional
fees in the context of these relations) they are of such a nature as not to
warrant disclosure.
The author believes that for a number of reasons such concerns are
unwarranted and/or miss the essential point.
First, there must not be a misunderstanding about the objectives and
consequences of the Statement of Independence. The fact of disclosure
itself is in no way conclusive as to the independence or lack thereof of the
prospective arbitrator. A mention on the Statement of a particular rela-
tionship does not mean that the arbitrator concerned automatically lacks
independence and cannot be confirmed or appointed. It simply means
that while confirming an independent status, the prospective arbitrator
has set down points which might, in the eyes of a party, call into question
his or her independence. The disclosure thus serves to provide the parties
with an opportunity to raise, sooner rather than later, any concerns they
might have regarding the prospective arbitrator's independence.
Second, the world of arbitration is growing in both scope and so-
phistication. Of those Statements of Independence where the arbitrator
has called certain facts or circumstances to the attention of the parties, in
14 See Appendix I.
15 Hirsch, Les arbitrespeuvent-ils connaire les avocats des parties?, I ASA BULLETIN 7-11
(1990).

12:1(1991)
over 95% of the cases the parties raise no objections to the arbitrator
concerned.
For example, in one recent case a proposed co-arbitrator filed a
Statement which contained the following:
I know well two senior members of the law firm representing the claimants:
Dr. X (a fellow examiner at the Law Faculty at the National University)
and an Englishman who has now retired out of Singapore. But I have yet
to meet Mr. Y who has been handling this case; I have only spoken to him
on the phone a few times.
I also know well a senior lawyer (Mr. Z) representing the respondent.
Both Singapore and Malaysia are small countries, and it is common for
judges and senior lawyers to know each other - some professionally, some
socially and some both professionally and socially.
Neither party raised an objection and the co-arbitrator was confirmed.
Such examples are not unusual and illustrate the utility of the re-
vised form of the Statement of Independence, namely that information is
brought out as early as possible in the arbitration process and may not be
used by a party as a basis for challenging the arbitrator concerned except
within the brief period provided for in the Rules (Art. 2 (8)).
The third reason why a proposed arbitrator need not be overly con-
cerned about automatic disqualification should they disclose a relation-
ship with a counsel for one of the parties is that even should a party
object to confirmation on the basis of the information disclosed, the ICC
Court makes the final decision regarding confirmation. In doing so, it
will obviously evaluate carefully the information disclosed and the objec-
tions of the party. Should the objections be frivolous or in bad faith, the
Court can and will reject them.
The fourth reason why the concerns expressed are not convincing is
that should there indeed be a relationship between an arbitrator and a
counsel which creates a situation where independence is not only per-
ceived as being lacking but actually is lacking, it would serve neither the
interests of the parties nor of the legal community concerned to refuse
disclosure of such a relationship on the grounds that a Statement of Inde-
pendence contained no mention of relationships with counsel for the par-
ties as a factor to be taken into account by the prospective arbitrators.
Openness in this regard can only help instill a renewed or confirmed con-
fidence in the parties that, notwithstanding the relatively small legal com-
munity of the country concerned, its arbitrators are aware of the possible
apprehensions of parties from beyond that country and are ready to meet
those apprehensions with full and frank disclosure. This is but another
aspect of the "internationally minded" qualification which is so impor-
tant for arbitrators involved in international commercial arbitration.

Finally, the ICC has no desire to deprive itself of qualified arbitra-

tors for frivolous reasons. Should the new Statement of Independence
ever lead to that result, the Statement can and will be modified in an
appropriate manner.
IV. THE EXPERIENCE OF THE ICC

A. Facts and Figures
What standards does the ICC apply when confirming or appointing
independent arbitrators? Given the different procedures and conse-
quences involved, are the standards applied by the Court the same when
it decides whether or not to confirm an arbitrator at the commencement
of an arbitration, as when it decides whether or not to accept a challenge
of an arbitrator on the basis of an alleged lack of independence after the
arbitral tribunal has been constitued and possibly has proceeded far
along in the matter? Has a "case law" developed from decisions by the
ICC Court? The following discussion draws upon a 1989 study bearing
16
on these questions.
1. The number of instances in which a party raised a point related to

the independence of a prospective arbitratoris rare.
Only in regard to approximately 3% of the arbitrators were matters
related to independence raised. Of these, the majority were either not
confirmed or withdrew from consideration. Of the remaining persons
who were confirmed or appointed, only one had been subsequently chal-
lenged during the seven years prior to 1989 and the Court rejected the
challenge.
2. More prospective arbitratorshave not been confirmed/appointedon

the basis of independence-relatedconsiderationsthan have
sitting arbitratorsbeen removed due to a challenge
based on an alleged lack of
independence.
Of the 3% of the prospective arbitrators in regard to whom matters
relating to independence were raised, about three-quarters (72%) were
not confirmed or appointed by the Court either because they withdrew
voluntarily or, in most cases, because the Court did not confirm them.
This figure of 72% can be compared to the 10.5% of challenges against
sitting arbitrators accepted over the past seven years. (Only seven of sev-
16 For a lengthier treatment of this subject see Bond, The Selection of ICCArbitratorsand the
Requirement of Independence, 4 Arb. Int'l 300 (1988).

12:1(1991)
enty-five challenges were accepted by the ICC Court during the past
seven years. However, it should be noted that in the year and a half prior
to 1990, while only one challenge out of sixteen was accepted, in five of
the sixteen cases the challenged arbitrator resigned before the ICC Court
could act.)
Does this mean that different, more strict standards are applied by
the Court when deciding upon confirmation/appointment as opposed to
when deciding upon a challenge? The response is of necessity a nuanced
one, for to take the raw data at face value could lead to erroneous
conclusions.
First, it is quite likely that the Court's refusals to confirm/appoint
prospective arbitrators result in weeding out the more obvious, easier
cases of non-independence, leaving the more difficult or dubious cases to
the challenge procedure. Second, parties have somewhat less incentive to
request the non-confirmation of a prospective arbitrator merely as a de-
laying tactic at such an early stage before they have a sense of how the
arbitral tribunal is leaning. Thus, requests for non-confirmation most
often appear to reflect deeply-felt concerns rather than procedural ploys
or delaying tactics.
It can also be imagined that the members of the International Court
of Arbitration are extremely conscious of the desirability of commencing
each arbitration with the greatest possible degree of party confidence in
the arbitral tribunal, and the Court may accord more weight to party
objections which are obviously not frivolous or in bad faith than would
be the case if the same objections were raised in the form of a challenge
during the course of an arbitration.
Likewise, in the face of a serious concern raised by a party which
might not present a conclusive case of lack of independence on behalf of
a prospective arbitrator, the ICC Court, for the reasons stated above, is
no doubt less reluctant to have the prospective arbitrator voluntarily
withdrawn prior to confirmation than the Court would be to have a chal-
lenged arbitrator voluntarily resign in the absence of facts that estab-
lished a strong likelihood of lack of independence. (Indeed, the ICC
Rules now require that the Court explicitly accept an arbitrator's ten-
dered resignation.)
It is well known that there is a difference in the ICC procedures for
deciding upon confirmations/appointments and upon challenges. The
former are handled by a Committee of the Court while challenges, by
virtue of an explicit provision in the Internal Rules, are considered only
in the Plenary. (Of course, should there not be unanimity in the Com-
mittee the matter is sent to the Plenary. This occurs very rarely.) This

distinction is probably in part due to a recognition that the consequences

for the challenged arbitrator and for the parties in terms of time and cost
can be far greater if a challenge is upheld than if a prospective arbitrator
is not confirmed/appointed.
In sum, the standards of what constitutes a lack of independence do
not differ according to the point at which an allegation of a lack of inde-
pendence is raised; rather, at the confirmation/appointment stage, Court
members are more ready to take into consideration not only the relative
seriousness of the facts presented regarding the independence of a pro-
posed co-arbitrator, but also the desirability of commencing an arbitra-
tion on as solid a footing as possible and of preventing challenges later in
the arbitration when the consequences to the parties in terms of lost time
and money could be of far greater magnitude.
B. Grounds for Non-Confirmation or Appointment

As with challenges, the Court does not communicate its rationale
regarding appointments or confirmations. This is consistent with the ad-
ministrative, as opposed to jurisdictional, nature of the Court's role.
Of
course, in virtually every instance the parties and the prospective arbitra-
tor concerned are fully aware of the facts relating to independence which
have been placed before the Court. These facts are set out either in the
Statement of Independence of the prospective arbitrator or in the request
for non-confirmation of a party, and each of these documents would have
been notified by the Secretariat to all concerned for comment within a
fixed time-period. The ICC Rules do not provide for an exchange of any
comments subsequently submitted by the parties or other arbitrators.
Regarding the source of the Court's standards in deciding upon
matters of independence, it has correctly been observed that the Court
does not act as an institutional appendage of any national court system.
At the same time the Court does bear in mind the general mandate of
Article 26 of the ICC Rules that the Court of Arbitration shall act in the
spirit of the rules and shall make every effort to make sure that the award
is enforceable at law. As stated above, the Court members certainly have
in mind the desirability of promoting to the greatest extent possible the
confidence of the parties in the arbitral tribunal, although such an objec-
tive must be balanced against the objective of avoiding unwarranted de-
lays and discouraging dilatory manoeuvres.
Likewise, the ICC Court takes into account in assessing each case
whether the particular facts demonstrate a close, substantial, recent and
proven relationship between a party and a prospective arbitrator. Great
weight is also accorded to the views of the parties. Where, in the face of

12:1(1991)
a Statement of Independence with reservations, the parties raise no objec-

tions to the prospective arbitrator, the Court almost always confirms or
appoints the arbitrator. (Of course in every one of these instances the
prospective arbitrator will have stated that the disclosed facts do not af-
fect his or her independence and that he or she is, in fact, independent.)
Further, in almost each instance where a party has objected to a confir-
mation of a prospective co-arbitrator based on reservations in the State-
ment of Independence, the Court has refused confirmation. Thus, the
parties' views are not necessarily decisive, but this author's assessment is
that the Court is reluctant to be "more royalist than the King" by refus-
ing confirmation of a proposed arbitrator when the non-proposing party
has no objections after having an opportunity to weigh the relevant infor-
mation. In addition, as noted, the Court would be reluctant to confirm
someone over objections which are grounded on non-frivolous concerns
and do not appear to be made for solely dilatory purposes.
Turning from the general to the more concrete, the most common
basis for refusal by the ICC Court to confirm or appoint a prospective
arbitrator is a past or present direct professional link between the arbitra-
tor and a party, or between a business associate of the arbitrator and a
party or an entity connected to a party. Typical in this regard are pro-
spective arbitrators who as lawyers had recently represented a party in
other matters or whose partners had done so, and persons having acted
in the past as advisors for a party.
It is essential to take note, however, of the many nuances present in
decisions where such links were alleged and/or disclosed. For example,
in one case a prospective arbitrator submitted a Statement of Indepen-
dence with the reservation that another partner in his 800 lawyer firm
had acted for a party in an unrelated matter about which the prospective
arbitrator knew nothing. The other party to the arbitration did not re-
quest non-confirmation and the Court confirmed the arbitrator. The
Court has also confirmed as co-arbitrator, in the absence of objection
from the other party, a nominee who had provided legal services to a
corporation one of whose officers was also an officer of the party propos-
ing the nominee.
In another case, even without an objection raised by the other party,
the Court refused to confirm a nominee whose law firm was concurrently
acting for the party which had proposed the nominee.
Nominees have been refused confirmation in instances where the
nominee had professional ties to a party's counsel. (In one case a pro-
spective arbitrator who was a Q.C. had been retained by defendant's

counsel to plead a matter unrelated to the arbitration and the opposing

party objected.)
The ICC Court has not considered that a nominee's having the same
nationality as a party constitutes a lack of independence. This point gen-
erally, although not always, arises in connection with nominees coming
from Eastern Europe when proposed by a party of the same nationality.
The ICC Court bases its decisions in each case on the concrete facts
regarding the relationship of the prospective arbitrator and the parties
involved and not on sweeping generalizations about the legal, political or
social conditions in particular countries.
C. Challenges
Much of what has just been said in regard to confirmation and ap-
pointment of arbitrators also pertains to challenges. The standard of
what constitutes independence is the same. However, for reasons set out
above, the Court will accept a challenge only when the party introducing
the challenge has met the burden of demonstrating that the arbitrator has
failed to comply with the duty to be independent. 7 Over the past seven
years only seven challenges have actually been accepted, generally be-
cause of a professional relationship between the arbitrator and the party,
or the Counsel of a party. In a few instances the removal of the arbitrator
was because of errors in conduct such as where an arbitrator insisted on
deciding a case on documents alone although one party had requested a
hearing. (See Art. 14 (1) of the ICC Rules.)
The ICC Rules relative to challenges, in effect since January 1, 1988,
codify the concept that challenges must be introduced in a timely manner
in order to be receivable. Together with the new Statement of Indepen-
dence which is intended to bring into the light as early as possible most of
the likely grounds for challenge, the ICC Court has witnessed a slight
decline in the number of challenges over the past two years, reversing
what had been an upward trend.
V. CONCLUSIONS
1. Even if a satisfactory definition of the concept of independence were

possible, it would be of very limited use to the ICC Court in deciding
specific instances of whether or not to confirm or appoint prospective
arbitrators.
17 This is not a formal definition of a strict legal standard. Clearly, more than mere allegations
are required. However, an argument which convincingly raises substantial doubts about the arbitra-
tor's independence might well suffice.

12:1(1991)
For example, the most obvious fact of a financial interest in a party

only offers a general guideline. After all, ownership of shares worth $100
in a company cannot be equated with ownership of shares worth $1 mil-
lion. And where would shares worth $10,000 fall on the scale? Would it
depend on the relative wealth of the prospective arbitrator? Each case
requires an appreciation of the relevant facts and no code of ethics, how-
ever, detailed, can substitute for such an appreciation.
2. The decisions of the ICC Court on questions of independence should
not be used to establish a "case law" on the subject.
Every decision takes into account such unique factors as the specific
information available, who provided it and when, the views of the par-
ties, as well as the balance to be drawn among the goals of trying to
ensure the confidence of the parties in the procedure, the desire to avoid
unwarranted delay and the need to ensure insofar as possible the enforce-
ability of the award.
3. The present ICC system of considering matters related to the inde-
pendence of arbitrators at the stage of confirmation or appointment as
well as the possibility of challenges later in the procedure generally meets
the difficulties arising from the broad diversity of participants, counsel
and arbitrators involved in ICC arbitrations. One can judge this success
from the relative rarity of challenges to arbitrators once confirmed, the
continued high rate of voluntary compliance with ICC awards and the
paucity of efforts to annul ICC awards based on an alleged lack of inde-
pendence of arbitrators.
4. Satisfaction with the present ICC system is not complacency. One
continues to hear occasional stories of arbitrators whose behavior does
not meet standards of independence upon which all could agree.
5. The greatest care should be exercised before indulging in "radical"
efforts to ensure the complete independence of every arbitrator. Such
efforts might include requiring extremely detailed disclosure statements,
appointing all arbitrators directly by an arbitral institution without par-
ticipation of the parties, or establishing a mandatory and binding code of
ethics.
Without going into a discussion of the pros and the cons of such
measures, any consideration of them must have as a leitmotif the ques-
tion of whether the adoption of radical solutions would be in the interests
of those whom international arbitration is primarily intended to serve:
not the lawyers, or the arbitrators, or the arbitral institutions, but the
parties.
Those public, quasi-public and private entities, as well as individu-

als, from everywhere on the globe, voluntarily agree to international arbi-

tration because it is a system of dispute resolution that provides a means
of deciding disputes that is, at least in comparison with litigation before
national courts, neutral, confidential, relatively rapid and less expensive,
more flexible, and generally final. The confidence of these parties in the
fairness and justness of arbitration as a means of dispute resolution is also
in part, but only in part, based on their expectation that arbitral tribunals
will be composed entirely of independent arbitrators. It is questionable
whether parties would be willing to forego many of the other advantages
of arbitration as the price to be paid for efforts to ensure the absolute
independence of every member of every arbitral tribunal.
This paper noted the importance of an independent arbitrator for a
"good" arbitration. Nonetheless, in considering proposals aimed at
reaching to the greatest extent possible the laudable objective of the inde-
pendence of every arbitrator, let us never forget that "The best is the
enemy of the good."

12:1(1991)
APPENDIX I
I* O International Chamber of Commerce
38, Cours Albert 1", 75008 Paris
Chambre do Commerce Internationale
International Court of Arbitration - Cour Internationale d'Arbitrage
Arbitration Case No. To: The International Court of Arbitration

International Chamber of Commerce
38 Cours Albert ler F - 75008 Paris
ARBITRATOR'S STATEMENT OF INDEPENDENCE*
I,the undersigned,
Name First Name
hereby declare that I accept to serve as arbitrator under the ICC Rules of Arbitration
in the instant case.
(Ifthis box is checked, please also check one of the two following boxes. The choice of which box to
check will be determined after you have taken into account inter alia whether there exists any past or
present relationship, direct or indirect, with any of the parties or any of their counsel, whether financial,
professional or of another kind and whether the nature ofary such relationship is such that disclosure is
called for pursuant to the criteria set out below. Any doubt should be resolved in favor of disclosure.
El I am Independent of each of the parties and intend to remain so; to the best of my
knowledge, there are no facts or circumstances, past or present, that need be disclosed
because they might be of such nature as to call into question my independence In the
eyes of any of the parties.
El I am Independent of each of the parties and intend to remain so; however, in

consideration of Article 2, paragraph 7 of the ICC Rules of Arbitration**, I wish to call
your attention to the following facts or circumstances which I hereafter disclose because
I consider that they might be of such a nature as to call into question my independence
in the eyes of any of the parties. (Use separate sheet if necessary.)
El hereby declare that I decline to serve as arbitrator in the subject case. (If you wish to
state the reasons for checking this box, please do so.)
Place: Date: Signature:
* Please mark the relevant box or boxes.

-Article 2 (7): Upon receipt of such information, the Secretary
General of the Court shall provide it to the parties in
'Every arbitrator appointed or confirmed by the writing and fix a time-limit for any comments from
Court must be and remain independent of the
them.
parties in the arbitration. Before appointment or An arbitrator sal immediately disclose in writing to
confirmation by the Court, a prospective arbitrator the Secretary General of the Court and the parties any
shall disclose in writing to the Secretary General of facts or circumstances of a similar nature which may
the Court any facts or circumstances which might arise between the arbitrator's appointment or
be of such a nature as to call into question the
confirmation by the Court and the notification of the
arbitratoes independence in the eyes of the
final award.*
parties.

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE
Article 1 those prescribed for members of the Permanent
INTERNATIONAL COURT OF JUSTICE estab- Courkof Arbitration by Article 44 of the Conven-
lished by the Charter of the United Nations as tion of The Hague of 1907 for the pacific settle-
the principal judicial organ of the United Nations ment of international disputes.
shall be constituted and shall function in accord- 3. The conditions under which a state which
ance with the provisions of the present Statute. is a party to the present Statute but is not a Mem-
ber of the United Nations may participate in elect-
CHAPTER I ing the members of the Court shall, in the absence
ORGANIZATION OF THE COURT of a special agreement, be laid down by the Gen-
eral Assembly upon recommendation of the Se-
Article 2 curity Council.
The Court shall be composed of a body of inde-
pendent judges, elected regardless of their nation- Article 5
ality from among persons of high moral character, 1. At least three months before the date of the
who possess the qualifications required in their re- election, the Secretary-General of the United
spective countries for appointment to the highest Nations shall address a written request to the
judicial offices, or are jurisconsults of recognized members of the Permanent Court of Arbitration
competence in international law. belonging to the states which are parties to the
present Statute, and to the members of the na-
Article 3 tional groups appointed under Article 4, para-
1. The Court shall consist of fifteen members, graph 2, inviting them to undertake, within a given
no two of whom may be nationals of the same state. time, by national groups, the nomination of per-
2, A person who for the purposes of member- sons in a position to accept the duties of a member
ship in the Court could be regarded as a national of the Court.
of more than one state shall be deemed to be a 2. No group may nominate more than four per-
national of the one in which he ordinarily exercises sons, not more than two of whom shall be of their
civil and political rights. own nationality. In no case may the number of
candidates nominated by a group be more than
Article 4 double the number of seats to be filled.
1. The members of the Court shall be elected
by the General Assembly and by the Security Article 6
Council from a list of persons nominated by the Before making these nominations, each national
national groups in the Permanent Court of Arbitra- group is recommended to consult its highest court
tion, in accordance with the following provisions. of justice, its legal faculties and schools of law, and
2. In the case of Members of the United Na- its national academies and national sections of in-
tions not represented in the Permanent Court of ternational academies devoted to the study of law.
Arbitration, candidates shall be nominated by
national groups appointed for this purpose by Article 7
their governments under the same conditions as 1. The Secretary-General shall prepare a list
21

in alphabetical order of all the persons thus nomi- Article 12
nated. Save as provided in Article 12, paragraph 1. If, after the third meeting, one or more seats
2, these shall be the only persons eligible. still remain unfilled, a joint conference consisting
2. The Secretary-General shall submit this list of six members, three appointed by the General
to the General Assembly and to the Security Assembly and three by the Security Council, may
Council. be formed at any time at the request of either the
General Assembly or the Security Council, for the
Article 8 purpose of choosing by the vote of an absolute
The General Assembly and the Security Coun- majority one name for each seat still vacant, to
cil shall proceed independently of one another to submit to the General Assembly and the Security
elect the members of the Court. Council for their respective acceptance.
2. If the joint conference is unanimously agreed
upon any person who fulfils the required condi-
Article 9 tions, he maybe included in its list, even though
At every election, the electors shall bear in mind he was not included in the list of nominations re-
not only that the persons to be elected should inferred to in Article 7.
dividually possess the qualifications required, but 3. If the joint conference is satisfied that it will
also that in the body as a whole the representation not be successful in procuring an election, those
of the main forms of civilization and of the prin- members of the Court who have already been
cipal legal systems of the world should be assured. elected shall, within a period to be fixed by the
Security Council, proceed to fill the vacant seats
Article 10 by selection from among those candidates who
1. Those candidates who obtain an absolute have obtained votes either in the General Assem-
majority of votes in the General Assembly and in bly or in the Security Council.
the Security Council shall be considered as elected. 4. In the event of an equality of votes among
2. Any vote of the Security Council, whether the judges, the eldest judge shall have a casting
for the election of judges or for the appointment vote.
of members of the conference envisaged in Article
12, shall be taken without any distinction between
permanent and non-permanent members of the Article 13
Security Council. 1. The members of the Court shall be elected
3. In the event of more than one national of the for nine years and may be re-elected; provided,
same state obtaining an absolute majority of the however, that of the judges elected at the first elec-
votes both of the General Assembly and of the tion, the terms of five judges shall expire at the end
Security Council, the eldest of these only shall be of three years and the terms of five more judges
considered as elected. shall expire at the end of six years.
2. The judges whose terms are to expire at the
Article 11 end of the above-mentioned initial periods of three
If, after the first meeting held for the purpose and six years shall be chosen by lot to be drawn
of the election, one or more seats remain to be by the Secretary-General immediately after the
filled, a second and, if necessary, a third meeting first election has been completed.
shall take place. 3. The members of the Court shall continue to
22

discharge their duties until their places have been Article 18
filled. Though replaced, they shall finish any cases 1. No member of the Court can be dismissed
which they may have begun. unless, in the unanimous opinion of the other
4. In the case of the resignation of a member members, he has ceased to fulfil the required con-
of the Court, the resignation shall be addressed to ditions.
the President of the Court for transmission to the 2. Formal notification thereof shall be made to
Secretary-General. This last notification makes the the Secretary-General by the Registrar.
place vacant. 3. This notification makes the place vacant.
Article 14 Article 19
Vacancies shall be filled by the same method as The members of the Court, when engaged on
that laid down for the first election, subject to the the business of the Court, shall enjoy diplomatic
following provision : the Secretary-General shall, privileges and immunities.
within one month of the occurrence of the vacancy,
proceed to issue the invitations provided for in Article 20
Article 5, and the date of the election shall be fixed Every member of the Court shall, before taking
by the Security Council. up his duties, make a solemn declaration in open
court that he will exercise his powers impartially
Article 15 and conscientiously.
A member of the Court elected to replace a
member whose term of office has not expired shall Article 21
hold office for the remainder of his predecessor's 1. The Court shall elect its President and Vice-
term. President for three years; they may be re-elected.
2. The Court shall appoint its Registrar and
Article 16 may provide for the appointment of such other
1. No member of the Court may exercise any officers as may be necessary.
political or administrative function, or engage in
any other occupation of a professional nature. Article 22
2. Any doubt on this point shall be settled by 1. The seat of the Court shall be established at
the decision of the Court. The Hague. This, however, shall not prevent the
Court from sitting and exercising its functions
Article 17 elsewhere whenever the Court considers it desir-
1. No member of the Court may act as agent, able.
counsel, or advocate in any case. 2. The President and the Registrar shall reside
2. No member may participate in the decision at the seat of the Court.
of any case in which he has previously taken part
as agent, counsel, or advocate for one of the par- Article 23
ties, or as a member of a national or international 1. The Court shall remain permanently in
court, or of a commission of enquiry, or in any session, except during the judicial vacations,
other capacity. the dates and duration of which shall be fixed
3. Any doubt on this point shall be settled by by the Court.
the decision of the Court. 2. Members of the Court are entitled to peri-
23

odic leave, the dates and duration of which shall for dealing with a particular case. The number of
be fixed by the Court, having in mind the distance judges to constitute such a chamber shall be de-
between The Hague and the home of each judge. termined by the Court with the approval of the
3. Members of the Court shall be bound, un- parties.
less they are on leave or prevented from attending 3. Cases shall be heard and determined by the
" by illness or other serious reasons duly explained chambers provided for in this Article if the parties
to the President, to hold themselves permanently so request.
at the disposal of the Court. Article 27
A judgment given by any of the chambers pro-
Article 24 vided for in Articles 26 and 29 shall be considered
1. If, for some special reason, a member of the as rendered by the Court.
Court considers that he should not take part in the
decision of a particular case, he shall so inform the Article 28
President. The chambers provided for in Articles 26 and
2. If the President considers that for some spe- 29 may, with the consent of the parties, sit and ex-
cial reason one of the members of the Court should ercise their functions elsewhere than at The Hague.
not sit in a particular case, he shall give him notice
accordingly. Article 29
3. If in any such case the member of the Court With a view to the speedy despatch of business,
and the President disagree, the matter shall be the Court shall form annually a chamber com-
settled by the decision of the Court. posed of five judges which, at the request of the
parties, may hear and determine cases by summary
Article 25 procedure. In addition, two judges shall be se-
1. The full Court shall sit except when it is ex- lected for the purpose of replacing judges who find
pressly provided otherwise in the present Statute. it impossible to sit.
2. Subject to the condition that the number of
judges available to constitute the Court is not Article 30
thereby reduced below eleven, the Rules of the 1. The Court shall frame rules for carrying ou t
Court may provide for allowing one or more judges, its functions. In particular, it shall lay down rules
according to circumstances and in rotation, to be of procedure.
dispensed from sitting. 2. The Rules of the Court may provide for as-
3. A quorum of nine judges shall suffice to con- sessors to sit with the Court or with any of its
stitute the Court. chambers, without the right to vote.
1. The Court may from time to time form one 1. Judges of the nationality of each of the
or more chambers, composed of three or more parties shall retain their right to sit in the case
judges as the Court may determine, for dealing before the Court.
with particular categories of cases; for example, 2. If the Court includes upon the Bench a judge
labor cases and cases relating to transit and com- of the nationality of one of the parties, any other
munications. party may choose a person to sit as judge. Such
2. The Court may at any time form a chamber person shall be chosen preferably from among
24

those persons who have been nominated as candi- the General Assembly on the proposal of the Court.
dates as provided in Articles 4 and 5. 7. Regulations made by the General Assembly
3. If the Court includes upon the Bench no shall fix the conditions under which retirement
judge of the nationality of the parties, each of these pensions may be given to members of the Court
parties may proceed to choose a judge as provided and to the Registrar, and the conditions under
in paragraph 2 of this Article. which members of the Court and the Registrar
4. The provisions of this Article shall apply to shall have their traveling expenses refunded.
the case of Articles 26 and 29. In such cases, the 8. The above salaries, allowances, and com-
President shall request one or, if necessary, two pensation shall be free of all taxation.
of the members of the Court forming the chamber
to give place to the members of the Court of the Article 33
nationality of the parties concerned, and, failing The expenses of the Court shall be borne by the
such, or if they are unable to be present, to the United Nations in such a manner as shall be de-
judges specially chosen by the parties. cided by the General Assembly.
5. Should there be several parties in the same
interest, they shall, for the purpose of the preced-
ing provisions, be reckoned as one party only. Any
doubt upon this point shall be settled by the de-
CHAPTER II
cision of the Court. COMPETENCE OF THE COURT
6. Judges chosen as laid down in paragraphs
2,3, and 4 of this Article shall fulfil the conditions Article 34
required by Articles 2,17 (paragraph 2 ) , 20, and 1. Only states may be parties in cases before
24 of the present Statute. They shall take part in the Court.
the decision on terms of complete equality with 2. The Court, subject to and in conformity with
their colleagues. its Rules, may request of public international or-
ganizations information relevant to cases before it,
Article 32 and shall receive such information presented by
1. Each member of the Court shall receive an such organizations on their own initiative.
annual salary. 3. Whenever the construction of the constitu-
2. The President shall receive a special annual ent instrument of a public international organi-
allowance. zation or of an international convention adopted
3. The Vice-President shall receive a special thereunder is in question in a case before the Court,
allowance for every day on which he acts as Presi- the Registrar shall so notify the public interna-
dent. tional organization concerned and shall communi-
4. The judges chosen under Article 31, other cate to it copies of all the written proceedings.
than members of the Court, shall receive compen-
sation for each^day on which they exercise their Article 35
functions. 1. The Court shall be open to the states parties
5. These salaries, allowances, and compensa- to the present Statute.
tion shall be fixed by the General Assembly. They 2. The conditions under which the Court shall
may not be decreased during the term of office. be open to other states shall, subject to the special
6. The salary of the Registrar shall be fixed by provisions contained in treaties in force, be laid
25

down by the Security Council, but in no case shall International Court of Justice for the period which
such conditions place the parties in a position of they still have to run and in accordance with their
inequality before the Court. terms.
3. When a state which is not a Member of the 6. In the event of a dispute as to whether the
United Nations is a party to a case, the Court shall Court has jurisdiction, the matter shall be settled
fix the amount which that party is to contribute by the decision of the Court.
towards the expenses of the Court. This provision
shall not apply if such state is bearing a share of Article 37
the expenses of the Court. Whenever a treaty or convention in force pro-
vides for reference of a matter to a tribunal to have
Article 36 been instituted by the League of Nations, or to the
1. The jurisdiction of the Court comprises all Permanent Court of International Justice, the
cases which the parties refer to it and all matters matter shall, as between the parties to the present
specially provided for in the Charter of the United Statute, be referred to the International Court of
Nations or in treaties and conventions in force. Justice.
2. The states parties to the present Statute may Article 38
at any time declare that they recognize as compul- 1. The Court, whose function is to decide in
sory ipso facto and without special agreement, in accordance with international law such disputes
relation to any other state accepting the same obli- as are submitted to it, shall apply:
gation, the jurisdiction of the Court in all legal a. international conventions, whether gen-
disputes concerning: eral or particular, establishing rules expressly
a. the interpretation of a treaty; recognized by the contesting states ;
b. any question of international law; b. international custom, as evidence of a
c. the existence of any fact which, if estab- general practice accepted as law;
lished, would constitute a breach of an inter- c. the general principles of law recognized
national obligation ; by civilized nations ;
d. the nature or extent of the reparation to d. subject to the provisions of Article 59,
be made for the breach of an international ob- judicial decisions and the teachings of the most
ligation. highly qualified publicists of the various na-
3. The declarations referred to above may be tions, as subsidiary means for the determination
made unconditionally or on condition of reci- of rules of law.
procity on the part of several or certain states, or 2. This provision shall not prejudice the power
for a certain time. of the Court to decide a case ex aequo et bond, if
4. Such declarations shall be deposited with the parties agree thereto.
the Secretary-General of the United Nations, who
shall transmit copies thereof to the parties to the
Statute and to the Registrar of the Court. CHAPTER III
5. Declarations made under Article 36 of the PROCEDURE
Statute of the Permanent Court of International
Justice and which are still in force shall be deemed, Article 39
as between the parties to the present Statute, to be 1. The official languages of the Court shall be
acceptances of the compulsory jurisdiction of the French and English. If the parties agree that the
26

case shall be conducted in French, the judgment ties before the Court shall enjoy the privileges
shall be delivered in French. If the parties agree and immunities necessary to the independent ex-
that the case shall be conducted in English, the ercise of their duties.
judgment shall be delivered in English.
2. In the absence of an agreement as to which Article 43
language shall be employed, each party may, in 1. The procedure shall consist of two parts:
the pleadings, use the language which it prefers; written and oral.
the decision of the Court shall be given in French 2. The written proceedings shall consist of
and English. In this case the Court shall at the the communication to the Court and to the parties
same time determine which of the two texts shall of memorials, counter-memorials and, if neces-
be considered as authoritative. sary, replies; also all papers and documents in
3. The Court shall, at the request of any party, support.
authorize a language other than French or English 3. These communications shall be made
to be used by that party. through the Registrar, in the order and within the
time fixed by the Court.
Article 40 4. A certified copy of every document produced
1. Cases are brought before the Court, as the by one party shall be communicated to the other
case may be, either by the notification of the special party.
agreement or by a written application addressed 5. The oral proceedings shall consist of the
to the Registrar. In either case the subject of the hearing by the Court of witnesses, experts, agents,
dispute and the parties shall be indicated. counsel, and advocates.
2. The Registrar shall forthwith communicate
the application to all concerned. Article 44
3. He shall also notify the Members of the 1. For the service of all notices upon persons
United Nations through the Secretary-General, other than the agents, counsel, and advocates, the
and also any other states entitled to appear before Court shall apply direct to the government of the
the Court. state upon whose territory the notice has to be
served.
Article 41 2. The same provision shall apply whenever
1. The Court shall have the power to indicate, steps are to be taken to procure evidence on the
if it considers that circumstances so require, any spot.
provisional measures which ought to be taken to
preserve the respective rights of either party. Article 45
2. Pending the final decision, notice of the The hearing shall be under the control of the
measures suggested shall forthwith be given to the President or, if he is unable to preside, of the Vice-
parties and to the Security Council. President; if neither is able to preside, the senior
judge present shall preside.
Article 42
1. The parties shall be represented by agents. Article 46
2. They may have the assistance of counsel or The hearing in Court shall be public, unless the
advocates before the Court. Court shall decide otherwise, or unless the parties
3. The agents, counsel, and advocates of par- demand that the public be not admitted.
27

Article 47 2. The Court must, before doing so, satisfy it-
1. Minutes shall be made at each hearing and self, not only that it has jurisdiction in accordance
signed by the Registrar and the President. with Articles 36 and 37, but also that the claim is
2. These minutes alone shall be authentic. well founded in fact and law.
The Court shall make orders for the conduct of 1. When, subject to the control of the Court,
the case, shall decide the form and time in which the agents, counsel, and advocates have completed
each party must conclude its arguments, and make their presentation of the case, the President shall
all arrangements connected with the taking of declare the hearing closed.
evidence. 2. The Court shall withdraw to consider the
judgment.
Article 49 3. The deliberations of the Court shall take
The Court may, even before the hearing begins, place in private and remain secret.
call upon the agents to produce any document or
to supply any explanations. Formal note shall be Article 55
taken of any refusal. 1. All questions shall be decided by a maj ority
of the judges present.
Article 50 2. In the event of an equality of votes, the Pres-
The Court may, at any time, entrust any indi- ident or the judge who acts in his place shall have
vidual, body, bureau, commission, or other organ- a casting vote.
ization that it may select, with the task of carrying
out an enquiry or giving an expert opinion. Article 56
1. The judgment shall state the reasons on
Article 51 which it is based.
During the hearing any relevant questions are 2. It shall contain the names of the judges who
to be put to the witnesses and experts under the have taken part in the decision.
conditions laid down by the Court in the rules of
procedure referred to in Article 30. Article 57
If the judgment does not represent in whole or
Article 52 in part the unanimous opinion of the judges, any
After the Court has received the proofs and evi- judge shall be entitled to deliver a separate opinion.
dence within the time specified for the purpose,
it may refuse to accept any further oral or written Article 58
evidence that one party may desire to present un- The judgment shall be signed by the President
less the other side consents. and by the Registrar. It shall be read in open court,
due notice having heen given to the agents.
Article 53
1. Whenever one of the parties does not appear Article 59
before the Court, or fails to defend its case, the The decision of the Court has no binding force
other party may call upon the Court to decide in except between the parties and in respect of that
favor of its claim. particular case.
28

Article 60 2. Every state so notified has the right to inter-
The judgment is final and without appeal. In vene in the proceedings; but if it uses this right,
the event of dispute as to the meaning or scope of the construction given by the judgment will be
the judgment, the Court shall construe it upon the equally binding upon it.
request of any party.
Article 64
Article 61 Unless otherwise decided by the Court, each
1. An application for revision of a judgment party shall bear its own costs.
may be made only when it is based upon the dis-
covery of some fact of such a nature as to be a de-
cisive factor, which fact was, when the judgment
was given, unknown to the Court and also to the CHAPTER IV
party claiming revision, always provided that such ADVISORY OPINIONS
ignorance was not due to negligence.
2. The proceedings for revision shall be opened Article 65
by a judgment of the Court expressly recording the 1. The Court may give an advisory opinion on
existence of the new fact, recognizing that it has any legal question at the request of whatever body
such a character as to lay the case open to revision, may be authorized by or in accordance with the
and declaring the application admissible on this Charter of the United Nations to make such a
ground. request.
3. The Court may require previous compliance 2. Questions upon which the advisory opinion
with the terms of the judgment before it admits of the Court is asked shall be laid before the Court
proceedings in revision. by means of a written request containing an exact
4. The application for revision must be made statement of the question upon which an opinion
at latest within six months of the discovery of the is required, and accompanied by all documents
new fact. likely to throw light upon the question.
5. No application for revision may be made
after the lapse of ten years from the date of the Article 66
judgment. 1. The Registrar shall forthwith give notice of
the request for an advisory opinion to all states
Article 62 entitled to appear before the Court.
1. Should a state consider that it has an interest 2. The Registrar shall also, by means of a
of a legal nature which may be affected by the de- special and direct communication, notify any state
cision in the case, it may submit a request to the entitled to appear before the Court or international
Court to be permitted to intervene. organization considered by the Court, or, should
2. It shall be for the Court to decide upon this it not be sitting, by the President, as likely to be
request. able to furnish information on the question, that
Article 63 the Court will be prepared to receive, within a
1. Whenever the construction of a convention time limit to be fixed by the President, written
to which states other than those concerned in the statements, or to hear, at a public sitting to be held
case are parties is in question, the Registrar shall for the purpose, oral statements relating to the
notify all such states forthwith. question.
29

3. Should any such state entitled to appear be- Court shall further be guided by the provisions of
fore the Court have failed to receive the special the present Statute which apply in contentious
communication referred to in paragraph 2 of this cases to the extent to which it recognizes them to be
Article, such state may express a desire to submit applicable.
a written statement or to be heard; and the Court
will decide.
4. States and organizations having presented CHAPTERV
written or oral statements or both shall be per- AMENDMENT
mitted to comment on the statements made br-
other states or organizations in the form, to the Article 69
extent, and within the time limits which the Court, Amendments to the present Statute shall be
or, should it not be sitting, the President, shall effected by the same procedure as is provided by
decide in each particular case. Accordingly, the the Charter of the United Nations for amendments
Registrar shall in due time communicate any such to that Charter, subject however to any provisions
written statements to states and organizations which the General Assembly upon recommenda-
having submitted similar statements. tion of the Security Council may adopt concerning
the participation of states which are parties to the
Article 67 present Statute but are not Members of the United
The Court shall deliver its advisory opinions in Nations.
open court, notice having been given to the Secre-
tary-General and to the representatives of Members Article 70
of the United Nations, of other states and of inter- The Court shall have power to propose such
national organizations immediately concerned. amendments to the present Statute as it may deem
necessary, through written communications to the
Article 68 Secretary-General, for consideration in conformity
In the exercise of its advisory functions the with the provisions of Article 69.
30

Himachal Pradesh National Law University, Shimla
16 Miles, Shimla-Mandi National Highway Ghandal,
District Shimla, HP-171014

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Himachal Pradesh National Law University, Shimla

1.1 Meaning, Evolution, Definitions, Nature and Legality of International Law

1.2 Theories as to the Basis of International Law

1.3 Development of International Law

1.4 Subjects of International Law

1.5 Relationship between International Law and Municipal Law

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RECOGNITION, EXTRADITION AND LAW OF THE SEA

3.1 Meaning of Recognition, Theories of Recognition, De facto, De jure Recognition, Implied

3.2 Withdrawal of Recognition, Retroactive Effects of Recognition, Legal Effects of

SETTLEMENT OF INTERNATIONAL DISPUTES AND INTERNATIONAL

4.5 International Criminal Court: Need, Structure and Jurisdiction

1. Starke, Introduction to International Law, Oxford University Press, 2013

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1. Shaw, International Law, Cambridge University Press, 2008 (6th Edn.).

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The Basis of International Law: Why Nations

Follow this and additional works at: http://elibrary.law.psu.edu/psilr

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2. Critiques ............................. 324

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1. Louis HENKIN, How NATIONS BEHAVE 47 (2d ed. 1979) [hereinafter

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II. The Naturalist Theories

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of thought are naturalism and positivism. Many other doctrines are

1. The General Teachings of Naturalism-The naturalist

5. Cf., e.g., 1 L.F.L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE 92 (8th

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8. See HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 243.(2nd ed.

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have sometimes been labeled "founders" of positivism,18 their

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the evolution of jus voluntarium. Within this evolution,

Grotius' works attracted a number of followers, known as the

26. MANFRED LACHS, THE TEACHER IN INTERNATIONAL LAW 53 (2nd rev.

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nature as created by God. 29 The nature from which these rights

2. General Critiques-There are several criticisms of the

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doctrine of natural law is aloof from the realities of international

B. The Doctrine of "Social Contract"

1. The Doctrine-The doctrine of social contract, otherwise

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system. 38 It was further developed by Hobbes, Locke and most

38. STROMHOLM, supra note 17, at 28.

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Similarly, according to the doctrine of social contract, the

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als."51 He emphasized the "social fact" character of the basis of

2. Critiques-The doctrine of social contract may appear to

51. Id. at 21.

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Rather, each State must enter into relations or transactions with

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Fourth, the doctrine of social contract suggests that the social

53. BRIERLY, 6th ed., supra note 44, at 50.

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C. The Doctrine of Fundamental Rights of the State