A Revision of Article 38(1) of the Statute of the International Court of

Justice?
Zen Chang1
‘The most difficult thing about international law is finding it.’ – Geoffrey R. Watson

I. Introduction

Article 38(1) of the Statute of the International Court of Justice 2 (‘ICJ Statute’) lists the
traditional “formal sources” of public international law, which the International Court of
Justice (‘ICJ’) ‘is bound to have regard to.’ 3 However, reading Article 38(1) literally, the
Article does not mention the word “source” at all. Lex lata, the formal sources listed in Article
38(1) is not exhaustive, and does not reflect the legal realities of contemporary international
law. With the ‘evolving nature’4 of international law, the legal lacunas in Article 38(1) are
more pronounced. There is a ‘brave new world of international law’ 5 where other “material
sources” (or “soft law”) ought to be considered.6

This paper will put forth other material sources of international law, namely, (1) United Nations
General Assembly (‘UNGA’) resolutions, (2) equity, and (3) unilateral acts of states, and argue
why these “material sources” ought to be made a formal source of international law. In arguing
that notion, this paper will show the legally binding nature of these “sources” (except UNGA
resolutions), and their normativity in international jurisprudence. Finally, this paper will briefly
examine the hierarchy of formal sources in this “contemporary” Article 38(1).

II. United Nations General Assembly Resolutions

a. General principle

1
LLB(Hons)(ANU); BIR(ANU); LLM (Int’l Law) Candidate (Sydney).
2
Statute of the International Court of Justice art 38(1).
3
Continental Shelf (Tunisia/Libya), para.23.
4
Jonathan L. Charney, 'International Lawmaking’, pp.173-176.
5
Harold Koh, ‘A World Transformed’, p.11.
6
See generally: Boyle, ‘Soft law in International Law-Making’; and Shelton, ‘International Law and “Relative
Normativity”’.

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As a general principle, UNGA resolutions are not binding on member states, notwithstanding
certain UN organizational and administrative matters (i.e. budget, admissions and suspension,
internal administrative matters, etc.). 7 Furthermore, the UN Charter makes clear the non-
binding nature of UNGA resolutions.8 Turning to the travaux préparatoires, it was evident that
the framers of the UN Charter did not ascribe legislative functions to the UNGA; in the San
Francisco Conference, the Philippine Delegation made the proposal that ‘the General Assembly
should be vested with legislative authority to enact rules on international law which should
become effective and binding upon the Members […].’ 9 This proposal was rejected at the
Conference with an overwhelming majority. 10 Furthermore, reading Article 10 of the UN
Charter, the ICJ in the Reparations11 and the South West Africa12 cases note the non-binding
character of UNGA resolutions. This reflects the non-binding nature of UNGA resolutions as
compared to international conventions, notwithstanding their normative value.13

b. Why UNGA Resolutions should be made a source of international law

Legal scholars opine that ‘there is little doubt the resolutions of the General Assembly […] do
embody a consensus outlining some of the new areas of international law.’ 14 UNGA resolutions
embody a consensus about the lex ferenda, which may eventually become a formal source of
international law.15 There have been numerous “law-making” UNGA resolutions which give
value to contemporary evaluation on positivist international law amongst member states. 16 In
Voting Procedure Advisory Opinion, Lauterpacht J notes:

‘It would be wholly inconsistent with the sound principles of

interpretation as well as with the highest international interest, which
can never be legally irrelevant, to reduce the value of the Resolutions
of the General Assembly – one of the principal instrumentalities of the
formation of the collective will and judgement of the community of

7
Crawford, ‘Brownlie’s Principles of Public International Law’, p.42.
8
Charter of the United Nations chapter IV.
9
San Francisco Conference 1945, p.316.
10
Sloane, ‘The Binding Force of a “Recommendation” of the UNGA’, p.23.
11
Reparations, p.9.
12
South West Africa, p.337.
13
Ibid.
14
Higgins, ‘The Development of International Law’, p.202.
15
Rosenne, ‘The Perplexities of Modern International Law’, p.59.
16
See example, Crawford supra note 7, p.42.

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 nations represented by the UN – and to treat them […] as nominal,
insignificant, and having no claim to influence the conduct of the
members.’17

Klaested J, in the same case, notes the pseudo-legislative character of UNGA resolutions, and
notes that UNGA resolutions might be a useful source of international law. 18 Whilst UNGA
resolutions may not be legally binding, the Court in Nuclear Weapons Advisory Opinion notes
that ‘General Assembly resolutions, […], may sometimes have normative value.’ 19 The
normative value of UNGA resolutions was also echoed in multiple ICJ judgments (i.e.
Nicaragua, Western Sahara, Texaco, etc.).20 Furthermore, the preamble to Resolution 3232
(XXIX), ‘[Recognises] that the development of international law may be reflected, inter alia,
by declarations and resolutions of the General Assembly which may to that extent be taken into
consideration by the International Court of Justice.’21

However, while it is evident that UNGA resolutions have normative value, some scholars are
of the view that UNGA resolutions fall within the corpus of Article 38(1)(b) of the ICJ Statute,
as ‘General Assembly resolutions constitutes evidence of custom’;22 hence, it is unnecessary
to have a separate sub-paragraph within Article 38(1) giving explicit value and weight to
UNGA resolutions as a formal source of international law. With respect, this view is wrong.
This view assumes that the objective and subject elements of Article 38(1)(b) – state practice
and opinio juris respectively – are applied consistently by international courts and international
jurisprudence. It is settled under international law that a binding custom cannot emerge in the
absence of either state practice, or opinio juris. 23 However, most strikingly, the ICJ in
Nicaragua held ‘[t]he Court does not consider that, for a rule to be established as customary,
the corresponding [State] practice must be in absolutely rigorous conformity with the rule
[…].’24 Furthermore, in determining whether Article 2(4) of the UN Charter is customary law,
the ICJ in the same judgement gave preference to Resolution 262525 by noting that ‘it may be
understood as an acceptance [of customary law] of the validity of the rules or set of rules

17
Voting Procedure Advisory Opinion (Lauterpacht J Separate Opinion), p.112.
18
Ibid, (Klaested J Separate Opinion), p.25-16.
19
Nuclear Weapons Advisory Opinion, para.70.
20
Cited by Harris, Sivakumaran, ‘Cases and Materials on International Law’, pp.52-53.
21
UNGA Resolution 3232 (XXIX) (1974).
22
Sloan, ‘UNGA Resolutions in our Changing World’, paras.2.065-2.066.
23
Report of the International Law Commission, 68th Session (2016), pp.97-99.
24
Nicaragua, para.186.
25
See for reference by the Court: Ibid., para.191.

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declared by the resolutions by themselves.’26 The ICJ in Nicaragua found that Article 2(4) is
customary law by only examining opinio juris (as evidenced by Resolution 2625), 27 while
‘glossing over the absence of confirming state practice.’ 28 This inconsistent treatment of
Article 38(1)(b) suggests the need for UNGA resolutions to be a new source of international
law. This turns on the fact that UNGA resolutions, whilst may constitute evidence of state
practice, was not brought to bear by the ICJ. Instead, the Court interpreted UNGA resolutions
as a source of opinio juris. Having a proper sub-paragraph codifying UNGA resolutions as a
new source of international law might give international courts some clarity and consistency
in applying international law norms and rules.

It is evident, from the above argument, that UNGA resolutions ‘may contribute to the
development of international law,’29 contrary to “making recommendations” 30 as mandated by
Article 10 of the UN Charter. Furthermore, in Certain Expenses of the United Nations Advisory
Opinion, the ICJ is of the view that UNGA resolutions play in important role where the Security
Council is unable to reach a unanimous decision, 31 this is beyond the scope of the
“recommendatory nature” of UNGA resolutions. Also, Resolution 377 (V), Uniting for Peace
Resolution, grants power to the UNGA to consider any matter which has failed to reach a
unanimous decision in the Security Council. 32 Whilst UNGA resolutions are not legally
binding per se, they may be treated as binding for practical and functional means. 33 For
example, the international community often condemns North Korea for breaching Resolution
62/167 – which urges the North Korean Government to respect fundamental human rights 34 –
and have imposed sanctions on North Korea for breaching that resolution. The breach of
Resolution 62/167 was treated, similarly, as breaching international law obligations. Higgins,
in her seminal study, notes that ‘the body of resolutions as a whole […] undoubtedly provides
a rich source of evidence,’35 which may be applicable to the overall creation of international

26
Ibid., para.188.
27
Ibid.
28
Charlesworth, ‘Customary International Law and the Nicaragua Case’, p.21.
29
Asamoah, ‘The Legal Significance of UNGA Resolutions’, p.12.
30
Charter of the United Nations art 10.
31
Certain Expenses Advisory Opinion, pp.163-164.
32
UNGA Resolution 377 (V) (1950), para.A.1.
33
Van Hoof, ‘Rethinking the Sources of International Law’, pp.187-189.
34
UNGA Resolution 62/167 (2007).
35
Higgins, supra note 14, p.5.

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law and international norms.36 It would be tenuous to argue that UNGA resolutions are not
sources of international law.

III. Equity

a. Normativity of equity in international law to avoid a non liquet

The principle of equity, in and of itself, is not a formal source of international law under Article
38(1) of the ICJ Statute. However, equity is paramount in filling legal lacunas in international
law which might otherwise result in a non liquet.37 Though there is no precise definition of
equity per se,38 equity is often regarded as a ‘consideration of fairness, reasonableness and
good faith.’39 The role of equity as a formal source of international law is not foreign to Article
38(1) of the ICJ Statute. An examination of the procès-verbaux of the Court’s statute attests
that notion. Although majority of the members of the 1920 Advisory Committee of Jurists
rejected equity as a formal independent source of law due to differing interpretations and
understandings of equity at that time (Positivists V.S. Naturalists; Civil V.S. Common Law),40
the Committee accepted that ‘equity may be legitimately allowed to play in the application of
international law.’ 41 However, the Advisory Committee also held that the term “equity” was
‘too vague and, necessarily, too fraught, a term to be included’ 42 as a formal source of
international law.

Historically, international courts have been applying the principle of equity with ease. In the
Court’s inaugural case in Corfu Channel, the Court applied the principle of equity to avoid a
non liquet,43 since The Hague Convention of 1907 only applies in times of war, and not peace.
A more “modern” example is the North Sea Continental Shelf cases where the Court had no
obligation to apply The Convention on the Continental Shelf of 1958, nor could the equidistance
method be applied absent customary law. 44 Facing a potential non liquet, the Court held that

36
Ibid., p.5.
37
Lowe, ‘The Role of Equity in International Law’, pp.67-68.
38
Lowe distinguishes different types of “equity”, see example ibid., pp.56-67
39
Crawford supra note 7, p.44.
40
Procés-Verbaux of the Proceedings of the Committee (1920), p.295; White, ‘Equity – A General Principle of
Law Recognised by Civilized Nations?’, pp.104-106.
41
Ibid. p.47.
42
Ibid., pp.295, 323.
43
Corfu Channel, p.22.
44
North Sea Continental Shelf, para.85.

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the ‘delimitation must be arrived at in accordance with equitable principles, […].’45 Equity
played an important role in achieving a common goal by filling a legal lacuna.

Equity has also been a normative source of law in international law. 46 Recent ICJ Judgments
has held ‘the words law and equity […] cannot be understood here in the traditional sense in
which these words are used in Anglo-Saxon jurisprudence,’47 rejecting the earlier notion made
by the 1920 Advisory Committee of Jurists. Hudson J in Diversion of Waters from the River of
Meuse notes ‘under Article 38 of the Statute, if not independently of that Article, the Court has
some freedom to consider principles of equity as part of the international law which it must
apply.’ 48 The Chambers in Diversion of Waters from the River of Meuse and Norwegian
Shipowners’ Claims purport that equity is ‘the spirit of the law,’49 and to exclude equity in
judicial decision making would be contrary to that spirit.

Given the normativity of equity in international courts and tribunals, and how equity has been
applied to avoid a non liquet, equity should be made a formal source of international law.

b. Arguments for, and against, equity as a source of international law

Some commentators 50 are of the view that equity should not be made a formal source of law
as Article 38(2) of the ICJ Statute gives the Court power to ‘decide a case ex aequo et bono, if
the parties agree thereto.’ 51 The concept of “ex aequo et bono” holds that courts and tribunals
should decide disputes ‘according to the right and good’, or ‘from equity and conscience.’52
However, Crawford opines that decisions made ex aequo et bono involves elements of
compromise and conciliation, whereas equity in the general sense (‘equity infra legem’) finds
application as part of the normal judicial function. 53 Furthermore, the Permanent Court of
Justice in Free Zones of Upper Savoy and the District of Gex distinguishes “ex aequo et bono”
from “equity infra legem.”54 To argue that equity has no place as a formal source of law by

45
North Sea Continental Shelf, para.90.
46
See example: Gourgourinis, ‘Delineating the Normativity of Equity in International Law’.
47
Norwegian Shipowners’ Claims, p.331.
48
Diversion of Waters from the River of Meuse, p.4.
49
Gourgourinis, supra note 46, p.341.
50
See example: Rossi, ‘Equity as a Source of International Law?’.
51
Statute of the International Court of Justice art 38(2).
52
Degan, ‘Sources of International Law’, p.306.
53
Crawford supra note 7, p.45.
54
Ibid., citing Free Zones, p.4.

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virtue of Article 38(2) is a gross misunderstanding of “ex aequo et bono” and “equity,” it would
be tenuous to treat these distant concepts as same.

Some scholars purport that equity is within the corpus of Article 38(1)(c) of the ICJ Statute,
hence it deserves no formal treatment as a source of law. 55 As noted by the 1920 Advisory
Committee of Jurists, ‘[equity] might play a role as “general principles of [international]
law”.’ 56 Whilst this proposition is theoretically feasible, its characterization as “general
principles of law” faces operational limits.57 As evidenced in judgments by international courts,
equity is not automatically applied to correct an unequitable wrong which results in an
unsatisfactory outcome. This unequitable outcome was evidenced in Frontier Dispute (Burkina
Faso/Mali), where the Court held that ‘resort to the concept of equity in order to modify an
established frontier would be quite unjustified.’ 58 Also, Courts have often applied equity with
no reference made to Article 38(1)(c). This was most evident in the Fisheries case where the
Court found that Norway had ‘consistently followed the [equitable] rules of delimitation,’59
hence, the maritime boundaries imposed by Norway was not a breach of international law. In
the separate opinion of Vice-President Weeramantry J in Gabčíkovo-Nagymaros Project, his
Excellency gave preference to equity by noting, ‘[t]he concept [of equity] has a significant role
to play in the resolution of environmentally related disputes. The components of the principle
come from well-established areas of international law.’ 60 In his Excellency’s judgment,
Weeramantry J made no explicit reference to Article 38(1)(c) of the Court’s Statute.

Some scholars and jurists have repudiated the use of equity as a source of international law, or
as a factor in decision making. This was cogently echoed in the dissenting opinion by Gros J
in Gulf of Maine case where his Excellency mentioned, ‘[…] equity left, without any objective
elements of control, to the wisdom of the judge reminds us that equity was once measured by
‘the Chancellor’s foot’; I doubt that international justice can long survive an equity measured
by the judge’s eye.’61 Furthermore, UNGA resolutions have noted that equity forms part of a
“distributive justice,” a concept which is sympathetic towards developing nations moreover to

55
See example: Rossi, supra note 50.
56
Procés-Verbaux of the Proceedings of the Committee (1920), p.47.
57
White, supra note 40, pp.104-106.
58
Frontier Dispute, para.149.
59
Fisheries, p.137.
60
Gabčíkovo-Nagymaros Project (Separate Opinion Weeramantry J), p.95.
61
Gulf of Maine (Dissenting Opinion Gros J), para.41.

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the established principles of international law. 62 However, equity has found more liberal
understanding and huge importance in international treaties63 and maritime boundary disputes.
The notion of equity was found to be a guiding principle (and customary law) in maritime
disputes in the North Sea Continental Shelf cases.64 Also, the Chamber in Continental Shelf
(Tunisia/Libya) notes ‘the legal concept of equity is a principle directly applicable as law.’ 65
Furthermore, the ICJ in Fisheries Jurisdiction outlined an ‘equitable solution’ to the
differences over fishing rights and directed the parties to negotiate accordingly.66 It can be said
that ‘[equitable principles] through their adoption by the Court […] have thus entered the
mainstream of international law.’67 It would be tenuous to argue that equity should not be made
a formal source of international law given a plethora of cases which states otherwise. Almost
a century has passed since the 1920 Advisory Committee of Jurists made the determination
that equity is a term ‘too vague and, necessarily, too fraught’ a term to be included in Article
38(1);68 given that international courts have applied equity as law reflects that equity has made
its way into contemporary international law with universal understanding and acceptance. ‘To
a large extent, the question whether equity is a formal source of international law is a purely
verbal question.’ 69 Given the normativity of equity as a source of international law, it would
thus be important to materialize equity as a formal source under Article 38(1) of the ICJ Statute.

IV. Unilateral Acts of States

Article 38(1) of the ICJ Statute makes no express mention of unilateral acts of states as a formal
source of international law. The International Law Commission (‘ILC’) has defined unilateral
acts as, ‘an unequivocal expression of will which is formulated by a State with the intention of
producing legal effects in relation to one or more other States or international organizations,
[…].’70 In defining the term, the ILC and its Working Group did not include any assessment of
the status of unilateral acts as a formal source of international law. However, during the debates
in 2006, ‘[s]ome members remarked that the unilateral acts par excellence that ought to be
examined, were autonomous acts qualifying as sources of international law and not as those

62
Boczek, ‘International Law: A Dictionary’, p.8.
63
e.g. 1982 Law of the Sea Convention
64
North Sea Continental Shelf, paras.90-91.
65
Continental Shelf (Tunisia/Libya), para.71.
66
Fisheries Jurisdiction, paras.69, 78-79.
67
Weeramantry, ‘Universalising International Law’, p.268.
68
Procés-Verbaux of the Proceedings of the Committee (1920), pp.295, 323.
69
Akehurst, ‘Equity and General Principles of Law’, p.808.
70
International Law Commission, Third Report on Unilateral Acts of States (2000), art 1.

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stemming from a customary source.’71 Despite not being a formal source of international law,
unilateral acts of states make up their own legal source sui generis.

This section of the paper argues that unilateral acts of states should be made a formal source of
international law due to the legally binding nature of such declarations. It is often noted that
what constitutes a formal source under Article 38(1) (notwithstanding Article 38(1)(d)) turns
on whether the “source” has a legally binding effect. 72

a. Are unilateral acts of states legally binding?

In the (in)famous Nuclear Tests case, the Chamber in an unambiguous dictum stated, ‘[i]t is
well recognized that declarations made by way of unilateral acts, […], may have the effect of
creating legal obligations.’ 73 France was held not to be bound by the Convention, but bound
by its own unilateral verbal declaration.74 The Court confirmed its sentiments in Request of
New Zealand for an Examination of the Situation where the Chamber notes ‘acta sunt servanda
in the same way as pacta sunt servanda, both general principles being based on the principle
of good faith.’75 Also, in Armed Activities (Democratic Republic of the Congo v Rwanda), the
Court held that the unilateral commitment made by the Minister of Justice of Rwanda
constitutes as ‘having legal effects in regard to the withdrawal of that reservation.’ 76 In the
same judgement, the Court further laid down tests to determine unilateral acts; these will not
be dealt with as it is beyond the scope of this paper. Furthermore, and surprisingly, unilateral
acts of states found its way into WTO dispute settlement. In European Union v United States
of America, the Dispute Settlement Body, citing Nuclear Test cases, held that the unilateral
statements made by the United States constitute an intention to bound by its WTO obligations,
and hence unable to terminate a trade agreement made with the European Union; 77 the Dispute
Settlement Body thus attached legal effects to the unilateral declarations made by the United
States. Not only has international courts and tribunals recognized the legally binding nature of
unilateral acts, but so has the ILC in its 2006 Guiding Principles. The key principle identified
by the ILC, and echoing the sentiments in Nuclear Tests cases, was to the effect that,

71
Report of the International Law Commission, 57th Session (2005), para.316.
72
Kennedy, ‘The Sources of International Law’, p.20.
73
Nuclear Tests (Australia v France), para.46.
74
Ibid., paras.53, 59.
75
Request of New Zealand for an Examination of the Situation, para.55.
76
Armed Activities, paras.45, 52.
77
Case Concerning Sections 301-310 of the Trade Act of 1974, para.7.118.

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‘[d]eclarations the will to be bound may have the effect of creating legal obligations.’ 78
Evidently, unilateral acts of states are legally binding under international law.

b. Unilateral acts of states under Article 38(1)(a) (‘international conventions’)?

Some commentators are of the view that unilateral acts fall within the corpus of Article 38(1)(a),
hence a separate sub-paragraph is unnecessary. 79 Thirlway goes so far as to opine that unilateral
acts are ‘inchoate treaties.’ 80 Prima facie, this sentiment is not evidenced in the travaux
préparatoires of the Court’s statute. 81 Furthermore, the Commentary to the ICJ Statute notes
that unilateral acts are ‘distinct from the “international conventions” mentioned in Article
38(1)(a).’82

An examination of the international court’s judgments might ameliorate this point. Absent a
formal legal instrument, the Chamber in Nicaragua declared itself ‘unable to find anything in
these documents [international conventions] […] from which it can be inferred that any legal
undertaking was intended to exist,’83 and that it ‘cannot find an instrument with legal force,
whether unilateral [declarations], whereby Nicaragua has committed itself in respect of the
principle or methods of holding elections.’ 84 The Chamber in Nicaragua distinguishes
international conventions with unilateral declarations as two separate “sources” to find legal
undertakings made by Nicaragua. The same distinction was also evidenced in Frontier Dispute
(Burkina Faso/Mali) where the Chamber notes absent ‘a formal agreement’ to be bound by the
Organization of African Unity Mediation Commission, 85 the Court turned towards the legal
status of the declaration made by Mali’s head of State as ‘a unilateral act with legal
implication.’ 86 Again, the Chamber distinguished between formal legal instruments with
unilateral acts of states.

78
International Law Commission Guiding Principles Applicable to Unilateral Declarations of States (2006) art 1.
79
Thirlway, ‘The Sources of International Law’, p.44.
80
Ibid.
81
Procés-Verbaux of the Proceedings of the Committee (1920).
82
Zimmermann, et. al. ‘The Statute of the International Court of Justice: A Commentary’, p. 707.
83
Nicaragua, para.261.
84
Ibid.
85
Frontier Dispute, para.40.
86
Ibid.

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Given the legally binding nature of unilateral acts of states, and how this notion was
consistently applied by international courts absent being a formal source under Article 38(1),
unilateral acts should be made a source of international law.

V. Hierarchy of Sources

Article 38(1) of the Court’s statute does not expressly list a hierarchy of sources. Whilst it was
proposed by Baron Descamp in the 1920 Committee of Jurists that the hierarchy is based on ‘a
decreasing order of ease of proof’ 87 (i.e. treaty first, custom second, general principles third,
‘international jurisprudence’ forth), the Committee ultimately rejected Baron Descamps’
approach as being too ‘superfluous.’88 The issue of a hierarchy of sources plagued not only the
1920 Committee of Jurists, but also the 2001 ILC in its commentary to the Articles on State
Responsibility. 89 Absent a formal hierarchy in Article 38(1), this section of the paper will
attempt to propose a new hierarchy in light of what was discussed in the previous sections.

a. A new hierarchy

Though there is no a priori hierarchy of sources, international courts and international

jurisprudence have shed light on an “implied” hierarchy, such that Articles 38(1)(a) to (c) are
primary sources of international law, whereas Article 38(1)(d) is a subsidiary source of
international law. 90 Furthermore, in the realm of Articles 38(1)(a) to (c), treaties are often first
examined by Courts before any other sources listed in Article 38(1) (though this is
contentious).91

This paper will briefly seek to re-define a new hierarchy of sources to be as such, in descending
order, (1) core international law and norms; (2) legitimized and codified rules of international
law; and (3) aspirational law.92

i. Core international law and norms

87
Procés-Verbaux of the Proceedings of the Committee (1920), p.260.
88
Ibid., p.234.
89
International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts,
with commentaries (2001), Chapter III.
90
Crawford, supra note 7, p.20.
91
Van Hoof, supra note 33, pp.83-84.
92
This paper draws inspiration from Cohen, ‘Finding International Law – Rethinking the Doctrine of Sources’.

11

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Underpinning the foundations of international law is a set of principles, these include jus
cogens, pacta sunt servanda, and principles of equity (list is non-exhaustive).93 Articles 53 and
64 of the Vienna Convention states that if a treaty breaches a jus cogens, that treaty is void.94
Article 26 of the Vienna Convention also notes that ‘[e]very treaty in force is binding upon the
parties to it and must be performed by them in good faith,’95 consistent with the principle of
pacta sunt servanda. This “good faith” obligation was also echoed in Article 2(2) of the UN
Charter.96 This shows that the core principles underpinning international law take precedent
over any other treaty obligation (and/or custom).

The principle of equity, as discussed in Section II, should therefore also fall within the corpus
of core international law. The Tribunal in Norwegian Shipowners’ Claims has opined that
equity has the same force and effect as other ‘general principles’ of international law, 97 which
includes jus cogens and pacta sunt servanda. Hence, this paper argues that equity, and other
‘general principles of international law’ (pursuant to Article 38(1)(c)), should take precedence
over any other sources of international law.

ii. Legitimized and codified rules of international law

Legitimized laws would include international conventions (pursuant to Article 38(1)(a)) and
custom (pursuant to Article 38(1)(b)).98 Treaties and custom are binding under international
law, and their legitimacy has been normalized by international law jurisprudence. It can be
argued that unilateral acts of states should fall into this category since they are also legally
binding under international law (see Section III). Notwithstanding “core international law”
principles, treaties and custom are often the first sources of international law.99 This is evident
in numerous judgments by international courts and tribunals. 100 However, what is contentious
is the relationship between treaty and custom. Prima facie, treaties take precedence over
custom (notwithstanding jus cogens, and subject to lex specialis derogate generali). 101

93
Wood, ‘What is Public International Law? The Need for Clarity about Sources’, p.210.
94
Vienna Convention on the Law of Treaties arts 53, 64.
95
Ibid. art 26.
96
Charter of the United Nations art 2(2).
97
Norwegian Shipowners’ Claims, p.331.
98
Cohen, supra note 92, p.112.
99
Ibid., p.108.
100
Schwarzenberger, ‘International Law’, pp.26-27.
101
Degan, supra note 52, pp.517-524.

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However, while a treaty prevails over custom as between the parties to the treaty, a treaty will
not, in and of itself, affect the rights of States who are not party to the treaty. 102 There is,
therefore, no strict sense of hierarchy between treaty and custom.103 Given the legally binding
nature of treaties, custom, and unilateral acts of states (see Section III), there is no strict
hierarchy amongst the three (two formal, one material) sources of international law. In
examining unilateral acts of states, international courts and tribunals, 104 whilst distinguishing
between custom and unilateral acts, does not give weight to one over the other.

iii. Aspirational international law

This last category would be the lex ferenda of international law as aspired by states and
international actors. UNGA resolutions fall into this category, where there is evidence of state
practice absent opinio juris or any treaties. The concept of “aspirational law” was mentioned
by the ILC in its Report of its 68th session (2016);105 in examining what constitutes customary
law, the commission held that state practice absent opinio juris is not custom but ‘mere
aspiration.’106 Whilst UNGA resolutions are not legally binding (see Section I), they embody
a consensus about the lex ferenda, which ‘may sometimes have normative value’. Given their
status in international law, UNGA resolutions ought to be in the last category in this hierarchy
of “new” sources.

VI. Conclusion

Albeit idealistic, if Article 38(1) of the ICJ Statute were to be updated to reflect contemporary
international law, this paper has argued that other “material sources” ought to be considered.
These include UNGA resolutions, equity, and unilateral acts of states. This paper has
successfully argued the legal nature of other “material sources,” and how these “soft-laws” are
applied consistently by international courts and tribunals. Furthermore, these “sources” have
normalized and materialized into international law jurisprudence. Though these “new sources”
are not exhaustive, they offer some guidance as to their place and value in international law

102
Greenwood, ‘Sources of International Law: An Introduction’, p.5.
103
Ibid.
104
See example: Wolfrum, ‘Sources of International Law’ in Max Planck Encyclopaedia of Public International
Law, Section B.
105
Report of the International Law Commission, 68th Session (2016), pp.83, 349.
106
Ibid., p.83.

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jurisprudence. Linking back to a quote at the start of this paper, ‘[t]he most difficult thing about
international law is finding it.’ 107 One must always strive to “find” international law wherever
they may be, even if it requires updating Article 38(1) of the ICJ Statute.

107
Quoted G.R. Watson, ‘The Oslo Accords’, p.308.

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 Bibliography

A Articles/Books/Reports

Akehurst, Michael, ‘Equity and General Principles of Law’ (1976) 25(4) The International and
Comparative Law Quarterly 801-825

Asamoah, Obed, ‘The Legal Significance of UNGA Resolutions’ (1963) 2 Colombian Journal
of Transnational Law 210-230

Boczek, Boleslaw A., International Law: A Dictionary (Scarecrow Press, 2005)

Boyle, Alan, ‘Soft law in International Law-Making’ in Malcolm D. Evans, International Law
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Charney, Jonathan L., 'International Lawmaking - Article 38 of the ICJ Statute Reconsidered’
in Jost Delbrück, New Trends in International Lawmaking - International 'Legislation' in the
Public Interest (Duncker & Humblot, 1997)

Charlesworth, Hilary C.M., ‘Customary International Law and the Nicaragua Case’ (1984) 11
Australian Yearbook of International Law 1

Cohen, Harlan G., ‘Finding International Law – Rethinking the Doctrine of Sources’ (2007)
93 Iowa Law Review 65

Crawford, James, Brownlie’s Principles of Public International Law (Oxford University Press,
8th ed, 2012)

Degan, V.D., Sources of International Law (Martinus Nijhoff Publishers, 1997)

Gourgourinis, Anastasios, ‘Delineating the Normativity of Equity in International Law’ (2009)

11(3) International Community Law Review 327-347

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Harris, David, Sandesh Sivakumaran, Cases and Materials on International Law (Sweet &
Maxwell, 8th Edition, 2015)

Higgins, Rosalyn, The Development of International Law Through the Political Organs of the
United Nations (Oxford University Press, 1963)

Kennedy, David, ‘The Sources of International Law’ (1987) 1 American University

International Law Review 2

Koh, Harold, ‘A World Transformed’ (1998) 20 Yale Journal of International Law 9

Lowe, Vaughan, ‘The Role of Equity in International Law’ (1988) 12 Australian Yearbook of
International Law 54

Rossi, Christopher R., Equity as a Source of International Law?: A legal realist approach to
the process of international decision making (PhD Thesis, John Hopkins University, 1990)

Rosenne, Shabtai, The Perplexities of Modern International Law (Martinus Nijhoff Publishers,
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Schwarzenberger, Georg, International Law (Stevens, 1957)

Shelton, Dinah, ‘International Law and “Relative Normativity”’ in Malcolm D. Evans,

International Law (Oxford University Press, 2014)

Sloan, F. Blaine, ‘The Binding Force of a ‘Recommendation’ of the General Assembly of the
united Nations’ (1948) 25 British Yearbook of International Law 1

Sloan, F. Blaine, United Nations General Assembly Resolutions in Our Changing World
(Transnational Publishers, 1991)

Thirlway, Hugh, The Sources of International Law (Oxford University Press, 2014)

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Van Hoof, G.J.H., Rethinking the Sources of International Law (Kluwer Law and Taxation
Publishers, 1983)

Weeramantry, Christopher, Universalising International Law (Martinus Nijhoff Publishers,

2004)

White, Margaret, ‘Equity – A General Principle of Law Recognised by Civilized Nations?’

(2005) 4 Law and Justice Journal 1

Wood, Michael, ‘What is Public International Law? The Need for Clarity about Sources’ (2011)
1(2) Asian Journal of International Law 205-216

Zimmermann, Andreas, et. al., The Statute of the International Court of Justice: A Commentary
(Oxford University Press, 2012)

B Cases

Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v Rwanda) (Jurisdiction and Admissibility, Judgment) [2006] ICJ Rep 6

Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory
Opinion) [1962] ICJ Rep 151

Continental Shelf (Tunisia v Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep 473

Corfu Channel case (The People’s Republic of Albania v United Kingdom of Great Britain and
Northern Ireland) (Judgment) [1949] ICJ Rep 244

Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of
America) (Judgment) [1982] ICJ Rep 246

Diversion of Waters from the River of Meuse (Netherlands v Belgium) (Judgment) [1937] PCIJ
(ser A/B) No 70

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Fisheries Case (United Kingdom of Great Britain and Northam Ireland v Norway) (Judgment)
[1951] ICJ Rep 116

Fisheries Jurisdiction (United Kingdom of Great Britain and Northam Ireland v Iceland)
(Merits) [1974] ICJ Rep 3

Free Zones of Upper Savoy and the District of Gex (Judgment) [1932] PCIJ (ser A/B) No 46

Frontier Dispute Case (Burkina Faso v Republic of Mali) (Judgment) [1986] ICJ Rep 554

Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America) (Merits) [1986] ICJ Rep 14

North Sea Continental Shelf cases (Federal Republic of Germany v Denmark; Federal
Republic of Germany v Netherlands) (Judgment) [1969] ICJ Rep 3

Norwegian Shipowners’ Claims (Norway v United States of America) (Award) [1922] PCA
309

Nuclear Tests Case (Australia v France) (Judgment) [1974] ICJ Rep 253

Panel Report, United States – Case Concerning Sections 301-310 of the Trade Act of 1974,
WTO Doc WT/DS152/R (22 December 1999)

Reparation for injuries suffered in the service of the United Nations (Advisory Opinion) [1949]
ICJ Rep 174

Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s
Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case [1995] ICJ
Rep 288

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South West Africa (Ethiopia & Liberia v South Africa), Second Phase (Judgement) [1966] ICJ
Rep 6

Voting Procedure on questions relating to reports and petitions concerning the territory of
South-West Africa (Advisory Opinion) [1955] ICJ Rep 67

C International Instruments and United Nations Documents

Charter of the United Nations

Documents of the United Nations Conference on International Organization San Francisco,

1945, (New York and London: United Nations Information Organization in Cooperation with
Library of Congress, 1945-1946)

International Law Commission, Report of the International Law Commission, UN GAOR, 57th
sess, Supp No 10, UN Doc A/60/10 (2 May-3 June and 11 July-5 August 2005)

International Law Commission, Guiding Principles applicable to unilateral declarations of

States capable of creating legal obligations, with commentaries thereto, UN GAOR, 58th sess,
Supp No 10, UN Doc A/61/10 (1 May - 9 June and 3 July - 11 August 2006)

International Law Commission, Draft Articles on Responsibility of States for Internationally

Wrongful Acts, with commentaries, UN GAOR, 53th sess, Supp No 10, UN Doc A/56/10
(November 2001)

International Law Commission, Report of the International Law Commission, UN GAOR, 68th
sess, Supp No 10, UN Doc A/71/10 (2 May-10 June and 4 July-12 August 2016)

Permanent Court of International Justice, Advisory Committee of Jurists, Procés-Verbaux of

the Proceedings of the Committee June 16th – July 24th, 1920, with Annexes (The Hague: Van
Langenhuysen Brother, 1920)

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Review of the Role of the International Court of Justice, GA Res 3232 (XXIX), UN GAOR,
29th sess, 93rd mtg, UN Doc A/9846 (5 November 1974, adopted 12 November 1974)

Situation of Human Rights in the Democratic People's Republic of Korea, GA Res 62/167, UN
GAOR, 62nd sess, 167th mtg, Agenda Item 70(c), UN Doc A/RES/62/167 (28 February 2008)

Statute of the International Court of Justice

Uniting for Peace, GA Res 377 (V), UN GAOR, 5th sess, 302nd plen mtg, UN Doc
A/RES/377(V) A (3 November 1950)

Victor Rodríguez Cedeño, Special Rapporteur, Third Report on unilateral acts of States, 52nd
sess, UN Doc A/CN.4/505 (17 February 2000)

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS
311 (entered into force 27 January 1980)

D Other

Greenwood, Christopher, Sources of International Law: An Introduction (2008)

<http://legal.un.org/avl/pdf/ls/greenwood_outline.pdf>

Oxford University Press, Max Planck Encyclopaedia of Public International Law, vol 10 (at
May 2011) Section B Sources of International Law, ‘B Identification of Sources of
International Law’

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