The Nature and Development of International Law

Ever since the time of our ancestors, who were crawling in dark caves, to the present day, when
the computer has become a part and parcel of life, law has been an integral component of
humanity. No society can live without order; chaos is totally opposed to that just and stable
existence. For each society whether it is big or small, powerful or weak, there are principles
within which it operates. They contain prohibitions and permissions for different activities that
individuals may be engaged in. Sometimes the leaps of progress have no explanation as they are
founded on groupies where men and women come together to achieve a common goal such as
hunting animals, growing food or simply making money.

Law serves as a medium through which people in community maintain their adherence to
acknowledged values and norms. It allows individuals to impose their own legal relations among
themselves with rights as well as duties like contracts while also serving some punitive purpose
for those who go against its provisions. Law consists of rules controlling human behavior which
also reflect some aspects of societal concerns.

This is what happens under international law except that it focuses on nation-states rather than
individual citizens; these are however always exceptions. There are significant differences
between domestic (municipal) law on one hand and international law on the other hand which
includes laws between states/supranational organizations/international institutions/individuals in
some cases. International law itself is divided into conflict of laws (or private international law as
it is sometimes called) and public international law (usually just termed international law). The
former deals with those cases, within particular legal systems, in which foreign elements obtrude
raising questions as to the application of foreign law or the role of foreign courts.

1 This term was first used by J. Bentham: see Introduction to the Principles of Morals and

Legislation, London, 1780.

2 See e.g. C. Cheshire and P. North, Private International Law, 13th edn, London, 1999.

In such a situation, if two Englishmen create an agreement in France to distribute goods located
in Paris, the English court will apply French law as to the validity of that agreement. However,
on the other hand, public international law is not merely another component of a legal system or
some sort of a branch but it is actually an autonomous system and this is what this book deals
with.

The sphere of public international law encompasses all aspects of relations between states
ranging from war to artificial satellites and governs activities of many international
organizations. It may be general or universal when rules laid down by it are binding upon all
countries (or almost all depending on the nature of such rule) or regional meaning that certain
rules are recognized among a group of neighboring countries or those sharing similar political
ideology. For example, Latin America has developed its own practice for granting diplomatic
asylum that does not exist elsewhere. 4 The rules formulated by international law must be
distinguished from those called “international comity” like saluting foreign naval vessels at sea
which are mere courtesy without any legal force.

On the other hand, mistaking international morality for international law should be avoided.
While there might be areas where they overlap, the former is concerned with legality in terms
both of content and form whereas the latter belongs to ethics. Nevertheless, this does not imply
that there can be divorcement between values and international law.

Within this chapter and one following it we shall discuss peculiarities related to construction of
the global legal structure as well as look at historical background needed to understand how
much role should be played by national legislation inside world legislation’s framework.

International Law and Politics

The first question that comes to mind is the legal quality of international law. Any party to an
international dispute would assert it has acted within the confines of international law and this is
so because within the global system there is no independent institution capable of providing
answers in form of binding decisions.

Virtually every person who reads about international law knows what ordinary or national legal
structure entails for him. For example, one will think about a recognized organ responsible for
making the laws,

3 See the Serbian Loans case, PCIJ, Series A, No. 14, pp. 41–2.

4 See further below, p. 92.

5 North Sea Continental Shelf cases, ICJ Reports, 1969, p. 44; 41 ILR, p. 29. See also M.

Akehurst, ‘Custom as a Source of International Law’, 47 BYIL, 1974–5, p. 1.

courts with binding authority over disputed laws and agencies mandated to enforce them.
Without the presence of legislation, judiciary and executive, it becomes impossible to think of
any kind of legal order. 6 And this model does not work for international law. International law
lacks a legislature. There exists General Assembly which includes delegates from all its Member
States but its resolutions are not legally binding save for certain organs or purposes11.There are
no courts; however, there exists International Court of Justice at The Hague which only exercises
jurisdictional powers if both parties consent8.It also cannot ensure enforcement9.Firstly, there is
no single “executive” or governing body. The Security Council was designed by a group of
nations which had assumed such function in some way being limited by veto power vested with
five permanent members: USA; USSR (Russian Federation), China; France and UK9.How can
you call these things rules if there is no identifiable institution either making them or interpreting
them or punishing those who go against etiquette? Thus, the argument takes it as granted that
domestic law should be compared with international law and assumes that national system may
correspond with the global order. Many discussions on international law revolve around this
aspect. And this captures very well what debates about characterizing such norms have always
been based upon. John Austin, an English philosopher at the beginning of the19th century,
designed his theory on commands issued by sovereigns backed by corresponding sanctions.
According to this definition, international law fell in the category of “positive morality”10.This
has been criticized for making things too simple and even blurring the line between international
law and a shared moral code by assuming that all rules must be sanctioned11.Austin’s theory
cannot be discussed in detail here but it is important to take up coercion as an inevitable element
of any legal system for examination within the context of international law.

See generally, R. Dias, Jurisprudence, 5thedn, London, 1985, andH. L. A.Hart, TheConcept
of Law, Oxford, 1961.
7 See article 17(1) of the United Nations Charter. See also D. Johnson, ‘The Effect of
Resolutions
of the General Assembly of the United Nations’, 32 BYIL, 1955–6, p. 97 and below,
chapter 22.
8 See article 36 of the Statute of the International Court of Justice and below, chapter 19.
9 See e.g. Bowett’s Law of International Institutions (eds. P. Sands and P. Klein), 5th edn,
London, 2001, and below, chapter 23.
10 See J. Austin, The Province of Jurisprudence Determined (ed. H. L. A. Hart), London, 1954,
pp. 134–42.
11 See e.g. Hart, Concept of Law, chapter 10.
Force’s Role
The lack of one body of sanctions in the international law as with municipal law implies that
there are instances where the use of force is taken to be valid and lawful. Sanctions may be
imposed by the Security Council acting through the United Nations on finding a threat to peace,
breach of peace or an act of aggression.13 These sanctions can be economic for example those
proclaimed in 1966 against Rhodesia,14 military as in the Korean war in 1950,15 or even both as
was the case in 1990 against Iraq.16
Within the framework of UN, coercion rarely occurs because it calls for coordination among all
five permanent members of the Security Council, a situation that presupposes such an issue not
considered by any great powers as a threat to their essential interests.
This was evident in Korea which provided for joint action only due to USSR’s accidental
absence from Council while protesting against presence of Chinese nationalist representatives17.
In addition to such institutional sanctions, self-help actions can also be mentioned when referring
to violent acts taken against someone.
Primitive legal systems involving blood feuds are characterized by this resorting to violence over
specific rights.
However, within national legal system these methods and procedures are exclusively regulated
by authorized state agents.
States may employ force for self-defense if attacked and also respond militarily to illegal
behaviors by other states. In some cases it is up to each individual state whether or not they will
intervene and how far they will go with their measures and there being no higher authority which
could determine its legality or otherwise other than submission before International Court Of
Justice agreed upon by both parties but this does not mean that these rules do not exist under
international law since international law does enshrine them19.
Hence such writers who place emphasis on force encounter various problems while describing
nature or rather legal nature of international law especially due to its unconnected less accepted
and all- embracing framework of sanctions. To regard states’ rights of self-defense and reprisal
as legal sanctions in international law is to miscomprehend the nature of this institution where
they are tools for states, not instruments for the system itself. Besides, it has to be taken into
account that the modern tendency of international law is to minimize as much as possible the
application of force which paradoxically means that the more control there is over power within
world community, then there will be less legitimacy in world jurisprudence.
The character or rather nature of international law cannot be discovered by defining it as a kind
of national legislation following from its sanction base. Hence, we have to look into its character
as an international legal order to see whether countries actually feel obligated by international
rules at all and if yes why do they follow them. The absence of an affirmative answer concerning
their obligation would mean that those states do not consider themselves bound by any
established legal regime throughout the globe thus nullifying all claims about some sort system
of global governance based on laws under global rule.
12 See e.g. W. M. Reisman, ‘Sanctions and Enforcement’ in The Future of the International
Legal Order (eds. C. Black and R. A. Falk), New York, 1971, p. 273; J. Brierly, ‘Sanctions’,
17 Transactions of the Grotius Society, 1932, p. 68; Hart, Concept of Law, pp. 211–21; A.
D’Amato, ‘The Neo-Positivist Concept of International Law’, 59 AJIL, 1965, p. 321; G.
Fitzmaurice, ‘The Foundations of the Authority of International Law and the Problem of
Enforcement’, 19 MLR, 1956, p. 1, and The Effectiveness of International Decisions (ed. S.
Schwebel), Leiden, 1971.
13 Chapter VII of the United Nations Charter. See below, chapter 22.
14 Security Council resolution 221 (1966). Note also Security Council resolution 418 (1977)
imposing a mandatory arms embargo on South Africa.
15 Security Council resolutions of 25 June, 27 June and 7 July 1950. See D.W. Bowett, United
Nations Forces, London, 1964.
16 Security Council resolutions 661 and 678 (1990). See The Kuwait Crisis: Basic Documents
(eds. E. Lauterpacht, C. Greenwood, M.Weller and D. Bethlehem), Cambridge, 1991, pp.
88 and 98. See also below, chapter 22.
17 See E. Luard, A History of the United Nations, vol. I, The Years of Western Domination
1945–55, London, 1982, pp. 229–74, and below, chapter 22.
18 See D. W. Bowett, Self-Defence in International Law, Manchester, 1958, and I. Brownlie,
International Law and the Use of Force by States, Oxford, 1963.
The International System 21
Unique attributes of the global system can be tapped to locate desired information.
This is because, unlike other systems, it is based on relationships between states that are held
together by a set of common principles and agreed modes of doings things.22 While societies
differ greatly in their levels of development, there is no doubt that most are organized along
hierarchical lines where the issue of authority becomes vertical.
Such as vertical power structures dominated by a single top leader, hierarchical legal structures
do not exist in the international arena. The globe itself does not have an empire which means that
it comprises around 190 sovereign countries with none having authority over any
Other. In domestic systems, law comes before individuals while for the rest of the world; it exists
only within states. As far as internal law-making is concerned, individuals decide whether or not
to follow them. They don’t create laws but rather laws are created by some institutions.
However, when it comes to international law, these legislations are made by governments
themselves and they may decide to follow them or disobey them23 this has obvious implications
for both the sources and methods through which legal rules are enforced.
As will be seen later in this book, international law is primarily based on two kinds: treaties
establishing binding obligations on signatories and customary practices amounting basically to
state actions which are universally regarded as laying down norms whose violation would invite
criticism from others.
Yet some people may argue that since they have signed these agreements themselves and
engaged in activities that could be seen as non-legally binding said countries represent nothing
more than a series of rules they might choose from; all this seems likely if we take into account
numerous exceptions contained in particular conventions. It is false to say hat states never abide
with international statutes. But then this violation (examples include wars and racial
discrimination) usually hits headlines as well as undermines every aspect of peace making in
global society24 On the other hand, just as some incidents of murder, robbery and rape occur
within the framework of national legal orders without ripping apart that system itself similarly
breaches against international legal rules reveal imperfections in this very system but without
devaluing their validity or necessity. Thus, despite an occasional flagrant disregard for it, most of
the provisions of International law are observed24
19 See below, chapter 19. See also M. Barkin, Law Without Sanctions, NewHaven, 1967.
20 See e.g. H. Kelsen, General Theory of Law and State, London, 1946, pp. 328 ff.
21 See L. Henkin, How Nations Behave, 2nd edn, New York, 1979, and Henkin, International
Law: Politics and Values, Dordrecht, 1995; M. A. Kaplan and N. Katzenbach, The Political
Foundations of International Law, New York, 1961; C. W. Jenks, The Common Law of
Mankind, London, 1958; W. Friedmann, The Changing Structure of International Law,
New York, 1964; A. Sheikh, International Law and National Behaviour, New York, 1974;
O. Schachter, International Law in Theory and Practice, Dordrecht, 1991; T. M. Franck,
The Power of Legitimacy Among Nations, Oxford, 1990; R. Higgins, Problems and Process,
Oxford, 1994, and Oppenheim’s International Law (eds. R. Y. Jennings and A. D. Watts),
9th edn, London, 1992, vol. I, chapter 1.
22 As to the concept of ‘international community’, see e.g. G. Abi-Saab, ‘Whither the
International
Community?’, 9 EJIL, 1998, p. 248, and B. Simma and A. L. Paulus, ‘The
“International Community”: Facing the Challenge of Globalisation’, 9 EJIL, 1998, p. 266.
See also P.Weil, ‘Le Droit International en Quˆete de son Identit´e’, 237 HR, 1992 VI, p. 25.
23 This leads Rosenne to refer to international law as a law of co-ordination, rather than, as in
internal law, a law of subordination, Practice andMethods of International Law, Dordrecht,
1984, p. 2.
24 See H.Morgenthau, Politics Among Nations, 5th edn, New York, 1973, pp. 290–1; Henkin,
How Nations Behave, pp. 46–9; J. Brierly, The Outlook for International Law, Oxford, 1944,
p. 5, and P. Jessup,AModern Law of Nations, New York, 1948, pp. 6–8.
The International System21

International life’s daily routine is characterized by a large volume of agreements and customs
that are complied with. However, in the midst of the complex web of world events there is need
for some kind of set of guidelines or rules within which the game can be played, and
international law fulfills that requirement. The nations consider it as a contribution to stability
and predictability in this regard. If countries are engaged in disputes or disagreements, then it
would be useful even though they have different views regarding the interpretation for them to
have recourse to international law considering that at least they share a common frame of
reference and one state will know how argumentation will go on in another state.

They talk across each other since misunderstandings arise too frequently, leading to tragedies.
Ignoring this fact would amount to mistake. In case the adversaries disagree over what one
particular rule means and take opposite stances towards its implementation, they are still able to
communicate because they understand each other’s

language. It isn’t everything but something like that, for international law should not be expected
to accomplish more than it can. It may constitute a dictionary which both sides can understand
and suggest possible solutions derived from an analysis of its principles.

It cannot however resolve every dangerous and intricate situation just because it exists.
International law has not yet reached that point if it ever will; consequently, promising any
excessive capabilities while emphasizing positive aspects is a grave error.

Why then can’t a country just ignore international law when following its preferred course? Can
the legal prohibition against aggression on its own overcome political temptations? There is no
global police force to guard against such an occurrence but there exist many other considerations
closely related to the nature of international laws which might deter a potential aggressor from
taking this step.

This is sometimes deployed as recipro city and it is rather usefull as far as tactics are concerned
especially where states do not opt for one particular path that could bring them immediate
benefits, as it could disrupt the web of reciprocal tolerance which might result in long-term
setbacks. For instance, states everywhere maintain diplomatic immunity for foreign diplomats
because not doing so would expose their own officials abroad to danger.25

Therefore, this provides an incentive for states to act reasonably and lower their demands in hope
of encouraging other states to do the same and therefore avoid conflicts. As they ultimately
depend on statebehavioural patterns or changes of custom andmutual consent, these rules still
relate directly to political life.It is true that a state may decide after weighing up all possible
choices that violation of international law is necessary in order to defend its vital interests while
accepting any responsibility involved.
Where survival is at stake international law must take second place. Another important
consideration are the so called ‘rewards’ attachedto certain casesby following international law.
It may For instance, one country involved in a conflict may request friendly or neutral states to
support it while ignoring its opponent and even become more active than they would have been.
In many ways, this is an appeal to public opinion for backing which all states employ as a tool.

It is in many respects an expression of the esteem that law enjoys. The Soviet Union heavily
relied on legal arguments to assert its non-liability to contribute towards United Nations
peacekeeping operations26; likewise the Americans justified their activities with reference to
international law vis-à-vis Cuba27 and Vietnam28. It may sometimes be effective and gather
much support, but many times it will not, however, a positive sign that every state does so
anyway.

Another point worth noting here is the constant framing of international business in typically
legal terms. Thus,particular viewpoints or disputes are legally cloaked with reliance on
precedent, international conventions and even authorities’ opinions. Instead of being approached
from the moral or ethical dimension,claims rest on how these conform to the tenets of
international law29.

And thus arose officials throughout governmental departments as well as those working in
international institutions who are trained in international law and engage in routine functions of
government within a legal framework.

In fact, many commentators have highlighted the importance of officials’ role in the operation of
law itself and their influence on legal process30.

Having come to appreciate that countries do obey international law and would only violate it
when they believe their national interests are at stake, what then underpins this sense of duty?31

The 19th century emphasized contract as a basis for agreement voluntarily entered into by
partners– big businessmen–such foundation also influenced consent theory in International
Law32. States were sovereign equals: free actors who were therefore bound by nothing unless
they agreed to be bound themselves. No authority existed capable either theoretically or
practically to impose rules on a variety of nation-states. The extreme form of this conception was
self-limitation or auto-limitation theory, which stated that states were only obliged by
international legal rules if they had first agreed to be so obliged33.

However, from the standpoint of accounting for why there is a binding international law and
even explaining the international legal system it is an unsatisfactory theory34. To offer a single
illustration, there are about 100 states that have been established after WWII and one can hardly
say that such states have given their consent to all rules of international law previously
established. “Accepting independence” could also mean acceptance of all existing rules but this
view would essentially denigrate consent as a fiction35.
25 See Case Concerning United States Diplomatic and Consular Staff in Tehran, ICJ Reports,

1980, p. 3; 61 ILR, p. 502. See also the US Supreme Court decision in Boos v. Barry 99 L.

Ed. 2d 333, 345–6 (1988); 121 ILR, p. 499.

26 See Certain Expenses of the United Nations, ICJ Reports, 1962, p. 151; 34 ILR, p. 281, and

R. Higgins, United Nations Peace-Keeping; Documents and Commentary, Oxford, 4 vols.,

1969–81.

27 See e.g. A. Chayes, The Cuban Missile Crisis, Oxford, 1974, and Henkin, How Nations

Behave, pp. 279–302.

28 See e.g. The VietnamWar and International Law (ed. R. A. Falk), Princeton, 4 vols., 1968–

76; J. N. Moore, Law and the Indo-China War, Charlottesville, 1972, and Henkin, How

Nations Behave, pp. 303–12.

29 See Hart, Concept of Law, p. 223.

30 See e.g.M. S.McDougal, H. Lasswell andW.M. Reisman, ‘TheWorld Constitutive Process

of Authoritative Decision’ in International Law Essays (eds. M. S. McDougal and W. M.

Reisman), New York, 1981, p. 191.

31 See e.g. J. Brierly, The Basis of Obligation in International Law, Oxford, 1958.

32 See W. Friedmann, Legal Theory, 5th edn, London, 1967, pp. 573–6. See also the Lotus

case, PCIJ, Series A, No. 10, p. 18.

33 E.g. G. Jellinek, Allgemeine Rechtslehre, Berlin, 1905.

34 See also Hart, Concept of Law, pp. 219–20. But see P. Weil, ‘Towards Relative Normativity

in International Law?’, 77 AJIL, 1983, p. 413 and responses thereto, e.g. R. A. Falk, ‘ToWhat

Extent are International Law and International Lawyers Ideologically Neutral?’ in Change

and Stability in International Law-Making (eds. A. Cassese and J.Weiler), 1989, p. 137, and

A. Pellet, ‘The Normative Dilemma: Will and Consent in International Law-Making’, 12

Australian YIL, 1992, p. 22.

35 See further below, p. 88.

This theory is also inadequate as an explanation of the international legal system since it fails to
consider the enormous growth of international institutions and the network of rules and
regulations that have emerged therefrom within the past generation.

Accepting consent as a basis for obligation in international law36 is just begging the question
what happens when consent is withdrawn. Reversal by a state of its agreement to a rule does not
render such rule optional or deprive it of its legal appearance. This only puts that particular state
in violation of its obligations under international law if it proceeds to act upon its decision.
However, even the idea that agreements are binding (pacta sunt servanda) on which rests all
treaty law must itself not be predicated upon consent.37

36 See e.g. J. S. Watson, ‘State Consent and the Sources of International Obligation’, PASIL,

1992, p. 108.

37 See below, chapter 3.

38 See e.g. A. D’Amato, ‘On Consensus’, 8 Canadian YIL, 1970, p. 104. Note also the
‘gentleman’s

agreement on consensus’ in the Third UN Conference on the Law of the Sea:

see L. Sohn, ‘Voting Procedures in United Nations Conference for the Codification of

International Law’, 69 AJIL, 1975, p. 318, and UN Doc. A/Conf.62/WP.2.

39 See e.g. J. Charney, ‘Universal International Law’, 87 AJIL, 1993, p. 529.

or the basic structure where the demand for state approval transitions into community
endorsement.

It is worth noting that at times states oppose certain rules of international law and opt to change
them, but no state has ever intended to argue that it is free to reject the whole system.

Certainly each state has a right to try in one way or another, by word or deed, to affect the
formation of some particular rule yet its creation as customary international law need not depend
on the express consent of each such individual state.

The Function of Politics

It is important to understand this: that politics cannot be separated entirely from law. But what
theory of law may be chosen or what political philosophy may be professed, it should be
recognized that law and politics are inseparable. It should be noted that developed societies
distinguish between policy formulation and enforcement methods; Parliament legislates while
courts adjudicate in this country and so do the Congress and court system in America.

The aim hereof is naturally the prevention of accumulation of too much power in any one
branch. However, it is essentially a political arm which makes laws first and foremost creates
legal systems. Even within the hierarchy there exists an element of arbitrariness by judges who
can interpret a given statute whatever way they want among other options.40 Nevertheless, this
standpoint does not justify itself because there are many factors covering up and diminishing the
influence exercised by politics over the judiciary. Among all these factors there is primarily
psychological element called tradition,

and development of so-called “legal-habit”.41 Particular legal atmosphere was created buttressed
by political system which recognizes independent existence of “just” or “lawful” institutions as
well as operations governed under a set standard such as ‘legal’.

In most countries direct intervention into judicial procedure would be treated as challenge
against cardinal principles and fiercely debated. Legal language, accepted procedure with pride
at bar reinforce case-law system and stress

40 See e.g. R. Dworkin, Taking Rights Seriously, London, 1977.

41 See e.g. K. Llewellyn, The Common Law Tradition, Boston, 1960, and generally D. Lloyd,

Introduction to Jurisprudence, 4th edn, London, 1979.

The separation of powers is an important part of any democratic governance, and most countries
try to ensure that there is enough distance between the legislative-executive organs and the
judicial system (42).

However, this changes when you look at international law. Ultimately, it is states that determine
what constitutes global order – in other words they make rules (leaving aside for now the
growing importance of secondary and less important international organisations) and interpret
and enforce them.

Whereas government officials internationally have some semblance of “international legal

habit”, no machinery exists to enshrine this.

National politics are more political than perceivable within national legal systems: power is more
noticeable (43). The relationship between international law and politics in world affairs is far
more intricate and hard to resolve, thus returning us back to earlier discussions on why states
follow international rules. In contrast, power politics emphasizes competition, conflict,
dominance as driven by survival desires_ its core.44 On the other hand, International law seeks
to bring about harmony among nations and regulate conflicts; it tries to create a framework—
even one as basic as a shock absorber—that helps clarify claims and moderate them in the
struggle over interests. Besides that, it introduces a number of principles indicating how states
should conduct themselves; just like any community must have certain ideals or aspirations
however unrealistic they may be so must the global society also bear its ultimate values in mind
always.

But these ultimate values are kept at arm’s length from the legal process for formal reasons only.
As noted by the International Court in South-West Africa case 45 ‘It is a court of law, and can
take account of moral principles only in so far as these are given a sufficient expression in legal
form. It has been said that law exists for social purposes; but this means precisely that it acts only
through itself; under limitations.’46

International Law cannot provide instant answers to issues arising from conflicts because it is not
equipped with the tools to do so in its inherent weakness.

42 See P. Stein and J. Shand, Legal Values in Western Society, Edinburgh, 1974.

43 See generally Henkin, How Nations Behave, and Schachter, International Law, pp. 5–9.

44 See G. Schwarzenberger, Power Politics, 3rd edn, London, 1964, and Schwarzenberger,

International Law, 3rd edn, London, 1957, vol. I, andMorgenthau, Politics Among Nations.

45 ICJ Reports, 1966, pp. 6, 34.

46 But see Higgins’ criticism that such a formulation may be question-begging with regard

to the identity of such ‘limits of its own discipline’, Problems, p. 5.

Appearances can be deceptive, as structure and content reveal. If this is unacknowledged then a
utopian approach is encouraged which will inevitably fail when confronted with reality. On the
other hand, while being more depressing, a cynical attitude of brute power fixation would also be
inaccurate.

It’s the middle way that offers the best hope – it accepts both the strength and weakness of
international law; what it can achieve and what it cannot. Man seeks order, welfare and justice
not only in his own country but also within the international system.

Historical development48

For example, the foundations of contemporary international law or law of nations today owe
their existence to western cultural and political developments.

The growth of European notions of sovereignty and the independent nation state demanded an
acceptable means by which inter-state relations could be conducted according to common
standards recognized by all.
47 Note, of course, the important distinction between the existence of an obligation under

international law and the question of the enforcement of that obligation. Problems with

regard to enforcing a duty cannot affect the legal validity of that duty: see e.g. Judge

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.

48 See in particular A. Nussbaum, A Concise History of the Law of Nations, rev. edn, New

York, 1954; Encyclopedia of Public International Law (ed. R. Bernhardt), Amsterdam, 1984,

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

Law in a Divided World, Oxford, 1986, and Cassese, International Law, 2nd edn, Oxford,

2005, chapter 2; Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public,

7th edn, Paris, 2002, p. 41; H. Thierry, ‘L’Evolution du Droit International’, 222 HR, 1990

III, p. 9; P. Guggenheim, ‘Contribution `a l’Histoire des Sources du Droit des Gens’, 94

HR, 1958 II, p. 5; A. Truyol y Serra, Histoire de Droit International Public, Paris, 1995;

D. Gaurier, Histoire du Droit International Public, Rennes, 2005; D. Korff, ‘Introduction `a

l’Histoire de Droit International Public’, 1 HR, 1923 I, p. 1; P. Le Fur, ‘Le D´eveloppement

Historique de Droit International’, 41 HR, 1932 III, p. 501; O. Yasuaki, ‘When was the

Law of International Society Born? An Inquiry of the History of International Law from

an Intercivilisational Perpective’, 2 Journal of the History of International Law, 2000, p. 1,

and A. Kemmerer, ‘The Turning Aside: On International Law and its History’ in Progress

in International Organisation (eds. R. A. Miller and R. Bratspies), Leiden, 2008, p. 71.

For a general bibliography, see P. Macalister-Smith and J. Schwietzke, ‘Literature and

Documentary Sources relating to theHistory of International Law’, 1 Journal of the History

of International Law, 1999, p. 136.

For instance, behavior, international law and the laws of nations filled this gap. Yet, even as it
took root and blossomed in Europe during the Renaissance with great sophistication, it must be
remembered that this particular hybrid’s seeds have a far older lineage reaching back to history.

Ancient Beginnings

While the modern system of state can be traced back to about 400 years ago, certain key
principles of public law can be discerned in ancient politics.

This means that some legal relations between states began over four thousand years ago. For
example, around 2100 BC there was a solemn treaty signed by the rulers of Lagash and Umma
who were city-states situated within the area historians refer to as Mesopotamia. It was inscribed
on a stone block – and it was all about establishing an exact border which both sides had to
respect or else they would offend some Sumerian gods.50 The next well-known major case,
where important binding international agreements were reached is one that dates back over 1,000
years when Rameses II of Egypt and king of Hittites concluded such

treaty for the purpose of establishing eternal peace and brotherhood.51 Other provisions in that
agreement signed at Kadesh, north of Damascus included respect for each other’s territorial
integrity; ceasing aggression on either side; as well as creation of a formative defensive pact
towards this end.

Since then many deals between Middle East antagonists have been made whose aim was usually
either ritualising subservience or attempting political alliances against too powerful an empire.52

49 See D. J. Bederman, International Law in Antiquity, Cambridge, 2001.

50 Nussbaum, Law of Nations, pp. 1–2. Note the discovery in the excavated city of Ebla, the

capital of a civilisation at least 4,500 years old, of a copy of a political treaty between Ebla

and the city of Abarsal: see Times Higher Education Supplement, 19 May 1995, p. 20. See

also R. Cohen, On Diplomacy in the Ancient Near East: The Amarna Letters, Discussion

Paper of theCentre for the Study ofDiplomacy,University of Leicester, 1995;O. Butkevych,

‘History of Ancient International Law: Challenges and Prospects’, 5 Journal of the History

of International Law, 2003, p. 189; A. Altman, ‘Tracing the Earliest Recorded Concepts of

International Law. The Early Dynastic Period in Southern Mesopotamia’, 6 Journal of the

History of International Law, 2004, p. 153, and ‘Tracing the Earliest Recorded Concepts of
International Law. (2) The Old Akkadian and Ur III Periods inMesopotamia’, 7 Journal of

the History of International Law, 2005, p. 115.

51 Nussbaum, Law of Nations, pp. 1–2.

52 Preiser emphasises that the era between the seventeenth and fifteenth centuries BC witnessed

something of a competing state systeminvolving five independent (at various times)

states: Bernhardt, Encyclopedia, vol. VII, pp. 133–4.

The role of ancient Israel is also worth mentioning. A universal ethical perspective coupled with
rules about war was dictated to other nations and religions and the demand for justice and a fair
system of law based on strict morality pervaded the thought and behavior of subsequent
generations.53 Isaiah, for instance, pronounced that sworn pacts, even made with foes, must be
kept.54 It was through peace and social justice that humanity would flourish, not by means of
power.

After being much overlooked, more consideration now exists concerning pre-Christian Far East
cultures that occurred in the past 1000years ago from India55 to China56.As such, several Hindu
regulations showed a rising sense of morality and giving while Chinese Empire put great weight
on harmonious relationships between its constituents. Regulations were made against violence
and behavior of different factions towards innocents but still ethics were taught to ruling class
children in school. In times when China was dominant there operated a regional tributary-states
system which sometimes broke down but remained culturally viable over many centuries.

However the main approach followed by early civilizations involved geographic location as well
as cultural factors. There was no concept of an

53 See P.Weil, ‘Le Judaisme et leD´eveloppement du Droit International’, 151 HR, 1976, p. 253,

and S. Rosenne, ‘The Influence of Judaism on International Law’, Nederlands Tijdschrift

voor Internationaal Recht, 1958, p. 119.

54 See Nussbaum, Law of Nations, p. 3.

55 Ibid. See also C. H. Alexandrowicz, An Introduction to the History of the Law of Nations

in the East Indies, Leiden, 1967, and Alexandrowicz, ‘The Afro-Asian World and the Law

of Nations (Historical Aspects)’, 123 HR, 1967, p. 117; L. Chatterjee, International Law

and Inter-State Relations in Ancient India, 1958; Nagendra Singh, ‘The Distinguishing

Characteristics of the Concept of the Law of Nations as it Developed in Ancient India’,

Liber Amicorum for Lord Wilberforce (eds. A. Bos and I. Brownlie), Oxford, 1987, p. 91;

R. P. Anand, International Law and the Developing Countries, The Hague, 1987; International

Law and Practice in Ancient India (ed. H. S. Bhatia), New Delhi, 1977; Nagendra

Singh, India and International Law, NewDelhi, 1969, and P. Bandyopadhyay, International

Law and Custom in Ancient India, New Delhi, 1982.

56 Nussbaum, Law of Nations, p. 4; Liu Tchoan Pas, Le Droit des Gens et de la Chine Antique,

Paris, 2 vols., 1926; P. Gong, The Standard of ‘Civilisation’ in International Society, 1984,

pp. 130–63; pp. 164–200 with regard to Japan; pp. 201–37 with regard to Siam; I. C. Y.

Hsu, China’s Entrance into the Family of Nations, Harvard, 1960; K. Iriye, ‘The Principles

of International Law in the Light of Confucian Doctrine’, 120 HR, 1967, p. 1, and Wang

Tieya, ‘International Law in China’, 221 HR, 1990 II, p. 195. See also C. F. Amerasinghe,

‘South Asian Antecedents of International Law’ in International Law – Theory and Practice

(ed. K. Wellens), The Hague, 1998, p. 3, and E. Y.-J. Lee, ‘Early Development of Modern

International Law in East Asia – With Special Reference to China, Japan and Korea’, 4

Journal of the History of International Law, 2002, p. 42.

international community of states that coexist within a defined framework.The scope for any
‘international law’ of states was extremely limited and all that one can point at is the existence of
certain ideals, such as the sanctity of what continued up to this day as important components of
society. But there was no indication of a universal community with its ideal of world order.

However, Greek consciousness was restricted to their own competitive city-states and colonies.
Those from other races were barbarians not considered worthy enough to be associated with.

The significance of Greece in international law studies lies partly in the philosophical, scientific
and political analyses handed down to humanity, and partly in the intriguing state of inter-
relationship built up within the Hellenistic world.57 many treaties linked the city-states together
by a network of trade and political associations. The citizens were often given rights by most
states outside their territories and rules on sanctity and protection were developed for diplomatic
envoys.

For example, some practices had to be performed before going into battle, for instance religious
customs concerning sanctuaries somewhat ameliorated the horrors. But no overall moral
approach similar to those emerging from Jewish and Hindu thought, particularly, evolved. There
is no traceable sense of a world community in Greek ideology though Greek colonies grew
throughout the Mediterranean region. This responsibility belonged to Roman Empire’s capable
administrators.58

Romans revered organization and law like nothing else.59

It was this fact that tied together their empire through law thus making it an integral part

57 Nussbaum, Law of Nations, pp. 5–9, and A. Lanni, ‘The Laws of War in Ancient Greece’,

Harvard Law School Public Law Research Paper No. 07-24, 2007. See also G. T´en´ekid`es,

‘Droit International et Communaut´es F´ed´erales dans la Gr`ece des Cit´es’, 90 HR, 1956,

p. 469; S. L. Ager, Interstate Arbitrations in the GreekWorld, 337-90 BC, Berkeley, 1996, and

Bernhardt, Encyclopedia, vol. VII, pp. 154–6.

58 Bernhardt, Encyclopedia, vol. VII, pp. 136–9, and Nussbaum, Law of Nations, pp. 10–16.

59 See e.g. A. Jolowicz, Historical Introduction to Roman Law, 3rd edn, London, 1972. See also

A. Watson, International Law in Archaic Rome, Baltimore, 1993.

Reference for every inhabitant of the far-flung domain. Early Roman law (the jus civil)
concerning only Roman citizens was formalistic and rigid, reflecting the position of a small
backward society tied to land.

It was completely inappropriate to provide a relevant background for an expanding, developing

country. This was done through creation and gradual enlargement of jus gentium. It provided
simplified rules governing relations between foreigners as well as those between foreigners and
citizens. The Instrumentality by which this particular system developed was the Praetor
Peregrines, whose office it was to superintend all legal transactions involving the empire
including political and economic affairs.

Gradually, the liberalized rules of jus gentium replaced narrow jus civil until it ceased to exist.
Consequently, jus gentium became the common law of Rome Empire and was universally
applicable.

It is this generalizing quality that distinguishes so remarkably the Roman from Greek experience,
yet there were other tribes who were put on same level with Rome as far as international Law is
concerned just like her neighbors while still in relation with them remained exclusive national
laws.
One important influence exerted by Greece upon Rome came in Natural Law concepts60
formulated by Stoic philosophers from about 300 BC onwards who saw this corpus in its entirety
as regulations applying to everybody without distinction. These regulations had reason behind
their formulations because they were logical and therefore they could not be limited within any
nationality or group but had universal application since they emanated from human reason itself.
Modern doctrines of international law are based upon this universality built into notions of
‘natural’ law whereas the Stoic prizing of human reasoning powers at their apogee in
‘discovering’ that very physique foreshadows Western rational philosophies that followed after
it. Besides being fundamental to legal theory, Natural Law both underpins modern international
law and also predates contemporary concerns about human rights. A number of these Roman
philosophers borrowed these Greek ideas of Natural Law, sometimes as the highest conceivable
ground for their legal theories.

60 See e.g. Lloyd, Introduction to Jurisprudence, pp. 79–169.

The term jus gentium means, roughly speaking, the principles that all civilized nations have in
common.

However it was the doctrine of natural law that was held to be superior to just gentium. This led
to a great confusion regarding the exact connection between the two and Roman jurists reached
different conclusions on their identity and essence. However, it must be emphasized that the
central themes of these arguments are universality of law and its rational bases in regards to
natural justice at least theoretically not made out of power but from reason.

The classical rules of Roman law were collected in Corpus Juris Civilis.

It is a collection of legal materials put together by a series of Byzantine philosophers and

completed around AD 534.61 This collection became very useful during the early Middle Ages
when night began gradually disappearing after the fall of Rome. For there were ready developed
laws waiting to be taken up into an emerging Europe.

This brings us to Islam’s growth at this stage.62 Its approach to international relations and law
was predicated upon a state of hostility towards non-Moslem world as well as unity,

Dar al-Islam, between Moslem countries. In general humane codes for waging war developed
whereby even Jews and Christians (peoples of book),were treated better than unbelievers but less
than Moslems who ruled them as subdued subjects. With time after conquests ended & power
got consolidated, norms governing conduct with non-Moslem states evolved. The laws relating
to diplomats have their origins in concepts such as hospitality and safety (aman) while those
governing international agreements owe much to respecting promises made between parties64

61 See generally with regard to Byzantium, M. De Taube, ‘L’Apport de Byzance au

D´eveloppement du Droit International Occidental’, 67 HR, 1939, p. 233, and S. Verosta,

‘International Lawin Europe andWesternAsia between 100–650AD’, 113 HR, 1964, p. 489.

62 See e.g. M. Al Ghunaimi, The Muslim Conception of International Law and the Western

Approach, The Hague, 1968; A. Draz, ‘Le Droit International Public et l’Islam’, 5 Revue

´Egyptienne de Droit International, p. 17; C. Stumpf, ‘Christian and Islamic Traditions of

Public International Law’, 7 Journal of the History of International Law, 2005, p. 69; H.

Khadduri, ‘Islam and the Modern Law of Nations’, 50 AJIL, 1956, p. 358, and Khadduri,

War and Peace in the Law of Islam, 2nd edn, Baltimore, 1962, and S. Mahmassani, ‘The

Principles of International Law in the Light of Islamic Doctrine’, 117 HR, 1966, p. 205.

See also ‘L’Asile et les Refugi´es dans la Tradition Musulmane’, Report of the Sixty-Ninth

Conference, International LawAssociation, London, 2000, p. 305, and Y. BenAchour Yadh,

‘La Civilisation Islamique et le Droit International’, RGDIP, 2006, p. 19.

63 See Bernhardt, Encyclopedia, vol. VII, pp. 141–2, andNussbaum, Law of Nations, pp. 51–4.

The Middle Ages and the Renaissance

The Middle Ages were characterized by the power of Catholicism as an organized religion and
its encompassing structure.64

Europe was a religiously homogeneous continent, governed by ecclesiastical law that applied
despite tribal or regional loyalties. There were numerous conflicts between the church and
emperors of Holy Roman Empire during this time.

These conflicts were eventually resolved in favor of the Papacy, but the victory over secularism
proved of relatively short duration. Religion and a common legacy derived from the Roman
Empire were strongly unifying influences, while political and regional rivalries were not. But
before a recognized system of international law could be created, social changes were essential.

Of particular importance during this era were the authority of the Holy] Roman Empire and the
supranational character of canon law.65 Nevertheless, commercial and maritime law developed
apace. English law established the Law Merchant, a code of rules covering foreign traders, and
this was declared to be of universal application.66

Mercantile courts sprouted across Europe’s markets to resolve trade disputes among
businessmen although one cannot confidently claim that there was ever a Continental Law
Merchant; it is however true that some common regulations and practices scaleted themselves
throughout Europe’s commercial fabrics thereby constituting incipient international trade
laws68.

In addition, similar maritime customs became acceptable across all Europe.

Based on Rhodian Sea Law which was actually a Byzantine work whose norms came from Rolls
of Oleron within 12th century as well as other maritime books commonly agreed upon practices
regarding sea existed among naval powers along Atlantic Mediterranean shores69

64 Nussbaum, Law of Nations, pp. 17–23, and Bernhardt, Encyclopedia, vol. VII, pp. 143–9.

65 Note in particular the influence of the Church on the rules governing warfare and the

binding nature of agreements: see Nussbaum, Law of Nations, pp. 17–18, and Bernhardt

Encyclopedia, vol. VII, pp. 146–7. See also M. Keen, The Laws of War in the Late Middle

Ages, London, 1965.

66 See G. Holdsworth, A History of English Law, London, 1924, vol. 5, pp. 60–3.

67 Ibid., pp. 63–129.

68 Nussbaum, Law of Nations, pp. 29–31. Note also the influence of the Consolato del Mare,

composed in Barcelona in the mid-fourteenth century, and the Maritime Code of Wisby

(c. 1407) followed by the Hanseatic League.

Such commercial codes and maritime laws are only a reflection of the legal systems in different
countries at this stage, but they were the beginning of international law which was aimed at
cross-national interaction and that covered international circumstances.

Also, these rules which had their origins in the early Middle Ages Were the foundation of
international law; however, before their growth could become noticeable, European thinking first
needed to be shaped by the Renaissance period characterized by an outburst of humanistic ideas.

This mix of ideas changed Europe and heralded the age of science, humanism and
individualism.69

The Turkish armies captured Constantinople after which most Greeks sought refuge in Italy to
rejuvenate Western Europe’s cultural sphere. The advent of printing in the fifteenth century
facilitated information sharing while the decline of feudalism caused by economic expansion as
well as rise in merchant classes led to questioning attitudes towards new frontiers.
Europe began to look outside for riches and luxuries with a sense of self-assurance-gained over
centuries. For instance, Arab forces were pushed from Spain by 1492and America became
known soon afterwards.

The emergence of nation-states such as France, England, and primarily Spain showed that
creating territorial-based independent units both on paper and practically was possible. This
necessitated greater interaction between sovereign entities over time and therefore regulation of
similar activities could be done generally. The struggle for political power became overt and
Machiavelli’s The Prince (1513) demonstrated this fact when it was written.

Besides, during this period city states in Italy fought against each other and even the Papacy
itself became secularized. From all this turbulence emerged many aspects now inherent in
contemporary international relations: diplomacy, statesmanship, balance-of power theory as well
as the notion of a society composed of states.70

Alliances can be easily understood because they are realizable concepts; these include betrayals
too as well as manipulation of state institutions to gain or maintain power. The roots of our
society are visible to us.

69 See e.g. Friedmann, Changing Structure, pp. 114–16.

70 See e.g. G. Mattingley, Renaissance Diplomacy, London, 1955.

This signified the dawn of international law: a new idea of an international community with
distinct, separate but competing states having taken root. Independent critical thinking and
humanistic secularism as well as the architecture for future political systems are among those
gifts that the Renaissance left behind. However, it was this last factor that became essential in the
subsequent development of international law. The Reformation and the European religious wars
that followed emphasized this, as did the growing power of the nations. In many ways, these
wars marked the decline of a continental system founded on religion, and saw instead the birth of
a continental system whose foundations lay in state sovereignty.

Across these countries, there arose the need for a different paradigm of both human theories as
well as relationships between states. Therefore, a stated previously, the decline of the Church and
the main streaming of free thought were just two issues which contributed to this quest. The
theory of international law was naturally deeply involved in this reappraisal of political life; it
also greatly benefited from a rediscovery of Greco-Roman ideas.

The Renaissance energized Hellenic studies again while Natural Law concepts became popular.
So, a unique evaluative frame work was created which is embodied in international law and
which is part and declaredly so, in the universal law of nature.
The principle of sovereignty emerged from the modern state and emancipation from foreign
relations. This concept introduced by Jean Bodin’s Six Livres de la R´epublique (1576), who was
looking at how authority works within modern governments.

According to Bodin, based more upon his interpretation of European politics than upon an
abstract discussion about absolutist principles, there had to be sovereign power within any state
to make laws. Whilst such a sovereign could not be bound by laws he him self-made, he was
accountable to God’s and nature’s laws.

Therefore, overtime the idea of a sovereign as a supreme legislator was transformed into the
principle that gave the state ultimate power over other states. The state trumps law. Such

71 See A. Gardot, ‘Jean Bodin – Sa Place Parmi les Fondateurs du Droit International’, 50 HR,

1934, p. 549. See also, for a discussion of sovereignty and the treaty-making power in the

late middle ages, T. Meron, ‘The Authority to Make Treaties in the Late Middle Ages’, 89

AJIL, 1995, p. 1.

These ideas were the experiences upon which positivism was hinged and which will be further
discussed later on.72 the early theorists of international law were close to Natural Law notions.
They used them as firm foundation for their philosophies that derived its idea from natural laws.
For instance, in his philosophy St Thomas Aquinas merged the two different ideas of Christian
and nature law together that made the complex of Natural Law principles from which they had
constructed their theories.73

Aquinas held that Natural Law was part of God’s law and represented a way in which rational
beings participated in the Eternal Laws. Moreover it became a complementary component to
another section of The Eternal Law, which was revealed by God.

According to Aquinas, reason was what defined human beings so as such natural life must be
aligned with divine intentions. Natural Law represents the source of ethical conduct; it also
functions as basis for social and political organizations. Accordingly, a theory has been
fashioned that implies some acceptance of authority but not where this authority is itself unjust.
Late thirteenth century views such as those held by Aquinas can explain Catholic attitudes today
without being confused with later interpretations stressing concepts like natural rights. This
realization prompted Renaissance thinkers to interrogate on the ontological basis for
international law. Maine, an English legal historian, wrote that when modern international law
began it represented nature at its grandest although this assertion is contestable. Later on
international law emerged as a distinct subject matter, drawing upon parts of Natural Law.

The fathers of founders modernists who created contemporary international law are explained
below.
Spanish philosophers during their Golden Age were behind the new approach to laws governing
nations.75 Francisco Vitoria (1480–1546), professor of theology at the University of Salamanca
is considered as their leading representative. Vitoria’s students preserved his lectures and these
were subsequently published. He had advanced opinions regarding Spanish subjugation of the
New World which were very much ahead of their time.

72 Below, p. 49. 73 Summa Theologia, English edn, 1927.

74 H. Maine, Ancient Law, London, 1861, pp. 56 and 64–6.

75 Note Preiser’s viewthat ‘[t]herewas hardly a single important problemof international law

until the middle of the 17th century which was not principally a problem of Spain and the

allied Habsburg countries’: Bernhardt, Encyclopedia, vol. VII, p. 150. See also Nussbaum,

Law of Nations, pp. 79–93.

South American Indians and, contrary to the views held until then, maintained that Indian
peoples should be regarded as nations with their own legitimate interests. A just cause was the
only grounds on which they could fight wars of elimination against them. International law was
based on universal law of nature so non-Europeans had to be included within its scope.

However, Vitoria did not by any means support the idea of granting full recognition to Native
American nations as equal Christian states of Europe. For him, resistance to missionary activity
in these territories was a justificatory basis for war, as he took an expansive stance on Spanish
rights over South America.

Vitoria was no liberal and indeed acted on behalf of the Spanish Inquisition, but his lectures did
mark a step forward in the right direction.76

Su´arez (1548–1617) was a Jesuit and Professor of Theology who was deeply steeped in
medieval culture. He observed that obligatory character of international law is rooted in Natural
Law while its content comes from Natural Law rule of executing pacts.77

Alberico Gentili (1552–1608), however, belonged to another world and probably this one more
than anyone else. The man was born in Italy’s north and run away to England after converting
into Protestantism. His De Jure Belli which came out in 1598 is a detailed treatise concerning the
law of war together with a valuable part about treaty-law. Gentili,a teacher at Oxford, is
acknowledged as being founder of secular school of thoughts regarding international law which
overturned more important hitherto-confined religious arguments.
Hugo Grotius, however, Hugo Grotius stands above all others during this period,maybe
evenbeing praised slightly too much as the father ifinternational law. Born in 1583,hewas the
epitome ofrenaissance man;he was an outstanding scholar with deep knowledge ofhistory,
theology, math and law.79 His major workwas the De Jure Belli ac Pacis.

76 Nussbaum, Law of Nations, pp. 79–84, and Bernhardt, Encyclopedia, vol. VII, pp. 151–2.

See also F. Vitoria, De Indis et de Jure Belli Relectiones, Classics of International Law,

Washington, DC, 1917, and J. B. Scott, The Spanish Origin of International Law, Francisco

de Vitoria and his Law of Nations, Washington, DC, 1934.

77 Nussbaum, Law of Nations, pp. 84–91. See also ibid., pp. 92–3 regarding the work of Ayala

(1548–84).

78 Ibid., pp. 94–101. See also A. Van der Molen, Alberico Gentili and the Development of

International Law, 2nd edn, London, 1968.

79 Nussbaum, Law of Nations, pp. 102–14. See also W. S. M. Knight, The Life and Works of

Hugo Grotius, London, 1925, and ‘Commemoration of the Fourth Century of the Birth of

Grotius’ (various articles), 182 HR, 1984, pp. 371–470.

1623 and 1624. An extensive work, it concerns itself more with private law exposition than
seems proper these days. It mentions both Vitoria and Gentili, the latter having a strong sway in
other aspects especially as far as how matter is organized.

In his conception of international law, Grotius finally excised the ology and emphasized that
even if there were no divine law God would be irrelevant.

Therefore the natural law would still have been right even without God or so he said although
this was very daring for him to say notwithstanding that he appropriately clothed it with religious
protestations. It became again only rational grounds on which the universe had been originally
established when nature’s justice was part of the make-up of being social man and was not
merely useful but also indispensable. Grotius worked out an overall system of international law,
which soon turned into a university text book.

However, in many spheres he followed well-trodden paths. He preserved the theological

distinction between a just and an unjust war that ceased to exist later in treatises on public
international law but is still present in some way as it underlies contemporary explanations for
aggression, self-defense and liberation.
One of his most famous opinions is about the freedom of the seas. The Dutch scholar disagreed
with the Portuguese theory that Seldenlater argued against, namely he contended that countries
could claim no rights over any portion of the high sea because they belong to all men by
common right. I should note here also that this theory had a happy coincidence with Dutch
notions about free trade, and similar commercial growth requirements could be observed making
it pertinent enough for me to mention briefly aside from its niceness as a theory.

However this only underscores what we must never forget –namely that theories concerning laws
or politics or societal disciplines are rooted in reality and reflect concerns of today. A theory
develops within specific time frame/cultural and social settings; it does not grow out of the air.
Any disregard of the same is a distortion of the theory.

Positivism and naturalism

It is possible to differentiate between these two broad schools in the period that can be separated
from Grotius, but cannot be completely dissociated from earlier works even by his immediate
predecessors.

80 In Mare Clausum Sive de Dominio Maris, 1635.

Pufendorf’s ‘naturalist’ school, named after a German scholar of that name, in so far as it
equated international law with natural law; and the ‘positivist’ viewpoint which saw differences
between these two concepts.

Pufendorf looked at Natural Law as an ethicized system and mistakenly took the development of
modern international law in denying the efficacy of customary rules. Nor did he recognize
treaties as bearing on the foundation of international law.

Other naturalists were equally unimpressed by states’ actual practices but rather constructed a
theory out of some moral absolutes that seemed increasingly divorced from political reality.

Richard Zouche (1590–1660) was one of the chief founders of positivism which was
contemporary with Pufendorf in England.82 He completely dispensed with principles based on
nature and paid little attention to traditionalism. The main focus was on particular instances,
many taken from recent history.

He gave more importance to peace laws than war laws in his book without any explanation.

Bynkershoek (1673–1743), who emphasized modern practice and disregarded Natural Law in a
similar manner,. He played an important role in developing theories about neutral states’ rights
and obligations during the war, examined relevant facts critically, and thus arrived at a decision
in favor of freedom for all over waters.83
The approach to legal positivism is also derived from much of modern thought, which derives its
origin from the Renaissance empirical method. This consisted not in building up a theoretical
structure upon absolute principles deduced from reasoning but rather studying events as they
came about, looking at current problems that had emerged.

Empiricism developed by Locke and Hume84 denied innate ideas while postulating experience
was their source; such determinations inspired empiricism as expressed by Locke and Hume that
repudiated innate concepts asserting through knowledge are gained by familiarity and
experiences. Such a strategy was underscored by the scientific methodology of experiment as
well as the testing of hypotheses.

The next step in this philosophical approach was to conceive international law not in terms of
ideas derived from reason but on the basis of what had really occurred between rival states.

81 On the Law ofNature and ofNations, 1672. See alsoNussbaum, Law ofNations, pp. 147–50.

82 Nussbaum, Law of Nations, pp. 165–7. 83 Ibid., pp. 167–72.

84 See Friedmann, Legal Theory, pp. 253–5.

The key was not what states ought to do given basic rules of the law of nature but rather what
states actually do. The law of nations consisted in agreements and customs recognized by the
states.

Positivism emerged as modern nation-state system developed after the Peace Westphalia in 1648
from religious wars.85 It also coincided with the theory of sovereignty put forth by Bodin and
Hobbes,86 which emphasized the supreme power that a sovereign possesses and hence
culminated into the notion of state sovereignty.

Vattel (1714-67), a Swiss lawyer, had elements of both positivism and naturalism in his works.
His droit des gens were founded on principles of Natural Law even though practically oriented.
He introduced doctrine into International law, equally stating that a powerful kingdom was no
more of a sovereign than a small republic like an ordinary man was equal to a dwarf, and
therefore according to him laws were meant for only action and not for conscience.87 This
distinguished between laws of conscience and laws of action, thus he played down natural law so
much so that it seemed unimportant.

Paradoxically, while at this same time positivist thought appeared to be destroying the
philosophical foundation behind the philosophy’s name sake and relegating it to history, yet it
reappeared in post-modern conceptuality full with import for tomorrow. Natural rights replaced
natural law.88
It was an individualistic assertion of political supremacy The idea that civil society is justified
based on an agreement between individuals negotiated prior to its formation reaffirmed
individualistic approach; whether these pessimistically demand, as Hobbes suggests, an absolute
sovereign or favorably mean accepting authority conditionally as Locke taught is immaterial
since either way, one could see it as nothing short being revolutionary theory in itself. The
essence of contemporary democratic society can be seen in American89 & French Revolution as
the principles of human rights.

85 See L. Gross, ‘The Peace of Westphalia 1648–1948’, 42 AJIL, 1948, p. 20; Renegotiating

Westphalia (eds. C. Harding and C. L. Lim), The Hague, 1999, especially chapter 1, and

S. Beaulac, ‘TheWestphalian Legal Orthodoxy –Myth or Reality?’, 2 Journal of the History

of International Law, 2000, p. 148.

86 Leviathan, 1651.

87 See Nussbaum, Law of Nations, pp. 156–64. See also N. Onuf, ‘Civitas Maxima: Wolff,

Vattel and the Fate of Republicanism’, 88 AJIL, 1994, p. 280.

88 See e.g. J. Finnis, Natural Law and Natural Rights, Oxford, 1980, and R. Tuck, Natural

Rights Theories, Cambridge, 1979.

89 See e.g. N. Onuf and O. Onuf, Federal Unions, Modern World, Madison, 1994.

However, natural law proponents used the doctrine to preserve sovereignty’s absoluteness and
private property’s sanctity. The theory was conservative in that one could argue for a status quo
since it derived from either the social contract or divine ordinance, depending on how secular
one imagined the law of nature to be.

The 19th Century

Contrariwise, it was a practical and expansionary period with positivist attitudes in nineteenth
century. The new international order based on European balance of power was enshrined in the
Congress of Vienna which concluded the Napoleonic wars.

International laws were Eurocentric as they were only limited to civilized, Christian states within
which other nations from overseas and foreign could enter only if they were allowed by Western
powers under rules they laid down themselves. Strangely enough while international law became
more geo-politically inclusive through European colonialism, it became less Universalist in its
theory and practice and more representative of European values.90 this theme, the relationship
between universalism and particularism, appears time and again in international law. It is also
worth noting that this century saw Latin America being independent states as well as taking
distinctive approaches to some aspects of intemational law vis-à-vis issues like diplomatic
asylum and treatment of foreign corporations and nationals.91

There also existed many other features distinguishing the nineteenth century.

Democracy and nationalism spread across most parts of Europe during this time due to wars
caused by French Revolution and Empire therefore changing the very nature
ofinternationalrelations.92

90 SeeNussbaum, LawofNations, pp. 186–250, and, e.g., C.H. Alexandrowicz, The European–

African Confrontation, Leiden, 1973. See alsoB. Bowden, ‘TheColonial Origins of International

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-

Century Britain’, 75 BYIL, 2004, p. 9.

91 See below, chapters 3 and 14 respectively. See also H. Gros Espiell, ‘La Doctrine du Droit

International en Am´erique Latine avant la Premi`ere Conf´erence Panam´ericaine’, 3 Journal

of the History of International Law, 2001, p. 1.

92 See especially A. Cobban, The Nation State and National Self-Determination, London,

1969.

Negative faces of nationalism characterized by foreign policy among the aristocratic ´elites. In
Central and Eastern Europe, self-determination emerged as a threat to multinational empires
while nationalism peaked with the unification of Germany and Italy. From here on, nationalism
started showing signs of racism and imperialism as it spread across Europe. Through democracy,
individuals got political say in government and this demanded responsibility for everyone in war.
On the continent conscription was made a must thus replacing small professional armies with
large national ones. 93 Industrial revolution mechanized Europe thereby creating dichotomy
between capital and labor as well as expanding Western influence around the world.

All these factors contributed to a huge rise in both public and private international institutions,
the number of which exploded due to industrialization which led to significant economic change;
international law developed at rapid rate due to new global concerns;94.

Due to the increase in trade volumes and improvement in communication, more co-operations
between nations became expedient. Moreover, it could have been noted that following
1815 Final Act of Vienna Congress there were improvements in shipping freedom over
transnational waters whereas such rivers like Rhine had been kept under surveillance by a central
committee who regulated its operations (Commission). The Danube Commission was established
in 1856 along with some other European rivers having their own international agreements or
arrangements (Gold). International Telegraphic Union began operating in 1865 shortly after
Universal Postal Union had been founded (UNU.org).95.

European conferences — proliferated mainly — aided significantly towards evolving rules

governing conduct during war.

For instance, Geneva conventions starting from 1864 aimed at “humanizing” modes of conflict;
founded in 1863 International Committee of Red Cross helped promote those conventions;
Hague conferences held during 1899 and 1907 laid groundwork for Permanent Court of
Arbitration; established treatment measures to be taken regarding prisoners’ captivity conditions
and handling of military activities;96.

Other conferences, conventions, congresses emphasized the horizontal links in international

relations and expansion of the rules of international law. Additionally, teaching international law
as an academic discipline within universities started with introduction of professors to lecture on
this subject and publication of textbooks that focused on state practice.

93 G. Best, Humanity inWarfare, London, 1980; Best, War and Law Since 1945, Oxford, 1994,

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
Organisations

(ed. E. Luard), Oxford, 1966.

95 See further below, chapter 23. 96 See further below, chapter 21.

This century is dominated by positivist theories. The multiplication of state powers and the
growing complexity of municipal legislation made people believe that laws are simply
commands issued by a sovereign person or body. A discussion about ethics or morality was
superfluous in relation to man-made laws validity. This way of thinking was transferred to
international levels and immediately confronted with the reality of the lack of an overall
authority.

Law, since it rested on the power to make law, ultimately dependent upon the will of the
sovereign in national systems, seemed to imply that international law depended upon the will of
sovereign states.

By this I mean confusing supreme legislator within a state with the state itself; so positivism had
to accept the metaphysical identity of state. There were instances where
the state had its life and mind so it would dominate international law.

All accounts that positivists have ever given about nature has always underscored this fact that it
did not have anything to do with concepts such as respect for human rights, democracy,
individual freedom etc., any emphasis laid on abstract nature of the state does not appear in all
positivist theories and was actually a late development.”97.

The German thinker Hegel first analyzed and proposed this theory on wills, to be found nowhere
else except on pages 338-347,. Since all citizens’ “wills” were accommodated by latter at higher
level than their own individual wants; consequently they became another kind of “will”–higher
one [on one hand], while sovereignty belongs externally[on other].98 These ideas brought about
terrifying consequences during XXth century and caused revival in natural law which however
slumbered throughout XIXth century.

As a result, positive theorists started investigating this issue regarding international law and state
because there was growth in international agreements, customs as well as regulations. The
problem led positivist theorists into an examination.

Monists argued that national law and international law shared one basic tenet. This was
alternatively proposed as ‘right’ or social solidarity or the principle that agreements must be kept
(pacta sunt servanda). On the other hand, dualists in a more genuinely positivist orientation
viewed consent as a major factor.

The theorist, Triepel who was also from Germany, regarded international law and domestic (or
state) law as existing on different planes. International law dealt with relations between states
whereas municipal law governed relations between individuals and between the individual and
the state. Offences against international law were simply breaches of agreements between states
(and such agreements included all in accordance with Triepel).

97 See below, chapter 2.

98 See e.g. S. Avineri, Hegel’s Theory of the Modern State, London, 1972, and Friedmann, Legal

Theory, pp. 164–76.

treaties and customs) and because it was dictated by the ‘common will’ of the states it could not
be unilaterally altered.99

This brought about a paradox since the common will hold individual states and why? So, this
means that a sovereign state could create a customary rule which it may not necessarily control.
In other words, therefore, the state’s will was lower than several of its own people’s.

Triepel did not explore these issues and left them to be sorted out legally.
Hence calling into doubt positivist theories undermined their own positivism in seeing law’s very
essence as indefinable in legal terms. The nineteenth century also saw numerous publications on
international law highlighting state practice and the importance of nations’ conduct in shaping
international rules. Cambridge University Press

The twentieth century

The First World War marked the end of an optimistic and dynamic era. European empires ruled
the world and European ideologies reigned supreme, but this came tumbling down through
GreatWar 1914–18 which shook the foundations of European civilization. It took time for
confidence to wane; but it did, bit by bit, and progress lost its universality.It was a time of
doubting oneself while art as well as laws reflected this.

From an international relations standpoint, among all elements contained at 1919 Peace Treaty,
League of Nations was most important legacy.101

The old anarchic system had broken down necessitating new mechanisms to ensure peace. This
consisted of two parts: an Assembly and an Executive Council. Nevertheless, this was not much
more than an European institution, during its whole existence of which then
eitherthesovietnortheunitedstatesweremembersduringmostoftheirmembership/.

However, although I did maintain some form of order internationally, it failed against any
determined aggressor. Japan invaded China in 1931 and two years later withdrew from the
League. Italy attacked Ethiopia, and Germany embarked unhindered upon its own aggressive
policies.

99 Friedmann Legal Theory, pp. 576–7. See also below, chapter 4.

100 See e.g. H.Wheaton, Elements of International Law, NewYork, 1836;W. E. Hall,ATreatise

on International Law, Oxford, 1880; Von Martens, V¨olkerrecht, Berlin, 2 vols., 1883–6;

Pradier-Fod´er´e, Trait´e de Droit International Public, Paris, 8 vols., 1855–1906; and Fiore,

Il Diritto Internazionale Codificato e la Sua Sanzione Giuridica, 1890.

101 See Nussbaum, Law of Nations, pp. 251–90, and below, chapter 22.

Aggression both internal and external, finally the Soviet Union was expelled from the
organization in 1939 after invading Finland.

However, the League’s short time in existence achieved a lot of useful groundwork which aided
its successor, the United Nations.102
The International Court of Justice succeeded The Permanent Court of International Justice that
was established at The Hague in 1921.103

Following World War I, many institutions were launched or expanded, including the
International Labor Organization which is still present to date.

Other conceptions of international law between the wars included mandates, where by the victors
took over colonies belonging to their vanquished foes for the good of the peoples rather than
annexing them outright; and efforts to create a kind of minority protection supervised by the
league. Though not very successful, it later laid a foundation for subsequent concern with human
rights104.

After World War II, the United Nations took over from the League in1946 with an aim at
correcting most defects that had been observed. The organization located its headquarters in New
York city indicating that power has shifted from Europe. Furthermore, it aimed at becoming a
truly universal institution. Thus this dream came true when decolonization happened to such an
extent that there are now 192 member states106.

Many trends first identified in the nineteenth century have continued up to today. The great
increase in treaties and customs, the strengthening of arbitration and growing international
organizations have all shaped what is known as modern international law.

International politics were about who would control these means.

According to this approach, international law was seen as a tool for global capitalist domination.
The capitalists manipulate the law to maintain their hold on the global economy. International
law is based on the need of the rich countries to continue exploiting the poor ones.

102 See also G. Scott, The Rise and Fall of the League of Nations, London, 1973.

103 See below, chapter 19. 104 See below, chapter 6.

105 Following the admission of Montenegro on 28 June 2006.

From this command, power was discharged. The theses were different regarding the
contradiction between labor and capital that would eventually result in revolution with a new
society emerging.106

Without re-organization, national states were ruled by capitalists. In fact, it was believed the law
and state would die off when there is development of a new foundation for society107 and since
classical international law was based on the state, it was logical that international law should also
perish.
But actually power and control of capitalist nations around the USSR made that approach to be
modified. The international system of states could not be changed overnight into a socialist
order, so a period of transition was inevitable. However, there have been some basic changes.

An example is given by Professor Tunkin, who stressed that the Russian October revolution gave
rise to new ideas of international law. It has been additionally noted that they can be divided into
three major related groups: (а) principles of socialist internationalism in relations between
socialist states, (b) Principles of equality and self-determination of nations and peoples primarily
aimed against colonialism, and (c) Principles of peaceful coexistence aimed at relations between
states with different social systems109. The concepts will be briefly examined hereafter but first
we need to look at their historical background.

There was an assumption among some people during the immediate post-revolutionary period
that it had entered into the transitional phase. In its own right, the socialist state would criticize
international law as a means of exploitation, but still recognize it as existing. The transitional
period demanded compromises in that until such time as the revolution won all over; certain
types of economic and technical

106 See Lloyd, Introduction to Jurisprudence, chapter 10, andFriedmann, Legal Theory, chapter

29.

107 Engels, Anti-Duhring, quoted in Lloyd, Introduction to Jurisprudence, pp. 773–4.

108 Theory of International Law, London, 1974, p. 4, and International Law (ed. G. I. Tunkin),

Moscow, 1986, chapter 3. See also B. S. Chimni, International Law andWorld Order, New

Delhi, 1993, chapter 5; K. Grzybowski, Soviet Public International Law, Leiden, 1970,

especially chapter 1, and generally H. Baade, The Soviet Impact on International Law,

Leiden, 1964, and Friedmann, Legal Theory, pp. 327–40. See also R. St J. Macdonald,

‘Rummaging in the Ruins, Soviet International Law and Policy in the Early Years: Is

Anything Left?’ in Wellens, International Law, p. 61.

In order for international social order to exist, cooperation between them was required (109).
Pashukan is argued that international law is a class law in the capitalist society where two
different opposing class systems struggled to coexist up to the time when socialist system wins.
Nevertheless, legal institutions created by capitalism could still be utilized by socialism and
Soviet Union (110), but this changed with the rise of Stalinism; he became an absolutist Stalinist.
Reforms were made to his stand which he later disowned. International law as per Pashukanis’
position, was not just a temporary deal between USSR and capitalistic countries but it is a way of
advancing wars between classes. The Soviet Union only observed those rules of international law
that supported its goals (111).

The political ramifications of this new approach in late 1930s led to Russia’s successful
membership into League of Nations and her Western wooing policy.

Legally this turned out in Vyshinsky’s views. In the context of Vyshinsky, international law had
more to do with such principles as national self-determination, state sovereignty and equality
among states but no other aspects (112). There are no requirements for each state to develop its
own legal systems which would then form one single international legal system.

Russia would necessarily align itself with Leninist-Stalinist designs in foreign policy and was not
bound by rules imposed without its consent (112).

Decades after World War II, Soviet doctrine grew increasingly tighter as Cold War heated up
whereas the death of Stalin and accession of Khrushchev began thawing it again. At this point
theoretical formulations were substituted by peaceful co-existence within the framework of
international public law (113). For example, war ceased to be considered inevitable between
capitalist and socialist nations and there was an era peace where they could tolerate each other
thus enhancing cooperation among themselves.

Tunkin recognized that there was a single system of international law of universal scope rather
than different branches covering socialist and capitalist countries, and that international law was
founded upon agreements.

109 Tunkin, Theory of International Law, p. 5.

110 Ibid., pp. 5–6. See also H. Babb and J. Hazard, Soviet Legal Philosophy, Cambridge, MA,

1951.

111 Grzybowski, Soviet Public International Law, pp. 6–9. 112 Ibid., p. 9.

113 Ibid., pp. 16–22. See also R. Higgins, Conflict of Interests, London, 1964, part III.

He defined the international law of today, as follows:

The sum total of standards that have been reached through agreement between states with
different social systems, representing the harmonizing intentions of states and having ordinarily a
democratic nature, governs their traffic in a struggle and cooperation towards peace and peaceful
coexistence, and freedom and independence of nations, being defended by means of coercion
applied by individual or group states when necessary.114

This is interesting because it displays the major points such as stress on state sovereignty,
recognition of different social systems and peaceful co-existence. The place of sanctions within
law is significant here indicating the impact of positivism upon Soviet thinking. These
preoccupations are also clear from the definition of international law given in the leading Soviet
text book by Professor Kozhevnikov and others which stated that:

International law is a system of regulations for state relations, designed to ensure a peaceful co-
existence between them; they express wills of ruling classes of countries concerned, protected if
required through coercion exercised by governments collectively or individually.”115

Initially only treaties were considered to be valid sources for international law but later custom
became recognized as some kind tacit or implied agreement where emphasis was on opinio juris
or legally binding element for this practice. While its acceptance into legal form must recognize
customary practice as non-generalized act.116

Peace’s itself sat upon few basic ideas like non-intervention in internal affairs among other states
and sovereignty states; any idea concerning world authority was viewed as a violation to this
latter principle. Good neighborliness like traits were encompassed under peaceful coexistence
doctrine whereas it had other doctrines too such as International Cooperation and Observance of
Legal Obligations in Good Faith

114 Theory of International Law, p. 251. See alsoG. I. Tunkin, ‘Co-existence and International

Law’, 95 HR, 1958, pp. 1, 51 ff., and E.McWhinney, ‘Contemporary Soviet General Theory

of International Law: Reflections on the Tunkin Era’, 25 Canadian YIL, 1989, p. 187.

115 International Law, Moscow, 1957, p. 7.

116 Theory of International Law, p. 118. See also G. I. Tunkin, ‘The Contemporary Soviet

Theory of International Law’, Current Legal Problems, London, 1978, p. 177.

The concept has been considered as the particular manifestations of the laws of society’s
development in a particular form of class struggle between socialism and capitalism, which
forecloses armed conflict.117 It was an attempt to repeat the basic ideas of the international law
from an angle that is alleged to reflect an ideological trend. But it must be remembered that these
principles have been accepted by the international community for a long time.

In his childhood Tunkin attacked formation of regional systems of international law and came to
accept socialist law, which showed special relationships between communist countries. The
Soviet Union’s intervention in Eastern Europe especially Czechoslovakia 1968, only enhanced
such views.118 According to soviet interpretation, relations among communist (socialist)
countries were a new high-quality type of international relations and socialist international law.
Common socio-economic factors and political communities constituted an objective basis for
lasting friendly rapport while conversely international capitalism was exploitative power
relations weak exploited by strong ones. Respectively, socialist or proletarian internationalism is
one system of legal principles applied on a bilateral basis between states belonging to the
socialist bloc derived from custom and treaty. Although they exist in general International Law,
including respect for state sovereignty, non-interference in internal affairs, equality between
states and peoples; these principles are more affirmative in Socialist International Law because it
does not suffer from economic competition and exploitation but rather fosters cooperation
leading to increased mutual interdependence with time. Therefore, these principle involved
material duties not only not infringing upon each other`s rights but also assisting one another
maintain their capitalist rights under threat [120]

However, on practice there was no difference between them. The Soviet focus on territorial
integrity and sovereignty as a means of protecting socialist countries within an essentially
capitalist world set up attracted developing nations in Third World who desired having definite
national identities against Western cultural and financial influences.

117 Tunkin, ‘Soviet Theory’, pp. 35–48. See also F. Vallat, ‘International Law – A Forward

Look’, 18 YBWA, 1964, p. 251; J.Hazard, ‘Codifying Peaceful Co-existence’, 55 AJIL, 1961,

pp. 111–12; E. McWhinney, Peaceful Co-existence and Soviet–Western International Law,

Leiden, 1964, and K. Grzybowski, ‘Soviet Theory of International Law for the Seventies’,

77 AJIL, 1983, p. 862.

118 See Grzybowski, Soviet Public International Law, pp. 16–22.

119 Tunkin, Theory of International Law, pp. 431–43.

The end of the Cold War and perestroika in the Soviet Union led to a reassessment of
international legal theory.120 The idea of peaceful coexistence was altered, while the concept of
class struggle vanished from the soviets’ political vocabulary.121 The new weight was laid on
the global interdependence and need for international co-operation as it became clear that tension
between capitalism and socialism was no longer the main conflict in the contemporary world,
underneath their former dogmas there are widespread common interests.122 In other words, this
means that new thinking in USSR put forward universal human values as its most important
thing and addressed global issues linked to growing importance of international law around the
World. It was also pointed out by them that.

123 International Law must not be artificially divided into capitalist, socialist and Third World
‘international law’ systems but should be universal.

Amongst Soviet writers and political leaders, however, these acts were now seen as contrary to
international law, whereas a state based upon “rule of law” would require strengthening both its
own domestic legal system and that of the wider world claimed.
In particular, Russian policy began to show increasing emphases upon United Nations role once
again.123

Thus still heralding an era wherein multiple sources of great power are independent from each
other over ideology:

From then on Russia appearing as a successor to (although politically and territorially different
from) former soviet union, entered into western political system and acted based on national
interests rather than ideological animosity towards it. The collapse of Yugoslavia plus return to
independence by all other republics formerly within USSR including those Baltic ones.

120 See, for example, Perestroika and International Law (eds. A. Carty and G. Danilenko),

Edinburgh, 1990; R.M¨ullerson, ‘Sources of International Law: New Tendencies in Soviet

Thinking’, 83 AJIL, 1989, p. 494; V. Vereshchetin and R.M¨ullerson, ‘International Law in

an Interdependent World’, 28 Columbia Journal of Transnational Law, 1990, p. 291, and

R. Quigley, ‘Perestroika and International Law’, 82 AJIL, 1988, p. 788.

121 Vereshchetin and M¨ullerson, ‘International Law’, p. 292.

122 Ibid. 123 See Quigley, ‘Perestroika’, p. 794.

124 See e.g. R. M¨ullerson, International Law, Rights and Politics, London, 1994. See also The

End of the Cold War (eds. P. Allan and K. Goldmann), Dordrecht, 1992, and W. M.

Reisman, ‘International Law after the Cold War’, 84 AJIL, 1990, p. 859.

a major political upheaval. The international relations of the world were dualistically
superstructured by the Cold War which had implications for virtually every serious political
question between nations and fettered particularly, the operations of the United Nations. Though
its approach had been changing significantly, even formally, the Soviet regime still changed this
very international system’s character with its dissolving that inevitably impacted on international
law.

This has led to more chaos in Europe since the end of inevitable superpower confrontation,
which has oddly emphasized both a return to health as well as constraints in the United Nations.

There is very little known about Chinese attitudes in general though there are some points that
can be made. Western notions are viewed essentially as an attempt to maintain bourgeois
dominance over the world scene. While parts of it agreed with Soviet views, but following
divergence between them after 1950s and estrangement from each other; China concluded that
Russians were more interested mostly in preserving status quo and soviet-american superpower
rivalry.

The Chinese attitude towards peaceful coexistence was treated with particular suspicion and
disdain; indeed many Chinese writers have argued that such a concept constitutes an instrument
for encouraging ‘liberal imperialism’.

For historical and cultural reasons, this Chinese understanding of law differs greatly from what
we came to know through western philosophy. In European civilization,

‘Law’ took central place within society, while among ancient Chinese societies; it was never
accorded any prominence at all.127 A sophisticated bureaucracy labored to atta in harmony and
equilibrium, and a system of legal rights to protect the individual in the Western sense did not
really develop.

It was believed that society would be best served by example and established morality, rather
than by rules and sanctions.

However, with the success

125 See e.g. R. Bilder, ‘International Law in the “New World Order”: Some Preliminary
Reflections’,

1 Florida State University Journal of Transnational Law and Policy, 1992, p. 1.

126 See H. Chiu, ‘Communist China’s Attitude towards International Law’, 60 AJIL, 1966,

p. 245; J. K. Fairbank, The Chinese World Order, Cambridge, 1968; J. Cohen, China’s

Practice of International Law, Princeton, 1972; Anglo-Chinese Educational Trust, China’s

World View, London, 1979; J. Cohen and H. Chiu, People’s China and International Law,

Princeton, 2 vols., 1974, and C. Kim, ‘The People’s Republic of China and the Charterbased

International Legal Order’, 72 AJIL, 1978, p. 317.

127 See Lloyd, Introduction to Jurisprudence, pp. 760–3; S. Van der Sprenkel, Legal Institutions

in Northern China, New York, 1962, and R. Unger, Law in Modern Society, New York,

1976, pp. 86–109.

Marxism-Leninism was to replace the communist revolution, stressing class struggle.128 Several
systems of international law have been recognized by the Chinese, such as Western, socialist and
revisionist (Soviet Union), and they suggested that a universal system might only come into
existence with
the eventual spread of socialism.129 International agreements are seen as the principal source of
international law; China has therefore acceded to numerous treaties, conventions and other
international obligations.130 However, it must be remembered that in case of so-called “unequal
treaties”, the Tsar’s Empire or any other foreign power annexed Chinese territories in
XIXcentury.131

Usually, international politics is frequently treated as if it was a part of international law which is
sometimes driven by considerations about real politic and or ideological considerations. While
the policy makers may not always follow international norms, in cases where they conform to
China’s strategic interests, they are observed.

As such, when there are no benefits to accrue from adhering to them, There will be no regard for
such rules.However, with the end of its isolationist era interpreted by relations with other nations
established and its entry into the United Nations secured, China has taken an active part in world
affairs, reflecting its growing economic status. Consequently, this has led China getting involved
fully in global politics thus legalizing her interpretation on international law similar to what
happened in Soviet Union.

The Third World

Since World War II one major development has shaped the course of international relations- the
disintegration of colonial empires and emergence of many new states known as Third World
countries.

For instance, new states have arisen bearing with them a residue of bitterness over their previous
subjugation coupled with many other problems which revolve around

128 Lloyd, Introduction to Jurisprudence, and H. Li, ‘The Role of Law in Communist China’,

China Quarterly, 1970, p. 66, cited in Lloyd, Introduction to Jurisprudence, pp. 801–8.

129 See e.g. Cohen and Chiu, People’s China, pp. 62–4.

130 Ibid., pp. 77–82, and part VIII generally.

131 See e.g. I. Detter, ‘The Problem of Unequal Treaties’, 15 ICLQ, 1966, p. 1069; F. Nozari,

Unequal Treaties in International Law, Stockholm, 1971; Chiu, ‘Communist China’s Attitude’,

pp. 239–67, and L.-F. Chen, State Succession Relating to Unequal Treaties, Hamden,

1974.

132)Their development in social, economic and political135) Such was the

environment in which international law’s structure and doctrines were bound to come under
attack.154 The development of the 19th-century law of nations that was rooted in Euro centrism,
with values derived from a Christian Europe that was urbanized and expanding,140
understandably did not meet the needs and interests of the newly independent states of the mid-
20th to late 20th century.166 They believed that these regulations had facilitated as well as
reflected their subjection, therefore they needed to change them.167

These are basically those principles of international law which have throughout been clearly
rejected especially those tenets promoting western power and domineering136. All along
however, original ideas about international law continue to be molded. This is because on the
other hand, only fifty years ago this legal domain has undergone a process of globalization137. It
has transformed its European-based nature into a more universal one138.

For instance both International Court of Justice (ICJ) and United Nations Security Council
(UNSC) reflect such changes in their composition139. The Statute of ICJ article 9 emphasizes
that it should have representatives from all major civilizations and legal systems existing
worldwide; it also establishes a guideline whereby out of ten non-permanent seats within UN
Security Council five will go to Afrosian

132 See e.g. R. P. Anand, ‘Attitude of the Afro-Asian States Towards Certain Problems of
International

Law’, 15 ICLQ, 1966, p. 35; T.O. Elias, NewHorizons in International Law, Leiden,

1980, and Higgins, Conflict of Interests, part II. See also Hague Academy of International

Law, Colloque, The Future of International Law in a Multicultural World, especially pp.

117–42, and Henkin, How Nations Behave, pp. 121–7.

133 See e.g. Verzijl, International Law in Historical Perspective, vol. I, pp. 435–6. See also B.

Roling, International Law in an Expanded World, Leiden, 1960, p. 10.

134 The converse of this has been the view of some writers that the universalisation of
international

law has led to a dilution of its content: see e.g. Friedmann, Changing Structure,

p. 6; J. Stone, Quest for Survival: The Role of Law and Foreign Policy, Sydney, 1961, p. 88,

and J. Brierly, The Law of Nations, 6th edn, Oxford, p. 43.

135 See e.g. Alexandrowicz, European–African Confrontation.

136 See F. C. Okoye, International Law and the New African States, London, 1972; T. O.

Elias, Africa and the Development of International Law, Leiden, 1972, and Bernhardt,

Encyclopedia, vol. VII, pp. 205–51.

The others are distributed between European states and two Latin American states, while the
remaining states are allocated differently. The International Law Commission composition has
also been recently changed in order to increase its membership on geographical basis.137

The influence of these new nations has been most strongly felt at the General Assembly where
they constitute an absolute majority among 192 member countries.138 The content and
circumference of the various resolutions and declarations flowing out of the Assembly show
their impact as well as provide a record of their fears, hopes, and concerns.

This included 1960 Declaration on the Granting of Independence to Colonial Countries and
Peoples that enshrined the right for colonies to acquire sovereignty with minimum delay and
advocated recognition of self-determination principle. Most authorities consider this principle a
firmly established rule of international law whose borders are yet undetermined like other parts
in this book139.

However, it does represent the ascendancy of post-colonial states in shaping international law.

New countries have continuously demanded recognition for state sovereignty supported by UN
Charter as well as economic self-determination or permanent sovereignty over natural
resources141. Its development into economics was one of the major developments in twentieth
century demonstrated through different means such as General Agreement on Tariffs and Trade
(GATT) creation, United Nations Conference on Trade and Development (UNCTAD),
establishment of International Monetary Fund (IMF) as well as World Bank.

These conflicts sometimes involve disputes over nationalizations contrary to industrialized

countries interests136.

However, let it be emphasized that despite many fears expressed during the early years of
decolonization episode, international law did not become irrelevant or unrecognizable. New
regimes have retained its framework since they also want to enjoy benefits provided by rules
governing diplomatic relations together with constrained use of force hence campaign against
those which negate their perceived interests142.

Nonetheless, each harbours similar memories about African subjugation by Europeans and
concomitant backwardness that comes with reawakening of national consciousness.

137 By General Assembly resolution 36/39, twenty-one of the thirty-four members are to be

nationals of Afro-Asian–Latin American states.

138 See above, note 105. 139 See below, chapter 5, p. 205.

140 See below, chapter 14, p. 827.

It should be recognised that identity is not a homogenous group. For example, cultures, social
structures and economic attitudes of these countries vary greatly. Also, the ‘third world’ label
does not give us any idea about the political differences among the different countries. The new
states have huge disagreements on many issues which are evidenced by their different positions
taken on some matters. The fact that some states have oil and other valuable minerals while
others do not, or coastal states differ from landlocked ones exemplify the list of diversity.

The Southern Hemisphere is characterized by endless divergences when compared to the

Northern Hemisphere.

However, it is possible that at some point in future there may be tangible legal differences in
approach as decolonization passions subside and further erosion of Western dominance over
international law occurs. Such a pattern would also enable greater understanding and reliance on
historical traditions and conceptions predating colonization as well as increased awareness of
their worth in relation to future development of international law.141

Inmedium term however, it must be recognized that after the end of Cold War and rapid growth
оf Soviet (then Russian) – American cooperation аxis of dispute shifts from East – West to North
– South. It has started to manifest itself in various areas like economic law, laws regarding seas
and human rights issues where effects оf new technologies are yet unappreciated.

142 Another factor іs that globalization has strengthened pressures bеtwееn universalism аnd
particularism;143 interdependence of individuals, groups аnd companies across national borders
which have become globalized to a high degree mіght then bе seen as а universalization оf
western civilization аnd therefore thе victory оf one special kind оf particularism.

141 See e.g. H. Sarin, ‘The Asian–African States and the Development of International Law’,

inHague Academy Colloque, p. 117; Bernhardt, Encyclopedia, vol. VII, pp. 205–51, andR.

Westbrook, ‘Islamic International Lawand Public International Law: Separate Expressions

ofWorldOrder’, 33Va. JIL, 1993,p. 819. See also C.W. Jenks, TheCommonLawofMankind,

Oxford, 1958, p. 169. Note also the references by the Tribunal in the Eritrea/Yemen cases

to historic title and regional legal traditions: see the judgment in Phase One: Territorial

Sovereignty, 1998, 114 ILR, pp. 1, 37 ff. and Phase Two:Maritime Delimitation, 1999, 119

ILR, pp. 417, 448.

142 See e.g. M. Lachs, ‘Thoughts on Science, Technology and World Law’, 86 AJIL, 1992, p.

673.

143 See Koskenniemi, Gentle Civilizer of Nations. See also G. Simpson, Great Powers and

Outlaw States: Unequal Sovereigns in the International Legal Order, Cambridge, 2004.

Cultural relativism has, on some occasions, been used to legitimize particularism per se
(Assuming Cultural Relativism Stands for Particularism) as the basis for human rights violations
which are perpetrated without any external control or scrutiny.

Suggestions for further reading

T. M. Franck, The Power of Legitimacy Among Nations, Oxford, 1990

L. Henkin, International Law: Politics and Values, Dordrecht, 1995

R. Higgins, Problems and Process, Oxford, 1994

A. Nussbaum, A Concise History of the Law of Nations, revised edition, New York,

1954
2

International law today

The legal scope that is expanding globally Since the middle of the twentieth century international
law has been developing in a number of different directions as life complexities of the modern
epoch multiplied. For law is known to be reflective of its operating environment’s social position
and cultural tradition (D’Amato 1987). Thus international community establishes certain
common values, which are social, economic, and political ones; and this predetermines the
essence of the framework entitling people to live under rules. In fact, international law itself is a
product of environment. Therefore it developed according to, prevailing concepts of international
relations and for it to survive it must be in line with prevailing realities.

However there remains a persistent tension between existing rules and emerging forces that
demand for change. One major problem faced by international law is how to incorporate new
standards of behavior or new realities into an already existing framework so that law can remain
pertinent yet at the same time not completely shatter the system itself.

Sometimes changes taking place inside the world community may have dramatic effects on
every part of global society. For instance they could be understood as bringing about a balance of
terror across Europe and around the globe while nuclear weapons were introduced into it.

States seeking nuclear energy pose an extra factor for concern among other states. Moreover
there are questions about exploitation: what does mining the ocean floor mean for mankind?1
Furthermore, international terrorism has presented new challenges to states in dealing with its
threat whilst maintaining their respect towards sovereign states and human rights3. There are
some modern developments where one constantly has to reconsider them structure of
international law as well as its regulations.

It should be noted that today international law encompasses many spheres.

From regulating space flights to delimitation of underwater areas, from securing human rights to
supervising world financial systems –its list extends from preserving peace alone up to
embracing all aspects of the present international life.

However, a raison d’ˆetre of modern international law and its content is the requirements of the
international political system.2 When there are
Several entities within one system some form of relations with such other entities needs to be
established. Since the seventeenth century, International regulation has followed this approach
which includes permanent suspicion against other states but with few exceptions. While being
internally sovereign, it must respect external sovereignty and cultivate other states in an
increasingly interdependent world (Wood 1999). All states possess rights that they would not
abandon in a situation where none could survive on its own; hence these rights need to be
regulated and defined.

Thus we can see how some kind of international legal order emerges even though primitive and
often disorderly. The present system came up as it developed over time in the context of
European civilization, but that has changed. The United States and the Soviet Union rose as
Europe declined, while decolonization also had a profound effect. In more recent times, Russia’s
collapse as an empire; emergence of India and China as major world powers; as well as the
globalization phenomena are other factors having huge impact on this system. International law
must cope with new ideas and challenges.

Over the past six decades or so there has been a substantial weakening in the Eurocentric
character of international law, with voices from other cultures and civilizations increasingly
dictating its evolutionary path.

Primarily, international law depicts the state-based nature of world politics, since the organized
aspirations of peoples subsequently became entrusted to states whether for defensive purposes or
for ambitious ones towards better societies. Similarly formal units endowed with rights to
independent self-determination, each enjoying equal sovereign rights under international law
have created a framework for these values. For example non-intervention in internal affairs,
territorial integrity non-use of force and equal voting in UN General Assembly can be pointed
out here. Apart from this however there are several factors that cross state boundaries creating
tension within global politics such as poor economic relations, human rights concerns among
countries at large and emergence of new technological forces.

International law operates within a necessary framework defined by state policies, balances of
power (both regional and global), domestic political conditions, and tensions. Law is sensitive to
intra-state and interstate concerns. However states also use laws to gain certain ends such as
survival, security, internal order, economic welfare, and ideology. The current setup is meant to
ensure that goals can be identified and it should be sufficiently flexible to accommodate future
changes which may require reorientation due to cumulative pressures exerting themselves
thereby. Placing emphasis on its horizontal expansion would therefore ignore some critical
aspects. Otherwise it has embraced various persons such as individuals, private and public
groups, multinational companies and international bodies among others.

It has also been expanded to cover new areas like international trade, problems of environmental
conservation, human rights and exploration of outer space. Positivism grew in the 19th century
which led the focus of international law to be narrowed down on sovereign states. These were
the only ‘subjects’ that international law recognized, and they were distinguished against non-
sovereign states and individuals who were its mere ‘objects’. They alone created the law and
restrictions upon their independence could not be presumed.8 However, this exalted
concentration has disintegrated due to gradual development of positivist theories as well as
innovative approaches towards contemporary global systems thereby expanding non-state actors
for instance individual citizens, multinational corporations plus other international
organizations.9 It was universally acknowledged long ago that in This was only recently when
they began to act in those capacities rather than depending on their national states.

The period following the Second World War also saw the emergence of Nuremberg and Tokyo
Tribunals established by the victorious Allies. A lot of those who were accused faced conviction
for crimes against humanity as well as those against peace and they were accordingly dealt with.
It has been recognition of individual responsibility under international law without the usual
interference of the state, which is also evidenced by the establishment of Yugoslav, Rwanda and
ICC15). The1948 Genocide Convention similarly made provision for punishment after a verdict
had been passed by national courts or an international criminal tribunal.

11 This increasing focus on human rights is another strand in this movement towards a greater
role of individuals in international law. The Universal Declaration of Human Rights which was
agreed upon by members of the United Nations General Assembly in 1948 lists a range of
political and social rights but is not legally binding. On the other hand, The European
Convention for the Protection of Human Rights and Fundamental Freedoms signed in 1950 and
the International Covenants on Human Rights (1966) are different from each other since they
create obligations for states parties that ratified them.

Accordingly, various bodies concerned with supervisory or implementation functions have been
established to make it work satisfactorily.

For instance, within the European Union individuals or corporations have rights under which
they can appeal directly to the European Court against acts taken by various Union institutions.
Others like certain international tribunals can hear cases brought by individuals. For example,
some writers have argued that no such thing exists (as perestroika) denying that people have
rights distinct from duties under international law; yet this trend signals an end to exclusive state
protection concerning these matters13).

Alongside changes in human rights individual cases which international organisations comprise,
constitutes perhaps the most significant feature of recent international law. In fact, a full
comprehension of contemporary international law would undoubtedly be impossible without
acknowledging various intergovernmental organizations’ expansion and influence among which
the United Nations is by far the most prominent one.13 The UN is composed of the vast majority
of countries (as at present, 192 member states) only that factor alone has a high political
significance in diplomatic relations and negotiations and facilitates wider international
cooperation and standard setting. Moreover, no other such organ like the Security Council
having powers to adopt resolutions binding on all member states in certain cases exists in history.

International organizations are now regarded as having their own rights and duties as well as
legal personality. To this end, it stated that the United Nations was an entity with rights
enforceable through bringing claims before international courts15). Thus, this ruling applies to
other institutions like ILO or FAO which also have some judicial characteristics of their own. It
should however be noted that even though this may seem useful for understanding modern
developments in international law, state remain its central subjects.

Other non-state actors have now joined the United Nations.

They are likely to become even more important in the future. It is also worth noting that there
has been an increase in regional organizations. At this stage, several were made for military
security purposes for example NATO and the opposing Warsaw Pact organizations, others for
regional and cultural identity as in Organization of African Unity (now called African Union)
and Organization of American States.

It however stands out as a unique case among such regional organizations, being on its way to
extensive economic coordination and standardization with a group of common institutions
having a growing bureaucracy primarily based at Brussels.

In adding ‘regional–international law sub-systems’ within the dominant framework, these

organizations have led to increased sophistication of international law, hence bringing forth rules
binding only member countries.15

International law has had to expand as many challenges and participants have increased globally.
It no longer focuses solely on issues related to territory or jurisdiction of states narrowly
construed but is beginning to address contemporary society’s specialized problems.

Many examples have been cited earlier including human rights,” international finance and
development [law],” environmental degradation,” space exploration,” exploitation of oceans and
deep seabed resources.” The same applies to provisions regarding the bureaucracy of
international bodies (international administrative law), international labor standards, health
regulations or control over communication. Many people make claims that those are merely
manifestations of globalization – an unstoppable force that is driving us towards greater
interdependence predicated upon economic, communications and cultural bases acting outside
national laws.16 This also causes near ideological controversies surrounding questions like free
trade versus environmental protection.
17 Furthermore there are other pressures emanating from democracy itselfand from
considerations relating to human rights which operate as counterweights in some measure against
prevailing preponderance on territorial sovereignty and state jurisdiction.

Theories of Modern Times

At this point some modern theories as to the nature and role of international law will be briefly
noted.

Positive Law and Natural Law

Throughout history, it has been a complex relationship between idealism and realism, between
what could/should be and what is, and whether legal philosophy should incorporate ethical
standards or limit itself to an analysis of the law as it stands is a crucial debate that still goes
on.18

The positivist school which grew so fast in the nineteenth century practical, optimistic world
spelled out that law must be analyzed empirically in its existence without any ethical elements.
Aspiration for morality had nothing to do with scientific study of law. Human positive
regulations were all about understanding them. They are only concerned with man-made law
instead of metaphysics behind natural laws because we are more concerned with concrete facts
than abstract ideas, not forgetting that general principles were imprecise if they did not mean no
more than vague words at all.19

This approach was pushed to its limits by Kelsen’s ‘Pure Theory of Law’. Kelsen defined law in
terms of itself alone and excluded from consideration justice which he felt belonged rather within
the province of political science. The pure theory sought to develop a logical harmonious
structure founded upon formality by removing political science, sociology as well as history
from its domain.20

Law can be considered a normative science i.e.it consists of patterns that impose certain conducts
on society members/rules. Such rules or norms must derive validity from prior norms till one
reaches what is referred to as the basicnormof the whole system; this basic norm serves as
foundation stone for other laws’ validity since rules which are referable back to it simply become
legal rules .This may be illustrated through granting power for an official to enforce fines by
court order which is valid only where it has such jurisdiction granted by an Act of Parliament
creating court. A rule is a legal rule if it conforms to a preceding (and higher) legal rule and so
on. It is a process of rules upon rules where the basic norm supports all other layers built upon
it.21

Primarily, Kelsen’s ‘pure’ system falls down in the concept of the basic norm for it depends
upon non –legal considerations for its being. In reality, it is a political notion that would most
likely be the principle of Parliamentary supremacy in UK .22
This logical, structured system of validity based on an extra-legal concept encounters problems
when applied to international law.

For Kelsen, international law is primitive as it lacks strong legislative, judicial and enforcement
organs similar to those found in pre-state society. Therefore, self-help becomes one of its
characteristics.23 the principles of international law are valid if they can be traced back to the
basic norm of the system which is hierarchical like a national legal system. The main point for
Kelsen was that custom is the source of law or states should behave as they normally do .24 One
example from this category is pacta sunt servanda meaning agreements must

This second stage, on the other hand, is founded on good will and is made possible by the
international legal order. This second stage comprises a system of norms constituted by
international treaties and conventions, which then leads to the third stage that covers rules
established by institutions created under an international treaty, like decisions of the International
Court of Justice.25

However, Kelsen’s formulation is tautological: it is nothing else but a reminder that states
obeying laws should do so.26 It appears to preclude change through new practices accepted as
law because that means states should not act in ways they have done before (i.e. differently).
Overall, it does not answer why custom binds.

Nevertheless, this consistency in logic makes it an apt model for explaining, especially national
legal systems, proliferation of rules and significance of validity which seems to give mystical
weight to the whole organized process. It shows how one rule leads to another as one level
follows another level progressing through various stages constituting a hierarchical order.

In addition to this interpretation of law as described above, another important element in

Kelsen’s thought is his extreme ‘monist’ position. International law and municipal law are
simply two different sides of one coin where the former takes precedence over the latter.
Municipal law can only be logically justified through reference to international rules within a
single universal normative framework thereby signifying delegation within such framework itself
as identified by Kelsen.27

Kelsen’s pure theory seemed to mark the end of that particular road, and positivism was analyzed
in more sociological terms by Hart in his book The Concept of Law in 1961.

Hart perceives laws as a system of rules which arise from interaction between primary and
secondary legislation. Primary rules basically state standards while secondary ones provide
criteria for identifying or evolving them thus acting as procedures for altering the constitution.

Primitive societies would possess only the primary rules and so would be characterized by
uncertainty, inefficiency and stagnation, but with increasing
sophistication the secondary rules would develop and identify authority and enable the rules to
be adapted to changing circumstances in a regular and accepted manner.28 Like other simple
forms of social structures such as ‘primitive’ society, the international legal order is also based
on pure primary rules because it does not have legislative bodies that centrally control it,
recognized courts with mandatory jurisdiction or organized enforcement agencies. Therefore,
there is no need for it to have a basic norm or even according to Hart, a rule of recognition upon
which all the validity of its laws can be tested.

From this Hart concludes that at present “international law” is nothing more than a “set of rules”.
However, it might change in future where one particular principle like pacta sunt servanda can be
regarded as a validating norm whereas presently this remains speculative.29

However, there has been criticism against this approach since besides concentrating too much on
rules; it ignores some essential components of a legal system such as principles and policies
especially when viewed from an international perspective.30

The law cannot be faulted for failing to note the intricacy or life of the system. This distinction
between a system and a set of rules in international law is difficult to demarcate. The strength of
positivism diminished last century as old certainties disappeared and social unrest grew. As
usual, with time, the law began to reflect forces that dictated new theories on its societal
functioning. They started considering sociological influences on the legal order and nature of the
legal process itself, including judicial behavior and how rules were applied in reality among
others. This was illustrated by Roscoe Pound’s idea that law is a means to achieve some social
goal, thus it is utilized as a mechanism for internal balancing of interests within society.31 John
D.Hammond wrote an article “Legal Process as Social Mechanism.”32 It should be noted that his
research was based on what was actually taking place inside the legal system; what kind of
claims were being filed and how they were satisfied by various authorities who are concerned
with justice.

In one sense it represented an exodus from ivory tower into the court room.

There was then a rush of empirical inquiries especially in America, which allied jurisprudence
with psychology, anthropology and sociology. This interest in general societal life underpins
realist thinking about law as functioning within particular communities having certain tasks to
fulfil. According to these jurists’ reasoning some “technical” dissections and field research
constituted their major sources; historical or ethical developments supposed minor positions here
(Bussell & Kritzer 2009). The point is that Black’s school approach ceased accepting norms as
key sources for explaining Law (Black 1967).

Before examining contemporary developments in this approach and their impact upon
interpretations of international law, one has first to consider its revival through Natural Law.
Natural Law has been approached differently while searching meaning for life and establishing
ethics for law. One has been the recovery of Aquinas’ principles as adopted by the Catholic
Church, and which stressed on an emphasis on the dignity of man with reason holding sway, but
acknowledging the immorality (though not necessarily invalidity) of law against right reason and
eternal law.34 The more formalistic and logic-oriented approach is illustrated in writers like
Stammler who aimed at building a logical structure of law based on a changing content
conception of “Natural Law”. This included contrasting the concept of law, which was intended
to be an abstract, formal definition universally applicable, with the idea of law, which embodies
the purposes and direction of the system. In different social and cultural contexts this latter
precept varied.

Unlike this formalist ideal type school there has emerged a sociologically inspired perspective
towards Natural Law titled by 36 among others, Geny and Duguit. This particular tendency
rejected form in the definition of Natural Law,

and instead concentrated on such universal factors as those that are physical, psychical, social
and historical that occupy the framework within which the law operates.36 The natural law
discussion swelled in importance after what happened during Nazi era. It prompted a German
philosopher Radbruch to come up with a theory whereby unjust laws were to be resisted based
on higher natural justice.37

For international law, it was at a time when attention began to focus more closely on
international justice and formation of international institutions that there was resurgence of
natural law.

Many features characterizing modern international law are derived from concepts of natural law
and how ethical standards relate to legal order like non-aggression principles and human
rights.38

39. The new ways Traditionally, international law has been understood in a historical manner
and studied chronologically. This approach was particularly obvious in the 19th century during
the growth of international relations and further, the increasing number of international
conferences and agreements.

Between the two World Wars, governments began to open their archives thereby exposing a
treasure trove of material that fueled the study of diplomatic history while developing institutions
like League of Nations and International Court of Justice served to promote appreciation for
institutionalism.

However, after the Second World War a growing trend appeared intent upon the analysis of
power politics and the comprehension of world affairs in terms of ability to influence and
dominate. This approach might seem somewhat simplistic at first glance but it involved
consideration of political as well as social or economic factors that could affect whether a state
can withstand pressure or exercise authority.40 However, this view is somewhat pessimistic
because it focuses on power as the motive force behind inter-state relations.

The next ‘wave of advance’, as it has been called, witnessed the successes of the behaviouralist
movement. This particular train of thought introduced psychology, anthropology and sociology
into international studies which were similar to trends in realism.

It marked a change from describing an idealist or cynical world order to discussing system
mechanisms via field studies and other social science tools as currently used through analyses in
terms between ideals or realisms.42 In fact, moreover, it represents more an approach towards
studying society through its laws than a theory per se. Anyway this school evolved after
changing ideas about government’s role in society. The early nineteenth century philosophy
based upon individuality together with minimal state intervention is gone forever. Nowadays this
is aimed at making government understand its duty towards individual citizens hence leading to
unprecedented increase welfare legislations. Rules meant for controlling vast areas affecting
humans – something unthinkable one hundred years ago – became common for many advanced
countries thus theory has had to adapt itself to such shifts in focus. As such, law now enjoys
greater significance within society and so new legal theories have emerged reflecting the same
trend. Indeed, it is more a method of approach to law and society than a theory in the traditional
sense.41

This school of thought can be traced back to changing conceptions of government’s role in
society. The ethics of individualism which governed the 19th century with minimal state
intervention have undergone drastic changes. Attention today is mainly directed at governments’
responsibility to their citizens as shown by the growth of welfare legislation over time.
Widespread regulation that would be unthinkable during the mid-nineteenth century has now
appeared across Western countries and thus necessitating reorientation of theory. Hence, since
law functions as a more significant instrument due to increased government involvement in
social issues, it has led various legal doctrines responding accordingly. Realists think that
American legal system facilitates societal change, hence using it as a tool. Law is reflective of
community values and policy decisions as much as anything else. The nature of law therefore
rests on these two factors while simultaneously proving why judges should play an increasingly
important role. It means that one must look at what type of society this particular legal system
serves before examining how it operates. This makes law dynamic so that it is better understood
within its social context rather than merely constituting a setoff rules.

But by themselves social sciences have been in the vanguard of this re- interpretation of society,
and their imprint on behavioral approaches to law is highly discernible in terms of both its
general orientation and provision of social tools necessary for dissecting a society and perceiving
how it operates as well as where it is headed (Fay et al. 1986). The inter- disciplinary character
of these investigations was stressed through the use of diverse sciences within them including
political science, economics, and philosophy.42 Specifically researches employed methodologies
using scientific method like data collection as well as statistical analysis.

One such division has been brought about by Behavioralism in the field of international
relations; these include studies referring to foreign policy techniques or modes used by nations in
selecting one set path over another, and international systems analysis perspective.43 This point
out the actions between players at global level and how they influence others towards some
directions. For example, it looks at various international orders that have existed throughout
history in order to demonstrate how each particular system’s dynamic created its own rules
which could be an explanation for both political acts and nature of International Law. In other
words particular variables can be used to explain or predict how international law operates
leading to the induction about the nature of the international system.

For illustration, one may consider 1848-1914 period as that characterized by ‘balance-of-power’
system. Within five participants were involved who would temporarily ally with weak nations
against strong ones thus giving rise to coalitions such as Britain forming alliances with others so
as discourage France from attacking her; if all else fails she must wage a just war upon France
alone. However, it had been an integral element in this kind of setup that no country wants
complete annihilation but only humiliation or weakening thereby entailing permanence within its
system (Thompson 1990:111).

It also generated its own language on International Law, notably around the sovereignty that was
central to fluid alliances and the capacity of states to withdraw from strong alliances in favor of
weaker ones. The balance of power system collapsed during the First World War and after a time
of uncertainty a visible, but loose “bipolar” system emerged in the years after World War II.

This rested on the polarization of capitalism versus communism and the resulting rigid
alignments. It included Third World countries which were not aligned yet they themselves were
fought for by two superpowers, each seeking to make them part of their blocs.45 Under this kind
of order there could be ‘frontier’ conflicts where these powers met, such as Korea, Berlin and
Vietnam, as well as changes in what sovereignty meant within both alliance blocks, thereby
permitting organizations like NATO and European Community (later EU) on one side and
Warsaw Pact and COMECON on the other side to evolve (Sylla 1997). On the other hand, it has
given the superpowers freedom to manipulate weak nations within their own spheres of
influence; e.g. Moscow would intervene with East Berlin when necessary while Washington
would determine events in Finland.

Actions in Poland, Hungary and Czechoslovakia and those of the US especially in Latin
America.45 Behaviorism has been improved by utilization of such methods as the use of games
theory.46 It is a mathematical method of analyzing decision-making in conflict situations where
the parties are rational actors engaged in a struggle for benefits. In contrast to the fight situation
where the aim is directly defeating an enemy (e.g., Israel-Arab conflict), or with debating
situations whose aim is to persuade one’s fellows on what is right and wrong, discussion
involves considering all these factors; communication, integration, Environment and capability
among others. Thus this approach has wider scope and more complexity than earlier theories. All
this highlights the switch in emphasis that has taken place in the consideration of law in the
world community. It was traditionally thought that international law is a series of rules, which
restricts the conduct of sovereign states and are exceptions to state sovereignty.

However, these new theories have tended to see things differently from a perspective that is more
focused on the expansion of international order and nation-state accepting some limitations upon
its behavior.

The rise of quantitative research has facilitated the collation and ordering of vast quantities of
data. It primarily uses political, economic and social data and statistics as a methodology,
transforming facts and figures into Information suitable for scientific investigation. These
behavioral and quantitative techniques are just beginning to affect international law. They enable
deeper understanding and knowledge while promoting wider awareness about all these various
processes involved.47 A number of writers have translated this behavioral approach to
international relations into theory underpinning international law, most notably Professor
McDougal with several significant amendments. In this ‘policy-oriented’ school, law is seen as
“decision-making” or choosing rather than as legal norms per se.

It is an active holistic approach that perceives international law as a dynamic system operating
within a particular type of world order.48 That means, it reduces rule use because to understand
it from traditional modernist perspective would show merely forms, process etc., but not what
who, when, where you name it happened in today’s world politics’.49 For one thing, it needs
always be remembered that any situation cannot stay static forever; thus, laws are considered as
constantly changing continuously allowing individuals to make choices for their own welfare.50
In fact, it is the ongoing human interaction process whereby claims are made constantly through
which participants endeavor to gain most value for them. Social intercourse with continuous
claims making formulates eight value institution categories: power (authority), wealth
(resources), enlightenment (knowledge), skill (technology), well-being (health and environment),
affection (family, friends and kinship), respect (status) and rectitude (morality). An elaboration
of this list is possible. It is not exhaustive. Law should therefore be seen as a product of such
social processes.51 International law refers to all the acts of official decision-making which
entirely involve the concepts of authority and control.

The former is a structure of expected behaviors involving identification and qualification of the
decision maker, while the latter means that the decisions are enforceable or not.52 Mcdougal’s
works as well as those by his followers underscore the extensive range of values, interests and
considerations that must be taken into account within the international system in practice.
This focus on ‘authoritative decision-maker’, be it in US Department of State or British Foreign
Office or whoever with some stake in some international event’,53 reflects real facts about
power dimension underpinning international law. In specific terms, such an individual
experiences several forms of pressures and influences such as community values they live among

In addition to the means by which a state functions, and the particular interests it serves, it should
also be guided by fundamental values of the worldwide system such as human dignity. This
approach therefore involves dissecting a number of things and then anchoring international law
squarely within social sciences both in terms of its procedures and analytical tools used.
International law is seen in the following terms as;

The first perspective suggests that, international law is a process through authoritative decision-
making where rules are continually being made and unmade; secondly, it posits that these rules
of international laws acts as global perspectives regarding this vast decision making ambit;
thirdly, national application of these rules in specific cases necessarily involve interpretation like
any other form of communication on why these people or groups apply them on others just as
language has to be interpreted according to who uses them for what reasons (major and minor)
with respect to whom and under what circumstances. 54

The concern of this paper is to articulate the goals and values that legal rules express. The
school’s core values are those associated with human dignity, similar to the ideas in Western
democracy.55 In fact, the writer here has pointed out the Natural Law genesis of the approach,
and called for a jurisprudence which defines the position of law within international legal
systems on human rights and protection of environment in international law 56. Traditional
practitioners have criticized the policy-oriented movement for unduly minimizing how law
relates to other matters as well as ignoring the fact that countries usually take international law as
it is and follow it. 57 States rarely conduct extensive behavior analysis, taking into account all
relevant factors in an individual case such as human dignity or welfare. It has also been argued
that by doing so it may weaken international law.58 Furthermore, inserting such value concepts
as“human dignity” raises questions of subjectivity that sits oddly with what appears to be an
objective analytical framework. For instance, Koskenniemi highlights that a policy-orientated
approach tends to favour the dominant power59 .Still others, like professor Falk, share the basic
comprehensive approachof McDougal’s school but they criticize its incoherence and excessive
listing of many interests.It is global-minded towards human well-being and moral responsibility,
with special attention given to laws’ significance and structure.60 These contradictions were
raised by Franck who instead wanted to know why states obey international laws when structures
are underdeveloped so far apart from evaluating whether there exists any system at all for
international legal processes enforcement62 . According to this theory nations will feel obliged
to observe standards when they view norms based on high legitimacy; even if they violate them,
violators consider them valuable enough not to be completely dismissed61.Legitimacyis defined
as “…a property of ruleorrule-
makinginstitutionthatitselfexertsapulltowardscomplianceonthoseaddressednormativelybecauseth
ose addressed believe that the rule or institution has com einto
beingandoperatesinaccordancewithgenerallyacceptedprinciplesofright process”. Legitimacy,
however, cannot be empirically demonstrated in terms of legality, but compliance can be
measured by observing the state’s behavior that aligns itself to such a rule while still flouting
it63.

According to this argument, legitimacy will depend on at least four qualities: determinacy (or
‘transparency’); symbolic validation (or authority endorsement); coherence (or consistency or
general application) and adherence (or falling within an organised hierarchy of rules). Another
way of putting it is that with respect to why international law functions and thereby why its
norms are accepted, there may be objectively ascertainable criteria. This position is
supplemented by the view that Franck holds about justice as one form of morality and legitimacy
as another aspect of fairness which he believes is the most import inquiry for international law.63
But he also mentioned "coming right to individuality" 64 in a “global identity
crisis”,65manifesting also in supranational institutions growth and the

Many states collapsing in existence are undermining the traditional certainties of a world order.
He observes that today people are identifying themselves more as autonomous beings, which is
shown by the rise and expansion of international human rights law, and through the making of
multi-layered and freely chosen affiliations.66

Although both national and international laws increasingly protect such personal rights, the
question remains: how can one balance between individual, group, and state rights be achieved at
all?

However, legitimacy may also be understood more broadly as referring to the relationship with
the world political system as a whole especially as it links power to the legal system. Even
though not legality, it does invest normative order with authority and acceptability. Legitimacy
connects law and politics in its wider sense which will vary depending on where it comes from.

One writer has concluded that legitimacy ‘is a matter of history’ (Constitutional Perspectives on
an African Dilemma)68and thus subject to change given new future events and fresh
interpretations of past historical events’.67 It is worth noting that legality is important because it
is a benchmark for testing commonly shared legal norms and practices against wider political
environment. Two factors prove a rule legitimate: double approval; illegality plus illegitimacy
mean their disapproval will double either way; one rule or entity can be lawful but not legitimate
hence, cannot survive in the long run; if any practice seems illegal but legitimate then it may end
up forming part of a new rule.

Recurrent themes regarding sovereign states’ relationships with international society as well as
efforts aimed at justifying why international law continues to bind in state-dominated worlds
have recently been noted within some recent International Law Theory approaches under critical
legal studies.68 Such approaches have drawn attention to the many inconsistencies and
incoherence’s that persist within the international legal system. The search for an all-embracing
general theory of international law has been abandoned in mainstream thought as being founded
upon unverifiable propositions, whether religiously or sociologically based, and attention has
switched to the analysis of particular areas of international law and in particular procedures for
the settlement of disputes. The critical legal studies movement observes how traditional theories
of international law have at their core involved transferring ‘liberal’ ideas from domestic systems
onto the world stage but this brings more problems than it solves.69 Liberalism, for example, is
always trying to balance individual liberty with social order but inevitably ends up supporting
one or other of these positions.70 Moreover justice itself can only be subjective or imposed In
both cases liberalism fails as a system.

This approach is called Critical Legal Studies (CLS), sometimes also referred to as New
Approaches to International Law. It argues that law is closely related to society but stresses that
conceptual analysis is necessary since concepts do not exist in a vacuum as they are
manifestations of power relationships between different actors. This point highlights the linkages
between state power and international legal concepts that need to be aware also of the way in
which these concepts themselves mirror political forces. Koskenniemi writes that “a post-realist
theory . . . seeks to address issues regarding the relationship between law and society, and
constraints on sovereigns with respect to legitimacy as only different aspects of one problem: the
problem of power in concepts (71). The rise of global community and recognition of pluralism
within it, according to the author, results in disappearance of universality itself and concentration
on particular contexts for specific problems.

In another piece, Koskenniemi has recently identified not just this ongoing conflict between
universalist and particularism impulses within international law(72), but he has also underscored
the difference between formalism and dynamism, or rule-focused versus policy-driven
approaches. It is his belief basically that this latter approach may lend support to a hegemonic
political position (73).

This answer is so typical of any lawyer who will always say that it all depends on the specifics of
a given case. Thus, the argument proceeds from this generality to consider which among several
potentially relevant international rules should take precedence over others. What is actually
meant by this is that superior guiding principles are hard to find or defend, allowing them
conclude that there is no point in searching for general principles or concepts. This
‘constitutional’ perspective thus leads him/her to argue that ultimately there is no coherent
international legal system per se but instead one should concentrate on ad hoc legal conceptions
as reflecting power considerations and within the confines of the specific contexts in which these
specific questions have arisen. Critical legal studies view shares one thing with policy-orientated
approach: an awareness that international law goes beyond mere set o f rules ;but rather than
viewing law as consisting of competing norms from which choices have to be made, it
emphasizes indeterminacy as such (74).
One field that has received increasing attention recently is that concerned with the status of
women within international law, either in relation to the structure of the global system or to the
under-representation of women in the institutions and processes of the international legal order,
or because of substantive law which has historically ignored women's needs and concerns (75).

The law of international fragmentation?76

However, the vast increase in both its procedural and institutional aspects, as well as
specialization in areas like trade law, environmental law and human rights has resulted in
scholars arguing that the global legal system is being broken into parts. This means that there are
fears that a coming apart of such kind may lead to a complete breakdown of International Law
with various limited or localized systems with little or no connection between them. In many
ways it is the explosion of what is called globalisation,77 with associated practices and
mechanisms spreading across the globe that has caused this dilemma of fragmentation which is
defined by some as ‘the rise of distinct specialized and relatively autonomous spheres of social
action and structure’.78 This has led to a debate as to the relationship between self-contained
regimes in international law and the system as a whole,79 with the fear being expressed that the
rise of specialized rules and mechanisms that have no clear authority relationship might lead to
conflicts between local systems and, at least inconsistencies in interpretation and development.
international law.80 Although this is true to some extent,81 international law also retains an
impulse towards centralization,82 and a strong normative bias against conflict:83 for example,
the principle that special law (lex specialist) derogates from general law (lex generalis), so that
the more detailed rule prevails.

It would also be correct to say that international law; as one may describe it, is not centrally
organized but an array of different rules developed through general conventions or treaties,
specific agreements and customary laws on various issues which are increasingly overlapping
each other evenwith growing specialization within subject areas85.The Commission’s report on
Fragmentation argued among other matter that ‘the advent of specific treaty-regimes 86 (which
should not be termed “self-contained”) has not significantly undermined certainty nor
predictability nor equality before the law’and ‘greater attention will have to be paid to the
conflict of norms and regimes and the regulations, methods and tools for resolving such
conflicts’.87

Conclusion

A variety of theories and approaches to international law, not least with regard to its close
connection with international relations.88 Hence, it is evident that international law has far
exceeded these simple legalistic rules in form, by having a kind of culture that can also be seen
as a medium for making claims, counterclaims, expectations or anticipations as well as being a
framework within which to judge them and set priorities.
International law operates in a specific world setting involving various actors ranging from states
to international organizations, companies, persons etc., which necessitates its sensitivity towards
the needs and aspirations of all these actors. The international system is increasingly populated
by cooperative and competitive factors engaged in trans boundary activities even though the
normative as well as structural

International law is still there. Law is not the only method of resolving conflicts and negotiations
that become international in nature. Rather, it’s a number of approaches which can be used to
deal with such a complicated system then law is one of them depending on its prestige and
influence as inherently having mutual acceptance obligations89. Law cannot be separated from
politics since they are different entities but with links at various levels. It’s an important
relationship where both exist for each other. Even though it might seem otherwise, it does no
good to any of the two disciplines by undervaluing the other one.

Suggestions for further reading

P. Bobbitt, The Shield of Achilles, London, 2002

H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist

Analysis, Manchester, 2000

T. M. Franck, Fairness in International Law and Institutions, Oxford, 1995

The Empowered Self, Oxford, 1999

M. Koskenniemi, The Gentle Civilizer of Nations, Cambridge, 2001

S. Marks, The Riddle of All Constitutions: International Law, Democracy and the

Critique of Ideology, Cambridge, 2000

R. M¨ullerson, Ordering Anarchy: International Law in International Society, The

Hague, 2000

1 See below, chapter 11.

2 See below, chapter 20.

3 For views as to the precise definition and characteristics of the international order or system

or community, see G. Schwarzenberger and E. D. Brown, A Manual of International Law,

6th edn, London, 1976, pp. 9–12;H. Yalem, ‘The Concept ofWorld Order’, 29 YBWA, 1975,

and I. Pogany, ‘The Legal Foundations of World Order’, 37 YBWA, 1983, p. 277.
4 See e.g. L. C. Green, ‘Is There aUniversal International Law Today?’, 23 Canadian YIL, 1985,

p. 3.

5 See below, chapter 5, p. 211.

6 For examples of this in the context of the law relating to territory, see M. N. Shaw, Title to

Territory in Africa: International Legal Issues, Oxford, 1986, pp. 1–11.

7 See S. Hoffman, ‘International Systems and International Law’, 14 World Politics, 1961–2,

p. 205.

8 See the Lotus case, PCIJ, Series A, No. 10, p. 18. 9 See further below, chapter 5.

10 See below, chapter 8. 11 Ibid.

12 See further below, chapters 6 and 7. 13 See further below, chapter 22.

14 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports, 1949,

p. 174; 16 AD, p. 318.

15 See generally below, chapter 23.

16 See e.g. A. Giddens, The Consequences of Modernity, Stanford, 1990; S. Sur, ‘The State

Between Fragmentation and Globalisation’, 8 EJIL, 1997, p. 421; B. Simma and A. Paulus,

‘The “International Community”: Facing the Challenge ofGlobalisation.General Conclusions’,

9 EJIL, 1998, p. 266, and P. M. Dupuy, ‘International Law:Torn BetweenCoexistence,

Co-operation and Globalisation. General Conclusions’, 9 EJIL, 1998, p. 278. See also the

Declaration of Judge Bedjaoui in the Advisory Opinion on The Legality of the Threat or

Use of Nuclear Weapons, ICJ Reports, 1996, pp. 226, 270–1. Note that Philip Bobbitt has

described five developments challenging the nation-state system, and thus in essence
characterising

the globalisation challenge, as follows: the recognition of human rights as norms

requiring adherence within all states regardless of internal laws; the widespread deployment

of weapons of mass destruction rendering the defence of state borders ineffectual for
the protection of the society within; the proliferation of global and transnational threats

transcending state boundaries such as those that damage the environment or threaten

states through migration, population expansion, disease or famine; the growth of a world

economic regime that ignores borders in the movement of capital investment to a degree

that effectively curtails states in the management of their economic affairs; and the creation

of a global communications network that penetrates borders electronically and threatens

national languages, customs and cultures, The Shield of Achilles, London, 2002, p. xxii.

17 See e.g. Myers v. Canada 121 ILR, pp. 72, 110.

18 See e.g. D. Lyons, Ethics and the Rule of Law, London, 1984; R. Dworkin, Taking Rights

Seriously, London, 1977; H. L. A. Hart, The Concept of Law, Oxford, 1961, and P. Stein and

J. Shand, Legal Values inWestern Society, Edinburgh, 1974. See also R. Dias, Jurisprudence,

5th edn, London, 1985.

19 See Hart, Concept of Law, andHart, ‘Positivism and the Separation of Law andMorals’, 71

Harvard Law Review, 1958, p. 593. Cf. L. Fuller, ‘Positivism and Fidelity to Law – A Reply

to Professor Hart’, 71 Harvard Law Review, 1958, p. 630. See also D. Anzilotti, Cours de

Droit International, Paris, 1929, and B. Kingsbury, ‘Legal Positivismas Normative Politics:

International Society, Balance of Power and LassaOppenheim’s Positive International Law’,

13 EJIL, 2002, p. 401.

20 ‘The Pure Theory of Law’, 50 LQR, 1934, pp. 474, 477–85 and 51 LQR, 1935, pp. 517–

22. See also the articles collected in ‘The European Tradition in International Law: Hans

Kelsen’, 9 EJIL, 1998, pp. 287 ff.

21 Kelsen, Pure Theory.

22 See J. Stone, ‘Mystery and Mystique in the Basic Norm’, 26 MLR, 1963, p. 34, and J. Raz,

Practical Reason and Norms, Oxford, 1975, pp. 129–31.

23 General Theory of Law and State, Cambridge, 1946, pp. 328 ff. See also J. Lador-Lederer,
‘Some Observations on the “Vienna School” in International Law’, 17 NILR, 1970, p. 126.

24 Kelsen, General Theory of Law and State, pp. 369–70.

25 Ibid. 26 Hart terms this ‘mere useless reduplication’: Concept of Law, p. 230.

27 General Theory of Law and State, pp. 366–8. See further below, chapter 4.

28 Concept of Law, chapter 5. See also e.g. Dworkin, Taking Rights Seriously; Raz, Practical

Reason, and N. MacCormick, Legal Reasoning and Legal Theory, Oxford, 1978.

29 Concept of Law, pp. 228–31. 30 See Dworkin, Taking Rights Seriously.

31 See e.g. Philosophy of Law, New Haven, 1954, pp. 42–7. See also M. D. A. Freeman, The

Legal Structure, London, 1974, chapter 4.

32 Outlines of Jurisprudence, 5th edn, Cambridge, 1943, pp. 116–19.

33 See e.g. K. Llewellyn, The Common Law Tradition, Boston, 1960, and Jurisprudence,

Chicago, 1962. See also W. Twining, Karl Llewellyn and the Realist Movement, London,

1973, and L. Loevinger, ‘Jurimetrics – The Next Step Forward’, 33 Minnesota Law Review,

1949, p. 455.

34 See e.g. J. Maritain, Man and the State, Paris, 1951, and J. Dabin, General Theory of Law,

2nd edn, 1950.

35 See e.g. R. Stammler, Theory of Justice, New York, 1925, and G. Del Vecchio, Formal Bases

of Law, Boston, 1921.

36 See e.g. F. G´eny, M´ethode d’Interpr´etation et Sources en Droit Priv´e Positif, Paris, 1899,
and

L. Duguit, Law in the Modern State, New York, 1919, and ‘Objective Law’, 20 Columbia

Law Review, 1920, p. 817.

37 Introduction to Legal Philosophy, 1947. See also Hart, ‘Positivism’; Fuller, ‘Positivism’, and

Fuller, ‘The Legal Philosophy of Gustav Radbruch’, 6 Journal of Legal Education, 1954, p.

481.
38 See H. Lauterpacht, International Law and Human Rights, London, 1950. Note more
generally

the approach of J. Rawls, A Theory of Justice, Oxford, 1971, and A. D’Amato, ‘International

Law and Rawls’ Theory of Justice’, 5 Denver Journal of International Law and

Policy, 1975, p. 525. See also J. Boyle, ‘Ideals and Things: International Legal Scholarship

and the Prison-house of Language’, 26 Harvard International Law Journal, 1985, p. 327; A.

D’Amato, ‘Is International Law Part of Natural Law?’, 9 Vera Lex, 1989, p. 8; E. Midgley,

The Natural Law Tradition and the Theory of International Relations, London, 1975, and

C. Dominic´e, ‘Le Grand Retour du Droit Naturel en Droit des Gens’, M´elanges Grossen,

1992, p. 399.

39 See e.g. B. S. Chimni, International Law and World Order, New Delhi, 1993; A. Cassese,

International Law, 2nd edn, Oxford, 2005, chapter 1, and R. M¨ullerson, Ordering Anarchy:

International Law in International Society, The Hague, 2000. See also D. J. Bederman,

The Spirit of International Law, Athens, 2002; A. Buchanan, Justice, Legitimacy and Self-

Determination,Oxford, 2004; International Law and itsOthers (ed. A. Orford), Cambridge,

2006; S. Rosenne, The Perplexities of Modern International Law, Leiden, 2004, and P. M.

Dupuy, L’Unit´e de l’Ordre Juridique International, Leiden, 2003.

40 See e.g. H.Morgenthau, Politics Among Nations, 4th edn, NewYork, 1967, and K. Thompson,

Political Realism and the Crisis of World Politics: An American Approach to Foreign

Policy, Princeton, 1960. See also A. Slaughter Burley, ‘International Law and International

Relations Theory: A Dual Agenda’, 87 AJIL, 1993, p. 205, and A.-M. Slaughter, A New

World Order, Princeton, 2004; R. Aron, Paix et Guerre Entre des Nations, Paris, 1984; M.

Koskenniemi, The Gentle Civilizer of Nations, Cambridge, 2001, chapter 6.

41 See e.g. Contending Approaches to International Politics (eds. K. Knorr and J. Rosenau),

Princeton 1969, and W. Gould and M. Barkun, International Law and the Social Sciences,
Princeton, 1970.

42 Note Barkun’s comment that ‘the past theoretical approaches of the legal profession have

involved logical manipulations of a legal corpus more often than the empirical study of

patterns of human behaviour’, Law Without Sanctions, New Haven, 1968, p. 3. See also

R. A. Falk, ‘New Approaches to the Study of International Law’, in New Approaches to

International Relations (ed. M. A. Kaplan), New York, 1968, pp. 357–80, and J. Frankel,

Contemporary International Theory and the Behaviour of States, London, 1973, pp. 21–2.

43 See e.g. C. A. McClelland, Theory and the International System, New York, 1966; M. A.

Kaplan, System and Process in International Politics, New York, 1964; M. A. Kaplan and

N. Katzenbach, The Political Foundations of International Law, New York, 1961, and R. A.

Falk and C. Black, The Future of International Legal Order, Princeton, 1969. See also A.

Kiss and D. Shelton, ‘Systems Analysis of International Law: A Methodological Inquiry’,

17 Netherlands YIL, 1986, p. 45.

44 See J. Frankel, International Relations in a Changing World, London, 1979, pp. 152–7, and

Kaplan and Katzenbach, Political Foundations, pp. 62–70.

45 Kaplan and Katzenbach, Political Foundations, pp. 50–5. As far as the systems approach

is concerned, see also S. Hoffman, ‘International Systems and International Law’ in The
International System (eds. K. Knorr and S. Verba),Westport, 1961, p. 205; G. Clark and L.

Sohn, World Peace Through World Law, 3rd edn, Boston, 1966, and The Strategy of World

Order (eds. R. A. Falk and S.Mendlovitz),New York, 4 vols., 1966. See now Bobbitt, Shield,

book II.

46 See e.g. R. Lieber, Theory and World Politics, London, 1972, chapter 2; Game Theory

and Related Approaches to Social Behaviour (ed. H. Shubik), London, 1964, and W. J. M.

Mackenzie, Politics and Social Sciences, London, 1967.

47 Note also the functionalist approach to international law. This orientation emphasises
the practical benefits to states of co-operation in matters of mutual interest: see e.g. W.

Friedmann, An Introduction toWorld Politics, 5th edn, London, 1965, p. 57; F.Haas, Beyond

the Nation State, Stanford, 1964; D.Mitrany,AWorking Peace System, London, 1946; C.W.

Jenks, Law, Freedom andWelfare, London, 1964, and J. Stone, LegalControls of International

Conflict, London, 1959. See alsoD. Johnston, ‘Functionalismin theTheoryof International

Law’, 25 Canadian YIL, 1988, p. 3.

48 See e.g. M. S.McDougal, ‘International Law, Power and Policy’, 82 HR, 1952, p. 133; M. S.

McDougal, H. Lasswell andW. M. Reisman, ‘Theories about International Law: Prologue

to a Configurative Jurisprudence’, 8 Va. JIL, 1968, p. 188; M. S. McDougal, ‘International

Law and the Future’, 50 Mississippi Law Journal, 1979, p. 259, and H. Lasswell and M. S.

McDougal, Jurisprudence for a Free Society, Yale, 1992. See also G. Scelle, Manuel de Droit

International, Paris, 1948, and Chimni, International Law, chapter 3.

49 M. S.McDougal andW.M. Reisman, International Law in Contemporary Perspective, New

Haven, 1980, p. 5.

50 M. S. McDougal, ‘The Policy-Oriented Approach to Law’, 40 Virginia Quarterly Review,

1964, p. 626. See also E. Suzuki, ‘TheNewHaven School of International Law:An Invitation

to a Policy-Oriented Jurisprudence’, 1 Yale Studies in World Public Order, 1974, p. 1.

51 Suzuki, ‘Policy-Oriented Jurisprudence’, pp. 22–3. See also M. S. McDougal, ‘Some Basic

Theoretical Concepts about International Law: A Policy-Oriented Framework of Inquiry’,

4 Journal of Conflict Resolution, 1960, pp. 337–54.

52 M. S. McDougal and H. Lasswell, ‘The Identification and Appraisal of Diverse Systems of

Public Order’, 53 AJIL, 1959, pp. 1, 9.

53 McDougal and Reisman, International Law, p. 2.

54 M. S. McDougal, ‘A Footnote’, 57 AJIL, 1963, p. 383.

55 See M. S. McDougal, H. Lasswell and L. C. Chen, Human Rights and World Public Order,
New Haven, 1980. For a discussion of the tasks required for a realistic inquiry in the light

of defined goals, see McDougal, ‘International Law and the Future’, pp. 259, 267.

56 ‘The View from the New Haven School of International Law’, PASIL, 1992, p. 118.

57 See in particular P. Allott, ‘Language, Method and the Nature of International Law’, 45

BYIL, 1971, p. 79. Higgins has vividly drawn attention to the differences in approach to

international law adopted by American and British writers: ‘Policy Considerations and the

International Judicial Process’, 17 ICLQ, 1968, p. 58. See also T. Farer, ‘Human Rights in

Law’s Empire: The Jurisprudence War’, 85 AJIL, 1991, p. 117.

58 Allott, ‘Language’, pp. 128 ff. 59 See Gentle Civilizer of Nations, pp. 474 ff.

60 See e.g. R. A. Falk, Human Rights and State Sovereignty, New York, 1981, and Falk, On

Human Governance, Cambridge, 1995. See also The United Nations and a JustWorld Order

(eds. R. Falk, S. Kim and S. Mendlovitz), Boulder, 1991, and Chimni, International Law,

chapter 4. But note the approach of, e.g., J. S. Watson, ‘A Realistic Jurisprudence of
International

Law’, 34 YBWA, 1980, p. 265, and M. Lane, ‘DemandingHuman Rights: A Change

in the World Legal Order’, 6 Hofstra Law Review, 1978, p. 269. See also Boyle, ‘Ideals and

Things’.

61 T. M. Franck, The Power of Legitimacy Among Nations, Oxford, 1990. See also Franck,

‘Fairness in the International Legal and Institutional System’, 240 HR, 1993 III, p. 13,

chapter 2; Franck, Fairness in International Law and Institutions, Oxford, 1995, chapter 2,

and Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in

an Age of Power Disequilibrium’, 100 AJIL, 2006, p. 88.

62 Franck, Legitimacy, p. 24. 63 Franck, ‘Fairness’, p. 26.

64 T. M. Franck, The Empowered Self, Oxford, 1999, p. 1.

65 Ibid., p. 3. 66 Ibid., pp. 278–80.

67 Bobbitt, Shield, p. 17.

68 See e.g. The Structure and Processes of International Law (eds. R. St J. Macdonald and D.

Johnston),Dordrecht, 1983; Boyle, ‘Ideals and Things’;A.Carty, TheDecay of International

Law? A Reappraisal of the Limits of Legal Imagination in International Affairs, Manchester,

1986; D. Kennedy, International Legal Structure, Boston, 1987; M. Koskenniemi, From

Apology to Utopia, Helsinki, 1989; F. V. Kratochwil, Rules, Norms and Decisions: On the

Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs,

Cambridge, 1989; P. Allott, Eunomia, Oxford, 1990; Allott, The Health of Nations, Cambridge,

2002; Theory and International Law: An Introduction (ed. Allott), London, 1991,

and International Law(ed. M.Koskenniemi), Aldershot, 1992. See also I. Scobbie, ‘Towards

the Elimination of International Law: Some Radical Scepticism about Sceptical Radicalism’,

61 BYIL, 1990, p. 339, and S. Marks, The Riddle of All Constitutions: International

Law, Democracy and the Critique of Ideology, Cambridge, 2000.

69 See e.g. Koskenniemi, International Law, p. xvi.

70 Koskenniemi, From Apology to Utopia, p. 52.

71 Ibid., p. xxi.

72 See also M. Eyskens, ‘Particularism versus Universalism’ in International Law – Theory and

Practice (ed. K. Wellens), The Hague, 1998, p. 11.

73 Gentle Civilizer of Nations.

74 SeeHiggins, Problems and Process, p. 9. See also J. A. Beckett, ‘CounteringUncertainty and

Ending Up/Down Arguments: Prolegomena to a Response to NAIL’, 16 EJIL, 2005, p. 213.

75 See e.g. H. Charlesworth and C. M. Chinkin, The Boundaries of International Law: A

Feminist Analysis, Manchester, 2000; H. Charlesworth, C. M. Chinkin and S. Wright,

‘Feminist Approaches to International Law’, 85 AJIL, 1991, p. 613; F. Tes ´ on, ‘Feminism

and International Law: A Reply’, 33 Va. JIL, 1993, p. 647, and International Law: Modern
Feminist Approaches (eds. D. Buss and A. Manji), Oxford, 2005. See also the ‘Final Report

on Women’s Equality and Nationality in International Law’ in Report of the Sixty-Ninth

Conference, International LawAssociation, London, 2000, p. 248. Note that article 25(2) of

the Rules of the European Court of Human Rights requires that the Sections of the Court

be ‘gender balanced’, while article 36(8)a(iii) of the Statute of the International Criminal

Court 1998 declares that the selection process for judges of the Court should include the

need for a ‘fair representation of female and male judges’. See also ICC-ASP/1/Res.- 2

(2002) on the procedure for nomination of judges which required a minimum number of

female and male candidates.

76 See e.g. ‘Fragmentation of International Law: Difficulties Arising from the Diversification

and Expansion of International Law’, Report of the Study Group of the International

Law Commission (finalised by M. Koskenniemi), A/CN.4/L.682, 2006; M. Koskenniemi

and P. Leino, ‘Fragmentation of International Law? Postmodern Anxieties’, 15 Leiden

Journal of International Law, 2002, p. 553; M. Prost and P. K. Clark, ‘Unity, Diversity

and the Fragmentation of International Law’, 5 Chinese Journal of International Law, 2006,

p. 341; B. Simma and D. Pulkowski, ‘Of Planets and the Universe: Self-contained Regimes

in International Law’, 17 EJIL, 2006, p. 483, and E. Benvenisti and G. W. Downs, ‘The

Empire’s New Clothes: Political Economy and the Fragmentation of International Law’, 60

Stanford Law Review, 2007, p. 595.

77 See e.g. P. S. Berman, The Globalisation of International Law, Aldershot, 2005.

78 International Law Commission Report on Fragmentation, p. 11.

79 See, for an early example, B. Simma, ‘Self-Contained Regimes’, 16 Netherlands YIL, 1985,

p. 111.

80 See e.g. Unity and Diversity in International Law (eds. A. Zimmermann and R. Hofmann),

Berlin, 2006; K. Wellens, ‘Fragmentation of International Law and Establishment of an

Accountability Regime for International Organizations’, 25 Michigan Journal of International

Law, 2004, p. 1159, and L’Influence des Sources sur l’Unit´e et la Fragmentation du

Droit International (eds. K. C. Wellens and R. H. Viraxia), Brussels, 2006.

81 See e.g. A.Reinisch, ‘Necessity in InternationalArbitration –AnUnnecessary Split of Opinions

in Recent ICSID Cases? Comments on CMS v. Argentina and LG&E v. Argentina’, 8

Journal of World Investment and Trade, 2007, p. 191.

82 International Law Commission Report on Fragmentation, p. 25.

83 See further below, chapter 3, p. 124.

84 See e.g. with regard to human rights law and humanitarian law (or the laws of war),

A. E. Cassimitis, ‘International Humanitarian Law, International Human Rights Law, and

Fragmentation of International Law’, 56 ICLQ, 2007, p. 623. See further below, chapter 21,

p. 1180.

85 See further below, chapter 19, p. 1115.

86 At pp. 248–9.

87 See e.g. A.-M. Slaughter, A. S.Tulumello and S.Wood, ‘International Lawand International

Relations Theory: A New Generation of Interdisciplinary Scholarship’, 92 AJIL, 1998,

p. 367, and Slaughter, A New World Order. See also Bobbitt, Shield, who posits the dying

of the nation-state and its replacement by the market-state, with consequential changes

with regard to both international law and its institutions, e.g. pp. 353 ff. and 667 ff.

88 Note relatively recent arguments based on a revived power realism approach, particularly

made in the US, that international law is simply a part of a complex of factors which are

relevant, and implicitly subservient, to diplomacy and the pursuit of national interests: see

e.g. J. L. Goldsmith and E. A. Posner, The Limits of International Law, Oxford, 2005, and

M. J. Glennon, Limits of Law, Prerogatives of Power: Interventionismafter Kosovo, NewYork,

2001, but cf. Franck, Power of Legitimacy; A. Van Aaken, ‘To Do Away with International
Law? Some Limits to the “Limits of International Law” ’, 17 EJIL, 2006, p. 289, and G.

Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal

Order, Cambridge, 2004.

89 Higgins has noted that ‘international law has to be identified by reference to what the

actors (most often states), often without benefit of pronouncement by the International

Court of Justice, believe normative in their relations with each other’, Problems and Process,

p. 18.
 3 Sources
Ascertainment of the law on any given point in domestic legal orders is not usually too hard.1
For example, the English legal system is such that one would look to see whether there is an Act
of Parliament regarding the matter and if there is, then the law reports are used to find out its
interpretation by courts. In case a particular point has not been mentioned in a statute, court cases
may be reviewed with an aim of obtaining the required information.

1 See generally C. Parry, The Sources and Evidences of International Law, Cambridge, 1965;
M. Sørensen, Les Sources de Droit International, Paris, 1946; V. D. Degan, Sources of
International
Law, The Hague, 1997; Oppenheim’s International Law (eds. R. Y. Jennings and
A. D. Watts), 9th edn, London, 1992, p. 22; I. Brownlie, Principles of Public International
Law, 6th edn, Oxford, 2003, chapter 1; Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit
International Public, 7th edn, Paris, 2002, p. 111; A. Boyle and C. Chinkin, The Making of
International Law, Oxford, 2007; G. M. Danilenko, Law-Making in the International
Community,
The Hague, 1993; G. I. Tunkin, Theory of International Law, London, 1974, pp.
89–203; J. W. Verzijl, International Law in Historical Perspective, Leiden, 1968, vol. I, p. 1;
H. Lauterpacht, International Law: Collected Papers, Cambridge, 1970, vol. I, p. 58; Change
and Stability in International Law-Making (eds. A. Cassese and J. Weiler), Leiden, 1988;
A. Bos, A Methodology of International Law, Amsterdam, 1984; A. Cassese, International
Law, 2nd edn, Oxford, 2005, chapters 8–10; A. Pellet, ‘Article 38’ in The Statute of the
International Court of Justice: A Commentary (eds. A. Zimmermann, C. Tomuschat and
K. Oellers-Frahm), Oxford, 2006, p. 677; M. Virally, ‘The Sources of International Law’
in Manual of Public International Law (ed. M. Sørensen), London, 1968, p. 116; C. Tomuschat,
‘Obligations Arising for States Without or Against Their Will’, 241 HR, 1993,
p. 195; B. Simma, ‘From Bilateralism to Community Interest in International Law’, 250
HR, 1994, p. 219; M. Mendelson, ‘The International Court of Justice and the Sources of
International Law’ in Fifty Years of the International Court of Justice (eds. A. V. Lowe and
M. Fitzmaurice), Cambridge, 1996, p. 63; G.Abi-Saab, ‘Les Sources du Droit International –
Un Essai de D´econstruction’ in Le Droit International dans un Monde en Mutation,
Montevideo,
1994, p. 29, and O. Schachter, ‘Recent Trends in International Law-Making’,
12 Australian YIL, 1992.
This suggests that there is a clear approach to determining what the law really is. The method
ascertains the constitution of rules and how they come into being either by Act passed by
parliament or through judicial decisions taken over centuries. This ensures that the legal process
is certain since it can be determined when a proposition becomes law and there are clear
mechanisms to address any disputes about it.
It shows that national legal order contains levels of authority which confer stability and
predictability upon the Law. The contrast between this position and international law could
hardly be more stark. International law lacks legislative, executive or judicial institutions within
it; the implications of this will become clearer as we proceed further.

There isn’t one global body capable of making laws applicable to all and sundry across nations
nor do we have proper court structures with wide ranging powers for interpreting and expanding
on these laws. They consequently lack formal source, resulting in debates over their existence.It
should also be noted that anarchism pervades world affairs hence sometimes different countries’
sovereignties clash against each other. This however does not mean that there isn’t international
law.

‘Sources’ therefore refers to what operates within a legal system at a technical level while
excluding ultimate sources such as reason or morality and functional ones like libraries and
journals for instance. What follows below thus intends to explore how rules of international law
originate from nowhere2.

Article 38(1)of ICJ Statute represents itself as the most authoritative and exhaustive statement on
sources of international law.3 It states that: the Court, whose function is to decide in accordance
with international law such disputes as are submitted to it, shall apply: (a) international
conventions, whether general or particular, establishing rules expressly recognized by the
contesting states; (b) international custom, as evidence of a general Practice accepted as law; (c)
the general principles of law recognized by civilized nations; (d) subject to the provisions of
Article 59, judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law.

2 See also, e.g., M. S. McDougal andW. M. Reisman, ‘The Prescribing Function: How
International
Law is Made’, 6 Yale Studies in World Public Order, 1980, p. 249.
3 See e.g. Brownlie, Principles, p. 5; Oppenheim’s International Law, p. 24, andM. O. Hudson,
The Permanent Court of International Justice, New York, 1934, pp. 601 ff.
However, this formulation is actually confined to those sources which are relevant in deciding
cases before the International Court. This is because since all member states of United Nations
are ipso facto parties to Statute due to article

Article 93 of the United Nations Charter says that nonmember states can be part to the Statute of
the Court. An outstanding case in point until 2002 was Switzerland before it became a UN
member.3 There is therefore no serious dispute on this provision as reflecting the general view
regarding the hierarchy of sources of international law.

There are some writers who have tried to differentiate within this provision, thus according to
them “international conventions, custom and general principles of law” are exclusively
responsible for making laws, while “judicial decisions and teachings of highly qualified
publicists” play a role in establishing whether or not such rules exist at all or what they contain.4
However, it should be noted that rigid boundaries are not always possible to establish.

The different activities overlap significantly so that in many cases treaties (or conventions)
merely restate generally accepted rules of customary law, and judgments of the International
Court of Justice may actually create law just as municipal judges formulate new law by
interpreting existing one.5

Sometimes formal and material sources have been distinguished from each other too.6 While the
former give legal force to these norms, the latter represent their substance.

In this sense, formal sources seem to reflect constitutional mechanism for identification of laws
while material ones refer to their content – essence or subject-matter. Yet this division has met
with much criticism especially due to its failure to take into account some peculiarities relating to
particular international legal situations; it takes away attention from some more important issues
by attempting a clear distinction between substantive and procedural aspects which is hard to
sustain in relations governed by international law.

4 See e.g. G. Schwarzenberger, International Law, 3rd edn, London, 1957, vol. I, pp. 26–7.
5 There are a number of examples of this: see below, chapter 4, p. 138.
6 See e.g. Brownlie, Principles, p. 1. See also Nguyen Quoc Dinh et al., Droit International
Public, pp. 111–12, where it is noted that ‘les sources formelles du droit sont
les proc´ed´es d’´elaboration du droit, les diverses techniques qui autorisent `a consid´erer
qu’une rˆegle appartient au droit positif. Les sources mat´erielles constituent les fondements
sociologiques des normes internationales, leur base politique, morale ou ´economique
plus ou moins explicit´ee par la doctrine ou les sujets du droit’, and Pellet, ‘Article 38’
p. 714.
Custom7

Introduction

In any primitive society certain rules of behavior emerge and prescribe what is permitted and
what is not; these rules grow up rather unconsciously within the group and are supported by the
members of the group through social pressures and with the help of other more tangible
materials.

They are not codified, at least in their earlier stages, remain unwritten but survive essentially
because they carry an air of historical legitimacy.8

7 See generally, A. D’Amato, The Concept of Custom in International Law, Cornell, 1971;
M. Akehurst, ‘Custom as a Source of International Law’, 47 BYIL, 1974–5, p. 1; M.Mendelson,
‘The Formation of Customary International Law’, 272 HR, 1999, p. 159; B. Cheng,
‘Custom: The Future of General State Practice in a Divided World’ in The Structure and
Process of International Law (eds. R. St J. Macdonald and D. Johnston), Dordrecht, 1983,
p. 513; A. E. Roberts, ‘Traditional and Modern Approaches to Customary International
Law: A Reconciliation’, 95 AJIL, 2001, p. 757; H. Thirlway, International Customary Law
and Codification, Leiden, 1972; Sources of State Practice in International Law(eds. R. Gaebler
and M. Smolka-Day), Ardley, 2002; K. Wolfke, Custom in Present International Law, 2nd
edn, Dordrecht, 1993, and Wolfke, ‘Some Persistent Controversies Regarding Customary
International Law’, Netherlands YIL, 1993, p. 1; L. Kopelmanas, ‘Custom as aMeans of the
Creation of International Law’, 18 BYIL, 1937, p. 127; H. Lauterpacht, The Development of
International Law by the International Court, Cambridge, 1958, pp. 368–93; J. Kunz, ‘The
Nature of Customary International Law’, 47 AJIL, 1953, p. 662; R. J. Dupuy, ‘Coutume Sage
et Coutume Sauvage’, M´elanges Rousseau, Paris, 1974, p. 75; B. Stern, ‘LaCoutume auCoeur
du Droit International’, M´elanges Reuter, Paris, 1981, p. 479; R. Y. Jennings, ‘Law-Making
and Package Deal’, M´elanges Reuter, p. 347; G. Danilenko, ‘The Theory of International
Customary Law’, 31 German YIL, 1988, p. 9; Barberis, ‘R´efl´exions sur la Coutume
Internationale’,
AFDI, 1990, p. 9; L. Condorelli, ‘Custom’ in International Law: Achievements
and Perspectives (ed. M. Bedjaoui), Paris, 1991, p. 206; M. Byers, ‘Custom, Power and the
Power of Rules’, 17 Michigan Journal of International Law, 1995, p. 109; H. Thirlway, ‘The
Law and Procedure of the International Court of Justice: 1960–89 (Part Two)’, 61 BYIL,
1990, pp. 3, 31, and Thirlway, ‘The Law and Procedure of the International Court of Justice:
1960–89: Supplement, 2005: Parts One and Two’, 76 BYIL, 2006, pp. 1, 92; J. Kammerhofer,
‘The Uncertainty in the Formal Sources of International Law: Customary International
Law and Some of Its Problems’, 15 EJIL, 2004, p. 523; P. M. Dupuy, ‘Th´eorie des Sources et
Coutume en Droit International Contemporain’ in Le Droit International dans un Monde
en Mutation, p. 51; D. P. Fidler, ‘Challenging the Classic Conception of Custom’, German
YIL, 1997, p. 198; R.M¨ullerson, ‘On theNature and Scope of Customary International Law’,
Austrian Review of International and European Law, 1998, p. 1; M. Byers, Custom, Power
and the Power of Rules, Cambridge, 1999, and A. Carty, The Decay of International Law?,
Manchester, 1986, chapter 3. See also the ‘Statement of Principles Applicable to the Formation
of General Customary International Law’ in Report of the Sixty-Ninth Conference,
International Law Association, London, 2000, p. 713.
8 See e.g. R. Unger, Law in Modern Society, London, 1976, who notes that customary law
can be regarded as ‘any recurring mode of interaction among individuals and groups,
As a community develops it will modernize its code of behavior through creating legal
machinery such as courts and legislatures. But custom is left intact even though it may undergo
changes.9 it is regarded as an authoritative statement about the needs or values which affect that
community at any given time.

Custom within contemporary legal systems in the developed world, however, is rather
cumbersome, insignificant and at most times only nostalgic.10 Instead in international law it
should be seen as being dynamic arising from a nature where there exists no central governing
authority organs.

The practice and behavior of states would suggest that customary rules exist. This is what
complicates matters further. How does one tell whether a particular course of action taken by a
state constitutes a rule to be followed under law or simply reflects good manners? Indeed how
can anybody find out anything whatever about what any state actually does or why since there
isn’t a single living ‘state’ but thousands upon thousands of officials working on behalf dozens
of departments exercising governmental functions? There are also issues related to how fast new
standards come into effect and what impact protests have had.

There are differing views about whether customary system has relevance in international law.
Some scholars argue that custom cannot serve as a significant source for modern day’s law
stating that custom is too rigid to follow the development speed of international law now,11
while others hold that it is an ongoing process generating laws and is superior to treaties because
it applies universally.12 Alternatively, some scholars believe that this characteristic makes
custom valuable as it responds to spontaneous acts, reflecting the current concerns of a given
society. Nonetheless, this is a concept whose significance has been eroded by both many forms
of state activity occurring in greater variety and pace .13

together with the more or less explicit acknowledgement by these groups and individuals
that such patterns of interaction produce reciprocal expectations of conduct that ought to
be satisfied’, p. 49. See also R. Dias, Jurisprudence, 5th edn, London, 1985, chapter 9, and
H. L. A. Hart, The Concept of Law, Oxford, 1961.
9 See e.g. D. Lloyd, Introduction to Jurisprudence, 4th edn, London, 1979, p. 649, and
H. Maine, Ancient Law, London, 1861.
10 See e.g. Dias, Jurisprudence.
11 See e.g. W. Friedmann, The Changing Structure of International Law, New York, 1964,
pp. 121–3. See also I. De Lupis, The Concept of International Law, Aldershot, 1987,
pp. 112–16.
12 E.g. D’Amato, Concept of Custom, p. 12.
13 C. De Visscher, Theory and Reality in Public International Law, 3rd edn, Princeton, 1960,
pp. 161–2.

Each of these approaches contains an element of truth. In amongst huge amount of conflicting
behaviors it is not too obvious to pin down the emergence of one more customary rule; moreover
collecting all required information can be very problematic. It is not always the most appropriate
instrument for regulating complex issues arising in world affairs, but sometimes it serves those
contingencies that arise out of modern life.
As will be seen there are instances in which “instant” customary law may arise without lengthy
gestation periods and which custom, at times, fits nicely within the complicated processes
currently employed in identifying and developing increments to principles under international
law.

More than that, custom also mirrors the characteristics of the decentralized international system.
It is democratic in that new rules can be made by all states but it is not entirely wrong to say that
this process is unequal This law can be changed in such a quick way if the international
community is unhappy about it without any need for holding and successfully completing the
world conference.

It follows from the consensus approach to decision-making with majority able to create new law
binding on all, and as such states’ participation encourages compliance with customary norms.
Because of its imprecision, flexibility will prevail over ambiguity. For example, creation of
concept of EEZ in sea law is used as an illustration of these processes.

Chapter 11 explains this further. Article 38 defines custom as having “evidence of a general
practice accepted as law”. Hence, one could identify two basic elements in constituting a custom.
These are material facts or actual state behavior; and psychological or subjective belief that such
conduct amounts to ‘law’. As referred to by International Court in Libya/Malta case, ‘actual
practice and opinio juris’of states largely constitute substance of customary law’.14

14 ICJ Reports, 1985, pp. 13, 29; 81 ILR, p. 239. See also the Advisory Opinion on the Legality
of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, pp. 226, 253; 110 ILR, p. 163.

Therefore, the element of materiality is minimized to a greater value of opinio juris by them.
Even if only it has been performed once, if states think that an action is legal, then it can be
assumed that they have tacitly consented to the rule in question. Many positivist thinkers along
this line have sought to reduce some of the requirements of overt manifestation such as repetition
and duration for example17

15 M´ethode d’Interpr´etation et Sources en Droit Priv´e Positif, 1899, para. 110.

16 See e.g. R. M¨ullerson, ‘The Interplay of Objective and Subjective Elements in Customary
Law’ in International Law – Theory and Practice (ed. K.Wellens), The Hague, 1998, p. 161.
17 See e.g.D.Anzilotti, Corso diDiritto Internazionale, 3rd edn, 1928, pp. 73–6; K. Strupp, ‘Les
R`egles G´en´erales du Droit International de la Paix’, 47 HR, 1934, p. 263; Tunkin, Theory of
International Law, pp. 113–33, and ‘Remarks on the Juridical Nature of CustomaryNorms
of International Law’, 49 California Law Review, 1961, pp. 419–21, and B. Cheng, ‘United
Nations Resolutions on Outer Space: “Instant” International Customary Law?’, 5 Indian
Journal of International Law, 1965, p. 23.
while others maintain that opinio juris is unverifiable and therefore insignificant. According to
Kelsen, for instance, courts are at liberty to decide whether any set of usages would create a
custom and the subjective perception of a particular state or countries is not called upon to give
concrete judgment on its legality or not18.

The material fact Initial factor taken into account is by the actual practice engaged in by states.
Several matters arise concerning the nature of a specific state practice such as its duration,
uniformity, repetition and generality. With regard to the time element, most countries require
their municipal systems to recognize a specific period within which a particular practice can
qualify as customary rule. This could be “time immemorial” under the English Common law
dating back to 1189 or 30-40 years in some European countries.

International Law does not have a fixed time frame and it will depend on the circumstances of
each case and nature of usage in question. In some areas like air law, space law among others,
these rules rapidly developed while in other cases this process was slow. Therefore longevity is
not the most important aspect of state practice19. So what is at stake when it comes to custom?

The asylum case that was decided by the ICJ in 1950 laid down rule pertaining to continuity and
repetition20. The Court declared that for purposes of being regarded as customary, a rule must be
‘in accordance with a constant and uniform usage practiced by the States in question’21. Haya de
la Torre, a Peruvian national had been sought after his country’s failed insurrection; he took
refuge in Colombia’s embassy located at Lima but Peru would not issue him a passport so that he
may leave the nation. Colombia approached International Court of Justice (ICJ) seeking a
declaration recognizing that it (Colombia) had jurisdiction over the act committed by Torre as
either criminal or political where upon granting him asylum and providing safe conduct would be
possible.

18 ‘Th´eorie du Droit International Coutumier’, 1 Revue International de la Th´eorie du Droit,

1939, pp. 253, 264–6. See also P. Guggenheim, Trait´e de Droit International Public, Paris,

1953, pp. 46–8; T. Gihl, ‘The Legal Character of Sources of International Law’, 1 Scandinavian

Studies in Law, 1957, pp. 53, 84, and Oppenheim’s International Law, pp. 27–31.

19 See D’Amato, Concept of Custom, pp. 56–8, and Akehurst, ‘Customas a Source’, pp. 15–16.
Judge Negulesco in an unfortunate phrase emphasised that custom required immemorial
usage: European Commission of the Danube, PCIJ, Series B, No. 14, 1927, p. 105; 4 AD,
p. 126. See also Brownlie, Principles, p. 7, and the North Sea Continental Shelf cases, ICJ
Reports, 1969, pp. 3, 43; 41 ILR, pp. 29, 72.
20 ICJ Reports, 1950, p. 266; 17 ILR, p. 280.
21 ICJ Reports, 1950, pp. 276–7; 17 ILR, p. 284.
In characterizing customary rule, however, it is important for this court to consider whether one
state (Colombia) can claim right while another (Peru) has an obligation towards that right. The
Asylum case seemed to have state practices that were so inconsistent and contradictory as not to
amount to a ‘constant and uniform usage’ within which the offence in question could unilaterally
qualify.22

The issue before the court was one involving a regional custom affecting only Latin America, it
may be argued that the same need not be followed in case of general custom, and in later case
lower standard of proof would suffice23.

Before a custom can come into existence, some degree of uniformity amongst state practices is
crucial according to ICJ in the Anglo-Norwegian Fisheries case24. The United Kingdom,
opposing Norway’s method of measuring the breadth of its territorial sea argued that there had
been an alleged rule of custom where a straight line drawn from one headland to another across
bays less than ten miles apart is treatable as a baseline for measuring territorial sea. This was
rejected by the Court on account that practice did not conform with any such custom. In other
words, behavioral consistency was lacking.

The North Sea Continental Shelf cases25

The ICJ mentioned that there was a dispute between Germany on one side and Holland and
Denmark concerning the delimitation of the continental shelf. The Court added that state practice
‘including that of states whose interests are specially affected’ had to be both extensive and
virtually uniform in relation to the provision applied. This was said to be essential for
constituting a new rule of customary international law.

However, the Court stated in Nicaragua v. United States case27that this practice did not need to
be “in absolutely rigorous conformity” with the supposed customary rule, as was seen in
Nicaragua versus US Case.

22 Ibid. 23 See further below, p. 92.

24 ICJ Reports, 1951, pp. 116, 131 and 138; 18 ILR, p. 86.
25 ICJ Reports, 1969, p. 3; 41 ILR, p. 29.
26 ICJ Reports, 1969, p. 43; 41 ILR, p. 72. Note that the Court was dealing with the creation
of a custom on the basis of what had been purely a treaty rule. See Akehurst, ‘Custom as a
Source’, p. 21, especially footnote 5. See also the Paquete Habana case, 175 US 677 (1900)
and the Lotus case, PCIJ, Series A, No. 10, 1927, p. 18; 4 AD, p. 153.
27 ICJ Reports, 1986, p. 14; 76 ILR, p. 349.

The court went ahead, According to the court, customary rules can be deduced if states have
generally followed such rules but treated some exceptions as breaches of that rule rather than as
an indication that they were recognizing a new one.
The legality or otherwise of claimed custom would depend on how strongly it is resented, partly
because such ambiguity occurs when the so-called custom cannot be identified with sufficient
clarity; for example, in Asylum where different and conflicting facts have been adduced.

Alternatively, if this were true it would mean that any unfounded assertion by a national
government would pass for legislation and we might as well give up on any hope of an impartial
systematization of international law among nations. If an extreme measure is broadly rejected
then it is unacceptable to rationalize it under established principles. Yet another important factor
is the strength of the previous legal norm which has supposedly been overruled.29

The majority of users don’t know what to do at first but then they start moving in the same
direction and ultimately form a single track. It’s only a short time before that path turns into a
road which is generally accepted as the sole regular way, though it is impossible to determine the
real time of this transition. This is also true for all customs formation processes. De

Visscher expands on this point by illustrating that in just the same way as more weighty feet
leave more perceptible steps than lighter ones, so also the heavier signs of important states of
world mark the way more vigorously and are prone to become its guarantors and protectors.32

28 ICJ Reports, 1986, p. 98; 76 ILR, p. 432.

29 See D’Amato, Concept of Custom, pp. 60–1, and Akehurst, ‘Custom as a Source’, p. 19. See
also Judge Alvarez, the Anglo-Norwegian Fisheries case, ICJ Reports, 1951, pp. 116, 152; 18
ILR, pp. 86, 105, and Judge Loder, the Lotus case, PCIJ, Series A, No. 10, 1927, pp. 18, 34.
30 Cheng, ‘United Nations Resolutions’.
31 See e.g. Nguyen Quoc Dinh et al., Droit International Public, pp. 325–6.

Different reasons can explain why one particular state acts in a certain manner, but they are
closely connected with how it sees its own interests. In turn, it depends on power and position in
international relations authority given to specific states.

Therefore, there must be certain conformity between custom and perceptions held by most states
since conventions are based on usages developed by sovereign entities as vehicles through which
they express their powers as well as fears and hopes. However it should not be forgotten that
some sovereignties are weightier than others, and such actions matter more pertaining to them.
This is reflected in international law such that custom can come from several states provided
these few are closely linked with given subject-matter either because they have much money or
military power or because they occupy an exceptional place in relation to this practice (for
example sea nations and maritime law). Law cannot be separated from politics or force; thus
there exists one proof of this assertion33.

32 De Visscher, Theory and Reality, p. 149. See also Lauterpacht, Development of International
Law, p. 368; P. Cobbett, Leading Cases on International Law, 4th edn, London, 1922, p. 5,
and Akehurst, ‘Custom as a Source’, pp. 22–3.
33 See e.g. the North Sea Continental Shelf cases, ICJ Reports, 1969, pp. 3, 42–3; 41 ILR,
pp. 29, 71–3.

For instance when at its zenith of power during the nineteenth century, The United Kingdom had
much influence over prize law as well as law of the sea. Most laws which later became
customary international laws started out like this. Among other instances include navigation
practices. Likewise, space law has been highly influenced by the Soviet Union (now Russia) and
the United States.34

If a custom is to be binding and enforceable it has to be accepted by the powers that be in that
field at any given time. If the great naval powers do not agree or at least give their consent, a rule
about width of territorial sea cannot have legal force no matter how many landlocked states may
need it.

Other states may just put forward ideas and pressure, but without the agreement of those most
interested it does not constitute customary law. This comes from the nature of international
system where everyone can take part but opinions of more powerful carry more weight.

Hence, for instance, while persistence and wide acceptance are important factors, the primary
issue in creating a new customary rule in any field is which states is the principal actors. It is not
necessary that all customs should apply universally; rather they must match some kind of power
hierarchy. Nevertheless certain degree of continuity should take place depending on a particular
context and usage involved.

These elements represent outward appearances of practice or display its external manifestations
and Make this fact known. This doesn’t imply though that it is the law and this shall be
considered in the subsequent paragraph. However, this does mean that every state willing to
investigate will find it. This factor of obviousness highlights as well, both the context within
which the usage functions and more significant aspects of an overt act which attest to the
existence of a custom.

It is at this point that we start thinking about how much significance is attached to non-action.
How significant is it when a state or particularly a great state fails to participate in a practice?
Can it be said to be silent assent to the performance of the usage? Alternatively, does silence
denote lack of interest thus implying that until such time as a decision one way or another has
been taken the practice cannot become custom? Inaction may also speak louder than action by
governments. They reflect local responses to their external environment.

Britain never attacks France, just like Chad refuses constantly sending people into space.
However, does this mean that Britain observes some rule not to invade its neighbor while Chad
recognizes a tradition against launching rockets towards moon? Of course, “yes” for the first
case and “no” for second case. Therefore, abstention from acting may have resulted from either
legal obligation not to act or inability or unwillingness under particular circumstances. For
instance, it has been argued that continued non-actions in certain situations might eventually
result into a legal rule.^1

34 See e.g. Cheng, ‘United Nations Resolutions’; C. Christol, The Modern International Law
of Outer Space, New York, 1982, and Christol, Space Law: Past, Present and Future, The
Hague, 1991. See further below, chapter 10.

Referring back then to our earlier suggestion that failure over time constitutes negative
customary International Law – i.e., not doing something– consider what one would think if they
reasoned thus: ‘Since there were no laws prohibiting satellites or rockets before 1957 we can
infer by reasoning backwards (Arguendo)that absence of any artificial spacecraft or missiles up
till then must surely constitute evidence for some kind of legal norm banning them- otherwise,
why didn’t anyone do it? ‘However, it is contended that the decision falls short of covering
certain kinds of non-acts based on legal duties while referring to others in which states tacitly
accept the legality and pertinence of such a rule by simply not doing anything contrary to the
specific norm.

However, acquiescence must be based on full knowledge of the relevant rule. Where non-doing
is attached or linked or accompanied with something If there is no knowledge of all the relevant
circumstances, it cannot be taken as acquiescence.

What is state practice?

Some of the essential elements of actions by states have been explored and efforts to put them in
some kind of relevant context made. But what is state practice? Does it include every activity
initiated by a state or does it cover only actual behavior, which is positive? In other words, does
it encompasses such things as speeches, informal documents and governmental statements or is
limited to operational activities by states themselves?

35 See e.g. Tunkin, Theory of International Law, pp. 116–17. But cf. D’Amato, Concept of
Custom, pp. 61–3 and 88–9.
36 PCIJ, Series A, No. 10, 1927, p. 18; 4 AD, p. 153.
The foundation of customary law is how states conduct themselves but evidence for what a state
does can be got from several sources. Examples are obvious; they include administrative acts,
legislation, decisions made by courts and international dealings such as treaty-making.37 Rather
than a living entity that operates through numerous officials, the reality of a state is its
government departments which include officials, and hence all national organs contribute to this
state’s activity. These are its legal officers, legislative institutions, courts, diplomatic agents and
political leaders. Every one of them deals with matters related to international relations and
therefore each of those theoretical materials plus an infinite number more should be examined
for the evidence on the activities of states in question.38.

Reading newspapers, checking historical records and listening to pronouncements made by

government officials, are ways you can learn about countries’ behaviour. There are also memoirs
from various past leaders official manuals dealing with legal issues, diplomatic notes as well as
opinions issued by national lawyers . All these methods are useful tools when trying to establish
real life situations concerning the actions taken by the nation-state. Furthermore,the resolutions
in General Assembly, comments made by governments on drafts produced by International Law
Commission,

Decisions taken by international judicial bodies , decisions taken by domestic courts ,treaties and
general practices adopted within international organizations may be cited in support.39 It
actually has been argued that international organizations can bring about customs’.

37 See e.g. Pellet, ‘Article 38’, p. 751, and Congo v. Belgium, ICJ Reports, 2002, pp. 3, 23–4;
128 ILR, pp. 60, 78–80.
38 See e.g. Yearbook of the ILC, 1950, vol. II, pp. 368–72, and the Interhandel case, ICJ
Reports,
1959, p. 27. Note also Brierly’s comment that not all contentions put forward on behalf
of a state represent that state’s settled or impartial opinion, The Law of Nations, 6th edn,
Oxford, 1963, p. 60. See also Brownlie, Principles, p. 6, and Akehurst, ‘Customas a Source’,
p. 2.
39 The United States has produced an extensive series of publications covering its practice
in international law. See the Digests of International Law produced by Wharton (1887),
Moore (1906) and Whiteman (1963–70). From 1973 to 1980 an annual Digest of US
Practice in International Law has been produced, while three composite volumes covering
the years 1981–8 have appeared. The series resumed with effect from the year 2000. See
also H. A. Smith, Great Britain and the Law of Nations, London, 2 vols., 1932–5; A. D.
McNair, International Law Opinions, Cambridge, 3 vols., 1956; C. Parry, British Digest of
International Law, London, 1965, andE. Lauterpacht, British Practice in International Law,
London, 1963–7. Several yearbooks now produce sections devoted to national practice,
e.g. British Yearbook of International Law and Annuaire Fran¸cais de Droit International.

For example, the Advisory Opinion given by ICJ on the international personality of the United
Nations was partly based on what the UN actually did.40 The International Law Commission has
observed that ‘records of the cumulative practice of international organizations may be regarded
as evidence of customary international law with reference to states’ relations to the
organizations’.41 In addition, the International Court has noted that guidelines and principles
may arise from resolutions passed by General Assembly and Security Council of
UnitedNations.42.
Sometimes customary rules can be derived from a state’s domestic laws.

In an 1871 case decided by the US Supreme Court, Scotia,43 a British vessel had sunk an
American ship while at sea. Since other states had legislated in virtually identical terms, it was
held by this court that British navigational procedures laid down in an Act of Parliament formed
the basis for relevant international custom. Therefore, failure by the American ship to hang out
her lights was a breach. Furthermore, some commentators have suggested that claims not
supported by any physical acts cannot create state practice, because “until it [a state] takes
enforcement action, the claim has little value as a prediction of what the state will do”.44
However, as demonstrated above this is clearly a minority view.45 Claims and conventions
presented by

The practices of various states in different areas have been put forward as evidence for state
practice. That seems to make sense,46 although obviously such claims will carry different
weight according to the circumstances. The proper choice is obvious just because this way, the
process of claims and counterclaims shows how states signal their understanding of international
norms and rules.

40 The Reparation case, ICJ Reports, 1949, p. 174; 16 AD, p. 318. See also the Reservations to
the Genocide Convention case, ICJ Reports, 1951, pp. 15, 25; 18 ILR, p. 364.
41 Yearbook of the ILC, 1950, vol. II, pp. 368–72. See also Akehurst, ‘Custom as a Source’,
p. 12.
42 See the Court’s advisory opinion in the Construction of a Wall case, ICJ Reports, 2004,
pp. 136, 171; 129 ILR, pp. 37, 89–90.
43 14 Wallace 170 (1871). See also the Nottebohm case, ICJ Reports, 1955, pp. 4, 22; 22 ILR,
p. 349, and the Paquete Habana case, 175 US 677 (1900).
44 D’Amato, Concept of Custom, pp. 88 and 50–1. See also Judge Read (dissenting), the Anglo-
Norwegian Fisheries case, ICJ Reports, 1951, pp. 116, 191; 18 ILR, pp. 86, 132.
45 Akehurst, ‘Custom as a Source’, pp. 2–3. See also Thirlway, International Customary Law,
p. 58.
46 E.g. the Asylum case, ICJ Reports, 1950, pp. 266, 277; 17 ILR, p. 280; the Rights of US
Nationals in Morocco case, ICJ Reports, 1952, pp. 176, 200, 209; 19 ILR, p. 255, and the
North Sea Continental Shelf cases, ICJ Reports, 1969, pp. 3, 32–3, 47 and 53; 41 ILR, p. 29.
See also the Fisheries Jurisdiction cases, ICJ Reports, 1974, pp. 3, 47, 56–8, 81–8, 119–20,
135 and 161; 55 ILR, p. 238.
As such, they are similar to deeds done in body. Taken either alone or in relation any specific
incidence, they are what determine whether rules exist or not that govern international law.47 It
has been said that ‘state practice may consist of any action or statement by a state that reveals a
view on customary law’48, which is largely true. However, it must be born in mind that some
types of behavior matter more than others while the significance of state behavior will be
determined by its substance and source.
Opinio juris49

When onefinds out the existence of a habit, it is then essential to analyze how the state itself
perceives its act or position. Is it an amoral move, or is it political or law oriented? This ‘opinio
juris’ which means that a state considers its activity as legally required, transforms this practice
into a custom and makes it one of international legal norms. In other words, countries behave in
a certain fashion because they feel obligated to do so.

This was made clear by the Permanent Court of International Justice in the case of Lotus50. The
issue at hand involved a collision between French ship called Lotus and Turkish ship known as
Boz-Kourt, took place at sea (where international law is applicable). Several persons died
drowned aboard the latter vessel while Turkey claimed negligence by the French watch officer.
When the Lotus reached Istanbul, her captain was arrested on a charge of manslaughter and
whether or not Turkey had jurisdiction to try him became an important issue in the proceedings.
The French argued that there existed such customary rule that where accused were flagged
(France), only states with national jurisdiction over them could prosecute and thus Turkey had no
right to do so for France can alone judge her nationals who committed crime outside her
jurisdictional limits’. To support this claim, France cited instances where states have not
prosecuted offenders under similar situations resulting in tacit consent from which she derived
general practice that forms legal custom.

47 But see Thirlway, International Customary Law, pp. 58–9.

48 Akehurst, ‘Custom as a Source’, p. 10. This would also include omissions and silence by
states: ibid.
49 Ibid., pp. 31–42, and D’Amato, Concept of Custom, pp. 66–72. See also Pellet, ‘Article 38’,
p. 753; Mendelson, ‘Formation’, p. 245; Bos, Methodology, pp. 236 ff.; P. Haggenmacher,
‘Des Deux E´ le´ments du Droit Coutumier dans la Pratique de la Cour Internationale’,
91 Revue G´en´erale de Droit International Public, 1985, p. 5; O. Elias, ‘The Nature of the
Subjective Element in Customary International Law’, 44 ICLQ, 1995, p. 501; I.M. Lobo de
Souza, ‘The Role of State Consent in the Customary Process’, 44 ICLQ, 1995, p. 521, and
B. Cheng, ‘Opinio Juris:AKey Concept in International Law that isMuchMisunderstood’
in International Law in the Post-ColdWarWorld (eds. S. Yee andW. Tieya), London, 2001,
p. 56.
50 PCIJ, Series A, No. 10, 1927, p. 18; 4 AD, p. 153.

The Court rejected this by stating that even if such abstention from criminal trial could indeed be
proved to exist in reality would not amount to becoming customary practice. It held that ‘only if
such abstention were based on their [the states] being conscious of a duty to abstain would it be
possible to speak of an international custom’.51 Therefore, essentialness element remained
completely missing and continued as mere usage.

This approach used also took place during the North Sea Continental Shelf cases52. This was in
the process of demarcating the continental shelf of the North Sea for purposes of oil and gas
exploration by drawing lines across it that divided the whole area into national spheres.
However, West Germany could not agree with either Holland or Denmark on boundary lines and
submitted this dispute to the International Court of Justice.

According to Article 6, Geneva Convention on the Continental Shelf (1958), if agreement could
not be reached and unless there were special circumstances that demanded otherwise, “the
boundary line shall be determined by application of a principle of equidistance from points
where the base line is measured from which breadth of territorial sea is measured.”

51 PCIJ, Series A, No. 10, 1927, p. 28; 4 AD, p. 159.

52 ICJ Reports, 1969, p. 3; 41 ILR, p. 29.

This would mean a series of lines drawn at the point where Germany met Holland on one side
and Denmark on another; and projected outward into the North Sea. Nevertheless, due to
Germany’s concave coastline, these equidistant lines converge thus forming a small triangle
enclosing part of North Sea. The Federal Republic was party to but had yet not ratified Geneva
Convention (1958) hence not bound thereto. The issue therefore was whether

It was made out that the ‘equidistance–special circumstances principle’ had been absorbed into
customary law and was accordingly binding upon Germany.

The Court found this not to be so, stating that the provision in the Geneva Convention did not
reflect an existing custom. The International Law Commission when considering this point in the
draft treaty which formed the basis of discussion at Geneva, hesitated much before proposing
with certain hesitation a principle of equidistance on somewhat experimental basis and as an
emerging rule of customary international law53. The question then turned on whether practice
subsequent to the Convention had created a customary rule. The Court said no and declared that
although time was not for itself a decisive factor (only three years had elapsed before the
proceedings were brought): an indispensable requirement would be that within the period in
question,short though it might be, state practice, including that of states whose interests are
specially affected, should have been both extensive and virtually uniform in sense of provision
invoked thereupon, and should moreover have taken place in such manner as to show common
recognition that there is a rule of positive or negative prescription on hand.54

In Nicaragua55 and express reference was made by the Court to North Sea Continental Shelf
cases.

The Court observed as follows: for a new customary rule to be formed, not only must the acts
concerned ‘amount to a settled practice’, but they must be accompanied by opinio juris sive
necessitatis. One or both categories of states mentioned can act in such way as their behavior
indicates ‘a belief that this practice is required by law.’ A subjective element is implicitly
included in any concept of opinio juris sive necessitatis.’56
Thus it can clearly be seen from this conclusion how high a threshold the court has set with
respect to proofing overtly for subjective component in creating customary laws.

53 ICJ Reports, 1969, pp. 32–41.

54 Ibid., p. 43. See also e.g. the Asylum case, ICJ Reports, 1950, pp. 266, 277; 17 ILR, p. 280,
and the Right of Passage case, ICJ Reports, 1960, pp. 6, 42–3; 31 ILR, pp. 23, 55.
55 ICJ Reports, 1986, p. 14; 76 ILR, p. 349.
56 ICJ Reports, 1986, pp. 108–9; 76 ILR, pp. 442–3, citing ICJ Reports, 1969, p. 44; 41 ILR,
p. 73.
Opinio juris is however fraught with difficulty because if it calls for behavior as prescribed by
law what then is the genesis of new customary rules since that surely means doing something
different or contrary to what is accepted as law until then? If a country argues a belief that three-
mile territorial seas are legal, can the rule be changed in customary law to permit claims say of
twelve miles as well, because this will also not be in accordance with existing laws?57 Clearly if
one takes an unduly narrow view of these psychological aspects, there would be stultification in
the process and this has clearly not occurred.

Therefore, one must approach this matter as a process whereby states act in such manner that
they believe their action is or will become law. It will then depend upon how other states react as
to whether this process of legislation is accepted or rejected. This means inflexible criteria for
legality have to yield to examination as to legitimation

Whether a State can issue a mark of state behavior or not. To that end, a State might proclaim a
territorial sea extending twelve miles rather than the conventional three mile limit, if it believes
that the extent of the situation has changed such that twelve mile may be deemed as law rather
than customà if other countries follow suit, and this new rule becomes binding on allà If other
states do not show support, The appeal dies out and the original ruling holds strengthened by
state practice and general acceptance.

The Court itself noted in Nicaragua case58 that ‘[r]eliance by a State upon an innovative claim or
exceptional exemption from a principle might also contribute to its gradual transformation into
customary international law if through their actions, other States manifest their agreement with
the principle’ The problem with this approach is that often it is difficult to determine when one
rule replaces another but it is inherent in custom. Change usually comes suddenly and not easily.

This means having a more flexible approach to opinio juris by linking it closer to overt
manifestations of custom within national and international behavior. This can be seen as being
related to accepting that there may still be room for an act which, although contrary to law,
contains within itself the seed of new rules as well as providing arguments for difficulties in
proving beyond doubt that certain acts were done ‘in accordance with the law’. The most radical
application of this idea would be inferring or deducing opinio juris from substantive acts. Judge
Tanaka stated in his Dissenting Opinion in North Sea Continental Shelf cases that: However,
states must understand that whenever one country pursues any course of action, it does so
believing it is doing so within international jurisdiction and not purely out of political
considerations or moral commitments.

57 See Akehurst, ‘Custom as a Source’, pp. 32–4 for attempts made to deny or minimise the
need for opinio juris.
58 ICJ Reports, 1986, pp. 14, 109; 76 ILR, pp. 349, 443.

Thus there must always be some element of legality about conduct and therefore, the acting state
will have to certify this in order for the restof mankind to differentiate between legal and non-
legal practices. This is vital in creating and presenting a legal order among states.60

As mentioned above, given the difficulties of proving that opinio juris exists in practice, the
recent trend has been increasingly toward findings based on national conduct within international
organizations. It is no different with regard to the United Nations system. The International Court
of Justice has relied on General Assembly resolutions as proof of existence of opinio juris in a
number of cases when examining their contents and conditions under which they were adopted61
However, what counts is how the states concerned take it, either as parties to a treaty or as
participants in the adoption of a UN resolution.62

59 ICJ Reports, 1969, pp. 3, 176; 41 ILR, pp. 29, 171. Lauterpacht wrote that one should
regard all uniform conduct of governments as evidencing the opinio juris, except where
the conduct in question was not accompanied by such intention: The Development of
International Law, p. 580; but cf. Cheng, ‘Custom: The Future’, p. 36, and Cheng, ‘United
Nations Resolutions’, pp. 530–2.
60 Note D’Amato’s view that to become a custom, a practice has to be preceded or accompanied
by the ‘articulation’ of a rule, which will put states on notice than an action etc.
will have legal implications: Concept of Custom, p. 75. Cf. Akehurst, ‘Custom as a Source’,
pp. 35–6, who also puts forward his view that ‘the practice of states needs to be accompanied
by statements that something is already law before it can become law’: such statements
need not be beliefs as to the truths of the given situation, ibid., p. 37. Akehurst also draws a
distinction between permissive rules, which do not require express statements as to opinio
juris, and duty-imposing rules, which do: ibid., pp. 37–8.
61 See e.g. the Legality of the Threat or Use of Nuclear Weapons case, ICJ Reports, 1996,
pp. 226, 254–5; 110 ILR, p. 163. See also the Western Sahara case, ICJ Reports, 1975,
pp. 31–3; the East Timor case, ICJ Reports, 1995, pp. 90, 102; 105 ILR, p. 226; the Nicaragua
case, ICJ Reports, 1986, pp. 14, 100, 101 and 106; 76 ILR, p. 349; and the Construction of
a Wall case, ICJ Reports, 2004, pp. 136, 171–2; 129 ILR, pp. 37, 89–90.
62 See the Nicaragua case, ICJ Reports, 1986, pp. 14, 99–100.
In addition, the Court has referred to important codification conventions for this purpose63 and
to work conducted by ILCS,64

Protest, acquiescence and change in customary law 65

Consequently, customary law is created when countries do not protest or oppose claims made by
other nations with direct interest in the matter and when Other countries accept this behavior
without demure.66 Alongside related concepts like confession, recognition and estoppel, such
actions or refraining from them, are among important constructs on which legal principles are
based and that apply to states.67

Acquiescence has been described by the ICJ in the Gulf of Maine case as ‘an act equivalent to
tacit recognition revealed by unilateral conduct which the other State may interpret as consent
‘and consistent with principles of good faith and equity.68 Normally, when states are seen
acquiescing69 over certain acts of other states, it can be presumed that such acts are considered
legitimate.70.

63 See e.g. the North Sea Continental Shelf cases, ICJ Reports, 1969, pp. 3, 28–32with regard to
the 1958 Continental Shelf Convention and e.g. among many cases, Cameroon v. Nigeria,
ICJ Reports, 2002, pp. 303, 429–30 with regard to the Vienna Convention on the Law of
Treaties, 1969.
64 See e.g. the Gabˇc´ıkovo–Nagymaros case, ICJ Reports, 1997, pp. 7, 38–42 and 46; 116 ILR,
pp. 1, 47–51 and 55.
65 See H. Lauterpacht, ‘Sovereignty over Submarine Areas’, 27 BYIL, 1950, p. 376;
I.MacGibbon,
‘Some Observations on the Part of Protest in International Law’, 29 BYIL, 1953,
p. 293, andMacGibbon, ‘Customary International Law and Acquiescence’, 33 BYIL, 1957,
p. 115; Wolfke, Custom, pp. 157–65, and I. Sinclair, ‘Estoppel and Acquiescence’ in Fifty
Years of the International Court of Justice (eds. A. V. Lowe and M. Fitzmaurice), Cambridge,
1996, p. 104.
66 See, for a good example, the decision of the InternationalCourt in the El Salvador/Honduras
case, ICJ Reports, 1992, pp. 351, 601; 97 ILR, pp. 266, 517, with regard to the joint
sovereignty over the historic waters of the Gulf of Fonseca beyond the territorial sea
of the three coastal states.
67 See e.g. Sinclair, ‘Estoppel and Acquiescence’, p. 104 and below, chapter 10, p. 515.
68 ICJ Reports, 1984, pp. 246, 305; 71 ILR, p. 74.
69 Note that the Court has stated that ‘the idea of acquiescence . . . presupposes freedom of
will’, Burkina Faso/Mali, ICJ Reports, 1986, pp. 554, 597; 80 ILR, p. 459.
70 See e.g. Grand-Duchy of Luxembourg v. Cie. Luxembourgeoise de T´el´ediffusion, 91 ILR,
pp. 281, 286.
Some authors have argued that acquiescence can amount to consent to a custom rule, whereas
silence implies agreement. In cases where a state or states undertake acts which they consider
lawful, the quietness maintained by other states often represents opinio juris or concurrence with
the new legal norm. Certainly, this necessitates that people assert their oppositions in order to
break its legitimization process.71.

In Lotus case, the Court stated ‘only if such abstention were based on their [the states] being
conscious of having a duty to abstain would it be possible to speak of an international custom’.72
Thus it is not possible for one simply to infer a rule against particular behavior just because
states did not engage in it. On another hand, if a state behaves in such manner and no action is
taken about it, then there is an issue. Consequently, where a new rule within new areas of
international law for example space law comes up then other state’s acquiescence should be
perceived as strengthening the norm either through actual agreement or lack of interest
depending upon all relevant factors. In fact acquiesce by other states concerning a new rule that
departs from existing custom is more problematic.

It might, therefore, appear as though the judgment in the Anglo-Norwegian Fisheries case73
suggests that where an established customary rule has been violated by one state and acquiesced
in by others, than the offending state should not be bound by it as this would undermine the very
principle of estoppel. The Court noted that ‘in any event the . . . rule would appear to be
inapplicable as against Norway inasmuch as she had always opposed any attempt to apply it to
the Norwegian coast’.74 In short, if a country disputes a particular practice at its creation stage as
being customary law, it will not be subject to it, but the issue of some countries dissenting from
accepted customs through their adverbial behavior and acceptance or non-responsiveness of
other nations still remains unresolved.

States have numerous reasons for not protesting. A state might not want to offend unnecessarily
or may decide to build political relations or other diplomatic and political considerations can
come into play. It could also be argued that protesting every action about which there is
disagreement would be unreasonable. It could be unrealistic thus to expect each nation's reaction
for every act committed by another nation. What is more if it were accepted

71 See e.g. MacGibbon, ‘Customary International Law’, p. 131, and H. S. McDougal et al.,
Studies in World Public Order, NewHaven, 1960, pp. 763–72.
72 PCIJ, Series A, No. 10, 1927, p. 28; 4 ILR, p. 159.
73 ICJ Reports, 1951, p. 116; 18 ILR, p. 86.
74 ICJ Reports, 1951, p. 131; 18 ILR, p. 93. See also the North Sea Continental Shelf cases, ICJ
Reports, 1969, pp. 3, 26–7; 41 ILR, pp. 29, 55–6, and the Asylum case, ICJ Reports, 1950,
pp. 266, 277–8; 17 ILR, pp. 280, 285.
In every case, validation of a protest constituted a derogation from an established custom. Then
there would be many special relationships between states that differ from each other based on
acceptance or opposition. Sometimes the act of protesting is simply formal or a part of
diplomatic maneuvering to gain leverage in another area altogether and not intended to change
legal relationships.

Protests by some states would not defeat such rule which has been replaced by other rules
contradicting it and others’ failure to respond justifies this rule more. However, when
acquiescence of other countries enhances constant protestations by one country, it may form an
accepted exception as to the rule, but all this will depend on the circumstances surrounding a
particular situation and attitude of the international community. A behavior contrary to
customary law implies its conversion into new norms provided that the same is adopted by other
nations, thereby ending up with either complete replacement or simultaneous coexistence of both
types of norms till one becomes generally binding75, as was the case for decades in respect with
limits of territorial waters76. It follows from what precedes that customs are binding upon every
state save those which have contested their very inception77. This gives rise to questions
concerning new nations and custom because under traditional reasoning they should be bound by
all existing customs as at the date of independence. The alternative position, based on the
consent theory of law,would leave these states free at this stage toi.e., after independence- to
select what practice they wished to follow regardless of how any or all other countries felt about
them78 . Nevertheless, such approach might be highly disruptive; therefore, quite often there is a
proviso stating that through unconditional relations with other countries new independent entities
show their agreement with world public law taken together79

75 See also protests generally: Akehurst, ‘Custom as a Source’, pp. 38–42.

76 See below, chapter 11, p. 568.
77 See e.g. the North Sea Continental Shelf cases, ICJ Reports, 1969, pp. 3, 38, 130; 41 ILR,
pp. 29, 67, 137, and The Third US Restatement of Foreign Relations Law, St Paul, 1987, vol.
I, pp. 25–6. See also T. Stein, ‘The Approach of the Different Drummer: The Principle of
the Persistent Objector in International Law’, 26 Harvard International Law Journal, 1985,
p. 457, and J. Charney, ‘The Persistent Objector Rule and the Development of Customary
International Law’, 56 BYIL, 1985, p. 1.
78 See e.g. Tunkin, Theory of International Law, p. 129. 79 Ibid.

Regional and Local Custom

It is possible for specific rules to emerge that only apply to a group of states such as those in
Latin America, or even two states. It may be argued that this approach is part of the need for
‘respect for regional legal traditions.’
The International Court of Justice in the Asylum case discussed Colombia’s claim to have
established a regional or local custom peculiar to the Latin American states which could validate
its position concerning the grant of asylum. The Court said that, ‘the party relying on it should
show that this custom had been so developed as to operate in favor of others.’ It found no
evidence supporting this custom due to conflicting and ambiguous evidence.

In such cases where local customs are alleged against a particular obligation undertaken by a
defendant, the standard of proof required can be much higher than when an ordinary or general
custom is relied upon.

Portugal relied on claims over Indian land corridors between Portuguese enclaves during Right
of Passage Over Indian Territory case, and this was upheld by ICJ against India’s objection that
no local custom arises between two states only. The Court held itself satisfied with the existence
in prior times, of an uninterrupted practice allowing free passage; “and,” according to it, “the
practice has become law amongst parties with corresponding rights and obligations.” The Court
added more generally: ” [W]e cannot therefore but attach decisive importance-to practice clearly
established between two States which has been accepted by them as governing their relationship.
Specificity takes precedence over all generalities. In other words, particular practices prevail
against any universal maxims.”

80 SeeAkehurst, ‘Customas a Source’, pp. 29–31; Thirlway, ‘Supplement’, p. 105; Pellet,

‘Article
38’, p. 762; D’Amato, Concept of Custom, chapter 8; G. Cohen-Jonathan, ‘La Coutume
Locale’, AFDI, 1961, p. 133, and Wolfke, Custom, pp. 88–90. Local custom is sometimes
referred to as regional or special custom.
81 See e.g. H. Gros Espiel, ‘La Doctrine du Droit International en Am´erique Latine avant la
Premi`ere Conf´erence Panam´ericaine’, 3 Journal of the History of International Law, 2001,
p. 1.
82 Note the claim by Honduras in the El Salvador/Honduras case, ICJ Reports, 1992, pp. 351,
597; 97 ILR, pp. 266, 513 that a ‘trilateral local custom of the nature of a convention’ could
establish a condominium arrangement.
83 See the Eritrea/Yemen (Maritime Delimitation) case, 119 ILR, pp. 417, 448.
84 ICJ Reports, 1950, p. 266; 17 ILR, p. 280.
85 ICJ Reports, 1950, p. 276; 17 ILR, p. 284. 86 ICJ Reports, 1960, p. 6; 31 ILR, p. 23.
87 ICJ Reports, 1960, p. 40; 31 ILR, p. 53. See Wolfke, Custom, p. 90.

Therefore, such local customs rely on one state accepting them (or other states) as an attribute
showing its legal duty or right towards another state. Thus while under classical customary law
everybody may make laws subject to certain flexibility among subjects thereof so that majority
or at least significant minority among respective participating sovereigns can create new
customary rule; conclusion reached differently for local customs. In this regard local customs
differ from the general nature of customary law which is based on the rules laid down by states
in a more or less flexible manner and reminds us in addition of the older consent theory,
according to which states are bound only by their own acts. Exceptions have to show why they
are better than what they purport to improve upon.

Treaties91

In contrast with customary law making, international conventions are a comparatively modern
and purposeful way of law creation.92 Article 38 mentions “international conventions, whether
general or particular, establishing rules expressly recognized by the contracting states”. We will
discuss treaties in more detail in chapter 16 but in considering other sources of international law,
we need to touch on international conventions.

General acts, charters and statutes are some of the names given to treaties. 93 However, these
terms all refer to much the same thing – written agreements between participating states under
which they bind themselves legally either to act in defined ways or to establish their reciprocal
relations in a particular manner. The contract is thus made up of various stipulations that must be
fulfilled by parties as conditions precedent before certain rights can accrue.94

The binding force of Treaties is founded upon the principle of pacta sunt servanda – an
established norm of customary international law.

There are two kinds: ‘law-making’ treaties having universal or general application, and treaty-
contracts operating only between two or a few states.95 Such an approach is intended to reflect
whether a particular treaty has global applicability or pertains only to specific areas and how
extensive its scope is. While not cast in stone this distinction still leaves much room for
interpretation hence leading to ambiguity.96

They meant that treaties were express contracts which were also used as substitute legislation by
states; although it may have been possible to argue that they bore some analogy with ‘ordinary’
contracts (insofar as they created obligations) nevertheless they possessed certain specific
features associated with the peculiarities of the worldwide community life itself97.More than
ever before governments are intervening and technological advances are transforming every
corner of our globe resulting into more matters requiring some form of inter-state regulation.

For many authors who hold them as higher than custom anyway claiming it is a type of implied
agreement, treaties are considered as major sources of international law.98 The United Nations
Charter, the Geneva Conventions on prisoners and civilian persons’ treatment and the Vienna
Convention on Diplomatic Relations serve as examples of important treaties. There is a wide
range of agreements covering everything from outer space exploration to drug control and the
establishment of global financial and development institutions. The development of international
telephony would not have been possible without various international agreements setting forth
the requisite rules of operation between countries.
Like a contract, an international treaty consists in a number of statements, which are supposed to
impose specific obligations upon the parties. How can conventions be treated as sources of
international law over and above those that bind contracting parties?

88 ICJ Reports, 1960, p. 44. 89 See Cohen-Jonathan, ‘La Coutume Locale’.

90 See generally A.D.McNair, The Lawof Treaties,Oxford, 1961; Pellet, ‘Article 38’, p. 736, and
A. Aust, Modern Treaty Law and Practice, 2nd edn, Cambridge, 2007. See further below,
chapter 16.
91 Oppenheim’s International Law emphasises that ‘not only is custom the original source of
international law, but treaties are a source the validity and modalities of which themselves
derive from custom’, p. 31.
92 See e.g. UKMIL, 70 BYIL, 1999, p. 404.

What I mean by “law-making treaties” is those that are intended to be applicable in general and
not exclusive. They are distinct from other treaties that merely regulate some specific issues
amongst a few states.

This therefore means that when it comes to law making treaties, the states are expressing their
views of the international law on a given subject or establish new rules which should guide them
in their international relations henceforth. These kinds of treaties have to involve many countries
in order to achieve an impact and may create rules which can bind everybody. 96

They are referred to as normative treaties because they define certain principles of action.Some
of these treaties include The Genocide Convention and The Antarctic Treaty. Additionally, there
are various agreements that declare what exists as law or codify existing state customs like
Vienna Convention on Diplomatic Relations (1961).

93 See the Vienna Convention on the Law of Treaties, 1969. Article 2(1)a defines a treaty
for the purposes of the Convention as ‘an international agreement concluded between
states in written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular designation’.
See further below, p. 117 with regard to non-binding international agreements.
94 See Virally, ‘Sources’, p. 126; Sørensen, Les Sources, pp. 58 ff., and Tunkin, Theory of
International Law, pp. 93–5.
95 Tunkin, Theory of International Law, pp. 91–113. See also R. M¨ullerson, ‘Sources of
International
Law: New Tendencies in Soviet Thinking’, 83 AJIL, 1989, pp. 494, 501–9, and
Danilenko, ‘Theory’, p. 9.

Where a particular treaty has not been ratified by a country, such country cannot be bound by its
terms. This principle was exemplified in the North Sea Continental Shelf cases97 where West
Germany had not ratified the pertinent convention and so it was under no duty whatsoever to
follow its prescriptions. However, customary law based on treaty provisions binds non-parties;
this is because these establish or re-establish customary rules. Other non-party states might also
come to accept provisions in particular treaties as capable of establishing customary laws
depending always upon the nature of the agreement, number of participants and other relevant
factors. The International Court of Justice considered whether provisions within atreaty could
form the basis for a rule which would generate customary international law applicable between
all states whether parties’ or not’. It being one of the accepted methods for formation of new
customary international rules was stated as such by ICJ, however it added a proviso: that
provision must be one ‘of an essentially norm-creating character’, 99ableto act as a general law.
This is difficult to define precisely but it is consistent with the idea that treaty provisions can be
‘customized’ so that other states, party or non-party to the treaty in question, satisfy the criteria
for compatible conduct and opinio juris. The possibility exists that certain provisions in a treaty
may, when coupled with the opinio juris, form a basis of creating a binding custom applicable to
all states regardless of whether they were parties to the original treaty.

The ICJ considered this in the North Sea Continental Shelf cases97 and identified it as one
recognized method whereby international customary law can be developed by reference to an
existing provision in an agreement. However, it added that such a provision had to be ‘of a
fundamentally norm creating character’,99i.e., capable of serving as general rule of law. What
exactly constitutes such provision probably varies from time to time rather than place but this
reinforces the assertion that treaty provisions may give rise to customs enabling other states,
whether parties or nonparties, to meet requirements of necessary behavior and opinion juris. It
has been suggested that this may even extend to stipulations in conventional documents which
are generic enough per se provided there is no need show the opinion juris and only short
passage of time is required for their transformation into customary rules ipso facto.100

96 But this may depend upon the attitude of other states. This does not constitute a form
of international legislation: see e.g. Oppenheim’s International Law, p. 32; the Reparation
case, ICJ Reports, 1949, p. 185; 16 AD, p. 318, and the Namibia case, ICJ Reports, 1971,
p. 56; 49 ILR, p. 2. See also Brownlie, Principles, pp. 12–14, and R. Baxter, ‘Treaties and
Custom’, 129 HR, 1970, p. 27. See also O. Schachter, ‘Entangled Treaty and Custom’ in
International Law at a Time of Perplexity (ed. Y. Dinstein), Dordrecht, 1989, p. 717, and
Y. Dinstein, ‘The Interaction Between Customary International Law and Treaties’, 322 HR,
2006, p. 247.
97 ICJ Reports, 1969, pp. 3, 25; 41 ILR, pp. 29, 54.
However, this goes too far because it fails to recognize how important treaties are, especially
those with clauses that create norms could be on human rights. In any case unless dissenting
countries entered into contrary treaties, the danger lies in few nations legislating universally.101
It would therefore be going too far from what is happening today within international
community. It has been established beyond doubt that where there is existence oftreaty rule
relating to an area covered also by customary rule; latter will not necessarily merge with the
former but remain independent thereof. The Court in Nicaragua102 did not accept this argument
as true.

US that the norms of customary international law regarding self-defense had been ‘subsumed’
and ‘supervened’ by article 51 of the United Nations Charter. It was stressed that ‘even if a treaty
norm and a customary norm relevant to the present dispute were to have exactly the same
content, this would not be a reason for the Court to hold that the incorporation of the customary
norm into treaty law must deprive the customary norm of its applicability as distinct from the
treaty norm’.103

The Court concluded that “henceforth it will be apparent that customary international law still
exists and operates independently from international treaties even where such two categories of
laws are identical in their contents”104. Consequently, because of an American reservation,
whereas due to an American reservation, it was incapable of analyzing an operation under any
type of contract.

Of course, two rules with the same content may be subject to different principles with regard to
their interpretation and application; thus the approach of the Court as well as being theoretically
correct is of practical value also. In many cases, such dual source of existence of a rule may well
suggest that the two versions are not in fact identical, as in case with self-defense under
customary law and article 51of Charter, but it will always depend upon special
circumstances .105

98 ICJ Reports, 1969, p. 41; 41 ILR, p. 71. The Court stressed that this method of creating
new customs was not to be lightly regarded as having been attained, ibid.
99 But see the minority opinions, ICJ Reports, 1969, pp. 56, 156–8, 163, 169, 172–80, 197–
200, 221–32 and 241–7; 41 ILR, p. 85. See also the Gulf of Maine case, ICJ Reports, 1984,
pp. 246, 295; 71 ILR, pp. 74, 122, and the Libya/Malta Continental Shelf case, ICJ Reports,
1985, pp. 13, 29–34; 81 ILR, pp. 239, 261–6.
100 See D’Amato, Concept of Custom, p. 104, andD’Amato, ‘The Concept of HumanRights in
International Law’, 82 Columbia Law Review, 1982, pp. 1110, 1129–47. See also Akehurst,
‘Custom as a Source’, pp. 42–52.
101 D’Amato, ‘Concept of Human Rights’, p. 1146.
102 ICJ Reports, 1986, p. 14; 76 ILR, p. 349.

Some agreements aim at establishing a regime which necessarily applies to non-parties too.106
For example, article 2(6)of UN Charter creates a comprehensive international framework for
peacekeeping by stating: “…should ensure compliance by non-UN member states with these
Principles [listed in article 2] when necessary for global peace and security preservation. “This
last sentence might also apply to General Agreement on Tariffs and Trade (GATT) signed
in1947 which codified international trade conduct standards impacting equally on non-party
states and now metamorphosing into WTO.

Treaties can also be described as constitutive in the sense that they create international
institutions and serve as their constitution, delineating their planned authorities and
responsibilities too.

In contrast, treaty contracts are not laws themselves since they involve a few states on a
particular issue, but may provide some evidence of customary rules. For instance, series of
bilateral treaties with similar rulesmay indicate that such rule applies under customary law
although the validity of this statement should be taken with caution due to the very nature of
bilateral treaties which frequently reflect different circumstances.107

103 ICJ Reports, 1986, pp. 94–5; 76 ILR, pp. 428–9. See alsoW. Czaplinski, ‘Sources of
International
Law in the Nicaragua Case’, 38 ICLQ, 1989, p. 151.
104 ICJ Reports, 1986, p. 96; 76 ILR, p. 430. 105 See further below, chapter 20, p. 1131.
106 See further below, chapter 16, p. 928.

General principles of law119

In any system of jurisprudence, circumstances might crop up where, on pondering over a

problem before it, the court suddenly realizes that there is no such rule either in statutes enacted
by Parliament or in judicial precedents. In this case, the judge infers from existing rules through
analogy or directly from general principles guiding the legal system which are called justice,
equity and public policy. There could be even more chances for that to happen in international
law because its development has not met with the needs.120

There are fewer decided cases in international law than in a municipal system and no method of
legislating to provide rules to govern new situations.

The inclusion of ‘the general principles of law recognized by civilized nations’ as a source of law
within article 38 was therefore an attempt to close this gaping international law so as to avoid
cases which are known legally as non liquet.111

107 See further below, p. 686, with regard to extradition treaties and below, p. 837, with regard
to bilateral investment treaties.
108 See e.g. B. Cheng, General Principles of Law as Applied by International Courts and
Tribunals,
London, 1953; A. D. McNair, ‘The General Principles of Law Recognised by
Civilised Nations’, 33 BYIL, 1957, p. 1; H. Lauterpacht, Private Law Sources and Analogies
of International Law, London, 1927; G. Herczegh, General Principles of Law and the
International Legal Order, Budapest, 1969; O. Schachter, International Law in Theory and
Practice, Dordrecht, 1991, pp. 50–5; O. Corten, L’Utilisation du ‘Raisonnable’ par le Juge
International, Brussels, 1997; B. Vitanyi, ‘Les Positions Doctrinales Concernant le Sens
de la Notion de “Principes G´en´eraux de Droit Reconnus par les Nations Civilis´ees” ’, 86
Revue G´en´erale de Droit International Public, 1982, p. 48; H. Waldock, ‘General Course
on Public International Law’, 106 HR, 1962, p. 54; Pellet, ‘Article 38’, p. 764; Thirlway,
‘Supplement’, p. 108; M. Sørensen, ‘Principes de Droit International’, 101 HR, 1960,
p. 16, and V. Degan, ‘General Principles of Law’, 3 Finnish YIL, 1992, p. 1.
109 Note that the International Court has regarded the terms ‘principles’ and ‘rules’ as
essentially
the same within international law: the Gulf of Maine case, ICJ Reports, 1984,
pp. 246, 288–90. Introducing the adjective ‘general’, however, shifts the meaning to a
broader concept.
110 The additional clause relating to recognition by ‘civilised nations’ is regarded today as
redundant: see e.g. Pellet, ‘Article 38’, p. 769.
111 See e.g. J. Stone, Of Law and Nations, London, 1974, chapter 3; H. Lauterpacht, ‘Some
Observations on the Prohibition of Non Liquet and the Completeness of the Legal Order’,
Issues concerning gaps within any given legal order need to be addressed. It must always be
remembered that even though there may not always be a rule on point for every situation arising
under international law’”.122

There is disagreement on what “general principles” stand for amongst scholars.

Some writers see them as Natural Law ideas underlying the structure of IL and serving as
touchstone for determining validity of positive (i.e., man-made) rules.123 Other writers,
especially positivists refer to it as one sub-heading under customary and treaty laws. It does not
have anything new unless it reflects consent between states. Soviet writers like Tunkin preferred
such approach; they viewed “general principles of law” as reiterating basic postulates of
international law already reflected in custom and treaty laws such as the peaceful co-existence
doctrine among others.124 By comparison, most writers who have written about this matter have
maintained that there are indeed general principles as a distinct source of law, but they have also
pointed out their limited scope. This is demonstrated by the decisions of Permanent Court of
International Justice and International Court of Justice.125

Symbolae Verzijl, 1958, p. 196; Pellet, ‘Article 38’, p. 704; H. Thirlway, ‘The Law and
Procedure
of the International Court of Justice’, BYIL, 1988, p. 76, and Thirlway, ‘Supplement’,
p. 44, and P.Weil, ‘The Court Cannot Conclude Definitively . . . ? Non Liquet Revisited’, 36
Columbia Journal of Transnational Law, 1997, p. 109. See also the North Sea Continental
Shelf cases, ICJ Reports, 1969, p. 46; 41 ILR, p. 29, and the Nicaragua case, ICJ Reports,
1986, p. 135; 76 ILR, p. 349.
112 Oppenheim’s International Law, p. 13. See, however, the conclusion of the International
Court that it was unable to state whether there was a rule of international law prohibiting
or permitting the threat or use of nuclear weapons by a state in self-defence where its
very survival was at stake: the Legality of the Threat or Use of Nuclear Weapons case, ICJ
Reports, 1996, pp. 226, 244; 110 ILR, pp. 163, 194. Cf. the Dissenting Opinion of Judge
Higgins, ibid.; 110 ILR, pp. 532 ff. See also Eritrea/Yemen (First Phase), 114 ILR, pp. 1,
119 and 121–2.
113 See e.g. Lauterpacht, Private Law Sources. See alsoWaldock, ‘General Course’, p. 54; C.
W.
Jenks, TheCommonLawofMankind, London, 1958, p. 169, andJudgeTanaka (dissenting),
South-West Africa case, (Second Phase), ICJ Reports, 1966, pp. 6, 294–9; 37 ILR, pp. 243,
455–9.
114 Tunkin, Theory of International Law, chapter 7.
115 See Brownlie, Principles, p. 16 , and Virally, ‘Sources’, pp. 144–8.
But sometimes it is not clear what type of principle we are talking about i.e. general principle of
law used in municipal systems or general principle of International law. However this may not be
such a big problem since both legal concepts under municipal laws and those derived from
existing international practice can be classified as belonging to the same group.128 The fact that
there are over 190 legal systems doesn’t mean that all judges have to master every one of them;
there are some common trends among many legal orders which endure. For example, Anglo-
American common law has influenced the development of several countries globally just as
French and Germanic legal traditions have impacted on others across the world. On the other
hand, most Afro-Asian states have sought inspiration from European experiences so as to
modernize their administrative frameworks in this field, while Latin-American laws share much
in common with each other.”

The 116th state and westernize economic and other enterprises.

Some of the leading cases in this field to illustrate how this problem has been addressed will now
be referred to.

In the case Chorz´ow Factory in 1928,117 following Poland’s seizure of a nitrate factory in
Upper Silesia, the Permanent Court of International Justice ruled that ‘it is a general conception
of law that every violation of an engagement involves an obligation to make reparation’. The
court also viewed it as: a principle of international law that the reparation of a wrong may consist
in an indemnity corresponding to the damage which the nationals of the injured state have
suffered as a result of the act which is contrary to international law.

But it is from municipal analogies applied to procedure, evidence and processes within the courts
where such legal transplanting has found its most fertile ground. In the German Settlers in
Poland case,118 however, approaching it negatively,119 declared that ‘private rights acquired
under existing law do not cease on a change of sovereignty . . .
116 See generally, R. David and J. Brierley, Major Legal Systems in the World Today, 2nd
edn, London, 1978. Note that the Tribunal in AMCO v. Republic of Indonesia stated
that while a practice or legal provisions common to a number of nations would be an
important source of international law, the French concepts of administrative unilateral
acts or administrative contracts were not such practices or legal provisions: 89 ILR,
pp. 366, 461.
117 PCIJ, Series A, No. 17, 1928, p. 29; 4 AD, p. 258. See also the Chile–United States
Commission decision with regard to the deaths of Letelier and Moffitt: 31 ILM, 1982,
pp. 1, 9; 88 ILR, p. 727.
118 PCIJ, Series B, No. 6, p. 36.
119 See also the South-West Africa cases, ICJ Reports, 1966, pp. 3, 47; 37 ILR, pp. 243, 280–1,
for a statement that the notion of actio popularis was not part of international law as such
nor able to be regarded as imported by the concept of general principles of law.

It can hardly be maintained that although the law survived private rights acquired under it
perished. Such suggestion is based on no principle and would offend almost universal opinion
and practice.’120 The International Court of Justice in Corfu Channel referred to circumstantial
evidence when they stated ‘this indirect evidence is admitted all systems of law and its use is
recognized by international decisions’. International judicial reference has also been made to res
judicata meaning that whatever decision prevails will not be overturned or subject to appeal.122

The Administrative Tribunal case123 was about whether or not General Assembly had authority
over decisions concerning awards issued by United Nations secretariat staff dismissal orders.
This was answered in negative terms by reminding them that: according to a well-established and
generally recognised principle of law, a Judgment rendered by such a judicial body is res judicata
and has binding force between the parties to the dispute.124

In Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro)125 res judicata
was dealt with in some detail and centered on the meaning of the Court’s 1996 decision rejecting
preliminary objections to jurisdiction.126

120 See also the Certain German Interests in Polish Upper Silesia case, PCIJ, Series A, No. 7,
p. 42, and the Free Zones of Upper Savoy and the District of Gex case, PCIJ, Series A/B, No.
46, p. 167.
121 ICJ Reports, 1949, pp. 4, 18; 16 AD, pp. 155, 157.
122 The Corfu Channel case, ICJ Reports, 1949, p. 248.
123 ICJ Reports, 1954, p. 47; 21 ILR, p. 310.
124 ICJ Reports, 1954, p. 53; 21 ILR, p. 314, and the Laguna del Desierto (Argentina/Chile)
case, 113 ILR, pp. 1, 43, where it was stated that ‘A judgment having the authority of res
judicata is judicially binding on the Parties to the dispute. This is a fundamental principle
of the law of nations repeatedly invoked in the jurisprudence, which regards the authority
of res judicata as a universal and absolute principle of international law.’ See also AMCO
v. Republic of Indonesia, 89 ILR, pp. 366, 558; Cheng, General Principles, chapter 17; S.
Rosenne, The Law and Practice of the International Court, 1920–2005, 4th edn, Leiden,
2006, pp. 1598 ff.; M. Shahabuddeen, Precedent in the International Court, Cambridge,
1996, pp. 30 and 168, and I. Scobbie, ‘Res Judicata, Precedent and the International Court’,
20 Australian YIL, 2000, p. 299.
125 ICJ Reports, 2007, para. 113. 126 ICJ Reports, 1996, p. 595; 115 ILR, p. 110.
The principle, however, ‘signifies that the decisions of the Court are not only binding on the
parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues
that have been determined, save by procedures, of an exceptional nature, specially laid down for
that purpose.’127 Two purposes underpinned this doctrine: one general and another specific. The
first one referred to international stability requirement of legal relations.

The agreements must be kept. The second point was that each party had an interest in not raising
again the same issue which had already been decided in its favor. It was stressed that preventing
someone who had won a judgment from enjoying it would normally constitute a violation of
some of the most basic principles upon which settlement of disputes by law is run.

The Court recognized that this principle applied to judgments on both jurisdictional objections
and merits and since jurisdiction has been ascertained through the 1996 decision, it is not open to
a party claiming the 1991 judgment, which at that time he himself claimed not being capable for
it because one of the parties could thus be held to have prevented her participation in it.131 This
would amount to challenging whether or not an operative part of a judgment is res judicata.128
Moreover, during preliminary objections hearing on Right of Passage case129, the court stated: it
is a well-established rule of law as well as one acted upon by this Court in the past [i.e., prior to
1976] that once a dispute has been properly submitted to it, unilateral action by the respondent
State terminating its Declaration [that is accepting jurisdiction of the Court], whole or partial,
cannot divest the Court of jurisdiction.

The notion of estoppel was also considered by the ICJ under which if parties have consented they
cannot go back on their words; International Court of Justice did apply such doctrine in Temple
case130 but declared that principle unworkable at least when French bondholders insisted on
getting paid in gold francs rather than paper money when repaying Serbian loans as happened
with Serbian Loans case131, 1929.

127 Ibid., at para. 115. 128 Ibid., at paras. 116–23.

129 ICJ Reports, 1957, pp. 125, 141–2; 24 ILR, pp. 840, 842–3.

130 ICJ Reports, 1962, pp. 6, 23, 31 and 32; 33 ILR, pp. 48, 62, 69–70.

131 PCIJ, Series A, No. 20; 5 AD, p. 466.

132 ICJ Reports, 1989, pp. 15, 44; 84 ILR, pp. 311, 350.

There was however certain confines within which estoppels may be inferred, as indicated by The
International Court in ELSI133 where it said: ‘although an estoppel might result from silence
when something should have been spoken, one cannot easily construct an estoppel from non-
disclosure of a fact during some rather desultory diplomatic exchanges at a certain point. The
meaning of estoppel was confirmed in Cameroon v. Nigeria,134 where the Court emphasised
that ‘An estoppel would only arise if by its acts or declarations Cameroon had consistently made
it fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral
avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had
changed position to its own detriment or had suffered some prejudice.’

The general principle was also illustrated in the case between Amoco and Republic of
Indonesia,”36 where the Tribunal said ‘the full compensation for loss, consisting of payment of
damnum emergens and lucrum cessans, is a common principle of the main systems of municipal
law;’ this is therefore seen as a general international law rule. Another example is respect for
acquired rights.136 another important principle in international law generally is pacta sunt
servanda or The law of treaties rests inexorably on this principle since the whole concept of
binding international agreements can only rest upon the assumption that many people regard
those instruments as having such qualities.137

Arguably the most important general principle supporting many international legal rules, is that
of good faith.138

133 See also the Eastern Greenland case, PCIJ, Series A/B, No. 53, pp. 52 ff.; 6 AD, pp. 95,
100–2; the decision of the Eritrea/Ethiopia Boundary Commission of 13 April 2002, 130
ILR, pp. 1, 35–6; and the Saiga (No. 2) case, 120 ILR, pp. 143, 230; Brownlie, Principles,
p. 615, and H. Thirlway, ‘The Law and Procedure of the International Court of Justice,
1960–89 (Part One)’, 60 BYIL, 1989, pp. 4, 29. See also below, chapter 10, p. 515.
134 ICJ Reports, 1998, pp. 275, 303. 135 89 ILR, pp. 366, 504.
136 See, for example, the German Interests in Polish Upper Silesia case, PCIJ, Series A, No. 7,
1926, p. 22; Starrett Housing Corporation v. Iran 85 ILR p. 34; the Shufeld claim, 5 AD,
p. 179, and AMCO v. Republic of Indonesia 89 ILR, pp. 366, 496. See further below, p. 830.
137 See Brownlie, Principles, pp. 591–2, andMcNair, Law of Treaties, vol. I, chapter 30. See
also
article 26 of the Vienna Convention on the Law of Treaties, 1969, and AMCO v. Republic
of Indonesia 89 ILR, pp. 366, 495–7.
138 Oppenheim’s International Law notes that this is ‘of overriding importance’, p. 38. See
E. Zoller, Bonne Foi en Droit International Public, Paris, 1977; R. Kolb, La Bonne Foie en
Droit International Public, Paris, 2000; Thirlway, ‘LawandProcedureof the ICJ (PartOne)’
pp. 3, 7 ff., and Thirlway, ‘Supplement’, p. 7; and G. Fitzmaurice, The Law and Procedure
of the International Court of Justice, Cambridge, 1986, vol. I, p. 183 and vol. II, p. 609.
This provision is stated in article 2(2) of the United Nations Charter which says “all Members, in
order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in
good faith the obligations assumed by them in accordance with the present Charter,” also it was
developed in declaration on principles of International Law concerning Friendly Relations and
cooperation among States adopted by General Assembly resolution 2625 (XXV), 1970 referred
to obligations upon states to fulfill their obligations under customary international law including
treaty commitments in good faith. Therefore it forms an integral part of the general rule of
international law.139

According to ICJ decision on Nuclear Test cases140:

One of the underlying principles controlling creation and execution of legal obligations from any
source is based on good faith.

In practice, confidence and belief always exist when looking at global cooperation especially
during times when such cooperation has become vital across many areas where even if not
adhered to it leads dangerous implications for instance pacta sunt servanda underlying any
binding force embodied within unilateral obligation made before international law.

However, Good Faith as a concept does not create an obligation where one did not exist141.’’

Thus, good faith acts as a backdrop against which existing rules are observed and through which
they may be legitimately exercised142. The guiding factor here is that principle like these are
only related to fulfillment of existing duties143.Additionally another important principle ex
injuria jus non oritur posit facts flowing from wrongful conduct cannot determine what is
correct147.

139 See also Case T-115/94, Opel Austria Gmbh v. Republic of Austria, 22 January 1997.
140 ICJ Reports, 1974, pp. 253, 267; 57 ILR, pp. 398, 412.
141 The Border and Transborder Armed Actions case (Nicaragua v. Honduras), ICJ Reports,
1988, p. 105; 84 ILR, p. 218. See also Judge Ajibolo’s Separate Opinion in the Libya/Chad
case, ICJ Reports, 1994, pp. 6, 71–4; 100 ILR, pp. 1, 69–72, and the statement by the
Inter-American Court of Human Rights in the Re-introduction of the Death Penalty in
Peru case, 16 Human Rights Law Journal, 1995, pp. 9, 13.
142 See also the Fisheries Jurisdiction cases, ICJ Reports, 1974, pp. 3, 33; 55 ILR, pp. 238, 268;
the North Sea Continental Shelf cases, ICJ Reports, 1969, pp. 3, 46–7; 41 ILR, pp. 29, 76; the
Lac Lannoux case, 24 ILR, p. 119, and the Legality of the Threat or Use of NuclearWeapons
case, ICJ Reports, 1996, pp. 264 ff.; 110 ILR, pp. 163, 214–15. Note also Principles 19 and
27 of the Rio Declaration on Environment and Development, 1992, 31 ILM, 1992, p. 876.
143 Cameroon v. Nigeria, ICJ Reports, 1998, pp. 275, 304.
Therefore it follows that it will be for the Court itself to decide which rules in particular case
should apply depending on the circumstances and taking into account that customary and treaty
law could not provide the desired answer. In this regard one needs to examine the Barcelona
Traction146 case between Belgium and Spain.

The International Court of Justice heavily relied on limited liability Company in municipal law
concept while emphasizing that if it were to decide this case without considering relevant
institutions of municipal law it would be inviting serious legal difficulties without any reason.
The court would be losing its grip on reality for there are no corresponding institutions to which
it may resort

However, international law does not refer to specific state legislation but to such rules as are
generally accepted by national legal systems, which in this case recognize the institution of a
limited company.

Among other things, there are appeals to country’s internal legal systems whose aims are to
strengthen international law. In some instances, the case-laws seem to have some references to
equity as bundles of principles that form the underlying values of a system. Judge Hudson’s most
famous decision in this regard was when he adjudicated over Diversion of water from Meuse
Case involving Holland and Belgium in 1937. A fact that has been pointed out by Hudson is that
even though regarded as principles of Equity for long time, courts have always considered them
as part of International Law. ‘The Court can consider principles of equity…’

144 See e.g. the Gabˇc´ıkovo–Nagymaros Project case, ICJ Reports, 1997, pp. 7, 76; 116 ILR,
p. 1, and the Brcko case, 36 ILM, 1997, pp. 396, 422.
145 ICJ Reports, 1970, p. 3; 46 ILR, p. 178.
146 ICJ Reports, 1970, p. 37; 46 ILR, p. 211. See also generally the Abu Dhabi arbitration, 1
ICLQ, 1952, p. 247; 18 ILR, p. 44, and Texaco v. Libya 53 ILR, p. 389.
147 See M. Akehurst, ‘Equity and General Principles of Law’, 25 ICLQ, 1976, p. 801; B. Cheng,
‘Justice and Equity in International Law’, 8 Current Legal Problems, 1955, p. 185; V. Degan,
L’Equit´e et le Droit International, Paris, 1970; C. de Visscher, De l’Equit´e dans le R´eglement
Arbitral ou Judiciaire des Litiges de Droit International Public, Paris, 1972; E. Lauterpacht,
‘Equity, Evasion, Equivocation and Evolution in International Law’, Proceedings of the
AmericanBranch of the ILA, 1977–8, p. 33, andE. Lauterpacht, Aspects of theAdministration
of International Justice,Cambridge, 1991, pp. 117–52; R. Y. Jennings, ‘EquityandEquitable
Principles’, Annuaire Suisse de Droit International, 1986, p. 38; Oppenheim’s International
Law, p. 43; R. Higgins, Problems and Process, Oxford, 1994, chapter 13; M. Miyoshi,
Considerations of Equity in the Settlement of Territorial and BoundaryDisputes, TheHague,
1993; S. Rosenne, ‘Equitable Principles and the Compulsory Jurisdiction of International
Tribunals’, Festschrift f¨ur Rudolf Bindschedler, Berne, 1980, p. 410, and Rosenne, ‘The
Position of the InternationalCourt of Justice on the Foundations of the Principle of Equity
in International Law’ in Forty Years International Court of Justice: Jurisdiction, Equality and
Equity (eds. A. Bloed andP.VanDijk),Dordrecht, 1988,p. 108;Pirotte, ‘LaNotiond’E´ quite´
dans la Jurisprudence R´ecente de la CIJ’, 77 Revue G´en´erale de Droit International Public,
1973, p. 131; Chattopadhyay, ‘Equity in International Law: Its Growth and Development’,

Hudson explained, ‘by application of article 38 or independently.’ However, one must be very
cautious in interpreting this, although on the broadest level it is possible to see equity (on an
analogy with domestic law) as constituting a creative charge in legal development, producing the
dynamic changes in the system rendered inflexible by the strict application of rules. The concept
referred herein refers to fairness and justice. The tribunal agreed that such concepts formed parts
of international law and could therefore be relied upon by parties in their presentations.153

5 Georgia Journal of International and Comparative Law, 1975, p. 381; R. Lapidoth, ‘Equity
in International Law’, 22 Israel Law Review, 1987, p. 161; Schachter, International Law,
p. 49; A. V. Lowe, ‘The Role of Equity in International Law’, 12 Australian YIL, 1992, p. 54;
P. Weil, ‘L’E´ quite´ dans la Jurisprudence de la Cour International de Justice’ in Lowe and
Fitzmaurice, FiftyYears of the InternationalCourt of Justice, p. 121;Pellet, ‘Article38’, p. 723;
Thirlway, ‘Law and Procedure of the ICJ (Part One)’, p. 49, and Thirlway, ‘Supplement’,
p. 26. Note especially JudgeWeeramantry’s study of equity in the JanMayen (Denmark v.
Norway) case, ICJ Reports, 1993, pp. 38, 211; 99 ILR, pp. 395, 579.
148 Equity generally may be understood in the contexts of adapting law to particular areas or
choosing between several different interpretations of the law (equity infra legem), filling
gaps in the law (equity praetor legem) and as a reason for not applying unjust laws (equity
contra legem): see Akehurst, ‘Equity’, and Judge Weeramantry, the Jan Mayen case, ICJ
Reports, 1993, pp. 38, 226–34; 99 ILR, pp. 395, 594–602. See also below, chapter 17, for
the extensive use of equity in the context of state succession.
149 PCIJ, Series A/B, No. 70, pp. 73, 77; 8 AD, pp. 444, 450.
150 See e.g. JudgeWeeramantry, the JanMayen (Denmark v. Norway) case, ICJ Reports, 1993,
pp. 38, 217; 99 ILR, pp. 395, 585. Cf. Judge Schwebel’s Separate Opinion, ICJ Reports,
1993, p. 118; 99 ILR, p. 486.
151 Note that the International Court in the Tunisia /Libya Continental Shelf case, ICJ Reports,
1982, pp. 18, 60; 67 ILR, pp. 4, 53, declared that ‘equity as a legal concept is a direct
emanation of the idea of justice’.However, see G. Abi-Saab’s reference to the International
Court’s ‘flight into equity’ in ‘The ICJ as a World Court’ in Lowe and Fitzmaurice, Fifty
Years of the International Court of Justice, pp. 3, 11.
152 50 ILR, p. 2.
153 Ibid., p. 18. In deciding the course of the boundary in two deep inlets, the Tribunal had
recourse to the concept of equity: ibid., p. 520.

The North Sea Continental Shelf cases saw the International Court direct a final delimitation
between West Germany, Holland and Denmark which was “in accordance with equitable
principles”154 whilst considering equity relevantly regarding Barcelona Traction
case155.Tanaka J., however, approaches it more widely in his dissenting opinion relating to
phase II South-West Africa Cases156 where he views it generally as a source of human rights
ideas.157

However,the role that matters here should not be confused with their use as equitable methods
within certain frameworks entailing such considerations.

In these cases relevant courts do not apply universal justice but derive equitable principles and
solutions outofthe norms applicable thereto159.

ICJ held “…‘justice’ applies only to positive law; it states nothing whatever about abstract
morality or the natural law…” The Court held in the Libya/Malta case160

154 ICJ Reports, 1969, pp. 3, 53; 41 ILR, pp. 29, 83. Equity was used in the case in order
to exclude the use of the equidistance method in the particular circumstances: ibid.,
pp. 48–50; 41 ILR, pp. 78–80.
155 ICJ Reports, 1970, p. 3; 46 ILR, p. 178. See also the Burkina Faso v. Mali case, ICJ
Reports,
1986, pp. 554, 631–3; 80 ILR, pp. 459, 532–5.
156 ICJ Reports, 1966, pp. 6, 294–9; 37 ILR, pp. 243, 455–9. See also the Corfu Channel case,
ICJ Reports, 1949, pp. 4, 22; 16 AD, p. 155.
157 See also AMCO v. Republic of Indonesia 89 ILR, pp. 366, 522–3.
158 The International Court of Justice may under article 38(2) of its Statute decide a case
ex aequo et bono if the parties agree, but it has never done so: see e.g. Pellet, ‘Article 38’,
p. 730.
159 See the North Sea Continental Shelf cases, ICJ Reports, 1969, pp. 3, 47; 41 ILR, pp. 29, 76,
and the Fisheries Jurisdiction cases, ICJ Reports, 1974, pp. 3, 33; 55 ILR, pp. 238, 268. The
Court reaffirmed in the Libya/Malta case, ICJ Reports, 1985, pp. 13, 40; 81 ILR, pp. 238,
272, ‘the principle that there can be no question of distributive justice’.
160 ICJ Reports, 1985, pp. 13, 39; 81 ILR, pp. 238, 271.
161 See the North Sea Continental Shelf cases, ICJ Reports, 1969, pp. 3, 49–50; 41 ILR,
pp. 29, 78–80, and the Anglo-French Continental Shelf case, Cmnd 7438, 1978, pp. 116–17;
54 ILR, pp. 6, 123–4. See also the Tunisia/Libya Continental Shelf case, ICJ Reports, 1982,
pp. 18, 60; 67 ILR, pp. 4, 53, and the Gulf of Maine case, ICJ Reports, 1984, pp. 246, 313–14
and 325–30; 71 ILR, pp. 74, 140–1 and 152–7.
162 ICJ Reports, 1982, pp. 18, 60; 67 ILR, pp. 4, 53.

that ‘the justice of which equity is an emanation, is not an abstract justice but justice according to
the rule of law; which is to say that its application should display consistency and a degree of
predictability; even though it also looks beyond it to principles of more general application’.
Since at most the courts have used equity only for remedying particular injustices, rather than
eliminating legal rules.161 Its existence as a distinct and autonomous origin of legal systems has
vigorously been contested. The ICJ in Tunisia/Libya Continental Shelf case162 had
acknowledged this by stating: “…It would have recognized that respect for equity demands
balancing up interests and needs…”While there may be no fixed criteria for weighing each
factor, this cannot be described as an exercise of discretion or compromise nor can it be
characterized as distributive justice applied.163

However, in the 1982 Law of the Sea Convention these principles have been particularly
emphasized. For instance, article 59 provides that ‘Conflicts between coastal and other states
regarding the exclusive economic zone shall be resolved on the basis of equity’. Moreover, under
article 74 delimitation of the zones between states with opposite or adjacent coasts are to be
agreed upon through international law so as to achieve an equitable solution. A similar provision
applies by article 83 to continental shelves.164 These provisions are flexible, a good thing but
somewhat uncertain. Precisely how any particular dispute may be resolved, and the way in which
that is likely to happen and the principles to be used are far from clear and an element of
unpredictability may have been introduced.165 The Convention on the Law of Non-Navigational
Uses of International Watercourses also attaches great importance to equity (1997). For instance,
article 5 provides that watercourse states shall utilize an international watercourse in an equitable
and reasonable manner both in their own territories and in participating generally in the use,
development and protection of such waters.

In addition to this, equitable bases can also be employed when it comes to non-maritime
boundaries’ demarcation. Where there is no evidence regarding where a boundary line lies, a
court can apply justice. 163 See generally R. Y. Jennings, ‘The Principles GoverningMarine
Boundaries’ in Festschrift

f¨ur Karl Doehring, Berlin, 1989, p. 408, and M. Bedjaoui, ‘L“´enigme” des “principes
´equitables” dans le Droit des D´elimitations Maritimes’, Revista Espa˜nol de Derecho
Internacional,
1990, p. 376.
164 See also article 140 providing for the equitable sharing of financial and other benefits
derived from activities in the deep sea-bed area.
165 However, see Cameroon v. Nigeria, ICJ Reports, 2002, pp. 303, 443, where the Court
declared that its jurisprudence showed that in maritime delimitation disputes, ‘equity is
not a method of delimitation, but solely an aim that should be borne in mind in effecting
the delimitation’. See further below, chapter 11, p. 590.
166 Based on the Draft Articles of the International Law Commission: see the Report of the
International Law Commission on the Work of its Forty-Sixth Session, A/49/10, 1994,
pp. 197, 218 ff.
167 ICJ Reports, 1986, pp. 554, 633; 80 ILR, pp. 459, 535.
A case in point is Burkina Faso/RepublicofMali167 where it was pointed out by the Court as
regards Soum pool that ‘it must recognize that Soum is a frontier pool; and
thatinthelackofanyexactindicationinthetextsofthepositionoffrontierline, trough should be
equitably divide the Soumpool.’This would involve slicing up the pool into two equal halves.
Notwithstanding, the principle of" equity does not always mean equality", the
latterusuallyexpressesbestwhenequitablecircumstancesarenotpresented169TheCourtunderlined
that it doesn’t make sense to use equity for the purpose of changing a previously established
borderline.169

While community value-judgments in general terms, which may be labeled as generality

principles or concepts, form and run through political and thereby legal orders in the widest
meaning they cannot by themselves constitute legally binding norms in this respect. This can
only happen if such principles have been considered as legal rules by the global society using
mechanisms as well as techniques of international law making. However, ‘elementary principles
of humanity’ may underlie such rules and support their institutionalization more broadly, hence
may play a useful role in conferring additional weight on them within the system. For example,
the International Court emphasized in its Advisory Opinion on the Legality of Threat or Use of
Nuclear Weapons170 that at the core of all rules and principles relating to IHL is ‘the supreme
consideration of humanity.’

The importance of judicial decisions can hardly be overestimated, even if they are only to be
seen as “subsidiary means” for the ascertainment of rules of law, as article 38 puts it,

168 Ibid.
169 Ibid. See also the El Salvador/Honduras case, ICJ Reports, 1992, pp. 351, 514–15, and the
Brcko case, 36 ILM, 1997, pp. 396, 427 ff.However, note that in the latter case, the Arbitral
Tribunal was expressly authorised to apply ‘relevant legal and equitable principles’: see
article V of Annex 2 of the Dayton Accords, 1995, ibid., p. 400. See also J. M. Sorel,
‘L’Arbitrage sur la Zona de Brcko Tragi-come´die en Trois Actes et un E´ pilogue a` Suivre’,
AFDI, 1997, p. 253.
170 ICJ Reports, 1996, pp. 226, 257, 262–3; 110 ILR, pp. 163, 207, 212–13. See also the Corfu
Channel case, ICJ Reports, 1949, pp. 4, 22; 16 AD, p. 155. See further below, chapter 21,
p. 1187.
171 See e.g. Lauterpacht, Development of International Law; Waldock, ‘General Course’, and
Schwarzenberger, International Law, pp. 30 ff. See also Thirlway, ‘Law and Procedure
of the ICJ (Part Two)’, pp. 3, 127, and Thirlway, ‘Supplement’, p. 114; Pellet, ‘Article 38’,
p. 784, and P.Cahier, ‘Le Roˆ le du Juge dans l’E´ laboration duDroit International’ in Theory
of International Law at the Threshold of the 21st Century (ed. J. Makerczyk), The Hague,
1996, p. 353.
rather than a genuine source. Although the Court’s decisions do not bind anyone other than the
parties involved in a particular dispute and the case at hand under article 59 of the Statute of ICJ,
this jurisprudence is aimed to avoid unpredictability by maintaining consistency with its previous
judgments because although doctrine of precedent known in common law where other courts
have to follow decisions made by certain courts does not exist in international law states in
disputes and textbook writers rely heavily on judgments passed by Permanent Court and
International Court of Justice as authoritative pronouncements.

The International Court normally looks back at what it has said before and will try to decide
which ones should not apply to solve any problem being studied.172 But just like English judges
who through interpretation create laws, International Court justices sometimes go beyond mere
determination. A case that has become famous due to this is Anglo-Norwegian Fisheries173 with
its tests for recognizing baselines from which territorial sea was measured later included into
1958 Geneva Convention on Territorial Sea and Contiguous Zone.

Other features include Reparation174 which acknowledged legal personality of international

organizations in particular cases; Genocide175 about reservations to treaties; Nottebohm176
which dealt with nationality; and several maritime delimitation problems177.

Still, it does not mean that such ruling will always find their place in further debates or
formulation of the law. An example hereof is a part of the judgment rendered in Lotus178 that
was criticized and then abandoned within Geneva Conventions on Law Of The Sea. But these
instances are relatively rare compared to case practice whereby ICJ generally scrutinizes its own
relevant caselaw closely yet it departs so infrequently therefrom179.

172 See further Shahabuddeen, Precedent.

173 ICJ Reports, 1951, p. 116; 18 ILR, p. 86. See further below, chapter 11, p. 558.
174 ICJ Reports, 1949, p. 174; 16 AD, p. 318. See further below, chapter 23, p. 1296.
175 ICJ Reports, 1951, p. 15; 18 ILR, p. 364. 176 ICJ Reports, 1955, p. 4; 22 ILR, p. 349.
177 See e.g. Thirlway, ‘Supplement’, p. 116, and see below, chapter 11, p. 590.
178 PCIJ, Series A, No. 10, 1927, p. 18; 4 AD, p. 5. See below, p. 618.
179 See e.g. Qatar v. Bahrain, ICJ Reports, 2001, pp. 40, 93; Liechtenstein v. Germany, ICJ
Reports, 2005, p. 6 and the Construction of a Wall advisory opinion, ICJ Reports, 2004,
pp. 135, 154–6; 129 ILR, pp. 37, 71–4.

At least it will be a point of departure to analyze, for instance, in Cameroon v. Nigeria case, the
Court observed that ‘the real question is whether, in this case, there is cause not to follow the
reasoning and conclusion of earlier cases’.180

The term “judicial decisions” also encompasses international arbitral awards and national court
judgments apart from the Permanent Court and International
Court of Justice. There have been numerous international arbitral tribunals created such as by the
Hague Conferences of 1899 and 1907, including Permanent Court of Arbitration; some mixed-
claims tribunals such as Iran–US Claims Tribunal; even though they differ from international
courts in certain aspects their decisions have been very important for further progress of public
international law. This can be seen in existence and numbers Reports of International Arbitral
Awards since 1948 published by United Nations.

One outstanding illustration is the Alabama State Claims arbitration181.It was the beginning of a
new era in peaceful settlement of international disputes, where litigation and arbitration became
increasingly used to adjust conflicts. In this case, a vessel was built on Merseyside to
Confederate States' specifications; it succeeded in capturing some seventy Federal ships during
the American Civil War. The U.S. demanded compensation for war-time losses from the
depredations by Alabama amongst other vessels, which was accepted by the Tribunal. Thus
Britain had violated the laws of neutrality and therefore she ought to compensate America.
Another iconic arbitration award is Palmas Island case 182 that has been very important in
relation to territorial sovereignty topic that will be discussed later in chapter 10.

Furthermore, one should not ignore the significance of developing case law particularly from
International Criminal Tribunal for Former Yugoslavia (ICTFY) and International Criminal
Tribunal for Rwanda (ICTR). Moreover, different international courts are frequently known to
refer directly or indirectly to decisions of one another; sometimes as confirmation183 and at
other times as dissenters184. 180 ICJ Reports, 1998, pp. 275, 292.

181 J. B. Moore, International Arbitrations, New York, 1898, vol. I, p. 653.

182 2 RIAA, p. 829; 4 AD, p. 3. See also the Beagle Channel award, HMSO, 1977; 52 ILR,
p. 93, and the Anglo-French Continental Shelf case, Cmnd 7438, 1978; 54 ILR, p. 6.
183 See e.g. the references in the Saiga (No. 2) case, International Tribunal for the Law of the
Sea, judgment of 1 July 1999, paras. 133–4; 120 ILR, p. 143, to the Gabˇc´ıkovo–Nagymaros
case, ICJ Reports, 1997, p. 7.
184 For example, the views expressed in the International Criminal Tribunal for the Former
Yugoslavia’s decision in the Tadi´c case (IT-94-1-A, paras. 115 ff; 124 ILR, p. 61) disapproving
of the approach adopted by the ICJ in the Nicaragua case, ICJ Reports, 1986,

As already indicated before in this thesis, such rulings made at national level185 can provide
evidence that a customary rule exists. They may also offer information on state practice, which
though not being an application of law however gives instances for how states act practically –
essentially constituting material act which is so indispensable while establishing customary
law187.

In particular British and American authors often make considerable reference to judgments
handed down by their own national courts.
Lastly, there are also decisions by highest federal court of Switzerland and United States
resolving disputes between component units within these countries, which have relevance
regarding international legal norms’ development in areas like border conflicts.

A boundary dispute between two US states solved by their Supreme Court has much in common
with The ICJ solving a frontier dispute between two sovereign nations thus providing valuable
material for public international law186.

p. 14, with regard to the test for state responsibility in respect of paramilitary units. The
International Court indeed reaffirmed its approach in the Genocide Convention (Bosnia
v. Serbia) case, ICJ Reports, 2007, paras. 402 ff.
185 See e.g. Thirty Hogsheads of Sugar, Bentzon v. Boyle 9 Cranch 191 (1815); the Paquete
Habana 175 US 677 (1900) and the Scotia 14Wallace 170 (1871). See also the Lotus case,
PCIJ, Series A, No. 10, 1927, p. 18; 4 AD, p. 153. For further examples in the fields of state
and diplomatic immunities particularly, see below, chapter 13.
186 See e.g. Congo v. Belgium, ICJ Reports, 2002, pp. 3, 24; 128 ILR, pp. 60, 80.
187 See e.g. Vermont v. NewHampshire 289 US 593 (1933) and Iowa v. Illinois 147 US 1 (1893).
188 See e.g.Parry, BritishDigest, pp. 103–5andLauterpacht,Development of International Law,
pp. 23–5. See also R. Y. Jennings, ‘International Lawyers and the ProgressiveDevelopment
of International Law’ in Makerczyk, Theory of International Law at the Threshold of the
21st Century, 1996, p. 325, and Pellet, ‘Article 38’, p. 790.
189 See above, chapter 1.

Article 38 has in it as an alternative method of determining rules of law, “the writings of the
most highly qualified publicists of the different nations.”

Indeed, throughout history academic writers have had great influence on how international law
has evolved. When Natural Law was at its peak, it was investigations and legal opinions that
were vital but state practice and court decisions were less significant. The supreme authorities for
the sixteenth to eighteenth centuries who defined the subject-matter, form and content of
international law included such writers as Gentili,

Grotius, Pufendorf, Bynkershoek and Vattel whose works established Francis’ notion towards a
positivist approach to international law. After this period treaties and custom held sway in
defining the rules of international system while legalistic writing began to lose its standing.

Therefore one can use textbooks to identify what is actually in the law on a given issue rather
than as a source or origin for substantive rules. Even though some authors like Gidel on the law
of the sea190 have shaped specific laws and others such as Oppenheimand Rousseau wrote
general works on international law that might be seen as classics by many people; textbook
writers are no longer very influential.
However, books are useful for organizing and giving direction to international law’s structure
and format so as to shed light upon its content, history, application. Academic treatises also help
stimulate discussions about values and purposes behind International Law besides pointing out
defects within it while at the same time suggesting future alternatives.

Given that there are no supreme authority figures or institutions in relation to international legal
order- there is even more need for coherence among publicists who represent various countries;
they must question both directions and objectives of these rules.

In presenting claims states turn to leading jurist’s works; national lawyers’ opinions presented to
their governments; judgments given by municipal courts; decisions of different international
tribunals and courts.191 The leading juristic authorities are invariably cited by officials of
national laws in their opinions addressed to the governments, states in their presentation of
claims, various international judicial and arbitral bodies in considering their decisions, and lastly
municipal court judges when there is a need.

This however does not mean that writers only subscribe to and affirm local prejudices192, which
is usually an exaggerated claim. Rather than dismissing the writer as a result of this, his position
should instead be judged within the proper context.

Other potential origins of international law While discussing different sources of law as specified
by the Statute of the International Court of Justice,

190 Droit International Public de la Mer, Chateauroux, 3 vols., 1932–4.

191 See Brownlie, Principles, pp. 23–4.
192 See e.g. Huber in the Spanish Zone of Morocco case, 2 RIAA, pp. 615, 640; 2 AD, pp. 157,
164 (note). See also Carty, Decay of International Law?, pp. 128–31.

it could have been mentioned that there is a difference between, on one hand, substantive rules,
which are legal sources that can enact new rules like treaty-making agreements, customary law
and many decisions of the International Court of Justice since they cannot be confined to
determine or elaborate the so called laws while on the other hand these practices and devices
provide evidence for rule existence such as juristic writings, numerous treaty-contracts and some
judicial decisions both at international and municipal levels. Each source is capable to some
extent of creating fresh rules as well as identifying existing ones. This is partly because
international law is not very well organized and partly attributable to article38 itself.

The same confusion between law-making, law-determining and law evidencing can be discerned
in the discussion of various other methods of developing law that have emerged since the
conclusion of World War II. One of the most important questions arising out of this and
indicative 194 for example reflects the importance attached to Third World states in thes lowly
Westde-
Europeanizingworldorderistheseatolerabilitityconcerningeffectonthestatementsanddeclarationsge
nerallymadebytheUnitedNationsGeneralAssembly.It must be noted that unlike resolutions passed
by Security Council (SC) under articles 24 &25 United Nations (UN) Charter which are binding
upon all members states in UN s These Assembly are usually not legally binding but rather
persuasive in character consisting opinions regarding issues are supported some degree majority
vote. The traditional approach has been that Assembly was basically a parliamentary advisory
body with its Security Council taking binding decisions.

193 See e.g. O. Y. Asamoah, The Legal Significance of the Declarations of the General Assembly
of the United Nations, The Hague, 1966; D. Johnson, ‘The Effect of Resolutions of the
General Assembly of the United Nations’, 32 BYIL, 1955–6, p. 97; J. Casta˜neda, Legal
Effects of United Nations Resolutions, New York, 1969, and R. A. Falk, ‘On the Quasi-
Legislative Competence of the General Assembly’, 60 AJIL, 1966, p. 782. See also A.
Cassese, International Law in a Divided World, London, 1986, pp. 192–5; M. Virally, ‘La
Valeur Juridique des Recommendations des Organisations Internationales’, AFDI, 1956,
p. 69; B. Sloan, ‘The Binding Force of a Recommendation of the General Assembly of the
United Nations’, 25 BYIL, 1948, p. 1, and Sloan, ‘General Assembly Resolutions Revisited
(40 Years After)’, 58 BYIL, 1987, p. 39; Thirlway, ‘Lawand Procedure of the ICJ (Part One)’,
p. 6; O. Schachter, ‘United Nations Law’, 88 AJIL, 1994, p. 1; A. Pellet, ‘La Formation du
Droit International dans le Cadre des Nations Unies’, 6 EJIL, 1995, p. 401, and Pellet,
‘Article 38’, p. 711; and S. Schwebel, ‘United Nations Resolutions, Recent Arbitral Awards
andCustomary International Law’ in Realismin Law-Making (eds. M. Bos and H. Siblesz),
Dordrecht, 1986, p. 203. See also Judge Weeramantry’s Dissenting Opinion in the East
Timor case, ICJ Reports, 1995, pp. 90, 185; 105 ILR, pp. 226, 326.
194 See e.g. the Namibia case, ICJ Reports, 1971, pp. 16, 54; 49 ILR, p. 29 and the Lockerbie
case, ICJ Reports, 1992, pp. 3, 15; 94 ILR, p. 478. See further below, chapter 22.

Nowadays, the situation is somewhat more complicated. Many important resolutions and
declarations have been adopted by the Assembly which must inevitably affect modern
international law. The voting pattern in General Assembly together with statements made
thereon is indicative of the state practice and opinions as to what is law. If a country has
consistently voted in favor of, say, the abolition of apartheid, it cannot then deny the existence of
a custom condemning racial discrimination and it may even be that that usage becomes a binding
customary rule.

The Nicaragua case saw the Court suggesting tentatively that the requirement for opinion juris
might be arrived at from circumstances relating to adoption and application of a General
Assembly resolution.

It further observed that relevant opinion juris may be cautiously deducible from inter alia the
behavior of Parties [i.e. US and Nicaragua] and other States towards certain General Assembly
resolutions including specifically ‘Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the United
Nations’ (resolution2625(XXV)).196

Consent to such resolutions as this “might indicate

acceptanceofthevalidityoftheruleorsetofrulesstatedbythepreamble.”

The writer of this comment does not agree with the view in question, and says so by referring to
Cliff’s point that ‘many resolutions have been adopted by states.’

However, it may be interpreted to mean only where a resolution explains or interprets a

preexisting obligation within a treaty such as the Charter.

For instance, if there is a consistent pattern of states voting in favor of resolutions and
declarations in relation to some issue, then state practice is established and an obligation can be
found provided that opinion juris is established. For instance, The 1960 Declaration on the
Granting of Independence to Colonial Countries and Peoples fell into this category as it was
adopted unanimously, with only nine abstentions after a series of general and specific resolutions
attacking colonialism and calling for self-determination in the remaining colonies which brought
about this idea that self-determination has changed from being political or moral principle to
being human rights with legal obligations; notably along with the 1970 Declaration on Principles
of International Law.

195 Some resolutions of a more administrative nature are binding: see e.g. article 17 of the
UN Charter.
196 ICJ Reports, 1986, pp. 14, 99–100; 76 ILR, pp. 349, 433–4.
197 ICJ Reports, 1986, p. 100; 76 ILR, p. 434.

Resolutions like the one on Legal Principles Governing Activities of States in Exploration and
Use of Outer Space (1963) are also often viewed as examples of state practice which may lead to
or have led to binding customary rules. Moreover, it is possible to consider them resolutions as
state actions towards an opinion juris although they cannot exist without such opinions.
Otherwise, under certain circumstances, resolutions are said to be authoritative interpretations by
Assembly of different principles in United Nations Charter.[199]

These are capable therefore accelerating legalization process because they will make customary
law adaptable with modern life without delay. The importance of having almost every nation’s
representative at its sessions makes General Assembly very useful globally both politically
generally speaking but also for state practice development that could become customarily
binding or non-binding depending on how many countries believe it should apply. As stated
above by ICJ in Nicaragua case “the wording of certain General Assembly declarations adopted
by states demonstrates their recognition of the principle of the prohibition of force as definitely a
matter of customary international law” [200].

For example, in its Advisory Opinion on Legality of Threat or Use of Nuclear Weapons [201],
the International Court noted that even if a General Assembly resolution is non-binding, it may
have normative value. For some General Assembly resolutions, they can provide evidence
important for establishing rule or emergence of opinion juris if “the content and conditions of its
adoption” and “whether an opinion juris exists as to its normative character.” Or, alternately, a
group of resolutions might show how an opinion juris has developed gradually over time to
establish a new rule.

198 See further below, chapter 5, p. 251.

199 See e.g. O. Schachter, ‘Interpretation of the Charter in the Political Organs of the United
Nations’ in Law, States and International Order, 1964, p. 269; R. Higgins, TheDevelopment
of International Law Through the Political Organs of the United Nations, Oxford, 1963,
and M. N. Shaw, Title to Territory in Africa: International Legal Issues, Oxford, 1986,
chapter 2.
200 ICJ Reports, 1986, pp. 14, 102; 76 ILR, pp. 349, 436.
201 ICJ Reports, 1996, pp. 226, 254–5; 110 ILR, pp. 163, 204–5.

In this case, the Court examined several General Assembly resolutions on nuclear weapons
which had often received many negative votes and abstentions. Furthermore, such resolutions did
not remain constant in meaning. It can therefore be concluded by this court that these
Resolutions failed to establish opinion juris on the illegality of nuclear weapons. 202

However, one should be cautious about attributing legal value to all things that emanate from the
Assembly. Resolutions are often a product of political compromises and arrangements and, as
such, cannot be considered as binding rules. It is important to move cautiously from several
practices, to identification of legal norms.

In practical terms, there are other international organizations whose practice in this respect is
such that exactly the same approach may be adopted,203 albeit with a little more caution.
Resolutions may reveal pre-existing custom or give rise to a usage that could result in custom;
similarly the opinion juris requirement might arise out of surrounding circumstances in any given
case, although care has to be taken here.204

In fact, it is sometimes contended more broadly that particular non-binding instruments or

documents or non-binding provisions in treaties belong to a special category called ‘soft law’.

202 Ibid., p. 255; 110 ILR, p. 205. See as to other cases, above, p. 84.
203 See generally, as to other international organisations in this context, A. J. P. Tammes,
‘Decisions of International Organs as a Source of International Law’, 94 HR, 1958, p. 265;
Virally, ‘La Valeur Juridique’, p. 66, and H. Thierry, ‘Les R´esolutions des Organes
Internationaux
dans la Jurisprudence de la Cour Internationale de Justice’, 167 HR, 1980,
p. 385.
204 See the Nicaragua case, ICJ Reports, 1986, pp. 14, 100–2; 76 ILR, pp. 349, 434–6.
205 See e.g. Boyle and Chinkin, The Making of International Law, pp. 211 ff.; Pellet, ‘Article
38’, p. 712; H. Hillgenberg, ‘A Fresh Look at Soft Law’, 10 EJIL, 1999, p. 499; M. Bothe,
‘Legal and Non-Legal Norms – A Meaningful Distinction in International Relations’, 11

By using this term we mean that the instrument or provision is not ‘law’ per se but its
significance within the wider framework of international legal development necessitates special
attention being paid to it. The concept of “soft law” does not amount to law. That must be
stressed. But a document for example does need not necessarily constitute one which can bind
states before generating an impact in global politics. A good example of this would be Helsinki
Final Act 1975.This was an agreement which did not have any legally binding effect but had
very significant ramifications on central and eastern Europe highlighting the importance and role
played by human rights at international level.206 A lot of ‘soft law’ has been generated
particularly under certain fields of international law207 such as international economic law208
and environmental law.

The use of such documents termed recommendations, guidelines, codes of practice or standards
have significance regarding demonstrating changes made over time and setting out parameters
which might become laws later. They can either be formalized into a binding treaty, or
acknowledged as customary law provided that all necessary preconditions for such transition
have been fulfilled. The ideas of ‘soft law’ are influential and significant but they do not possess
normative character in themselves.

Therefore, it may sometimes be more advantageous for states to conclude non-binding

agreements either with one another or through international organizations which are not
envisaged to be followed by a rigid legal implementation mechanism, and therefore do not
involve any formal legal obligations, but reflects political willingness to act in certain ways.
With this kind of agreements, there is greater flexibility because they can be easily negotiated
and implemented on home grounds.

A study conducted by the US State Department about international agreements between

states210 showed that It is not the title of the document that is determinative of status in such
situations, but whether or not it was intended to create legally binding relationships between the
parties as may be inferred from the circumstances surrounding it.

Netherlands YIL, 1980, p. 65; I. Seidl-Hohenveldern, ‘International Economic Soft Law’,

163 HR, 1980, p. 164, and Seidl-Hohenveldern, International Economic Law, 2nd edn,
Dordrecht, 1992, p. 42; J. Gold, ‘Strengthening the Soft International Law of Exchange
Arrangements’, 77 AJIL, 1983, p. 443; PASIL, 1988, p. 371; G. J. H. Van Hoof, Re-thinking
the Sources of International Law, Deventer, 1983, p. 187; C. M. Chinkin, ‘The Challenge
of Soft Law: Development and Change in International Law’, 38 ICLQ, 1989, p. 850; L.
Henkin, International Law, Politics and Values, Dordrecht, 1995, pp. 94 and 192; W. M.
Reisman, ‘The Concept and Functions of Soft Law in International Politics’ in Essays in
Honour of Judge Taslim Olawale Elias (eds. E. G. Bello and B. Ajibola), Dordrecht, 1992,
vol. I, p. 135;A. E.Boyle, ‘SomeReflections on theRelationship ofTreaties and Soft Law’, 48
ICLQ, 1999, p. 901; F. Francioni, ‘International “Soft Law”: A Contemporary Assessment’
in Lowe and Fitzmaurice, Fifty Years of the International Court of Justice, p. 167, and
Commitment and Compliance: The Role of Non-Binding Norms in the International Legal
System (ed. D. Shelton), Oxford, 2000
206 See e.g. the reference to it in the Nicaragua case, ICJ Reports, 1986, pp. 3, 100; 76 ILR,
pp. 349, 434.
207 See e.g. Seidl-Hohenveldern, International Economic Law, pp. 42 ff.
208 See e.g. P. Birnie and A. Boyle, International Law and the Environment, 2nd edn, Oxford,
2002, pp. 24 ff.
209 Memorandum of the Assistant Legal Adviser for Treaty Affairs, US State Department,
quoted in 88 AJIL, 1994, pp. 515 ff. See also A. Aust, ‘The Theory and Practice of Informal
sources 119
it has long been recognized in international practice that governments may agree on joint
statements of policy or intention that do not establish legal obligations. In recent decades, this
has become a common means of announcing the results of diplomatic exchanges, stating
common positions on policy issues, recording their intended course of action on matters of
mutual concern, or making political commitments to one another. These documents are
sometimes referred to as non-binding agreements, gentlemen’s agreements, joint statements or
declarations.

International Law Commission

The General Assembly established The International Law Commission in 1947 with an aim of
promoting progressive development of international law and its codification210. It consists of
thirty-four members from Africa, Asia, America and Europe who serve for a term of five years
each appointed through lists submitted by national governments. These deliberations include a
consultation with various outside bodies such as Asian-African Legal Consultative Committee,
European Commission on Legal Cooperation and Inter-American Council of Jurists211.

International Instruments’, 35 ICLQ, 1984, p. 787; O. Schachter, ‘The Twilight Existence

of Nonbinding International Agreements’, 71 AJIL, 1977, p. 296; McNair, The Law of
Treaties, p. 6, andA. T. Guzman, ‘The Design of International Agreements’, 16 EJIL, 2005,
p. 579.
210 See, as to the relationship between codification and progressive development, Judge ad
hoc Sørensen’s Dissenting Opinion in the North Sea Continental Shelf cases, ICJ Reports,
1969, pp. 3, 242–3; 41 ILR, pp. 29, 217–19.
211 See articles 2, 3 and 8 of the Statute of the ILC. See also e.g. B. Ramcharan, The
International
Law Commission, Leiden, 1977; TheWork of the International Law Commission, 4th
edn, New York, 1988; I. Sinclair, The International Law Commission, Cambridge, 1987;
The International Law Commission and the Future of International Law (eds. M. R. Anderson,
A. E. Boyle, A. V. Lowe and C. Wickremasinghe), London, 1998; International
Law on the Eve of the Twenty-first Century: Views from the International Law Commission,
New York, 1997; S. Rosenne, ‘The International Law Commission 1949–59’, 36 BYIL,
1960, p. 104, and Rosenne, ‘Relations Between Governments and the International Law
Commission’, 19 YBWA, 1965, p. 183; B. Graefrath, ‘The International Law Commission
Tomorrow: Improving its Organisation and Methods ofWork’, 85 AJIL, 1991, p. 597, and
R. P. Dhokalia, The Codification of Public International Law, Manchester, 1970.

Most important international conventions have been developed through the work of this
commission. Once a subject has been chosen by The International Law Commission, then it will
produce a draft. This is sent to all states for their comments before being followed by an
international conference called by the United Nations. A treaty will eventually be forged through
this process. Such international conventions were preceded by procedures like those relating to
the Law seas in 1958, Diplomatic Relations in 1961, Consular Relations in 1963 Special
Missions in 1969 and Treatise’s Laws in 1969. Although there are many meetings such as those
at Caracas in1974; Geneva and New York from 1975-1982 leading to Convention on the Law of
the Sea.

Apart from preparing such drafts, ILC also produces reports and studies. It has also formulated
documents such as Draft Declaration on Rights and Duties of States (1949), Principles of
International Law enshrined in the Charter of Nuremberg Tribunal (1950) etc. The Commission
produced a set of draft articles on jurisdictional immunities (1991), draft statute for an
international criminal court (1994) as well as set of draft articles on state responsibility (2001). In
fact, the ILCs drafts are often mentioned in the International Court of Justice’s judgments. In a
speech to the UN General Assembly in 1997, President Schwebel noted that in referring to the
decision in the Gabˇc´ıkovo–Nagymaros Project case212, the judgment: also stands outs for its
inclusion of globally significant works produced by International Law Commission., Moreover;
The Judgment of the Court not only draws on treaties concluded under the Commissions’
auspices: that on law of treaties, of State succession in respect of treaties and the law of
international watercourses. It also attributes much importance to number of Commission’s Draft
Articles on State Responsibility which were referred to in the cases between Hungary and
Slovakia214. This is not totally unique; it shows more that some judgments and opinions
emanating from International Court have inspired that includes decisions delivered by
International Law Commission as well as influence on Court215.
Therefore, it can be seen that at least two major sources of law are within the ambit of ILchence
its draft legislation may serve as a base upon

212 ICJ Reports, 1997, p. 7; 116 ILR, p. 1.

213 See www.icj-cij.org/icjwww/ipresscom/SPEECHES/Ga1997e.htm.