Sources of International Law:

Sources of International Law: Is Article 38 of the ICJ Statute a Correct and Complete Enumeration of the Sources of International Law? Author: Michal Lehuta Date: October 31, 2006 Course: International Law and Legalization Instructor: Prof. Dr. Dr. Dr. h.c. mult. Georg Ress

1 Introduction Any community is said to function more effectively towards the general welfare of its members if it follows a certain set of rules; the international community of states being no exception. The welfaresuperiority of the rule system springs from the fact that the benefits of decreased uncertainty about the threats of the outside world created by rules and their enforcement commonly overweigh the costs of compliance with them (this view is sustainable both from a communitarian as well as an individualistic perspective). In economics, many institutionalists (for example, Douglass C. North) and even libertarians (Friedrich A. Hayek), see these rules as a kind of learning mechanisms of societies embodying knowledge about the desired, but at the same time effective, functioning of the social world. Sir Humphrey Waldock of the International Law Commission (1963; in Jennings 1995: 1160) defined international law as the body of rules and principles of action which are binding upon civilized states in their relations with one another. Identification of these rules is at the core of their proper enforcement. In other words, knowing what the rules are, how they are formed, and when they are breached, lies at the heart of applying sanctions for possible misbehavior. Understanding the sources of international law, set of rules of the international community, is thus vital for an efficient functioning of the world society. The community of states is a very specific community when compared to national societies, however. There is no world government to enact laws from above states have to decide on the guiding principles themselves under the shadow of anarchy. Moreover, the international community also lacks an effective enforcement of law for the same reason. In fact, however, the functioning arrangements of international relations prove that anarchy does not necessarily imply disorder. The one-level tier state environment (of equals ) closely 1

approximates what extreme libertarians would call the natural order in domestic societal context, where agents solve their problems solely on the basis of their interests and capabilities (for example, Hans-Hermann Hoppe; also used by Jean-Jacques Rousseau and other social contract theorists as their starting point). Other social scientists warn about the arrangements where all actors enjoy a veto power of behaving purely at their own will. Game theory, and the Prisoner s Dilemma game in particular, is probably the most famous example of the limitations of individual rational behavior in the achievement of overall welfare. The global climate regime, without the cooperation of the greatest polluter the United States, seems to come close to this actor constellation. Having these particularities in mind, it is my intention in this essay to examine the sources of law, that is, what gives the rules of behavior among states their legal status. I will first refer to Article 38 of the Statute of the International Court of Justice (also known as the World Court) to investigate what it has to say about the sources of international law. Afterwards, I will follow with describing other possible sources of legalization. In conclusion, I am going to answer the research question of whether the Art. 38 is a correct and complete enumeration of the sources of public international law. 2 What are the Sources according to the Art. 38? Let me now turn away from modern social science theory to international law itself, with its concepts, terminology, and traditions dating far back into the history. Almost every text on international law starts with the elaboration on the sources of law (for example Barker 2000, Wallace 2002, Harris 2004). O Connell (1971; in Barker 2000) argues the term source is misleading for it associates with the way in which international rules come about. Jennings (1995), in response, identifies four distinct meanings of the term. First, there is the source in the 2

historical meaning. Second, sources of law are the criteria for identifying (binding) rules of law, and thus distinguishing them from other rules (such as that of morality or etiquette). This will be the meaning most often referred to in this paper. The third usage is related to the second, and denotes the sources as the material evidences of law law reports, collection of treaties and the like (following Jennings 1995: 1165). Lastly, sources of law can also refer to the methods or procedures by which the law is actually made or amended. Thus, the sources of law mean most importantly the constituting parts of international law that is, where one finds international law and what gives the rules their legal status. Or, in other words, the sources define the mental process of how do we recognize law when we see it, which is referred to as operationalization of the term international law (sources of law as sources of obligation, as Fitzmaurice 2000 rightly refers to them). Since there is no world government which would enact legislation in a top-down manner, this part of international law theory is of particular importance. The general legal consensus over the sources of international law is the following. Stipulated in the Article 38 of the Statute of the International Court of Justice (ICJ), the court shall base its decisions on: 1. Treaties 2. International customary law 3. General principles of law (Schwarzenberger 1957; in Harris 2004: 18; see also Appendix). In addition, the court may also apply judicial decisions or authoritative writings as subsidiary means for the determination of the rules of law (see Appendix for the whole Art. 38). This clearly sets the recognized sources of law apart from the other forms of legalization, such as the natural law concept, general moral postulates, or what is called the doctrines of international law (the views of writers; Harris 2004: 18). This distinction presupposes that law at a 3

time is distinct from any moral or normative postulates of any human mind, which is understandable from the point of view of clarity for the lawyers deciding a case. Let me now dwell on each of the sources in a greater depth individually. 2.1 Treaties By singing a treaty, it is understood that the states express their consent (or good will ) to be bound by the rules stipulated in it. This way, treaties can be seen as binding and as such a source of law by definition. The enforcement of such proclamation of good will is, however, questionable in an anarchic field of international relations. In order to be possible to enforce in the international politics, the treaty game is said to require iteration (in one-shot game the dominant strategy is to defect, as in the Prisoner s Dilemma; Setear 1996 in Barker 2000: 65). In this light, Adolf Hitler s infamous canon of not sticking to the agreements when it is not anymore favorable, in theory, is an inferior game strategy in the long run, for all other players would equally defect on cooperation with the German Reich (one could even argue it proved to be inferior in this way). Inter-state treaties are formally at the top in the hierarchy of the sources of law, which is exemplified also by its primary position in the Art. 38 of the ICJ Statute (Lauterpacht 1970) 1. This sets it clearly apart from national legislation, where the freedom to enter into contracts is rather strictly regulated (by, for example, minimum wage laws, product quality standards, illegalization of drugs, etc.). As mentioned above, there is a principle of good faith in treaties as sources of law (Latin: pacta sunt servanda pacts are to be obeyed). This principle means that, via signing a treaty, states bind themselves to 1 The exception being jus cogens - principles of international law so fundamental that no nation may ignore them or attempt to contract out of them through treaties. States are not allowed to enter legally into an agreement institutionalizing slave trade, for example (discussed more extensively below). 4

behave in a certain manner even if they subsequently change their mind by any coincidence. This is now also codified in the Vienna Convention on Law of Treaties Art. 26, which cites: every treaty in force is binding upon the parties to it and must be performed by them in good faith (Barker 2000: xiv). In order to provide for a leeway in case the states wish so, treaties can however also involve opt-out stipulations as known from civic law. Now, the question of universal legality comes into play. Many lawyers would argue that treaties cannot form a basis of proper (universal) law, because they are hardly ever universal - they are most often bilateral, statistically rather rarely involve many states. How can then such a treaty (between two or more states) be regarded as general law binding other parties too? In fact, it can only if all states are parties to the treaty, which happens very rarely (one can possibly think of United Nations Security Council resolutions having the source in the United Nations Charter signed by all UN members). The answer to this question lies in the next source of international law and pertains to state practice: if states not-bound by the treaty nevertheless adhere to its stipulations, the treaty can be viewed as a customary international law. 2.2 International Customary Law Custom can more easily be a foundation of universal laws than international treaties. The two requirements that are necessary to be satisfied here are first, that sates in fact do follow the custom (state practice), and second, that they accept it to be necessary a law (opinio juris sive necessiatis; as in Barker 2000: 55). In other words, international custom has to be evidenced by general state practice and at the same time regarded as a binding law in the normative sense. The two elements are often referred to as the objective and subjective (or material and ideational) elements of international custom respectively. 5

State practice is a relatively uncontroversial condition for a custom to be interpreted as a law. State practice includes activity of the organs and officials of states that relate to the possible rule of international law. This means also state practice at the meetings of international organizations (such as the United Nations General Assembly) by voting or otherwise expressing their view on matters under consideration. There are also instances where only what states say can be the evidence of their view on proper conduct in a particular situation (such as in the case of Nicaragua v United States; ICJ Reports #14 in Wikipedia 2006). The practice has to be consistent and regular, but does not have to be perfectly uniform by all states. The second element (opinio juris) is crucial from a normativetheoretical position. One could understand its importance by focusing on the Prisoner s Dilemma game again. Its stable outcome (Nash equilibrium) is a welfare-inferior behavior that is, defection on the sides of both players. In cases both players know that cooperation strategy is the norm ( law ), and that defection on cooperation is sanctioned in at least some way, then both actors can be better off cooperating with the certainty that also the other player will cooperate. This all allows international law to be not just what states in fact do, and what they would do anyhow (which would then be no rule of law at all), but also what states want to be done. The enforcement of such rules in an anarchical environment is a complicated matter, and it will not be extensively discussed in this paper. It is sufficient to stress that the material element of a custom (state practice or enforcement), being one of the two constitutive parts of this source of law, brings the normative concerns back to reality by proving the viability of certain ideals of behavior. Another important issue in customary law is the necessary duration of state practice and opinio juris for a customary law to be 6

considered legally binding. Several authors speak of the possibility of the so-called instant custom (Cheng 1963 in Barker 2000: 57, for example), where only a very short period of time can be sufficient to the formation of a new rule. The two examples Barker (2000) provides include the law of outer space that developed in the later 1950s and early 1960s, and the law governing exclusive economic zones that developed in a decade after 1973. The law on outer space started as a United Nations General Assembly resolution (which is not binding) and was codified only in 1968 with the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, [ ] (Harris 2004: 245-252). This precedence gives to a certain extent of binding power to the UN General Assembly resolutions at the condition that they are followed by practice supported by an opinio juris and thus constitute a customary law. The most renown cases connected to customary international law are the Asylum case (Columbia v Peru) and the North Sea continental shelf case (Germany v Denmark and The Netherlands). In the Asylum case, a Peruvian rebel was not extradited from Columbia on the ground that Peru repudiated on steps that would constitute such a custom. In the case of the dispute over the North Sea continental shelf, a custom of using an equidistance principle in dividing the seabed among neighboring countries was not found to be a universal practice. Another example of traditionally customary law is that of diplomatic privileges. Many of the former customs, including the diplomatic privileges (1961 Vienna Convention on Diplomatic Relations; Harris 2004: 353), however, have been codified in multilateral treaties, especially in the period after Second World War. This could be interpreted as a declining reliance on customs as rules of the international community. 7

2.3 General Principles of Law General Principles of Law ( Recognized by Civilized Nations, as originally drafted) is a rather controversial source of law. The reasons for this status are the degree of ambiguity about this source as well as its potentially great scope that would limit states sovereignty. The contentious issue is battled by legal positivists on the one hand, who deny that any law should have other source than one involving state consent. Other normative theorists of international order base their reasoning in deontological or a priori principles of conduct inherently necessary to be a part of any recognized set of international rules (as would be the case of the human rights regime, for example). The focus in general principles is to summon legal principles common to almost all municipal legal systems. A subsidiary function why these are included as a source of law in Art. 38 is the possibility of filling any gaps of non liquet situations in the workings of the World Court (this is, cases where no treaty stipulations nor custom are applicable). Classical international law literature identifies these generally accepted principles in particular: circumstantial evidence, estoppel, good faith, equity, res judicata, and the obligation to make reparations (Barker 2000: 68). Circumstantial evidence refers to the logical necessity of a certain stand based on indirect physical proofs. Related is the principle of estoppel, which embodies a rule of non-contradiction in state behavior: states are not allowed to claim one position and behave in a different way, or hold one position today and a different tomorrow, and demand justice based on one of these positions. The assumption of good faith in signing treaties has been mentioned earlier in this paper. Equity has been invoked in many instances; it is agreed, however, that is cannot operate contra legem (against already established legal rules). The significance of general principles, similarly to that of customary law, has been lessened by the increased codification of international law by treaties (for example, 8

of good faith in the Vienna Convention on the Law of Treaties of 1969), and they serve more or less as sources of inspiration often invoked rather than sources of law proper (this agreement in, for example, Cheng 1953 in Dekker & Werner 2003: 13). 2.4 Judicial Decisions, Influential Writings In its decisions, the International Court of Justice may apply it s own or other judicial decisions and influential writings as a subsidiary means for the determination of applying principles when deciding a particular case (on the workings of the World Court see below). This power is limited in its application by Art. 58 of the Statute, which reads that in this case, the decision of the Court has no binding force except between the parties and in respect of that particular case (see Appendix below). Wallace (2002: 27) mentions the decisions of the US Supreme Court and the English Prize Courts as the most highly-regarded by the ICJ. Teachings of important figures in international law have been used repeatingly, as in the case of the freedom of the seas (Hugo Grotius) or the law of treaties (Lord McNair). Barker (2000) supplements this observation with a claim that only when practiced do these judicial decisions or writings acquire a binding power of a customary law. 2.5 Article 38 and the Workings of the International Court of Justice At this point, it would be suitable to elaborate more on the decision-making process of the World Court when settling disputes among states. International Court of Justice (the World Court, or just ICJ) is the principal judicial organ of the United Nations Organization, established in 1945-46 by the United Nations Charter. Its headquarters are in The Hague, The Netherlands. English and French are the its two official languages. The court decides by majority voting out of fifteen judges elected by the UN General Assembly and the Security Council for a 9

nine year term. Today s judges come from countries as diverse as the United Kingdom (president of the court Rosalyn Higgins), Jordan, Madagascar, Venezuela, Germany, Slovakia, New Zealand, or Russia (there are no two or more judges from the same UN member state). Article 38 belongs to Chapter II: Competences of the Court of the Court s Statute, and prescribes the ICJ to arrive at its decisions according to the above-mentioned law-creating processes (treaties, custom, general principles, judicial decisions, authoritative writings). De facto, thus, the Art. 38 by delineating the means for the determination of rules of law also stipulates the forms of legalization recognized by the world community that is; what is regarded as law. Moreover, since there is no code-book of international law, the Court can be said to be based partly also on the precedent principle: Under Art. 38 1d, the Court in its decision-making may consider its own previous decisions. In reality, the ICJ indeed rarely departs from its own previous decisions and treats them as precedent in a way similar to courts in common law systems. If the parties agree, they may also grant the Court the freedom to decide ex aequo et bono ( in justice and fairness ), providing it with the freedom to make an equitable decision based on what is fair under the circumstances. The Court operating under ex aequo et bono would act in some ways similar to a private arbitrator in national jurisdictions. However, this provision has not yet been used in the Court s history (according to Wikipedia 2006). 3 Are there Other Sources? After explicating all the sources of law on the base of which the ICJ is entitled to decide, one could still ask is it all?. Are the legalization processes stipulated in Art. 38 all the possible sources of legitimate law? What about the so-called soft law or gentlemen s agreements? Can the 10

resolutions of international organizations be found to be based on the already-explicated sources of law? I will now address these questions. First, let us think of the resolutions of international organizations, in particular the bodies of the United Nations. United Nations, as almost all international organizations, is based on treaties, that is, member states signing and thus agreeing to the UN Charter. This way they agree to respect the resolutions of the Security Council, in which only fifteen members have the voting right. Hence, the source of Security Council resolutions legally binding power lies in the treaty, the UN Charter. General Assembly resolutions, on the other hand, are explicitly not legally binding and thus cannot find their source of binding power in the Charter. Nor in customary law, for coming to a non-binding agreement does not constitute an opinio juris (Barker 2000: 60-61). They can, however, be an indication of a forming customary law, and as such are often considered by the ICJ (Wikipedia 2006). Then there are the gentlemen s agreements or the soft law. An example of this can be the Helsinki Final Act of 1975, where even communist countries agreed to respect human rights of religious and press liberties. The Final Act is, again, explicitly not a binding treaty, however. Therefore, the non-respect for the principles signed by communist leaders, although definitely very disturbing for the dissidents of these countries (for example, the Czechoslovak ones grouped around the Charta 77), was not itself an illegal act in international law. Although themselves not-legally binding, the gentlemen s agreements can be said to have certain quasi-legal implications if they nevertheless in reality do shape individual behavior by providing certain sanctions for non-compliance (such as bad reputation or adverse domestic public pressure). Van Hoof (1983; in Harris 2004: 61-2) also identifies these implications of legally non-binding instruments (another example is the Rio Conference of 1992). Similar phenomenon can be 11

observed within the spectrum of secondary law of the European Union (EU). The EU s secondary law ranges from directly binding regulations, and directives (these have to be first implemented), through specific decisions applicable to only certain member states, to non-binding recommendations and opinions. Abbott and Snidal (2003) investigate into the nature of hard and soft law more theoretically. Similarly to my example of the spectrum of EU secondary law, the authors ellaborate on scale of instruments with a certain binding power, from soft informal agreements through intermediate blends of obligation, precision, and delegation to hard legal arrangements (p. 74). They argue that even what we regard as hard international law does not approximate what we conceptualize of law in advanced domestic system (with the several times mentioned problem of enforcement, for example). The advantages of soft legalization are, to the authors, lower contracting and sovereignty costs. Soft law can also serve as a tool for compromise, including private actors too. The benefits of hard legalization, on the otherhand, include mitigating commitment and incomplete contracting problems. Abbot and Snidal further argue that this kind of soft legalization helps better to balance competing considerations of states in cases where hard law would be unthinkable. 4 Conclusion or Is the Article 38 Correct and Complete Enumeration of the Sources of International Law? Summing up the overall findings of this paper, one can conclude two trends. One is towards codification of law and increasing reliance on treaties as a source of law (as opposed to customs and general principles). The second trend observed is the speeding up of custom evolution, most prominently connected to the exponential increase in states interaction due to globalization (also in Jennings 1995: 1167-8). 12

Judicial decisions, however, remain a very important subsidiary source of law. From one point of view, the new complexities of globalization add to some disputes over the identification of rules of law in international relations. For this reason, whether the Art. 38 is correct depends on what we understand as international law. In this light, the fact remains that soft law is therefore soft that it is not law proper; it is not legally binding and as such cannot be enforced in court. Moreover, resolutions of international organizations can be subsumed under the paragraphs of Art. 38 for they spring either directly from treaties ( a), or indirectly, when supported by opinio juris, form a practice of customary law ( b). For these reasons, Art. 38 is, with its four paragraphs, a complete enumeration of the sources of international law. International law is a kind of bottom-up (or bottom-bottom for that matter) process creating legitimate and binding state obligations, similar to the common law municipal tradition (or case law ; as in Jennings 1995: 1168). The question of completeness of international law is a matter in particular because anything the law does not explicitly prohibit, it ipso facto permits (Dekker & Werner 2003: 15). Fitzmaurice (2000), as a natural law theorist, tries to undermine the completeness of the sources in a philosophical way. Any rule to the effect that rules of international law can only come into existence through state consent, [ ], is itself a rule of international law, he argues (p. 79). This problem reminds us of the Habermasian democracy problem of constitutional legitimacy (similar to the popular hen and egg dilemma), however, and does not really bring a real contradiction into the system of law sources as portrayed in this essay in my view. 13

Appendix Article 38 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Article 59 The decision of the Court has no binding force except between the parties and in respect of that particular case. 14

References Abbott, Kenneth W. & Duncan Snidal. 2003. Hard and Soft Law in International Governance. In: Ku, Charlotte & Paul F. Diehl (eds). International Law: Classic and Contemporary Readings, 2 nd ed. Boulder, CO: Lynne Rienner Publishers, pp. 51-79. Barker, J. Craig. 2000. International Law and International Relations: International Relations for the 21 st Century. London: Continuum. Dekker, Ige F. & Wouter G. Werner. 2003. The Completeness of International Law and Hamlet s Dilemma. In: Dekker, Ige F. & Harry H.G. Post (eds). On the Foundations and Sources of International Law. The Hague: T.M.C. Asser Press, pp. 7-16. Fitzmaurice, Gerald G. 2000. Some Problems Regarding the Formal Sources of International Law. In: Koskenniemi, Martti (ed.). Sources of International Law. Aldershot: Dartmouth, pp. 57-80. Harris, David J. 2004. Cases and Materials on International Law. 6 th Ed. London: Sweet & Maxwell. International Court of Justice. 2006. Statute of the International Court of Justice. Retrieved August 25, 2006 (http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm#c HAP TER_II). Jennings, Robert Y. 1995. International Law. In: Bernhardt, Rudolf et al. (eds). Encyclopedia of Public International Law, Vol. II. Heidelberg: Max Planck Institute for Comparative Public Law and International Law, pp. 1159-1178. Lauterpacht, Elihu. 1970. International Law. Being the collected works of Hersch Lauterpacht. Cambridge: Cambridge University Press. Wallace, Rebecca M.M. 2002. International Law, 4 th ed. London: Sweet & Maxwell. Wikipedia. 2006. European Union law, International Court of Justice, Sources of International Law. Retrieved August 21, 2006 15

(http://en.wikipedia.org/wiki/european_union_law, http://en.wikipedia.org/wiki/icj, http://en.wikipedia.org/wiki/sources_of_international_law). 16