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Professor o f Public International La'H/;, L.Tniversity o f Bristol

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OXFORD
UNIVERSITY PRESS OUTLINE CONTENTS
Great Clarendon Street, Oxford oX2 6DP
Oxford University Press is a department of the University of Oxford.
It furthers the University's objective of excellence in research, scholarship,
and education by publishing worldwide in INTRODUCTION: INTERNATIONAL LAW IN PRACTICE
Oxford New York
Auckland Bangkok Buenos Aires Cape Town Chennai REFLECTIONS FROM THE INTERNATIONAL COURT 3
Dar es Salaam Delhi Hong Kqng Istanbul Karachi Kolkata
Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi
HE Judge Rosalyn Higgins, DBE, QC
Sao Paulo Shanghai Taipei Tokyo Toronto
Oxford is a registered trade mark of Oxford University Press THE PINOCHET CASE-SOME PERSONAL REFLECTIONS 7
in the UK and in certain other countries The Rt Han The Lord Millett
Published in the United States
by Oxford University Press Inc., New York
THE PERSPECTIVE OF INTERNATIONAL LAW -FROM THE BAR 11
© Editorial material and arrangement Malcolm D. Evans 2003
Ian Brownlie, CBE, QC
© Individual chapters-the several contributors 2003
The moral rights of the author have been asserted
REFLECTIONS FROM THE PRACTICE OF INTERNATIONAL LITIGATION 15
Database right Oxford University Press (maker)
Campbell McLachlan
First published2003
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means, A PERSONAL PERSPECTIVE ON INTERNATIONAL LAW 21
without the prior permission in writing of Oxford University Press, Ralph Zacklin, Assistant Secretary-General, United Nations
or as expressly permitted by law, or under terms agreed with the appropriate
reprographics-rights organizations. Enquiries concerning reproduction
outside the scope of the above should be sent to the Rights Department, THE PERSPECTIVE OF A FOREIGN MINISTRY LEGAL ADVISER 25
Oxford University Press, at the address above Michael Wood
You must not circulate this book in any other binding or cover
and you must impose this same condition on anyacquirer
British Library Cataloguing in Publication Data
Data available
ISBN 0-19-925114-2 PART I THE HISTORY AND THEORY OF INTERNATIONAL LAW
3 5 7 9 10 8 6 4 2
Typeset in Adobe Minion A SHORT HISTORY OF INTERNATIONAL LAW 31
by RefineCatch Limited, Bungay, Suffolk Stephen C Neff
Printed in Great Britain by
TJ International Ltd, Padstow, Cornwall
2 SOME COMMON HERESIES ABOUT INTERNATIONAL LAW:
SUNDRY THEORETICAL PERSPECTIVES 59
lain Scobbie

3 WHAT IS INTERNATIONAL LAW FOR? 89


Martti Koskenniemi

PART II THE STRUCTURE OF INTERNATIONAL OBLIGATION

4 THE SOVRCES OF INTERNATIONAL LAW 117


Hugh Thirlway
vi, . OUTLINE CONTENTS OUTLINE CONTENTS vii

5 INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 145 15 ISSUES OF ADMISSIBILITY AND THE LAW ON INTERNATIONAL
Dinah Shelton RESPONSIBILITY 473
Phoebe Okowa
6 THE PRACTICAL WORKING OF THE LAW OF TREATIES 173
Malgosia Fitzmaurice

PART VI RESPONDING TO BREACHES OF


INTERNATIONAL OBLIGATIONS
PART III THE SUBJECTS OF THE INTERNATIONAL
LEGAL ORDER 16 COUNTERMEASURES AND SANCTIONS 505
ND White and A Abass
7 STATES AND RECOGNITION IN INTERNATIONAL LAW 205
Colin Warbrick
17 THE MEANING OF DISPUTE SETTLEMENT 529
John Merrills
8 INTERNATIONAL ORGANIZATIONS 269
DapoAkande
18 THE INTERNATIONAL COURT OF JUSTICE 559
Hugh Thirlway
9 THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 299
Robert McCorquodale
19 THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 589
Christine Gray

PART IV 'THE SCOPE OF SOVEREIGNTY

10 JURISDICTION 329 PART VII THE APPLICATION OF INTERNATIONAL LAW


Vaughan Lowe
20 THE LAW OF THE SEA 623
11 INTERNATIONAL LAW AND RESTRAINTS ON THE EXERCISE OF
Malcolm D Evans
JURISDICTION BY NATIONAL COURTS OF STATES 357
Hazel Fox 21 INTERNATIONAL ENVIRONMENTAL LAW 657
Catherine Redgwell
12 IMMUNITIES ENJOYED BY OFFICIALS OF STATES AND
INTERNATIONAL ORGANIZATIONS 387 22 INTERNATIONAL ECONOMIC LAW 689
. Chanaka Wickremasinghe Gerhard Loibl

13 THE RELATIONSHIP BETWEEN INTERNATIONAL AND 23 INTERNATIONAL CRIMINAL LAW 721


NATIONAL LAW 415 Antonio Cassese
Eileen Denza
24 INTERNATIONAL PROTECTION OF HUMAN RIGHTS 757
Henry J Steiner

PART V RESPONSIBILITY 25 THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 789


Christopher Greenwood
14 THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY 445
James Crawford and Simon Olleson
CONTENTS ix

v The Nineteenth Century (1815-1919) 41


CONTENTS A The Positivist Tradition 41
B Natural-law Remnants 46
'C The Historicist (or <Romantic') Tradition 47
INTRODUCTION 'BY THE EDITOR xxvi
VI The Twentieth and Twenty-first Centuries (1919- 50
NOTES ON CONTRIBUTORS xxviii
ABBREVIATIONS xxxiii A The Inter-war Period 50
TABLE OF INTERNATIONAL INSTRUMENTS xxxix B After 1945 52
TABLE OF INTERNATIONAL CASES xlvi 56
VII Conclusion
TABLE OF STATUTES BY COUNTRY xlix
TABLE OF DOMESTIC CASE LAW BY COUNTRY 1 References 56
Further Reading 58

2 SOME COMMON HERESIES ABOUT INTERNATIONAL LAW:


INTRODUCTION: INTERNATIONAL LAW IN PRACTICE
SUNDRY THEORETICAL PERSPECTIVES 59
lain Scobbie
REFLECTIONS FROM THE INTERNATIONAL COURT 3
HE Judge Rosalyn Higgins, DBE, QC Summary 59
I Introduction: Theory Matters 60
THE PINOCHET CASE-SOME PERSONAL REFLECTIONS 7
II What is a <Theory' and What is it For? 61
The Rt Hon The Lord Millett
III The Legal Structure of the Cold War: Liberal Democracy Versus
THE PERSPECTIVE OF INTERNATIONAL LAW FROM THE BAR 11 67
Marxist-Leninism
Ian Brownlie, CBE, QC
A The New Haven School 68
REFLECTIONS FROM THE PRACTICE OF INTERNATIONAL B Soviet Theory 72
LITIGATION 15 C New Haven and Soviet Approaches Compared 76
Campbell McLachlan 78
IV New Order For a New World?
A PERSONAL PERSPECTIVE ON INTERNATIONAL LAW 21 V And in the End 82
Ralph Zacklin, Assistant Secretary-General United Nations 83
References
THE PERSPECTIVE OF A FOREIGN MINISTRY LEGAL ADVISER 25 Further Reading 86
Michael Wood
3 WHAT IS INTERNATIONAL LAW FOR? 89
Martti Koskenniemi
PART I THE HISTORY AND THEORY OF INTERNATIONAL LAW Summary 89
The Paradox of Objectives 89
A SHORT HISTORY OF INTERNATIONAL LAW 31
Stephen C Neff II Converging Interests? 91

31 III The Significance of Statehoo,d 94


Summary
I Introduction 31 IV Into Pragmatism? 97

II Ancient Worlds 32 V A Tradition of Anti-Formalism 100


III The Middle Ages: The Natural Law Era 34 VI Instrumentalism, Formalism, and the Production of an
37 International Political Community 103
IV The Classical Age (1600-1815)
x CONTENTS CONTENTS xi

VII Beyond Instrumentalism and Formalism 105 B Hierarchy Among Treaties Governing the Same Topic 163
VIII Between Hegemony and Fragmentation: A Mini-history 108 C Hierarchy Among Regimes 164

IX Legal Formalism and International Justice 110 IV 'Soft Law' 166


References 112 V Conclusion 17l
References 171
Further Reading 172

PART II THE STRUCTURE OF INTERNATIONAL OBLIGATION


6 THE PRACTICAL WORKING OF THE LAW OF TREATIES 173
Malgosia Fitzmaurice
4 THE SOURCES OF INTERNATIONAL LAW 117
Hugh Thirlway Summary 173

Summary 117 I Introduction 173


I Introduction: What are Sources of Law? 117 II Basic Concepts and Structures 174
II The Enumeration of the Traditional Sources of International Law: A What is a Treaty? 174
Article 38 of the Statute of the International Court of Justice 120 B The Vienna Conventions 175
A Treaties and Conventions in Force 121 III The Anatomy of a Treaty 177
B Custom 124 A The Making of Treaties 177
C The General Principles of Law 130 Authority to Conclude Treaties 177
B
D Subsidiary Sources: Judicial Decisions and Teachings 132 178
C Expression of Consent to be Bound
III The Relationship Between the Sources of International Law 134 D Invalidity of Treaties 180
A Relationship Between Treaty and Custom 134 E Amendment and Modification 181
B The Hierarchy of Sources 136 F Termination and Suspension of the Operation of Treaties 182
IV Is the Enumeration of Article 38 Exhaustive? Possible New or IV The Scope of Legal Obligations 183
Additional Sources 138
A The Principle Pacta Sunt Servanda . 183
A How Can New Sources Come into Existence? 138 Treaties and Third States 184
B
B Some Additional Sources or Quasi-Sources That Have Been Suggested 139
V General Principles of Interpretation 185
V Conclusion 142
A General Issues 185
References 143 186
B Practice
Further Reading 143 C .Travaux Preparatoires 188
D The Object and Purpose of a Treaty 189
5 INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 145
E The Principle of Effectiveness 189
Dinah Shelton
F Plurilingual Treaties 190
Summary· 145
VI Reservations to Treaties 191
Introduction: The Concept of Relative Normativity 145
A The Genocide Convention Case 191
II The Assertion of Peremptory Norms 150 B The Regime of the 1969 Vienna Convention 192
III Hierarchy Among Conflicting Norms and Procedures 159 C The Problem of Reservations to Human Rights Treaties 194
A Hierarchy Within a Single Treaty 160 D Interpretative Declarations 195
xii CONTENTS CONTENTS xiii

VII Problems Concerning the Grounds for Termination 196 8 INTERNATIONAL ORGANIZATIONS 269
A Material Breach 196 DapoAkande
B Supervening Impossibility of Performance 198 Summary 269
C Fundamental Change of Circumstances 198 I Introduction 269
VIII Conclusion 200 A History and Role of International Organizations 270
References 200 B Definition, Distinctions, and Differences 270
Further Reading 201 C Is there a Common Law of International Organizations? 271
II Legal Personality 272
A Personality in International Law 270
PART III THE SUBJECTS OF THE INTERNATIONAL Objective Legal Personality and Relations with Non-member States 275
B
LEGAL ORDER
C Personality in Domestic Law 276
7 STATES AND RECOGNITION IN INTERNATIONAL LAW 205 III Interpretation of Constituent Instruments 278
Colin Warbrick
A Who is Empowered to Interpret? 278
Summary 205
B What are the Relevant Principles of Interpretation to be Applied? 280
I States 206
IV Powers of International Organizations 282
A Introduction 206
B History 210 A Implied Powers 282

C Self-determination 213 B Decision-making Powers 283

D Personality-What it means to be a Legal Person 217 C Ultra Vires Decisions of International Organizations 285

E Statehood as Personality-What it takes to be a State 220 V Privileges and Immunities 286


F The Rights and Duties of States-What it means to be a State 231 A Sources of Privileges and Immunities 286
G The (Juridical' State 232 B Scope of Privileges and Immunities 287
H Conclusion . 236 VI The United Nations System 291
II Recognition 236 The Structure of the United Nations 291
A
A Introduction 236 B Principal Organs of the United Nations 293
B The Tinoco Arbitration 238
VII Conclusion 295
C Legal Nature, Legal Consequences of the Recognition Decision 238
References 296
D Recognizing, Not Recognizing, Non-recognition 241
E Recognition of Governments 242 Further Reading 297
F International and Domestic Legal Consequences 247
G The Declaratory/Constitutive Debate 248
H International Organizations-Membership and Credentials 250 9 THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 299
Practice-the Soviet Union and Yugoslavia After 1989 254 Robert McCorquodale
Constituting States-State-building 259 Summary 299
III Conclusion 261 Introduction 299
References 262 A The Individual 300
Further Reading 266 B Individuals in the International Legal System 300
xiv CONTENTS CONTENTS XV

II International Rights and Responsibilities 304 IV Conclusion 353


A Individual Rights 304 References 354
B Individual Responsibility 306 Further Reading 354
III International Claims 307
11 INTERNATIONAL LAW AND RESTRAINTS ON THE EXERCISE OF
A Bringing International Claims 307
JURISDICTION BY NATIONAL COURTS OF STATES 357
B International Human Rights Law 309
Hazel Fox.
C International Economic Law 311
Summary 357
D Immunities 314
I Introduction 357
IV Creation, Development, and Enforcement of International Law 314
II State Immunity 359
A Right of Self-Determination 315
B Indigenous Peoples 316 A Origins of the Plea of State Immunity 359
C Non-governmental Organizations 317 B Development of the Common Law Relating to State Immunity 359
D Jurists 320 C Development in Civil Courts and the USA 361
D Present Day Sources of the International Law of State Immunity 362
V Conclusions 321
E The Elements Constituting the Plea of State Immunity 363
References 322
F Definition of the Foreign State for the Purpose of State Immunity 366
Further Reading 325 G Exceptions to Adjudication Jurisdiction 366
H Immunity from Execution 371
III The Other Two Avoidance Techniques 376
PART IV THE SCOPE o.F SOVEREIGNTY
A Act of State 376
10 JURISDICTION 329 B Non-justiciability 377
Vaughan Lowe IV The Three Avoidance Techniques Compared 378
Summary 329 V The Arguments For and Against the Use of Avoidance Techniques 380
Introduction 329 VI Challenges to Immunity and Judicial Restraint 381
A The Meaning of <Jurisdiction' 329 VII Conclusion 383
B The Significance of the Principles of Jurisdiction 330
References 384
'C The Doctrinal Analysis of Jurisdiction 331
Further Reading 384
II Prescriptive Jurisdiction 333
A The Territorial Principle 336 12 IMMUNITIES ENJOYED BY OFFICIALS OF STATES AND
B The National Principle '339 INTERNATIONAL ORGANIZATIONS 387
Chanaka Wickremasinghe
C The Protective Principle 342
Summary 387
D The Universal Principle 343
E Treaty-Based Extensions of Jurisdiction 343 I Introduction 388
F Controversial Bases of Prescriptive Jurisdiction 345 II Diplomatic Relations 391
G Inadequacies of the Traditional Approach 347 A The Scheme of the Vienna Convention on Diplomatic Relations 392
III The Fundamental Principle Governing Enforcement Jurisdiction 351 B Jurisdictional Immunities 395
XVI CONTENTS CONTENTS xvii

C Remedies in Cases of Abuse 396 E Can a Treaty Prevail Over a National Constitutional Norm? 434
III Consular Relations 397 F Should the Executive Direct or Guide the National Court? 434
IV Heads of State, Heads of Government, and Ministers for Foreign G Should a National Court Apply a Foreign Law which Conflicts with
Affairs 398 International Law? 436

A Heads of State 398 H Are there Questions of International Law which National Courts
should Decline to Answer? 437
B Heads of Government and Ministers for Foreign Affairs 400
VI Conclusion: Elements of a Happy Relationship 439
V Special Missions 401
References 440
VI The Immunities of Other State Officials 403
Further Reading 441
VII Officials of International Organizations 404
VIII The Scope of Irnmunities-Immunity and Impunity Distinguished 406
IX Conclusions 411 PART V RESPONSIBILITY
References 411
14 THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY 445
Further Reading ·413 James Crawford and Simon Olleson

13 THE RELATIONSHIP BETWEEN INTERNATIONAL AND


Summary 445

NATIONAL LAW 415 The Scope of International Responsibility: Introduction and


Eileen Denza Overview 446

Summary 4.15 II State Responsibility: Issues of Classification and Characterization 449

I Introduction 415 A Responsibility under International or National Law? 449


B The Typology of State Responsibility 450
II The Approach of International Courts and Tribunals 416
III The Elements of State Responsibility 453
A Where National Law Causes Breach of International Law 417
B International Law Looks Mainly to the Result 419 A Attribution of Conduct to the State 454
B Breach of an International Obligation of the State 458
III The Approach of National Parliaments and National Courts 420
C Circumstances Precluding Wrongfulness: Defences or Excuses for
IV The Spectrum of Constitutional Rules 422
Breaches of International Law 462
A The Netherlands 422
IV The Content of International Responsibility 465
B Germany 423
V Invocation of Responsibility: Responses by the Injured State and
C France 424 Other States 468
D Russia 424
VI Conclusion: Further Development of the Law of International
E The United States 425 Responsibility? 470
F The United Kingdom 426
References 471
V Some Problems Which Arise in National Courts 428 Further Reading 471
A Does a Rule of Customary International Law Prevail Over
Conflicting National Law? 428 15 ISSUES OF ADMISSIBILITY AND THE LAW ON INTERNAT,IONAL
B What is the Meaning of an International Law Rule in the Context of RESPONSIBILITY 473
Domestic Law? 429 Phoebe Okowa
C Is the International Rule Directly Applicable and Directly Effective? 430 Summary 473
D Does a Treaty Prevail Over Inconsistent National Law? 432 I Introduction 474
xviii CONTENTS CONTENTS xix

II Legal Interest as a Pre-requisite to Admissibility of Claims 474 D Countermeasures and Third States 514
A Rationale of International Law Rules on Locus Standi 475 III Economic Coercion 518
B Modalities of Establishing of Legal Interest 476 IV Sanctions 522
III The Bases of Diplomatic Protection 477 A Definition of Sanctions 522
A Nationality as the Basis of Legal Interest in Indirect Claims 477 B Limitations upon Sanctions 524
B Establishing Nationality for Purposes of Diplomatic Protection 479 V Conclusion 526
C The Nationality of Corporations 483 References 527
D Applying the Nationality Rule 485 Further Reading 528
IV Admissibility in Cases Concerning Obligations Owed to a Plurality
of States 488 17 THE MEANS OF DISPUTE SETTLEMENT 528
John Merrills
A Introduction 488
B Treaty Instruments Protecting Collective Interests 490 Summary 529
C Litigation in the Public Interest and the Enforcement of Erga Omnes I Introduction 529
Obligations 490 II Diplomatic Methods 531
V Admissibility of Claims and the Rule on Exhaustion of Local Remedies 493 A Negotiation 531
A Introduction 493 B Mediation 533
B The Content of the Rule 494 C Inquiry 535
C The Application of the Rule in the Context of Mixed Claims 495 D Conciliation 537
D Nature of the Rule 497 539
III Legal Methods
E Which View Represents the Law? 498
A Arbitration 539
F The Exclusion of the Local Remedies Rule 499
B The International Court of Justice 541
VI Conclusion 500 C Other Courts and Tribunals 543
References 501 D The Place of Legal Methods 544
Further Reading 502 IV International Organizations and Dispute Settlement 547
A Regional Organizations 547
B The United Nations 548
PART VI RESPONDING TO BREACHES OF
C The Charter System in Practice 550
INTERNATIONAL OBLIGATIONS
D The Value and Limitations of Organizations 552
16 COUNTERMEASURES AND SANCTIONS 505 V Conclusion 553
ND White and A Abass 554
References
Summary 505 557
Further Reading
Introduction: Self-help in International Law 505
II 18 THE INTERNATIONAL COURT OF JUSTICE 559
Countermeasures 508
Hugh Thirlway
A Definition of Countermeasures 508
Summary 559
B Reprisals and Retorsion 510
C Limitations upon Countermeasures and other Non-forcible I Introduction 559
Measures taken by States 512 II History 560

L
xx CONTENTS CONTENTS XXI

III Structure and Composition 562 G The Role of the Security Council 606
N Procedure 564 V The Use of Force Under Chapter VII UN Charter 608
V The Court's Jurisdiction 566 A Measures Under Article 41 608
A Jurisdiction: Structural Limitations 566 B The Use of Force Under Chapter VII UN Charter 608
B Jurisdiction in Particular Cases 568 C Implied Authorization of Force? 610
C Jurisdiction and its Exercise 571 VI UN Peacekeeping 610
D Verification of Jurisdiction and Admissibility: Preliminary Objections 572
A The Inception of Peacekeeping 610
VI Other Incidental Proceedings 574 B Peacekeeping After the End of the Cold War 611
A Requests for the Indication of Provisional Measures 574 C The Transformation of Peacekeeping: Yugoslavia and Somalia 1991-95 612
B Parties: Joinder of Cases; Intervention by Third States 576 D Peacekeeping in Africa 613
C Interpretation and Revision of Judgments 579 E Peacekeeping After the Brahimi Report 614
VII Effect of the Decisions of the Court 579 VII Regional Action Under Chapter VIII UN Charter 614
VIII Advisory Proceedings 582
A A Greater Role for Regional Organizations 615
IX The Court Past and Present: An Assessment 585 B Controversy as to the Interpretation of Chapter VIII 615
Further Reading 587 C The OECS Intervention in Grenada (1983) 616
D Regional Peacekeeping After the Cold War 616
19 THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 589
Christine Gray VIII Conclusion 618

Summary 589 References 618

I Introduction 589 Further Reading 619

A The UN Charter Scheme 590


II The Prohibition of the Use of Force in Article 2(4) UN Charter 591 PART VII THE APPLICATION OF INTERNATIONAL LAW
A The Use of Force in 'International Relations' 592
B The Meaning of 'Threat or Use of Force' 20 THE LAW OF THE SEA 623
592
Malcolm D Evans
C The Use of Force 'Against the Territorial Integrity and Political
Independence of Any State,- or in Any Other Manner Inconsistent Summary 623
with the Purposes of the United Nations' 593 Introduction 623
D Humanitarian Intervention 595 626
II Constructing Baselines
III Intervention, Civil Wars, and Invitation 598 A Introduction: The Normal Rule 626
IV Self-defence 599 B Straight Baselines 626
A The Scope of Self-defence: Necessity and Proportionality 600 C Bays 627
B Anticipatory or Pre-emptive Self-defence 601 D Archipelagoes 628
C The Meaning of 'Armed Attack' 602 III The Internal Waters, Territorial Sea, and Contiguous Zone 629
D The Use of Force in Protection of Nationals 602 A Introduction 629
E Self-defence Against Terrorism 603 B Jurisdiction of the Coastal State 630
F Collective Self-defence 605 C Navigation in the Territorial Sea 632
xxii CONTENTS CONTENTS xxiii

IV The High Seas 637 E Conservation of Nature 677


A The Freedoms of the Seas 637 F Conservation of Marine Living Resources 683
B The Exceptions to Flag State Jurisdiction 638 VIII Conclusion 685
C Conclusion 641 References 685
V Resource Jurisdiction 642 Further Reading 687
A The Continental Shelf 642 /"l ..

B The Exclusive Fishing Zone 644 (r22)INTERNATIONAL ECONOMIC LAW 689


C The Exclusive Economic Zone 644. \....../ Gerhard Loibl
D The Deep Sea Bed 646 Summary 689

VI Delimitation of Maritime Zones between Opposite or Adjacent States 647 I Introduction 689

A Equidistance or Equitable Principles? 648 II International Finance Law 691


B Factors Affecting Delimitation 649 A The International Monetary Fund (IMF) 691
B The World Bank Group 695
VII Fisheries 650
C Regional Development Banks 699
A The Basic Scheme of Regulation 650
D Concluding Remarks 699
B Managing Fisheries 651
TIl International Trade Law 700
VIII Conclusion 654
A The General Agreement on Tariffs and Trade (GATT) and the World
References 654
Trade Organization (WTO) 700
Further Reading 657 700
B The World Trade Organization
.7'0--'
C International Commodity Agreements 708
( 2~'NTERNATIONAL ENVIRONMENTAL LAW 657
~ Catherine Redgwell IV International Investment Law 710

Summary 657 A Introduction 710


B Definition of Investment 711
I Introduction: What is International Environmental Law? 657
C Bilateral Investment Treaties 712
II Defining 'The Environment' 659
D Is there a Need for a Multilateral Investment Agreement? 714
III The Development of International Environmental Law 659
E Investment Insurance Schemes at the National Level 714
IV Key Environmental Actors 662
F The Multilateral Investment Guarantee Agency (MIGA) 714
V Sources of International Environmental Law 663 G Investment Dispute Settlement Mechanisms 716
A Customary International Law 664 V Regional Economic Integration Arrangements 717
B TreatyLaw 664
VI Concluding Remarks 717
VI Enforcement of International Environmental Law 665
References 718
VII Substantive International Environmental Law 667
Further Reading 720
A Protection of the Marine Environment 667
B Protection of the Atmosphere 670 ~'hNTERNATIONAL CRIMINAL LAW 721
C Nuclear Risks 674 L/ Antonio Cassese
D Other Hazardous Substances and Activities 674 Summary 721
xxiv CONTENTS CONTENTS xxv

Introduction: The Notion of International Criminal Law 721 C The Reach of Human Rights Duties within States: Non-State
II General Features of International Criminal Law (Private) Actors 776
722
D The Progressive Realization of Civil and Political Rights 777
A Recent Origins 722
E The State's Duty to Promote and Transform: Cultural Obstacles 780
B The Relationship With International Human Rights and National
Criminal Law 723 IV Conclusion: Perspectives and Voices 784
C The Relationship With Public International Law 724 References 786
III The Establishment of International Criminal Tribunals 726 Further Reading 786
A Post-Cold War 'New World Order' and the Development of Ad @THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 789
Hoc Tribunals (1993-94) 726 Christopher Greenwood
B The International Criminal Court 730
Summary 789
C The Establishment of so-called Internationalized or Mixed Criminal
Courts or Tribunals Introduction 789
734
II When Does the Law of War Apply? 791
IV Individual Criminal Responsibility in International Law 735
III Who Is Entitled to Take Part in Hostilities? 794
V Categories of International Crimes 738
IV What Is a Lawful Target and How May it Be Attacked? 797
A War Crimes 739
B Crimes Against Humanity 740 V What Are the Limitations on the Weapons with Which States May
Conduct Hostilities? 802
C Genocide 742
A Nuclear Weapons 806
D Other International Crimes (Aggression, Torture, Terrorism) 744
VI Conclusion 754 VI What Protection Does the Law Afford the Victims of Hostilities? 809
A Prisoners of War 809
References 755
B The Wounded and Sick 811
Further Reading 756
C Civilians 812

/-\ VII How Much If Any of this Law Applies in Civil War? 814
V,NTERNATIONAL PROTECTION OF HUMAN RIGHTS 757 VIII How Can the Law Be Enforced? 817
Henry J Steiner
References 822
Summary 757
. Further Reading 823
I Introduction 757
Index 825
II The Kinds of Protection Provided by International Organizations 759
A Why Create International Organizations? 759
BIGOs and NGOs 762
C Interaction among Institutions and Systems in Exerting Pressure on
Delinquent States 770
III Characteristics of International Human Rights Relevant to the
Nature of Protection 772
A Human Rights Violations Generally Occur within and Affect only
People Within a Single State 773
B Human Rights Violations Often have a Systemic Character and
Reflect Deep Aspects of a State's Political Structure 774
EDITOR'S INTRODUCTION xxvii

School of Law at Bristol University, past and present, Pat Capps, Phoebe Okowa and
EDITOR'S INTRODUCTION Chanaka Wickremasinghe. Likewise, I have been greatly helped by my secretary, Mis
Pat Hammond, who was able to maintain a grip on reality when mine had deserted
me. I would also like to express my special thanks to Dr Wei Su and Dr Yusuf Aksar
International law is a rich and varied subject, bearing upon most of the great issues who provided me with invaluable assistance in the process of editing, willingly and at
facing individuals and communities. This work aims to capture something of that short notice. Last, but certainly not least, I should like to thank my wife, Alison, and
breadth and diversity by drawing on the knowledge and experience of a broad range children, Olivia, Isobel, and Amelia, for their endurance during almost a year's worth
of contributors who are intimately engaged in its teaching and practice. It is designed of my near total immersion in the editorial role.
to present the essential elements of the international legal system in a clear and Malcolm D Evans
accessible fashion, but seeks to go further, addressing a number of key questions Easter 2003.
which challenge many of the assumptions upon which the international legal system
is founded. It also seeks to provide a succinct introduction to a range of topics that are The substance of the chapters was laid to rest well before the outbreak of hostilities
subject to increasingly detailed international regulation. against Iraq in March 2003 and it has not been possible to take account of that conflict
The work opens with a series of shorter contributions offering personal reflections and its consequences in this volume. It is to be hoped that a need to produce future
upon the role and function of international law by some its leading exponents and editions of this work will provide occasions on which to do so.
from a variety of perspectives. Parts I-VI then consider the key building blocks of the
subject whilst Part VII provides a series of introductory overviews of particular areas
of contemporary interest. The structure, coverage, and level of the book are intended
to reflect the requirements of undergraduate courses in public international law,
although it will also be of use on general courses at the masters levels as well as being
of interests to academics and practitioners.
Although structured to form a coherent presentation of international law, each
chapter can be read as a self-contained unit, balancing exposition with argument and
reflecting the distinct perspective of its author(s). No attempt has been made to
harmonize the views expressed or to produce a single 'voice'. Even if this had been
possible, it would have been undesirable. As any teacher-as any lawyer-knows,
opinions are best formed through exposure to competing argument. The chapters in
this volume combine to address international law from a variety of perspectives:
rather than one voice there is a range of voices and a range of opinions. It is to be
hoped that this will be a source of stimulation, since the work as a whole aims to be
more than just a compendium of knowledge. It aims to be a resource of value to all
those interested in probing and testing the international legal enterprise.
On a personal note, I am of course greatly indebted to all those who so readily
agreed to contribute chapters to this work. I am even more indebted to them for the
manner in which they fulfilled their tasks, both in terms of substance and of time. The
pressures of production have borne heavily on all involved and I cannot sufficiently
express my gratitude to those at the Oxford University Press for their role in nurturing
this project through to completion. Indeed, its origins lie in a suggestion made to me
by Michaela Coulthard, and I am immensely grateful to her for her support and
encouragement in getting the project onto and off the starting blocks. That baton was
then assumed by Christina White who guided me towards the last lap. Finally, Claire
Brewer and Helen Adams have coaxed and carried me towards the finishing line.
Many others have supported me on the way, and particularly my colleagues in the
NOTES ON CONTRIBUTORS xxix

Malcolm D Evans, MA, DPhil, is Professor of Public International Law at the Uni-
NOTES ON CONTRIBUTORS versity of Bristol. His areas of special interest are the law of the sea and the inter-
national protection of human rights, and in particular the freedom of religion and the
prevention of torture. His principal publications include 'Religion and International
Ademola Abass, LLB, LLM, PhD, Barrister and Solicitor, is a Lecturer in Public Inter- Law in Europe' (1997) arid (with Professor Rod Morgan) 'Preventing Torture (1998)
national Law, Law of Armed Conflict and Use of Force, Collective Security Law, and andCombating.Torture in Europe (2001).
Law of Trusts at the University of the West of England, Bristol. He recently completed
a PhD degree at the University of Nottingham. He has authored and co-authored Professor Malgosia Fitzmaurice holds a chair of public international law at the
several articles. His specialization includes United Nations Law and International Department of Law, Queen Mary, University of London. Her main interests include
Economic Law. international environmental law and the law of treaties, and she has published widely
on both subjects. She is the secretary of the International Water Resources Committee
Dapo Akande is a Lecturer in Law at the University of Durham. He is a member of the of the International Law Association. In 2001 she delivered The Hague Academy of
International Law Association's Committee on Accountability of International International Law lecture on the topic of international environmental law.
Organizations and has been a Visiting Professor at the University of Miami School of
Law. He has published articles on international organizations and international tri- Hazel Fox QC (Lady), Editor of the International and Comparative Law Quarterly,
bunals in leading journals such as the British Yearbook of International Law, the formerly Director of the British Institute of International and Comparative Law,
European Journal of International Law and the International and Comparative Law member of the Institut de droit international. She was formerly Fellow and Law Tutor
Quarterly. He has also advised and assisted counsel in a wide variety of international and now is a Hon Fellow of Somerville College, University of Oxford, Bencher of
Lincoln's and in practice 4-5 Grays Inn Square, Grays Inn, WCIR 5JP.
law cases before national and international courts.
Christine Gray, MA, PhD, is Reader in International Law at the University of
Ian Brownlie, QC, CBE, FBA, Member of the English Bar. Ian Brownlie is a member
Cambridge. She is author of International Law and the Use of Force and of Judicial
of Blackstone Chambers, Temple. He practises in international tribunals, including
Remedies in International Law as well as of many articles on the use of force.
the International Court, the European Court of Human Rights, and courts of arbitra-
tion. He is a member of International Law Commission (1997), and of the Institut de Christopher Greenwood, CMG, QC, is Professor of International Law at the London
Droit International (1977). School of Economics and a member of Essex Court Chambers practicing in the area
of public international law. He is the author of numerous articles on the laws of war
Antonio Cassese is Professor of International Law at the University of Florence. He is a
and other aspects of international law. Court appearances include the Lockerbie,
member of the Institut de droit international, and has been awarded Law Doctorates
Nuclear Weapons and Kosovo cases in the International Court ofJustice, the Bankovic
honoris causa by the Universities of Rotterdam, Paris X and Geneva. In 2002 he was
case in the European Court of Human Rights, and the Pinochet case in the House of
awarded the Annual Prize of the Academie Universelle des Cultures (Paris) for 'the
Lords.
exceptional importance of his contribution to the promotion of human rights in
Europe and in the world'. HE Judge Rosalyn Higgins, DBE, QC. Judge of the International Court of Justice
(1995- ). Bencher of the Inner Temple. Formerly Professor of International Law at
James Crawford, SC, FBA is Whewell Professor ofInternational Law and Chairman of
the London School of Economics 1981-1995; and Member of the Human Rights
the Faculty Board of Law, University of Cambridge. He was a member of the Inter-
Committee under the International Covenant on Civil and Political Rights, 1985-1995.
national Law Commission from 1992-2001, and in that capacity directed the ILC
work on a Draft Statute for an International Criminal Court (1994) and as its Special Martti Koskenniemi, Professor of International Law, University of Helsinki, Global
Rapporteur on State Responsibility (1997-2001). He is a member of Matrix Cham- Professor of Law, New York University School of Law; Member, International
bers and has an extensive practice before international courts and tribunals. Law Commission. Principal publications: From Apology to Utopia: The Structure of
International Legal Argument (Finnish Lawyers' Publishing Company, Helsinki, 1989),
Eileen Denza was formerly Assistant Lecturer in Law, Bristol University, a Legal
The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960
Adviser to the Foreign and Commonwealth Office and Counsel to the EC Committee
(Cambridge University Press, 2002).
of the House of Lords. Now recycled as Visiting Professor of Law at University College
London, she is author of Diplomatic Law (2nd edn 1998) and of The Intergovernmental Gerhard Loibl, Dr iur, LLB, Chair of International and European Law at the Diplo-
Pillars of the European Union (2002). matic Academy of Vienna and Associate Professor at the University of Vienna. He has
xxx NOTES ON CONTRIBUTORS NOTES ON CONTRIBUTORS xxxi

published widely on subjects of public international and European law, in particular graduate research student at Trinity College, Cambridge, and a Research Associate of
in the area of international environmental and economic law, has participated in the Lauterpacht Research Centre for International Law, University of Cambridge.
numerous international negotiations on behalf of Austria, and is Chairman of the Catherine Redgwell, BA(Hons), LLB, MSc. Catherine is a Reader in Public Inter-
Water Resources Committee of the International Law Association. national Law at the University of Oxford, and Yamani Fellow and Senior Tutor in Law
Vaughan Lowe is Chichele Professor of Public International Law and a Fellow of All at St Peter's College. She has published extensively in the international law field
Souls College, Oxford University. He practices as a Barrister, from Essex Court within the areas of environmental law, energy law and treaty law.
Chambers, London. Dr lain Scobbie LLB(Hons) (Edin), LLB(Cantab), GDIL(ANU), PhD(Cantab), Reader
Robert McCorquodale is Professor of International Law and Human Rights at in International Law, University of Glasgow. He is the author of numerous articles
Nottingham University. He is co-author of one of the leading texts in international which examine diverse matters such as the jurisprudence and practice of the Inter-
law, Cases and Materials on International Law (4th edn, 2003, OUP) and is on the national Court and various aspects of the law of armed conflict, as well as the theory
editorial board of a number of respected academic journals. He also edited of international law.
Self-Determination in International Law (Ashgate, 2000) and Human Rights (Ashgate, Dinah Shelton is Professor of International Law and director of the doctoral program
2003). in international and comparative human rights law at the University of Notre Dame
Campbell McLachlan, Professor of Law, Victoria University of Wellington Law School, Law SchooL She is the author of Remedies in International Human Rights Law as well
New Zealand; LLB(Hons); PhD(Lond); Diploma cum laude (Hague Academy of as several other books and numerous articles on international law.
International Law); Barrister (New Zealand). 1992-2003: Partner, Herbert Smith Henry J Steiner, Jeremiah Smith, Jr Professor of Law at Harvard University, is founder
(Solicitors), London, heading Public International Law Group; Chair, International and director of the Harvard Law School Human Rights Program, and member and
Bar Association Committee on International Litigation; Co-Chair International Law former chair of the University Committee on Human Rights Studies. He has pub-
Association Study Group on Practice and Procedure of International Courts and lished articles on a broad range of human rights topics and is co-author of a leading
Tribunals. coursebook, International Human Rights in Context (2d edn 2000, OUP). Steiner has
John G Merrills, BCL, MA, is Professor of International Law at the University of lectured on human rights subjects in over twenty countries.
Sheffield and currently Dean of the Faculty of Law. He is the author of International Hugh Thirlway is at present Principal Legal Secretary of the International Court of
Dispute Settlement, Human Rights in Europe, Judge Sir Gerald Fitzmaurice and the Justice, a post he previously held but resigned in 1994,when he was appointed Profes-
Discipline of International Law and several other books, as well as numerous articles in sor of International Law at the Graduate Institute of International Studies, Geneva.
law reviews. On retiring from academic teaching, he was invited to resume his former post with
Lord Millett is a Lord of Appeal in Ordinary. As such he is a member of the Appellate the Court. He is the author of two books and numerous articles on various aspects of
Committee of the House of Lords, which is the final Court of Appeal for the United international law.
Kingdom and sits on the Judicial Committee of the Privy Council, which is the final Colin Warbrick, MA, LLB, LLM is Professor of Law in the Law Department, Durham
Court of Appeal for a number of Commonwealth jurisdictions, including New University. His ~nterests are in International Law generally, European Human Rights
Zealand, Mauritius, and the Caribbean territories. and International Criminal Law. He is the co-author (with David Harris and Michael
Stephen C Neff is a Senior Lecturer in International Law at the University of Edin- O'Boyle) of The Law of the European Convention on Human Rights and the co-editor
burgh, specializing in the history of international law. His publications include (with Vaughan Lowe) of The United Nations and the Principles of International Law.
Friends But No Allies: Economic Liberalism and the Law of Nations (1990) .and The Nigel White is Professor of International Organizations and currently Head of the
Rights and Duties of Neutrals: A General History (2000). Law School at the University of Nottingham. He is author of The United Nations
Phoebe N Okowa is Senior Lecturer in Law at Queen Mary, University of London. System: Toward International Justice; Keeping the Peace: The United Nations and the
She is the co-editor of Foundations of Public International Law (OUP) and the author Maintenance of International Peace and Security; and The Law of International Organ-
of State Responsibility for Transboundary Air Pollution in International Law (OUP isations. He is Co-Editor of the Journal of Conflict and Security Law.
2000). Chan aka Wickremasinghe studied law as both an undergraduate and a post-graduate
Simon Olleson, BA(Hons) (Cantab); LLM (NYU); Barrister. Simon Olleson is a at the LSE, and qualified as a solicitor. He is currently a Legal Researcher at the Foreign
xxxii NOTES ON CONTRIBUTORS

and Commonwealth Office. Before this was a lecturer in law at Bristol University,
and prior to that Senior Research Officer at the British Institute of International and ABBREVIATIONS
Comparative Law.
Michael Wood, MA, LLB. Legal Adviser to the Foreign and Commonwealth Office. He
is co-author of The Legal Status of Berlin and has published various articles on inter-
national law topics. AALCC African Asian Legal Consultative Committee
AFP Australian Federal Police
Ralph Zacklin, LLB, LLM, Dr des Sciences Politiques is Assistant Secretary-General for AIA Advanced Informed Agreement
Legal Affairs of the United Nations. He has published a number of books and articles AJIL American Journal of International Law
on issues of public international law and the law of international institutions. He has ASCOBANS Agreement on the Conservation of Small Cetaceans of
also lectured at the Hague Academy of International Law and several universities and the Baltic and North Seas
institutes in Europe, Africa, and the Americas. ASEAN Association of Southeast Asian Nations
ATCA Alien Tort Claim Act (USA)
AU African Union
BITs Bilateral Investment Treaties
BYIL British Yearbook of International Law
CBD Conservation of Biological Diversity
CCAMLR Convention on the Conservation of Antarctic Marine
Living Resources
CEDAW Convention on the Elimination of All Forms of
Discrimination Against Women
CERD International Convention on the Elimination of All
Forms of Racial Discrimination
CESCR Committee on Economic, Social and Cultural Rights
CFC Convention on Fisheries and Conservation of the
Living Resources of the High Seas
CFCs chlorofluorocarbons
CIS Confederation of Independent States
CITES Convention on International Trade in Endangered
Species
CLC . Convention on Civil Liability for Oil Pollution
Damage
CMLR Common Market Law Review
COP Conference of the Parties
CRC Convention on the Rights of the Child
CSC Continental Shelf Convention
CSCE Conference on Security and Cooperation in Europe
DEA Drugs Enforcement Agency
DRC Democratic Republic of the Congo
DSB Dispute Settlement Body
DSU Dispute Settlement Understanding
EAC East African Community
xxxiv ABBREVIATIONS ABBREVIATIONS xxxv

European Bank for Reconstruction and Development ICESCR International Committee on Economic, Social and
EBRD·
(United Nations) Economic Commission for Europe Cultural Rights
ECE
European Convention on Human Rights ICJ International Court of Justice
ECHR
European Court of Justice ICLQ International and Comparative Law Quarterly
ECJ
Economic Community of West African States ICOMOS International Council on Monuments and Sites
ECOMOG
Monitoring Group ICBP International Council for Bird Preservation
Economic and Social Council ICRC International Committee of the Red Cross
ECOSOC
Economic Community of West African States ICSID International Centre for the Settlement of Investment
ECOWAS
European Convention on State Immunity Disputes
ECSI
European Court of Human Rights ICTR International Criminal Tribunal for Rwanda
ECtHR
European Economic Community ICTY International Criminal Tribunal for the Former
EEC
Exclusive Economic Zone Yugoslavia
EEZ
Exclusive Fishing Zone IDA International Development Organization
EFZ
European Human Rights Review IFAD International Fund for Agricultural Development
EHRR
European Journal of International Law IFC International Finance Corporation
EJIL
Environmental Modification Treaty IGAD Intergovernmental Authority on Drought and
ENMOD
European Company for the Financing of Railroad Development
EUROFIMA
Rolling Stock IGO Inter-Governmental Organization
Food and Agriculture Organization IHRR International Human Rights Review
FAO
Financial Action Task Force ILA International Law Association
FATF
Framework Convention on Climate Change ILC International Law Commission
FCCC
Friendship, Commerce and Navigation (Treaties) ILM International Legal Materials
FCN
Foreign and Commonwealth Office ILO International Labour Organization
FCO
female genital mutilation ILR International Law Reports
FGM
Former Republic of Yugoslavia IMF International Monetary Fund
FRY
Foreign Sovereign Immunities Act IMO International Maritime Organization
FSIA
General Assembly INGOs International Non-Governmental Organizations
GA
General Agreements to Borrow IPCC Intergovernmental Panel on Climate Change
GAB
General Agreement on Trade in Services Iran-USCTR Iran-US Claims Tribunal Reports
GATS
General Agreement on Tariffs and Trade ISA International Seabed Authority
GATT
Global Environmental Facility ITC International Tin Council
GEF
High Commissioner for Human Rights ITLOS International Tribunal for the Law of the Sea
HCHR
Heavily Indebted Poor Countries ITO International Trade Organization
HIPC
Human Rights Commission ITU International Telecommunications Union
HRC
Human Rights Law Journal IUCN International Union for the Conservation of Nature
HRLJ
High Seas Convention IWRB International Waterfowl and Wetlands Research Bureau
HSC
Inter-American Commission on Human Rights LMOs Living Modified Organisms
IACHR
International Atomic Energy Authority LNTS League of Nations Treaty Series
IAEA
International Bank for Reconstruction and LOSC Law of the Sea Convention
IBRD
Development (World Bank) LRTAP Long-Range Transboundary Air Pollution
International Civil Aviation Organization MAl Multilateral Agreement on Investment
ICAO
International Criminal Court MARPOL International-Convention for the Prevention of
ICC
International Covenant on Civil and Political Rights Pollution from Ships
ICCPR
xxxvi ABBREVIATIONS ABBREVIATIONS xxxvii

Multilateral Investment Guarantee Agency Fishstocks and Highly Migratory Species (Straddling
MIGA
Convention on the Conservation of Migratory Species Stocks Convention)
MSC
of Wild Animals SWAPO South West Africa Peoples' Organization
New Arrangements to Borrow TAC Total allowable catch
NAB
North Atlantic Fisheries Organization TPRM Trade Policy Review Mechanism
NAFO
North American ~ree Trade Agreement TRAFFIC Trade Records Analysis of Flora and Fauna in
NAFTA
North Atlantic Treaty Organization Commerce
NATO
Non-Governmental Organizations TRIMs Trade-Related Investment Measures
NGOs
Netherlands Yearbook of International Law TRIPS Agreement on Trade-Related Aspects of Intellectual
NYBIL
Organization of Arab Petroleum Exporting Countries Property Rights
OAPEC
Organization of American States TSC Territorial Sea and Contiguous Zone Convention
OAS
Organization of American States Treaty Series UAE United Arab Emirates
OASTS
Organization of African Unity UDHR Unilateral Declaration on Human Rights
OAU
Ocean Development and International Law UEMO Union Economique de Monetaire Ouest-Africaine
ODIL
Organization for Economic Cooperation and UKMIL United Kingdom Materials on International Law
OECD
Development UKTS United Kingdom Treaty Series
Organization of East Caribbean States UNAMIR United Nations Assistance Mission for Rwanda
OECS
Organization for European Economic Cooperation UNAMSIL United Nations Mission in Sierra Leone
OEEC
United Nations Operation in the Congo UNAT United Nations Administrative Tribunal
ONUC
United Nations Observer Group in Central America UNCAT United Nations Convention Against Torture and Other
ONUCA
Organization of Petroleum Exporting Countries Cruel, Inhuman or Degrading Treatment or Punishment
OPEC
Organization for Security and Cooperation in Europe UNCC United Nations Compensation Commission
OSCE
Convention for the Protection of the Marine UNCITRAL United Nations Commission on International Trade
OSPAR
Environment of the North-East Atlantic Law
Permanent Court of International Justice UNCLOS United Nations Conference on the Law of the Sea
PCU
Popular Front for the Liberation of Palestine UNCTAD United Nations Conference on Trade and Development
PFLP
Palestine Liberation Organization UNDP United Nations Development Programme
PLO
Persistent Organic Pollutants UNEF United Nations Emergency Force
POPs
Prisoner of War UNEP United Nations Environment Programme
POW
Recueil des cours de l'Academie de droit international UNESCO United Nations Educational, Scientific and Cultural
Recueil des Cours
Regional Fisheries Organizations Organization
RFOs
Revue General de Droit International Public UNGA United Nations General Assembly
RGDIP
Reports of International Arbitral Awards UNICEF United Nations International Children's Economic
.RIAA
South African Development Community Foundation
SADC
Sea-Bed Disputes Chamber UNIDO United Nations Industrial Development Organization
SBDC
Security Council UNHCR United Nations High Commissioner for Refugees
SC
Special Drawing Rights UNITA Uniao Nacional para a Independencia Total de Angola
SDR
State Immunity Act UNMIK United Nations Mission in Kosovo
SIA
Sanitary and Phytosanitary Measures UNOSOM United Nations Operation in Somalia
SPS
Straddling Stocks Agreement UNPROFOR United Nations Protection Force
SSA
Agreement for the Implementation of the Provisions of UNTAET United Nations Transitional Administration in East
SSC
the UN Convention on the Law of the Sea relating Timor
to the Conservation and Management of Straddling UNTS United Nations Treaty Series
xxxviii ABBREVIATIONS

UNYB United Nations Yearbook


UPU Universal Postal Union TABLE OF INTERNATIONAL
United States Foreign Sovereign Immunities Act
USFSlA
Vienna Convention on Consular Relations
INSTRUMENTS
VCCR
VCDR Vienna Convention on Diplomatic Relations
African Charter on Human and Peoples Rights Environment of the North-East Atlantic
VCLT Vienna Convention on the Law of Treaties ... 160,161-2 ... 665
WHC World Heritage Convention Agreement Establishing the Common Fund for Convention on Access to Information, Public
WIPO World Intellectual Property Organization Commodities ... 710 Participation in Environmental Decision-
World Meteorological Organization Agreement on Sanitary and Phytosanitary Making, and Access to Justice in
WMO Measures (SPS) Environmental Matters. .. 660
WTO World Trade Organization Convention on Biological Diversity. .. 538, 658,
Art.3 ... 284
WWF World Wildlife Fund . 659,660,661,662,663,665,666,682-3
Agreement on Straddling Stocks and Highly
YBILC Yearbook of the International Law Commission Migratory Species. .. 653 Art.22 ... 166
YIHL Yearbook of International Humanitarian Law Agreement on Trade Related Intellectual Property Biosafety Protocol ... 164
Rights (TRIPS) . .. 704-5 Cartagena Protocol on Living Modified
American Convention on Human Rights ... Organisms ... 666,676-7
160,162,169,310 Convention on Civil Liability for Damage
ArtA(4) ... 193 Resulting from Activities Dangerous for the
Art.27 ... 160 Environment. .. 659
Antarctic Treaty (1959) ... 169 Convention on Civil Liability for Oil Pollution
Damage ... 669
Protocol on Environmental Protection ...
658,667 Convention on Conventional Weapons 1981 ...
805
Arab Convention for the Suppression of
Terrorism. .. 751 Convention on Early Notification of a Nuclear
Accident or Radiological Emergency ...
674
Barcelona Convention for the Protection of the
Convention on Environmental Assessment in a
Mediterranean Sea against Pollution ...
Transboundary Context. .. 660
668
Convention on Fishing and Conservation of the
Basel Convention on the Transboundary
Living Resources of the High Seas (CFC)
Movement of Hazardous Wastes and their
... 652
Disposal ... 663,675
Convention on International Trade in
Biological Diversity Convention see Convention
Endangered Species ... 164,680-1
on Biological Diversity
Convention on Long-Range Transboundary Air
Bonn Convention on Migratory Species of Wild
Pollution ... 659,660,664-5,671
Animals ... 169,317,681-2
Convention on Nuclear Safety ... 674
Brussels Convention for the Unification of
Certain Rules concerning the Immunities of Convention on Special Missions. .. 388,
Government Vessels ... 361 402-3
Art.2 ... 402
Chemical Weapons Convention 1993 ... 805 Art.3 ... 402
Cobden-Chevalier Treaty (1860) ... 45 Art.l2 ... 402
Convention against Torture ... 317,364,419 Art.20(1)(e) ... 402
Art.l(1) ... 749 Art.21 ... 403
Convention Concerning Employment of Women ArtAI ... 402
During the Night (1919) ... 187 ArtA7 ... 402
Art.I-Art.3 187 Convention on the Conservation of Antarctic
Convention Concerning the Protection of the Marine Living Resources ... 661,684
World Cultural and Natural Heritage ... Convention on the Conservation of Migratory
659,679-80 Species of Wild Animals ... 169,317,
Convention for the Protection of the 681-2
TABLE OF INTERNATIONAL INSTRUMENTS
TABLE OF INTERNATIONAL INSTRUMENTS xli
xl
Art.6(20) ... 405 General Act of the Brussels Conference. .. 43
Convention on the Establishment of an
Art.62(3) ... 651 Art.6(22) ... 405 General Agreement on Tariffs and Trade (GATT)
International Fund for Compensation for
Art.29 ... 290 ... 164,700,701-3
Oil Pollution Damage. .. 669 Art.63 ... 651,653
Convention on the Law of the Sea. .. 26, 63, Convention on the Protection of the Marine General Agreement on Trade in Services (GATS)
Art.63(4) .,. 645
164,284,533,538,540,543,625-54,659, Environment of the Baltic Sea (Helsinki ... 704
Art.64 ... 651,653
662,667-8 1992) . " 182 Geneva Convention on the Continental Shelf
Art.65 ... 651 (1958) ... 123,126,135
Art.2(2) ... 630 Convention on the Protection of the Marine
Art.66 ... 651 Environment of the North-east Atlantic Art.6 ... 135
Art.3 ... 630 Art.67 ... 651 ... 668 Geneva Conventions on humanitarian law ...
Art.5 .,. 626 Art69 .. , 651 Convention on the Rights of the Child. .. 317 122,160-1,163,317-18,728,790,792-802,
Art.6 ... 648 Art.70 ... 651 806,809-21
Art.45 ... 319
Art.7 .. , 627 Art.73 ... 646 Additional Protocol I ... 790,795,808,811,
Convention on the Safety of UN and Associated
Art.7(1) ... 627 Art.74 ... 140 Personnel. .. 792 817,820
Art.7(4) .. , 627 Art76 ... 643 Convention on the Suppression and Punishment Art.1(4) ... 793,796
Art.7(5) ... 627 Art.76(8) ... 643 of the Crime of Apartheid. .. 163 Art.5 ... 820
Art.8(2) ... 630 Art.77(4) ... 642 Convention on Wetlands of International Art.44 ... 795
Art.lO ... 627 Art.82 ... 643 Importance (Ramsar Convention) ... 661, Art.44(3) ... 795-6
Art10(6) ... 628 662,678-9 Art.51(2) ... 797
Art.83 ... 140
Art.14 ... 626 Convention Relating to Intervention on the High Art.51(5){a) '" 804
Art.87 ... 637
Seas in Cases of Oil Pollution Casualties
Art.15 ... 648 Art.94(1) .. , 638 Art.52(2) ... 797-8
... 670
Art.18 ... 633 Art.99 ... 641 Art.52(3) ... 798
Covenant of the League of Nations
Art.19(l) ... 633 Art.l01(l) .. , 639 Art.53 ... 801
Art.14 ... 560
Art.19(2) ... 633,634,635 Art.107 ... 638 Art.55 ... 801
Art.21 .. , 634 Art.l08 ... 641 Declaration of Paris (1856) ... 44 Art.56 ... 801-2
Art21(2) ... 634 Art.l09 .. , 640 Declaration of St Petersburg (1868) ... 44,803 Art.57 ... 800
Art24(1) ... 634 Art.IIO ... 641 Art.58 ... 801
Art.25(3) ... 634 Art1l0(l) ... 638 Environmental Modification Treaty. .. 805 Art.90 ... 821
Art.27 ... 634 ArtllO(5) ... 638 European Convention on Human Rights. " 99, Additional Protocol II ... 750,815
Art27(l) ... 631 Art.lIl . .. 639 160,194,310,439-40,462,772,790 Art.1(l) ... 815
Art.27(2) ... 631 Art.1l6(b) ... 651 Art.10(1)-(2) ... 98 Art.l(2) ... 815
Art.28 ... 632 Art.1l8 ... 651 Art.12 ... 161 Art.2 ... 792
Art.30 ... 632 Art.1l9 ... 651 Art.l5 ... 160 Art.3 ... 814-15
Art.33 .. , 632 Art.12l(3) ... 626 Art.38 ... 534 Art.3(2) ... 815
Art.35(c) ... 636 Art.192 .. , 658 Art.64 ... 194 First ... 811
Art.36 ... 636 Art.31I ... 166 First Additional Protocol. .. 432 Fourth ... 811,812-13
Art.38(l) ... 636 Convention on the Prevention and punishment European Convention on State Immunity ... Art.33(l) ... 750
Art.39 ... 637 of Crimes against Internationally Protected 361,362,368,370 Gas Protocol 1925 . " 805, 806
Art.42(l) ... 637 Persons. .. 26, 388 Art.4 ... 367 POW Convention. .. 809-11
Art.45 ... 636 Convention on the Prevention and Punishment Art.ll ... 370 Art.4 . .. 794, 795
of the Crime of Genocide (1948) ... 91,
Art.47 ... 629 European Convention on the Recognition of the Art.118 ... 810
163,191-2,447,742-4
Art.52 ... 637 Legal Personality of International NGOs Second ... 811
Art.5 ... 420 ... 319
Art.53 ... 637 Convention on the Prevention of Pollution from Third ... 791,819
European Social Charter ... 162
Art.56 ... 645 Ships. .. 665, 668, 669 Geneva Conventions on the Law of the Sea ...
European Union Treaty. .. 423, 434 624
Art.56(3) ... 645 Convention on the Privileges and Immunities of
the Specialized Agencies. .. 287, 388 Art.6 ... 310
Art.57 ... 645
Convention on the Privileges and Immunities of Art.234 . .. 313 Hague Convention (1899) ... 535,554,790,
Art.59 ... 645
the United Nations (1946) ... 287,388, 804
Art.61(l) .. , 651
405,582 Framework Convention on Climate Change ... Hague Convention (1907) ... 536,790,794,
Art.61(2) ... 651
660,661,662,663,665,666,672-3 804
Art.61(3) ... 651 Art2(2) . .. 288
Art.5(18)(a) .. , 405 Art.3{l) ... 665 Hague Conventions (1907) ... 813-14
Art.62(1) .. , 651
Art.5(19) ... 405 Kyoto Protocol. .. 666, 673 Helsinki Final Act (1975) . .. 175
Art.62(2) . ~. 651
xlii TABLE OF INTERNATIONAL INSTRUMENTS TABLE OF INTERNATIONAL INSTRUMENTS xliii

Inter-American Convention on Human Rights Montevideo Convention on the Rights and Art.38(l)(d) ... 132, 133,320 Art.2(4) ... 64,78,99,507,520,589,590,
see American Convention on Human Rights Duties of States Art.38(2) . '. 542, 569 591-7,599,618,746
International Cocoa Agreement. " 709 Art.l . .. 220-1 Art.38(5) . " 569 Art.2(6) ... 152,591
International Coffee Agreement. .. 708, 709 Montreal Convention for the Suppression of ArtAl ... 574,575 Art.2(7) ... 97,294,305,521,596,607
International Convention against the Taking of Unlawful Acts against the Safety of Civil ArtA( 1) . .. 251
ArtA6 ... 565
Hostages (1979) ... 344 Aviation
Art.59 ... 120,579,580,581 ArtA(2) ... 251
International Convention for the Prevention of Art.1 . .. 343-4
Art.60 . .. 579, 580 Art.7 ... 291
Pollution of the Sea by Oil . " 660
Art.61 ... 579 Art.7(l) ... 291
International Convention for the Regulation of Nordic Environmental Protection Convention
Whaling. .. 684 Art.62 ... 577,578 Art.7(2) ... 291
Art.3 ... 667
International Convention for the Suppression of Art.63 ... 577 Art.9 ... 293
North American Free Trade Agreement (NAFTA)
the Financing of Terrorism . '. 750-1 .'. 165,461 Art.65 ... 541,583 Art.1O ... 283,294
Internatiomil Convention on Elimination of Art. 104 ... 165 Art.68 ... 584 Art.ll ... 283
All Forms of Racial Discrimination Art.2005A . .. 165 Art.12 ... 283,294,550
Art.75 ... 309
(1965) Art.13 ... 283
Statute of the International Criminal Court ...
Art.20 ... 193 Oil Pollution Preparedness and Response Art. 14 ... 283,549
363,407-8,731
International Covenant on Civil and Political Convention. .. 670 Art.18 ... 294
Art.5(1) ... 731
Rights (ICCPR) ... 160, 161, 195,215,294, Oslo Dumping Convention. .. 668
Art.5(2) ... 732 Art.20 ... 293
767,772,779,783
Ottawa Convention (1998) ... 790,805 Art.23 ... 294
Art.1 ... 315 Art.6 ... 744
Art.9 ... 739 Art.24 ... 294,607,611
Art.2 ... 780 Pact of Paris (1928) ... 28,50-1
Art.12(2) ... 732 Art.25 ... 97,283,294,518,525
ArtA ... 160 Paris Convention for the Prevention of Marine
Art.13 ... 733 Art.27 ... 607
Art.12 ... 432 Pollution from Land-Based Sources ...
Art.27(3) ... 137
Art.18(3) ... 161 668 Art.15 ... 733
Art.33 ... 530
Art.28 ... 767 Paris Convention on Third Party Liability in the Art.16 ... 733
Field of Nuclear Energy ... 674 Art.33(l) ... 549
ArtAO ... 767,785 Art.17 ... 732
Peace of Utrecht ... 48 Art.34 ... 549
ArtAO(l) ... 779 Art.25 ... 736
Peace of Westphalia (1648) ... 38,48,90, 138, Art.36 (1 ) . .. 549
Optional Protocol ... 768 Art.27(1) ... 737-8
210,359 Art.36(3) ... 551
International Covenant on Economic, Social and Art.27(2)(b) ... 736
Cultural Rights (ICESCR) ... 162,215 Porter Convention ... 47 Art.39 . .. 523, 607, 608
Art.28 ... 737
Art.1 ... 315 ArtAO . .. 607, 608
Statute of the Permanent International Court of
Art.2 ... 779 Ramsar Convention on Wetlands of International ArtAl ... 507,518,523,524,607,608,615,
Justice. .. 136, 569
Importance ... 661,662,678-9 763
International Labour Organization Constitution Art.36(2) ... 561
Rome Convention on the Suppression of ArtA2 . .. 99,607,608,763
Art.19(6) ... 284 Art.38 ... 138
Unlawful Acts against the Safety of ArtA3 . .. 608, 763
International Labour Organization Convention Maritime Navigation. .. 639 Art.38(l)(c) ... 213
No 29 ... 156 ArtA8 ... 97
Rotterdam Convention on Prior Informed Stockholm Convention on Conciliation and
International Labour Organization Declaration Consent (1988) ... 169,663,676 Art.51 ... 22,97,99,589,599-606,618
Arbitration. .. 540
of Fundamental Rights of Workers ... 162 Art.52(2) ... 547,549
Stockholm Convention on Persistent Organic
International Tin Agreement. .. 709 Statute of the International Court of Justice ... Pollutants ... 676 Art.53 ... 518,614,615,616,617
International Tropical Timber Agreement ... 146,147,541,566 Art.53(1) ... 507
661, 709 Art.17 ... 562 Art.55 ... 660
UNESCO Constitution
Art.24 ... 562 ArtA(4) ... 284 Art.57 ... 292
Jay Treaty (1794) ... 45,539 Art.62 ... 294
Art.35 ... 567 Art.8 ... 284
Art.35(l)-(2) ... 567 Art.63 ... 292
Law of the Sea Convention see Convention on the United Nations Charter. .. 6, 22, 28, 52-3,
Art.36 ... 569,57l 54,152,162,163,169,214,252,309,449, Art.68 ... 764
Law of the Sea
Art.36(2) ... 541,569,570 462,506,515,554,566,590-1,727,760, Art.77 ... 295
London (Dumping) Convention. .. 659, 660,
Art.36(6) ... 541, 57l, 572 762-3 Art.92 ... 560
668
Art.38 ... 62,119,120-34,136,143,314,560, Art.1 ... 89,291,548,590,660 Art.93(2) . '. 567
Manila Declaration. .. 541 566,567,648 Art.2 ... 14 Art.94(l) ... 567,568
Manila Declaration on the Peaceful Settlement of Art.38(1) ... 542 Art.2(l) ... 232 Art.94(2) . '. 568
International Disputes. .. 530-1 Art.38(l)(c) ... 73,491 Art.2(3) ... 530,549,592 Art.96(l) ... 582
xliv TABLE OF INTERNATIONAL INSTRUMENTS TABLE OF INTERNATIONAL INSTRUMENTS xlv

Art.96(2) ... 582-3 Art.37(3) ...


396 Art.34 ... 122, 184 Art.58 ... 182
Art.98 . .. 550, 551 Art.38(1) ...
396 Art.35 ... 184 Art.59 ... 182, 183
Art.99 . .. 550, 551 Art.39(2) ...
396,399 Art.36 ... 184 Art.60 ... 196,197,451,490,509-10
Art.lOO : .. 295 ArtAI (1) . ..
394 Art.37 ... 184 Art.61 ... 198
Art.103 ... 164,407,518,524,525 ArtAl(2) ... 395 Art.38 ... 176,184 Art.62 ... 198, 199
Art104 ... 273 ArtAl(3) ... 395 Art.39 ... 181 Art.63 ... 142
Art.105 ... 286 ArtA2 ... 395 ArtAO ... 181 Art.64 ... 137, 151
Universal Declaration of Human Rights ... 169, Vienna Convention on Succession of States in ArtA1 ... 137, 181, 182 Art.69(2) ... 469
662 Respect of Treaties (1978) ... 175-6 ArtA3 ... 176 Art.69(4) ... 180
Vienna Convention on the Law of Treaties (1969) ArtA6 ... 180,417 Art.71 ... 181
Versailles Treaty (1919) ... 50,736 ... 122,123,135,137,150,153,157,161, Art.73 ... 176
ArtA7 ... 178,180
Vienna Convention Against Illicit Traffic in 163,174,175,176,178,182,194,200,451, Art. 746 . .. 454
ArtA8 ... 180
Narcotic Drugs and Psychotropic 538
ArtA9 ... 181 Vienna Convention on the Law of Treaties
Substances ... 641 Art.l .. , 176 between States and International
Vienna Convention for the Protection of the Art.50 ... 181
Art.2(I)(a) ... 176 Organizations (1986) ... 153, 175
Ozone Layer ... 671-2 Art.51 ... 181
Art.2(1)(b) ... 179
Montreal Protocol ... 164,538,666,667,672 Art.52 ... 181 World Health Organization Constitution
Art.2(2) ... 174
Art.2 ... 97 Art.53 ... 146, 150, 153 Art.22 ... 283
Art.2(d) ... 191
Vienna Convention on a Uniform Law for the Art.54 ... 182 World Trade Organization Agreement ... 532,
Sale of Goods ... 15 Art.3(b) ... 176
Art.57 ... 182 700
Vienna Convention on Civil Liability for Nuclear Art.3(c) ... 176
Damage ... 674 Art.4 ... 176
Vienna Convention on Consular Relations ... Art.5 ... 280
388,397-8 Art.7 ... 177,454
Art.5 ... 397 Art.7(1) ... 177
Art36 . " 418,431,432,466 Art.7(2) ... 177
ArtA1 '" 398 Art.8 ... 177,178
ArtA3 ... 398 Art.ll ... 178
Art.73. " 398 Art.12 ... 178
Vienna Convention on Diplomatic Relations ... Art. 14 ... 179
135,388,391-6
Art.14(2) ... 180
Art.2 ... 392
Art.15 ... 179
Art.3 ... 392
Art.18 ... 178
Art.7 ... 392
Art.19 ... 192
Art.9 ... 393
Art.19(c) ... 192, 195
Art.l0 ... 392
Art.22 ... 393 Art.20(4) ... 192
Art.22(2) ... 393 Art.20(5) . .. 192
Art.22(3) ... 373 Art.24( 4) . .. 178
Art.24 ... 394 Art.25 ... 178
Art.27 ... 394 Art.26 ... 122, 183
Art.29 ... 395 Art.27 ... 417
Art.31 '" 395 Art.30 ... 183
Art.31(1) ... 399 Art.31 ... 186,187,189,280
Art.32 ... 396 Art.31(l) ... 186
Art.32(1) ... 396 Art.31(2) ... 186
Art.33(2) . .. 396 Art.31(3) ... 187
Art.33(4) ... 396 Art.31(3)(b) . " 281
Art.37(1) ... 395 Art.32 ... 188,280
Art.37(2) ... 396 Art.33 ... 190
TABLE OF INTERNATIONAL CASES xlvii

German Interests in Polish Upper Silesia, Merits, Lauder v Czech Republic. .. 18,20
Judgment No 7 (1926) PCIJ Ser A No 7 ...
TABLE OF INTERNATIONAL CASES 498
Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South
Gulf of Maine case (1984) ... 585 West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory
Aegean Sea Continental Shelf, Judgment, Ie} Conditions of Admission of a State to Haya de la Torre case. .. 129 Opinion, ICJ Reports 1971 p16 ... 137,281,
Reports 1978 p3 ... 532 Membership of the United Nations (Article 4 Heathrow Airport case (1992-1993) 102 ILR 216 316,584
Aerial Incident of ... 3 July 1988, Orderof22 of the Charter), Advisory Opinion (1948) ICJ ... 540 Legality of the Threat or Use of Nuclear Weapons,
February 1996, ICJ Reports 1996 p9 ... 532 Reports 1947-1948 p45 ... 251 Advisory Opinion, Ie} Reports 1996 p226 ...
Corfu Channel, Merits, Judgment, ICJ Reports I Congreso del Partido [1983]1 AC 244; [1981] 2 95,104,126,127,130,463,591,593,600
Ahlstrom Osakyhtio v CommIssion [1988] ECR
1949 p4 ... 459--60,468,594,633,635--6 All ER 1064 (HL); 64 ILR 307 ... 361,368,369 Legality of the Use by a State of Nuclear
5193 ... 339
Air Services Agreement case (1978) 54 ILR 303 Costa v ENEL Case 6/64 [1964] ECR 585 ... Interhandel, Preliminary Objections, Judgment, Weapons in Armed Conflict (Request by
... 507,508,519 419 ICJ Reports 1959 p6 ... 494,495--6 WHO), Advisory Opinion, ICJ Reports 1996
Cumaraswamy case. .. 406, 446-7 International Responsibility for the Promulgation p66 . .. 280, 284, 292
Akayesu case. .. 744
and Enforcement of Laws in Violation of the Legality of Use of Force (Yugoslavia v Belgium),
Al-Adsani v UK, Judgment 21 November 2001 Convention, Advisory Opinion, OC-14/94 Ser
East Timor Case (Portugal v Australia), Provisional Measures, Order of2 June 1999,
ECtHR; 34 EHRR 11 . .. 382, 383 A No 14; 116 ILR 320 ... 417-18
Judgment, ICJ Reports 1995 p90 . .. 308, 492, ICJ Reports 1999 p124 ... 27,595
Application of the Convention on the Prevention International Tin Council cases ... 8,12,274-5,
517 Letelier and Moffat (Chile/United States) 88 ILR
and Punishment of the Crime of Genocide, 289,427
Effects of Awards of Compensation made by the . " 727; (1992) 31 ILM 1 ... 536
Provisional Measures, Order of8 April 1993,
United Nations Administrative Tribunal, Interpretation of the Convention of 1919 Lockerbie cases ... 27,344,525,577,607
ICJ Reports 1993 p3 . .. 607
Advisory Opinion, ICJ Reports 1954 p47 ... Concerning Employment of Women During Loizidou v Turkey (Preliminary Objections),
Arrest Warrant of 11 April 2000 (Democratic the Night, Advisory Opinion (1932) PCIJ Ser
292 Judgment 23 March 1995, Ser A, No 310 ...
Republic of Congo v Belgium), Preliminary NB No 50 p365 . .. 187, 188
Objections and Merits, Judgment, ICJ Reports Elettronica Sicula SpA (ELSI), Judgment, Ie} 194,462
Reports 1989 p15 ... 458,487,496,499 Island of Palmas case (1928) 2 RIAA 829 ... 539 'Lotus' Judgment No 9 (1927) pcn Ser A No 10
2002 p3 ... 133, 154,362,371,383,400,408,
410,448 Elmi v Australia, UN Committee Against Torture pI8-19 ... 334-5,338,346
(2000) 7 IHRR 603 ... 300 Japan-Taxes on Alcoholic Beverages, Report of
Asylum, Judgment, ICJ Reports 1950, p266 ... the Appeals Body (1 November 1996) DSR
129 Empire ofIran case 45 ILR 57 . .. 366, 369 McElhinney v Ireland and UK, Judgment 21
1996: I p108 ... 94 November 2001 ECtHR; 34 EHRR 13 ... 382
Enigster case 18 ILR 542 ... 741-2 Jurisdiction of the Courts of Danzig, Advisory
Baccus SRL v Servicio Nacional del Trigo [1957] Maritime Delimitation and Territorial Questions
Exchange of Greek and Turkish Populations, Opinion (1928) PCIJ Ser B No 15 p17-18 ...
1 QB 438; 28 ILR 160 . .. 260 between Qatar and Bahrain, Jurisdiction and
Advisory Opinion (1925) PCl] Ser B No 10 304
Bananas case. .. 706 Admissibility, ICJ Reports 1995, p6 ... 19,
... 417
188-9,649
Bankovic v Belgium and others (2001) 123 ILR 94 Kahan v Pakistan Federation [1951] 2 KB 1003;
... 790 Factory at Chorz6w, Jurisdiction, Judgment No 8 18 ILR 210 ... 360 Maritime Delimitation in the Area between
(1927) PCIJ Ser A No 9 ... 466,467,498 Greenland and Jan Mayen, Judgment, Ie}
Barcelona Traction, Light and Power Co Ltd, Kasikili/Sedudu Island (Botswana/Namibia), Reports 1993 p316 ... 649
Second Phase, Judgment, ICJ Reports 1970 p3 Fisheries, Judgment, ICJ Reports 1951 p116 ... Judgment, Ie} Reports 1999 p1045 ... 176,
... 130-1,140,149,340,469,476,477-8,481, 129-30,626-7,628 187--8 Mavrommatis Palestine Concessions, Judgment
483-4,486-7,489,491,516 No 2, (1924) PCn Ser A No 2 p19 ... 190,477
Fisheries Jurisdiction (UK v Iceland), Jurisdiction Krstic case . .. 744
Beef Hormones case ... 706-7 of the Court, Judgment, ICJ Reports 1973 p3 Military and Paramilitary Activities in and
Kuwait Airways Corp v Iraqi Airways Co [1995] against Nicaragua (Nicaragua v USA), Merits,
Bering Fur Seals Fisheries Arbitration (Great ... 181,198-9,577,630 3 All ER 694 (HL); 103 ILR 340 ... 368,379 Judgment, ICJ Reports 1986 p14 ... 109,127,
Britain v US) (1893) Moore's International Fisheries Jurisdiction (UK v Iceland), Merits, Kuwait Airways Corp v Iraqi Airways Co (No 2) 134,141,151,154-5,156,179,456,457,475,
Arbitrations 755 ... 677, 683 Judgment, ICJ Reports 1974 p3 ... 625,644 [2001] 1 WLR 439 ... 377,379--80,381 565,591,593,594,596,598,600,601,602,
Brazilian Loans, Judgment No 15 (1929) PCl] Ser Flegenheimer Claim (1958) 25 ILR 148-150 ... Kuwait Airways Corp v Iraqi Airways Co (No 2) 605--6,747
A No 21 ... 416,438 481 [2001] 1 WLR 439; [2002] UKHL 19 ... 437 Monetary Gold Removed from Rome in 1943,
Brunner v European Union Treaty [1994] 1 Fogarty v UK, Judgment 21 November 2001 Judgment, IC] Reports 1954 p19 ... 492,572,
CMLR57 ... 423 ECtHR; 34 EHRR 12 . .. 382 La Bretagne case (1986) 90 RGDIP 713 ... 540 581
Franco-Canadian Fisheries Arbitration (1986) 90 LaGrand (Germany v USA), Merits, Judgment,
Caire (1929) 5 RIAA 516 ... 459 RGDIP 713 ... 646 ICJ Reports 2001 ... 418,466,574,586 North Sea Continental Shelf, Judgment, Ie}
Certain Expenses of the United Nations, Advisory Frontier Dispute (Burkina Faso v Mali), Land, Island and Maritime Boundary Dispute Reports 1969 p3 ... 123, 125, 126, 135,222,
Opinion, ICJ Reports 1962 p151 ... 278,282, Judgment, Ie} Reports 1986 p554 ... 215, (EI Salvador/Honduras), Application to 532,577,585,625,642,643
283,285,611 585 Intervene, Judgment, ICJ Reports 1990 p92 Nottebohm case, Second Phase, Judgment, IC]
Certain Norwegian Loans, Judgment, Ie} Reports ... 578,579,628 Reports 1955 p4 ... 341,416-17,476,480-1,
1957 p9 .. , 498, 570 Gabcikovo-Nagymaros Project (Hungary/ Land and Maritime Boundary between 481-2,484,487
Certain Phosphate Lands in Nauru (Nauru v Slovakia), Judgment, ICJ Reports 1977 p7 ... Cameroon and Nigeria, Application to Nuclear Tests (Australia v France), Judgment, IC]
Australia), Preliminary Objections, Judgment, 176,183-4,196-7,198,199,451,464,512,542, Intervene, Order of21 October 1999, ICJ Reports 1974, p253 ... 139-40,175,577,578,
Ie} Reports 1992 p240 ... 577 666 Reports 1999 p1029 . " 578,649 666
xlviii TABLE OF INTERNATIONAL CASES

Nuremberg Judgment (1948) ... 307 Santa Elena v Costa Rica, ICSID Final Award 17
February 2000 . .. 312
Passage through the Great Belt, Provisional Serbian Loans, Judgment No 14 (1929) PCIJ Ser
TABLE OF STATUTES BY COUNTRY
Measures, Order of ... 29 July 1991, ICJ A No 20 ... 416,438
Reports 1991 p12 ... 576,634
Shearson Lehman Bros v Maclaine Watson & Co
Philippine Admiral, The [1977] AC 373; [1976] 1 (1987) 77 ILR 107 ... 289 UK LEGISLATION US LEGISLATION
All ER 78; 64 ILR 90 . .. 360
Sokolovic case . .. 748
Prosecutor v Anto Furundiija ... 748,749 Anti-Terrorism, Crime and Security Act 2001 Alien Tort Statute 1789 . .. 430
South West Africa cases ... 474,491,516-17,
Prosecutor v Delalic and others . .. 749 577,585 s.47 ... 345
Prosecutor v Dusko Tadic ... 109,456-7,728, Sovereignty over Pulau Ligitan and Pulau s.51 ... 345 Constitution ... 425-6, 432
739,816 Sipadan (Indonesia/Malaysia), Application to
Prosecutor v Kunarac ... 749 Intervene, Judgment of23 October 2001, ICJ Criminal Justice Act 1988 . .. 8, 9 D'Amato Act ... 350
Reports 2001 . .. 578
Questions of Interpretation and Application of Foreign Sovereign Immunities Act 1976 ... 362,
the 1971 Montreal Convention arising from Diplomatic Privileges Act 1964 ... 394,435
Taba case (1988) 80 ILR 224 ... 539-40 366,370,373,375,452
the Aerial Incident at Lockerbie, Provisional
Temple of Preah Vihear, Merits, Judgment, ICJ European Communities Act 1972 ... 434 s.1603(d) ... 367
Measures, Orders of 14 April 1993, ICJ Reports
Reports 1962 p6 ... 180-1 s.1605(2)(a) ... 367
1992 p3 ... 344 Extradition Act . .. 8
Territorial Dispute (Libyan Arab Jamahiriya/ s.161O(2) ... 375
Rainbow Warrior Arbitration (New Zealand v Chad), Judgment, ICJ Reports 1994 p6 ...
186-7 Human Rights Act 1998 ... 439
France) (1990) 82 ILR 499; (1986) 74 ILR 256 Helms-Burton Act ... 350
... 319,450-1,454,540 Texaco Overseas Petroleum Co v Libyan Arab
Republic (1977) 53 ILR 389 ... 312 Immigration Act 1971 ... 812
Rawle Kennedy v Trinidad and Tobago, Comm Maritime Drug Law Enforcement Act 1986 ...
Tinoco Arbitration (1923) 1 RIAA 369 . .. 238, International Organizations Act 1968 . .. 277
No 845/1999, Decision 2 November 1999, UN 342
Doc N55/40 Vol II Annexe XI A ... 195 539
Red Crusader case. .. 536 Trail Smelter Arbitration (1939) 33 AJIL 82; Patents Act 1949 ... 430
Omnibus Diplomatic Security and Anti-
Red Sea Islands case (2001) 40 ILM 900 ... 12, (1941) 35 AJIL 684; 3 RIAA 1905 ... 539,658, Protection of Trading Interests Act 1980 ... 349 Terrorism Act 1986 ... 345
540 666,670
Reparation for Injuries, Advisory Opinion, ICJ Shipping Contracts and Commercial Documents Prohibition Law. .. 348
Reports 1949 p179 ... 272-3,274,276,281, Act 1964 . .. 349
282,301,302,303,312,446,488,660 US CASES State Immunity Act 1978 ... 361,368,371,435
Republic of the Philippines v Marcos and others Part I. .. 399 OTHER COUNTRIES
806 F.2d 344 (1986); 81 ILR 581 ... 436 US v The Palestine Liberation Organization and s.3 ... 368
Reservations to the Convention on the others AILC 2nd Series vol 12 p386; 695 ESupp s.3(3)(a)-(b) ... 368 French Constitution. .. 424
Prevention and Punishment of the Crime of 1456; 82 ILR 282 ... 433
s.4 ... 368
Genocide, Advisory Opinion, ICJ Reports 1951 US Diplomatic and Consular staff in Tehran, German Constitution. .. 423, 434
s.5 ... 370
pIS ... 91,93, 191-2,744 Judgment, ICJ Reports 1980 p3 . .. 393-4,
456,459,461 s.7-s.8 ... 368
Restrictions to the Death Penalty, Advisory Netherlands Constitution ... 422,434
Opinion, Inter-American Court of Human US-French Air Services Arbitration (1978) 54 ILR s.9 ... 365
Rights AO OC-3/83, 8 September 1983, (1984) 303 ... 509 s.13(1)-(2) ... 372
Russian Constitution. .. 424-5
23 ILM 320 ... 193 s.13(3)-(4) ... 374 Russian Federal Law on International Treaties ...
Right of Passage over Indian Territory, Merits, Van Gend en Loos ECJ (1963) 1 CMLR 82 ... s.14(2) ... 366,379 424
Judgment, ICJ Reports 1960 p6 ... 129, 131 313 s.14(5) ... 366
s.20 ... 399 Swiss Constitution. .. 157
Saiga case (St Vmcent and the Grenadines v Western Sahara, Advisory Opinion, ICJ Reports
Guinea) ... 19,640,645 1975 p12 ... 315,551,584
St Pierre and Miquelon case (1992) 95 ILR 645 Woodpulp cases 89/85, Ahlstrom Osakyhtio v
... 540 Commission [1988] ECR 5193 ... 339
TABLE OF DOMESTIC CASE LAW BY COUNTRY Ii

OTHER COUNTRIES Philippine Embassy Bank Account Case, German


Federal Constitutional Court 13 December
TABLE OF DOMESTIC CASE LAW Banca Carige SpA v Banco Nacional de Cuba & 1977 46 BverfGE 342; 65 ILR 146 ... 372,373,
Anor [2001] 1 WLR 2039 ... 16 374
BY COUNTRY
Concerning Certain Normative Acts of the City Reference re Secession of Quebec [1998] 25 SCR
of Moscow and Some Other Regions VKS 1966 217 ... 216
UK CASES Rio Tinto Zinc Corp v Westinghouse Electric
Corp [1978] lAllER434(HL) ... 339 No 2 ... 432
SOS Attentat and Castelnau d'Esnault v Qadaffi,
Al-Fin Corporation's Patent, Re [1970] Ch 160 Eichmann case ... 352-3,743-4 Head of the State of Libya, France Court of
... 430 Saloman v Commissioners of Customs and Cassation criminal chamber 13 March 2000
Excise [1967] 2 QB 116 ... 433 No 1414 ... 133,408
Alcorn v Republic of Colombia and others [1984] Hoess case ... 742
2 All ER 6 ... 433, 435 Suresh case. .. 751
Trendtex v Central Bank of Nigeria [1977] 1 QB
Attorney-General for the Isle of Man v Poyiadjis Internationale Handelsgesellschaft [1974] 2
529; [1977] 1 All ER 881; 64 ILR 111. .. 361,
... 17 CMLR 540 ... 434 Tabatabai case 80 ILR 388 ... 401
429
Bennett v Horseferry Magistrates' Court [1993] Westland Helicopters Ltd v Arab Organization
3 All ER 138 ... 431-2 for Industrialization 108 ILR 565; [1995] 2 All
Buttes Gas and Oil Co v Hammer [1982] AC 888; ER387 ... 278
3 All ER 616 ... 377-8,438

DPP v Doot [1973] AC 807; [1973] 1 All ER 940 US CASES


(HL) ... 338
DPP v Stonehouse [1978] AC 55; [1977] 2 All Air France and British Airways v Port Authority
ER 909 (HL) . .. 338 of New York and New Jersey ... 435

Jazayeri, Re . .. 16 Breard cases ... 19,431,432,439


Bush v Gore 121 S Ct 525 (2000) ... 245
Liangsiriprasert v Government of the USA
[1991]1 AC 225; [1990] 2 All ER 866 (PC)
Clayco Petroleum Corporation v Occidental
... 338
Petroleum Corporation and others 712 F.2d
Liby~n Arab Foreign Bank v Manufacturers' 404 (1983); 81 ILR 522 ... 436
Hanover Trust Co [1989] 1 Lloyd's Rep 608
Cutting case. .. 335, 346
... 16
Luthor v Sagor [1921] 3 KB 532 ... 376 Filartiga v Pefia-Irala 630 F.2d 876 (2nd Cir 1980)
... 157,430
Mox Plant case ... 18
Greifelt ·and others ... 742
Oppenheimer v Cattermole [1976] AC 249;
[1975]1 All ER 538 ... 376-7 Hartford Fire Insurance Co v California 113 S Ct
2891 (1993) ... 350
Parlement BeIge, The (1879-1890) 5 Prob Div
197 (CA) ... 360 Mondev International Ltd v USA (Case No
Propend Finance v Sing III ILR 611 ... 403 ARB(AF)/99/2) ... 461

R v Bow Street Metropolitan Stipendiary, ex parte Schooner Exchange v McFaddon (1812) Cranch
Pinochet Ugarte (Amnesty International 116 (US) . .. 359-60
Intervening) (No 3) [2000] AC 151; [1999]
2 All ER 97 ... 8-10, 12, 16, 18, 19, 133, Underhill v Hernandez 168 US 250 (1897) ...
156-7,364,381,399,403,408,409-10,435, 376,436
438,439 US v Aluminium Co of America 148 F.2d 416
R v Charrington . .. 641 (1945) ... 338
R v Mills. .. 640 US v Alvarez-Machain [1992] 112 S Ct 2188,
Rayner (JH) (Mincing Lane) Ltd v Department USSC ... 431,439
of Trade and Industry [1989] 3 WLR 969 ... US v Gonzalez 776 F.2d 931- (1985) ...
277 342
REFLECTIONS FROM THE
INTERNATIONAL COURT
HE Judge Rosalyn Higgins

I have been asked to offer a short prefatory reflection on the role and responsibility
of a Judge of the International Court of Justice in the contemporary international
legal system.
There are aspects that seem to me both broad and narrow. To take the broader
issues first: I am sympathetic to the current trend of thinking that no international
actors are immune from scrutiny. It is only natural there should be public interest in
their independence from national or other pressures, and in the absence of any pos-
sible conflict of interest. The maintenance of these standards, which both the legal
profession and the informed public are entitled to expect, requires the active support
of the presidents of international courts and tribunals. The maintenance of these
standards within a court, and the visible manifestation of this commitment, is part of
the job-description of judicial leadership.
That being said, I do not believe that a Judge of the International Court is in any
more narrow sense 'responsible to' any other organ or international actor. The Inter-
national Court is a main organ of the United Nations. Each year it presents a written
report to the United Nations on its work. And in recent years the practice has grown
whereby the President addresses the General Assembly and its Sixth Committee (and
perhaps even the Security Council). But the Court is not 'responsible to' any of those
bodies in the sense· that its role is to please or 'satisfy' them. The Court is not
'answerable' to them if its legal decision is not the pronouncement that they might
have hoped for on any particular occasion. And indeed, that is well understood by all
concerned. The General Assembly is interested in, and generally appreciative of, the
work that the Court reports to it. But members of that body-and certainly the
Assembly as such-carefully refrain from observations on th~ Court's findings in
particular cases.
Certainly the international judge is not 'responsible to' the particular States
appearing before him/her. It is totally inappropriate for a State to assume, still less to
say, that a particular Judge's vote in a case was due to his or her nationality (or race, or
religion). Only those present in the Deliberation Chamber can know what views were
4 ROSALYN HIGGINS REFLECTIONS FROM THE INTERNATIONAL COURT 5

held, by whom, and on what grounds. In fact, the dynamics of the legal exchanges in the practice of the Court, and making proposals for their amendment. Revisions of
between the Judges of the International Court in no way reflect tired stereotypes. Rules 79-80 are resulting examples. Other Rules are under review.
Assumptions based on such ideas would be surprisingly wide of the mark. Other changes in the Court's methods of work have also been reported to the
Even if a Judge of the International Court is not 'responsible to' any particular General Assembly. They include no longer generally having recourse to Judges' Notes
organ of the United Nations, or any government, the very fact of being elected to this in Preliminary Objection cases and the introduction of Practice Directions.
high office does carry with it enormous responsibilities. What does this mean in The International Court of Justice is the Court of the entire United Nations. While
practical terms? It means the responsibility to work at maximum capacity, to continue the Judges are elected in their personal capacities, they must through their work serve
systematically to read the literature in the field, to study the pleadings meticulously, the entire international community, and not anyone particular region or legal system.
to make every effort to see arguments from all points of view, and to make up It follows that the work-model within the Court must be collegial, involving everyone,
one's mind only after reading everything, listening to everything, and considering the and not delegated to particular Juges-Rapporteurs. This involvement of the entire
viewpoints of others. Bench in every phase of all Court Judgments is, of course, time consuming. Even
In my view, this generalized responsibility of the Judge also puts an emphasis on though judicial efficiency is of great importance, it is perhaps of even greater import-
collegiality. I do not believe that Court Judgments are 'weakened' by separate or ance for States to be confident that all Judges have listened to and thought about
dissenting opinions. A Judgment is as good or as bad as the reasoning it relies on. A their arguments, and have fully participated in the Judgment ultimately rendered. A
poor Judgment will be no more persuasive by virtue of unanimity. That being said, not inconsiderable side-benefit is that Judgments are normally very detailed and
the first task of the Judge is to contribute to the common enterprise of the Court. thorough, with the points in issue fully canvassed.
Ideas should be shared, suggestions made in timely fashion. The main priority is to How one regards the role and significance of international law today can be
contribute to an impressive and authoritative Judgment. There is necessarily some answered either at the level of philosophy or pragmatic observation. In this very brief
measure of give and take required. But in a successful Court this is in no way prefatory comment I can dono more than offer a personal outline-sketch. I have
synonymous with Judgments that are merely the lowest common denominator of the elaborated elsewhere why I regard international law as a special and stylized system of
views of the various Judges. decision-making, rather than as a purportedly mechanistic application of 'rules'.
A judge is not an academic and judicial opinions should not be academic articles. This particular perception of international law has the virtue that it makes clear where
They should, in my view, be resorted to only exceptionally, in respect of points of real these so-called 'rules' (or applicable norms) come from, who is purporting to apply
importance for the particular case at hand; and should not go beyond that either as them, and in what factual context. It also makes it explicit that international law is a
regards frequency or as regards the subject matter traversed. vehicle for the attainment of certain values-which values in turn must be open to
Of course, the Courts as such, and not only the Judges who comprise them, bear scrutiny and debate.
this generalized responsibility to the international community too. This requires that I find it hugely pleasing that legal theory is no longer unfashionable. In the last
all Judgments are fully reasoned and that all arguments of the parties that could affect twenty years there has been a tremendous debate about the nature of international
the outcome are properly addressed or answered. There are sometimes grounds for law, engaged in by protagonists whose work challenges us intellectually at every turn.
judicial economy but this concept cannot excuse an absence of reasoning nor can it There is no longer a rigid division between 'the theoreticians' and 'the practi-
provide grounds for avoiding issues simply because they are hard to resolve. (And no tioners'. Indeed, some of the leading theoreticians have had distinguished careers as
more can solace in the face of difficulty be sought in invocation of a 'non liquet!). A practitioners.
Court's job is precisely to decide difficult, and often sensitive, points oflaw. I find it equally pleasing that national Courts everywhere now routinely engage in
Courts must also constantly strive to maintain that difficult line between the main- issues of international law. They, too, have come to recognize that it is not an arcane
tenance of the highest quality judgments and the achievement of an efficient and mysterious subject, upon which only 'others' should pronounce, but is simply
throughput of work. This has been a high priority for the International Court of part of the law of the land. Without minimizing the difficulties that flow from the
.Justice. The last fifteen years have seen an enormous growth in its docket. Mindful of diverse ways in which treaty law is received into national law, this new phenomenon
the need to be responsive to the trust placed in it by States engaged in litigation, the of engagement by domestic Courts is visible everywhere. The impact upon our
Court now has its work methods under more or less constant review. The heavy daily lives of the decisions of international organizations, the renewed importance of
docket means there is no longer the luxury periodically to review, at leisure, the the United Nations, and the open embrace of the values of human rights, have all
entirety of the Rules of Procedure, simply as an exercise that should be engaged in contributed to this welcome trend.
from time-to-time. Instead, the Court has moved to a practice of entrusting its Rules Whether one regards international law as 'rules that restrain', or as 'a common
Committee with a 'watching brief' on particular Rules that are proving problematic language', or as a 'normative guidance in the making of decisions', it is clear that it
6 ROSALYN HIGGINS

has a significant role to play in today's contemporary problems. That being said, there
are several points to be made. First, the judicial element in that role should not be
exaggerated. There has been an explosion of international litigation and arbitration-
but this is a reflection of an improved international climate, and not the cause of it.
Secondly, the invocation and use of law has its place in diplomatic discourse and
negotiation, both procedurally and substantively: it is not reserved to litigation. Thirdly, THE PINOCHET CASE-SOME
the role that international law can play in the resolution of the fearful problems of the
day does depend, to a degree, on how one views this creature 'international law'. A PERSONAL REFLECTIONS
disembodied set of rules may be functionally ill-suited to respond to the problems of
applying 'law' to entirely novel circumstances. The function of international law is to
find that fine balance between legal expectations generated by the experiences of the The Rt Hon The Lord Millett
past and the solving of problems as they present themselves today.
We should not underestimate the difficulties. They have been particularly evident
as we struggle with notions of self-defence, reprisals, terrorism, non-State actors and
all the new realities of our troubled world. The Charter is a living instrument: but It is fifty years since I studied public international law at Cambridge. (Studied' rather
where is the end of creative interpretation and where is the beginning of illegality? Is overstates the case; prospective barristers like me knew that we would be unlikely
the legal stairway from Article 43 of the Charter to (peacekeeping' to (peace enforce- to need the subject in the Hendon Magistrates Court or the Southend County
ment'to (coalitions of the willing' an infinitely extending staircase? Does the answer Court where we expected to spend our early years in practice. So we did not pursue
to that question lie in process and form (that is, in knowing that there has been a our studies with as much diligence as we should have done. But we were assiduous
.binding decision of the Security Council) or in substance? And who is to articulate in attending the lectures, which were given by the great Sir Hersch Lauterpacht, the
that substantive answer? most venerated international lawyer of the day. He was a marvellous lecturer and an
There are many comparable conundrums to wrestle with. What is the reach of inspiring teacher who conveyed his own enthusiasm to his students.
exceptions to the normal requirements of (the rule of law'? What, indeed, is meant by The Nuremburg trials were then of recent memory and the Cold War was in its
(the rule oflaw'? Is the contemporary interest in ethics an intrusion into legal rules or early stages. We were still optimistic that Nazi criminals remaining at large would be
simply the articulation of a value inevitably present in international law as legal brought to trial, that the international community would take on board the lessons
process? of the holocaust, and that in future crimes against humanity would be punished. No
It is useful to step back from analysing today's legal problems (on which there has longer, we hoped, would the way in which a sovereign State treated its own nationals
been a profusion of interesting and useful writing) to think about these fundamental, be regarded with indifference by the rest of the world.
over-arching questions. We should not pretend that on these profound dilemmas But it was not to be. The Cold War lasted for a further forty years. With the notable
there are clear answers-(correct rules' which simply wait to be impartially applied. exception of Eichmann, the major Nazi criminals were not brought to justice. They
There are not clear answers. There is a process by which optimal answers can were too useful to be locked up or hanged. Former neutral and even Allied countries
be arrived at, with leading guidance given by those decision-makers entrusted by offered them refuge and competed for their services. Not until the Cold War was over
the international community with that task. This is the contemporary challenge did the world turn its attention once again to unfinished business. And by then a new
in international law, and the particular responsibility of the international judge. generation of monstrous tyrants had appeared. The international criminal court,
which Lauterpacht had advocated with such passion fifty years ago, has finally been
established, albeit in a different millennium.
In the years between I had little or nothing to do with public international law.
As a barrister practising at the Chancery Bar, first as a Junior and later as Queen's
Counsel, my time was almost exclusively spent on domestic English legal problems.
Occasionally they had a foreign element, so private international law issues occasion-
ally reached my consciousness. But public international law, like criminal law, was a
distant memory. It recalled undergraduate days, along with punting on the Cam and
May Balls, but that is all.
8 THE RT HON THE LORD MILLETT THE PINOCHET CASE-SOME PERSONAL REFLECTIONS 9

In 1986 I was appointed to the Chancery Bench, and one of my first cases was jurisdiction at the date of the warrant. But the General's claim to State immunity was
the International Tin Council case. The question was whether the English Court had upheld.
jurisdiction under the Companies Act to wind up an international organization. It The Crown's appeal to the House of Lords was originally heard by a panel of five
involved issues of company law and both private and public international law. Law Lords. General Pinochet did not challenge the ruling that the Extradition Act was
Twenty-two counsel, if I remember correctly, appeared before me in a packed court. retrospective, so the appeal was confined to the question of immunity. Once again
They included Rosalyn Higgins, now a judge of the International Court of Justice at there was something of a rush to judgment. The hearing lasted six days, and judgment
the Hague, but then a junior counsel appearing for the International Tin Council, and was given with unusual speed only two weeks later. By a majority of three to two
Eli Lauterpacht, Hersch's son, who was appearing as junior counsel for the creditors. the Appellate Committee ruled that extradition could go ahead. The immunity of a
He delivered an academic lecture rather than a legal argument. I well remember the former Head of State was confined to acts performed in the legitimate exercise of his
moment when, referring to a decision of the House of Lords, he mentioned in passing official functions, and these did not include torturing his political opponents.
that it was generally regarded by international lawyers as wrongly decided. Since As is well known, the decision was later set aside because of Lord Hoffmann's
a mere High Court judge like myself is not allowed even to entertain such a thought, presence on the panel which heard the case. This was an example of pure bad luck.
I hurriedly made a mental note not to mention the case at all in my judgment. The case was obviously politically sensitive, and the senior Law Lord, Lord Browne-
I have only one regret about the International Tin Council case. Before it began my Wilkinson, who is responsible for selecting the particular Law Lords to sit on a case,
wife presented me with a model of the Tin Man in the Wizard of Oz and suggested was concerned that whatever the outcome the losing side would accuse him of having
that I place it on the Bench in front of me, but I never had the courage to do so. packed the Committee. So he simply selected the five most senior Law Lords to sit.
By 1998 I was a Lord of Appeal in Ordinary and a member of the Appellate These did not include Lord Hoffmann. Unfortunately Lord Browne-Wilkinson then
Committee of the House of Lords. Within a few months I had the great privilege of found that he himself was unable to sit, and at the last moment the sixth senior Law
being a member of the seven-man panel which sat to hear the Pinochetcase, arguably Lord took his place. This was Lord Hoffmann.
the most important public international law case in my professional lifetime. Judgments of the House of Lords are delivered in the Chamber, and take the form
The story of the case is well known. In September 1973 General Pinochet, the of a formal debate whether the appeal should be allowed or dismissed. Each member
Commander-in-Chief of the Chilean army, seized power in Chile and installed him- of the Committee who sat on the case rises in order of seniority and briefly states his
self as Head of State. He retained power until 1990, when he stepped down in favour opinion. Lord Hoffmann, being the most junior, spoke last. When he rose the voting
of a democratically elected government. It was alleged that he had maintained himself was 2-2, and there was intense excitement in the Chamber. It was shaping up to be a
in power by the systematic and institutionalized use of torture as an instrument of State penalty shoot-out. Lord Hoffmann has often been described since as having had the
policy. In October 1998 he visited the United Kingdom in a private capacity. Contrary swing-or even the casting-vote. But in truth his vote was no more decisive than
to some press reports at the time, he was not travelling on a diplomatic passport. those of the other two in the majority.
He was arrested by the Metropolitan Police on an international warrant issued by I was sitting over a coffee in the Bois de Boulogne when I received a call on my
a Spanish examining magistrate. The Crown Prosecution Service, acting on behalf of mobile to invite me to sit on the seven-man panel to re-hear the case. This time there
the Kingdom of Spain, applied for his extradition to Spain. General Pinochet opposed was no rush to judgment. The case was much more fully argued. The Republic of
the application and applied for a warrant of habeas corpus. Chile appeared for the first time to press the claim for State immunity. The hearing
General Pinochet put forward two arguments. First, he claimed that the English took twelve days, and we took six weeks to consider our decision. General Pinochet
courts had no jurisdiction over offences committed by a foreigner.abroad~ The successfully argued that the Extradition Act was not retrospective. Our decision on
Criminal Justice Act 1988, which conferred extraterritorial juri$diction on the this point was unanimous. We can only extradite where we can prosecute. Like the
court, was not retrospective. Secondly even if there was jurisdiction, he claimed State previous panel, we rejected General Pinochet's claim to immunity, this time by a
immunity as a former Head of State for acts committed in the exercise of his official majority of six to one. On the question of jurisdiction, five of the six ruled that there
functions. was no jurisdiction over offences committed by foreigners abroad before the Criminal
The case was heard by the Divisional Court-three judges presided over by the Justice Act 1988 conferred extraterritorial jurisdiction on the English courts. I dis-
Lord Chief Justice. It was tried with great urgency. The hearing lasted only two agreed. At first sight, the difference between us appears to be a technical one: We all
days, and unreserved judgment was given on the following day. General Pinochet's agreed that torture by public officials carried out as an instrument of State policy was
submissions on jurisdiction were rejected. The 1988 Act was not retrospective, so we already an international crime of universal jurisdiction by 1973. The majority con-
could not bring a prosecution ourselves. But the Extradition Act was retrospective. We sidered that this meant that, as a matter of international law, the United Kingdom
could extradite a defendant for an offence in respect of which the English Court had was free to assume extraterritorial jurisdiction, which it eventually did in 1988.
10 THE RT HON THE LORD MILLETT

I considered that it meant that, as a: matter of customary international law, which is


part of the common law, the United Kingdom already possessed extraterritorial
jurisdiction.
But the difference really goes far deeper than that. The majority considered that
torture by foreigners abroad was not a crime at all under English law before the 1988
Act made it one. I could not accept that. In my opinion torture has always been a THE PER·SPECTIVE OF
crime under every civilized system of law. It is just that, until 1988, our courts had
no jurisdiction over it if it was committed abroad. There was no question of retro- INTERNATIONAL LAW FROM
spective criminalization of conduct which was lawful when committed. Torture was
already a crime under both English and Chilean law. A similar point was made by the THE BAR
Nuremburg Trial and by the Supreme Court of Israel in the Eichmann case.
On the same day that we delivered our judgment, NATO forces began to bomb
the sovereign state of Serbia in an attempt to stop the atrocities its government was Ian Brownlie, CBB, QC
committing against its own citizens in Kosovo. Two events on a single day showed
how far we had come from the classical doctrines of international law as we had
learned them fifty years ago. No longer is international law a matter which concerns
sovereign States alone. It marches with human rights law to protect individuals from The literature often addresses the question of the (relevance' of international law
State action. The world community has finally decided that the way a sovereign State and, at the outset of studying the subject, such discussions are useful. It is a par-
treats its own nationals is not a purely internal matter. International intervention is ticular characteristic of international law that it is not easy for the observer or
justified to prevent a widespread and systematic attack on a civilian population by its student to develop the necessary empathy. The problem of perception is increased
own government. The justification for intervention is that such an attack, conducted by the distance between ordinary experience and the wavelength of international
on a large scale and as a matter of State policy, is an attack on the legal order itself and affairs.
threatens the peace and security of the world. As with the Pinochet case, the moral Experience of legal practice reveals the impressive diversity of contexts in which
justification is that some crimes are so great that they are not just crimes against . reference to international law is necessary. The following list is illustrative and by
domestic law and order but crimes against humanity itself. Those who commit no means exhaustive but it does address the issue of relevance. The focus of the
them do not merely offend against their own domestic law, but are (enemies of all classification is upon the legal function and context in each case.
mankind'.
(1) Advice to government delegations involved in negotiations with other
governments, for example, concerning maritime delimitation or the creation
of the mechanism for the peaceful settlement of a dispute.
(2) The drafting of written pleadings in relation to cases in front of courts
of arbitration or the International Court of Justice, together with the
preparation of oral arguments.
(3) Assistance to government delegations involved in procedures of mediation or
conciliation in order to settle, or to ameliorate, disputes between States.
(4) Advice to the armed forces of a State relating to the application to the
humanitarian law of war in an armed conflict, including civil strife, and the
drafting of the rules of engagement to be observed in the military operations
envisaged.
(5) The provision of legal advice to national liberation movements, to organized
minority groups within States, and to political parties.
(6) Assistance to non-governmental international and national organizations,
12 IAN BROWNLIE THE PERSPECTIVE OF INTERNATIONAL LAW FROM THE BAR 13

such as Amnesty International and Greenpeace International. Such organiza- otherwise a member of the legal profession. Locus standi depends upon the authority
tions may be involved as parties in international dispute mechanisms, and as to appear conferred by the client concerned. It is quite normal for States to be
parties, or interveners, in cases in national courts. represented by distinguished academic lawyers or other legal specialists who have no
(7) The giving of evidence and, or, advice to the committees of parliamentary professional qualifications. Moreover, it is a pleasant and necessary characteristic of
assemblies involved in the investigation of particular incidents or crises. practice that other professions are directly involved. Thus teams may encompass
economists, petroleum engineers, members of the armed forces, hydrographers, sur-
(8) Assistance to temporary administrations set up with the authority of the veyors, geographers, and social anthropologists. These specialists will often have the
organs of the United Nations, as in the case of East Timor.
role of expert witnesses, subject to cross-examination, but the State involved in litiga-
(9) Advice to private corporations on questions of international law, for example, tion must make its election. Provided their names are formally indicated on the
in relation to the protection of investments, concession agreements, access to delegation list presented to the tribunal, such specialists may address the tribunal in
natural resources, and questions of human rights. the role of advocates, but will not then, of course, appear as expert witnesses.
(10) Acting as Counsel and Advocate in proceedings before international tribunals Tribunals may, and sometimes do, make practice directions which impose certain
and specialized bodies, such as the United Nations Compensation Commis-, duties on Counsel. More often the only source of professional discipline will be the
sion and the International Tribunal for the Former Yugoslavia. The inter- governing bodies of the legal profession (or two professions in some common law
national tribunals include the ad hoc courts of arbitration, such as the jurisdictions) of the State of origin of the individual concerned. Thus, the English Bar,
Arbitration Tribunal created to determine issues of sovereignty and maritime of which the writer is a member, prohibits the practice of touting for work and, in
delimitation in the Red Sea Islands case, or the Eritrea-Ethiopia Boundary addition, the English barrister is not permitted to select the clients (this injunction is
Commission, established pursuant to an agreement dated 12 December 2000. known familiarly as the 'Cab Rank' principle).
Beyond the formal and institutional imposition of rules of conduct, the standards of
(11) Acting as Counsel in municipal court proceedings involving matters of public
conduct applying to international law practice tend to reflect the fact that the clients
international law, such as the appeals and other proceedings concerning the
are often States and organizations. Such clients value confidentiality. For this and
International Tin Counci~ and the two appeals in the Pinochet case.
other reasons, it is tempting fate to publish material about litigation one has been
The above list of types of work provides a simple but effective indication of the concerned with, even when all appears to be said and done. New issues may arise and
responsibilities of a member of the Bar specializing in matters of international law. the discussion of a case in a journal may, in retrospect, be discovered to contain
However, the picture needs to be rounded out by reference to the not inconsiderable hostages to fortune.
number of constituencies involving specialized areas of public international law, It is important' to appreciate the idiosyncratic aspects of a practice which involves
including human rights, the legal protection of the environment, international acting for States and working within the context of governmental action and diplo-
criminal law, petroleum law, trade law, refugee law, and monetary law. In the field of macy. In the preparation of written and oral arguments before international tribunals
arbitration the applicable law in bilateral investment treaties will involve a multiple the freelance pleaders are working exclusively as representatives of the State concerned
reference to municipal law, public international law, the treaty provisions themselves, and not as unauthorized experts or amici curiae. Consequently, all material presented
and perhaps other elements. to the tribunal must have the authorization of the government-appointed head of the
Members of the Bar will, in the setting of national courts, and in providing episodic team, the head of the delegation, usually designated as 'the Agent'. In this context
advice, normally work as individuals or in small groups. In the practice of inter- Counsel cannot be permitted' to answer questions of substance addressed to him
national law the clients are normally States, organizations and corporations. The or her by the Tribunal except with the permission of the head of delegation. In
milieu calls for working in groups and, perhaps, in a series of overlapping groups. cases before the International Court and in inter-State arbitrations the practice is for
States are not infrequently concerned to establish a: degree of internal accountability questions to be addressed to the parties at the end of the first round of the oral
and the team working on a problem, or preparing litigation, may thus consist of hearings, these questions to be answered in the course of the second round speeches
three elements: the in-house government lawyers (of the Foreign Ministry, the or within a period, usually two or three weeks, after the close of the session. There is a
Attorney-General's Office, or some other relevant ministry), the external lawyers, and special culture of speech preparation with its own difficulties and points of protocol.
a nationally based monitoring group, which will include persons representing local Time-keeping is of the essence.
and regional interests. It is often the case that the association with a State engaged in a major boundary
It is necessary to point out that, in the International Court and before other inter- dispute or resource-related maritime delimitation will last for thre.e or four years,
national tribunals, it is not necessary to belong to the Bar of any State, or to be commencing with the giving of general advice on the merits and the often difficult
14 IAN BROWNLIE

question of establishing an appropriate forum for peaceful settlement of the dispute.


However, the freelance adviser retains, and should retain, the independence of
approach which is characteristic of the professional lawyer. Confidential advice to the
client must involve frankness and objectivity, otherwise it is worthless, and probably
harmful.
Working in a milieu in which the clients are States presents problems of a special REFLECTIONS FROM THE
sort, relatively unknown in a single jurisdiction practice. Within the United Kingdom
the Bar would consider appearance against the government and its agencies as PRACTICE OF
perfectly normal and a necessary concomitant of the Rule of Law. But should this
principle apply to disputes between States, in which Counsel will appear against his
own government? The principle must surely remain applicable, if the Rule of Law is
INTERNATIONAL ·LITI·GATION
to be maintained. And does the principle apply in a situation in which the client is a
State which is, or is likely to be, in a state of armed conflict with Counsel's State of Campbell McLachlan
nationality? No doubt there is a clear prima facie constraint here. But, once more, the
ultimate source of guidance is the Rule of Law and, in the present context, which is,
the practice of public international law, the principles of general international law,
and the principles enshrined in Article 2 of the United Nations Charter. My first experience of International Law in practice came from the less con-
The general principle applicable to practice at the English Bar is that the barrister ventional direction of Private International Law. At a relatively young age, I was
does not select his or her clients, and this principle of objectivity applies to the nature asked by the then director of the Legal Division of the Commonwealth Secretariat,
of the causes which a client may espouse and the type of conduct with which the Jeremy Pope, to attend as Commonwealth Observer the Working Sessions of the
client is allegedly associated. Without such a principle the Rule of Law would be Hague Conference on Private International Law on the Taking of Evidence Abroad
set at naught and in criminal trials defendants would lack representation. In some and Choice of Law in International Sale of Goods. These were diplomatic confer-
circles the claim is made by certain lawyers that they will only work for good causes. ences concerned with respectively the review of an existing convention of great
Apparently, such good causes do not include the giving of practical reality to the Rule practical importance in International Commercial Litigation and the attempt
of Law. It is surely of the essence of the principle of legality that the law should be (ultimately still-born) to conclude a new convention on choice of law to comple-
available to all. ment and fill the gaps left by the great Vienna Convention on a Uniform Law
In conclusion it is worth emphasizing that, at least in the tradition of the English for the Sale of Goods. As such, they carried the trappings of international
Bar, the legal adviser or advocate represents the client, but retains a significant degree treaty-making by State representatives. But, given the (at least then) less politicized
of independence and aloofness. If the barrister simply identifies with the client in all character of Private International Law, and the very special character of the Hague
respects, his value will diminish. The purpose of advocacy is to establish a link with Conference, a constructive informality prevailed in which even a junior observer's
the court and, if a client ignorant of or indifferent to the judicial context imposes views could be heard.
inappropriate instructions the desired link with the court will be weakened or This introduction to international law-making instilled into me three insights
broken. Pleasing the client is one thing, winning a case is another, although if one is which I have carried with me into practice. The first is the degree of inte~connection
fortunate, both outcomes may be achieved. between Private and Public International Law. Although there are many oft-cited
differences between the two disciplines, in my opinion the distinctions tend to be
over-stated. The resulting lack of interplay between those working in each field has
impoverished both subjects and in particular obscured examination of the interface
between them. The importance of this interface could be seen even in the discussions
at the Hague Conference on the Taking of Evidence Abroad, which had become
a flash-point for differing conceptions of permissible assertions of jurisdiction
and the extent to which cross-border process could be engaged for the public law
claims of foreign States. In my view, Private International Law (despite its comparative
diversity) was not to be seen as merely another domestic law subject, akin to contract
16 CAMPBELL McLACHLAN REFLECTIONS FROM THE PRACTICE OF INTERNATIONAL LITIGATION 17

or tort, but rather as a legal response to inherently international problems. In this way, lottery; acting for the United States Securities and Exchange Commission in the
it shared much with Public International Law. recovery in the Isle of Man of the largest-ever sum alleged to be the proceeds of insider
The second insight which I gained from that early observation of international trading secured outside the United States (Attorney-General for the Isle of Man v
law-making is that International Law is not to be seen merely as an abstract body of Poyiadjis); and representing the Republic of South Africa in proceedings to recover
rules. It is, importantly, a means of resolving actual disputes as they arise on the Clive of India's Gold, believed to have been taken from South African territorial
international plane. As such, an understanding of how the rules will operate in waters, and displayed for auction in London. These cases have all involved a mix of
practice as part of a process of dispute resolution can also help in the formulation of Public and Private International Law issues.
new international law. We have also found in practice that Public International Law has moved into the
The third point is that International Law is not to be regarded as a static code. It mainstream of the concerns of commercial clients. Perhaps the most notable aspect
must be capable of creative change in response to new international realities. Amongst of this has been the development of foreign investment protection through bilateral
other things, this includes a growing diversity of the contexts and fora in which investment treaties. These treaties typically give investors direct rights of action
international law falls to be applied. Of particular importance then, and even more against host States through arbitration, in the event that the fundamental rights
so in practice today, was the development of mixed arbitration between corpor- protected by International Law (including the protection from expropriation and
ations and states in the field of foreign investment law, where the governing law was the right to full protection and security) are infringed. There has been a huge rise in
often Public International Law (or a hybrid of international law and a given the number of such cases pursued in recent years, particularly before the International
national law). Centre for the Settlement of Investment Disputes. Cases in which we are currently
Upon entering private practice in 1988, I was fortunate to be able to pursue these acting have concerned investments as diverse as a water utility in Bolivia; a telecom-
interests in the conduct oflive cases. I joined a practice group at Herbert Smith, which munications business in West Africa; and oil and gas exploitation in a CIS State.
was (and is) pre-eminent in handling cases on the interface between Public and Even disputes which arise purely at the inter-State level, such as maritime boundary
Private International Law. Founded by Dr FA Mann (who was active in the firm until disputes, often involve commercial interests as well, particularly as the impetus for
his death in 1991), and then headed by Lawrence Collins (editor of Dicey and Morris delimitation often comes from the need for certainty in natural resource allocation.
on the Conflict of Laws), the group exemplified an approach which married the Thus oil companies in particular take a keen interest in the resolution of such matters.
academic and the practical without compromise to either. They also seek advice on Public International Law generally as a means of providing
The first case in which I was involved in practice was one of the cases on the effect some protection from the vagaries of national legal systems and as a self-contained
of President Reagan's Libyan assets freeze on bank deposits held in London (Libyan solution for trans-boundary projects (such as pipelines).
Arab Foreign Bank v Manufacturers' Hanover Trust Co [1989] 1 Lloyd's Rep 608). It From my experience of International Law in the context of disputes, I would
involved issues of the extraterritoriality of laws and International Monetary Law, advance five short propositions about the changing nature of International Litigation,
approached, as one might expect of an English court, within the framework of a especially as it affects sovereign States:
conflict of laws analysis.
Since then I have been privileged to act on numerous matters involving the interests 1. International litigation is increasing in frequency and scope
of sovereign States in international litigation. Sometimes, as in Ex parte Pinochet It has become almost a truism in recent years to observe that the volume of inter-
(No 3) [2000] 1 AC 147, in which we acted for the Republic of Chile, the cases involve national litigation is increasing. We have moved in the space of little more than a
matters of the greatest possible international moment. More often, the cases, while of decade from a situation in which the absence of any comprehensive judicial system
no less importance to the client, arise out of the regular 'conduct of international was the first observation made by any undergraduate student of Public International
commerce. Recent examples include: an attempt by a foreign creditor of Cuba to Law, to an unprecedented proliferation of tribunals and rising case-loads. Not only
enforce its debt over the assets of the Central Bank of Cuba, raising issues of State does the International Court of Justice have a longer docket than ever in its history,
immunity and jurisdiction (Banca Carige SpA v Banco Nacional de Cuba & anor but there are also many more specialist courts and tribunals.
[2001] 1 WLR 2039); parallel proceedings pursued by the International Fund for Of course, there have been many examples in the past of tribunals created to
Agricultural Development in connection with corruption in the procurement of address particular disputes, or batches of disputes. The Iran-US Claims Tribunal
consultancy contracts in the International Labour Organization Administrative and the United Nations Compensation Commission were innovative in many
Tribunal in Geneva and the English courts (Re Jazayeri); an international arbitral respects. But they nevertheless still take their place in a history of specialist claims
claim intimated by a Western European investor against an African State concerning commissions.
the latter's alleged failure to protect the investor's right to operate an exclusive state What is new is the number of institutionalized tribunals with broad competence
18 CAMPBELL McLACHLAN REFLECTIONS FROM THE PRACTICE OF INTERNATIONAL LITIGATION 19

and standing submission to jurisdiction by States: the International Tribunal for the decisive tactical victory was obtained in the Qatar v Bahrain dispute, when Bahrain
Law of the Sea, the Dispute Settlement Body of the World Trade Organization, and, called for and inspected documents relied upon by Qatar in support of its historical
most recently, the International Criminal Court. These institutions have a standing arguments, and established them to be forgeries. In the Yugoslav Genocide case, the
remit to apply international law within their particular area. parties had at one stage signalled an intention to call over a thousand witnesses of fact.
Perhaps less remarked upon, but of no lesser significance to States, has been the A court adjudicating upon any modern boundary dispute must generally consider a
increasing incidence of litigation involving sovereign States in national courts. Often welter of expert and factual evidence in reaching its determination. In the Saiga
this involves States as defendants, as States' increasing activities in the international litigation before the International Tribunal for the Law of the Sea, very effective use
commercial arena, and the reducing scope of State immunity, subject more and was made of the power to cross-examine the Master and crew of the vessel.
more States to foreign litigation. However, some States have also become willing to use
foreign court processes to pursue their own remedies (as some of the examples which 4. Modern international litigation is urgent
I gave above illustrate). Fourthly, much modern international litigation is dominated by the use of provisional
measures and other urgent pre-emptive remedies. The use of the provisional measures
2. The polycentric nature of modern disputes jurisdiction in the International Court of Justice is starkly illustrated by the applica-
The second point, itself a development from the first, is that many disputes are now tion made by Paraguay in Breard to attempt to prevent (ultimately unsuccessfully as a
pursued simultaneously or consecutively in multiple fora. In Pinochet, there were result of the contrary decision of the United States Supreme Court) the execution of
parallel proceedings in the United Kingdom and Spain; diplomatic representations one of its nationals who had been sentenced to death in the United States.
made by Chile to both the other States; and applications for interventions by third More prosaically, more than half of the cases which have so far come before the
interested States, including Belgium. Further, had Senator Pinochet himself not been International Tribunal for the Law of the Sea have concerned applications for prompt
returned to Chile, the Republic of Chile had publicly announced its intention to refer release of vessels. In contrast with the lengthy timetable which can obtain in litigation
its dispute with Spain over the latter's assertion of jurisdiction to the International on the merits, applications for provisional measures typically arise and are deter-
Court of Justice. mined in a matter of a few short weeks. Yet, of their nature, decisions on provisional
This has led rapidly to the surfacing of a problem long encountered in Private measures often have a dramatic tactical effect on the ultimate outcome of the case.
International Law, but until recently a rarity in Public International Law, namely
the potential for conflicting decisions. A recent dispute between the well-known 5. Modern international litigation is unpredictable
American entrepreneur Ron Lauder cind the Czech Republic over Mr Lauder's Finally, many modern cases cannot be predicted by the States concerned. This
investment in a Czech television channel led to the commencement of two parallel element of unpredictability has (at least) two aspects. The first is unpredictability of
arbitrations: one brought by Mr Lauder personally under the US/Czech BIT; and commencement. In the classic case of an inter-State arbitration, for example over a
one brought by his investment company under the Dutch/Czech BIT. Although both boundary dispute, the case itself will have been preceded by months, if not years, of
tribunals considered identical facts and construed identical treaty language, they negotiation, and then by the conclusion of a compromis pursuant to which the
arrived, within the space of ten days at diametrically opposed decisions on whether States concerned agreed to submit their dispute to arbitration. All the actors
the actions of the Czech Republic could constitute expropriation. involved would thus have plenty of time to consider the parameters of the dispute
The absence of any developed rules of litispendence or res judicata in international and the implications of its submission to arbitration. However, many modern
arbitration means that this situation is likely to continue. Indeed, in a recent decision, forms of international dispute resolution are characterized by the State's standing
the International Tribunal of the Law of the Sea decided that parallel proceedings consent to arbitration by treaty which can thus be invoked at the election of the
under no less than four treaties could continue in a dispute between Ireland and claimant without prior warning. Bilateral Investment Treaties, the North American
the United Kingdom in relation to the operation of a nuclear reprocessing plant at Free Trade Agreement, and the Energy Charter Treaty all provide examples of this
Sellafield (the Mox Plant case). trend.
The second aspect of unpredictability is as to result. It might be said that this is a
3. Modern international litigation is fact intensive perennial aspect of any kind of litigation. But the results may be more acute where
A third trait of mod~rn international litigation is that it is increasingly fact intensive. States are involved. Pinochet provides a stark illustration of this, with the first decision
Although the procedure of some international courts, including the International of a Judicial Committee of the House of Lords decided 3-2 against any form of
Court of Justice, may not be well attuned to the assessment of contested facts, immunity for Senator Pinochet; and the second decision, by a differently constituted
the cases which come before the courts ,increasingly call for such procedures. Thus, a Judicial Committee, deciding 4-1 in favour of the survival of a partial immunity.
20 CAMPBELL McLACHLAN

The Lauder v Czech Republic arbitrations provide another apposite example of


unpredictability.
What implications may be drawn from these trends for the development of Inter-
national Law more generally? The welter of new cases coming out of the renewed
enthusiasm of States for litigation will undoubtedly enrich the study of International
Law as a living code, by providing opportunities to test many previously unsettled A PERSONAL PERSPECTIVE
issues. At the same time, care must be taken to ensure that the proliferation of
international tribunals does not lead to fragmentation of the subject, as each tribunal ON INTERNATIONAL LAW
goes its own way in developing its jurisprudence.
That problem will become all the greater as International Law is taken up and
applied by a wide range of advocates and judges, both at national and international Ralph Zacklin
levels. There is a danger (already evident in the decisions of some national courts
and arbitral tribunals) that a <licorice allsorts' approach may be taken to the sources
of international law, without the necessary evaluation of the relative weight to be
accorded to any particular source. This is of course an exercise of much greater In the early 1960s, while a doctoral student at the Graduate Institute ofInternational
sophistication in Public International Law than is generally required in any national Studies in Geneva, I was recruited to work as a research assistant by the Carnegie
legal system. Endowment for International Peace. The project on which I worked for the next three
The rise in international litigation will inevitably impose considerable practical years was the Manual of Public International Law edited by Max S0rensen, Professor
burdens on States themselves. This burden falls especially heavily on Foreign Ministry of International and Constitutional Law at Aarhus University in Denmark, and pub-
legal advisors, who generally have the day-to-day management of cases. Their role is lished by Macmillan in London and St Martin's Press in New York in· 1968.
pivotal, since they stand at the fulcrum between the political and legal spheres. They The development of international law had been a major objective and concern of
must ensure that any case is progressed consistently with the government's political the Carnegie Endowment when established in 1911, reflecting a turn of the century
objectives, as well as defining the legal strategy, since any international litigation is conviction that the rule of law is as basic to a peaceful international community
inevitably as much an expression of the foreign policy of the State as its diplomatic as it is to a peaceful national society. This was the period between the Hague Peace
representations. This role often imposes significant resource burdens on the Foreign Conferences of 1899 and 1907 and the outbreak of war in 1914.
Ministry Legal Advisor's office-which must also respond to the numerous demands The decision to underwrite the publication of the Manual in 1963 coincided with
for advice placed upon it by Ministers. It requires the ability to build and marshal an one of those cyclical upturns in interest in international law which recur from time
effective legal team of both internal and external lawyers (and often specialist experts to time. The Trustees of the Carnegie Endowment, even though the development of
as well) to drive the litigation forward. international law was a stated objective of their trust, were themselves not immune
But, despite these burdens, modern developments in International Litigation from these cyclical trends.
should on the whole be welcomed. They represent an aspect of the maturing The 1960s seemed to be the ideal time to return to the development of inter-
(and professionalising) of International Law-from a partial body of principles national law and the Carnegie Endowment believed that it had a particular niche to
of intermittent application into a much more comprehensive set of rules, with wide fill. The Cold War seemed to be waning, or at least there were signs of a thaw in
acceptation in numerous areas of international cooperation and interaction. The relations between East and West, and the decolonization of Africa and Asia had
existence of standing tribunals of wide and routine resort is but one element of this resulted in large numbers of new member States in the United Nations whose
more general response of International Law to the phenomenon of globalization. It presumed attachment to international law and international institutions was seen as
will also in itself contribute to one of the great goals of International Law: the pacific ushering in a new era of international law.
settlement of disputes. The idea underlying the S0rensen Manual was to capitalize on this perceived new
era by preparing and publishing a treatise on public international law written
from an international rather than a national perspective. The authors were to be from
different regions and different legal systems, representative of the new dispensation of
the community of nations: East-West, North-South .. While each contributor would be
assigned individual topics, the final edited text would represent the collective views of
22 RALPH ZACKLIN A PERSONAL PERSPECTIVE ON INTERNATIONAL LAW 23

the group as a whole. The Manual was successfully completed and published in 1968. the member States of the United Nations, the overwhelming majority of whom rely
It was made available in a paperback edition for students world-wide. Within five on international law-making processes in international forums to weave together the
years the Carnegie Endowment changed course and abandoned its interest in inter- fabric of the rule oflaw.
national law and international institutions, surrendering its pre-eminent place among This accounts for the persistence of the United Nations in the holding of major
foundations and NGOs in the field, and eventually moving its headquarters from conferences or summits-much derided in some quarters-which have produced soft
New York to Washington DC. law Declarations on the environment, human rights, advancement of women and
This recollection demonstrates both the strength and weakness of international law. a panoply of economic and social rights. These fora move from agenda-setting
On the one hand there is its enduring appeal which draws governments, international gradually towards normative outcomes and have undeniably altered the international
institutions, foundations, civil society, academies, and individuals time and again to legal landscape over the past twenty-five years.
the notion of an international community under the rule of law; on the other hand Law, whether domestic or international, is by nature a conservative discipline. Its
there is the widely held view among many segments of society that international law is evolution is slow, even laborious. International law is not, nor should it be, viewed as
honoured more in its breach than its observance and especially when major national an ideal state in which harmony prevails. Like any other system of law, its rules and
interests are at stake. institutions mature over time. When one compares the international law of today
I have been privileged to work for almost thirty years as an international lawyer in with that of a mere three decades ago, one cannot but marvel at the advances that have
the United Nations and from this vantage point international law is neither the been made both normatively and institutionally. The path of advancement is by no
omnipotent solution to the world's problems nor is it an illusion that only die-hard means uneventful but it continues.
pacifists cling to. It is, in fact, for the practitioner a very real and pragmatic discipline. I have been fortunate in my own career to have had the opportunity to contribute
That it may be uncertain, incomplete, and difficult to enforce does not lessen the need to significant developments in international law, such as the establishment of ad hoc
for the rule of law on the international plane nor does it mean that the efforts to criminal tribunals for Yugoslavia and Rwanda as well as, more recently, the Special
codify the law and develop its institutions should cease or be diminished. 'Court in Sierra Leone. Over the years I have provided legal advice which has helped to
At the core of contemporary international law is the Charter of the United Nations. ~ape much of the contemporary law of UN peace-keeping and, like many of my
It is a tribute to its drafters in the San Francisco Conference that this instrument has colleagues, have rejoiced in the completion of UN mandates which have resulted in
retained its essential validity as a set of fundamental principles which have guided the the independence of countries such as Namibia and Timor-Leste. There have also
community of States for more than fifty years. It is the basis for the development of been tragic failures in Rwanda, Bosnia, and Somalia.
much of international law as we know it today in such key areas as human rights, the At the outset of my career I was motivated like many young people of the time
environment, and the law of the sea and outer space, not to mention the vast array of by an idealistic determination to make the world a safer and a better place. Over
multilateral treaties in numerous technical, economic, and scientific areas. the years my idealism has certainly been tested, but I believe that the role and impact
International law provides a common legal vocabulary within which States and of international law has grown, and it continues to grow.
other actors operate. It provides a framework for conceptions of what is 'legal' or The present work to which I have been asked to contribute this short prefatory
'right'. For the author personally, the most striking lesson of the last thirty years is reflection bears testimony to my conviction. In many ways it completes a professional
not the quantitative qualitative development of international law which has been and intellectual circle that is as harmonious for me personally as is the ultimate
substantial but the degree to which States have come to accept the existence of inter- aspiration of international law itself.
national law as a standard that must be observed or by which their actions must be
justified.
The debate taking place at the present time regarding the content of the rule of self-
defence as enshrined in Article 51 of the Charter is not, to my mind, a demonstration
of the irrelevance of the Charter. Rather, it is a demonstration that even the most
powerful state feels the need to justify its actions in law in order to secure inter-
national legitimacy.
There is another dimension to international law which is sometimes overlooked in
an era of globalization. International law, however inchoate it may be, represents the
expectations and claims of substantial segments of humanity. It cannot be dismissed
merely because of its perceived weakness. This dimension is of particular relevance to

I
..-1
THE PERSPECTIVE OF A
FOREIGN MINISTRY LEGAL
ADVISER
Michael Wood

To spend nearly thirty-three years as a Legal Adviser in the Foreign and Common-
wealth Office may sound unadventurous. Yet the work is infinitely varied, often
exciting, and --.::i'nost of the time-enjoyable.
The first thing to' make clear is that the law of concern to a Foreign Ministry is by
no means exclusively public international law. Questions of domestic law, including
constitutional law, arise constantly, and not only over the domestic implementation
of treaty and other international obligations. In the case of the United Kingdom,
domestic law includes the law of the United Kingdom's overseas territories. European
Union law is a field of the highest importance, as is the law of the European Conven-
tion on Human Rights. Both are now largely incorporated into UK domestic law, but
have their origins in public international law.
A second important point is that, in areas in which they specialize-especially in
general questions of public international law-FCO Legal Advisers tend to give advice
and assistance to the whole of Government. This is an important aspect of the wider
'service' which the FCO offers to other Government Departments.
A third point is that, despite our title, FCO Legal Advisers are not confined to
giving advice. Much of our time is spent in negotiating, and most of that is done
abroad-at the United Nations in New York and Geneva, in Brussels, Strasbourg,
and elsewhere. I used to regard at least one trip to Paris a year as a given. I never tire
of visiting new places, whether it be a few days travelling around Svalbard (some-
thing of a highlight), or three weeks incarcerated at the Wright-Patterson Air Force
Base near Dayton, Ohio. A particularly agreeable part of the job is the number of
good friends one makes from all over the world: the Governmental 'regulars' on the
international legal network are a relatively small and close-knit group, who meet
frequently in different locations to resolve (or at least seek to resolve) a great variety
of issues.
A fourth and most important point is the role of a Foreign Ministry Legal Adviser.
· 26 MICHAEL WOOD THE PERSPECTIVE OF A FOREIGN MINISTRY LEGAL ADVISER 27

This is a subject which has been much discussed. For the present writer, Frank by the Security Council during the period 1991-4, including a number which
Berman expressed it best: involved innovation and considerable subtlety, eg those concerning Lockerbie,
What then is the role of the governmental legal adviser? In the writer's view the main role of the former Yugoslavia, the Republic of Macedonia's admission to the United
the Governmental legal adviser is to 'make' his Government comply with international law. Nations, the International Criminal Tribunals for the Former Yugoslavia and for
One must of course put the word 'make' in mental inverted commas. It would be a rare case Rwanda;
indeed if a Governmental legal adviser were in a position to compel the Government he acting as Agent in cases before the International Court of Justice (Lockerbie;
serves to act in one way or another. But it cannot by the same token be the limit of the Legality of Use of Force) and in inter-State arbitrations (the OSPAR and UNCLOS
function of even someone whose role is that of 'adviser' simply to ascertain what the law is,
arbitrations over Sellafield);
to explain it to the best of his ability to his client, and leave it at that. Of course, when it
comes to action the final decision may not be his. It is a truism to say that the question advising on questions concerning the use of force, including Kosovo in 1998,
whether or not to comply with what international law requires is always a question of policy. Afghanistan in 2001, and Iraq in 2002-3;
But even the meanest definition of the role of the international law adviser in government
handling longer-term developments in international law, including the work of
cannot treat that policy question as if it were an entirely neutral one. It must be assumed to
be a necessary part of the role that the international law adviser should be expected to use the International Law Commission and the Sixth Committee on matters such as
his gifts of exposition and persuasion to bring those with whom the power of decision lies to State responsibility and State immunity.
use this power to the right result (Berman, 2000, p 3).
Most of the above issues come to mind because they involved a great deal of
Looking back these thirty-three years, what highlights do I see? A very selective list work, over an extended period. Other important issues may have to be dealt with
would include the following: very quickly, or appear essentially as critical points in greater developments. Recent
examples include aspects of the International Criminal Court (the negotiations
- negotiating a number of terrorism conventions in the 1970s, including the
leading to the adoption of Security Council Resolution 1422 (2002), questions con-
Internationally Protected Persons Convention (and its accompanying General
cerning Article 98(2) agreements, the election of the judges). And much that has to
Assembly resolution) in the Sixth Committee, which was a tough introduction to
be done may be seen as 'damage limitation': sitting firmly on silly ideas or, as it was
the legal politics of the United Nations at the time; and the 1978 European
termed in New York, giving a 'decent burial' to items on the Sixth Committee's
Convention on the Suppression of Terrorism, which sought, without complete
agenda that were going nowhere.
success, to circumvent the political offence exception to extradition;
My main impression, looking back over thirty-three years, is of the huge increase in
- negotiating over many years the United Nations Convention on the Law of the the quantity and complexity of public international law issues that have to be dealt
Sea of 1982, especially its Part Xl on the Deep Sea Bed, an even more acute with by Government, and their increasing political and public interest. Over the last
exposure to UN legal politics in the era of the so-called 'New International five years alone, we have seen the British media covering international law issues,
Economic Order', and involvement in setting up the International Seabed day after day for weeks on end, such as the immunity of a former Head of State
Authority in Kingston, Jamaica; (Pinochet), the rights and wrongs of the United States' position on the International
involvement in the Rhodesia settlement, both at Lancaster House and with Criminal Court (during the evolution of Security Council Resolution 1422 in June-
Governor Soames in Salisbury (now Harare), when questions of public July 2002), and-as I write-the legal necessity or not of a 'second' resolution before
international law were for the large part in the background but nevertheless force may be used to disarm Saddam Hussein. The number of lawyers in the FCO has
of considerable underlying importance; scarcely increased over this period, with the result that they are under far greater
acting as Agent before the European Court of Human Rights over a five-year pressure than in 1970 when I first joined the Office.
period, including in cases such as Soering, One result of this pressure, which I personally greatly regret, is that it becomes
increasingly difficult to find the time to write articles or books. In earlier times, FCO
close involvement in the Cambodia peace negotiations; the Two-plus-Four and
Legal Advisers appeared to have the time to contribute far more to academic debate
One-plus-Three negotiations on the reunification of Germany; the Dayton
than they do now, at least in writing. This is unfortunate, since the publication of
Peace Agreement for Bosnia; and the failed negotiations at Rambouillet fora
books and articles often adds to the personal satisfaction that one derives from the
corresponding Kosovo peace settlement;
job; moreover, those involved in negotiations, and involved in the practical day-to-day
- involvement, as Legal Adviser to the United Kingdom's Mission in New York, in application of public international law, are well placed to shed a special light on
the drafting of the hundreds of resolutions and Presidential Statements adopted developments.
28 MICHAEL WOOD

'International law is what other countries break'. So say the cynics. It may be
thought that the 'invisible college of international lawyers' is largely composed of.
idealists, not cynics. But for my money, what is really needed is an underlying idealism PART I
combined with a very healthy dose of realism .. Perhaps the two greatest achievements.
()f international law over the last century are, first, the restrictions on the use of forc~
embodied in the Pact of Paris and then in the United Nations Charter; and, secondly,
the development of human rights and humanitarian law and their enforcement. THE HISTORY AND
Both these developments are currently under severe challenge. It is, indeed, the best
of times and the worst of times to be a Foreign Ministry Legal Adviser. Whatever else
it is, life is not dull. THEORY OF
INTERNATIONAL LAW
REFERENCE
BERMAN, SIR FRANKLIN (2000), 'The Role (ed.), The International Lawyer as Prac-
of the International Lawyer in the Making titioner (London: British Institute of
of Foreign Policy' in Wickremasinghe, C International and Comparative Law), p 3.
1
A SHORT HISTORY OF
INTERNATIONAL LAW
Stephen C Neff

SUMMARY

This history will emphasize broad trends in international law, in both the conceptual
sphere and in State practice. The discussion will move chronologically, beginning with a
cursory look at the ancient world, followed by a rather fuller discussion ofthe great age of
natural law in the European Middle Ages. The classical period (1600-1815) witnessed
the emergence of a dualistic view of international law, with the law of nature and the law
of nations co-existing (more or less peacefully). For the nineteenth century, the least
known part of international law, the existence of three distinct traditions will be noted-
but with one of them (the positivist one) so dominant as nearly to efface the other two.
Regarding the inter-war period, developments both inside and outside the League of
Nations will be considered. Since the post-1945 period will occupy most ofthe remainder
of this book, this discussion will confine itself to a few historically-oriented comments on
some of its most general features.

I. INTRODUCTION

No area of international law has been so little explored by scholars as the history
of the subject. This is a remarkable state of affairs, probably without parallel in
any other discipline (including other branches of law). This intellectual scandal,
as it well deserves to be called, has only recently begun to be remedied. As we
are still only in the earliest stages of the serious study of international legal history,
many blank spots exist, some of which will be identified in passing in the discussion
below.
This short history-inevitably very short history-can give no more than a flavour
of the major periods of development of international law. Nor will it be possible
to give more than the most token attention to developments outside the Western
32 STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 33

mainstream. Both ideas and practice will be covered. The ideas chiefly concern what most evidence for a nascent international law in the three areas of ancient Eurasia that
international law was thought to consist of in past times. State practice is concerned were characterized by dense networks of small, independent States sharing a more
with what states actually did. It was the two in combination-if not always in close or less common religious and cultural value system: Mesopotamia (by, say, the fourth
harmony-that made international law what it became. or third millennium BC), northern India (in the Vedic period after about 1600 BC),
and classical Greece. From each of these three State systems, characterized by a blend
of political fragmentation and cultural unity, a number of fairly standard practices
emerged, which helped to place inter-State relations on at least a somewhat stable
II. ANCIENT WORLDS and predictable footing. This was true in three areas especially: diplomatic relations,
treaty-making, and the conduct of war. l A major additional contribution of the Greek
For a vivid indication of how persons from even the most diverse cultures can city-States was the practice of arbitration of disputes, of which there came to be a very
relate to one another in a peaceful, predictable, and mutually beneficial fashion, it is impressive body of practice (Ager, 1996). Nor was it inordinately difficult for some of
difficult to top Herodotus's description of 'silent trading' between the Carthaginians these practices to extend across deeper cultural lines as well. One of the earliest
and an unnamed North African tribe in about the sixth century Be. When the surviving treaty texts is between Egypt and the Hittite Empire; from the thirteenth
Carthaginians arrived in the tribe's area by ship, they would unload a pile of goods century BC, which concerned an imperial division of spheres of influence, but which
from their vessels, leave them on the beach and then return to their boats and send - also dealt with extradition of fugitives. The problem of good faith and binding force
a smoke signal. The natives would then come and inspect the goods on their own, was ensured by enlisting the gods of both nations (two thousand strong in all) to act
leave a pile of gold, and retire. Then the Carthaginians would return; and, if satisfied as guardians (Bederman, 2001, pp 147-150).
that the gold represented a fair price, they would take it and depart. If not satisfied, With the advent of the great universal religions, far more broadly-based systems of
they would again retire to their ships; and the natives would return to leave more world order became possible. One outstanding example was the Islamic empire of the
gold. The process would continue until both sides were satisfied, at which the point seventh century AD and afterwards. Significantly, the body of law on relations
the Carthaginians would sail away with their gold, without a word exchanged between between States within the Muslim world (the Dar aI-Islam, or 'House ofIslam') was
the two groups. 'There is perfect honesty on both sides', Herotodus assures us, with no much richer than that regarding relations with the outside world (the Dar al-Harb, or
problems of theft or conflict (Herodotus, Histories, p 336). 'House of war'). But even with infidel States and nationals, a number of pragmatic
This silent trading arrangement may have been successful in its way, but a process devices evolved to permit relations to occur in predictable ways-such as 'temporary'
of interaction so inflexibly ritualistic and so narrow in subject matter could hardly truces (in lieu of treaties) or safe-conducts issued to individuals (sometimes on a very
suffice for political interactions between States, even in ancient times. Most people large scale).2
probably have the feeling that something rather more elaborate is required to merit In Western history, the supreme exemplar of the multinational empire was Rome.
the grand name of 'international law'. Indeed, the ambiguity of the term 'inter- But the Roman Empire was, in its formative period, a somewhat tentative and
national law' leads to various different answers to the question of when international ramshackle affair, without an over-arching ethical or religious basis comparable to the
law 'began'. If by 'international law' is meant merely the ensemble of methods or Islamic religion in the later Arab empire. That began to change, however, when certain
devices which give an element of predictability to international relations (as in the philosophical concepts were imported from Greece (from about the second century
silent-trading illustration), then the origin may be placed virtually as far back as BC). The most important of these was the idea of a set of universal principles of
recorded history itself. Ifby 'international law' is meant a more or less comprehensive justice: the belief -that, amidst the welter of varying laws of different States, certain
substantive code of conduct applying to nations, then the late classical period and substantive rules of conduct were present in all human societies. This idea first
Middle Ages was the time of its birth. If 'international law' is taken to mean a set surfaced in the writings of Aristotle (Rhetoric, p 1370). But it was taken much further
of substantive principles applying uniquely to States as such, then the seventeenth by the philosophers of the Stoic school, who envisaged the entire world as a single
century would be the starting time. If 'international law' is defined as the integration 'world city-State' (or kosmopolis) governed by the law of nature. Cicero, writing under
of the world at large into something like a single community under a rule oflaw, then Stoic influence, characterized this law of nature as being 'spread through the whole
the nineteenth century would be the earliest date (perhaps a trifle optimistically). If human community, unchanging and eternal' (Cicero, Republic, pp68--69).
'international law' is understood to mean the enactments and judicial decisions of
a world government, then its birth lies (if at all) somewhere in the future-and, in all
I On the Middle Eastern and Greek practice, see generally Bederman, 2001. On ancient India, see Bhatia,
likelihood, the distant future at that. 1977.
If we take the most restricted of these definitions, then we could expect to find the 2 On Islamic views of international law, see generally Khadduri, 1955.
34 STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 35

This concept of a universal and eternal natural law was later adopted by two other universe could be derived (although not until long after the Middle Ages would
groups, the Roman lawyers and the Christian Church, and then bequeathed by them serious attempts actually be made to achieve this feat).
to medieval Europe. The lawyers in particular made a distinction that would have a Medieval natural law was also broadly teleological in nature, particularly so with
very long life ahead of it: between a jus naturale (or natural law properly speaking) the growth in influence of the Aristotelian outlook after the twelfth century. By this
and a jus gentium (or law of peoples). The two were distinct, but at the same time is meant that the universe-comprising both the social and the natur,al worlds-was
so closely interconnected that the differences between them were often very easily held to be organized according to a (literally) universal grand plan. And that plan and
ignored. Natural law was the broader concept. It was something like what we would purpose infused and animated the entire universe, both natural and social. Law, as an
now call a body of scientific laws, applicable not just to human beings but to the integral part of this grand master plan, had a purpose: to move society ever further in
whole animal kingdom as well. The jus gentium was the human component, or the direction indicated by reason and the law of nature. In short, medieval man-
sub-category, of it. Just as the law of nature was universal in the natural world, so was indeed, the whole medieval universe-was imbued with a strong sense of mission.
the jus gentium universal in the human world. I There continued to be, as in the ancient period, a distinction between the jus

naturale and the jus gentium, still without any very sharp line between the two. The jus
gentium was very much the lesser of the two, being seen largely as an application of
the natural law to human government. These jus gentium rules were sometimes
III. THE MIDDLE AGES: THE NATURAL LAW ERA referred to as (secondary' natural-law rules. It must be stressed that this original jus
gentium did not consist entirely, or even primarily, of what would now be called rules
The European Middle Ages became the great age of natural-law thought. During this of international law. Instead, it was a collection of laws common to all nations,
period, natural-law ideas developed under the umbrella of the Catholic Church. But it affecting individuals of all stations, from the highest to the lowest and dealing with all
must be remembered that natural law was not specifically Christian in its inception, walks of life-contract, property, crime, and the like. It was more in the nature of
but rather was a legacy of the classical Stoic and Roman legal traditions. It is true that what we would now call an ethical system, setting out general norms of conduct, than
there was a line of medieval (and, later, Protestant) thought known as (voluntarism', of a legal code, listing prohibitions and punishments.
which held natural law to be a pronouncement or command by God, with the con- In the grander scheme of natural law, there was no strong tendency to think that
tents discoverable by humans by way of revelation. But the dominant school of any body of law existed that was applicable uniquely to international relations as such.
thought-represented outstandingly by Thomas Aquinas-was the rationalist (some- This point was most apparent in the development of one of the most notable products
times called the intellectualist) one, which held the content of the natural law to be of medieval natural-law thought: ideas about the lawful resort to force (or about (just
susceptible of discovery and application by means of human reason rather than wars', in the common medieval expressioII). Just-war ideas first emerged in debates
revelation. 3 over an issue of personal conduct-whether practising Christians could lawfully
Natural law is one of the many parts of international law that has never received perform military service, which involved violence and killing, contrary (apparently)
the systematic study that it merits. Moreover, many of its ideas were deeply foreign to to the express commands of scripture. It was held that such service was permissible,
our present ways of thinking. In the present context, only a few of the most salient so long as it arose from noble and disinterested motives: from the desire to protect
points can be noted. 4 Perhaps the single most outstanding feature of medieval natural the community against oppressors, rather than for personal glory or gain or (worst
law was its all-embracing character. It encompassed and regulated the natural and of all) for love of violence for its own sake. This basic idea was then extrapolated,
social life of the universe in all its infinite variety-from the movements of the stars in with very little change, to the inter-State level, so that States, like private persons, were
their courses to the gurgling of the four humours through the veins and arteries of the permitted lawfully to wage war for such purposes as the punishment of wickedness
human body, from the thoughts and deeds of all of the creatures of land, sea, and air, or, generally, for the enforcement of the law-but not for vainglory or conquest or
to those of human beings and the angels in the heavens. At the same time, however, oppression. 5
amidst this kaleidoscopic variety, natural law was, ultimately and fundamentally, The description of medieval natural law as rationalist in character is, in some ways,·
monistic in character, in that it was based on a single grand coherent plan for the all too accurate. It was much more the subject of debate amongst educated theorists,
universe at large. Moreover, it was seen to be deductive in nature-ie, based on a very in a theological milieu, than it was a living law in the everyday world. As a result, many
small number of basic principles froIl:?- which, in theory, all the infinite detail of the of the more practical issues-especially those relating to war-were treated by secular
writers rather than by theologians. For example, Bartolo of Sassoferrato, the famous
3 On the voluntarist and rationalist traditions in natural-law thought, see Schneewind, 1998, pp 17-36.
4 For a good short account of medieval natural-law theory, see generally Gierke, 1937. 5 For an outstanding exposition of medieval just-war theory, see Russell, 1975.
STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 37

Italian lawyer of the fourteenth century, wrote a treatise on reprisals, a subject of compiled in about the thirteenth century for the maritime community of Barcelona.
practical importance to merchants suffering injuries at the hands of foreign States. At These codes governed the broad range of maritime activities, including the earliest
about the same time, rules on the conduct of war ('the law of arms', as it was known) rules on the rights of neutral traders in wartime.
were expounded by John of Legnano and later by a monk named Honore de Bonet In short, medieval international law was a jumble of different beliefs and prac-
(or Bouvet), whose book entitled The Tree of Battles, of the 1380s, became very tices-from the rarefied conceptions of the law of nature, to the more serviceable
influential. 6 Accounts of medieval warfare led to grave doubts, however, whether even rules by which various communities conducted their actual day-to-day business, from
these practical rules exerted much real influence. warfare and diplomacy, to buying and selling.
Only in the late Middle Ages did international law begin to be applied regularly to
immediate political and military issues. Rules on the acquisition of territory became
highly relevant with the European explorations of Africa and, particularly, the New
World from the fourteenth century onward.· In the sixteenth century, the Spanish IV. THE CLASSICAL AGE (1600-1815)
conquest of the Indian kingdoms in the New World sparked vigorous debates (if only
after the fact). The Dominican scholar Francisco de Vitoria, in a series of lectures at In the seventeenth and eighteenth centuries, a new spirit entered into doctrinal
the University of Salamanca, concluded that the Spanish conquest was justified, on thought on international law. Its principal harbinger was the Dutch writer Hugo
the ground that the Indians had unlawfully attempted to exclude Spanish traders from Grotius, whose major work On the Law of War and Peace was published in Paris in
their kingdoms, contrary to natural-law rules. But he also confessed that his blood 162S-a work so dense and rich that one could easily spend a lifetime studying it (as a
froze in his veins at the thought of the terrible atrocities committed by the Spanish in number of scholars have).9 Grotius has often been credited with the 'secularization'
the process. 7 At the end of the century, the Italian writer Alberico Gentili, who was a of natural-law thought, partly on the basis of the celebrated statement in the prologue
practising lawyer as well as a university scholar, produced the first truly systematic of his book, that the law of nature would be the same even if God did not exist.
study of the law of war, bringing classical just-war thought to bear on a broad range In reality, this was merely an announcement of his adherence to the rationalist (or
of concrete questions arising from the actual practice of war. 8 intellectualist) tradition of natural law, inherited from medieval Catholic thought,
Much of the State practice in the Middle Ages consisted of traditional ways as distinct from the voluntarist philosophy, which had become the dominant view
inherited from ancient times. The area of diplomatic relations is an example, with of Protestantism. Nor was Grotius very modern in his style. He carefully avoided
diplomats increasingly being accorded a broad (but not absolute) degree of immunity references to current or recent political events wherever possible, thereby sharply
from judicial process in host States. Law was also being used to facilitate a different limiting the practical utility of his book. Instead, he risked burying his hapless readers
sort of 'commerce' between peoples: foreign trade by private merchants, often with beneath an avalanche of illustrative examples, promiscuously culled from classical and
the Muslim States, which were more advanced economically for much of this period Biblical writings.
than the European States were. Many of the financial practices associated with inter- The most crucial contribution of Grotius was his emphasis on the law of nations
national trading, such as bills of exchange (which were probably of Muslim origin) (the jus gentium) as a body of law distinct from the law of nature properly speaking,
found a wide use within the peripatetic medieval merchant community. Beginning and not merely as a component or sub-set of it, as had been previously the case.
in about the eleventh century, European (chiefly Italian) States began to conclude Furthermore, this body of law was no longer seen, as in the Middle Ages, as the
bilateral treaties that spelled out various reciprocal guarantees of fair treatment. These application of natural law to human affairs. Instead, the practice of States was now
agreements, sometimes concluded with Muslim States, granted a range of privileges to seen as a distinct source oflaw in its own right. The law of nations, in Grotius's words,
the foreign merchants based in the contracting States, such as the right to use their was the 'law which has received its obligatory force from the will of all nations, or of
own law and courts when dealing with one another. The same process was at work in many nations' (Grotius, War and Peace, p 44). This human-made law of nations later
the sphere of maritime trading. The seafaring community made use of the laws of came to be commonly labelled the 'voluntary' law of nations (a term that will be used
Oleron (which were actually a series of court decisions from the small island of that henceforth in this discussion).lo One of the most distinctive features of this voluntary
name in the Bay of Biscay), and also of a code of rules called the Consolato del Mare, law, to Grotius, was that it only purported to regulate the external conduct of rulers

9 Much of the study of Grotius has been by political scientists rather than specifically by international
6 On medieval law on the conduct of war, see Keen, 1965. lawyers. Remarkably, there is no comprehensive and accessible survey of his international legal thought and
7 Vitoria, 'On the American Indians', in Political Writings, pp 231-292; Letter to Miguel de Arcos, ibid, influence in English. For an older work that is still of value, see Knight, 1925. For a brief overview of his legal
pp 331-333. thought, see Tuck, 1999, pp 78-108. For a more thorough study, see Haggenmacher, 1983.
8 On Gentili, see generally Van der Molen, 1968. 10 Gottfried von Leibnitz may have been the first to use this particular expression.
STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 39

and States. It did not concern itself, as the natural law did, with inward dispositions or detailed discussions of practically everything under the sun and beyond (including
states of mind. a discourse on the characteristics of inhabitants of other planets)-while paying
Other forces were at work in this period, helping to create a law of nations in the full virtually no heed to State practice. It holds an honourable place on the list of the
sense of the word. It was only now that nation-States were coming to be seen as world's great unreadable and unread masterpieces. 12
permanently existing, corporate entities in their own right, separate from the rulers These two kinds of law-the law of nature (properly speaking) and the law
who governed them at any given time. The most concrete sign of this development nations-coexisted in a complex, and somewhat untidy, way. From their interplay
was the fact that it became commonly accepted in this period that treaties were arose a modern law of nations that was rooted in State practice as well as in grand
binding on the State as such, not merely on the particular rulers who concluded them. theory. In principle, the law of nature was recognized as superior to the voluntary law.
During this period, too, States began to build up permanent government bureaucra- Only where the law of nature was unable, for one reason or another, to provide an
cies, whose task was to regulate and monitor the activities of the nation as a whole, in effective guide to State conduct could the voluntary law of nations be brought in to fill
the general national interest. There was even, in Germany, an academic science of the gap. The voluntary law, in other words, was seen as interstitial in nature rather
statecraft, known as 'cameralism'. Parallel with this emergence of States as distinct than comprehensive, as the natural law supposedly was.
and permanent entities with their own legal 'personality' (as lawyers put it) was the The dualistic character of the law in this period-and the increasing role of the
idea that these entities should be governed by a distinct set of laws uniquely suited to voluntary component of it-was nowhere more evident than in the writing of
them alone-in short, by a law of nations, which would be distinct from the general the Swiss diplomat Emmerich de Vattel. His famous exposition of The Law of Nations,
ethical principles laid down by the classical natural law. published in London in 1758, was to international law what the near-contemporary
This law of nations-in this newer sense of the term-would consist of a set of Commentaries of Blackstone were to English law. The first systematic international-
rules governing the relations between nation-States as such. In the late eighteenth law treatise of the modern kind, it would not look drastically out of place on a
century, it would even receive the new label of 'international law' at the hands of twenty-first-century bookshelf, as the works of Grotius or Wolff certainly would.
Jeremy Bentham (Nussbaum, 1947, pp 135-136). Since the subject matter of this law Instead of setting out a grand philosophical scheme, the book was designed as a sort
would be the relations between States, it necessarily left States free to determine of handbook for lawyers and statesmen, full of practical applications of the law as well
internal matters for themselves. In other words, there now emerged a distinction, as illustrations from recent practice. Moreover, its graceful style ensured it a wider
which gradually became sharper over time, between international matters and usage by lawyers, judges, and lay persons than any other international writing had
domestic matters. The Peace of Westphalia of 1648, ending the Thirty Years War, previously had. It can make a good claim to being the greatest international-law
illustrated this new outlook in action, by expressly placing religious matters in the textbook ever written. With it, we stand at the threshold of modern international law.
sphere of domestic activities. In a number of ways, Vattel's treatise was a popularization of Wolff's ideas, but it
It should not be thought, however, that natural law was discarded in anything like was really written in a very different spirit. 13 Where Wolff had been disdainful of the
an abrupt fashion in this period. In fact, the seventeenth and eighteenth centuries voluntary law, Vattel fully embraced it, cheerfully and candidly expounding it along-
were the great age of systematic jurisprudence, in which natural law was re-housed (it side the natural law whenever appropriate. He has been accused of inconsistency-of
might be said) in grand logical edifices of a hypothetico-deductive nature, modelled constantly being on both sides of issues-but that charge is unfair. The fact is that he
on that most magnificent of all intellectual constructions, mathematics. The names had two bodies of law to expound, which sometimes provided differing solutions
of Thomas Hobbes, Baruch Spinoza, and Gottfried von Leibnitz come readily to mind to practical problems. He was generally very forthright about which law he was
in this regard. (Grotius himself had advanced this ideal of organizing natural law into expounding at any given time. It is we who tend to misunderstand the nature of his
a mathematical-style deductive order, but he made no real progress in that direction.) task because the dualistic approach of that era is so foreign to us.
Amongst the most prominent in this rationalist tradition was the German writer The best example of the dualistic 'method' in practice concerned war. The natural
Samuel Pufendorf, whose major work on The Law of Nature an.d Nations was written law on just wars allowed a State to resort to force in self-help to vindicate a legal right
in 1672. (Pufendorf, incidentally, held one of the first academic chairs in 'the law of that had actually been violated (or was threatened with violation) -so that, in a given
nature and nations' at the University of Heidelberg in the 1660s.)11 The culmination conflict, one side would be fighting justly, and the other one not. The voluntary law,
of this systematic natural-law movement came in the mid-eighteenth century, at the however, was not concerned over which party had the stronger legal claim to use force
hands of the German philosopher Christian Wolff, who fittingly had been trained as a
mathematician. Wolff's massive eight-volume encyclopaedia of natural law contained 12 On Wolff's cosmological views, see Wolff, Cosmologia. Only the final volume of the main work on
natural law concerned international law. For an English translation of that final volume, see Wolff, Law of
Nations Treated According to a Scientific Method.
II On Pufendorf, see Dufour, 1991 and Tuck, 1999, pp 140-165. 13 For Vattel's full presentation of the views of Wolff, see Vattel, Questions.
40 STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 41

(ie, it did not deal with the jus ad bellum, in legal terminology). Instead, it simply seventeenth and eighteenth centuries. A custom was seen as a 'tacit treaty', so that a
treated each side as if it had lawfully resorted to war. It then contented itself with customary practice would have the force of law for those States which habitually
regulating the conduct of wars, fixing rules for both parties to apply, on an even- followed it (ie, which were parties to the tacit agreement) but not for other States.
handed basis, in their contention against one another (the jus in bello, in the common These, and other, uncertainties at the heart of customary law have continued to
legal parlance). In effect, then, the natural law saw war in terms of law enforcement plague-or to enrich - international law to the present day.14
and as a sanction for wrongdoing. The voluntary law, in contrast, saw war more in
terms of a duel.
In other areas, the two bodies oflaw reinforced one another. A good illustration was
the sphere of economic relations. In the natural law, there had been support for a v. THE NINETEENTH CENTURY (1815-1919)
general principle of freedom of trade. But in the seventeenth century, European
States began to give substance to that principle by building up an increasingly dense The nineteenth century, extraordinarily, is the least explored area of the history of
network of bilateral treaties of friendship, commerce, and navigation ('FCN treaties', international law. It might be said that three rival traditions co-existed uneasily in that
in common legal shorthand). Although there were inevitable variations in detail, there period. For lack of any standard or accepted terminology in this area, we may label
was also a high degree of standardization. Typically, the treaties would guarantee non- them the positivist tradition, the natural-law remnant, and the historicist (or p.erhaps
discriminatory treatment of merchants from each State settling in the other. Also, in romantic) tendency. The dominant tradition of these three, by a very wide margin,
the event of war between the two States ('which God forbid!' in the common phrase), was the positivist one, which :will therefore claim the greater part of our attention. The
a period of grace would be given to the merchants to sort out their affairs before historicist strand has been the least explored..
departing. These treaties also laid the ground of the law of neutrality by specifying the
rights and duties that neutral merchants would have during war.
A. THE POSITIVIST TRADITION
Because of the ever-growing importance of the voluntary law, it is well to say a bit
more about it. It had, in general, a practical and utilitarian character, even if it By 'positivism' is meant such a wealth of things that it may be best to avoid using the
involved some neglect of the eternal verities championed by the strict natural lawyers. term altogether. As originally coined in the 1830s by the French social philosopher
The voluntary-law outlook also gave to international law, for the first time, a dynamic Auguste Comte, it meant something like 'scientific' or 'objective' or 'empirical',
flavour, in the form of a concern with the making of new law, rather than of simply in contrast to speculative or religious or hypothetico-deductive modes of thought.
determining what the natural law-in its eternal but static majesty-was. Finally, Comte posited that the human race had gone through three great historical stages: the
it should be noted that this voluntary law was made in two different ways. One was by theological, the metaphysical, and (now) the 'positive'. In the theological stage,
means of treaties. The other was by way of custom, or 'usage' as it was often called. religious ideas had been dominant. In the metaphysical stage, legalistic and juris-
Both of these, however, posed certain conceptual difficulties. prudential ideas had prevailed-meaning, in essence, natural law. But the 'positive'
Consider treaty law first (or 'conventional international law' in the rather awkward, era now dawning promised to bring the true and final liberation of the human mind
but common, phrase). That treaties were binding on parties in the ordinary case no from the superstitions and dogmas of the past.
one doubted. There was doubt, however, whether treaties could be said to be binding This positivist age would be a scientific one, based on rigorous, disinterested
in extreme situations in which a State's most vital interests (such as survival) would be study of objective, ascertainable facts. These would be harnessed for the planned
threatened by adherence. Pufendorf thought not. To Pufendorf (as well as to Wolff and systematic improvement of the lot of the human species. The old ecclesiastical,
and Vattel), a State's highest obligation was its natural-law 'duty to itself' (in the feudal, military, and legal elites would be displaced, in favour of a new ruling class
common phrase of the time)-ie, the duty of self-preservation. This overriding of engineers, financiers, inventors, and social planners. Positivism, in this original
doctrine of necessity (as it came to be known later) would inevitably introduce a Comtean sense, became a strange amalgam of technocracy and evangelism. Indeed,
certain inherent instability into treaty relations. positivism actually did become a religion, with the most influence, as it happens,
The conceptual problem with custom was somewhat greater-and cannot be said in Brazil (whose national flag is emblazoned with the positivist motto 'Order and
to have been resolved even today. In the Middle Ages, some (like Aquinas) saw custom Progress').
as a form of legislation-of legislation by and for the whole community at large, In the more mundane legal sphere, perhaps the principal manifestation of
brought about through day-to-day practice. Others, however, preferred to see custom positivism was the belief that law is entirely a human institution. In the realm of
as a sort of private agreement, or wide-ranging contract, amongst ordinary
people. This 'contractual' view of custom tended to dominate international law in the 14 See Ch 4 below.
42 STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 43

international law specifically, this meant that positivism was the clear heir to the over the characteristics of beings on other planets. There was much work to be done
voluntary law of the seventeenth and eighteenth centuries. In recognition of this fact, here on Earth.
legal scholars in the nineteenth century conferred onto Grotius the retrospective title The instrumentalist approach gave to positivism a certain moral ambivalence. If
of 'father of international law' (with some assiduous, and patriotic, lobbying from the law was a servant, then it could serve evil masters as readily as benevolent ones.
Dutch lawyers in particular). But there was a clear difference in spirit between the The law could be put to work, for example, in the elimination of slavery and slave
earlier voluntary law and this new positivism. The voluntary law had been applied trading, as in the General Act of the Brussels Conference of 1890, which established an
faute de mieux, hesitantly, almost apologetically, in cases in which, for various reasons, International Maritime Office (at Zanzibar) to act against slave trading. But the law
the natural law could not readily be applied. Nineteenth-century positivism was could also be enlisted to fix the 'rules of the game' for the imperial partitioning of
much more doctrinaire. It applied the voluntary law as a point of high principle Africa, as at the Berlin Conference of 1884-85. (Contrary to the belief of some, that
rather than merely as an expedient, to the point that the voluntary law came to be conference did not actually allocate any territories; it established the criteria by which
regarded as the only true source oflaw. As the World Court would later put it, '[t]he the powers would recognize one another's claims.)
rules of law binding upon States ... emanate from their own free will'. IS From this Another effect of the technocratic cast of positivism was that questions of high
outlook emerged the common saying, that international law was a law between States, politics were off limits to lawyers, in principle as well as in practice. In particular, it
rather than a law above States (as in the natural-law vision). came to be widely agreed that fundamental national-security interests were in the
Certain other aspects of the positivist outlook should be noted. One was the realm of politics and not of law. This meant, in turn, that the rights and wrongs of a
insistence on the independent nation-State as the fundamental unit of international State's decision to resort to war (the jus ad bellum) were not a subject for lawyers to
law. This inevitably gave to positivism a strongly pluralistic cast. Each nation-State deal with. Instead, war was now seen as an inevitable and permanent feature of the
possessed its own distinctive set of national interests, which it was striving to achieve inter-State system, in the way that friction was an inevitable and permanent feature of
in an inherently competitive, even hostile, environment. Each State was sovereign a mechanical system.
within its territory, so that each State's law could reflect that State's own particular What international lawyers lost as moral critics in the nineteenth century,
history, values, aspirations, traditions, and so forth. It was in this period that the they gained as solid professionals, as international law became, for the first time, an
principle of 'the sovereign equality of States' became the fundamental cornerstone- established profession. The two major professional bodies, the International Law
or even the central dogma-of international law, along with the concomitant rule Association and the Institut de Droit International, were both founded in the 1870s.
of non-intervention of States into the internal affairs of one another. This naturally Characteristically for this period, and reflecting the increasingly technical outlook of
pluralistic outlook of positivism was greatly reinforced by the huge influx of new lawyers, these associations rigorously eschewed political issues. International law
States into the international community during the nineteenth century, most also became a subject of university studies on a large scale for the first time during the
conspicuously from Latin America and Eastern Europe but also from the Far East nineteenth century, so that there could now be a steady supply of trained personnel
(Bull and Watson, 1984). to deal with international legal issues as they arose.
This pluralistic mentality in turn meant the abandonment of the monistic and The nineteenth century was also the period in which major systematic treatises
teleological view of medieval natural law, which was now replaced by an instrumen- began to be written in the various European languages. Where Vattel had led, many
talist outlook. That is to say, the law was no longer seen as having any innate goal of followed. In 1785, Georg Friedrich de Martens wrote an important early treatise,
its own, any intrinsic master plan. Instead, the law was now seen, in technocratic which departed from earlier writing in being largely based on State practice rather
terms, as a tool for the attainment of goals which were decided on by political pro- than on natural-law doctrine. Originally penned in Latin, it was soon translated into
cesses. Law, in short, was now a servant and not a master. With this technocratic and French and English and was later greatly enlarged (Martens, Primae lineae). Martens
instrumentalist outlook, international lawyers in the nineteenth century became also compiled an important collection of treaty texts. In English, the most notable
increasingly reluctant to trespass into areas of political controversy, in marked con- early exposition was by Henry Wheaton, an American diplomat and legal scholar,
trast to their natural-law forbears, who had proudly worn the mantle of social critics. whose Elements of International Law was published in 1836. Its popularity is indicated
International lawyers began to see themselves instead as the juridical counterparts of by the fact that it was translated into French, Spanish, and Italian, with new editions
Comte's engineers. This positivist ethos brought a new sense of precision, a business- produced for fully a century after the first one. Wheaton was followed in Britain by
like character to the study and practice oflaw that was a welcome contrast to some of Robert Phillimore, whose treatise of 1854-61 ran to four volumes (with two further
the cloudier musings of natural lawyers. No longer was there concern, as with Wolff, editions). The first major German-language treatise was by Auguste Wilhelm Heffter
in 1844 (which ran to eight editions by 1888). The French were slightly later in the
15 'Lotus', Judgment No 9, 1927, PClJ, Ser A, No 10. field, with a Precis du droit des gens, by Theophile Funck-Brentano and Albert Sorel
44 STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 45

in 1877. More influential was the Manuel de droit international public by Henry One of the major achievements of the nineteenth century was in the area of the
Bonfils in 1894 (which ran to eight editions by the 1920s). One of the most popular peaceful settlement of disputes. Although it was widely agreed that fundamental
texts was that of the Swiss writer Johann Kaspar Bluntschli, whose exposition in 1870 security issues were not justiciable, the nineteenth century marked a great step
(in French) took the form of a systematic 'code'. A pronounced difference of style, if forward in the practice of inter-State arbitration. The trend began with the Jay Treaty
not of substance, emerged between the Anglo-American writers and their continental of 1794, in which the United States and Britain agreed to set up two arbitration
European counterparts, with the English-language writers concentrating more heavily commissions (comprising nationals of each country) to resolve a range of neutrality
on State practice, court decisions, and the like, and the Europeans more on logical and property-seizure issues that had arisen in the preceding years. These were
exposition. This intellectual division of labour (so to speak) between the pragmatic followed by a number of ad hoc inter-State arbitrations in the nineteenth century,
and the doctrinal is evident to the present day. of which the most famous, again between Britain and the United States, took place
There was much, admittedly, that was unattractive about nineteenth-century in 1871-72, for the settlement of a host of neutrality-related issues arising from the
positivism, particularly to modern eyes-its doctrinaire quality, its narrow horizons, American Civil War. I7
its lack of high ideals, the aura of superficiality raised to the pitch of dogma, its As befitted a scientific and materialistic (ie, 'positive') age, the universalist outlook
narrowly technocratic character, its ready subservience to power. But it would be of the Middle Ages was transmuted into a programme for the economic and material
wrong to judge it on these points alone because its solid achievements were many. betterment of the human race. This re-formulation was pioneered by the French
If it lacked the breadth and idealism of natural-law thought, it also discarded the physiocrats of the eighteenth century, who argued for freedom of trade in foodstuffs.
vagueness and unreality that often characterized natural-law thought at its worst. In In the nineteenth century, the Comte de St-Simon and his followers envisaged a
many ways, positivism was a breath (or even a blast) of fresh air, countering the technocratic programme for global economic development and public works. I8
speculative excesses of natural-law thought. Even if it sometimes went too far in the (Comte's early career had been spent as the Comte de St-Simon's secretary.) At
opposite direction, we should nonetheless appreciate the valuable services that it the hands of the British and French liberal political economists, the programme was
performed in its time. re-cast into one of global freedom of economic intercourse on a liberal capitalist
It is clear from even a cursory survey of the nineteenth century that, when the wills basis-the kind of regime to which the label 'globalization' would later be attached.
of States were coordinated, the results could be impressive. The positivist era was Politicians and economists negotiated an ever wider network of FCN treaties, as well
the period in which we first see the international community 'legislating' by way of as bilateral agreements for tariff reductions (of which the Cobden-Chevalier Treaty of
multilateral treaties, for the most part in areas relating to armed conflict. The first 1860 between France and Britain was the most famous). Other important elements of
major example of this was the Declaration of Paris of 1856, concluded as a kind of the campaign included widespread freedom of migration (passports were unneces-
side effort to the peace treaty ending the Crimean War. It restricted the capture sary for much of international travel in the nineteenth century) and the linking
of private property at sea, by providing that 'free ships make free goods' (ie, that of currencies through the gold standard. Lawyers had a role to play in this grand pro-
enemy private property could not be captured on a neutral ship). It also announced gramme-fittingly, in a technical and non-political capacity. They helped to provide
the abolition of privateering. Within five years, it attracted over forty ratifications. In the necessary legal infrastructure for improvements in international communication
1868, the Declaration of St Petersburg contained a ban on exploding bullets. It also and transportation: from the international river commissions that were set up to
denounced total-war practices, by stating that the only permissible objective of war is ensure freedom of navigation on the Rhine and Danube Rivers (which had been
the defeat of the enemy's armed forces. commercial backwaters since the Middle Ages), to special arrangements for the Suez
The culmination of nineteenth-century international legislation-and the arrival and Panama Canals, to the founding of the International Telegraphic and Universal
of parliamentary-style diplomacy and treaty-drafting-came with the two Hague Postal Unions (1865 and 1874 respectively). The results were impressive. By the
Peace Conferences of 1899 and 1907. The first Conference drafted two major conven- beginning of the twentieth century, the world was economically more integrated
tions: one on the laws of war and one on the establishment of a Permanent Court than it would be for many decades thereafter (and in some ways more so than today).
of Arbitration (which was actually a roster of experts prepared to act as judges on an (See Neff, 1990, pp38-71.)
ad hoc basis, and not a standing court). The Second Hague Peace Conference, in 1907,
was a much larger gathering than the earlier one (and hence less Europe-dominated).
It produced thirteen conventions on various topics, mostly on aspects of war and
neutrality. 16

17 For a detailed and informative account, see Crook, 1975.


16 For an informative and lively account of these conferences, see Tuchman, 1966, pp 265-338. 18 On St-Simonism, see Manuel, 1956.
STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 47

In these situations, there was certainly scope for abuses. Some actions, such as the
B. NATURAL-LAW REMNANTS
British intervention in the Sudan in 1898, blossomed from punitive operations into
In one outstanding-but highly conspicuous-area, natural-law ideas survived in the annexations. Nor did it escape general attention that armed reprisal actions were
nineteenth century. This was the use of force-not the law relating to war as such, almost exclusively waged by the major powers against what would now be called
but rather the law relating to 'measures short gf war' (in the somewhat euphemistic developing countries. Not surprisingly, these measures of armed self-help sparked a
expression). War properly speaking (as noted above) was seen as a matter of State high degree of outrage among developing States. In the wake of the Venezuelan
security policy, the business of politicians and not of lawyers. But measures short incident of 1902-03, the Foreign Minister of Argentina, Luis Drago, proposed an
of war were different. They were law-enforcement actions, albeit of a self-help outright ban against the use of force in cases of contract debts. The most that could be
character-the direct heirs of the old medieval just war. As yet, this phenomenon agreed in this direction was a milder restriction, set out in the Porter Convention of
has not been the subject of serious historical study. 1907 (named for the American diplomat who was its chief sponsor), adopted by the
The most important category of measures short of war were forcible reprisals- Second Hague Peace Conference. This convention merely required certain procedural
armed action taken against States that were alleged to have committed some kind steps to be taken before armed reprisals could be resorted to in debt-default cases.
of breach of law. Reprisals therefore were not exercises of State policy, as wars were, It is one of history's great ironies that the natural-law tradition, which had once
but rather were law-enforcement operations. Nor were such actions rare. Indeed, the been so grand an expression of idealism and world brotherhood, should come to such
nineteenth century was a golden age (if that is the right word for it) of armed an ignominiously blood-spattered end. A philosophy that had once insisted so
reprisals. The most common cause of such actions was injury to nationals that was strongly on the protection of the weak against the strong was now used as a weapon
unredressed by the target country. A famous example was Britain's action against of the strong against the weak. It is, of course, unfair to condemn a whole system of
Greece in the 'Don Pacifico' incident of 1850, in which Britain blockaded Greek ports justice on the basis of abuses. But the abuses were many, and the power relations too
to compel Greece to pay compensation for mob injury inflicted against one of naked and too ugly for the tastes of many from the developing world. Along with
its subjects. One of the grandest operations was a blockade of Venezuelan ports in imperialism itself, forcible self-help actions left a long-lasting stain on relations
1902-03 by a coalition of major powers, to compel Venezuela to pay various debts between the developed and the developing worlds.
that were owing to their nationals. Reprisals sometimes also included occupations of
territory and even bombardments of civilian areas.
C. THE HISTORICIST (OR 'ROMANTIC') TRADITION
Other forms of forcible self-help in the nineteenth century induded actions under
the heading of necessity-meaning acts taken not to punish a wrongdoer (as in the The historicist (or 'romantic') strand of nineteenth-century thought represents, to
case of reprisals) but to protect the State from some actual or impending harm. some extent, an evolved version of natural law-but evolved to the point of being
The most obvious example was .self-defence action. The leading incident in this area transformed nearly out of recognition. It was natural law decked out in a historicist
occurred in 1837, when the British government pursued Canadian insurgents into the garb, whose principal philosophical tailor was Georg Friedrich HegePO Hegel agreed
United States, which they were using as a safe haven, capturing the miscreants and, in with the positivists that the fundamental unit of study was the nation-State. If
the process, killing several persons and destroying a boat named the Caroline. Britain anything, he was more dogmatic on that subject than the ·most doctrinaire positivist
justified its action as self-defence. And the correspondence between the two countries ever was-seeing the State primarily as the political vehicle for the cultural and
on this subject became famous as the classic exposition of the principle of self- psychological aspirations of peoples. This historicist and romantic mentality played a
defence: action in the face of a crisis that is 'instant, overwhelming, leaving no choice major role in nineteenth-century thought and politics generally, but only a minor
of means, and no moment for deliberation' .19 one in international law. It attracted only two major international-law writers to its
Measures short of war could take a variety of other forms, such as punitive banner: James Lorimer from Scotland and Pasquale Mancini from Italy.21 And it has
expeditions. Notable examples included the British expedition against the Mahdi and largely been forgotten since, at least by lawyers. This is a pity, because State practice in
his followers in the Sudan in 1898 (for the killing of General Gordon in Khartoum in the area offered a number of interesting lessons that might have been (and might yet
1885) and the American pursuit of Pancho Villa in Mexico in 1916 in the wake of be) useful in our own time.
a terrorist attack on an American town. Another avatar of necessity was the rescue
of imperilled nationals. The best known example was the use of a multinational
armed force to rescue the diplomatic quarter in Peking in the Boxer Rebellion of 1900. 20 See generally Hegel, Lectures.
21 For Lorimer, see generally, Lorimer, Institutes. For Mancini, see Mancini, Della Nazionalita. Mancini
is very little known in the English-speaking world, since he wrote almost entirely in Italian. For an extremely
19 29 British and Foreign State Papers 1137-38. brief account of his views in English, see Sereni, 1943, pp 162-164.
STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 49

Never did a legal school of thought span the political spectrum so comprehensively this post-ISIS system had none of the organizational trappings that modern lawyers
as this historicist one. On the left, it readily embraced liberal nationalism and the self- are accustomed to. There were no annual assemblies of States, no resolutions, no
determination of peoples. Mancini, for example, saw international law chiefly as a law secretariats, no standing courts. Instead, the organization was decentralized and ad
of peoples or of nations in the sense of historical, linguistic, and cultural units. It was hoc. (There were regular congresses of the powers for a few years after ISIS, but they
the destiny of these cultural 'nations' to play their allotted role in. world history by were soon discontinued.) For this reason, it has proved almost impossible for modern
acquiring the trappings of statehood. But the historicist outlook also accommodated lawyers to see this aspect of their own heritage.
itself readily (far too readily for modern sensibilities) to ideas about 'progressive' and In the event, this post-ISIS system of great-power oversight worked much less
'atavistic' States. This outlook in turn led to imperialist, Social Darwinist, and even tightly than originally planned (or hoped), largely because the national interests of the
racialist ideas associated largely with the political right. five powers began to diverge. The three most conservative States-Russia, Prussia, and
A crucial aspect of the historicist outlook was the thesis that the direction of history Austria-formed themselves into a so-called 'Holy Alliance', which was distinctly
on its march was susceptible of comprehension and even of judicious guidance. This more concerned to suppress revolution than to advance orderly change. Britain, on
idea gave the historicist strand of thought a teleological component, reminiscent of the other extreme, was generally opposed to an active intervention policy. As a result,
older natural-law thought. In practical, everyday terms, this guidance was in the hands the oversight by the major powers took a looser form known as the 'Concert of
of the four major powers which had triumphed over the armies of revolutionary and Europe', which intervened in crises only on an ad hoc, sporadic basis. A few of these
Napoleonic France (Britain, Russia, Prussia, and Austria). At the Congress of Vienna interventions may be noted briefly. The first ones were in the cause of 'legitimacy' in
in ISI4-1S, they consciously set about reversing the revolutionary disruptions to the the IS20s, when there were military interventions to subdue revolutions in Naples and
extent possible, crafting a continent-wide set of political arrangements that would Sardinia (by Austria) and in Spain (by France). Some of the actions of the Concert of
(they hoped) keep the scourge of revolution from breaking out again. The four victors Europe were in the nature of what would later be called peacekeeping. A notable case
also formed themselves into a Quadruple Alliance (later to become a Quintuple one occurred in the late IS20s, when Britain, France, and Russia cooperated to stop the
when a 'reformed' France was admitted to its ranks), which would oversee the longer- bloodshed in the Greek independence struggle-in the process ensuring outright
term preservation of the Vienna settlement. An important aspect of this informal independence for the Kingdom of Greece. There was also great-power involvement
policing of Europe by the major powers was a readiness to intervene militarily where in the Belgian independence crisis of the IS30s. The powers even considered them-
necessary-though in the interest of general European peace and security, rather than selves entitled to intervene in peace settlements after wars, if the terms imposed
of the parochial interests of the individual powers. (But the line between the two sets on the losing side looked to be too destabilizing for the continent as a whole.
of interests was, to put it mildly, not easily drawn.) The most notable instance of this occurred in IS7S, when the major powers stepped
From the legal standpoint, certain features of this settlement of ISIS are particu- in to prevent Russia from exacting too harsh a peace against Turkey after a victorious
larly worth noting. There had been major European peace settlements before-most war. 22
notably, the Peace of Westphalia in 164S and the Peace of Utrecht in 1713. But this Humanitarian considerations were a factor in some of the interventions, such as the
one was different, in that it was to be rooted fundamentally in law-in a body of Greek and Belgian ones. The same was true of an intervention chiefly by France in
principles that became known as the 'public law of Europe', an idea grandly a communal-violence crisis in the Mount Lebanon area in IS60. The most notable
announced by Talleyrand at the Congress of Vienna. This 'public law of Europe' of these great-power humanitarian actions was probably the one in Crete in IS97,
would be based on faithful adherence to treaty commitments, as well as on respect when the powers stepped in to stop atrocities and counter-atrocities between
for established laws and legitimate governments and property rights within the Greeks and Turks. In virtually none of these cases was there a pure humanitarian
States of Europe. It should not be supposed that this Vienna settlement was wholly motive, untouched by any other consideration. But some (arguable) precedents were
reactionary in character. It included a duty on the part of rulers to 'earn' their established for later advocates of the lawfulness of humanitarian intervention.
legitimacy by providing orderly and efficient government to their peoples and by In the event-and here too, foreshadowing the later United Nations-the divergent
cooperating with movements for orderly and peaceful change. It was a programme interests of the major powers meant that the guidance of the Concert of Europe
calling for the cool dispassion of the manager in place of the warm ardour of the worked only fitfully at best. Most notably, the Concert of Europe was not able to
revolutionary. prevent the outbreak of the Great War of 1914-1S-an episode so overpowering and
This 'public law of Europe' was to be vigilantly overseen by the Quintuple Alliance. tragic that it gave rise to new forms of world organization.
The resemblance to the later United Nations is unmistakable, with its plan for
major-power oversight of the post-194S world. But there were important differences
between this system of world order and the later one. The most obvious one was that 22 For one of the few legal texts to treat this subject, see Dupuis, Principe d'equilibre, 1909.
50 STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 51

any resort to war as a means of national policy. The practical effects of this initiative,
VI. THE TWENTIETH AND TWENTY-FIRST however, were not impressive. For one thing, no sanctions were provided. It was also
CENTURIES (1919- ) carefully understood by the signatories that self-defence action would be permitted-
a potentially large loophole. The second initiative was the Stimson Doctrine of 1932,
Since much of this book will cover twentieth-century developments, no attempt announced by the United States (and named for its Secretary of State at the time) in
will be made at comprehensive coverage, particularly of the post-1945 period. But the wake ofJapan's occupation of Manchuria. It held that any situation brought about
certain aspects of both the inter-war and the post-1945 periods which have received by aggression would not be accorded legal recognition by the United States. Here too,
comparatively little attention so far will be emphasized.. the immediate material impact was not great; but it perhaps had some precedential
value, since the UN General Assembly endorsed it as a general principle in 1970.
Only on one occasion was the sanctions provision of the Covenant invoked: against
Italy for its invasion of Ethiopia in 1935-36. The sanctions failed to save Ethiopia,
A. THE INTER-WAR PERIOD
since the conquest was completed before they could have any serious effect. This
The carnage of the Great War of 1914-18 led many to hold that neither the positivist failure led to a period of profound soul-searching amongst international lawyers as to
'rules of the game' approach to world order, nor the practice of ad hoc interventions what their role in the world should be. 23 It similarly led States into desperate searches
by the Concert of Europe, was adequate any longer. The solution was the establish- for alternative sources of security to the League Covenant. A number of countries,
ment of the League of Nations, whose Covenant was set out in the Versailles Treaty such as Switzerland, Belgium, and the Scandinavian States, sought safety in reverting
of 1919. This new system of public order would be of an open, parliamentary, demo- to traditional neutrality policies. But there were also a number of imaginative pro-
cratic character, in contrast to the discreet great-power dealings of the Concert of posals for informal, but coordinated, action by States against aggressors (eg, Cohn,
Europe. 1939; Jessup, 1936). There was even a sort of return to ad hoc great-power manage-
The League was a complex combination of conservatism and boldness. On the side ment, in the form of a collective and coordinated non-intervention policy organized
of conservatism was the decision to make no fundamental change in the sovereign by the major powers at the outbreak of the Spanish Civil War in 1936. Unfortunately,
prerogatives of nation-States as these had developed up to that time. No attempt was this effort, too, was largely unsuccessful because of inadequate implementation and
made to establish the League as a world government, with sovereign powers over its great-power rivalry (see Watters, 1970).
member States. Nor did the Covenant of the League prohibit war. Instead, the resort Although the League failed as a protector against aggressors, it would be far wrong
to war was hedged about with procedural requirements-specifically that either a to suppose that the inter-war period was a sterile time in international law generally.
judicial or political dispute-settlement process must be exhausted before there could Precisely the opposite was the case. It was a time of ferment, experiment, and excite-
be war between League member States. On the side of boldness was the Covenant's ment unprecedented in the history of the discipline. A World Court (known formally,
\
provision for automatic enforcement action against any League member State resort- if optimistically, as the Permanent Court of International Justice) was established as a
'I'
ing to war without observing the peaceful-settlement rules. This enforcement took I standing body, with its seat at the Hague in the Netherlands. It did not have com-
the form of economic sanctions by all other League member States, a tactic inspired pulsory jurisdiction over all disputes. But it decided several dozen cases, building up,
by the Allied blockade of Germany during the Great War. There was, however, no for the first time, a substantial body of international judicial practice. These cases ~ere
provision for military action against delinquent States. supplemented by a large number of claims commissions and arbitrations, whose
The general history of the League has been adequately treated in other sources outpourings gave international lawyers a volume of case law far richer than anything
(Walters, 1952; Northedge, 1986), so only a few points of special interest to lawyers that had ever existed before.
need be noted here. One problem that immediately arose from the restriction on war The codification of international law was one of the ambitious projects of the
was the need to distinguish war properly speaking from measures short of war, such as period. A codification conference, convened by the League of Nations in 1930, pro-
reprisals. The importance of this distinction lay in the fact that the League's automatic duced only modest results (chiefly on certain issues on nationality). But there were
sanctions were only triggered by a resort to .':war', not by a measure short of war, This further initiatives by the American States in a variety of fields. These included a
issue first arose in 1923, in the context of ~ Italian bombardment and occupation of convention on the rights and duties of States in 1933, which included what many
Corfu - which Italy insisted was a reprisal action against Greece and not an act of war lawyers regard as the canonical definition of a 'State' for legal purposes. 24 The American
(a position which the League effectively accepted).
In due course, two major initiatives supplemented the League's efforts to maintain 23 See, notably, Niemeyer, 1940.
peace. In 1928, the Pact of Paris was concluded, in which the States parties forswore 24 See Ch 7 below.
52 STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 53

States also concluded conventions on maritime neutrality, civil wars, asylum, and timid than the League had been. It was bolder in that the Charter provided not only
extradition. for economic sanctions but also for armed action against aggressors. There was even
The inter-war period also witnessed the first multilateral initiatives on human provision for a standing rapid-action military capacity, although that did not bear
rights. A number of bilateral conventions for the protection of minorities were fruit. The UN Charter was more timid than the League, however, in that. sanctions
concluded between various newly created States and the League of Nations. In the (whether economic or military) were not mandatory and automatic, as in the League
event, these proved not to be very effective; but they set the stage for later efforts Covenant. The Security Council-dominated by the major powers-was to decide on
to protect minority rights after 1945. The principle of trusteeship of dependent terri- an ad hoc basis when, or whether, to impose sanctions. The result was to make the
tories was embodied in the mandates system, in which the ex-colonies of the defeated UN a more openly political body than the League had been.
States were to be administered by various League member States as 'a sacred trust of Parallel to this security programme was another one for the promotion of global
civilization', with oversight by the League. Finally, the League performed heroic economic prosperity. The economic-integration effort of the nineteenth century,
labours for the relief of refugees, in the face of very great obstacles-in the process shattered by the Great War and by the Great Depression of the 1930s, was to be
virtually creating what would become one of the most important components of the restructured and given institutional embodiments. The International Monetary
law of human rights. Fund was founded to ensure currency stability, and the World Bank to protect
In short, the inter-war period did not bring an end to war or aggression. But it was and promote foreign investment and (in due course) economic development.
the most vibrant and exciting era in the history of the discipline up to that time (and Trade liberalization would be overseen by a body to be called the International Trade
perhaps since). Organization (ITO).
The euphoric atmosphere proved, alas, to be very short-lived. Enthusiasm for
B. AFTER 1945
further international criminal prosecutions waned after the Nuremberg trials, as did
interest in establishing a permanent international criminal court. Scarcely had the UN
In the immediate aftermath of the Second World War, international law entered begun to function than it became paralysed by Cold-War rivalry between the major
upon a period of unprecedented confidence and prestige, for which 'euphoria' power blocs-with the notable exception of the action in Korea in 1950-53 (only
might not be too strong a word. International lawyers even found themselves in the made possible by an ill:-advised Soviet boycott of the Security Council at the relevant
(unaccustomed) role of heroic crusaders, with the dramatic prosecutions of German time). Nor did the new World Court find much effective use in its early decades.
and Japanese leaders for crimes under international law at Nuremberg and Tokyo The ITO never came into being (because of a loss of interest by the United States).
in the late 1940s. Plans even began to be laid for the creation of a permanent The UN Charter's general ban against force also appeared to have little effect beyond a
international criminal court. cruelly ironic one: of propelling self-defence from a comparative legal backwater into
The founding of the United Nations in 1945, to replace the defunct League of . the very forefront of international legal consciousness. Since self-defence was now the
Nations, was a critical step in the creation of a new world order. With the UN came a only clearly lawful category of unilateral use of force, the UN era became littered witb
new World Court (th~ International Court of Justice, or ICn, though still without self-defence claims of varying degrees of credibility, from the obvious to the risible.
compulsory jurisdi~tion over States. The heart of the organization was the Security In particular, actions that previously would have been unashamedly presented as
Council, where (it was hoped) the victorious powers from the Second World War reprisals now tended to be deftly re-Iabelled as self-defence. 25
would continue their wartime alliance in perpetuity as a collective bulwark against All was not gloom, though, by any stretch of the imagination. In non-political
future aggressors. (It may be noted that 'United Nations' had been the official name spheres, lawyers fared a great deal better, very much in the technocratic spirit of
for the wartime alliance.) The UN therefore marked something of a return to the nineteenth-century positivism. The post-1945 period witnessed a veritably explosive
post-1815 system of great-power dominance. The special status of the five major increase in international law-making. The codification of international law, for
powers (the principal victors in the Second World War, of course) was formally example, made some major strides, in large part from the activity of a UN body
reflected by their 'possession of permanent seats on the Security Council, together of technical experts called the International Law Commission., The principal areas of
with the power of veto over all its decisions. law that received a high degree of codification included the law of the sea (with four
The UN Charter went further than the League Covenant in restricting violence, related conventions on the subject in 1958, replaced in 1982 by a single, much larger
by containing an outright prohibition not only against war as such, but also against convention), diplomatic and consular relations (in the early 1960s), human rights
'the use of force' in general-thereby encompassing both war properly speaking and (with two international covenants in 1966), and the law of treaties (in 1969).
measures short of war, such as armed reprisals. An express exception was made for
self-defence. Regarding action against aggressors, the UN was both bolder and more 25 See Ch 19 below.
54 STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 55

There was also a huge increase in the number of areas in which international Yugoslavian conflicts of the 1990s.28 In the 1990s, the ITO project was revived, this time
cooperation was seen to be important. There scarcely seemed any walk of life that was with success, in the form of the creation of the World Trade Organization (WTO),
not being energetically 'internationalized' after 1945-from monetary policy to civil which gave a significant impetus to what soon became widely, if controversially,
aviation, from human rights to environmental protection, from atomic energy to known as 'globalization' .29 Human rights began to assume a higher profile, as a result of
economic development, from deep sea-bed mining to the exploration of outer space, several factors, such as the global campaign against South African apartheid and the
from democracy and governance to transnational crime-fighting. Accompanying huge increase in activity of non-governmental organizations. The end of the Cold
this expansion of subject areas was a mushrooming in the number of international War led to tangible hopes that the original vision of the UN as an effective collective-
organizations after 1945, with an ever-proliferating parade of resolutions, pro- security agency might, at last, be realized. The expulsion of Iraq from Kuwait in 1991
grammes of action, assemblies of States, secretariats, conventions, protocols, and the lent strong support to this hope. Perhaps most remarkable of all was the rebirth of
like. 26 The cumulative effect was to weld the States of the world in general-and 'plans for an international criminal court, after a half-century of dormancy. A statute
international lawyers in particular-into a tighter global community than ever before. for a permanent International Criminal Court was drafted in 1998, entering into force
All this was a very far cry indeed from Herodotus and his silent traders. It is easy to in 2002. 30
understand that, amidst all this hub-bub of accomplishment, a certain triumphalist In this second round of optimism, there was less in the way of euphoria than there
spirit could pervade the ranks of international lawyers. At the same time, though, it had been in the first one, and more of a feeling that international law might be
was not so clear that the fundamentals of the subject had changed very much. The entering an age of new-and dangerous-challenge. International lawyers were now
basic positivist outlook, inherited from the nineteenth century, continued to have promising, or threatening, to bring international norms to bear upon States in an
great staying power. The cornerstone principle of the sovereign equality of States increasingly intrusive manner. A striking demonstration of this occurred in 1994,
remained in force-even finding expression in the UN Charter as one of the basic when the UN Security Council authorized the use of force to overthrow an uncon-
principles of the organization. In addition, international law continued to be stitutional government in Haiti. In 1999, the UN Security Council acquiesced in
regarded, at least in largest part, in positivist terms as an emanation of the free wills of (although it did not actually authorize) a humanitarian intervention in Kosovo by a
the States themselves. And those wills continued to find expression through the two coalition of Western powers. It was far from clear how the world would respond to
familiar channels: treaties and custom. this new-found activism. The end of the Cold War may have been welcome. But it was
It might be noted that some of the most important political and intellectual by no means clear whether the world would really be content to entrust its security, in
upheavals of the twentieth century left strangely little mark on international law. perpetuity, to a Concert-of-Europe style directorate of major powers.
Socialism, for example, far from being a major challenge to lawyers, was actually a International legal claims were being asserted on a wide range of other fronts as
conservative force. Socialist theorists tended to write more dogmatically in the positiv- well, and frequently in controversial ways. For example, lawyers who pressed for
ist vein than their Western counterparts did. Nor did the massive influx of developing self-determination rights for various minority groups and indigenous peoples were
States onto the world scene bring about any fundamental conceptual upheaval. For the accused of encouraging secession movements. Some human-rights lawyers were
most part, the developing countries readily accepted established ways, although they loudly demanding changes in the traditional practices of non-Western peoples. And
also made some concrete contributions in specific areas. One was the establishment of concern over democracy, governance, and corruption posed, potentially, a large threat
self-determination as a fundamental, collective human right. Another was in the area to governments all over the world. Some environmental lawyers were insisting that,
of succession to treaties by newly independent States, with the States being given an in the interest of protecting a fragile planet, the world should deliberately curb
option of choosing which colonial treaties to retain. It is not that there were not new its economic growth. Economic globalization also became intensely controversial, as
ideas in the air. There were. 27 But they seemed to have little impact on the actual the IMF's policy of 'surveillance' ~ somewhat ominous term to some) became
practice of international lawyers. increasingly detailed and intrusive am:i-..as 'structural adjustment' was seen to have
Around the 1980s, a certain change of atmosphere in international law became potentially far-reaching consequences in volatile societies. Fears were increasingly
evident, as something like the idealism of the early post-war years began, very cau- voiced that the globalization process would bring an increase in economic inequality.
tiously, to return. There were a number of signs of this. One was a sharp upturn in the
judicial business of the World Court. This included a number of cases of high political
profile, from American policy in Central America to the Tehran hostages crisis to the

28 See Ch 18 below.
26 See Ch 8 below. 29 See Ch 22 below.
27 See, eg Ch 2. 30 See Ch 23 below.
STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 57

DE VITORIA, F (1991), Political Writings KEEN, M (1965), The Laws of War in the Late
VII. CONCLUSION (Pagden, A and Lawrance, J (eds» (Cam- Middle Ages (London: Routledge and
bridge: Cambridge University Press). Kegan Paul).
How well these new challenges will be met remains to be seen. At the beginning of the DUFOUR, A (1991), 'Pufendorf, in The KNIGHT, WSM (1925), Life and Works of
twenty-first century, it is hard to see the UN 'failing' in the way that the League of Cambridge History of Political Thought Hugo Grotius (London: Sweet &
Nations did and being completely wound up. No one foresees a reversion to the 1450-1700 (Burns, JH and Goldie, M Maxwell).
rudimentary ways of Herodotus's silent traders. But it is not impossible to foresee a (eds) ) (Cambridge: Cambridge University KOSKENNIEMI, M (2001), The Gentle Civil-
Press), PP 561-588. izer of Nations: The Rise and Fall of Inter-
nationalist or populist backlash against what is seen to be excessive international
activism and against the elitist, technocratic culture of international law and organiza- DUPUIS, C (1909), Le principe d'equilibre et national Law 1870-1960 (Cambridge:
Ie concert europeen de la Paix de Westphalie Cambridge University Press).
tion. If there is one lesson that the history of international law teaches, it is that the
world at large-the 'outside world' if you will-has done far more to mould inter-
a l'Acte d'Algesiras (Paris: Perrin). LORIMER, J (1883-84), The Institutes of the
GENTILI, A (1933), On the Law of War (Rolfe, Law of Nations: A Treatise of the Jural
national law than vice versa. By the beginning of the twenty-first century, inter-
JC (trans.» (Oxford: Clarendon Press). Relations of Separate Political Com-
national lawyers were changing the world to a greater extent than they ever had before.
GIERKE, 0 (1938), Political Theories of the munities, 2 vols (Edinburgh: W.
But it is (or should be) sobering to think that the great forces of history-religious,
Middle Age (Maitland, FW (trans.» Blackwood).
economic, political, psychological, scientific-have never before been successfully
(Cambridge: Cambridge University MANCINI, PS (1851), Della Nazionalita come
'managed' or tamed. And only a rash gambler would wager that success was now at Press).
fondamento del diritto delle genti (Turin:
hand. Perhaps the most interesting chapters of our history remain to be written. GROTIUS, H (1925), The Law of War and Eredi Botta).
Peace (Kelsey, FW (trans.» (Oxford:
MANUEL, FE (1956), The New World of
Clarendon Press).
Henri St-Simon (Notre Dame, Ind.: Uni-
HAGGENMACHER, P (1983), Grotius et la versity of Notre Dame Press).
REFERENCES doctrine de la guerre juste (Paris: Presses
NEFF, SC (1990), Friends But No Allies: Eco-
Universitaires de France).
nomic Liberalism and the Law of Nations
AGER, SL (1996), Interstate Arbitrations in Expansion of International Society HEFFTER, AW (1844), Das europiiische VoIk- (New York: Columbia University Press).
the Greek World, 337-90 B.G. (Berkeley, (Oxford: Clarendon Press). errecht der Gegenwart, auf den bisherigen
Calif.: University of California Press). CICERO, MT (1998), Republic (Rudd, N NIEMEYER, G (1940), Law Without Force:
Grundlagen (Berlin: EH Schroeder).
(trans.) (Oxford: Oxford University Press). The Function of Politics in International
ARISTOTLE, 'Rhetoric', in The Basic Works of HEGEL, GF (1975), Lectures on the Philoso-
Law (New Brunswick, NJ: Transaction
Aristotle (McKeon, R (ed.) 1941), (New COHN, G (1939), Neo-neutrality (Kellar, AS phy of World History (Nisbet, HB (trans.»
Publications).
York: Random House), pp 1325-145l. and Jensen, E (trans.» (New York: (Cambridge: Cambridge University
Columbia University Press). Press). NORTHEDGE, FS (1986), The League of
BEDERMAN, DJ (2001), International Law in
CROOK, A (1975), The Alabama Claims: Nations: Its Life and Times 1920-1946
Antiquity (Cambridge: Cambridge Uni- HERODOTUS (1954), Histories (De Selin-
American Politics and Anglo-American (Leicester: Leicester University Press).
versity Press). court) A (trans.» (Harmondsworth:
Relations, 1805-1872 (Ithaca, NY: Cornell Penguin). NUSSBAUM, A (1947), A Concise History of
BHATIA, HS (ed.) (1977), International Law
University Press). JESSUP, PC (1936), Today and Tomorrow, vol the Law of Nations (New York:
and Practice in Ancient India (New Delhi:
DE MARTENS, GF (1785), Primae lineae iuris 4 of Jessup, PC and Deak, F, Neutrality: Its Macmillan).
Deep and Deep Publications).
gentium Europaearum practici in usum History, Economics and Law (4 vols, 1935- PHILLIMORE, R (1854--61), Commentaries
BLUNTSCHLI, JC (1870), Le droit inter-
auditorum adumbratae (Gottingen: 37) (New York: Columbia University upon International Law, 4 vols (London:
national codifie (Lardy, MC (trans.»
Johann Christian Dieterich). Press). WG Benning).
(Paris: Guillaumin).
DE VATTEL, E (1916), The Law of Nations JOHN OF LEGNANO (1917), Tractatus de PUFENDORF, S (1934), On the Law of Nature
BONET, H (1949), The Tree of Battles (Coop- (Fenwick, CG (trans.» (Washington, DC: and Nations (Oldfather, CH and Old-
Bello, de Represaliis et de Duello (Holland,
land, GW (trans.» (Liverpool: Liverpool Carnegie Institution of Washington). TE (ed.), Brierly, JL (trans.» (Oxford: father, WA (trans.» (Oxford: Clarendon
University Press). Press).
_.- (1762), Questions de droit naturel, et Oxford University Press).
BONFILS, H (1894), Manuel de droit inter- observations sur Ie traite du droit de la KADDURI, M (1955), War and Peace in the RUSSELL, FH (1975), The Just War in the
national public (Paris: A. Rousseau). nature de M. Ie Baron de Wolf (Berne: Law of Islam (Baltimore, Md.: Johns Hop- Middle Ages (Cambridge: Cambridge
BULL, H and WATSON, A (eds) (1984), The Societe typographique). kins University Press). University Press).
STEPHEN C NEFF

SCHNEEWIND, JB (1998), The Invention of WALTERS, FP (1952), History of the League of


Autonomy: A History of Modem Moral Nations (London: Oxford University
Philosophy. (Cambridge: Cambridge Uni-
versity Press).
Press).
WATTERS, WE (1970), An International
.2
SERENI, AP (1943), The Italian Conception of Affair: Non-intervention in the Spanish
International Law (New York: Columbia
University Press).
Civil War (New York: Simon and
Schuster).
SOME COMMON HERESIES
TUCHMAN, B (1966), The Proud Tower: A
Portrait of the World Before the War
WHEATON, H (1866), Elements of Inter-
national Law, 8th edn (Dana, RH (ed.)
ABOUT INTERNATIONAL
(Dobbs Ferry, NY: Ballantine). 1936)
Press).
(Oxford: Oxford University LAW: SUNDRY THEORETICAL
TUCK, R (1999), The Rights of War and
Peace: Political Thought and the Inter-
national Order from Grotius to Kant
WOLFF, C (1737), Cosmologia Generalis,
2nd edn (Frankfurt: Officini Libraria
PERSPECTIVES
(Oxford: Oxford University Press). Rengeriana) .
VAN DER MOLEN, G (1968), Alberico Gentili - - (1934), The Law of Nations Treated lain Scobbie
and the Development of International Law According to a Scientific Method (Drake,
(Leiden: Sijhoff). JH (trans.)) (Oxford: Clarendon Press).

Legal theory is always more or less closely connected with philosophical thinking, political
FURTHER READING
conditions, and ideological currents.
BEDERMAN, DJ (2001), International Law in TUCK, R (1999), The Rights of War and Karl Olivecrona, Law as Fact (1971), p 27
Antiquity (Cambridge: Cambridge Uni- Peace: Political Thought and the Inter- {T}heories of law . .. are one of the principal causes of low morale among students of inter-
versity Press), very ably covers the ancient national Order from Grotius to Kant national law.
Near East, together with classical Greece (Oxford: Oxford University Press), exam- Ian Brownlie, International Law at the Fiftieth Anniversary of the
and Rome. ines international law in the seventeenth United Nations (1995), p 22
GREWE, WG (2000), The Epochs of Inter- and eighteenth centuries, but is confined
national Law (Byers, M (trans.)) (Berlin: to doctrines of the major thinkers and
Walter de Gruyter), is another general does not cover State practice.
historical survey of international law, The following works trace the history of SUMMARY
focusing on State practice and having a certain topics:
generally political slant.
FREY, LS and FREY, ML (1999), The History International law does not exist in an intellectual vacuum. Our understanding of the nature
KOSKENNIEMI, M (2001), The Gentle Civil- of Diplomatic Immunity (Columbus: Ohio of international law-of what it is and what it can and should do-is ultimately dependent
izer of Nations: The Rise and Fall of Inter- University Press). on theoretical assumptions and presuppositions. These can be latent and unexamined, in
national Law 1870-1960 (Cambridge:
NEFF, STEPHEN C (1990), Friends But No which case they are likely to foster only an acritical complacency. As all law has a political
Cambridge University Press) contains a
Allies: Economic Liberalism and the Law of dimension, because law attempts to provide authoritative models of how people should
vast wealth of information on continental
Nations (New York: Columbia University behave, it is not surprising that theoretical models of international law encode specific
European (particularly French and Ger-
Press). views of the world and of relations between States. These assumptions and presuppositions
man) thought in the nineteenth and early
twentieth centuries. (2000), The Rights and Duties of Neu- influence the analysis of substantive issues, thus theory is an issue which should neither be

NUSSBAUM, A (1947), A Concise History trals: A General History (Manchester: ignored nor be simply left behind in the academy. This chapter attempts to demonstrate
of the Law of Nations (New York: Manchester University Press). this by exposing the premisses and methodology of two dominant schools of international
Macmillan) is a very broad-brush general RALSTON, JH (1929), International Arbitra- legal thought that are now principally associated with the Cold War-the New Haven
historical survey of international law, tion from Athens to Locarno (London: School and Marxist-Leninist theory. These are, howeve~ instrumental approaches to inter-
concentrating largely on doctrine. Oxford University Press). national law that do not exhaust the scope of theoretical writing. The chapter ends by giving
60 lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 61

an account of a fundamental contemporary critique of the international system- Philip as 'international law', as something distinct from other disciplines, particularly
Allott's Eunomia-which denigrates the world of States, and argues for a reconstruction politics. s
of international affairs that focuses on the individual. We must start somewhere, and from a less radical position than one which dis-
avows the very subject of this chapter. Otherwise I could simply rest content with
stating that international law isn't, even although that might have to be stated at some
considerable length. Accordingly, I propose to offer if not a rough account of what
I. INTRODUCTION: THEORY MATTERS 'international law' might be, at least perspectives on this question; but any such
relatively abstract exposition must amount to a 'theory' of law. So what is a 'theory',
An understanding of legal theory is crucial to the legal enterprise and to the prac- and what it is for?
tical application of law. Doubtless this would b~ denied by some; for instance
Professor Brownlie has claimed that '[t]here is no doubt room for a whole treatise
on the harm caused to the business of legal investigation by theory' (Brownlie, 1983,
p 627).1 On the other hand, this disavowal of theory could simply be seen as a II. WHAT IS A (THEORY' AND WHAT IS IT FOR?
conservative commitment to a hidden or latent theory that rests content with the
status quo and seeks neither to question nor justify either the substance or practice Again, for present purposes, we need only adopt some definition that gives us a place
of international law (Warbrick, 1991, pp 69-70).2 If so, this disinterest simply to start. A useful orientation to the notion of a theory is provided by Kant. Kant (1793
amounts to a conscious refusal to think about what one is doing. It constitutes an (1970), p 61) defined a theory as:
intellectual self-censorship which suppresses analysis and critical evaluation at least
A collection of r~s, even of practical rules, is termed a theory if the rules concerned
as much as an external authoritarian enforcement of conformity to some 'official'
are envisaged as principles of a fairly general nature, and if they are abstracted from
or received model of the nature and function of international law. It is perhaps numerous conditions which, nonetheless, necessarily influence their practical application.
worth noting that although in some instances the official model might be that Conversely, not all activities are called practice, but only those realisations of a particular
prescribed by the State-such as the Soviet theory of international law-theoretical purpose which are considered to comply with certain generally conceived principles of
trends or schools can themselves attempt to impose an intellectual hegemony procedure.
and decry or denigrate dissent, for instance by designating critics and doubters as
But what does this mean? It means that the function of a theory is to formulate
'decadent' (Carty, 1997, pp 188-189).
or guide practice; to- provide a relatively abstract framework for the understanding
Despite, in some quarters, a lingering attachment to the classical Austinian posi-
and determination of action. Kant cautions, however, that a theory is not enough.
tivist claim that, because there is no determinate sovereign superior to promulgate
The abstract knowledge provided by a theory 'must be supplemented by an act of
and enforce commands, international law is not law but merely amounts to positive
judgement whereby the practitioner distinguishes instances where the rule applies
morality,3 this view is no longer generally accepted. As Professor Franck (1995, p 6)
from those where it does not'. There are those who understand a field but can never
affirms:
apply it practically precisely because they lack judgement, such as 'doctors or lawyers
international law has entered its post-ontological era. Its lawyers need no longer defend the who did well during their schooling but who do not know how to act when asked to
very existence of international law. Thus emancipated from the constraints of defensive give advice' (ibid). Nevertheless, a theory is necessary because it provides us with the
ontology, international lawyers are now free to undertake a critical assessment of its intellectual blueprint necessary to understand the world, or some specific aspect of
content. 4 human affairs (p 62):
Some contemporary theorists, however, on grounds far divorced from the crudities no-one can pretend to be practically versed in a branch of knowledge and yet treat theory
of Austinian analysis, deny the very existence of a discipline we can identify with scorn, without exposing the fact that he is an ignoramus in his subject. He no doubt
imagines that he can get further than he could through theory if he gropes around in
1 For Brownlie's antipathy to theory, see also Brownlie, 1981 at pp 5-8, and Brownlie, 1995, p 22ff. experiments and experiences, without collecting certain principles (which in fact amount to
2 See also Warbrick, 2000, p 621 passim, but especially at pp 633-636; and Lasswell and McDougal, 1943,
what we term theory) and without relating his activities to an integral whole (which, if
p 207. This was their first co-authored work, and is reprinted as an appendix in Lasswell and McDougal, 1992,
vol II at p 1265. treated methodically, is what we call a system).
3 See Austin, 1832 (1995), Lecture V, pp 123-125.
4 On the ontological argument of whether international law is really law, see, for instancej Arend, 1999,
ch 1, especially at p 28ff, and Franck, 1990, ch 2. 5 For instance, Kratochwil, 1989; Koskenniemi, 1989. For a commentary on both, see Scobbie, 1990.
62 lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW

Kant's notion of a system, which comprises an integrated body of knowledge rather counts as international law-is a question of theory in the sense just indicated.ll The
than simply a collection of essentially unrelated general rules, underlines the constitu- identification of sources is the determination of general principles which classify
tive function of theory. Theory makes data comprehensible by providing a structure phenomena such as documents, the statements and behaviour of international actors
for the organization of a given discipline or body of knowledge. and so on, as relevant or irrelevant to the enterprise of international law. On this
Contrast this with Hart's analysis of international law. He argued that it formed a question of sources, Judge Higgins (1994, p 17) has commented: \
set, but not a system, as the rules of international law were 'not unified by or deriv[ ed]
theirvalidity from any more basic rule' (Hart, 1994, p 234). Rather he claimed (p 214) As international lawyers, we have perhaps ceased to notice how very strange it is that we
that: spend so much time talking about the provenance of the norms that bind the participants in'-·
the international legal system. In domestic legal systems the sources of legal obligation are
international law not only lacks the secondary rules of change and adjudication which treated in a much more matter-of-fact way ... But we have become so preoccupied with
provide for legislature and courts, but also a unifying rule of recognition specifying 'sources' jurisprudential debate about the sources of international law that we have, I think, lost sight
of law and providing general criteria for the identification of its rules. of the fact that it is an admission of an uncertainty at the heart of the international legal
system. I do not mean that there are uncertainties about what particular norms provide
This view was wrong when Hart first expressed it in 1961. Despite criticism, whether (which there may be), but about how we identify norms.
on grounds of inadequacy or inept drafting, 6 it is generally accepted that Article 38
of the Statute of the International Court of Justice provides at least a starting place for These uncertainties should not be overstated. There is a general consensus on core
the enumeration of the sources of international law and thus functions as a 'rule of sources doctrine, with doctrinal disagreement attaching to specific, but nonetheless
recognition' for the international legal system, should one wish to adopt a Hartian important, issues-such as the very existence and potential effects of the doctrine of
analysis. Hart defines the rule of recognition as 'a public, common standard of correct persistent objection to the formation ofcustomary international law. 12
judicial decision' (Hart, 1994, p 116).7 Article 38 falls squarely within this notion, Doctrinal divergences and disagreements are inevitable because all theoretical
particularly as one of the criticisms made of it is that it was constructed precisely to positions are, to some degree, $ubjective inasmuch as they reflect the author's own
specify the sources which the judges of the Permanent Court of International Justice, predispositions and concerns, some of which can be quite transient. Consider, for
and subsequently the International Court, should apply in their decision-making, instance, the discussion of persistent objection in the mid-1980s by Charney and
rather than specify sources for the non-judicial identification and application of Stein. To an extent, this was informed or influenced by the then-recent conclusion of
international law. 8 the 1982 Law of the Sea Convention and its initial repudiation by various developed
Indeed, much contemporary theoretical analysis of international law is precisely States which objected to the regime it created for deep seabed mining. 13 Charney
concerned with the investigation of the sources of international law-the identifi- and Stein took diametrically opposed views on whether non-signatory States could
cation of what counts, or should count, as international law which is exemplified in or should be bound by any customary regime on deep seabed mining that the
the contemporary debate about relative normativity for instance9 -as opposed to the Convention might generate, despite their protests. This specific issue masked more
conceptual exegesis of distinct substantive themes or fields. The latter type of analysis, deeply held views about the nature of international law, and in particular the roles
however, is not lacking, finding expression in works such as Professor Franck's of sovereignty and State consent in the formation of customary international law.
account of the emergence of individualism as a core concept in international law Charney saw the doctrine as one that held only a temporary or strategic utility, which
(Franck, 1999), in the numerous applications of New Haven analysis to such diverse a State could employ 'to force an accommodation of interests in the international
topics as the law of the sea, human rights, and armed conflict,lO or in Nathaniel community with respect to the evolution of new rules oflaw' (Charney, 1985, p 23).
Berman's critical analysis of international responses to domestic conflict (Berman, He stressed consensus and a contextual approach which downplayed the need
1994). for State consent to individual rules. Stein (1985, pp 458-459), on the other hand,
Ultimately, however, all conceptual issues of sources-the identification of what emphasized State sovereignty and 'the central premise of international law theory',
namely:

. 6. For instance, see Carty, 1986, P 13if; Charlesworth and Chinkin, 2000, P 67if; Jennings, 1982, p 9;
Hlggms, 1994, pp 18-19; Tunkin, 1974, pp 118, 123-124. 11 For an express affirmation of this view see, eg Higgins, 1994, p 267.
7 For a commentary on the rule of recognition, see MacCormick, 1981, p lO8ff. 12 See Norwegian Fisheries, Judgment, ICJ Reports 1951, p 116 at p 131, and North Sea Continental Shelf,
8 For this criticism, see, eg Higgins, 1994, p 18. Judgment, ICJ Reports 1969, p 3, paras 29-33: The principal doctrinal commentaries-which adopt opposed
9 For instance, see Weil, 1983; Tassioulis, 1996; Beckett, 2001; and Roberts 200l. views-are Charney, 1985; Stein, 1985.
10 '
McDougal and Burke, 1962; McDougal, Lasswell, -and Chen, 1969 and 1980; and McDougal and 13 Both use deep seabed mining to illustrate possible persistent objection claims-see Charney, 1985, p 4,
Feliciano, 1994. n 12, and Stein, 1985, pp 462, 474-475.
lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW \ .. ~

that the international legal order lacks a hierarchically superior sovereign authorized to every threat or use of force is evaluated on its own merits based upon the context in which
prescribe rules for the subjects of the order. In the absence of such a sovereign, law must it occurs ... the operational code is contextual. Moreover, the categories in which uses of
result from the concurrent wills of states and, at the very least, cannot bind a state that has force are sometimes considered appropriate evolve ... Ultimately ... extra-Charter uses of
manifestly and continuously refused to accept it. force will fall outside the operational code if they fail to advance shared world order values. 15
Accordingly, because writers start from different, and often inarticulate, premisses The application of the theoretical presuppositions of the New Haven School to
about the nature and function of international law, it is not surprising that adhesion determine the legality of the use of force is controversial, and yet this forms the core of
to different theoretical presuppositions results in different conclusions about what influential doctrine on an emerging topic.
counts as international law in the first place (Lauterpacht, 1933, p 57). Having said Presuppositions such as these are, however, frequently inarticulate, if not invisible,
that, as Thirlway (1972, p 33) notes: in works of substantive exposition, and yet they mould tacit understandings of and
it is highly unlikely that any modem jurist will ever be able to exert such an influence on his approaches to the rules of international law and their content. Identifying authorial
own or subsequent ages as did the 'founding fathers' of international law, so as to be cited in dispositions is crucial to evaluating the weight to be given to an argument. Indeed,
the same breath as Grotius, Vattel, Bynkershoek, Pufendorf and Suarez. The age of doctrine is identifying the very author of a text can be decisive in law, in a way alien to other
past, perhaps never to return. disciplines. For instance, in the field of literature, Foucault endorses the notion of the
death of the author, the idea that the identity and personality of the author of a work
This view of the diminishing importance of doctrine is probably correct insofar as
of fiction is irrelevant to the authority and interpretation of the text. As Foucault
it concerns the diminishing importance of a single author in terms of the elaboration
(1998, p 222) acknowledges:
of the corpus of substantive law. It cannot, however, be denied that some authors may
exert an important influence on the understanding or development of a given issue or I seem to call for a form of culture in which fiction would not be limited by the figure of the
area oflaw. For instance, Schmitt's views on computer network attacks and informa- author ... All discourses, whatever their status, form, value, and whatever the treatment to
tion warfare undoubtedly inform, if not structure, the current legal appreciation of which they will be subjected, would then develop in the anonymity of a murmur. We would
these issues. 14 no longer hear the questions that ha':;:e been rehashed for so long: Who really spoke? Is it
really he and not someone else? With what authenticity or originality? And what part of his
Nevertheless, encoded within expositions of substantive international law-within
deepest self did he express in his discourse ... [W]e would hear hardly anything but the
general textbooks, specialized monographs, and articles in scholarly journals-are
stirring of an indifference: What difference does it make who is speaking?
preconceptions and expectations about the nature and function of international law.
Schmitt, to take an example, does this quite overtly. In discussing the interpretation of Foucault claims that the ascription of an author to a text entails that it 'is not ordinary
Article 2(4) of the UN Charter, and the extent to which this prohibits the unilateral everyday speech that merely comes and goes ... On the contrary, it is a speech that
use of force in international affairs, he notes that the dominant interpretation is must be received in a certain mode and that, in a given culture, must receive a certain
'positivist'. It starts from the premiss that the text of the Cha.rter must authorize a use status' (p 211). The identity of the person or body promulgating some types oflegal
of force for it to be lawful, rather than 'from the postulate that force is permissible texts has precisely this function. A document's legal significance can depend on its
unless a specific Charter prohibition thereon applies' (Schmitt, 1999a, p 901). He author; because its author is a judge; because its author is a legislature; because its
comments (p 902): author is a foreign ministry and so on. Legal texts, and their authors, only make sense
within the context of the system that gives them authority and meaning.
Although textually sound, the positivist approach fails to reflect the realities underlying uses
Literary, artistic, even philosophical texts, on the other hand, can be a great deal
of force. It evidences misguided fidelity to the failed constitutive endeavour to establish a
more autonomous. At the extreme, as in the case of the fictitious Australian poet Ern
Charter security schema that would generally dispense with the need for unilateral uses of
force ... strict adherence to the plain text meaning of Article 2(4) can actually operate as a Malley whose works were fabricated to satirize modernist poetry but yet now form
counterpoise to the Charter's world order aspirations. part of the Australian literary canon, the 'author' need not exist. 16 Or consider the
ascription of Lectures on Jurisprudence to Adam Smith, despite the fact that these
In contrast, Schmitt argues that the tenets of the New Haven School, as exemplified in were notes taken at his lectures by students, unrevised and unseen by Smith before
the writings of Michael Reisman, should be applied to this question. Reisman their ultimate publication long after his death in 1896 and 1978.17 Even, given their
emphasizes the context in which force is used, and the values this seeks to advance or
15 Schmitt relies on Reisman, 1985. The principal arguments of the New Haven School are considered
protect. Accordingly, Schmitt argues (p 903):
below.
16 For details of this literary hoax, see http://jacketmagazine.com/17/index.html.
17 The authoritative modern edition of both sets of lecture notes was only published in the Glasgow
14 See, eg, Schmitt, 1998; 1999a; 1999b; and 2002. edition of Smith's works in 1978.
66 lAIN SCOBBIE
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW

propensity for jokes and badinage, would it make a difference to our reading of is perceived to require regulation, and the contours of its legal analysis are deter-
Foucault if we discovered that he was really a long-lost Marx brother, as opposed to mined by recourse to broadly political values. An early example is Vitoria's De Indis
merely being influenced by Marx and thus, we could surmise, intent on doing to (On the American Indians) (1537) which applied Scholastic natural law reasoning
philosophy what his brother Harpo generally intended to do to the nearest available to undermine the legitimacy of Spanish claims to sovereignty over its American
blonde? Or would his writings still be taken seriously, just as those of 'Ern Malley' are possessions:
in literature?
In some circumstances, authorial dispositions and concerns are important to gain a Vito ria' s writings on power and the rights of conquest effectively set the agenda for most
full understanding of a text, or to locate it within a framework where it might be subsequent discussions on those subjects in Catholic Europe until the late seventeenth
properly understood. Thus, in exploring David Kennedy's views on the international century ... [A]lthough it is clearly false to speak of Vitoria as the father of anything so
generalized and modern as 'International Law', it is the case that his writings became an
human rights system, Hilary Charlesworth claimed that the 'most intriguing aspect'
integral part of later attempts to introduce some regulative principle into international
of the article in question 'is the self-portrait of its author' (Charlesworth, 2002, p 127
relations.zo
in response to Kennedy, 2002). Some would argue that all readings of a text are partial,
and that a search for authorial intent, even in law, cannot generate a 'correct' inter- Or, to take a more contemporary example, should non-kinetic hostile acts attributable
pretation (eg Balkin, 1986, p 772). There is a degree of truth in this, but it is equally to a State and directed against another be held to breach Article 2(4) of the UN
true that legal texts, unlike literary texts, form part of an inter-locking system of Charter?
meaning and are not free radicals that bear the meaning anyone chooses to put upon
them. There is a difference between a legal text such as Article 51 of the UN Charter,
whose interpretation is admittedly contested in regard to matters such as whether it
would allow a kinetic (bullets, bombs, and things that go bang) response in self- III. THE LEGAL STRUCTURE OF THE
defence to a non-kinetic (computer network) attack, and a literary text which can COLD WAR: LIBERAL DEMOCRACY VERSUS
bear any meaning one chooses, such as the opening lines of Gertrude Stein's poem
Susie Azado:
MARXIST- LENINISM

Sweet sweet sweet sweet sweet tea. To illustrate the formative power of theory, it is useful to contrast two very different
. Susie Azado. but articulate accounts of international law, namely the New Haven School which was
Sweet sweet sweet sweet sweet tea. elaborated principally by Myres McDougal and Harold Lasswell in Yale Law School,
Susie Azado. and the Soviet theory of international law propounded by GI Tunkin. Products of the
Susie Azado which is a told tray sure.
Cold War, these were distinctive theories of international law which set out to bolster
A lea:q. on the shoe this means slips slips hers.
and justify the external projection of the political values of the United States and
When the ancient light grey is clean it is yellow, it is a silver seller.
Soviet Union. As such they embody profoundly different political aims and objectives:
This is a please this is a please there are the saids to jelly.18
this is abundantly clear in their approach to sources and methodology.
Although it can be fun to play with Stein's language, probably not even she knew It could be argued that the chasm between the two theories runs deeper, that there
what she was writing or what it 'really' meant, if it really 'means' anything. It is a is an architectonic difference between the two, as the New Hayen School sees law ·as
poem: it does not need to mean anything. Legal texts, on the other hand, do need to facilitative whereas Soviet theory amounts to a constitutive theory. Posner (1990,
have an identifiable meaning, or range of acceptable meanings, because law is an P 94) explains the facilitative approach as claiming that law provides:
instrumental activity aimed at practical outcomes. Accordingly, the more overtly a
a service to lay communities in the achievement of those communities' self-chosen ends
writer uncovers his or her theoretical assumptions, perhaps more honest the writing,
rather than as a norm imposed on those communities in the service of a higher end.
as his or her model of international law is exposed on the page for all to see. Law and
legal theory do not exist in a value-free vacuum but are inevitably concerned This notion of facilitative law can be associated with various jurisprudential strands in
with political concerns and conditions. 19 It is often the case that an issue emerges that the United States, perhaps principally with the process of private ordering elaborated
by Henry Hart and Albert Sachs. As Duxbury (1995, p 256) comments, their notion
18 Stein, 1998 (1903-32), p 362. of:
19 For instance, for an overview of the political context of the development of jurisprudential ideas, see
Olivecrona, 1971, ch 1; and also Tuck, 1999.
20 Vitoria, 1991, p xxviii: De Indis is at p 231£1'. See also Tuck, 1999, pp 72-75.
68 lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW

private ordering-the use of 'self-applying regulation' by private individuals in the govern- lawful (p 209), the law school curriculum should aim towards the implementation
ment of their own activities-is the principal method of social control in a democratic of 'clearly defined democratic values in all the areas of social life where lawyers have
society.21
or can assert responsibility' (p 207). Policy and value permeate law, therefore there are
The New Haven goal of clarifying and implementing a world order of human digmty no autonomous or neutral theories of law which can ignore the policy consequences
could be seen as falling squarely within this notion. In a celebrated article, McDougal of rules. 24 Therefore (p 212):
and Lasswell (1981, p 24)22 define 'human dignity' as 'a social process in which values In a democratic society it should not, of course, be an aim of legal education to impose a
are widely and not narrowly shared, and in which private choice, rather than coercion, single standard of morals upon every student. But a legitimate aim of education is to seek to
is emphasized as the predominant modality of power'. New Haven is not, however, promote the major values of a democratic society and to reduce the number of moral
a facilitative theory. Its raison d'etre is the pursuit of an imposed 'higher norm', the mavericks who do not share democratic preferences. The student may be allowed to reject
defence and maintenance of (American) liberal democracy as a bulwark against the morals of democracy and embrace those of despotism; but his education should be such
the spread of communism. As Falk (1995, p 2004) observes, New Haven analysis is that, if he does so, he does it by deliberate choice, with awareness of the consequences for
constructed around an: himself and others, and not by sluggish self-deception.

ideological bipolarity of a world order that pits totalitarian versus free societies as the Despotism breeds societal instability given the climate of fear and uncertainty in
essential struggle of our time, a view that anchors the McDougal and Lasswell jurisprudence which totalitarian leaders emerge and in which they must survive (McDougall and
in the history of the Cold War era. Lasswell, 1981, pp 17-18). For McDougal and Lasswell the choice was one between
nuclear annihilation and the global promotion of US democratic values (Falk, 1995,
P 2002; Duxbury, 1995, pp 195-198). They, in an act of 'ideological partisanship'
A. THE NEW HAVEN SCHOOL
(Falk, 1995, P 2003), chose the latter.
The genesis of New Haven lay in the Second World War and the emergence of Although McDougal and Lasswell initially (1943, passim) envisioned the com-
communism as an international political force. McDougal and Lasswell argued that, prehensive application of their theory to reform the entire law school curriculum, it
when US law schools reopened after the war, they should be 'a place where people rapidly became focused specifically on international law (Duxbury, 1995, p 191). The
who have risked their lives can wisely risk their minds' (Lasswell and McDougal, 1943, practical aim of the New Haven School is to advance 'a universal world order of
p 292). They perceived the war as (p 211): human dignity' which secures the widespread enjoyment of values by individuals.
Human dignity, however, is not foundational:
a propitious moment to retool our system oflegal education. America's huge plants for the
fabrication of lawyers are practically closed for the duration ... In the rush of conversion We postulate this goal, deliberately leaving everyone free to justify it in terms of his preferred
from war to peace the archaic conventions and confusions of the past may win out over the theological or philosophical tradition. 25
vital needs of our civilization ... War is the time to retool our educational processes in the
hope of making them fit instruments for their future job. This goal reflects the New Haven School's basis in, and intended refinement of, the
American Legal Realist school of jurisprudence and its inter-twining of law and the
This future job, the aim of legal education according to McDougal and Lasswell social sciences, especially economics. 26 Realism rejected formalist accounts of law
(p 206),23 was to provide systematic training for policy-makers attuned to 'the needs which claimed to be value neutral and relied on the logical exegesis of legal principle
of a free and productive commonwealth': to explain the operation of the courts and legal system. One of the principal strands of
The proper function of our law schools is, in short, to contribute to the training of policy- realism-rule scepticism-argued that uncertainty lay in the very formulation of
makers for the ever more complete achievement of the democratic values that constitute the rules, and thus judicial decisions could not lay claim to be simply the inexorable
professed ends of American polity. application of the law to the issue in question. This is reflected in Lasswell and
McDougal's admonition (1943, p 213) that:
These values should be so reinforced that the student applies them automatically to
'every conceivable practical and theoretical situation' (p 244). As lawyers influence
or create policy when indicating whether a proposed course of action is or is not
24 McDougal and Reisman, 1983, p 122.
25 McDougal and Lasswell, 1981, p 24: compare Lasswell and McDougal, 1943, p 213 on the non-
21 For a critical account of Hart and Sachs' notion oflegal process, see Duxbury 1995, p 251ff. derivational clarification of specific values to be pursued.
22 This article was first published in (1959) 53 AIIL l. 26 On American Legal Realism, see Duxbury, 1995, chs 1 and 2: more elementary accounts of this school
23 See also FaIk, 1995, P 1993. may be found in standard textbooks on jurisprudence, such as Freeman, 2001, ch 9.
70 lAIN SCOBBIE
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 71

From any relatively specific statements of social goal (necessarily described in a statement of
stand and state his preference; and what he prefers or what he regards as 'authoritative' is
low-level abstraction) can be elaborated an infinite series of normative propositions of ever likely to be a product of his whole biography.28
increasing generality; conversely, normative statements of high-level abstraction can be
manipulated to support any specific social goal. Rules are only 'shorthand expressions of community expectations' and thus, like
any shorthand, are inadequate as a method of communication (Duxbury, 1995,
Realism, contrary to formalism, laid stress on the social consequences of the law
p 194). Rules simply cannot be applied automatically to reach a decision because that
which should be taken into account in judicial decisions, and thus emphasized
decision involves a policy choice:
empiricism. This aimed at determining the real factors involved in judgments beyond
the formal appeal to rules, and also at demonstrating the social impact that alterna- Reference to 'the correct legal view' or 'rules' can never avoid the element of choice (though
tive judicial choices might have. Law was seen as a form of social engineering it can seek to disguise it), nor can it provide guidance to the preferable decision. In making
that could be used as a tool to attain desired societal goals. The New Haven School this choice one must inevitably have consideration for the humanitarian, moral, and social
built on this tradition in American jurisprudence by rejecting the notion that law purposes of the law.29
is merely a system of rules, by trying to achieve a more empirical account of the The realization of preferred values is not, however, the sole factor in decision-
operation of law in society, and by postulating the instrumental aim of achieving making: law does constrain. Recourse must be made to trends of past decisions, and
human dignity. 27 how these relate to the goals the decision-maker wishes to achieve- 'the task is to
The New Haven School displaces the conception of law as a system of rules in think creatively about how to alter, deter, or accelerate probable trends in order
favour of one where law is a normative social system which revolves around trends of to shape the future closer to his desire' (Lasswell and McDougal, 1943, p 214). Further,
authoritative decisions taken by authorized decision-makers including, but not these goals can only be achieved if the decision taken is both authoritative and
restricted to, judges. There is, after all, more to law than what happens in court controlling:
rooms- 'If a legal system works well, then disputes are in large part avoided' (Higgins,
Authority is the structure of expectation concerning who, with what qualifications and
1994, p 1 (emphasis in original». International lawyers, giving legal advice that
mode of selection, is competent to make which decisions by what criteria and what pro-
moulds policy and action, are more likely to be in foreign ministries than appearing
cedures. By control we refer to an effective voice in decision, whether authorized or not.
before the International Court of Justice. Law is a continuing process of decisions The conjunction of common expectations concerning authority with a high degree of
involving choices aimed at realizing the common value of human dignity. As corroboration in actual operation is what we understand by law. 3D
McDougal and Lasswell (1981, p 19) assert:
More succinctly, Higgins (1994, p 5) describes law as 'the interlocking of authority
the major systems of public order are in many fundamental respects rhetorically unified. All with power'.31
systems proclaim the dignity of the human individual and the ideal of a worldwide public Thus the New Haven School aims at providing a framework of values and matrix of
order in which this ideal is authoritatively pursued and effectively approximated. They differ
effective and authoritative decision-making in pursuit of the democratic ideal it
in many details of the institutionalized patterns of practice by which they seek to achieve
favours:
such goals in specific areas and in the world as a whole.
Every phase in the processes of authoritative decision is affected both by past and present
The New Haven process of decisions has been likened to the Heraclitan aphorism
distributions of values and by the perspectives (demands, identifications, and expectations)
that one never steps into the same river twice, because the river moves on. For New of community members about future distribution. The outcomes of processes of authorita-
Haven adherents, because the social context of decisions change, and because the tive decision also, of course, directly affect any future distribution of values among com-
trends and implications of past decisions can be unclear, the quest for human dignity munity members and, in total impact and in the long run, determine and secure the larger
necessitates the rejection of a model of law that comprises simply the neutral or community's public order. 32
impartial application of rules. Rules are:

inconsistent, ambiguous, and full of omissions. It was Mr. Justice Cardozo who aptly 28 Lasswell and McDougal, 1943, p 236. This, in itself, appears to be a New Haven refinement of realism.
remarked that legal principles have, unfortunately, the habit of travelling in pairs of oppos- Hutcheson had argued that, in hard cases, the judge does not decide by an abstract application of the relevant
ites. A judge who must choose between such principles can only offer as justification for his rules, but decides intuitively which way the decision should go before searching for a legal category into which
the decision will fit-'No reasoning applied to practical matters is ever really effective unless motivated by
choice a proliferation of other such principles in infinite regress or else arbitrarily take a some impulse' (Hutcheson, 1928-29, p 285).
29 Higgins, 1994, p 5.
3D McDougal and Lasswell, 1981, p 22.
27 For an exposition and defence of New Haven as an empirical theory of law, see Morison, 1982,
pp 178-188. 31 See also Arend, 1999, pp 77-79.
32 McDougal and Reisman, 1983, p 118.
72 lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 73

In the classic version of the theory expounded by McDougal and Lasswell, a value is eradicated as these are the products of class division, although there would still be
simply 'a preferred event' or, in other words, whatever an individual or decision- rules of conduct. 35 Until then, international law was 'immortalize[d] ... as an instru-
maker desires. A full enumeration of values is impossible- 'if we were to begin to list ment of struggle between states belonging to opposed social systems' (Damrosch
all the specific items of food and drink, of dress, of housing, and of other enjoyments, and Miillerson, 1995, p 4) in which the most that could be achieved was peaceful
we should quickly recognize the unwieldiness of the task'. McDougal and Lasswell co-existence between capitalist and socialist States.
claim that any given value will fall within one or more of the categories that they Soviet theory is structurally a much more traditional theory than New Haven. It
identify as enlightenment, respect, power, well-being, wealth, skill, affection, and is firmly rooted in Marxist-Leninist theory to the extent that, at times, it seems simply
rectitude. 33 Higgins (1994, p 5) argues this articulation of relevant policy factors, to amount to taking the dogma for a walk. Perhaps paradoxically, Soviet theory
and their systematic assessment in decision-making, precludes the decision-maker appears to be much more conservative than New Haven, placing its emphasis on
unconsciously giving preference to a desired policy objective under the guise of it rules and State consent to rules, rather th~ the New Haven realization of values by
being 'the correct legal rule'. authorized decision-makers:
both the Soviet government and Soviet doctrine consistently treated the existing corpus of
B. SOVIET THEORY international law as a system of sufficiently determinate principles and norms which all
states are obliged to observe in their mutual relations, in contrast to some Western scholars
The other principal Cold War doctrine- the theory of international law sponsored by who find international law to be more or less adaptable and argue that law should fit
the Soviet Union, rooted in Marxism-Leninism, and reaching its apogee in the works behaviour rather than the other way ar9und. The Soviet preference for a relatively rigid rule-
ofTunkin-was a diametrical opposite to the New Haven School, both in its professed bound approach was not merely an outgrowth of traditional jurisprudential conventions,
structure and envisaged political outcome. This orthodoxy, enforced by the Soviet but also served political and polemical functions. 36
bloc, relied not on the values encompassed in human dignity to explain international
Soviet theory is based in the class struggle, and the Marxist-Leninist tenet that the
law, but on the objective rules of societal development and the historical inevitability
mode of production within a society (the economic base) is the principal influence
of socialism. Thus Tunkin (1974, p 277) explained:
on the will of the ruling class, and thus on the social institutions (the superstructure)
The foreign policy and diplomacy of socialist states is armed with the theory of Marxism- of that society. Only with the emergence of private property and social classes does the
Leninism and a knowledge of the laws of societal development. Proceeding on the basis of a State emerge 'as an organ of the economically dominant class', along with law which
new and higher social system replacing capitalism, they adduce and defend progressive constitutes the will of this ruling class in defence of its interests. 37
international legal principles which correspond to the laws of societal development and Capitalist and socialist States have different interests, and thus wills, given the
which are aimed at ensuring peace and friendly cooperation between states and the free
difference in their socio-economic organization - 'the influence of the economic
development of peoples. 34
structure of society and its societal laws affects the process of creating norms of
Accordingly (Tunkin, 1974, P 251): international law through the will of a state, since the content of this will basically is
The regulating influence of contemporary general international law is such because it was determined by the economic conditions of the existence of the ruling class in a given
formed and is developing further under the decisive influence of the socialist states, the state' (Tunkin, 1974, p 237). While the dominant economic class determines the will
developing countries, and the other forces of peace and socialism, and as a whole is aimed of a capitalist State, in a socialist State, this comprises 'the will of the entire Soviet
at ensuring peace and peaceful coexistence, at the freedom and independence of peoples, people led by the working class' (p 249 and, eg p 36). One clear consequence of
against colonialism in all of its manifestations, and at the development of peaceful inter- this divergence in interest is Soviet theory's rejection of 'general principles of law
national cooperation in the interests of all peoples. Contemporary international law recognised by civilised nations' (Article 38(1)(c) of the Statute of the International
promotes the progress of human society, and this progress inevitably is linked to socialism, Court ofJustice) as an independent source of international law. Tunkin (1974, p 199)
leads to socialism, and facilitates the struggle for socialism.
argued:
Soviet writers argued that socialism was the inevitable outcome of social processes
and, with its triumph, the State and law (including international law) would be 35 Eg Tunkin, 1974, pp 42, 238: see p 232ff generally.
36 Damrosch and Mallerson, 1995, p 9 (footnotes omitted).
33 McDougal and Lasswell, 1981, p 20: see also Lasswell and McDougal, 1943, pp 217-232; McDougal and 37 Kartashkin, 1983, p 81, see pp 79-83 generally; and also Tunkin, 1974, pp 27, 36, 232ff. Kartashkin
Reisman, 1983, p 118; Arend, 1999, p 72; and Duxbury, 1995, p 178. (1983, p 81) notes that according to Marxist-Leninist theory, there are five socio-economic formations of
34 For an overview of Marxist theory of law, see Freeman, 2001, ch 12: a clear, succinct, and critical society-primitive communal, slave, feudal, capitalist, and communist. Compare Smith's notion of the four
introduction is Collins, 1984. For an account of the early formation of Soviet concepts of international law, stages of society found, for instance, in Smith (1978, p 4ff) 'in these severall ages of society, the laws and
see Macdonald, 1998. regulations with regard to property must be very different' (p 16).
74 lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 75

the question arises whether in contemporary conditions of the existence of states not only principles of general international law, when applied in relations among socialist countries,
with different but also with opposed socioeconomic systems there can exist normative expand their shape and acquire new socialist content. They go beyond general principles of
principles common to socialist law and to bourgeois law. One must say very definitely that international law. For example, the general principle of international law-the equality
normative principles which would be common to the two opposed systems of law, socialist of states--':"'acquires a new content when applied in relations among socialist states. Parallel
and bourgeois, do not exist. The principles of these legal systems, even in those instances to the respect for legal equality, its implementation presupposes the achievement of factual
when externally they appear to be identical, are fundamentally distinct by virtue of their equality of all socialist states and the equalization of their economic level. The principles
class nature, role in society, and purposes. of socialist internationalism are used by socialist states to strengthen their relations, to
protect them from anti-socialist forces, and to ensure the construction of socialism. Thus, in
A common ideology, however, is unnecessary for the development of international relations among socialist states two types of norms function-the socialist and general
law, bilt the existence of two opposed social systems places limits on the content of principles and the norms of international law.
the norms of international law. Because these must be agreed by States on the basis
of equality-(only those international legal norms which embrace the agreement of The principle of proletarian internationalism is that of (fraternal friendship,
all states are norms of contemporary general international law' -they can be neither close cooperation, and mutual assistance of the working class of various countries
socialist nor capitalist (pp 250-251).38 in the struggle for their liberation' (Tunkin, 1974, p 4).41 This manifests itself in
Consent between States, albeit reflecting the interests of their ruling classes (pp 36, principles of socialist legality which, in the relations between socialist States, are
291), to specific rules is the keystone of Soviet theory which, furthermore, recognizes lex specialis to the norms of general international law (pp 445-456).42 These principles
only treaties and custom as sources of international law. There is no room for some are, (first and foremost' , those of (fraternal friendship, close cooperation, and
authoritative decision-maker to determine or influence the content of international comradely mutual assistance' (pp 434-435).43 Their implementation requires that
law-for instance, (The [International] Court does not create international law; it (p 430):
applies it' (p 191). Norm creation necessarily requires State consent, whether express Socialist states carry out close cooperation in the field of foreign policy and defence meas-
or tacit (p 124 and Chapter 4, passim). Accordingly (p 128): ures for the purposes of defending the gains of socialism from possible feeble imperialist
swoops.
the majority of states in international relations cannot create norms binding upon other
states and do not have the right to attempt to impose given norms on other states. This At its most stark, this aim was expressed in the Brezhnev doctrine, the claim that
proposition is especially important for contemporary international law, which regulates socialist States could, if necessary, use force to ensure that a socialist State did not
relations of states belonging to different and even opposed social systems.39 divert from socialism and revert to capitalism. This doctrine asserted that a threat to
One consequence of this strict requirement of consent is that Soviet theory endorses socialism in one State was 'a threat to the security of the socialist community as a
the doctrine of persistent objection to the formation of customary international law whole'44 and thus a common problem. It therefore constituted 'the joint defense of the
(p l30). socialist system from any attempts of forces of the old world to destroy or subvert any
Tunkin stresses that international law, as it exists between socialist and capitalist socialist state of this system' (Tunkin, 1974, p 434). Although the Brezhnev doctrine
States, rests on democratic principles of peaceful co-existence which include the was promulgated following the forcible suppression of moves towards democratiza-
principles of the sovereign equality of States and non-interference in their domestic tion in Czechoslovakia in 1968,45 this principle of socialist internationalism was
affairs (pp 29 and 251). The application and implications of these principles, how- employed to justify the Soviet intervention in Hungary in 195646 and its 1980 invasion
ever, differ in the international relations between States from opposed socio-economic of MghanistanY
systems and the relations between socialist States inter se. Relations between socialist
States are not predicated on the notion of peaceful co-existence but on the principle of
socialist or proletarian internationalism (p 47).40 Thus Kartashkin (1983, pp 82-83)
maintains that: 41 See also Butler, 1971, pp 796-797; cfHazard, 1971.
42 See also Osakwe, 1972, p 597.
43 See also Butler, 1971, p 797; Osakwe, 1972, p 598.
44 Brezhnev doctrine as quoted in Schwebel, 1972, pp 816-817; see also Franck, 1970, pp 832-833. Franck
38 See also TunIcin, 1974, ch 2, passim; Kartashkin, 1983, p 96ff. argues that the United States foreshadowed the Brezhnev doctrine in its policy towards the Americas-see
39 See also Tunkin, 1974, P 210 and the claim that natural law theorists of international law undermine its ibid, pp 833-835, and pp 822-835 generally.
consensual basis 'thereby creating greater possibilities for an international legal justification of the imperialist 45 For instance, Butler, 1971, p 797; Franck, 1970, p 833; and Schwebel, 1972, p 816.
policy of diktat, coercion, and military adventurism'. 46 TunIcin, 1974, pp 435-436.
40 The theory of socialist internationalism is expounded at length at p 427ff. 47 See Brezhnev, 1980, pp 6-9.
lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 77

C. NEW HAVEN AND SOVIET APPROACHES COMPARED On the other hand, the policy science approach of New Haven was an anathema
to Soviet thinking. Tunkin (1974, p 297) argued:
Accordingly, just as New Haven has the teleological aim of achieving human dignity
(and thus the external projection of democratic liberal values), so Soviet theory Even though states may use international law as a support for foreign policy, this does not
has the aim of realizing proletarian internationalism. While New Haven rejects any mean that international law is merged with policy. Mixing international law with policy
inevitably leads to a denial of the normative character of international law, that is to say, to a
foundational basis for human dignity- 'everyone [is] free to justify it in terms of
denial of international law, which becomes buried in policy and vanishes as law.
his preferred theological or philosophical tradition' (McDougal and Lasswell, 1981,
Professor McDougal's concept of the policy approach to international law is an example
p 24), Soviet theory maintains that, by way of objective rules of societal develop- of this kind of mixing or blending of foreign policy arid international law.
ment, the goal of proletarian internationalism is historically inevitable. In the mean- . .. McDougal, while not denying the importance of international law in so many
time, according to Tunkin (1974, p 48) common ground must be sought in which words and sometimes also stressing it, in fact drowns international law in policy. In
competing social systems may peacefully co-exist: consequence thereof, international law in McDougal's concept is devoid of independent
significance as a means of regulating international relations; it disappears into policy and,
For thousands of years jurists have debated about definitions of law, but notwithstanding
moreover, is transformed in to a means of justifying policies which violate international
this law has existed. States, politicians, and jurists of different countries can hold various
law.
theories relating to the nature of international law, but this difference of opinion does not
create insuperable obstacles to achieving agreements relating to the acceptance of specific This criticism that New Haven analysis results in the eradication of international law
rules of conduct as international legal norms. is commonplace,49 but is perhaps equally applicable to Soviet theory despite its
For instance, the absence of a common ideology is apparent in the international reliance on 'norms'. Falk (1995, P 2001) notes that, although not inevitable, the out-
regulation of human rights. As Kartashkin (1983, p 95) notes: come of the application of New Haven analysis to a given issue 'had an uncomfortable
tendency to coincide with the outlook of the US government and to seem more
Marxist-Leninist theory proceeds from the premise that human rights and freedoms are polemically driven than scientifically demonstrated'. 50 It cannot be doubted that the
not inherent in the nature of man and do not constitute some sort of natural attributes. same was true of Soviet international law. As Damrosch and Mullerson (1995, pp 8-9)
Rights and freedoms of individuals in any state are materially stipulated and depend comment:
on socio-economic, political and other conditions of the development of society, its
achievements and progress. Their fundamental source is the material conditions of society's The political climate of the Cold War undoubtedly contributed to the sense that the inter-
life. national legal order was far from approaching an optimal or perhaps even minimal level of
determinacy. Especially in highly politicized areas such as the use of force or intervention, as
McDougal and Lasswell would undoubtedly see this as an example where 'allegedly well as in many aspects of human rights law, the content and clarity of principles and norms
universal doctrines' such as sovereignty, domestic jurisdiction, and non-intervention suffered from the fact that states proceeded from opposed interests; while they wanted to
are used 'to resist the institutional reconstructions which are indispensable to secur- delineate parameters for the behaviour of the other side, they were wary of tying their own
ity'. In this case, the Soviet claim is that the content of internationally agreed human hands. The positions of the two sides were not only different but often irreconcilable; yet
rights fall within the domestic jurisdiction of the implementing State (Tunkin, 1974, those positions were sometimes dictated more by ideological considerations than by real
pp 82-83). McDougal and Lasswell (1981, p 18) resist such 'false conceptions of the national interests.
universality of international law': The New Haven tendency to make law malleable in its pursuit of human dignity,
The discrediting of claims to universality which are in fact false is ... a first necessary step McDougal and Lasswell's 'penchant for applyin'g their theory in justification of U.S.
toward clarifying the common goals, interpretations, and procedures essential to achieving foreign policy' (Falk, 1995, P 1997), undoubtedly gives an impression of normative
an effective international order. indeterminacy. Could it be argued, however, that this mistakes the anomaly for the
paradigm? One of the criticisms of formalism made by realist scholars was that it
Indeed, Soviet confidence that it was 'master in its own house' in human rights
focused on the judgments of appellate courts which concentrate on contestable points
matters led the Politburo, against the advice of the KGB, to conclude the 1975 Helsinki
oflaw (Duxbury, 1995, pp 57,135-137). Is this not also true of the common impres-
Accords. This has been seen as a 'strategic mistake' by the USSR precisely because
sion gained of the New Haven School (and equally of Soviet theory for that matter)?
it opened it up to human rights condemnation, granting succour to its dissidents, and
As Higgins (1994, pp 6-7) notes, New Haven does not require:
thus contributing to its own dissolution. 48

49 See, eg, Arend, 1996, p 290; Bull, 2002, pp 153-154; and Kratochwil, 1989, pp 193-200.
48 Andrew and Mitrokhin, 1999, p 420, and Chapter 20 passim. 50 See also Faik, 1995, P 2001, see also p 1997.
lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 79

one to find every means possible if the end is desirable. Trends of past decisions still have an New Stream or New Approaches in International Law school fall squarely within this
important role to play in the choices to be made, notwithstanding the importance of both tendency. Indeed for some, it appears to amount to a manifesto: 51
context and desired outcome. Where there is ambiguity or uncertainty, the policy-directed
choice can properly be made. students of international law should reformulate their sense of cause and effect in inter-
national affairs: rejecting reliance upon visions both of State interests that we too often take
The application of most international law is not problematic: standardized rules are to propel doctrine and of the law that we take to restrain statesmen.
applied to standardized situations otherwise, as Franck (1990, p 20) points out, 'for
This tendency towards detachment, the perceived disinclination to making clear
example, no mail wo~d go from one state to another, no currency or commercial
commitments to anything but being 'critical' has caused adverse comment. For
transactions could take place ... [V]iolence, fortunately, is a one-in-a-rnillion devi-
instance, Higgins (1994, p 9) argues that this approach:
ance from the pacific norm'. Higgins' point appears to be that if ambiguity exists, then
the decision-maker can make a choice which implements or is justified by existing leads to the pessimistic conclusion that what international law can do is to point out the
legal material. Choice is inevitable in legal decision-making because rules are not fully problems but not assist in the achievement of goalS.52
determined - for instance, is or is not a computer network attack a prohibited use The leading UK 'non-instrumental' theorist of international law is Philip Allott whose
of force under Article 2(4) of the UN Charter? In these circumstances, Higgins (1994, work is avowedly iconoclastic. Unlike New Stream scholars, however, Allott is imbued
p 5) thinks it: with a regenerative idealism. He argues for the rejection of the State as the primary
desirable that the policy factors are dealt with systematically and openly. Dealing with them unit of authority, and thus for the reconstruction of world affairs. At the heart of
systematically means that all factors are properly considered and weighed, instead of the Allott's project lies an elemental conviction in the power of ideas both to structure
decision-maker unconsciously narrowing or selecting what he will take int9 account in and to change-to restructure-the world (2001, p xxvii):
order to reach a decision that he has instinctively predetermined is desirable. Dealing with
We make the human world, including human institutions, through the power of the human
policy factors openly means that the decision-maker himself is subjected to the discipline of
mind. What we have made by thinking we can make new by new thinking.
facing them squarely.
Allott (2001, P 243, para 13.105) argues that the adoption of the Vattellian concept of
While one can disagree with the policy factors Higgins thinks relevant, at least this
international relations, with its emphasis on the centrality of the State, was at least a
approach has the virtue of making these factors candid. Analysis and evaluation are
mistake, if not a tragedy:
easier because one knows what factors are in play.
Despite their differences, the New Haven and Soviet schools share a common The eventually dominant Vattel tradition is not merely a tradition of international law. It
approach: both are instrumental theories of law, aimed at guiding and informing implies a pure theory of the whole nature of international society and hence of the whole
practice. Not all legal philosophy has this focus, despite the fact that this might cause nature of the human social condition; and it generates practical theories which rule the
disappointment. As Gardner (2001, p 204) observes: lives of all societies, of the whole human race. It is nothing but mere words, mere ideas, mere
theory, mere values-and yet war and peace, human happiness and human misery, human
Lawyers and law teachers ... think (rightly) that legal practice is a practical business, wealth and human want, human lives and human life have depended on them for two
and they expect the philosophy of law to be the backroom activity of telling front-line centuries and more.
practitioners how to do it well, with their heads held high. When a philosopher of law
asserts a proposition that neither endorses nor criticises what they do, lawyers and law This tradition has generated a wrong consciousness, a fundamental misconception
teachers are often frustrated ... They cannot accept that legal philosophy is not wholly about what matters: for Allott, what matters is humanity rather than a collection of
(or even mainly) the backroom activity of identifying what is good or bad about legal States, the pursuit of whose interests has all too often harmed humans. The edifice of
practice, and hence of laying on practical proposals for its improvement (or failing that, the State does not have its agenda set by the people of the society it encompasses, but,
abandonment). Allot argues, (p 243, para 13.105(1) ), rather by the much narrower class of politicians
and officials:
The state (public realm under the authority of a government) having developed as a way of
internally organizing a certain sort of society ... came to be conceived also as the external
IV. NEW ORDER FOR A NEW WORLD?
51 Kennedy, 1985, p 381; see also Kennedy, 1999 and 2000. Good overviews of New Stream work are Cass,
1996; Paulus, 2001; and Purvis, 1991.
Much contemporary theory of international law is more detached from practice
52 This is precisely the criticism m~de of Kennedy in Charlesworth, 2002. An early, and extreme, denunci-
or doctrinal justification than New Haven or the Soviet school. Some strands of the :\ ation of critical scholars as engendering legal nihilism is Carrington, 1984.
80 lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 81

manifestation of the given societies. The state was turned inside. out, like a glove. The consciousness of the State is impoverished, concentrating on State rather than human
governments of the statally organizing societies recognize in each other that which is state,
interests. At least in some States, however, the notion of sovereignty has been sur-
not that which is society.
passed by that of democracy which relocates power in society rather than in the
Just as the State is not co-extensive with society, international unsociety (to use Allott's simple fiat of authority. This introduces a profound shift in social consciousness
term), where States dominate, is markedly less representative of humanity. This was as democracy (seeks to make the individual society-member seek well-being in
an inevitable outcome of the reception of Vattellian thought in international affairs seeking the well-being of society. Democracy seeks to make society seek well-being
(pp 248-249, para 13.106): in seeking the well-being of each individual society-member' (p 217, para 13.31).
International society, on the other hand, has chosen (to regard itself as the state
It is a reality which was welcome to the ruling classes of western Europe, the classes who still
externalized, undemocratized, and unsocialized' (p 240, para 13.98). This has given
had most control over social reality-forming, including the self-conceiving of society in
theory and including reality forming far beyond the territorial limits of western Europe. rise to the perception (p 244, para 13.105(6)) that domestic and international
It was most welcome of all to the political and administrative sections of those ruling affairs are (intrinsically and radically separate' as citizens can only participate in
classes, who could speak to each other and compete with each other and conflict with each international affairs through the mediation of their governments. Further (p 247,
other across frontiers, safe in the fastnesses of their self-contained internal-external state- para 13.105(13)):
systems.
The purposes of the interstatal unsociety are simply the aggregated purposes conceived
Eunomia is an idealist edict. Allott seeks a (revolution, not in the streets but in the within the government-controlled public realms of the state-societies, purposes related to
mind' (p 257, para 14.9) in order to achieve (a social international society [where] the survival and prospering of each of those state-societies rather than the survival and
the ideal of all ideals is eunomia, the good order of a self-ordering society' (p 404, para prospering of an international society of the whole human race.
18.77). This is predicated on Allott's fundamental belief (p 180, para 12.5) that:
This exacerbates the division between the domestic and international spheres, and
international society has the ultimate capacity to enable all societies to promote the ever- entails the consequence that morality is discontinuous between the two. Accordingly
increasing well-being of themselves and their members, the ultimate responsibility to pre- (p 248, para 13.105(16)), (governments, and the human beings who compose them,
vent societies from doing harm to themselves and to other societies. It is in international are able to will and act internationally in ways that they would be morally restrained
society that humanity's capacity to harm itself can achieve its most spectacular effects. And from willing and acting internally, murdering human beings by the million in wars,
it is in international society that the ever-increasing well-being of the whole human race can, tolerating oppression and starvation and disease and poverty, human cruelty and
must, and will be promoted.
suffering, human misery and human indignity'. What we are left with is (p 249,
Allott places his faith in the power of the human mind to reform the future by para 13.109):
imagining what that future should be, and then use reason to implement this idea-
a world fit for governments. It is an unsociety ruled by a collective of ,self-conceived
(Societies live within the theories they make. A society generates a theory-filled reality
sovereigns whose authority is derived neither from the totality of international society nor
which shapes its willed action which, in turn, shapes its actual everyday living' (p 38, from the people but from the inter-mediating state-systems.
para 2.64). Human consciousness thus provides the template for human action and
human reality. The result (p 296, para 16.1) is that (international law is left speaking to governments
The adoption of sovereignty as the structural premiss of international affairs, the words that governments want to hear' and (p 297, para 16.3) remains marginal
explains (the theoretical incoherence and the practical impotence of international law' in the international system: (International law has been neither very threatening
(p 302,para 16.14). Sovereignty is the preserve of States, and projects (an authority- nor very useful to the politicians and the diplomats'. International law Cpp 298-299,
based view of society' (p 199, para 12.53) which: para 16.8) is:

tend[s] to make all society seem to be essentially a system of authority, and ... to make a mystery to international society. The people of the world do not know themselves as
societies incorporating systems of authority seem to be the most significant forms of society, participants in its making, only as participants in its effects. It seems to be the business of a
at the expense of all other forms of society, including non-patriarchal families, at one foreign realm, another world, in which they play no personal part.
extreme, and international society, at the other.
International law, accordingly, cannot be integrated into the social process of
Thus the notion of the State, organized as sovereign authority over specified terri- humanity and is (doomed to be what it has been-marginal, residual, and inter-
tory, trumps membership of other possible societies which are not as exclusive, and mittent' (p 304, para 16.17). As things stand, international law cannot play its proper
whose consciousness and ideals may differ from those of the State. Moreover, the part in the realisation of eunomia.
82 lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW

When Eunomia first appeared, Allott's vision was criticized as utopian. It assumes you do write as you have heard it said then you have to change it'.53 This is precisely
that a fully socialized international society will be benevolent and eschew conflict, the point of Allott' s Eunomia. Having looked at the world and found it sadly wanting,
as these arise from the competing interests of States. Allott (p xxxii) denies that the Eunomia provides a blueprint for making it better. Its idealism is not about thinking
criticism of utopianism has any force: the unthinkable, it is about thinking the unthought, and then grasping the challenge
to put these thoughts into practice.
In response to this criticism, it is surely only necessary to say that our experience of the
And thinking, after all, is what theory is all about.
revolutionary transformation of national societies has been that the past conditions the
future but that it does not finally and inescapably determine it. We have shown that we can
think ourselves out of the social jungle.
It is equally true that we can think ourselves into that jungle: the 1917 Russian
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Framework', 3i ColumbiaJ of Transnat'l L STEIN, T (1985), 'The Approach of a Dif- the interface between international law Cambridge University Press) is an exten-
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61 BYIL 339. TUNKIN, GI (1974), Theory of International
SMITH, A (1978), 'Lectures on Juris- Law (Butler, WE (trans.») (London: Allen Finally, the European Journal of International Law frequently publishes articles that discuss
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and Stein, P (eds), the Glasgow edition WARBRICK, C (1991), 'The Theory ofInter- figures such as Kelsen (vol 9, 1998), Lauterpacht (vol 8, 1997), and Franck (vol 13, 2002).
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Adam Smith, vol 5 (Oxford: Clarendon tribution?', in Allott, P et al., Theory
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FURTHER READING

In addition to the works cited in the biblio- Relations (New York: Oxford University
graphy, the following are useful in pro- Press) is an excellent introductory
viding a variety of theoretical perspectives collection of readings and commentary
on international law, although this is an which covers the principal contemporary
enormous and expanding field. schools of international legal thought.
BECK, RJ, AREND, AC, and LUGT, RD (eds) BYERS, M (ed.) (2000), The Role of Inter-
(1996), International Rules: Approaches national Law in International Politics:
From International Law and International Essays in International Relations and
3
WHAT IS INTERNATIONAL
LAW FOR?
Martti Koskenniemi

SUMMARY

The objectives of international law appear differently depending on one's standpoint.


International law certainly seeks to realize the political values, interests, and preferences
of various international actors. But it also appears as a standard of criticism and means.of
controlling those in powerful positions. Instrumentalism and formalism connote two
opposite sensibilities of what it means to be an international lawye~ and two cultures of
professional practice, the stereotypes of \the advisor' to a powerful actor with many
policy-alternatives and \the judge' scrutinizing the legality of a particular international
behaviour. Beyond pointing to the oscillation between instrumentalism and formalism
as styles of legal thought and practice, howeve~ the question \what is international law
for?' also invokes popular aspirations about peace, justice, and human rights, and thus
acts as a platform for an international political community. Whatever its shortcomings,
international law also exists as a promise of justice, and thus as encouragement for
political transformation.

I. THE PARADOX OF OBJECTIVES

Attempting to answer the question in the tide one meets with a familiar paradox. On
the one hand, it seems indisputable that international law 'has a general function to
fulfil, namely to safeguard international peace, security and justice in relations
between states' (Tomuschat, 1999, p 23). Or as Article 1 of the UN Charter puts it, the
organization has the purpose to 'be a centre for harmonizing the actions of nations in
the attainment of ... common ends' such as international peace and security, friendly
relations among nations, and international cooperation. Such objectives seem self-
evident and have never been seriously challenged. On the other hand, it is hard to see
how or why they could be challenged-or indeed why one should be enthusiastic
90 MARTTI KOSKENNIEMI WHAT IS INTERNATIONAL LAW FOR? 91

about. them-because they exist at such high level of abstraction as to fail to indicate international society is free to decide on its own ends, and to that extent, they are all
concrete preferences for action. What do 'peace', 'security', or 'justice' really mean? As equal. The law that governs them is not natural but artificial, created by the sovereigns
soon as such words are defined more closely, disagreement emerges. To say that through the processes that are acceptable because neutral (cf, eg, Nardin, 1983). To say
international law aims at peace between States is perhaps already to have narrowed that international law is for 'peace', 'security', and 'justice' is to say that it is for peace,
down its scope unacceptably. Surely it must also seek to advance 'human rights as well security, and justice as agreed and understood between the members of the system. 2
as the rule of law domestically inside States for the benefit of human beings ... ' What this means for international legal argument can be gleaned, for instance, from
(Tomuschat, 1999, p 23). But what if advancing human rights would call for the the opinion of the International Court of Justice in th~951). Here
destruction of an unjust peace?
the Court was called upon to examine the admissibility of reservations to the 1948
In the end, very little seems to depend on any general response to the question Convention on the Prevention and Punishment of the Crime of Genocide. The Court
'what is international law for?' The real problem seems always to be less about first outlined what seemed a natural consequence of the principles of neutrality and
whether international law should aim for 'peace', 'security', or 'human rights' than sovereignty, namely that no reservation should be effective against a State that has not
about how to resolve interpretative controversies over or conflicts between such agreed to it. To stay with this understanding, however, might have undermined the
notions that emerge when defending or attacking particular policies. There is no Convention by creating a system in which some reservations were in force in regard to
disagreement about the objective of peace in the Middle East between Israel and the some States (namely those accepting them) but not against others, while each non-
Palestinian people. But if asked what 'peace' might mean for them, the protagonists accepting State would be free to regard the reservation-making State as not a party to
would immediately give mutually exclusive answers. Nor is the 'Asian values' debate the Convention at all. This would have gone against the universal nature of the
about being 'for' or 'against' human rights but about what might such rights be and Convention. Thus, the Court continued, a State having made a reservation that has
how they should be translated into social practices in the relevant societies. To enquire been objected to by some of the parties, may still be held a party to the Convention if
about the objectives of international law is to study the political preferences of int~r­ the reservation is compatible with the 'object and purpose' of the Convention. At this
national actors-what it is that they wish to attain by international law. And because point, then, the Court moved to think of the law expressly in terms of its objectives.
those preferences differ, the answer to the question in the title can only either remain However, there were no objectives to the Convention that were independent from the
controversial or be formulated in such broad terms as to contain the controversy objectives of the parties to the Convention. Thus, it was up to each party to make the
within itself-in which case it is hard to see how it could be used to resolve it. determination 'individually and from its own standpoint'.3
lt would therefore be wrong to think of the paradox of objectives as a technical Such an argument defines the objectives of international law in terms of the objec-
problem that could be disposed of by reflecting more closely on the meaning of words tives of the (sovereign) members of the international society-in this case the society
such as 'peace', 'security', or 'justice' or by carrying out more sophisticated social or formed by the parties to the Genocide Convention-bringing to the fore two types of
economic analyses about the way the international world is. Such notions provide an problems: what will happen in cases where States disagree about the objectives? And
acceptable response to the question 'what is international law for?' precisely because why would only State objectives count?
of their ability to gloss over existing disagreement about political choices and dis-
tributional priorities. If they did not work in this way, and instead permanently
preferred some choices over other choices, they would no longer be able to do the
service we expect of them. In accordance with the founding myth of the system, the II. CONVERGING INTERESTS?
Peace of Westphalia in 1648 lay the basis for an agnostic, procedural international law
whose merit consisted in its refraining from imposing any external normative ideal on If no antecedent order establishes a firm priority between what States want, then any
the international society. The objectives of that society would now arise from itself: <;:ontroversy either will have to remain open or we shall have to assume that the
there were no religious or other transcendental notions of the good that international procedure in which the disagreement is revealed will somehow be able to dispose of it
law should realize. If there is an 'international community', it is not a teleological but
a practical association, a system not designed to realize ultimate ends but to co-
2 Henkin writes that instead of 'human values', the system is centred upon 'State values' (Henkin, 1989,
ordinate practical action to further the objectives of existing communities.} Sovereign
p 109). This polemical contrast undermines the degree to which States-including principles of sovereignty
equality builds on this: because ¢.ere are no natural ends, every member of the and non-interference-find their moral justification in late eighteenth century liberal individualism and the
ideal of national self-rule: 'State values' persist because they channel 'human values' within a political
community. See also Paulus, 2001, pp 69-97.
} This is why it is so easy to discuss it in terms of the ethics of Immanuel Kant, an ethics of universalizable 3 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
principles of right action rather than as instrumental guidelines for attaining the Good. Cf, eg, O'Neill, 2000. Opinion, IC! Reports 1951, p 15 at p 26.
92 MARTTI KOSKENNIEMI WHAT IS INTERNATIONAL LAW FOR? 93

to the satisfaction of all. The latter suggestion embodies the idea of the (harmony of jurisprudential techniques that often emerge into each other. Even the hardest
interests', the presence of an underlying convergence between apparently conflicting 'realism' reveals itself as a moral position (for example by highlighting the priority of
State interests. Under this view, any actual dispute would always be only superficial. the national interest) inasmuch as, 'philosophically speaking, realism is unthinkable
At a deeper level, State interests would coalesce and the objective of international law without the background of a prior idealistic position deeply committed to the univer-
would then be to lead from the former level to the latter. 4 salism of the Enlightenment and democratic political theory' (Guzzini, 1998, p 16).
It has been difficult to defend this view against realist criticisms. Why would har- On the other hand, any serious idealism is able to point to aspects of international
mony, instead of conflict, be the true nature of international politics? What evidence reality that support it, and needs such reference in order to seem professionally
is there that, rightly understood, the interests of States are compatible? Might the credible. Much of the controversy is about political preference, including the question
harmony not rather seem a form of wishful thinking that prevents people from clearly of what element of a many-faceted 'reality' should be chosen as the starting point of
seeing where their interests lie, and' acting accordingly? Hans Morgenthau, one of the one's analysis. Disciplinary progress has occurred by recurrent cycles oflawyers reject-
fathers of realist thought, attacked the inter-war legalism precisely for having made ing the previous generation as either 'utopian' (typically because excessively idealist)
this mistake. To believe in harmony under the League of Nations had left the world or as 'apologist' (typically because too impressed by sovereignty) and the correspond-
unprepared for Hitler's aggression in 1939 (Morgenthau, 1940, pp 261-284). EH Carr, ing critiques are as available today as they were a century ago. Care must be taken not
another powerful realist thinker, described the' harmony as an ideological smoke- to associate any legal position or doctrine permanently with either: idealism and
screen: (Biologically and economically, the doctrine of the harmony of interests was realism are best understood as forms of critique and channels for institutional reform
tenable only if you left out of account the interest of the weak who must be driven to in accordance with particular political agendas, disciplinary manoeuvring rather than
the wall, or called in the next world to redress the balance of the present' (Carr, 1946, qualities of an independent international world. 6
p 50). This is not to say that international law would not often be helpful for the limited
International lawyers have responded to such criticisms in two ways. Many have resolution of conflicts, resulting in temporary accommodations or even settlement.
accepted the marginal scope that power leaves for law and defined the legal regimes as This is, after all, why the S:ieneral Assembly posed its question to the ICJ in the
variables dependent on a central power (Schmitt, 1988; Grewe, 2001), or developed Reservations case in the first place. The Court was not asked to rule on the admissi-
purely instrumental accounts of the use of law in the defence of particular interests 'bility of particular reservations but to indicate how to go about implementing the
or preferences (McDougal, 1953, pp 137-259). Others have sought to articulate the Convention so as to minimize any distorting effect that controversial reservations
harmony under a more elaborate interdependence or globalization theory. 'Inter- 'might have.
national trade and commerce, international finance, international communication- , Many lawyers make a more ambitious defence of international law in terms of such
all are essential to the survival of States, and all require an international legal system practical effects. However neutral in regard to political principles, they would say, the
to provide a stable framework within which they may function' (Watts, 2000, p 7). structure is not devoid of normative direction. In their view, international law is
Institutional, procedural, and even linguistic theories have been used to argue that accompanied by a cunning logic that slowly socializes initially egoistic States into the
even the articulation of State interests is based on an internalization of legal notions law's internationalist spirit.? It is possible (though not necessary) to picture this ethic
such as 'sovereignty', 'treaty', and 'binding force' that delimit and define what may as the (inner morality of law' that accompanies any serious commitment to work in a
count as State interests or even State identity in the first place. 5 legal system. 8 An alternative but parallel approach would be to characterize the system
But the opposition between 'realism' and 'idealism' is only of limited heuristic in terms of a 'culture of civility' shared by its administrators and excluding certain
usefulness. The labels invoke contrasting political sensibilities and different types of secrecy, dishonesty, fraud, or manipulation. Such an explanation resonates
with international law's emergence in the late nineteenth century as an aspect of
4 This argument, always implicit in moral objectivism and theories of natural law, was made in a dramatic optimistic evolutionism among the liberal elites of Europe and North America. To
way by Hersch Lauterpacht, speaking at Chatham House in 1941, as bombs were falling over Coventry and his view international law as a process of education is to assume that, by entering into
family was being destroyed by the Nazis in Poland: 'The disunity of the modern world is a fact; but so, in a
truer sense, is its unity. Th[e] essential and manifold solidarity, coupled with the necessity of securing the rule
of law and the elimination of war, constitutes a harmony of interests which has a basis more real and tangible 6 This is one of the central arguments in Koskenniemi, 1989.
than the illusions of the sentimentalist or the hypocrisy of those satisfied with the existing status quo. The ? A defence of the view that law socializes States not by constraint but by 'compliance strategies [that] seek
ultimate harmony of interests which within the State finds expression in the elimination of private violence is to remove obstacles, clarify issues, and convince parties to change their behavior', as well as by 'various
not a misleading invention of nineteenth century liberalism' (Lauterpacht, 1975, p 26). manifestations of disapproval: exposure, shaming, and diffuse impacts on the reputations and international
5 This is the 'constructivist' explanation of international law's impact on States, much used today
relationships of a resisting party', is found in Chayes and Chayes, 1995, pp 109, 110.
in international relations studies. See, eg, Finnemore, 1996. For a discussion, see Brunnee and Toope, 2000, 8 The point about law necessarily containing certain 'aspirations of excellence' without which an order
pp 19-74; Kratochwil, 2000, pp 55-59.
would not be recognized as 'law' in the first place, is made, of course, in Fuller, 1969, especially pp 41-94.
94 MARTTI KOSKENNIEMI WHAT IS INTERNATIONAL LAW FOR? 95

the processes it provides, States come to define not only their objectives but perhaps This outlook was reaffirmed by the International Court of Justice in the Nuclear
even their identity by principles offered by international law (Koskenniemi, 2001a). Weapons Opinion in 1996. In response to the question about the lawfulness of the
threat or use of such weapons, the Court concluded that whatever the consequences,
"It could not exclude that such use would be lawful 'in an extreme circumstance of
'self-defence, when the very survival of a State would be at stake'. 10 State objectives and
III. THE SIGNIFICANCE OF STATEHOOD State survival remain the highest objectives of the system. Likewise, bodies such as the
European Court of Human Rights or the UN Human Rights Committee recognize
But the Westphalian myth leaves also unexplained why only State objectives count. that the treaties they administer function in a State-centred world: the margin of
At least since Immanuel Kant published his essay on the Perpetual Peace (1795), appreciation ~d the wide scope of derogations allow for national security reasons
philosophers, political theorists, and lawyers have routinely challenged the State- if 'necessary in a democratic society' to operate with notions of 'security' and
centrism of the international system, arguing that whatever instrumental value States 'democracy' that are embedded in a world of States. 11
may have for the coordination of affairs of particular communities, the 'ultimate' But the defence of international law's state-centredness is thoroughly practical.
members of those communities are individuals and that many other human groups 'Stated quite simply', James Brierly once wrote, 'what [international law] tries to do
apart from States ('peoples', 'nations', 'minorities', 'international organizations', is to define or delimit the respective spheres within which each of the ... States into
'corporations') also play important roles (Westlake, 1910, p 16). Globalization and the which the world is divided for political purposes is entitled to exercise its authority'
crisis of sovereignty have intensified the criticisms of the nature of international law (Brierly, 1944, p 3). Little of this justification has changed. A form and a process is
as State law from sociological, functional, and ethical standpoints. These critiques needed that channels interpretative conflicts into peaceful avenues. This is not to say
have often sought to project a material value or an idea of social justice outside that non-State values such as 'human rights', 'efficient economies', 'clean environ-
of statehood that they suggest should be enforced by international law (Koskenniemi, ment' , or 'justice' would be unworthy objectives of political action. Disagreement
1994, pp 22-29). about them provides the life and blood of political community. The defenders of
The universalizing vocabularies of human rights, liberalism, economic, and the State-system would only note that such values conflict and that 'States alone
ecological interdependence have no doubt complicated inter-sovereign law by the have provided the structures of authority needed to cope with the incessant claims
insertion of public law notions such as jus cogens and 'obligations owed to the inter- of competing social groups and to provide public justice essential to social order
national community as a whole' and by 'fragmenting' the international system and responsibility' (Schachter, 1997, p 22). States may be set aside, of course, by
through the fluid dynamics of globalization (cf Section VIII below). But it has not consent or revolution but there are dangers in such transformations, some of which
been replaced by something recognizeably non-Westphalian. None of the normative are well known, and something about those dangers results from their teleological
directions-human rights, economic or environmental values, religious ideals-has nature.
been able to establish itself in a dominating position. On the contrary, what these On the other hand, there is no doubt that international politics is far from
values may mean and how conflicts between them should be resolved is decided the Westphalian ideal. The informal networks and epistemic communities that
largely through 'Westphalian' institutions. This is not to say that new institutions influence international developments beyond the rigid forms of sovereign equality
would not enjoy a degree of autonomy from the policies of States. Human rights and are populated by experts from the developed West. It is hard to justify the attention
many economic and environmental regimes provide examples of such. The European given and the resources allocated to the 'fight against terrorism' in the aftermath
Union has developed into an autonomous system that functions largely outside of the attacks on New York and Washington in September 2001 in which nearly
the frame of international law. How far these other regimes are from that of the EU 3,000 people lost their lives, while simultaneously six million children under five years
can, however, be gleaned from the recent characterization of the WTO system by the old die annually of malnutrition by causes that could be prevented by existing
Appeals Body in the Alcoholic Beverages case (1996):

The WTO Agreement is a treaty-the international equivalent of a contract. It is self-evident


that in an exercise of their sovereignty,· and in pursuit of their own respective national 10 Legality of the Threat or Use ~f Nuclear Weapons, Advisory Opinion, leI Reports 1996, p 226, paras 96,
interests, the Members of the WTO have made a bargain. In exchange for the benefits they 101(E).
expect to derive as members of the WTO they have .agreed to exercise their sovereignty 11 Or in other words, these mechanisms are only subsidiary: 'The [European Convention on Human
according to commitments they have made in the WTO Agreement. 9 Rights] leaves to each contracting State ... the task of securing the rights and freedoms it enshrines',
Handysidev UK, Judgment of7 December 1976, Ser A, No 24, (1979) 1 EHRR 737, para 4S. As Susan Marks
points out, liberal reformers conceive of 'democratization' in terms of reform of domestic (and not inter-
9 lapan-Taxes on Alcoholic Beverages, Report of the Appeals Body (AB-1996-2) DSR 1996: I p lOS. national) institutions (Marks, 2000, pp 76-100).
MARTTI KOSKENNIEMI WHAT IS INTERNATIONAL LAW FOR? 97

economic and technical resources. 12 What becomes a (crisis' in the world and will
involve the political energy and resources of the international system is determined in IV. INTO PRAGMATISM?
a thoroughly Western-do.r;ninated process (Charlesworth, 2002).
It is widely believed that the informal and fluid economic, technological, and The paradox of objectives shows that the formal law of Westphalia cannot be replaced
cultural processes termed (globalization' strengthen the political position of the most by social objectives or ethical principles without invoking controversies that exist in
powerful actors-transnational networks, large corporations, Western developed regard to the latter. (Whoever invokes humanity wants to cheat', Carl Schmitt once
States-and marginalize public international law (eg Hurrell and Woods, 1999). wrote (Schmitt, 1996, p 54), citing the nineteenth century French socialist Pierre
Weak States despair over their inability to hold on to achieved positions and privileges Joseph Proudhon and making a useful point about the use of abstract humanitarian-
by the antiquated rhetoric of sovereignty. But the latter's awkward defence of the ism to label one's political adversary as an enemy of humanity so as to justify extreme
conservative system of sovereign equality undermines the extent to which globaliza- measures against him-a point that applied in today's context (lacks neither lucidity
tion may also open avenues for contestatory transgovernmental action within inter- nor relevance' (Kervegan, 1999, p 61). One need not think only of the extreme case of
national civil society, or by what Hardt and Negri call the (multitude' (Hardt and the (war against terrorism' to canvass the slippery slope from anti-formal reasoning to
Negri, 1999, pp 393-413). There is room for conflict and consensus both within and human rights violation. Quite everyday legal argument assumes the analytical priority
beyond the Westphalian system and little political worth lies in d~ciding a priori in of the reasons for the law over the form of the law in a fashion that underwrites
favour of either. Formal rules as well as anti-formal objectives and standards may each Stanley Fish's perceptive dictum: (once you start down the anti-formalist road, there is
be used for progressive or conservative causes. 13 The choice of technique must reflect a no place to stop' (Fish, 1989, p 2).
historically informed assessment of the effect of particular institutional alternatives. . For example, the right of self-defence urIder Article 51 of the Charter is formally
In the following sections I will try respond to the question (what is international conditioned by the presence of an (armed attack'. But what about the case of a threat
law fort by describing its role in a world that is not one of pre-established harmony -~f attack by mass destruction weapons? Here we are tempted to look for guidance
or struggle but of both cooperation and conflict. I will argue that international ·from the objective of Article 51. The rationale for allowing self-defence lies, pre-
law operates-and should operate-as a relatively autonomous formal technique as sumably, in the objective of protecting the State. Surely we cannot expect a State to
well as an instrument for advancing particular claims and agendas in the context of wait for an attack if this would bring about precisely the consequence-the destruc-
political struggle. If international law as a system seeks the assent of States by claiming tion of the State-that the rule was intended to prevent. Because the rule itself is no
rigorous impartiality, as a profession and a sensibility it has been unabashedly partial more valuable than the reason for its existence, we erase the condition of prior
I

in favour of urIiversal objectives beyond the State. Such objectives can be advanced \ i armed attack and entitle the State to act in an anticipatory wayY Or the other way
only by two means: imposition or inclusion. There is no third alternative. Much around: surely formal sovereignty should not be a bar for humanitarian intervention
instrumental thinking about international law today adopts the point of view of against a tyrannical regime; in oppressing its own population, the State undermines
the decision-maker in a relatively prosperous State or transnational network, in its sovereignty. We honour (sovereignty' as an expression of a people's self-rule. If
possession of resources and policy-options and seeking guidance on how to fit their instead of self-rule there is oppression, then it would seem nonsensical to allow formal
objectives with international legality. Clearly, international law exists (for' such sovereignty to constitute a bar to intervention in support of the people. is
decision-makers. But it should not exist exclusively for them. In this chapter I shall try In other words, we do not honour the law because of the sacred aura of its text or
to explain why there is often a reason to adopt a (formalist' view on international origin but because it enables us to reach valuable human purposes. We follow the
law that refuses to engage with the question of its objectives precisely in order to emission reduction schedule of chlorofluorocarbons (CFCs) in Article 2 of the 1987
constrain those in powerful positions. But I shall also argue that the question (what is Montreal Protocol on the Protection of the Ozone Layer because we assume that it
international law for?' needs to be removed from the context of legal routines to the will reduce the depletion of the ozone layer and the incidence of skin cancer. We
political arenas in which it might be used to articulate claims by those who are honour the domestic jurisdiction clause in Article 2(7) of the UN Charter because we
sidelined from formal diplomacy and informal networks and feel that something assume ·it upholds the ability of self-determining communities to lead the kinds oflife
about the routines of both is responsible for the deprivations they suffer. they choose. But what if it were shown that ozone depletion or skin cancer bears no

14 This is the argument for the 'Bush doctrine' of pre-emptive self-defence, as made in the United States

12 'The State of Food Insecurity in the World 2002', www.fao.orgiDOCREP/005!Y7352e!Y7352eOO.HTM security strategy, published on 20 September 2002. Cf the text in, eg, Financial Times, 21 September 2002,
(last visited 24 October 2002). p4.
13 For the varying use of the rule/principle opposition in self-determination arguments about change, IS This position is often combined with the argument for pro-democratic intervention. For useful analysis,
participation, and community, see Knop, 2002, pp 29-49. see Chesterman, 2001, pp 88-111.
MARTTI KOSKENNIEMI
WHAT IS INTERNATIONAL LAW FOR? 99

relationship to the emissions of CFCs, or that domestic jurisdiction merely shields the their purposes-hence their frequent aversion against rules in the first place: the
arbitrary reign of tyrants? In such cases we would immediately look for an equitable International Criminal Court, disarmament or human rights treaties, environmental
exception or a counter-rule so as to avoid the-now unnecessary-costs that would or law of the sea regimes, and so on (see Byers and Nolte, 2003).
be incurred by bowing to the empty form of the original rule. Article 10(1) of the The difficulty with the instrumentalist mindset is that there never are simple,
European Convention on Human Rights provides for freedom of speech. If applying well-identified objectives behind formal rules. Rules are legislative compromises,
the right would enable the distribution of fascist propaganda, it is always possible open-ended and bound in clusters expressing conflicting considerations. To refer to
to interfere and prohibit it by the counter-rule in Article 10(2) that enables the objectives is to tell the law-applier: 'please choose'. There is no doubt that Article 2(4)
'prevention of disorder or crime' and to ensure 'the protection of morals', with a of the UN Charter aims towards 'peace'. Yet it is equally certain that 'peace' cannot
margin of appreciation lying with State authorities. Enabling those authorities to quite mean what it seems to say. It cannot mean, for instance, that nobody can ever
protect 'national security' is indispensable if they are to secure the liberal rights- .take up arms. 'Perhaps the most serious problem with outlawing force is that some-
regime. Yet, because setting the 'balance' between security and rights lies with the times it is both necessary and desirable' (Watts, 2000, p 10). J\rticles 42 and 51 of
authorities against whom the rights-regime was established, the door to abuse 'the UN Charter expressly allow for the use of military force under the authority of the
remains open (see Cameron, 2000, pp 62-68).
~ecurity Council or in pursuance of the inherent right of self-defence. The positive
We often allow the reason for the rule to override the rule. We do this because law of the Charter is both pacifist and militarist-and receives its acceptability by
we believe the rule itself has no intrinsic worth. If it fails to support the purpose such schizophrenia. The European Convention on Human. Rights seeks to protect
for which it was enacted-or worse, prevents its attainment-why should it be individuals' rights to both freedom and security. But one person's freedom conflicts
honoured? In domestic society, abstract law-obedience can be defended in view of the with another's security. Whether or nof authorities should be entitled to censor
routine nature of the cases that arise, and the dangers attached to entitling citizens to prisoners' letters or prohibit the publication of obscene materials, for instance, cannot
think for themselves. Such arguments are weak in the international realm where be reached through instrumental reasoning that would be independent from a
situations of law-application are few, and disadvantages of obedience often signifi- political choice (see Koskenniemi, 2000, pp 99-106). The will of the drafters is the
cant. Few States that were economically or politically dependent on Iraq fully imple- language of the instrument. Beyond that, there is only speculation about what might
mented the sanctions set up in 1990. Though they were in formal breach of Articles 25 be a good (acceptable, workable, realistic, or fair) way to apply it.
and 48 of the Charter, the UN preferred to look the other way. The European Union is Practitioners usually understand international law as being more about routine
not going to give up the prohibition of importation of hormone meat merely because application of standard solutions, ad hoc accommodation, and compromise than dis-
a WTO dispute settlement organ may have decided it should do so. The importance course about large objectives. Providing advice to a non-governmental organization
of the interest in living peacefully with a powerful neighbour and of deciding on or drafting judgments at the International Court of Justice are usually held to require
national health standards vastly outweighs any consideration about the importance of pragmatic reconciliation of conflicting considerations, balancing between 'equitable
abstract law-obedience (see Koskenniemi, 2001b).
principles', conflicting rights, or other prima facie relevant aspects of the case at hand.
And yet, as the argument by Schmitt shows, there is a dark side to such anti- Dispute-resolution during the dissolution of the Former Yugoslavia in the early 1990s
formalism. A legal technique that reaches directly to law's purposes is either was understood to involve conflicting considerations about stability of frontiers
compelled to think that it can access the right purpose in some politics-independent and expectations of justice on the part of the different protagonists. This required
fashion-in which case it would stand to defend its implicit moral naturalism-or it the management of the uti possidetis principle as against the provision of minority
transforms itself to a licence for those powers in position to realise their own purposes rights for populations left on the wrong side of the boundary.17 The balance struck
to do precisely that. Instrumentalism inculcates a heroic mindset: we can do it! It between these considerations did not come from any anterior directive but from the
is the mindset of well-placed, powerful actors, confident in their possessing the negotiators' pragmatic assessment of what might work (Lam, 2000, pp 141-151).
'right' purpose, the mindset that drove Stalin to collectivization, or Israel to destroy At the European Court of Human Rights, individual freedoms are constantly
the Osiraq nuclear power plant in 1981. Instrumental action mayor may not be weighted against the need for interference by public authorities. In regard to the
acceptable in view of the circumstances. But the instrumentalist mindset creates a pacific enjoyment of possession or protection of private life, it is established case-law
consistent bias in favour of dominant actors with many policy-alternatives from that 'an interference must achieve a "fair balance" between the demands of the general
which to choose and sufficient resources to carry out their objectives. 16 To always look interests of the community and the requirements of the protection of the individual's
for reasons, instead of rules, liberates public authorities to follow their reasoning, and

16 For a description of instrumentalism as a culture, see Binder, 1988, pp 906-909. 17 Cf Opinions 2 and 3 of the Arbitration Commission of the Peace Conference on the Former Yugoslavia
(1992) 31 ILM 1497-1500.
100 MARTTI KOSKENNIEMI WHAT IS INTERNATIONAL LAW FOR? 101

fundamental rights'. 18 In a like manner, the law concerning the delimitation of policy-oriented in favour of the West or in a more social-democratic way highlighting
frontier areas or the sharing of natural resources resolves itself into a more or less the needs of international cooperation (see Kennedy, 2000, pp 380-387). Legal
flexible cluster of considerations about distributive justice-sometimes described realism always had its Hawks and its Doves but for both, it seemed useful to criticize
in an altogether open-ended fashion in terms of 'equitable principles' or 'equitable old law for its 'formalism' in order to support 'dynamic' political change.
use' -that enables the decision-maker to arrive at a pragmatically acceptable end- Interdisciplinary studies in the 1990s highlighted the extent to which the formal
19
result. Even decision-making concerning the use of force involves setting a balance validity of a standard was independent from its compliance pull (see, eg, Shelton,
between restraint and the need for action, while hard cases in this field invariably turn 2000). As the law was seen instrumentally, its formality seemed to bear no particular
into a contextual assessment of what number of non-combatant casualties might still merit: 'hard law' was just one choice among other possible regulative techniques,
be within the limits of proportionality by reference to the military objective. including soft standards or the absence of any standards at all in cases where the
Few international lawyers think of their craft as the application of pre-existing imposition of one's preference seemed within the limits of the possible and preferable
formal rules or great objectives. What rules are applied, and how, which interpretative given that it might 'minimise transaction and sovereignty costs'. 21 In such debates
principles are used and whether to invoke the rule or the exception-including many formal law has nobody speaking in its favour and is indicted as a utopianism
other techniques-all point to pragmatic weighing of conflicting considerations in supporting conservative causes. Anti-formalism is always a call for transformation: to
particular cases (Corten, 1997). What is sought is something practical, perhaps the overrule existing law either because it does not really exist at all, or if it does, because it
'fairness' of the outcome, as Thomas M Franck has suggested. Under this image, law is should not. The debate on soft law and jus cogens in the 1980s and 1990s manifested
not about peace or justice, freedom or security, stability or change, but always about both of these criticisms and Prosper Weil's famous analysis of the pathological
both one and the other simultaneously. 'The tension between stability and change, if problems (the 'dilution' and 'graduation' of normativity) introduced in international
not managed, can disorder the system. Fairness is the rubric under which the tension law by such notions were unpersuasive to anti-formalist critics who wanted to realize
is discursively managed' (Franck, 1995, p 7). The lawyer's task is now seen in terms of the good society now and had no doubt that they knew how to go about this (see Weil,
contextual 'wisdom', or 'prudence', rather than the employment of formal techniques 1983; Tasioulas, 1996). Avant-garde instrumentalism at the end of the century reads
or instrumental calculations.20 In a fluid, fragmented world, everything hinges on the like German public law conservatism at its beginning: over every international rule
sensitivity of the practising lawyer to the pull of contextually relevant considerations. hangs the sword of clausula rebus sic stantibus (see Kaufmann, 1911).
What makes the formalism/anti-formalism debate suspect is the extent to which
anything may be and has been attacked as 'formalism' (see Kennedy, 2001). The
following views, at least, have been so targeted:
v. A TRADITION OF ANTI-FORMALISM
(a) rationalistic natural-law theories;
The movement towards pragmatism has been accompanied by a series of criticisms of (b) views emphasizing the importance of (formal) sovereignty;
international law's alleged 'formalism'. The first generation of professional inter- (c) views limiting international law's scope to treaties or other (formal)
national lawyers in the last third of the nineteenth century used a flexible notion of expressions of consent;
'civilization' and a historically oriented political jurisprudence to expand its horizon (d) views highlighting the importance of international institutions;
beyond diplomatic protocol and outdated natural law. The inter-war generation (e) views emphasizing 'rigour' in law-application;
attacked the formalism of sovereignty that it saw in pre-war doctrines and advocated
(f) views stressing the significance of formal dispute-settlement;
tradition and interdependenc~ as bases for a more solid international law. After the
(g) views insisting on a clear boundary between law and politics.
next war, reformist lawyers especially in the United States indicted the formalism
of the League and based their 'realism' on Cold War themes, either expressly The list is by no means exhaustive. In fact, anything' can be labelled 'formalism'
because the term is purely relational. When a speaker advocates something (a norm,

18 Fredin v Sweden, Judgment of 18 February 1991, Ser A, No 192, (1991) 13 EHRR 784, para 51; Lopez 21 An interdisciplinary research on the recent 'move to law' uses a method of assessing 'legalization' by
Ostra v Spain, Judgment of9 December 1994, Ser A, No 303-C, (1995) 20 EHRR 277, para 5l. reference to the standards' obligatory nature, precision, and the presence of a centralized authority. The
19 Cf, eg, Separate Opinion of Judge Jimenez de Arechaga, Continental Shelf (Tunisia/Libyan Arab project examines 'legalization' instrumentally, by concentrating on the conditions under which it constitutes
Jamahiriya), Judgment, ICJ Reports 1982, p 18, pp 103-108 (paras 11-31) and, eg, the International Conven- a rational choice. See, eg, Abbott and Snidal, 2001, pp 37-72. Such instrumentalism is not neutral: to assess
tion on the Non-Navigational Uses of International Watercourses, A/RES151/229 (8 July 1997). I have ana- law from the perspective of rational choice is to occupy the perspective of a small number of actors
lysed this 'turn to equity' in, among other places, Koskenniemi, 1999b, pp 27-50. that actually may choose their options by agendas they set. It celebrates the managerial culture of Western
20 For a celebration of judicial creativity in this regard, see Lauterpacht, 1958. experts at work to advance Western interests.
102 MARTTI KOSKENNIEMI WHAT IS INTERNATIONAL LAW FOR? 103

a practice) by its material fullness, the opposite view will inevitably appear to be one member of the community must apply to every other member as well. In the
holding fast to the dead weight of some 'form'. The almost uniformly pejorative use end, competent lawyers may disagree about what this means in practice. But the legal
of the term 'formalism' in international law reflects the predominance of the instru- idiom itself reaffirms the political pluralism that underlies the Rule of Law, however
mentalist mindset in diplomacy and international politics. The way the legal idiom inefficiently it has been put into effect.
constructs and upholds the structures of diplomacy and politics is left invisible. There is a constant push and pull in the international world between a culture of
The contrast between instrumentalism and formalism is quite fundamental when instrumentalism and a culture of formalism. It would be wrong to associate this dia-
seeking to answer the question 'what is international law for?' From the instrumental lectic with fixed positions representing particular interests or preferences. Instru-
perspective, international law exists to realise objectives of some dominant part of mental action is a necessary part of the search for good rules or institutions beyond
the community; from the formalist perspective, it provides a platform to evaluate the status quo. And any present rules are always also mechanisms to support particular
behaviour, including the behaviour of those in dominant positions. The instrumental interests and privileges. 'Power' and 'law' are entangled in such complex ways that it is
perspective highlights the role of law as social engineering, formalism views it as an difficult to interpret particular events as manifesting either one or the other: power
interpretative scheme. The instrumental perspective is typically that of an active and works through 'formal rules' -just like instead of 'naked power', we see everywhere
powerful actor in possession of alternative choices; formalism is often the perspective power defined, delimited, and directed by rules.
of the weak actor relying on law for protection. But the two cultures do play distinct political roles in particular historical situ-
If instrumentalism today needs no particular defence, it may be useful to highlight ations. As the debates around the fluid dynamism of globalization have demonstrated,
the twin virtues of formalism. First, it is indispensable. Every standard is always formal standards and institutions may now offer some protection for the weak actors,
formal and substantive at the same time. The very ideas of treaty and codification and pose demands on the powerful ones?2 There is no magic about formalism, how-
make sense only if one assumes that at some point there emerges an agreement, an ever. It does not automatically produce protection but may also buttress privilege.
understanding, a standard that is separate from its legislative background. When Hence my reference to instrumentalism and formalism as 'cultures', sensibilities and
States enter an agreement, or when some behaviour is understood to turn from habit biases, traditions and frameworks, sets of rituals and self-understandings among
into custom, the assumption is that something that was loose and disputed crystallizes institutional actors. As pointed out above, whereas instrumentalism possesses a
into something that is fixed and ascertainable. The point of law is to give rise to 'heroic' mindset, formalism, with its associated tropes about the rule of law, rights,
standards that are no longer merely 'proposed' or 'useful' or 'good', and which there- and constitutionalIsm, associates with impartiality and pluralism less in terms of
fore can be deviated from if one happens to share a deviating notion of what in fact is definite institutional models than as regulative ideals for a profession without which
useful or good. Instead, they are assumed to possess 'validity'. To accept that positive no community could rule itself by standards it recognizes as its own (instead of
law enjoys that property is not to say anything about how it is recognized in individual those of some influential faction). For this purpose, the community needs servants
rules or standards, nor indeed of whether any actual standard so recognized would that administer those standards (instead of trying to invent them)-the class of
possess any particular meaning as against some other putative meaning. Validity lawyers-whose traditions and practices are defined by their closeness to the 'flat,
indicates a formal property that leaves the norm so characterized a 'flat, substanceless substanceless surface' of the law.
surface' - but a surface without which no 'law' could exist at all.
Secondly, the fact that the legal form is a 'flat substanceless surface' expresses the
universalist principle of inclusion at the outset and makes possible the regulative
ideal of a pluralistic international world. '[O]nly a regime of noninstrumental rules, VI. INSTRUMENTALISM, FORMALISM, AND
understood to be authoritative independent of particular beliefs or purposes is com- THE PRODUCTION OF AN INTERNATIONAL
patible with the freedom of its subjects to be different' (Nardin, 1998, p 31). Between
the form of the law and a decision to project on it meaning 'x' instead of 'y', is a
POLITICAL COMMUNITY
professional technique that excludes no interpretation a priori, that enables stake-
Modern international law puts the international lawyer at the heart of the legal
holders to articulate their grievances as legal claims on conditions of equality,
system. It is possible to represent that position schematically by reference to the two
including them in the normative universe as subjects of rights and duties or carriers of
types oflogic at play in the international rule oflaw. Here is the international relations
distinct identities. The form of law constructs political adversaries as equals, entitled
to express their subjectively felt injustices in terms of breaches of the rules of the theorist Hedley Bull:
community to which they belong no less than their adversaries-:-thus affirming both
that inclusion and the principle that the conditions applying to the treatment of any 22 Out of a burgeoning literature, see, eg, Tsagourias, 2000.
lO4 MARTTI KOSKENNIEMI WHAT IS INTERNATIONAL LAW FOR? 105

The special interests of the dominant elements in a society are reflected in the way in which sufficient elements to enable it to decide with certainty that the use of nuclear
the rules are defined. Thus the particular kinds of limitations that are imposed on resort to weapons would be necessarily at variance with the principles and rules applicable in
violence, the kinds of agreements whose binding character is upheld, or the kinds of right armed conflict in any circumstance'.23
to property that are enforced, will have the stamp of those dominant elements. But that I have defended elsewhere the Court's silence inasmuch as it protected the need for a
there should be limits of some kind to violence, and an expectation in general that agree-
sustained political condemnation of the killing of the innocent, lifting it from the banal
ments should be carried out, and rules or property of some kind, is not a special interest of
instrumentalism and formalism of modern law (Koskenniemi, 1999a). Irrespect~ve of
some members of a society but a general interest of all of them. (Bull, 1977, P 55.)
that position, however, the case illustrates the indeterminacy of both of the two types
So described, law unites an instrumentalist logic, one that looks for the realization of logic behind the Rule of Law, as outlined by Bull above. Neither instrumental
of objectives through law, with a formalist logic, one that establishes standards of calculation nor a purely formal analysis could grasp the status of such weapons: a
behaviour. Now it is obvious that neither logic is fully constraining. The instrumental decision was needed that was irreducible to the two logics. Here the decision was
logic is indeterminate as the objectives always . leave a number of possible choices: silence. In other cases, the Court may have recourse to literalism, balancing, con-
what does 'peace and security' mean and how should it be realized in the Middle East, textualization, and bilateralization, among a host of other techniques, to complete the
for example? Nor is the formalist logic ever fully formal, but always in practice some- instrumental and formal structures within which it works (Koskenniemi, 1989,
how partial and biased. However general the rules of law are, their equal application pp 410-421). Each of such techniques is, again, indeterminate. None of them explain
may appear unjust because the reality to which they are applied is profoundly why this argument was held relevant, why that interpretation was chosen. The decision
unequal: should large and small States, democracies, and dictatorships really be treated always comes about, as the political theorist Ernesto Laclau has put it, as a kind of
alike? The form of law is realized in particular rules or decisions that are no longer 'regulated madness', undetermined by any structure outside it (Laclau, i996, p 58).
formal but that always institute a bias in favour of some substantive politics. A court's decision or a lawyer's opinion is always a genuinely political act, a choice
In the Nuclear Weapons case (1996), the ICJ was requested by the UN General between alternatives not fully dictated by external criteria. It is even a hegemonic act
Assembly to give an advisory opinion on the legal status of nuclear weapons. From the in the precise sense that though it is partial and subjective, it claims to be universal
perspective of the instrumentalist logic, the relevant regulation (human rights law, and objective. But it is this very partiality and political nature of the decision that
environmental law, humanitarian law, and the law concerning the use of force) sought ensures that it is an aspect of, or even a creative moment of, a political community.
to accomplish several types of objectives: above all protection of human life and the Here finally, is the significance of the under-determination of the two logics behind
environment, as well as the survival of States. These objectives proved indeterminate, the Rule of Law. The society upheld by international law is not an effect of instru-
however, and both opponents and supporters of nuclear weapons argued by reference mental reason, nor even of (some conception) of formal reason tout court. It is an
to them: are people better protected with or without nuclear weapons? The instru- effect of decisions, made under conditions of uncertainty and conflict and amenable
mental logic did set some limits to what the Court could say, but it did not-indeed for immediate criticism from alternative standpoints. That international law is not a
could not-fully constrain it. A decision by the Court was needed to supplement the passive reproduction of deductions from some globalizing logic or other (economic,
instrumental logic-a decision that would, then, leave that logic under-determined. environmental, humanitarian) structure beyond itself, institutes the international
The formalist logic was equally under-determined. To decide that nuclear weapons society it governs as a political community that seeks to decide for itself what rules
were illegal would have created a consistent material bias in favour of States in posses- govern it. It is, as Bull noted, a union of 'dominant elements' and 'general interest'.
sion of conventional weapons or in de facto possession of undisclosed nuclear Not reducible to either one or the other, international law is the terrain in which the
weapons. To require the dismantling of disclosed nuclear arsenals would have never-ending struggle between the two is being waged.
revolutionized the existing military-political relationships in unforeseen ways. But
to decide that nuclear weapons were lawful would have maintained the systemic bias
in security policy in favour of the Great Powers and gone against the deep-rooted
popular sense that the existence of such weapons constitutes a permanent hostage- VII. BEYOND INSTRUMENTALISM AND FORMALISM
taking by nuclear weapons States of most of the world's population. Neither illegality
nor legality could remain fully within the formalist logic. Both broke through pure And yet this cannot be the whole story. Although notions such as 'peace', 'justice',
form and created one or another type of material bias. Indeed, it was impossible to or 'human rights' do not fit well within the techniques of legal formalism, and are
decide either way without the decision seeming 'political'. And because the political quite disappointing as behavioural directives, they give voice to individuals and
choice in this case seemed too important for the Court to take, it chose the path of
recognizing the insufficiency of both logics: 'the Court considers it does not have 23 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, para 95.
106 MARTTI KOSKENNIEMI WHAT IS INTERNATIONAL LAW FOR? 107

groups struggling for spiritual or material well-being, fighting against oppression, tranSItions that have passed from Latin America through Eastern Europe and
and seeking to express their claims in the language of something greater than South Africa. 'Peace', too may be an empty notion, perfectly capable of coexisting
merely their personal interests. Law-including international law-has a 'utopian, with economic deprivation and suppression of human rights. On the other hand,
aspirational face' (Cotterell, 1995, p 17) expressed in large notions such as peace movements have been an invaluable aspect of political contestation
'peace', 'justice', or 'human rights' that in countless international law texts inasmuch as they 'mobilise support and highlight the inconsistencies in international
appeal to solidarity within community. They do this in three distinct, but related concepts of peace and security' (Charlesworth and Chinkin, 2000, P 272). Even
ways. if 'justice' does lie in the eye of the beholder, without a language of justice, the
First, they redescribe individuals and groups as claimants of rights or beneficiaries international struggles for resources, recognition, democracy or, for instance, 'ending
of entitlements and in so doing provide them with an identity that they may the culture of impunity' would have seemed like so many meaningless games played
assert against the homogenizing pull of formal law. As Karen Knop has recently by diplomats.
pointed out, the treatment of claims of self-determination by marginalized groups In other words, though the question 'what is international law for?' is seldom useful
such as indigenous peoples in legal institutions has sometimes enabled those groups as an aspect of the deliberations over particular problems among international law-
to be represented by an identity 'that might resonate with those represented' and yers, it is absolutely crucial as a focus for international law's emancipatory potential.
thus to 'equalize cultures in international law' (Knop, 2002, p 210). Secondly, While the culture of formalism is a necessary though often misunderstood aspect
such principles give an international voice to communities by allowing them to of the legal craft, as a historical matter, it has often provided a recipe for indifference
read their particular grievances as claims of universal entitlement, at the same level and needs to be accompanied by a live sense of its political justification. To lift the
as claims made by other members of the community. To be able to say that some act debate about objectives from diplomatic instruments or academic treatises to the level
is an 'aggression' or that the deprivation of a benefit is a 'human rights violation' of political struggles is a necessary counterweight to the bureaucratic spirit often
is to lift a private grievance to the level of a public law violation, of concern not associated with formalism.
only to the victim but to the community. Such notions-and the whole debate This would also enable the reconstruction of international law as a political project.
about the objectives of international law-act in the political realm to challenge As modern international la~ arose in the last decades of the Nineteenth Century, it
what Norman Geras has termed the 'contract of mutual indifference' -the tendency did so as a part of the elitist politics of European liberal internationalism that
to regard violations as a private matter between the victim and the perpetrator, and expected public opinion and democracy to pave the way for a rationally administered
therefore not of concern to others (Geras, 1998). They challenge the way world (see Koskenniemi, 2001a; Pemberton, 2001). The last articulations of that spirit
claims are blocked in the international realm as matters of 'domestic jurisdiction' date from the first decade following the Second World War (see, eg, Lauterpacht,
or 'private law', thus helping to express cosmopolitan ideas about a genuinely 1946). Since then, a gap has been created between the utopian and the pragmatic parts
political international public realm. And thirdly, to make those claims as legal claims of international law, the former becoming a rather grandiose justification over the
(instead of moral aspirations or political programmes) is to imagine-and thus latter. But when formalism loses political direction, formalism itself is lost.24 Hence the
to create-the international world as a set of public institutions within which turn to pragmatism as surveyed above.
public authorities should use their power in roughly predictable ways and with The question 'what is international law for ?' needs to be resuscitated from the
public accountability. paralysis that it is infected with because of the indeterminacy of the responses given to
The fact that public law notions such as jus cogens or of obligations erga omnes it. But this necessitates a reformulation of the relationship of international law to
tend to be formulated in such large terms as to restate the 'paradox of objectives' has politics, in either of its two guises, as principles and doctrines on the one hand, and as
made them seem quite useless from an instrumental perspective. But, we may now institutional practices on the other. Both political realism and institutional pragma-
assume, their role may be precisely to counteract the ideological effects of instrumen- tism arose as reactions to failed expectations about international law's autonomy:
talism. Again, the form of those ideas-of an 'international legal community' -is realists rejected legal institutions as a sham and told politicians to aim directly at their
important in allowing their use for the articulation of the most varied types of objectives. Institutionalists were wary of such objectives and instead relied on tech-
claims, and thus providing a surface for the inclusion of the claimants as members niques of adjustment and compromise.
of a pluralistic community. 'Self-determination', typically, may be constructed
analytically to mean anything one wants it to mean, and many studies have invoked
its extreme flexibility. Examined in the light of history, however, it has given form
and strength to claims for national liberation and self-rule from the French 24 For a useful reconstruction of Hans Kelsen's formalism in terms of the political project that inspired it,
Revolution to decolonization in 1960s, the fall of the Berlin Wall, and the political see von Bernstorff, 2001.
108 MARTTI KOSKENNIEMI
WHAT IS INTERNATIONAL LAW FOR? 109

national lawyers was a hegemonic technique, embedded in an understanding of the


VIII. BETWEEN HEGEMONY AND FRAGMENTATION: law as not simply a technical craft or a set of formal instruments and institutions.
It was a spontaneous aspect of 'civilization' which had the natural tendency to
A MINI-HISTORY
become universal.
If the First World War destroyed whatever was left of the civilizing mission, it also
These reaction formations are intellectually disappointing and politically dubious.
gave rise to a series of efforts to articulate anew the universal basis of international
Neither provides space for anything but a most formal debate about 'what is inter-
law, sometimes in terms of a law-like movement of societies to ever more complex
national law for?' and no space at all for responding to that question by reference to
forms of division of labour and interdependence (eg, Huber, 1910), sometimes
popular aspirations about peace, order, and justice. A first step in trying to account for
through a reinstatement of the hierarchical principles that were a natural part of legal
such aspirations is to accept that these notions are subject to political struggle and
systems (eg, Verdross, 1923). Most of the reconstructive scholarship of the inter-war
that even as they are formulated in universal terms, they are constantly appropriated
period, however, simply generalized the legal experience of European societies into
by particular agents and interests so as to support their agendas and causes. To
the international level, bringing into existence a universal international law through
say that one's actions embody those of an 'international community' is one such
private law analogies, conceiving the Covenant of the League of Nations as a constitu-
technique (see Klein, 2001). They are aspects of hegemonic struggle, that is to say,
tion of the world and by allocating to the juristic class the function of 'filling the gaps'
struggle in which a particular claims to represent that which is universal (see Mouffe
in an otherwise primitive-looking legal system (see Lauterpacht, 1933; Koskenniemi,
and Laclau, 2001). That the question 'what is international law for?' is a terrain of
1997). The particular European experience with the Rule of Law became the place-
~truggle is a na:ural aspect of a pluralistic society and a precondition for conceiving
holder for the aspirations of peace and justice that lawyers saw were demanded by
Its government m democratic terms.
populations struggling with industrialism and social conflict.
. The hegemonic nature of the debate about international law's objectives may be
In the more recent post-war er,a, much of that kind oflanguage-like the political
illustrated in terms of its history. When Spain and Portugal at the end of the fifteenth
liberalism with which it was associated-has lost credibility. When somebody today
c~ntu~ divided ~e non-European world between themselves by reference to a Papal
claims to be acting on behalf on the 'international community', we immediately
dIrectIve, they claImed to be speaking as Christian powers on behalf of humankind as
recognize the hegemonic technique at work (see Klein, 2001; Feher, 2000). As against
a whole. When the Spanish theologians Vitoria or Las Casas later were claiming that
the pragmatic spirit of to day's public international law, new specializations carry
God had given the Indians a soul just as He had given it to the Spanish, a particular
ideals of universalism and progress. Recently, this has occasioned a lively debate
form of Christian scholasticism-Dominican theology-came to speak in terms of
about the 'fragmentation of international law' - the emergence and consolidation
universal principles, equally constraining on the Princes and the Indians. And when
of special regimes and technical sub-disciplines: human rights law, environmental
Hugo Grotius in 1608 challenged the Iberian claims, he was redefining the objectives
law, trade law, the use of force, and so on (see Barnhoorn and Wellens, 1995).
of international law within a hegemonic struggle that opposed a Reformation-
In each of such realms, particular interests and standards are projected as universal
inspired commercial universalism against the ancien regime of (Catholic) Christianity.
ones, resulting in normative and jurisdictional conflicts. In its Tadic Judgment of
The. narrative of international law from those days to the Nineteenth Century may be
1999,.the International Criminal Tribunal for the Former Yugoslavia (ICTY) expressly
depIct~d as a succession of natural law arguments that were united by their always
deviated from the practice of the International Court of Justice, as laid out in its
emergmg from some European intelligentsia that claimed it was speaking on behalf
!"icaragua case in 1986 concerning the attribution of conduct by military irregulars
of the world as a whole. When de Emmerich Vattel in 1758 formulated his 'necessary
to a State. To move from a standard of 'effective control' to one of 'overall control'
law of nations' in terms of the co:r:nmands of natural reason, and found that it
significantly. enhanced the accountability of foreign States indirectly involved in
consecrated a balance of power between European sovereigns, he already filled the
internal conflicts, constituting a shift of normative preference with respect to one set
category of the 'universal' with a profoundly particular understanding that was a part
of international problems.25 The continuing debate about the relevance of environ-
of the (European) Enlightenment.
mental, human rights, or labour standards within the WTO system reflects a search for
. Since the ~rst appearance of the (modern) international law profession in Europe
the relative priority of political objectives within WTO institutions as those priorities
m the late nmeteenth century, that profession imagined itself as, in the words of
have not been set at the level of the relevant agreements themselves. The autonomy
the Statute of the Institut de droit international (1873), the 'juridical conscience
invoked by human rights regimes constitutes a subtle manoeuvre by human rights
of the civilised world'. This understanding, too, was born in a cultural environment
that imagined its own experience-which it labelled (civilization' -as universal
and postulated it as the end-result of the development of societies everywhere. The 25 The Prosecutor v Dusko Tadic, Judgment, Case No IT-94-1-A, Appeals Chamber (15 July 1999),

civilizing mission enthusiastically propagated by late nineteenth-century inter- p 57, para 137.
110 MARTTI KOSKENNIEMI WHAT IS INTERNATIONAL LAW FOR? 111

implementation organs to universalize their jurisdiction. 'Dynamic' arguments and political community among social agents-States, other communities, individuals-
the object and purpose test allow the creation of a systemic bias in favour of the who disagree about social purposes but do this within a structure that invites them to
protected individuals that could be difficult to justify under traditional law. argue in terms of an assumed universality.
Now 'fragmentation' is not. a technical problem resulting from lack of co- But there is a fourth response as well: international law exists as a promise of
ordination: the normative preferences of environmental and trade bodies differ, justice. The agnosticism of political modernity has made the articulation of this last
as do preferences of human rights lawyers and international law 'generalists' teleological principle extremely difficult. For the justice towards which international
(Koskenniemi and Leino, 2002). Such differences are like differences between States: law points cannot be enumerated in substantive values, interests, or objectives.
what is at issue is a hegemonic struggle where each institution, though partial, tries to All such languages express inadequate and reified images, (partial) points of view.
occupy the space of the whole. Far from being a problem to resolve, the proliferation A return to morality-in contrast to 'moralization' -is not available (Koskenniemi,
of autonomous or semi-autonomous normative regimes is an unavoidable reflection 2002). As a promise of justice, international law describes the international world
of a 'postmodern' social condition and a beneficial prologue to a pluralistic as a political community in which questions of just distribution and entitlement are
community in which the degrees of homogeneity and fragmentation reflect shifts constantly on the agenda. Such a self-image supports an administrative culture in
of political preference and the fluctuating successes of hegemonic pursuits (Stark, which the acts of public officials are constantly assessed by a language of community
2002). standards. The instrumentalist mindset understands the law only as a technique
of domination, a coercive order to make 'nations behave'. Its underlying image is the
Hobbesian view of law as a melancholy technique to prevent human groups from
self-destruction. The image oflaw as. a pointer towards justice challenges this self-view
and encourages support for transformation: a world of-for lack of better words-
IX. LEGAL FORMALISM AND peace, equality, and freedom. Iflaw is used to compel (as it is), it is so used to because
INTERNATIONAL JUSTICE the violations cannot coexist with such aspirations. They are singular until the law lifts
them from the purely subjective into public illegality:
Let me close by four responses to the question 'what is international law for?'. Two
Law is the name of the semblance of order-the assembling, the ordering, the establishing of
are rather straight-forward. First, international law exists to advance the repertory
commonality-that is made of our otherwise (subjective) differences when we take, or
of substantive values, preferences, and practices that those in dominant positions interpret them to be a world that can be judged, rather than mere subjective experiences
seek to realize in the world. Secondly, it also gives voice to those who have been (Constable, 2000, p 95).
excluded from decision-making positions and are regularly treated as the objects of
other peoples' policies; it provides a platform on which claims about violence, But the justice that animates political community is not one that may be fully
injustice, and social deprivation may be made even against the dominant elements. attained. Not only is law never justice itself, the two cannot exist side by side. If
To bring these two aspects of international law together means that there is no there is justice, then no law is needed -and if there is law, then there is only a (more or
fixed set of objectives, purposes, or principles that would exist somewhere 'outside' less well-founded) expectation of justice. Here is the truth in Instrumentalism about
or beyond international law itself, that they are always the objectives of particular positive law being a pointer beyond itself. There is a Messianic structure to inter-
actors involved in hegemonic pursuits. The law is instrumental, but what it is an national law, the announcement of something that remains eternally postponed. It is
instrument for cannot be fixed outside the political process of which it is an this 'to-come' that enables the criticism of the law's own violence, its biases and
inextricable part. exclusions. No doubt, law and justice are linked in the activity of lawyers, para-
This is why, thirdly, international law's objective is always also international digmatically in the legal judgment. This is the wisdom grasped by legal pragmatism.
law itself For as I have tried to argue above, it is international law's formalism that. But the judgment is always insufficiently grounded in law, just like positive law is
brings political antagonists together as they invoke contrasting instrumental under- always insufficiently expressive of justice. In the gap between positive law and justice
standings of its rules and institutions. In the absence of agreement over, or knowledge lies the necessary (and impossible) realm of the politics oflaw. Without it, law becomes
of the 'true' objectives of political community-that is to say, in an agnostic world- pure positivity, its violence a mere fact of power.
the pure form of international law provides the shared surface-the only such
surface-on which political adversaries recognize each other as such and pursue their
adversity in terms of something shared, instead of seeking to attain full exclusion-
'outlawry' -of the other. Its value and its misery lie in its being the fragile surface of
112 MARTTI KOSKENNIEMI WHAT IS INTERNATIONAL LAW FOR? 113

Indifference. Political Philosophy after the KOSKENNIEMI, M (1989), From Apology to


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4
THE SOURCES OF
INTERNATIONAL LAW
Hugh Thirlway

SUMMARY

A rule of international law must derive from one of the recognized sources, namely: (l)
treaties and conventions; (2) international custom; (3' general principles of law; and (4)
the \subsidiary sources' of judicial decisions and legal teachings. Treaties are binding only
on the parties to them; custom (which pre-supposes an established practice and a psycho-
logical element known as the opinio juris) is in principle binding on all States, unless it is a
\special' or \Iocal' custom, and save for the exceptional case of the \persistent objector'.
The general principles of law (as evidenced by national legal systems) may be appealed
to if a point is not settled either by treaty or custom. Other sources, or alternative con-
ceptions of how law comes into being, have from time to time been suggested, but the
traditional analysis continues to be used in practice, in particular by the International
Court.

I. INTRODUCTION: WHAT ARE SOURCES OF LAW?

The essence of every legal system is a body of principles and rules that lay down the
rights and obligations of the subjects of that system. I These may for convenience be
called the 'primary rules' of the system. However, each system also contains rules
which can be applied to determine what are the primary rules, how they come into
existence and how they can be changed; these we may term 'secondary rules'.2 In

I The question whether international law is solely a set of principles and rules is controversial, but no-one
denies that such principles and rules are comprised in it, and for present purposes it will be sufficient to limit
our attention to those principles and rules.
2 The terminology is that employed by Hart, 1994 in the context of municipal systems; it is less commonly
used in international law, but makes for clarity.
118 HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 119

municipal legal systems, ie the legal systems applicable within individual States, the still be the material source for a rule which has acquired the force of binding law by
presence of these secondary rules is easy to overlook in the actual practice of the law. another route. 3
The landowner surng his neighbour for trespass, or the prosecution in a criminal case, The question of the authority for the rule as a rule of law, binding on States, is
normally do not need to stop and ask themselves, 'Why.does encroachment on some- determined by the for-mal source of the rule. The generally recognized formal sources
one else's land invite legal consequences?', or 'Why is it an offence to do what the are identified in Article 38 of the Statute of the International Court of Justice, to be
defendant has done?' - the law so provides, and that is all. The primary legal rules examined in more detail below, but the two most important sources in practice are
being applied in these cases did not however spring up from nowhere: they exist treaties and international custom. If a rule is laid down in a treaty, then it is binding
because Parliament passed particular legislation, or because a long line of judicial on the States parties to that treaty, and the treaty is at once the material source and
decisions has established that the common law is to this or that effect. Thus there exist the formal source of the rule. The rule may however be taken over and applied in the
secondary rules, to the effect that legislation passed by Parliament, <3.p.d the S2!!E!lon practice of other States, not parties to the treaty, in such a way, and to such an extent,
law as expressed in judicial precedents, constitutes the law of the land-the body of that it takes on the character of a customary rule. For'these States, the material source
primary rules. of the rule will still be the original treaty, but the formaJ. source will be international
In international law, there exist similar secondary rules, but they are less clearly custom.
defined, for a number of reasons. There is, for example, at the international level -If the secondary rule defining the recognized sources of international law operates
neither a universal legislative body corresponding to a national Parliament, nor a to make it possible to determine what are the primary rules, governing the actual
system of universal judicial jurisdiction which has built up a wide-ranging body of conauct of States, what rule-presumably a tertiary rule-determines the identifica-
precedent. At the municipal level, legal disputes are usually over the precise applica- tion of the secondary rules? If the question is asked, 'Why should I comply with this
tIon or interpretation of rules, the existence of which is generally recognized: do the primary rule?', the answer may be, 'Because it is a rule of treaty-law, laid down
circumstances of the case fall within the rule enunciated by the judges in a particular in 'a treaty to which you are a party'; but what then is the answer to the question,
line of cases, or within the purview of a particular statute, as correctly interpreted? At 'Why must I comply with treaty-Iawt The classic answer is that there is a principle
the international level, disputes may just as often turn on whether the legal rule relied pacta sunt servanda, that what has been agreed to must be respected; this is an
on by one State exists at all as a legal rule, since there are controversial aspects of the eXj!mple of a secondary rule, one which defines treaties and agreements as formal
workings of the secondary rules. There may be recognition of a rule, but dispute sources of international law. Theoretically one may then ask, 'But why should I
whether it is a rule binding on one or the other party to the dispute (since, as we shall respect the principle pacta sunt servanda? Is there a higher principle still requiring
see, not all rules of international law are binding on all States). me to respect it?' Article 38 of the ICJ Statute, already referred to, provides that the
These secondary rules are referred to in international law as the sources of inter- Court, in deciding disputes in accordance with international law, is to apply inter-
national law. This terminology highlights the idea that a rule must come from national treaties and conventions in force; but that is no more than a recognition of
somewhere, as well as the idea that there is a flow, a process, which may take time: a treaties as one of the formal sources of primary rules. The Statute is in fact a material
rule may exist conceptually, as a proposal or a draft, and later come to be accepted source of the secondary rule that treaties make law, but not a formal source of
as binding. The problem may then be to determine at what moment the rule that rule.
acquired the status of a rule of existing, binding, law. Prior to that moment, it forms Much legal ingenuity has been deployed to discuss this problem, to avoid an infinite
part of what is called lex ferenda (law which ought to be made, ie, developing or regression of se'~ondary, tertiary, quaternary, etc. rules, by establishing, for example, a
embryonic law); thereafter it is part of the lex lata (law which has' been made, 'fundamental norm' on which all international law is based. None of the theories
positive law). advanced commands universal assent; but nor are any of them actually essential
It is traditional to distinguish between what are called the material sources of to international legal relations in practice. The issue is fortunately one of purely
international law, and the formal sources. In relation to a particular rule which is academic interest. The realistic answer to the conundrum can probably only be
alleged to' be a rule of international law, the material source is simply the place- that this is ~he way international society operates, and has operated for centuries, and
normally a document of some kind-in which the terms of the rule are set out. This probably the only way in which anything that can claim to be a society or community
may be a treaty, a resolution of the UN General Assembly, a proposal of the UN could possibly operate.
International Law Commission, a judicial decision, a 'restatement' by a learned body,
or even a statement in a textbook. In identifying a material source, no account need
3 For example, the 1933 Montevideo Convention on the Rights and Duties of States is regularly referred to
be taken of the legal authority of the textual instrument: for example, a treaty which as containing a convenient legal definition of a 'State', and of the conditions which must be met for that status
has never come into force at all, and is thus not binding on anyone as a treaty, may to be acquired, despite the fact that for want of ratifications it never came into force as a treaty.
120 HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 121

The doctrine of sources has attracted enormous amounts of discussion and the most highly qualified publicists of the various nations, as subsidiary means
criticism among international lawyers, and various proposals h~ve been made for for the determination of rules of law.
re-thinking the subject, or for getting rid of the idea of (sources' altogether. While the 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
traditional view presents some anomalie~ and difficulties, it has so far proved the most bono, if the parties agree thereto.
workable method of analysing the way in which rules and principles develop that
The clause in the first paragraph (whose function is to decide in accordance with
States in practice accept as governing their actions. The reasoning in the decisions of
international law such disputes as are submitted to it' was added in 1946; its effect
the International Court of Justice has consistently used the traditional terminology
is to emphasize that, by applying what is mentioned in sub-paragraphs a to d, the
and structure of source-based law, and it seems unlikely that any other system will be
Court will be applying international law, ie, that the sources mentioned in those sub-
able to replace it.
paragraphs constitute recognized sources of international law, and (presumably) the
sole sources of that law. That this was already the intention of the text is clear from
the records of its drafting; but it also follows from the inclusion of paragraph 2. To
II. THE ENUMERATION OF THE TRADITIONAL .decide a case ex aequo et bono is by definition to decide otherwise than in accordance
with the applicable law: to decide simply what seems to the judge or arbitrator
SOURCES OF INTERNATIONAL LAW: the fairest solution in the circumstances. 5 Since the Court only possesses the power
ARTICLE 38 OF THE STATUTE OF THE to decide in this way when the parties agree to it, all other decisions must be in
INTERNATIONAL COURT OF JUSTICE accordance with law-and law as derived from the sources mentioned in paragraph l.
Article 38 has been much criticized as a definition' of the sources of international
When the Permanent Court of International Justice was to be established in 1922, a law, and it has often been suggested that it is inadequate, out of date, or ill-adapted to
Commission of Jurists was appointed to draw up its Statute, the legal instrument to the conditions of modern international intercourse. As already noted, there have been
govern its workings. The Permanent Court was to be the first standing international suggestions that the whole concept of (sources' should be thrown overboard, to be .
tribunal to decide disputes between States; if States were to be willing to accept it, one replaced by, for example, the (recognized manifestations of international law'; it has
of the matters that had to be defined in advance was the nature of the law that the also been suggested that the existence of additional sources should be accepted. Some
Court would apply. There was' at the time an established tradition of referring inter- of these latter suggestions will be addressed in section IV below; but the fact is that no
State disputes to binding arbitration, on an ad hoc basis, or of submitting groups of new approach has acquired any endorsement in the practice of States, or in the
related disputes to a temporary standing body, usually called a Claims Commission; language of their claims against each other; and the International Court has in its
but the terms of reference of arbitral bodies or claims commissions were almost decisions consistently analysed international law in the terms of Article 38. It may of
always defined in the international agreement (known as the compromis) by which course be objected ,that this is not necessarily significant, because whether or not
they were established. Article 38 is obsolete as a general statement, the Court remains bound by it; but if
The text which was adopted as Article 38 of the Permanent Court Statute was re-· there had really been a substantive change in international legal thinking' on the
adopted after the Second World War, when the Permanent Court was wound up and question of sources, the Court might have been expected at the least to have taken
replaced by the International Court of Justice, with one change in the wording. The note of it, while drawing attention to its o~n inability to go beyond the terms of its
present text is as follows: own Statute.

1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply: A. TREATIES AND CONVENTIONS IN FORCE
a. mternational conventions, whether general or particular, establishing rules The principle pacta sunt servanda has already been mentioned as the basis for
expressly recognized by the contesting states; the binding nature of treaties. The whole point of making a binding agreement is
b. inte.r:national custom, as evidence of a general practice accepted as law; that each of the parties should be able to rely on performance of the treaty by the
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59,4 judicial decisions and the teachings of 5 The Court has never been asked by the parties to a dispute to decide it in this way; but it has been
suggested (by Judge Oda) that maritime delimitation cases, in view of the difficulty of basing any specified
4 Article 59 provides that 'The decision of the Court has no binding force except between the parties and delimitation line on a framework of logically compelling legal argument, have in fact been decided on an
in respect of that particular case'. unavowed ex aequo et bono basis, with the tacit consent of the, parties.
122 HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 123

other party or parties, even when such performance may have become onerous or obligation of general customary law (a process to be examined below), in which case
unwelcome to such other party or parties. Thus a treaty is one of the most evident the non-party State may be bound by the same substantive obligation, but as a matter
ways in which rules binding on two or more States may come into existence, and thus of customary law, and not by the effect of the treaty. This is in fact the case of the
an evident formal source oflaw. The 1969 Vienna Convention on the Law of Treaties6 , Vienna Convention on the Law of Treaties itself; its provisions have frequently been
which is to a very large extent the codification of pre-existing general law on the applied by the International Court in cases in which one or both of the parties was not
subject, states the principle in Article 26, under the heading 'Pacta sunt servanda': a party to the Convention, on the basis that such provisions stated rules which apply
'Every treaty is binding upon the parties to it and must be performed by them in to all States as customary law. Secondly, it is possible for a State not a party to a treaty
good faith'. to accept an obligation stated in the treaty, or to derive a benefit from the treaty, if all
It has been argued that a treaty is better understood as a source of obligation, and States concerned-the parties to the treaty and the outsider State-are so agreed. In
that the only rule of law in the matter is the bas,ic principle that treaties must be effect a new treaty is concluded e~ending the scope of the original treaty to the third
observed (Fitzmaurice, 1958). Certainly the content of, let us say, a bilateral customs State. 8 '

treaty, setting rates of duties and tariffs on various goods, does not look much like The normal way in which a State becomes bound by the obligations provided for
'law'. At the other extreme, there are more and more examples in modern law of so- in a treaty is by becoming a party to it, through the processes to be described in
called 'law-making' treaties: multilateral conventions that lay down for the parties to Chapter 5. Where the treaty is a multilateral convention of the 'law-making' type, it is
them a whole regime, as for example the Geneva Conventions in the field of humani- possible that a State could, simply by conduct, indicate its acceptance of the regime of
tarian law, or the Vienna Convention on the Law of Treaties itself. The principle in the convention as applicable to itself. In the North Sea Continental Shelf case before
each case is however the same: that the States parties accept a commitment to certain the International Court, it was argued by Denmark and the Netherlands that the
behaviour that would not be legally required of them in the absence of the treaty. Federal Republic of Germany, which had. signed but not ratified the 1958 Geneva
They may indeed by treaty vary or set aside the rules that general international law Convention on the Continental Shelf, had 'by conduct, by public statements and
imposes on all States, though such variation or exclusion is only effective between the proclamations, and in other ways, ... unilaterally assumed the obligations of the
parties; and this power is subject to the limits imposed by jus cogens. 7 The traditional Convention; or ... manifested its acceptance of the conventional regime.'9 The Court
doctrine that treaties are sources of law is therefore recommended by logic and rejected this contention on the facts of the case, but did not, absolutely rule out any
convenience. a
possibility of such process; it did however make it clear, first that 'only a very
If it is axiomatic that a party to a treaty is committed to what has been agreed in the definite, very consistent course of conduct on the part of [the] State' could have the
treaty, it is equally axiomatic that a State which is not a party to a treaty is under no ~ect suggested, and secondly that there could be no question of a State being per-
such oblig<j.tion. The principle res inter alios acta nee noeet nee prodest (a transaction mitted to claim rights or benefits under a treaty 'on the basis of a declared willingness
between others effects neither disadvantage nor benefit) is as valid as pacta sunt to be bound by it, or of conduct evincing acceptance of the conventional regime'. 10
servanda and can in fact be regarded as a corollary of that principle. As the Vienna Article 38 of the ICT Statute refers to 'treaties and conventions in force', thus
Convention on the Law of Treaties (Article 34) expresses the point: 'A treaty does not excluding treaties which have not, or not yet, come into force, or which have ceased to
create either obligations or rights for a third State without its consent'. The Vienna be binding on the parties. 11 The question whether a particular treaty is 'in force'
Convention being itself a treaty, its codifying provisions are thus themselves only
applicable as treaty-law to the States which have ratified it.
8 See Articles 35 and 36 of the Vienna Convention on the Law of Treaties:
There are two apparent exceptions to this principle-but they are only apparent. 'Article 35: An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the
First, the situation in which an obligation stated in a treaty is or becomes an provision to be the means of establishing the obligation and the third State accepts that obligation in writing.
Article 36(1): A right arises for a third State from a provision of a treaty if the parties to the treaty intend the
provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and
6 A multilateral convention adopted in 1969, on the basis of a draft prepared by the UN International Law the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty
Commission, and accepted by a large number of States. It codifies practically the whole of the law of treaties otherwise provides.'
(see further Ch 6 below). '. 9 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 27.
7 This concept will be dealt with more fully in Chapter 5: briefly:internationallaw is regarded as divided 10 Ibid, para 28. Underlying the distinction is of course the question of the consent of the original parties:
into jus dispositivum, the rules of law from which States may freely contract out, by treaty; and jus cogens, a they may be presumed to have no objection to other States accepting the obligations of the Convention, but if
category composed of a limited number of norms which, because of their importance in and to the inter- other States are to enjoy benefits under it there must be positive consent of the original parties, as indeed the
national community, remain binding notwithstanding any agreement to the contrary (see Articles 53 and 64 Vienna Convention requires. This point was made by the ICJ in the North Sea Continental Shelf case, ibid,
of the Vienna Convention on the Law of Treaties). The concept is generally accepted, but there remains para 28.
considerable controversy as to its application, as to how rules of jus cogens acquire that status, and which rules 11 The question whether neglected treaties cease to be binding through 'desuetude' was raised, but not
have in fact acquired it. answered, before the ICJ in the Nuclear Tests and Aegean Sea Continental Shelf cases; it remains controversial.
124 HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 12 5

between a particular pair of States is however not an absolute one, to be answered one dispute, may find it needs to invoke the same rule in its favour tomorrow in a
simply by checking that each of them has ratified it. A new State may be bound by different dispute. 12
certain treaties concluded by its predecessor, without a formal act of accession thereto.
A further complication is due to the possibility of reserVations made by parties when 2. The two-element theory
signing or ratifying the treaty: in the case of a complex multilateral treaty, there may The traditional doctrine is that the mere fact of consistent international practice in
in effect be a number of parallel regimes operating between different pairs of States, a particular sense is not enough, in itself, to create a rule of law in the sense of
depending on the extent to which a State may have excluded certain provisions of the the practice; an additional element is required. Thus classical international law sees
treaty by reservation, and the extent to which the reservation has been accepted (or customary rules as resulting from the combination of two elements: an established,
more precisely, not objected to) by other States parties. The operation of the rules as widespread, and consistent practice on the part of States; and a psychological element
to reservations will be explained more fully in Chapter 6. known as the opinio juris sive necessitatis (opinion as to law or necessity), usually
abbreviated to opinio juris. The judicial locus classicus on the point is the ICJ judgment
in the North Sea Continental Shelf case; the Court was discussing the process by which
B. CUSTOM a treaty provision might generate a rule of customary law, but its analysis is applicable
to custom-creation generally: •
1. Introduction
Not only must the acts concerned amount to a settled practice, but they must also be such,
It is probably a universal characteristic of human SOCIeties that many practices or be carried out in such a way, as to be evidence of a belief that this practice is rendered
which have grown up to regulate day-to-day relationships imperceptibly acquire a obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the
status of inexorability: the way things have always been done becomes the way existence of a subjective element, is implicit in the very notion of the opinio juris sive
things must be done. In treating custom as a source of legal rules, international necessitatis. 13
law does not deviate from the pattern discernible in municipal legal systems.
The idea that State practice, to be significant, must be accompanied by a conviction
Historically, at the international level, once the authority of natural law, in the
of adhering to an existing rule of law, is here merely re-stated; it had long been
sense of what was given by God or imposed by the nature of an international
recognized in international law. It has however been frequently pointed out that it is
society made up of independent princes, had weakened, it was natural to derive
paradoxical in its implications: for how can a practice ever develop into a customary
legal obligations from the legitimate expectations created in others by conduct.
rule if States have to believe the rule already exists before their acts of practice can be
The precise nature and operation of the process has, however, always presented
significant for the creation of the rule? Or is it sufficient if initially States act in the
obscurities.
mistaken belief that a rule already exists, a case of communis error facit jus (a shared
One approach is to regard all custom as a form of tacit agreement: States behave to
mistake produces law)?
each other in given circumstances in certain ways, which are found acceptable, and
The problem has been argued over endlessly by legal writers, some of whom haye
thus tacitly assented to, first as a guide to future conduct and then, little by little, as
sought to escape the dilemma by denying the two-element theory itself. It is clear that
legally determining future conduct. The difficulty of this analysis is that if agreement
the elements of practice and opinio are closely intertwined: the Court spoke of the
makes customary law, absence of agreement justifies exemption from customary law.
practice as 'evidence' of the existence of the opinio juris, and for some authors only
On that basis, a given rule would only be binding on those States that had participated
the psychological element is essential, the role of State practice being merely to prove
in its development, and so shown their assent to the rule. Yet it is generally recognized
the existence of that element. This makes it possible to see a rule of international
that, subject to two exceptions, to be indicated below, a rule of general customary
customary law where there is insufficient practice, or none, but there is other evidence
international law is binding on all States, whether or not they have participated in the
that States believe in the existence of a rule of law; this is particularly relied on by
practice from which it sprang. The problem is particularly acute in the case of new
those who see General Assembly resolutions as law-creating. An alternative approach
States: during the period of decolonization after the Second World War, some attempt
was made by the newly independent States to argue that they began life with a clean
slate, so far as rules of customary law were concerned. They claimed to be able to pick 12 The question of the application to a new State of treaties concluded by its predecessor, where each treaty
and choose which established rules of law they would accept, and which they would could be considered independently, continued to cause controversy.
13 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 77. See also Continental Shelf (Libyan
reject. This view was not accepted by other States, and quietly abandoned by its
Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985, p 13, para 27; Military and Paramilitary Activities in and
adherents. It was probably realized that it could have been a two-edged sword; that against Nicaragua (Nicaragua v United States ofAmerica), Merits, Judgment, ICJ Reports 1986, p 14, paras 183
most rules of general custom are such that a State which rejects one of them today in and 207.
126 HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 127

is to see custom as essentially practice, the only relevance of the beliefs or intention of the case when the first satellites were launched into space, and the idea of a landing
the States involved in the practice being to exclude practices which are regarded by all on the moon or other celestial bodies began to look like something more' than an
concerned as dictated merely by courtesy or comity, without any legal commitment to impractical dream. Did a satellite, in orbiting the earth, infringe the sovereignty of
continued observance. the States whose territory it overflew? Were celestial bodies open to appropriation and
Since the opinio juris is a state of mind, there is an evident difficulty in attributing sovereignty in the same way as unoccupied territories on earth? On the first point, the
it to an entity like a State; and in any event it has to be deduced from the State's only practice at the time of the Russian Sputnik was the launching of that object itself,
pronouncements and actions, particularly the actions alleged to constitute the and the reaction, or lack of reaction, of other States: on the second point, there was no
'practice' element of the custom. It should not be overlooked that State practice is practice, and unlikely to be any for a number of years. The problem was solved by
two-sided; one State asserts a right, either explicitly or by acting in a way that international treaty; 16 but it was in this context that the suggestion was made that there
impliedly constitutes such an assertion, and the State or States affected by the claim had come into existence a new form of customary law, usually known as 'instant
then react either by objecting or refraining from objection. The practice on the two custom'. According to this view, first advanced in 1965 (Cheng, 1965), custom could
sides adds up to imply a customary rule, supporting the claim if no protest is made, be deduced from declarations in General Assembly resolutions, such resolutions con-
or excluding the claim if there is a protest. The accumulation of instances of the one stituting at once elements of State practice and evidence of the necessary opinio juris.
kind or the other constitutes the overall practice required for establishment of a This theory, though influential for a time, never gained full acceptance, and eventually
customary rule. it was implicitly rejected by the International Court in the cases of Military and
It also follows from the psychological requirement of opinio juris, the consciousness Paramilitary Activities in and against Nicaragua17 and Legality of the Threat or Use of
of conforming to a rule, that if the acts of practice are to be attributed to a motive Nuclear Weapons,18 in which General Assembly resolutio+ls were treated as evidence of
other than such consciousness, they cannot show opinio juris. This point also arose in opinio juris, but not as acts of State practice. The position appears to be that in a field
the North Sea case: the Court, when considering whether a rule of maritime delimita- of activity in which there has not yet been any opportunity for State practice, there is
tion laid down in the 1958 Geneva Convention on the Continental Shelf had become no customary law in existence.
a customary rule, noted that a number of instances of delimitation complying with
the rule were delimitations effected by States parties to the Convention. Those States 3. Divergent practice
'were therefore presumably ... acting ... in the application of the Convention', and The settled practice required to establish a rule of customary law does not need to be
thus 'From their action no inference could legitimately be drawn as to the existence of the practice of every single State of the world, as long as it is widespread and consist-
a rule of customary law .. .'14 ent. A special problem is that of the divergence between States' assertion of the
Similar reasoning may be applied to the situation of States which, for one reason or existence of a particular rule of customary law, and their practice inconsistent with it.
another, cannot participate in a practice giving rise to a customary rule: an obvious In the field of human rights law, for example, it is probably the case that the municipal
example is that of land-locked States in relation to a rule concerning the delimitation law of practically every State of the world prohibits torture, and States are generally
of maritime areas off the coasts of coastal States. Such States may have a view as to the agreed, in theory, that there is a rule of international law forbidding it; yet there is '
existence of such a rule, but one which cannot be demonstrated by acts of practice, no doubt that torture continues to be widely practised. Can a rule which flies in
and thus not a true opinio juris. It was probably this consideration that led the the face of consistent practice still be said to have existence as one of customary law?
International Court, in the North Sea case, to refer to the importance, in assessing the An observation of the International Court in the case of Military and Paramilitary
law-creative effect of State practice, of the participation in it of 'States whose interests Activities in and against Nicaragua, in connection with the question of the existence of
are specially affected'.15 More controversial was the question that arose in the case customary rules forbidding the use of force or intervention, is in point here:
concerning the Legality of the Threat or Use of Nuclear Weapons: was the practice of
It is not to be expected that in the practice of States the application of the rules in question
the States that actu;illy possessed such weapons more significant than that of the
should have been perfect, in the sense that States should have refrained, with complete
States which did not? The Court did not, in its advisory opinion, comment directly on consistency, from the use, of force or from intervention in each other's internal affairs. The
the point.
Court does not consider that, for a rule to be established as customary, the corresponding
A further problem of a similar nature is the determination of customary law in a
field in which there is no practice at all, because the subject matter is new. This was ]6 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies (1967),610 UNTS, P 205.
17 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
14 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 76. Merits, Judgment, ICJ Reports 1986, p 14, paras 184 and 188.
15 Ibid, para 74. 18 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, para 73.
HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 12 9
128

practice must be in absolutely rigorous conformity with the rule. In order to deduce exempted from the rule when it does become a rule oflaw, having the status of what is
the existence of customary rules, the Court deems it sufficient that the conduct of States generally called a persistent objector.
should, in general, be consistent with such rules, and that instances of State conduct A well-known rule of local customary law is that relating to the practice of diplo-
inconsistent with a given rule should generally have been treated as breaches of that rule, matic asylum in Latin America, whereby the States of the region recognize the right of
not as indications of recognition of a new rule. If a State acts in a way prima facie inconsis- the embassies of other States of the region to give asylum to political fugitives. The
tent with a recognized rule, but defends its conduct by appealing to exceptions or justi- rule is purely local in that it is not asserted in favour of, or against, States outside the
fications contained within the rule itself, then whether or not the State's conduct is in fact region: for example, neither the British Embassy in Buenos Aires, nor the Argentine
justifiable on that basis, the significance of that attitude is to confirm rather than to weaken
Embassy in London, would be regarded as entitled to offer asylum. The International
the rule. 19
Court had to consider the detailed application of the rule in the Asylum and Raya de
The Court here rules that conduct inconsistent with an existing rule is not necessarily la Torre cases, in which Colombia relied, against Peru, on 'an alleged regional or local
an indication of the recognition, or even the emergence, of a new rule; but it does at custom peculiar to Latin-American States'. In the Asylum case the Court observed
the same time recognize that this is a way in which a new rule may be discerned. Later that:
in the same decision, discussing the principle of non-intervention, it observed that
The Party which relies on a custom of this kind must prove that this custom is established in
'Reliance by a State on a novel right or an unprecedented exception to the principle
such a manner that it has become binding on the other Party. The Colombian Government
might, if shared in principle by other States, tend toward a modification of customary must prove that the rule invoked by it is in accordance with a constant and uniform usage
internationallaw'.20 The paradox of opinio juris is of course here emphasized: if a State practised by the States in question, and that this usage is the expression of a right appertain-
decides to act in a way inconsistent with a recognized rule of custom, it will no doubt ing to the State granting asylum and a duty incumbent on the territorial State. 22
have good and sufficient reason for doing so, and perhaps even for thinking that its
approach should be generalized-that the rule needs to be modified consistently with Further on in its judgment, the Court held that 'even if such a custom existed between
its action. It will however, almost by definition, not be acting because it is convinced certain Latin-American States only, it could not be invoked against Peru which, far
from having by its attitude adhered to it, has on the contrary repudiated it .. .'.23 This
that there is already a new rule. The process by which customary rules change and
develop thus presents theoretical difficulties; but it is a process which does occur. has been held by some commentators to constitute a finding that Peru had the status
Customary law in the traditional conception of it is not a rigid and unchangeable of 'persistent objector', to be discussed in a moment; but it can also be understood as
a finding that the regional custom, at least on the specific point in dispute, applied to a
system, though it is sometimes criticized as being such.
An important difference between customary law and law derived from treaties is group of States which did not include Peru.
that, as already observed, in principle customary law is applicable to all States without It has even been held that a special custom may exist between two States only: in the
exception, while treaty-law is, as we have seen, applicable as such only to the parties to Right of Passage over Indian Territory case, Portugal relied on such a custom as regulat-
the particular treaty. A State which relies in a dispute on a rule of treaty-law has to ing the relationship between itself and India concerning access to certain Portuguese
establish that the other party to the dispute is bound by the treaty; whereas if a claim enclaves in Indian territory. The Court held that:
is based on general customary law, it is sufficient to establish that the rule exists in It is difficult to see why the number of States between which a local custom may be estab-
customary law, and there is no need to show that the other party has accepted it, or lished on the basis of long practice must necessarily be larger than two. The Court sees no
participated in the practice from which the rule derives. 21 There are two exceptions reason why long continued practice between two States accepted by them as regulating their
24
to this principle: alongside general customary law there exist rules of special or local relations should not form the basis of mutual rights and obligations between the two States.
customary law, which are applicable only within a defined group of States; and it is in The notion of the 'persistent objector' has been identified in the reasoning in the
principle possible for a State which does not accept a rule which is becoming standard Asylum case; but the idea is usually traced back to the earlier Fisheries case between the
international practice to make clear its opposition to it, in which case it will be UK and Norway, which concerned the legality of the baselines drawn by Norway

19 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), 22 Asylum, Judgment, IeJ Reports 1950, p 266 at p 276.
Merits, Judgment, IeJ Reports 1986, p 14, para 186. 23 Ibid, pp 277-278.
20 Ibid, para 207. 24 Right of Passage over Indian Territory, Merits, Judgment, IeJ Reports 1960, p 6 at p 39. Cases of this kind

21 If the dispute is subjected to arbitration or judicial settlement, there is theoretically no need even to are likely to be rare, since it would normally be more appropriate to analyse such a situation as one of tacit
establish the existence of the rule; according to the principle jura novit curia (the court knows the law), agreement, ie, in effect governed by treaty-law. In the Right of Passage case this interpretation would have
no proof of general rules of law is required. However, in practice litigant States do endeavour to prove the raised problems of succession, the arrangement dating back to the Mughal period, and left undisturbed by the
existence of the rules of law on which they base their claims. successive British and independent Indian governments.
130 HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 131

around its coasts in order to calculate the breadth of its territorial sea. The UK argued claim was dismissed, on the ground that in customary law, only the national State of
that the Norwegian baselines were inconsistent with a rule of customary law referred the company (Canada) could seek reparation; this was not a non liquet, a finding that
to as the 'ten-mile rule', but the Court was not satisfied that any such general rule of there was no law on the point, but a finding that the specific rule relied on by Belgium
customary law existed. However it then added: did not exist in law.
The extent to which international legal relations were governed in the 1920s, at
In any event the ten-mile rule would appear to be inapplicable as against Norway inasmuch
the time of the Commission's work, by anything beyond treaties and custom, was
as she has always opposed any attempt to apply it to the Norwegian coast.25
obscure, but the Commission was able to agree that, failing one of those sources, the
As a result of, in particular, a very influential article by Sir Gerald Fitzmaurice Court should apply 'the general principles of law recognized by civilized nations'.
(Fitzmaurice, 1953), it became accepted by most scholars that a State which objected Up to the present, neither the Permanent Court nor the ICJ has based a decision on
consistently to the application of a rule of law while it was still in the process of such principles, though there are decisions by arbitral bodies (to whom, of course,
becoming such a rule-in other words, while practice consistent with the possible rule Article 38 of the ICT Statute has no direct application) which have relied on the
was still accumulating, but before the rule could be regarded as established-could concept. There is however no unanimity among scholars as to the nature of the
continue to 'opt out' of the application of the rule even after it had acquired the status principles which may be invoked under this head. There are broadly two possible
of a rule of general customary law. interpretations.
This is an attractive theory, since if there were no possibility of dissent from a According to one interpretation, the principles in question are those which can be
nascent rule, customary law would be created by the majority of States and imposed derived from a comparison of the various systems of municipal law, and the extrac-
willy-nilly on the minority; but there is little State practice to support it (and if it tion of such principles as appear to be shared by all, or a majority, of them.2 7 This
exists, it is itself a rule of customary law established by practice), and its very existence interpretation gives force to the reference to the principles being those 'recognized
has been questioned by commentators (Charney, 1993). What is certain is that by civilized nations'; the term 'civilized' is now out of place, but at the time it
customary law is not made simply by majority: in the case of Legality of the Threat or was apparently included inasmuch as some legal systems were then' regarded as
Use of Nuclear Weapons, the Court accepted that the opposition of the handful of insufficiently developed to serve as a standard of comparison. 28 In line with this
nuclear States to any customary rule prohibiting such weapons blocked the creation interpretation, parties to cases before the ICJ have at times invoked comparative
of such a rule, even though it was favoured by a substantial majority of the States of studies of municipal law. In the case, already mentioned, of Right of Passage over
the world. Indian Territory, Portugal argued that general principles of law supported its right
to passage from the coast to its enclaves of territory, and adduced a comparative study
of the provisions in various legal systems for what may be called 'rights of way
C. THE GENERAL PRINCIPLES OF LAW
of necessity'. When for the first time an application was made by a State (Malta) to
When Article 38 of the Statute of the Permanent Court was being drafted, the Com- intervene in a case between two other States (Tunisia and Libya) on the basis of
mission of Jurists was concerned that in some cases the future Court might find that having an interest which might be affected by the decision in the case (a possibility
the issues in dispute before it were not governed by any treaty, and that no established referred to in Article 62 of the Court's Statute), Malta similarly relied on a com-
rule of customary law either could be found to determine them. It was thought parative law study showing the conditions and modalities of intervention in judicial
undesirable, and possibly inappropriate in principle,_ that the Court should be obliged proceedings in various national courts.
to declare what is known as a non liquet-a finding that a particular claim could An alternative interpretation is to the effect that, while the Commission of
neither be upheld nor rejected, for lack of any existing applicable rule oflaw. This is to Jurists may have had primarily in view the legal principles shared by municipal legal
be distinguished from a finding that a particular claim is not supported by a positive orders, the principles to be applied by the Court also include general principles
rule of law, which is tantamount to a finding that there exists a negative rule of law. applicable directly to international legal relations, and general principles applicable to
For example, in the Barcelona Traction, Light and Power Co case,26 Belgium claimed
that it could demand reparation from Spain for the economic loss suffered by Belgian
17 A pioneering and influential work on this subject was Lauterpacht (1927). A clearer statement of the
shareholders in a Canadian company as a result of the bankruptcy of the company in derivation of general principles from national systems is to be found in the Rome Statute of the International
Spain-allegedly brought about by unlawful action attributable to Spain. The Belgian Criminal Court: 'general principles of law derived by the Court from national laws of legal systems of the
world' (Article 21(1)(c».
28 In the Abu Dhabi arbitration in 1951, 18 ILR 144, the arbitrator found that the law of Abu Dhabi

25 Fisheries, Judgment, ICJ Reports 1951, p 116 at p 13l. contained no legal principles that could be applied to modern commercial instruments, and could not
26 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3. therefore be applied to an oil concession.
132 HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 133

legal relations generally. Many of these find expression in customary law, and not themselves eminent scholars and practitioners, so that the distinction between
therefore exist as rules derived from that source; others are in effect assertions judicial precedent and teachings is not a sharp one. It remains the case, however, that
of secondary rules (of the kind defined in the Introduction to this chapter), States involved in a dispute, or their counsel, will cite the leading textbooks and
eg, the principle pacta sunt servanda. Some are applied unquestioningly as self- monographs in support of their claims, as will arbitrators and individual judges of the
evident: for example the principles already mentioned for determining the relation- ICJ in separate or dissenting opinions. The Court itself does not quote teachings, and
ship between successive treaties (and possibly successive legal rules generally)-the only rarely refers to arbitral decisions; it does however habitually cite its own previous
principles that the special prevails over the general, and that the later prevails over decisions when deciding a point of customary law, to such an extent that it has been
the earlier.
accused of paying these more attention than the actual State practice creative of the
There is however a striking lack of evidence in international practice and juris- rules it is called upon to state.
prudence of claims to .a specific right of a concrete nature being asserted or upheld on The judicial decisions referred to in Article 38 of course include the decisions of the
the basis simply of the general principles of law. It may be that such a phenomenon is ICJ, as being of the highest authority. The Court has however·made clear that, even for
inconsistent with the nature of such principles; at all events, this particular source of the Court itself, they are not in the nature of binding precedents. In a recent case in
law is of less practical importance in determining the rights and obligations of States which one of the points in issue was directly covered by an earlier decision, the Court
in their regular relations.
said in relation to that decision: 'It is not a question of holding [the parties to the
current case] to decisions reached by the Court in previous cases. The real question
D. SUBSIDIARY SOURCES: JUDICIAL DECISIONS AND TEACHINGS is whether, in this case, there is cause not to follow the reasoning and conclusions of
earlier cases'. 29
Paragraph led) of Article 38 makes a clear distinction between, on the one hand, The scope of Article 38(l)(d) is however not limited to the decisions of inter-
the sources mentioned in the preceding paragraphs, and on the other, judicial national courts and tribunals; they include the decisions of munic.ipal courts also.
decisions and teachings, inasmuch as it refers to the latter as being merely 'sub- Such decisions may however playa dual role: on the one hand they may contain a
sidiary means for the determination of rules of law'. The reason for this is evident: useful statement of international' law on a particular point (thus constituting a
if a rule of international law is stated in a judicial decision, or in a textbook, it will material source); on the other, the courts of a State are organs of the State and their
be stated as a rule deriving either from treaty, custom, or the general principles of decisions may also rank as State practice on a question of customary law. In the lCJ
law. The judge, or the author of the textbook, will not assert that the rule stated is case concerning the Arrest Warrant, the question was whether Heads of State and
law because he has stated it; he will state it because he considers that it derives from Foreign Ministers enjoy absolute immunity from prosecution for crimes allegedly
one of the three principal sources indicated in paragraphs (a) to (c) of Article 38. committed during their period of office, and whether there is an exception to this rule
The first three sources of Article 38 are formal sources; those of paragraph (d) are in the case of war crimes or crimes against humanity. The parties (Belgium and the
material rather than formal sources, but material sources having a special degree of Congo) both relied on decisions on the point by the UK House of Lords in the
authority.
Pinochet case30 and the French Cour de cassation in the Qadaffi case. 31 The statements
This was so even in the early days of the development of international law, when of international law in those decisions could have been regarded as 'subsidiary means'
the opinions of eminent legal writers such as Vattel, Grotius, Bynkershoek, or Vittoria for the determination of the customary law on the subject; they were however pre-
carried much more weight than do the authors of even the most respected textbooks sented as evidence of State practice, and the Court dealt with them as such. 32 The
of today. Those eminent classical authors based their views much more on natural Court referred to the 'few' decisions of national courts on the question; the paucity of
law than on State practice or judicial decisions. Natural law, by definition, as it were, is practice was obviously relevant to the question whether a customary rule had become
only visible in the form stated by legal authors; and the greater the authority of the established (as explained in section 2 above). But if the decisions had been classified as
author, the more trust is to be placed in his definition of what natural law prescribes.
Nevertheless, the authority of the law stated as natural law rested on what would now
be called the general principles of law, and not on the say-so of the writer, whatever 29 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, ICJ
his eminence. Reports 1998, p 275, para 28.
30 R v Bow Street Mevopolitan Stipendiary, ex parte Pinochet Ugarte (Amnesty International Intervening),
Now that there exists a much greater body of judicial and arbitral decisions enunci- (No 3) [2000] AC 151; [1999] 2 All ER 97.
ating rules of law, the emphasis in practice has shifted to the contribution made by 31 SOS Attentat and Castelnau d'Esnault v Qadajfi, Head of State of the State of Libya, France, Court of

such decisions, and away from the views of 'the most highly qualified publicists of Cassation, criminal chamber, 13 March 2000, No 1414.
32 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and
the various nations'. Furthermore, the judges and arbitrators are more often than
Merits, Judgment, ICJ Reports 2002, p 3, paras 57, 58.
134 HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 135

'subsidiary means' under Article 38(1)(d), the only question would have been to it, 'behind' the treaty, as it were. Such continued existence will normally be of
whether they correctly stated the law, not whether they represented a widespread purely theoretical importance, so long as the treaty continues to bind, but in the
practice of national judicial bodies. 33 case referred to, the customary rule rather than the treaty rule fell to be applied by
the Court (for special reasons connected with the nature of the Court's jurisdiction in
the case).
The relationship between treaty and customary rules is not necessarily static, how-
III. THE RELATIONSHIP BETWEEN THE SOURCES ever:-InUieNorlh Sea Continental Shelf case, the Internati011~:rCouriTden~~(th~~~
OF INTERNATIONAL LAW situations'inwhich the existence or creation of a custoIIlary rllle might be related to
~reaty provisi~ns. in the first place, as already observed, a treaty may embody already
established rules of customary law, so that it is, tothat extent, simply declaratory' of
A. RELATIONSHIP BETWEEN TREATY AND CUSTOM
-eXiSting~~~~thiij~i~iairl.1>.'". the case for some provisions' at least of, for example,
The State practice which is required for the establishment of a rule of customary -··th.e-VleD.na Convention on Diplom~tic Relati~~s, or theVieruia' ConventIon on the
law has to take the form of action by a State on the international level, that is to L-aw of tre~tie§;' ~nd as regards the convention in issue in the North S~a cases, the
say, in relation to one or more other States. An act of a State that has no impact 19-58-G~~~~a Conve~tion on th~ Continental Shelf, the Court recognized that' some
outside its territory, or in relation only to its own subjects, is irrelevant as State provisions represented existing customary law, though not the delimitation Article
practice. One of the most normal and essential acts of a State in relation to another (Article 6).
State or States is however the conclusion of a treaty or 'agreement; and consequently ~~~?n~r~i~ .!.?-p~.~slbl~__t!ta!.~ !ll~t~ateral rr:eaty. stat~s_rules and principles which
treaties may well serve as acts of practice significant for the development of custom. can be found reflected in the practice of States prior to the 'adoption of the treaty, so
~~e ~rea~Jn itsel~ creates certain ri.~~ts a~~ obliga~~~VY:W~h..Cl!en()t ofa custom~ry iliif'they'can be regarded as lex ferenda which is ripe for transition to lex lata; in such
~~t.~_~ but if a number of States make a habit of concluding treaties containing case, the processes of negotiation and adoption of the treaty may be regarded as
~e:.t~in ~~dar..(r.p.r2~~i~ri~?_th~ th~y, ~"suit~bi~-~~~~mst~~~~, be taken to' having what the Court referred to asa-'cryStaIIizlllg-e-ffecToii-rhe-iiascent-customary
~how that .~~Y.l"~cQgIl~~ .~~ exi~t~~~.~f~-,~llst~~ '~~q~iring them to do so. The . ·-rUles. This is p~obabiy-partlcU1arfy ilkery-l{the treatY resuJ.ts 'from the labours -of"the
difficulty is of course that it can 'also be argued that the ~ery fact that States have International Law Commission, whose methods of work allow for considerable input
recourse to treaties to establish certain rules shows that they consider that those rules from governments, which is taken into account in the drafting of texts presented for
would not be applicable if no treaty were concluded, ie, that there is no customary incorporation in a convention.
rule of that nature. This is a difficulty that has caused controversy, for example, Finally, it may be that,. after the convention has come into force, States other than
over the question whether there is a customary rule to the effect that a State is th~' parties t;-itfi~d -it~;-~Yi~~~t-:t9 .p(lp-ply tb.~ .. ~o.nyenti~n rui~~.iu.thS!~-~~~t~~
not bound to extradite persons accused of political offences. A provision to that effect .i-clatlOns, mer this--may -~~nstitute State practice leading to the development of a
is almost always included in extradition treaties; does that signify the existence of a cu-stomgJ-}'-"rul~ . he contention that this had occurred in relation to Article 6 of the
custom, or of a need which has to be met on each and every occasion by a special
'1'9s8 G~~~va . onvention vv3ls r~!5~~~~fb:r th~~~~t-~~~~~~~;~g-'"-''''' ...... -"- -- .. -.-... .'-.-
clause?
treating that Article as a norm-creating provision which has constituted the foundation of,
As observed above, ~ a re~~...?i_~~!:"~lk.l. existe..n~~_QLt;r~aties_and .custom or has generated a rule which, while only conventional or contractual in its origin, has since
as sources of int~rI1<:lti,??:al_!a~_0!_~~!~~~~~0~.~~y .~<:.~()verne.c:l. S!J:!l~H9-.l1e..ously passed into the general corpus of international law, and is now accepted as such by the opinio
a treaty, as regards the relationships between the parties to the treaty, and by juris, so as to have become binding even for countries which have never, and do not, become
customary rules, as regards the relationship between non-parties, or between a parties to the Convention. There is no doubt that this process is a perfectly possible one and
party to the treaty and a non-party. It has even been held, by the International does from time to time occur; it constitutes indeed one of the recognized methods by which
Court in the case of Military and Paramilitary Activities in and against Nicaragua, new rules of customary international law may be formed. At the same time this result is not
that where a customary rule has been replaced by a multilateral treaty, the customary lightly to be regarded as having been attained. 34
rule continues to exist, not only for non-parties to the treaty, but also for the parties The Court pointed out that the rule in question would have to be 'of a fundamentally
norm-creating character such as could be regarded as forming the basis of a general

33 However, since they would only be subsidiary means of proving the law, it would have been necessary to
show that there was other State practice supporting a customary rule. 34 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 71.
HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 137

rule of law';35 not every rule which finds a place in a multilateral convention is It will normally be the case that a treaty is lex specialis, and as such prevails over
appropriate for general adoption. For a suitable rule to pass into customary law, 'it any inconsistent rules of customary law, or at least such as existed at the time of
might be that, even without the passage of any considerable period of time, a very the conclusion of the treaty. It is to be presumed that the parties to the treaty
widespread and representative participation in the convention might suffice of itself', were aware of the existing customary rule, and decided to provide otherwise in
and it was in this respect that the Court emphasized, as already mentioned, the their treaty precisely in order to exclude the customary rule. More difficult is the
role of 'States whose interests were specially affected'. 36 What the Court regarded as question whether a custom which arises subsequently to the conclusion of a treaty,
'indispensable' was that and which might be regarded as lex specialis in· relation to the regime established by
the treaty, has the effect of overriding the treaty, or such part of it as is inconsistent
within the period in question, short though it might be, State practice, including that
with the customary rule, as between the parties. If the new customary norm is
of States whose interests are specially affected, should have been extensive and virtually
one accepted as jus cogens, then according to the Vienna Convention on the Law
uniform in the sense of the provision invoked;-and should moreover have occurred in
such a way as to show a general recognition that a rule of law or legal obligation of Treaties, not merely is any inconsistent provision in the treaty overridden, but 'any
is involved. 37 existing treaty which is in conflict with that norm becomes void and terminates'
(Article 64).
Assuming however that the new norm is not of that nature, what is the position? If
B. THE HIERARCHY OF SOURCES the parties to the treaty have themselves contributed to the development of the new
In general, when there exists more than one rule that is prima facie applicable to a customary rule by acting inconsistently with the treaty, or have adopted the custom-
given situation, the choice between them can be made by the application of one or ary practice in their relations after the rule has become established, then the situation
other of two principles: lex specialis derogat generali and lex posterior derogat priori: may be analysed as in effect a modification (or even perhaps an interpretation) of the
that is to say, the special rule overrides the general rule and the later rule overrides treaty. There is a well-settled practice of the Security Council, treating as valid a
the earlier rule. However, when these principles are applied to the acts of a legislator, resolution adopted over the abstention of one of the permanent members, despite the
they may be regarded as ways of interpreting legislative intention: normally a new law requirement in Article 27(3) of the Charter for the 'concurring votes' of the perman-
is intended to replace or modify an older law, and legislation providing for a special ent members. This practice was upheld by the Court in the Namibia case,39 in terms
case or regime is intended to constitute an exception to any general regime. There is which left it obscure whether this was an agreed 'interpretation' of the Article, or an
normally no difficulty in applying these principles to treaties, which represent the agreed amendment; no reference was made to any subsequently developed rule of
shared intentions of the parties,38 but it is less clear that they can operate in relation custom.
to custom. The real problem arises when none of the parties, or only some of them, have
Since, as explained above, it was the intention of the draftsmen of the PCIJ Statute participated in the new customary rule. Article 41 of the Vienna Convention on
that the 'general principles of law' should provide a fall-back source of law in the the Law of Treaties lays down a procedure for amendment of a multilateral treaty
event that no treaty and no customary rule could be found to apply to a given between certain of the parties only, thereby excluding a tacit amendment of this kind;
situation, it is clear that to this extent there exists a hierarchy of sources. If a treaty rule but it is not certain that customary law is so exigent. At all events, the real question is
or a customary rule exists, then there is no possibility of appealing to the general whether the new customary rule can be asserted against those of the parties to the
principles of law to exclude or modify it. The text of Article 38 does not however treaty that have not participated in it, or assented to it. One view of the matter is that
indicate whether there was a hierarchy of application between custom and treaty; a the very existence of the distinction between jus cogens and jus dispositivum implies
proposed provision, indicating specifically that the Court should apply the sources that a newly developed customary rule which is not jus cogens does not affect the
named in the order in which they were mentioned in that Article, was rejected during operation of a pre-existing treaty; but the point must probably be regarded as
the drafting. unsettled.

35 Ibid, para 72.


36 Ibid, para 73.
37 Ibid, para 74.
38 Article 30 of the Vienna Convention on the Law of Treaties, dealing with 'Application of successive 39 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
treaties relating to the same subject-matter', in effect applies first the criterion of the actual intention of the notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, IC! Reports 1971, p 16, paras
parties, and then a combination of the two principles here discussed. 21-22.
HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 139

B. SOME ADDITIONAL SOURCES OR QUASI-SOURCES


IV. IS THE ENUMERATION OF ARTICLE 38 THAT HAVE BEEN SUGGESTED
EXHAUSTIVE? POSSIBLE NEW OR
1. Unilateral acts
ADDITIONAL SOURCES
The place of unilateral acts of States in the structure of international law had been
regarded as somewhat marginal until the decision of the International Court in 1974
A. HOW CAN NEW SOURCES COME INTO EXISTENCE? in the Nuclear Tests cases. In those cases, the Court held that France had assumed
legally binding obligations through unilateral declarations, made to the world at large,
On the basis that the enumeration of sources of international law indicated in
to the effect that it would not hold any further atmospheric nuclear tests in the Pacific.
Article 38 of the PCIJ Statute was complete and exhaustive at the time of its
The Court laid down a general rule in the following terms:
drafting, there is a certain difficulty in postulating that a new source has come into
existence subsequently. The enumeration of sources is, as we have seen, a secondary It is well recognized that declarations made by way of unilateral acts, concerning legal
rule of law, one of those that lays down how the primary rules, those that directly or factual situations, may have the effect of creating legal obligations ... When it is the
govern conduct, may be created or modified. As was explained in the Introduction intention of the State making the declaration that it should become bound according to its
to this chapter, the quest for what might be called a 'tertiary' rule, one that lays terms, that intention confers on the declaration the character of a legal undertaking. 4o
down how the secondary rules might be created or modified, for a 'fundamental
The Court recognized that 'Of course, not all unilateral acts imply obligation ... ',41 but
norm' underlying all international law has, as we have seen, proved a vain one.
found on the facts that France had intended to enter into a binding commitment. As a
We must, it seems, be content to say that international society has established certain
result, the Court was able to hold that the purpose of the proceedings brought by
secondary rules that correspond to the nature of that society and are universally
Australia and New Zealand against France, namely a cessation of the atmospheric tests
accepted.
in the Pacific, had been achieved, and the case had therefore become 'without object'
Does it then follow that if the nature of international society changes, there may be
or moot.
a modification of the secondary rules, that is to say of the list of recognized sources of
The application of the traditional doctrine of sources to this decision posed prob-
law? It is certain that the nature of international society has changed radically since
lems. What was the formal source of France's obligation? It was not a treaty; neither of
the Treaty of Westphalia, and indeed even since the date of the preparation of the PCIJ
the other two States had indicated any acceptance of France's olive branch, so as to
Statute, in particular in view of the great increase in number of sovereign States, and give rise to a contractual or conventional obligation. The Court had also made it clear
in the complexity of their relations with each other. One cannot exclude a priori the
that it was not ruling on the vexed question whether France had any obligation under
possibility of a modification of the secondary rules.
customary law to stop its tests; if France was bound to do so, it was only because it had
But by what process is such modification to occur? In the absence of what we declared that it would do so. Was a unilateral act then to be treated as a new source of
have called tertiary rules, it is difficult to imagine any process that does not in effect
law?
involve invoking a secondary rule to effect a modification of a secondary rule.
This conclusion has been drawn by some scholars; but it does not seem to be an
For example, let us suppose that the resolutions of the UN General Assembly have ineluctable one. Notwithstanding the Court's sweeping general statement, quoted
become a new source of international law. How would one set about proving that this
above, the normal consequence of a unilateral declaration is either that it is accepted
was so? Presumably, by showing that in their relations with each other States asserted by the State or States to which it is addressed, and it will then become in effect part of
rules stated in such resolutions, and accepted such rules as binding when asserted
a treaty settlement; or it will be ignored and rejected, and the other State or States will
against them. This would however amount to saying that an international custom
not seek to enforce it, so that it will become a dead letter. Even without any explicit
had arisen whereby such resolutions created binding international law. It would
acceptance, the moment that one of the addressees of the unilateral declaration seeks
follow, either that a new source (resolutions) had arisen through the operation of
to rely on the legal obligation indicated in it, this will itself constitute the acceptance
an existing source (custom); or, perhaps more accurately, that the scope of custom as a
needed to convert it into a bilateral, conventional, relationship. The Nuclear Tests cases
source had become widened to include resolutions. On the latter view, a resolution
were exceptional in that, for reasons not relevant to the present discussion, the Court
would be (as it is now) a material source of law, but the formal source would be
was seeking to impose on Australia and New Zealand a settlement of their claims on
custom.

40 Nuclear Tests (Australia v France), Judgment, IeJ Reports 1974, p 253, para 43.
41 Ibid, para 44.
140 HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 141

terms which they had not themselves accepted. Even if we do not go so far as to say 3. Resolutions of the UN General Assembly
that the Nuclear Tests decisions were erroneous, to base a theory of sources on a Many resolutions of the UN General Assembly are convenient material sources oflaw,
decision in a case the facts of which are practically unrepeatable, does not appear a inasmuch as they state, with apparent authority, propositions of general law, and are
sound approach. often assented to by a very large majority of the Members, and thus of the States of the
world. 45 It is therefore tempting to confer on them also the authority of a formal source
2. Equity
of law, to look no further than the resolution itself in order to assert the binding
Invocations of equity have played an increasing part in international legal discourse of quality of the rules enunciated. This is particularly so when it is difficult to discern
recent years, but the exact nature of the concept is elusive. It has been said that a consistent practice of States in application of those rules, adequate to permit the
'"Whatever the legal reasoning of a court of justice, its decision must by definition be conclusion that a customary rule exists.
just, and therefore in that sense equitable',42 which however does not carry matters The theoretical difficulties involved in seeing resolutions as an independent source
much further. The idea of 'equitable principles' or an 'equitable result' plays an of law have already been adverted to. "When rules declared in resolutions have been
important part in the specialized field of maritime delimitation, both in judicial and relied on in international litigation, the resolutions have been judicially assessed as
arbitral decisions and in Articles 74 and 83 of the 1982 United Nations Convention on no more than declaratory of customary law, or at most as evidence of the existence of
the Law of the Sea. Equity in many legal systems may playa moderating role in the the opinio juris. In the case of Military and Paramilitary Activities in and against
sense that when the rigorous application of accepted rules of law leads to a result Nicaragua, the International Court declared that
which appears unjust, equity may step in to adjust the outcome. This is in fact the way
in which the concept has developed historically, from Aristotle to the distinction The mere fact that States declare their recognition of certain rules is not sufficient for the
between common law and equity which still survives in the English legal system. Court to consider these as part of customary international law, and as applicable as such to
those States.46
"Whether this is its role in international law, and if so whether it is its only role, is a
controversial issue. Had it considered that, independently of customary law, declarations in General
We are. here concerned only with the question whether something bearing the Assembly resolutions were creative of law as a formal source, it would surely have so
label 'equity' can be considered to be a formal source of law: that is to say, whether a found.
legal right or obligation can be asserted, which does not derive from any treaty or any
rule of customary law, simply on the basis of being 'equitable'. There is little support 4. The problem of 'superior norms'
for such a view either in State practice or in judicial decisions. In the Barcelona In the classical theory of international law, any priority of conflicting rules or norms
Traction, Light and Power Co case, the Court, having dismissed the Belgian legal claim was resolved simply according to the de facto hierarchy of the sources from which they
against Spain (for injury to Belgian shareholders in the Canadian company), con- derived, coupled with the principles of the overriding effect of lex posterior and lex
sidered the possibility that 'considerations of equity might call for the possibility specialis (see Section III.B above). For this purpose, the content of the rules in issue
of protection of the shareholders in question by their own national State'; it took was irrelevant, except insofar as it was taken into account to judge whether there was
the view however that that hypothesis did not correspond to the circumstances in fact a conflict at all (the scope of each rule), and whether one rule was specialis in
of the case.43 This might be read as implying that in different circumstances a claim relation to the other, and if so, which was which.
based on equity alone might have succeeded; but in fact it seems that the real point In more recent years, however, more and more attention has been paid to the
was that customary law on the point is equitable in its effects, so that the point does concept of jus cogens- the category of 'peremptory' legal norms, norms from which
not arise. no derogation by agreement is permitted. Exactly which norms can be so designated
Equity is probably best regarded, in words applied by the International Court to the in modern international law is still subject to some controversy, but it is accepted that
comparable principle of good faith, as one of the basic principles governing the the status of peremptory norm derives from the importance of the content of the
creation and performance of legal obligations, but 'not in itself a source of obligation
where none would otherwise exist'.44
45 For example, the Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV);
42 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 88. Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the
43 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3, Limits of National Jurisdiction, GA Res 2749 (XXV); Declaration on the Establishment of a new International
para 93. Economic Order, GA Res 3202 (S-VI).
44 Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and Admissibility, Judgment, 46 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
ICJ Reports 1988, p 12, par~ 94. Merits, Judgment, ICJ Reports 1986, p 14, para 184.
142 HUGH THIRLWAY
THE SOURCES OF INTERNATIONAL LAW 143

norm to the international community: an example is the prohibition of genocide. A


the more individual States found it necessary to relate to each other, the greater the
further development is the assimilation of such norms to those creating 'obligations
need for generally respected rules and guidelines. Even the concept of 'natural law'
erga omnes' -obligations which are regarded as owed to the whole international
related to what was fitting and necessary for the good ordering of society; and the
community, with the practical consequence that the right to react to any violation of
positivist approach, which sees all law as established by the express or tacit agreement
the norm is not confined to the State or States directly injured or affected by the
of those subject to it, is in effect a prolongation of the 'social contract'.
violation, but appertains to every StateY A further linked concept was that of the
The establishment of the Permanent Court of International Justice brought to a
'international crime' introduced by the International Law Commission into its draft
focus the ideas as to the sources oflaw that had, over the years, made their appearance
Articles on State Responsibility, but deleted again at a later stage of the Commission's
in State practice, arbitral decisions, and the views of scholars. The definition given in
work.
Article 38 of the Statute of the Court has proved to embody a workable structure of
All these concepts will be examined more fully in Chapter 6; they are mentioned
recognized law-making processes, and despite the criticisms made of it, and the
here simply to draw attention to the theoretical and practical difficulties of analysing
multiplicity of new approaches to international law, 49 that definition seems likely to
their development in terms of the classical theory of sources. A rule of jus cogens is
continue to guide the international community and the international judge.
normally (perhaps necessarily) a rule of customary law,48 as is implied by the reference
in Article 63 of the Vienna Convention of the Law of Treaties to the development
of a new rule of this type after the conclusion of a treaty. To be such a rule at all, it
has to be based upon the consistent practice of States, backed by the opinio juris. REFERENCES
One would therefore expect that, for a rule to be one of jus cogens, or to give rise to
obligations erga omnes, there would have been practice of such a kind as to show a CHARNEY, R (1993), 'Universal Inter- Law' Symbolae Verzijl (The Hague:
conviction that the developing rule was of that specific nature, ie a sort of superior national Law', 87 AJIL 529. Nijhoff).
opinio juris. If a State endeavoured to rely on a treaty as justifying conduct otherwise HART, H (1994), The Concept of Law,
CHENG, B (1965), 'United Nations Resolu-
flagrantly in conflict with a rule of international law, and the universal reaction of revised edn (Oxford: Oxford University
tions on Outer Space: "Instant" Custom-
States was to assert that that rule was such that no derogation by treaty was permitted, ary Law?', Ind. JIL 23. Press).
this could be read as practice showing an opinio that the rule was one of jus cogens. KOLB, R (1998), 'The Formal Source of
Similarly, if a State not directly affected by a breach of international law took counter- FITZMAURICE, G (1953), 'The Law and
Ius Cogens in Public International Law',
measures against the offending State, and that State conceded its right to do so, this Procedure of the International Court,
53 Zeitschrift fur offentliches Recht, P 69.
1951-1954',30 BYIL 21.
would show an opinio that an obligation erga omnes was involved. In fact how- LAUTERPACHT, H (1927), Private Law
ever, that has not been at all the way in which norms of jus cogens and obligations - - (1958), 'Some Problems Regarding Sources and Analogies of International
erga omnes have come to be identified; and the first hypothesis, of assertion of a treaty the Formal Sources of International Law (London: Longmans, Green & Co).
as justifying conduct universally condemned, is a priori somewhat unlikely to be
realized.

FURTHER READING

v. CONCLUSION BYERS, M (1999), Custom, Power and the chapters 1 and 2): for a study from a
Power of Rules (Cambridge: Cambridge more 'policy-oriented' perspective.
University Press): an excellent study of
Ubi societas, ibi jus. wherever there is a social structure, you will find law. This is MENDELSON, M (1995), 'The Subjective
custom in current international law.
ultimately the only explanation for the development of international law, for the Element in Customary International
respect generally shown for it by States as international actors, and for the general HIGGINS, R (1994), Problems and Process: Law', 66 BYIL 177: an eloquent plea for
recognition of the 'secondary rules' whereby law acquires binding effect. Historically, International Law and How We Use It the abandonment of the concept of opinio
(Oxford: Clarendon Press) (particularly juris.

47 See the judgment in the Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment,
ICJ Reports 1970, p 3, paras 33-35 and para 9l.
48 For an alternative view, that jus cogens is a matter of consensus, see the combative article by Kolb, 1998. 49 A useful panoramic view of a number of modern methodologies will be found in the Symposium
(1999),93 AJIL 293.
144 HUGH THIRLWAY

SCHACHTER, 0 (1989), 'Entangled Treaty THIRLWAY, HWA (1990), 'The Law and
and Custom', in Dinstein, Y (ed.), Inter- Procedure of the International Court of
national Law at a Time of Perplexity:
Essays in Honour of Shabtai Rosenne,
Justice, 1960-1989 (Part Two)', 61 BYIL
1: a survey of problems that have arisen
5
p 717: on the inter-relationship of the two before the ICJ concerning the various
sources in modern law. sources of international law.
INTERNATIONAL LAW AND
'RELATIVE NORMATIVITY'
Dinah Shelton

SUMMARY

'Relative normativity' concerns the nature and structure of international law. It involves
issues of hierarchy among sources and norms and implicates the rules of recognition by
which law is distinguished from norms that are not legally binding. Debates about relative
normativity currently centre on three topics. First, legal doctrine posits the existence
of superior or peremptory norms that override other norms and bind all States, including
objecting States. Although widely supported in the literature, little State practice or
judicial opinion recognizes or gives legal effect to such norms. Secondly, the expansion of
international law into many new subject areas, with a corresponding proliferation of inter-
national treaties and institutions, can produce confticts in substantive norms or procedures
within a given subject area or across legal regimes, necessitating means to reconcile or
prioritize the competing rules. Thirdly, States and international institutions increasingly
adopt texts that contain norms or statements of obligation, but which are not in a legally-
binding form. Such 'soft law' texts are political commitments that can lead to law <custom
or treaty) and they are sometimes as effective as law to address international problems,
but they are not law, and thus generally are subordinate to an applicable binding rule.

1. INTRODUCTION: THE CONCEPT OF


RELATIVE NORMATIVITY

'Relative normativity' is a question of hierarchy of norms and the definition of law.


As such, it concerns the nature, structure, and content of the international legal
system. In practice issues of relative normativity arise in determining whether a
legal rule exists to govern a problem, and in deciding whether priority must be given
to a specific rule or interpretation among several that may be applicable to a legal
matter or dispute.
· DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 147

Systems of law usually establish a hierarchy of norms based on the particular posed today is whether or not it is necessary for a norm to be contained in a legally
source from which the norms derive. In national legal systems, it is commonplace for binding instrument in order for it to be accepted as binding (pacta). Traditional
the fundamental values of society to be given constitutional status and afforded international law clearly distinguished between binding and non-binding instru-
precedence in the event of a conflict with norms enacted by legislation or adopted by ments, and this distinction seems to remain, despite the growing body and variety of
administrative regulation; administrative rules themselves must conform to legislative 'soft law' instruments.
mandates, while written law usually takes precedence over unwritten law and legal States have agreed on the means to identify binding international obligations for
norms prevail over non-legal (political or moral) rules. The mode of legal reasoning the purpose of resolving their disputes, but they have not settled on a hierarchy of
applied in practice is thus naturally hierarchical, establishing relationships and order norms. As formulated initially in the Statute of the Permanent Court of International
among normative statements and levels of authority (Koskenniemi, 1997). Justice and iterated in the Statute of the International Court of Justice, the Court
The question of hierarchy or relative normativity in international law is unsettled should decide an international dispute primarily through application of international
and controversial. There has been growing attention paid to the issue in the two conventions and international custom. 3 The Statute makes no reference to hierarchy,
decades since a seminal article highly critical of the concept appeared in 1983 (Weil, except by listing doctrine and judicial decisions as 'subsidiary' and evidentiary sources
1983). In practice, conflicts among norms and their interpretation are probably oflaw. Although the Statute is directed at the Court, it is the only general text in which
inevitable in the present, largely decentralized international legal system where each States have acknowledged the authoritative procedures by which they agree to be
State is entitled initially and equally to interpret for itself the scope of its obligations legally bound to an international norm. Much recent debate has centered on whether
and the means of implementation such obligations require. The interpretations or or not State behaviour in adopting and complying with non-binding instruments
determinations of applicable rules may vary considerably, making all international evidences acceptance of new modes of law-making not reflected in the Statute of the
law somewhat relative, in the absence of institutions competent to render authorita- Court.
tive interpretations binding on all States. Of course, efforts to resolve social problems are not invariably in the form of law
Conceptual problems abound in determining relative normativity, in part because in any community. Societies strive to maintain order, prevent and resolve conflicts,
almost every purported principle of precedence (eg, lex specialis derogate lex generali) and assure justice in the distribution and use of resources not only through law, but
has exceptions and no rule establishes when to apply the principle and when to apply through other means of action. Issues of justice may be addressed through market
the exception. 1 There appears to be a fundamental supremacy of process over content, mechanisms and private charity, while conflict resolution can be promoted through
however, because the identification of legal norms and their relative normativity education and information, as well as negotiations outside legal institutions. Main-
occurs only through consideration of the procedural norms that allow recognition of tenance of order and societal values can occur through moral sanctions, exclusions,
substantive rules. Some scholars argue from the ICJ Statute and from the sovereign and granting or withholding of benefits, as well as by use of legal penalties and
equality of States that no hierarchy exists and logically there can be none: inter- incentives. In the international arena, just as at other levels of governance, law is one
national rules are equivalent, sources are equivalent, and procedures are equivalent form of social control or normative claim, but basic requirements of behaviour also
(Dupuy, 1995, pp 14-16) all deriving from the will of States. 2 Others point to emerge from morality, courtesy, and social custom reflecting the values of society.
the concept of the community of States as a whole, expressed in Article 53 of the They form part of the expectations of social discourse and compliance with such
Vienna Convention on the Law of Treaties (VCLT) as an emerging limit on unilateral norms may be expected and violations sanctioned.
relativism (Salcedo, 1997, p 588). Legal regulation, however, has become perhaps the most prevalent response to
Even identifying law can be problematic in a decentralized system like the inter- social problems during the last century. Laws reflect the current needs and recognize
national society of States. It is not always clear where law ends and non-law begins, or, the present values of society. Law is often deemed a necessary, if usually insufficient,
to use the common terminology, where 'soft' law should be placed. The consequences basis for ordering behaviour. The language of law, especially written language,
can be significant. Effective application of the principle pacta sunt servanda-that most precisely communicates expectations and produces reliance, despite inevitable
legal agreements should be carried out in good faith-proceeds from some basic ambiguities and gaps. It exercises a pull toward compliance by its very nature. Its
agreement about what constitutes a 'pacta' or legal agreement. The question often enhanced value and the more serious consequences of non-conformity lead to the
generally accepted notion that fundamental fairness requires some identification of
1 Contrast, for example, the lCJ's 1971 Namibia opinion with its earlier approach to interpreting the
League of Nations mandate. Compare Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 3 General principles of law are a third, more rarely used, source of international law, with judicial decisions
IC] Reports 1971, p 16 with South West Africa, Second Phase, Judgment, IC] Reports 1966, p 6. and teachings of highly qualified publicists providing evidence of the existence of a norm. See ICJ Statute,
2 See the 'Lotus', Judgment No 9, 1927, PCI], Ser A, No 10 at p 18. Article 38 and Ch 4 above.
DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 149

what is meant by 'law', some degree of transparency and understanding of the extradition. Today, the number of international instruments has grown substantially,
authoritative means of creating binding norms and the relative importance among multilateral regulatory treaties are common, the topics governed by international
them. A law perceived as legitimate and fair is more likely to be observed. This alone law have proliferated and non-State actors are increasingly part of the system. This
makes the issue of relative normativity an important topic, but recent evolution in complexity demands consideration and development of means to reconcile conflicts
the international legal system has fostered a burgeoning interest in the issue. Three of norms within a treaty or given subject area, for example, law of the sea, as well
developments appear particularly important. as across competing regimes, such as free trade and environmental protection. It
The first development centres on the role of consent in determining legal also requires innovative means of rule-making with respect to non-State actors, who
obligation. International law has traditionally been defined as a system of equal and generally are not parties to treaties7 or involved in the creation of customary inter-
sovereign States whose actions are limited only by rules freely accepted as legally national law. The emergence of codes of conduct and other 'soft law' reflect this
binding. 4 The emergence of global resource crises such as the widespread depletion development.
of commercial fish stocks, destruction of the stratospheric ozone layer, and anthro- Thirdly, the emergence of international criminal law has led to considering the
pogenic climate change, has produced growing concern about the 'free rider', the nature of international crimes and the relationship of this body of law to doctrines
holdout State that benefits from legal regulation accepted by others while enhancing of obligations jus cogens, discussed below, and obligations erga omnes. The ICJ was
its own profits through continued utilization of the resource or by on-going pro- the first to identify the category of obligations erga omnes in dicta in the Barcelona
duction and sale of banned substances. The traditional consent-based international Traction case. 8 Unlike obligations arising in respect to specific injured States (eg, in the
legal regime lacks a legislature to override the will of dissenting States,S but efforts to field of diplomatic protection), obligations erga omnes are owed to the international
affect their behavior are being made, first through the doctrine of peremptory norms community as a whole. The broad nature of the obligation could be based upon the
applicable to all States, and, secondly, through expanding the concept of international fact that such obligations generally aim at regulating the internal behaviour of a State,
law to include 'soft law'. The same approach may be taken with States seeking to such as in the field of human rights, and thus there are likely to be no States materially
denounce or acting to violate multilateral agreements that reflect widely and deeply affected by a breach. The principle of effectiveness thus supports broad standing,
held values, such as human rights or humanitarian law. because without it violations could not be challenged. However, the rationale stated
In respect to 'soft law', States inside and outside international organizations now by the ICJ for recognizing this category of obligations appears more substantive: that
often place normative statements and agreements in non-legally binding or political 'in view of the importance of the rights involved, all States can be held to have a legal
instruments such as declarations, resolutions, and programmes of action. These interest in their protection? This statement suggests that obligations erga omnes have
instruments may make it easier to press dissenting States into conforming behaviour specific and broad procedural consequences because of the substantive importance of
because international law permits States to use political pressure to induce others to the norms they enunciate. In addition, the fact that all States can complain of a breach
change their practices, although generally States cannot demand that others conform may make it more likely that a complaint will be made following commission of a
to legal norms the latter have not accepted. Non-binding commitments may be wrongful act, suggesting a higher priority accorded these norms even if they are not
entered into precisely to reflect the will of the international community to resolve a considered substantively superior. The ICJ's examples of such obligations included
pressing global problem over the. objections of the one or few States causing the the outlawing of aggression and genocide and the protection from slavery and racial
problem, while avoiding the doctrinal barrier of their lack of consent to be bound by discrimination.
the norm. 6 Like obligations erga omnes, international crimes are so designated because the acts
The second development that spurs consideration of relative normativity is the they sanction are deemed of such importance to the international community that
substantial expansion of international law. Until the twentieth century, treaties were individual criminal responsibility should result from their commission. 10 Unlike
nearly all bilateral and the subject matter of international legal regulation mostly
concerned diplomatic relations, the seas and other international waterways, trade, and 7 International organizations sometimes have power to make or become party to international
agreements.
8 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3,
4 See 'Lotus', Judgment No 9, 1927, PCIf, Ser A, No 10 at p 18. para 33.
S Thus Salcedo argues that 'In principle ... most rules of international law are only authoritative for those 9 Idem. See also East Timor (Portugal v Australia), Judgment, ICJ Reports 1995, p 90, para 29; Application
subjects that have accepted them' (Salcedo, 1997, p 584). of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judg-
6 The UNGA actions on driftnet fishing were directed at members and non-members of the United ment, ICJ Reports 1996, p 595, para 3l.
Nations whose fishing fleets decimated dwindling fish resources through use of the driftnet 'walls of death'. 10 The collective nature of the State as subject of international law makes imposition of State criminal
The international community made clear its resolve to outlaw driftnet fishing and enforce the ban, albeit it responsibility problematic. Although the International Law Commission included a provision on State crimes
was not contained in a legally binding instrument. in early versions of its Articles on State Responsibility, the provision was eventually excluded.
DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY'

obligations erga omnes, however, international criminal norms can pose problems of and which can be modified only by a subsequent norm having the same character'.
relative normativity. It has been clear since the Nuremburg Trials that conforming to Article 64 adds that the emergence of a new peremptory norm of general inter-
or carrying out domestic law is no excuse for breach of international criminal law; national law will render void any existing treaty in conflict with the norm. No clear
it would seem plausible as well, if unlikely to arise in practice, that a defence would agreement was reached during the VCLT negotiations nor has one emerged since then
fail based on carrying out norms of international law, such as those contained in about the content of jus cogens.
a bilaterai treaty.11 In this respect, norms of criminal law could be given supremacy In national legal systems, it is a general principle oflaw that individual freedom of
over other international law in practice. contract is limited by the general interest. 14 Agreements that have an illegal objective are
Other aspects of the inter-relationship of these categories of norms and the sources void and those against public policy will not be enforced. IS Private agreements, there-
that create them should be noted. First, neither the designation of international fore, cannot derogate from public policy of the community. The international com-
crimes or obligations erga omnes involves a purported new source of law; crimes are munity remains divided over whether the same rules apply to the international legal
created and defined through the conclusion of treaties; obligations erga omnes system.
through treaty and customary irtternational law. Secondly, it appears logical that all A strictly voluntarist view of international law rejects the notion that a State may be
international crimes are obligations erga omnes because the international com- bound to an international legal rule without its consent and thus does not recognize a
munity as a whole identifies and may prosecute and punish the commission of such collective interest that is capable of overriding the will of an individual member of the
crimes. The reverse is not the case, however. Not all obligations erga omnes have been society. States are deemed to construct the corpus of international law either through
designated as international crimes. Racial discrimination, for example, is cited as an agreements or through repeated practice out of a sense of legal obligation (see
obligation erga omnes, but is not included among international crimes. Henkin, 1989, p 45; Weil, 1983; Danilenko, 1991, p 42; Lukashuk, 1989). The PCIT,
Among those acts designated as international crimes, there appears to be no in one of its first decisions, stated that '[t]he rules of law binding upon States ...
hierarchy. The International Criminal Tribunal for the Former Yugoslavia (ICTY) has emanate from their own free will as expressed in conventions or by usages generally
rejected the notion of hierarchy, declaring in the Tadii judgment that 'there is in law accepted as expressing principles of law'. 16 As recently as 1986, the ICT reaffirmed
no distinction between the seriousness of a crime against humanity and that of a war this approach in respect to the acquisition of weaponry by States. In the Nicaragua
crime'. 12 judgment the Court stated:
In international law there are no rules, other than such rules as may be accepted by the State
concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can
be limited, and this principle is valid for all States without exception. 17
II. THE ASSERTION OF PEREMPTORY NORMS
Some legal theorists have long objected that the source of international obligation
The theory of jus cogens or peremptory norms 13 posits that there are rules from which cannot lie in consent, but must be based on a prior, fundamental norm that imposes
no derogation is permitted and which can be amended only by a new general norm a duty to comply with obligations freely accepted (Kelsen, 1935). Without a source
of international law of the same value. It is a concept without an agreed content and of this norm outside consent there is an unavoidable circularity of reasoning. A
one that is not widely endorsed by State practice. The only references to peremptory natural law origin of international obligation was domirIant among scholars until the
norms in international texts are found in the Vienna Convention on the Law of nineteenth century, when positivism and an emphasis on the sovereignty of States
Treaties (VCLT). Article 53 provides that a treaty will be void 'if, at the time of its emerged in theory and practice. 18
conclusion, it conflicts with a peremptory norm of general international law' . Such a Others object that positivism fails to describe adequately the reality of the current
norm is defined by the VCLT as one 'accepted and recognized by the international international order. According to Tomuschat: '[t]he fact is that the cohesive legal
community of states as a whole as a norm from which no derogation is permitted

14 In Roman law, the maxim 'ius publicum privatorum pactis mutari non potest' (D.2.14.38) made absolute
II The treaty itself might be considered void as a violation of peremptory norms if it required or author- the non-derogation from norms which were defined as ius publicum.
ized the commission of an international crime. IS Article 6 of the Code Napoleon is illustrative: 'On ne peut deroger, par des conventions particulieres,
12 Prosecutor v Dusko Tadic, Case No IT-94-1-A, Judgment in Sentencing Appeals, Appeals Chamber aux lois qui interessent l' ordre public et les bonnes moeurs'.
(26 January 2000), para 69. For a criticism of this view and discussion of the conflicting practice of the lCTY, 16 'Lotus', Judgment No 9,1927, PCIJ, Ser A, No 10 at p 18.
see Danner, 2000. 17 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
13 The terms jus cogens and peremptory norms are used interchangeably. VCLT Article 53 is entitled Merits, Judgment, ICJ Reports 1986, p 14, para 269.
a
'treaties conflicting with peremptory norm of general international law (jus cogens)'. 18 See Ch 1.
15 2 DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 153

bonds tying States to one another have considerably strengthened since the coming to fundamental principles of internationallaw. 21 This proposal clearly constituted a
into force of the United Nations Charter; ... a community model of international challenge to the consensual basis of international law, which viewed States as
society would seem to come closer to reality than at any time before in history' having the right inter se to opt out of any norm of general international law. It also
(Tomuschat, 1993, pp 210-211). The community consists of States that live within represented 'progressive development' of international law and not a codification of
a legal framework of a few basic rules that nonetheless allow them considerable existing State practice. 22
freedom of action. Such a framework has become necessary in the light of global The concept was controversial from the start and divided the Vienna Conference on
problems threatening human survival in an unprecedented fashion. Recalcitrant the Law of Treaties. Strong support came from the Soviet bloc and from newly
States not only profit by rejecting regulatory regimes adopted by the overwhelming independent States, who saw it as a means of escaping colonial-era agreements. West-
majority of States, they threaten the effectiveness of such regimes and pose risks to all ern countries were less positive and several expressed opposition to the notion of-
humanity. peremptory norms, voting against the provision and withholding ratification of the
The extent to which the system has moved and may still move toward the treaty because of persisting objections to the concept. To date, the VCLT has garnered
imposition of global public policy on non-consenting States remains highly debated, 108 ratifications, a little over half the countries of the world.
but the need for limits on State freedom of action seems to be increasingly recognized. The drafting of the second treaty on treaties, the 1986 Vienna Convention on the
International legal instruments and doctrine now often refer to the 'common interest Law of Treaties between States and International Organizations, indicated continued
ofhumanity'19 or 'common concern of mankind' to identify broad concerns that could controversy over the concept of norms jus cogens. The text proposed by the ILC
form part of international public policy. References also are more frequent to 'the included provisions on jus cogens modelled after the 1969 VCLT. The commentary
international community' as an entity or authority of collective action. 20 In addition, called the prohibition of the illegal use of armed force embodied in the UN Charter
multilateral international agreements increasingly contain provisions that affect non- 'the most reliable known example of a peremptory norm' and also claimed that the
party States, either providing incentives to adhere to the norms, or allowing parties to notion of peremptory norms, as embodied in VCLT Article 53, 'had been recognized
take coercive measures that in practice require conforming behaviour of States not in public international law before the Convention existed, but that instrument gave
adhering to the treaty. The UN Charter itself contains a list of fundamental principks it both a precision and a substance which made the notion one of its essential
and in Article 2(6) asserts that these may be imposed on non-parties if necessary to provisions'.23 The representative of France disagreed during the plenary drafting
-ensure international peace and security. session, expressing his government's opposition to VCLT Article 53 'because it did not
It should be noted that the problem of dissenting States is not as widespread as agree with the recognition that article gave to jus cogens' whilst another government
might be assumed. First, the obligations deemed basic to the international com- called jus cogens 'still a highly controversial concept which raised the fundamental
munity-to refrain from the use of force against another State, to peacefully settle question of how to recognize the scope and content of a peremptory norm of general
disputes, and to respect human rights, fundamental freedoms, and self-deter- international law', noting that time had revealed 'a divergence of views since 1969
mination -are conventional obligations contained in the UN Charter, to which all regarding the nature of norms of jus cogens, which it had not been possible to
member States have consented. Nearly all States also have accepted the humanitarian define'.24 The text of the Convention was adopted by sixty-seven to one, with twenty-
conventions on the laws of war which express customary international law. The multi- three States abstaining; it has yet to enter into force. Several States explained their
lateral regimes for the oceans, outer space, and key components of the environment abstention by referring to the Articles concerning jus cogens, including the dispute
(climate change, protection of the ozone layer, and biological diversity) are widely settlement provisions on the topic. 2s Even some of those that favored jus cogens
accepted. Thus in most cases the problem is one of ensuring compliance by States
that have freely consented to the obligations in question and not one of imposing 21 Sir Humphry Waldock proposed the concept and three categories of jus cagens: (1) illegal use of force;
(2) international crimes; and (3) acts or omissions whose suppression is required by international law. The
obligations on dissenting States.
categories were dropped by the ILC, because each garnered opposition from at least two-thirds of the
The notion of jus cogens or peremptory norms as a limitation on international Commission. See Kearney and Dalton, 1970, p 535_
freedom of contract arose in the UN International Law Commission during its work 22 Robledo, 1982, p 17 called it 'une innovation profonde et un grand pas franchi'.
23 According to the Commentary, 'it is apparent from the draft articles that peremptory norms of
on the law of treaties. An early ILC rapporteur on the subject proposed that the ILC
international law apply to international organizations as well as to states, and this is not surprising'.
draft convention on the law of treaties include a provision voiding treaties contrary A/Conf.129/16/Add.l (vol II), pp 39,44.
24 United Nations Conference on the Law of Treaties between States and International Organizations
or Between International Organizations, Vienna, 18 February-21 March 1986, A/Conf.129/16 (vol 1),
19 See, UNCLOS, Article 137(2); Treaty on Principles Governing the Activities of States in the Exploration 17. See also the concerns expressed by Germany, and similar objections raised to Article 64 which concerns
and Use of Outer Space, Including the Moon and Other Celestial Bodies (1967), pmbl, para 2_ the emergence of a new peremptory norm of general international law (p 18).
20 See, eg, Article 53, VCLT; Articles 136-137 UNCLOS. 25 Ibid, pp 186-194.
154 DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 155

expressed uncertainty. The representative of Brazil called jus cogens 'a concept in the subsequent advisory opinion on nuclear weapons, the ICJ has utilized descriptive
evolution'.26 phrases that could be taken to refer to peremptory norms, although the language is
In practice, the concept has been invoked largely outside its original context in the unclear. The ICJ called some rules of international humanitarian law so fundamental
law of treaties and most frequently in the domestic courts of the United States. At to respect for the human person and 'elementary considerations of humanity'
the International Court of Justice the term appears only in separate or dissenting that 'they constitute intransgressible principles of international customary law'. 33
opinions;27 States rarely raise the issue28 and when they do the Court seems to take Whether 'intransgressibk' means the rules are peremptory or only that they
pains to avoid any pronouncement on it. 29 are general customary international law legally binding on States not party to the
The ICI's Arrest Warrant judgment of 14 February 2002 indicates the limited role of conventions that contain them is uncertain.
jus cogens in practice. Belgium issued an international arrest warrant charging the Human rights tribunals similarly avoid pronouncing on jus cogens. In the only
Congolese foreign minister with grave breaches of the Geneva Conventions of 1949 human rights judgment to discuss jus cogens, the European Court of Human Rights
and with crimes against humanity. Congo claimed that in doing this Belgium violated denied that violation of the peremptory norm against torture could act to deprive a
'the rule of customary international law concerning the absolute inviolability State of sovereign immunity.34 The Court agreed that torture is a peremptory norm,
and immunity from criminal process of incumbent foreign ministers'.30 Based on a fundamental value and an absolute right, but found that it was 'unable to discern'
the pleadings, the Court proceeded from the assumption that Belgium had juris- any basis for overriding State immunity from civil suit where acts of torture are
diction under international law to issue and circulate the arrest warrant. The alleged. In the Inter-American Court, the term appears only in the separate opinions
Congo contended that immunity from criminal process is absolute or complete and of Judge Antonio Cancado-Trindade and has never appeared in a judgment of the
thus subject to no exception, even for international crimes. Belgium specifically court. It has not been mentioned in the UN Tribunal for the Law of the Sea, nor in
argued that immunities cannot apply to war crimes or crimes against humanity, citing the Iran or Iraq Claims Tribunals.
treaties, international and national tribunals, and national legislation. In particular, The Inter-American Commission on Human Rights has referred to the concept
it contended that an exception to the immunity rule was accepted in the case of several times suggesting it as an additional source of obligation. The Commission has
serious crimes under international law. The Court held that 'certain holders of high- declared the right to life, for example, to be a norm jus cogens:
ranking office' enjoy immunity from civil and criminal process and concluded that
derived from a higher order of norms established in ancient times and which cannot be
no customary international law restricts diplomatic immunity when accused are
contravened by the laws of man or nations. The norms of jus cogens have been described by
suspected of having committed war crimes or crimes against humanity. The ICJ came
public law specialists as those which encompass public international order ... accepted ...
to this conclusion without discussing the possible jus cogens status of the accusations as necessary to protect the public interest of the society of nations or to maintain levels of
or the effect of jus cogens norms on sovereign immunity.31 public morality recognized by them. 35
The 1986 Nicaragua decision, most often cited for the Court's approval of jus
cogens, does not in fact recognize either the concept or the content of such norms. 32 In The International Criminal Tribunal for the Former Yugoslavia (ICTY) , the first
tribunal to discuss jus cogens, supports the existence of such norms and declares the
26 Ibid, P 188. prohibition of torture as one such norm:
27 See, eg, Right ofPassage over Indian Territory, Merits, Judgment, ICJ Reports 1960, p 6 at pp 135, 139-140
Because of the importance of the values it protects, [the prohibition against torture]
(Judge ad hoc Renandes dissenting); South West Africa, Second Phase, Judgment, ICJ Reports 1966, p 6 at p 298
(Judge Tanaka dissenting). has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher
28 GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, para 112, noting that rank in the international hierarchy than treaty law and even 'ordinary' customary rules.
neither side had contented that new peremptory norms of environmental law had emerged. The most conspicuous consequence of this higher rank is that the principle at issue cannot
29 See North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 72, declining to enter into or
be derogated from by states through international treaties or local or special customs
pronounce upon any issue concerning jus cogens.
or even general customary rules not endowed with the same normative force .... Clearly,
30 The Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations were
said to reflect customary international law. the jus cogens nature of the prohibition against torture articulates the notion that the
31 Only one of the ten opinions in the Arrest Warrant case mentions the concept of jus cogens norms
despite its obvious relevance to the issues in the case. The dissenting opinion of Judge Al-Khasawneh refers
to jus cogens, linking immunity and impunity. Arrest Warrant of 11 April 2000 (Democratic Republic of
Congo/Belgium), Preliminary Objections and Merits, Judgment, ICJ Reports 2002, p 3, Dissenting Opinion 33 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, para 79.
ofJudge Al-Khasawneh, para 7. 34 Al-Adsaniv United Kingdom, Judgment, 21 November 2001, (2002) 34 EHRR 11.
32 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), 35 OAS, Inter-American Commission on Human Rights, 81st Sess, Annual Report of the Inter-American
Merits, Judgment, ICJ Reports 1986, p 14 at para 190, citing the ILC assertion that the norm against aggression Commission on Human Rights, Victims of the Tugboat '13 de Marzo' v Cuba, Rep No 47/96, OR OEAlSer.UV/
is a peremptory norm as evidence that it is an obligation under customary international law. II.95/Doc.7, rev (1997) at 146-147.
DINAH SHELTON INTERNATIONAL LAW AND (RELATIVE NORMATIVITY' 157

prohibition has now become one of the most fundamental standards of the international Among the many opinions in the case, Lord Millett stated that ([i]nternationallaw
community. 36 cannot be supposed to have established a crime having the character of a jus cogens
The discussion had no bearing on the guilt or innocence of the person on trial, and at the same time to have provided an immunity which is co-extensive with the
nor on the binding nature of the law violated. It was not asserted that any treaty obligation it seeks to impose.'42 The judgment ultimately did not rely on jus cogens to
or local custom was in conflict with the customary and treaty prohibition of torture. determine the issue, however, because the situation was controlled by the relevant
The reference served a rhetorical purpose only. Similarly, an International Labor treaty.
Organization report on a 1996 complaint against Myanmar for forced labour referred A second category of domestic law cases in which the nature of norms as jus cogens
to jus cogens although the State had long been a party to ILO Convention (No 29) has been asserted are cases filed pursuant to the US Alien Tort Claim ActY Some of
concerning Forced or Compulsory Labour. 37 The Report's statement that the practice the plaintiffs assert violations of norms jus cogens, often wrongly claiming that the
of forced labour violates a jus cogens norm appears intended to invite the criminal landmark decision Filartiga v Pefla-Irala held torture to be a violation of international
prosecution of individuals using forced labour. It labels the systematic practice of jus cogens. In fact, the federal appellate court in that case held that official torture
forced labour a (crime against humanity',38 although such a designation is not constitutes a violation of the law of nations and never mentioned the doctrine of jus
required for prosecution and punishment to take place. cogens norms. 44 No ATCA case has turned on the character of the norm as jus cogens
The concept of norms jus cogens has been asserted most strongly in the domestic or (ordinary' custom.
courts of the United States, initially in an effort to avoid US constitutional doctrine While the practice is too sparse to speak of a trend favouring jus cogeth, recent
that considers treaties and custom equivalent to other federal law, allowing the developments in Swiss constitutional law should be noted. In response to a popular
President and Congress to enact US law inconsistent with international law. initiative to limit the rights of refugees-including rejection of the norm of non-
Obligations jus cogens were asserted first in an effort to enforce the 1986 ICT refoulement-the Conseil federal determined that international peremptory norms
judgment against the United States in the Nicaragua case. 39 Lawyers argued that the are a substantive limit on the right of initiative to reform the constitution. According
constitutional precedents do not apply to norms jus cogens, which have a higher to the federal authorities, peremptory norms are overriding because they emerge from
status that bind even the President and Congress. The Court accepted arguendo fundamental principles recognized by the international community as indispensable
the theory, but held that compliance with a decision of the ICT is not a jus cogens to the peaceful co-existence of people. Democratic initiatives within a nation cannot
requirement. override these norms.45 This recent practice was codified in the Swiss Constitution
Other domestic court cases involving jus cogens fall into one of two categories. First of 18 April 1999. Articles 139(3), 193(4), and 194(2) provide that popular initiatives
are cases in which sovereign immunity has acted to shield defendants from civil to revise the Constitution may not violate peremptory norms of international law
lawsuits for damages. The issue has arisen in courts of the United States and the (jus cogens).
United Kingdom.40 In both fora lawyers argued that the foreign sovereign immunity The recently completed ILC Articles on State Responsibility and accompanying
must be interpreted to include an implied exception to sovereign immunity for Commentary take the position that peremptory norms exist, urging that the concept
violations of jus cogens norms. The argument relies on the idea of implied waiver, has been recognized in international practice and in the jurisprudence of inter-
positing that State agreement to elevate a norm to jus cogens status inherently results national and national courts and tribunals. 46 The Commentary notes that the issue of
in an implied waiver of sovereign immunity. Every court thus far has rejected the hierarchy of norms has been much debated, but finds support for jus cogens in the
argument and upheld immunityY notion of erga omnes obligations and the inclusion of the concept of peremptory
In the case of former Chilean leader, Augusto Pinochet Ugarte, the issue of jus norms in the Vienna Convention on the Law of Treaties.
cogens was pressed in response to a claim of immunity from criminal prosecution. The Articles propose a hierarchy of consequences resulting from various breaches
of international law. Article 41 sets forth the particular consequences said to
36 Prosecutor v Furundzija, Judgment, Case No IT-95-17/1-T, Trial Chamber (10 December 1998), result from the commission of a serious breach of a peremptory norm. To a large
para 153.
37 28 June 1930,39 UNTS 55. 42 R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte [1999] 2 All ER
38 Report of the Commission of Inquiry on Forced Labour in Myanmar (Burma), ILO Official Bulletin, 97 (HL) at 179.
1998, Special Supp, vol LXXXI, Ser B, para 538. ~3 28 USC §1350 ('The [federal] district courts shall have original jurisdiction of any civil action by an
39 Committee of us Citizens Living in Nicaragua v Reagan, 859 F.2d 929, 940 (DC Cir 1988). alien for a tort only, committed in violation of the law of nations or a treaty of the United States'). Judiciary
40 Al-Adsani v Kuwait was litigated in English courts before it was submitted to the European Court Act of 1789, ch 20, §9(b) (1789), codified at 28 USC §1350.
of Human Rights. 44 Filartiga v Peiia-lrala, 630 F.2d 876 (2nd Cir 1980).
41 See, eg, Siderman v The Republic of Argentina, 965 F.2d 699 (9th Cir 1992), cert denied, 45 1991-1 Feuille federale, pp 440-442.
113 S Ct 1812 (1993). 46 Article 40, Commentaries, para 2.
DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 159

extent Article 41 seems to reflect developments in the United Nations, such as the norms jus cogens expands in an effort to further the common interests of humanity.
actions of the Security Council in response to breaches of the UN Charter in Southern The literature is replete with claims that particular international norms constitute
Africa and by IraqY The text imposes positive and negative obligations upon all norms jus cogens. Proponents have argued for inclusion of all human rights, all
States. In respect to the first, '[w]hat is called for in the face of serious breaches is a humanitarian norms (human rights and the laws of war), the duty not to cause
joint and coordinated effort by all states to counteract the effect of these breaches'. 48 transboundary environmental harm, the duty to assassinate dictators, the right to life
The Commentary concedes that the proposal 'may reflect the progressive develop- of animals, self-determination, and territorial sovereignty (despite legions of treaties
ment of international law' as it aims to strengthen existing mechanisms of co- transferring territory from one State to another).53
operation. The core requirement, to abstain from recognizing consequences of The concerns raised are serious ones, for the most part, and the rationale that
the illegal acts, finds more support in State practice, with precedents including emerges from the literature is one of necessity: the international community cannot
rejection of the unilateral declaration of independence by Rhodesia,49 the annexation afford a consensual regime to address many modern international problems. Thus, jus
of Kuwait by Iraq,50 and the South African presence in Namibia.5l Article 41 cogens is a necessary development in international law, required because the modern
extends the duty to combat and not condone, aid, or recognize certain illegal acts independence of States demands an international ordre public containing rules that
beyond breaches of the UN Charter and responsive action by the Security CounciL require strict compliance. The ILC Commentary on the Articles on State responsibility
It remains to be seen whether the Article will increase unilateral determinations favours this position, asserting that peremptory rules exist to 'prohibit what has come
that serious breaches of peremptory norms have occurred, with consequent unilateral to be seen as intolerable because of the threat it presents to the survival of states and
actions. their peoples and the most basic human values'. 54 The urgent need to act that is
The primary purpose of asserting that a norm is jus cogens seems to be to override suggested fundamentally challenges the consensual framework of the international
the will of persistent objectors to a norm of customary international law. 52 If jus cogens system by seeking to impose on dissenting States obligations that the 'international
is 'a norm from which no derogation is possible' and its creation by 'the international community' deems fundamental. State practice has yet to catch up with this plea of
community as a whole' means anything less than unanimity, then the problem arises necessity.
of imposing the norm on dissenting States. It is not clear that the international
community as a whole is willing to accept the enforcement of widely-accepted norms
against dissenters. In reality, the problem is likely to arise only rarely because those
norms most often identified as jus cogens are clearly accepted as customary inter- III. HIERARCHY AMONG CONFLICTING NORMS
national law and there are no persistent objectors. Even if States violate the norms in AND PROCEDURES
practice, no State claims the right to acquire territory by the illegal use of force, to
commit genocide, or to torture. The expansion of international law in the past half century potentially raises
The question of dissenters could arise in the future if the number of purported numerous problems of balancing different rights and obligations contained within a
single treaty, reconciling norms and procedures in multiple treaties governing the
same topic, and of resolving conflicts across regimes. International texts sometimes
47 eg, UN SC Res 662 (1990), saying that the annexation of Kuwait had 'no legal validity and is considered
include terms that imply a hierarchy, for example, distinguishing 'fundamental'
null and void' and calling on the international community not to recognize the annexation and to refrain from other rights or 'grave' from ordinary breaches of law. Treaties also may contain
from any action or dealing that might be interpreted as a recognition of it. See also Legal Consequences for 'savings clauses' that give express preference to other agreements or rules of cus-
States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
tomary international law. General rules of interpretation help resolve some problems
Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, para 126, declaring the illegality of
South Africa's presence in Namibia as having erga omnes effects. of conflict but difficult issues remain of determining international priorities among
48 Article 41, Commentaries, para 3. areas of regulation that have developed independently of each other. 55
49 UN SC Res 216 (1965).
50 UN SC Res 662 (1990).
51 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, para 126. 53 See, eg, Rayham, 1997 (genocide); Upadhye, 2000 (right to development); Beres, 1992 (jus cogens
52 Theoretically, of course, the concept would be applicable if two or more States actually decided to enter obligation to assassinate in specified circumstances).
into an agreement to commit genocide or territorial acquisition by aggression and one of them later changed 54 Article 40, Commentaries, para 3.
its mind. According to the VCLT, only a party to an illegal agreement can invoke the illegality to escape its 55 See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p 18, para 38;
treaty obligations. The ILC Articles on State Responsibility go further and impose obligations on all States to Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits,
repress breaches of jus cogens norms. Judgment, ICJ Reports 1986, p 14, para 274.
160 DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 161

A. HIERARCHY WITHIN A SINGLE TREATY of armed conflict not of an international character, all non-combatants must
be treated humanely and without discrimination by race, colour, religion, sex,
The question of hierarchy and the need to balance or resolve conflicts of norms within
birth, wealth, or any similar criteria. Specifically protected are life and freedom
a single treaty is exemplified by human rights agreements. The exercise of various
from torture, humiliating and degrading treatment, hostage-taking, and fundamental
rights may lead to conflicts in practice, for example between the free exercise
due process.
of religion and gender equality. Most international human rights texts establish a
The issue of derogations is linked to that of reservations. Many human rights
hierarchy of human rights norms through the use of non-derogation provisions,
treaties have no provisions on the topic, leaving the question to be regulated by
limitation clauses, and restrictions on reservations.
the provisions of the VCLT. States thus may attach reservations that are compatible
In respect to derogations, the International Covenant on Civil and Political Rights
with the object and purpose of the agreement. The UN Human Rights Committee, in
(ICCPR), Article 4, the American Convention on Human Rights, Article 27, and
its General Comment No 24 on the ICCPR, has expressed doubt that reservations to
the European Convention for the Protection of Human Rights and Fundamental
non-derogable rights are permissible and also has stated that a reservation to the
Freedoms, Article 15, permit States parties to take measures suspending certain rights
Article on derogations would be incompatible with the object and purpose of the
'to the extent strictly required by the exigencies of the situation provided that such
agreement. The Inter-American Court has gone further, stating that 'a reservation
measures are not inconsistent with their other obligations under international law
which was designed to enable a state to suspend any of the non-derogable funda-
and do not involve discrimination solely on the ground of race, color, sex, language,
mental rights must be deemed to be incompatible with the object and purpose of
religion or social origin' (ICCPR, Article 4(1)). The African Charter on Human
the Convention and, consequently, not permitted by it'. 57 Thus, it can be argued that
and Peoples Rights contains no derogation provision and the African Commission
non-derogable rights, being exempt from suspension or reservation, generally are
has interpreted the omission to mean that the Charter as a whole remains in force
given superior status in human rights instruments.
even during periods of a'rmed conflict, suggesting a superior status for the entire
A second category of rights are those that are derogable but guaranteed without
instrument. 56
limitations or clawbacks. These include, in the ICCPR, the right to liberty and security
Non-derogable rights common to the three instruments that discuss the matter are
of person, the right to privacy, family, home and correspondence, rights of the
the right to life, the right not to be subjected to torture or to cruel, inhuman or
child, and the right to participate in elections and public service. The next group
degrading treatment or punishment, the right to be free from slavery, and the right to concerns those rights that contain limitations clauses, using similar language. 58
be free from ex post facto criminal laws, and the right to be free from discriminatory
Limitations clauses allow States parties to restrict the exercise of guaranteed rights,
treatment in respect to derogations. Common to the ICCPR and the Inter-American
but specify the legal grounds and requirements for valid restrictions. The right to
Convention are the non-derogable rights to recognition as a person before the law,
manifest religion of belief, for example 'may be subject only to such limitations as
and the right to freedom of thought, conscience, and religion. The ICCPR alone
are prescribed by law and are necessary to protect public safety, order, health, or
declares non-derogable the right to be free from imprisonment for failure to perform
morals or the fundamental rights and freedoms of others' (ICCPR, Article 18(3)).
a contractual obligation, while the European Convention, with Protocols, considers
Other rights that commonly are accompanied by limitations clauses are the rights
the freedom from double jeopardy and abolition of the death penalty non-derogable,
to freedom of movement, of expression, of association, and of assembly. Finally,
and the American Convention adds protection of the family, rights of the child, the
'clawback' clauses permit national law to specify the scope of the right guaranteed.
right to a nationality, the right to participate in government, and fundamental judicial
In the European system, for example, the right to marry and to found a family
guarantees to the list of non-derogable rights.
subsumes it unreservedly 'to the national laws governing the exercise of this right'
Taking the instruments as a whole, the four non-derogable rights to life and free-
(ECHR, Article 12). The African Charter contains extensive 'clawback' clauses that
dom from torture, slavery, and ex post facto laws provide the starting point for a could undermine the effectiveness of the system, but jurisprudence of the African
hierarchy of positive norms, particularly when added to the provisions of the slavery
conventions, the Genocide Convention, and the Torture Conventions, none of which
contain derogations provisions. International humanitarian instruments add to 57 'Merely to restrict certain aspects of a non-derogable right without depriving the right as a whole of its
this thesis. In addition to the protections applicable during international armed con- basic purpose' is, however, permissible. See Inter-American Court of Human Rights, Advis~ry Opinion C:C-31
83 of 8 September, 1983, Restrictions to the Death Penalty, Articles 4(2) and 4(4) Amencan Convention on
flicts, Common Article 3 to the four 1949 Geneva Conventions demands that in case
Human Rights, Ser A, No 3, para. 61. .
58 The UDHR, Article 29(2) says, 'In the exercise of his rights and freedoms, everyone shall be subject only
56 See Comm 74/92, Commission Nationale des Droits de l'homme et des Libertes v Chad, Ninth Annual to such limitations as are determined by law solely for the purpose of securing due recognition and respect for
Activity Report of the African Commission on Human and Peoples' Rights 1995/96, AGH1207 (XXXII), the rights and freedoms of others and of meeting the just requirements of morality, public order and the
Annex VIII at 12, 16; Murray and Evans, 2001, p 44~. general welfare in a democratic society'.
DINAH SHELTON INTERNATIONAL LAW AND (RELATIVE NORMATIVITY'

Commission has given the clauses a narrow interpretation and insisted on the 1993 Declaration adopted at the conclusion of the Vienna Conference on Human
effective enjoyment of the rights prescribed. 59 Rights. called non-discrimination 'a fundamental rule of international human
In respect to economic, social, and cultural rights, global and regional bodies have rights law'. A possible preferred status for non-discrimination is supported by the
through General Comments and other normative statements indicated a hierarchy of Convention on the Suppression and Punishment of the Crime of Apartheid, the
'norms. The Committee on Economic, Social and Cultural Rights, General Comment only international instrument apart from the Convention on the Prevention and
No 3 (1990), discusses the nature of State parties' obligations, noting that various Punishment of the Crime of Genocide to designate the acts covered by the treaty as a
obligations in the ICESCR are obligations of immediate effect. Two described as being 'crime under internationallaw'.62
'of particular importance' are the undertaking to guarantee that rights are exercised The identification of certain human rights violations as crimes is also an argument
'without discrimination' and the other is the obligation 'to take steps'. The Com- for hierarchical supremacy. In addition to genocide and apartheid, global and regional
mittee also is of the view 'that a minimum core obligation to ensure the satisfaction treaties against torture call upon each State party to 'ensure that all acts of torture are
of, at the very least, minimum essential levels of each of the rights is incumbent upon offences under its criminallaw'.63 Similarly, the Geneva Conventions of 1949 and the
every State party. Thus, for example, a State party in which any significant number of Protocols of 1977 require States parties to suppress and punish 'grave breaches' of the
individuals is deprived of essential foodstuffs, of essential primary health care, of basic Conventions. In the Inter-American system, forced disappearances can be added to
shelter and housing, or of the most basic forms of education is, prima facie, failing this category.64 The establishment of ad hoc international tribunals for the former
to discharge its obligations under the Covenant'. In a separate General Comment Yugoslavia and for Rwanda, as well as the conclusion of the Rome Statute for a
(No 12) on the right to adequate food, the Committee established the core minimum permanent International Criminal Court reinforce the understanding that the inter-
obligation as ensuring freedom from hunger, as distinguished from the more general national community places the commission of certain acts in a higher category for
right to adequate food. 60 which individual criminal responsibility will be imposed.
The Inter-American Commission on Human Rights also has adopted a 'basic To a large extent, these provisions of positive law reflect theoretical approaches that
needs' approach to economic, social, and cultural rights. According to the Com- posit maximum claims for equality, personal security, and subsistence rights. While
mission, the obligation of member States to observe and defend human rights, set there is some variety from one region to another in the number of rights deemed
forth in the American Declaration and the American Convention, obligates them, non-derogable, a minimum core does exist and supports the idea of a hierarchy of
'regardless of the level of economic development, to guarantee a minimum threshold rights contained in each legal instrument.
of these rights'. 61 States are obligated to immediately ensure 'a minimum level
of material well-being which is able to guarantee respect of their rights to personal B. HIERARCHY AMONG TREATIES GOVERNING THE SAME TOPIC
security, dignity, equality of opportunity and freedom from discrimination'. Finally,
the European Social Charter and the ILO Declaration of Fundamental Rights of The proliferation of international law includes multilateral global and regional
Workers also indicate that certain core rights are deemed of particular significance in treaties, bilateral treaties, general and regional custom. The co-existence of these
the economic and social field. various forms of law results in multiple agreements and sources of law governing
In some instances, the reference to a single right in a general treaty or repeated the same topic. Interpretive rules are sometimes suggested to reconcile the conflicts
references in several agreements may be deemed to imply a hierarchy. The United that emerge (Akehurst, 1974-75). The VCLT provides that generally the treaty la~er
Nations Charter mentions a single human right, non-discrimination, as it adds the in time should prevail when the two instruments concluded by the same partIes
phrase 'without distinction on the basis of race, sex, language or religion' to every relate to the 'same subject-matter', subject to the primacy of the UN Charter. Deter-
reference to human rights and fundamental freedoms in the body of the Charter. The mining when two or more instruments relate to the same subject matter can be
problematic.
Conflicts among treaties governing the same topic increase as global framework
59 eg, the Africa Charter, Article lO: prescribes that 'everyone shall have the right to free association
provided that he abides by the law' but see, eg, Case 101/93, Civil Liberties Organization in re Nigerian Bar
Association v Nigeria (Merits), Eighth Annual Activity Report of the African Commission on Human and Peoples'
Rights, 1994-1995, ACHPRJRPT/8thJX\'III, Rev 1, Annex IX, at 9-10; Murray and Evans, 2001, p 394. 62 Convention on the Prevention and Punishment of the Crime of Genocide (1948), Article 1;
60 The ICESCR itself makes this distinction, speaking in Article 11(1) of the right of everyone to adequate International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), Article 1.
food and in Article 11(2) of the 'fundamental right of everyone to be free from hunger'. Earlier, the 1968 Proclamation of Teheran, para 7, called the policy of apartheid a 'crime against hum.anity'.
61 IACHR, The Realization of Economic, Social and Cultural Rights in the Region? Annual Report 63 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Pumshment
of the Inter-American Commission on Human Rights, 1993, OEA/Ser.LN.II.85, doc 9, rev 11 February 1994, (1984). Article 4(1); Inter-American Convention to Prevent and Punish Torture. ~cle 6.
519-534. 64 Inter-American Convention on Forced Disappearance of Persons (1994), ArtIcle 3.
DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY'

instruments are supplemented by regional arrangements or competing regimes on Sustainable Development, held in Johannesburg, South Africa in 2002, seemed to
within the same region apply to the same subject matter. 65 lean towards favouring the free trade regime over environmental protection;
The proliferation of treaties governing the same subject matter can raise particular it suggested that means to balance or reconcile conflicts between the two areas of
difficulties for dispute settlement mechanisms. When global treaties comprehensively international regulation should be decided within the WTO bodies rather than by
regulate a topic, such as the law of the sea, they usually establishing along-term regime the United Nations Environment Program or a general forum like the UN General
and sometimes provide compulsory dispute settlement mechanisms. The problem of Assembly.69
escaping jurisdiction through recourse to another, regional treaty can arise. Usually Treaties sometimes contain specific choice of law provisions preserving rights and
the treaties do not expressly resolve the matter. In the first arbitration under the LOS obligations under other treaties or regimes. The North-American Free Trade Agree-
Convention, the arbitral tribunal decided that it lacked jurisdiction to adjudicate the ment (NAFTA) contains obligations generally similar and additional to those
claims because of an intervening regional agreement concluded by the three parties to imposed by the World Trade Organization 'Uruguay Round'. NAFTA Article 103
the arbitration. 66 reaffirms the parties' 'existing rights and obligations with respect to each other under
the General Agreement on Tariffs and Trade [GATT] and other agreements to which
C. HIERARCHY AMONG REGIMES such Parties are party', but the Article also states that the NAFTA prevails over those
agreements in the event of an inconsistency. The 'Objectives' Chapter (Chapter 1)
The potential fOJ" regime conflict has led to assertions of the hierarchical supremacy of similarly provides that in the event of an inconsistency, certain listed international
one area of regulation over another or one treaty over others. The primacy of the environmental agreements take precedence over the NAFTA (Article 104), but parties
United Nations Charter itself is set forth in Article 103 which provides that 'in th~ must choose the actions least inconsistent with NAFTA obligations. The NAFTA also
event of a conflict between the obligations of the members of the United Nations includes a preference for NAFTA dispute resolution procedures when disputes con-
under the present Charter and their obligations under any other international agree- cern measures adopted or maintained to protect human, animal, or plant life or
ment, their obligations under the present Charter shall prevail'.67 This 'supremacy health, or the environment, and raise factual issues concerning the environment,
clause' has been taken to suggest that the aims and purposes of the United Nations- health, safety, or conservation (NAFTA, Article 2005.4).
maintenance of peace and security and promotion and protection of human Other regimes more aggressively assert their primacy. Some human rights bodies
rights-constitute an international public order to which other treaty regimes and have asserted the priority of human rights guarantees over other international law.
the international organizations giving effect to them must conform. The UN Committee on Economic, Social and Cultural Rights in a 1998 statement on
A well-known regime conflict conce~ns the GATT rules on free trade and the trade- globalization and economic, social, and cultural rights,7° declared that the realms of
restricting measures mandated or permitted under multilateral environmental trade, finance, and investment are in no way exempt from human rights obligations.
agreements (Pauwelyn, 2001). Trade restrictions are imposed by the Convention The Committee's concerns were raised a second time in a statement urging
on International Trade in Endangered Species, the Montreal Protocol on Ozone- WTO members to adopt a human rights approach to trade matters, recognizing
Depleting Substances, and the Biosafety Protocol to the Convention on Bio- the fact that 'promotion and protection of human rights is the first responsibility of
logical Diversity (Safrin, 2002). While no dispute settlement body of the WTO has Governments'.71
addressed the issue, various panels have found unilateral trade measures taken for The Sub-Commission on Promotion and Protection of Human Rights has similarly
environmental purposes to be contrary to WTO obligations. 68 The World Summit affirmed the 'centrality and primacy' of human rights obligations in all areas of
governance and development, including international and regional trade, investment
65 In Europe, three regional institutions address issues of human rights, sometimes with different and financial policies, agreements, and practices. 72 The Commission on Human Rights
interpretations of the same rights. See Shelton (forthcoming).
66 Convention for the Conservation of Southern Bluefin Tuna (1993); Oxman, 2002. has asserted that 'the exercise of the basic rights of the people of debtor countries
67 But cf Application of the Convention on the Prevention and Punishment of the Crime of Genocide, to food, housing, clothing, employment, education, health services and a healthy
Provisional Measures, Order of 13 September 1993, IC] Reports 1993, p 325 at p 440, where Judge Lauter- environment cannot be subordinated to the implementation of structural adjustment
pacht suggested in his Separate Opinion that Article 103 and Security Council actions remain subordinate to
jus cogens norms.
68 See eg, Panel Report, BC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/R/USA, 69 See World Summit on Sustainable Development, Plan of Implementation (2002) para 9l.
WT/DS48/R/CAN (18 August 1997) and Appellate Body Report, Beef Hormone Case, WTIDS26/AB/R, 70 Statement on Globalization (May 1998) (1999) 6 IHRR 1176.
WT/DS48/AB/R (16 January 1998); Appellate Body Report, United States-Import Prohibition of Certain 71 Statement to the Third Ministerial Conference of the World Trade Organization (1999), UN Doc
Shrimp and Shrimp Products, WT/DS58/AB/R (12 October 1998); Appellate Body Report, United States- E/C.12/1999/9 of26 November 1999, para 6.
Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (29 April 1996); GATT Panel Report, 72 Human rights as the primary objective of trade, investment and financial policy, E/CNAISub.2/RES/19981
United States-Restriction on the Imports of Tuna, (1991) 30 ILM 1594. 12,20 August 1998.
166 DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY'

policies and economic reforms arising from the debt',73 The UN Special Rapporteurs In many cases, hard law instruments can be distinguished from soft law by internal
on Globalization and Its Impact on the Full Enjoyment of Human Rights forthrightly provisions and final clauses, although the characteristics of each are increasingly
assert that 'the primacy of human rights law over all other regimes of international difficult to identify. Recently, supervisory organs have been created to oversee com-
law is a basic and fundamental principle that should not be departed frum'. 74 pliance with non-binding norms. The Commission on Sustainable Development, for
The assertion of the primacy of human rights law has not been reflected in State example, supervises implementation of Agenda 21, the plan of action adopted in 1992
practice. If eventually accepted, it means that there is no lex specialis for trade or other at the Rio Conference on Environment and Development. In other instances, States
fields where States can claim to be free from human rights obligations. It could also have been asked to submit reports on compliance with declarations and programmes
profoundly impact the work of all international organizations, which commonly of action, in a manner that mimics if it does not duplicate the mechanisms utilized in
claim to be governed only by their constituting legal instruments and the mandate treaties.
therejn conferred. Some scholars have distinguished hard law and soft law by stating that breach
Other treaties contain specific provisions establishing priorities of application or of law gives' rise to legal consequences while breach of a political norm gives rise
hierarchies. The UN Convention on the Law of the Sea, for example, Article 311 to political consequences. Such a distinction is not always easy to make. Testing
establishes the agreement of the parties to maintain the basic principle of the com- normativity based on consequences can be confusing since breaches of law may give
mon heritage of mankind 'and that they shall not be party to any agreement in rise to consequences that may be politically motivated. A government that recalls its
derogation thereof'. The Convention on Biological Diversity, Article 22, establishes ambassador can either be expressing political disapproval of another State's policy on
its relationship with other international conventions in force, providing that rights an issue, Of sanctioning non-compliance with a legal norm. Terminating foreign
and duties under them shall not be affected, 'except where the exercise of those assistance also may be characterized either way. Even binding UN Security Council
rights and obligations would cause a serious damage or threat to biological diversity'. resolutions based on a threat to the peace do not necessarily depend upon a violation
Specific reference is made to implementing the Convention consistent with rights and of international law.
obligations of States under the law of the sea. Assertions that States are bound by law require identifying the process by which
legal rules and principles are authoritatively created. If States expect compliance and
in fact comply with rules and principles contained in soft law instruments as well
as they do with norms contained in treaties and custom, then perhaps the concept
IV. 'SOFT LAW' of international law, or the list of sources of international law, requires expansion.
Alternatively, it may have to be conceded that legal obligation is not as significant a
The increasing use of non-binding normative instruments in several fields of inter- factor in State behaviour as some would think. A further possibility is that law
national law is evident (Shelton, 2000). There is no accepted definition of 'soft law' remains important and States choose a soft law form for specific reasons related to
but it usually refers to any international instrument other than a treaty containing the requirements of the problem being addressed and unrelated to the expectation of
principles, norms, standards, or other statements of expected behaviour. The term compliance.
'soft law' is also sometimes employed to refer to the content of a binding instrument. In respect to 'relative normativity', scholars debate whether binding instruments
Some recent multilateral treaties contain weak commitments that may be considered and non-binding ones are strictly alternative or whether they are two ends on a
'soft law' if the term is applied to the content of the obligation. 75 In fact, the term continuum from legal obligation to complete freedom of action, making some such
'soft law' seems more appropriate for use when referring to the more hortatory or instruments more binding than others. If and how the term 'soft law' should be used
promotional language of certain treaty provisions than when applied to instruments depends in large part on whether one adopts the binary or continuum view of inter-
concluded in non-binding form, because treaties are legally binding even if specific national law. To many, the line between law and not-law may appear blurred. Treaty
commitments are drafted in general or weak terms. mechanisms are including more 'soft' obligations, such as undertakings to endeavour
to strive to cooperate. Non-binding instruments in turn are incorporating super-
73 Effects of structural adjustment policies and foreign debt on the full enjoyment of all human rights, particu-
visory mechanisms traditionally found in hard law texts. Both types of instrument
larly economic, social and cultural rights, E/CNAlRES/2000/821 , 27 April 2000.
74 Globalization and its impact on the full enjoyment of human rights, preliminary report submitted by may have compliance procedures that range from soft to hard. Some case law refers to
J. Oloka-Onyango and Deepika Udagama, E/CNAISub.2/2000/13, 15 June 2000. UN resolutions as having 'a certain legal value' but one that 'differs considerably'
75 eg, ICESCR (1966), Article 2(1): each State party 'undertakes to take steps, individually and through
from one resolution to another. 76
international assistance and co-operation, especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the rights recognized ... by all
appropriate means, including particularly the adoption oflegislative measures'. 76 TexacolCalasiaticv Libya, Arbitral Award (1978),17 ILM 28-29.
168 DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY'

Non-binding norms have complex and potentially large impact on the develop- Despite their limited juridical effect, non-binding instruments have an essential
ment of international law. Customary law, for example, one of the two main sources and growing role in international relations and in the development of international
of international legal obligation, requires compliance (State practice) not only as a law. Such instruments may (1) precede and help form international customary
result of the obligation, but as a constitutive, essential part of the process by which the and treaty law; (2) fill in gaps in international legal instruments and further define
law is formed. In recent years, non-binding instruments sometimes have provided the eXisting custom; (3) form part of the subsequent State practice that can be utilized
necessary statement of legal obligation (opinio juris) to evidence the emergent custom to interpret treaties; and (4) substitute for legal obligation when on-going relations
and have assisted to establish the content of the norm. The process of drafting make formal treaties too costly and time-consuming or otherwise unnecessary.
and voting for non-binding normative instruments also may be considered a form In the first three categories, non-binding instruments' are often linked in one way
of State practice. or another to binding ones. The last category is perhaps the most interesting, because
The reality seems to be a dynamic interplay between soft and hard obligations the extent to which members of the international community are willing to accept
similar to that which exists between international and national law. In fact, it is rare informal commitments and non-binding expressions of expected behaviour in their
to find soft law standing in isolation; instead, it is used most frequently either as relations with others may reflect a maturing of the legal system and international
a precursor to hard law or as a supplement to a hard law instrument. Soft law society.
instruments often serve to allow treaty parties to authoritatively resolve ambiguities in The first category posits that non-binding norms precede binding ones. It is evident
a binding text or fill in gaps. This is part of an increasingly complex international that compliance with non-binding norms can lead to the formation of customary
system with variations in forms of instruments, means, and standards of measure- international law. In recent years, non-binding instruments sometimes have provided
ment that interact intensely and frequently, with the common purpose of regulating the necessary statement of legal obligation (opinio juris) to precede or accompany
behaviour within a rule of law framework. The development of complex regimes is State practice, assisting in establishing the 'content of the norm. 78
particularly evident in international management of commons areas, such as the high The adoption of non-binding normative instruments also can and often does lead
seas and Antarctica, and in ongoing intergovernmental cooperative arrangements. to similar or virtually identical norms being codified in subsequent binding agree-
For the latter, the memorandum of understanding has become a common form of ments. Indeed, the process of negotiating and drafting non-binding instruments can
undertaking, perhaps 'motivated by the need to circumvent the political constraints, greatly facilitate the achievement of the consensus necessary to produce a binding
economic costs, and legal rigidities that often are associated with formal and legally multilateral agreement. In the human rights field, nearly all recent multilateral con-
binding treaties'.77 ventions have been preceded by adoption of a non-binding declaration. In environ-
From the perspective of State practice, it seems clear that resolutions, codes of mental law, this has been the case recently with the Rotterdam Convention on
conduct, conference declarations, and similar instruments are not law, soft or hard, Prior Informed Consent (1988).
albeit they may be related to or lead to law in one manner or another. States and The second category considers that non-binding instruments act interstitially
other actors generally draft and agree to legally non-binding instruments advertently, to complete or supplement binding agreements. Sometimes this is foreseen in the
knowingly. They make a conscious decision to have a text that is legally binding agreement itself, eg, the Bonn Convention on Migratory Species of Wild Animals
or not. In other words, for practitioners, governments, and intergovernmental (1979), the Antarctic Treaty (1959) regime, and agreements of the IAEA concerning
organizations, there is not a continuum of instruments from soft to hard, but a binary non-proliferation of nuclear weapons?9 In other instances, the non-binding accords
system in which an instrument is entered into as law or as not-law. The not-law can may appear relatively independent and free-standing, but upon examination make
be politically binding, morally binding, and expectations can be extremely strong reference to existing treaty obligations, as is the case for example, with the Helsinki
of compliance with the norms contained in the instrument, but the difference Accords that led to the Organization for Security and Cooperation in Europe (still
between a legally binding instrument and one that is not appears well understood lacking a treaty basis) and the Zangger Committee for multilateral weapons control.
and acted upon by government negotiators. Although a vast amount of resolutions In the third category are those non-binding instruments that are adopted by S~ates
and other non-binding texts includes normative declarations, so-called soft law is parties to (authoritatively interpret' the obligations contained in treaty provisions.
not law or a formal source of norms. Such instruments may express trends or a The examples of the Inter-American and Universal Declarations of Human Rights,
stage in the formulation of treaty or custom, but law does not have a sliding scale as they relate to the OAS and UN Charters, and the more recent ILO Declaration
of bindingness nor does desired law become law by stating its desirability, even
repeatedly. .
78 eg, the UN General Assembly ban on Driftnet Fishing in UNGA Res 46/215 (2001).
79 lAEA, The Structure and Content of Agreements Between the Agency and States Required in Connection
77 Johnston, 1997, p xxiv. with the Treaty on the Non-Proliferation ofNudear Weapons, IAEA Doc INFCIRCI153 (May 1971).
170 DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 171

on Fundamental Principles and Rights at Work can be cited here. One could add the
General Comments of various human rights treaty bodies, albeit the interpretation is V. CONCLUSION
accomplished by an independent treaty body conferred by that authority and not by
the States parties directly. The World Bank Operational Standards also seem intended The growing complexity of the international legal system is reflected in the increasing
to give guidance to employees in furthering the mandate of the World Bank. variety of forms of commitment adopted to regulate State and non-State behaviour
Finally, there are some instances of free-standing normative instruments that are in regard to an ever-growing number of transnational problems. The various
neither related to nor intended to develop into binding agreements. The proliferating international actors create and implement a range of international commitments,
Memoranda of Understanding generally can be included here, along with non- some of which are in legal form, others of which are contained in non-binding
binding export control guidelines developed by international weapons suppliers and instruments. The lack of a binding form may reduce the options for enforcement in
the guidelines concerning money laundering adopted by the Financial Action Task the short term (ie, no litigation), but this does not deny that there can exist sincere
Force (FATF). and deeply held expectations of compliance with the norms contained in the non-
States and other actors adopt non-binding normative instruments for a variety binding form.
of reasons. In some cases that is all they can do in the given setting. International There is no 'recipe' for success that will ensure the effective resolution of inter-
organizations in which much of the modern standard-setting takes place generally national problems and conflicts. While there may be particular factors that appear to
do not have the power to adopt binding texts. In addition, non-State actors can influence State and non-State behaviour, determinants of implementation, compli-
sign on, participate, and be targets of regulation, which is much more difficult to ance, and effectiveness vary in a single subject area and for a single legal instrument.
do with treaties. Non-binding instruments are faster to adopt, easier to change, and Ultimately, the issue centres on how to prevent and resolve conflict and promote
more useful for technical matters that may need rapid or repeated revision. international justice. In the end, the international legal system appears to be a
This is particularly important when the subject matter may not be ripe for treaty complex, dynamic web of inter-relationships between hard and soft law, legal norms
action because of scientific uncertainty or lack of political consensus. Finally, given greater or lesser priority, national and international regulation, and various
non-binding texts serve to avoid domestic political battles because they do not institutions that seek to promote the rule of law. In this system, relative normativity
need ratification. seems to be playing increasingly important and varied roles.
In some instances, compliance with non-binding norms and instrum~nts is
extremely good and probably would not have been better if the norms were contained
in a binding text. In fact, in many cases the choice would not have been between
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Prohibit Domestic Humanitarian Inter- 191. OF THE LAW OF TREATIES
vention', 60 Albany L Rev 771. UPADHYE, S (2000), 'The International
ROBLEDO, AG (1 982-III), 'Le Ius Cogens Watercourse: An Exploitable Resource
International: Sa Genese, Sa Nature, Ses for the Developing Nation under Inter- Malgosia Fitzmaurice
Fonctions', 172 Recueil des Cours 17. national Law?', 8 Cardozo J Int'l & Comp
SAFRIN, S (2002), 'Treaties in Collision? The L61.
Biosafety Protocol and the World Trade WElL, P (1983), 'Towards Relative Norma-
Organization Agreements', 96 AJIL 606. tivity in International Law?', 77 AJIL SUMMARY
SALCEDO, JAC (1997), 'Reflections on the 413.
Hierarchy of Norms in International WEISS, EB and JACOBSON, H (eds) (1998), This chapter considers key structural questions and fundamental problems relating to
Law',8 BJIL 583. Engaging Countries: Strengthening Com- the law of treaties. The structural matters considered include: the concept of a treaty;
SHELTON, D (forthcoming), 'Boundaries of pliance with International Environmental the anatomy of treaties (including the making of treaties; authority to conclude treaties;
Human Rights Jurisdiction in Europe', Accords (Cambridge, Mass.: MIT Press) expression of consent to be bound; invalidity of treaties (non-absolute grounds for
DukeJIL. 771. invalidity of treaties, absolute grounds for invalidity of treaties, amendment and modifica-
tion); suspension and termination.
The key issues addressed include the scope of legal obligation (the principle pacta sunt
servanda, treaties, and third States); interpretation and reservation to treaties (including
interpretative declarations); and finally, pr~blems concerning the grounds for termi-
FURTHER READING nation (supervening impossibility and material breach). The chapter takes into con-
sideration the theory and practice of the law of treaties, with broad analysis of the case
The following works provide useful amplification of the topics surveyed in this chapter: law of various international courts and tribunals, with special emphasis on jurisprudence
of the International Court of Justice.
D'AMATo, A (1990), 'It's a Bird, It's a Plane, (Lakimiesliiton Kustannus: Finnish
It's Jus Cogens', 9 Conn JIL l. Lawyer's Publishing Co).
DANNER, AM (2000), 'Constructing a OXMAN, B (2002), 'Complementary Agree-
Hierarchy of Crimes in International ments and Compulsory Jurisdiction',
Criminal Law Sentencing', 87 Va L 95 AJIL277.
I.. INTRODUCTION
Rev415. RAGAZZI, M (1997), The Concept of Inter-
DE HOOGH, A (1996), Obligations Erga national Obligations Erga Omnes (Oxford:
Treaties are one of the means through which States de(ll with each other and a precise
Omnes and International Crimes (The Clarendon Press).
method of regulating relations between States. Some areas of international law, such as
Hague: Kluwer Law International). SZTUCKI, J (1974), Jus Cogens and the Vienna environmental law, are almost exclusively regulated by treaties whilst they are of
liANNlKAINEN, L (1988), Peremptory Convention on the Law of Treaties
the utmost importance in others, such as international economic relations, and play.
Norms (Jus Cogens) in International Law (Vienna: Springer).
a decisive role in the field of human rights. International trade and international
investments as well as international communication are unimaginable without treat-
ies. Thus knowledge· of the law of treaties is essential to an understanding of how
international relations and international law works. That law is codified in the 1969
174 MALGOSIA FITZMAURICE THE PRACTICAL WORKING OF THE LAW OF TREATIES 175

Vienna Convention on the Law of Treaties (the 'VCLT), the provisions of which will element is implicitly present in the phrase 'governed by international law'.3
be presented and analysed in this chapter. There are some international acts that may assume the form of international
agreements but which were never intended to create legal obligations, such as
the 1975 Final Act of the Conference on Security and Cooperation in
Europe. 4
II. BASIC CONCEPTS AND STRUCTURES Such acts are sometimes called 'soft law'S and their legal status is not clear. However,
as they are not legally binding, they are not enforceable in· courts. However, they
cannot be ignored since soft law may 'harden' into a treaty6 or become a norm of
A. WHAT IS A TREATY?
international customary law. Some authors see soft law as a more flexible alternative
VCLT Article 2(2) defines a treaty as '[a]n international agreement concluded to treaty-making (Boyle, 2000) though others consider the whole concept mis-
between States in written form and governed by international law, whether conceived, both in that if it is not binding, it is not law, and that it creates an
embodied in a single instrument or in two or more related instruments and whatever expectation of compliance whilst simultaneously undermining the authority of law
its particular designation'. (Weil, 1983).
The term 'treaty' is used generically (Aust, 2000, p 140) and a treaty may be Finally, in the Nuclear Test cases,? the ICJ made it clear that unilateral statements
described in a multitude of ways. The International Law Commission (ILC) said: of States can have binding effect if the intention that they be legally binding is clear;
that there is clear evidence regarding the circumstances in which they are made;
In addition to a 'treaty', 'convention', and 'protocol,' one not infrequently finds titles such
as 'declaration,' 'charter,' 'covenant,' 'pact,' 'act,' 'statute,' 'agreement,' 'concordat,' whilst and that the question is approached with due caution. However, it has been argued
names like 'declaration,' 'agreement', and 'modus vivendi' may well be found given that there is little evidence to support the Court's view and, in any case, there was
both to formal and less formal types of agreements. As to the latter, their nomenclature is insufficient evidence of intent on the facts of the case.
almost illimitable, even if some names such as 'agreement,' 'exchange of notes,' 'exchange
of letters, 'memorandum of agreement,' or 'agreed minute', may be more common than
B. THE VIENNA CONVENTIONS
others.... there is no exclusive or systematic use of nomenclature for particular types of
transaction. 1 The 1969 Vienna Convention on the Law of Treaties was opened for signature on
23 April 1969 and entered into force on 27 January 1980. It was the product of the
The Vienna Convention does not require that a treaty be in any particular form
International Law CommissionS and the UN Conference on the Law of Treaties that
or comprise any particular elements so if there is a dispute concerning the status
met at Vienna from 26 March to 24 May 1968, and from 9 April to 22 May 1969. The
of a document-eg, a joint communique-as a treaty, an objective test is used to
subsequent 1986 Vienna Convention between States and International Organizations
determine the question, taking into account its actual terms and the partiCular
or Between Organizations adapts these rules to its subject matter and although not in
circumstances in which it was made. For example, minutes of a meeting can comprise
force is considered to be applicable as law. Finally, the 1978 Vienna Convention on
a treaty. In the Qatar v Bahrain case the ICJ said:
Succession of States in Respect of Treaties is in force but not all of its rules are
The Court does not find it necessary to consider what might have been the intentions of the
Foreign Minister of Bahrain or, for that matter those of the Foreign Minister of Qatar. The
3 Fourth Report on the Law Treaties, YBILe (1965), vol II, p 12.
two ministers signed a text recording commitment accepted by their Governments, some of
4 The Act stated that it was not eligible for registration under UN Charter Article 102 and was generally
which were to be given an immediate application. Having signed such a text, the Foreign understood not to have binding force. The failure to register a treaty under UN Charter Article 102 does not
Minister of Bahrain, is not in the position subsequently to say that he intended to subscribe mean that the instrument in question is not a treaty, whilst the act of registration does not mean that it is. For
only to a 'statement recording political understanding', and not to an 'international example, the 1957 Declaration by Egypt concerning the nationalization of the Suez Canal was registered by
agreement'. 2 the Egyptian Government but was not a treaty.
S Other examples include the 1972 Stockholm Declaration on Human Environment and the 1992 Rio
Since a treaty is a method of creating binding legal obligations, there must be Declaration on Environment and Development.
6 eg, the 1988 Baltic Sea Ministerial Declaration and the 1992 Baltic Sea Declaration hardened
an intention to create legal relations. The Rapporteur of the ILC stated that the
into the 1992 Convention on the Protection of the Baltic Sea and the Baltic Sea Area (,The Helsinki
Convention').
7 Nuclear Tests (Australia v France), Judgment, IeJ Reports 1974, p 253, paras 42-43. The need for intention
1 YElle (1966), vol II (part two), p 188. was reiterated by the Court in Frontier Dispute, Judgment, leJ Reports 1986, p 554, para 39.
2 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and 8 The Special Rapporteurs of the Commission were Professors Briely and Lauterpacht, Sir G Fitzmaurice
Admissibility, Judgment, leJ Reports 1994, p 112, para 27. and Sir H Waldock.
176 MALGOSIA FITZMAURICE THE PRACTICAL WORKING OF THE LAW OF TREATIES 177

considered to represent customary international law. The present chapter is based


mainly on the provisions of the 1969 Vienna Convention. III. THE ANATOMY OF A TREATY
1. The scope of the Vienna Convention
A. THE MAKING OF TREATIES
The Vienna Convention regulates treaties concluded between States (Article 1) and in
written form (Article 2(1)(a)). This does not mean that oral agreements have no Treaties are by far the most important tools of regulating international relations.
effect under international law or that principles found in the VCLT do not apply to They may be concluded between States, States and international organizations, and
such agreements, merely that they are not governed by the VCLT itself. Questions of between international organizations. International organizations, in particular the
succession of treaties, State responsibility, and the effect of the outbreak of hostilities United Nations, playa most important role in international law-making as initiators
on treaties are also excluded from its scope (Article 73). Furthermore, the Convention of treaties and as a source of expertise.
is not retroactive and only applies to treaties concluded after its entry into force
(Article 4). It acts as a residual rule, ie, it is applicable unless a particular treaty
B. AUTHORITY TO CONCLUDE TREATIES
provides otherwise; or unless the parties agree otherwise; or if a different intention is
otherwise established. Although the VCLT does not apply to treaties between States VCLT Articles 7 and 8 concern the making of treaties. A most important issue is
and international organizations per se, those of its provisions that reflect rules that of full powers,11 the holder of which is authorized to adopt and authenticate the
of international customary law do apply to such treaties (Article 3(b)). Moreover, text of a treaty and to express the consent of the State to be bound by a treaty, although
the provisions of the VCLT apply as between States parties to the VCLT as regards there are a growing number of treaties, particularly bi-Iateral treaties, which are
treaties to which other forms of subjects of international law (such as international concluded in a simplified form that does not require the production of full powers
organizations) are also parties (Article 3(c)). (for example exchange of notes). The general rule expressed in the VCLT (Article 7
paragraph l(a) and (b)) is that a person is considered as representing a State for
2. The Vienna Convention and customary law the purpose of expressing the consent of the State to be bound by it if he or she
There are two problems concerning the relationship between the Vienna Convention produces appropriate full powers or it appears from the practice of .the States con-
and international customary law: (i) which provisions of the Vienna Conven- cerned or from other circumstances that their intention was to consider that
tion codified customary law and which constituted progressive development and (ii) person as representing the State for such purposes and to dispense with full
how does customary law relating to treaties operate? powers. There is, however, a group of persons who by virtue of their functions
It is difficult, if not impossible, to answer the first of these questions. Certain and without having to produce full powers, are considered to have such authority,
provisions of the Convention that represented progressive development at the time these being: heads of State, heads of government, and Ministers for Foreign Affairs;'
of its signing-such as reservations and modification of treaties-were probably heads of diplomatic missions, for the purpose of adoption of the text of a treaty
already within the body of international customary law by the time of its entry into between the accrediting State and the State to which they are accredited; representa-
force (Sinclair, 1984, pp 10-21). In the Gabcikovo-Nagymaros Project case the IC] tives accredited by States to an international organization or one of its organs, for
identified the rules concerning termination and suspension of treaties as codificatory9 the purpose of adopting the text of a treaty in that conference, organization, or organ
and in the KasikililSedudu Island case said that the rules of interpretation reflected (Article 7(2) ).
customary international law. 10 Full powerS have to be distinguished from c~edentials which are submitted to an
As to the second problem, Articles 3(b), 4, 38, and 43 combine to provide that international organization or a government hosting an international conference by a
when the provisions of the Convention are inapplicable the rules of international delegate attending to negotiate a multilateral treaty. Credentials only authorize the
customary law (or in some instances general principles oflaw) with the same legal delegate to adopt the text of a treaty and to sign a Final Act. Signing the treaty itself
content may be applicable. The most significant is Article 4 concerning the non- requires full powers or specific instructions from government. Full powers and
retroactive effect of provisions of the VCLT that were not reflective of customary credentials may be combined in one document.
law.
11 Defined in Article 2(l)(c) as a 'Document emanating from the competent authority of a State
designating a person or persons to represent a State for negotiating, adopting or authenticating the text
of a treaty, for expressing consent of the State by a treaty, or for accomplishing any other acts with respect
9 GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, para 46. to a treaty'. See Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v
10 Kasikili/Sedudu Island (Botswana!Namibia), Judgment, ICJ Reports 1999, p 1045, para 18. Nigeria; Equitorial Guinea Intervening), Judgment, IJC Reports 2002.
MALGOSIA FITZMAURICE THE PRACTICAL WORKING OF THE LAW OF TREATIES 179

Where an unauthorized person purports to conclude a treaty Article 8 provides 2. Ratification


that the action is without legal effect, unless subsequently confirmed by the State. On
Ratification is understood as a formal, solemn act on the part of a Head of State
the other hand, Article 47 provides that where an authorized representative of a
through which app.roval is given and a commitment to fulfil its obligations is under-
State expresses consent to be bound although instructed by their State not to do so,
taken, although the significance of the act at the international level has changed over
this does not invalidate that consent, unless the limitation on their authority was
time. As Judge Moore said in 1924, the older view that treaties might be regarded
notified to other negotiating States beforehand.
as binding before they had been ratified was now 'obsolete, and lingers only as an
echo from the past'. 12
VCLT Article 2(1) (b) provides that: '''ratification», "acceptance", "approval" and
C. EXPRESSION OF CONSENT TO BE BOUND
"accession» mean in each case the international act so named whereby a state estab-
The role of the expression of consent by States to be bound by a treaty is to constitute lishes on the international plane its consent to be bound by treaty'. Despite the use of
a mechanism by which the treaty becomes a juridical act. According to Article II, 'The the word 'means', this does not define ratification, but indicates its effect. Article 14
consent of a state to be bound by a treaty may be expressed by signature, exchange provides that consent to be bound is expressed by ratification if (a) the treaty expressly
of instruments constituting a treaty, ratification, acceptance, approval or accession, or so provides; (b) the negotiating States otherwise agree that ratification is necessary;
by any other means if so agreed'. Article 11 lists a number of particular means of (c) the treaty has been signed subject to ratification; or (d) an intention to sign subject
expressing consent to be bound, whilst also allowing parties to adopt any other means to ratification appears from the full powers or was expressed during negotiations.
on which they agree. The precise method is, therefore, for the parties to a treaty to Ratification is unconditional and, unless the treaty in question provides otherwise,
decide amongst themselves. is not dependent on the receipt or deposit of instruments of ratification by other
The legal effect of signature of a treaty depends upon whether or not it is subject States. Some support for a relatively relaxed approach to the formalities of ratification
to ratification, acceptance, or approval. If it is, then signature constitutes an can be gleaned from the attitude of the ICJ in the Nicaragua case where Nicaragua's
intermediate step, indicating that the delegates have agreed upon the text and are failure to ratify the Statute of the former Permanent Court of International
willing to accept it. Signature under these circumstances does not express the final Justice and convert 'potential commitment to effective commitment' was seen as
consent to be bound and the signing of a treaty does not impose any obligation being rectified by its ratification of the ICJ Statute. 13
on a State to ratify it or even, in the absence of an express term to this effect, to
submit it to the national legislator for consideration. However, the initial signature 3. Accession
also constitutes a juridical act in the sense that, by its signature each State accepts This means of consent to be bound is regulated by VCLT Article 15 and refers to
certain legal consequences, for example under VCLT Articles 18,24(4), and 25. The the means by which a State eXpresses its consent to become a party to a treaty that it
intermediate stage between signature and ratification enables States to promulgate . was not in a position to sign.14 A State can only accede to a treaty if the treaty so
necessary legislation or obtain necessary parliamentary approval. Ratification provides or the parties agree. Treaties setting up regional regimes may often permit
conforms to the democratic principle that the government should consult public accession by invitation. 15
opinion either in parliament or elsewhere before finally approving a treaty (Shearer, Can a State accede to a treaty which is not yet in force? The International Law
1994, p 414). . Commission has pointed out that:
An examination of the most recent treaty practice shows that in practically all modern
1. Signature treaties which contain accession clauses the right to accede is made independent of the entry
Signature only expresses consent to be bound when it constitutes the final stage into force of a treaty, either expressly, by allowing accession to take place before the date
of a treaty-making process. Article 12 lists a variety of possible means to express fixed for the entry into force of the treaty, or impliedly, by making the entry into force of the
treaty conditional on the deposit, inter alia, of instruments of Accession. 16
consent to be bound by signature, including signature ad referendum. This commonly
indicates either that the signatory State is currently unable to accept the terms
12 Mavrommatis Palestine Concessions, Judgment No 2, 1924, PClf, Ser A, No 2, at p 57.
of the treaty, or that the plenipotentiary concerned had no definitive instruc-
13 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
tions in the matter. Signature ad referendum becomes a full signature if subse- Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p 392.
quently confirmed by the State concerned. Article 12 also provides that initialling 14 Very rarely it can be the principal means of expressing consent to be bound, as in the often cited yet
a treaty constitutes signature when it is established that the negotiating State so isolated example of the 1928 General Act for the Pacific Settlement of International Disputes.
15 eg, 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area.
agreed.
16 YEILC (1966), vol II (part two), p 199.
180 MALGOSIA FITZMAURICE THE PRACTICAL WORKING OF THE LAW OF TREATIES 181

4. Acceptance and approval follow the watershed line that was prescribed by the treaty text. The Court rejected
These are recognized and widely used methods of expressing consent to be bound this argument, saying:
and are regulated by VCLT Article 14(2). There are no great differences between It is an established rule oflaw that the plea of error cannot be allowed as a vitiating consent
signature subject to acceptance or approval and signature subject to ratification. The if the party advancing it contributed by its conduct or error, or could have avoided it, or the
use of these methods of consent to be bound was intended to simplify procedures circumstances were such as to put party on notice of a possible error. The Court considers
by, for example, avoiding constitutional conditions that might require obtaining that the character and qualifications of persons who saw Annex I map on the Siamese side
Parliamentary authority prior to ratification. The rules applicable to ratification apply would alone made it difficult for Thailand to plead error in law ...20
to acceptance and approval (Aust, 2000) and, unless provided otherwise, acceptance Articles 49 and 50 concern fraud and corruption. There is a paucity of materials
and approval have the same legal effect as ratification. Expressing consent to be relating to these Articles, though as far as corruption is concerned, the ILC observed
bound by acceptance or approval without prior signature, is analogous to accession. that only an act calculated to exercise a substantial influence on the disposition of a
In many of the more recent conventions concluded under the auspices of the United representative to conclude a treaty could be invoked as a reason to invalidate an
Nations, such as the 1997 UN Convention on the Law of the Non-Navigational expression of consent that had subsequently been given. 21
Uses of International Watercourses,17 all means of consent to be bound are listed as Turning from the relative to the absolute grounds for invalidity, Article 51 deals
available options. with the coercion of a representative, Article 52 the coercion of a State, and Article 53
the conflict with norms of jus cogens. In all these cases a treaty is void ab initio, in the
D. INVALIDITY OF TREATIES latter case by virtue of its conflicting with international public policy (the con-
sequences of which are addressed in Article 71). Practice in relation to all these
The grounds for invalidity of treaties within the VCLT can be divided into two groups: Articles is limited. The classic example relating to Article 51, the coercion of a repre-
relative grounds in Articles 46-50 and absolute grounds in Articles 51-53. 18 The main sentative, concerns the pressure exerted by Goring and Ribbentrop upon President
difference between these grounds is that the relative grounds render a treaty voidable Hacha of Czechoslovakia to sign a treaty with Germany establishing a German pro-
at the insistence of an affected State whereas the absolute grounds means that the tectorate over Bohemia and Moravia in 1939. There is a clear link between Article
treaty is rendered void ab, initio and without legal effect. The Vienna Convention does 52-the coercion of a State-and the prohibition of the use of force under inter-
not differentiate between bilateral and multilateral treaties. However, in the case of national law. Iceland advanced a claim of this nature in the 1973 Fisheries Jurisdiction
bilateral treaties the legal effect of establishing a relative ground of invalidity has the case and the ICT stated that: 22
same legal effect as establishing absolute invalidity: the treaty falls (Sinclair, 1984).
In the case of multilateral treaties, however, establishing an absolute ground means There can be little doubt, as implied in the Charter of the United Nations and recognised in
that the treaty has no legal force at all whereas establishing a relative ground- Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary
meaning that the consent of a particular State to a multilateral treaty is vitiated-does international law an agreement concluded under the threat or use of force is void .. .'.
not affect the validity of the treaty as a whole as between the other remaining parties
(Article 69(4) ). E. AMENDMENT AND MODIFICATION
Article 46 concerns the failure to comply with internal law regarding competence to
conclude a treaty, and provides that this may only be a ground for invalidating con- The growth in number of multilateral treaties resulted in the necessity of devising
sent to be bound if that failure was 'manifest'. Article 4 7~is similar, concerning cases in amendment procedures and, in order to make amendment procedures more flexible,
which the representatives purporting to conclude a treaty were acting beyond the modification procedures. These are addressed in VCLT Articles 39-41. The ILC
scope of their instructions. 19 Article 48 concerns error as a vitiating ground, and follows explained that amendment is a formal matter introducing changes into the treaty
the approach of the ICT in the Temple case. In that case, Thailand argued that the text whereas modification is a less formal procedure which effects only certain parties
boundary line indicated on a map annexed to a treaty was in error since it did not

20 Temple ofPreah Vihear, Merits, Judgment, ICJ Reports 1962, p 6 at p 26.


17 (1997) 36 ILM 700. 21 YBILC (1966), vol II (part two), p 244.
18 Sinclair divides cases of invalidity into three groups, concerning: the capacity of the parties (Articles 46- 22 Fisheries Jurisdiction (United Kingdom v Iceland), Jurisdiction of the Court, Judgment, ICJ Reports 1973,
47); the validity of consent to be bound (Articles 48-50); and the lawfulness of the object of the treaty p 3, para 24. However, on the facts of the case the Court concluded that 'The history of negotiations which
(Articles 51-53) (Sinclair, 1984, p 160). led up to the 1961 Exchange of Notes reveals that these instruments were freely negotiated by the interested
19 YBILC (1966), vol II (part two), p 243. parties on the basis of the perfect equality and freedom of decision on both sides'.
MALGOSIA FITZMAURICE THE PRACTICAL WORKING OF THE LAW OF TREATIES

to a treaty.23 However,.in practice it is often difficult to distinguish between these two is a particular problem concerning the relationship between tacit termination in
procedures (Sinclair, 1984, p 107). accordance with Article 59 and Article 30, which concerns the effect of successive
Amendments to treaties should be distinguished from the revision of a treaty. treaties relating to the same subject matter and which relates to cases in which the
Revision is a more comprehensive process resulting in changes to a treaty. However, parties clearly intended the earlier treaty to be abrogated or its operation wholly
a diplomatic conference is often needed both to revise and to amend a treaty, as, suspended by the conclusion of the subsequent treaty.
for example, in the case of the 1992 Convention on the Protection of the Marine
Environment of the Baltic Sea (the '1992 Helsinki Convention').24 Amendments are
subject to approval by the parties to the treaty. However, some treaties-such as the
Helsinki Convention-contain technical annexes which may, if the treaty so provides, IV. THE SCOPE OF LEGAL OBLIGATIONS
be amended by a simplified system whereby an amendment to an annex is deemed to
have been accepted at the end of a specified period unless in the meanwhile any State
A. THE PRINCIPLE PACTA SUNT SERVANDA
party has submitted a written objection to the Depositary.
The principle pacta sunt servanda is enshrined in Article 26 of the VCLT which
provides that '[e]very treaty in force is binding upon the parties to it and must be
F. TERMINATION AND SUSPENSION OF THE
performed by them in good faith'. Good faith is itself a legal principle and forms an
OPERATION OF TREATIES
integral part of the pacta sunt servanda principle. 25
The general provisions on suspension and termination of treaties are set out in VCLT The fundamental importance of pacta sunt servanda was confirmed by the lCT in
Articles 54-59. Termination of a treaty may result from the grounds of termination the 1997 GabCikovo-Nagymaros case, which, generally speaking, advocated its strict
that are internal to the treaty as well as from grounds external to the treaty. The observance. The case concerned the implementation of a 1977 treaty providing for the
'internal' grounds will be considered here. The 'external grounds', concerning construction of a hydro-electric scheme along stretches of the Danube in Hungary
breach of obligations, will be considered later. AB regards the 'internal' grounds for and Slovakia. Hungary argued that the conduct of both parties indicated that they
termination or suspension, the general rule in Article 54 is that a treaty may be had repudiated this bilateral treaty which, therefore, had come to an end. The Court,
terminated or a party may withdraw from a treaty in accordance with the provisions however, took the view that the reciprocal wrongful conduct of both parties 'did
of the treaty itself; or at any time by consent of all parties following consultations. not bring the Treaty to an end nor justify its termination'.26 The effect of breaching
Article 57 provides that the operation of a treaty with regard to all parties or to a treaty obligations will be considered later, but at this point it should be noted that,
particular party may be suspended in accordance with the provisions of the treaty in despite both parties being in fundamental breach of important elements of their
question. treaty obligations, the Court though the 1977 Treaty 'cannot be treated as voided by
Some treaties provide that they will remain in force only for a specific period of unlawful conduct'. 27
time whereas others provide for termination by a resolution of the contracting par- The Court made a direct reference to the principle pacta sunt servanda, saying:
ties. As to withdrawal from a treaty, some treaties provide for a period of notice,
What is required in the present case by the rule pacta sunt servanda, as reflected in Article 26
others do not. For example, the 1992 Helsinki Convention provides that at any time of Vienna Convention of 1969 on the Law of Treaties, is that the parties find solution within
after the expiry of five years from the date of its entry into force any party may, by the co-operative context of the Treaty.28
giving written notification to the depositary, withdraw from the Convention. With-
drawal takes effect on the thirtieth day of Tune of the year following the year in which The Court observed that the two elements in Article 26-the binding force of treaties
the depositary was notified of the withdrawal. and the performance ofthem in good faith-were of equal importance and that good
VCLT Article 58 provides for suspension of the operation of a multilateral treaty faith implied that,
by agreement between certain parties only. This Article must be read in conjunction in this case, it is the purpose of the Treaty, and the intentions of the parties in concluding it,
with Article 41 which provides for. the modification of treaty provisions between which should prevail over its literal application. The principle of good faith obliges parties to
certain parties only. Article 59 covers the case of tacit termination of a treaty. There apply it in a reasonable way in such a manner that its purpose can be realised. 29

23 YBILC (1966), vol II (part two), p 232. 25 YBILC (1966), vol II (part two), p 211.
24 'A conference for the purpose of a general revision of or an amendment to this Convention may be 26 Gabclkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, para 114.
convened with the consent of the Contracting Parties or the request of the Commission' (Article 30). 27 Ibid, para 133. 28 Ibid, para 142. 29 Idem.
MALGOSIA FITZMAURICE THE PRACTICAL WORKING OF THE LAW OF TREATIES

These are far-reaching statements and, whilst they may have been particularly suited neutrality or demilitarization of a certain territory or area, or establishing freedom of
to the issues in the GabCikovo-Nagymaros case itself, it is still impossible to determine navigation in international waterways such as the Suez Canal, Kiel Canal, and the
the extent to which they bear upon the application of the principle pacta sunt servanda Turkish Straits. 31
in the law of treaties in general.

B. TREATIES AND THIRD STATES


v. GENERAL PRINCIPLES OF INTERPRETATION
The issue of treaties and non-State parties-third States-are addressed in VCLT
Articles 34-38. The fundamental rule concerning the relationship between treaties
A. GENERAL ISSUES
and third States is expressed by the maxim pacta tertiis nee noeent nee prosunt,
enshrined in Article 34. The Convention then deals with an obligation (Article 35) 'There is no part of the law of treaties which the text writer approaches with more
and a right (Article 36-often referred to as stipulations in favorem tertii) arising from trepidation than the question of interpretation' (McNair, 1961). The complex issue
a treaty for a third State. A;:; to the obligation, the requirements are so strict that, when of treaty interpretation will be discussed in the light of the work of the ILC during
fulfilled, they in fact amount to the existence of a collateral agreement between the its codification of the law of treaties, the principles of interpretation included
parties to the treaty and the third State and it is this collateral agreement, rather than in the Vienna Convention, and the jurisprudence of the international and national
the original treaty, which is the legal basis for the third State's obligation. courts and tribunals, with special regard to the case law of the ICJ. The purpose of
There are procedural differences in the establishment of an obligation and of a interpretation is to establish the meaning of the text that the parties intended
right. The third State must accept an obligation in writing, whereas in a case of the it to have 'in relation to circumstances with reference to which the question of
right, the assent of the third State(s) is presumed, unless the treaty provides otherwise interpretation has arisen' (Oppenheim's International Law, 1996).
or there are indications to the contrary. Arty obligation arising for a third State can Basing himself on the jurisprudence of the World Court,32 the ILC's Rapporteur,
be revoked or modified only with the consent of the parties to the treaty and of the Fitzmaurice (Fitzmaurice, 1951) drew up the following comprehensive set of
third State, unless it is established that they agreed otherwise. Arty right arising for a principles of interpretation:
third State can be revoked or modified only by the parties if it is established that the
right was intended to be revocable or subject to modification without the consent Principle I: actuality of textuality-that treaties are to be interpreted as they stand,
of the third State. Caution is usually recommended when considering whether a treaty on the basis of their actual texts.
has given rise to stipulations in favorem tertii. As the PCl} said: 30
Principle II: the natural and ordinary meaning-that, subject to principle of
It cannot be lightly presumed that stipulations favourable to a third State have been adopted
contemporaneity (where applicable), particular words and phrases are to be given
with the object of creating an actual right in its favour. There is however nothing to prevent
the will of sovereign States from having this object and this effect. The question of the their normal, natural, and unstrained meaning in the context in which they
existence of a right acquired under an instrument drawn between other States is therefore occur. This principle can only be displaced by direct evidence that the terms used
one to be decided in each particular case: it must be ascertained whether the States which are to be understood in manner different to their natural and ordinary meaning,
have stipulated in favour of the third State meant to create for that State an actual right or if such an interpretation would lead to an unreasonable or absurd result.
which the latter has accepted as such.
Principle III: integration-that treaties are to be interpreted as a whole. This
Nothing in the VCLT prevents a rule set out in a treaty from becoming binding
principle is of fundamental importance and means that individual parts, chapters
upon third States as a customary rule of international law if recognized as such
or sections of a treaty are not to be interpreted out of their overall context.
(Article 37).
However, the VCLT does not deal specifically with the question of whether the
The remaining principles take effect subject to the three principles outlined above.
objective regimes created by treaties are binding only on States parties to those instru-
There are:
ments or whether they are valid as against the entire international community-are
valid erga omnes. Examples of such treaties would include those providing for the 31 The ILC took the view that Article 36(1) provided sufficient basis for rights to be accorded to all States
and Article 38 a sufficient basis for the establishment of treaty rights and obligations erga omnes. For criticism
30 Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, PClJ, Ser AlB, No '46, P 96 at see Chinkin, 1993.
pp 147-148, 32 YElLC (1966), vol II (part two), p 220,
186 MALGOSIA FITZMAURICE THE PRACTICAL WORKING OF THE LAW OF TREATIES

Principle IV: effectiveness (ut magis valeat quam pereat)-that treaties are to be Interpretation must be based above all upon the text of a treaty. As a supplementary measure
interpreted with reference to their declared or apparent objects and purposes; and recourse may be had to means of interpretation such as the preparatory work of the treaty.35
particular provisions are to be interpreted so as to give them the fullest effect Article 31 reflects the principle that a treaty has to be interpreted in good faith that
consistent with the normal sense of the words and with the text as a whole in such a is the embodiment of the principle pacta sunt servanda. The determination of that
way that a reason and meaning can be attributed to every part of the text. ordinary meaning of term is undertaken in the context of a treaty and in the light of
its object and purpose. A good example is the Advisory Opinion On the Interpretation
Principle V: subsequent practice- that recourse may be had to subsequent practice of the Convention of 1919 Concerning Employment of Women During the Night. Article
of parties relating to the treaty. 3 of that Convention ('women without distinction of age shall not be employed
during the night in any public or private industrial undertaking, or in any branch
Principle VI: contemporaneity-that the terms of a treaty must be interpreted in the thereof, other than an undertaking in which members of the same family are
light oflinguistic usage current at the time when the treaty was concluded. employed') left unclear its application to certain categorles of women other than
manual workers. The Court said: 36
In general, there are three main schools of interpretation: the subjective (the 'inten-
tion' of parties) approach; the objective (the 'textual') approach, and the teleological The wording of Article 3, considered by itself, gives rise to no difficulty; it is general in its
(or 'object and purpose') approach. These schools of interpretation are not mutually terms and free from ambiguity or obscurity. It prohibits the employment during the night in
industrial establishments of women without distinction of age. Taken by itself, it necessarily
exclusive (Sinclair, 1984) and the VCLT draws on all three. It is the reconciliation
applies to the categories of women contemplated by the question submitted to the Court. If,
of the objective and the subjective approaches that is the most difficult, contro-
therefore, Article 3 ... is to be interpreted in such a way as not to apply to women holding
versial and, some would say, impossible, task (Koskenniemi, 1989). For the ILC, the
posts of supervision and management and not ordinarily engaged in manual work,
starting point was the text rather than the intention of the parties,33 since it presumed it is necessary to find some valid ground for interpreting the provision otherwise than in
that the text represented a real expression of what the parties did in fact intend. It accordance with the natural sense of words. The terms of Article 3 ... are in no respect
also appears that the ICT's preferred method of interpretation is reliance on the text inconsistent either with the title, or with the Preamble, or with any other provision of
of a treaty. the Convention. The title refers to 'employment of women during the night'. The Preamble
speaks of 'women's employment during the night'. Article 1 gives a definition of 'an
industrial undertaking.' Article 2 states what is meant by the term 'night.' These provisions,
B. PRACTICE therefore, do not affect the scope of Article 3, which provides that 'women shall not be
VCLT Article 31 (1) provides: employed during the night either in any public or private industrial undertaking, or in any
branch thereof'.
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose. This might be compared with the views of the Judge Anzilloti who argued that 'If
article 3, according to the natural meaning of its terms, were really perfectly clear, it
The ICJ has acknowledged this to constitute international customary law. 34 The would be hardly admissible to endeavour to find an interpretation other than that
underlying principle is that a treaty will be interpreted in good faith. The 'rule' (in which flows from the natural meaning of its terms'.37 He thought that only the inten-
the singular) of interpretation is a procedure consisting of three elements: the text, the tion of the parties should have been used to determine the correct interpretation.
context, and the object and purpose. The context of a treaty is set out in some detail in Another problem concerns what is to count as subsequent practice for the purposes
Article 31(2) and embraces any instrument of relevance to the conclusion of a treaty, of interpretation, the use of which is sanctioned as forming a part of the context of the
as well as a treaty's preamble and annexes. There is no hierarchy between the various treaty by Article 31 (3). In the Kasikili/Sedudu Island case the Court adhered to the ILC's
elements of Article 31; rather, they reflect a logical progression (Aust, 2000, p 187). view that the subsequent practice of parties to a treaty constitutes an element to be
The Court has consistently adhered to the textual interpretation as being the most taken into account when determining its meaning,38 but it took a narrow approach to
important. In the Libya/Chad case, the Court stated that:

35 Territorial Dispute, idem. The use of supplementary material is considered below.


33 Idem. 36 Interpretation of the Convention of 1919 Concerning Employment of Women During the Night, Advisory
34 Territorial Dispute (Libyan Arab Jamahiririya/Chad), Judgment, ICJ Reports 1994, p 6, para 41; Oil Opinion, 1932, PCIJ, Ser NB, No 50, P 365, P 373.
Platforms (Islamic Republic of Iran v United States ofAmerica), Preliminary Objections, Judgement, ICJ Reports 37 Dissenting Opinion of Anzilloti, ibid, p 383.
1996, p 803, para 23; Kasikili/Sedudu Island (BotswanaiNamibia), Judgment, ICJ Reports 1999, p 1045, para 18. 38 Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Reports 1999, p 1045, para 49.
188 MALGOSIA FITZMAURICE THE PRACTICAL WORKING OF THE LAW OF TREATIES

what comprises subsequent practice and did not take account of unilateral acts of the The Court concluded that a unilateral application was legitimate. Judge Schwebel
previous authorities of Botswana on the grounds that these were for internal purposes criticized this, arguing that the Court's interpretation did not reflect· the common
only and unknown to the Namibian authorities. The Court also considered the intention of the parties. He argued that the Court's view that the preparatory work
relevance of an alleged 'subsequent agreement' between the previous authorities in did not provide conclusive supplementary elements was unconvincing, observing
Namibia and Botswana as only amounting to 'collaboration' over matters concerning that: 42
the border and not having any effect on the interpretation of the treaty in question. 39