wind I # “BY | 132 HUGH THIRLWAY Commission, whose methods of work allow for considerable input from governments, ‘which is taken into account in the drafting of texts presented for incorporation in Finally, it may be tha, after the convention has come into force, States other than the Parties to it find it convenient to apply the convention rules in their mutual relations, and this may constitute State practice leading to the development of a customary rule, The contention that this had occurred in relation to Article 6 ofthe 1958 Geneva Convention was regarded by the Court as involving: Lrsating that Article as a norm-creating provision which has constituted the foundation of, or has genetated a rule which, while only conventional or contractual in is origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio. Juris, so as to have become binding even for countries which have never, and do not, become Parties tothe Convention, There is no doubt that this process isa perfectly possible one and docs from time to time occur it constitutes indeed one ofthe recognized methods by which new rules of customary international law may be formed. At the same time this resul is not lightly to be regarded as having been attained. ‘The Court pointed out thatthe rule in question would have to be ‘of a fundamentally nnorm-creating character such as could be regarded as forming the basis ofa general rule oF Jaw’ not every rule which finds a place in a multilateral convention is appropriate for Sseneral adoption. For a suitable rule to pass into customary law, ‘it might be that, even without the passage of any considerable period of time, a very widespread and represents. {ive participation in the convention might suffice of itself’, and it was in this respect that the Court emphasized, as already mentioned, the role of ‘States whose interests were specially affected’ What the Court regarded as ‘indispensable’ was that. within the period in question, short though it might be, tate practice, including that of States whose interests are specially affected, should have been extensive and virtually uniform in the sense of the provision invoked:—and should moreover have occurred in such @ May 95 t0 show 2 general recognition that a rule of law ot legal obligation is involved,* B. THE HIERARCHY OF SOURCES Jn general when there exists more than one rule that is prima facie applicable to a given situation, the choice between them can be made by the application of one or other of two Principles: lex specials derogat generali and lex posterior derogatprioré that is to say, the special rule overrides the general rule and the later rule overrides the earlier rule. However, ‘hen these principles are applied to the acts ofa legislator, they may be regarded as waye of interpreting legate intento: normale ncn o moines ed aan older law, and legislation providing, egime is intended to constitute an exception to any general regime™There is normally no difficulty in applying these‘THE SOURCES OF INTERNATIONAL LAW 133 principles to treaties, which represent the shared intentions of the partes,” but itis less clear that they can operat in relation to custom, Since, as explained above, it was the intention of the draftsmen of the PCI} Statute that the general principles of law’ should provide «fall-back source of law in the event that no treaty and no customary rule could be found to apply to a given situation, iis clear that to this extent there exists « hierarchy of sources. Ifa treaty rule or a customary rule exists, then there is no possibility of appealing to the general principles of law to exclude or ‘modify it.The text of Article a ywever indicate whether there was a hierarchy of application between custom and Wat; a proposed provision, indicating speccally— “hat the Court should apply the sources named in the order in which they were mentioned in that Article, was rejected during the drafting Ie will normally be the case that a sreaty is lex specilis and as such prevails over any inconsistent rules of customary law, or at least such as existed atthe time of the conclusion ofthe treaty. I isto be presumed that the partes to the treaty were aware ofthe existing customary rule, and decided to provide otherwise in their treaty precisely in order to exclude the customary rule. More difficult is the question whether a custom which arises subsequently to the conclusion of a treaty, and which might be regarded as lex specialisin relation to the regime established by the treaty, has the effect of overriding the treaty, or such part oft asi inconsistent with the customary rule, as between the parties. Ifthe new ‘customary norm is one accepted 1en according to the Vienna Convention oom the Law of Treaties, not merely is AHF Consistent provision in the reaty overridden, but ‘any existing treaty which is in conflict with that norm becomes void and terminates’ (Article 64). “Assuming however that the new norm is not ofthat nature, what isthe position? IF the partes to the treaty have themselves contributed to the development of the new custom ary rule by acting inconsistently with the treaty, or have adopted the customary practice in their relations after the rule has become established, then the situation may be analysed as in effect a modification (or even perhaps an interpretation) ofthe treaty. There is a well- settled practice of the Security Council, treating as valid a resolution adopted over the abstention of one of the permanent members, despite the requirement in Article 27(3) of the Charter for the ‘concurring votes’ of the permanent members. This practice was upheld by the Court in the Nambia case, in terms which left it obscure whether this was ‘an agreed ‘interpretation’ of the Article, or an agreed amendment; no reference was made to any subsequently developed rule of custom. ‘The real problem arises when none - pated inthe new customary rule. Article 41 of the Vienna Convention on the Law of ‘Freaies lays down a dened procedure for amendment of a multilateral treaty between certain of the parties only, thereby excluding a tact amendment of this kind; but itis not CErtain that eastomay aw sso exignt At all evens, Qe Tal qustop%s whether the new customary rule can be asserted against the PAIGE To the treaty that have not {© Anticle 30 ofthe Vienna Convention on the Law of Teatis, dealing with “Application of successive treaties relating to the sme subject-matter in efet applies fst he eriterion ofthe acta intention of the vice ard then 2 comiination of he twn ninco here discussed.| | | 134 HUGH THIRLWaY Participated in it, or assented to it, One view of the matter is that the very existence of the distinction betweesCjus cogehoand jus diposininam ymplies that a newly developed customary rule which isnot jus cogens does not affect the operation of pre-existing treaty: but the point must probably be regarded as unsettled, => IV. IS THE ENUMERATION OF ARTICLE 38 EXHAUSTIVE? POSSIBLE NEW OR ADDITIONAL SOURCES A. HOW CAN NEW SOURCES COME INTO EXISTENCE? On the basis thatthe enumeration of sources of international law indicated in Article 38 of the PCI) Statute was complete and exhaustive at the time ofits drafting, there is a certain dificlty in postulating that @ new source has come into existence subsequentiy, The numeration of sources is, a8 we have seen, a secondary rule of law, one of those that lays down how the primary rules, those that directly govern conduct, may be created or modified. As was explained in the Introduction to this chapter, the quest for what might be called ‘tertiary’ rule, one that lays down how the secondary rules might be created or modified, for a ‘fundamental norm’ underlying all international law has proved a vain one. We must, it seems, be content to say that international society has established certain secondary rules that correspond to the nature ofthat society and are universally accepted. oes it then follow that if the nature of international society changes, there may be a ‘modification of the secondary rule, that is to say ofthe list of recognized sources of law! It is certain thatthe nature of international society has changed radically since the Treaty of ‘Westphalia, and indeed even since the date of the preparation of the PCI] Statute in Particular in view ofthe great increase in number of sovereign States, and in the complex. of their relations with each other. One cannot exclude a priori the possibility of a ‘modification of the secondary rules. ‘But by what process is such modification to occur? In the absence of what we have called tertiary rules, itis difficult to imagine any process that does not in effect involve invoking a secondary rule to effect a modification of a secondary rule. For example, let us ‘Suppose that the resolutions of the UN General Assembly have become a new source of intemational law. How would one set about proving that this was so? Presumably, by showing that in their relations with each other States asserted rules stated in such resolie, tions, and accepted such rules as binding when asserted against them, This would however amount to saying that an international custom had arisen whereby such resolutions cre. ated binding international law. It would follow, either that a new source (resolutions) had arisen through the operation of an existing source (custom); or, perhaps more accurately, that the scape of custom as a source had become widened to include resolutions, On the latter view, a resolution would be (as itis now) a material source of law, but the formal source would be custom.