British Contributions to International Law, 1915-2015 (Set): An Anthology Set 9789004386242, 9004386246

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British Contributions to International Law, 1915–2015 Volume 1

Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

British Contributions to International Law, 1915–2015 An Anthology Set volume 1

Edited by

Jill Barrett Jean-Pierre Gauci

leiden | boston

Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

Library of Congress Cataloging-in-Publication Data Names: Barrett, Jill M., 1958- editor. | Gauci, Jean-Pierre, editor. Title: British contributions to international law, 1915-2015 : an anthology set / edited by Jill Barrett, Jean-Pierre Gauci. Description: Leiden ; Boston : Brill Nijhoff, 2021. Identifiers: LCCN 2019048117 (print) | LCCN 2019048118 (ebook) | ISBN 9789004284180 (v. 1 ; hardback) | ISBN 9789004379527 (v. 2 ; hardback) | ISBN 9789004379541 (v. 3 ; hardback) | ISBN 9789004379565 (v. 4 ; hardback) | ISBN 9789004386235 (hardback) | ISBN 9789004386242 (ebook edition) Subjects: LCSH: International law--Great Britain. | International law--British influences. | International law--History--20th century. Classification: LCC KZ1242 .B75 2020 (print) | LCC KZ1242 (ebook) | DDC 341--dc23 LC record available at https://lccn.loc.gov/2019048117 LC ebook record available at https://lccn.loc.gov/2019048118

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISBN 978-90-04-28418-0 (hardback, vol. 1) ISBN 978-90-04-37952-7 (hardback, vol. 2) ISBN 978-90-04-37954-1 (hardback, vol. 3) ISBN 978-90-04-37956-5 (hardback, vol. 4) ISBN 978-90-04-38623-5 (hardback, set) ISBN 978-90-04-38624-2 (e-book) Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

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Contents volume 1 Foreword  XIX British Institute of International and Comparative Law  XXI Editors’ Biographies  XXIII General Introduction  XXV

PART 1 Nature of International Law 1

Lassa Oppenheim, International Law: A Treatise, 1920  3 Martin Clark

2

James Brierly, The Law of Nations: An Introduction to the International Law of Peace, 1928  27 Andrew Clapham

3

Hersch Lauterpacht, The Function of Law in the International Community, 1933  51 Nancy Simons

4

Georg Schwarzenberger, The Rule of Law and the Disintegration of the International Society, 1939  67 Andraž Zidar

5

Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, 1957  93 Therese O’Donnell

6

Herbert L.A. Hart, The Concept of Law, 1961  107 Colin Warbrick

7

Norman S. Marsh, The Rule of Law as a Supra-National Concept, 1961  131 Marine Corhay

8

Malcolm Shaw, International Law, 1977–2014  165 Richard Mackenzie-Gray Scott Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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9

Arthur Watts, The International Rule of Law, 1993  207 Robert McCorquodale

10

Rosalyn Higgins, Problems and Process: International Law and How We Use It, 1995  241 Philippa Webb

11

Rosalyn Higgins, Time and the Law: International Perspectives on an Old Problem, 1997  261 Ben Juratowitch

12

Philip Allott, Eunomia: New Order for a New World, 2001  285 Ralph Wilde

13

Dino Kritsiotis, Imagining the International Community, 2002  311 Peter Quayle

14

Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules, 2005  353 Elizabeth Wilmshurst

15

Vaughan Lowe, International Law, 2007  375 Jill Barrett

PART 2 Sources of International Law 16

Arnold D. McNair, The Functions and Differing Legal Character of Treaties, 1930  413 Jill Barrett

17

Judicial Committee of the Privy Council, Judgment, In re Piracy Jure Gentium, 1934  433 Claire Smith

18

Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1953  447 Laura Rees-Evans

19

Gerald Fitzmaurice, Some Problems Regarding the Formal Sources of International Law, 1958  475 Michael Wood Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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20 Humphrey Waldock, First Report on The Law of Treaties, 1962  497 Antonios Tzanakopoulos 21

Judge Gerald Fitzmaurice, Separate Opinion, Temple of Preah Vihear, 1962  507 Brigid McCarthy

22

Clive Parry, The Sources and Evidences of International Law, 1965  523 Maurice Mendelson

23

Clive Parry, The Consolidated Treaty Series (1648–1918), 1969  551 Michael Wood

24 Michael Akehurst, Custom as a Source of International Law, 1976  559 Fanni Andristyak 25

Robert Y. Jennings, What is International Law and How Do We Tell When We See It?, 1983  629 Zoe Hough

26 Ian Sinclair, The Vienna Convention on the Law of Treaties, 1984  657 Iain Macleod 27

Judge Robert Y. Jennings, Dissenting Opinion, Military and Paramilitary Activities in and against Nicaragua, 1986  681 Mubarak Waseem

28 Anthony Aust, The Theory and Practice of Informal International Instruments, 1986   703 Jill Barrett 29 Christine Chinkin, The Challenge of Soft Law: Development and Change in International Law, 1989  733 Brigid McCarthy 30

Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 1994  753 Richard Mackenzie-Gray Scott Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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31

Maurice Mendelson, The Formation of Customary International Law, 1998  771 Eirik Bjorge

32

Alan Boyle, Some Reflections on the Relationship of Treaties and Soft Law, 1999  819 Paata Simsive

33

Robert Y. Jennings, Reflections on the Subsidiary Means for the Determination of Rules of Law, 2003  837 Maurice Mendelson

34 Christine Bell, Peace Agreements: Their Nature and Legal Status, 2006   859 Hae Jin Choo 35 David H. Anderson, The Role of the International Lawyer in the Negotiation of Treaties, 2007  921 Arianne Griffith

volume 2 Part 2 Sources of International Law (cont.) 36 Michael Wood, First Report on Formation and Evidence of Customary International Law, 2013  941 Jill Barrett 37

Hugh Thirlway, The Sources of International Law, 2014  967 Charles Shwenn

38 Richard K. Gardiner, Treaty Interpretation, 2015  1001 Jill Barrett

PART 3 Subjects of International Law 39 Arnold D. McNair, Equality in International Law, 1927  1037 Gerry Simpson Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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40 Ian Brownlie, Principles of Public International Law, 1973  1059 James Crawford 41

Her Majesty’s Government, Statements on the Recognition of Governments, 1980 and 2011  1099 Vaughan Lowe

42 Colin Warbrick, Recognition of States, 1992  1105 Nikolaos Pavlopoulos 43 James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, 2002  1121 Andraž Zidar 44 Robert McCorquodale, An Inclusive Legal System, 2004  1153 Philip Allott 45 James Crawford, The Creation of States in International Law, 2007  1191 Robert McCorquodale

PART 4 Sovereignty, Territory, Jurisdiction and Space 46 Robert Y. Jennings, The Acquisition of Territory in International Law, 1963  1227 Michael Wood 47 Vaughan Lowe, The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution, 1985  1247 Patricia Vella de Fremeux 48 Arthur Watts, International Law and the Antarctic Treaty System, 1992  1273 Jill Barrett 49 Bin Cheng, Studies in International Space Law, 1997  1299 Sa’id Mosteshar 50

Ralph Wilde, International Territorial Administration, 2008  1331 Paata Simsive Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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PART 5 State Immunities 51

Ernst Satow, A Guide to Diplomatic Practice, 1917  1367 Lady-Gené Waszkewitz

52

Judicial Committee of the Privy Council, Judgment, Chung Chi Cheung v the King, 1939  1377 Jedsarit Sahussarungsi

53

Lord Alfred T. Denning, Judgment, Trendtex Trading Corporation v Central Bank of Nigeria, 1977  1389 Hazel Fox

54 State Immunity Act 1978 (UK) and Hazel Fox, The Law of State Immunity, 2002  1411 Philippa Webb 55

Lord Richard Wilberforce, Judgment, Buttes Gas and Oil Company v Hammer, 1982  1453 Hazel Fox

56 House of Lords, Judgment, I Congreso del Partido, 1982  1483 Hazel Fox 57

Eileen Denza, Diplomatic Law, 1998  1527 Kate Jones

58 House of Lords, Judgment, R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (Amnesty International Intervening) (No 3), 1999  1539 Philippa Webb

PART 6 International Organisations 59 Walter Phillimore, The Phillimore Plan, 20 March 1918 (Draft Convention), 1918  1547 Gerry Simpson

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60 Lassa Oppenheim and Thomas Lawrence, Two Lectures on The League of Nations, 1919  1553 Martin Clark 61

Her Majesty’s Government, The Atlantic Charter (First Draft), 1941  1587 Andraž Zidar

62 Wilfred Jenks, Some Constitutional Problems of International Organizations, 1945  1591 Andraž Zidar 63 Winston S. Churchill, Speech on the Council of Europe, 1949  1623 Alistair McGlone 64 Elihu Lauterpacht, The Legal Effect of Illegal Acts of International Organisations, 1965  1629 Peter Quayle 65 Dapo Akande, The International Court of Justice and the Security Council: Is there Room for Judicial Control of the Decisions of the Political Organs of the United Nations?, 1997  1667 Sotirios-Ioannis Lekkas 66 Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers, 2005  1707 Peter Quayle 67 Thérèse O’Donnell, Naming and Shaming: The Sorry Tale of Security Council Resolution 1530 (2004), 2006  1715 Sotirios-Ioannis Lekkas

PART 7 International Dispute Settlement 68 Walter Phillimore, Scheme for the Permanent Court of International Justice, 1920  1749 Martin Clark 69 Gillian M. White, The Use of Experts by International Tribunals, 1965  1759 David H. Anderson Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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70 John G. Merrills, International Dispute Settlement, 1984  1773 Mubarak Waseem 71

Judge Elihu Lauterpacht, The Position of the Ad Hoc Judge, 1993  1795 Rosalyn Higgins

72

Anthony Cassese, Interview with Sir Robert Jennings, 1994  1797 Rosalyn Higgins

73

Judge Rosalyn Higgins, Separate Opinion, Oil Platforms Case, 1996  1851 Antonios Tzanakopoulos

74 Rosalyn Higgins, Ethics and International Law, 2009  1869 Arman Sarvarian 75

Philippa Webb, International Judicial Integration and Fragmentation, 2013  1887 Fanni Andristyak

volume 3 PART 8 Human Rights 76 Hartley Shawcross, Opening Speech at Nuremburg, 1945  1921 Elizabeth Wilmshurst 77

Judge Arnold D. McNair, Speech at the Formal Inauguration of the European Court of Human Rights, 1959  1977 Merris Amos

78

Peter Benenson, The Forgotten Prisoners, 1961  1981 Jean-Pierre Gauci

79

David J. Harris, The European Social Charter, 1964  1991 Kristin Hausler

80 James E.S. Fawcett, Human Rights: Our Country in Europe, 1983  2005 Merris Amos Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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81

Guy S. Goodwin-Gill, The Refugee in International Law, 1983  2019 Violeta Moreno-Lax

82 Nigel Rodley, The Treatment of Prisoners under International Law, 1987  2043 Emilie Fitzsimons 83

Patrick Thornberry, International Law and the Rights of Minorities, 1991  2067 Martha Llonch

84 United Nations Human Rights Committee (Rosalyn Higgins), General Comment 24, 1994  2083 Robert McCorquodale 85 Robert McCorquodale, Self-determination: A Human Rights Approach, 1994  2095 Fanni Andristyak 86 Christine Chinkin, Reservations and Objections to the Convention on the Elimination of All Forms of Discrimination against Women, 1996  2129 Richard Mackenzie-Gray Scott 87 Malcolm D. Evans, Religion, Law and Human Rights: Locating the Debate, 2000  2151 Martha Llonch 88 Susan Marks, Exploitation as an International Legal Concept, 2004  2177 Martin Clark 89 Lord Thomas Bingham, Judgment, Regina v Immigration Officer at Prague Airport and Another, Ex Parte European Roma Rights Centre and Others, 2004  2205 Domenico Vallario 90 Brenda Hale, Beanstalk or Living Instrument? How Tall Can the European Convention on Human Rights Grow?, 2011  2237 Jean-Pierre Gauci

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PART 9 Use of Force 91

Humphrey Waldock, The Regulation of the Use of Force by Individual States in International Law, 1952  2257 Michael Wood

92 Derek K. Bowett, Self-Defence in International Law, 1958  2283 Nancy Simons 93

Margaret Thatcher, Statements to the House of Commons on ‘Falkland Islands’, 1982  2313 Jill Barrett

94 Her Majesty’s Government, Statements on Humanitarian Intervention, 1991, 1998, 1999 and 2013  2329 Shehzad Charania 95 Christopher Greenwood, The Legality of Using Force Against Iraq, 2002  2343 Antonios Tzanakopoulos 96 Tony Blair, Doctrine of the International Community and Sedgefield Speech (and Responses by Teachers of International Law), 1999, 2003–4   2355 Therese O’Donnell 97 Ministry of Defence, The Manual of the Law of Armed Conflict, 2004  2391 Charles Garraway 98 Nigel D. White, Self-Defence, Security Council Authority and Iraq, 2005  2401 Daniel Wand 99 Elizabeth Wilmshurst, The Chatham House Principles of International Law on the Use of Force in Self-Defence, 2005  2433 Charles Garraway 100 Christopher Greenwood, Essays on War in International Law, 2006  2447 Charles Garraway Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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101 Ralph Zacklin, The United Nations Secretariat and the Use of Force in a Unipolar World: Power v. Principle, 2010  2475 Ines Pierre de la Briere 102 Daniel Bethlehem, Self Defence against Non-State Actors (and Response by E Wilmshurst and M Wood), 2012   2489 Daniel Wand 103 Christine Gray, The Use of Force and the International Legal Order, 2014  2519 Michael Wood

PART 10 The Law of the Sea 104 Cecil J.B. Hurst, Whose is the Bed of the Sea?, 1923–1924  2563 David H. Anderson 105 Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, 1959  2573 David H. Anderson 106 Joyce A.C. Gutteridge, The 1958 Geneva Convention on the Continental Shelf, 1959  2625 David H. Anderson 107 Daniel P. O’ Connell, The International Law of the Sea, 1982  2651 David H. Anderson 108 Geoffrey Marston, The Incorporation of Continental Shelf Rights into United Kingdom Law, 1996  2685 David H. Anderson 109 Robin R. Churchill, The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention, 2005  2731 David H. Anderson 110 David H. Anderson, Modern Law of the Sea Selected Essays, 2008  2787 Jill Barrett

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volume 4 PART 11 International Environmental and Energy Law 111

Patricia W. Birnie, International Legal Issues in the Management and Protection of the Whale: A Review of Four Decades of Experience, 1989  2841 Jill Barrett

112 Patrick Széll, The Development of Multilateral Mechanisms for Monitoring Compliance, 1995  2879 Alistair McGlone 113 Farhana Yamin and Joanna Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures, 2004  2897 Jill Barrett 114 Catherine Redgwell, International Regulation of Energy Activities, 2007  2927 Danae Azaria 115 Patricia W. Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment, 2009  2973 Danae Azaria

PART 12 International Law and the United Kingdom 116 Her Majesty’s Government and the UK Parliament, The Ponsonby Rule: From Convention to Statute, 1924 to 2010  3027 Jill Barrett 117 William Eric Beckett, Report by the Agent on the Corfu Case, 1949  3043 Yasuo Kita 118 International Court of Justice, Judgment, Corfu Channel Case, 1949  3059 Naomi Burke Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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119 Kenneth Simmonds, Some English Precursors of Hugo Grotius, 1957  3095 David H. Anderson 120 James E. Fawcett, The British Commonwealth in International Law, 1963  3109 Brigid McCarthy 121 Kenneth Roberts-Wray, The Commonwealth and Colonial Law, 1966  3131 Zoe Hough 122 Francis A. Mann, Foreign Affairs in English Courts, 1986  3149 Paola Iacovino 123 Roger O’Keefe, Customary International Crimes in English Courts, 2002  3173 Lady-Gené Waszkewitz 124 Shaheed Fatima, Using International Law in Domestic Courts, 2003  3225 Jedsarit Sahussarungsi 125 Michael Wood, The United Kingdom’s Acceptance of the Compulsory Jurisdiction of the International Court of Justice, 2006  3261 Rosalyn Higgins 126 Thomas Bingham, Widening Horizons: The Influence of Comparative Law and International Law on Domestic Law, 2010  3285 Robert Volterra 127 Lord Jonathan Mance, Judgment, HM Treasury v Ahmed, 2010  3305 Zoe Hough 128 Jill Barrett, The United Kingdom and Parliamentary Scrutiny of Treaties, 2011  3337 Kasey McCall-Smith 129 Ian Hendry and Susan Dickson, British Overseas Territories Law, 2011  3367 Jill Barrett Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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130 Franklin Berman, Treaty-Making within the British Commonwealth, 2015  3391 Zoe Hough

PART 13 Teaching and Theory in International Law 131 Henry Goudy et al, From Grotius Society to BIICL and ICLQ, 1915, 1952, 1956 and 2012  3423 Robert McCorquodale 132 David H.N. Johnson, The English Tradition in International Law, 1962  3477 Ines Pierre de la Briere 133 Colin Warbrick and Anthony Carty, Essays on Theory and International Law, 1991  3509 Sahib Singh 134 Martti Koskenniemi, Lauterpacht: The Victorian Tradition in International Law, 1997  3553 Martin Clark 135 Gerry Simpson, On the Magic Mountain: Teaching Public International Law, 1999  3613 Jean-Pierre Gauci

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Foreword I am delighted that the British Institute of International and Comparative Law (BIICL) and Brill-Nijhoff have collaborated to produce a series of books about British contributions and influences on international law. This was an idea first put to me by Alan Stephens, formerly of Kluwer-Nijhoff, as a means to celebrate the 100th anniversary of the founding of the Grotius Society in London (which became BIICL) and I was pleased to support this innovative project. Why is it that there have, over the years and decades, been such important contributions to international law by British writers? Of course, there have been great role models, towering figures in our subject. International law has never, as it has at various periods elsewhere, been marginalised in teaching in our universities. When I was teaching at the LSE, I discovered that not only were the students expected to attend an international law course during their years in the Law School, but that it was compulsory, for the whole of the academic year, for international relations students. We have over the years had, around the country, exceptional teachers in the universities, themselves contributing to the literature and also inspiring students of law. In addition, we have the British Year Book of International Law and BIICL’s International and Comparative Law Quarterly—very different journals whose reputations have lasted over the years, and have offered publishing goals for young scholars. I do not ignore the newer opportunities, such as student journals, blogs and so forth. I am quite sure that exchanges of views between lawyers on complex problems flourish as never before. This project has, of course, made me ponder if there is any such thing as a “British Approach,” to international law. I think there is a tradition of the legal history of international law, and—while the contemporary and hot topics of course attract attention—a serious interest in other, ongoing but less fashionable questions of international law. Breadth and originality of scholarship may properly be regarded as British characteristics. So far as approaches to international law are concerned, these have changed over time. In the 1970s British international law was very rule-based: the whys, hows and wherefores were regarded as evidence of being tainted by American influences. Yet the internet and travel between countries has happily put an end to rigidity as a national characteristic. French, German, American and British authors today feel very comfortable intellectually with each other. Can we usefully speculate as to where British scholarship is likely to go in the future? What I see is that British writers have always taken an early lead on thoughtful and serious writings on the “hot topics.” But what will these be? If

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we look back we see great changes. For example: human rights—though it was only with President Carter that governments began to take them seriously; climate charge—what was divisive, and indeed doubted, we now see as a serious subject for legal study; and international criminal law—with its establishment of international courts and tribunals, including the International Criminal Court—this topic in 30 years has gone from zero to seemingly all-consuming for young writers. I am also very pleased to see that the theory of international law is far from dead. So new topics will come, and I know that British writers will rise to the challenge, as will its leading text books. It seems very likely that the valuable underpinnings of the classical, essential demands of international law will continue as British contributions, as will engagement in contemporary issues. These books are testament to the breadth and strength of British contributions to international law, as well as its on-going influence. Dame Rosalyn Higgins President, British Institute of International and Comparative Law (2010–2015)

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British Institute of International and Comparative Law The British Institute of International and Comparative Law (BIICL) is a leading independent legal research organisation with charitable status, unaffiliated to any university. It is the only body of its kind in the UK and one of very few in the world. It was established in 1958 by the merging of the Society of Comparative Legislation (founded in 1894) and the Grotius Society (founded in 1915). It is based in London with a dedicated team of over 40 staff. BIICL brings together legal practitioners in private and public practice, in-house counsel, scholars and students, as members, participants and contributors. It has developed a strong global network in international and comparative law and the rule of law. BIICL undertakes five key activities: applied legal research; events on contemporary issues; capacity-building training; publications (including our major journal, International and Comparative Law Quarterly) and membership services. We conduct research around the world across the broad range of public international law, private international law, comparative law, competition law, European law, international investment law and the rule of law. Our focus is on applied research, based on strong conceptual foundations, which is practical, offers examples of good practice, and makes recommendations for policy and legal actions. Our activities often cross the traditional boundaries of law, so as to engage with contemporary national, regional and international issues, and we consistently have an impact on law and policy worldwide. For further information about BIICL please visit our website: www.biicl.org.

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Editors’ Biographies Jill Barrett is Visiting Reader in the School of Law, Queen Mary University of London, where she teaches public international law to postgraduate students. She is coconvenor of a new LLM course on International Law and Governance of the Polar Regions. Her research interests are mainly in the law and practice of treaties, the polar regions and law of the sea. She is a barrister and Associate Member of 6 Pump Court Chambers, London. She also works as an independent international law consultant, providing advice and training to governments, international organisations and NGOs. She is currently Research Consultant to the Centre for International Law, National University of Singapore. She was Visiting Professor at Kobe University, Japan, and Arthur Watts Senior Research Fellow in Public International Law at the British Institute of International and Comparative Law. Jill was a legal adviser in the UK’s Foreign and Commonwealth Office from 1989 to 2010, including serving at the UK Mission to the United Nations in New York as First Secretary (Legal) and in London as Legal Counsellor. She represented the UK in many international negotiations and was Deputy Agent for the UK in the Mox Plant cases. Previously, she was Lecturer in Law, specialising in the People’s Republic of China, at SOAS, London University and Lecturer in Law at Durham University. Jean-Pierre Gauci is Arthur Watts Senior Research Fellow in Public International Law at the British Institute of International and Comparative Law and director of The People for Change Foundation, a Malta based think tank. Over the years he has consulted to various ­national and international governmental and non-governmental organisations on various aspects of migration and refugee law and policy. He is also a visiting lecturer at the University of Malta where he lectures international migration law and human rights. He has published extensively on various aspects of international migration law.

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General Introduction Jill Barrett and Jean-Pierre Gauci British contributions to international law over the past century may be considered in a number of different ways. Actions of the British State contribute directly and indirectly to the formation of treaties or to customary international law. Individuals play a decisive role in the events that make international law, while others shape awareness of those events and perceptions of the law worldwide by their insightful writings. Accordingly, we have traced British contributions by a range of institutions and people – from British courts to individual judges and barristers in international courts, and from British academics and NGOs to governmental bodies. Contributions can be found in judgments, speeches, Acts of Parliament and newspaper articles as well as academic articles and books. This anthology aims to bring together some of the most notable British contributions to international law during the century following the founding of the Grotius Society, and to present them through the original documentary sources. Each extract or group of extracts is preceded by a short comment, which provides the context and explains its significance. The Grotius Society was founded in London in 1915 to provide a space for those interested in international law to discuss its application to current issues arising from World War I. In 1959 it merged with the Society of Comparative Legislation to form the British Institute of International and Comparative Law (BIICL). The Society, and the Institute in its stead, continues to provide space for ideas to be shared and legal issues to be discussed. The founding of the Society was a response to conditions created by the war, and indeed issues concerning use of force took up much of the attention of the Society in the early phase of its existence. Yet British contributions to international law can be found across a wide range of areas of international law as the breadth of contributions in this anthology clearly reflect. This anthology is one of three volumes produced by BIICL, with the s­ upport of brill, to commemorate this centenary. Another volume discusses British influences on international law from a contemporary perspective. It brings together a collection of new essays by leading and emerging experts in various fields of international law to discuss the ways in which British influences have made their mark. And another volume looks at the contemporary role of legal advisers in international law and how they impact on its development.

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Before delving into the enormous range of materials from which to select the most apposite extracts for this anthology, the editorial team had first to contend with a number of fundamental questions. Foremost amongst these are defining the notion of what is “British” and what amounts to a “contribution” to international law. Certain categories of contributors are self-evidently British: the UK’s State institutions including the government, parliament and the courts; other institutions such as universities and legal professional bodies in each of the UK’s jurisdictions (England and Wales, Scotland and Northern Ireland) and legal publications such as the International and Comparative Law Quarterly (ICLQ) and the British Yearbook of International Law (BYBIL). Other institutions, albeit based in the UK, are less easy to categorise in terms of national identity. Clearly one could not consider an international organisation such as the International Maritime Organization, no matter how many years it has been located in London, to be “British” as this would be inconsistent with its status in international law; but what of UK-based non-governmental organisations (NGOs) that engage with international law? When one poses the question whether the scope of one of these organisations is international, its UK location being merely incidental, or whether its UK origins are fundamental to its existence or character, a variety of views emerge. Amnesty International is an example of one that could be viewed in either sense; its activities are international and could be carried out elsewhere. Nevertheless we decided that, as the circumstances of its founding owe a particular connection to British people and British institutions, its work could justifiably be considered as a British contribution for the purposes of this anthology. Even BIICL itself defies clear categorisation; if one looks at the international character of its remit, activities and personnel its location could be considered incidental, but a deeper look at its history and governance reveals uniquely British connections, which make its work a suitable subject for this volume. Where individuals are concerned, there are, likewise, those who obviously qualify as “British” but many others where there is scope for debate. People naturally can have important connections with more than one country over a lifetime, or even simultaneously. Should we be inclusive or take a more restricted view? Should contributions by all British nationals be considered, even those who never lived in the UK? What of those who are (or were) not British by nationality, but whose contributions arose during long-term residence here or by virtue of their long-established connection with a British institution? Our initial preference was to take as inclusive a view as possible, especially when faced with examples of outstanding writings by academics of other nationalities at British universities. It was tempting also to consider as eligible

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all articles published in undeniably British journals such as the ICLQ or the BYBIL, on the basis that the publishing of the journal is a British contribution. However the view that prevailed was that to “claim” all such works as “British” would be too expansive, both in principle and in practical terms. Accordingly, we decided that for a piece to be considered as “British” by virtue of its author, the criteria are British nationality or a long-term and substantial connection with a British institution; excluding mere residence or academic affiliation. The concept of British nationality and British institutions has of course contracted in geographical scope during the course of the past century, and so we are guided by its meaning as it was at the time of the relevant extract. These debates about what “Britishness” means in the context of this anthology go to the heart of the purpose of this project. What is the point of looking at specifically British contributions to an international product? Would not the best contributions so reflect the international character of international law that they would not betray their national origins? Why should the contributions of individuals share any particular common features merely because those individuals happen to hold the same nationality or be connected to the same nation when they published their writing? It was difficult to put a firm finger on the characteristics we were looking for in advance of studying the original materials, yet we had to start with some notion of what they might be in order to draw parameters around the vast pool of potentially relevant materials. It seemed reasonable to assume that, if British contributions to international law have any distinguishing characteristics, they might be a product of British legal traditions and legal education, British governmental and political culture, academic culture, society and civic culture in a broader sense perhaps, or any amalgam of these. It is well known that the Common Law legal system originated in England centuries ago, was exported to other countries which were then part of the British Empire, and has thus influenced the development of domestic legal systems around the world. What is less well known is how far, and in what ways, the Common Law and its traditions have influenced the development of international law, through the actions of its institutions and of those educated, teaching and practising within it. Another fundamental question for this project was to define a “contribution to international law”. Our aim has been to consider a diverse range of primary and secondary sources. In some cases the document itself is a direct contribution to international law. The main sources of international law are treaties and customary international law. Treaties are, of course, a product of negotiation between two or more parties, so the finished product does not normally reveal the separate input of each. Documents which show that the text of an

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important treaty was drafted by a UK official, or strongly influenced by a UK initiative, are direct evidence of that specific contribution. State practice contributes to the formation and evolution of customary international law. While new international law will not be recognised as such until there is convergence in the practice of States generally, it may be acknowledged with hindsight that the pioneering action of one State or a few States led the way. Notable examples of UK practice in this category include Acts of Parliament, government statements and judicial decisions, whose effects can be seen in later developments in international law. Some of these texts are presented here as primary sources of direct British contributions to the making of international law. Secondary sources have been selected for a variety of reasons. A small number of academic writings are regarded worldwide as seminal works which have had a lasting influence on thinking about international law and, in some cases, have even inspired new developments; in other words, it is the piece itself which is the British contribution. Some individuals have made notable contributions to international law through various kinds of service, for example as public servants, judges, practising lawyers or public interest campaigners; and to highlight their overall contributions we have selected a documentary sample of their work. In these instances, the main contribution to international law is the person and the role(s) they have played, with the selected extract serving an illustrative purpose. Some writings merit selection because they document and explain an important aspect of British practice of international law; in other words, because they tell us about an important British contribution. Mindful that people other than lawyers, politicians and diplomats may also contribute to international law, we have looked beyond official documents and legal literature to other kinds of sources, such as letters to British newspapers on controversial international topics. Their inclusion is justified not by the intrinsic quality or content of the text, but because of the broad impact they have had on developments in international law and public awareness of it. The extracts thus vary in function – from being, illustrating or commenting on a British contribution to international law. Some combine several of these. A contribution is anything that has left a mark on the field. The contribution may lie in the text itself, or in developments which flowed from it, or in preceding actions and events which the text explains. Our extensive research yielded hundreds of relevant texts with one or more reasons for considering its inclusion in this anthology. The process of sifting them raised further fundamental questions about the nature of the exercise. Should more importance be placed on the intrinsic quality of the piece or on the impact it had on international law? Indeed how does one measure impact in a context where so many factors influence the way the law develops and is interpreted? If impact or influence

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of the piece itself were a necessary precondition for its inclusion, this would exclude consideration of any unpublished or little known material, such as documents located in the UK’s National Archives. Yet such documents might contain illuminating insights into past British government actions that could be considered to have contributed to international law. Another factor was the inverse relationship between the accessibility of a piece and its impact. If a very popular work is already easily available, this may have contributed to its high ratings and wide influence, yet this would militate against its inclusion here. Conversely, the publication here of an outstanding piece that is difficult to find, and consequently less influential than it deserves to be, might be of greater interest to readers. We therefore decided to take a broad and flexible approach to the kind of impact we were looking for, and to whether the impact was related to the piece itself or to its subject-matter. Perhaps the most difficult of all was to decide whether the notion of a “contribution” necessarily means a positive one, or could it include something which had a negative effect or is negatively perceived? On one view, only positive contributions should be considered, the purpose of this anthology being to showcase the very best. From this perspective “positivity” should be judged by whether the action (or output) resulted in an improvement to international law. However, such a criterion proved difficult to apply, given the differing forms that British contributions take and their relationship to the corresponding text. Naturally, where we were considering texts for inclusion on the basis of their intrinsic merit, for example as seminal scholarly writing, our aim was to select the very “best”, in so far as that can be objectively judged. Yet when we were considering a text on the basis of the extent of its impact on international law, or the impact of the developments which the text brings to light, “positivity” as a criterion seemed both too restrictive and too subjective. Looking back over one hundred years, especially the first fifty, there were many British influences on international law that shaped its development in ways that were considered positive at the time, but may no longer be seen this way due to evolving attitudes on matters of international relations, colonialism, human rights, development, environmental protection and so on. Attempting to filter these out according to today’s values would undermine the objective of presenting the reader with original materials which show British approaches to international law as they were at different times throughout the century. Moreover, some recent developments in international law, and the UK’s part in them, have given rise to disagreements among international lawyers, and occasionally, vigorous public debate. This has notably been the case where the UK’s role in armed conflicts overseas is concerned. Our aim here is not to judge which developments are good, but to present influential original texts alongside others that

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highlight their impacts and the differing reactions. Inclusion of an extract in this anthology should therefore not be taken to imply that the editors agree with its content or approve of (all of) its impacts. In considering these issues we consulted a number of experts in the field who are closely associated with BIICL, including its President Dame Rosalyn Higgins, its Chair of Trustees, Sir Frank Berman, its Advisory Panel on Public International Law,1 its Director, Professor Robert McCorquodale, and other colleagues at BIICL. Each was asked to list their personal favourite pieces of all time, to comment upon our preliminary long list and make suggestions to fill any major gaps. The resulting number of pieces nominated would have filled numerous volumes, and so the next task was the even more difficult one of creating a short-list of extracts that could be accommodated within four volumes. This process was guided by several factors: the desirability of covering core international law principles as well as a reasonable spread of substantive topics, and as far as possible all decades between 1915 and 2015; and of collecting a variety of primary materials as well as secondary literature, from a variety of journals and publishers. Where particularly distinguished and prolific authors or judges were concerned, choosing only one or two of their works from among the many which had been nominated was a particularly tricky (but immensely enjoyable) task, aided enormously by looking for the points of convergence among the widely ranging views of our external advisers. The short-list of pieces we selected for inclusion has been further reduced by practical factors. For example, where a useable copy of the original could not be located, the copyright-holder’s permission was not forthcoming, or, where the piece was too long to include in its entirety and in our view it was not possible to pull out an extract of a suitable length that would do it justice, it could not be included. It should be clear from the above that this anthology is not presented as, nor could it have been, a comprehensive collection of all British contributions to international law. Indeed such an attempt would have been unrealistic considering the breadth of British contributions in the field and the difficulties inherent in attempting a comprehensive recall of material. In making a selection, inevitably subjectivity and chance factors have played their part. No one 1 Professor Dapo Akande, David H Anderson CMG, Sir Frank Berman KCMG QC, Sir Daniel Bethlehem KCMG QC, Michelle Burgis, Professor James Crawford SC, Tim Eicke, Professor Malcolm Forster, Vaughan Lowe QC, Iain Macleod, Alistair McGlone, Maurice Mendelson QC, Thérèse O’Donnell, Catherine Redgwell, Amy Sander, Audley Sheppard, Antonios Tzanakopoulos, Robert Volterra, Philippa Webb, Chanaka Wickremasinghe, Ralph Wilde, Elizabeth Wilmshurst CMG, Sam Wordsworth QC and Sir Michael Wood KCMG.

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­ erson’s choice would be the same as anyone else’s. We’ve tried to guard against p individual bias by consulting a range of people who are knowledgeable in this field. We are aware of many meritorious pieces that had to be left out for want of time or space, or for technical reasons, and others have no doubt been overlooked. If what results is viewed by some as an idiosyncratic selection, we hope it will be no less stimulating and useful for that. Each extract or group of extracts is accompanied by a short comment, to highlight why it is of special interest; its British connection (if not selfevident); the nature of the contribution and the actors involved; the legal and/ or political context; and the influence it has had on international law. The comments have been written by a team of authors, consisting of members of the BIICL Advisory Panel on Public International Law, additional selected experts, as well as the editors, our colleagues and interns working under our supervision on the public international law programme at BIICL. We endeavoured to match each piece carefully with the right commentator, choosing wherever possible a person who had nominated that piece as one of their top favourites, who has a special connection with the piece in the sense that they studied or worked with the author, were involved in the case, negotiation or event concerned, or who has a special expertise in that specific subject, whether through a lifetime of practice or recent postgraduate study. Our aim was to present to the reader a wide range of voices from the contemporary world of international law, mainly but not exclusively in the UK, to explain briefly why that piece is of interest. We encouraged the commentators to include their own reflections on the substance of the piece and responses to it, including any negative aspects, and to mention any personal connections to it or its author, including an anecdote to bring it to life if they deemed it appropriate. We are delighted that the commentaries are written in a variety of styles ranging from the factual to the scholarly to the personal, or even a skillful blend of all three. The contributions have been organised thematically. However, as the reader will see, various pieces, and indeed various authors, could well fit into more than one subject area, and many have had an impact across various areas of international law. The subject categories we have chosen by which to group the contributions are deliberately very broad and are intended to reflect the main areas of public international law dealt with across a century, while taking account of developments over that period. We would like to thank all those who have helped to shape this anthology, whether by contributing suggestions and comments upon the selection of pieces or by writing comments, or both. Special thanks are due also to the various interns, volunteer researchers and research assistants who contributed to the compilation of this anthology (whose names do not all appear

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amongst its pages). Responsibility for any shortcomings in the final selection is of course ours alone. The breadth of British contributions to international law over one century is reflected through the wide array of materials included in this anthology, as highlighted in the comments. Whether all of them are to be celebrated is for the reader to decide, with the benefit of today’s knowledge and values. The aim here is to provide the opportunity to recall, sample, compare and reflect upon these contributions, as well as to inform future British – or indeed ­other  – ­contributions in the coming decades and centuries.

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PART 1 Nature of International Law

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CHAPTER 1

Lassa Oppenheim, International Law: A Treatise, 1920 Comment by Martin Clark, PhD Candidate, London School of Economics Lassa Oppenheim (1858–1919) was the first in a line of several significant twentieth century jurists to migrate to Britain, become naturalised, and contribute significantly to the study of international law. The two volumes of the first edition of his International Law, A Treatise, published in 1905–1906, were quickly recognised as an important, systematic treatment of the full range of topics that concerned international lawyers of the day. Oppenheim’s treatises defend a positivist account of international law that departed from earlier approaches, popular in Britain and elsewhere, which took international law to stem from either natural law or diplomatic conventions. These works helped establish international law as a separate branch of jurisprudence to be taken seriously, particularly by British audiences more inclined to John Austin’s view that international law was merely positive morality and not law. From the late 1870s until the end of the nineteenth century, Oppenheim studied and then taught in Germany and later Switzerland, specialising in criminal law. With his move from Basel to London in 1895, he began to work exclusively on international law, eventually lecturing at the London School of Economics. In 1908, he took over the Whewell Chair at Cambridge University from his friend and mentor John Westlake, who was reportedly immensely impressed by the first edition of International Law and selected Oppenheim as his replacement without the latter even applying for the post. Both personally and through his supervised students (a rarity for international law teaching at the time), Oppenheim contributed immensely to the teaching and study of international law right up until his death at Cambridge in October 1919. The extract that follows is from the third edition, which was revised largely by Oppenheim just before his death and finalised by a favourite student of his, Ronald Roxburgh. This edition was selected for inclusion not only because it fits within the timeframe of this Anthology, but also because it is seen by some to constitute the most complete picture of Oppenheim’s systematic thought on international law, incorporating his scholarly reactions to the First World War’s impact on international law. As with other editions, Oppenheim’s Third © koninklijke brill nv, leiden, ��21 | doi:10.1163/9789004386242_002

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was quickly bought and widely read by international lawyers ­throughout ­Britain and the world. Given the immense upheavals in international law, organisation and adjudication that occurred in the decade following Oppenheim’s death—in turn necessitating extensive revisions (and significant shifts in philosophy) by Arnold McNair in 1926–28 and Hersch Lauterpacht from 1935 ­onwards—­Oppenheim’s Third Edition stands as Lassa Oppenheim’s “last testament” and a pinnacle of British early twentieth century international law thought.

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L. Oppenheim, International Law: A Treatise, (R Roxburgh ed) (3rd edn, Longmans Green and Co London 1920) vol 1. Excerpt: Chapter 1 ‘Foundation of the Law of Nations,’ pp 1–30.

Foundation of the Law of Nations* Lassa Oppenheim i

The Law of Nations as Law

Conception of the Law of Nations § 1. Law of Nations or International Law (Droit des gens, Völkerrecht) is the name for the body of customary and conventional rules which are considered legally1 binding by civilised States in their intercourse with each other. Such part of these rules as is binding upon all the civilised States without exception, as, for instance, the law connected with legation and treaties, is called universal International Law, in contradistinction to particular International Law, which is binding on two or a few States only. But it is also necessary to distinguish general International Law. This name must be given to the body of such rules as are binding upon a great many States, including leading Powers. General International Law, as, for instance, the Declaration of Paris of 1856, has a tendency to become universal International Law. International Law in the meaning of the term as used in modern times did not exist during antiquity and the first part of the Middle Ages. It is in its origin essentially a product of Christian civilisation, and began gradually to grow from the second half of the Middle Ages. But it owes its existence as a systematised body of rules to the Dutch jurist and statesman Hugo Grotius, whose work, De Jure Belli ac Pacis, libri iii., appeared in 1625, and became the foundation of all later development. The Law of Nations is a law for the intercourse of States with one another, not a law for individuals. As, however, there cannot be a sovereign authority

* [Editors’ note: The subtitles for this chapter were originally sidenotes which were converted to subtitles for the purposes of these publications. Similarly, all footnotes in the original text re-started at No. 1 on every page. These have been amended to continuous order for the purposes of the present Anthology]. 1 In contradistinction to mere usages and to rules of so-called International Comity. See below, §§ 9 and 19.

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above the several sovereign States, the Law of Nations is a law between, not above,2 the several States, and is, therefore, since Bentham, also called ‘International Law.’ Since the distinction of Bentham between International Law public and private has been generally accepted, it is necessary to emphasise that only the so-called public International Law, which is identical with the Law of Nations, is International Law, whereas the so-called private International Law is not, at any rate not yet. The latter concerns such matters as fall at the same time under the jurisdiction of two or more different States. And as the Municipal Laws of different States are frequently in conflict with each other respecting such matters, jurists belonging to different countries endeavour to find a body of principles according to which such conflicts can be avoided. What is now termed private International Law would, however, become International Law in case the Powers agreed by a law-making treaty upon a body of rules the application of which would solve such conflicts. Legal Force of the Law of Nations Contested § 2. Almost from the beginning of the science of the Law of Nations the question has been discussed whether the rules of International Law are legally binding. Hobbes3 and Pufendorf4 had already answered the question in the negative. And during the nineteenth century Austin5 and his followers took up the same attitude. They defined law as a body of rules for human conduct set and enforced by a sovereign political authority. If indeed this definition of law be correct, the Law of Nations cannot be called law. For International Law is a body of rules governing the relations of sovereign States between one another. And there is not and cannot be a sovereign political authority above the sovereign States which could enforce such rules. However, this definition of law is not correct. It covers only the written or statute law within a State, that part of the Municipal Law which is expressly made by statutes of Parliament in a constitutional State or by some other sovereign authority in a non-constitutional State. It does not cover that part of Municipal Law which is termed unwritten or customary law. There is, in fact, no community and no State in the world which could exist with written law only. Everywhere there is customary law in 2 The arguments used by Snow (see A.J., vi. (1912), pp. 890–900, and R.G., xix. (1912), pp. 309– 318) against the term International Law, and his proposal to substitute for it the term Supernational Law, are based upon the untenable dictum that ‘all law comes from above.’ 3 De Cive, xiv. 4. 4 De Jure Naturae et Gentium, ii. c. iii. § 22. 5 Lectures on Jursprudence, vi.

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existence besides the written law. This customary law was never expressly enacted by any law-giving body, or it would not be merely customary law. Those who define law as rules set and enforced by a sovereign political authority do not deny the existence of customary law. But they maintain that the customary law has the character of law only through that indirect recognition on the part of the State which is to be found in the fact that courts of justice apply the customary in the same way as the written law, and that the State does not prevent them from doing so. This is, however, nothing else than a fiction. Courts of justice having no law-giving power could not recognise unwritten rules as law if these rules were not law before that recognition, and States recognise unwritten rules as law only because courts of justice do so. Characteristics of Rules of Law § 3. For the purpose of finding a correct definition of law it is indispensable to compare morality and law with each other, for both lay down rules, and to a great extent the same rules, for human conduct. Now the characteristic of rules of morality is that they apply to conscience, and to conscience only. An act loses all value before the tribunal of morality, if it was not done out of free will and conscientiousness, but was enforced by some external power or was done from some consideration which lies without the boundaries of conscience. Thus, a man who gives money to the hospitals in order that his name shall come before the public does not act morally, and his deed is not a moral one, though it appears to be one outwardly. On the other hand, the characteristic of rules of law is that they shall, if necessary, be enforced by external power.6 Rules of law apply, of course, to conscience quite as much as rules of morality. But the latter require to be enforced by the internal power of conscience only, whereas the former require to be enforced by some external power. When, to give an illustrative example, morality commands you to pay your debts, it hopes that your conscience will make you pay them. On the other hand, if the law gives the same command, it hopes that, if the conscience has not sufficient power to make you pay your debts, the fact that, if you will not pay, the bailiff will come into your house, will do so.7

6 Westlake, Papers, p. 12, seems to make the same distinction between rules of law and of morality, and Twiss, i. § 105, adopts it expressis verbis. 7 This distinction between rules of law and of morality is, however, by no means generally recognised, for there are many writers (see, for instance, Heilborn, Grundbegriffe des Völkerrechts (1912), pp. 3–10) who deny to the rules of law the essential characteristic that they shall, if necessary, be enforced by external power.

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Lawgiving Authority Not Essential for the Existence of Law § 4. If these are the characteristic signs of morality and of law, we are justified in stating the principle: A rule is a rule of morality, if by common consent of the community it applies to conscience and to conscience only; whereas, on the other hand, a rule is a rule of law, if by common consent of the community it shall eventually be enforced by external power. Without some kind both of morality and law, no community has ever existed, or could possibly exist. But there need not be, at least not among primitive communities, a lawgiving authority within a community. Just as the rules of morality are growing through the influence of many different factors, so the law can grow without being expressly laid down and set by a law-giving authority. Wherever we have an opportunity of observing a primitive community, we find that some of its rules for human conduct apply to conscience only, whereas others shall by common consent of the community be enforced; the former are rules of morality only, whereas the latter are rules of law. For the existence of law neither a law-giving authority nor courts of justice are essential. Whenever a question of law arises in a primitive community, it is the community itself and not a court which decides it. Of course, when a community is growing out of the primitive condition of its existence and becomes gradually so enlarged that it turns into a State in the sense proper of the term, the necessities of life and altered circumstances of existence do not allow the community itself any longer to do anything and everything. And the law can now no longer be left entirely in the hands of the different factors which make it grow gradually from case to case. A law-giving authority is now just as much wanted as a governing authority. It is for this reason that we find in every State a Legislature, which makes laws, and courts of justice, which administer them. However, if we ask whence does the power of the Legislature to make laws come, there is no other answer than this: from the common consent of the community. Thus, in Great Britain, Parliament is the law-making body by common consent. An Act of Parliament is law, because the common consent of Great Britain is behind it. That Parliament has law-making authority is law itself, but unwritten and customary law. Thus the very important fact comes to light that all statute or written law is based on unwritten law in so far as the power of Parliament to make statute law is given to Parliament by unwritten law. It is by the common consent of the British people that Parliament has the power of making rules which shall be enforced by external power. But besides the statute laws made by Parliament there exist and are constantly growing other laws, unwritten or customary, which are day by day recognised through courts of justice.

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Definition and Three Essential Conditions of Law § 5. On the basis of the results of these previous investigations we are now able to give a definition of law. We may say that law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power. The essential conditions of the existence of law are, therefore, threefold. There must, first, be a community. There must, secondly, be a body of rules for human conduct within that community. And there must, thirdly, be a common consent of that community that these rules shall be enforced by external power. It is not an essential condition either that such rules of conduct should be written rules, or that there should be a law-making authority or a law-­administering court within the community concerned. And it is evident that, if we find this definition of law correct, and accept these three essential conditions of law, the existence of law is not limited to the State community only, but is to be found everywhere where there is a community. The best example of the existence of law outside the State is the law of the Roman Catholic Church, the so-called Canon Law. This Church is an organised community whose members are dispersed over the whole surface of the earth. They consider themselves bound by the rules of the Canon Law, although there is no sovereign political authority that sets and enforces those rules, the Pope and the bishops and priests being a religious authority only. But there is an external power through which the rules of the Canon Law are enforced—namely, the punishments of the Canon Law, such as excommunication, refusal of sacraments, and the like. And the rules of the Canon Law are in this way enforced by common consent of the whole Roman Catholic community. Law Not to be Identified with Municipal Law § 6. But it must be emphasised that, if there is law to be found in every community, law in this meaning must not be identified with the law of States, the so-called Municipal Law,8 just as the conception of State must not be identified with the conception of community. The conception of community is a wider one than the conception of State. A State is a community, but not every community is a State. Likewise the conception of law pure and simple is a wider one than that of Municipal Law. Municipal Law is law, but not every law is Municipal Law,

8 Throughout this work the term ‘Municipal Law’ is made use of in the sense of national or State law in contradistinction to International Law.

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as, for instance, the Canon Law is not. Municipal Law is a narrower conception than law pure and simple. The body of rules which is called the Law of Nations or International Law might, therefore, be law in the strict sense of the term, although it might not possess the characteristics of Municipal Law. To make sure whether the Law of Nations is or is not law, we have to inquire whether the three essential conditions of the existence of law are to be found in the Law of Nations. The ‘Family of Nations’ a Community § 7. As the first condition is the existence of a community, the question arises, whether an international community exists whose law could be the Law of Nations. Before this question can be answered, the conception of a community must be defined. A community may be said to be the body of a number of individuals more or less bound together through such common interests as create a constant and manifold intercourse between the single individuals. This definition of a community covers not only a community of individual men, but also a community of individual communities such as individual States. But is there a universal international community of all individual States in existence? This question had already, before the World War, been decided in the affirmative as far as the States of the civilised world were concerned. Innumerable were the interests which then already knit all the individual civilised States together and which created constant intercourse between these States as well as between their subjects. As the civilised States were, with only a few exceptions, Christian States, there were already religious ideas winding a band around them. There were, further, science and art, which are by their nature to a great extent international, and which created a constant exchange of ideas and opinions between the subjects of the several States. Of the greatest importance were, however, agriculture, industry, and trade. It is impossible even for the largest empire to produce everything its subjects want. Therefore, the productions of agriculture and industry must be exchanged by the several States, and it is for this reason that international trade is an unequalled factor for the welfare of every civilised State. Even in antiquity, when every State tried to be a world in itself, States did not, and could not, exist without some sort of international trade. It is international trade which has created navigation on the high seas and on the rivers flowing through different States. It is, again, international trade which has called into existence the nets of railways which

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cover the continents, the international postal and telegraphic arrangements, and the Transatlantic telegraphic cables.9 The manifold interests which knit all the civilised States together and create a constant intercourse between one another, have long since brought about the necessity that these States should have one or more official ­representatives living abroad. Thus we find everywhere foreign envoys and consuls. They are the agents who make possible the current stream of transactions between the Governments of the different States. A number of International Offices, International Bureaux, International Commissions have been permanently appointed for the administration of international business, and a Permanent Court of Arbitration has been established at the Hague. Though the individual States are sovereign and independent of each other, though there is no international Government above the national ones, though there is no central political authority to which the different States are subjected, yet there is something mightier than all the powerful separating factors: namely, the common interests. And these common interests and the necessary intercourse which serves these interests, have long since united the separate States into an indivisible community. For many hundreds of years this community has been called ‘Family of Nations’ or ‘Society of Nations.’ But while before the World War the ­Family of Nations rested only on the basis of custom, and entirely lacked any organisation whatever, the Treaties of Peace, by establishing a League intended to comprise all civilised States, turned the unorganised Family of Nations into an organised community of States. The ‘Family of Nations’ a Community with Rules of Conduct § 8. Thus the first essential condition for the existence of law is a reality. The single States make altogether a body of States, a community of individual States. But the second condition cannot be denied either. For hundreds of years more and more rules have grown up for the conduct of the States between each other. These rules are to a great extent customary rules. But side by side with these customary and unwritten rules more and more written rules are daily created by international agreements, such as the Declaration of Paris of 1856, the Hague

9 See Fried, Das internationale Leben der Gegenwart (1908), where the innumerable interests are grouped and discussed which already before the World War knit the civilised States together.

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Rules concerning land warfare of 1899 and 1907, and the like. The so-called Law of Nations is nothing else than a body of customary and conventional10 rules regulating the conduct of the individual States with each other.

External Power for the Enforcement of Rules of International Conduct § 9. But how do matters stand concerning the third essential condition for the existence of law? Is there a common consent of the community of States that the rules of international conduct shall be enforced by external power? There cannot be the slightest doubt that this question must be affirmatively answered. The heads of the civilised States, their Governments, their Parliaments, and the public opinion of the whole of civilised humanity, agree and consent that the body of rules for international conduct which is called the Law of Nations shall, if necessary, be enforced by external power, in contradistinction to rules of international morality and courtesy, which are left to the consideration of the conscience of nations. In the absence of a central authority for the enforcement of the rules of the Law of Nations, the States have to take the law into their own hands. Self-help and intervention on the part of other States which sympathise with the wronged one are the means by which the rules of the Law of Nations can be and actually are enforced. And by the establishment of the League of Nations there is now more reason to hope than in former times that the smaller and weaker States will not be at the mercy of the larger and stronger Powers, in case of a conflict between their interests. For, according to the Covenant of the League of Nations, the League has been created, among other purposes, for ‘the firm establishment of the understandings of International Law as the actual rule of conduct among Governments.’ It is true that there is no central Government above the Governments of the several States, which could in every case secure the enforcement of the rules of International Law. For this reason, compared with Municipal Law and the means available for its enforcement, the Law of Nations is certainly the weaker of the two. A law is the stronger, the more guarantees are given that it can and will be enforced. Thus, the law of a State which is governed by an uncorrupt Government and the courts of which are not venal is stronger than the law of a State which has a corrupt Government and venal judges. It is inevitable that the Law of Nations must be a weaker law than Municipal Law, as there is not, and cannot be,

10

The term ‘conventional rule’ is used throughout this work to indicate a rule created by express agreement.

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an international Government above the national ones which could enforce the rules of International Law in the same way as a national Government enforces the rules of its Municipal Law. This weakness becomes particularly conspicuous in time of war, for belligerents who fight for their existence will always be apt to brush aside such rules of the Law of Nations concerning warfare as are supposed to hinder them in the conduct of their military operations. But a weak law is nevertheless still law, and the Law of Nations is by no means so weak a law as it sometimes seems to be. Those who deny to International Law the character of law because they identify the conception of law in general with that of Municipal Law and because they cannot see any law outside the State, confound cause and effect. Originally law was not a product of the State, but the State was a product of law. The right of the State to make law is based upon the rule of law that the State is competent to make law. Practice Recognises Law of Nations as Law § 10. The fact is that theorists only are divided concerning the character of the Law of Nations as real law. In practice International Law is constantly recognised as law. The Governments and Parliaments of the different States are of opinion that they are legally, as well as morally bound by the Law of Nations. Likewise, public opinion of all civilised States considers every State legally bound to comply with the rules of the Law of Nations, not taking notice of the opinion of those theorists who maintain that the Law of Nations does not bear the character of real law. And the several States not only recognise the rules of International Law as legally binding in innumerable treaties, but emphasise every day the fact that there is a law between themselves. They moreover recognise this law by their Municipal Laws ordering their officials, their civil and criminal courts, and their subjects to take up such an attitude as is in conformity with the duties imposed upon their sovereign by the Law of Nations. If a violation of the Law of Nations occurs on the part of an individual State, public opinion of the civilised world, as well as the Governments of other States, stigmatise such violation as a violation of law pure and simple. And countless treaties concerning trade, navigation, post, telegraph, copyright, extradition, and many other objects exist between civilised States, which treaties, resting entirely on the existence of a law between the States, presuppose such a law, and contribute by their very existence to its development and growth. Violations of this law are certainly frequent, especially during war. But the offenders always try to prove that their acts do not constitute a violation, and that they have a right to act as they do according to the Law of Nations, or at

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least that no rule of the Law of Nations is against their acts. Has a State ever confessed that it was going to break the Law of Nations or that it ever did so? The fact is that States, in breaking the Law of Nations, never deny its existence, but recognise its existence through the endeavour to interpret the Law of Nations in a way favourable to their act.11 And there is an ever-growing tendency to bring disputed questions of International Law as well as international differences in general before international courts and councils. According to the Covenant of the League of Nations, the members of the League are bound, if there should arise between them a dispute likely to lead to a rupture, to submit the matter to arbitration, or to an inquiry by the Council of the League, and in no case are they allowed to go to war, until three months after the award of the arbitrators or the report by the Council. ii

Basis of the Law of Nations

Common Consent the Basis of Law § 11. If law is, as defined above (§ 5), a body of rules for human conduct within a community which by common consent of this community shall be enforced through external power, common consent is the basis of all law. What, now, does the term ‘common consent’ mean? If it meant that all the individuals who are members of a community must at every moment of their existence expressly consent to every point of law, such common consent would never be a fact. The individuals, who are the members of a community, are successively born into it, grow into it together with the growth of their intellect during adolescence, and die away successively to make room for others. The community remains unaltered, although a constant change takes place in its members. ‘Common consent’ can therefore only mean the express or tacit consent of such an overwhelming majority of the members that those who dissent are of no importance whatever, and disappear totally from the view of one who looks for the will of the community as an entity in contradistinction to the wills of its single members. The question as to whether there be such a common consent in a special case, is not a question of theory, but of fact only. It is a matter of observation and appreciation, and not of logical and mathematical decision, 11

Thus when, in August 1914, Germany began the World War by attacking neutralised Belgium, she pleaded the necessity of self-preservation as an excuse. When, in 1915, she everywhere made use of poisonous gases, she pleaded that the French had made use of projectiles, the sole object of which was the diffusion of asphyxiating gases. Again, when she ordered her submarines to torpedo the Lusitania and thereby drowned over 1100 innocent men, women and children, she pleaded that the act was lawful as one of reprisals.

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just as is the well-known question, How many grains make a heap? Those legal rules which come down from ancestors to their descendants remain law so long as they are supported by the common consent of these descendants. New rules can only become law if they find common consent on the part of those who constitute the community at the time. It is for that reason that custom is at the background of all law, whether written or unwritten.

Common Consent of the Family of Nations the Basis of International Law § 12. What has been stated with regard to law pure and simple applies also to the Law of Nations. However, the community for which this Law of Nations is authoritative consists not of individual human beings, but of individual States. And whereas in communities consisting of individual human beings there is a constant and gradual change of the members through birth, death, emigration, and immigration, the Family of Nations is a community within which no such constant change takes place, although now and then a member disappears and a new member steps in. The members of the Family of Nations are ­therefore not born into that community and they do not grow into it. New members are simply received into it through express or tacit recognition. It is therefore necessary to scrutinise more closely the common consent of the States which is the basis of the Law of Nations. The customary rules of this law have grown up by common consent of the States—that is, the different States have acted in such a manner as includes their tacit consent to these rules. As far as the process of the growth of a usage and its turning into a custom can be traced back, customary rules of the Law of Nations came into existence in the following way. The intercourse of States with each other necessitated some rules of international conduct. Single usages, therefore, gradually grew up, the different States acting in the same or in a similar way when an occasion arose. As some rules of international conduct were from the end of the Middle Ages urgently wanted, the writers on the Law of Nature prepared the ground for their growth by constructing certain rules on the basis of religious, moral, rational, and historical reflections. Hugo Grotius’ work, De Jure Belli ac Pacis, libri iii. (1625), offered a systematised body of rules, which recommended themselves so much to the needs and wants of the time that they became the basis of the development following. Without the conviction of the Governments and of public opinion of the civilised States that there ought to be legally binding rules for international conduct, on the one hand, and, on the other hand, without the pressure exercised upon the States by their interests and the necessity for the growth of such rules, the ­latter would

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never have grown up. When afterwards, especially in the nineteenth century, it became apparent that customs and usages alone were not sufficient, or not sufficiently clear, new rules were created through law-making treaties being concluded which laid down rules for future international conduct. Thus conventional rules gradually grew up side by side with customary rules.12 New States which came into existence and were through express or tacit recognition admitted into the Family of Nations thereby consented to the body of rules for international conduct in force at the time of their admittance. It is therefore not necessary to prove for every single rule of International Law that every single member of the Family of Nations consented to it. No single State can say on its admittance into the Family of Nations that it desires to be subjected to such and such a rule of International Law, and not to others. The admittance includes the duty to submit to all the rules in force, with the sole exception of those which, as, for instance, the rules of the Geneva Convention, are specially stipulated for such States only as have concluded, or later on acceded to, a certain international treaty creating the rules concerned. On the other hand, no State which is a member of the Family of Nations can at some time or another declare that it will in future no longer submit to a certain recognised rule of the Law of Nations. The body of the rules of this law can be altered by common consent only, not by a unilateral declaration on the part of one State. This applies not only to customary rules, but also to such conventional rules as have been called into existence through a law-making treaty for the purpose of creating a permanent mode of future international conduct without a right of the signatory Powers to give notice of withdrawal. It would, for instance, be a violation of International Law on the part of a signatory Power of the Declaration of Paris of 1856 to declare that it would cease to be a party. But it must be emphasised that this does not apply to such conventional rules as are stipulated by a law-making treaty which expressly reserves the right to the signatory Powers to give notice of withdrawal. States the Subjects of the Law of Nations § 13. Since the Law of Nations is based on the common consent of individual States, and not of individual human beings, States solely and exclusively (apart from

12

See the judgment in the case of The Scotia, (1871) 81 U.S. 170, where the fact is clearly stated that International Law rests on the common consent—express or implied—of the several States.

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the League of Nations13) are the subjects of International Law. This means that the Law of Nations is a law for the international conduct of States, and not of their citizens. Subjects of the rights and duties arising from the Law of Nations are States solely and exclusively. An individual human being, such as a king or an ambassador for example, is never directly a subject of International Law. Therefore, all rights which might necessarily have to be granted to an individual human being according to the Law of Nations are not international rights, but rights granted by Municipal Law in accordance with a duty imposed upon the State concerned by International Law. Likewise, all duties which might necessarily have to be imposed upon individual human beings according to the Law of Nations are not international duties, but duties imposed by Municipal Law in accordance with a right granted to, or a duty imposed upon, the State concerned by International Law. Thus the privileges of an a­ mbassador are granted to him by the Municipal Law of the State to which he is accredited, but that State has the duty to grant these privileges according to International Law. Thus, further, the duties incumbent upon officials and subjects of neutral States in time of war are imposed upon them by the M ­ unicipal Law of their home States, but these States have, according to International Law, the duty of imposing such duties upon their officials and citizens.14 Equality an Inference from the Basis of International Law § 14. Since the Law of Nations is based on the common consent of States as sovereign communities, the member-States of the Family of Nations are equal to each other as subjects of International Law. States are by their nature certainly not equal as regards power, extent, constitution, and the like. But as members of the community of nations they are equals, whatever differences between them may otherwise exist. This is a consequence of their sovereignty, and of the fact that the Law of Nations is a law between, not above, the States.15 13 14

15

The Family of Nations being now organised as the League of Nations, the latter is, of course, the subject of rights as well as duties; and these rights and duties are international and not supernational. The importance of the fact that subjects of the Law of Nations are States exclusively is so great that I consider it necessary to emphasise it again and again throughout this work. See, for instance, below, §§ 289, 344, 384 [Editors’ note: not included in this Anthology]. It should, however, at once be mentioned that this assertion is even nowadays still sometimes contradicted; see, for instance, Kaufmann, Die Rechtskraft des internationalen Rechts (1899), passim; Rehm in Z.V., i. (1907), p. 53; and Diena in R.G., xvi. pp. 57–76. See below, §§ 115–116 [Editors’ note: not included in this Anthology], where the legal equality of States in contradistinction to their political inequality is discussed, and where it will also be shown that not-full sovereign States are not equals of full sovereign States.

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Sources of the Law of Nations

Sources in Contradistinction to Cause § 15. The different writers on the Law of Nations disagree widely with regard to kinds and numbers of sources of this law. The fact is that the term ‘source of law’ is made use of in different meanings by the different writers on International Law, as on law in general. It seems to me that most writers confound the conception of ‘source’ with that of ‘cause,’ and through this mistake come to a standpoint from which certain factors which influence the growth of International Law appear as sources of rules of the Law of Nations. This mistake can be avoided by going back to the meaning of the term ‘source’ in general. Source means a spring or well, and has to be defined as the rising from the ground of a stream of water. When we see a stream of water and want to know whence it comes, we follow the stream upwards until we come to the spot where it rises naturally from the ground. On that spot, we say, is the source of the stream of water. We know very well that this source is not the cause of the existence of the stream of water. Source signifies only the natural rising of water from a certain spot on the ground, whatever natural causes there may be for that rising. If we apply the conception of source in this meaning to the term ‘source of law,’ the confusion of source with cause cannot arise. Just as we see streams of water running over the surface of the earth, so we see, as it were, streams of rules running over the area of law. And if we want to know whence these rules come, we have to follow these streams upwards until we come to their beginning. Where we find that such rules rise into existence, there is the source of them. Of course, rules of law do not rise from a spot on the ground as water does; they rise from facts in the historical development of a community. Thus in Great Britain a good many rules of law rise every year from Acts of Parliament. ‘Source of law’ is therefore the name for an historical fact out of which rules of conduct rise into existence and legal force. The Two Sources of International Law § 16. As the basis of the Law of Nations is the common consent of the memberStates of the Family of Nations, it is evident that there must exist, and can only exist, as many sources of International Law as there are facts through which such common consent can possibly come into existence. Of such facts there are only two. A State, just as an individual, may give its consent either directly by an express declaration, or tacitly by conduct which it would not

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follow in case it did not consent. The sources of International Law are therefore twofold—namely: (1) express consent, which is given when States conclude a treaty stipulating certain rules for the future international conduct of the parties; (2) tacit consent, implicit consent or consent by conduct, which is given through States having adopted the custom of submitting to certain rules of international conduct. Treaties and custom are, therefore, exclusively the sources of the Law of Nations. Custom in Contradistinction to Usage § 17. Custom is the older and the original source of International Law in particular as well as of law in general. Custom must not be confounded with usage. In everyday life and language both terms are used synonymously, but in the language of the international jurist they have two distinctly different meanings. International jurists speak of a custom when a clear and continuous habit of doing certain actions has grown up under the ægis of the conviction that these actions are, according to International Law, obligatory or right. On the other hand, international jurists speak of a usage when a habit of doing certain actions has grown up without there being the conviction that these actions are, according to International Law, right or obligatory. Thus the term ‘custom’ is in the language of international jurisprudence a narrower conception than the term ‘usage,’ as a given course of conduct may be usual without being customary. Certain conduct of States concerning their international relations may therefore be usual without being the outcome of customary16 International Law. As usages have a tendency to become custom, the question presents itself, at what time a usage turns into a custom. This question is one of fact, not of theory. All that theory can point out is this: Whereever and as soon as a line of international conduct frequently adopted by States is considered legally obligatory or legally right, the rule, which may be abstracted from such conduct, is a rule of customary International Law.

16

See Klüber, § 3. It is very deplorable that the distinction between custom and usage in International Law is very frequently not drawn by many publicists. It would seem that Hall occasionally recognises the distinction, although he names ‘usage’ what really is ‘custom,’ and vice versa. See, for instance, Hall, § 139, where he says ‘this custom has since hardened into a definite usage.’

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Treaties as Source of International Law § 18. Treaties are the second source of International Law, and a source which has of late become of the greatest importance. As treaties may be concluded for innumerable purposes,17 it is necessary to emphasise that such treaties only are a source of International Law as either stipulate new rules for future international conduct or confirm, define, or abolish existing customary or conventional rules. Such treaties must be called law-making treaties. Since the Family of Nations is not a State-like community, there is no central authority which could make law for it in the way that Parliaments make law by statutes within the States. The only way in which International Law can be made by a deliberate act, in contradistinction to custom, is that the members of the Family of Nations conclude treaties in which certain rules for their future conduct are stipulated. Of course, such law-making treaties create law for the contracting parties solely. Their law is universal International Law only when all the members of the Family of Nations are parties to them. Many law-making treaties are concluded by a few States only, so that the law which they create is particular International Law. On the other hand, many law-making treaties have been concluded which contain general International Law, because the majority of States, including leading Powers, are parties to them. General International Law has a tendency to become universal because such States as hitherto did not consent to it will in future either expressly give their consent or recognise the rules concerned tacitly through custom.18 But it must be emphasised that, whereas custom is the original source of International Law, treaties are a source the power of which derives from custom. For the fact that treaties can stipulate rules of international conduct at all is based on the customary rule of the Law of Nations, that treaties are binding upon the contracting parties.19 Factors Influencing the Growth of International Law § 19. Thus custom and treaties are the two exclusive sources of the Law of Nations. When writers on International Law frequently enumerate other sources besides custom and treaties, they confound the term ‘source’ with that of ‘cause’ by calling sources of International Law such factors as influence the gradual growth of new rules of International Law without, however, being the h ­ istorical

17 18 19

See below, § 492. [Editors’ note: not included in this Anthology]. Law-making treaties of worldwide importance are enumerated below, §§ 556–568c. See below, § 493. [Editors’ note: not included in this Anthology].

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facts from which these rules receive their legal force. Important factors of this kind are: Opinions of famous writers20 on International Law, decisions of prize courts, arbitral awards,21 instructions issued by the different States for the guidance of their diplomatic and other organs, State Papers concerning foreign politics, certain Municipal Laws, decisions of municipal courts.22 All these and other factors may influence the growth of International Law either by creating usages which gradually turn into custom, or by inducing the members of the Family of Nations to conclude such treaties as stipulate legal rules for future international conduct. A factor of a special kind which also influences the growth of International Law is the so-called Comity (Comitas Gentium, Convenance et Courtoisie Internationale, Staatengunst). In their intercourse with one another, States do observe not only legally binding rules and such rules as have the character of usages, but also rules of politeness, convenience, and goodwill. Such rules of international conduct are not rules of law, but of comity. The Comity of Nations is certainly not a source of International Law, as it is distinctly in contrast to the Law of Nations. But there can be no doubt that many a rule which formerly was a rule of International Comity only is nowadays a rule of International Law. And it is certainly to be expected that this development will go on in future also, and that thereby many a present rule of International Comity will in future become one of International Law.23 Not to be confounded with the rules of comity are the rules of morality, which ought to apply to the intercourse of States as much as to the intercourse of individuals. iv

Relations between International and Municipal Law

Essential Difference between International and Municipal Law § 20. The Law of Nations and the Municipal Law of the several States are essentially different from each other. They differ, first, as regards their sources. Sources of Municipal Law are custom grown up within the boundaries of the State concerned and statutes enacted by the law-giving authority. Sources of 20 21 22 23

See Oppenheim in A.J., ii. (1908), pp. 344–348, and Praag, No. 11. See Oppenheim in A.J., ii. (1908), pp. 341–344. See Oppenheim in A.J., ii.(1908), pp. 336–341, and Praag, No. 10. The matter is ably discussed in Stoerk, Völkerrecht und Völkercourtoisie (1908). See also Heilborn, Grundbegriffe des Völkerrechts (1912), pp. 107–110, and Praag, No. 24.

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I­ nternational Law are custom grown up within the Family of Nations and lawmaking treaties concluded by the members of that family. The Law of Nations and Municipal Law differ, secondly, regarding the relations they regulate. Municipal Law regulates relations between the individuals under the sway of a State and the relations between this State and those individuals. International Law, on the other hand, regulates relations between the member-States of the Family of Nations. The Law of Nations and Municipal Law differ, thirdly, with regard to the substance of their law: whereas Municipal Law is a law of a sovereign over individuals subjected to his sway, the Law of Nations is a law not above, but between sovereign States, and therefore a weaker law.24 Law of Nations Never per se Municipal Law § 21. If the Law of Nations and Municipal Law differ as demonstrated, the Law of Nations can neither as a body nor in parts be per se a part of Municipal Law. Just as Municipal Law lacks the power of altering or creating rules of International Law, so the latter lacks absolutely the power of altering or creating rules of Municipal Law. If, according to the Municipal Law of an individual State, the Law of Nations as a body or in parts is considered to be the law of the land, this can only be so either by municipal custom or by statute, and then the respective rules of the Law of Nations have by adoption become at the same time rules of Municipal Law. Wherever and whenever such total or partial adoption has not taken place, municipal courts cannot be considered to be bound by International Law, because it has, per se, no power over municipal courts.25 And if it happens that a rule of Municipal Law is in indubitable conflict with a rule of the Law of Nations, municipal courts must apply the former. If, again, a rule of the Law of Nations regulates a fact without conflicting with, but without expressly or tacitly having been adopted by Municipal Law, municipal courts cannot apply such rule of the Law of Nations.

24 25

See above, § 9. This ought to be generally recognised; but, in fact, is not. There are a number of writers (see, for instance, Pillet in R.G., v. (1898), p. 87, note 1, and Kohler in Z.V., ii. (1908), pp. 209 ff.) who consider International Law to be more a super-state than an inter-state law, and who, therefore, consider International Law to be superior to Municipal Law. According to their opinion, municipal courts are bound by rules of International Law even in cases of conflict between International and Municipal Law.

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Law of Nations and British and American Municipal Law § 21a. It is frequently maintained that the Law of Nations to its whole extent is part of the law of England and of the United States of America; but this assertion is quite untenable if the facts are carefully taken into consideration. (1) As regards England,26 there is no doubt that all such rules of customary International Law as are either universally recognised or have at any rate received the assent of this country, and further all law-making international conventions ratified by this country, are binding upon English courts, unless they be in conflict with English statutory law. For English statutory law is under all circumstances and conditions binding upon English courts, even if in conflict with International Law, although in doubtful cases there is a presumption that no overruling of International Law is intended by an Act of Parliament. In particular, the rules of International Prize Law— whether conventional or customary rules—are binding upon English prize courts, unless they be in conflict with an Act of Parliament. Orders in Council which are not in conformity with International Prize Law are not binding upon English prize courts unless they amount to a mitigation of the Crown rights in favour of the enemy or a neutral, or they order such reprisals as are justified by the circumstances of the case and do not entail upon neutrals a degree of unreasonable inconvenience.27 However, the jurisdiction of an English prize court does not embrace the whole region covered by International Law, but is confined to taking cognisance of, and adjudicating upon, certain matters (including capture at sea) which in former times were enumerated in the Royal Commission under which the court was constituted, and are now defined both by statute and by the Royal Commission issued at the beginning of a war.28 (2) As regards the United States of America,29 there is no doubt that all such customary International Law as is universally recognised, or has at any 26

27 28 29

See Blackstone, Commentaries on the Laws of England, iv. oh. 5; Westlake, Papers, pp. 498– 618 ; but chiefly Picciotto, op. cit., and Pyke in the Law Quarterly Review, xxxii. (1916), pp. 144–167. See also the case of The West Rand Central Gold Mining Co. Ltd. v. Rex, [1905] 2 K.B. 391. For the numerous other cases see Picciotto, op. cit. The Zamora, [1916] P. 27, and [1916] 2 A.C. 77, 1 B. and C.P.C. 309, and 2 B. and C.P.C. 1 ; The Alwina, 34 Times L.R. 199, 3 B. and C.P.C. 54 ; The Stigstad, [1916] P. 123, and [1919] A.C. 279; The Leonora, [1918] P. 182, and [1919] A.C. 974. The Sudmark (No. 2), (1917) 33 Times L.R. 575, 2 B. and C.P.C. 473. See Taylor, § 103; Scott in A.J., i. (1907), pp. 852–866; Oppenheim, The Panama Canal Conflict (1913), pp. 40–42 ; but principally Picciotto, op. cit., pp. 109–124, and Wright, op. cit., and in A.J., xi. (1917), pp. 1–21. The principal cases are The Nereide, (1815) 9 Cranch 388; United States v. Smith, (1820) 5 Wheaton 153; The Scotia, (1871) 14 Wallace 170 ; The Paquette

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rate received the consent of the United States, and further all law-making international conventions ratified by the United States, are binding upon American courts, even if in conflict with previous American statutory law; for according to the practice of the United States, customary as well as conventional International Law overrules previous Municipal Law, provided it does not conflict with the Constitution30 of the United States. On the other hand, American statutory law is binding upon the courts of the United States, even if in conflict with previous customary or conventional International Law; for American statutory law overrules previous International Law, although in doubtful cases there is a presumption that no overruling of International Law is intended by an Act of Congress. Certain Rules of Municipal Law Necessitated or Interdicted § 22. If municipal courts cannot apply unadopted rules of the Laws of Nations, and must apply even such rules of Municipal Law as conflict with the Law of Nations, it is evident that the several States, in order to fulfil their international obligations, are compelled to possess certain rules, and are prevented from having certain other rules, as part of their Municipal Law. It is not necessary to enumerate all the rules of Municipal Law which a State must possess, and all those rules it is prevented from having. It suffices to give some illustrative examples. Thus, for instance, on the one hand, the Municipal Law of every State is compelled to possess rules granting the necessary privileges to foreign diplomatic envoys, protecting the life and liberty of foreign citizens residing on its territory, threatening punishment for certain acts committed on its territory in violation of a foreign State. On the other hand, the Municipal Law of every State is prevented by the Law of Nations from having rules, for instance, conflicting with the freedom of the high seas, or prohibiting the innocent passage of foreign merchantmen through its maritime belt, or refusing justice to foreign residents with regard to injuries committed on its territory to their lives, liberty, and property by its own citizens. If a State does nevertheless possess such rules of Municipal Law as it is prohibited from having by the Law of ­Nations, or if it does not possess such municipal rules as it is compelled to have Habana, (1899) 175 United States 677. For other cases see Picciotto, op. cit., pp. 111–120. As regards the relation between International Law and the Municipal Law of all the American Republics, see Moore and Wilson in the Proceedings of the American Society of International Law, ix. (1916), pp. 11–30. [Editors’ note: not included in this Anthology]. 30 In re Dillon; see Wharton, i. p. 667, and Moore, v. p. 78.

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by the Law of Nations, it violates an international legal duty; but its courts31 cannot by themselves alter the Municipal Law to meet the requirements of the Law of Nations.

Presumption against Conflicts between International and Municipal Law § 23. However, although municipal courts must apply Municipal Law even if conflicting with the Law of Nations, there is a presumption against the existence of such a conflict. As the Law of Nations is based upon the common consent of the different States, it is improbable that a civilised State would intentionally enact a rule conflicting with the Law of Nations. A part of Municipal Law, which ostensibly seems to conflict with the Law of Nations, must, therefore, if possible, always be so interpreted as essentially not containing such conflict. Presumption of Existence of Certain Necessary Municipal Rules § 24. In case of a gap in the statutes of a civilised State regarding certain rules necessitated by the Law of Nations, such rules ought to be presumed by the courts to have been tacitly adopted by such Municipal Law. It may be taken for granted that a State which is a member of the Family of Nations does not intentionally want its Municipal Law to be deficient in such rules. If, for instance, the Municipal Law of a State does not by a statute grant the necessary privileges to diplomatic envoys, the courts ought to presume that such privileges are tacitly granted.

Presumption of the Existence of Certain Municipal Rules in Conformity with Rights Granted by the Law of Nations § 25. There is no doubt that a State need not make use of all the rights it has by the Law of Nations, and that, consequently, every State can by its laws expressly renounce the whole or partial use of such rights, provided always it is ready to fulfil such duties, if any, as are connected with these rights. However, when no

31

This became quite apparent in the Moray Firth case (Mortensen v. Peters)—see below, § 192—in which the court had to apply British Municipal Law. [Editors’ note: not included in this Anthology].

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such renunciation has taken place, municipal courts ought, in case the interests of justice demand it, to presume that their sovereign has tacitly consented to make use of such rights. If, for instance, the Municipal Law of a State does not by a statute extend its jurisdiction over its maritime belt, its courts ought to presume that, since by the Law of Nations the jurisdiction of a State does extend over its maritime belt, their sovereign has tacitly consented to that wider range of its jurisdiction. A remarkable case illustrating this happened in this country in 1876. The German vessel Franconia, while passing through the British maritime belt within three miles of Dover, negligently ran into the British vessel Strathclyde, and sank her. As a passenger on board the latter was thereby drowned, the commander of the Franconia, the German Keyn, was indicted at the Central Criminal Court and found guilty of manslaughter. The Court for Crown Cases Reserved, however, to which the Central Criminal Court referred the question of jurisdiction, held by a majority of one judge that, according to the law of the land, English courts had no jurisdiction over crimes committed in the English maritime belt. Keyn was therefore not punished.32 To provide for future cases of a like kind, Parliament passed, in 1878, the Territorial Waters Jurisdiction Act.33 32

33

R. v. Keyn, (1876) 2 Ex. D. 63. See Phillimore, i. § 198b; Maine, pp. 39–45 ; Stephen, History of the Criminal Law of England (1883), vol. ii. pp. 29–42. See also below, § 189 [Editors’ note: not included in this Anthology], where the controversy is discussed whether a littoral State has jurisdiction over foreign vessels that merely pass through its maritime belt. 41 & 42 Viot. c. 73.

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Chapter 2

James Brierly, The Law of Nations: An Introduction to the International Law of Peace, 1928 Comment by Professor Andrew Clapham, Graduate Institute of International and Development Studies James Brierly’s Law of Nations has served as a companion for generations of international lawyers. The book is held in particular affection by those who found it unlocked the mysteries of international law and served as a constant companion as they pursued their careers. Brierly was born in Yorkshire in 1891 and died in 1955. He graduated from Oxford University with first class degrees in Classics and Jurisprudence, was called to the Bar in 1907 and joined the army in 1914. He was later appointed Professor of Law at Manchester University in 1920, and then to the Chair of International Law at Oxford University in 1922, his tenure lasting 23 years. Brierly was appointed to the original International Law Commission and served as its Rapporteur on the law of treaties and as its Chairman in 1951. He served on multiple councils and committees (including the Advisory Committee dealing with the internment of enemy aliens) and sat as a Magistrate for the City of Oxford. His successor at Oxford, and the editor of the sixth edition of the Law of Nations, Professor Waldock, paid the following tribute: He was a man who inspired the greatest confidence alike in his colleagues on the bench or on the committee on which he sat, and in those on whose interests he adjudicated. This was due to his obvious ability, to his evident integrity and impartiality, but above all to his very real concern which he showed for the plight of refugees in England, whether from the c­ onsequences of the two world wars or of totalitarian oppression. He devoted himself unobtrusively and energetically to schemes giving them aid and he occupied himself actively right up to his death.a The excerpt selected here from Brierly’s introductory small book has remained more or less the same over the next six editions and has been quoted and a H Lauterpacht and CHM Waldock (eds), The Basis of Obligation in International Law and other Papers by the Later James Leslie Brierly (Clarendon Press 1958) xii.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_003

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e­ xcerpted in multiple contexts. The exploration of the inadequacies of the theoretical explanations for the basis of international obligations remains fresh and relevant today. It is nevertheless worth noting that some of his assertions can no longer stand and this reveals how much international law has developed since the end of the Second World War.b However, Brierly was less interested in mapping what was or wasn’t international law and more keen to explain why international law matters and why it influences behaviour. One formulation of his approach bears reproducing: The ultimate explanation of the binding force of all law is that individuals, whether as single human beings, or whether associated with others in a state, are constrained, in so far as they are reasonable beings, to believe that order and not chaos is the governing principle of the world in which they have to live.c Part of the lore surrounding Brierly’s book was the suggestion that it could be read in one go. In his 1963 book review Norman Marsh started out: “In the bad old days it was commonly said among undergraduates in at least one British university that an all-night reading of Brierly immediately before the ­examination in international law would ensure a satisfactory mark”.d It is an indication of the influence of this short book that later editions were translated into I­ndonesian, Spanish, Norwegian, Hebrew, Japanese, Urdu, Italian, German, Portuguese, Russian and Vietnamese. And in 2018 the latest edition was translated into Chinese. b For example, Brierly’s classic formulation: “illustrations of matters which at present belong to ‘domestic jurisdiction’ and not to international law are a state’s treatment of its own subjects”, is clearly no longer correct in the age of international human rights law, and is no longer found in the latest edition. c A Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th edn, Oxford University Press 2012) 53. d N Marsh, ‘Book review of JL Brierly The Law of Nations, 6th ed. H Waldock (ed)’ (1963) 12 ICLQ 1049–50.

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J. Brierly, The Law of Nations: An Introduction to the International Law of Peace (1st edn, Oxford Clarendon Press 1928). Excerpt: Chapter 1, ‘The Origin and Character of International Law’, pp 1–39. Reproduced with the kind permission of Oxford University Press.

The Origin and Character of International Law James Brierly The Rise of Modern States and of the Doctrine of Sovereignty §1. The Law of Nations, or International Law, may be defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another. Rules which may be described as rules of international law are to be found in the history both of the ancient and medieval worlds; for ever since men began to organize their common life in political communities they have felt the need of some system of rules, however rudimentary, to regulate their inter-community relations. But as a definite branch of jurisprudence the system which we now know as international law is essentially modern, dating only from the sixteenth and seventeenth centuries, for its special character has been determined by that of the European state system, which was itself shaped in the ferment of the Renaissance and the Reformation. Some understanding of the main features of this modern state system is therefore necessary to an understanding of the nature of international law. For the present purpose what most distinguishes the modern post-­ Reformation from the medieval state is the enormously greater strength and concentration of the powers of government in the former. The national and territorial state with which we are familiar to-day in Western Europe, and in countries which are founded on, or have adopted, Western European civilization, is provided with institutions of government which normally enable it to enforce its control at all times and in all parts of its dominions. This type of state, however, is the product of a long and chequered history; and throughout the Middle Ages the growth of strong centralized governments was impeded by many obstacles, of which difficulties of communication, sparcity of population, primitive economic conditions, are obvious illustrations. But two of these retarding influences deserve special notice because of the imprint which they have left even to this day on the modern state. The first of these was feudalism. Modern historical research has taught us that, while it is a mistake to speak of a feudal system, the word ‘feudalism’ is a convenient way of referring to certain fundamental similarities which, in spite of large local variations, can be discerned in the social development of all the

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peoples of Western Europe from about the ninth to the thirteenth centuries. Bishop Stubbs, speaking of feudalism in the form it had reached at the Norman Conquest, says: It may be described as a complete organization of society through the medium of land tenure, in which from the king down to the lowest landowner all are bound together by obligation of service and defence: the lord to protect his vassal, the vassal to do service to his lord; the defence and service being based on and regulated by the nature and extent of the land held by the one of the other. In those states which have reached the territorial stage of development, the rights of defence and service are supplemented by the right of jurisdiction. The lord judges as well as defends his vassal; the vassal does suit as well as service to his lord. In states in which feudal government has reached its utmost growth, the political, financial, judicial, every branch of public administration is regulated by the same conditions. The central authority is a mere shadow of a name.1 Thus to speak of a feudal ‘state’ is really a misuse of terms; for a feudal organization of society was a substitute for its organization in a state, and a perfectly feudal condition of society would be not merely a weak state, but the negation of the state altogether. Such a condition was never completely realized at any time or anywhere; but it is obvious that the tendency to disperse among different classes those powers which in modern times we regard as normally concentrated in the state, or at any rate as under the state’s ultimate control, had to pass away before states in our sense could come into existence. On the other hand there were elements in the feudal conception of society capable of being pressed into the service of the unified national states which were steadily being consolidated in Western Europe from about the twelfth to the sixteenth centuries, and influential in determining the form that those states would take. Thus when its disintegrating effects on government had been eliminated, the duty of personal loyalty of vassal to lord which feudalism had made so prominent was capable of being transmuted into the duty of unquestioning allegiance of subject to monarch in the national state; the intimate association of this personal relationship with the tenure of land made the transition to territorial monarchy easy and natural; and the identification * [Editors’ note: All footnotes in the original text re-started at No. 1 on every page. These have been amended to continuous order for the pur­poses of the present anthology]. 1 Constitutional History of England, vol. i, p. 274.

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with rights of property of rights which we regard as properly political led up to the notions of the absolute character of government, of the realm as the ­‘dominion’ or property of the monarch, and of the people as his ‘subjects’ ­rather than as citizens. Feudalism itself had been an obstacle to the growth of the national state, but it left a legacy of conceptions to its victorious rival which strongly emphasized the absolute character of government. The other influence which retarded the growth of states in the Middle Ages was the Church. It is not necessary here to speak of the long struggle between Pope and Emperor, although one incidental effect of this was to assist the growth of national states by breaking up the unity of Christendom. More significant in the present context is the fact that never until after the Reformation was the civil authority in any country regarded as supreme. Always governmental authority was divided; the Church claimed and received the obedience of those who were also the subjects of the state, even in matters far beyond the purely spiritual sphere. Even in England, always somewhat restive under papal interference, the idea of the omni-competence of the civil power would have been unthinkable. Men might dispute exactly how far the powers of each of the rival authorities extended; but that there were limits to the power of the state, that the Church had some powers over the members of the state which it neither derived from, nor held by the sufferance of, the state, was certain. States might often act as arbitrarily as any absolute state of the post-­Reformation world; they might struggle against this or that claim of the Church; but neither in theory nor in fact were they absolute. But just as the state was gradually consolidating its power against the fissiparous tendencies of feudalism within, so it was more and more resisting the division of authority imposed upon it by the Church from without; and this latter process culminated in the Reformation, which in one of its most important aspects was a rebellion of the states against the Church. It declared the determination of the civil authority to be supreme in its own territory; and it resulted in the decisive defeat of the last rival to the emerging unified national state. Over about half of Western Europe the rebellion was completely and evidently successful; and even in those countries which rejected Protestantism as a religion, the Church was so shaken that it could no longer compete with the state as a political force. The Peace of Westphalia, which brought to an end in 1648 the great Thirty Years War of religion, marked the acceptance of the new political order in Europe. The new order led naturally to a new theory of the nature of the state, the theory of ‘sovereignty’, first perhaps explicitly stated by Jean Bodin in his De republica, published in 1556. According to Bodin it was of the essence of every state that there should exist within it a central force, which was the sole source of laws, but was not itself bound by them; ‘majestas est summa in cives

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ac ­subditos legibusque soluta potestas’. This majestas or sovereignty was not necessarily vested in an individual monarch, though Bodin thought it best that it should be; theoretically it might equally well be in a minority of the citizens, when the state would be an aristocracy, or in a majority, when it would be a democracy. In Bodin himself the full rigour of the theory was mitigated by being combined with the medieval doctrine of the law of nature; his sovereign, though not bound by the law of the land, was bound by divine law, by the law of nature, and also by the laws of nations. Further he held, though rather inconsistently with his main doctrine, that even some laws of the state were so fundamental that the sovereign might not alter them; but these mitigations of the theory disappeared in later political speculation. The whole theory was essentially a deduction from the political facts existing at the time of its formulation, which have been shortly described above. Everywhere in Western Europe unified national states were emerging out of the loosely compacted and limited states of medieval times. Everywhere too, the civil authority of government was decisively establishing its supremacy over the ecclesiastical and every other rival claimant of power, and the process was taking the form of the rise of strong personal monarchies. The doctrine exactly expressed these, the most conspicuous, facts in the political aspect of Europe at the end of the sixteenth century; but it never expressed the whole truth, and the truth that it expressed was not an eternal one. It was not the whole truth because even in the age of European absolutism which followed in the seventeenth and eighteenth centuries, no monarch’s power was ever wholly without limitations; and its truth was not eternal, because, as we now know, the age of absolutism was only a temporary phase in European history. The implications of such a theory in a world in which different states have to live in relations with one another were full of portent, for it led logically to the assertion of the complete separateness and irresponsibility of every state. It gave the death-blow to the lingering notion that Christendom, in spite of all its quarrels, was in some sense still a unity, and left the relations between states not only uncontrolled in fact, as they had often been before, but uninspired by any unifying ideal. For the first time the state seemed to have become the final goal of unity. Machiavelli’s Prince, written in 1513, though it did not formulate a theory, is a relentless analysis of the art of government based on this conception of the nature of the state, as an entity absolutely self-sufficing and non-moral. But, fortunately, at the very time when European political development seemed about to justify the whole theory of sovereignty, other causes were at work which were to make it impossible for the world to accept the absence of any bonds between state and state which was its logical consequence, and to show that the new national states, so far from being destined to live

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in isolation from one another, would be brought into far more intimate and constant r­ elations than in the days when their theoretical unity was accepted everywhere.2 Among these causes may be mentioned (1) the impetus to commerce and adventure caused by the discovery of America and the new route to the Indies; (2) the common intellectual background created by the Renaissance; (3) the sympathy which co-religionists in different states felt for one another, creating a loyalty which transcended the boundaries of states; and (4) the common feeling of revulsion against war, caused by the savagery with which the wars of religion were waged. All these causes co-operated to make it certain that the state, such as the theory of sovereignty conceived it, could never in reality become the final and perfect form of human association, and that in the modern as in the medieval world it would be necessary to recognize the existence of a wider unity. The rise of international law was the recognition of this truth; for in a sense it may be regarded as a protest against the full implications of the doctrine of sovereignty. It accepted the abandonment of the medieval ideal of a world-state and took instead as its fundamental postulate the existence of a plurality of states, secular, national, and territorial; but it denied their absolute separateness and irresponsibility, and held that they were bound to one another under the supremacy of law. Thus it reasserted the medieval conception of unity, but in a form which took account of the new political structure of Europe. The Influence of the Doctrine of the Law of Nature §2. Though the system of international law is essentially modern, it had, like the modern state itself, a medieval foundation. Bodin, as we have seen, qualified the full effect of his new doctrine of the state by holding that even a sovereign is bound by the law of nature; and it was out of the conception of such a law that the early writers on international law developed their systems. Modern legal writers, especially in England, have sometimes ridiculed the conception of a law of nature, or they have recognized its great historical influence but treated it as a superstition which the modern world has rightly discarded. Such an attitude, however, proceeds from a misunderstanding of the medieval idea; for under a terminology which has ceased to be familiar to us the phrase stands for something which no progressive system of law either does or can discard. Some knowledge of what a medieval writer meant by the term is ­necessary if

2 Cf. Westlake, Collected Papers, p. 55.

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we would understand either how international law arose, or how it develops to-day. A long and continuous history,3 extending at least as far back as the political thought of the Greeks, lies behind the conception; but its influence on international law is so closely interwoven with that of Roman law that the two may here be discussed together. The early law of the primitive Roman city-state was able to develop into a law adequate to the needs of a highly civilized world empire, because it showed a peculiar capacity of expansion and adaptation which broke through the archaic formalism which originally characterized it, as it characterizes all primitive law. In brief, the process of expansion and adaptation took the form of admitting side by side with the jus civile, or original law peculiar to Rome, a more liberal and progressive element, the jus gentium, so called because it was believed or feigned to be of universal application, its principles being regarded as so simple and reasonable that it was assumed they must be recognized everywhere and by everyone. This practical development was reinforced towards the end of the Republican era by the philosophical conception of a jus naturale which, as developed by the Stoics in Greece and borrowed from them by the Romans, meant, in effect, the sum of those principles which ought to control human conduct, because founded in the very nature of man as a rational and social being. In course of time jus gentium, the new progressive element which the practical genius of the Romans had imported into their actual law, and jus naturale, the ideal law conforming to reason, came to be regarded as generally synonymous. In effect, they were the same set of rules looked at from different points of view; for rules which were everywhere observed, i.e. jus gentium, must surely be rules which the rational nature of man prescribes to him, i.e. jus naturale, and vice versa. Medieval writers later developed this conception of a law of nature, sometimes elaborating it in ways which appear to the modern mind both fanciful and tedious; but so powerful had its influence on men’s minds become, that the Church was impelled to give it a place in the doctrinal system, and St. Thomas Aquinas, for example, taught that the law of nature was that part of the law of God which was discoverable by human reason, in contrast with the part which is directly revealed. Such an identification of natural with divine law necessarily gave the former an authority superior to that of any merely positive law of human ordinance, and some writers even held that positive law which conflicted with natural law could not claim any binding force. The effect of such a conception as this, when applied to the theory of the relations of the new national states to one another is obvious; for it meant 3 Cf. Pollock, Essays in the Law, CH. ii.

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that it was not in the nature of things that those relations should be merely anarchical; on the contrary they must be controlled by a higher law, not the mere creation of the will of any sovereign, but part of the order of nature to which even sovereigns were subjected. Over against the theory of sovereignty, standing for the new nationalistic separation of the states of Europe, was set the theory of a law of nature denying their irresponsibility and the finality of their independence of one another. No doubt it was impossible to point to any authentic text of this law, and different interpretations of it were possible; but the belief that in spite of all appearance, the whole universe, and included in it the relations of sovereigns to one another, must be ruled by law, remained. Moreover, the difficulty of discovering the dictates of this law presented itself to a medieval writer with much less force than it does to the modern mind. For he had in fact a special guide ready to his hand in Roman law. The position of Roman law in Europe in the sixteenth century has an important bearing on the beginnings of international law. There were some countries, such as Germany, in which a ‘reception’ of Roman law had taken place; that is to say, it had driven out the local customary law and had been accepted as the binding law of the land. In other countries the process had not gone so far as this; but even in these the principles of Roman law were held in great respect and were appealed to whenever no rules of local law excluded them. Everywhere in fact Roman law was regarded as the ratio scripta, written reason; and a medieval writer, seeking to expound the law of nature had only to look about him to see actually operative in the world a system of law which was the common heritage of every country, revered everywhere as the supreme triumph of human reason. Moreover, this law had a further claim to respect from its close association with the Canon law of the Church. Thus Roman law reduced the difficulty of finding the contents of natural law almost to vanishing point; and in fact the founders of international law turned unhesitatingly to Roman law for the rules of their system, wherever the relations between states seemed to them to be analogous to those of private persons. Thus, for example, the rights of a state over territory, especially when governments were almost everywhere monarchical and the territorial notions of feudalism were still powerful, bore an obvious resemblance to the rights of an individual over property, with the result that the international rules relating to territory are still in essentials the Roman rules of property. It is not difficult, therefore, to see how the belief in an ideal system of law inherently and universally binding on the one hand, and the actual existence of a cosmopolitan system of law everywhere revered on the other, should have led to the founding of international law on the law of nature. We have to inquire further, however, whether this foundation is valid for us today.

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The medieval conception of a law of nature is open to certain criticisms. In the first place, when all allowances have been made for the aid afforded by ­Roman law, it has to be admitted that it implied a belief in the rationality of the universe which seems to us to be exaggerated. It is true that when medieval writers spoke of natural law as being discoverable by reason, they meant that the best human reasoning could discover it, and not, of course, that the results to which any and every individual’s reasoning led him was natural law. The foolish criticism of Jeremy Bentham: ‘a great multitude of people are continually talking of the law of nature; and then they go on giving you their sentiments about what is right and what is wrong; and these sentiments, you are to understand, are so many chapters and sections of the law of nature,’4 merely showed a contempt for a great conception which Bentham had not taken the trouble to understand. Medieval controversialists might use arguments drawn from natural law to support almost any case, but there was nothing arbitrary about the conception itself, any more than a text of Scripture is arbitrary, because the Devil may quote it. But what medieval writers did not always realize was that what is reasonable, or, to use their own terminology, what the law of nature enjoins, cannot receive a final definition: it is always, and above all in the sphere of human conduct, relative to conditions of time and place. We realize, as they hardly did, that these conditions are never standing still. For us as for them, a rational universe, even if we cannot prove it to be a fact, is a necessary postulate both of thought and action; and the difference between our thought and theirs is mainly that we have different ways of regarding the world and human society. When a modern lawyer asks what is reasonable, he looks only for an answer that is valid now and here, and not for one that is finally true; whereas a medieval writer might have said that if ultimate truth eludes our grasp, it is not because it is undiscoverable, but because our reasoning is imperfect. Some modern writers have expressed this difference by saying that what we have a right to believe in to-day is a law of nature with a variable content. In the second place, when medieval writers spoke of natural law as able to overrule positive law in a case of conflict, they were introducing an anarchical principle which we must reject. But this was a principle which died hard, and even in the eighteenth century Blackstone could write: ‘This law of nature being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe in all countries and at all times; no human laws are of any validity, if contrary to this.’5 In ­Blackstone, 4 Principles of Morals and Legislation, CH. ii. 5 Commentaries on the Laws of England, Introduction.

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however, such words were mere lip-service to a tradition, and had no effect on his exposition of the law. To hold, however, that unreasonableness can ­invalidate a rule of law is to confuse the function of legislation with that of ascertaining what existing law is. Law could never perform its proper function of a controlling force in society if courts of law did not hold themselves bound to subordinate their own ideas of what is reasonable to an assumed superior reasonableness in the law; and even if that assumption is not always well founded, it is still necessary to our social security that it should be acted upon until the law is altered. These are valid criticisms, but they do not affect the permanent truths in the conception of a law of nature, and those truths are in fact recognized and acted upon as fully to-day as they ever were. For one thing it stands for the existence of purpose in law, reminding us that law is not a meaningless set of arbitrary principles to be mechanically applied by courts, but that it exists for certain ends, though those ends have to be differently formulated in different times and places. Thus where we might say that we attempt to embody social justice in law, giving to that term whatever interpretation is current in the thought of our time, a medieval thinker might have said that positive law ought to conform to the higher law of nature. Natural law, therefore, or a like principle under some other name, is an essential underlying principle of the art of legislation. But that is not all; it is also a principle that is necessarily admitted into the actual administration of law. This is so because the life with which any system of law has to deal is too complicated, and human foresight too limited, for law to be completely formulated in a set of rules, so that situations perpetually arise which fall outside all rules already formulated. Law cannot and does not refuse to solve a problem because it is new and unprovided for; it meets such situations by resorting to a principle, outside formulated law, whose presence is not always admitted. In fact it falls back on the solution which the court or the jury think to be reasonable in all the circumstances. Even a slight acquaintance with the working of the English Common law shows it perpetually appealing to reason as the justification of its decisions, asking what is a reasonable time, or what is a reasonable price, or what a reasonable man would do in given circumstances. We do not suppose that our answers to those questions will be scientific truths; it is enough if they are approximately just; but on the other hand we do not attempt to eliminate this test of reasonableness by substituting fixed rules, because it would be impossible to do so. But this appeal to reason is merely to appeal to a law of nature. Sometimes, indeed, English law still uses the term ‘natural justice’, and our courts have to do their best to decide what ‘natural justice’ requires in particular circumstances; for example, in 1924 the Northern Rhodesia Order in Council, providing for the a­ dministration

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of that protectorate, enacted that in civil cases between natives Rhodesian courts were to be guided by native law as far as applicable and not repugnant to natural justice. The Rhodesian courts will probably experience no difficulty in interpreting this instruction. ‘The grandest function of the law of nature’, Sir Henry Maine has written, ‘was discharged in giving birth to modern international law.’6 But in the seventeenth and eighteenth centuries the medieval tradition began to be distorted by later writers, whose use of the old terminology in senses of their own went far to justify the obloquy which has been poured on the whole conception in modern times. But before considering this development and its unfortunate effects on international law it will be convenient to say something of the men whose writings first gave it systematic form. The Classical Writers on International Law §3. The first writer of a work which can properly be called a work on international law is Alberico Gentili, commonly known as Gentilis, who lived from 1551 to 1608. Earlier writers had written on some of the topics which fall within modern international law, especially on the treatment of ambassadors and on the usages of war; but they did not separate the legal from the theological and ethical, nor the domestic from the international, aspects of such questions. Thus side by side with questions such as whether war is ever justified, what causes for going to war are lawful and what unlawful, what means of waging war are permissible, and the like, they discussed questions of tactics, of military discipline, or of the duties of a vassal to help his lord, without feeling that they were treating together topics which properly belonged to different subjects. Gentilis’s service was that he definitely separated international law from theology and ethics and made it a branch of jurisprudence. ‘Let theologians hold their peace’, he writes, ‘in work that belongs to others than they.’ This attitude was natural in one who was a protestant and a layman, and not, like the earlier writers, a catholic and a priest. Born in Italy, he fled to England to escape persecution for his religion, and became Professor of Civil Law in Oxford University. His most important work was the De jure belli published in 1598. To this book, Gentilis’s more famous successor, Hugo de Groote, or G ­ rotius, was, as he himself admitted, greatly indebted, but otherwise it appears to have exercised little influence, and the very name of Gentilis was almost forgotten until recent times. He is a forerunner of the ‘positive’ school of international ­lawyers; for 6 Ancient Law, CH. iv.

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although he recognized the law of nature as binding between states, he was chiefly interested in deducing the law from their actual practice. Grotius was born in Holland in 1583, and died in 1645, and he is more generally and on the whole rightly regarded as the founder of international law. Even as a boy he acquired a European reputation for learning, and as a man he became master of every subject to which he turned his interest. He was a lawyer, a historian, a poet, and above all a theologian, whose great desire was to see the reunion of the Christian Church. Yet he did not live the life of a student, but of a man of affairs, practising the law and serving in official positions. He became involved in a quarrel arising out of the Arminian heresy, a quarrel nominally theological but really turning on the political question whether the provinces of Holland should form a loose federal union or be consolidated under the House of Orange. Grotius supported the former and the losing cause. He was imprisoned for over two years, escaped by the devotion of his wife in a box supposed to contain books, and eventually became ambassador of Sweden at the French Court. Grotius wrote two works on international law, the De jure praedae in 1604, and the De jure belli ac pacis in 1625. The former of these, in which he supported the claim of the Dutch East India Company to the capture of a prize from the Portuguese, was never published, and was only discovered in 1872. It was then found that a short work which he published anonymously in 1609, the Mare liberum, contending, in opposition to the claims of the Portuguese, that the open sea could not be appropriated by any state, had been written as one of the chapters of the De jure praedae. Few books have won so great a reputation as the De jure belli ac pacis. This was not wholly due to the merits of the book itself, though they are great; it was partly due to the time and circumstances of its publication. When he wrote it in 1625 Grotius was already so eminent that anything from his pen would have attracted attention. Further, he had the advantage of belonging to the country which in the seventeenth century was in many ways the leading country in Europe. The successful war of liberation by the Dutch against Spain in the previous century had heralded the rise of the modern state system; it had been the first great triumph of the idea of nationality, and the successful assertion of the right of revolt against universal monarchy. In the seventeenth century they were the leaders of European civilization, teaching to other countries not only new methods of commerce but new conceptions of government based on freer institutions and on some measure of religious toleration. When the issue between absolutism and liberty was still doubtful in England, and when everywhere else absolutism was triumphant and destined to remain so until the French Revolution, the Dutch had settled the issue in their own country in

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favour of liberty. Even some of the qualities which render the book tedious to a modern reader, especially its voluminous citation of authorities from ancient history and the Bible, and its excessively subtle distinctions, commended it to the taste of contemporaries still familiar with the tradition of scholasticism. Grotius’s purpose was practical. He wrote on the laws of war because, as he says: I saw prevailing throughout the Christian world a licence in making war of which even barbarous nations should be ashamed; men resorting to arms for trivial or for no reasons at all, and when arms were once taken up no reverence left for divine or human law, exactly as if a single edict had released a madness driving men to all kinds of crime.7 In contrast with this anarchy he proclaimed that even states ought to regard themselves as members of a society, bound together by the universal supremacy of justice. Man, he said, is not a purely selfish animal, for among the qualities that belong to him is an appetitus societatis, a desire for the society of his own kind, and the need of preserving this society is the source of natural law, which he defines as: The dictate of right reason, indicating that an act, from its agreement or disagreement with the rational and social nature of man, has in it moral turpitude or moral necessity, and consequently that such an act is either forbidden or commanded by God the author of nature.8 Besides being subject to natural law, he says, the relations of peoples are subject to jus gentium; for just as in each state the civil laws look to the good of the state, so there are laws established by consent which look to the good of the great community of which all or most states are members, and these laws make up jus gentium. It is obvious that this is a very different meaning from that which the term bore in the Roman law; there, as we have seen, it stood for that part of the private law of Rome which was supposed to be common to Rome and other peoples; whereas in Grotius it has come to be a branch of public law, governing the relations between one people and another. It is important, Grotius tells us, to keep the notions of the law of nature and the law of nations (to adopt a mistranslation of jus gentium which its new meaning makes almost necessary) distinct; but he is far from doing so himself. Nor was 7 Prolegomena, 28. 8 Book I, CH. i §. 10 (1).

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it possible for him to do so, as is apparent from his own statement of how their respective contents are to be discovered. He used, he tells us, the testimony of philosophers, historians, poets, and orators, not because they were themselves conclusive witnesses, but because when they were found to be in agreement, their agreement could only be explained in one of two ways: either what they said must be a correct deduction from the principles of reason and so a rule of the law of nature; or else it must be a matter in which common consent existed, and so a rule of the law of nations. Thus in effect the two notions, as we have already seen, are still the theoretical and the practical sides of the same idea. Like all thinkers who try to understand the meaning and bases of law, Grotius had to meet the perennial and plausible arguments of those who would identify justice with mere utility. His answer was clear and convincing. Justice, he said, is indeed the highest utility, and merely on that ground neither a state nor the community of states can be preserved without it. But it is also more than utility, because it is part of the true social nature of man, and that is its real title to observance by him. Grotius’s work then consisted in the application of these fundamental principles to war; for he says: It is so far from being right to admit, as some imagine, that in war all rights cease, that war ought never to be undertaken except to obtain a right; nor, when undertaken, ought it to be carried on except within the bounds of right and good faith. …Between enemies those laws which nature dictates or the consent of nations institutes are binding.9 The first book, therefore, inquires whether war can ever be justum, lawful or regular; and as Grotius was of opinion that one requirement necessary to make a war lawful was that it should be waged under the authority of one who held supreme power in the state, he was led to inquire into the nature of sovereignty. His treatment of this subject was confused and unsatisfactory, because for practical reasons it was necessary for him, writing when he did, to admit the lawfulness of wars waged by princes who were sometimes far from being independent. In the second book he dealt with the causes of wars, and in effect reduced the causes of lawful wars to two, the defence of person or property and the punishment of offenders. This necessitated an examination both of what constituted the property of a state, for example, how far the sea may do so, and how property is acquired and lost, and of many other questions which 9 Prolegomena, 25, 26.

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a ­modern writer would either place under the international law of peace, or exclude from international law altogether. In the third book he dealt with topics which fall under the modern laws of war, that is to say, with the question what acts are permissible and what are forbidden in the conduct of war. Here his plan was not only to state the strict laws of war, but to add what he called temperamenta, alleviations or modifications designed to make war more humane. It is usual in estimating the work of Grotius to speak of its remarkable and instantaneous success; and if it is a proof of success that within a few years of its author’s death his book had become a university text-book, that it has since been often appealed to in international controversies, that it has been republished and translated scores of times, and that every subsequent writer treats his name with reverence, however widely he may depart from his teaching, then Grotius must be accounted successful. But if by success it is meant that the doctrines of Grotius as a whole were accepted by states and became part of the law which has since his time regulated their relations, then his work was an almost complete failure. It is true that some of his doctrines have since become established law. For instance, the doctrine that the open sea cannot be subjected to the sovereignty of any state, and many of the temperamenta of war that he suggested have been incorporated into international law; but these particular changes were due at least as much to changes in the character of navigation and in the technique of war respectively as to Grotius. At the heart of his system lay the attempt to distinguish between lawful and unlawful war; he saw clearly that international order is precarious unless that distinction can be established, just as national order would be precarious if the law within the state did not distinguish between the lawful and the unlawful use of force. Yet this distinction never became part of actual international law; and even in the theory of the subject it was retained by most of Grotius’s successors more as an ornament to their theme than as a doctrine in which they seriously believed. Finally it disappeared even from theory, and international law came frankly to recognize that all wars are equally lawful. As the most authoritative of modern English writers on the subject says: International law has no alternative but to accept war, independently of the justice of its origin, as a relation which the parties to it may set up if they choose, and to busy itself only in regulating the effects of the relation. Hence both parties to every war are regarded as being in an identical legal position, and consequently as being possessed of equal rights.10

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It was not until the foundation of the League of Nations in 1919 that any real attempt was made to falsify this confession of weakness and to embody in actual law the cardinal principle of Grotius’s system. Grotius supplied then, not a system of law, but a philosophy of inter-state relations which could be set against Machiavelli’s brutal description of those relations as they often were, and he is great enough to dispense with the undiscriminating adulation which is often showered upon him. This adulation has done disservice to international law by encouraging a servile imitation of his methods. It was natural that Grotius, intending not merely to regulate the conduct of war but to distinguish between its lawful and unlawful occasions, should relegate the law of peace to a wholly subordinate place in his system; but when it had come to be generally accepted that this latter task must be shirked and that all that the law could do in relation to war was to attempt to mitigate its horrors by regulation, it was unreasonable that the laws of war should continue, as they did, to monopolize the interest of writers and statesmen. If the law cannot regulate the outbreak of war, as Grotius vainly tried to do, then the service next in value to which its development ought to be directed is the improvement of the laws of peace, for in them lies the best hope of making wars less frequent. Grotius’s influence has also been unfortunate in that it has encouraged the ‘patrimonial’ view of the relation between ruler and ruled, from which political thought has not even to-day wholly escaped. As we have seen, he was concerned with the nature of sovereignty only as one of the tests of the lawfulness of a war; to him the right to make war was bound up with the right to rule. Thus he tended to assimilate powers of government to the rights of private property. In the seventeenth century this view was a natural legacy of feudalism, but it is a view for which the world of the twentieth century ought to have no use. Richard Zouche, 1590–1660, Professor of Civil Law in Oxford University and judge of the Court of Admiralty, was a prolific writer on legal subjects, among his works being one on international law, the Jus feciale, published in 1650. Without abandoning the law of nature as one of the bases of international law, Zouche’s main interest was in the actual practice of states. Like Gentilis before him he was therefore a precursor of the ‘positive’ school of international lawyers, who regard the practice of states as the only source of law. Zouche introduced one important improvement of method, for he was the first writer to make a clear division between the law of peace and the law of war. This was necessary before war could be regarded, as it ought to be, as an abnormal relation between states. Samuel Pufendorf, 1632–94, Professor at Heidelberg, and afterwards at Lund in Sweden, published his De jure naturae et gentium in 1672, and was the founder of the so-called ‘naturalist’ school of writers. He denied all binding force Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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to the practice of nations and based his system wholly on natural law, but on a natural law in the new and debased form of a law supposed to be binding upon men in an imaginary state of nature. There are traces of this conception in ­Grotius, but it had little influence on his system; for his law of nature was a law of reason directing men at all times, whether organized in political societies or not, and only in this sense has the conception any permanent validity. Cornelius van Bynkershoek (1673–1743), a Dutch judge, was the author of works on special parts of international law, of which the most important was the Quaestiones juris publici, published in 1737. Bynkershoek had an intimate knowledge of questions of maritime and commercial practice, and he has an important place in the development of that side of international law. He belongs to the ‘positive’ school of writers, basing the law on custom; but he also held that custom must be explained and controlled by reason, which he refers to as ‘ratio juris gentium magistra’.11 In giving this twofold basis to international law he anticipated the best modern thought. He rightly held also that the recent practice of states was more valuable evidence of custom than the illustrations from ancient history with which his predecessors had generally adorned their works, since, ‘as customs change, so the law of nations changes’;12 but he attached more weight to the stipulations of particular treaties as evidence of the existence of custom than modern practice would allow. Emerich de Vattel (1714–69), whose work Le droit des gens was published in 1758, was a Swiss who served in the diplomatic service of Saxony. He intended his work as a manual for men of affairs, and was a popularizer of other men’s ideas rather than an original thinker; yet he has probably exercised a greater permanent influence than any other writer on international law, and his work is still constantly cited as an authority in international controversies. He accepted the doctrine of the state of nature; ‘nations being composed of men naturally free and independent, and who before the establishment of civil societies lived together in the state of nature; nations or sovereign states must be regarded as so many free persons living together in the state of nature’; and since men are naturally equal, so are states; ‘strength or weakness produce in this regard no distinction. A dwarf is as much a man as a giant is; a small republic is no less a sovereign state than the most powerful kingdom’ (Introduction). Thus the doctrine of the equality of states, a misleading deduction from unsound premises and not found in Grotius, was introduced into the theory of international law. 11 Quaestiones, Book I, CH. 12. 12 Ibid., Ad lectorem.

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According to Vattel the law of nations in its origin is merely the law of nature applied to nations, it is not subject to change, and treaties or customs contrary to it are unlawful. But other elements have been admitted into the law; for, says Vattel, natural law itself establishes the freedom and independence of every state, and therefore each is the sole judge of its own actions and accountable for its observance of natural law only to its own conscience. Other states may request it to reform its conduct; but what they may actually demand from it is something much less. This lower standard of enforceable duties Vattel calls the voluntary law of nations, because it is to be presumed that states have agreed to it, in contrast with the other element of natural or, as he calls it, necessary law. ‘Let each sovereign make the necessary law the constant rule of his conduct; he must allow others to take advantage of the voluntary law of nations’ (Book III, CH. 12). This exaggerated emphasis on the independence of states had the effect in Vattel’s system of reducing the natural law, which Grotius had used as a juridical barrier against absolute conceptions of sovereignty, to little more than an aspiration after better relations between states; yet for the voluntary law which was the only part of Vattel’s system which had a real relation to the practice of states, he provided no sound basis in theory, for he was unable to explain the source of the obligation of states to observe it. The results of this unsatisfactory division were unfortunate. For instance, Vattel tells us that by the necessary law a state has a duty to maintain freedom of commerce, because this is for the advantage of the human race; but by the voluntary law it may impose such restrictions upon it as suit its convenience, for its duties to itself are more important than its duties to others (Book II, CH. 2). By necessary law, again, there are only three lawful causes of war, self-defence, redress of injury, and punishment of offences; but by voluntary law we must always assume that each side has a lawful cause for going to war, for ‘princes may have had wise and just reasons for acting thus, and that is sufficient at the tribunal of the voluntary law of nations’ (Book II, CH. 18). In some respects, however, Vattel’s system was an advance on those of his predecessors. He stood for a humaner view of the rights of war. He emphatically rejected the patrimonial theory of the nature of government; ‘this pretended right of ownership attributed to princes is a chimera begotten of an abuse of the laws relating to the inheritances of individuals. The state is not, and cannot be a patrimony, since a patrimony exists for the good of the owner, whereas the prince is appointed only for the good of the state’ (I. 5). He recognized in certain circumstances the right of part of a nation to separate itself from the rest (I. 17), a doctrine which partly explains his great popularity in the United

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States, where a copy of the work was first received in 1775. Professor De Lapradelle has justly written of him that, before the great events of 1776 and 1789 occurred, he had written an international law, based on the principles of public law which two ­Revolutions, the American and the French, were to make effective…. Vattel’s Law of Nations is international law based on the principles of 1789 … the projection upon the plane of the law of nations of the great principles of legal individualism. That is what makes Vattel’s work important, what accounts for his success, characterizes his influence, and eventually, likewise, measures his shortcomings. Grotius had written the international law of absolutism, Vattel has written the international law of political liberty.13 None the less the survival of Vattel’s influence into an age when the ‘principles of legal individualism’ are no longer adequate to international needs, if they ever were, has been a disaster for international law. By making independence the ‘natural’ state of nations, he made it impossible to explain or justify their subjection to law; yet their independence is no more ‘natural’ than their interdependence. Both are facts of which any true theory of international relations must take account; the former is merely a more conspicuous, but not a more real, fact than the latter. It is true that in Vattel’s own day the interdependence of states was less conspicuous in international practice than it is to-day; and this partly excuses the one-sidedness of his system. None the less by cutting the frail moorings which bound international law to any sound principle of obligation he did it an injury which has not yet been repaired. Modern Theories of the Basis of Obligation in International Law §4. The traditional division between the naturalist and the positivist schools above referred to is maintained in the current literature of international law. But a purely naturalist view, like that of Pufendorf, denying any obligatory force to a positive or voluntary law of nations is practically obsolete; the modern naturalist school generally adopts an intermediate position, and recognizes a twofold basis in natural and positive law. This school has been called the ‘eclectic’ school; it is also sometimes known as the ‘Grotian’ school, on the ground that Grotius too based his system on the twofold basis of jus naturae and jus gentium. But the claim of this school to carry on the Grotian t­ radition

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cannot be sustained, because it is not to the Grotian law of nature, but to Pufendorf’s and Vattel’s debased version of it that the school generally appeals. Minor differences of doctrine must here be disregarded, but it may be said that on the whole the field is divided fairly equally between writers who agree in ­recognizing an element of natural law in this sense by the side of a positive law element, and those who profess to recognize nothing but positive law. Almost all English and American writers belong to the positivist school. Most of the adherents of both schools are agreed in conceiving of international law as a law between states only; states are ‘international persons’, the only true ‘subjects’ of the law, and individuals are merely ‘objects’ of the law, with a status comparable to that of an animal in municipal law. The two views which may be regarded as in the orthodox tradition of international legal theory are therefore (1) a naturalist view, holding that the principles of the law or at least the most fundamental of them can be deduced from the essential nature of state-persons; and (2) a positivist view which regards the law merely as the sum of the rules by which these state-persons have consented to be bound. Either view involves a conception of the nature of the state which is tending to disappear from progressive political thought, and neither affords an adequate explanation of the fact for which it professes to account, namely, international law as it may be observed in actual operation in the intercourse of states. The former of these two doctrines holds that every state, by the very fact that it is a state, is endowed with certain fundamental, or inherent, or natural, rights. Writers differ in enumerating what these rights are, but generally five rights are claimed, namely, self-preservation, independence, equality, respect, and intercourse. It is obvious that the doctrine of fundamental rights is merely the old doctrine of the natural rights of man transferred to states. That doctrine has played a great part in history; Locke justified the English Revolution by it, and from Locke it passed to the leaders of the American Revolution and became the philosophical basis of the Declaration of Independence. But hardly any political scientist to-day would regard it as a true philosophy of political relations, and all the objections to it apply with even greater force when it is applied to the relations of states. It implies that men or states, as the case may be, bring with them into society certain primordial rights not derived from their membership of society, but inherent in their personality as individuals, and that out of these rights a legal system is formed; whereas the truth is that a legal right is a meaningless phrase unless we first assume an objective legal system from which it gets its validity. Further, the doctrine implies that the social bond between man and man, or between state and state, is somehow less natural, or less a part of the whole personality, than is the individuality of the man or the state, and that is not true; the only individuals we know are individualsin-society. It is especially misleading to apply this atomistic view of the nature Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of the social bond to states. In its application to individual men it has a certain plausibility because it seems to give a philosophical justification to the common feeling that human personality has certain claims on society; and in that way it has played its part in the development of human liberty. But in the society of states the need is not for greater liberty for the individual states, but for a strengthening of the social bond between them, not for the clamant assertion of their rights, but for a more insistent reminder of their obligations towards one another. Finally, the doctrine is really a denial of the possibility of development in international relations; when it asserts that such qualities as independence and equality are inherent in the very nature of states, it overlooks the fact that their attribution to states is merely a stage in an historical process; we know that until modern times states were not regarded either as independent or equal, and we have no right to assume that the process of development has stopped. On the contrary it is not improbable, and it is certainly desirable, that there should be a movement towards the closer interdependence of states, and therefore away from the state of things which this doctrine would stabilize as though it were part of the fixed order of nature. The positivist doctrine rightly looks to the practice of states and not to a priori deductions for the rules of international law, but it generally also attempts to explain the binding force of those rules as arising from the supposed fact that states have consented to be bound by them, and this latter part of the doctrine is both untrue in its assumptions and inadequate as an explanation. Law by its very nature is imperative; there must exist an obligation to obey it, however we may explain the origin of that sentiment. But to say that a man or state is obliged only by what he or it consents to is meaningless; no obligation can arise in such a case. If we say, as of course most positivist writers imply, that consent once given cannot be retracted, we are deserting our premises and calling to our aid an unacknowledged source of obligation, which, whatever it may be, is certainly not the consent of the state, for that may have ceased to exist. Modern German writers do not shrink from facing the full consequences of the theory of a purely consensual basis for the law; they have inherited from Hegel a doctrine known as the ‘auto-limitation of sovereignty’, which teaches that states are sovereign persons, possessed of wills which reject all external limitation, so that if we find, as we appear to do in international law, something which limits their wills, this limiting something can only proceed from themselves. Most of these writers admit that a self-imposed limitation is no limitation at all; and they conclude therefore that so-called international law is nothing but ‘external public law’ (äusseres Staatsrecht), binding the state only because, and only so long as, it consents to be bound. There is no flaw in this

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argument; the flaw lies in the premises, because these are not derived, as all positivist theory professes to be, from an observation of international facts. It is quite impossible to fit the facts into a consistently consensual theory. Every positivist writer has to admit that we cannot point to an express consent by every state to every rule of international law; it is necessary to rely on an implied or tacit consent in order to establish most of the rules. But this may mean either of two things: it may mean that a state has in fact consented to a certain rule, but that it has done so not in express words but by conduct from which we are justified in inferring consent; or it may mean that although there has been no consent in fact we must presume consent, and treat the state in question as though it had consented. If ‘implied consent’ has the former meaning, then the doctrine does not fit the facts; international practice habitually treats a state as bound by rules of international law, though it may be clear that it has never consented to them in any way whatever, for example, a state newly come into existence. If the phrase has the latter meaning, we are entitled to ask why, for the sake of supporting an untenable theory, we should be asked to import a fiction into our attempt to find the true nature of international rules. In actual fact, states do not regard their international legal relations as resulting from consent, except when the consent is express;14 and what gives a certain plausibility to the consensual theory is merely the fact that, in the absence of any international machinery for legislation by majority vote, a new rule of law cannot be imposed upon a state merely by the will of other states. Obligations may arise from consent, as in a contract or a treaty, but only within a legal system which has already, somehow or other, binding force; the system cannot be founded on a consensual basis. Both the doctrines of the nature of international law which we have considered proceed by making certain assumptions about the nature of states; the naturalist that they have certain rights inherent in their statehood, the positivist that they are incapable of being ‘bound’ by anything outside their own wills. These assumptions we shall examine later.15 In the meantime we shall consider from what sources the rules and principles of law which states actually observe towards one another in their intercourse are derived. 14 15

Cf. Reeves, La Communauté internationale, p. 40. Infra, p. 62. [Editors’ note: not included in this Anthology].

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Chapter 3

Hersch Lauterpacht, The Function of Law in the International Community, 1933 Comment by Nancy Simons, Legal Officer, Belgian Central Office for Seizure and Confiscation Sir Hersch Lauterpacht was one of the most influential international lawyers of the twentieth century whose work continues to bear great relevance today. He was born in Galicia, then part of the Austro-Hungarian Empire, and read law at the University of Vienna before moving to London in 1923. Here he studied and taught public international law at the London School of Economics, where his ideas and intellect were rapidly embraced. This path propelled him to being elected as the Whewell Professor of International Law at the University of Cambridge, a post he held from 1937 to 1955. The Function of Law in the International Community is a study of the judicial function in international law. In this work, Lauterpacht conducted an in-depth and rigorous examination of third party dispute settlement, case-law, policy and the theory of international law, making a case for compulsory adjudication. The piece encapsulates a compelling approach to public international law, according to which compulsory adjudication is essential to promote the rule of law within the international community. He believed that the judicial function was the most fundamental aspect within the international community in ensuring adherence to the rule of law. He elaborated a comprehensive study against decisions of non-liquet, therefore placing great emphasis on the creativity and diligence of international judges. He himself was elected as a judge at the International Court of Justice in 1954 (pursuant to a British nomination). His vision of international law transcended his function as a judge, in which he wrote remarkable separate and dissenting opinions, such as in the Norwegian Loans Case.a1 His approach to international law is reminiscent of the context of his time with the prohibition of the use of force and his belief in the protection of human rights featuring prominently. He also developed the ideas of protection of individuals and crimes against humanity. Lauterpacht addressed a Certain Norwegians Loans (Norway v France) (Judgment) [1957], ICJ Rep 9, Separate Opinion of Judge Sir Hersch Lauterpacht.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_004

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s­ ignificant issues, such as the philosophy of international law, the nature of international law and the rule of law within international law. One of his influential insights was that the pacta sunt servanda premise of international law was better understood by the norm voluntas civitatis maximae est servanda, where the will of the international community is the central pillar of international law. The book was republished in 2011 with a preface by Martti Koskenniemi. This particular work of Lauterpacht has contributed to the foundation and evolution of international law because of its originality and progressive character. His legacy demonstrates that theoretical thinking, and law in general, should not be detached from the facts and the important realities that face both states and individuals. Despite international law not developing in the way envisaged by Lauterpacht, his work continues to influence students, practitioners and scholars of public international law and advocates in favour of forward-looking perceptions that promote cohesion within the international community.

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H. Lauterpacht, The Function of Law in the International Community (Oxford University Press 1933). Excerpt: Part III, ‘The Judicial Function and the Legal Nature of International Law’, pp 423–38. Reproduced with the kind permission of Oxford University Press.

The Judicial Function and the Legal Nature of International Law Hersch Lauterpacht The Place of Courts in the Legal System* § 20. Writers who vindicate the legal character of international law, and who, at the same time, find no fault with the existing rule which denies compulsory jurisdictional powers to international tribunals, maintain that the existence of courts is not an indispensable condition of the rule of law at all, and that, as a matter of historical experience, law preceded the establishment of regular tribunals.1 They adduce the conditions obtaining in primitive communities, which recognize self-help to a considerable extent, as an instance of that stage of legal development. They also point to a somewhat more advanced stage of legal organization in which there do exist tribunals, but in which submission to the judge is merely voluntary.2 This latter argument, so frequently and confidently repeated, may be somewhat difficult of refutation, not only because of the hypothetical character of * [Editors’ note: All footnotes in the original text re-started at No. 1 on every page. These have been amended to continuous order for the pur­poses of the present anthology]. 1 See Bergbohm, Staatsverträge und Gesetze als Quellen des Völkerrechts (1877), pp. 24–32; Bluntschli, Das moderne Völkerrecht der zivilisierten Staaten (3rd ed., 1878), pp. 8, 9 (while admitting that the absence of the judge is even more serious than the absence of a legislator); Heilborn, Grundbegriffe des Völkerrechts (1912), pp. 17, 18; Fauchille, Traité de droit international public, i (1922), No. 28; De Louter, op. cit. i. 64; Strupp, Grundzüge des positiven Völkerrechts (3rd ed., 1926), p. 3; Walz, op. cit., pp. 170–2. 2 See Lammasch, Schiedsgerichtsbarkeit, pp. 3–7. See also Ihering, Geist des römischen Rechts (2nd ed., 1866), i. 167. And see Wlassak in Zeitschrift für Rechtsgeschichte (Romanistic Section), xxxiii. 157, who shows that the civil procedure in Roman law originated in voluntary arbitration. See also Brunner, Deutsche Rechtsgeschichte, vol. i, Part ii, p. 256. And see Pollock, A First Book of Jurisprudence (3rd ed., 1911), pp. 24, 25, who also points out that the jurisdiction of courts arose from the voluntary submission by parties. However, he admits that even in archaic society ‘effectual motives for submission could be brought, sooner or later, to bear on unwilling subjects’. Possibly it might be said that such voluntary submission is voluntary in form only.

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the facts to which it refers, but also because it assumes the existence of law in communities in which, on its own showing, such existence may legitimately be the object of controversy. Whatever may be the nature of such rules the very fact that there are no impartial tribunals to adjudicate upon their operation seriously impairs their character as rules of law.3 There is substance in the view that the existence of a sufficient body of clear rules of conduct is not at all essential to the existence of law, and that the decisive test is whether there exists a judge competent to decide upon disputed rights and to command peace. The questionable value of references to conditions prevailing in primitive communities is shown by the fact that writers of authority, including Sir Henry Maine, regard the existence of judges and tribunals as the decisive test for the assumption of the rule of law.4 It is more easy to imagine the absence, in a community under the reign of law, of a sovereign authority imposing laws by express enactment than of agencies laying down authoritatively quod est juris. There are other considerations which are relevant for the determination of the legal character of rules of conduct obtaining in society and which bear on the question of obligatory judicial settlement. The first is that only through final ascertainment by agencies other than the parties to the dispute can the law be rendered certain; it is not rendered so by the ipse dixit of an interested party. Such certainty is of the essence of law. The object of law to secure order must be defeated if a controversial rule of conduct may remain permanently a matter of dispute. It must so remain as long as no agencies exist capable of determining existing legal rights with finality and without appeal.5 The second 3 See on this matter the judicious observations of Spiropoulos, op. cit., pp. 66, 67. 4 Thus, when pointing out that the further we penetrate into the primitive history of thought the further we find ourselves from a conception of law possessing all the elements of the conception of law as taught by Austin and Bentham, Maine says that ‘it is certain that in the infancy of mankind, no sort of legislature, nor even a distinct author of law, is contemplated or conceived of’ (Ancient Law, 1920 ed., p. 7). But he insists on the existence, even at that time, of the ‘authoritative statement of right and wrong’ in ‘a judicial sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for the first time by a higher power into the judge’s mind at the moment of adjudication’ (ibid.). See Walker, The Science of International Law (1893), p. 11 (‘Custom precedes Law, and the Judge the LawGiver’). See also Politis, La justice internationale (1924), p. 253, to the effect that tribunals have preceded codes, and not conversely. 5 See on this point J. Dickinson, ‘A Working Theory of Sovereignty’, in Political Science Quarterly, xlii (1927), pp. 524–48. It will be noted that it is in particular in the common law countries that the absence of obligatory courts is regarded as the main reason for denying to international law the quality of law. See, for instance, the remarks of Lord Salisbury in the House of Lords on 26 July 1887. International law, he said, ‘depends generally upon the prejudices of writers of text-books. It can be enforced by no tribunal, and therefore to apply to it the phrase “law” is to some extent misleading.’ See also Gray, The Nature and the Sources of the Law (1909), §§ 286 and 287, who, while inclined to accept the Austinian view on the nature of Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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consideration is that it is essential for the rule of law that there should exist agencies bearing evidence, and giving effect, to the imperative nature of the law.6 The law’s external nature may express itself either in the fact that it is a precept created independently of the will of the subjects of the law, or that it is valid and continues to exist in respect of the subjects of the law independently of their will. Of these two aspects of the external character of law, the second is the more conspicuous and, accordingly, more important in practice. The fact that the source of law is in its creation external to those bound by it may both in primitive and in modern society be effectively concealed behind the phenomenon of customary law; for the latter is beyond the control of the individual members of a community more as a matter of legal analysis than of political and sociological fact. But there is no ambiguity possible about the external nature of the law as ascertained and enforced by courts. In international society there is lacking to a large extent that feature of the external character of law which consists in its being created regardless of the will of those who are subject to it. That shortcoming must probably remain so long as there is no international legislature in existence—a development practically identical with the establishment of what is usually called a super-State. The other manifestation of the legal nature of international law, namely, the objective ascertainment of rights by courts, is one which could be effected within the frame of the existing practice and doctrine of international law. To acquiesce in the permanent absence also of that aspect of international law is to strain its legal character to the breaking-point. international law, believed the establishment of a true international court to be impending, and saw in it a landmark in the development of international law towards true law. Borchard, ‘Government Responsibility in Tort’, in Yale Law Journal, xxxvi (1926–7), pp. 1084–6, who is inclined to defend the legal nature of self-imposed rules, largely qualifies his position by the question: ‘If societal agencies, such as courts, are established, to which complaints of group violation of the established or agreed rules can be brought and from whom decisions against the group based on the rules can be obtained, why is it not proper to characterize such rules as law?’ They would not be law but for the existence of courts. 6 See Brierly, The Law of Nations (1928), p. 37, who says: ‘Law by its very nature is imperative; there must exist an obligation to obey it, however we may explain the origin of that sentiment.’ See also Capitant, L’impératif juridique (1928). And see above, p. 419. [Editors’ note: not included in this Anthology]. See also Renard, La théorie de l’Institution (1930), p. 459: ‘Si le droit international est en état d’inferiorité vis-a-vis du droit interne c’est parce que la justice internationale n’est pas encore parvenue à se détacher de ses origines contractuelles et arbitrales.’ The view expressed above, as to the imperative nature of the law, does not refer to the controversy whether the law in its origin is a command or a formulation of existing custom. It refers to the external nature of legal rules independently of their origin. It is probably in this sense that Verdross—rightly, it is submitted—says: ‘International law is “above” States in the same sense in which municipal law is “above” those subjected to its sway. Also international law is a law of subordination, not of coordination’ (Verfassung, p. 49). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The Meaning of the Rule ‘omnis judex in re sua’ § 21. The conception of the ‘specific character’ of international law has made legal thought insensible to the juristic heresy involved in the rule of international law which sanctions the absence of obligatory jurisdiction on the part of international tribunals to decide disputes between States. It has prevented us from seeing in its true light the fact that the majority of the judgements given by the Permanent Court of International Justice has been concerned with socalled ‘pleas to the jurisdiction’,7 i.e. with the refusal of one party, supported by a rigid and ingenious interpretation of relevant arbitration agreements, to accord to the other party the right, which Hobbes regarded as elementary even in a state of nature, of impartial adjudication. This has been done, as a rule, not for the reason that another international agency was competent to decide the issue, but on the ground that the State in question was not bound by any commitment to have recourse to judicial settlement. The conception of the ‘specific character of international law’ has prevented us from seeing any anomaly in the fact that even when the elementary duty of submission to adjudication is accepted, it is in practice often attended by elaborate reservations which reduce it to a mere formula devoid of any legal obligation. The time has come to inquire whether this is a rule which, notwithstanding its unimpeachable formal validity, is, in the present state of international law, sound and consistent with its principal doctrines and objects.8 The international lawyer must not regard himself as being prevented from attempting that task on the ground that the Permanent Court of International Justice has repeatedly expressed the opinion that it is a clear rule of international law that a State cannot be compelled against its will to submit its disputes with other States for international adjudication, and that its jurisdiction is strictly limited by the will of States. The time has come to consider whether that rule ought not, as a matter of law, to be enunciated with more diffidence and less emphasis; whether the practice of the Permanent Court itself has not gone beyond its expressed adherence to the traditional rule;9 and whether it ought not therefore to be interpreted 7 See above, p. 207 [Editors’ note: not included in this Anthology], and below, p. 427, n. 3. [Editors’ note: page 56, note 9 of this Anthology]. 8 The student of international law must observe, not without some surprise, that while successive generations of international lawyers have been at pains to explain why the vitiating effect of duress must be disregarded, no such attempt has been made in regard to the rule of international law concerning the limitation of the international judicial function. 9 See, in particular, Judgement No. 8 (Series A, No. 9, pp. 20–5) concerning the Factory at Chorzów (Claim for Indemnity), in which the Court assumed jurisdiction in a claim for reparation, the action having been brought under an arbitration clause relating to the interpretation and application of the treaty in question (see above, p. 125) [Editors’ note: not included in this Anthology]. In Judgement No. 12 (Series A, No. 15, p. 23) concerning the Rights of Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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r­estrictively as ­being derogatory to general principles of law and to international law conceived as a system of law. The fact that the State’s right to refuse compulsory judicial ascertainment of legally contested claims is a principle of present-day international law does not mean that the international lawyer is relieved of the duty to analyse this rule in order to see whether it is consistent with other, no less fundamental, rules of international law and with other manifestations of the will of States. This may sound paradoxical, but the apparent paradox vanishes when we consider that international law is not a coherent and harmonious system of precepts governed by an all-pervading unity of the reign of law, but a body of rules largely built up as a generalization of conflicting practices, and attempting to bind together by law political entities each inclined to insist on being a law unto itself. Hence the frequent occurrence of rules generally adopted in textbooks, believed to be fundamental, and acted upon by States, but which, upon Minorities in Upper Silesia the Court assumed j­urisdiction, not by virtue of an agreement conferring jurisdiction upon it, but on the ground that Poland, in the preliminary pleadings, submitted arguments on the merits, and that even in the counter-case she did not plead to the jurisdiction. The Court said: ‘… There seems to be no doubt that the consent of the State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it. It seems hard to deny that the submission of arguments on the merits, without making reservations in regard to the question of jurisdiction, must be regarded as an unequivocal indication of the desire of a State to obtain a decision on the merits of the suit.’ The solemn insistence of the Court on the will of States, as the sole source of its jurisdiction, can hardly diminish the importance of the fact that jurisdiction had been assumed over a sovereign State as the result of the failure to comply with the procedural rules of the Court. In the same Judgement the Court referred to Judgement No. 5 in which the Court assumed jurisdiction in pursuance of a declaration made by Great Britain in the course of the proceedings consenting to a decision of the Court on a point in regard to which the Court was of the opinion that it would otherwise have no jurisdiction. In its Twelfth Advisory Opinion—a judicial pronouncement of outstanding importance—the Court effected a deep inroad into the recognized principle of unanimity by acting upon the ‘well-known rule that no one can be judge in his own suit’ (Series B, No. 12, p. 32). But the difference between the facts underlying this pronouncement and those underlying the frequent insistence on its own jurisdiction being strictly limited by the will of States is not, it is submitted, a fundamental one. It is true that, in the case in hand, Turkey had previously agreed to submit the dispute for a decision by the Council of the League, but the Turkish position was that, in the absence of express provision to that effect, she was entitled to the benefit of the traditional rule of international law—sanctioned by the Covenant of the League—which required her consent to any decision on the disputed matter. The Court rejected this view on the ground that Turkey, having once agreed to the dispute being decided by the Council of the League, was bound by the general principle nemo judex in re sua. But, it may be asked, do the frequent pronouncements of the Court on its jurisdiction being invariably limited by the will of the parties really suggest that the principle nemo judex in re sua is of such general application in international law as to make it the basis of the interpretation of a treaty provision? Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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examination, reveal themselves as inconsistent in themselves, as contrary to other equally well recognized rules, and as at variance with the practice of States in other fields. Thus, for instance, the doctrine of equality of States, for a long time cherished as an obvious rule of positive international law, has been shown not to be a true reflection of the practice of States.10 The same is true of the positivist doctrine which would restrict the sources of international law to express manifestations of the will of States.11 It is true of the various aspects of the doctrine of sovereignty, including the refusal to recognize the obligatory competence of courts in disputes between members of the international society. There is indeed a glaring contradiction in the idea that, in a society of States which are ex hypothesi independent of one another, and in a relation of equality to each other, one State may legally claim the right to remain judge in a dispute in which the rights of another State are involved—a contradiction which is not solved but accentuated by the right of other States to disregard any decision thus reached, and in turn to set themselves up as judges on the disputed right. Par in parem non habet imperium is a maxim repeated by writers and tribunals as expressing the rule that the courts of one country may not assume jurisdiction over a foreign sovereign State without its consent. That rule is carried to its logical conclusion, in respect not only of the foreign State itself, but also in respect of its armed forces abroad, its public ships, and its property—even if, according to the jurisprudence of most States, the activities of that State are, in a given case, of the nature of private-law transactions. A vast literature and jurisprudence have grown up round the subject of jurisdictional immunities. But the existing rule, that the jurisdiction of international courts is in principle voluntary, is upon analysis nothing else than the assertion of the right to exercise jurisdiction over a foreign State, not in minor matters to which the maxim par in parem non habet imperium usually applies, but in international relations proper. In municipal law the interests of the State are summum jus. The State is bound by its own will so long as that will exists, but, subject to certain constitutional requirements of form, it may change its will, and with it the general contents of its law. It has at its disposal general provisions of the utmost flexibility which enable the organs of the State, while remaining within the orbit of the law, to overrule and change existing rules of law in response to the political considerations of the salus rei publicae.12 The rule of i­nternational law 10 11 12

See Dickinson, The Doctrine of Equality of States in International Law (1920). See on this point Lauterpacht, Analogies, pp. 51–71. This part of the law is not inappropriately styled by some writers ‘political law’. (See Bilfinger, ‘Betrachtungen über politisches Recht’, in Z. f. a. ö. R. und V. i. (1929), pp. 57–76. See also Smend, Verfassung und Verfassungsrecht (1928), pp. 21 et seq., and 97 et seq.) According to some, the constitution of a State as embodying fundamental provisions relating Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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s­ anctioning the State’s freedom from the bonds of obligatory judicial settlement means that the State assumes, as against other equal members of the international community, the same position as it enjoys in relation to the individuals subject to itself. This is, indeed, a sufficient reason why the application of this doctrine to the relations between States must be rejected. Any doctrine which, in relations between States, postulates the individual interest of the single State as the ultimate standard of values and of legal obligation, amounts to a negation of international law. It disregards the fact that, while in its internal relations the State is a law unto itself, and while its important interests are there the decisive consideration, this is not so in its capacity as subject to international law. This does not mean that international law disregards its important interests. It means only that these highest interests are recognized, measured, and adjusted by international law by reference to the equal interests of other States and to those of the international community as a whole. Undoubtedly the ultimate purpose of law is to serve the interests of those subjected to its sway. But that cannot mean that every important interest, so deemed by the State in question, can claim superiority over rights, recognized by international law, of other States. No doubt it is true to say that international law is made for States, and not States for international law, but it is true only in the sense that the State is made for human beings, and not human beings for the State. International law is made for States in their totality, and not for the transient benefit of the individual State. So far as the State’s vital interests are concerned they are invariably within the sphere of legal protection by international law. But they are so protected as part of the international legal order. The sanctity and supremacy which metaphysical theories attach to the State must be rejected in any scientific conception of international law.13

13

to the State itself partakes of the nature of ‘political law’. This conception of the nature of the constitution is advocated, not only by German writers like Ihering (Der Zweck im Recht (1880), pp. 318 ff.), Jellinek (Allgemeine Staatslehre (1900), pp. 330 ff.), and Laband (Das Staatsrecht des deutschen Reichs (3rd ed., 1895), i, 649), but also, from a slightly different angle, by English constitutional lawyers. Dicey, referring to English constitutional law, says: ‘Conventions, understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the Courts’ (The Law of the Constitution (8th ed., 1915), p. 23). One may not agree with the definition of law underlying this statement, but it is difficult to deny the existence within the State of rules, the non-observance of which by the highest legislative or executive organs of the State, far from amounting to a breech of law, will be constitutive of new law expressive of the changed political necessities of the State. See on this point Borchard, ‘Government Responsibility in Tort’, in Yale Law Journal, xxxvi (1926), p. 789. In general, a treaty of unlimited obligatory arbitration is no more incompatible with the State’s freedom of action than any other agreement in which a State binds itself to pursue, or to refrain from pursuing, a course of action. In an ordinary treaty a State binds itself to Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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International Law and General Jurisprudence § 22. If—as it is submitted is the truth—the existing rule on the place of law and of the judicial function is incompatible with general principles of law and with the conception of law itself as generally recognized, then the international lawyer is confronted with his central problem, which is at the same time one of the principal problems of the philosophy of law in general. Shall international law, by refusing to admit its present imperfections and by elevating them to the authority of legitimate and permanent manifestations of a ‘specific’ law, abdicate the task of raising itself above the level of a primitive law of a primitive community? The results of the present inquiry into the scope of the international judicial function, as well as the writer’s studies of the general relation of international law to private law,14 seem to him to justify the submission that the future development of international law will be conditioned by its incorporation into the general principles and conception of law as developed by civilized communities without reference to the ‘state of nature’ existing among States.15 The more international law approaches the standards of municipal

14 15

allow its will to be determined in the future by the will of the other contracting party acting in accordance with its own interest. In a treaty of obligatory arbitration it binds itself to have, in the future, its conduct determined by the will of an impartial agency deciding according to law. The only (and certainly important) point of difference is that, in so far as the doctrine rebus sic stantibus applies to other treaties, it cannot be applied to this particular one. For it is difficult to see how any change of circumstances can justify the refusal to have a dispute settled by law. It could, no doubt, be said that, in so far as the doctrine rebus sic stantibus may legitimately be put forward in regard to an ordinary treaty obligation, it may be invoked in respect of an arbitration treaty, seeing that a judicial settlement is merely the application of the existing law, and that therefore the doctrine rebus sic stantibus, calculated as it is to defeat the operation of existing obsolete law, may with equal justification be advanced against an arbitration treaty likely to result in an affirmation of a legal position believed to be obsolete. However, in the writer’s opinion, the very idea of a plea of changed conditions being applied to the obligation to submit to judicial settlement is abhorrent to the idea of law. It can be explained only in terms of a determination to challenge the reign of law. So long as the reign of law is recognized, the doctrine rebus sic stantibus can be pleaded, with reference to a specific legal position said to be obsolete, within the frame of the duty of judicial settlement. In fact, so long as the doctrine rebus sic stantibus is claimed to be a legal doctrine, it is possible of application only through the agency of a judicial body. See above, pp. 276 et seqq. [Editors’ note: not included in this Anthology]. Private Law Sources and Analogies of International Law (1927), passim. See the discussion by J.B. Moore of the ‘essentials of an organisation which would place international law on substantially the same footing as municipal law’: International Law and Some Current Illusions (1924), pp. 302–4. See also J.B. Scott in A.S., Proceedings (1930), p. 32. For an eloquent statement of the identity—save in the matter of the extent of their operation—of international and municipal law see also Krabbe, The Modern Idea of State (Eng. trans.), pp. 432 et seqq. See also, to the same effect, De Louter, op. cit. i. 17 (somewhat Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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law, the more it approximates to those standards of morals and order which are the ultimate foundation of all law. The time-honoured repudiation and disparagement of the analogy to municipal—and, in particular, to private—law is merely another aspect of the insistence on the so-called specific character of international law. That specific character of international law has revealed itself as the negation of the idea of law. It is better that international law should be regarded as incomplete, and in a state of transition to the finite and attainable ideal of a society of States under the binding rule of law, as generally recognized and practised by civilized communities within their borders, than that, as the result of the well-meant desire to raise its formal authority qua law, it should be treated as the perfect and immutable species of a comprehensively diluted genus proximum.16 There is an obvious disadvantage attaching to the application, in the domain of jurisprudence, of the principle of Gresham’s Law in economics, according to which ‘bad money drives out good’. There is no good reason why primitive law, if law it be, should drive out developed law as the decisive factor in determining the conception of law. A departure from this path of juridical rectitude constitutes only an insignificant danger to municipal jurisprudence where what has been called ‘the normative force of social reality’ automatically acts as a corrective to misguided legal theory. In international law the effects of such methods are more pernicious. They sanction its imperfections. They prevent its development. They tend to deprive it of an attainable ideal. It may be admitted that the conception of law is an historical category, subject to changes of time and space; but, because it is an historical category, it is inadmissible that a conception of law founded on generalizations from conditions obtaining in the rudimentary stage of legal development should remain intact at a later stage, and consequently prove a cause of disintegration.

16

inconsequently, seeing that elsewhere he denies to international law the most prominent characteristics of municipal law: see above, p. 404). [Editors’ note: not included in this Anthology]. This latter course is generally followed by international lawyers. Only at times of international crises, which reveal the imperfections of the existing law, the tendency towards what we believe to be a more accurate approach stands out clearly. Liszt, the author of the well-known German text-book, was, in ten successive editions of his treatise, inculcating into the mind of the student the view that international law is based on agreement, that it is a law different from municipal law, and that the element of compulsion must necessarily be absent from it (10th ed., p. 10). But in the 11th ed., prepared by Liszt himself in 1918, there is a radical change of attitude (p. 8). International law is there said to be of the same nature as the law of the State, and the introduction of the factor of compulsion is described as the necessary practical goal of its development if it is to maintain itself as law. Oppenheim’s similar change of attitude has been noted elsewhere (see above, p. 404). [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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It is submitted that the arguments usually adduced in support of the legal nature of international law conceived as a ‘weak law’17 may be plausible and even scientifically accurate, but that their cumulative effect is such as to explain it away to the point of extinction. It is possible, by reference to the history of primitive communities, to assert the possibility of a legal order without a sovereign authority enacting laws; it is possible to think of a rudimentary legal order, possessing no courts with obligatory jurisdiction to ascertain disputed rights; it is possible to conceive a system of law having no organs for its enforcement, and relying for that purpose on self-help. But it is permissible to ignore the vitiating consequences of any single defect only if other essential elements are present to neutralize the results of the shortcomings in one particular sphere. To assert the possibility of the existence of a legal system in which all these elements are lacking is to reduce the conception of law to a shadow of its own self, or else to apply it in a meaning different from that usually attached to it. The difficulty is not solved by the assertion that primitive communities offer an historical proof for the view that rudimentary systems of law do exist notwithstanding these shortcomings. For not only does the designation of the rules, obtaining within a community, as ‘rules of law’ beg the question of their legal nature; and not only is a cumulation of these shortcomings unknown even to primitive society: the decisive factor is that modern States are not primitive communities and that there is a patent contradiction in any attempt to construe the relations between States of to-day as governed by the law of primitive peoples. Accordingly, lawyers who endeavour to explain by this method the perpetuation of the existing shortcomings of international law are engaged in a task which is as unscientific as it is unprogressive.18 This reproach cannot be effectively met by the plea that there is nothing contradictory in the fact that relations of States with a developed system of law within their borders are governed, in their relations inter se, by a deficient and almost illusory system of law. Only the current personification of the metaphysical State, supported by the questionable doctrine of States as the sole subjects of international law, enables writers to assert and justify the possibility of human beings—for States and Governments are made up of human beings—adopting fundamentally differing standards of order and justice in different spheres of action. 17 18

See above, p. 402. Professor Brierly (Law of Nations (1928), p. 52), referring to the weakness of international law in regard to the imperfections of its law-creating machinery, says—rightly, it is ­submitted—that such ‘customary law can never be adequate to the needs of any but a most primitive society, and the international society of to-day is not, except in the matter of its law, at the primitive stage’.

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The notion of law, with the help of which the international lawyer gauges and determines the nature of the rules which form the subject-matter of his science, is necessarily an a priori one. But this is an additional reason why it should be construed on the basis of what is best and most developed in legal experience—not on the basis of the emanciated, fragmentary, and historically questionable experience of primitive communities in past ages. It is of the essence of the dignity of legal science—including the science of international law—to resist the temptation to lower the standard of law to the low level of an avowedly rudimentary practice. The Task of the Science of International Law § 23. In this vindication of the dignity of their science international lawyers are confronted with two tasks, whose performance ought not, it is believed, to be delayed much longer. Both these tasks arise directly out of the subject discussed in this book. The first is the imperative necessity for abandoning a doctrine which—expressed in the traditional distinction between justiciable and non-justiciable or legal and political disputes—has lost its original usefulness and has become an obstacle in the way of legal progress. The variety of contradictory meanings attached to this distinction, together with the disconcerting fact that a scientific discussion has been conducted for many years on a matter of fundamental importance bearing upon international life amidst a confusion of language which has rendered, and must render, that discussion fruitless, are not likely to enhance the authority of international law. Even if it could (although in fact it cannot) be shown that each of the four aspects of the conception of justiciable disputes is sound in itself, the very fact that they cover substantially different categories of disputes (so that a dispute which is justiciable according to one test is non-justiciable according to another) makes it unfit for the purpose of scientific exposition, or for the expression of legal obligations in an international treaty. The doctrine can mean so much that it does not mean anything. International lawyers have in recent years become increasingly conscious of this difficulty. However, their attitude on this question creates the impression of a passive acquiescence in an inherited evil. Baffled by the impasse into which the current distinction between the two classes of disputes has led them, some i­nternational lawyers believe that, although the distinction between legal and political disputes may be theoretically correct, its practical importance is insignificant. Others express the view that, although theoretically difficult to establish and to maintain, it may render useful service in practice. It has been shown here that the doctrine is untenable in theory and harmful in practice.

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It is embarrassing to note the resignation with which most international lawyers, fully conscious of the juridicial unsoundness and confusing ­effect of the traditional distinction between the two classes of disputes, justify the ­perpetuation of this distinction in international conventions on the sole ground that Governments attach importance to it. But Governments, it has been shown, attach importance to it, not only because it is a convenient means of substituting an apparent for an effective obligation, but also because of the encouragement which it receives from international lawyers.19 This is the reason why it is a duty incumbent upon the lawyer to adopt a critical attitude in regard to that doctrine in the interest not only of the dignity of the science of international law, but also of an effective peaceful organization of the international community which it is the legitimate business of international lawyers to promote. For, it is submitted, the rejection of the substance, and of the terminology, of the current doctrine—expressed in the traditional ­classification—of the necessary limitation of the international judicial function does not constitute a merely theoretical result. That doctrine has now become a factor possessing a reality transcending that of a mere legal theory. In an ever-growing number of arbitration conventions States have pledged themselves to judicial settlement in all legal (justiciable) as distinguished from political (non-justiciable) disputes. The fact that the doctrine has thus found a place in leading treaties of pacific settlement has created a situation in which conventional international law is, on a subject of fundamental importance to international society, illusory and non-effective. There is little merit in an international convention the vital clause of which is based on a distinction which does not exist, or, to say the least, the meaning of which is so elastic and indefinite as to deprive the clause of practical value. Even the so-called Optional Clause of Article 36 of the Statute of the Permanent Court of International Justice, the most general and important arbitration convention, has, according to some, incorporated the current classification by qualifying, as the result of the use of the term ‘legal’, the four classes of disputes in regard to which obligatory jurisdiction is conferred upon the Permanent Court of International Justice. The supposed fundamental difference between justiciable and non-justiciable disputes has had the effect of increasing the emphasis upon so-called alternative means of settlement, notably conciliation. The decisive feature of these alternative means of settlement is that they do not imply any legal obligation to accept the finding or the recommendation of the body called upon to deal 19

It is apparently with reference to that doctrine that statesmen, who did not lack experience in the sphere of international action, expressed the opinion that lawyers were obstructing international arbitration in the same measure as naval experts were hampering international disarmament. See Lord Robert Cecil in The Times, 12 May 1929. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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with the dispute. At the same time the acceptance of the obligation to have recourse to the alternative means of settlement creates the impression of a real commitment in the field of pacific settlement of disputes. Thus, under the cloak of a mere difference in procedure, a check is being put on the reign of law between nations. It is possible that, in the initial stage of the development of international judicial settlement, the traditional classification played a useful part by allaying the apprehension of Governments over the possible consequences of undertaking the commitments of obligatory arbitration.20 It is a common phenomenon in natural and social sciences that fictions which are, and are known to be, scientifically false are adopted and maintained for a time as a scaffolding, as it were, to aid the erection of the edifice of accurate knowledge.21 But the same scientific experience shows that, once that object has been achieved, there ought to be no hesitation in pulling down the scaffolding and in refusing to permit the fiction to outgrow its original usefulness. The second task with which international lawyers are confronted lies in the domain of method and general approach. The opposition, on the part of many international lawyers of authority, to the universal application of judicial settlement, and their insistence on the necessity for retaining in some form the traditional classification of disputes, come from the conviction that law must not be treated as a panacea able to secure peace in all circumstances. There is, as we have seen, certainly much force in this view. But it is essential that international lawyers should develop an attitude of criticism in regard to the very effective—although now somewhat trite—argument that law is not a panacea. Law can never, on the plane of mere fact, become an effective substitute for war. But that does not mean that law is not in itself a powerful constituent element of peace. Undoubtedly the effectiveness of the law depends to a large extent upon the prevalent practice and the general level of morality,22 but the very fact of the reign of law is, and tends to become increasingly, part of common practice and morality. The reign of law, represented by the incorporation of obligatory arbitration, as a rule of positive international law, is not the only means for securing and preserving peace among nations. Nevertheless it is an essential condition of peace. A given factor may not be the only condition of the consummation of a desired object. But that does not mean that it is not an indispensable condition of its achievement, or that there are not in existence other conditions equally essential. From the fact that obligatory arbitration is a conditio sine qua non of the normal machinery for the preservation of peace, it 20 21 22

See above, p. 5. [Editors’ note: not included in this Anthology]. See Vaihinger, The Philosophy of ‘As if’ (translated by Ogden, 1924). See Brierly in Cornell Law Quarterly, xiii (1928), p. 397. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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does not follow that peace is not equally dependent on other factors, including an enhanced consciousness of international solidarity, and a broad-minded preparedness not to rely rigidly on acquired legal rights when such rights happen to conflict with justice and with the peaceful and progressive development of international relations. It is possible that, in dealing with questions relating to the place of law and of courts in the international society, international lawyers have attached importance to separating legal exposition from any pacifistic tendency. But if pacifism is identical with the insistence on the reign of law in international relations, then it may be doubted whether a jurist conscious of the true nature of his task may hope to achieve a rigid separation of this nature. For peace is not only a moral idea. In a sense (although only in one sense) the idea of peace is morally indifferent, inasmuch as it may involve the sacrifice of justice on the altar of stability and security. Peace is pre-eminently a legal postulate. Juridically it is a metaphor for the postulate of the unity of the legal system. Juridical logic inevitably leads to condemnation, as a matter of law, of anarchy and private force. It is one of the unsatisfactory features of modern international law that it has neglected to find a legal foundation for the so-called pacifism which it has relegated to the domain of morals and sociology. Just as positivism in the domain of international law has become unscientific by being driven, through its own exaggerations, to disregard the very practice of States which it professes to regard as the only source of law, so the desire of generations of international lawyers to confine their activity to a registration of the practice of States has discouraged any determined attempt at relating it to higher legal principle, or to the conception of international law as a whole. The latter function can—effectively, it is submitted—be performed by means of the legitimate methods of juridical criticism and analysis.

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Chapter 4

Georg Schwarzenberger, The Rule of Law and the Disintegration of the International Society, 1939 Comment by Dr Andraž Zidar, former Dorset Senior Research Fellow in Public International Law (2012–2015), BIICL Writing in 1939, just before the outbreak of the Second World War, Schwarzenberger vividly captures the atmosphere of the “gathering storm” in the pessimistic introductory account of the degradation of the international order that would soon materialise into a fierce conflict. The Second World War would eventually lead to the new world order epitomised in the UN Charter; however, in the pre-war moments of 1939 this qualitative leap was unpredictable. Dissatisfied with the anomic state of international affairs – and the impotence of international law to counter such developments – Schwarzenberger points to the distinction between community and society (originating in works by Ferdinand Tönnies). Projected onto the international sphere, the international community should be premised on collective interests, the solidarity of its members and the rule of law. The international rule of law should function as an important cohesive force in the international community on the basis of elements such as universality, democracy, peaceful settlement of disputes, collective security, disarmament and free trade. Unfortunately, the disruptive developments of the 1930s testified that the world was still in the form of the international society. Different from the community, the fabric of the international s­ ociety is incoherent and dominated by the arbitrary use of force and the working of the balance of power. The reality was therefore far from ideal and international law was functionally dependent on factors of power relations and politics. Schwarzenberger ends his article with an aspiration that the international system would develop into a world community based on the rule of law. At its core, the article embodies Schwarzenberger’s discontent with the positivistic ­approach to international law and would subsequently lead him to develop the ­sociological (inductive) approach to international law, which was conceptually close to the English school of international relations.

© koninklijke brill nv, leiden, 2021 | doi:10.1163/9789004386242_005

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G. Schwarzenberger, ‘The Rule of Law and the Disintegration of the International Society’ (1939), 33 American Journal of International Law, pp. 56–77. Reproduced with the kind ­permission of Cambridge University Press.

The Rule of Law and the Disintegration of the International Society Georg Schwarzenberger Professor A.L. Goodhart, of Oxford, in a paper on “The Nature of International Law” indicates a field of research which has hitherto been somewhat neglected by international lawyers. He suggests that “some of the most distinguished writers on international law have not sufficiently emphasised in their definitions of international law the essential part played by the community.”1 This criticism does not, in our opinion, apply only to the definition of international law. None of its main issues, such as recognition, state responsibility, protection of nationals and property abroad, extradition, neutrality, intervention, or the rules of warfare, can be seen in their proper perspective if we disregard this background and the fundamental changes now taking place in the social environment which Professor Goodhart calls the “community.”2 It is, however, only fair to add that a good deal of pioneer work on the subject had already been undertaken when Professor Goodhart issued this challenge.3 On the other hand, these problems were regarded until comparatively recently as questions of secondary importance on the borderline between the 1 Transactions of the Grotius Society, Vol. 22 (London, 1937), p. 41. 2 For a study of the influence of essential changes in the political and social structure of a state on its international status and obligations, see the present writer’s monograph, Die KreugerAnleihen, ein Beitrag zur Auslegung der internationalen Anleihe- und Monopol-verträge sowie zur Lehre vom Staatsbankerott (Munich and Leipzig, 1931), p. 40 et seq.; for the effect of a transformation of this kind upon the law of extradition, see an anonymous paper, “Extradition to Germany,” in Transactions of the Grotius Society, Vol. 21 (London, 1936), p. 191 et seq.; and on the rules of international state responsibility, W. Friedmann, in The British Year Book of International Law (London, 1938), p. 118 et seq. 3 Bibliography in Oppenheim-Lauterpacht, International Law (London, 1937), Vol. i, p. 11, note 1; and Axel Möller, International Law in Peace and War (London, 1931), Vol. i, p. 15. In addition we should like to mention Max Huber, “Beiträge zur Kenntnis der soziologischen Grundlagen des Völkerrechts und der Staatengesellschaft,” in Jahrbuch des üffentlichen Rechts (Tübingen), 1910, Vol. iv; the two books on this subject by Alfred von Verdross: Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung (Tübingen, 1923), and Die Verfassung der Völkerrechtsgemeinschaft (Vienna and Berlin, 1926); also H.A. Smith’s penetrating article, “The Real Weakness of the League,” in The Nineteenth Century and After (London, 1936).

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disciplines of international law, jurisprudence and sociology. If the discussion on the existence and character of the international community at present ­attracts more attention than ever before, or if it even appears to be one of the main issues at stake, this phenomenon in itself is an indication that the “community” is no longer regarded as stable. Although even the limited task of analyzing past events would not be unattractive, there may be something to be said for the view that the study of this process is still of topical interest. It is on the face of it reassuring to find that so eminent an authority on international relations as Señor Don Salvador de Madariaga confidently states in one of his latest books: “The basis of the present work is that a world community exists. We have smuggled that truth into our store of spiritual thinking without preliminary discussion. We start with this preconceived idea or guess of our instinct that there exists a world ­community.” With the intellectual honesty which is one of his main characteristics, he adds the significant words: “We moderns have not only immediately guessed or felt the world community, but begun actually to assert, create and manifest it, though we do not know yet what the world community is, what are its laws, what are its principles, nor how it is going to be built in our minds.”4 These admissions themselves make a closer study of the problem advisable, and the urgency of such an undertaking becomes even more evident when they are contrasted with the more pessimistic warnings of other leading statesmen. The Secretary of State of the United States speaks, in a recent address, of a “world growing internationally more and more disordered and chaotic”;5 and Mr. Sayre analyzes the situation thus: During the past few years, and particularly during the last few months, events have taken place which challenge the very existence of international order, and, indeed, the very fundamentals upon which alone a Christian civilization can be built. …The supreme question which we and all the world face today is whether or not we are to live henceforth in a world of law or a world of international anarchy.6

4 The World’s Design (London, 1938), p. 3. 5 Cordell Hull, “The Spirit of International Law,” address before the Tennessee Bar Association, June 3, 1938 (U.S. Govt. Printing Office, Washington, 1938), p. 14. 6 Broadcast address by Francis B. Sayre, Assistant Secretary of State, Washington, June 6, 1938, “American Foreign Policy” (Washington, 1938), p. 1. See also Nicholas Murray Butler’s address on “The Abdication of Democracy,” June 1, 1938, reported in the New York Times, June 2, 1938.

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A similar note is struck on the other side of the Atlantic. The Prime Minister of Great Britain expresses his “feeling of revolt against the folly of mankind”7 and is “appalled at the prospects.”8 Mr. Eden paints the picture in still darker colors: “It is utterly futile to imagine that we are involved in a European crisis that may pass as it has come. We are involved in a crisis of humanity all the world over. We are living in one of those great periods of history which are awe-inspiring in their responsibilities and in their consequences. Stupendous forces are loose, hurricane forces.”9 In France, M. Daladier, Prime Minister and Minister of National Defense, exhorts his countrymen to rally at this vital moment, “car tout un monde est en train de se transformer autour de la France. Car une formidable métamorphose s’accomplit chaque jour derrière les fleuves et les montagnes qui la bordent et si l’on ne tenait compte que du déchainement de forces brutales, il semblerait que notre destin soit d’être entrainé par cette tourmente.”10 Nor are the totalitarian states silent in this chorus of anxiety and pessimism which may be fittingly concluded by the German Chancellor: “The organization of human society is menaced. No single State structure will collapse, but a confusion of leagues, the new human dissension, has fallen upon the world. … The world around us is filled with wars and rumors of wars. Unrest fills the nations and revolution shakes many countries.”11 A situation which calls forth such alarming statements from leading politicians on both sides of the Atlantic is a challenge not only to statesmen but also to students of international law and relations. It is their especial task to examine the connection between their own subject and the general social environment, to analyze the repercussions which such a movement may have upon their customary conceptions and values, to adapt these in the light of ­experience, to

7 8 9 10

11

Speech at Birmingham, Feb. 4, reported in the London Times, Feb. 5, 1938. Speech at Boughton House, Kettering, July 2, reported ibid., July 4, 1938. Address at the annual dinner of the Royal Society of St. George, April 26, reported ibid., April 27, 1938. Speech at Lyons, June 5, reported in Le Temps, June 6, 1938. Addresses in a similar vein by the representatives of other member states of the League of Nations may be found in the Minutes of the January session of the League Reform Committee and of the 101st session of the League Council. Proclamation at the opening of the 9th n.s.d.a.p. Congress, reported in the Western Mail, Sept. 8, 1937. Herr Hitler expressed similar views in his speech at the state banquet in Rome, May 7, reported in the London Times, May 9, 1938.

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contribute to the deeper understanding of this ­critical situation,12 and, if possible, to find adequate means of escape from the impasse.13 1

The Social Substratum of the Interstate System and the Functions of International Law

The diplomatic documents, decisions of tribunals and legal literature referring to the social substratum of the interstate system have one feature in c­ ommon— the highly liberal terms in which they describe it. It is variously called the international community, the community or concert of civilized states, the community of international law, the family of nations, the international fraternity, and the society of nations.14 Since, however, there are obviously nuances of meaning, it seems advisable to keep strictly to the terminology which most 12

13

14

Any investigation of such borderline problems is outside the scope of “pure” legal research, if its function is limited, as Kelsen suggests (Reine Rechislehre (Leipzig, 1934), pp. 9–10), to an analysis of legal rules as such and their relation to each other. Legal ­research, we believe, has to apply the sociological method as well as the logical and dogmatic. If this is admitted, the question of whether an examination of the kind we propose belongs to the sphere of law proper or to that of the sociology of law, becomes merely a matter of finding the appropriate scope for legal research. It must, however, be emphasized that the refusal of the lawyer to investigate from his own angle the relation of the legal system to the wider issues of social life, in short, law as a historical reality, must inevitably lead to sterility of legal research, especially in a period of crisis and transition. See on this point the excellent lectures by Dietrich Schindler: “Contribution à l’étude des facteurs sociologiques et psychologiques du droit international.” (Recueil des Cours de l’Académie de Droit International, Tome 46 (1933), p. 235 et seq.). Here we follow in the footsteps of Max Huber, who even before the war asserted that the science of international law can maintain its leading position only as long as it is able to  see beyond the present. (“Beiträge zur Kenntnis der soziologischen Grundlagen des ­Völkerrechts und der Staatengesellschaft,” reprinted in Berlin, 1928, pp. 6–7.) See also Lauterpacht, The Function of Law in the International Community (London, 1933), p. 434 et seq. A few examples may be selected at random:  (a) The term “international community” is frequently used in Oppenheim-­ Lauterpacht’s International Law (London, 1937), Vol. i, e.g., p. 13. The same phrase is to be found in the dissenting opinion of Mr. Weiss in the case of the S.S. Lotus, Permanent Court of International Justice, Series A, No. 10, p. 43, and is expanded to “the international community of modern States” in a judgment of the Commercial Tribunal of Luxemburg, 1930 (Annual Digest, 1929–1930, p. 8). To give an example from diplomatic practice, the term “community of Christian nations” is used by Don D.F. Sarmiento (Chile) in a note to Señor Ribeyro, May 1, 1864. (Digest of the Diplomatic Correspondence of the European States, 1856–1871 (Berlin, 1932), Vol. i, No. 470.).

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nearly corresponds to the nature of these group relations, especially as sociological research makes a clear distinction between the two main groups of social relations—community and society. In accordance with this established practice, a community may be defined as a social group in which behavior is based on the solidarity of members, a cohesive force without which the community cannot exist.15 The Permanent Court of International Justice was confronted with this problem when it had to define the term “community,” which occurred in Article 6, Paragraph 2 of the Convention of November 27, 1919, between Bulgaria and Greece. The Court was asked, inter alia, to give an opinion in an advisory capacity on the criterion to be applied in order to determine the nature of a

15

 (b) “Family of nations” as equivalent to “international society” or “international community” is used by H. Lauterpacht in The Function of Law in the International Community (London, 1933), pp. 421–423. In The Family of Nations (New York, 1938), p. 106, Nicholas Murray Butler distinguishes between a “genuine” and a “merely nominal” family of nations. The term is also contained in a judgment of the Court of Appeals of New York in 1923 (235 N.Y. 255, 139 N.E. 259). A complementary example from state correspondence may be found in the note from Manuel al Tocornal á los Ministros de Relaciones exteriores de las Potencias extranjeros, May 4, 1864. (Digest of Diplomatic Correspondence, cited above, Vol. i, No. 471.) Sarcasm is perhaps not entirely absent from the Rescript of the Emperor of Japan of March 27, 1933, in which he announces that the withdrawal of his country from the League of Nations does not mean that it “will isolate itself thereby from the fraternity of nations.” (A.B. Keith, Speeches and Documents on International Affairs, 1918–1937 (London, 1938), p. 268.)  (c) “International Society” is used by Charles Cheney Hyde in his article on “The Influence of Mental Reservations on the Development of International Law,” in this Journal, Vol. 24 (1930), p. 358; by J.S. Reeves in his lectures on “La communauté internationale,” in Recueil des Cours de l’Académie de Droit International, Tome 3 (1924), p. 17; and by Arrigo Cavaglieri in Lezione di Diritto Internazionale (Naples, 1925), p. 8. The term is also to be found in a judgment of the U.S. Circuit Court of Appeals, First Circuit, 1822 (2 Mason’s Reports 409).  (d) “Community of international law” (Völkerrechtsgemeinschaft) is a term particularly favored by German authors. See Alfred von Verdross, Die Verfassung der ­Völkerrechts-gemeinschaft (Vienna and Berlin, 1926), and Karl Schmid, Die ­Rechtsprechung der s­ tändigen Internationalen Gerichtshofs (Stuttgart, 1932), p. 39.  (e) The interchangeability of these terms is particularly noticeable in Lauterpacht’s book (see (b) above), and in Art. 1 of the resolution on the recognition of new states and governments adopted by the Institute of International Law at Brussels, April, 1936. Ferdinand Tönnies, in Gemeinschaft und Gesellschaft (Leipzig, 1935), p. 3 et seq.; Max Weber, Grundriss der Sozialökonomik, iii Abteilung, Wirtschaft und Gesellschaft (Tübingen, 1922), p. 21; Salvador de Madariaga, Theory and Practice in International Relations (London, 1937), pp. 10–11. See also Sir Henry Summer Maine, Ancient Law, Its Connection with the Early History of Society and Its Relation to Modern Ideas (London, 1930), p. 180 et seq., and note 20 below.

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community within the meaning of the above Convention.16 The Bulgarian Government maintained that “a community, being a legal fiction, only exists in virtue of the law of the country in question.”17 The Court, however, distinguishing between a commune—the product of public municipal law18—and a community composed in this case of a minority, declared itself in favor of a sociological interpretation, and refused to give the word a specific meaning other than the “general traditional conception.” By tradition, which plays so important a part in Eastern countries, the “community” is a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by this identity of race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and up-bringing of their ­children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other.19 The criterion of solidarity is the decisive test in the classification of social groups, and if this bond is lacking, or is not strong enough to create the necessary cohesive force, the collective entity fulfils another function—the adjustment of diverging interests. This is the essential feature of a society. Whereas the members of a community are united in spite of their individual existence, the members of a society are isolated in spite of their association.20 Neither 16

Permanent Court of International Justice, Series B, No. 17 (The Greco-Bulgarian “Communities”), p. 5. 17 Ibid., p. 6. 18 “The ‘commune’ is a territorial district constituted by public municipal law as an administrative and political unit, and remaining the same, no matter who its inhabitants may be.” (Ibid., p. 29.) 19 Ibid., p. 21. The Court reaffirmed this decision in its Advisory Opinion of April 6, 1935, on the Minority Schools in Albania. (Series A/B, No. 64, p. 11.) 20 Tönnies, op. cit., p. 40; Weber, loc. cit., pp. 21–22. We would accordingly maintain that the group defined by Oppenheim-Lauterpacht (op. cit., Vol. i, p. 11) as a community is either “neutral” or a society (“the body of a number of individuals more or less bound together through such common interests as create a constant and manifold intercourse between the single individuals”), and that the “society” described by J.L. Brierly in his article on “The Rule of Law in International Society” (Acta Scandinavica Juris Gentium, 1936, p. 4) is a community. (“A society needs a spiritual as well as a material basis; it cannot exist without what Rousseau called the ‘volonté générale,’ a sentiment among its members of community and of loyalty, of shared responsibility for the conduct of a common life, and it is just here that doubts of the existence of an international society find their justification.”) It need hardly be mentioned that from the standpoint of detached sociological

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group could exist without a cohesive force and an interdependence between members. There is, however, a decisive difference between the ties created by a community and by a society—a difference which affects the nature of the law in those social groups, as the law fulfils a completely different function in each of them. The law which regulates the life of a community such as a family or of an organization such as the Catholic Church, generally formalizes only customary behavior, which would be observed even without its existence; it defines the relations between members which the majority regards as substantially sound and adequate, and finds its main justification in its application to abnormal situations. It is the visible expression of common values and of relationships which are as such a valid and binding reality for the greater part of the members. On the other hand, the law regulating the relations between the members of a society such as a joint stock company has to fulfil a different function. Its purpose is to prevent the bellum omnium contra omnes, or to make limited coöperation possible between individuals who, being anxious to maintain and improve their own positions and seeking primarily their own advantage, are therefore at the best only prepared to apply in proportion to their actual power the principle of reciprocity in their relations with each other. It is vital to recognize this correlation between a community or a society and the different functions of their respective legal systems21 at a time generally acknowledged to be a period of transformation which may lead to further integration or disintegration.22 At such a juncture the fundamental changes which have been taking place in the social structure of a group and in its legal system can only be revealed by research into both these aspects of the ­problem. Has

21

22

analysis, no preference is given to the one or to the other type of group relations. Wolgast, unlike Max Weber, whose approach to these problems is entirely unbiased, also makes this distinction between community and society; he and other recent German writers on international law, however, attempt to imply a political ideology in the distinction between the international “society” and the “community” of the German people, created in their opinion by National Socialism. See in this connection, Eduard Bristler, Die Völkerrechtslehre des Nationalsozialismus (Zürich, 1938), p. 99 et seq. J.L. Brierly, loc. cit., p. 3. See also John Westlake, Chapters on the Principles of International Law (Cambridge, 1894), p. 3; J.S. Reeves, loc. cit., p. 51; and Sir Alfred Zimmern, “International Law and Social Consciousness,” in Transactions of the Grotius Society, Vol. 20 (London, 1935), p. 43. Alejandro Alvarez, “La crise de la vie internationale et les grands problèmes internationaux,” Revue de Droit International, 1937, p. 234: “Nous sommes, comme à l’époque de la Révolution française de 1789 dans une période de transition … d’un Droit International ancien à un Droit International nouveau.”

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the function of international law in the past and in the present been primarily to witness agreements on issues indifferent from the standpoint of a proper community, to stabilize power positions, or to give expression to common conceptions of value? An examination of these questions, as well as of the social forces responsible for the development of international law, seems to open the way to a deeper understanding of the crisis of the interstate system and its legal order. 2

The Gradual Elimination of Spiritual Standards of Value from International Law

Modern international law, as we understand it, would not have been conceivable in the unum corpus Christianum of the Middle Ages, when there was no need to distinguish between national and international law. The distinction between the two is closely connected with the disintegration of the omnium Christianorum una res publica.23 The former Civitas Christiana was broken up by ideological wars between the Catholic and Protestant Powers, and a bellum omnium contra omnes seemed inevitable. It was at this moment, when the gulf was widening between entities which had formerly been held together by a common creed, that new cohesive tendencies became apparent. Thinkers and writers, confronted with the internecine wars and chronic anarchy of their time, again became conscious of the fundamental values common to Catholics and Protestants alike. In conformity with the spirit of the age, this realization was fused with the Renaissance rediscovery of classical philosophy and its conception of humanity as a “society of beings endowed with reason.”24 Thus the pyramidal structure of the medieval community, which had culminated in the jurisdiction of the Pope and Emperor, was replaced by the principle of the Christian natural law: “Coniunctio hominum cum Deo, coniunctio hominum inter sese.” It was in an atmosphere still permeated by a universalistic spirit that the Christian law of nations was born.25 23

An illuminating exposition of the driving forces behind this development may be found in Lionel Curtis’ Civitas Dei (London, 1934–1937). See also C. van Vollenhoven, The Law of Peace (London, 1936), p. 6 et seq.; M. Bonn, The Crumbling of Empire (­ London, 1938), p. 15 et seq.; and N. Bentwich, The Religious Foundations of Internationalism (London, 1933). 24 Grotius, De Jure Belli ac Pacis (Oxford, 1925), Bk. i, Ch. 1, p. 34. See also James Brown Scott’s introduction to Grotius, ibid., Vol. ii, p. xxx, and Coleman Phillipson’s introduction to Alberico Gentili, De Jure Belli Libri Tres (Oxford, 1933), Vol. ii, p. 12a. 25 Further details in von Verdross’ study, cited in note 14 (d), p. 39 et seq.

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At a time when the Christian law of nations was still more an aspiration than a reality influencing the practice of interstate relations, and before the specific obligations it involved could contribute decisively to the integration of a community based on its principles, a new process had begun. The age of discoveries brought the five continents of the world into contact, and the characteristic stamp of this relationship was the active and dominating part played throughout by the European countries. In the first place, these Powers asserted their claim to annex the newly discovered territories as a right derived from natural law and justified by the fiction of the territorium nullius.26 Whenever this principle was not applicable, the right of commerce with the non-­European countries was asserted, and gradually developed from an imperfect into a fundamental right.27 The non-Christian states were also as a matter of course regarded as subject to the Christian law of nations, although it was sometimes admitted that “they may, on some points of the law of nations, be entitled to a very relaxed application of the principles, established by long usage, between the States of Europe, holding an intimate and constant intercourse with each other.”28 A more complicated problem faced the Christian states in the attitude of China, where the Western traders were contemptuously regarded by officials of the “Middle Kingdom” as representatives of “immature and uncivilized” peoples. The Christian law of nations was here confronted with another system of law claiming potentially universal validity.29 The European and American nations were content to maintain the principle of equality of states against this assertion,30 and in the Near as well as in the Far East, a temporary solution, corresponding to the respective strength of the Powers, was found in the Capitulation Treaties, which the Western Powers regarded as “essential to the peaceful residence of Christians within these countries, and the successful prosecution of commerce with their people.”31

26 Oppenheim-Lauterpacht, op. cit., Vol. i, p. 438: “territory … inhabited by natives whose community is not to be considered as a State.” 27 Vittoria, On the Indians (Washington, 1917), pp. 152–3; Gentili, op. cit., Vol. ii, p. 89 et seq.; Lowes Dickinson, The International Anarchy, 1904–1914 (London, 1937), p. 68; Max Huber, loc. cit., pp. 5 and 35; von Verdross, Völkerrecht (Berlin and Vienna, 1937), p. 201. 28 The Hurtige Hane case, High Court of Admiralty, 1801 (3 C. Rob. 324); see also the Madonna del Burso case (4 C. Rob. 169), and H.A. Smith, loc. cit., Vol. i, p. 14 et seq. 29 See Jean Escarra, La Chine et le Droit International (Paris, 1931), and Earl H. Pritchard, The Crucial Years of Early Anglo-Chinese Relations, 1750–1800 (Pullman, Wash., 1936, Research Studies of the State College of Washington), particularly the pertinent observations on pp. 107 and 111. 30 Wheaton’s Elements of International Law (ed. A.B. Keith, London, 1929), Vol. i, p. 30. 31 In re Ross, U.S. Sup. Ct., 1891 (140 U.S. 453). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Thus, by the formal admission of the Ottoman Empire to “participate in the public law and concert of Europe,”32 and by the extension of the ­European-American law of nations to the Far Eastern states, the Christian law of nations gradually came to be applied by all sovereign states in their relations with one another. The original standards of value underlying this legal system were affected in two ways by this development. It followed from the nature of the relations between the Western and Eastern states that the latter accepted the new rules unwillingly as an unavoidable necessity, and regarded the obligation to keep them rather as a question of prudent outward conformity than as a moral duty.33 On the other hand, the fact that international law was applied between states regardless of their attitude towards the religious foundation of the Western states helped to let slip into oblivion the spiritual basis and historical sources of this legal system. The Christian law of nations was thus identified with, and gradually replaced by, the international law of civilized nations.34 Is there any criterion by which it can be decided whether a state belongs to the “civilised and commercial nations of the world,” as they are called in a judgment of the Supreme Court of Hongkong?35 In the absence of any formal procedure under international law it was mainly left to writers to elucidate the question of admission to its domain.36 Commercial agreements and the awards of national and international tribunals on the treatment of foreigners in contravention to the minimum standards of civilization,37 provide further material for analysis. 32 33

Art. 7 of the Treaty of Paris (1856). Thus the judgment quoted above in note 31 rightly speaks of “the assimilation of its (the Japanese) system of judicial procedure to that of Christian countries.” See also Sir Thomas Holland, Lectures on International Law (London, 1933), p. 37. 34 Lord Coleridge, C.J., in the Queen v. Keyn ([1876] 2 Exch. Div. 63, 153–154); United States v. the Schooner La Jeune Eugénie (1822, 2 Mason’s Reports 409); the Antelope (U.S. Sup. Ct., 1825, 10 Wheaton 66); the Paquete Habana, the Lola (U.S. Sup. Ct., 1900, 175 U.S. 677); Holland, op. cit., p. 41 et seq.; F.E. Smith and N.W. Sibley, International Law as Interpreted during the Russo-Japanese War (London, 1907), p. 9; Wheaton, op. cit., Vol. i, p. 30; Axel Möller, International Law in Peace and War (London, 1931), Pt. i, p. 10; Art. 38, par. 3 of the Statute of the Permanent Court of International Justice. 35 The Prometheus case (2 Hongkong Law Reports 207). 36 See Hyde, International Law (Boston, 1922), Vol. i, pp. 17 and 49; and Kunz, “Zum Begriff der ‘Nation Civilisée’ im Modernen Völkerrecht,” Zeitschrift für öffentliches Recht, Vol. vii, p. 86 et seq. 37 Typical examples are the El Triunfo Co. case between the United States and San Salvador, 1902 (U.S. Foreign Relations, 1902, p. 859), and the Roberts case between tho United States and Mexico: “That test is, broadly speaking, whether aliens are treated in accordance with ordinary standards of civilization.” (A.H. Feller, Mexican Claims Commissions 1923–1934 (New York, 1935), p. 143.) See also Edwin Borchard, The Diplomatic Protection of Citizens Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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From these sources it may be concluded without undue generalization that a civilized state must give protection to the life, liberty and property of foreigners more or less in accordance with the liberal traditions of the “bürgerliche Rechtsstaat.”38 Only in exceptional cases, such as religious, national or racial minorities, have international treaties laid down minimum standards of civilization for the treatment of nationals by their own state. In these agreements the status of the protected groups is likened to that of foreigners, and even improved in comparison with the latter when special consideration is granted to the community as distinct from the individuals composing it.39 Thus the ­continual process of the secularization of international law moved another step away from its historical sources and original spiritual basis. A certain degree of efficiency in the running of the state machinery, a measure of toleration and a minimum concern for the individual as such, had become the only standards of uniformity still required by international law. The process of the elimination of spiritual values from international law was carried to its logical conclusion by the legal doctrine of positivism which considerably accentuated and accelerated the development described above, and which reached its climax at the end of the nineteenth and beginning of the twentieth centuries.40 According to this school of thought, states are subject to international law only by their express or implied consent. It depends on the extent of the realism of these writers whether the concept of consent comprises “all the facts through which common consent can possibly come into existence”41 or whether certain sources are dogmatically excluded from the sphere of implied consent without due regard for the actual practice of states.42 Whereas the latter interpretation forfeits its claim to positivism on Abroad (Washington, 1915), pp. 27 and 29; H.A. Smith, loc. cit., pp. 18 and 31; the present writer’s monograph (cited in note 2), p. 34, note 1, pp. 42–43) 45; and W. Friedmann’s articles in The Contemporary Review, 1937, p. 62 et seq., and in the Fortnightly, 1937, p. 432 et seq. 38 The German Supreme Court identifies “zivilisierte” and “bürgerliche Rechtsstaaten” which form “eine in der Neuzeit immer mehr anerkannte Kultur- und Rechtsgemeinschaft.” (R.G.Z. 80, p. 264 et seq.) See on this decision the present writer’s monograph, p. 13, cited above, note 2. 39 Particularly instructive in this respect are the documents contained in the Digest of the Diplomatic Correspondence of the European States, 1871–1878 (Berlin, 1937), Vol. i, Nos. 3, 11, 456, and 497; Clemenceau’s letter to Paderewski of June 24, 1919, and the views expressed by the Permanent Court of International Justice in the cases of the German Settlers in Poland (Series B. 6, p. 24), and of the Minority Schools in Albania (Series A/B, No. 64, p. 19). 40 Oppenheim-Lauterpacht, op. cit., Vol. i, p. 99. 41 Ibid., p. 23. See also pp. 15, 17, 27–28; Anzilotti, Lehrbuch des Völkerrechts (Berlin and Leipzig, 1929), p. 48 et seq., particularly p. 53. 42 For an outspoken but, justified criticism of this attitude, see von Verdross, “Les Principes généraux applicables aux rapports internationaux,” Revue Générale de Droit International Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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account of its method, and may more appropriately be called voluntarism, the former at least gives spiritual values an opportunity of creeping into the realm of international law through the back door of implied consent. The vital difference between the development so far discussed and this attitude is, however, apparent. Formerly the law was a truth to be sought after, but now it becomes the equivalent of the will of those who give or refuse their consent. The relation between international law and spiritual and other standards of value ceases to be regulated by a process of subconscious growth, and becomes dependent on the will of those whose behavior is to be restrained or refined by the law. Thus the last remnants of the old universalistic conception of law disappear and an atomistic outlook wins the day. The doctrine of positivism finally broke down the distinction between civilized and uncivilized states, which had been the last remaining barrier to indiscriminate heterogeneity. In the words of a distinguished representative of this school of thought: “La famille des nations est l’ensemble des États ­(civilisés et non civilisés) et des autres sujets du droit international public.”43 This “achievement” has been tellingly interpreted by Professor H.A. Smith: In practice we no longer insist that States shall conform to any common standards of justice, religious toleration and internal government. Whatever atrocities may be committed in foreign countries, we now say that they are no concern of ours. Conduct which in the nineteenth century would have placed a government outside the pale of civilized society is now deemed to be no obstacle to diplomatic friendship. This means, in effect, that we have now abandoned the old distinction between civilized and uncivilized States.44 3

The Principle of the Balance of Power and the Functions of International Law before the World War

The development outlined above shows that international law has less and less expressed the common standards of value which permeated the interstate ­system in its opening stages. This trend leads Sir Alfred Zimmern to conclude

43 44

Public, 1938, p. 44. See also J.L. Brierly, The Law of Nations (London, 1936), pp. 39–45, on the fiction of implied consent; and Viktor Bruns, “Völkerrecht als Rechtsordnung,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Berlin), 1929, p. 12. Karl Strupp, Éléments du droit international public (Paris, 1930), Vol. i, pp. 7–8. Radio address on “Where the League Failed,” The Listener (London, 1938), p. 183. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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that “positive international law, so called, has no claim to the name of law” and that in breaking loose from its religious and ethical origins it has forfeited its ancient claim to the obedience of Christian governments and their peoples: its claim on the others has never been direct, but only derivative. Thus its hold over the Japanese depended, as Mr. Keynes would put it, on a double bluff. The Japanese were expected to respect international law because their Christian colleagues in the Family of Nations did so. And their Christian colleagues were expected to do so in virtue of a discarded theory based on a belief that had become extinct. Can we wonder that both in the East and in the West the bluff has been called?45 With all due deference to this distinguished author, this conclusion does not necessarily follow from his and our premises. It may be concluded from our analysis that a law which lacks any spiritual standards of value is not a community law, and that the interstate system, as it has developed, cannot any more be regarded as a community. This does not, however, exclude the possibility that the law of nations can be regarded as a society law. Does then international law fulfil the functions of a society law, and what is its relation to other regulating principles in the interstate sphere? In a society in which, as we have pointed out, the interests of members are primarily conflicting, the main concern of each entity must necessarily be directed towards self-preservation. The society of states which has developed out of the disintegration of the Civitas Christiana is composed of nations too strong and too self-conscious to permit any of its members to attempt to solve the problem of self-preservation by means of imperial universality.46 On the plane of power politics, therefore, the only realistic alternative for those countries which were neither geographically nor politically in a position of exceptional security, was provided by the principle of the balance of power, the only factor of relative stability in a world divided by alliances and counter-alliances. As the experience of four centuries has proved, by this method peace can only be preserved by continuous efforts at balancing in order to avert the everpresent danger of the preponderance of one or other group. This principle, which was tried out in the microcosm of sixteenth-century Italy, has become 45 46

“The Decline of International Standards,” in International Affairs, Vol. 17 (1938), p. 11. For a more detailed account of these questions, see the present writer’s The League of Nations and World Order. A Treatise on the Principle of Universality in the Theory and Practice of the League of Nations (London, 1936), pp. 4–18.

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the regulator of the European state system, and has not been confined to that continent.47 It would be rash to conclude that this principle is incompatible with the existence of international law. While it must be admitted that in case of conflict the rule of law has so far had to give way to the necessities of the maintenance or reëstablishment of the equilibrium, it can nevertheless be shown that subject to this “higher law,” international law has fulfilled functions typical for any legal system of a society. The international law of peace has directly served to register and stabilize the equilibrium achieved by force in the fundamental peace treaties between 1648 and 1815.48 In addition, the development of generally recognized rules for diplomatic intercourse assisted in the avoidance of conflicts not provoked by a serious disturbance of the balance system, and, as long as such major issues did not arise, international law could contribute freely to regularize and thus to simplify the relations between the Powers on a basis of mutuality and reciprocity. Within these limits its binding force does not depend essentially on the availability of external force in case of violation. An order founded on these principles can rely on the penalizations inherent in its social machinery; that 47

48

The following notes illustrate the attitude of the United States to the principle of the balance of power in the middle of the nineteenth century: “The President recognises to a certain extent the European idea of the balance of power. If the principle has any ­foundation at all, the independence and stability of these United States just in their present form, properties and character, are essential to the preservation of the balance between the nations of the earth as it now exists. It is not easy to see how France, Great Britain, Russia, or even reviving Spain could hope to suppress wars of ambition which must inevitably break out if this continent of North America, now, after the exclusion of foreign interests for three-quarters of a century, is again to become a theatre for the ambition and cupidity of European nations.” Mr. Seward to Mr. Drayton (Paris), April 22, 1861.  “The equilibrium of nations, maintained by this republic, on the one side, against the European system on the other continent, would be lost, and the struggles of nations in that system for dominion in this hemisphere and on the high seas, which constitutes the chief portion of the world’s history in the eighteenth century, would be renewed. The progress of freedom and civilisation now so happily inaugurated would be arrested, and the hopes of humanity which this the present century has brought forth would be indefinitely postponed.” Mr. Seward to Mr. Clay (St. Petersburg), May 6, 1861. (See Digest of Diplomatic Correspondence, 1856–1871, op. cit., Vol. i, pp. 66–67.).  For the working of this principle in Central Asia, see Digest of Diplomatic Correspondence, 1871–1878, op. cit., Vol. i, p. 29; and in South America (“balance of the States of the Plata”), ibid., p. 63 et seq. A list of these “constitutions of Europe or even of the world” has been compiled by Ernst Wolgast, in Völkerbund und Völkerrecht, Vol. 3 (1936), pp. 251–252. See also the interesting argument contained in the opinion by the Advocate General to the Earl of Halifax, Nov. 30, 1764, in Smith, loc. cit., Vol. i, p. 3.

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is, the fear of each participant that he will be excluded from the benefits of the system if he repeatedly violates his obligations.49 It is hardly surprising that in such circumstances it was not possible to limit the right of states to resort to war. For the threat of war always remained the ultimate means of preventing another Power from aiming at preponderance by measures short of war; and actual resort to war presented the final method of forestalling or redressing an essential and otherwise irremediable disturbance of the equilibrium. For this reason the distinction between just and unjust wars, which writers on natural law attempted to make, could only be recognized theoretically, or the interests of justice and the balance had to be identified with one another.50 This situation also explains why efforts for disarmament and for arbitration on vital issues could arouse only academic interest in the pre-war period.51 European statesmen were not prepared to replace the principle of the balance of power by a comprehensive rule of law, and half measures, in their opinion, could only hamper the working of the principle on which the international society was founded. Such an attitude does not, however, exclude the possibility that even during wars fought with the limited purpose of reëstablishing the old or founding a new equilibrium, international law can still fulfil a limited function on the condition that the rules of warfare and neutrality do not unduly interfere with this particular object of the belligerents. The rules of warfare could thus be gradually relaxed because principles of chivalry and humanity were applied reciprocally, and conformity to them did not interfere perceptibly with the ultimate object of war.52 Similarly, the determination of the rights and duties of neutrals was identical with the typical interests of belligerents. Normally they were interested in preventing both the preferential treatment of the opponent by neutral Powers and any violations of neutral rights which would drive them into the enemy’s camp,53 thus extending the scope of the war so as to endanger the achievement of the main object of a balance of power conflict. On the other hand, the Napoleonic Wars are sufficient evidence of the theory that as 49

See on this question B. Malinowski’s fascinating study, Crime and Custom in Savage Society (London, 1932), particularly pp. 23, 26, 41, and 58. 50 See Vattel, Le Droit des Gens (London, 1758), Vol. ii, Liv. iii, Ch. 111, §§ 45–49. 51 A convenient collection of the real views of the representatives of the greater Powers during the Hague Peace Conferences may be found in Lowes Dickinson, The International Anarchy (London, 1937), p. 375 et seq. 52 Oppenheim-Lauterpacht, op. cit., Vol. ii, p. 187. 53 Ibid., p. 503.

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soon as a war ceases to be a duel of this kind and develops into a life and death struggle, rules of war which had formerly been solemnly proclaimed are completely disregarded if they seriously disadvantage one of the belligerents.54 The history of international law seems to indicate that within the radius of the European balance of power system this principle overrides international law in case of conflict between them. During a period when the equilibrium is relatively steady, the vested interests of the balance system work along lines parallel to those of international law. The reason may either be that the law of nations is used directly in order to stabilize the power situation, or to fulfil other functions in which, irrelevant though they may be to the balance, all members are equally interested, in accordance with the principle of reciprocity. If the upheaval of the balance system becomes unavoidable, and results in a war in which the belligerents do not lose sight of the fact that a new equilibrium is their object, or do not make it a convenient pretext for the attainment of other aims incompatible with the balance principle, the law of warfare can still function in the manner described above. It follows from what has already been said that the influence of a balance of power system tends to decrease or even to vanish towards the edges of its radius of activity, corresponding with an increase of the chances of international law to fulfil the function of a society law, or even to assist in the process of the integration of a geographically limited community. In analyzing from this point of view the period preceding the World War, two other factors must be kept in mind, both of which have played a decisive part in limiting the working margin of international law—nationalism and imperialism. To show how the principle of national self-determination affected the precarious balance system, we cannot do better than quote from an Austrian Circular of 1858 addressed to Austrian representatives at foreign Courts: The pretension of forming new States, according to the limits of nationalism, is the most dangerous of all utopian schemes. To put forward such a pretension is to break with history; and to seek to carry it into execution in any part of Europe is to shake to its foundations the firmly organized order of States, and to threaten the Continent with subversion and chaos.55

54 Oppenheim-Lauterpacht, op. cit., Vol. ii, p. 498 et seq. 55 Digest of Diplomatic Correspondence, 1856–71, op. cit., Vol. i, p. 87.

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Similarly, the principle that the flag follows trade or even stimulates commercial expansion was bound to lead to additional friction and to a race between the Powers anxious to preserve the balance of acquisitions in the “Black Continent,” or of spheres of interest and influence all over the world.56 It was at this period that positivism reached its climax, and we can now understand why Hegel’s conception of the state and his doctrine of unlimited sovereignty came to be regarded as a convincing philosophical and legal interpretation of the rôle of the state.57 At a time when the Powers of the world were grouping themselves around the Triple Alliance and the Triple Entente, it had become meaningless to distinguish between civilized and uncivilized states. What mattered in the international sphere was no longer the standard of civilization, but the possession of sufficient power to weight the scales in one’s own favor. For this purpose any ally sufficiently powerful fulfilled the ­requirements of the supreme “law,” and it would have been beyond the pale of permissible hypocrisy to refuse him a place in the subordinate system of international law. The World War, the inevitable outcome of the balance of power system, could not be fought with the limited purpose of a balance of power war for the very reason of its gigantic scope and the immense sacrifices it involved. Its immediate objects were forgotten only too soon, to be replaced by issues that had never entered the thoughts of any of the leading statesmen on either side in its initial stages. It was therefore only natural that the experiences of the Napoleonic Wars were repeated on a larger scale: again the rules governing actual practice between belligerents as well as between belligerents and neutrals moved further and further away from the law which had been laid down in the pre-war period.58

56 See the present writer’s monograph (cited in note 46 above), p. 44. 57 Hegel, Grundlinien der Philosophie des Rechts (1821), §§ 237, 238, 331, 333. See also Alfred von Verdross, Die Einheit des rechtlichen Weltbildes (Tübingen, 1923). On the influence of Hegel’s conception of the state, particularly on English idealistic philosophy (Bosanquet), see H. Lauterpacht, Private Law Sources and Analogies of International Law (London, 1927), p. 47 et seq. Other causes which contributed to this development are the reaction against the ideological abuses of natural law, the identification of the natural law of the 17th and 18th centuries with the natural law, tendencies towards codification combined with conscious efforts for the reform of international law, and the influence of empirical natural science on the methods of social science. 58 See James Wilford Garner, International Law and the World War (London, 1920), particularly Vol. ii, pp. 49 et seq., 317 et seq., and in Transactions of the Grotius Society, Vol. 22 (London, 1937), p. 4.

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4

The Intensified Disintegration of the Post-war Society of Nations and the Rule of Law

The Peace Treaties of 1919, the charters of the post-war society of nations, ­suffered from the initial incompatibility of their objects. It was the avowed raison d’être of the League of Nations to unite the “general and common family of nations”59 under the rule of a community law proper. Its essentials can be summarized as universality, homogeneity of democratic structure in member states, pacific settlement of international disputes including problems of revision, collective security, disarmament, and free trade, at least among members.60 It was, on the other hand, hard to interpret the clauses relating to territorial settlement and colonies, unilateral disarmament and demilitarization, reparations and one-sided commercial concessions otherwise than as an attempt to establish a hegemony over the former Central Powers in obvious contradiction not only to the principles of the Covenant, but to any balance of power system. Limited space does not permit us to go deeper into the “peace guilt” controversy than to state that during the two decades that followed the war, League members were either unwilling or unable to give precedence to the aims of the Covenant over the Peace Treaties proper. To have attempted to do so would have implied a limitation of sovereignty on their part, which would in its turn have involved the necessity of sacrificing the most cherished monopolies of the domaine réservée: armaments, raw materials, markets, and migration; and it would have implied the endowment of the newly established community of nations with legislative, judicial, and administrative organs similar to those of other federal institutions. As such a policy was never seriously considered by state practice, it remains to trace the effects of the more “realistic” approach on the rule of law in the post-war society. The Peace Treaties constituted for the vanquished states the part of international law which governed their vital relations with the outside world, and their provisions frequently even went so far as to interfere with important aspects of their internal life. It is not therefore surprising that a good deal of objectively justified criticism was hurled not only at these treaties, but at the whole system of international law, of which they came to be regarded as 59 60

Third point of Wilson’s “Five Particulars,” Charles Seymour, The Intimate Papers of Colonel House (Boston, 1926–1928), Vol. iv, pp. 70–71. On the first two points see the present writer’s The League of Nations and World Order, p. 19 et seq.; and on the last, see Point Three of Wilson’s Fourteen Points, and Art. 23 (e) of the Covenant.

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a symbol. Sometimes sincerely, often as an only too convenient pretext, arguments of natural law and ethical considerations were used to attack a system of law which was now having to pay a heavy price for the victory of positivism. Nor was this tendency limited to the former Central Powers. On the other side were states such as Italy and Japan, who were not content with their share of the spoils. Satisfied empires like Great Britain and France had already outgrown their youthful enthusiasm as empire-builders. They had become more and more conscious of the duties and burdens imposed upon them by possessions they no longer regarded as opportunities for exploitation, but as responsibilities. Nevertheless, their attitude looked like hypocrisy to those for whom imperialism seemed to offer an easy way out of internal difficulties and a chance of achieving the political prestige demanded by their exalted nationalism. To their dismay these states found their way blocked by the League of ­Nations. Not only had potential objects of imperial expansion become their equals as members of the League, but even their territorial integrity had been guaranteed by all members of the collective system, solemnly pledged to apply for their protection the then still formidable Article 16 of the Covenant. Thus a situation was created where a casual status quo was perpetuated, and no machinery for peaceful change was provided. In these circumstances, the question cui bono? was bound to arise. It was to be expected that those who asked themselves this question should come to the conclusion that such a system of international law was nothing but an ideological cloak, intended to disguise the vested interests of the interstate sphere, and to serve as a first line for their defense. It was not, however, a representative of these dissatisfied Powers who so emphatically expressed his doubts as to the sacredness of treaty obligations in all circumstances: When we are told that contracts must be kept sacred, and that we must on no account depart from the obligations which we have undertaken, it must not be forgotten that we have other obligations and responsibilities, obligations not only to our own countrymen, but to many millions of human beings throughout the world, whose happiness or misery may depend on how far the fulfilment of these obligations is insisted upon by the one side and met by the other.61

61

Neville Chamberlain, House of Commons, Dec. 14, 1932. (Keith, Speeches and Documents on International Affairs, 1918–1937, Vol. i, p. 235.)

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If the question of war debts led the representative of one of the victorious nations to considerations of this kind, countries more vitally affected by the postwar settlement were still more likely to search for more effective remedies than those offered by the law for the redress of wrongs they regarded as unbearable. Two states in the Near East had shown the most feasible and practical means of achieving these ends—Turkey by national resurrection and victory in the field, and Persia, in 1927, by unilateral repudiation of the capitulations and the establishment of tariff autonomy.62 It is not necessary to go into details to understand this development, in so far as it affects the rule of law. Suffice it to say that the concentration of national efforts in the dissatisfied countries on attaining a maximum of power for external use led to an increasing control of the state over the individual politically (authoritarianism and totalitarianism), as well as economically (high tariff policy and autarchy), a policy which in the long run was bound to affect even the countries opposed to it on principle.63 Such a situation could not fail to have a profound effect on interstate relations. Its immediate consequences were an unparalleled armaments race, increasing mutual distrust and the constant danger of a major war. The effect of the atmosphere of suspicion and distrust upon the maintenance of international law is symbolized by the names Chaco-Boreal, Manchukuo, Abyssinia, Spain, China, Czechoslovakia and Austria. The system provided by the Covenant and the Kellogg Pact for the prevention of war has completely broken down in the course of a process which may be described as a de facto revision, transforming the Geneva system into what Lord Cranbourne has called a non-coercive League.64 Violation of treaties, aggression without declaration of war, foreign intervention in civil war, disregard for the most elementary rules of warfare, withdrawal of recognition from de jure governments, premature recognition of rebels, establishment of puppet administrations, piracy in the air and on the sea by “unknown” Powers—the ever-increasing lawlessness of the last few years illustrates a situation which can only be described as anarchy.

62 See ibid., p. 144 et seq. 63 See F.E. Lawley, Collective Economy (London, 1938); Emile Girard, La crise de la démocratie et le renforcement du pouvoir exécutif (Paris, 1938); the articles by v. Mises, Röpke, Whitton and Heilperin, in The World Crisis (London, 1938), p. 243 et seq.; and Friedmann, loc. cit. (note 2 above), p. 118 et seq. 64 See the present writer’s articles on this subject in The New Commonwealth Quarterly, Vol. iii, pp. 262 et seq., 360 et seq.; the result of the New Commonwealth Institute’s enquéts on this subject (ibid., Vol. iv, p. 60 et seq.), and the article by Josef Kunz, ibid., Vol. iv, p. 131.

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Why should the most powerful nations of the world, themselves affected by these acts of violence, have tolerated such a situation? Some of the circumstances altered by measures of peaceful but unilateral change, such as the rearmament of the former Central Powers or the occupation of the Rhineland in defiance of the Peace Treaties, were carried out along the line of least psychological resistance. There was no doubt that the unilateral imposition of such restrictions was incompatible with any standards of equality and justice, and as their extension to the victorious Powers on a basis of reciprocity was out of the question, these unilateral actions freed the other governments from the necessity of giving their formal consent, which they could otherwise hardly have avoided. As none of the Western democracies was prepared to fight for the principle of the sanctity of treaties—a principle in some of these cases hardly justifiable—formal protests were the only answer, and no adequate measures were taken to uphold the rule of international law. In other cases such as the Italo-Abyssinian war, France was ostensibly dominated by the object of preventing a rapprochement between Italy and Germany; and in Italy as in other countries, the dictator’s trump card—the threat of communism and anarchy in the event of defeat—did not fail to take the expected trick. As the Spanish war made only too evident, the policy of the democratic states was also influenced by the diverging sympathies of the supporters of the rival factions, neutralizing each other to a certain extent, and overriding even indisputable permanent interests of their foreign policy. Last, but certainly not least, the aggressors were well aware that the democratic states were still prepared to make practically every sacrifice of prestige and interest in order to avoid a general conflagration—a fact which gives a still wider margin of power to the policy of threat and force, as long as it is limited to specific and concrete objectives. The parallel, if not concerted, efforts of Germany and Italy, culminating in the reintroduction of conscription in Germany and the occupation of the Rhineland during the Italo-Abyssinian war, and the coöperation of all the Powers of the Triangle by simultaneous action in Spain, China and Austria,65 seem, however, to mark the beginning of a new period—the appearance of an alliance on a world scale, which, in accordance with the rules of the balance of

65

See v. Freytagh-Loringhoven, in Völkerbund und Völkerrecht, Vol. 2 (1935), p. 519 et seq.; also the significant passage on the subject in his article “Politik und Recht,” in Europäische Revue, 1938, pp. 253–254; and Virginio Gayda’s article “Die Achse, Österreich und die europäische Lage,” ibid., pp. 274–275.

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power game, is only too likely to lead to corresponding counter-alliances and to attempts at establishing a new equilibrium.66 Nothing has better shown the elemental force of the balance system than the volte-face of the u.s.s.r., which, fearful of aggression in the East and in the West, joined the League in 1934, and subsequently concluded alliances with France and Czechoslovakia. Any attempt at this stage to derive lessons from the recent crisis over Czechoslovakia might well be regarded as premature. One feature, however, seems so obvious and important from our standpoint that we feel bound to mention it en passant. What we have seen these last few weeks was not an alignment of groups of Powers more or less equal in strength—but an overwhelming concentration of strength against two or three Powers. The characteristic feature of the situation is that no real balance existed, but that the fiction of a balance system was created in a peculiar way. As long as the outbreak of war was still imminent, the factor which gave additional strength to the side inferior in power consisted in its greater willingness to risk a world war. When the fiction of the balance had to be maintained at the conference table, this could be achieved only by the application of what we may call the principle of the artificial balance of power, that is to say, the exclusion from the conference room of one of the great Powers and one of the disputants, both belonging to the same group. In addition to the forces of nationalism and imperialism which made it increasingly difficult to maintain the balance immediately before the war, other disturbing elements are now at work: political and economic authoritarianism and totalitarianism and the formation of ideological fronts are endangering or destroying the unity of some countries, and increasing the power of others to put pressure upon their opponents. They contribute to further disintegration and distortion, thereby making still narrower the working margin of the rule of law in the international society of the post-war period. The more the immense rearmament and the repeated successes of the Triangle induce the Western democracies to forget their original “guilt complex” and to make their whole weight felt, the more promising are the chances of international law. It must, however, be realized that the legal system does not condition, but, as in the pre-war period, is itself conditioned by the principle of the balance of power, which is again becoming the overriding regulative force in international society.

66

See G.P. Gooch, “The Grouping of the Powers,” in The Contemporary Review, 1938, p. 129 et seq.

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5 Conclusions An analysis of the development of modern international law shows that its original standards of value were completely eliminated during the gradual process which, starting from the Christian law of nations, led via the law of civilized nations to the victory of positivism and voluntarism. It is apparent from the correlation between community and society and their respective systems of law that whatever community may have existed during the initial stages of the law of nations, it has gradually been transformed into a society. In pre-war Europe, the political system of alliances and counter-alliances, which brought in its train the balance of power as a means of preserving peace, was the overriding force. Within its limits, international law could fulfil the functions of a society law which is “founded on mutuality and reciprocity”67 only in subordination to the requirements of this system. The law of nations either directly served the objects of the balance system or pursued aims not incompatible with it. Even before the World War the forces of nationalism and imperialism threatened to reduce to unlimited anarchy the balance system on which the working of international law depended. In the post-war period additional disintegrating forces were brought into play by the ­incompatibility between the two main objects of the Peace Treaties—hegemony over the former Central Powers on the one hand, and on the other an organized community of the “fully self-governing” nations of the world based on the comprehensive rule of law. Amongst them primary importance must be attributed to the tendencies towards both political and economic authoritarianism and t­ otalitarianism. This development has led to a de facto revision of the Covenant, transforming the collective system of Geneva into a non-coercive League, and to a transitional period of scarcely checked anarchy. A new balance system on a world-wide scale is, however, reasserting itself, and as long as it lasts, the prospects of the maintenance of international law within its radius increase. Nevertheless, it would be contrary to experience to assume that the law of nations can take more than a secondary place as long as it is subject to the requirements of such a political system, and further attempts at codifying or extending interstate arbitration on “political,” i.e., vital issues between states participating in the new balance system or affected by it, seem correspondingly unlikely to meet with success. At such a critical juncture it seems to be within the province of the international lawyer to state the conditions without which international law in our 67

U.S. Supreme Court, 1895, in Hilton v. Guyot (159 U.S. 113).

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time can neither act as a society law, nor assist in the transformation of the present society into a community of nations. It is inherent in the very nature of any balance system that it prevents international law from functioning as a supreme society and still less as a community law. The society of nations cannot be relied upon to develop into a community by a “natural” process,68 but this does not of course exclude the possibility that such a planned process may take into account and make use of any trends in the same direction, such as appear in the courageous award of Judge Manley O. Hudson who, in the Diversion of Waters from the Meuse case between The Netherlands and Belgium, held that equity is part of existing international law.69 Without some minimum program of standards of behavior between nations, any further attempts at conscious planning seem doomed to failure. It is the merit of the United States Secretary of State to have made suggestions in his declaration of July 16th, 1937,70 which—to judge from the replies of sixtyone governments—might be regarded as acceptable by the majority of states. It seems certain, however, that, whatever their attitude towards this declaration, neither the rule of a society nor even of a community law can be established between states without some “basic rules of conduct.” Although it would perhaps be too much to expect universal conformity to any such general standards at the present moment, new tendencies towards cohesion have accompanied the disintegration of the universal post-war society. The Powers of the Triangle are united as much by similar ideologies and the fear—real or pretended—of communism as by common interests. It is not likely that countries such as France, the British Commonwealth and the United States will join an ideological bloc of this kind, but it is more probable that, existing side by side with one bloc of totalitarian states and another covering one sixth of the earth, as does the u.s.s.r., they will become more and more conscious of the positive values common to their countries and practiced in their internal as well as in their external affairs. The lesser European states, whose very existence would be threatened by a clash between the greater Powers, are drawing closer together and developing among themselves embryonic 68 69 70

See the stimulating study by Karl Mannheim, Mensch und Gesellschaft in Zeitalter des Umbaus (1935). Permanent Court of International Justice, Series A/B, No. 70, pp. 76–79. See George A. Finch, “Secretary of State Hull’s Pillars of Enduring Peace,” this Journal, Vol. 31 (1937), p. 688 et seq.; Arthur K. Kuhn, “Observations upon Secretary Hull’s Principles of Enduring Peace,” ibid., Vol. 32 (1938), p. 101 et seq.; and the present writer’s analysis of the declaration and the replies received from sixty-one governments, in Transactions of the Grotius Society, Vol. 23 (London, 1938), p. 147 et seq.

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organs of federalism.71 The collaboration between the Scandinavian countries (reinforced for limited purposes by Belgium and The Netherlands), the Union of the Baltic States, the Polish policy of drawing a cordon sanitaire from the Baltic to the Black Sea, or the rapprochement between the Balkan Union and Bulgaria—these attempts at federalism on a regional basis, together with the revitalization apparent in the democratic states, are the most constructive trends which can at present be traced among the ruins of the classic ­interstate system. Only the future can tell whether these tendencies will lead to the establishment of several realms of interstate law, no longer connected by the general principles of law formerly recognized by all civilized states; to a new universal society regulated primarily by the balance principle, and only secondarily by international law; or to a community in which the rule of law is transformed from an aspiration into a living reality. 71

For details, see a paper read by E. Jäckh at the New Commonwealth Conference at Pontigny, August, 1938, which will be published in the New Commonwealth Quarterly. See also the author’s monograph cited in note 2 above, p. 40 et seq.

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Chapter 5

Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, 1957 Comment by Therese O’Donnell, Reader, University of Strathclyde Professor Georg Schwarzenberger described himself as “European; born and bred in Germany, with British nationality and British loyalties”. He was an important, provocative thinker in British twentieth century international law.a After fleeing from Germany, Professor Schwarzenberger came to Britain in 1934 and was appointed to the Faculty of Laws at University College London in 1938, where he remained until his retirement in 1975. Indeed, a scholarship bearing his name continues to be awarded to a student in the Faculty of Laws of the University of London considered to be outstanding in the field of public international law. As this extract from the 1957 edition of International Law as Applied by International Courts and Tribunals illustrates, one of Professor Georg Schwarzenberger’s major contributions was to approach international law using an inductive approach. That is, he drew from the decisions of international tribunals to establish an evidential basis for the detail and limits of international law. This could be a profoundly conservative approach – it describes what international law apparently is, and is currently used for, not what it could be. Alternatively, it could be a genuinely empirical approach to law which brings practice and theory together. In reviewing an earlier edition of this book, Philip C Jessup, then Professor of Law at Columbia University, had suggested a degree of authorial subjectivity on Schwarzenberger’s part when he said that “the form of presentation is necessarily subjective and in the final analysis the book cannot fail to be regarded as Dr. Schwarzenberger’s analysis of the cases rather than as purely an exposition of international law by international tribunals”.b This assessment, published in May 1947, almost coincided with Schwarzenberger’s first mention

a J Beatson and R Zimmermann, Jurists Uprooted: German-Speaking Emigré Lawyers in Twentieth Century Britain (Oxford Scholarship Online 2004). b P Jessup, ‘International Law. Volume i, International Law as Applied by International Courts and Tribunals by G Schwarzenberger’ 25 Texas Law Review (1947).

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of his inductive approach in April 1947 in the Harvard Law Review.c Perhaps Jessup’s review partly prompted Professor Schwarzenberger in this, the third edition of his book, to take the ambitious leap from “systematic exposition”, to critical analysis and evaluation of the judicial material by invoking the inductive method. While Professor Schwarzenberger acknowledged that the inductive approach was not immune from subjectivity (inevitable in a process of selection, criticism and evaluation) it wore its subjectivity on the outside. Professor Schwarzenberger wanted to move away from “unverifiable subjectivity which poses as objectivity incarnate”. For courts he saw this as the danger of perniciously transgressing from lex lata to lex ferenda. In a sense Professor Schwarzenberger sought transparency in legal deliberations – an issue which remains live many decades later. This approach to international law reads in a very modern way due to its invocation of interdisciplinary perspectives. Although clear as to the limits of such contributions, and the importance of disciplinary purity and integrity, Professor Schwarzenberger nevertheless acknowledged public international law’s emanation from, and operation within, particular political and social contexts. Indeed, in his work after fleeing Nazi Germany he critiqued the British policy of appeasementd and both his Power Politics and International Law and Totalitarian Lawlessness books, written in 1941 and 1943 respectively, were clearly influenced by contemporary politics.e Often wrongly grouped within the Realist school, some, including Martti Koskenniemi, have suggested Professor Schwarzenberger was grasping at something like a sociological jurisprudence of international law.f Perhaps there was less intellectual space in his day for Professor Schwarzenberger to remain in international law, and ultimately he would “cross the floor” to international relations. Nowadays, even as a “frustrated idealist” he would hopefully be able to remain with his legal peers. It is a testament to his scholarship that Professor Schwarzenberger’s work continues to act as guiding star for international lawyers inclined towards interdisciplinary work and who seek to understand the terrain upon which they tread. While the decisions of courts and tribunals come and go, Professor Schwarzenberger’s methodological contribution to international law continues to endure. c G Schwarzenberger, ‘The Inductive Approach to International Law’ 60 Harvard Law Review (1947) 539. d G Schwarzenberger ‘The Munich Settlement and After: The Issue at Stake’ 4 New Commonwealth Quarterly (1938/39) 237. e See J Beatson and R Zimmermann, Jurists Uprooted: German-Speaking Emigré Lawyers in Twentieth Century Britain (Oxford Scholarship Online 2004). f See M Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 Modern Law Review 1. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

G. Schwarzenberger, International Law as Applied by International Courts and Tribunals (3rd edn, Stevens and Sons 1957) vol 1. Excerpt: “Preface”, pp xv-xviii, “From the Preface to the First Edition”, p XIX, “Introduction”, pp 1–11.

International Law as Applied by International Courts and Tribunals Georg Schwarzenberger Preface In form and substance, the third edition of International Law as Applied by International Courts and Tribunals differs considerably from its predecessors. In substance, the change is one in emphasis from systematic exposition to critical evaluation of the judicial material. This raises the question of the standards of criticism applied. Primarily, they are those basic rules of international law which are so well attested by inductively verifiable evidence as to be practically uncontroversial. Secondly, they are relevant working hypotheses which are gained from related academic disciplines. These have been used, but merely in an auxiliary way and for a limited purpose. In particular, historical and sociological working hypotheses can put us on guard against unduly venturesome enterprises in judicial law-making which appear out of tune with the rules governing the fundamental principles of international law and, therefore, are unlikely to be generally acceptable as “developments” of international law by judicial organs.1 While these working hypotheses are inductively verifiable, at least some of them may be controversial. In each case, therefore, it has been made clear when they have been employed. In this way, the reader has been warned that he must judge for himself whether he wishes to make his own criticism of judicial material based on such non-legal standards. In due course, it is hoped to include in a companion Volume on International Law in Perspective a synopsis of international law as a system of interrelated primary rules as well as the views of international law in its historical, sociological and ethical settings. Similarly, a chapter on the inductive approach to international law will find its home there. It has, therefore, become possible to lighten considerably the Introduction to this edition of Volume One. Until the publication of International Law in Perspective, references to preliminary 1 See below, pp. 62 et seq., and further Vol. ii, Chap. 51. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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studies in these fields will, perforce, have to suffice and will be found in the appropriate places. This change in treatment alone would have made an expansion of Volume One inevitable. The need for analysis of the work of the International Court of Justice during almost a decade and fuller consideration of the awards of bilateral arbitral tribunals during the inter-war period—now conveniently accessible in the United Nations Reports of International Arbitral Awards—­counselled a more drastic course: the presentation in two volumes of International Law as Applied by International Courts and Tribunals. This decision was made easier by the fact that, meanwhile, it has become clearer who were the “classes of users” of this book. When it was first written, I knew only that, both as an essay in method and a contribution to the understanding of international law, this effort ought to be made. On the basis of information for which I am greatly indebted to the Publishers, it is fairly clear that Volume One has come to meet two separate, but apparently not incompatible, functions. Volume One seems to have found favour with “consumers” so disparate as practitioners and students. The latter, however, had a complaint. For purposes of prolonged reading, the type of the previous editions was too tiring to the eye. With the co-operation, so forthcoming from both the Publishers and Printers, this difficulty has, it is hoped, now been overcome. The choice of a larger type, however, made the division of the material into two volumes almost a necessity. For some time to come, readers will have to be content to take these two volumes at their face value. As their title indicates, they are meant to provide a critical analysis of international law as applied by international courts and tribunals. To judge by the number of inquiries received by the Publishers during the last few years while Volume One has been out of print, a work of this kind fulfils a need among students and practitioners of international law. Yet, admittedly, these volumes are intended to form ultimately part of a more comprehensive treatise on international law. As explained more fully elsewhere,2 the chances of a British Digest of International Law being published in any foreseeable future were non-existent when this treatise was first conceived but, fortunately, in the last few years, they have considerably brightened. In this eventuality, it would be possible to rely to a considerable extent on such a British counterpart to Moore’s and Hackworth’s Digests of International Law. In any case, it is worth waiting to see whether this 2 9 Current Legal Problems (1956), pp. 244 et seq. On the project of the British Digest of International Law, see further the Report published by the David Davies Memorial Institute on the International Law Conference held at Niblet Hall, 1956, pp. 13 et seq. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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scheme will bear fruition. Be this as it may, my own—happily growing—digest of international law as applied in British practice makes it painfully obvious that, in any case, the presentation of International Law as applied in British Practice will require a minimum of another two volumes. Further studies in this field have, however, convinced me that it will not be necessary to insist on the separate treatment of British judicial and diplomatic practice in separate volumes. They will be analysed together in two further volumes. It is a pleasurable duty to acknowledge the benefit which, in preparing this edition, I have derived again from painstaking reviews in many places, from encouraging comments and criticism by colleagues and postgraduate students in this country and abroad, and, in particular, my two closest colleagues, Mr. L.C. Green, LL.B., and Dr. B. Cheng, both Lecturers in International Law at University College, London. Both these friends have accompanied the prolonged work of revision with friendly and constructive criticism. Beyond this, Dr. Cheng has been kind enough to undertake the laborious task of seeing this Volume through the press, prepare the tables of cases and the index as well as to bring the selected bibliography up to date. The touching devotion of these friends has been matched only by the rocklike faith and constancy of a publisher who is an author’s dream, and by the standards of perfection which, for a long time, I have come to associate with The Eastern Press. If I appear to be unable to express articulately the debt owed to my life’s companion, to whom these volumes are dedicated, the reason is that this dedication itself betrays more than she would wish me to say in public. I am also greatly indebted to the Editor of The American Journal of International Law for his willingly granted permission to use in Chapter 17 material previously published in The American Journal of International Law in a paper on Title to Territory: Response to a Challenge, and to the Editor of The Indian Year Book of World Affairs for allowing me to incorporate in Chapter 43 the substance of an article on Problems of International Criminal Law before the International Court of Justice. Finally, it remains to state that, in Volume One, international judgments and awards published prior to September, 1957, have been taken into account, and that it is hoped to publish Volume Two in the course of the coming year. G.S. University College, London, September 20, 1957.

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From the Preface to the First Edition

In the pre-1939 period, international law lay under a shadow. Though it would go beyond the purposes of this Preface to give an analysis of the numerous ­factors responsible for this state of affairs, it is the writer’s conviction that much could be done by those responsible for teaching this subject to make the reality of international law more evident. As will be explained in the Introduction in greater detail, this will require a change in emphasis from national attitudes and subjective views of writers to the certainty provided by the decisions of international courts and tribunals. It is true that their decisions do not form a system of precedents in the strict sense of English law. It may equally be conceded that international law is more than a system of case law, and, if the present volume should too much convey this impression, one of the purposes of the two volumes to follow will be to correct it. Yet when all this is said, the fact remains that the decisions of international courts and tribunals constitute evidence of international law of a very much more persuasive and authoritative character than any other available in this sphere. If the writer had required to be convinced of this truth, his teaching experience in the University of London would have taught him this lesson. It, therefore, merely means giving due to whom it is due if, in the first place, he wishes to express his indebtedness to his past and present students who, by their active co-operation, have made it an exciting experiment to teach international law on the basis of the inductive method used in this book.

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Introduction International Law as Applied by International Courts and Tribunals fulfils two distinct functions. The first is to provide a critical analysis of international law as applied on the international judicial level. The second is to serve as a proving ground for the inductive approach to international law. Any reader who is not concerned with questions of method may safely ignore Sections 2 and 3 of the Introduction. 1 The Subject-Matter of Volumes One and Two In accordance with the test evolved for grading the elements of law-­determining agencies,1 the Permanent Court of International Justice and its successor, the International Court of Justice, may claim first place in this heterogeneous hierarchy. Thus, examination of the practice of these two Courts is necessarily the primary task. For purely pragmatic reasons, these two Courts will be bracketed together as the World Court. It should, however, be noted that, with one exception,2 legal continuity between these Courts is lacking. The Permanent Court of International Justice derived its authority from Article 14 of the Covenant of the League of Nations and its Statute, which was a separate multi-lateral treaty. The International Court of Justice is based on Chapter XIV of the Charter of the United Nations and its Statute, which forms an integral part of the Charter. The formal break was recorded in a Resolution passed at the final session of the Assembly of the League of Nations in April, 1946. In substance, however, the new Court is in most respects the old Court in another garb. Unless, therefore, special reasons call for a distinction between the two Courts, they are referred to collectively as the World Court. The exposition of the work of the World Court has been supplemented in the first place by reference to the decisions of the Permanent Court of Arbitration. In some instances, such decisions have been included for the additional reason of showing by way of contrast the development of international law since the pre-1914 period. In order to avoid misunderstandings, it may be mentioned here that the Permanent Court of Arbitration has never been either permanent or a court in the strict sense of the word.3 To refer, therefore, as will be done, to the decisions of the special arbitration tribunals assisted by the Bureau of the

1 See below, pp. 27 et seq. [Editors’ note: not included in this Anthology]. 2 Cf. Article 36 (5) of the Statute of the I.C.J. See also Article 92 of the Charter of the United Nations. 3 Cf. Vol. ii, Chap. 51. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Permanent Court of Arbitration as decisions of the Permanent Court of Arbitration can again be justified merely on grounds of expediency. The awards of arbitration tribunals and claims commissions have been used in the first place to fill gaps in the practice of the World Court and Permanent Court of Arbitration. Whenever such awards happen to be contradictory, every effort has been made to avoid any appearance of greater certainty of the law than actually exists. Before explaining the methods applied in this work, it is a pleasurable duty to mention here others who have broken new ground in the field of the analysis of international judicial material. It is encouraging that their number is steadily increasing. As full references to these studies will be found in the bibliographics of Volumes One and Two, it must suffice here to enumerate at least some of the relevant names. First and foremost, the Doctrine of international law is indebted to American scholars and practitioners such as Moore, Scott, Ralston, Professor Hudson and Professor Carlston. In Great Britain, Lord McNair, Sir Eric Beckett, Sir Gerald Fitzmaurice, Sir Hersch Lauterpacht and, in the younger generation, Dr. Cheng may be singled out. Among Continental writers, Anzilotti, A. de La Pradelle, Schücking, Professor Max Huber, Professor Charles de Visscher, Professor Verdross, Professor Guggenheim, Dr. Hambro and, last but certainly not least, Professor Carlo Schmid stand out among others. To the last mentioned the writer owes a very personal debt. It was under the guidance of this most stimulating teacher and friend that he made his first acquaintance with international judicial practice and its pitfalls. 2 The Inductive Approach to International Law In response to the request of a number of reviewers, the writer added to the second edition of Volume One an exposition of the inductive method and its relative merits in comparison with the then still prevalent deductive and eclectic techniques. As, in due course, this topic will form part of International Law in Perspective,4 it suffices here to set out in the most concise way the essential characteristics of the inductive treatment of international law and the place of Volumes One and Two in this methodological context. 4 See above, p. xv. [Editors’ note: not included in this Anthology]. Meanwhile, some interim references may be helpful: 2nd ed. of this Vol., pp. xliii et seq.; A Manual of International Law, 3rd ed., pp. 8 et seq.; “The Inductive Approach to International Law,” 60 Harvard Law Review (1947), pp. 545 et seq.; “The Problem of an InternationalCriminal Law,” 3 C.L.P. (1950), pp. 272 et seq., and “The Province of the Doctrine of International Law,” 9 ibid. (1956), pp. 240 et seq.

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Characteristics of the Inductive Method The distinctive features of the inductive approach to international law can be summarised under three heads: (1) Emphasis on the working hypothesis—both historical research and the near-universality of Article 38 of the Statute of the World Court tend to transform it into a certainty—of the exclusive character of the three law-creating processes of international law. They are consensual engagements in the widest sense, international customary law and the general principles of law recognised by civilised nations. This excludes, for instance, natural law, international morality or considerations of humanity as such as admissible law-creating processes.5 This view of the matter does not mean denying the formative influence of any of these agencies as metalegal factors which have assisted in shaping international law and, in more than one way, continue to exercise a considerable influence. In present-day international law in particular, the application of standards of reasonableness and good faith on a basis of consent provides international judicial institutions with potent, but frequently hidden, opportunities of infusing equitable considerations in their application and formulation of legal rules.6 (2) Assessment of the position of courts, national and international, and the Doctrine of international law as subsidiary law-determining agencies and determination of the place of each element of any of these agencies in accordance with rationally verifiable tests.7 Realisation of the relative position of international judicial institutions in the hierarchy of elements of law-determining agencies means attributing prima facie greater authority to their pronouncements than those of municipal courts or of representatives of the Doctrine of international law. But even the World Court is no more than one of the elements of a subsidiary law-­ determining agency. This position necessarily rules out blind acceptance of its authority, which, for anybody but the parties to a contentious case,8 is merely of a persuasive character.

5 6 7 8

See below, pp. 26 and 49 et seq. [Editors’ note: not included in this Anthology]. See below, pp. 7 et seq., 52 et seq. and 62 et seq. [Editors’ note: not included in this Anthology]. See below, pp. 28 et seq. [Editors’ note: not included in this Anthology]. See Vol. ii, Chap. 55. [Editors’ note: not included in this Anthology].

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(3) Awareness of the character of the rules of international law as the only binding norms of international law,9 unless evidence is forthcoming that a legal principle which has been abstracted from such rules has itself acquired the character of an overriding rule. This implies that principles of international law on any level of abstraction, terms of classification, maxims or analogies from other legal systems as such cannot be “sources” of international law. Moreover, deduction as a legitimate legal technique is strictly limited to its auxiliary place as a systematic and teaching device.10 It would be idle to pretend that even the inductive method could exclude all traces of subjectivity. It probably may justly claim a considerable diminution of this element. Yet, to argue on these lines would mean evading the real issue. A modicum of subjectivity is inseparable from any process which calls for selection, interpretation, criticism and evaluation. It is not, however, rationally controlled and challengeable subjectivity which constitutes the danger. It is unverifiable subjectivity which poses as objectivity incarnate. At one time or another, any one of the elements of the various law-determining agencies may be tempted to succumb to the temptation of overstepping the border line between lex lata and lex ferenda. It is not one of the least services which the inductive method can render to provide effective tests for avoiding and correcting such lapses from the path of scholarship.11 The Methodological Function of Volumes One and Two Writing a comprehensive treatise on international law on an inductively verifiable basis would presuppose the existence of reliable digests of, and treatises on not only international law as applied by international judicial organs, but also as applied by all, or, at least, most of the subjects of international law. This sine qua non is far from being fulfilled.12 Thus, the application of the inductive

9 10 11 12

See below, pp. 19, 26, 65, 241 and Fundamental Principles, pp. 200 et seq. [Editors’ note: not included in this Anthology]. See further ibid. and l.c. note 4, above, 1956, pp. 243 et seq. [Editors’ note: not included in this Anthology]. See below, pp. 9 et seq., 32, 50 et seq., 102 et seq., 322, 327, 370 et seq., 442 et seq., 469 et seq. and 522 et seq. [Editors’ note: not included in this Anthology]. See further 2nd ed. of this Volume, pp. xlix–l, and l.c. in note 4 above, 1947, pp. 554 et seq. and below, p. 40. [Editors’ note: not included in this Anthology].

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method encourages an attitude of self-restraint and self-criticism on what, at any particular time, is attainable. For some time, it has been feasible to present international law on the international judicial level and in the practice of individual States with a fair amount of accuracy and in the necessary detail. Yet, at this stage, to purport to offer a comprehensive treatise on international law, which constitutes an accurate abstraction from, and assessment of, the attitudes taken by most of the elements of the various law-determining agencies would be at best intelligent anticipation of research which is yet to be carried out. In any case, it would be difficult to accept such products of unavoidable over-generalisation as pertaining to the realm of any self-respecting academic discipline. Admittedly, to present international law as applied by international courts and tribunals—and by any one State—is merely a self-denying piece of preliminary work which, in order to serve effectively the ultimate objective, requires to be supplemented by corresponding efforts of others, particularly in the field of State practice. Thus, it is a child of necessity. At the same time, this situation offers an exceptional opportunity. Judged by any of the tests suggested for grading the elements of law-­ determining agencies,13 the generic presumption in favour of international judicial organs could not be more auspicious. Prima facie, international character, judicial detachment and competence are present to a degree which no other element of any of the law-determining agencies can claim its own. Formulated in positive terms, the dicta of international courts and tribunals are likely to express international law in its truest and most objective form. Put more sceptically, these formulations may be expected to suffer, at least ­relatively, less than others from the vice of subjective disfiguration. However, three doubts which have occasionally been voiced deserve attention. In one respect, international law as applied on the international judicial level is not necessarily representative of international law at large. The consent of the parties—express, implied or constructive as the case may be—­enables international judicial institutions to infuse common sense, reasonableness and good faith into their formulation of the law to a considerably greater extent than appears innate in international law on the level of unorganised ­international society.14 Thus, if fault it is, isolation of the international judicial material brings with it the risk of imagining inherent in international law a 13 14

See below, pp. 27 et seq. [Editors’ note: not included in this Anthology]. See below, pp. 52 et seq. [Editors’ note: not included in this Anthology].

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stronger element of jus aequum than actually exists on the lower levels of international integration. Were it not for the typical contradictions inherent in a system of world power politics in disguise and the deep-seated cleavages between the major power agglomerations, this aspect of the matter could be ignored in the era of international law under the aegis of the United Nations.15 As it is, the distinction between the various levels on which international law is applied is essential. It is of particular relevance in order to assess accurately the degree to which any particular rule of international law has been transformed by the infusion of jus aequum.16 A difficulty which is more apparent than real is that it is very much a matter of chance whether international judicial institutions have an opportunity to deal with any particular aspect of international law. Admittedly, in some fields the harvest is richer than in others. Then, until more abundant judicial material is available, evidence of a more subjective character on the lower levels of the hierarchy of the elements of law-determining agencies must perforce suffice. Yet, although in recent years the flow of international judgments, advisory opinions and awards has noticeably receded,17 with every edition of this Volume this somewhat hypothetical hazard appears to become even more hypothetical than before. It also requires to be stated unambiguously that precedents in the meaning of stare decisis do not exist in international law.18 Yet, a judicial practice which amounts to a jurisprudence constante differs but in degree from the existence of binding precedents in the strict meaning of this term in English law. In particular, the World Court attaches considerable importance to the consistency of its own practice.19 Yet, it is not even necessary to stress this

15

16 17 18 19

Ex abundanti cautela, it may be expressly stated that views incidentally voiced in this work on matters pertaining to the related academic discipline of International Relations and the Sociology of International Law are also based on inductively verifiable evidence, but of a type germane to social science as distinct from a normative science. On the points raised here, see further Power Politics, pp. 695 et seq.; Fundamental Principles, pp. 372 et seq., and “The Impact of the East-West Rift on International Law,” 36 Grotius Transactions (1950), pp. 229 et seq. See below, pp. 52 et seq. [Editors’ note: not included in this Anthology]. For statistics on the World Court, cf. International Law Association, Second Report on the Review of the Charter of the U.N., submitted to the Dubrovnik Conference, 1956, pp. 33–34. See below, pp. 31, 65 and Vol. ii, Chap. 55. [Editors’ note: not included in this Anthology]. See below, pp. 58 et seq. [Editors’ note: not included in this Anthology].

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point. The s­ ignificance of international judicial findings is the reflection of the privileged position which international courts and tribunals occupy in the hierarchy of the elements of law-determining agencies.20 This position attaches to the findings of international courts and tribunals a presumption of being of an exceptionally high evidential value. 3 Standards of Criticism If the presentation of international law as applied by international courts and tribunals is to be more than a systematically arranged digest, individual decisions must be tested by relevant standards of criticism. The chief difference between this edition of International Law as Applied by International Courts and Tribunals and its predecessors is that, in this edition, these standards of criticism are more articulately applied to the international judicial material, and it is necessary to explain what they are. If the international lawyer is not to be overwhelmed by his material, he may find it helpful to orientate himself by views of his subject from the outside. Three such perspectives—those of history, international relations and civilisation—readily offer themselves.21 These historical, sociological and ethical settings of international law are, however, merely auxiliary forms of criticism. The application of these tests serves as a first warning of more extreme extravagancies against which not even international judicial institutions are entirely immune.22 Yet, the final tests must be germane to international law itself. They are the rules governing the seven fundamental principles of international law, that is to say, sovereignty, recognition, consent, good faith, self-­ defence, international responsibility and the freedom of the seas.23 Some of these rules are controversial and, therefore, cannot be regarded as suitable tests. Those, however, which command practically unanimous assent, are the—at least relatively—most objective tests which appear to suggest themselves. Admittedly, new evidence may call for reformulation of some of these rules; formerly controversial rules may become generally accepted, and vice versa.

20 21 22 23

See below, pp. 30 et seq. [Editors’ note: not included in this Anthology]. Until the publication of International Law in Perspective, see further The Province of the Doctrine of International Law, 9 C.L.P. (1956), pp. 235 et seq. For illustrations, see below, pp. 50 et seq., 102 et seq., 319 et seq., 370 et seq., 422 et seq., 469 et seq. and 522 et seq. [Editors’ note: not included in this Anthology]. See further Fundamental Principles, pp. 195 et seq., and l.c. above, note 21, pp. 246–247.

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Yet, this state of affairs hardly disproves the proposition that these rules are the most objective tests which are available. It merely confirms that, in particular in so dynamic an environment as international society, constants are rare, and the distinction between objectivity and subjectivity is one of regrettable, but unavoidable relativity. As it is imperative to draw a sharp line between the inductive approach to international law and the deductive and eclectic techniques, so it is necessary to distinguish clearly between the inductive and case-law methods. The case-law method means one of two things. It may imply that individual cases offer a sufficient basis for generalisations which amount to actual rules of law. In this case, it is likely that such alleged rules rest on foundations which are too narrow and weak. To generalise from any particular decision of an international court or tribunal would mean to treat one element of a subsidiary law-determining agency as if it were automatically representative of all these agencies.24 If the case-law method does not mean this, it must mean that the individual judgment or award which calls for analysis is tested in the light of pre-existing rules which it purports to apply. Again, the distinction between law-finding and law-making is somewhat relative.25 Yet, judicial law-making in disguise receives its legitimacy from the consent and acquiescence of the other elements of the various law-determining agencies. The more an asserted rule happens to be in line with the basic structure of the legal systems in question and generally felt requirements of the society or community which it serves, the more likely it is to be accepted. In this case, it will be treated in future as a correct exposition of a pre-existing rule though, in fact, it may have been invented in the very case which is supposed to illustrate the rule. The freedom of international judicial institutions in this respect stands in inverse ratio to the range and number of generally accepted rules of international law. In fact, most of the rules underlying the fundamental principles of international law, and also a number of secondary and tertiary rules, are in this category. Critical analysis of individual cases in the light of these inductively verified rules of international law marks the dividing line between the inductive method and subservient acceptance of judicial pronouncements as if they were emanations of superhuman wisdom. 24 25

See below, pp. 28 et seq. [Editors’ note: not included in this Anthology]. See below, pp. 62 et seq. [Editors’ note: not included in this Anthology].

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Chapter 6

Herbert L.A. Hart, The Concept of Law, 1961 Comment by Professor Colin Warbrick, University of Birmingham It is more than 50 years since the publication of HLA Hart’s The Concept of Law in 1961. Since then, legal theory has progressed and the content of international law has developed significantly. It is an indication of the power and clarity of Hart’s writing that, against these changes, his work still commands so much attention.a This attention is not confined to hagiographic memorials. Recent writings continue a tradition of generally (but not universally) respectful evaluation which began right from the publication of The Concept of Law. In some cases, reception of the work was severely critical,b especially Chapter X.c Whether pro- or anti-, the engagement of writers has been committed and enlightening. Hart was Professor of Jurisprudence in the Faculty of Law at Oxford from 1952 to 1969, having first been appointed as a lecturer in Philosophy.d Prior to this he was a practising barrister.e Hart was responsible for consolidating the University’s reputation in analytical jurisprudence and for asserting a strongly positivist understanding of the idea of law. The Concept of Law is original, accessible and challenging; its very lucidity allowing even non-theoreticians to utilise and manipulate the theses which Hart presents. There is no space to outline the argument of The Concept of Law.f I mention only two matters central to evaluating Chapter X. The first is that Hart’s identification of the “internal” aspect of rules provides the basis for grasping how law is possible within a society of States, that officials acknowledge that their practices take place within a regime of rules, which both empowers and constrains them. The other fundamental matter is the “rule of recognition” (it might have made things easier if Hart had found some other word than “rule” and I suppose one should say that it is not Kelsen’s grundnorm). This ­“ultimate” a J Kammerhofer & J d’Aspremont (eds), International Legal Positivism in a Post-Modern World (Cambridge University Press 2014). b B Simpson, Reflections on The Concept of Law (Oxford University Press 2011). c I Brownlie, ‘The Reality and Efficacy of International Law’ (1981) 52 byil 1. d N Lacey, A Life of HLA Hart (Oxford University Press 2006). e Ibid. f M Payendah, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21 European Journal of International Law 967.

© koninklijke brill nv, leiden, ��21 | doi:10.1163/9789004386242_007

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rule enables officials to identify the rules of international law which they must use and contains within it at least an implicit justification of why those rules are binding. The rule of recognition is to be found by examining the practices of officials and, where there is observed a consistent, social practice, say, of identifying as treaties particular forms of agreement and regarding their contents as generative of legal rules, then the status of treaties within the rule of recognition is established (as to the precise position in relation to the legal ­system as a whole there are doubts about Hart’s positiong). There is clearly some overlap between the practices of officials like this and their practices which establish particular rules of customary international law. However, they are not the same and, what is more, not only the reflections of officials contribute to establishing the rule of recognition but so may the investigations and speculations of others. The “teachings of the most highly qualified publicists”h cannot create international law but they can help to elucidate and entrench what its sources are, arguing about the identity of the rule of recognition. In Chapter X, Hart sees off some of the then current objections to international law as a system of law but then, I think, to the dismay of some international lawyers, he finds that international law has no rule of recognition. Accordingly for Hart, international law is simply a set of legal rules, lacking not only a rule of recognition but other secondary rules of universal law-making and comprehensive adjudication. The hostility of some international lawyers can be accounted for because the characterisation is not merely incompatible with their observed appreciation of how international law works but it is one which seems to give ammunition to those who would dispute international law’s provenance as law. It is important to acknowledge that officials (and others), when contemplating the rule of recognition, do so accepting the rule within a system of rules.i Hart might not have had the social practice for international law quite right. Perhaps both Hart and his critics were wrong in the 1960s and remain so now. Hart did not contest the claim that international law was law, though as merely a set of binding standards, but his denial of the systematic quality of international law gives too much weight to its undoubted institutional ­deficiencies and draws too little from its structural rules which deal with matters such as sources, interpretation, personality and responsibility. It may be g G Lamond, ‘Legal Sources, the Rule of Recognition, and Customary Law’ (2014) 59 American Journal of Jurisprudence 25. h Statute of the ICJ Art 38(1)(d). i Lamond (note g above); J Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press 2012) 6–16.

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that international law must be understood as a “fragmented” system of law but it should not be charged with being only a “primitive” set of rules. Those who act within the international legal system make substantial efforts to maintain and sustain its systematic coherence – though it is still true, as Hart insisted, that international law is separate from municipal law.

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H.L.A. Hart, The Concept of Law (Oxford University Press 1961). Excerpt: Chapter 10, ‘International Law’, pp 213–237. Reproduced with the kind permission of ­Oxford University Press.

International Law Herbert L.A. Hart 1

Sources of Doubt

The idea of a union of primary and secondary rules to which so important a place has been assigned in this book may be regarded as a mean between juristic extremes. For legal theory has sought the key to the understanding of law sometimes in the simple idea of an order backed by threats and sometimes in the complex idea of morality. With both of these law has certainly many affinities and connections; yet, as we have seen, there is a perennial danger of exaggerating these and of obscuring the special features which distinguish law from other means of social control. It is a virtue of the idea which we have taken as central that it permits us to see the multiple relationships between law, coercion, and morality for what they are, and to consider afresh in what, if any, sense these are necessary. Though the idea of the union of primary and secondary rules has these virtues, and though it would accord with usage to treat the existence of this characteristic union of rules as a sufficient condition for the application of the expression ‘legal system’, we have not claimed that the word ‘law’ must be defined in its terms. It is because we make no such claim to identify or regulate in this way the use of words like ‘law’ or ‘legal’, that this book is offered as an elucidation of the concept of law, rather than a definition of ‘law’ which might naturally be expected to provide a rule or rules for the use of these expressions. Consistently with this aim, we investigated, in the last chapter, the claim made in the German cases, that the title of valid law should be withheld from certain rules on account of their moral iniquity, even though they belonged to an existing system of primary and secondary rules. In the end we rejected this claim; but we did so, not because it conflicted with the view that rules belonging to such a system must be called ‘law’, nor because it conflicted with the weight of usage. Instead we criticized the attempt to narrow the class of valid laws by the extrusion of what was morally iniquitous, on the ground that to do this did not advance or clarify either theoretical inquiries or moral deliberation. For these purposes, the broader concept which is consistent with so much usage

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and which would permit us to regard rules however morally iniquitous as law, proved on examination to be adequate. International law presents us with the converse case. For, though it is consistent with the usage of the last 150 years to use the expression ‘law’ here, the absence of an international legislature, courts with compulsory jurisdiction, and centrally organized sanctions have inspired misgivings, at any rate in the breasts of legal theorists. The absence of these institutions means that the rules for states resemble that simple form of social structure, consisting only of primary rules of obligation, which, when we find it among societies of individuals, we are accustomed to contrast with a developed legal system. It is indeed arguable, as we shall show, that international law not only lacks the secondary rules of change and adjudication which provide for legislature and courts, but also a unifying rule of recognition specifying ‘sources’ of law and providing general criteria for the identification of its rules. These differences are indeed striking and the question ‘Is international law really law?’ can hardly be put aside. But in this case also, we shall neither dismiss the doubts, which many feel, with a simple reminder of the existing usage; nor shall we simply confirm them on the footing that the existence of a union of primary and secondary rules is a necessary as well as a sufficient condition for the proper use of the expression ‘legal system’. Instead we shall inquire into the detailed character of the doubts which have been felt, and, as in the German case, we shall ask whether the common wider usage that speaks of ‘international law’ is likely to obstruct any practical or theoretical aim. Though we shall devote to it only a single chapter some writers have proposed an even shorter treatment for this question concerning the character of international law. To them it has seemed that the question ‘Is international law really law?’ has only arisen or survived, because a trivial question about the meaning of words has been mistaken for a serious question about the nature of things: since the facts which differentiate international law from municipal law are clear and well known, the only question to be settled is whether we should observe the existing convention or depart from it; and this is a matter for each person to settle for himself. But this short way with the question is surely too short. It is true that among the reasons which have led theorists to hesitate over the extension of the word ‘law’ to international law, a too simple, and indeed absurd view, of what justifies the application of the same word to many different things has played some part. The variety of types of principle which commonly guide the extension of general classifying terms has too often been ignored in jurisprudence. None the less, the sources of doubt about international law are deeper, and more interesting than these mistaken views

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about the use of words. Moreover, the two alternatives offered by this short way with the question (‘Shall we observe the existing convention or shall we depart from it?’) are not exhaustive; for, besides them, there is the alternative of making explicit and examining the principles that have in fact guided the existing usage. The short way suggested would indeed be appropriate if we were dealing with a proper name. If someone were to ask whether the place called ‘London’ is really London, all we could do would be to remind him of the convention and leave him to abide by it or choose another name to suit his taste. It would be absurd, in such a case, to ask on what principle London was so called and whether this principle was acceptable. This would be absurd because, whereas the allotment of proper names rests only on an ad hoc convention, the extension of the general terms of any serious discipline is never without its principle or rationale, though it may not be obvious what that is. When as, in the present case, the extension is queried by those who in effect say, ‘We know that it is called law, but is it really law?’, what is demanded—no doubt obscurely—is that the principle be made explicit and its credentials inspected. We shall consider two principal sources of doubt concerning the legal character of international law and, with them, the steps which theorists have taken to meet these doubts. Both forms of doubt arise from an adverse comparison of international law with municipal law, which is taken as the clear, standard example of what law is. The first has its roots deep in the conception of law as fundamentally a matter of orders backed by threats and contrasts the character of the rules of international law with those of municipal law. The second form of doubt springs from the obscure belief that states are fundamentally incapable of being the subjects of legal obligation, and contrasts the character of the subjects of international law with those of municipal law. 2

Obligations and Sanctions

The doubts which we shall consider are often expressed in the opening chapters of books on international law in the form of the question ‘How can international law be binding?’ Yet there is something very confusing in this f­ avourite form of question; and before we can deal with it we must face a prior question to which the answer is by no means clear. This prior question is: what is meant by saying of a whole system of law that it is ‘binding’? The statement that a particular rule of a system is binding on a particular person is one familiar to lawyers and tolerably clear in meaning. We may paraphrase it by the assertion that the rule in question is a valid rule, and under it the person in question has some obligation or duty. Besides this, there are some situations in which Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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more general statements of this form are made. We may be doubtful in certain circumstances whether one legal system or another applies to a particular person. Such doubts may arise in the conflict of laws or in public international law. We may ask, in the former case, whether French or English Law is binding on a particular person as regards a particular transaction, and in the latter case we may ask whether the inhabitants of, for example, enemy-occupied Belgium, were bound by what the exiled government claimed was Belgian law or by the ordinances of the occupying power. But in both these cases, the questions are questions of law which arise within some system of law (municipal or international) and are settled by reference to the rules or principles of that system. They do not call in question the general character of the rules, but only their scope or applicability in given circumstances to particular persons or transactions. Plainly the question, ‘Is international law binding?’ and its congeners ‘How can international law be binding?’ or ‘What makes international law binding?’ are questions of a different order. They express a doubt not about the applicability, but about the general legal status of international law: this doubt would be more candidly expressed in the form ‘Can such rules as these be meaningfully and truthfully said ever to give rise to obligations?’ As the discussions in the books show, one source of doubt on this point is simply the absence from the system of centrally organized sanctions. This is one point of adverse comparison with municipal law, the rules of which are taken to be unquestionably ‘binding’ and to be paradigms of legal obligation. From this stage the further argument is simple: if for this reason the rules of international law are not ‘binding’, it is surely indefensible to take seriously their classification as law; for however tolerant the modes of common speech may be, this is too great a difference to be overlooked. All speculation about the nature of law begins from the assumption that its existence at least makes certain conduct obligatory. In considering this argument we shall give it the benefit of every doubt concerning the facts of the international system. We shall take it that neither Article 16 of the Covenant of the League of Nations nor Chapter VII of the United Nations Charter introduced into international law anything which can be equated with the sanctions of municipal law. In spite of the Korean war and of whatever moral may be drawn from the Suez incident, we shall suppose that, whenever their use is of importance, the law enforcement provisions of the Charter are likely to be paralysed by the veto and must be said to exist only on paper. To argue that international law is not binding because of its lack of organized sanctions is tacitly to accept the analysis of obligation contained in the theory that law is essentially a matter of orders backed by threats. This theory, as we have seen, identifies ‘having an obligation’ or ‘being bound’ with ‘likely Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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to suffer the sanction or punishment threatened for disobedience’. Yet, as we have argued, this identification distorts the role played in all legal thought and discourse of the ideas of obligation and duty. Even in municipal law, where there are effective organized sanctions, we must distinguish, for the variety of reasons given in Chapter III, the meaning of the external predictive statement ‘I (you) are likely to suffer for disobedience’, from the internal normative statement ‘I (you) have an obligation to act thus’ which assesses a particular person’s situation from the point of view of rules accepted as guiding standards of behaviour. It is true that not all rules give rise to obligations or duties; and it is also true that the rules which do so generally call for some sacrifice of private interests, and are generally supported by serious demands for conformity and insistent criticism of deviations. Yet once we free ourselves from the predictive analysis and its parent conception of law as essentially an order backed by threats, there seems no good reason for limiting the normative idea of obligation to rules supported by organized sanctions. We must, however, consider another form of the argument, more plausible because it is not committed to definition of obligation in terms of the likelihood of threatened sanctions. The sceptic may point out that there are in a municipal system, as we have ourselves stressed, certain provisions which are justifiably called necessary; among these are primary rules of obligation, prohibiting the free use of violence, and rules providing for the official use of force as a sanction for these and other rules. If such rules and organized sanctions supporting them are in this sense necessary for municipal law, are they not equally so for international law? That they are may be maintained without insisting that this follows from the very meaning of words like ‘binding’ or ‘obligation’. The answer to the argument in this form is to be found in those elementary truths about human beings and their environment which constitute the enduring psychological and physical setting of municipal law. In societies of individuals, approximately equal in physical strength and vulnerability, physical sanctions are both necessary and possible. They are required in order that those who would voluntarily submit to the restraints of law shall not be mere victims of malefactors who would, in the absence of such sanctions, reap the advantages of respect for law on the part of others, without respecting it themselves. Among individuals living in close proximity to each other, opportunities for injuring others, by guile, if not by open attack, are so great, and the chances of escape so considerable, that no mere natural deterrents could in any but the simplest forms of society be adequate to restrain those too wicked, too stupid, or too weak to obey the law. Yet, because of the same fact of approximate equality and the patent advantages of submission to a system of

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restraints, no combination of malefactors is likely to exceed in strength those who would voluntarily co-operate in its maintenance. In these circumstances, which constitute the background of municipal law, sanctions may successfully be used against malefactors with relatively small risks, and the threat of them will add much to whatever natural deterrents there may be. But, just because the simple truisms which hold good for individuals do not hold good for states, and the factual background to international law is so different from that of municipal law, there is neither a similar necessity for sanctions (desirable though it may be that international law should be supported by them) nor a similar prospect of their safe and efficacious use. This is so because aggression between states is very unlike that between individuals. The use of violence between states must be public, and though there is no international police force, there can be very little certainty that it will remain a matter between aggressor and victim, as a murder or theft, in the absence of a police force, might. To initiate a war is, even for the strongest power, to risk much for an outcome which is rarely predictable with reasonable confidence. On the other hand, because of the inequality of states, there can be no standing assurance that the combined strength of those on the side of international order is likely to preponderate over the powers tempted to aggression. Hence the organization and use of sanctions may involve fearful risks and the threat of them add little to the natural deterrents. Against this very different background of fact, international law has developed in a form different from that of municipal law. In a population of a modern state, if there were no organized repression and punishment of crime, violence and theft would be hourly expected; but for states, long years of peace have intervened between disastrous wars. These years of peace are only rationally to be expected, given the risks and stakes of war and the mutual needs of states; but they are worth regulating by rules which differ from those of municipal law in (among other things) not providing for their enforcement by any central organ. Yet what these rules require is thought and spoken of as obligatory; there is general pressure for conformity to the rules; claims and admissions are based on them and their breach is held to justify not only insistent demands for compensation, but reprisals and counter-measures. When the rules are disregarded, it is not on the footing that they are not binding; instead efforts are made to conceal the facts. It may of course be said that such rules are efficacious only so far as they concern issues over which states are unwilling to fight. This may be so, and may reflect adversely on the importance of the system and its value to humanity. Yet that even so much may be secured shows that no simple d­ eduction can be made from the necessity of organized sanctions to municipal law, in its setting of physical and psychological facts, to the conclusion that without

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them international law, in its very different setting, imposes no obligations, is not ‘binding’, and so not worth the title of ‘law’. 3

Obligation and the Sovereignty of States

Great Britain, Belgium, Greece, Soviet Russia have rights and obligations under international law and so are among its subjects. They are random examples of states which the layman would think of as independent and the lawyer would recognize as ‘sovereign’. One of the most persistent sources of perplexity about the obligatory character of international law has been the difficulty felt in accepting or explaining the fact that a state which is sovereign may also be ‘bound’ by, or have an obligation under, international law. This form of scepticism is, in a sense, more extreme than the objection that international law is not binding because it lacks sanctions. For whereas that would be met if one day international law were reinforced by a system of sanctions, the present objection is based on a radical inconsistency, said or felt to exist, in the conception of a state which is at once sovereign and subject to law. Examination of this objection involves a scrutiny of the notion of sovereignty, applied not to a legislature or to some other element or person within a state, but to a state itself. Whenever the word ‘sovereign’ appears in jurisprudence, there is a tendency to associate with it the idea of a person above the law whose word is law for his inferiors or subjects. We have seen in the early chapters of this book how bad a guide this seductive notion is to the structure of a municipal legal system; but it has been an even more potent source of confusion in the theory of international law. It is, of course, possible to think of a state along such lines, as if it were a species of Superman—a Being inherently lawless but the source of law for its subjects. From the sixteenth century onwards, the symbolical identification of state and monarch (‘L’état c’est moi’) may have encouraged this idea which has been the dubious inspiration of much political as well as legal theory. But it is important for the understanding of international law to shake off these associations. The expression ‘a state’ is not the name of some person or thing inherently or ‘by nature’ outside the law; it is a way of referring to two facts: first, that a population inhabiting a territory lives under that form of ordered government provided by a legal system with its characteristic structure of legislature, courts, and primary rules; and, secondly, that the government enjoys a vaguely defined degree of independence. The word ‘state’ has certainly its own large area of vagueness but what has been said will suffice to display its central meaning. States such as Great Britain

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or Brazil, the United States or Italy, again to take random examples, possess a very large measure of independence from both legal and factual control by any authorities or persons outside their borders, and would rank as ‘sovereign states’ in international law. On the other hand, individual states which are members of a federal union, such as the United States, are subject in many different ways to the authority and control of the federal government and constitution. Yet the independence which even these federated states retain is large if we compare it with the position, say, of an English county, of which the word ‘state’ would not be used at all. A county may have a local council discharging, for its area, some of the functions of a legislature, but its meagre powers are subordinate to those of Parliament and, except in certain minor respects, the area of the county is subject to the same laws and government as the rest of the country. Between these extremes there are many different types and degrees of dependence (and so of independence) between territorial units which possess an ordered government. Colonies, protectorates, suzerainties, trust territories, confederations, present fascinating problems of classification from this point of view. In most cases the dependence of one unit on another is expressed in legal forms, so that what is law in the territory of the dependent unit will, at least on certain issues, ultimately depend on law-making operations in the other. In some cases, however, the legal system of the dependent territory may not reflect its dependence. This may be so either because it is merely formally independent and the territory is in fact governed, through puppets, from outside; or it may be so because the dependent territory has a real autonomy over its internal but not its external affairs, and its dependence on another country in external affairs does not require expression as part of its domestic law. Dependence of one territorial unit on another in these various ways is not, however, the only form in which its independence may be limited. The limiting factor may be not the power or authority of another such unit, but an international authority affecting units which are alike independent of each other. It is possible to imagine many different forms of international authority and correspondingly many different limitations on the independence of states. The p ­ ossibilities include, among many others, a world legislature on the model of the British Parliament, possessing legally unlimited powers to regulate the internal and external affairs of all; a federal legislature on the model of Congress, with legal competence only over specified matters or one limited by guarantees of specific rights of the constituent units; a regime in which the only form of legal control consists of rules generally accepted as applicable

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to all; and finally a regime in which the only form of obligation recognized is contractual or self-imposed, so that a state’s independence is legally limited only by its own act. It is salutary to consider this range of possibilities because merely to realize that there are many possible forms and degrees of dependence and independence, is a step towards answering the claim that because states are sovereign they ‘cannot’ be subject to or bound by international law or ‘can’ only be bound by some specific form of international law. For the word ‘sovereign’ means here no more than ‘independent’; and, like the latter, is negative in force: a sovereign state is one not subject to certain types of control, and its sovereignty is that area of conduct in which it is autonomous. Some measure of autonomy is ­imported, as we have seen, by the very meaning of the word state but the contention that this ‘must’ be unlimited or ‘can’ only be limited by certain types of obligation is at best the assertion of a claim that states ought to be free of all other restraints, and at worst is an unreasoned dogma. For if in fact we find that there exists among states a given form of international authority, the sovereignty of states is to that extent limited, and it has just that extent which the rules allow. Hence we can only know which states are sovereign, and what the extent of their sovereignty is, when we know what the rules are; just as we can only know whether an Englishman or an American is free and the extent of his freedom when we know what English or American law is. The rules of international law are indeed vague and conflicting on many points, so that doubt about the area of independence left to states is far greater than that concerning the extent of a citizen’s freedom under municipal law. None the less, these difficulties do not validate the a priori argument which attempts to deduce the general character of international law from an absolute sovereignty, which is assumed, without reference to international law, to belong to states. It is worth observing that an uncritical use of the idea of sovereignty has spread similar confusion in the theory both of municipal and international law, and demands in both a similar corrective. Under its influence, we are led to believe that there must in every municipal legal system be a sovereign legislator subject to no legal limitations; just as we are led to believe that international law must be of a certain character because states are sovereign and incapable of legal limitation save by themselves. In both cases, belief in the necessary existence of the legally unlimited sovereign prejudges a question which we can only answer when we examine the actual rules. The question for municipal law is: what is the extent of the supreme legislative authority recognized in this system? For international law it is: what is the maximum area of autonomy which the rules allow to states? Thus the simplest answer to the present objection is that it inverts the order in which questions must be considered. There is no way of knowing what Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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sovereignty states have, till we know what the forms of international law are and whether or not they are mere empty forms. Much juristic debate has been confused because this principle has been ignored, and it is profitable to consider in its light those theories of international law which are known as ‘voluntarist’ or theories of ‘auto-limitation’. These attempted to reconcile the (absolute) sovereignty of states with the existence of binding rules of international law, by treating all international obligations as self-imposed like the obligation which arises from a promise. Such theories are in fact the counterpart in international law of the social contract theories of political science. The latter sought to explain the facts that individuals, ‘naturally’ free and independent, were yet bound by municipal law, by treating the obligation to obey the law as one arising from a contract which those bound had made with each other, and in some cases with their rulers. We shall not consider here the well-known objections to this theory when taken literally, nor its value when taken merely as an illuminating analogy. Instead we shall draw from its history a threefold argument against the voluntarist theories of international law. First, these theories fail completely to explain how it is known that states ‘can’ only be bound by self-imposed obligations, or why this view of their sovereignty should be accepted, in advance of any examination of the actual character of international law. Is there anything more to support it besides the fact that it has often been repeated? Secondly, there is something incoherent in the argument designed to show that states, because of their sovereignty, can only be subject to or bound by rules which they have imposed upon themselves. In some very extreme forms of ‘auto-limitation’ theory, a state’s agreement or treaty engagements are treated as mere declarations of its proposed future conduct, and failure to perform is not considered to be a breach of any obligation. This, though very much at variance with the facts, has at least the merit of consistency: it is the simple theory that the absolute sovereignty of states is inconsistent with obligation of any kind, so that, like Parliament, a state cannot bind itself. The less extreme view that a state may impose obligations on itself by promise, agreement, or treaty is not, however, consistent with the theory that states are subject only to rules which they have thus imposed on themselves. For, in order that words, spoken or written, should in certain circumstances function as a promise, agreement, or treaty, and so give rise to obligations and confer rights which others may claim, rules must already exist providing that a state is bound to do whatever it undertakes by ­appropriate words to do. Such rules presupposed in the very notion of a self-imposed obligation obviously cannot derive their obligatory status from a self-imposed ­obligation to obey them. It is true that every specific action which a given state was bound to do might in theory derive its obligatory character from a promise; none the less Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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this could only be the case if the rule that promises, &c., create obligations is applicable to the state independently of any promise. In any society, whether composed of individuals or states, what is necessary and sufficient, in order that the words of a promise, agreement, or treaty should give rise to obligations, is that rules providing for this and specifying a procedure for these selfbinding operations should be generally, though they need not be universally, acknowledged. Where they are acknowledged the individual or state who wittingly uses these procedures is bound thereby, whether he or it chooses to be bound or not. Hence, even this most voluntary form of social obligation involves some rules which are binding independently of the choice of the party bound by them, and this, in the case of states, is inconsistent with the supposition that their sovereignty demands freedom from all such rules. Thirdly there are the facts. We must distinguish the a priori claim just criticized, that states can only be bound by self-imposed obligations, from the claim that though they could be bound in other ways under a different system, in fact no other form of obligation for states exists under the present rules of international law. It is, of course, possible that the system might be one of this wholly consensual form, and both assertions and repudiations of this view of its character are to be found in the writings of jurists, in the opinions of judges, even of international courts, and in the declarations of states. Only a dispassionate survey of the actual practice of states can show whether this view is correct or not. It is true that modern international law is very largely treaty law, and elaborate attempts have been made to show that rules which appear to be binding on states without their prior consent do in fact rest on consent, though this may have been given only ‘tacitly’ or has to be ‘inferred’. Though not all are fictions, some at least of these attempts to reduce to one the forms of international obligation excite the same suspicion as the notion of a ‘tacit command’ which, as we have seen, was designed to perform a similar, though more obviously spurious, simplification of municipal law. A detailed scrutiny of the claim that all international obligation arises from the consent of the party bound, cannot be undertaken here, but two clear and important exceptions to this doctrine must be noticed. The first is the case of a new state. It has never been doubted that when a new, independent state emerges into existence, as did Iraq in 1932, and Israel in 1948, it is bound by the general obligations of international law including, among others, the rules that give binding force to treaties. Here the attempt to rest the new state’s international obligations on a ‘tacit’ or ‘inferred’ consent seems wholly threadbare. The second case is that of a state acquiring territory or undergoing some other change, which brings with it, for the first time, the incidence of obligations under rules which previously it had no opportunity either to observe or break,

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and to which it had no occasion to give or withhold consent. If a state, previously without access to the sea, acquires maritime territory, it is clear that this is enough to make it subject to all the rules of international law relating to the territorial waters and the high seas. Besides these, there are more debatable cases, mainly relating to the effect on non-parties of general or multilateral treaties; but these two important exceptions are enough to justify the suspicion that the general theory that all international obligation is self-imposed has been inspired by too much abstract dogma and too little respect for the facts. 4

International Law and Morality

In Chapter V we considered the simple form of social structure which consists of primary rules of obligation alone, and we saw that, for all but the smallest most tightly knit and isolated societies, it suffered from grave defects. Such a regime must be static, its rules altering only by the slow processes of growth and decay; the identification of the rules must be uncertain; and the ascertainment of the fact of their violation in particular cases, and the application of social pressure to offenders must be haphazard, time-wasting, and weak. We found it illuminating to conceive the secondary rules of recognition, change, and adjudication characteristic of municipal law as different though related remedies for these different defects. In form, international law resembles such a regime of primary rules, even though the content of its often elaborate rules are very unlike those of a primitive society, and many of its concepts, methods, and techniques are the same as those of modern municipal law. Very often jurists have thought that these formal differences between international and municipal law can best be expressed by classifying the former as ‘morality’. Yet it seems clear that to mark the difference in this way is to invite confusion. Sometimes insistence that the rules governing the relations between states are only moral rules, is inspired by the old dogmatism, that any form of social structure that is not reducible to orders backed by threats can only be a form of ‘morality’. It is, of course, possible to use the word ‘morality’ in this very comprehensive way; so used, it provides a conceptual wastepaper basket into which will go the rules of games, clubs, etiquette, the fundamental provisions of constitutional law and international law, together with rules and principles which we ordinarily think of as moral ones, such as the common prohibitions of cruelty, dishonesty, or lying. The objection to this procedure is that between what is thus classed together as ‘morality’ there are such important differences

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of both form and social function, that no conceivable purpose, practical or theoretical, could be served by so crude a classification. Within the category of morality thus artificially widened, we should have to mark out afresh the old distinctions which it blurs. In the particular case of international law there are a number of different reasons for resisting the classification of its rules as ‘morality’. The first is that states often reproach each other for immoral conduct or praise themselves or others for living up to the standard of international morality. No doubt one of the virtues which states may show or fail to show is that of abiding by international law, but that does not mean that that law is morality. In fact the appraisal of states’ conduct in terms of morality is recognizably different from the formulation of claims, demands, and the acknowledgements of rights and obligations under the rules of international law. In Chapter IX we listed certain features which might be taken as defining characteristics of social morality: among them was the distinctive form of moral pressure by which moral rules are primarily supported. This consists not of appeals to fear or threats of retaliation or demands for compensation, but of appeals to conscience, made in the expectation that once the person addressed is reminded of the moral principle at stake, he may be led by guilt or shame to respect it and make amends. Claims under international law are not couched in such terms though of course, as in municipal law, they may be joined with a moral appeal. What predominate in the arguments, often technical, which states address to each other over disputed matters of international law, are references to precedents, treaties, and juristic writings; often no mention is made of moral right or wrong, good or bad. Hence the claim that the Peking Government has or has not a right under international law to expel the Nationalist forces from Formosa is very different from the question whether this is fair, just, or a morally good or bad thing to do, and is backed by characteristically different arguments. No doubt in the relations between states there are half-way houses between what is clearly law and what is clearly morality, analogous to the standards of politeness and courtesy recognized in private life. Such is the sphere of international ‘comity’ exemplified in the privilege extended to diplomatic envoys of receiving goods intended for personal use free of duty. A more important ground of distinction is the following. The rules of international law, like those of municipal law, are often morally quite indifferent. A rule may exist because it is convenient or necessary to have some clear fixed rule about the subjects with which it is concerned, but not because any moral importance is attached to the particular rule. It may well be but one of a large number of possible rules, any one of which would have done equally

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well. Hence legal rules, municipal and international, commonly contain much specific detail, and draw arbitrary distinctions, which would be unintelligible as elements in moral rules or principles. It is true that we must not be dogmatic about the possible content of social morality: as we saw in Chapter IX the morality of a social group may contain much by way of injunction which may appear absurd or superstitious when viewed in the light of modern knowledge. So it is possible, though difficult, to imagine that men with general beliefs very different from ours, might come to attach moral importance to driving on the left instead of the right of the road or could come to feel moral guilt if they broke a promise witnessed by two witnesses, but no such guilt if it was witnessed by one. Though such strange moralities are possible, it yet remains true that a morality cannot (logically) contain rules which are generally held by those who subscribe to them to be in no way preferable to alternatives and of no intrinsic importance. Law, however, though it also contains much that is of moral importance, can and does contain just such rules, and the arbitrary distinctions, formalities, and highly specific detail which would be most difficult to understand as part of morality, are consequently natural and easily comprehensible features of law. For one of the typical functions of law, unlike morality, is to introduce just these elements in order to maximize certainty and predictability and to facilitate the proof or assessments of claims. Regard for forms and detail carried to excess, has earned for law the reproaches of ‘formalism’ and ‘legalism’; yet it is important to remember that these vices are exaggerations of some of the law’s distinctive qualities. It is for this reason that just as we expect a municipal legal system, but not morality, to tell us how many witnesses a validly executed will must have, so we expect international law, but not morality, to tell us such things as the number of days a belligerent vessel may stay for refueling or repairs in a neutral port; the width of territorial waters; the methods to be used in their measurement. All these things are necessary and desirable provisions for legal rules to make, but so long as the sense is retained that such rules may equally well take any of several forms, or are important only as one among many possible means to specific ends, they remain distinct from rules which have the status in individual or social life characteristic of morality. Of course not all the rules of international law are of this formal, or arbitrary, or morally neutral kind. The point is only that legal rules can and moral rules cannot be of this kind. The difference in character between international law and anything which we naturally think of as morality has another aspect. Though the effect of a law requiring or proscribing certain practices might ultimately be to bring about changes in the morality of a group, the notion of a legislature making or repealing moral rules is, as we saw in Chapter VII, an absurd one. A legislature cannot

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introduce a new rule and give it the status of a moral rule by its fiat, just as it cannot, by the same means, give a rule the status of a tradition, though the reasons why this is so may not be the same in the two cases. Accordingly morality does not merely lack or happen not to have a legislature; the very idea of change by human legislative fiat is repugnant to the idea of morality. This is so because we conceive of morality as the ultimate standard by which human actions (legislative or otherwise) are evaluated. The contrast with international law is clear. There is nothing in the nature or function of international law which is similarly inconsistent with the idea that the rules might be subject to legislative change; the lack of a legislature is just a lack which many think of as a defect one day to be repaired. Finally we must notice a parallel in the theory of international law between the argument, criticized in Chapter IX, that even if particular rules of municipal law may conflict with morality, none the less the system as a whole must rest on a generally diffused conviction that there is a moral obligation to obey its rules, though this may be overridden in special exceptional cases. It has often been said in the discussion of the ‘foundations’ of international law, that in the last resort, the rules of international law must rest on the conviction of states that there is a moral obligation to obey them; yet, if this means more than that the obligations which they recognize are not enforceable by officially organized sanctions, there seems no reason to accept it. Of course it is possible to think of circumstances which would certainly justify our saying that a state considered some course of conduct required by international law morally obligatory, and acted for that reason. It might, for example, continue to perform the obligations of an onerous treaty because of the manifest harm to humanity that would follow if confidence in treaties was severely shaken, or because of the sense that it was only fair to shoulder the irksome burdens of a code from which it, in its turn, had profited in the past when the burden fell on others. Precisely whose motives, thoughts and feelings on such matters of moral conviction are to be attributed to the state is a question which need not detain us here. But though there may be such a sense of moral obligation it is difficult to see why or in what sense it must exist as a condition of the existence of international law. It is clear that in the practice of states certain rules are regularly respected even at the cost of certain sacrifices; claims are formulated by reference to them; breaches of the rules expose the offender to serious criticism and are held to justify claims for compensation or retaliation. These, surely, are all the elements required to support the statement that there exist among states rules imposing obligations upon them. The proof that ‘binding’ rules in any society exist, is simply that they are thought of, spoken of, and function

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as such. What more is required by way of ‘foundations’ and why, if more is required, must it be a foundation of moral obligation? It is, of course, true that rules could not exist or function in the relations between states unless a preponderant majority accepted the rules and voluntarily co-operated in maintaining them. It is true also that the pressure exercised on those who break or threaten to break the rules is often relatively weak, and has usually been decentralized or unorganized. But as in the case of individuals, who voluntarily accept the far more strongly coercive system of municipal law, the motives for voluntarily supporting such a system may be extremely diverse. It may well be that any form of legal order is at its healthiest when there is a generally diffused sense that it is morally obligatory to conform to it. None the less, adherence to law may not be motivated by it, but by calculations of long-term interest, or by the wish to continue a tradition or by disinterested concern for others. There seems no good reason for identifying any of these as a necessary condition of the existence of law either among individuals or states. 5

Analogies of Form and Content

To the innocent eye, the formal structure of international law lacking a legislature, courts with compulsory jurisdiction and officially organized sanctions, appears very different from that of municipal law. It resembles, as we have said, in form though not at all in content, a simple regime of primary or customary law. Yet some theorists, in their anxiety to defend against the sceptic the title of international law to be called ‘law’, have succumbed to the temptation to minimize these formal differences, and to exaggerate the analogies which can be found in international law to legislation or other desirable formal features of municipal law. Thus, it has been claimed that war, ending with a treaty whereby the defeated power cedes territory, or assumes obligations, or accepts some diminished form of independence, is essentially a legislative act; for, like legislation, it is an imposed legal change. Few would now be impressed by this analogy, or think that it helped to show that international law had an equal title with municipal law to be called ‘law’; for one of the salient differences between municipal and international law is that the former usually does not, and the latter does, recognize the validity of agreements extorted by violence. A variety of other, more respectable analogies have been stressed by those who consider the title of ‘law’ to depend on them. The fact that in almost all cases the judgment of the International Court and its predecessor, the ­Permanent Court of International Justice, have been duly carried out by the parties, has often been emphasized as if this somehow offset the fact that, in contrast with

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municipal courts, no state can be brought before these international tribunals without its prior consent. Analogies have also been found between the use of force, legally regulated and officially administered, as a sanction in municipal law and ‘decentralized sanctions’, i.e. the resort to war or forceful retaliation by a state which claims that its rights under international law have been violated by another. That there is some analogy is plain; but its significance must be assessed in the light of the equally plain fact that, whereas a municipal court has a compulsory jurisdiction to investigate the rights and wrongs of ‘self help’, and to punish a wrongful resort to it, no international court has a similar jurisdiction. Some of these dubious analogies may be considered to have been much strengthened by the obligations which states have assumed under the United Nations Charter. But, again, any assessment of their strength is worth little if it ignores the extent to which the law enforcement provisions of the Charter, admirable on paper, have been paralysed by the veto and the ideological divisions and alliances of the great powers. The reply, sometimes made, that the law-enforcement provisions of municipal law might also be paralysed by a general strike is scarcely convincing; for in our comparison between municipal law and international law we are concerned with what exists in fact, and here the facts are undeniably different. There is, however, one suggested formal analogy between international and municipal law which deserves some scrutiny here. Kelsen and many modern theorists insist that, like municipal law, international law possesses and indeed must possess a ‘basic norm’, or what we have termed a rule of recognition, by reference to which the validity of the other rules of the system is assessed, and in virtue of which the rules constitute a single system. The opposed view is that this analogy of structure is false: international law simply consists of a set of separate primary rules of obligation which are not united in this manner. It is, in the usual terminology of international lawyers, a set of customary rules of which the rule giving binding force to treaties is one. It is notorious that those who have embarked on the task have found very great difficulties in formulating the ‘basic norm’ of international law. Candidates for this position include the principle pacta sunt servanda. This has, however, been abandoned by most theorists, since it seems incompatible with the fact that not all o­ bligations under international law arise from ‘pacta’, however widely that term is construed. So it has been replaced by something less familiar: the so-called rule that ‘States should behave as they customarily behave’. We shall not discuss the merits of these and other rival formulations of the basic norm of international law; instead we shall question the assumption that it must contain such an element. Here the first and perhaps the last question to ask is: why should we make this a priori assumption (for that is what it is) Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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and so prejudge the actual character of the rules of international law? For it is surely conceivable (and perhaps has often been the case) that a society may live by rules imposing obligations on its members as ‘binding’, even though they are regarded simply as a set of separate rules, not unified by or deriving their validity from any more basic rule. It is plain that the mere existence of rules does not involve the existence of such a basic rule. In most modern societies there are rules of etiquette, and, though we do not think of them as imposing obligations, we may well talk of such rules as existing; yet we would not look for, nor could we find, a basic rule of etiquette from which the validity of the separate rules was derivable. Such rules do not form a system but a mere set, and, of course, the inconveniences of this form of social control, where matters more important than those of etiquette are at stake, are considerable. They have already been described in Chapter V. Yet if rules are in fact accepted as standards of conduct, and supported with appropriate forms of social pressure distinctive of obligatory rules, nothing more is required to show that they are binding rules, even though, in this simple form of social structure, we have not something which we do have in municipal law: namely a way of demonstrating the validity of individual rules by reference to some ultimate rule of the system. There are of course a number of questions which we can ask about rules which constitute not a system but a simple set. We can, for example, ask questions about their historical origin, or questions concerning the causal influences that have fostered the growth of the rules. We can also ask questions about the value of the rules to those who live by them, and whether they regard themselves as morally bound to obey them or obey from some other motive. But we cannot ask in the simpler case one kind of question which we can ask concerning the rules of a system enriched, as municipal law is, by a basic norm or secondary rule of recognition. In the simpler case we cannot ask: ‘From what ultimate provision of the system do the separate rules derive their validity or “binding force”?’ For there is no such provision and need be none. It is, therefore, a mistake to suppose that a basic rule or rule of recognition is a generally necessary condition of the existence of rules of obligation or ‘binding’ rules. This is not a necessity, but a luxury, found in advanced social systems whose members not merely come to accept separate rules piecemeal, but are committed to the acceptance in advance of general classes of rule, marked out by general criteria of validity. In the simpler form of society we must wait and see whether a rule gets accepted as a rule or not; in a system with a basic rule of recognition we can say before a rule is actually made, that it will be valid if it conforms to the requirements of the rule of recognition. The same point may be presented in a different form. When such a rule of recognition is added to the simple set of separate rules, it not only brings with Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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it the advantages of system and ease of identification, but it makes possible for the first time a new form of statement. These are internal statements about the validity of the rules; for we can now ask in a new sense, ‘What provision of the system makes this rule binding?’ or, in Kelsen’s language, ‘What, within the system, is the reason of its validity?’ The answers to these new questions are provided by the basic rule of recognition. But though, in the simpler structure, the validity of the rules cannot thus be demonstrated by reference to any more basic rule, this does not mean that there is some question about the rules or their binding force or validity which is left unexplained. It is not the case that there is some mystery as to why the rules in such a simple social structure are binding, which a basic rule, if only we could find it, would resolve. The rules of the simple structure are, like the basic rule of the more advanced systems, binding if they are accepted and function as such. These simple truths about different forms of social structure can, however, easily be obscured by the obstinate search for unity and system where these desirable elements are not in fact to be found. There is indeed something comic in the efforts made to fashion a basic rule for the most simple forms of social structure which exist without one. It is as if we were to insist that a naked savage must really be dressed in some invisible variety of modern dress. Unfortunately, there is also here a standing possibility of confusion. We may be persuaded to treat as a basic rule, something which is an empty repetition of the mere fact that the society concerned (whether of individuals or states) observes certain standards of conduct as obligatory rules. This is surely the status of the strange basic norm which has been suggested for international law: ‘States should behave as they have customarily behaved’. For it says nothing more than that those who accept certain rules must also observe a rule that the rules ought to be observed. This is a mere useless reduplication of the fact that a set of rules are accepted by states as binding rules. Again once we emancipate ourselves from the assumption that international law must contain a basic rule, the question to be faced is one of fact. What is the actual character of the rules as they function in the relations between states? Different interpretations of the phenomena to be observed are of course possible; but it is submitted that there is no basic rule providing general criteria of validity for the rules of international law, and that the rules which are in fact operative constitute not a system but a set of rules, among which are the rules providing for the binding force of treaties. It is true that, on many important matters, the relations between states are regulated by multilateral treaties, and it is sometimes argued that these may bind states that are not ­parties. If this were generally recognized, such treaties would in fact be legislative enactments and international law would have distinct criteria of validity

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for its rules. A basic rule of recognition could then be formulated which would represent an actual feature of the system and would be more than an empty restatement of the fact that a set of rules are in fact observed by states. Perhaps international law is at present in a stage of transition towards acceptance of this and other forms which would bring it nearer in structure to a municipal system. If, and when, this transition is completed the formal analogies, which at present seem thin and even delusive, would acquire substance, and the sceptic’s last doubts about the legal ‘quality’ of international law may then be laid to rest. Till this stage is reached the analogies are surely those of function and content, not of form. Those of function emerge most clearly when we reflect on the ways in which international law differs from morality, some of which we examined in the last section. The analogies of content consist in the range of principles, concepts, and methods which are common to both municipal and international law, and make the lawyers’ technique freely transferable from the one to the other. Bentham, the inventor of the expression ‘international law’, defended it simply by saying that it was ‘sufficiently analogous’1 to municipal law. To this, two comments are perhaps worth adding. First, that the analogy is one of content not of form: secondly, that, in this analogy of content, no other social rules are so close to municipal law as those of international law. 1 Principles of Morals and Legislation, XVII. 25, n. 1.

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Chapter 7

Norman S. Marsh, The Rule of Law as a Supra-National Concept, 1961 Comment by Marine Corhay, Intern, International Bar Association Norman Stayner Marsh (1913–2008) was an eminent British academic and law reformer. He started his career at the bar at the Middle Temple in 1937 right ­after obtaining a degree in Bachelor of Civil Law from Pembroke College, University of Oxford. Before the Second World War, Marsh spent several years in Germany. His ability to speak German fluently enabled him to serve as lieutenant colonel in the British Control Commission in Germany. Shortly after the end of the war, Norman Marsh decided not to practise law further and returned to Oxford to pursue an academic career as the Stowell fellow in Civil Law at the University College. In 1956, his career took a significant turn when he was appointed Secretary-General of the International Commission of Jurists, an organisation founded in 1952 and dedicated to ensuring respect for international human rights standards through the law. From that year on, Marsh rose as one of the pioneers in that field of law. The extract that follows was published in 1961 as part of a collaborative work on jurisprudence. It provides an overview of the understanding of the rule of law as a concept with a specific focus on the international level. This piece recounts, inter alia, several conferences and events which took place at the international level in the middle of the twentieth century, including the Congress in New Delhi on “the rule of law in a free society” which was organised by the International Commission of Jurists. Marsh had prepared a comprehensive working paper to direct the deliberations of the judges and lawyers at the Congress. Therefore, this extract embodies an insider’s account of the Congress, which represented a milestone in Marsh’s career at the International Commission of Jurists. Norman Marsh was truly dedicated to realising the rule of law and his contributions went beyond his work at the International Commission of Jurists. Accordingly, Marsh played a part in the merger of the Society of Comparative Legislation and the Grotius Society into the British Institute of International and Comparative Law (BIICL). The Institute was created with the aim of promoting an interest in and understanding of the rule of law in international

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_008

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affairs. In 1960, Marsh became BIICL’s first director. Perhaps Marsh’s most remarkable achievement was his work at the Law Commission. In 1965 he was appointed to serve under the first Chairman of the Commission, Sir Leslie Scarman. As of today, Marsh has served the longest term of office of any Commissioner and contributed to the review and reform of several areas of the law of England and Wales.

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N.S. Marsh, ‘The Rule of Law as a Supra-National Concept’ in A.G. Guest (ed) Oxford Essays in Jurisprudence: A Collaborative Work (Oxford University Press 1961). Reproduced with the kind permission of Oxford University Press.

The Rule of Law as a Supra-National Concept* Norman S. Marsh For two or three generations the concept of the Rule of Law was regarded by English lawyers as a factual summary of the basic principles of English constitutional law. By a still wider public, including the lawyers, it was thought to express a system of desirable values largely attained in the United Kingdom and, by implication if not openly so said, imperfectly achieved in other countries. A reaction followed, which might be described in terms of the ‘rolled-up plea’, familiar to defamation lawyers, in reverse: in so far as the Rule of Law purported to be a statement of fact it was untrue and in so far as it expressed a ­value-judgment it was unsound. More recently there has been a revival of interest in the Rule of Law, although less as a peculiar feature of English constitutional law than as the common basis of legal ideals and practice which unites or might unite what Article 38 (i) (c) of the Statute of the International Court of Justice calls ‘civilized nations’; the Rule of Law in this latest reincarnation has in fact much in common with ‘the general principles of law recognized by civilized nations’ which inter alia Article 38 directs the Court to apply.1 It is with this most recent phase in the history of the Rule of Law as a concept that this essay is primarily concerned. In the first section the authorities and sources both national and international will be considered; in the second * [Editors’ note: All footnotes in the original text re-started at No. 1 on every page. These have been amended to continuous order for the pur­poses of the present Anthology]. 1 Thus it is significant that among the papers prepared for the Chicago Colloquium on the Rule of Law in September 1957 (see p. 230, infra) [Editors’ note: page 139 of this Anthology] was one by Professor R.B. Schlesinger entitled ‘Research on the General Principles of Law recognized by Civilized Nations, Outline of a New Project’. Professor Schlesinger in an elaborately documented paper argues that ‘the breadth of the concept Rule of Law should not obscure the fact that its comparative study is only part of an even larger task: the concrete determination and formulation of the general principles of law recognized by civilized nations’. He shows that the legal importance of these general principles does not arise solely by reason of Article 38 of the Statute of the International Court of Justice but that under another name (e.g. ‘principles of natural law and equity’ in Article 1 (2) of the Egyptian Civil Code of 1949), or in a particular application (e.g., ‘the enjoyment of human rights and fundamental freedoms’ as in the Peace Treaties of 1947 with Italy, Bulgaria, Rumania, and Hungary) these principles directly concern both municipal and international law. Professor Schlesinger’s contribution is not printed in the Annales de la Faculté de Droit d’Istanbul, 8th Year, Vol. 9 (hereinafter referred to as Annales) but was one of a series of papers in a section of the C ­ olloquium dealing Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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section an attempt will be made to construct a workable concept of the Rule of Law which might have significance both for the United Kingdom and for other countries within and outside the reach of the Common Law. I

National and International Sources of the Rule of Law

The Rule of Law since Dicey The earliest phase of interest in the Rule of Law is associated with Dicey’s Law of the Constitution2 which was first published in 1885. The attack on the Rule of Law, as Dicey had understood it, was led by Sir Ivor Jennings in The Law and the Constitution,3 which first appeared in 1933, although Dicey in the foreword to the eighth edition published in 1914 and in a later article4 had to some extent already modified his position. The present phase has yet to find its Dicey or Jennings. The evidence for its existence is scattered over a wide field and on the whole, as far as works of English origin and context are concerned, has been directed to particular aspects of what Dicey understood to be included in the Rule of Law rather than to any comprehensive formulation. For example, we find in the Franks Committee Report (1957)5, in a tentative search for possible lines of distinction between adjudication by tribunals and by a Minister, the following definition of the Rule of Law: ‘The rule of law stands for the view that decisions should be made by the application of known principles or laws. In general, such decisions will be predictable, and the citizen will know where he is. On the other hand, there is what is arbitrary. A decision may be made without principle, without any rules. It is therefore unpredictable, the antithesis of a decision taken in accordance with the rule of law.’6 This conception, however, of the Rule of Law deals with only one of the characteristics which Dicey attributed to it, and although the Committee pay formal respect to its

2 3 4

5 6

with The Rule of Law in Receptionist countries, with particular reference to India. The series is being published by the Faculty of Law of Istanbul in 1960. Latest (10th) edition (E.C.S. Wade), 1959. Latest (5th) edition, 1959. ‘The Development of Administrative Law in England’ (1915), 31 l.q.r. 148. It is reprinted as Appendix 2 (p. 493) to the 10th ed. of Dicey’s Law of the Constitution. On one aspect of the Rule of Law, namely the contrast which it offered to the French system of Administrative Law, Dicey had already in 1901 admitted that he had done less than justice to contemporary France. See (1901), 17 l.q.r. 302. Professor Robson in Justice and Administrative Law, first published in 1928 (latest (3rd) edition, 1951) had criticized that aspect of Dicey’s conception of the Rule of Law which rests on the assumption that government officials are, and ought always to be, amenable to legal process in the ordinary courts. Report of the Committee on Administrative Tribunals and Inquiries, Cmnd. 218. Op. cit., p. 6. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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importance they are forced to admit that of itself it affords little guidance in the allocation of adjudications between tribunals and Ministers. Two years earlier, in a widely read pamphlet, a group of Conservative lawyers had published a study under the title of ‘Rule of Law’,7 but apart from a statement that the ‘two principles which for long formed the foundation of the British Constitution (were) the Sovereignty of Parliament and the Rule of Law’,8 there was little attempt to provide a comprehensive definition of the latter term in a contemporary context. Dicey’s threefold definition of the Rule of Law was quoted and supplemented by a much qualified admission of a doctrine of ‘a political balance of power between the executive, legislative and judicial functions.’9 The main emphasis of the study was, however, laid on the importance of improving methods of reaching administrative decisions and the spirit, although not the detail, of its recommendations is to be seen in the findings of the Franks Committee and in the ensuing Tribunals and Inquiries Act of 1958. Ten years before the Conservative pamphlet Sir Carleton Allen had published ‘Law and Orders’10 in which he had invoked the Rule of Law as ‘the best makeweight’ to correct the ‘imbalance’ of ‘our constitutional ship’ caused by the magnitude of delegated powers granted to the Executive by the Legislature. But although in this work Sir Carleton Allen is concerned with the details of delegated legislation, with defects in the system and with practical proposals for reform, his reference to the Rule of Law remains tantalizingly brief and his definition more informative as to what it is not than as to its substantive content. It ‘is not a mere catchword or incantation’; nor is it ‘a Law of Nature, constant and invariable at all times and in all circumstances’. It is not for ever to be associated with Dicey or still less with Lord Hewart.11 This ‘sound and proved principle of the Rule of Law does, however, enshrine a principle which history has shown to be of the utmost moment to our national development and no aspect of that evolution is more remarkable than the capacity which we have shown to adapt principles and institutions to the flux of circumstance, while preserving their essential character.’ What lies behind this eloquent but somewhat elusive description is perhaps suggested by the quotation on the title page of ‘Law and Orders’ from the Petition of the House of Commons on July 7, 1610. In that Petition we read: ‘Amongst many other points of happiness

7 Conservative Political Centre, 1955. 8 Op. cit., p. 10. 9 Ibid. 10 1st ed., 1945; 2nd ed., 1956. The ensuing quotations are from p. 22 of the 2nd ed. 11 See The New Despotism, 1929. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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and freedom which your Majesty’s subjects of this Kingdom have enjoyed under your royal progenitors … there is none which they have accounted more dear and precious than this, to be guided and governed by certain rule of law’. As will be pointed out later in this essay,12 the certainty of the law is one of the elements in the concept of the Rule of Law but it is only one element and, taken by itself, affords little guidance in dealing with the problems of administrative discretion or with the extent to which a dictatorial régime can claim to observe the Rule of Law. As far back as 192613 Sir William Holdsworth had impliedly taken a rather wider view of the Rule of Law, by using the phrase as the title to an essay dealing with the theory of sovereignty and the recognition of unincorporate groups. He was principally concerned to refute the criticisms of those who set up against the theory of sovereignty the natural rights of the individual and of those who like Duguit repudiate both the sovereign state and the individual endowed with natural rights. ‘The great achievements of the doctrine of sovereignty were the mastering the lawlessness of the medieval state, and the provision, in the modern territorial state of an organism which, by keeping the peace, had made political and social progress possible … those who go about to deny or minimize this sovereignty … have forgotten that in the smaller matters of government, which concern the daily intercourse of man and man, it is the fact of the state’s sovereignty which causes the machinery to run smoothly; and that in a time of crisis they may have reason to be thankful for its existence.’14 On the other hand he was prepared to admit, in the application of the theory of sovereignty to concrete facts, that the theory must not be pressed too far; the rights of individuals and of subordinate groups in the state should be accorded some recognition, always subject, however, to the supremacy of the King in Parliament. It is at first sight difficult to see the connexion between this somewhat indeterminate theory of sovereignty and the Rule of Law. From his later writing15 it would appear that Sir William Holdsworth conceived of the Rule of Law as the restraining factor which in England had prevented the theory of sovereignty, as expressed in the supremacy of the King in Parliament, from destroying the liberties of the subject. The essential feature of the Rule of Law is that ‘the judicial power of the State is, to a large extent, separate from the Executive and the Legislature’ and this principle is 12 13 14 15

See p. 248, infra. [Editors’ note: page 153 of this Anthology]. Some Lessons from our Legal History, p. 109. Ibid., pp. 137–138. Review of the 9th ed. (by E.C.S. Wade) of Dicey’s Law of the Constitution (1939), 55 l.q.r. 585.

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a ‘true juridical principle’, and not merely a ‘principle of political action’ as Sir Ivor Jennings had maintained. He went so far as to say that ‘in so far as the jurisdiction of the courts is ousted, and officials or official bodies of persons are given a purely administrative discretion the rule of law is abrogated’. On the other hand he was prepared to admit that ‘it is not abrogated if these officials or official bodies are given a judicial or quasi judicial discretion, although the machinery through which the rule is applied is not that of the Courts’.16 The main difficulty of this approach lies in the central importance attaching to the word ‘juridical’ which is presumably intended to be a descriptive term, applicable to given situations without the invocation of political values. In fact Sir William Holdsworth himself deprives his definition of the Rule of Law of legal precision by the qualifying phrase ‘to a large extent’, without informing us on what principle that extent is to be determined; and, as we have seen, the Franks Committee found the antithesis between what is arbitrary and what is according to the Rule of Law of little assistance in explaining or justifying the actual distribution of decisions between judicial or quasi judicial on the one hand and, on the other, purely administrative processes.17 Sir William Holdsworth’s difficulty was appreciated by an American observer of English government in a book published in 1949.18 ‘Our concept’, says Professor Schwartz—and it later becomes clear that although he thinks primarily of the United States, he also has in mind the British Constitution—‘is a normative as much as it is a descriptive term; it expresses an ideal as much as a juristic fact—and ought as much as an is’.19 In the United States this idealistic element in the Rule of Law is given a legal form in the principles incorporated in the Constitution. In the United Kingdom this element, in spite of the theoretical supremacy of the legislature, is equally present. Parliament tacitly admits with regard to certain doctrines ‘Autolimitations … of its own sovereignty. If they were abrogated, the rule of law would cease to be part of the British Constitution.’20 A Supra-National Concept of the Rule of Law For reasons which are not entirely clear, Professor Schwartz confined his interpretation of the Rule of Law to the Common Law world. ‘Law as a bridle upon governmental power is peculiarly the Anglo-American contribution to 16 17 18 19 20

The foregoing quotations are from Sir William Holdsworth’s review (1939), 55 l.q.r. 587–588. See p. 225, supra. [Editors’ note: page 134–135 of this Anthology]. Bernard Schwartz, Law and the Executive in Britain. Ibid., p. 11. Ibid., p. 16.

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political science, and any theory in terms of the Rule of Law must of necessity be based upon Common Law constitutional practice’.21 If Professor Schwartz were right in limiting the effective operation of the Rule of Law to the Common Law world, it would be necessary to admit that the use of the phrase in at least two international instruments is largely meaningless. Thus, the Universal Declaration of Human Rights of 194822 declares that: It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. And in a rather vaguer usage the European Convention for the Protection of Human Rights and Fundamental Freedoms of 195023 speaks of: The Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law. It is true that the English phrase ‘Rule of Law’ has no exact translation in French or German and that the usual translations carry different implications from the English expression, at least as it was understood by Dicey.24 Thus, ‘le principe de la légalité’, ‘la suprématie de la règle de droit’ or ‘le règne souverain de la loi’ in French-speaking, and ‘der Rechtsstaat’ in German-speaking, countries are imperfect translations of the Rule of Law and ‘each tends to divert the attention to a different aspect of the legal system.’25 In the United States the expression ‘Rule of Law’, although not unknown to lawyers, is seldom used, its place being taken by such phrases as ‘government under law’,26 ‘government of laws and not of men’27 and even, in a broad sense, by ‘due process of law’.28 Furthermore there is the concept of ‘socialist legality’ in Communist countries, 21 22 23 24

Ibid. Cmnd. 7662, Preamble, 3rd para. Cmnd. 8969, Preamble, last para. See General Report by Professor G.J. Hamson on the Chicago Colloquium on the Rule of Law, September, 1957, Annales, p. 4. 25 Ibid. 26 See Government under Law, ed. Sutherland, Harvard University Press, 1956, which consists of papers read and discussion at a Conference to celebrate the bicentennial of John Marshall. 27 Bill of Rights of the Constitution of Massachusetts (1780), Article xxx. 28 See Kauper on ‘Rule of Law in the United States’, Annales, pp. 90 and 97.

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which is sometimes alternatively translated as the ‘Rule of Law’, although it seems to be generally agreed in Communist and non-Communist countries alike that the terms are not interchangeable.29 Nevertheless, it does not follow that England and other countries may not share a substratum of legal values and practice which, for want of a better term, we may call the Rule of Law. In this event it would be, however, important to emphasize that the phrase is being used in a comparatively new sense and that it must be largely divorced from its historical context and from the emotional reactions, both positive and negative, to which that history gives rise. The Rule of Law in Western Countries Two major attempts have been made on an international basis to clarify the Rule of Law in this broader sense. With one of them the present writer has been rather closely associated and a more detailed account of the work which it has involved and the conclusions which it suggests is given in the second part of this essay.30 The other has its origin in the legal aspect of a Unesco plan to promote intellectual contact between Communist and non-Communist countries. The first part of this plan was realized in a Colloquium held at Chicago in September 1957 under the general title of ‘The Rule of Law as understood in the West’ and gave an opportunity for the reading of papers and discussion on the Rule of Law in a number of non-Communist systems, with particular emphasis on England, France, the German Federal Republic, and the u.s.a. Lawyers from Poland and the u.s.s.r. were also invited and took part in the discussion. The following account leans heavily on the general report prepared by Professor C.J. Hamson, the rapporteur of the Colloquium, and on the digest of the discussions made by Mr. J.A. Jolowicz, its Secretary.31 One of the most important preliminary issues which was discussed in the Chicago Colloquium was the question of how the inquiry was to be conducted. It was suggested32 that the Rule of Law might be ascertained by extracting from the different legal systems under examination those institutions and procedures which are common to all; the values inherent in these common 29

30 31 32

Thus, as will be seen below, the International Association of Legal Science found it convenient to divide its investigations into the Rule of Law into two parts: the first, held at Chicago in 1957, devoted to: ‘The Rule of Law as Understood in the West’, the second, held at Warsaw in 1958, to the Communist conception of ‘socialist legality’. See p. 240, infra. [Editors’ note: page 147 of this Anthology]. Annales, pp. 1 and 24. I have also had the advantage of consulting an unofficial transcript of the discussions prepared by Mr. V. Kabes. Particularly by Professor Rozmaryn of Poland whose views are set out in Revue Internationale de Droit Comparé (1958), Vol. 10, p. 70.

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institutions and procedures would be the basic principles of the Rule of Law. For example, it might be found by this method that the judicial control of legislation by reference to a written constitution, as in the German Federal Republic or in the u.s.a., is not an essential part of the Rule of Law but that the judicial control (using ‘judicial’ in a broad sense to cover both the ‘ordinary’ as well as ‘administrative’ courts) of administrative acts is one of its fundamental features. On the other hand it was pointed out that this method, which has the superficial appearance of being scientific and free from any a priori assumptions of value, conceals an unavoidable and, by this method alone, unanswerable problem of choice: namely, in what degree of detail is it justifiable to treat a particular institution or procedure when determining whether it is common to a number of countries. If the idea of an ‘independent’ judiciary appears to be common to most systems, can we disregard the varieties of institutional device—appointment by the Executive, by or with the advice of a special body such as a Public Service Commission or by popular election—whereby the judges are selected? Another objection to what might be called the ‘highest common factor’ approach is that it assumes, against the evidence provided by even the most superficial comparative study of law and government, that the presence or absence of particular institutions and procedures can be related, irrespective of their country of origin, to the presence or absence of particular values. For example, a country such as Sweden which has developed to a remarkable degree a rule that all governmental documents are in principle open to public inspection may find in this rule the greatest safeguard against administrative abuses and be less inclined to develop a comprehensive system of legal remedies against the state in respect of the acts or omissions of its officials.33 The Chicago Colloquium did not aim at reaching final conclusions on the character of the Rule of Law as understood in the West and still less at passing judgment on different legal systems in so far as they reach or fail to reach a standard implied in a particular conception of the Rule of Law. Those who submitted papers on the understanding, and in this sense actual achievement, of the Rule of Law in their country, were given only a broad framework of reference. It was suggested, for example, that consideration might be given to the extent to which the recognition of basic human rights formed an essential part of the 33

See Nils Herlitz, Public Law, Spring 1958, p. 50. Similarly in countries with parliamentary traditions comparable to those of the United Kingdom the possibility of asking questions of Ministers in Parliament concerning the conduct of their departments may be an important method of exercising control over the administration. See Goodhart, Annales, p. 34.

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Rule of Law and, if this question were answered affirmatively, what might be the content of such rights; similarly attention was drawn to the differing practice of Western states regarding the review by a constitutional court of legislation; and particular emphasis was laid on the new problems which might arise in the modern Welfare State, in particular in relation to ­non-discriminatory administration of benefits conferred by the state and to the degree to which the administration of the Welfare State could be controlled through the ordinary judicial machinery. This flexible approach undoubtedly gave the contributors to the Colloquium a much freer hand and added to the detail and value of the descriptions of their different legal systems. On the other hand an outside observer reading the record of the Colloquium might well be confused by the simultaneous discussion of what might be called a supra-national concept of the Rule of Law and of the institutions and procedures of particular countries whereby that concept (or some national variation on it) is given practical effect. In spite of the deliberate intention of the Chicago Colloquium to avoid a dogmatic formulation of the Rule of Law there appears to have been a broad measure of agreement that, however difficult it might be to define, the concept had reality. There was rather less agreement about the actual content of the Rule of Law. There was general reluctance to identify it with Natural Law but there was a widespread feeling that there was much in common between the Rule of Law and Natural Law. ‘A good case can be made’, said one of the participants in the Colloquium34, ‘that the Rule of Law concept and the concept of natural rights are at least paternal twins; I would not foreclose the possibility that they may be identical twins’. Those participants who came from countries with a written constitution containing a list of fundamental rights, which, under the sanction of review by the courts, the Legislature has to respect, regarded such rights as at least part of the Rule of Law. Those from countries where the sovereignty of the Legislature is undisputed tended to admit, as did Dr. A.L. Good-hart35 in speaking of the United Kingdom, that the Rule of Law included within it certain principles which are ‘binding’ on the Legislature, although not perhaps in an Austinian sense; or, like M. Letourneur of the French Conseil d’État and Professor Drago,36 they emphasized the supremacy of the Legislature but at the same time recognized respect for individual rights as part of the Rule of Law because such rights are in fact incorporated in a l­egislative 34 35 36

Jones, ‘The Rule of Law and the Welfare State’, Annales, p. 249. Annales, p. 271 et seq. Ibid., p. 188. An English translation was published in American Journal of Comparative Law (1958), Vol. 7, p. 147.

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e­ nactment, namely, the French Constitution.37 However, there was no detailed consideration as to which fundamental rights are to be considered as an essential part of the Rule of Law on a supra-national plane. It was generally agreed at Chicago that, even if the recognition of fundamental rights formed an element in the Rule of Law, it was only one element. The other two were concerned with the institutions and with the procedures whereby these rights were given effect. Discussion of characteristic institutions was selective; no attempt was made to draw up a comprehensive minimum list of constitutions essential to the Rule of Law. It was, however, recognized that judicial control of the Executive, as distinguished from judicial control of the Legislature, was a central feature of the Rule of Law, although it was pointed out, by Professor Herlitz of Sweden,38 for example, that the Executive can itself build up traditions and procedures which may protect individual rights in certain cases more efficiently and more cheaply than the ordinary courts. The same selective approach was adopted with regard to procedures. Particular attention was directed to the conception of ‘a fair hearing’, both with regard to the circumstances in which it is demanded by the Rule of Law and to the minimum conditions of its existence. It was not thought possible to define all the circumstances in which the Rule of Law required a fair hearing, but it was felt, firstly, that where a criminal penalty was in issue such a hearing was essential and, secondly, that there were cases not involving a criminal penalty where something in the nature of a hearing was necessary. This raised the question of the meaning of a fair hearing. An independent judge was regarded as an indispensable requisite. Independence in this sense was thought to mean ­primarily independence from the Executive and of any personal interest in the outcome in one way or the other of the issue to be tried. There was, however, no 37

38

The authors were dealing with the Constitution of 1946, but their argument would presumably be applicable to the Constitution of 1958, the preamble of which states that ‘the French people solemnly proclaim their attachment to the Rights of Man and the principles of National Sovereignty as defined by the Declaration of 1789, confirmed and completed by the Preamble to the Constitution of 1946’. A proposal by the Consultative Constitutional Committee that the Constitution should contain an article guaranteeing to French Nationals and to persons within the French Community the enjoyment of the rights and liberties recognized in the Preamble to the Constitution was not accepted. However, in Article 2, equality before the law is guaranteed ‘without distinction of origin, race or religion’ and in the same article the ‘principle’ of the Republic is stated to be ‘government of the people, by the people, for the people’. In Article 77 all citizens of the French community are stated to be ‘equal in law, whatever their origin, race or religion’ and the States of the Community ‘administer themselves and conduct their own affairs democratically and freely’. Ibid., p. 257.

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c­ onclusion as to the methods by which such independence might be achieved, except that different methods might be appropriate in different legal environments. Also implied in a fair hearing was the right to be heard and, although it was admitted that practice falls short of Western ideals in this respect, to be represented by counsel. A sub-theme of the Chicago Colloquium was the applicability of the Rule of Law in the Welfare State. It was felt, on the whole, with some dissentients that, although the advent of the Welfare State had greatly added to the difficulties of ensuring observance of the Rule of Law, there was no inherent contradiction between the Welfare State and the Rule of Law. It was suggested,39 for example, that part of the difference between the Rule of Law against the background of Dicey’s idealized picture of a Whig-dominated 19th-century England and the Rule of Law in a contemporary setting of National Insurance claims, planning permits, rent tribunals, and the like lay in the matter of scale and number. ‘Dicey accurately saw it as a great strength of the Rule of Law in England that most questions of individual right came for decision to a small and homogeneous group of dedicated men, the judges of the “ordinary law”. A hundred times as many deciding officers are needed to settle the issues presented by claimants of the new and more widely held rights of the Welfare State.’40 Socialist Legality and the Rule of Law As a sequel to the Chicago Colloquium, and under the same auspices, there was held in 1958 in Warsaw a Conference on the Rule of Law as understood in Communist countries. A most interesting report on the Conference has been given by one of the participants, Dr. A.K.R. Kiralfy,41 and no attempt need be made here to summarize his account of the proceedings. It would indeed be an achievement of the greatest importance to present a comparison between the Rule of Law as understood in Communist and non-Communist countries, and it is hoped that this will become possible through the further exchanges which are planned to follow the meetings in Chicago and Warsaw. At this stage only a provisional opinion, sketched in very broad terms, is possible. Some mention must, however, be made of the probable attitude of a substantial proportion of the world’s population living under Communist legal systems, if the attempt to construct a supra-national conception of the Rule of Law is to keep in touch 39 40 41

Jones in the article cited in n. (1), p. 233, supra [Editors’ note: n. 34 at page 141 of this Anthology]. Annales, p. 254 et seq. Ibid., p. 257. International and Comparative Law Quarterly (1959), Vol. 8, p. 465. The proceedings are being published under the auspices of the Polish National Committee of the International Association of Legal Science.

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with the realities of international life. Moreover this is all the more necessary in that the formulation of such a concept at New Delhi, in rather more concrete terms than was attempted or intended at Chicago, was exclusively the work of lawyers from non-Communist countries. Although it may well be true that, in the words of Dr. Kiralfy, ‘we in the West use a liberal Victorian connotation when we speak of the rule of law’, it does not follow that it is this conception of the Rule of Law which should be the starting point of a comparison between so-called ‘Western’ and Communist interpretations of the Rule of Law. Such an approach invites a sterile controversy on the truth, for example, of the provocative definition42 of the Rule of Law (Provovoe gosudarstvo or ‘Legal State’; cf. Rechtsstaat) given in the Soviet ‘Juridical Dictionary’.43 It is more profitable to relate Dr. Kiralfy’s account of the views expressed at Warsaw to the tentative outline of the supra-national Rule of Law which emerged at the Chicago Colloquium. It is clear that what, in Communist countries, is called ‘socialist legality’ is not merely a technical ideal of law carried out at all levels of its operation with the maximum of efficiency.44 If human rights lie at the basis of the non-Communist conception of the Rule of Law so, Dr. Kiralfy points out, in Communist countries ‘a few elemental matters of human dignity’, such as a ban on cruel punishments and freedom of private opinion, including religion, seem now to be conceded. On the other hand, freedom of speech and of association are regarded as conditional upon conformity with ‘the interests of the workers’, and the latter are determined by a system of government in which the only legal party is the effective interpreter of those interests. It may well be that the formula ‘the interests of the workers’ more effectively draws attention, as Communists would maintain, to economic realities than the traditional insistence of non-Communist democracies on what Sir Isaiah Berlin45 has called ‘negative freedom’, that is to say the individual’s right to do what he wishes with the minimum possible degree of 42 43 44

45

See n. (1), p. 261, infra. [Editors’ note: not included in this Anthology]. Yuridichesky slovar (2nd ed., Moscow, 1956), ii, p. 196. The editor was P.I. Kudryavtsev, then Vice-Minister of Justice of the u.s.s.r. Cf., the definition of ‘socialist legality’ given in 1954 by Nedbailo (Uchenye Zapiski (Scientific Papers), Vol. xxvii, Juridical Series, Lvov University, No. 2, p. 12): ‘Socialist legality is the method of action of a Socialist State which it adopts in order to lead society to build up Communism. It consists of a strict and persistent execution of law and all other legal acts, resulting in the establishment of a firm legal régime in the country. This régime is characterized by the clearness and definite nature of the rights and duties of State organs, organizations, officials and citizens, by the protection of their rights, by the lawfulness of the actions of the Socialist State, by the stability of legal relations and by the atmosphere of confidence of each and every one in his rights and duties.’ Two Concepts of Liberty, Clarendon Press, Oxford, 1958, pp. 7 et seq. and 16 et seq.

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restraint by others. But, says Dr. Kiralfy, interests may be secured in more than one way; the justification of public welfare may be used to cloak the tyranny of those who know better than the public what is good for them, a danger from which no country is exempt but which is checked in non-Communist democracies by insistence on political freedom expressed in electoral machinery and the possibility of a change of government. As far, therefore, as any basis of values underlying the Rule of Law is concerned, it seems clear that there is a considerable gap between the Western idea of the Rule of Law, as it found expression, for example, at Chicago, and its nearest equivalent in Communist ideology. In that aspect of the Rule of Law which is concerned with the execution of the law, Communist legal theory is perhaps somewhat closer to non-Communist principles, even if any suggestion by Western observers that there has in the u.s.s.r. been a return to ‘bourgeois legality’ is resented. Thus, it is now generally recognized and indeed emphasized that the law must be strictly observed by all. Nor is there at every point a formal difference in legal institutions and procedures in Communist and non-Communist countries. There is, for example, in criminal trials much greater emphasis on the importance of a properly argued defence as a means of ascertaining the facts to which the law is to be applied.46 Importance, says Dr. Kiralfy, is also attached to the conception of judicial independence, in the sense that a judge should not be influenced by outside interference in the assessment of facts; in the interpretation of the law,47 however, the judge is admittedly influenced by the Party training and by the conception, which he presumably shares, of the fundamental purposes of a Communist society, although it may be said that a judge in a Western country consciously or unconsciously takes account of the basic assumptions of his own society. In the legal machinery of control over the administration, there are, however, important differences between Communist and non-Communist countries. The difference does not lie primarily in the non-liability, except in a limited number of cases, of the state in the u.s.s.r. for illegal acts committed by its officials;48 a general liability of the state in tort 46

See, for example, Taras, O niektorych gwarancjach praw askarzonego w polskim procesie karnym (On Some Guarantees of the Rights of the Accused in Polish Criminal Trials), Annales Universitatis Mariae Curie-Sklodowska, Vol. iii, 6, Section 6, published by the University of Lublin, 1956, pp. 187–294, reviewed by George Dobry in Journal of the International Commission of Jurists, Vol. 1, No. 1 (1957), p. 139. 47 On the limited significance of the abolition of the use of analogy in Soviet criminal law, see n. (1), p. 249, infra. [Editors’ note: page 154 of this Anthology]. 48 Gsovski, Soviet Civil Law, Vol. i, p. 534. See also Loeber, Journal of the International Commission of Jurists (1957), Vol. i, No. 1, p. 59.

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is a fairly recent innovation in England49 and is still imperfectly recognized in many Common Law jurisdictions50. It lies more in the fact that responsibility for the observance of legality is vested primarily in the Procuracy, which in many cases alone can initiate action to compel administrative authorities to carry out the duties imposed upon them by law or to refrain from illegal acts. Moreover, a civil claim against an official by a private person can only be decided jointly with the appropriate criminal proceedings, the taking of which depends on the decision of the Procuracy.51 Yet it would be wrong to find the essential difference between Communist and Western conceptions of the Rule of Law in the control which the Procuracy enjoys over the means by which the administrative apparatus is kept within legal bounds. In a non-Communist country, such as Sweden, which would certainly subscribe to the Western conception of the Rule of Law, the control of the administrative apparatus rests to a very small extent on any right of an aggrieved individual to restrain through the machinery of the ordinary courts officials from performing illegal acts or to compel them to carry out their duties; the control lies rather in the supervisory and, if necessary, prosecuting authority of the Attorney-General and the Civil and Military Ombudsmän, elected by the Riksdag. What are characteristic of the Soviet system are the ultimate political assumptions of the Procuracy, appointed, it is true, by the supreme legislative body, but the work of which ‘can only be fulfilled on condition that (it) is carried out under the constant control and direction of the Party organizations’.52 It is at this point that any attempt to deal comparatively with the Rule of Law from two separate aspects, one concerned with its substantive content and the other with its procedural implications, founders. But it is perfectly possible to see in the new emphasis which has been put in the u.s.s.r. since 1955 on the rôle of the Procuracy as the upholder of ‘legality’ at least the beginnings of a development which might bring the Soviet legal world closer to recognition, in practice if not in theory, of the values of the Rule of Law as understood in non-Communist countries; in which event Maine’s famous aphorism that ‘substantive law has at first the look of being gradually secreted in the interstioes of procedure’53 would have found a new field of application.

49 50 51 52 53

Crown Proceedings Act, 1947. For example, in India. See n. (6), p. 263, infra. [Editors’ note: not included in this Anthology]. See Gsovski, Soviet Civil Law, Vol. i, p. 528. A.N. Mishutin, Deputy Procurator-General of the u.s.s.r. and Y.A. Kalenov, State Councillor of Justice, 2nd Class, in Sovetskoe gosudarstvoi pravo, 1955, No. 3, pp. 40–41. Early Law and Customs, p. 389.

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Outlines of a Supra-National Concept

Values Underlying the Rule of Law The project of the International Commission of Jurists, culminating in a Congress at New Delhi in January 1959,54 to clarify and formulate a supra-national concept of the Rule of Law was made on the basis of an assumption which must first be clearly stated. Dicey purported in The Law of the Constitution to be stating ‘two or three guiding principles which pervade the modern constitution of England’,55 but Sir Ivor Jennings has pointed out that, although he ‘honestly tried to analyse, … like most, he saw the Constitution through his own spectacles’.56 The Commission’s project could not even pretend that it was seeking to isolate the principles common to all constitutions, if such exist. It assumed rather that the Rule of Law, with which it was concerned, must serve the ends of a free society. By a free society it understood one in which the free spirit of every member can find the fullest expression. It was not asserted that such a free society has ever been, or is likely to be, completely realized in any country, but it was implied that such an ideal corresponds with the aspirations, however inarticulate, of many individuals in countries of differing traditions and economic and social background; it was therefore conceived to be a useful inquiry to consider how far, and in forms appropriate to the conditions of varying countries, the principles underlying a free society require formulation in legal rules, institutions and procedures. A legal rule, for this purpose, was conceived to be one which the great majority of members of a society accept as binding upon them in virtue of their membership of that society. Dicey in his third principle57 of the Rule of Law 54

55 56 57

The Congress consisted of 185 judges, practising lawyers and teachers of law from 53 countries. The work of the Congress was carried out in four committees, which were concerned with the Rule of Law in relation to the Legislature, the Executive, the Criminal Process, and the Judiciary and Legal Profession respectively. The basis of discussion was a Working Paper which had been prepared by the author of this essay, with the assistance of the staff of the International Commission of Jurists, on the basis of answers to a questionnaire sent to representative lawyers in 26 countries. See Journal of the International Commission of Jurists (1959), Vol. ii, No. 1. A full report on the Congress by the present writer has been published: The Rule of Law in a Free Society, International Commission of Jurists, Geneva, 1960. 10th ed., 1959, p. v. The Law and the Constitution, 5th ed. (1959), p. 316. ‘We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as, for example, the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or

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contrasted countries with constitutional guarantees of individual rights and those in which such rights depend on a self-denying ordinance of the Legislature and the assumed bias of the judges in favour of individual liberty. Such a contrast was not denied in the Commission’s project, but it was considered to be irrelevant to the kind of Rule of Law with which it was concerned. Thus, the First Committee of the Congress at New Delhi (which dealt with Legislature and the Rule of Law) on the one hand considered that ‘in many societies, particularly those which have not yet established traditions of democratic legislative behaviour, it is essential that certain limitations on legislative power … should be incorporated in a written constitution, and the safeguards therein contained should be protected by an independent judicial tribunal’; on the other hand, it admitted that ‘in other societies, established standards of legislative behaviour may serve to ensure that the same limitations are observed’.58 It is the abiding merit of Dicey’s third principle of the Rule of Law that it draws attention to the importance of ‘the general principles of the constitution’ (which a modern writer might call ‘civil liberties’), even if he does not satisfactorily solve the clash between such principles and the principle, on which he is equally insistent, of the sovereignty of Parliament. He does not in this context define what he means by ‘the general principles of the constitution’, except by way of example of the right to personal liberty and the right of public meetings; but it is clear from the general structure of The Law of the Constitution that he has in mind what may be called the negative political liberies of a laissez-faire society. The free society, which lies at the basis of the Rule of Law discussed at New Delhi, was felt to involve more than freedom of speech, assembly or association, which, particularly in an Asian setting, might be illusory for those without the material means or education to make use of them. This raised the question of the place which such rights as are set out in Articles 22 to 2759 of the Universal Declaration of Human Rights of 1948 ought to play in the concept of the Rule of Law. The characteristic of such rights is that they are positive in form, in so far as they require action by the State rather than

appears to result, from the general principles of the constitution’, The Law of the Constitution, 10th ed., p. 195. 58 Clause ii (1) of the Conclusions of the First Committee of the Congress of New Delhi, Journal of the International Commission of Jurists (1959), Vol. ii, No. 1, p. 8. 59 Article 22 (the right to social security); Article 23 (the right to work); Article 24 (the right to rest and leisure); Article 25 (the right to an adequate standard of living; the right of mothers and children to special care and assistance); Article 26 (the right to education); Article 27 (the right to participate in cultural life; the right of protection of scientific, literary and artistic productions).

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abstention from activity in certain protected spheres which are left to the free activity of the individual. There was perhaps at this point some confusion in the discussions at New Delhi. Few would dispute that a free society must aim at economic and social justice; this is not however the same thing as saying that such aspirations can be reduced to propositions of law of general application in the diverse societies of the world. The Rule of Law is not identical with a free society, although it is an important instrument of such a society. As an instrument it must be capable of translating into practical effect such purposes of a free society, as at their present stage of development are capable of the kind of formulation which the nature of law demands. The extent to which formulation is possible varies widely as between a highly developed Welfare State and a primitive economy. It may well be a proper application of the Rule of Law in a modern Welfare State for the judges to take into account in the interpretation of a Housing or National Insurance Act the underlying social rights of the individual which it is the purpose of such legislation to secure, even if it is, in so doing, necessary to modify an earlier more unrestricted scope allowed to the individual’s economic freedom of action. But the law and lawyers as such have no inherent and original authority to instruct the State as to the positive action which it should take. On the other hand there are undoubted principles of a free society, generally recognized as such and capable of legal formulation, which indirectly may secure the enforcement of policies appropriate to a free society but lacking the precise formulation characteristic of legal principles. For example, the court may, by insisting that, whatever benefits the State may bestow, they shall be equally distributed, in fact secure the adoption of a particular benefit for all.60 At New Delhi an attempt was made to differentiate between the binding principles of the Rule of Law and the ultimate aims of a free society61 in the language used to describe the position of the Legislature in a free society under the Rule of Law. Thus, whereas certain duties (indicated by the imperative ‘must’) were laid on the Legislature, other aspects of legislative activity were dealt with in a purely descriptive way or in merely exhortatory language.62

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Thus in effect in the United States the Supreme Court has been seeking to enforce a positive and general right to education, although the form which such action takes may involve only the prohibition of any educational policy which denies to any within the jurisdiction of a State the ‘equal protection of the laws’ (Fourteenth Amendment). See Greenawalt, Journal of the International Commission of Jurists (1959), Vol. ii, No. 1, p. 135. Cf., the ‘Directive Principles of Social Policy’ in the Constitution of Ireland and the ‘Directive Principles of State Policy’ in the Constitution of India. See n. (2), p. 261, infra. [Editors’ note: not included in this Anthology].

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If the sphere of the Rule of Law is thus differentiated from that of the Legislature, the concession made by the lawyer is granted on terms and subject to limitations. It is here that it is important to emphasize the connexion between the Rule of Law and the free society of which it is an instrument. The Rule of Law, in this sense, assumes what Sir Ivor Jennings has called the ‘intangibles which nevertheless produce an impression on the mind of any observant person who crosses the boundary from a dictatorial State into a free country’. Although Sir Ivor Jennings goes on to say that such ideas ‘cannot easily be forced into a formal concept dignified by such a name as the rule of law’ it must be emphasized that the Rule of Law, as here understood, does involve what he calls ‘the existence of the democratic system’.63 The Rule of Law as a supranational concept is not conceived as a convenient formula equally applicable to the legal system of a totalitarian dictatorship and a liberal democracy. If we wish to say that there is no law which can prevent Parliament from prolonging its life indefinitely or permanently abolishing freedom of speech, we are using the word ‘law’ in a different sense from that in which it is used in the concept of the Rule of Law described in this essay. The individual liberties of a democratic system involve in the first place the right of the members of each society64 to choose the government under which they live. In the second place come freedom of speech, freedom of assembly and freedom of association. Such rights are not absolute; their exceptions are justified by the necessity of reconciling the claims of different individuals to those rights, and the criterion whereby this reconciliation can be effected is the concern of the law to ensure that the status and dignity of all individuals is to the greatest possible extent observed. Of these liberties the most important under modern conditions is freedom of speech65 and it is also the best 63 64

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The quotations are from The Law and the Constitution, 5th ed., pp. 61–62. ‘Society’ is here used in an abstract sense, not as a guide to the actual delineation of the different units which may be held to constitute separate societies. It is true that the general assembly of the United Nations has passed a resolution (637 (vii) A of December 16, 1952) beginning: ‘Whereas the right of self-determination is a prerequisite to the full enjoyment of all fundamental human rights’; but as Mr. Chakravarti (Human Rights in the United Nations) has cogently argued (pp. 104–119) the so-called right of self-determination is not an individual right but a ‘collective right’, for which no precise criteria are available to determine what is meant by the collectivity in question. Freedom of association is meaningless without freedom of speech and freedom of assembly has, with the advent of modern methods of mass communication, lost much of the importance which it enjoyed at the time of Beatty v. Gillbanks (1882), 9 q.b.d. 308 to which Dicey, bringing out the first edition of The Law and the Constitution only three years after the decision, naturally paid much attention. On the lesser importance of freedom of assembly in European countries today see (1959), 75 l.q.r. 547.

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i­llustration of the inter-action between the substantive values on which the Rule of Law, in the sense here considered, rests and the legal procedures and institutions by which such values are given practical effect. Thus, on the one hand, freedom of speech is everywhere limited by appeal to such conceptions as Mr. Justice Holmes’s ‘clear and present danger’,66 ‘attack (on) the free, democratic basic order’ in the Constitution of the German Federal Republic67 or the formidable list of qualifications contained in article 10 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.68 The reality of freedom of speech will depend on the way in which such exceptions are interpreted, that is to say on the extent to which the application of such exceptions rests on a fundamental regard for the status and dignity of the human person, which is the ultimate and, from the point of view of formal logic, unprovable assumption. On the other hand the institutions and procedures—an independent judiciary, a fair trial, for example—by which such an interpretation is effected, will be the determining factor in the character of the latter. In short the Rule of Law is neither a matter exclusively of ‘rights’ or of ‘remedies’, each being complementary to the other. The Equivocal Position of Equality Even those lawyers inclined to see the Rule of Law solely as a matter of institutions and procedures, and to deny that it is concerned with substantive values, would probably require at this point in the argument some consideration of equality. The extent to which equality as a concept implies, even if negatively, some substantive values depends on the interpretation which is given to this much disputed word. In a restricted sense it implies only that the law must be equally applied to those whom the law regards as equal. It is here only a consequence of the character of law itself as a system of generally binding rules. 66

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Schenck v. United States (1919), 249 U.S. 47. See also the later variations of Vinson C.J. (‘a clear and probable danger’—Dennis v. United States (1951), 351 U.S. 494) and of Harlan J. who has distinguished between ‘advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end’: Yates v. United States (1957), 354 U.S. 298. Article 18. ‘The exercise of these freedoms (i.e., freedom of expression, including “the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”), since it carries with it duties and responsibilities may be subject to such formalities, conditions and restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

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It is not concerned, for example, with whether one class of the community is subject to different penalties or is tried by a different procedure for the same offence from those applicable to another class of the community, as long as the appropriate penalty or procedure is equally69 applied to each class. In a wider sense it may imply that the law should treat human beings as equals— i.e., should in its content be the same for all human beings—in respect of those qualities with regard to which it is right so to treat them. The difficulty of determining what is right in this context springs from the obvious inequality of men in terms of their natural endowment, still more from their inequality in society as far as social standing, education and economic power are concerned. The reference is to the concept of equality in constitutions do not on the basis of the actual language used always make clear whether equality in the first or second sense described above is intended. Phrases such as ‘equality before the law’ or ‘equal protection of the laws’70 are in themselves equivocal. The fact that at some other point the constitution in question imposes some restriction on discrimination on named grounds does not necessarily mean that a reference to ‘equality before the law’ or to ‘equal protection of the laws’ may not be interpreted in a substantive sense in a way overlapping a provision against a specific type of discrimination.71 When the courts use such phrases to restrict legislative power, the principles on which they work are extremely difficult to disentangle. Their task is somewhat easier when they are dealing with a specific ground which is declared not to provide a proper basis for discrimination in the law, such as race or religion, but such grounds cannot be exhaustive; the differences between human beings of which the law might take account are infinite; there are many grounds so obviously providing no sufficient reason for discrimination that no constitution or international instrument would think it worthwhile to mention them. The European Convention on Human Rights admits this difficulty by forbidding discrimination in respect of the rights recognized by the Convention not merely on a number of specified grounds (sex, race, colour, language, religion, political or other opinion, national or social 69 70

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Cf., Oxford English Dictionary which gives as the first meaning of ‘equally’: ‘to an equal degree or extent; as much in one case as the other’. Cf., Fourteenth Amendment of the U.S. Constitution, Section 1: ‘… no State shall … deny to any person within its jurisdiction the equal protection of the laws’; Article 3 (1) of the Basic Law of the German Federal Republic: ‘all men shall be equal before the law’; the Indian Constitution (Article 14) uses both phrases. For example, in addition to Article 14 referred to in the preceding footnote, the Indian Constitution contains prohibitions against discrimination in specified contexts on the grounds only of various combinations of religion, race, caste, sex, place of birth, language, descent, and residence (see Articles 15, 16, 17, 29 (2)).

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origin, association with a national minority, property, birth) but also by reference to analogy (‘on such grounds as …’ and in a final reference to ‘or other status’). The same approach is to be found in the Conclusions of the Committee on the Legislative and the Rule of Law at New Delhi which considered that “the Legislature must not discriminate in its laws in respect of individuals, classes of persons, or minority groups on the ground of race, religion, sex or other such reasons not affording a proper basis for making a distinction between human beings, classes, or minorities.72 On a supra-national plane equality as an element in the concept of the Rule of Law does not take us much further than the free society, based on regard for the individual, which was the starting point of our inquiry. This is not to say that it is not a formulation of the basic assumptions of the Rule of Law which may not have the greatest practical importance. In a case73 before the Indian Supreme Court, Bose J. has said: ‘What I am concerned to see is whether the collective conscience of a sovereign democratic republic can regard the impugned law contrasted with the ordinary law of the land as the sort of substantially equal treatment which men of resolute minds and unbiased view can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be.’ That such language must ultimately appeal to a moral judgment does not necessarily detract from its effectiveness. The Supremacy and Certainty of the Law The Rule of Law in its most direct and literal application means that all action taken by the authorities of the State, as much as by individuals, must be based on and traceable back to an ultimate source of legal authority. It is this aspect of the Rule of Law which Dicey, in the first meaning which he attributed to the expression, contrasted ‘with every system of government based on the exercise by persons in authority of … arbitrary … powers of constraint’.74 Dicey in fact spoke in this context not only of ‘arbitrary’ but also of ‘wide … or discretionary’ 72 Clause iii (3) (a) of the Conclusions of the First Committee, printed in the Journal of the International Commission of Jurists, Vol. ii, No. 1 (1959), p. 9. (Italics added.) 73 State of West Bengal v. Anwar Ali, a.i.r. (1952) S.C. 75. 74 The Law of the Constitution, 10th ed., p. 188. The contrast here cited is preceded by the statement that in its first meaning the Rule of Law implies that ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land’. The first part of this passage forms a natural antithesis to the sentence cited above but the second part, here italicized, strictly belongs in Dicey’s scheme of thought to the second meaning which he ascribed to the Rule of Law. This is considered under the heading of Institutions and Procedures of the Rule of Law (p. 251 infra). [Editors’ note: page 156 of this Anthology].

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powers. As Sir Ivor Jennings has pointed out75 the principle of the supremacy of the law is not necessarily contravened merely because wide or discretionary powers are conferred on the Executive, as long as they are in fact conferred by law. On the other hand Dicey anticipated the criticism of Sir Ivor Jennings that ‘if the rule of law means only that powers must be derived from the law, all civilized States possess it’ by drawing a distinction between the condition of most European countries in 1908 (when he made his final changes in the text) and the ‘lawlessness’ of continental Europe, compared with England, in the eighteenth century. And in the condition of the world since 1933 it may appear less of a platitude to say that a dictator cannot claim to govern under the Rule of Law if he cannot show a legal right to exercise authority.76 Even if we concede the recognition by all civilized States today that powers must be derived from the law, not stopping to ask what ‘civilized’ in this context may mean, we are not committed to the proposition that such powers are in fact always derived from the law. The supremacy of the law in the field of delegated legislation, for example, in practice depends on the form of the parent law, the institutions and procedures by which the delegated legislation is made, the machinery of control over such legislation once made, and above all on the integrity of the persons involved in the process. But whatever the Rule of Law as a supra-national concept may have to say on these matters,77 it is true that we cannot deduce it from the bare statement that the law should be supreme. The supremacy of the law is closely associated, but not to be confused, with the certainty of the law. Thus, the maxims nullum crimen sine lege and nulla poena sine lege78 in one sense merely apply to the penal sphere the principle 75 76

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The Law and the Constitution, 5th ed., p. 306. Dictators can seldom show a clean legal title to power. The oft-quoted Enabling Act of March 16, 1933, was preceded by a reign of terror instigated by National Socialist Storm Troopers and S.S., which Göring, as Prussian Minister of the Interior, not only condoned but even encouraged. See Bullock, Hitler, p. 236; Clark, The Fall of the German Republic, p. 477. See p. 251, infra. [Editors’ note: page 156 of this Anthology]. See Mannheim, Criminal Justice and Social Reconstruction, pp. 207–214. Dr. Mannheim discusses the maxims from the point of view of the second meaning here suggested. He says they are sometimes expressed in the form of a prohibition of the use of analogy in the interpretation of criminal statutes. He points out, however, that the use of analogy, although permitted by a National Socialist law of June 28, 1939, and by Article 16 of the Soviet Penal Code (now superseded by s. 3 of the Basic Principles of Criminal Legislation of the u.s.s.r. and Union Republics—see Law in Eastern Europe, No. 3, ed., Szirmai, Leyden, 1959, p. 9 sub nomine ‘Return to the nulla poena rule’) is not an essential characteristic of totalitarian legal systems or completely alien to democratic countries, citing Denmark as an example of the latter. His conclusion (p. 213) is that ‘the fate of civil liberty depends on

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of the supremacy of the law; in a second sense, which is often not clearly differentiated from the first meaning, they suggest that no action can be treated as a crime, or lead to the infliction of a punishment, if at the time when such action was taken the relevant law was non-existent. The maxims are here being used to prohibit the retroactive application of the Law. The first Committee (which dealt with the Legislature and the Law) at New Delhi in requiring in absolute terms that ‘the Legislature must abstain from retroactive legislation’ perhaps thought of retroactive legislation as the negation of the supremacy of the law.79 The objection to retroactive legislation would seem rather to be that the position of those to be affected by it is, before it is passed, rendered uncertain. It was with the importance of certainty in human relations in mind that the Greeks spoke of nomos as the principle of political association which assigns to each citizen his position in society and defines its nature and extent,80 and it is not difficult to illustrate the hardships which uncertainty imposes not only in the criminal sphere81 but also in other fields of human activity.82 On the other hand it was also a Greek, Aristotle, who pointed out that the rigid certainty of law is not applicable to all circumstances,83 and his plea would be echoed the men who have to administer civil liberty much more than on this (i.e., prohibition of analogy) or any other legal formula’. 79 Conclusion iii (3) (e), Journal of the International Commission of Jurists, Vol. ii No. 1 (1959), p. 9. On the other hand the Third Committee (which dealt with the Criminal Process and the Rule of Law) was more cautious: ‘It is always important that the definition and interpretation of the law should be as certain as possible, and this is of particular importance in the case of criminal law, where the citizen’s life and liberty may be at stake. Certainty cannot exist in the criminal law, where the law or the penalty for its breach, is retrospective’ (Conclusion i of the Third Committee, ibid., p. 13). 80 Barker, The Politics of Aristotle, p. lxx. 81 An extreme case would be the Conspiracy and Corruption Act of August 10, 1958, in Iraq. It was made retroactive to September 1, 1939, and thus made criminal political activities under the previous régime which might when undertaken have been permissible or even commendable. 82 For example, a merchant who has built up a trade connexion on the basis of a licence granted by the government is suddenly and unexpectedly deprived without compensation of his livelihood by the withdrawal of the licence. See Schwartz, An Introduction to American Administrative Law, 1958, p. 167, where he criticizes those cases where judicial review is not available because the person affected has only a ‘privilege’. As he points out, the hardship to the individual in the disturbance of his settled way of life may be as great as when there is interference with his personal or ‘property rights’. (Cf., Nakkuda Ali v. Jayaratne, [1951] A.C. 66.). 83 ‘It is because law cannot cover the whole of the ground, and there are subjects which cannot be included in its scope that difficulties arise …’; translation in Barker, op. cit., Bk. iii, Chap. xvi, 1287a, s. 11 (p. 148).

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by the modern administrator called upon to deal with the ever changing circumstances of economic and social life and with the delicate adjustments of political and diplomatic relations. As Aristotle turned from the certainty of law to the question whether ‘the rule of the best law is preferable to that of the best man,’84 so we are forced to cease chasing the myth of an absolutely certain law and to concentrate in a pragmatic spirit on the methods by which law is administered. This does not mean, however, that we can afford to neglect the basic concern of the Rule of Law with the status and dignity of the individual, for our whole concern with procedures and institutions springs from the belief that, although never perfectly realizable, their ultimate aim is to isolate and make use of the moral judgment of the truly independent individual. Institutions and Procedures of the Rule of Law Dicey in the second meaning which he gave to the Rule of Law said that it implied ‘not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.’85 In so far as this proposition suggested that officials in England are not, and ought not to be, in respect of any of their activities outside the jurisdiction of the ‘ordinary’ courts as opposed to that of other sorts of tribunals, it has been subjected to well merited criticism86; and the corollary that the administrative courts and administrative law of Continental Europe were in principle opposed to the Rule of Law has been similarly criticized,87 and indeed Dicey himself later modified his attitude.88 However, Dicey’s proposition does at least emphasize that aspect of the Rule of Law, which is concerned with the institutions and procedures by which the law is put into effect. It is possible that the characteristics which Dicey, rightly or wrongly, attributed to the ‘ordinary’ courts and denied to other tribunals are themselves a necessary part of the Rule of Law even in a supra-national context. If the substantive law in a free society under the Rule of Law must be based on and explicitly or, frequently, tacitly assume the dignity of the individual, it follows that the interpretation and administration of the law must be e­ ntrusted 84 Barker, loc. cit. 85 Law of the Constitution, 10th ed., p. 193. 86 See Robson, op. cit., n. (3), p. 224, supra [Editors note: page 134 of this Anthology]; Jennings, Law and the Constitution, 5th ed., p. 232 et seq. and pp. 311–313. 87 See e.g., in an extensive literature now available in English: Street, Government Liability: a Comparative Study (1953); Hamson, Executive Discretion and Judicial Control (1954); Schwartz, French Administrative Law and the Common Law World (1954). 88 See (1901), 17 l.q.r. 302.

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to men and women in a position to understand and to act in accordance with the implications of such a conception of human dignity. The legal institutions and procedures characteristic of the Rule of Law seek simply to make this possible. But there is no fixed relationship in any society between the specifically legal machinery and the more intangible factors of social tradition which may, as powerfully as a writ of Habeas Corpus or an order of certiorari, serve to ensure that human rights are respected. More particularly, as is here in point, the institutions and procedures of the Rule of Law conceived as a supra-national concept, can only be determined by laborious comparative study not merely of the institutions and procedures themselves but also of the various settings— both legal and extra-legal—in which they operate.89 It is clear that whatever may have been accomplished at Chicago, Warsaw or New Delhi, such a task has only just begun; it is moreover one which, with the rapidly changing conditions of many, particularly Asian and African countries, continuously requires revision and reassessment. (a) Judicial Institutions and Procedures: The Judicial Process In spite of these evident difficulties of the comparative assessment of legal institutions and procedures, it is clearly felt in the discussions at New Delhi that, on the basis of experience rather than as a matter of dogmatic assertion, a society under the Rule of Law requires in the first place certain institutions and procedures, which we may call the judicial process. A judicial institution was here taken to mean one in which the judge or judges (under whatever name and whether sitting in so-called ‘ordinary courts’, ‘administrative courts’, or ‘administrative tribunals’) is or are in a position to exercise an independent judgment. But such independence is not licence to act in an arbitrary manner. The Rule of Law is not the Rule of the Judges. The judge in this broad sense is bound by the law, and the fundamental assumptions of a free society underlying it, which he must interpret to the best of his abilities in the light of his own conscience.90 Some attempt was made at New Delhi to go beyond this rather elementary conclusion, which is already embodied in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the 89 90

See n. (3), p. 261, infra. [Editors’ note: not included in this Anthology]. The reference to the judge’s abilities and conscience, although included in the Working Paper, was omitted in the Conclusions of the Committee on the Judiciary and the Legal Profession at the New Delhi Congress, presumably for fear that it might suggest an arbitrary and incalculable element in the judicial function. It is submitted, however, that trust in the moral judgment of the individual, isolated as far as possible from distracting pressures and influences, lies at the basis of the Rule of Law as outlined in this essay.

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requirement that ‘in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.91 Thus, the problem of securing the conditions in which the independent judge may function was given some attention, although in a tentative formulation. A difficulty frequently raised in this connexion is that methods which are open to obvious abuse do sometimes at least not prevent the appointment and effective functioning of an independent judiciary. On the other hand machinery designed to safeguard the independence of the judiciary, although it may not be successful, does not inherently make it more likely that judges will be subservient.92 The cautious conclusion reached at New Delhi was that there are dangers in an exclusive power of appointment resting with the Executive, Legislative or Judiciary; that the election of judges by popular vote (as in most States of the u.s.a. and in Switzerland) has special difficulties and only works well where firm tradition as circumscribed by prior agreement the list of candidates and limited controversy, and that where on the whole there is general satisfaction with the calibre and independence of the judges it will be found that either in law or in practice there is some degree of co-operation (or at least consultation) between the Judiciary and the authority actually making the appointment.93 Closely associated with the concept of the judicial institution is that of the legal profession. It is indeed commonly said that a ‘free’ legal profession is characteristic of the Rule of Law, but just as the judiciary is not independent in the sense that it is able to exercise arbitrary power, so the legal profession 91 92 93

Italics supplied. See n. (4), p. 262, infra. [Editors’ note: not included in this Anthology]. The system in force in India appears on the whole to have worked well. Judges of the Supreme Court are appointed by the President of India (acting on the advice of the Prime Minister, although the opinion of the President carries great weight) and except in the case of the Chief Justice, the Chief Justice of India must always be consulted. The practice so far has been to appoint the most senior member of the Supreme Court as Chief Justice, although it is not required by the Constitution. In the High Courts the appointment is also by the President, after consulting the Chief Justice of the High Court concerned, the Governor of the State and the Chief Justice of India. There is undoubtedly the potentiality of ‘political’ appointments but it is understood that no appointment has yet been made without the concurrence of the Chief Justice of India, his veto being always accepted. At lower levels District Judges are appointed by the Governor of the State after consultation with the Public Services Commission of the State concerned and the High Court. At the lowest level on the criminal side (Magistrates Courts) separation between the Executive and the Judiciary is not yet complete but the danger of political decisions is minimized by the fact that their decisions are subject to appeal to the District Judge (acting as the Sessions Judge), to the High Court and finally to the Supreme Court.

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is not free, if by freedom is meant liberty to pursue its own ends or those of its clients without regard to the law or its underlying assumption. But like the judge the lawyer must be free from interference within his proper field of competence. What in this connexion is proper is suggested by the Conclusions of the Committee on the Judiciary and the Legal Profession at New Delhi that: (1), ‘Subject to his professional obligation to accept assignments in appropriate circumstances, the lawyer should be free to accept any case which is offered to him;’ (2), ‘It is the duty of the lawyer, which he should be able to discharge without fear of consequences, to press upon the court any argument of law or fact which he may think proper for the due presentation of the case by him’. The freedom of the lawyer in this sense can be strengthened in practice by the degree of corporate organization which he enjoys and by the professional standards which such organization can develop. But in this field much comparative work remains to be done. There are at present wide variations in different countries as to the way in which the legal profession is organized: a high degree of autonomy with centrally organized bodies and an indirect or ultimate supervision by the courts or by the judges of the courts;94 a measure of control by some other organ (as, for example, by a Ministry of Justice95); local organizations centred on a particular court,96 with sometimes national organizations on a voluntary basis exercising great de facto influence;97 or indeed the absence of an obligatory organization for those pursuing the legal profession.98 No detailed criteria applicable to all countries for the organization of the legal profession were or could be suggested at New Delhi. While the desirability, or at least permissibility, of general supervision by the Judiciary of the legal profession was admitted it was also recognized that in certain circumstances the Bar may need protection from the Bench itself and that this requires a certain minimum of autonomous organization for the former. On the procedures involved in the judicial process, as distinct from the scope of their application (which is considered below) there is a wide measure of international agreement. In s.6 of the European Convention for the ­Protection 94 95 96 97 98

See n. (5), p. 263, infra. [Editors’ note: not included in this Anthology]. In the German Federal Republic admission to and dismissal from the legal profession is the ultimate responsibility of the Ministry of Justice of the appropriate Land. In France the local autonomy of the different Orders of Advocates (one of which is centred on each Court of Appeal) is emphasized. See Siré, ‘The Bar in France,’ Journal of the International Commission of Jurists, Vol. i, No. 2 (1958), p. 261. As in the United States by the American Bar Association. In Sweden, although the great majority of those engaged in legal advisory work and advocacy do have legal training, any one in principle is entitled to assist a party in a case and to act as an advocate in a Swedish court. The legal profession thus enjoys no monopoly.

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of Human Rights and Fundamental Freedoms, which has been cited in part above,99 a ‘fair and’—subject to some exceptions—‘public hearing’ is required in the determination of the individual’s civil rights and obligations and of any criminal charge against him. In relation to personal liberty, a detained person must be promptly informed of the charge on which he is held and promptly brought before a ‘judge or officer authorized by law to exercise judicial power’ and tried within a reasonable time or released pending trial.100 Wrongful arrest or detention in contravention of the Convention must give an enforceable right to compensation.101 In criminal trials the accused is entitled to know the charge against him, to have adequate time and facilities to prepare his defence, to be able to defend himself or to employ counsel of his choosing, being provided if he is without means with free counsel ‘if the interests of justice so require’, to examine the witnesses against him and to be able to summon witnesses on his own behalf.102 At New Delhi a modest advance was made in giving more explicit form to these principles in criminal and more particularly in civil matters. For example, in civil matters it was agreed that even where review of the acts of the Executive affecting the person, property or rights of the individual comes not before ordinary courts or regular administrative courts (as in France or Germany) but before, in the English sense, ‘administrative tribunals’, the following requirements must be satisfied: the right to be heard, if possible in public; to have advance knowledge of the rules governing the hearing; the right to adequate representation (including save for sufficient reason to the contrary, the right to legal representation); the right to know the opposing case; the right to receive a reasoned judgment, with the ultimate right of review by the ordinary courts. The European Convention (Article 13) speaks only of ‘an effective remedy before a national authority’ for violations of the rights and freedoms recognized by the Convention ‘notwithstanding that the violation has been committed by persons acting in an official capacity’. The Congress at New Delhi more specifically required that ‘a citizen who suffers injury as a result of illegal acts of the Executive should have an effective remedy against the State or against the individual wrongdoer, with assurance of satisfaction of the judgment in the latter case, or both’.103

99 100 101 102 103

See p. 253, supra. [Editors’ note: page 157–158 of this Anthology]. Article 5 (3). Article 5 (5). Article 6 (3). See n. (6), p. 263, infra. [Editors’ note: not included in this Anthology].

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In criminal matters particular emphasis was laid at New Delhi on the importance of the right to legal advice from the earliest time of arrest, a right which is not available or not observed in practice in many countries. Release on bail (subject to stated exceptions)104 was declared to be a right and not merely an alternative to trial within a reasonable time, as in the European Convention. Attention was also paid to the methods used by the authorities to obtain evidence which must not include anything calculated to impair his (the prisoner’s) will or to violate his dignity as a human being; and evidence illegally obtained must not be used against the accused.105 In all criminal cases there should be a right of appeal to at least one higher tribunal, a view which corresponds with the fundamental position of the individual in the concept of the Rule of Law for, on the one hand, this concept presupposes faith in the rational and fair judgement of the individual and, on the other, it admits that it is in the nature of the human condition to make mistakes. Not merely in criminal but also in civil cases it was recognized that legal aid for those unable to pay for it is a necessary corollary of substantial rather than formal equality before the law, although there was some difference of emphasis (by State provision or by voluntary action of the legal profession) as to the way in which such legal aid should be ensured.106 (b) The Scope of Application of the Judicial Process It is comparatively easy to reach a wide measure of international agreement on what are the constituents of the judicial process; it is much more difficult to decide in what circumstances and to what extent the judicial process should be applied. That it is applicable to issues in which the life or liberty of the individual is concerned would probably be fairly readily agreed. Preventive detention (which is here understood to involve imprisonment without trial by decision of the Executive) was only incidentally discussed at New Delhi, but the fact that it was not covered in the final conclusions of the Congress suggest that it 104 Conclusion iv (2) of the Committee on the Criminal Process and the Rule of Law (see Journal of the International Commission of Jurists, Vol. ii, No. 1 (1959), p. 14) listed the following: the exceptionally serious nature of the charge; likelihood of escape of the accused outside the jurisdiction; likelihood of the accused interfering with the evidence; likelihood of the accused committing further criminal offences. 105 Not only, it would seem, evidence obtained by involuntary confessions. This, as far as English law is concerned, would appear to go beyond Ibrahim v. R., [1914] A.C. 599 and to be contrary to Elias v. Pasmore, [1934] 2 K.B. 164 and Kuruma v. The Queen, [1955] A.C. 197. But see the criticisms of Cowen and Carter, Essays on the Law of Evidence, pp. 72–105. 106 See Journal of the International Commission of Jurists, Vol. ii, No. 2 (1960), containing a provisional report on a Colloquium of the United Kingdom National Committee on Comparative Law held in Oxford in September, 1959, on ‘Comparative Aspects of Legal Aid’.

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was felt to be inconsistent with the Rule of Law. On the other hand, preventive detention has been imposed in Great Britain in wartime, has been introduced in peacetime in various dependent territories of the Commonwealth (such as Kenya and Nyasaland)107 and exists in the territory of independent Commonwealth members such as Ghana and India. There would however probably be a considerable international consensus for the view that preventive detention, when imposed, must (1) be effected under direct and not delegated legislative authority, (2) be operative for a limited period, and (3) provide machinery analogous to the judicial process for the hearing of appeals by detainees.108 It was clearly indicated at New Delhi that, whereas judicial review of legislative decisions was not an inherent part of the machinery of the Rule of Law, it was essential ‘to ensure that the extent, purpose, and procedure appropriate to delegated legislation are observed … that it should be subject to ultimate review by a judicial body’. The succeeding conclusion that ‘in general, the acts of the Executive which directly and injuriously affect the person or property or rights of the individual should be subject to review by the Courts’109 was rather less informative. Unless a qualifying reservation is to be found in the words ‘in general’, the statement appears to go beyond the practice of most countries and certainly beyond that of Great Britain; it does not make allowance, for example, for the generally unchallengeable power of the Executive to expel an alien110 or to withhold a passport from a citizen.111 If the conclusion is 107 See Holland ‘Personal Liberty in the Commonwealth,’ Current Legal Problems, 1958, p. 151. 108 The Indian Preventive Detention Act, No. 4 of 1950 (s. 8) sets up Advisory Boards, each consisting of three persons who are, or have been or are qualified to be appointed as judges of a High Court, with a judge or former judge as chairman. By s. 11 (2) the Government concerned has to revoke the detention order if the Advisory Board reports that there is insufficient cause for the detention of the detainee. 109 ‘Courts’ is explained to mean not merely the ordinary courts and administrative courts (as in France or Germany) but also administrative tribunals and agencies (on the British or American pattern) provided the latter are subject to ultimate review by the ordinary courts and involve the characteristics of a judicial hearing mentioned on p. 222 et seq., supra. [Editors’ Note: not included in this Anthology]. 110 But this power may be limited by international agreement. See the decision of the Federal Administrative Court of Germany (October 25, 1956, N.r.BVerwG.I.C. 58.56, published in Deutsches Verwaltungsblatt (1957), p. 57; note by Mr. H. Golsong in b.y.i.l., Vol. xxxiii (1957), 317), which held that the power of the police under German Law to expel an alien had been limited by German ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms, whereby under s. 8 special protection is given to ‘family life’ and ‘home’. 111 But see as regards the United States Kent v. Dulles (1958), 357 U.S. 116, in which the Supreme Court said: ‘the right to travel is part of the “liberty” of which a citizen cannot be deprived without due process of law under the Fifth Amendment’.

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to be explained by giving to the conception of ‘rights’ a restricted meaning,112 the argument is in danger of becoming merely circular: the judicial process should be employed in the determination of ‘rights’; ‘rights’ are those interests to which the judicial process is applicable. It is, however, broadly true to say that in most countries of the Western democratic pattern it is mainly in matters which directly or indirectly affect the State’s foreign relations that what in French administrative practice are called actes de gouvernement remain outside the ultimate jurisdiction of the courts.113 In the procedural field the State sometimes claims privilege for information, otherwise relevant to law suits, which involves not only State security or diplomatic relations but also the proper functioning of the public service as judged by the department concerned. Such a claim is made, but has been widely criticized, in Great Britain;114 the rights of the State are in this respect more restricted in France115 and in the u.s.a.116 But as regards the proper scope of the judicial process much comparative investigation is still to be done, most usefully by comparison of particular types of governmental activity in approximately similar political, economic, and social environments and the different degrees to which they are or might be subject to the judicial process.117 III Conclusion The Rule of Law on a supra-national plane may on examination thus appear to lack at its edges the sharpness of definition which we expect of legal concepts. But this does not mean that there is no agreement on the basic values which 112 As distinguished from ‘privileges’. See n. (4), p. 250, supra. [Editors’ note: page 155 of this Anthology]. 113 For a comparative treatment see Rumpf, Regierungsakte im Rechtsstaat, Bonn, 1955 reviewed in Journal of the International Commission of Jurists, Vol. i, No. 2 (1958), p. 336. The Conseil d’État in France has progressively narrowed the field of actes de gouvernement; see Waline, Droit Administratif, 8th ed., 1959, p. 190 et seq. 114 See Hamson, ‘Government Privilege and the Rule of Law’, The Listener, October 18, 1956, p. 612; Bell, Public Law (1957), p. 28; Auten v. Rayner, [1958] 1 W.L.R. 1300 and leading article in The Times, November 5, 1958. 115 The Conseil d’État may draw inferences against the State if it fails to produce the documents, on being ordered to do so. See Hamson, Executive Discretion and Judicial Control, p. 36. 116 United States v. Reynolds (1953), 345 U.S. 1, shows that while the court will not generally insist on seeing the allegedly privileged document ‘judicial control over the evidence cannot be abdicated to the caprice of executive officers’ (per Vinson C.J.). See further Schwartz, Introduction to American Administrative Law, 1958, p. 237. 117 See n. (7), p. 264, infra. [Editors’ note: not included in this Anthology].

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it represents and on many, although not all, of the methods and procedures by which it is sought to put those values into effect. Such a consensus among representative lawyers from a large number of countries was demonstrated at New Delhi. Their agreement does not of itself make law, either on the municipal or on the international plane, but it may serve to create a climate of opinion in which international law, slowly extending into the sphere of domestic jurisdiction,118 may eventually reach a more practical recognition of human rights.119 118 See ‘Domestic Jurisdiction and International Concern’, Journal of the International Commission of Jurists, Vol. i, No. 1 (1957), p. 3. 119 Cf., Goodhart (1958), 106 University of Pennsylvania Law Review 943, at p. 945: ‘The rule of law is the machinery by which effect can be given to such basic rights as are recognized in any particular legal system.’

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Chapter 8

Malcolm Shaw, International Law, 1977–2014 Comment by Richard Mackenzie-Gray Scott, Research Fellow, BIICL Malcolm Shaw’s book series on international law has been assisting international law students, practitioners and academics since 1977. Shaw read law at the University of Liverpool (LLB), the Hebrew University of Jerusalem (LLM) and Keele University (PHD). He is a Barrister at Essex Court Chambers in London, a Senior Fellow at the Lauterpacht Centre for International Law and was the Sir Robert Jennings Professor of International Law at the University of Leicester until 2011. The multiple editions of Shaw’s book have benefited all individuals that make up the international legal community, from judges at the ICJ, to students starting out in this field. This particular series has combined insights from a long career in the practice of international law, with an academic writing style that makes some of the more dry areas of international law interesting. In its seventh edition, the book has become a first port of call for any international lawyer that begins the process of addressing a particular issue of international law. Shaw’s books draw on his extensive experience in the practice of international law, as he has been involved in many prominent cases, including Pinocheta and Bancoult.b With respect to the latter case, I made my first trip to the Royal Courts of Justice in London, to watch the case play out in court, when Counsel in this particular stage of Bancoult included Malcolm Shaw. My brief time at the Court of Appeal was motivational, primarily because there were so many great international legal minds advocating under one roof. During law school, the sixth edition of Shaw’s International Law became my own paper-based companion – with everything I needed to know for class, ­essays and my thesis. For me, this was by far the most useful book I read during

a R v Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [1998] UKHL 41. b R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2014] EWCA Civ 708.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_009

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my time as a law student. Years after my graduation, I still use his book, as it provides a concise and practical understanding of many specific areas within international law. It is hard to grasp anything resembling a critique of Shaw’s International Law series, especially because every stage of this book’s long history has been thoroughly researched, applied in a contemporary context and is accessibly written.

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M. Shaw, International Law (7th edn, Cambridge University Press 2014). Excerpt: Chapter 1, ‘The nature and development of international law’, pp 1–29. Reproduced with the kind permission of Cambridge University Press.

The Nature and Development of International Law Malcolm Shaw In the long march of mankind from the cave to the computer a central role has always been played by the idea of law – the idea that order is necessary and chaos inimical to a just and stable existence. Every society, whether it be large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what cannot be done, permissible acts, forbidden acts, have all been spelt out within the consciousness of that community. Progress, with its inexplicable leaps and bounds, has always been based upon the group as men and women combine to pursue commonly ­accepted goals, whether these be hunting animals, growing food or simply making money. Law is that element which binds the members of the community together in their adherence to recognised values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulations. Law consists of a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions. And so it is with what is termed international law, with the important difference that the principal subjects of international law are nation-states, not individual citizens. There are many contrasts between the law within a country (municipal law) and the law that operates outside and between states, international organisations and, in certain cases, individuals. International law itself is divided into conflict of laws (or private international law as it is sometimes called) and public international law (usually just termed international law).1 The former deals with those cases, within particular legal systems, in which foreign elements obtrude, raising questions as to the application of foreign law or the role of foreign courts.2 For example, if two Englishmen make a contract in France to sell goods situated in Paris, an 1 This term was first used by J. Bentham: see Introduction to the Principles of Morals and Legislation, London, 1780. 2 See e.g. Cheshire, North and Fawcett, Private International Law (ed. J. Fawcett and J.M. ­Carruthers), 14th edn, Oxford, 2008.

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­ nglish court would apply French law as regards the validity of that contract. E By contrast, public international law is not simply an adjunct of a legal order, but a separate system altogether,3 and it is this field that will be considered in this book. Public international law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many international institutions. It may be universal or general, in which case the stipulated rules bind all the states (or practically all depending upon the nature of the rule), or regional, whereby a group of states linked geographically or ideologically may recognise special rules applying only to them, for example, the practice of diplomatic asylum that has developed to its greatest extent in Latin America.4 The rules of international law must be distinguished from what is called international comity, or practices such as saluting the flags of foreign warships at sea, which are implemented solely through courtesy and are not regarded as legally binding.5 Similarly, the mistake of confusing international law with international morality must be avoided. While they may meet at certain points, the former discipline is a legal one both as regards its content and its form, while the concept of international morality is a branch of ethics. This does not mean, however, that international law can be divorced from its values. In this chapter and the next, the characteristics of the international legal system and the historical and theoretical background necessary to a proper appreciation of the part to be played by the law in international law will be examined.

Law and Politics in the World Community

It is the legal quality of international law that is the first question to be posed. Each side to an international dispute will doubtless claim legal justification for its actions and within the international system there is no independent institution able to determine the issue and give a final decision. Virtually everybody who starts reading about international law does so ­having learned or absorbed something about the principal characteristics of ordinary or domestic law. Such identifying marks would include the existence of a recognised body to legislate or create laws, a hierarchy of courts 3 See the Serbian Loans case, PCIJ, Series A, No. 14, pp. 41–2. 4 See further below, p. 65. [Editors’ note: not included in this Anthology]. 5 North Sea Continental Shelf cases, ICJ Reports, 1969, p. 44; 41 ilr, p. 29. See also M. Akehurst, ‘Custom as a Source of International Law’, 47 byil, 1974–5, p. 1.

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with c­ ompulsory jurisdiction to settle disputes over such laws and an accepted system of enforcing those laws. Without a legislature, judiciary and executive, it would seem that one cannot talk about a legal order.6 And international law does not fit this model. International law has no legislature. The General Assembly of the United Nations comprising delegates from all the member states exists, but its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes.7 There is no system of courts. The International Court of Justice does exist at The Hague but it can only decide cases when both sides agree8 and it cannot ensure that its decisions are complied with. Above all there is no executive or governing entity. The Security Council of the United Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the five permanent members (USA; USSR, now the Russian Federation; China; France; and the United Kingdom).9 Thus, if there is no identifiable institution either to establish rules, or to clarify them or see that those who break them are punished, how can what is called international law be law? It will, of course, be realised that the basis for this line of argument is the comparison of domestic law with international law, and the assumption of an analogy between the national system and the international order. And this is at the heart of all discussions about the nature of international law. At the turn of the nineteenth century, the English philosopher John Austin elaborated a theory of law based upon the notion of a sovereign issuing a command backed by a sanction or punishment. Since international law did not fit within that definition it was relegated to the category of ‘positive morality’.10 This concept has been criticised for oversimplifying and even confusing the true nature of law within a society and for over emphasising the role of the sanction within the system by linking it to every rule.11 This is not the place for a comprehensive summary of Austin’s theory but the idea of coercion as an integral part of any legal order is a vital one that needs looking at in the context of international law. 6 7 8 9 10 11

See generally, R. Dias, Jurisprudence, 5th edn, London, 1985, and H.L.A. Hart, The Concept of Law, Oxford, 1961. See article 17(1) of the United Nations Charter. See also D. Johnson, ‘The Effect of Resolutions of the General Assembly of the United Nations’, 32 byil, 1955–6, p. 97 and below, Chapter 22. See article 36 of the Statute of the International Court of Justice and below, Chapter 19. See e.g. Bowett’s Law of International Institutions (ed. P. Sands and P. Klein), 5th edn, ­London, 2009, and below, Chapter 23. See J. Austin, The Province of Jurisprudence Determined (ed. H.L.A. Hart), London, 1954, pp. 134–42. See e.g. Hart, Concept of Law, Chapter 10.

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The Role of Force

There is no unified system of sanctions12 in international law in the sense that there is in municipal law, but there are circumstances in which the use of force is regarded as justified and legal. Within the United Nations system, sanctions may be imposed by the Security Council upon the determination of a threat to the peace, breach of the peace or act of aggression.13 Such sanctions may be economic, for example those proclaimed in 1966 against Rhodesia,14 or military as in the Korean war in 1950,15 or indeed both, as in 1990 against Iraq.16 Coercive action within the framework of the UN is rare because it requires co-ordination amongst the five permanent members of the Security Council and this obviously needs an issue not regarded by any of the great powers as a threat to their vital interests. Korea was an exception and joint action could only be undertaken because of the fortuitous absence of the USSR from the Council as a protest at the seating of the Nationalist Chinese representatives.17 Apart from such institutional sanctions, one may note the bundle of rights to take violent action known as self-help.18 This procedure to resort to force to defend certain rights is characteristic of primitive systems of law with bloodfeuds, but in the domestic legal order such procedures and methods are now within the exclusive control of the established authority. States may use force in self-defence, if the object of aggression, and may take action in response to the illegal acts of other states. In such cases the states themselves decide 12

See e.g. W.M. Reisman, ‘Sanctions and Enforcement’, in The Future of the International ­Legal Order (ed. C. Black and R.A. Falk), New York, 1971, p. 273; J. Brierly, ‘Sanctions’, 17 Transactions of the Grotius Society, 1932, p. 68; Hart, Concept of Law, pp. 211–21; A. D’Amato, ‘The Neo-Positivist Concept of International Law’, 59 AJIL, 1965, p. 321; G. Fitzmaurice, ‘The Foundations of the Authority of International Law and the Problem of Enforcement’, 19 mlr, 1956, p. 1, and The Effectiveness of International Decisions (ed. S. Schwebel), Leiden, 1971. 13 Chapter vii of the United Nations Charter. See below, Chapter 22. [Editors’ note: not included in this Anthology]. 14 Security Council resolution 221 (1966). Note also Security Council resolution 418 (1977) imposing a mandatory arms embargo on South Africa. 15 Security Council resolutions of 25 June, 27 June and 7 July 1950. See D.W. Bowett, United Nations Forces, London, 1964. 16 Security Council resolutions 661 and 678 (1990). See The Kuwait Crisis: Basic Documents (ed. E. Lauterpacht, C. Greenwood, M. Weller and D. Bethlehem), Cambridge, 1991, pp. 88 and 98. See also below, Chapter 22. [Editors’ note: not included in this Anthology]. 17 See E. Luard, A History of the United Nations, vol. i, The Years of Western Domination ­1945–55, London, 1982, pp. 229–74, and below, Chapter 22. 18 See D.W. Bowett, Self-Defence in International Law, Manchester, 1958, and I. Brownlie, ­International Law and the Use of Force by States, Oxford, 1963. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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whether to take action and, if so, the extent of their measures, and there is no supreme body to rule on their legality or otherwise, in the absence of an examination by the International Court of Justice, acceptable to both parties, although international law does lay down relevant rules.19 Accordingly those writers who put the element of force to the forefront of their theories face many difficulties in describing the nature, or rather the legal nature of international law, with its lack of a coherent, recognised and comprehensive framework of sanctions. To see the sanctions of international law in the states’ rights of self-defence and reprisals20 is to misunderstand the role of sanctions within a system because they are at the disposal of the states, not the system itself. Neither must it be forgotten that the current trend in international law is to restrict the use of force as far as possible, thus leading to the absurd result that the more force is controlled in international society, the less legal international law becomes. Since one cannot discover the nature of international law by reference to a definition of law predicated upon sanctions, the character of the international legal order has to be examined in order to seek to discover whether in fact states feel obliged to obey the rules of international law and, if so, why. If, indeed, the answer to the first question is negative, that states do not feel the necessity to act in accordance with such rules, then there does not exist any system of international law worthy of the name.

The International System21

The key to the search lies within the unique attributes of the international system in the sense of the network of relationships existing primarily, if not exclusively, between states recognising certain common principles and ways of doing things.22 While the legal structure within all but the most primitive 19 20 21

22

See below, Chapter 19. See also M. Barkin, Law Without Sanctions, New Haven, 1967. [Editors’ note: not included in this Anthology]. See e.g. H. Kelsen, General Theory of Law and State, London, 1946, pp. 328 ff. See L. Henkin, How Nations Behave, 2nd edn, New York, 1979, and Henkin, International Law: Politics and Values, Dordrecht, 1995; M.A. Kaplan and N. Katzenbach, The Political Foundations of International Law, New York, 1961; C.W. Jenks, The Common Law of Mankind, London, 1958; W. Friedmann, The Changing Structure of International Law, New York, 1964; A. Sheikh, International Law and National Behaviour, New York, 1974; O. Schachter, International Law in Theory and Practice, Dordrecht, 1991; T.M. Franck, The Power of Legitimacy Among Nations, Oxford, 1990; R. Higgins, Problems and Process, Oxford, 1994, and Oppenheim’s International Law (ed. R.Y. Jennings and A.D. Watts), 9th edn, London, 1992, vol. i, Chapter 1. As to the concept of ‘international community’, see e.g. G. Abi-Saab, ‘Whither the International Community?’, 9 ejil, 1998, p. 248, and B. Simma and A.L. Paulus, ‘The “­International Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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societies is hierarchical and authority is vertical, the international system is horizontal, consisting of over 190 independent states, all equal in legal theory (in that they all possess the characteristics of sovereignty) and recognising no one in authority over them. The law is above individuals in domestic systems, but international law only exists as between the states. Individuals only have the choice as to whether to obey the law or not. They do not create the law. That is done by specific institutions. In international law, on the other hand, it is the states themselves that create the law and obey or disobey it.23 This, of course, has profound repercussions as regards the sources of law as well as the means for enforcing accepted legal rules. International law, as will be shown in succeeding chapters, is primarily formulated by international agreements, which create rules binding upon the signatories, and customary rules, which are basically state practices recognised by the community at large as laying down patterns of conduct that have to be complied with. However, it may be argued that since states themselves sign treaties and engage in action that they may or may not regard as legally obligatory, international law would appear to consist of a series of rules from which states may pick and choose. Contrary to popular belief, states do observe international law, and violations are comparatively rare. However, such violations (like armed attacks and racial oppression) are well publicised and strike at the heart of the system, the creation and preservation of international peace and justice. But just as incidents of murder, robbery and rape do occur within national legal orders without destroying the system as such, so analogously assaults upon international legal rules point up the weaknesses of the system without denigrating their validity or their necessity. Thus, despite the occasional gross violation, the vast majority of the provisions of international law are followed.24 In the daily routine of international life, large numbers of agreements and customs are complied with. However, the need is felt in the hectic interplay of world affairs for some kind of regulatory framework or rules network within which the game can be played, and international law fulfils that requirement. States feel this necessity because it imports an element of stability and predictability into the situation.

23 24

Community”: Facing the Challenge of Globalisation’, 9 ejil, 1998, p. 266. See also P. Weil, ‘Le Droit International en Quête de son Identité’, 237 HR, 1992 vi, p. 25. This leads Rosenne to refer to international law as a law of co-ordination, rather than, as in internal law, a law of subordination, Practice and Methods of International Law, Dordrecht, 1984, p. 2. See H. Morgenthau, Politics Among Nations, 5th edn, New York, 1973, pp. 290–1; Henkin, How Nations Behave, pp. 46–9; J. Brierly, The Outlook for International Law, Oxford, 1944, p. 5, and P. Jessup, A Modern Law of Nations, New York, 1948, pp. 6–8. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Where countries are involved in a disagreement or a dispute, it is handy to have recourse to the rules of international law even if there are conflicting interpretations since at least there is a common frame of reference and one state will be aware of how the other state will develop its argument. They will both be talking a common language and this factor of communication is vital since misunderstandings occur so easily and often with tragic consequences. Where the antagonists dispute the understanding of a particular rule and adopt opposing stands as regards its implementation, they are at least on the same wavelength and communicate by means of the same phrases. That is something. It is not everything, for it is a mistake as well as inaccurate to claim for international law more than it can possibly deliver. It can constitute a mutually understandable vocabulary book and suggest possible solutions which follow from a study of its principles. What it cannot do is solve every problem no matter how dangerous or complex merely by being there. International law has not yet been developed, if it ever will, to that particular stage and one should not exaggerate its capabilities while pointing to its positive features. But what is to stop a state from simply ignoring international law when proceeding upon its chosen policy? Can a legal rule against aggression, for example, of itself prevail over political temptations? There is no international police force to prevent such an action, but there are a series of other considerations closely bound up with the character of international law which might well cause a potential aggressor to forbear. There is the element of reciprocity at work and a powerful weapon it can be. States quite often do not pursue one particular course of action which might bring them short-term gains, because it could disrupt the mesh of reciprocal tolerance which could very well bring long-term disadvantages. For example, states everywhere protect the immunity of foreign diplomats for not to do so would place their own officials abroad at risk.25 This constitutes an inducement to states to act reasonably and moderate demands in the expectation that this will similarly encourage other states to act reasonably and so avoid confrontations. Because the rules can ultimately be changed by states altering their patterns of behaviour and causing one custom to supersede another, or by mutual agreement, a certain definite reference to political life is retained. But the point must be made that a state, after weighing up all possible alternatives, might very well feel that the only method to protect its vital interests would involve a violation of international law and that responsibility would

25 See Case Concerning United States Diplomatic and Consular Staff in Tehran, ICJ Reports, 1980, p. 3; 61 ilr, p. 502. See also the US Supreme Court decision in Boos v. Barry 99 L. Ed. 2d 333, 345–6 (1988); 121 ilr, p. 499. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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just have to be taken. Where survival is involved international law may take second place. Another significant factor is the advantages, or ‘rewards’, that may occur in certain situations from an observance of international law. It may encourage friendly or neutral states to side with one country involved in a conflict rather than its opponent, and even take a more active role than might otherwise have been the case. In many ways, it is an appeal to public opinion for support and all states employ this tactic. In many ways, it reflects the esteem in which law is held. The Soviet Union made considerable use of legal arguments in its effort to establish its non-­ liability to contribute towards the peacekeeping operations of the United ­Nations,26 and the Americans too, justified their activities with regard to Cuba27 and Vietnam28 by reference to international law. In some cases it may work and bring considerable support in its wake, in many cases it will not, but in any event the very fact that all states do it is a constructive sign. A further element worth mentioning in this context is the constant formulation of international business in characteristically legal terms. Points of view and disputes, in particular, are framed legally with references to precedent, international agreements and even the opinions of juristic authors. Claims are pursued with regard to the rules of international law and not in terms of, for example, morality or ethics.29 This has brought into being a class of officials throughout governmental departments, in addition to those working in international institutions, versed in international law and carrying on the everyday functions of government in a law-oriented way. Many writers have, in fact, emphasised the role of officials in the actual functioning of law and the influence they have upon the legal process.30 Having come to the conclusion that states do observe international law and will usually only violate it on an issue regarded as vital to their interests, the question arises as to the basis of this sense of obligation.31 The nineteenth 26 See Certain Expenses of the United Nations, ICJ Reports, 1962, p. 151; 34 ilr, p. 281, and R. Higgins, United Nations Peace-Keeping; Documents and Commentary, Oxford, 4 vols., 1969–81. 27 See e.g. A. Chayes, The Cuban Missile Crisis, Oxford, 1974, and Henkin, How Nations Behave, pp. 279–302. 28 See e.g. The Vietnam War and International Law (ed. R.A. Falk), Princeton, 4 vols., 1968–76; J.N. Moore, Law and the Indo-China War, Charlottesville, 1972, and Henkin, How Nations Behave, pp. 303–12. 29 See Hart, Concept of Law, p. 223. 30 See e.g. M.S. McDougal, H. Lasswell and W.M. Reisman, ‘The World Constitutive Process of Authoritative Decision’, in International Law Essays (ed. M.S. McDougal and W.M. Reisman), New York, 1981, p. 191. 31 See e.g. J. Brierly, The Basis of Obligation in International Law, Oxford, 1958. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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century, with its business-oriented philosophy, stressed the importance of the contract, as the legal basis of an agreement freely entered into by both (or all) sides, and this influenced the theory of consent in international law.32 States were independent, and free agents, and accordingly they could only be bound with their own consent. There was no authority in existence able theoretically or practically to impose rules upon the various nation-states. This approach found its extreme expression in the theory of auto-limitation, or s­ elf-limitation, which declared that states could only be obliged to comply with international legal rules if they had first agreed to be so obliged.33 Nevertheless, this theory is most unsatisfactory as an account of why international law is regarded as binding or even as an explanation of the international legal system.34 To give one example, there are about 100 states that have come into existence since the end of the Second World War and by no stretch of the imagination can it be said that such states have consented to all the rules of international law formed prior to their establishment. It could be argued that by ‘accepting independence’, states consent to all existing rules, but to take this view relegates consent to the role of a mere fiction.35 This theory also fails as an adequate explanation of the international ­legal system, because it does not take into account the tremendous growth in international institutions and the network of rules and regulations that have emerged from them within the last generation. To accept consent as the basis for obligation in international law36 begs the question as to what happens when consent is withdrawn. The state’s reversal of its agreement to a rule does not render that rule optional or remove from it its aura of legality. It merely places that state in breach of its obligations under international law if that state proceeds to act upon its decision. Indeed, the principle that agreements are binding (pacta sunt servanda) upon which all treaty law must be based cannot itself be based upon consent.37

32 33 34

35 36 37

See W. Friedmann, Legal Theory, 5th edn, London, 1967, pp. 573–6. See also the Lotus case, PCIJ, Series A, No. 10, p. 18. E.g. G. Jellinek, Allgemeine Rechtslehre, Berlin, 1905. See also Hart, Concept of Law, pp. 219–20. But see P. Weil, ‘Towards Relative Normativity in International Law?’, 77 AJIL, 1983, p. 413 and responses thereto, e.g. R.A. Falk, ‘To What Extent are International Law and International Lawyers Ideologically Neutral?’, in Change and Stability in International Law-Making (ed. A. Cassese and J. Weiler), 1989, p. 137, and A. Pellet, ‘The Normative Dilemma: Will and Consent in International Law-Making’, 12 Australian yil, 1992, p. 22. See further below, p. 60. [Editors’ note: not included in this Anthology]. See e.g. J.S. Watson, ‘State Consent and the Sources of International Obligation’, PASIL, 1992, p. 108. See below, Chapter 3. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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One current approach to this problem is to refer to the doctrine of consensus.38 This reflects the influence of the majority in creating new norms of international law and the acceptance by other states of such new rules. It attempts to put into focus the change of emphasis that is beginning to take place from exclusive concentration upon the nation-state to a consideration of the developing forms of international co-operation where such concepts as consent and sanction are inadequate to explain what is happening. Of course, one cannot ignore the role of consent in international law. To recognise its limitations is not to neglect its significance. Much of international law is constituted by states expressly agreeing to specific normative standards, most obviously by entering into treaties. This cannot be minimised. Nevertheless, it is preferable to consider consent as important not only with regard to specific rules specifically accepted (which is not the sum total of international law, of course) but in the light of the approach of states generally to the totality of rules, understandings, patterns of behaviour and structures underpinning and constituting the international system.39 In a broad sense, states accept or consent to the general system of international law, for in reality without that no such system could possibly operate. It is this approach which may be characterised as consensus or the essential framework within which the demand for individual state consent is transmuted into community acceptance. It is important to note that while states from time to time object to particular rules of international law and seek to change them, no state has sought to maintain that it is free to object to the system as a whole. Each individual state, of course, has the right to seek to influence by word or deed the development of specific rules of international law, but the creation of new customary rules is not dependent upon the express consent of each particular state.

The Function of Politics

It is clear that there can never be a complete separation between law and ­policy. No matter what theory of law or political philosophy is professed, the inextricable bonds linking law and politics must be recognised. Within developed societies a distinction is made between the formulation of policy and the method of its enforcement. In the United Kingdom, P ­ arliament 38

39

See e.g. A. D’Amato, ‘On Consensus’, 8 Canadian yil, 1970, p. 104. Note also the ‘gentleman’s agreement on consensus’ in the Third UN Conference on the Law of the Sea: see L. Sohn, ‘Voting Procedures in United Nations Conference for the Codification of International Law’, 69 AJIL, 1975, p. 318, and UN Doc. A/Conf.62/WP.2. See e.g. J. Charney, ‘Universal International Law’, 87 AJIL, 1993, p. 529.

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legislates while the courts adjudicate and a similar division is maintained in the United States between the Congress and the courts system. The purpose of such divisions, of course, is to prevent a concentration of too much power within one branch of government. Nevertheless, it is the political branch which makes laws and in the first place creates the legal system. Even within the hierarchy of courts, the judges have leeway in interpreting the law and in the last resort make decisions from amongst a number of alternatives.40 This position, however, should not be exaggerated because a number of factors operate to conceal and lessen the impact of politics upon the legal process. Foremost amongst these is the psychological element of tradition and the development of the so-called ‘law-habit’.41 A particular legal atmosphere has been created, which is buttressed by the political system and recognises the independent existence of law institutions and methods of operation characterised as ‘just’ or ‘legal’. In most countries overt interference with the juridical process would be regarded as an attack upon basic principles and hotly contested. The use of legal language and accepted procedures together with the pride of the legal profession reinforce the system and emphasise the degree of distance maintained between the legislative–executive organs and the judicial structure.42 However, when one looks at the international legal scene the situation changes. The arbiters of the world order are, in the last resort, the states and they both make the rules (ignoring for the moment the secondary, if growing, field of international organisations) and interpret and enforce them. While it is possible to discern an ‘international legal habit’ amongst governmental and international officials, the machinery necessary to enshrine this does not exist. Politics is much closer to the heart of the system than is perceived within national legal orders, and power much more in evidence.43 The interplay of law and politics in world affairs is much more complex and difficult to unravel, and signals a return to the earlier discussion as to why states comply with international rules. Power politics stresses competition, conflict and supremacy and adopts as its core the struggle for survival and influence.44 International law aims for harmony and the regulation of disputes. It attempts to create a framework, no matter how rudimentary, which can act as a kind of ­shock-absorber 40 41 42 43 44

See e.g. R. Dworkin, Taking Rights Seriously, London, 1977. See e.g. K. Llewellyn, The Common Law Tradition, Boston, 1960, and generally D. Lloyd, Introduction to Jurisprudence, 4th edn, London, 1979. See P. Stein and J. Shand, Legal Values in Western Society, Edinburgh, 1974. See generally Henkin, How Nations Behave, and Schachter, International Law, pp. 5–9. See G. Schwarzenberger, Power Politics, 3rd edn, London, 1964, and Schwarzenberger, ­International Law, 3rd edn, London, 1957, vol. i, and Morgenthau, Politics Among Nations.

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clarifying and moderating claims and endeavouring to balance interests. In addition, it sets out a series of principles declaring how states should behave. Just as any domestic community must have a background of ideas and hopes to aim at, even if few can be or are ever attained, so the international community, too, must bear in mind its ultimate values. However, these ultimate values are in a formal sense kept at arm’s length from the legal process. As the International Court noted in the South-West ­Africa case,45 ‘It is a court of law, and can take account of moral principles only in so far as these are given a sufficient expression in legal form. Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered.’46 International law cannot be a source of instant solutions to problems of conflict and confrontation because of its own inherent weaknesses in structure and content. To fail to recognise this encourages a utopian approach which, when faced with reality, will fail.47 On the other hand, the cynical attitude with its obsession with brute power is equally inaccurate, if more depressing. It is the medium road, recognising the strength and weakness of international law and pointing out what it can achieve and what it cannot, which offers the best hope. Man seeks order, welfare and justice not only within the state in which he lives, but also within the international system in which he lives.

Historical Development48

The foundations of international law (or the law of nations) as it is understood today lie firmly in the development of Western culture and political organisation. 45 46 47

48

ICJ Reports, 1966, pp. 6, 34. But see Higgins’ criticism that such a formulation may be question-begging with regard to the identity of such ‘limits of its own discipline’, Problems, p. 5. Note, of course, the important distinction between the existence of an obligation under international law and the question of the enforcement of that obligation. Problems with regard to enforcing a duty cannot affect the legal validity of that duty: see e.g. Judge Weeramantry’s Separate Opinion in the Order of 13 September 1993, in the Bosnia case, ICJ Reports, 1993, pp. 325, 374; 95 ilr, pp. 43, 92. See in particular A. Nussbaum, A Concise History of the Law of Nations, rev. edn, New York, 1954; Encyclopedia of Public International Law (ed. R. Bernhardt), Amsterdam, 1984, vol. vii, pp. 127–273; J.W. Verzijl, International Law in Historical Perspective, Leiden, 10 vols., 1968–79, and M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of ­International Law, 1870–1960, Cambridge, 2001. See also Oxford Handbook of the History of International Law (ed. B. Fassbender, A. Peters, S. Peter and D. Högger), Oxford, 2012; Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The growth of European notions of sovereignty and the independent nationstate required an acceptable method whereby inter-state relations could be conducted in accordance with commonly accepted standards of behaviour, and international law filled the gap. But although the law of nations took root and flowered with the sophistication of Renaissance Europe, the seeds of this particular hybrid plant are of far older lineage. They reach far back into history. Early Origins While the modern international system can be traced back some 400 years, certain of the basic concepts of international law can be discerned in political relationships thousands of years ago.49 Around 2100 bc, for instance, a solemn treaty was signed between the rulers of Lagash and Umma, the city-states situated in the area known to historians as Mesopotamia. It was inscribed on a stone block and concerned the establishment of a defined boundary to be respected by both sides under pain of alienating a number of Sumerian gods.50

­ esearch Handbook On The Theory And History Of International Law (ed. A. O R ­ rakhelashvili), London, 2011; S. Neff, Justice Among Nations: A History of International Law, Harvard, 2014; E. Jouannet, The Liberal-Welfarist Law of Nations: A History of International Law, Cambridge, 2012; W. Grewe, The Epochs of International Law (trans. and rev. M. Byers), New York, 2000; A. Cassese, International Law in a Divided World, Oxford, 1986, and Cassese, International Law, 2nd edn, Oxford, 2005, Chapter 2; H. Thierry, ‘L’Evolution du Droit International’, 222 HR, 1990 iii, p. 9; P. Guggenheim, ‘Contribution à l’Histoire des Sources du Droit des Gens’, 94 HR, 1958 ii, p. 5; D. Gaurier, Histoire du Droit International Public, Rennes, 2005; D. Korff, ‘Introduction à l’Histoire de Droit International Public’, 1 HR, 1923 i, p. 1; P. Le Fur, ‘Le Développement Historique de Droit International’, 41 HR, 1932 iii, p. 501; O. Yasuaki, ‘When Was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilisational Perpective’, 2 Journal of the History of International Law, 2000, p. 1, and A. Kemmerer, ‘The Turning Aside: On International Law and its History’, in Progress in International Organisation (ed. R.A. Miller and R. Bratspies), Leiden, 2008, p. 71. For a general bibliography, see P. Macalister-Smith and J. Schwietzke, ‘Literature and Documentary Sources relating to the History of International Law’, 1 Journal of the History of International Law, 1999, p. 136. 49 See D.J. Bederman, International Law in Antiquity, Cambridge, 2001. 50 Nussbaum, Law of Nations, pp. 1–2. Note the discovery in the excavated city of Ebla, the capital of a civilisation at least 4,500 years old, of a copy of a political treaty between Ebla and the city of Abarsal: see Times Higher Education Supplement, 19 May 1995, p. 20. See also R. Cohen, On Diplomacy in the Ancient Near East: The Amarna Letters, Discussion Paper of the Centre for the Study of Diplomacy, University of Leicester, 1995; O. Butkevych, ‘History of Ancient International Law: Challenges and Prospects’, 5  Journal of the History of International Law, 2003, p. 189; A. Altman, ‘Tracing the Earliest Recorded Concepts of International Law. The Early Dynastic Period in Southern Mesopotamia’, 6 Journal of the History of International Law, 2004, p. 153, and ‘Tracing the Earliest Recorded Concepts of International Law. (2) The Old Akkadian and Ur iii Periods in Mesopotamia’, 7 Journal of the History of International Law, 2005, p. 115. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The next major instance known of an important, binding, international treaty is that concluded over 1,000 years later between Rameses II of Egypt and the king of the Hittites for the establishment of eternal peace and brotherhood.51 Other points covered in that agreement signed, it would seem, at Kadesh, north of Damascus, included respect for each other’s territorial integrity, the termination of a state of aggression and the setting up of a form of defensive alliance. Since that date many agreements between the rival Middle Eastern powers were concluded, usually aimed at embodying in a ritual form a state of subservience between the parties or attempting to create a political alliance to contain the influence of an over-powerful empire.52 The role of ancient Israel must also be noted. A universal ethical stance coupled with rules relating to warfare were handed down to other peoples and religions and the demand for justice and a fair system of law founded upon strict morality permeated the thought and conduct of subsequent generations.53 For example, the Prophet Isaiah declared that sworn agreements, even where made with the enemy, must be performed.54 Peace and social justice were the keys to man’s existence, not power. After much neglect, there is now more consideration of the cultures and standards that evolved, before the birth of Christ, in the Far East, in the I­ ndian55 and Chinese56 civilisations. Many of the Hindu rules displayed a growing sense 51 Nussbaum, Law of Nations, pp. 1–2. 52 Preiser emphasises that the era between the seventeenth and fifteenth centuries bc witnessed something of a competing state system involving five independent (at various times) states: Bernhardt, Encyclopedia, vol. vii, pp. 133–4. 53 See P. Weil, ‘Le Judaisme et le Développement du Droit International’, 151 HR, 1976, p. 253, and S. Rosenne, ‘The Influence of Judaism on International Law’, Nederlands Tijdschrift voor International Recht, 1958, p. 119. 54 See Nussbaum, Law of Nations, p. 3. 55 Ibid. See also C.H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies, Leiden, 1967, and Alexandrowicz, ‘The Afro-Asian World and the Law of Nations (Historical Aspects)’, 123 HR, 1967, p. 117; L. Chatterjee, International Law and Inter-State Relations in Ancient India, 1958; Nagendra Singh, ‘The Distinguishing Characteristics of the Concept of the Law of Nations as it Developed in Ancient India’, Liber Amicorum for Lord Wilberforce (ed. A. Bos and I. Brownlie), Oxford, 1987, p. 91; R.P. Anand, International Law and the Developing Countries, The Hague, 1987; International Law and Practice in Ancient India (ed. H.S. Bhatia), New Delhi, 1977; Nagendra Singh, India and International Law, New Delhi, 1969, and P. Bandyopadhyay, International Law and Custom in Ancient India, New Delhi, 1982. 56 Nussbaum, Law of Nations, p. 4; Liu Tchoan Pas, Le Droit des Gens et de la Chine Antique, Paris, 2 vols., 1926; P. Gong, The Standard of ‘Civilisation’ in International Society, 1984, pp. 130–63; pp. 164–200 with regard to Japan; pp. 201–37 with regard to Siam; I.C.Y. Hsu,

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of morality and generosity and the Chinese Empire devoted much thought to harmonious relations between its constituent parts. Regulations controlling violence and the behaviour of varying factions with regard to innocent civilians were introduced and ethical values instilled in the education of the ruling classes. In times of Chinese dominance, a regional tributary-states system operated which fragmented somewhat in times of weakness, but this remained culturally alive for many centuries. However, the predominant approach of ancient civilisations was geographically and culturally restricted. There was no conception of an international community of states co-existing within a defined framework. The scope for any ‘international law’ of states was extremely limited and all that one can point to is the existence of certain ideals, such as the sanctity of treaties, which have continued to this day as important elements in society. But the notion of a universal community with its ideal of world order was not in evidence. The era of classical Greece, from about the sixth century bc and onwards for a couple of hundred years, has, one must note, been of overwhelming significance for European thought. Its critical and rational turn of mind, its constant questioning and analysis of man and nature and its love of argument and debate were spread throughout Europe and the Mediterranean world by the Roman Empire which adopted Hellenic culture wholesale, and penetrated Western consciousness with the Renaissance. However, Greek awareness was limited to their own competitive city-states and colonies. Those of different origin were barbarians not deemed worthy of association. The value of Greece in a study of international law lies partly in the philosophical, scientific and political analyses bequeathed to mankind and partly in the fascinating state of inter-relationship built up within the Hellenistic world.57 Numerous treaties linked the city-states together in a network of commercial and political associations. Rights were often granted to the citizens of the states in each other’s territories and rules regarding the sanctity China’s Entrance into the Family of Nations, Harvard, 1960; K. Iriye, ‘The Principles of ­International Law in the Light of Confucian Doctrine’, 120 HR, 1967, p. 1, and Wang Tieya, ‘International Law in China’, 221 HR, 1990 ii, p. 195. See also C.F. Amerasinghe, ‘South Asian Antecedents of International Law’, in International Law: Theory and Practice (ed. K. Wellens), The Hague, 1998, p. 3, and E.Y.-J. Lee, ‘Early Development of Modern International Law in East Asia – With Special Reference to China, Japan and Korea’, 4  J­ ournal of the History of International Law, 2002, p. 42. 57 Nussbaum, Law of Nations, pp. 5–9, and A. Lanni, ‘The Laws of War in Ancient Greece’, Harvard Law School Public Law Research Paper No. 07–24, 2007. See also G. Ténékidès, ‘Droit International et Communautés Fédérales dans la Grèce des Cités’, 90 HR, 1956, p. 469; S.L. Ager, Interstate Arbitrations in the Greek World, 337–90 bc, Berkeley, 1996, and Bernhardt, Encyclopedia, vol. vii, pp. 154–6.

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and ­protection of diplomatic envoys developed. Certain practices were essential before the declaration of war, and the horrors of war were somewhat ­ameliorated by the exercise, for example, of religious customs regarding sanctuaries. But no overall moral approach similar to those emerging from Jewish and Hindu thought, particularly, evolved. No sense of a world community can be traced to Greek ideology in spite of the growth of Greek colonies throughout the Mediterranean area. This was left to the able administrators of the Roman Empire.58 The Romans had a profound respect for organisation and the law.59 The law knitted together their empire and constituted a vital source of reference for every inhabitant of the far-flung domain. The early Roman law (the jus civile) applied only to Roman citizens. It was formalistic and hard and reflected the status of a small, unsophisticated society rooted in the soil. It was totally unable to provide a relevant background for an expanding, developing nation This need was served by the creation and progressive augmentation of the jus gentium. This provided simplified rules to govern the relations between foreigners, and between foreigners and citizens. The instrument through which this particular system evolved was the official known as the Praetor Peregrinus, whose function it was to oversee all legal relationships, including bureaucratic and commercial matters, within the empire. The progressive rules of the jus gentium gradually overrode the narrow jus civile until the latter system ceased to exist. Thus, the jus gentium became the common law of the Roman Empire and was deemed to be of universal application. It is this all-embracing factor which so strongly distinguishes the Roman from the Greek experience, although, of course, there was no question of the acceptance of other nations on a basis of equality and the jus gentium remained a ‘national law’ for the Roman Empire. One of the most influential of Greek concepts taken up by the Romans was the idea of Natural Law.60 This was formulated by the Stoic philosophers of the third century bc and their theory was that it constituted a body of rules of universal relevance. Such rules were rational and logical, and because the ideas and precepts of the ‘law of nature’ were rooted in human intelligence, it followed that such rules could not be restricted to any nation or any group but 58 Bernhardt, Encyclopedia, vol. vii, pp. 136–9, and Nussbaum, Law of Nations, pp. 10–16. 59 See e.g. A. Jolowicz, Historical Introduction to Roman Law, 3rd edn, London, 1972. See also A. Watson, International Law in Archaic Rome, Baltimore, 1993 and The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (ed. B. Kingsbury and B. Straumann), Oxford, 2010. 60 See e.g. Lloyd, Introduction to Jurisprudence, pp. 79–169.

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were of worldwide relevance. This element of universality is basic to modern doctrines of international law and the Stoic elevation of human powers of logical deduction to the supreme pinnacle of ‘discovering’ the law foreshadows the rational philosophies of the West. In addition to being a fundamental concept in legal theory, Natural Law is vital to an understanding of international law, as well as being an indispensible precursor to contemporary concern with human rights. Certain Roman philosophers incorporated those Greek ideas of Natural Law into their own legal theories, often as a kind of ultimate justification of the jus gentium, which was deemed to enshrine rational principles common to all civilised nations. However, the law of nature was held to have an existence over and above that of the jus gentium. This led to much confusion over the exact relationship between the two ideas and different Roman lawyers came to different conclusions as to their identity and characteristics. The important factors though that need to be noted are the theories of the universality of law and the rational origins of legal rules that were founded, theoretically at least, not on superior force but on superior reason. The classical rules of Roman law were collated in the Corpus Juris Civilis, a compilation of legal material by a series of Byzantine philosophers completed in ad 534.61 Such a collection was to be invaluable when the darkness of the early Middle Ages, following the Roman collapse, began gradually to evaporate. For here was a body of developed laws ready made and awaiting transference to an awakening Europe. At this stage reference must be made to the growth of Islam.62 Its approach to international relations and law was predicated upon a state of hostility ­towards the non-Moslem world and the concept of unity, Dar al-Islam, as between Moslem countries. Generally speaking, humane rules of warfare were 61 62

See generally with regard to Byzantium, M. De Taube, ‘L’Apport de Byzance au Développement du Droit International Occidental’, 67 HR, 1939, p. 233, and S. Verosta, ‘International Law in Europe and Western Asia between 100–650 ad’, 113 HR, 1964, p. 489. See e.g. M. Al Ghunaimi, The Muslim Conception of International Law and the Western ­Approach, The Hague, 1968; A. Draz, ‘Le Droit International Public et l’Islam’, 5 Revue Egyptienne de Droit International, p. 17; C. Stumpf, ‘Christian and Islamic Traditions of Public International Law’, 7 Journal of the History of International Law, 2005, p. 69; H. Khadduri, ‘Islam and the Modern Law of Nations’, 50 AJIL, 1956, p. 358, and Khadduri, War and Peace in the Law of Islam, 2nd edn, Baltimore, 1962, and S. Mahmassani, ‘The Principles of International Law in the Light of Islamic Doctrine’, 117 HR, 1966, p. 205. See also ‘L’Asile et les Refugies dans la Tradition Musulmane’, Report of the Sixty-Ninth Conference, International Law Association, London, 2000, p. 305, and Y. Ben Achour Yadh, ‘La Civilisation Islamique et le Droit International’, rgdip, 2006, p. 19.

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developed and the ‘peoples of the book’ (Jews and Christians) were treated better than non-believers, although in an inferior position to Moslems. Once the period of conquest was over and power was consolidated, norms g­ overning conduct with non-Moslem states began to develop. The law dealing with diplomats was founded upon notions of hospitality and safety (aman), while rules governing international agreements grew out of the concept of respecting promises made.63 The Middle Ages and the Renaissance The Middle Ages were characterised by the authority of the organised Church and the comprehensive structure of power that it commanded.64 All Europe was of one religion, and the ecclesiastical law applied to all, notwithstanding tribal or regional affiliations. For much of the period, there were struggles between the religious authorities and the rulers of the Holy Roman Empire. These conflicts were eventually resolved in favour of the Papacy, but the victory over secularism proved of relatively short duration. Religion and a common legacy derived from the Roman Empire were strongly unifying influences, while political and regional rivalries were not. But before a recognised system of international law could be created, social changes were essential. Of particular importance during this era were the authority of the Holy Roman Empire and the supranational character of canon law.65 Nevertheless, commercial and maritime law developed apace. English law established the Law Merchant, a code of rules covering foreign traders, and this was declared to be of universal application.66 Throughout Europe, mercantile courts were set up to settle disputes between tradesmen at the various fairs, and while it is not possible to state that a Continental Law Merchant came into being, a network of common regulations and practices weaved its way across the commercial fabric of Europe and constituted an embryonic international trade law.67 Similarly, maritime customs began to be accepted throughout the Continent. Founded upon the Rhodian Sea Law, a Byzantine work, many of whose rules were enshrined in the Rolls of Oleron in the twelfth century, and other 63 See Bernhardt, Encyclopedia, vol. vii, pp. 141–2, and Nussbaum, Law of Nations, pp. 51–4. 64 Nussbaum, Law of Nations, pp. 17–23, and Bernhardt, Encyclopedia, vol. vii, pp. 143–9. 65 Note in particular the influence of the Church on the rules governing warfare and the binding nature of agreements: see Nussbaum, Law of Nations, pp. 17–18, and Bernhardt Encyclopedia, vol. vii, pp. 146–7. See also M. Keen, The Laws of War in the Late Middle Ages, London, 1965. 66 See G. Holdsworth, A History of English Law, London, 1924, vol. 5, pp. 60–3. 67 Ibid., pp. 63–129.

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maritime textbooks, a series of commonly applied customs relating to the sea permeated the naval powers of the Atlantic and Mediterranean coasts.68 Such commercial and maritime codes, while at this stage merely expressions of national legal systems, were amongst the forerunners of ­international law  because they were created and nurtured against a backcloth of cross-­ national contacts and reflected the need for rules that would cover ­international situations. Such rules, growing out of the early Middle Ages, constituted the seeds of international law, but before they could flourish, European thought had first to be developed by that intellectual explosion known as the Renaissance. This complex of ideas changed the face of European society and ushered in the modern era of scientific, humanistic and individualistic thought.69 The collapse of the Byzantine Empire centred on Constantinople before the Turkish armies in 1453 drove many Greek scholars to seek sanctuary in Italy and enliven Western Europe’s cultural life. The introduction of printing during the fifteenth century provided the means to disseminate knowledge, and the undermining of feudalism in the wake of economic growth and the rise of the merchant classes provided the background to the new inquiring attitudes taking shape. Europe’s developing self-confidence manifested itself in a sustained drive overseas for wealth and luxury items. By the end of the fifteenth century, the Arabs had been ousted from the Iberian peninsula and the Americas reached. The rise of the nation-states of England, France and Spain in particular characterised the process of the creation of territorially consolidated independent units, in theory and doctrine, as well as in fact. This led to a higher degree of interaction between sovereign entities and thus the need to regulate such activities in a generally acceptable fashion. The pursuit of political power and supremacy became overt and recognised, as Machiavelli’s The Prince (1513) demonstrated. The city states of Italy struggled for supremacy and the Papacy too became a secular power. From these hectic struggles emerged many of the staples of modern international life: diplomacy, statesmanship, the theory of the balance of power and the idea of a community of states.70 Notions such as these are immediately appreciable and one can identify with the various manoeuvres for political supremacy. Alliances, betrayals, 68 Nussbaum, Law of Nations, pp. 29–31. Note also the influence of the Consolato del Mare, composed in Barcelona in the mid-fourteenth century, and the Maritime Code of Wisby (c. 1407) followed by the Hanseatic League. 69 See e.g. Friedmann, Changing Structure, pp. 114–16. 70 See G Mattingley, Renaissance Diplomacy, London, 1955.

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­ anipulations of state institutions and the drive for power are not unknown m to us. We recognise the roots of our society. It was the evolution of the concept of an international community of separate, sovereign, if competing, states, that marks the beginning of what is understood by international law. The Renaissance bequeathed the prerequisites of independent, critical thought and a humanistic, secular approach to life as well as the political framework for the future. But it is the latter factor which is vital to the subsequent growth of international law. The Reformation and the European religious wars that followed emphasised this, as did the growing power of the nations. In many ways these wars marked the decline of a continental system founded on religion and the birth of a continental system founded on the supremacy of the state. Throughout these countries the necessity was felt for a new conception of human as well as state relationships. This search was precipitated, as has been intimated, by the decline of the Church and the rise of what might be termed ‘free-thinking’. The theory of international law was naturally deeply involved in this reappraisal of political life and it was tremendously influenced by the rediscovery of Greco-Roman ideas. The Renaissance stimulated a rebirth of Hellenic studies and ideas of Natural Law, in particular, became popular. Thus, a distinct value-system to underpin international relations was brought into being and the law of nations was heralded as part of the universal law of nature. With the rise of the modern state and the emancipation of international relations, the doctrine of sovereignty emerged. This concept, first analysed systematically in 1576 in the Six Livres de la République by Jean Bodin, was intended to deal with the structure of authority within the modern state Bodin, who based his study upon his perception of the politics of Europe rather than on a theoretical discussion of absolute principles, emphasised the necessity for a sovereign power within the state that would make the laws. While such a sovereign could not be bound by the laws he himself instituted, he was subject to the laws of God and of nature.71 The idea of the sovereign as supreme legislator was in the course of time transmuted into the principle which gave the state supreme power vis-à-vis other states. The state was regarded as being above the law. Such notions as

71

See A Gardot, ‘Jean Bodin – Sa Place Parmi les Fondateurs du Droit International’, 50 HR, 1934, p. 549. See also, for a discussion of sovereignty and the treaty-making power in the late middle ages, T. Meron, ‘The Authority to Make Treaties in the Late Middle Ages’, 89 AJIL, 1995, p. 1.

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these formed the intellectual basis of the line of thought known as positivism which will be discussed later.72 The early theorists of international law were deeply involved with the ideas of Natural Law and used them as the basis of their philosophies. Included within that complex of Natural Law principles from which they constructed their theories was the significant merging of Christian and Natural Law ideas that occurred in the philosophy of St Thomas Aquinas.73 He maintained that Natural Law formed part of the law of God, and was the participation by rational creatures in the Eternal Law. It complemented that part of the Eternal Law which had been divinely revealed. Reason, declared Aquinas, was the essence of man and thus must be involved in the ordering of life according to the divine will. Natural Law was the fount of moral behaviour as well as of social and political institutions, and it led to a theory of conditional acceptance of authority with unjust laws being unacceptable. Aquinas’ views of the late thirteenth century can be regarded as basic to an understanding of present Catholic attitudes, but should not be confused with the later interpretation of Natural Law which stressed the concepts of natural rights. It is with such an intellectual background that Renaissance scholars approached the question of the basis and justification of a system of international law. Maine, a British historical lawyer, wrote that the birth of modern international law was the grandest function of the law of nature and while that is arguable, the point must be taken.74 International law began to emerge as a separate topic to be studied within itself, although derived from the principles of Natural Law. The Founders of Modern International Law The essence of the new approach to international law can be traced back to the Spanish philosophers of that country’s Golden Age.75 The leading figure of this school was Francisco Vitoria, Professor of Theology at the University of Salamanca (1480–1546). His lectures were preserved by his students and published posthumously. He demonstrated a remarkably progressive attitude for his time towards the Spanish conquest of the South American Indians and, contrary to the views prevalent until then, maintained that the Indian peoples should 72 73 74 75

See below, p. 35. [Editors’ note: not included in this Anthology]. Summa Theologia, English edn, 1927. H. Maine, Ancient Law, London, 1861, pp. 56 and 64–6. Note Preiser’s view that ‘[t]here was hardly a single important problem of international law until the middle of the 17th century which was not principally a problem of Spain and the allied Habsburg countries’: Bernhardt, Encyclopedia, vol. vii, p. 150. See also Nussbaum, Law of Nations, pp. 79–93.

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be regarded as nations with their own legitimate interests. War against them could only be justified on the grounds of a just cause. International law was founded on the universal law of nature and this meant that non-Europeans must be included within its ambit. However, Vitoria by no means advocated the recognition of the Indian nations as equal to the Christian states of Europe. For him, opposing the work of the missionaries in the territories was a just reason for war, and he adopted a rather extensive view as to the rights of the Spaniards in South America. Vitoria was no liberal and indeed acted on behalf of the Spanish Inquisition, but his lectures did mark a step forward in the right direction.76 Suárez (1548–1617) was a Jesuit and Professor of Theology who was deeply immersed in medieval culture. He noted that the obligatory character of international law was based upon Natural Law, while its substance derived from the Natural Law rule of carrying out agreements entered into.77 From a totally different background but equally, if not more, influential was Alberico Gentili (1552–1608). He was born in Northern Italy and fled to England to avoid persecution, having converted to Protestantism. In 1598 his De Jure Belli was published.78 It is a comprehensive discussion of the law of war and contains a valuable section on the law of treaties. Gentili, who became a professor at Oxford, has been called the originator of the secular school of thought in international law and he minimised the hitherto significant theological theses. It is, however, Hugo Grotius, a Dutch scholar, who towers over this period and has been celebrated, if a little exaggeratedly, as the father of international law. He was born in 1583 and was the supreme Renaissance man. A scholar of tremendous learning, he mastered history, theology, mathematics and the law.79 His primary work was the De Jure Belli ac Pacis, written during 1623 and 1624. It is an extensive work and includes rather more devotion to the 76 Nussbaum, Law of Nations, pp. 79–84, and Bernhardt, Encyclopedia, vol. vii, pp. 151–2. See also F. Vitoria, De Indis et de Jure Belli Relectiones, Classics of International Law, Washington, DC, 1917, and J.B. Scott, The Spanish Origin of International Law, Francisco de Vitoria and his Law of Nations, Washington, DC, 1934. See also I. de la Rasilla del Moral, ‘Francisco de Vitoria’s Unexpected Transformations and Reinterpretations for International Law’, 15 International Community Law Review, 2013, p. 287. 77 Nussbaum, Law of Nations, pp. 84–91. See also ibid., pp. 92–3 regarding the work of Ayala (1548–84). 78 Ibid., pp. 94–101. See also A. Van der Molen, Alberico Gentili and the Development of International Law, 2nd edn, London, 1968. 79 Nussbaum, Law of Nations, pp. 102–14. See also W.S.M. Knight, The Life and Works of Hugo Grotius, London, 1925, and ‘Commemoration of the Fourth Century of the Birth of ­Grotius’ (various articles), 182 HR, 1984, pp. 371–470.

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e­ xposition of private law notions than would seem appropriate today. He refers both to Vitoria and Gentili, the latter being of special influence with regard to many matters, particularly organisation of material. Grotius finally excised theology from international law and emphasised the irrelevance in such a study of any conception of a divine law. He remarked that the law of nature would be valid even if there were no God: a statement which, although suitably clothed in religious protestation, was extremely daring. The law of nature now reverted to being founded exclusively on reason. Justice was part of man’s social make-up and thus not only useful but essential. Grotius conceived of a comprehensive system of international law and his work rapidly became a university textbook. However, in many spheres he followed welltrodden paths. He retained the theological distinction between a just and an unjust war, a notion that was soon to disappear from treatises on international law, but which in some way underpins modern approaches to aggression, selfdefence and liberation. One of his most enduring opinions consists in his proclamation of the freedom of the seas. The Dutch scholar opposed the ‘closed seas’ concept of the Portuguese that was later elucidated by the English writer John Selden80 and emphasised instead the principle that the nations could not appropriate to themselves the high seas. They belonged to all. It must, of course, be mentioned, parenthetically, that this theory happened to accord rather nicely with prevailing Dutch ideas as to free trade and the needs of an expanding commercial empire. However, this merely points up what must not be disregarded, namely that concepts of law as of politics and other disciplines are firmly rooted in the world of reality, and reflect contemporary preoccupations. No theory develops in a vacuum, but is conceived and brought to fruition in a definite cultural and social environment. To ignore this is to distort the theory itself. Positivism and Naturalism Following Grotius, but by no means divorced from the thought of previous scholars, a split can be detected and two different schools identified. On the one hand there was the ‘naturalist’ school, exemplified by Samuel Pufendorf (1632–94),81 who attempted to identify international law completely with the law of nature; and on the other hand there were the exponents of ‘positivism’, who distinguished between international law and Natural Law and ­emphasised practical problems and current state practices. Pufendorf regarded Natural 80 In Mare Clausum Sive de Dominio Maris, 1635. 81 On the Law of Nature and of Nations, 1672. See also Nussbaum, Law of Nations, pp. 147–50.

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Law as a moralistic system, and misunderstood the direction of modern international law by denying the validity of the rules about custom. He also refused to acknowledge treaties as in any way relevant to a discussion of the basis of international law. Other ‘naturalists’ echoed those sentiments in minimising or ignoring the actual practices of states in favour of a theoretical construction of absolute values that seemed slowly to drift away from the complexities of political reality. One of the principal initiators of the positivist school was Richard Zouche (1590–1660), who lived at the same time as Pufendorf, but in England.82 While completely dismissing Natural Law, he paid scant regard to the traditional doctrines. His concern was with specific situations and his book contains many examples from the recent past. He elevated the law of peace above a systematic consideration of the law of war and eschewed theoretical expositions. In similar style Bynkershoek (1673–1743) stressed the importance of modern practice and virtually ignored Natural Law. He made great contributions to the developing theories of the rights and duties of neutrals in war, and after careful studies of the relevant facts decided in favour of the freedom of the seas.83 The positivist approach, like much of modern thought, was derived from the empirical method adopted by the Renaissance. It was concerned not with an edifice of theory structured upon deductions from absolute principles, but rather with viewing events as they occurred and discussing actual problems that had arisen. Empiricism as formulated by Locke and Hume84 denied the existence of innate principles and postulated that ideas were derived from experience. The scientific method of experiment and verification of hypotheses emphasised this approach. From this philosophical attitude, it was a short step to reinterpreting international law not in terms of concepts derived from reason but rather in terms of what actually happened between the competing states. What states actually do was the key, not what states ought to do given basic rules of the law of nature. Agreements and customs recognised by the states were the essence of the law of nations. Positivism developed as the modern nation-state system emerged, after the Peace of Westphalia in 1648, from the religious wars.85 It coincided, too, with 82 Nussbaum, Law of Nations, pp. 165–7. 83 Ibid., pp. 167–72. 84 See Friedmann, Legal Theory, pp. 253–5. 85 See L. Gross, ‘The Peace of Westphalia 1648–1948’, 42 AJIL, 1948, p. 20; Renegotiating Westphalia (ed. C. Harding and C.L. Lim), The Hague, 1999, especially Chapter 1, and S. ­Beaulac, ‘The Westphalian Legal Orthodoxy – Myth or Reality?’, 2 Journal of the History of International Law, 2000, p. 148.

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theories of sovereignty such as those propounded by Bodin and Hobbes,86 which underlined the supreme power of the sovereign and led to notions of the sovereignty of states. Elements of both positivism and naturalism appear in the works of Vattel (1714–67), a Swiss lawyer. His Droit des Gens was based on Natural Law principles yet was practically oriented. He introduced the doctrine of the equality of states into international law, declaring that a small republic was no less a sovereign than the most powerful kingdom, just as a dwarf was as much a man as a giant. By distinguishing between laws of conscience and laws of action and stating that only the latter were of practical concern, he minimised the importance of Natural Law.87 Ironically, at the same time that positivist thought appeared to demolish the philosophical basis of the law of nature and relegate that theory to history, it re-emerged in a modern guise replete with significance for the future. Natural Law gave way to the concept of natural rights.88 It was an individualistic assertion of political supremacy. The idea of the social contract, that an agreement between individuals pre-dated and justified civil society, emphasised the central role of the individual, and whether such a theory was interpreted pessimistically to demand an absolute sovereign as Hobbes declared, or optimistically to mean a conditional acceptance of ­authority as Locke maintained, it could not fail to be a revolutionary doctrine. The rights of man constitute the heart of the American89 and French Revolutions and the essence of modern democratic society. Yet, on the other hand, the doctrine of Natural Law has been employed to preserve the absoluteness of sovereignty and the sanctity of private possessions. The theory has a reactionary aspect because it could be argued that what was, ought to be, since it evolved from the social contract or was divinely ­ordained, depending upon how secular one construed the law of nature to be. The Nineteenth Century The eighteenth century was a ferment of intellectual ideas and rationalist philosophies that contributed to the evolution of the doctrine of international law. The nineteenth century by contrast was a practical, expansionist 86 87 88 89

Leviathan, 1651. See Nussbaum, Law of Nations, pp. 156–64. See also N. Onuf, ‘Civitas Maxima: Wolff, Vattel and the Fate of Republicanism’, 88 AJIL, 1994, p. 280. See e.g. J. Finnis, Natural Law and Natural Rights, Oxford, 1980, and R. Tuck, Natural Rights Theories, Cambridge, 1979. See e.g. N. Onuf and O. Onuf, Federal Unions, Modern World, Madison, 1994.

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and ­positivist era. The Congress of Vienna, which marked the conclusion of the ­Napoleonic wars, enshrined the new international order which was to be based upon the European balance of power. International law became Eurocentric, the preserve of the civilised, Christian states, into which overseas and foreign nations could enter only with the consent of and on the conditions laid down by the Western powers. Paradoxically, whilst international law became geographically internationalised through the expansion of the European empires, it became less universalist in conception and more, theoretically as well as practically, a reflection of European values.90 This theme, the relationship between universalism and particularism, appears time and again in international law. This century also saw the coming to independence of Latin America and the forging of a distinctive approach to certain elements of international law by the states of that region, especially with regard to, for example, diplomatic asylum and the treatment of foreign enterprises and nationals.91 There are many other features that mark the nineteenth century. Democracy and nationalism, both spurred on by the wars of the French revolution and empire, spread throughout the Continent and changed the essence of international relations.92 No longer the exclusive concern of aristocratic élites, foreign policy characterised both the positive and the negative faces of nationalism. Self-determination emerged to threaten the multinational empires of Central and Eastern Europe, while nationalism reached its peak in the unifications of Germany and Italy and began to exhibit features such as expansionism and doctrines of racial superiority. Democracy brought to the individual political influence and a say in government. It also brought home the realities of responsibility, for wars became the concern of all. Conscription was introduced throughout the Continent and large national armies replaced the small professional forces.93 The Industrial Revolution mechanised Europe, created the economic dichotomy of capital and labour and propelled Western influence throughout the world. All these factors created an enormous increase in the 90

91 92 93

See Nussbaum, Law of Nations, pp. 186–250, and, e.g., C.H. Alexandrowicz, The European– African Confrontation, Leiden, 1973. See also B. Bowden, ‘The Colonial Origins of International Law. European Expansion and the Classical Standard of Civilisation’, 7 Journal of the History of International Law, 2005, p. 1, and C. Sylvest, ‘International Law in NineteenthCentury Britain’, 75 byil, 2004, p. 9. See below, Chapters 3 and 14 respectively. See also H. Gros Espiell, ‘La Doctrine du Droit International en Amérique Latine avant la Première Conférence Panaméricaine’, 3 Journal of the History of International Law, 2001, p. 1. See especially A. Cobban, The Nation State and National Self-Determination, London, 1969. G. Best, Humanity in Warfare, London, 1980; Best, War and Law Since 1945, Oxford, 1994, and S. Bailey, Prohibitions and Restraints in War, Oxford, 1972.

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number and variety of both public and private international institutions, and international law grew rapidly to accommodate them.94 The development of trade and communications necessitated greater international co-operation as a matter of practical need. In 1815, the Final Act of the Congress of Vienna established the principle of freedom of navigation with regard to international waterways and set up a Central Commission of the Rhine to regulate its use. In 1856 a commission for the Danube was created and a number of other European rivers also became the subject of international agreements and arrangements. In 1865 the International Telegraphic Union was established and in 1874 the Universal Postal Union.95 European conferences proliferated and contributed greatly to the development of rules governing the waging of war. The International Committee of the Red Cross, founded in 1863, helped promote the series of Geneva Conventions beginning in 1864 dealing with the ‘humanisation’ of conflict, and the Hague Conferences of 1899 and 1907 established the Permanent Court of Arbitration and dealt with the treatment of prisoners and the control of warfare.96 ­Numerous other conferences, conventions and congresses emphasised the expansion of the rules of international law and the close network of international ­relations. In addition, the academic study of international law within higher education developed with the appointment of professors of the subject and the appearance of specialist textbooks emphasising the practice of states. Positivist theories dominate this century. The proliferation of the powers of states and the increasing sophistication of municipal legislation gave force to the idea that laws were basically commands issuing from a sovereign person or body. Any question of ethics or morality was irrelevant to a discussion of the validity of man-made laws. The approach was transferred onto the international scene and immediately came face to face with the reality of a lack of supreme authority. Since law was ultimately dependent upon the will of the sovereign in national systems, it seemed to follow that international law depended upon the will of the sovereign states. This implied a confusion of the supreme legislator within a state with the state itself and thus positivism had to accept the metaphysical identity of the state. The state had a life and will of its own and so was able to dominate

94 95 96

See e.g. Bowett’s Law of International Institutions, and The Evolution of International ­Organisations (ed. E. Luard), Oxford, 1966. See further below, Chapter 23. [Editors’ note: not included in this Anthology]. See further below, Chapter 21. [Editors’ note: not included in this Anthology].

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i­ nternational law. This stress on the abstract nature of the state did not appear in all positivist theories and was a late development.97 It was the German thinker Hegel who first analysed and proposed the doctrine of the will of the state. The individual was subordinate to the state, because the latter enshrined the ‘wills’ of all citizens and had evolved into a higher will, and on the external scene the state was sovereign and supreme.98 Such philosophies led to disturbing results in the twentieth century and provoked a re-awakening of the law of nature, dormant throughout the nineteenth century. The growth of international agreements, customs and regulations induced positivist theorists to tackle this problem of international law and the state; and as a result two schools of thought emerged. The monists claimed that there was one fundamental principle which underlay both national and international law. This was variously posited as ‘right’ or social solidarity or the rule that agreements must be carried out (pacta sunt servanda). The dualists, more numerous and in a more truly positivist frame of mind, emphasised the element of consent. For Triepel, another German theorist, international law and domestic (or municipal) law existed on separate planes, the former governing international relations, the latter relations between individuals and between the individual and the state. International law was based upon agreements between states (and such agreements included, according to Triepel, both treaties and customs) and because it was dictated by the ‘common will’ of the states it could not be unilaterally altered.99 This led to a paradox. Could this common will bind individual states and, if so, why? It would appear to lead to the conclusion that the will of the sovereign state could give birth to a rule over which it had no control. The state will was not, therefore, supreme but inferior to a collection of states’ wills. Triepel did not discuss these points, but left them open as depending upon legal matters. Thus did positivist theories weaken their own positivist outlook by regarding the essence of law as beyond juridical description. The nineteenth century also saw the publication of numerous works on international law, which emphasised state practice and the importance of the behaviour of countries to the development of rules of international law.100 97 98

See below, Chapter 2. [Editors’ note: not included in this Anthology]. See e.g. S. Avineri, Hegel’s Theory of the Modern State, London, 1972, and Friedmann, Legal Theory, pp. 164–76. 99 Friedmann Legal Theory, pp. 576–7. See also below, Chapter 4. 100 See e.g. H. Wheaton, Elements of International Law, New York, 1836; W.E. Hall, A Treatise on International Law, Oxford, 1880; Von Martens, Völkerrecht, Berlin, 2 vols., 1883–6;

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The Twentieth Century The First World War marked the close of a dynamic and optimistic century. European empires ruled the world and European ideologies reigned supreme, but the 1914–18 Great War undermined the foundations of European civilisation. Self-confidence faded, if slowly, the edifice weakened and the universally accepted assumptions of progress were increasingly doubted. Self-questioning was the order of the day and law as well as art reflected this. The most important legacy of the 1919 Peace Treaty from the point of view of international relations was the creation of the League of Nations.101 The old anarchic system had failed and it was felt that new institutions to preserve and secure peace were necessary. The League consisted of an Assembly and an executive Council, but was crippled from the start by the absence of the United States and the Soviet Union for most of its life and remained a basically European organisation. While it did have certain minor successes with regard to the maintenance of international order, it failed when confronted with determined aggressors. ­Japan invaded China in 1931 and two years later withdrew from the League. Italy attacked Ethiopia, and Germany embarked unhindered upon a series of internal and external aggressions. The Soviet Union, in a final gesture, was ­expelled from the organisation in 1939 following its invasion of Finland. Nevertheless much useful groundwork was achieved by the League in its short existence and this helped to consolidate the United Nations later on.102 The Permanent Court of International Justice was set up in 1921 at The Hague and was succeeded in 1946 by the International Court of Justice.103 The International Labour Organization was established soon after the end of the First World War and still exists today, and many other international institutions were inaugurated or increased their work during this period. Other ideas of international law that first appeared between the wars included the system of mandates, by which colonies of the defeated powers were administered by the Allies for the benefit of their inhabitants rather than being annexed outright, and the attempt was made to provide a form of minority protection guaranteed by the League. This latter creation was not a great success but it paved the way for later concern to secure human rights.104

101 102 103 104

­Pradier-Fodéré, Traité de Droit International Public, Paris, 8 vols., 1855–1906; and Fiore, Il Diritto Internazionale Codificato e la Sua Sanzione Giuridica, 1890. See Nussbaum, Law of Nations, pp. 251–90, and below, Chapter 22. [Editors’ note: not included in this Anthology]. See also G. Scott, The Rise and Fall of the League of Nations, London, 1973. See below, Chapter 19. [Editors’ note: not included in this Anthology]. See below, Chapter 6. [Editors’ note: not included in this Anthology].

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After the trauma of the Second World War the League was succeeded in 1946 by the United Nations Organisation, which tried to remedy many of the defects of its predecessor. It established its site at New York, reflecting the realities of the shift of power away from Europe, and determined to become a truly universal institution. The advent of decolonisation fulfilled this expectation and the General Assembly of the United Nations currently has 193 member states.105 Many of the trends which first came to prominence in the nineteenth century have continued to this day. The vast increase in the number of international agreements and customs, the strengthening of the system of arbitration and the development of international organisations have established the essence of international law as it exists today. Communist Approaches to International Law Classic Marxist theory described law and politics as the means whereby the ruling classes maintained their domination of society. The essence of economic life was the ownership of the means of production, and all power flowed from this control. Capital and labour were the opposing theses and their mutual antagonism would eventually lead to a revolution out of which a new, nonexploitive form of society would emerge.106 National states were dominated by the capitalist class and would have to disappear in the re-organising process. Indeed, the theory was that law and the state would wither away once a new basis for society had been established107 and, because classical international law was founded upon the state, it followed that it too would go. However, the reality of power and the existence of the USSR surrounded by capitalist nations led to a modification in this approach. The international system of states could not be changed overnight into a socialist order, so a period of transition was inevitable. Nevertheless basic changes were seen as having been wrought. Professor Tunkin, for example, emphasised that the Russian October revolution produced a new series of international legal ideas. These, it is noted, can be divided into three basic, interconnected groups: (a) principles of socialist internationalism in relations between socialist states, (b) principles of equality and self-determination of nations and peoples, primarily aimed against

105 Following the admission of South Sudan in 2011. 106 See Lloyd, Introduction to Jurisprudence, Chapter 10, and Friedmann, Legal Theory, Chapter 29. 107 Engels, Anti-Duhring, quoted in Lloyd, Introduction to Jurisprudence, pp. 773–4.

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c­ olonialism, and (c) principles of peaceful coexistence aimed at relations between states with different social systems.108 We shall briefly look at these concepts in this section, but first a historical overview is necessary. During the immediate post-revolution period, it was postulated that a ­transitional phase had commenced. During this time, international law as a method of exploitation would be criticised by the socialist state, but it would still be recognised as a valid system. The two Soviet theorists Korovin and Pashukanis were the dominant influences in this phase. The transitional period demanded compromises in that, until the universal victory of the revolution, some forms of economic and technical co-operation would be required since they were fundamental for the existence of the international social order.109 Pashukanis expressed the view that international law was an interclass law within which two antagonistic class systems would seek accommodation until the victory of the socialist system. Socialism and the Soviet Union could still use the legal institutions developed by and reflective of the capitalist system.110 However, with the rise of Stalinism and the ‘socialism in one country’ call, the position hardened. Pashukanis altered his line and recanted. International law was not a form of temporary compromise between capitalist states and the USSR but rather a means of conducting the class war. The Soviet Union was bound only by those rules of international law which accorded with its purposes.111 The new approach in the late 1930s was reflected politically in Russia’s ­successful attempt to join the League of Nations and its policy of wooing the Western powers, and legally by the ideas of Vyshinsky. He adopted a more legalistic view of international law and emphasised the Soviet acceptance of such principles as national self-determination, state sovereignty and the equality of

108 Theory of International Law, London, 1974, p. 4, and International Law (ed. G.I. Tunkin), Moscow, 1986, Chapter 3. See also B.S. Chimni, International Law and World Order, New Delhi, 1993, Chapter 5; K. Grzybowski, Soviet Public International Law, Leiden, 1970, especially Chapter 1, and generally H. Baade, The Soviet Impact on International Law, Leiden, 1964, and Friedmann, Legal Theory, pp. 327–40. See also R. St J. Macdonald, ‘Rummaging in the Ruins, Soviet International Law and Policy in the Early Years: Is Anything Left?’, in Wellens, International Law, p. 61, and International Law on the Left: Re-examining Marxist Legacies (ed. S. Marks), Cambridge, 2008. 109 Tunkin, Theory of International Law, p. 5. 110 Ibid., pp. 5–6. See also H. Babb and J. Hazard, Soviet Legal Philosophy, Cambridge, MA, 1951. 111 Grzybowski, Soviet Public International Law, pp. 6–9.

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states, but not others. The role of international law did not constitute a single international legal system binding all states. The Soviet Union would act in pursuance of Leninist–Stalinist foreign policy ideals and would not be bound by the rules to which it had not given express consent.112 The years that followed the Second World War saw a tightening up of Soviet doctrine as the Cold War gathered pace, but with the death of Stalin and the succession of Khrushchev a thaw set in. In theoretical terms the law of the transitional stage was replaced by the international law of peaceful coexistence. War was no longer regarded as inevitable between capitalist and socialist countries and a period of mutual tolerance and co-operation was inaugurated.113 Tunkin recognised that there was a single system of international law of universal scope rather than different branches covering socialist and capitalist countries, and that international law was founded upon agreements between states which are binding upon them. He defined contemporary general international law as: the aggregate of norms which are created by agreement between states of different social systems, reflect the concordant wills of states and have a generally democratic character, regulate relations between them in the process of struggle and co-operation in the direction of ensuring peace and peaceful co-existence and freedom and independence of peoples, and are secured when necessary by coercion effectuated by states individually or collectively.114 It is interesting to note the basic elements here, such as the stress on state sovereignty, the recognition of different social systems and the aim of peaceful co-existence. The role of sanctions in law is emphasised and reflects much of the positivist influence upon Soviet thought. Such preoccupations were also reflected in the definition of international law contained in the leading Soviet textbook by Professor Kozhevnikov and others where it was stated that: international law can be defined as the aggregate of rules governing ­relations between states in the process of their conflict and co-operation, 112 Ibid., p. 9. 113 Ibid., pp. 16–22. See also R. Higgins, Conflict of Interests, London, 1964, part iii. 114 Theory of International Law, p. 251. See also G.I. Tunkin, ‘Co-existence and International Law’, 95 HR, 1958, pp. 1, 51 ff., and E. McWhinney, ‘Contemporary Soviet General Theory of International Law: Reflections on the Tunkin Era’, 25 Canadian yil, 1989, p. 187.

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designed to safeguard their peaceful co-existence, expressing the will of the ruling classes of these states and defended in case of need by coercion applied by states individually or collectively.115 Originally, treaties alone were regarded as proper sources of international law but custom became accepted as a kind of tacit or implied agreement with great stress laid upon opinio juris or the legally binding element of custom. While state practice need not be general to create a custom, its recognition as a legal form must be.116 Peaceful co-existence itself rested upon certain basic concepts, for example non-intervention in the internal affairs of other states and the sovereignty of states. Any idea of a world authority was condemned as a violation of the latter principle. The doctrine of peaceful co-existence was also held to include such ideas as good neighbourliness, international cooperation and the observance in good faith of international obligations. The concept was regarded as based on specific trends of laws of societal development and as a specific form of class struggle between socialism and capitalism, one in which armed conflict is precluded.117 It was an attempt, in essence, to reiterate the basic concepts of international law in a way that was taken to reflect an ideological trend. But it must be emphasised that the principles themselves have long been accepted by the international community. While Tunkin at first attacked the development of regional systems of international law, he later came round to accepting a socialist law which reflected the special relationship between communist countries. The Soviet interventions in eastern Europe, particularly in Czechoslovakia in 1968, played a large part in augmenting such views.118 In the Soviet view relations between socialist (communist) states represented a new, higher type of international relations and a socialist international law. Common socio-economic factors and a ­political community created an objective basis for lasting friendly relations whereas, by contrast, international capitalism involved the exploitation of the weak by the strong. The principles of socialist or proletarian internationalism 115 International Law, Moscow, 1957, p. 7. 116 Theory of International Law, p. 118. See also G.I. Tunkin, ‘The Contemporary Soviet Theory of International Law’. Current Legal Problems, London, 1978, p. 177. 117 Tunkin, ‘Soviet Theory’, pp. 35–48. See also F. Vallat, ‘International Law – A Forward Look’, 18 ybwa, 1964, p. 251; J. Hazard, ‘Codifying Peaceful Co-existence’, 55 AJIL, 1961, pp. 111–12; E. McWhinney, Peaceful Co-existence and Soviet–Western International Law, Leiden, 1964, and K. Grzybowski, ‘Soviet Theory of International Law for the Seventies’, 77 AJIL, 1983, p. 862. 118 See Grzybowski, Soviet Public International Law, pp. 16–22.

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constituted a unified system of international legal principles between countries of the socialist bloc arising by way of custom and treaty. Although the basic principles of respect for state sovereignty, non-interference in internal affairs and equality of states and peoples existed in general international law, the same principles in socialist international law were made more positive by the lack of economic rivalry and exploitation and by increased co-operation. Accordingly, these principles incorporated not only material obligations not to violate each other’s rights, but also the duty to assist each other in enjoying and defending such rights against capitalist threats.119 The Soviet emphasis on territorial integrity and sovereignty, while designed in practice to protect the socialist states in a predominantly capitalist environment, proved of great attraction to the developing nations of the Third World, anxious too to establish their own national identities and counteract Western financial and cultural influences. With the decline of the Cold War and the onset of perestroika (­re-structuring) in the Soviet Union, a process of re-evaluation in the field of international legal theory took place.120 The concept of peaceful coexistence was modified and the notion of class warfare eliminated from the Soviet political lexicon. Global interdependence and the necessity for international co-operation were emphasised, as it was accepted that the tension between capitalism and socialism no longer constituted the major conflict in the contemporary world and that beneath the former dogmas lay many common interests.121 The essence of new Soviet thinking was stated to lie in the priority of universal human values and the resolution of global problems, which is directly linked to the growing importance of international law in the world community. It was also pointed out that international law had to be universal and not artificially divided into capitalist, socialist and Third World ‘international law’ systems.122 Soviet writers and political leaders accepted that activities such as the interventions in Czechoslovakia in 1968 and Afghanistan in 1979 were contrary to international law, while the attempt to create a state based on the rule of law was seen as requiring the strengthening of the international legal system and 119 Tunkin, Theory of International Law, pp. 431–43. 120 See, for example, Perestroika and International Law (ed. A. Carty and G. Danilenko), Edinburgh, 1990; R. Müllerson, ‘Sources of International Law: New Tendencies in Soviet Thinking’, 83 AJIL, 1989, p. 494; V. Vereshchetin and R. Müllerson, ‘International Law in an Interdependent World’, 28 Columbia Journal of Transnational Law, 1990, p. 291, and R. Quigley, ‘Perestroika and International Law’, 82 AJIL, 1988, p. 788. 121 Vereshchetin and Müllerson, ‘International Law’, p. 292. 122 Ibid.

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the rule of law in international relations. In particular, a renewed emphasis upon the role of the United Nations became evident in Soviet policy.123 The dissolution of the Soviet Union in 1991 marked the end of the Cold War and the re-emergence of a system of international relations based upon multiple sources of power untrammelled by ideological determinacy. From that point,124 Russia as the continuation of the former Soviet Union (albeit in different political and territorial terms) entered into the Western political system and defined its actions in terms of its own national interests free from principled hostility. The return to statehood of the Baltic states and the ­independence of the other former republics of the Soviet Union, coupled with the collapse of Yugoslavia, has constituted a political upheaval of major significance. The Cold War had imposed a dualistic superstructure upon international relations that had had implications for virtually all serious international political disputes and had fettered the operations of the United Nations in particular. Although the Soviet regime had been changing its approach quite significantly, the formal demise both of the communist system and of the state itself altered the nature of the international system and this has inevitably had consequences for international law.125 The ending of inexorable superpower confrontation has led to an increase in instability in Europe and emphasised paradoxically both the revitalisation and the limitations of the United Nations. While relatively little has previously been known of Chinese attitudes, a few points can be made. Western concepts are regarded primarily as aimed at preserving the dominance of the bourgeois class on the international scene. Soviet views were partially accepted but since the late 1950s and the growing estrangement between the two major communist powers, the Chinese concluded that the Russians were interested chiefly in maintaining the status quo and Soviet-American superpower supremacy. The Soviet concept of peaceful co-existence as the mainstay of contemporary international law was treated with particular suspicion and disdain.126

123 See Quigley, ‘Perestroika’, p. 794. 124 See e.g. R. Müllerson, International Law, Rights and Politics, London, 1994. See also The End of the Cold War (ed. P. Allan and K. Goldmann), Dordrecht, 1992, and W.M. Reisman, ‘International Law after the Cold War’, 84 AJIL, 1990, p. 859. 125 See e.g. R. Bilder, ‘International Law in the “New World Order”: Some Preliminary Reflections’, 1 Florida State University Journal of Transnational Law and Policy, 1992, p. 1. 126 See H. Chiu, ‘Communist China’s Attitude towards International Law’, 60 AJIL, 1966, p. 245; J.K. Fairbank, The Chinese World Order, Cambridge, 1968; J. Cohen, China’s Practice of International Law, Princeton, 1972; Anglo-Chinese Educational Trust, China’s World

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The Chinese conception of law was, for historical and cultural reasons, very different from that developed in the West. ‘Law’ never attained the important place in Chinese society that it did in European civilisation.127 A sophisticated bureaucracy laboured to attain harmony and equilibrium, and a system of legal rights to protect the individual in the Western sense did not really develop. It was believed that society would be best served by example and established morality, rather than by rules and sanctions. This Confucian philosophy was, however, swept aside after the successful communist revolution, to be replaced by strict Marxism–Leninism, with its emphasis on class warfare.128 The Chinese seem to have recognised several systems of international law, for example, Western, socialist and revisionist (Soviet Union), and to have implied that only with the ultimate spread of socialism would a universal system be possible.129 International agreements are regarded as the primary source of international law and China has entered into many treaties and conventions and carried them out as well as other nations.130 One exception, of course, is China’s disavowal of the so-called ‘unequal treaties’ whereby Chinese territory was annexed by other powers, in particular the Tsarist Empire, in the nineteenth century.131 On the whole, international law has been treated as part of international politics and subject to considerations of power and expediency, as well as ideology. Where international rules conform with Chinese policies and interests, then they will be observed. Where they do not, they will be ignored. However, now that the isolationist phase of its history is over, relations with other nations established and its entry into the United Nations secured, China has adopted a more active role in international relations, an approach more View, London, 1979; J. Cohen and H. Chiu, People’s China and International Law, Princeton, 2 vols., 1974, and C. Kim, ‘The People’s Republic of China and the Charter-based International Legal Order’, 72 AJIL, 1978, p. 317. 127 See Lloyd, Introduction to Jurisprudence, pp. 760–3; S. Van der Sprenkel, Legal Institutions in Northern China, New York, 1962, and R. Unger, Law in Modern Society, New York, 1976, pp. 86–109. 128 Lloyd, Introduction to Jurisprudence, and H. Li, ‘The Role of Law in Communist China’, China Quarterly, 1970, p. 66, cited in Lloyd, Introduction to Jurisprudence, pp. 801–8. 129 See e.g. Cohen and Chiu, People’s China, pp. 62–4. See also Xue Hanqin, ‘Chinese Contemporary Perspectives on International Law: History, Culture and International Law’, 355 HR, 2012, p. 41. 130 Ibid., pp. 77–82, and part viii generally. 131 See e.g. I. Detter, ‘The Problem of Unequal Treaties’, 15 ICLQ, 1966, p. 1069; F. Nozari, ­Unequal Treaties in International Law, Stockholm, 1971; Chiu, ‘Communist China’s Attitude’, pp. 239–67, and L.-F. Chen, State Succession Relating to Unequal Treaties, Hamden, 1974.

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in keeping with its rapidly growing economic power. China has now become fully engaged in world politics and this has led to a legalisation of its view of international law, as indeed occurred with the Soviet Union. The ‘Third World’ In the evolution of international affairs since the Second World War one of the most decisive events has been the disintegration of the colonial empires and the birth of scores of new states in what was for a time termed the Third World. This thrust onto the scene states which carry with them a legacy of bitterness over their past status as well as a host of problems relating to their social, economic and political development.132 In such circumstances it was only natural that the structure and doctrines of international law would come under attack. The nineteenth century development of the law of nations founded upon Eurocentrism and imbued with the values of Christian, urbanised and expanding Europe133 did not, understandably enough, reflect the needs and interests of the newly independent states of the mid- and late twentieth century. It was felt that such rules had encouraged and then reflected their subjugation, and that changes were required.134 It is basically those ideas of international law that came to fruition in the nineteenth century that have been so clearly rejected, that is, those principles that enshrined the power and domination of the West.135 The underlying concepts of international law have not been discarded. On the contrary. The new nations have eagerly embraced the ideas of the sovereignty and equality of states and the principles of non-aggression and non-intervention, in their search for security within the bounds of a commonly accepted legal framework. While this new internationalisation of international law that has occurred in the last fifty years has destroyed its European–based homogeneity, it has

132 See e.g. R.P. Anand, ‘Attitude of the Afro-Asian States Towards Certain Problems of International Law’, 15 ICLQ, 1966, p. 35; T.O. Elias, New Horizons in International Law, Leiden, 1980, and Higgins, Conflict of Interests, part ii. See also Hague Academy of International Law, Colloque, The Future of International Law in a Multicultural World, especially pp. ­117–42, and Henkin, How Nations Behave, pp. 121–7. 133 See e.g. Verzijl, International Law in Historical Perspective, vol. i, pp. 435–6. See also B. Roling, International Law in an Expanded World, Leiden, 1960, p. 10. 134 The converse of this has been the view of some writers that the universalisation of international law has led to a dilution of its content: see e.g. Friedmann, Changing Structure, p. 6; J. Stone, Quest for Survival: The Role of Law and Foreign Policy, Sydney, 1961, p. 88, and J. Brierly, The Law of Nations, 6th edn, Oxford, p. 43. 135 See e.g. Alexandrowicz, European–African Confrontation.

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emphasised its universalist scope.136 The composition of, for example, both the International Court of Justice and the Security Council of the United Nations mirrors such developments. Article 9 of the Statute of the International Court of Justice points out that the main forms of civilisation and the principal legal systems of the world must be represented within the Court, and there is an arrangement that of the ten non-permanent seats in the Security Council five should go to Afro-Asian states and two to Latin American states (the others going to Europe and other states). The composition of the International Law Commission has also recently been increased and structured upon geographic lines.137 The influence of the new states has been felt most of all within the General Assembly, where they constitute a majority of the 193 member states.138 The content and scope of the various resolutions and declarations emanating from the Assembly are proof of their impact and contain a record of their fears, hopes and concerns. The Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960, for example, enshrined the right of colonies to obtain their sovereignty with the least possible delay and called for the recognition of the principle of self-determination. This principle, which is discussed elsewhere in this book,139 is regarded by most authorities as a settled rule of international law although with undetermined borders. Nevertheless, it symbolises the rise of the post-colonial states and the effect they are having upon the development of international law. Their concern for the recognition of the sovereignty of states is complemented by their support of the United Nations and its Charter and supplemented by their desire for ‘economic self-determination’ or the right of ­permanent sovereignty over natural resources.140 This expansion of international law into the field of economics was a major development of the twentieth century and is evidenced in myriad ways, for example, by the creation of the General Agreement on Tariffs and Trade, the United Nations Conference on Trade and ­Development, and the establishment of the International Monetary Fund and World Bank. 136 See F.C. Okoye, International Law and the New African States, London, 1972; T.O. Elias, Africa and the Development of International Law, Leiden, 1972, and Bernhardt, Encyclopedia, vol. vii, pp. 205–51. 137 By General Assembly resolution 36/39, twenty-one of the thirty-four members are to be nationals of Afro-Asian-Latin American states. 138 See above, note 105. 139 See below, Chapter 5, p. 183. [Editors’ note: not included in this Anthology]. 140 See below, Chapter 14, p. 601. [Editors’ note: not included in this Anthology].

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The interests of the new states of the Third World are often in conflict with those of the industrialised nations, witness disputes over nationalisations. But it has to be emphasised that, contrary to many fears expressed in the early years of the decolonisation saga, international law has not been discarded nor altered beyond recognition. Its framework has been retained as the new states, too, wish to obtain the benefits of rules such as those governing diplomatic relations and the controlled use of force, while campaigning against rules which run counter to their perceived interests. While the new countries share a common history of foreign dominance and underdevelopment, compounded by an awakening of national identity, it has to be recognised that they are not a homogeneous group. Widely differing cultural, social and economic attitudes and stages of development characterise them, and the rubric of the ‘Third World’ masks diverse political affiliations. On many issues the interests of the new states conflict with each other and this is reflected in the different positions adopted. The states possessing oil and other valuable natural resources are separated from those with few or none and the states bordering on oceans are to be distinguished from landlocked states. The list of diversity is endless and variety governs the make-up of the southern hemisphere to a far greater degree than in the north. It is possible that in legal terms tangible differences in approach may emerge in the future as the passions of decolonisation die down and the Western supremacy over international law is further eroded. This trend will also permit a greater understanding of, and greater recourse to, historical traditions and conceptions that pre-date colonisation and an increasing awareness of their validity for the future development of international law.141 In the medium term, however, it has to be recognised that with the end of the Cold War and the rapid development of Soviet (then Russian)–American co-operation, the axis of dispute is turning from East–West to North–South. This is beginning to manifest itself in a variety of issues ranging from economic law to the law of the sea and human rights, while the impact of modern ­technology has hardly yet been appreciated.142 Together with such factors, the 141 See e.g. H. Sarin, ‘The Asian–African States and the Development of International Law’, in Hague Academy Colloque, p. 117; Bernhardt, Encyclopedia, vol. vii, pp. 205–51, and R. Westbrook, ‘Islamic International Law and Public International Law: Separate Expressions of World Order’, 33 Va. jil, 1993, p. 819. See also C.W. Jenks, The Common Law of Mankind, Oxford, 1958, p. 169. Note also the references by the Tribunal in the Eritrea/ Yemen cases to historic title and regional legal traditions: see the judgment in Phase One: Territorial Sovereignty, 1998, 114 ilr, pp. 1, 37 ff. and Phase Two: Maritime Delimitation, 1999, 119 ilr, pp. 417, 448. 142 See e.g. M. Lachs, ‘Thoughts on Science, Technology and World Law’, 86 AJIL, 1992, p. 673.

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development of globalisation has put additional stress upon the traditional tension between universalism and particularism.143 Globalisation in the sense of interdependence of a high order of individuals, groups and corporations, both public and private, across national boundaries, might be seen as the ­universalisation of Western civilisation and thus the triumph of one special particularism. On the other hand, particularism (in the guise of cultural relativism) has sometimes been used as a justification for human rights abuses free from international supervision or criticism. 143 See Koskenniemi, Gentle Civilizer of Nations. See also G. Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order, Cambridge, 2004.

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Chapter 9

Arthur Watts, The International Rule of Law, 1993 Comment by Professor Robert McCorquodale, Director, BIICL The “rule of law” has been a general principle supported by a wide range of jurists and States. It had been considered to apply to the international system with, for example, the Declaration on Friendly Relations 1970 (which is often seen as clarifying the terms of the UN Charter) referring to the “paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations”. Yet when Sir Arthur Watts wrote this article in 1993, there had been little attempt to provide a definition of the international rule of law. Watts, who was the FCO Legal Adviser, as well as being a barrister, academic and international arbitrator,a brought considerable scholarly and practical expertise to his writings. In this article, Watts clarifies the core purposes of the rule of law, being to set out the fundamental principles characteristic of a legally ordered community and to provide the “quasi-constitutional framework” within which particular rules of law operate, as well as being a “counterweight” to political power. He distinguished the rule of law from rules of law (or what might now be called rule by law) being statements of what the law prescribes. He also raised the concern that a domestic rule of law may be difficult to apply to an international context, where the sovereignty of States needs to be balanced by the international rule of law. Watts sets out a clear and coherent description of the international rule of law, in which he makes a strong case for the need for it in the State-based international system: The protection of the interests of all states and the creation of international stability requires that state-to-state relations be subject to a longterm framework [of an international rule of law], which ensures that ­international law is applied in conformity with principles of justice … [and enables states to have a] stable, safe and predictable world in which they can better pursue their political and economic goals.

a See www.biicl.org/arthurwatts.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_010

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This context was eventually taken up in later international documents, such as the Declaration on the Rule of Law at the National and International Levels 2012. This article is innovative, as it is one of the few attempts to define the international rule of law (and there have been very few subsequently).b It is also important in showing its deep understanding of the international legal system. This article continues to have resonance today. b See R McCorquodale, ‘Defining the International Rule of Law’, 65 ICLQ (2016) 276.

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A. Watts, ‘The International Rule of Law’ (1993), 36 German Yearbook of International Law, pp. 15–45.

The International Rule of Law Arthur Watts I

Introduction

There is a little comfort to be derived from international crises, especially those involving resort to violence. However, some reassurance may be found in the readiness of international statesmen and politicians, in times of such crisis, to acknowledge the importance of the rule of law in international relations and to give it the emphasis which it merits but which, in more peaceful times, it often does not get. Yet the rule of law is more easily invoked than understood. While its fundamental importance is acknowledged and usually taken for granted, it is not a concept with any readily identifiable content—which, of course, contributes to the ease with which it may be invoked, since doing so involves no commitment to any specific consequences. The idea of “law”, like that of “justice”, is so entrenched in modern political consciousness, internationally as well as internally, that “the rule of law” cannot be other than generally acknowledged as a desirable element of any community’s structure: the ambiguity of the concept does nothing to lessen the force of that general acknowledgment. The present purpose is to give some consideration to the possible specific content of the rule of law in the international community, and some evaluation of the extent to which it can be said that an international rule of law exists. II

Two Preliminary Distinctions

1 “Rules of Law” and “the Rule of Law” The notion of the international rule of law needs to be distinguished from two associated ideas. First, “the rule of law” is something different from “rules of law”. A rule of law is a statement of what the law prescribes on some particular matter, and, collectively, the rules of law connote the body of particular rules comprising a legal system as a whole. In contrast to such general body of rules of law, the concept of the rule of  law  signifies the regulation of the community in accordance with considerations of law and justice; it “connotes a climate of legality and of legal

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order”.1 It ­relates more to the underlying characteristics of the community’s legal system as a whole than to the content of the rules themselves. While the particular rules of law may be, and often are, changed from time to time, the rule of law involves fundamental principles which may be regarded as characteristic of a legally ordered community. While these characteristics too may change over time, they do so relatively slowly; they thus provide the longterm f­ramework within which such particular rules of law—which may be shortlived—­operate. The rule of law thus has a status which may in some cases  be expressly constitutional, and which in others is at least quasi-constitutional. This distinction between the rules of law and the rule of law is often blurred by those who, in responding to some international incident by calling for the rule of law to be upheld, are in reality often doing no more than calling for compliance with international law. Compliance with the law, although desirable, is not the same as compliance with the rule of law. 2 International Rule of Law Distinguished from Municipal Rule of Law The second preliminary distinction to be made is between the international rule of law and the rule of law as it exists in national legal systems. It is in the national context that the concept of the rule of law has been most fully developed, at least in certain States. But for at least two reasons these national notions of the rule of law cannot be directly transposed to the international level. First, the purposes which the rule of law serves at the national level—usually involving the protection of the rights of the individual as against an otherwise all-powerful governing authority—are quite different from those which it might be called upon to serve internationally; and second, the more specific requirements of the rule of law often reflect a State’s particular historical and constitutional evolution, and differ from State to State. The international rule of law cannot be identified with any one national meaning of the concept, and in this, as in other areas of public international law,2 principles, concepts and rules of national legal systems are at best an approximate guide to the content of their international analogue. That said, however, a brief consideration of two national notions which bear on the general concept of the rule of law is not out of place.

1 E.C.S. Wade (ed.) in his editorial Introduction to Dicey, Introduction to the Law of the Constitution, 10th ed., London 1960, cx. 2 See generally Oppenheim’s International Law, vol. i, 9th ed., Sir Robert Jennings and Sir Arthur Watts (eds.), Harlow 1992, 83, n. 4. See also below, notes 68–69 and accompanying text.

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For an English lawyer the concept of the rule of law, although originating many centuries earlier, is inseparably linked with the treatment of that ­concept by A.V. Dicey, in his Introduction to the Study of the Law of the Constitution, first published in 1885.3 He saw the rule of law as one of two features characterising English political institutions—the other, with which the rule of law was “closely connected”, being “the omnipotence or undisputed supremacy throughout the whole country of the central government”.4 Under the one expression of “the rule of law”, he identified three particular distinct though kindred conceptions. The first was that “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”.5 Later, by way of summary, this component was stated as involving “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative, or even of wide discretionary authority on the part of the government”.6 The second component was that “no man is above the law, but … every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”.7 This too was later summarised as involving “equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts”.8 The third component of the rule of law was that “the general principles of the constitution (as for example the right to personal liberty, or the right to public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts”,9 and this final component was summarised as involving “the constitution [being] the result of the ordinary law of the land”.10 Dicey was, of course, writing about the rule of law as he saw it characterised within the United Kingdom’s constitutional structure, and was not offering any 3 4 5 6 7 8 9 10

See note 1. Id., 183. Id., 188. Id., 202. Id., 193. Id., 202. Id., 195. Id., 203.

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analysis of universal application, let alone an analysis which might be relevant to the international legal system. Furthermore, even at the time he was writing, his analysis of the rule of law as a fundamental principle of the British constitution was flawed, and developments since 1885 have made it even less accurate.11 Yet his authority has been such that his treatment of the matter is still regarded as the locus classicus—and not unreasonably so, for although in detail his argumentation and conclusions might be suspect, his emphasis in particular on the rule of law as comprising—put broadly—the absence of arbitrary power, and the subjection of all equally to the ordinary law of the land, is of lasting value. An analogue of that concept of the rule of law in the English legal system may be seen in the notion developed in Germany’s legal tradition that that country constitutes a Rechtsstaat,12 by which is meant that the State comprises an autonomous legal structure, independent of any particular form or political complexion of its government which applies to all aspects of life within the State and which the government is obliged to support. One of the principal elements of this Rechtsstaat was equality of treatment under the law, requiring that “in the administration of the law no citizen could be treated differently or bear a greater burden than a fellow citizen”,13 and this was matched by a system of administrative courts concerned with the legal relations between citizens and the State and “having the duty to uphold the law as laid down by the legislature and to ensure that all State activity was conducted according to law”.14 This underlying concept of the Rechtsstaat predated Germany’s current Constitution, the Grundgesetz (or Basic Law) promulgated in 1949. It is, however, expressly reflected in certain provisions of that Constitution,15 particularly Article 20(3) (providing that “[l]egislation shall be subject to the constitutional order” and that “the executive and the judiciary shall be bound by the law”). The supremacy of the Basic Law as law (and not just, for example, as a political expression of Germany’s statehood) is clearly accepted, and the enforcement of that Law is expressly16 subject to the authority of the Federal Constitutional 11 12

13 14 15 16

See E.C.S. Wade’s Introduction, id., cxiii ff. See Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, Durham / London 1989, 42–43; Richard Bäumlin, “Rechtsstaat”, Evangelisches Staatslexikon, (Eds. Roman Herzog, Hermann Kunst, Klaus Schlaich, Wilhelm Schneemelcher), 3rd Ed., Stuttgart 1987, 2806–2818. See Kommers, id., 42. Id. References to the English text of the Basic Law are to the text as published in Amos J. Peaselee, Constitutions of Nations, vol. iii (revised 3rd ed.), The Hague 1968, 357. See Basic Law, Art. 93, id.

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Court, the role of which in the German constitutional framework has been referred to as “the highest institutional expression of the rule of law”.17 In fact, many States have in treaties or other international instruments acknowledged their commitment to the rule of law, at least as a feature of their domestic legal systems.18 This is particularly true of European States. Thus, in the preamble to the Statute of the Council of Europe 194919 the signatory Governments acknowledge the rule of law as one of the principles forming the basis of democracy, and Article 3 provides that “every Member of the Council of Europe must accept the principles of the rule of law”. The preamble to the European Convention for the Protection of Human Rights and Fundamental Freedoms 195020 records that the signatory Governments “have a common heritage of political traditions, ideals, freedoms and the rule of law”—a reference which the European Court of Human Rights, in the Golder Case (1975),21 characterised as pointing to the rule of law as “one of the features of the common spiritual heritage of the member States of the Council of Europe” and as showing “their profound belief in the rule of law”.22 This widely proclaimed consideration influenced the Court in interpreting the substantive provision in issue before it.23 A similar concern for the rule of law permeates the relationships between European States within the framework of the Conference on Security and Cooperation in Europe (CSCE). Explicit references to the rule of law seem to have appeared for the first time in a major CSCE document resulting from one of the periodic “summit” meetings in the Charter of Paris for a New Europe 1990.24 In their opening dedication to the building, consolidation and strengthening of democracy in their respective nations, the Heads of State or Government of the States participating in the CSCE process affirmed that democracy “has as its foundation respect for the human person and the rule of law”;25 they also 17 18 19 20 21 22 23 24 25

Kommers (note 12), 43. Although some of these references to the rule of law may have an international relevance, they remain predominantly relevant to the domestic legal systems of the States concerned. United Nations Treaty Series (unts), vol. 87, 103; United Kingdom Treaty Series (ukts) No. 51 (1949). unts, vol. 213, 221; ukts No. 71 (1953). International Law Reports (ilr), vol. 57, 201. Id., 217. See below, notes 76–79 and accompanying text. International Legal Materials (ilm), vol. 30, 1991, 190. It is to be noted that the CSCE Charter for a New Europe is regarded by the CSCE States as not being a treaty or international agreement eligible for registration under Art. 102 of the UN Charter; see 208. Id., 194.

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undertook to cooperate “to promote the application of the rule of law”,26 and based their need for new institutional structures of the CSCE process in part on their “common efforts to consolidate respect for human rights, democracy and the rule of law”.27 The Declaration adopted on the occasion of the Helsinki Summit 199228 reinforced these provisions, the Heads of State or Government including the rule of law as part of their “common aims”29 and in the associated Helsinki Decisions recording their “strong determination … to abide by the rule of law”.30 Five months before the adoption of the Charter of Paris representatives of the CSCE States had, in the Document of the Copenhagen Conference on the Human Dimension 1990,31 committed themselves in some detail to observe the rule of law. They recognized the rule of law as an essential element for ensuring respect for human rights, and welcomed “the common determination [of all participating States] to build democratic societies based on free elections and the rule of law”.32 They expressed their determination “to support and advance those principles of justice which form the basis of the rule of law”, and went on to express the view that “the rule of law does not mean merely a formal legality which assures regularity and consistency in the achievement and enforcement of democratic order, but justice based on the recognition and full acceptance of the supreme value of the human personality and guaranteed by institutions providing a framework for its fullest expression”;33 they further reaffirmed that “democracy is an inherent element of the rule of law”.34 The context of the Copenhagen Conference,35 and the

26 27 28 29 30 31 32 33 34 35

Id., 199. The “important contribution of the Council of Europe to the … principles of democracy and the rule of law” was also recognized, id., 200. Id., 206. ilm, vol. 31, 1992, 1385. Paragraph 6, at id., 1390. Id., 1409. ilm, vol. 29, 1990, 1306. See also the Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE 1991, ilm, vol. 30, 1991, 1670. ilm, vol. 29, 1990, 1307. Id., 1307. Id., 1308. The timing of the Conference, coming as it did in the midst of the great political changes taking place in the Soviet Union and in Eastern Europe generally, associated with the demise of the former communist regimes in those States, was a significant part of the background to its deliberations and conclusions. Also to be noted is the reference, in paragraph 5,20 of the Document, to certain contributions having been made “to the rule of law at a national level”, at id., 1309.

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Document generally, indicate clearly that the rule of law was being addressed as a component of the internal legal order of the participating States, with a view primarily to the enhanced protection of the human rights and fundamental freedoms of individuals within their States, and the development of democratic forms of government. In the CSCE context it is particularly noteworthy that the rule of law is seen as closely connected with the existence of democracy. This seems to be an expression of the clear policy of the States concerned to do what they can to foster the growth of democratic forms of government, which, given the international (and particularly European) political background in the late 1980s and early 1990s, is entirely understandable. But, however legitimate the strengthening of democracy within States may be as a goal of foreign policy, to be secured by whatever lawful means are available, and however much democracy may be a condition conducive to the existence of the rule of law within States practising that political system, (and its non-existence unhelpful to its full realisation), it must be doubtful whether democracy is itself a requirement of the rule of law within States, and even less so whether it has any such role to play as an element in the international rule of law. Certainly, in the light of the International Court of Justice’s assertion that “[e]very State possesses a fundamental right to choose and implement its own political, economic and social systems”,36 the existence of an international requirement that a particular political system, namely democracy, should be adopted is difficult to establish. Apart from such European instruments as those referred to, it should also be noted that much of the general international concern expressed in relation to the protection of human rights is, in essence even if not expressly, a concern with the rule of law, which underlies and informs much of the law relating to human rights. Even though that concern finds expression in numerous international instruments with a wide spread of States parties, their subject matter is essentially a matter of municipal law, since the protection of the human rights of individuals is primarily a matter of the relationships between them and the authorities of the State in question within the framework of municipal law. The rule of law in the human rights context is thus not directly relevant to

36

Military and Paramilitary Activities Case, ICJ Rep. 1986, 131. See also to the same effect the third principle of the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, GA res. 2625 (XXV) of 24 October 1970, gaor 25th sess., Suppl. 28, 121. Also see Thomas Franck, “The Emerging Right to Democratic Government”, American Journal of International Law (AJIL), vol. 86, 1992, 46–91.

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the rule of law as a factor in relations between States,37 although its persuasive quality and influence is considerable.38 III

International Relevance of the Rule of Law

While much consideration has been given to the meaning of the ‘rule of law’ as a characteristic of the relations between a State and those subject to its jurisdiction, particularly in the context of human rights, much less attention has been paid to it as a characteristic of relations between States39 as members of the international community.40 It is therefore necessary to explore a little more closely what the rule of law is about, and whether it is relevant internationally at all. Although some of the requirements of the rule of law may themselves constitute particular rules of law, the rule of law relates less to the substantive content of particular rules of law than to fundamental principles which are characteristic of a legally ordered community and which provide a long-term quasi-constitutional framework within which particular rules of law operate. This structural aspect of the rule of law has an important side-effect in that, being largely disassociated from the substantive content of the law, it is relatively neutral so far as concerns what that content ought to be, and may thus be able more readily to attract a wide range of support within the international community. There is, of course, more to the rule of law than such a structural view of it; yet its substantive meaning is elusive. Dicey more than once referred to the 37 38 39

40

But as the status of individuals as subjects on international law increases, the rule of law in its application to the position of individuals may be expected to have an increasingly direct bearing on the rule of law in its purely international sense. Also to be noted is the degree to which international concern with the rule of law, in its municipal law context, may underlie the rules of international law relating to the responsibility of a State for “denial of justice” suffered by aliens in its judicial processes. As States are the primary and predominant subjects of international law, it is not inappropriate to refer in these pages to relations between States only: while this is convenient for purposes of exposition, it is not to be taken to suggest that other entities (particularly international organisations) are not also subjects of international law, and within the scope of the international rule of law. Among works concerned expressly with the international rule of law see Julius Stone, The International Court and World Crisis, Geneva 1962, Chap. 1; Wilfred Jenks, The Prospects of International Adjudication, London 1964, Chap. 14 (“The rule of Law in World Affairs”); Sir Hersch Lauterpacht, The Function of Law in the International Community, Hamden 1966, CH. XX (“The ‘Specific’ Character of International Law and the Rule of Law”); Ann Van Wynen Thomas/A.J. Thomas, A World Rule of Law; Prospects and Problems, Dallas 1975.

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rule of law and the supremacy of the law as meaning the same thing;41 he also referred to “the rule, predominance, or supremacy of law”,42 and later used the phrase “the predominance of the legal spirit” as a synonym for the rule of law;43 just over a hundred years later President Mikhail Gorbachev of the Soviet Union referred to “the primacy of international law in politics”.44 Both capture the essence of the concept, with its emphasis on the inherent significance of law and legal principles as the regulator of political action; or, as even more succinctly put by a former United Kingdom Foreign Secretary, Sir Geoffrey (now Lord) Howe, “rules rule”.45 Yet the supremacy of the law is not, by itself, a sufficient indication of what the rule of law involves, since the law which is to enjoy supremacy may itself be unjust and oppressive; the supremacy of such a law is not what is meant by the rule of law. It is necessary to add to the notion of the rule of law the need for the law itself to be consistent with fundamental notions of justice. Although when considering the rule of law in its municipal law context that element may often be taken for granted, it is important in the international context, where common ground as to the proper role for the law is less evident, to acknowledge, explicitly or implicitly, that the need for the law to be just is an essential part of the rule of law. Seen in that light, the concept of the rule of law can be placed in a much broader historical and political perspective. It is part of the much wider problem of establishing limits to the potentially absolute power of those who exercise authority within a community, with roots going back to medieval (and earlier) notions of natural law. The rule of law is the counterweight to political power; together they establish a balance in which the exercise of power is subject to legal constraints which ensure that power is not abused. The rule of law is thus at the crossroads of law and politics: “[n]o legal system operates, or can operate, in a political vacuum; no political system can provide good

41 42 43 44

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E. g. Wade (note 1), 184, 187. Id., 187. Id., 195. Pravda, 17 September 1987. See also the speech by the Soviet Union’s Foreign Minister, Edvard Shervardnadze, on 27 September 1988 at the 43rd session of the UNGA, UN Doc. A / 43 / PV.6, 68, and the speech of President Mikhail Gorbachev, on 7 December 1988 during the same session, UN Doc. A / 43 / PV.72, 22. Sir Geoffrey (now Lord) Howe, “The Role of International Law in World Affairs”, International and Comparative Law Quarterly (ICLQ), vol. 33, 1984, 739; and “The Role of International Law in the Conduct of Foreign Affairs”, International Law Association, Report of the Sixty-Fourth Conference, 1990, 120.

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government, ensure justice, or preserve freedom except on the basis of respect for law”.46 In municipal law the balance has to be struck between, on the one hand, the rule of law and, on the other, the sovereignty of the political authority of the State, be it Monarch, or President, or Parliament, or whatever other body possess that supreme authority under the State’s constitution. The international community has no equivalent legally established superior authority, neither any State or group of States, nor yet any international organisation. The sovereignty of a “sovereign State” is descriptive of its internal status: internationally it is essentially a negative quality, in that it signifies that the State does not have sovereignty or authority over other States, and is not legally subject to the sovereignty or authority of any other State or other source of external power but is independent of them. This rejection by States, derived from their sovereign independence, of any superior external authority formerly encouraged assertions that the legal authority of States in relation to the outside world was essentially unrestricted; and it is thus the sovereign independence of States which needs to be balanced by the international rule of law. Acceptance of the need for significant restraints upon the freedom of action of States may prove to be one of the twentieth century’s more valuable achievements. These restraints, which are as much political as legal, have been particularly notable in two areas: resort to armed force for the settlement of international issues has come to be no longer an internationally acceptable option for States, and increased world-wide concern with human rights has eroded the “domestic jurisdiction” shield behind which States used to be able to shelter. The ever-growing interdependence of States increasingly makes it impossible for States to be wholly unaffected by the consequences, either political or economic, of actions by or confrontations between other States. To the extent that the primary concern of States is with increasing their own prosperity and safeguarding their own security, the preservation of international peace and security is not just altruistically desirable, or a moral imperative, but is in the direct national interest of each State. Only in such conditions of stability can the conditions be established for increased prosperity and security, whether of individual States or of the international community as a whole. While stability might be thought to be attainable through the imposition of sufficient force—some dictatorships have been notably stable, at least for 46

Wilfred Jenks, The Prospects of International Adjudication, London 1964, 757.

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a time—it does not appear to be an option which offers any satisfactory long term prospect of success (as the ultimate fate of oppressive dictatorships has tended to show). In the modern world the kind of overwhelming military power which could in earlier centuries, and at least at a regional level, have been brought to bear to achieve a large measure of international stability (in the interests, of course, of the States wielding that overwhelming power) is no longer available;47 nor is its use politically acceptable to the international community of States. The rule of force is ultimately a recipe for anarchy, which is the antithesis of stability. The rule of force also affords States no basis for securing their interests. This is particularly true of weaker States, who would be especially vulnerable in a world ruled by force alone and who by contrast, have a particular interest in the safeguards offered by an effective international legal order; but it is also true of medium-sized States, and even, ultimately, of the very small number of most powerful States. Since few States are strong and many are weak, and since none is strong at all times (the power of even the greatest States and empires has waxed and then waned) the self-interest of all States cannot find long term comfort in the rule of force. The creation of international stability, the avoidance of international anarchy, and the protection over time of the interests of all States, the strong as much as the weak, require that their relations with each other be subject not to the rule of force, but to a long-term framework which ensures that the international community is so ordered that the rules of international law are applied (to borrow the language of the United Nations Charter) “in conformity with the principles of justice”.48 It is this framework which the international rule of law seeks to provide.

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Those States with nuclear weapons do in a sense possess overwhelming military superiority, at least against other States which are not so armed, but in most practical respects those weapons are unusable because of both the likely unpredictability and seriousness of the consequences of their use. Apart from those weapons, the apparent military superiority of certain States has to be balanced against the much greater material damage which can now in response be inflicted on them militarily even by States which may seem militarily insignificant; and since militarily powerful States will also be commercially powerful, with probably world-wide interests, they have that much greater exposure to risks of non-military counter-measures. UN Charter, Art. 1 para. 1, Documents of the UN Conference on International Organization San Francisco, 1945, vol. 15, London 1945, 335.

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Requirements for the International Rule of Law

The international community thus stands in need of the rule of law in much the same way as do national communities. Although it is not mentioned ­expressly in the Charter of the United Nations, which gets no closer to that concept than references to “justice”,49 the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, which was adopted by the General Assembly in 1970, referred to “the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations”.50 To identify the rule of law as requiring a particular legal ordering of affairs within a community, and in particular the international community, leaves unanswered the question as to the conditions which have to be met for the rule of law to exist. Quite what the international rule of law requires is far from clearly established; it remains, perhaps to an even greater extent than in the context of municipal law, a concept with no clearly defined content.51 Certain elements of an acceptable international rule of law may nevertheless be suggested with some confidence that they are generally acknowledged by the States members of the international community as necessary elements in any acceptable system for regulating international relations by the application of legal rules. Two prerequisites for the rule of law should however be noted at the outset, being not so much elements of it as factors which, if lacking, make discussion of the rule of law somewhat beside the point. The first is the existence of a sufficiently cohesive group of putative subjects of the rule of law to justify them being regarded as constituting a community. The second is the existence of a body of rules acknowledged as law governing the conduct of the members of that community and forming the legal basis for relations between them. For present purposes the 200 or so States of the world can be taken as constituting a sufficiently cohesive international community, and there need be no 49 50 51

Preamble; Art. 1 para. 1; Art. 2 para. 3, id. GA Res. 2625 (note 36). In addition to such content as may be derived from translating on to the international plane the kind of municipal law understandings of the concept referred to above (notes 3–17 and accompanying text), note also the definition given by Ann Van Wynen Thomas / A.J. Thomas (note 40), 8: “These then are the attributes of a true rule of law: a society or community consensus seeking to secure justice—that which is felt to be right, reasonable, and proportionate for a particular time and place; and order, which requires continuity, certainty, consistency—a balance between rights and restraint on power, plus the ability to meet changing conditions”. The authors emphasised that the twin goals of order and justice both needed promoting, with neither being given priority over the other.

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d­ oubting the existence of a body of rules of public international law providing the legal basis for the conduct of international relations between those States. Turning to the elements which are necessary if the rule of law is to obtain in the international community, several may be suggested. Certain of them, however, are more fundamental than others, and it is these which are considered further below. 1 Completeness and Certainty of the Law There are certain characteristics which the law itself should possess, namely completeness and certainty. That there is a body of rules of law is an assumption which underlies any discussion of the rule of law. The question arises, however, as to how extensive the scope of those rules must be, and whether it is sufficient for the existence of the rule of law for rules to exist covering only certain limited matters or whether legal rules must exist which govern all situations. There seems little room for doubting that before the rule of law can be said to apply fully within a community, the law must be capable of governing all situations which might arise within it, and that accordingly the courts must be able to decide on the basis of applicable law all cases brought before them. As the ILO Administrative Tribunal expressed it in Desgranges v. International Labour Organisation, “[o]ne of the fundamental tenets of all legal systems is that no court may refrain from giving judgment on the grounds that the law is silent or obscure”.52 To allow that there may be areas from which the law is excluded is to allow that such “no law” areas will be left to be regulated in other ways—which could perhaps include the arbitrary dictates of an absolute ruler, or the exercise of force; whenever social order is maintained in such a way, it cannot be said to derive from the rule of law. Whether international law possesses the necessary quality of completeness is a question which is easier to answer now than was once the case. There was at one time a disposition to maintain that rules of international law only covered those matters where State practice or treaties had led to the development of particular rules, and that beyond those matters no applicable rule of international law existed. On this view a court faced with an issue which in its view international law simply did not regulate could, and indeed had no alternative but to, declare a non liquet. While the matter is not wholly beyond argument, and involves several difficult questions, international law has come increasingly to be regarded as a complete legel (Sic) system in which “every international situation is capable of being determined as a matter of law, ­either by the 52

ilr, vol. 20, 1953, 523, 530.

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a­ pplication of specific legal rules where they already exist, or by the application of legal rules derived, by the use of known legal techniques, from other legal rules or principles”.53 Acknowledgment of the completeness of international law owes much to the recognition of general principles of law among its sources, and to the influence of equity upon its development. There is another aspect to completeness which must not be overlooked. Not only must the law be capable of governing all situations which might arise within a community, it must also apply to all members of that community: indeed, this latter requirement is probably inherent in the former since “all situations” will include those involving any of the community’s members. The universality of international law is, like its completeness in the sense first discussed, easier to assert now than it was in the past. Although the international community within which modern international law developed consisted of the old Christian States of Western Europe and international law in its origins was confined to those States, the community has now become universal in scope and so has the reach of international law. Although particular rules of international law are sometimes limited by their terms or context to certain States only (thus rules about the rights of land-locked States are almost entirely applicable only to such States and those en route to their maritime outlets), many particular rules, especially of customary international law, are of worldwide application; but it is the international legal order whose universality is important and unquestioned, rather than that of particular rules. The completeness of the law is not by itself sufficient if the law, however complete in the senses discussed, is so undeveloped and uncertain as to make recourse to it something of a lottery (and ‘recourse’, it may be noted, is not just a matter of a State seeking vindication of its rights before a tribunal, but also includes its reliance on the law in deciding upon its international actions, and in discussion and negotiation with other States). The rule of law thus also requires that the general body of the law should have attained a sufficient degree of development to be certain. An important consequence of certainty of the law is that the outcome of reliance upon the law is to a large degree predictable, which it cannot be if the law is uncertain (or if arbitrary power is not excluded). This in turn is an important factor in establishing confidence in the law, and also in encouraging 53

Sir Robert Jennings / Sir Arthur Watts (note 2), 12–13, and works cited there, particularly Sir Hersch Lauterpacht, The Function of Law in the International Community, 1933, 51–135, and Collected Papers, vol. i, 1970, 94–98; see also Hugh Thirlway, “The Law and Procedure of the International Court of Justice 1960–1989”, British Yearbook of International Law (BYBIL), vol. lx, 1989, 76–92.

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that stability in the affairs of the community which it is part of the function of the rule of law to create. Neither certainty nor predictability can be absolute. Any legal rules are (if they are rules of law properly so called) drawn up so as to apply to situations generally, and inevitably allow room for argument when it comes to applying them to particular situations. Furthermore, deficiencies of language, and the imperfections of foresight, are likely to create the possibility of ambiguity in most legal texts, when they come to be measured against the infinitely variable circumstances of life. International law suffers from such uncertainties like any other legal system. But it must be said with international law that there are added reasons why its rules can aspire to only a relative degree of certainty. Those rules are, first, to a considerable extent based upon inferences drawn from the conduct of States; customary law, while in general terms clear enough, is notoriously imprecise at the level of detail which is needed to dispose of particular problems. The same may be said for those “general principles of law recognized by civilized nations” which form another of the sources of international law. Second, international law has no central legislator, nor any legislative process in the normal (municipal) sense of the term; its norm-creating process is essentially decentralised, and so far as international conferences or meetings within international organisations may produce quasi-legislative texts the outcome represents “legislation” by negotiation and compromise, which is not a process calculated to produce precision and clarity. Third, while certainty and predictability are greatly assisted by a general body of law being available in an up-to-date and readily accessible form, international law is considerably deficient in this respect. While collections of State practice are increasing, it is still only the practice of a relatively few States which is available in this way; in any event it is the distillation of this practice, and that of States generally, into authoritative statements of customary law which is needed, but which is lacking. The content of the “general principles of law” is similarly far from being established in any authoritative compilation. Many States publish collections of their own treaties, usually in annual volumes, but these are often a less than complete collection of the written texts giving rise to those States’ international rights and obligations, and not all States publish such collections; the international collections of treaties, such as the many volumes of the United Nations Treaty series, are not a complete collection of all treaties, and are seldom up-to-date. Similarly, reports of judicial decisions of national courts bearing on issues of international law are not available from all States, although collections of judicial decisions (such as the over-90 volumes of the International Law Reports and its predecessors

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c­ overing the period since 1919) have steadily increased the scope of their coverage. The role of writers on international law may, for want of anything better, accordingly be greater in the presentation of the overall content of international law than is the case with other systems of law; but whatever the reputation of such writers, their works inevitably lack that degree of true authority which, in municipal law, is possessed by official, or officially approved, statements of the law and collections of legislative texts and law reports. Certainty, and with it predictability, do not imply that the law has to be static and unchanging. Indeed, from the point of view of the international rule of law it is important that there be a generally acceptable process whereby international law may evolve to meet the changing circumstances faced by the international community. The general body of the law must also be acceptable to the generality of the international community, and the possibility must accordingly exist of change so that the law may properly represent the interests of all sectors of the international community. Undoubtedly, international law does change, in detail as well as in general direction. Comparison of major areas of the law as they are generally regarded as standing today and as they were considered to stand twenty or thirty years ago amply demonstrates the extent to which change has taken place. However, the processes by which such changes take place are neither reliable nor straight-foward. No truly legislative changes are possible, given the absence of any legislator: and even so-called “law-making” treaties will usually lack universality, and are frequently slow to enter into force. Customary international law is generally an unsatisfactory instrument of change, since it tends to be slow and unresponsive to all but the most pressing needs (and even then may be inadequate), and is often influenced by the practice of a relatively small number of States rather than that of the totality of the international community. Some evolution of the law takes place through the impact of decisions of international judicial tribunals, particularly the International Court of Justice, but this mechanism for change suffers from the relative infrequency with which disputes are submitted for judicial settlement, the haphazard choice of subject matter of such disputes which are submitted, and the uniqueness of the facts of most international disputes which may make the ensuing judicial decision less compelling as a contribution to the general development of the law. Whatever change may be possible in international law, an important aspect of the certainty and predictability of the law is that States should be able to rely on the law which was the basis for their action remaining the same when the lawfulness or legal consequences of those actions comes later to be in question. While the law may change, changes should be prospective rather

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than ­retrospective; the non-retroactivity of laws is an important element of the rule of law. With few exceptions54, international law incorporates safeguards against the retroactive application of new rules of international law. This is easier to achieve in the case of treaties, where express provision to that ­effect can be, and frequently is, included in the treaty, than in the case of developments in customary law; but these are generally so slow in coming about that States have plenty of time in which to adjust their legal positions to take account of the changed law. In relation to situations which are already completed and then become the subject of legal dispute, the concepts of the ‘inter-temporal law’ and, in judicial proceedings, the ‘critical date’, help to isolate past events from the legal impact of subsequent changes in the law. 2 Equality before the Law The requirement that, for the rule of law to exist, all subjects of the law must stand as equals in the eyes of the law has a fair claim to being of primordial importance.55 It is difficult to conceive of a community being regarded as observing the rule of law but in which it was accepted that certain categories of its members had, in the application of the law, a lesser or greater standing than others. Equality itself, in any absolute sense, is not of course here the issue. The circumstances of history and geography and economics combine to make any true all-embracing equality of States an unrealistic ideal with no reflection in the real world. They are, and are inherently, unequal in political and economic wealth and power, in military strength, in population, in natural resources, in climatic characteristics, and so on: indeed, it may be said that one of the distinguishing characteristics of States is not so much their equality as the uniqueness of each of them in their differences from one another. Such differences and inequalities need not, however, extend to the standing of States in the eyes if the law, and in the application to them of particular rules of law. However large and powerful, or however small and powerless,

54 55

These include the overriding effects of the UN Charter as a result of Art. 103, and the application of new rules of ius cogens to preexisting situations. Equality before the law is firmly established as a requirement in the context of the human rights of individuals within States. See e.g., Universal Declaration of Human Rights, (Art. 7 and Art. 10) GA res. 217 (iii) of 10 December 1948, UN Doc. A / 810 (1948) at 71; International Covenant on Civil and Political Rights, (Art. 14 (1) and (3) and Art. 26) GA res. 2200 (xxi) of 16 December 1966, UN gaor 21st sess., Suppl. 16 at 52, UN Doc. A / 6316 (1966), unts vol. 999, 171; American Convention on Human Rights 1969, (Art. 24) ilm, vol. 9, 1970, 673.

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each State—if the rule of law is to prevail—must in that one respect at least be treated equally with all others. That equality of States is reflected in the principle of the sovereign equality of all States. This does not mean that all States are in all respects equal— manifestly they are not, and cannot be. What it does mean is that since all States are sovereign, they are thus neither subject to any external authority nor themselves the possessors of authority or pre-eminence over other States, and are accordingly in those respects in principle legally equal with one another as members of the international community. The sovereign equality of all of the Members of the United Nations is one of the Principles of the United Nations, set out in Article 2 para. 1 of the Charter. Broadened so as to apply to all States even if not Members of the United Nations, that principle was one of the seven principles of the Charter established as “basic principles of international law” by the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, which was adopted by the United Nations General Assembly in 1970.56 The elaboration of that principle stipulated, inter alia that “All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature. In particular, sovereign equality includes the following elements: (a) States are juridically equal …”. Earlier, in 1949, the International Law Commission had provided, in Article 5 of its Draft Declaration on Rights and Duties of States, that “Every State has the right to equality in law with every other State”.57 Equality of States in the application to them of rules of law does not require that all rules must apply in the same way to all States. It is not inconsistent with the rule of law that some rules may only apply to States with certain qualifications or within certain categories: thus some rules only apply to States with a maritime coastline, others apply only to States engaged in an armed conflict, and so on. It is the application to all States equally of rules of law according to their terms which must be achieved: all States which come within the scope of a rule of law must be treated equally in the application of that rule to them. There must, in other words, be uniformity of application of international law and no discrimination between States in their subjection to rules of law which in principle apply to them.

56 57

See GA res. 2625 (XXV) of 24 October 1970 (note 36). Yearbook of International Law Commission (ybilc), 1949, 288.

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Apart from its significance for the application of international law, the sovereign equality of States has a number of other siginificant consequences for the international legal order. Thus it suggests that States are not only equal in the application of the law to them, but also that they should have equal standing in the formulation of rules of international law, including the making of changes to the law—a consideration which is less easy to satisfy in relation to customary international law (where the practice of those States with a direct practical interest in the subject matter is likely to have a predominant influence) than it is in relation to treaties (where the one-State-one-vote rule generally applies to major international treaty-making conferences). While there are exceptions to the formal equality of States in the international political process (as shown, for example, by departures from the requirement of unanimity in many voting procedures, and by the weighted votes given to some States in certain contexts), the general application of the principle of sovereign equality of States can be seen as the legal basis for the international community’s analogue of the democracy which characterises many national political systems. A final general consequence of the sovereign equality of States which may be noted is that since it excludes the existence of any external legal power over States, international law has to be essentially consensual; even the authority apparently exercised over States by the Security Council by virtue of the mandatory quality which certain of its decisions have even for States not participating in (or even voting against) those decisions is, on analysis, the result of consent given by States when becoming members of the United Nations.58 3 Absence of Arbitrary Power Central to the rule of law is the absence of arbitrary power. There is indeed a sense in which other elements comprised within the general concept of the rule of law serve primarily to establish the conditions in which this central element can be realised. Apart from a brusque rejection of any such notion as law in international relations, the possibility of broadly based arbitrary powers comes primarily from one view of the significance of the sovereign independence of States. Since

58

The same is true of other international bodies with apparently “supra-national” powers. Yet it would be wrong to be excessively formal in this matter. International constitutional instruments are not arid texts, but are capable of evolution. The gradual growth, in some instances, of international powers substantially divorced, save for perhaps the barest residual formal token of some original consent, from the current consent of the States in respect of which they are exercised is not to be excluded. The basis’ for the authority of international law may in time move from consent to compulsion.

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that legal concept involves the absence of external authority over a State,59 so it may seem to follow as a matter of law that the State is not subject to any external (i.e. international) legal constraints, and therefore that it is legally free to act arbitrarily if it chooses. In a more limited way, two other lawful possibilities of arbitrary power could arise from lacunae in the law, or from legal rules which themselves allow arbitrary (or at least discretionary) action in certain fields. The first two of these possibilities may be dismissed. The sovereign independence of States operates within, and not outside, a legal framework; there is no doubt that States are subject to international law and that all States accept that that is so. Only if that law itself allows for arbitrary action can such action be considered lawful. It does not do so by way of there being lacunae in the law; as has been seen,60 international law is a complete legal system which admits no ‘no law’ areas. International law, however, still acknowledges that a State may engage in some acts which are legally unchallengeable; examples include refusal to grant agrément to a person proposed as an ambassador by a foreign State,61 and the declaration that a foreign State’s ambassador or member of its embassy’s diplomatic staff is persona non grata.62 There may, however, be a discernible trend to limit areas in which international law allows a State to act at its pleasure without having to account for its actions internationally. This has been particularly evident, for example, in relation to a State’s treatment of aliens, where its former freedom of action to refuse admission to aliens, and to expel them, has become greatly constrained by the acknowledgment of State responsibility for arbitrary expulsions and by the impact of human rights law. It is, of course, the case that States on occasion act in breach of the law, and perhaps even sometimes in complete and wilful disregard of the law. However, just as the rule of law has to be distinguished from observance of the law, so the rule of law cannot require that States never break the law; nor do breaches of the law necessarily involve arbitrary action. What the rule of law requires is that in their international relations States conduct themselves within an essentially legal framework; it is action which is despotic, capricious, or otherwise unresponsive to legal regulation which is incompatible with the ­international rule of law.

59 60 61 62

See above notes 46–47 and accompanying text. See above notes 52–53 and accompanying text. See Vienna Convention on Diplomatic Relations 1961, Article 4, unts, vol. 500, 95; ukts No. 19 (1965). Id., Art. 9.

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The exclusion of arbitrary State conduct is not straightforward, and, like other components of the rule of law, is not one which can be insisted on in absolute terms. It is inevitable, if only to allow for some flexibility in applying the law to particular circumstances, that some rules of law must in some circumstances allow for the exercise by States of choices of action determined by considerations of policy and judgment alone, rather than by the application of legal rules or compliance with legal requirements. Such liberty to act at pleasure is often referred to as a discretion, and the line between discretion and arbitrariness is not sharp: “wherever there is discretion there is room for arbitrariness”.63 Normally the principal distinction between them is that while an arbitrary power is one exercised outside the scope of any legal restraint at all, a discretion must normally be exercised within limits established by the law itself and, in the last resort, enforceable through the law. Nevertheless, while such a distinction is in principle clear enough, the borderline between discretion and arbitrariness can in practice become very blurred, particularly if the limits within which discretion may be exercised are wide. A further distinction between discretion and arbitrariness is that the latter has overtones of conduct carried to extremes; arbitrary action is not just action which is not subject to rules but is also action which has about it a flavour of despotism or the exercise of absolute power. This question arose (in the context of the law of Italy) before the International Court of Justice in the Case Concerning Elettronica Sicula S.p.A. (ELSI),64 where the Court needed to consider whether a requisition measure taken by the relevant Italian authorities was arbitrary within the meaning of a bilateral treaty provision that the “nationals, corporations and associations of either High Contracting Party shall not be subject to arbitrary or discriminatory treatment”.65 The Court found that arbitrariness “is a wilful disregard of due process of law, an act which shocks, or at least surprises, a sense of judicial propriety”.66 The facts found by the Court showed that the requisition order made by a local authority “was consciously made in the context of an operating system of law and of appropriate remedies

63 64 65 66

Dicey (note 1), 188. ICJ Reports, 1989, 15. See text at id., 72. Id., 76. In the De Wilde, Ooms and Versyp Cases (The ‘Belgian Vagrancy Cases’)—Merits (1971), ilr, vol. 56, 351, the Collective Separate Opinion of five of the Judges of the European Court of Human Rights said that an “act is arbitrary when it violates in a serious and obvious way a legal rule or again when it is devoid of all serious justification”, at 413–414.

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of appeal, and treated as such by the superior administrative authority and the local courts. These are not at all the marks of an “arbitrary” act.”67 The Court also noted two important distinctions which need to be drawn in this context. The first is that between action in breach of the law and action which is arbitrary; while the unlawfulness of an act may well be relevant to an argument that it was also arbitrary, “by itself, and without more, unlawfulness cannot be said to amount to arbitrariness … To identify arbitrariness with mere unlawfulness would be to deprive it of any useful meaning in its own right”.68 The second distinction is that between the meaning of terms in municipal law and their meaning in international law, and in particular the meaning of “arbitrary”. Referring to the possibility that an act might be found by a municipal court to be unjustified, or unreasonable, or arbitrary, the Court noted that it does “not follow from [such] a finding … that that act is necessarily to be classed as arbitrary in international law, though the qualification given to the impugned act by a municipal authority may be a valuable indication”.69 The Court not only defined what was meant by arbitrary action, but also made clear the antithesis between such action and the rule of law. As the Court put it, “[a]rbitrariness is not so much something opposed to a rule of law, as something opposed to the rule of law”.70 In saying this, the Court referred back to its earlier decision in the Asylum case, where the Court had spoken of “arbitrary action” being “substituted for the rule of law”.71 The Court was in that case noting that although normally the grant of diplomatic asylum cannot be opposed to the operation of justice, there could be an exception to that rule only if, in the guise of justice, arbitrary action was substituted for the rule of law, as would be the case if the administration of justice were corrupted by measures clearly prompted by political aims: “asylum protects the political offender against any measures of a manifestly extra-legal character which a government might take or attempt to take against its political opponents”;72 the grant of safety to political offenders “means that the refugee is protected against arbitrary action by the government, and that he enjoys the benefits of the law”, but “cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals”.73

67 68 69 70 71 72 73

ICJ Reports, 1989, 77. Id., 74. Id. See also note 2 above. Id., 76. ICJ Reports, 1950, 284. Id. Id.

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4 Effective Application of the Law Completeness and certainty of the law as between States which are equal ­before the law, and the exclusion of arbitrary power, are not of themselves sufficient to establish the rule of law. When the occasion arises the law has to be effectively applied—itself a powerful inhibitor of arbitrary action and breaches of the law. It is in this area that the difference between the international and municipal legal systems is perhaps most marked; in the latter one is accustomed to a situation in which “remedies … follow smoothly from the exercise of compulsory jurisdiction”,74 but the international legal system has neither true compulsory jurisdiction nor ‘smoothly flowing’ consequential remedies. It is perhaps convenient to distinguish between three different aspects of ‘effective application’ of international law. First there is the ability of a State which finds itself with a legal difference with another State to have recourse to a judicial tribunal to have that difference resolved. Second is the ability of the international community to ensure that if a State refuses to comply with the law, the law can nevertheless be enforced against it. Finally, and in practice in many ways the most important, is the regular application of the law by States in their day-to-day dealings with each other as part of the regular pattern of their international relations. (a) Judicial Settlement The ability of a State to have recourse to an impartial and independent75 judicial tribunal openly applying known legal rules in order to determine what the law is and so resolve its legal disputes with another State is fundamental to the existence of the international rule of law. Such disputes, involving States each of which is pursuing its own legal interests, are analogous to civil litigation in municipal law. While making due allowance for the dangers of translating the position in municipal law into that in international law, the observations of the European Court of Human Rights in the Golder Case76 are relevant. There the Court found that “in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts”77: the “principle whereby a civil claim must be capable of being submitted to a judge 74 75

76 77

Sir Geoffrey (now Lord) Howe, “The role of International Law in the Conduct of Foreign Affairs”, International Law Association, Report of the Sixty-Fourth Conference, 1990, 111. The practice of ensuring, if necessary by ad hoc appointments, that international tribunals (including the International Court of Justice) include members having the ­nationalities of the States in dispute detracts from the ideal of justice independently and impartially administered, and being seen to be so administered. ilr, vol. 57, 201. Id., 217.

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ranks as one of the universally “recognised” fundamental principles of law”.78 Were it to be assumed that a State had the right to abolish its courts or deprive them of jurisdiction to determine certain classes of civil actions, such assumptions were seen by the Court as having serious consequences which were “repugnant” to those principles, as well as being “indissociable from a danger of arbitrary power”.79 Those remarks, mutatis mutandis, carry weight at the international level. The existence of an international judicial structure capable of dealing with all legal disputes between States is not in doubt. Apart from ad hoc tribunals, and tribunals established under particular bilateral or multilateral treaties to deal with disputes in accordance with the terms of those treaties, there is at the international judicial summit the International Court of Justice at The Hague. So far as States are concerned, the Court’s contentious jurisdiction is plenary: under Article 36 (1) of the Court’s Statute its jurisdiction “comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”. Access to the Court is similarly, in practice, open to all States—and, in contentious cases, only to States (Statute, Article 34 (1)). The Court is open to the States which are parties to the Court’s Statute (Statute, Article 35 (1)), and this includes all States which are members of the United Nations (UN Charter, Article 93 para. 1), as well as certain non-member States on conditions determined in each case by the General Assembly upon the recommendation of the Security Council (UN Charter, Article 93 para. 2); the Court is also open even to States which are not parties to the Court’s Statute, on conditions laid down by the Security Council (Statute, Article 35 (2)). It is not, however, the potentially comprehensive scope of the Court’s competence either as to subject matter or as to States as parties which is in question, but the compulsory nature of its jurisdiction. As is well-known, the Court’s contentious jurisdiction in all cases requires the consent of the States whose dispute is to go before the Court; in effect, this requires in particular

78 79

Id The Court’s reference to principles which were “recognised” appears from the context to be a reference to that term in the phrase “general principles of law recognized by civilized nations” in Art. 38, 1 (c) of the Statute of the ICJ. At 218. The Court was concerned with an argument that although Article 6 of the European Convention described procedural guarantees to be afforded the parties in a pending lawsuit, it did not say in terms that an individual had to have a right of access to a court. The Court rejected this argument, holding that a “right to a court” was inherent in the right stated in Article 6.

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the consent of the putative defendant State, since the putative plaintiff State’s consent is evident from its wish to take the matter to the Court. A reluctant defendant State can, therefore, prevent a dispute being referred to the Court—or indeed to any other form of judicial or arbitral settlement, for example by an ad hoc tribunal, since any such reference is similarly subject to the defendant State’s consent. Such a purely consensual basis for the judicial settlement of legal disputes cannot be satisfactory in terms of the rule of law. The position is to some extent mitigated by the State’s consent not necessarily having to be given in relation to the particular dispute which has arisen with another State; it may sometimes be given in advance in relation to future disputes falling within certain categories. This possibility is, in particular, open in relation to the International Court of Justice under the so-called ‘optional clause’ embodied in Article 36 (2) of the Court’s Statute. Under this provision, States may “declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the court in all legal disputes” concerning certain matters which, taken together, are virtually all-embracing. The need for the other State to have “accept[ed] the same obligation” is, in addition to the possible condition of reciprocity imposed under Article 36 (3), a significant limitation upon the effectiveness of this provision, and even more so has been the practice of many States which have made the required declaration under Article 36 (2) to qualify its scope with various, and sometimes quite extensive, reservations. Similar commitments, given in advance, to submit certain disputes to the International Court of Justice or to some other judicial or arbitral tribunal are included in many treaties, both bilateral and multilateral, but usually limited to disputes arising from the subject matter of the treaty. In some cases the obligation under such dispute settlement provisions is optional and States party to the treaty may choose whether or not to accept it, while in other cases it is an integral and unavoidable part of the treaty; but even in this latter case the dispute settlement obligation does not create a truly compulsory jurisdiction, since it depends on the consent of the State given by its consent to be bound by the treaty. The problem, in short, with the judicial settlement of international disputes lies less with the lack of appropriate international judicial machinery, than with its only partial acceptance by States. The consensual nature of the international judicial settlement process is coupled with the general reluctance of States to make use of the ample judicial machinery available, and in particular to commit themselves in advance to the judicial settlement of their international disputes.

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(b) Enforcement Turning to the enforcement of the law against States which refuse to comply with their international legal obligations, one is at the borderline between ‘private’ and ‘public’ aspects of the international legal order. Although there is no accepted use of those concepts in international law, they can be helpful in order to distinguish between those aspects of the law, and its enforcement, which primarily affect the private interests of the parties and those aspects which primarily touch the interests of the international community as a whole. Thus, where a State which refuses to comply with its legal obligations concerning the immunities enjoyed by its embassies or diplomats in some other State, the matter will be primarily of concern to those two States.80 It will accordingly be for the State whose rights have been violated to determine how the other State may be brought to comply with its obligations. On the other hand, where one State launches an extensive armed attack on another in order to seize territory, the matter, while clearly of direct concern to the two States involved in the conflict, also raises issues of international peace and security which engage the interests and responsibilities of the international community as a whole. Such a distinction between ‘private’ and ‘public’ issues is not at all clear cut, and the one may easily merge into the other, as where, for example, the measures to be taken by a wronged State against the wrongdoing State to enforce compliance with an essentially ‘private’ aspect of the law threaten to spill over into action with a more widespread impact upon the international community. Enforcement of the law in what is primarily a bilateral context between the two States involved is left to them to arrange within the limits permitted by international law, most notably the prohibition upon resort to armed force. Other, less compulsive, forms of pressure may, however, be resorted to and can, at least over time, prove effective to secure the wrongdoing State’s compliance with its legal obligations; because so much of international relations relies on a considerable degree of reciprocity, alternative forms of persuasive pressure are seldom lacking and reciprocity virtually becomes the basis of an informal enforcement process. Nevertheless, in terms of the rule of law, it cannot in principle be satisfactory that enforcement of the law, even in relation to ‘private’ matters, has in practice to be left to action by the wronged State taken outside any international judicial procedures. Self-help for the enforcement of the law is an unattractive process, both because it can so easily be abused 80

The international community as a whole may, however, have an interest, for example because of the effects upon the general institution of diplomacy or because the particular circumstances, such as misuse of diplomatic status for terrorist-connected purposes, raise a serious issue of general international concern.

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and because its efficacy—and at times even its availability in practice—can be so uneven, depending on the relative strengths of the States involved. The rule of law would seem to require not only that the law should be of universal application,81 but also that its enforcement should be similarly universal, that is that it should be capable of being enforced equally in respect of all members of the community. In one respect, however, the enforcement of the law in an essentially ‘private’ context is recognised to be of substantial concern to the international community in general. Judgments of the International Court of Justice are binding on the parties to the case in question,82 and members of the United Nations are under a Charter obligation to comply with decisions of the Court in cases in which they are parties.83 If a party nevertheless fails to comply with a judgment, these provisions are supported by the possibility of the other party having recourse to the Security Council, which “may”, “if it deems necessary”, make “recommendations” or “decide upon measures” to be taken to give effect to the judgment.84 While these provisions reflect the importance properly attached, at least in principle, to the international judicial process, in practice they have proved of limited value.85 In relation to the enforcement of international law in those circumstances which are of direct ‘public’ concern to the international community as a whole, the international community has moved away from its former acquiescence in the role of Great Powers as international peacemakers and enforcers of the law; the self-appointed ‘policeman’ State is no longer acceptable.86 International, community procedures are now available instead, at least where international peace and security are concerned87—and these are, of course, by definition matters of ‘public’ concern. The United Nations Charter gives the Security Council special responsibilities for such matters and puts at its disposal a wide range of measures, including where necessary the use of armed force, to secure the enforcement of its decisions for the maintenance or r­ estoration of 81 82 83 84 85 86 87

See above, note 53 and subsequent text. Statute of the ICJ, Art. 59, (note 48) 355. UN Charter Art. 94, para. 1, (note 38). UN Charter, Art. 94, para. 2, id. As with Albania’s refusal to comply with the judgment of the Court in the Corfu Channel Case, ICJ Rep., 1949, 4, and the United States of America’s refusal to accept the Court’s judgment in the Military and Paramilitary Activities Case, ICJ Rep., 1986, 3. See below. Although the role of the Security Council is pre-eminent in the taking of international enforcement action, the powers of other international organisations to take action of various kinds (but not including the use of armed force) in order to secure compliance with obligations arising in those organisations’ more limited fields must not be overlooked.

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international peace and security. The use of such measures against the wrongdoing State, with the authority of the international organ to which States have entrusted the necessary powers is, of course, an acceptable use of police or enforcement powers on behalf of the community as a whole. In the context of the enforcement of international law, however, those powers are not as effective or satisfactory as they might appear. In the first place they are not vested in the Security Council directly for the purpose of enforcing international law, although it needs to be recognised that, however varied the causes of threats to international peace and security may be, it is likely that noncompliance with international legal obligations will be at the root of many of them. Second, the Security Council is, of course, a political organ, and decisions on the need for enforcement measures are thus matters for political judgment in the Council, and are subject to the constraints implicit in the need to secure adequate majorities for any votes on resolutions deciding on such measures. Lastly, the essentially political nature of the Security Council tends to impair its quality as an independent and impartial community process for the enforcement of the law. (c) Application in Practice Although occasions for considering resort to enforcement action are often of major political importance, those occasions are relatively few, as are occasions on which States have recourse to the judicial settlement of their differences. Both are somewhat extreme situations, and do not represent the normal state of affairs within the international community. In practice, the o­ verwhelming tendency of States in their day-to-day dealings with other States is to apply and abide by international law as a normal part of the regular pattern of international affairs. Against the background of the relatively limited scope for the ­judicial settlement of differences between States and for coercive action against them, such regular practical compliance with the law is particularly noteworthy. That States do so to such an extent probably has much to do with their own self-interest in securing a stable, safe and predictable world in which they can better pursue their broad political and economic goals, but is none the less welcome for that. Even so, the moral factor in observing the law should not be underrated. Law is generally perceived as being good, and compliance with it as desirable. States are reluctant to be seen to be flouting their legal obligations, and even when acting in flagrant violation of the law will usually seek to present some legal justification for what they have done. The international community will usually exact a political and diplomatic price for unconscionable international conduct.

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The International Rule of Law

While such observance of international law in the practice of States is reassuring, and does much to establish that States believe themselves to be bound by a system of international law, it does not itself greatly assist the enquiry into the existence of an international rule of law. It does not, for example, c­ onstitute an independent third party process whereby the law can be independently determined, applied and enforced—although the moral factor referred to may be seen as a limited form of external influence on States, having the effect of securing compliance with the law, as may peer pressure of the membership of the international community as a whole. The fact that States overwhelmingly comply with international law may also be some, indirect, evidence for the existence of an international rule of law, for it shows a degree of confidence in the law which one would only expect if the rules of international law were indeed rooted in an international rule of law. V

The International Rule of Law: The Present and the Future

The survey in the preceding pages has suggested that the primary requirements for an international rule of law are that a complete and certain system of international law, which treats all States as equal in the eyes of the law and which excludes arbitrary power, should be effectively applied and enforced. The extent to which such an international rule of law is a present actuality or no more than a hope for the future has to be seen in the context of certain features of the contemporary international community. The importance of law in international relations should neither be underestimated nor overestimated, lest expectations of what may be possible be unduly lowered or raised. A century ago there could have been some justification for seeing international law as little more than the expression of the structure of power in the international community and as not so much regulating it as following it. The leading States to some extent fashioned the law so as to reflect their own interests and to maintain that balance in the structure of world power politics which suited them. They were able to do so because of the formative phase through which international law was still passing. The result was the achievement of a degree of international order, although based more on power than the rule of law. Indeed, the debate about whether there really was any true system of international law at all was in no way unreal. Such a debate is nowadays of little more than theoretical and historical interest. States accept the reality of international law and its immediate relevance to the conduct of their international relations. The fact that many aspects of international relations now find a focus in international groupings, or more

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formal organisations, has reduced the scope for powerful States to fashion a world order and its accompanying rules of law in their own interests. The universality—in practice as well as principle—of the international community and of international law has led to a degree of international democracy which has been increasingly conducive to the development of the international rule of law. Although it is scarcely questionable that the international community now operates within a legal framework, that is not the exclusive framework for international relations; and although the scope for powerful States to determine the international community’s legal order is now reduced, it has not ­disappeared. International power—political, economic or military—remains very influential, and the role of law in international affairs is, though real, correspondingly modest. While States still overwhelmingly comply with their international legal obligations, violations still occur, both in essentially ‘private’ and bilateral matters as well as those of a more ‘public’ kind involving the interests of the international community as a whole. Violations of international law are not, however, a denial of the international rule of law, unless they involve a general breakdown in law and order in the international community as a whole. This is an unlikely outcome of those violations which occur in a ‘private’ or bilateral context, but the risks, and associated problems, are greater with major violations which raise ‘public’, community, issues. But even the serious international incidents in recent years (such as the conflict between Iraq and Iran; Iraq’s invasion of Kuwait; Cambodia; Somalia; and the fighting in the territory of the former State of Yugoslavia) have not threatened a general breakdown of international law and order. Outbreaks of localised lawlessness do, however, carry the risk of undermining or eroding the international rule of law. They are increasingly seen as posing a threat to the international community as a whole, and action to contain the spread of lawlessness and secure a return to lawful ways are accordingly seen as legitimate, and politically appropriate, responses. It is at this point that concern to uphold the law, and the rule of law, meets the frustrations flowing from the largely inadequate (in practice) means for applying and ­enforcing the law which are at present at the international community’s disposal. The role formerly exercised by major Powers, if necessary by the use of force, in securing a degree of international order is no longer acceptable and will often—­particularly if it involves resort to armed force otherwise than in selfdefence—be unlawful, but no generally effective alternative has yet been put in place. The use of State power is now filtered through a network of consultative processes and, ultimately, the United Nations. If that machinery works

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s­ uccessfully the resultant use of power will have added authority and legitimacy; but it is likely at least to involve delay, and may well fail. Where the wrongfulness of the situation seems clear cut, and the need for action to enforce and uphold the law evident and urgent, the temptation for more powerful States to react to such delay or failure by acting unilaterally (or with allies) to enforce and uphold the law in what they see as the general community interest may be strong. In those circumstances the balance between international order and the international rule of law can be difficult to maintain. The former may call for a State to take unilateral action, but the latter cannot condone it. A self-­ appointed ‘policeman’ State, acting to uphold its own assessment of the law and of the interests of the community (especially where the community, as represented in the United Nations, has itself failed to agree on what the community interest requires), is a dangerous instrument for upholding international law and is in principle antithetical to the international rule of law.88 It is no longer acceptable to the international community as a whole. The danger of abuse is manifest, and with it the danger of encouraging arbitrary action; and States believing that they act to protect the interests of the international community cannot always be relied on to be truly altruistic. However firm may be the conviction of the ‘policeman’ State that its actions are politically right and legally justifiable, that assessment may not necessarily be widely shared. A selfassumed enforcement role is a prerogative of powerful States, seldom capable of being used against them; yet the rule of law must apply to all States, and may even be more important vis à vis powerful States than in relation to those which are small and weak. Such a self-assumed role may be an understandable response to the absence of other effective international action within the prevailing international legal framework, but impatience, and even outrage, have more to do with the springs of policy than with the rule of law. The general unacceptability of unilateral action to uphold the law has been balanced by increasing acceptance of the United Nations, and particularly the 88

The English Court of Appeal had occasion in 1993 to consider a case in which the two accused took the law into their own hands because of dissatisfaction with progress being made by the police. In language as relevant internationally as it is domestically, the Court said, in part: “It might seem a trite observation, but it had to be said that civilised society could not tolerate individuals taking the law into their own hands. That applied to exacting revenge for any perceived wrong, even if the perpetrator of the wrong was clearly established … Their Lordships fully understood the frustration felt when a crime was committed and the offender not traced or brought to justice. Such frustration would never justify self-help.” R. v. Chapman / R. v. Bond, The Times (London) Law Report, 29 June 1993.

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Security Council, as the appropriate forum in which action for that purpose should be pursued and ultimately authorised, if international peace and security are involved. Considerations of legality and the rule of law are as relevant in that context as they are for the conduct of States. The Security Council is no more above the law than are States; and since its conduct is directly constrained by the terms of the United Nations Charter it is perhaps even more susceptible to legal controls than they are. Given that in those situations which involve international peace and security action through the Security Council is increasingly seen as the only lawful basis for action to enforce and uphold international law, the frustrations which that course may involve and which tempt States to embark on unilateral action are equally potent in tempting them to strain the language of the Charter to the limits of, and sometimes beyond, the meaning which that language may reasonably bear. “Self-defence”, as the most important (and some might say, the only) lawful basis under the Charter on which States may unilaterally have recourse to armed force, is particularly at risk of being distorted in this way. While the objective of upholding the law cannot be faulted, securing it by means of doubtful legality does nothing to strengthen the international rule of law and much to undermine it. It is evident that it is in this general area of the enforcement of international law, particularly where questions of peace and security are in issue, that the international rule of law is at its weakest. Paradoxically, it is this weakness which, when coupled with the growing concern of States that international law should be properly applied and enforced, can lead to action which while intended to strengthen the international rule of law in practice may weaken it further. The international community has still to solve the problem of enforcement. Until it does so, the international rule of law is bound to be a less effective counterweight to international political power and the sovereign independence of States than it could, and should, be. The transition from the establishment of international order by the hegemonic power of one State, or a few States, to the full establishment of the international rule of law is a stillcontinuing process. Pending its completion, the needs of international order probably make inevitable the continuing reliance by the international community on the exercise by a few States of the effective power which only they possess. So long as those States are mindful of the value of the international rule of law the international community can continue its gradual progress towards a fully effective rule of law, which must remain one of its ultimate objectives.

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Chapter 10

Rosalyn Higgins, Problems and Process: International Law and How We Use It, 1995 Comment by Dr Philippa Webb, Reader in Public International Law, King’s College London Based on Dame Rosalyn’s acclaimed 1991 Hague Academy General Course in Public International Law, the book Problems and Process has become a beloved text and handsomely-covered presence on the bookshelves of many law students, legal practitioners and academics. The book was published in 1994, the year that she was elected to the International Court of Justice. During her 14 years at the Court, Judge Higgins had an indelible impact on the substance of international law and the procedure of the Court as a member of various Drafting Committees, member and President of the Rules Committee, President of the Court (2006–2009), and through her Separate and Dissenting Opinions. Her impact was no doubt in part due to the fact that she came to the Court with a clear vision of “international law as a system of decision-making directed towards the attainment of certain declared values”.a The clarity of that vision is captured in the pages of Problems and Process and in its deceptively simple subheading “International Law and How We Use It”. Dame Rosalyn explains that the General Course, and the resulting book, is “neither a treatise nor a textbook”.b She deliberately chose to write about the difficult and unanswered questions in international law, including controversies in the law of immunity, the norms on natural resources, and the use of force. The book has nonetheless found its way onto the syllabi of public international law courses, both undergraduate and postgraduate, in law schools around the world. Undergraduate students enjoy its engaging style and concise explanations. Advanced students, practitioners and academics relish its exposition and application of the New Haven School and its nuanced analysis of phenomena that remain “live issues” today such as the role of national courts in the international legal process.

a R Higgins, Problems and Process – International Law and How We Use It (Oxford University Press 1995), vi. b Ibid vi. © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_011

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The book has stood the test of time and been reprinted multiple times. While new legal concepts have emerged since its publication such as the Responsibility to Protect, the analysis contained in Problems and Process remains highly relevant. Dame Rosalyn has observed that “to teach at The Hague Academy is an undertaking like no other”. The significant effort, thought and research that went into her preparation for the General Course is evident in Problems and Process. She interrupted – or rather, expertly juggled – a busy practice at the Bar, a career as Professor of International Law at the London School of Economics and Political Science, and membership of the UN Human Rights Committee to write the General Course. The sacrifices this entailed are hinted at in her acknowledgement of “every moral and practical support” provided by her husband, Lord Higgins.c It is fitting that her next alliteratively-titled book, Themes and Theories published in 2009 and launched at the Peace Palace on her last day as President, is dedicated to him.d c Ibid vii. d R Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in International Law (OUP 2009) vols 1 and 2.

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R. Higgins, Problems and Process – International Law and How We Use It (Oxford University Press 1995). Excerpt: Chapter 1, ‘The Nature and Function of International Law,’ pp. 1–16. Reproduced with the kind permission of Oxford University Press.

The Nature and Function of International Law Rosalyn Higgins International law is not rules. It is a normative system. All organized groups and structures require a system of normative conduct—that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violation carries a price. Normative systems make possible that degree of order if society is to maximize the common good—and, indeed, even to avoid chaos in the web of bilateral and multilateral relationships that that society embraces. Without law at the domestic level, cars cannot safely travel on the roads, purchases cannot be made, personal safety cannot be secured. Without international law, safe aviation could not be agreed, resources could not be allocated, people could not safely choose to dwell in foreign lands. Two points are immediately apparent. The first is that this is humdrum stuff. The role of law is to provide an operational system for securing values that we all desire—security, freedom, the provision of sufficient material goods. It is not, as is commonly supposed, only about resolving disputes. If a legal system works well, then disputes are in large part avoided. The identification of required norms of behaviour, and techniques to secure routine compliance with them, play an important part. An efficacious legal system can also contain competing interests, allowing those who hold them not to insist upon immediate and unqualified vindication. Of course, sometimes dispute-resolution will be needed; or even norms to limit the parameters of conduct when normal friendly relations have broken down and dispute resolution failed. But these last elements are only a small part of the overall picture. The second point is that, in these essentials, international law is no different from domestic law. It is not, as some suppose, an arcane and obscure body of rules whose origin and purpose are shrouded in mystery. But, if the social purpose of international law and domestic law is broadly similar, there are important differences arising from the fact that domestic law operates in a vertical legal order, and international law in a horizontal legal order. Consent and sovereignty are constraining factors against which the prescribing, invoking, and applying of international law norms must operate. In this book I will endeavour to show international law as a normative system, harnessed to the achievement of common values—values that speak to Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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us all, whether we are rich or poor, black or white, of any religion or none, or come from countries that are industrialized or developing.

What is International Law

When we ask ‘What is international law?’, we are in fact asking several questions. We are asking: What is its nature? Is it a body of rules? To whom does it apply? Who ‘regulates’ the application of international law? Why should anyone comply with it? Where is international law to be found? I shall now try to answer each of these component elements in the global question: What is international law? Some will be addressed in this chapter. Some will be reserved for the second. Chapter 1 addresses what we can broadly describe as the nature and function of international law; Chapter 2 is concerned with how we recognize it and where we find it. But it is essential to understand that these are essentially intertwined.1 There is a widely held perception of international law as ‘rules’—rules that are meant to be impartially applied but are frequently ignored. It is further suggested that these rules are ignored because of the absence of effective centralized sanctions—and, in turn, that all of this evidences that international law is not ‘real law’ at all. The view that international law is a body of rules that fails to restrain states falls short on several counts. In the first place, it assumes that law is indeed ‘rules’. But the specialized social processes to which the word ‘law’ refers include many things beside rules. Rules play a part in law, but not the only part. I remain committed to the analysis of international law as process rather than rules and to the view I expressed many years ago, when I said: When … decisions are made by authorized persons or organs, in appropriate forums, within the framework of certain established practices and norms, then what occurs is legal decision-making. In other words, international law is a continuing process of authoritative decisions. This view rejects the notion of law merely as the impartial application of rules. International law is the entire decision-making process, and not just the reference to the trend of past decisions which are termed ‘rules’. There inevitably flows from this definition a concern, especially where the trend

1 My views on these matters remain those elaborated in more detail in R. Higgins, ‘Integrations of Authority and Control: Trends in the Literature of International Law and Relations’, in B. Weston and M. Reisman (eds.), Towards World Order and Human Dignity (1976). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of past decision is not overwhelmingly clear, with policy alternatives for the future.2 Thus ‘rules’ are just accumulated past decisions. And, if international law was just ‘rules’, then international law would indeed be unable to contribute to, and cope with, a changing political world. To rely merely on accumulated past decisions (rules) when the context in which they were articulated has changed— and indeed when their content is often unclear—is to ensure that international law will not be able to contribute to today’s problems and, further, that it will be disobeyed for that reason. The rejection of the perception of law as ‘rules’ entails a necessary consequence. It means that those who have to make decisions on the basis of international law—judges, but also legal advisers and others—are not really simply ‘finding the rule’ and then applying it. That is because the determination of what is the relevant rule is part of the decision-makers’ function; and because the accumulated trend of past decisions should never be applied oblivious of context. Although this reality has been regarded as anathema by many traditionalists, it was well understood by Sir Hersch Lauterpacht. He rejected the notion that the judicial function meant finding the appropriate ‘rule’ in an impartial manner. The judge, he argued, does not ‘find rules’ but he ‘makes choices’—and choices ‘not between claims which are fully justified and claims which have no foundation at all but between claims which have varying degrees of legal merit’.3 The reasons why some insist that international law is ‘rules’, and that all international lawyers have to do is to identify them and apply them, are not hard to find. They are an unconscious reflection of two beliefs, deeply held by many international lawyers. The first reason is that, if international law is regarded as more than rules, and the role of the authorized decision-maker as other than the automatic applier of such rules, international law becomes confused with other phenomena, such as power or social or humanitarian factors. The second reason is that it is felt by many that only by insisting on international law as rules to be impartially applied will it be possible to avoid the manifestation of international legal argument for political ends. I want to deal with each of these reasons in turn, and tell you why I do not agree with them. To seek to contrast law with power (in which task the perception of law as ‘rules’ plays an essential task) is fundamentally flawed. It assumes that law is concerned only with the concept of authority and not with 2 R. Higgins, ‘Policy Considerations and the International Judicial Process’ (1968) 17 ICLQ 58 at 58–9. 3 H. Lauterpacht, The Development of International Law by the International Court (1958), 399. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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power, or control. International law is indeed concerned with authority—and ‘authority’ not just in the sense of binding decisions, but in the broader sense of jurisdictional competence, and more. Myres McDougal has explained: By authority is meant expectations of appropriateness in regard to the phases of effective decision processes. These expectations specifically relate to personnel appropriately endowed with decision-making power; the objectives they should pursue; the physical, temporal and institutional features of the situations in which lawful decisions are made; the values which may be used to sustain decision, and so forth …4 So far, so good. But it is not the case, as is frequently supposed, that international law is concerned with authority alone, and that ‘power’ stands somehow counterpoised to authority, and is nothing to do with law, and is indeed inimical to it. This view—which banishes power to the outer darkness (that is to say, to the province of international relations)—assumes that authority can exist in the total absence of supporting control, or power. But this is a fantasy. The authority which characterizes law exists not in a vacuum, but exactly where it intersects with power. Law, far from being authority battling against power,5 is the interlocking of authority with power. Authority cannot exist in the total absence of control. Of course, there will be particular circumstances when power overrides authority. On such occasions we will not have decision-making that we can term lawful. But that is not to say that law is about authority only, and not about power too; or that power is definitionally to be regarded as hostile to law. It is an integral element of it. What then of the other argument—that a perception of international law as other than neutral rules inevitably leads to bias and partiality? A classical statement of this view was made by Judges Fitzmaurice and Spender in the South West Africa Cases in 1962, when they wrote: We are not unmindful of, nor are we insensible to, the various considerations of a non- judicial character, social, humanitarian and other … but these are matters for the political rather than for the legal arena. They cannot be allowed to deflect us from our duty of reaching a conclusion strictly on the basis of what we believe to be the correct legal view.6 4 M. McDougal, H. Lasswell, and M. Reisman, ‘The World Constitutive Process of Authoritative Decision’ (1966) 19 Journal of Legal Education 253 at 256. 5 For expression of this view, see G. Schwarz enberger, ‘The Misery and Grandeur of International Law’, Inaugural Lecture 1963; see also M. Bos, A Methodology of International Law (1984), esp. ch. xi. 6 South West Africa Cases, ICJ Reports (1962) 466 (joint diss. op.). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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This formulation reflects certain assumptions: that ‘the correct legal view’ is to be discerned by applying ‘rules’—the accumulated trend of past decisions, regardless of context or circumstance—and that ‘the correct legal view’ has nothing to do with applying past decisions to current contexts by reference to objectives (values) that the law is designed to promote. The classical view, so brilliantly articulated by Fitzmaurice but shared by very many others, is that international law can best perform its service to the community exactly by distancing itself from social policy. As the International Court of Justice put it in 1966: ‘Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered.’7 Of course, the International Court of Justice thought it self-evident as to where the law does draw ‘the limits of its own discipline’. But what is self-evident to one is merely question-begging to another.8 Reference to ‘the correct legal view’ or ‘rules’ can never avoid the element of choice (though it can seek to disguise it), nor can it provide guidance to the preferable decision. In making this choice one must inevitably have consideration for the humanitarian, moral, and social purposes of the law. As I have written elsewhere: Policy considerations, although they differ from ‘rules’, are an integral part of that decision making process which we call international law; the assessment of so-called extralegal considerations is part of the legal process, just as is reference to the accumulation of past decisions and current norms. A refusal to acknowledge political and social factors cannot keep law ‘neutral’, for even such a refusal is not without political and social consequence. There is no avoiding the essential relationship between law and politics.9 Because I believe there is no avoiding the essential relationship between law and policy, I also believe that it is desirable that the policy factors are dealt with systematically and openly. Dealing with them systematically10 means that all factors are properly considered and weighed, instead of the decisionmaker unconsciously narrowing or selecting what he will take into account in order to reach a decision that he has instinctively predetermined is desirable.­ 7 8 9 10

South West Africa Cases, ICJ Reports (1966) 6 at para. 49. See C.W. Jenks, Law in the World Community (1967), 54. Higgins, ‘Integrations of Authority and Control’, 85. Much of the work of M. McDougal and his associates has been directed towards elaborating a systematic method of inquiry for decision-makers. See, among many others, ‘Some Basic Theoretical Concerns about International Law: A Policy Oriented Framework of Enquiry’ (1960) 4 Journal of Conflict Resolution 337. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Dealing with policy factors openly means that the decision-maker himself is subjected to the discipline of facing them squarely (instead of achieving unconsciously desired policy objectives by making a particular choice, which is then given the label of ‘the correct legal rule’). It also means that the choices made are open to public scrutiny and discussion. All this being said, there is still a problem we have to address. If international law is not the mere application of neutral rules in an impartial fashion, but requires choices to be made between alternative norms that could, in context, each be applicable, then do we really have something other than a justification of the end by the means? This is the serious question, made the more so by the events of the early 1980s. During the administration of President Reagan, the United States engaged in various acts of foreign policy which were designed not only to secure national goals but to secure certain objectives perceived as being in the interests of international order and justice. In particular, there occurred various military interventions designed to remove totalitarian rulers and to allow a democratic freedom of choice to the peoples of the countries concerned. We may cite military action in Nicaragua in 1983, in Grenada in 1983, and in Panama in 1989. There has also been military action to punish perceived terrorism: here we may cite the US bombing of Libya in 1986. Each of these actions occasioned significant debate, among Americans and friends of the United States as much as among others.11 There were widely differing views as to the lawfulness of these various actions under international law. The Legal Adviser to the Department of State and the scholars who supported the military interventions very much emphasized the social purposes of international law in their analysis of what was and was not permitted under the United ­Nations Charter and under customary international law.12 My intention is not to enter the fray on the substance of these matters (though I shall have some things to say that bear upon them). Rather, I ask this question: if one shares the belief in the preferability of democracy over 11 See, inter alia, F. Boyle et al., ‘International Lawlessness in Grenada’ (1984) 78 AJIL 172; T. Farer, ‘Panama: Beyond the Charter Paradigm’ (1990) 87 AJIL 503; C. Greenwood, ‘International Law and the US Air Operation against Libya’, (1987) 89 West Virginia Law Review 933; L. Henkin, ‘The Invasion of Panama under International Law: A Gross Violation’ (1991) 29 Columbia Journal of Transnational Law 293; V. Nanda, ‘The Validity of US Intervention in Panama under International Law’ (1990) 84 AJIL 494; J. Norton-Moore, ‘Grenada and the International Double Standard’ (1984) 78 AJIL 145; E. Schumacher, ‘The US and Libya’ (1986) 65 Foreign Affairs 329; P. Thornberry, ‘International Law and its Discontents: The US Raid on Libya’ (1986) 8 Liverpool Law Review 53. 12 See the statement by the US Ambassador Walters to the UN Security Council (15 Apr. 1986), repr. in the Department of State Bulletin (June 1986), 19. See also ‘Protection of Nationals’, US Digest, ch. 4, para. 1, repr. in (1984) 78 AJIL 200, and A. d’Amato, ‘The Invasion of Panama was a Lawful Response to Tyranny’ (1990) 84 AJIL 516. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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t­yranny, and if one is committed to the policy-science approach to international law, whereby trends of past decisions are to be interpreted with policy objectives in mind, does it necessarily follow that one would have viewed all these actions as lawful? I think not. In the first place, I do not believe that the policy-science approach requires one to find every means possible if the end is desirable. Trends of past decisions still have an important role to play in the choices to be made, notwithstanding the importance of both context and desired outcome. Where there is ambiguity or uncertainty, the policy-directed choice can properly be made. Some will say that, in a decentralized legal order, to allow one party to interpret the law to achieve desirable outcomes merely will allow another, less scrupulous party to claim to do the same. I am not greatly impressed with that argument. There is no escaping the duty that each and every one of us has to test the validity of legal claims. We will each know which are intellectually supportable and which are not, and it is a chimera to suppose that, if only international law is perceived as the application of neutral rules, it will then be invoked only in an unbiased manner. But it is in the common interest that some prohibitions should be absolute (for example, the prohibitions against some kinds of weaponry); and it is in the common interest that other kinds of limitation on conduct should be regarded as compelling, even if, on any single occasion, that prevents the achievement of an outcome otherwise to be regarded as desirable. That being said, it is still quite wide of the mark to suggest, as some do, that, in the absence of third-party determination, the policy-science approach means simply whatever the policy-maker wants.13 It really carries matters no further for critics to say that this approach ‘can lead to international law being used by states as a device for post facto justifying decisions without really taking international law into account’.14 This simply begs the question of what international law is. Such a comment merely presupposes that there is a ‘real’ international law that all men of good faith can recognize—that is, rules that can be neutrally applied, regardless of circumstance and context. And that is where the debate began. Of course the debate on legal theory is not only about whether international law is ‘rules’ or ‘process’.15 But this is a critical aspect. Emphasis on rules is 13 14 15

See W. Friedmann, ‘Law and Politics in the Vietnamese War: A Comment’ (1967) 61 AJIL 776 at 783. G.J.H. Van Hoof, Rethinking the Sources of International Law (1983), 43. There have been many important schools of thought, to which only brief reference can here be made. They include, among others, the naturalists, legal realism, inductivism, functionalism, structural positivism, and systems analysis. There is an impressive literature by and on the members of these schools of thought. Two interesting surveys of the Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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a­ ssociated with, but not limited to, legal positivists—that is to say, those who conceive of law as commands emanating from a sovereign. Austin, the founding father of legal positivism, put it thus: ‘Every positive law, or every law simply and strictly so-called, is set by a sovereign individual or a sovereign body of individuals, to a person or persons in a state of subjection to its authority.’16 Kelsen, seeking to give meaning to positivism in a horizontal, decentralized international legal order, where command and sovereignty are notably lacking, proposed the existence of a grundnorm—the highest fundamental norm from which all others derived their binding force.17 Some leading scholars have sought to reconcile the ‘rule’ and ‘process’ approaches.18 Yet others, while showing an interest in these matters, have sought to avoid taking positions, insisting that they will merely address the substantive problems of international law on a pragmatic level.19 My view is that, superficially attractive though ‘reconciliation’ or ‘synthesis’ or ‘middle views’ may seem (as writers frequently want to claim to offer these attractive middle ways20), they avoid or blur the essential questions rather than provide an answer to them. And pragmatism itself entails certain assumptions about legal philosophy, no matter how much it seeks to cut clear of the argument.

16 17 18 19

20

ideas of many of these schools (from totally different viewpoints) are offered by Van Hoof, Rethinking the Sources of International Law, 13–84; and M. McDougal and M. Reisman, ‘Theories about International Law: Prologue to a Configurative Jurisprudence’ (1967) 8 Virginia Journal of International Law 188–299. J. Austin, Lectures on Jurisprudence or the Philosophy of Positive Law (5th edn., 1954), i. 34. H. Kelsen, General Theory of Law and State, trans. A. Wedberg (1949), 113. M. Koskenniemi, From Apology to Utopia (1989), 159, categoriz es the General Courses given by Schachter and Virally as ‘appealing to a combination of the “rule” and “process” aspects of the law’. See Recueil des cours (1982, v; 1983, v). The writings of Jennings are characterized by a lively interest in theory coupled with a resolutely pragmatic approach on any given issue. See Receuil des cours (1967), 320. See also M. Sørensen, Receuil des cours (1960, iii), 11; and citations in Koskenniemi, From Apology to Utopia, 159 n. 73. If Schachter and Virally are to be regarded as reconciliationist (a characterization of these writers that is in my view an oversimplification and not entirely apt), then one may refer to the writings of C.W. Jenks, The Common Law of Mankind (1955), for exhortation of the merits of ‘synthesis’ of diverse views and to Van Hoof, Rethinking the Sources of International Law, for an exposition of the ‘middle path of structural positivism’. In a striking passage Van Hoof writes: ‘The die-hard Positivist is like a photographer who once makes a picture with a defective camera which does not even register the most relevant aspects of reality. In addition he refuses to update his picture at regular intervals. The PolicyOriented jurist, on the other hand, tries to make a continuing three-dimensional movie of society. The former was said to be likely to come up with fictitious answers. The latter cannot provide that minimum of certainty and stability which is required for the law to be able to perform its ordering and regulating function.’ (p. 44).

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So I should state clearly that these lectures are predicated on the view that a choice has to be made. The choice is for a perception of international law as a process. As we will see, this entails harder work in identifying sources and applying norms, as nothing is mechanistic and context is always important. But law as process does not entail a rejection of that core predictability that is essential if law is to perform its functions in society.21 To an extent, all of these debates are now well rehearsed. While profoundly important, they are not new. A recent important phenomenon has been writing on international law that is characterized as critical legal studies. It has more in common with policy science than either the policy scientists or the critical realists might wish to acknowledge. For both schools, the legal theory is applicable to law in general and not just to international law (even if we, as international lawyers, are interested in its application to our branch of law). Both take as the starting-point that law is deeply rooted in social theory. Both locate legal process in social context and make the place of values quite explicit. Both reject law as rules and exceptions. But the critical-studies scholar will see law as contradictions22 or as essentially indeterminate at its core23 rather than as complementary or competing norms between which choices have to be made in particular circumstances. The critical-studies scholar believes that these contradictions are either historically contingent or inherent in the human experience. This view leads to the pessimistic conclusion that what international law can do is to point out the problems but not assist in the achievement of goals. But one can accept the characterization of the origins of the place of contradictions in the legal system without concluding that there is no prospect of rationally choosing, for the common good, between these contradictions. Koskenniemi, for example, seems to preclude the possibility of making such choices on two key grounds. First, issues of contextual justice require ‘venturing into fields such as politics, social and economic casuistry which were formally delimited beyond the point at which legal argument was supposed to stop in order to remain “legal”’.24 But this is to rejoin the ultra-classicist position of Fitzmaurice. Of course law cannot alone achieve justice. The making of 21 22

23 24

But see A. d’Amato, The Concept of Custom in International Law (1971); and H. Thirlway, International Customary Law and Codification (1972), 51. See D. Kennedy, ‘The Structure of Blackstone’s Commentaries’ (1979) 18 Buffalo Law Review 205; D. Kennedy, ‘Theses about International Law Discourse’ (1980) 23 German ybil 353; and G. Binder, Treaty Conflict and Political Contradiction: The Dialectic of Duplicity (1990). See Koskenniemi, From Apology to Utopia. M. Koskenniemi, ‘The Politics of International Law’ (1990) 1 ejil 4 at 32.

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legal choices will not even contribute to justice if it purports totally to ignore political and social contexts. To remain ‘legal’ is not to ignore everything that is not ‘rules’. To remain ‘legal’ is to ensure that decisions are made by those authorized to do so, with important guiding reliance on past decisions, and with available choices being made on the basis of community interests and for the promotion of common values. Secondly, Koskenniemi contends that liberalism is inherently flawed in that its guiding premiss—that the only basis of constraint is to prevent harm to others – presupposes in fact that some rights should prevail over others. One sees the intellectual point, but choicemaking does not have to be structured on such an extreme application of liberalism—i.e the imposition of no values at all save the avoidance of harm. To propose—as, for example, the policy—science approach would do—guiding principles for choice does of course predicate that certain views or assumptions as to what is desirable should prevail over others. But I have no problem about this persuasive character of legal jurisprudence. It is the necessary stuff of our very existence in community with others. Everyone is entitled to participate in the identification and articulation as to what they perceive the values to be promoted. Many factors, including the responsive chords struck in those to whom the argument is made, will determine whether particular suggestions prevail. There are certain related matters that we must discuss. The first is that, the further one moves away from positivism and rules, the less important becomes the distinction between lex lata and lex ferenda—the law as it is and the law as it might be. If law as rules requires the application of outdated and inappropriate norms, then law as process encourages interpretation and choice that is more compatible with values we seek to promote and objectives we seek to achieve. But it is only to a rule-based lawyer that this is to be classified as ‘law as it ought to be’, standing in contrast to ‘law as it is’. To the law as process, this is in large measure a false dichotomy, a cleavage that we can ourselves banish from existence. Closely related to this is the question of lacunae. There might well exist topics on which there are no specific rules of international law: the liability of states for the debts of international organizations of which they are members, for example; or the question of whether a procedural delict that entails no substantive harm requires the payment of compensation. The rule-based lawyer can say only that international law has nothing to say on the matter. But to the person who views international law as process, there are still the tools for authoritative decision-making on the problem (by the use of analogy, by reference to context, by analysis of the alternative consequences) notwithstanding the absence of a precise rule which must be applied.

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A further consequence of analysing international law as a system, a process, rather than rules or commands, is that we will be interested in a variety of phenomena—claims and counterclaims, state practice, decisions by a variety of authorized decision-makers. All of this makes up the fabric of international law. In trying to identify what is international law, our focus will not only be on the International Court of Justice. We will not be embracing the view of those who have written that international law is to be understood as what an impartial court would say if seized of the issue.25 That view rests on the perception of international law as the truly neutral application of rules. This book, taking as its starting-point the perception of international law as an authoritative system of decision-making available in a decentralized system to all authorized decision-makers, will not be centred on the International Court of Justice, hugely important though its role is. I began with the question: What is international law? But the answer to this first question cannot be concluded without also asking whether it is really a universal system, or whether different views of its nature and content are not held in the socialist and in developing countries. For preperestroika marxists, international law was part of the superstructure of law, that would— along with the state—wither when the classless society was achieved. It was an attribute of the foreign policy of states,26 an expression of the will of the ruling class. Where the will of the ruling classes of the socialist and capitalist systems coincided, international law could exist. It existed side by side with socialist international law, which was said to exist between the various socialist countries. Although this perception of the nature of international law was fundamentally different from that held in the West, there was none the less an operational agreement on the existence of international law as a system, and on s­ ubstantial parts of its content. A major difference was over third-party determination of disputes; the Marxist approach to international law found it inappropriate for international courts to resolve disputes by determining the content of the law. And, although treaty obligations were undertaken, there was until recently resistance to international monitoring of compliance with these obligations. From the socialist perspective, international law was not universal—but not because it was imposed by the West. It was not universal

25 Thirlway, International Customary Law and Codification, 52. 26 See V. Vereshchetin and R. Mullerson, ‘International Law in an Interdependent World’ (1990) 28 Columbia Journal of Transnational Law 291. For a very original and radical analysis which challenges our state-centred perception of the international system (and thus of international law), see P. Allott, Eunomia (1990).

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because of its ­nature —the co-ordination of the wills of socialist and capitalist states. In the last three years the emphasis has been less on international law as the co-ordination of clashing wills, than on international law as the articulation of a universal interest. That universal interest is exemplified by the common threat to human survival. The central idea of new political thinking within the former Soviet Union is now said to be the priority of universal human values;27 and international law is seen as the vehicle for achieving these. The developing countries have not had the Marxist historical tradition of preoccupation with legal theory. They have rather noted that much of the substance of customary international law was formulated before they themselves had become independent, and that their contribution to the articulation of these norms was therefore limited.28 This did not lead them to insist either that these norms were definitionally inimical to their interests or that they were not bound by them on achieving independence. International law as a whole has been readily accepted by the Third World as of universal application. However, two phenomena have undoubtedly been present. The first has been that individual norms have been challenged as being inequitable and as perpetuating the interests of the economically advantaged countries. Efforts have been made, often successful, to develop and change these norms to reflect contemporary realities and aspirations. All this has been done as part of the law-developing process—itself part of international law—which is the subject of Chapter 2. The second qualification to the general acceptance of international law has been that newly independent countries are no longer regarded as succeeding to every international law obligation (including treaties) incumbent upon the parent state.29 What is striking is that there has been no suggestion by emergent countries that they are not bound upon independence by international law as a whole, 27

28 29

See Vereshchetin and Mullerson, ‘International Law’. They cite as universal values matters that a policy scientist would describe rather as desired outcomes: ‘Diminishing the threat of world war, nuclear catastrophe … protection of the environment …’ etc. (p. 292). They also state that ‘Class interests in the international arena, as a rule, are expressed as national interests’ (p. 293). But it is an error to suppose that the main themes of international law reflect only Western ideas and contributions: see C. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (1967). For an affirmation of an emergent state’s succession to treaties made for it by the parent state, see United States Nationals in Morocco Case, ICJ Reports (1952) 176 at 193–4. For an excellent detailed but succinct survey of the complex issue of the ‘clean slate’ and state succession, see Oppenheim’s International Law 9th edn., ed. R. Jennings and A. Watts (1992), i. pt. 1, pp. 227–34.

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even if its formation owed much to Western European history;30 nor indeed that the doctrine of state succession would be inapplicable in its entirety. More generally, this debate has been engaged on the substance and content of international law—but its universality has not been challenged. Indeed, the detailed provisions of international law have been accepted and relied on— and rightly so, for international law is the property of no one grouping but is rather a system that is relevant to us all.

To Whom does International Law Apply?

We can safely say that international law applies to states in their relationship with each other. But that response is far from complete. I will say only that international law today applies to international organizations also. It also applies in some circumstances directly to individuals (for example, in their responsibility for their conduct in war, or in their rights regarding fundamental freedoms); and in some circumstances indirectly (as when they are required, through the intervention of necessary state legislation, to comply with UN trade sanctions against a particular country). I shall return to this issue in Chapter 3.

What is the Basis of Obligation of International Law?

To an Austinian positivist, the concept of law is that of a sovereign command made effective by the application of sanction. Because sanction plays so little a role in the international legal system, international law is not properly to be called law at all. Even to the non-positivists, there are some difficult questions that must be answered. All are agreed that a system cannot be described as ‘law’ unless there exists a sense of obligation that its norms are binding, and that states are required to comply with them in their behaviour. The issue arises at two levels. First, there is the question as to why any normative system should be regarded, in its generality, as binding (I say ‘in its generality’, because there will always be debate about the legal status of any given norm at any moment of time. That is something to which we will return later.) Secondly, there is the question as to why states should comply with the norms of international law. The two questions are often dealt with interchangeably, as if they are the 30

For a strongly Western perspective of the solely European contribution to international law, and its mere acceptance by the East, see B. Verzijl, ‘Western European Influence on the Foundation of International Law’ (1955) 1/4 International Relations 137–146.

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same question. But they are not, although they are closely related. The Austinian imperative—that there must exist an effective sanction—is relevant to the second question, but not to the first. Let us take them each in turn. What is it that makes states regard international law as ‘binding’ and thus capable of being a true system of law? This question has generated an enormous literature31 and the answers are far from easy. For some writers the answer lies in origins other than in international law itself. They suggest that it is in the natural order of things that certain matters should be regulated in a compulsory manner. An obligatory foundation to the basic precepts of justice is to be found in natural law. Natural law itself originally had certain religious connotations,32 but over the years has come to be a relatively secularized notion.33 It has been suggested in the recent writing of Koskenniemi34 that ‘natural’ obligations of justice became not those of divine law but essentially what is necessary for subsistence and self-preservation. Others have focused on consent as the key to the binding nature of international law. Norms are binding because states consent that they should be. This view is based closely on the sovereignty of states, which in turn emphasizes their freedom to act unilaterally save to the extent they agreed to be constrained. For socialist scholars, the problem of the basis of obligation and of the sources of international law is one and the same thing. International law is made by the concordance of the wills of states; and that is enough for it to follow that this brings ‘mandatory legal rules’ into existence. Notwithstanding the very important changes that took place in the early 1990s in Soviet policy, this apparently remains the current orthodoxy.35 Western scholars have traditionally distinguished the basis 31

e.g. J.L. Brierly, The Basis of Obligation in International Law (1958); H. Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 byil 1; P. Corbett, ‘The Consent of States and the Sources of International Law’ (1925) 6 byil 20; G. Tunkin, ‘Coexistence and International Law’, Recueil des cours (1958), 5 at 32 ff.; H. Kelsen, Principles of International Law (2nd rev. edn., 1966), 563 ff.; Jenks, The Common Law of Mankind, Ch. 1; M. Kaplan and N Katzenbach, The Political Foundations of International Law (1961), 55–80 and 340–55. 32 See J. Bodin, Six Livres de la Republique (1593); J. Finnis, Natural Law and Natural Rights (1980); E. Midgley, The Natural Law Tradition and the Theory of International Relations (1975); S. Pufendorf, De jure naturae et gentium libri octo, trans. C. and W. Oldfather (1934). 33 See Locke, Two Treatises, Second Treatise, Ch. iii, s. 16, 125; Pufendorf, De Jure Naturae, bk. ii, Ch. i, 5.8, 152–3; Hume, A Treatise, bk. iii, s. ii, 547. 34 Koskenniemi, From Apology to Utopia, 70. 35 See G. Tunkin, in G. Tunkin (ed.), International Law, trans. X. Pikarski (1990), chs. 1, 3, at pp. 20 and 39. Tunkin states that ‘Law is the sum total of rules which are considered binding on the subjects of a given system of law’ (p. 20). He continues that ‘before explaining why rules of law are deemed binding’ it is necessary to trace the origin of law as a specific social phenomenon. But he never does explain why rules are deemed binding, merely explaining that rules come into existence with the consent of states. Although the new

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of obligation from the question of the sources of international law—while acknowledging their close interrelationship. But they too have widely accepted consent as the basis of obligation. Socialist scholars have had the advantage of this logic: that, if consent is the basis of obligation, treaties are the prime source of international law, and custom, being less clearly based on consent, is to be regarded with suspicion. Western lawyers who—at least until their numerical majority in international decision- making was lost to the Third World—were comfortable with custom as the source of law have to explain why it is binding. Again, there has been some confusion as to whether the question is ‘why is custom as a genre deemed binding?’; or ‘why should norm X, which derives from customary law, bind state Y, who has not consented to it?’. Although this problem is most sharply perceived in relation to custom-­ derived norms, it exists (as Fitzmaurice rightly showed) even in respect of treaties. Why, he asked, should we deem even the expression of consent, pacta sunt servanda, as binding? The only answer, he felt, was an infinitely regressive concept of the consent of states, anterior to the international law system itself.36 In so far as consent has been regarded as central to obligation, there has been a tendency to mitigate its rigours through a variety of techniques. This ‘forward consent’ can be given to an obligation to resolve disputes through judicial means: this is done through the Optional Clause. And acquiescence and unilateral acts each have a role to play as evidence of presumed or deemed intent to be bound, even when consent has not been clearly given.37 Koskenniemi elaborates the consent-based theory thus: since international law is, according to modern doctrine, based on the consent of states, it is open to the criticism that international law is whatever states choose to regard as law, so that the law cannot be an effective external constraint on their behaviour.38 In so far as it is responded that states do accept these obligations, and

36 37

38

post-perestroika political thinking emphasizes that international law must be based on universal values (rather than the co-ordinated wills of states representing different values), there is nothing to indicate a retraction from the central role of consent. See Vereshchetin and Mullerson, ‘International Law in an Interdependent World’, 291. G.G. Fitzmaurice, ‘The Foundations of the Authority of International Law and the Problem of Enforcement’ (1956) 19 Modern Law Review 1. Koskenniemi argues that the International Court has allocated this role to silence even where it is quite clear there was never any intention to be bound—e.g. in the Anglo— Norwegian Fisheries Case (see From Apology to Utopia, 255–8). For an interesting analysis of the mitigation of the consent constraint in practice, see E. Lauterpacht, Aspects of the Administration of International Justice (1991), Ch. iii, pp. 23–58. This summary is taken from the summary conveniently provided by V. Lowe in his review of Koskenniemi in Cambridge Law Journal 3 (1989), 527–9. For an interesting review article on Koskenniemi, and on V. Krotochvil, Rules, Norms and Decisions: On the Conditions

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do not insist that consent also allows them to change their minds, or deny consent already given, then (says Koskenniemi) international law is open to the criticism that it is apologist, merely providing a semblance of justification and legitimation for what states choose to do. If states simply want to obey, the basis of obligation is apologist; if it is claimed norms exist which states are not prepared to obey, then the basis of obligation is utopian. He thus carries the Fitzmaurice thesis further. Fitzmaurice says the basis of obligation must lie in something anterior to international law itself. Koskenniemi says that, if states consent, then it is not law at all, but just an agreement by them that their behaviour will be regarded as normative. Both Fitzmaurice and Koskenniemi rely on derivational logic to construct these seemingly awesome problems. But international law is not the vindication of authority over power (which is the supposition at the heart of ­Koskeniemmi’s ‘apologist’ argument). It is decision-making by authorized ­decision-makers, when authority and power coincide. It is the initial faulty perspective of law as the vindication of authority over power that leads ­Koskenniemi to suppose that, if power is in harmony with authority (through consent, in his model), then what one has cannot be law. In any event, we have in international law a system in which norms emerge either through express consent, or because there is no opposition—or because it is thought that, sovereignty notwithstanding, opposition would not succeed—to obligations being imposed in the absence of such specific consent. We will return to these matters in Chapter 2, which deals with sources. As for the basis of obligation,39 reciprocity is a central element. As notions of natural justice were replaced by consent, so consent has gradually been replaced by consensus. States have undoubtedly come to regard themselves as bound by norms to which they have not given their express consent, either because they were not party to the law-making agency or because they did not wish to approve the specific proposals. If consensus, often tacit and sometimes unenthusiastic, is the basis of international law, then that consensus comes about because states perceive a reciprocal advantage in cautioning self-restraint.40 It rarely is in the national interest to violate international law, even though there

39 40

of Practical and Legal Reasoning in International Relations and Domestic Affairs (1989), see I. Scobbie, ‘Towards the Elimination of International Law: Some Radical Scepticism about Sceptical Radicalism’ (1991) 61 byil 339. The classic starting-point remains Brierly, The Basis of Obligation in International Law. See also McDougal and Reisman, ‘Theories about International Law’, 188–94; and myriad others. This brings one back to the utilitarian variation of natural justice identified by Koskenniemi (From Apology to Utopia, 74).

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might be short-term advantages in doing so.41 For law as a process of decisionmaking this is enough. The search for some other basis of obligation is unnecessary; and the terming of this basis as ‘apologist’ does not change a normative system of decision-making into something other than law. What, then, of sanctions? In contrast to the question of the basis of legal obligation, there is little controversy among contemporary international lawyers about the place of sanctions in identifying what we mean by international law. There are very few today who believe that international law cannot exist in the absence of effective sanctions, or that sanctions predicate the existence of particular norms of international law.42 While, as we have shown, there is a wide range of views on the basis of obligation—natural law, consent, principles anterior to the legal system itself, consensus, reciprocity—it is interesting that they all exclude imposed obligation by the enforcement of sanctions. 41 42

Henkin’s analysis of the way in which the international system is geared to law compliance remains outstanding (L. Henkin, How Nations Behave, 2nd edn., 1979). G. Schwarzenberger is sometimes regarded as having donned the mantle of Austin and Kelsen in this regard. But his argument does not centre on sanctions as such. Rather, he contends that, if particular rules of international law are constantly breached, we cannot continue to call them law. But he does not argue that all rules will be breached in the absence of sanctions; or that without sanctions international law does not exist. See The Misery and Grandeur of International Law (1963); A Manual of International Law (5th edn., 1967); The Inductive Approach to International Law (1962).

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Chapter 11

Rosalyn Higgins, Time and the Law: International Perspectives on an Old Problem, 1997 Comment by Ben Juratowitch QC, Partner, Freshfields Bruckhaus Deringer Dame Rosalyn Higgins delivered the prestigious FA Mann Lecture in London in 1996, the year after she became a judge of the ICJ. The title was ‘Time and the Law’. It became one of the most cited articles in the International and Comparative Law Quarterly. In the lecture she considered whether consent to jurisdiction given at one point in time permits that jurisdiction to be exercised over events occurring at an earlier point in time. She said that in answering that question in the affirmative in the Bosnia Genocide casea the ICJ had ‘applied the principle of jurisdictional retroactivity’.b That did not sound like a compliment, and she recalled that the United Nations Human Rights Committee, of which she had been a member, had taken a different approach. She addressed whether the words used in a treaty should be given their meaning at the time that they were agreed, or at the time they fell to be interpreted. In the manner characteristic of great lawyers, she gave a simple answer to a complicated problem. It was that ‘the intention of the parties is really the key’.c This was the intention of the parties at the time of their agreement as to whether the meaning of the words they used was to be frozen in time or to evolve. Answering that question will involve differing degrees of difficulty in different cases, but it is the identification of the question to be asked that has proved significant, not least in the Navigational and Related Rights case.d Dame Rosalyn was explicit that one of her objectives was to show that ‘temporal matters’ are ‘a necessary incident to the resolution of important matters

a Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections, Judgment [1996] ICJ Rep 595, para 34. b R Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 International and Comparative Law Quarterly, 501, 506. Page 269 in this Anthology. c Ibid, 519. d Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment [2009] ICJ Rep 213, paras 63–6. © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_012

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of policy’.e That concern with policy was apparent in her observation that she had ‘no complaint about the result-led reasoning’f in the Strasbourg Court’s judgment concerning men who had been convicted of raping their wives when there could have been no such conviction at the time of their conduct. This was morally desirable legal retroactivity. She emphasised that the UK War Crimes Act 1991, by contrast, involved no retroactive criminal liability. She pointed out that a number of eminent British judges who had opposed the legislation had been confused about the difference between retroactive criminal liability and the UK asserting in 1991 jurisdiction over war crimes that were illegal under international law at the time of their commission in 1939–1945. She did not restrict herself to Europe, referring to the adoption of an amnesty by referendum in Uruguay, and asking ‘by what moral entitlement may those who have not suffered decide that the perpetrators of harm to others should walk free?’g In a lyrical introduction Dame Rosalyn remarked on ‘the idea that we see at this moment, through our telescopes, stars that no longer exist’.h When, at the time of resolving a dispute, an international tribunal examines its own jurisdiction, the rules of law it is to apply, and the facts to which it is to apply those rules, it may become apparent that those matters have materially different locations in time, leading to complicated questions of law. In this magisterial lecture, Dame Rosalyn gave us a framework for tackling them. e f g h

Higgins (n b), 501. Ibid, 508. Ibid, 510. Ibid, 501.

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R. Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997), 46 ­International and Comparative Law Quarterly, pp. 501–20. Reproduced with the kind permission of the British Institute of International and Comparative Law.

Time and the Law: International Perspectives on an Old Problem Rosalyn Higgins* I begin by confessing a general fascination with the concept of time. I puzzle endlessly over the relationship between time and matter, and the insistence of scientists that before the Big Bang time did not exist. I grapple with the relationship between time and speed, and the fact that if we could travel at the speed of light time would not move. I seek to grasp Stephen Hawking’s recent conversion to the view that, in the physical world, time may yet run in reverse. I am intrigued that our concepts of time came to Australia only with the First Fleet, for aboriginal time was cyclical rather than linear. Events could recur, dead people could live again.1 I find exhilarating the idea that we see at this moment, through our telescopes, stars that no longer exist. I love the objective reality of the equator and the total artificiality of the meridian, and the intention that this felicitous fiction is the place for us to see in the “real beginning” of the next century. It has therefore been a happy occurrence for me that the concept of time plays an important part, too, in international law. Every student of international law is familiar, of course, with the inter-temporal rule of international law, and I shall not be able to escape saying a word on that in due course. But I shall hope to show, first, that temporal matters are all around us; and, second, that they are a necessary incident to the resolution of important matters of policy. This fact is perhaps conveniently illustrated if we gather the plethora of ­legal detail on matters temporal under the following heads: Now and Then; Then and Now; Long Enough Time; and Too Long Ago. I

Now and Then

International law exists in a horizontal legal system. Because the jurisdiction of all international tribunals is based on consent, acceptances of that consent * Judge of the ICJ. This article is based on the 20th F.A. Mann lecture, delivered on 26 Nov. 1996. 1 G. Davidson, The Unforgiving Minute, p. 5.

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have to be articulated at a precise moment of time. Does the acceptance now suppose that jurisdiction may be exercised over facts that occurred then? The answer is complex, and depends in part upon the type of expression of consent and the nature of the tribunal to which the consent is given. One method by which States accept the jurisdiction of the International Court of Justice is through Article 36(2) of the Statute, the so-called Optional Clause. Under this provision a State declares that it accepts the jurisdiction of the Court in respect of a dispute with any other State which accepts the same obligations. Just what, temporally speaking, does this mean? The answer is complicated by the fact that the Statute of the International Court provides that it may settle disputes over which it has jurisdiction. A dispute may crystallise at a time different from that at which the precipitating facts or situations occurred. The broad position of the Court—and its predecessor, the Permanent Court of International Justice—has been that acceptance of the jurisdiction of the Court does have retrospective effect in respect of these two elements, unless this is specifically excluded by a reservation to the general acceptance of jurisdiction.2 The most effective way for a State to avoid that retrospective application is by a formula such as that introduced by Belgium in 1925. It stipulated that Belgium accepted the jurisdiction of the Permanent Court save for “any disputes arising after the ratification of the present declaration with regard to situations or facts subsequent to this ratification”.3 This double temporal exclusion appears in many comparable declarations accepting the jurisdiction of the International Court.4 An exclusion from the jurisdiction of the Court of events prior in time to the acceptance of the Optional Clause can also be achieved in other ways. There can be reference to a past date for commencement; or particular past periods of time (which often reflect sensitive events) can also be excluded from the jurisdictional reach of the Court. Some 20 such declarations have been made under the International Court, referring to periods of hostilities, military occupation, or to the Second World War.5 Whichever form of reservation is used, it is still necessary for the Court to decide when a particular dispute crystallised, to see if it is before the exclusion date or outside the excluded period. The same is true of those facts 2 Mavrommatis Palestine Concessions (Greece v. United Kingdom), Judgment No.2, (Jurisdiction) (1924) p.c.i.j. Ser. A, No. 2, p. 6 at p. 35; Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Rep. 1952, 93, 106. 3 See Second Annual Report of the PCIJ, Ser. E, No. 2, p. 77. 4 See the excellent study by S. Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice (1995), Annex ii, pp. 142–143. 5 Idem, p. 150.

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and situations giving rise to the dispute. Disputes, facts and situations may have occurred at different times. The jurisprudence of the two Courts reveals something of a tussle between the proponents and opponents of the “comprehensive whole theory” of matters temporal.6 I should briefly add that the principle of reciprocity applies to reservations, including temporal reservations, to the Optional Clause declarations,7 whereby each party can benefit from an exclusion provision of the other. This complicates matters yet further. The Electricity Company of Sofia and Bulgaria, Right of Passage8 and Interhande9 cases illustrate the argument well. The European Convention on Human Rights and the International Covenant on Civil and Political Rights are both human rights treaties with “opting in” provisions that allow a party to either treaty to accept the jurisdiction of the relevant treaty bodies. Neither of these require consideration of whether “disputes” exist, and from when. Articles 25 and 46 of the European Convention effect the establishment of jurisdiction of the Commission and Court; and an Additional Optional Protocol to the Covenant achieves the same end for parties to the Covenant. Nor does the principle of reciprocity to reservations apply here. If the parties to these treaties accept these optional jurisdictional provisions at the very same time they become party to the treaty itself, no temporal issue arises. But—and here a problem arises that is not present for the International Court—often the acceptance of jurisdiction follows some years after becoming party to the treaty that contains the obligations. What are the temporal implications? The European Court of Human Rights has taken a retrospective position similar to the International Court, in that it has found that jurisdiction exists over disputes, claims and events occurring at any time since the State concerned became party to the European Convention itself, regardless that the date of acceptance of the jurisdiction of the Commission or Court might be later.10 The implications of this have been somewhat

6 7 8 9 10

See e.g. the dissenting opinions of Judges Winiarski and Badawi in Right of Passage over ­Indian Territory, Merits, Judgment, I.C.J. Rep. 1960, p. 6 at p. 73. Electricity Company of Sofia and Bulgaria, Judgment (1939) p.c.i.j. Ser. A/B, No. 77, p. 64 at p. 81. Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Rep. 1957, 125, 142; Merits, supra n. 6, at pp. 35–36. See also the discussion in Rosenne, The Law and Practice of the International Court (2nd rev. edn.), pp. 48, 89. I.C.J. Rep. 1959, 21–30. Harris, Warbrick and O’Boyle, Law of the European Convention on Human Rights (1995), p. 640.

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mitigated by the “six-month rule”, which requires that an application to the Commission be brought within six months of exhaustion of local remedies.11 By contrast, the Human Rights Committee acting under the Covenant has supposed that an acceptance of the Optional Protocol does not have retrospective effect, but operates only to grant jurisdiction over claims and events occurring subsequent to the acceptance of the Optional Protocol. But it should be noted that there is no six-month rule to limit the scope of retrospective application of jurisdiction. It has to be said that some acceptances of the Optional Protocol to the Covenant on Civil and Political Rights contain reservations comparable to the so-called “Belgian formula” of the Permanent Court of Justice, but the Committee on Human Rights has always treated them as ex abundante cautelae and serving no juridical purpose. What in the jurisprudence of the International Court has been seen as necessitating a reservation ratione temporis has been seen in the Committee of Human Rights as self-evident. Continuing Events What is the situation when events relating to the dispute began before the starting date but are claimed to be repeated subsequent to that date and thus to found jurisdiction? This matter came before the Permanent Court of International Justice in the case of Phosphates in Morocco, in 1938.12 The case concerned claims brought by Italy against France (as the responsible power in Morocco), in which Italy claimed that, by a series of decrees-dahirs-that denied the vested rights of Italian nationals in that industry, those rights had ­effectively been expropriated. Both Italy and France had made declarations accepting the compulsory ­jurisdiction of the Permanent Court. The French declaration of acceptance of jurisdiction was dated September 1931. The dahirs that created the monopoli­ sation of Moroccan phosphates were handed down in January and August 1920. But there was, said Italy, a continuing progressive illegality, which indeed had only been completed by certain acts subsequent to the French declaration of 1931. What constitutes repetition of a claimed illegality and what is the mere consequence of that illegality? The Permanent Court found that what was crucial

11 12

X v. France, No. 9587/81 (1982) 29 D.R. 228; and Art. 26, European Convention on Human Rights. p.c.i.j. Ser. A/B, No. 74, p. 10.

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was the legislation of 1920 and that the subsequent events could not be considered separately from that. The test, said the Court, was whether the later events would by themselves constitute grounds of a dispute—and that was not the case in the present affair. It is interesting to see how this issue has been dealt with in relation to a human rights treaty, namely the International Covenant on Civil and Political Rights. Two cases illustrate the point well. First, the Gueye case:13 in ratifying the Optional Protocol under the Covenant on 17 February 1984, France made a declaration, rather than a reservation. This stated:14 France interprets Article 1 [of the Protocol] as giving the Committee the competence to receive communications alleging a violation of the rights set forth in the Covenant which results from either acts, omissions, developments or events occurring after that date on which the Protocol entered into force for the Republic, or from a decision relating to acts, omissions, developments or events after that date. France’s interpretative declaration does indeed correspond with the interpretation of the Committee itself. The applicants were retired Senegalese members of the French army, who claimed discrimination contrary to Article 26 of the Covenant by virtue of the fact that they received inferior pensions to those enjoyed by retired soldiers of the French army of French nationality. The relevant pensions legislation was enacted in 1979, pre-dating the entry into force of the Optional Protocol for France. The Senegalese claimants stated that they had continued negotiations with the French government and that the final rejection from the Minister for Economics, Finance and Budget occurred in a letter dated 12 November 1984—six months after France’s ratification of the Optional Protocol. The Committee decided that the continued application, after May 1984, of laws and decisions relating to the claimed rights of the applicants made the claim admissible. The fine-slicing pursuant to this temporal problem is illustrated also by a recent Covenant case, Simunek v. The Czech Republic.15 The applicants were forced to leave Czechoslovakia in 1987, under pressure from the security forces

13 14 15

Jbrahima Gueye et al. v. France, No. 196/1985 (views adopted 3 Apr. 1989), 35th Session, ­Human Rights Committee. Submission under r.91, 8 Apr. 1987, referring to the French declaration of 17 Feb. 1984. No. 516/1992, views adopted 31 July 1995, 54th Session of the Human Rights Committee.

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of the communist regime. Under the legislation then applicable, their property was confiscated. In June 1991, after the establishment of democracy, the Czech Republic ratified the Optional Protocol. Just before that, in April 1991, there entered into effect an Act which provided for the rehabilitation of Czech civilians who left the country under communist pressure and laid down the conditions for restitution or compensation for loss of property. Restitution was available only if the persons concerned had retained Czech nationality and were permanent residents in the country. The applicants could not fulfil these conditions and complained of unlawful discrimination in access to a remedy. Although the law complained of was passed in April 1991 and the Protocol was ratified in June 1991, the Committee found that the violations complained of continued after the entry into force of the Optional Protocol. It added: “A continuing violation is to be interpreted as an affirmation after the entry into force of the Optional Protocol, by act or by clear implication, of the previous violations of the State Party.” On the merits though this is beyond my theme—the Committee found for the applicants, observing: “Taking into account that the State Party itself is responsible for the departure of the [applicants], it would be incompatible with the Covenant to require them permanently to return to the country as a prerequisite for the restitution of their property.” I might add that several Eastern European countries have comparable provisions that apply also to seized Jewish property. The requirement that a claimant return to live in a country which destroyed his family’s life and where the Jewish community has been decimated is manifestly unacceptable. The concept of “continuing acts” is not an easy one. Human rights tribunals have been disinclined to rest on the “inevitable consequences” theory advanced by the International Court. In the 1995 case of Yagci and Sargin v. Turkey.16 Turkey reminded the European Court of Human Rights that its acceptance of the Court’s compulsory jurisdiction on 22 January 1990 was in respect of “matters raised in respect of facts … which have occurred subsequent to” that date. The applicants had been arrested and detained on charges relating to political activities. They complained that the length of their detention violated Article 5(3) of the European Convention and that the length of the criminal proceedings which ensued violated Article 6(1). The applicants had been arrested in 1987, the trial opened in 1988. Various applications for release were made from 1989 onwards. Only in 1992 were the defendants acquitted of all charges and released. Turkey contended that the facts occurring subsequent to 22 January 1990— the date of its acceptance of the Court’s jurisdiction—were “merely extensions 16

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of ones occurring before that date.”17 This argument was rejected by the European Court of Human Rights. Going perhaps further than logic dictates, it said that it mattered not if the acts were extensions of what was already in train ­before, because: “From the critical date onwards all the State’s acts and omissions not only must conform to the Convention but are also undoubtedly subject to review by the Convention institutions.”18 A final point on the issues I have illustrated under “Now and Then”: I mentioned earlier that the jurisdiction of the International Court of Justice may also be based on a treaty provision. Here too the International Court of Justice has applied the principle of jurisdictional retroactivity. On 20 March 1993 B ­ osnia-Herzegovina filed an application instituting proceedings against ­Yugoslavia (Serbia-Montenegro) claiming violations of the Genocide Convention. Yugoslavia (Serbia-Montenegro) asserted that even if the Court had ­jurisdiction on the basis of the Genocide Convention, it could deal only with events subsequent to the date on which the Convention might have become ­applicable as between the parties, i.e. 29 December 1992. Addressing this question, the Court said that the Genocide Convention “does not contain any provision, the object or effect of which is to limit in such manner the scope of itsjurisdiction ratione temporis, and nor did the parties themselves make any reservation to that end”.19 It would thus seem that both the International Court and the E ­ uropean Court of Human Rights have been bolder than the UN Committee on Human Rights in assuming a retrospective effect of an acceptance of jurisdiction. On the other hand, the European Court of Human Rights and the Committee on Human Rights have been more liberal than the International Court of Justice in assuming that acts occurring prior to the jurisdictional starting date may sometimes have a continuing life of their own after that date, sufficient to found a cause of action. II

Then and Now

Should the events of yesterday ever have the law of today applied to them? Let us begin with a problem common to all systems of law—one on which the United Kingdom has much exercised itself in relation to the European Court of Justice. If a court today finds the law to be X, is the State liable for all past ­occasions in which it has applied it as if it were Y? This is well illustrated 17 18 19

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by the 1974 case of Marckx v. Belgium, in which Marckx challenged the legality under the European Convention on Human Rights of the legislation that discriminated in inheritance matters between legitimate and illegitimate children. Ill-advisedly seeking to warn the Court off a certain course of action, the government of Belgium said this:20 If the Court were to find certain rules of Belgian law to be incompatible with the Convention, this would mean that these rules had been contrary to the Convention since its entry into force for Belgium (in 1955) … the result of such a judgment would be to render many subsequent distributions of estates irregular and open to challenge before the Courts. Yes, indeed, said the Court, unsympathetically. It observed that, although it was dealing with the particular case, it was inevitable that the Court’s decision would have some effects extending beyond the confines of the particular case. The illegalities, observed the Court, stemmed not from its findings but from the offending provisions of law. The Court’s judgment could not annul or repeal them. It pointedly concluded: “It leaves to the State the choice of means to be utilized in its domestic legal system for performance of its obligations under Article 5, paragraph 3.”21 The retrospective application of the criminal law has very special overtones. The principle of nullum crimen, nulla poena sine lege is indeed so widely accepted that it may properly be described as a general principle of Law—that is, one common to all developed legal systems and thus itself a source of international law. Certainly it is reflected in all human rights instruments and finds voice in Article 7 of the European Convention on Human Rights and Article 15 of the Covenant on Civil and Political Rights.22 The principle clearly is an important protection against arbitrary executive power and its application is usually fairly straightforward. It is an elementary principle of justice—tested to the limits when there is a strong view within society that the offence concerned is so repugnant that it should long since have been classified as a crime, and that change is on the horizon. That point was well illustrated in R. v. R., the marital rape case that came before the House 20 21 22

(1979–80) 2 e.h.r.r. 330 at p. 352. Idem, para. 58. The common core of both provides: “No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

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of Lords in 1991. Their Lordships held that the rule that a husband cannot be criminally liable for raping his wife if he has intercourse with her without her consent was no longer the Law of England, since, as it was put, “a husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances”.23 The husband thus convicted of rape complained to the European Court of Human Rights that the United Kingdom had violated Article 7 of the European Convention. It was there held that the object and purpose of Article 7 were to ensure that no one should be subject to arbitrary prosecution. In a distinctly common-law method of reasoning, undoubtedly affected by the subject matter, the European Court said that criminal law could be applied retrospectively, provided that the development of criminal liability was foreseeable. Although at the time the sexual acts were committed the principle of marital immunity still obtained, the Law Commission had recommended its abolition and “the adaptation of the existing offence could be reasonably foreseen”.24 Not, one might imagine, by the men concerned—but I have no complaint about the resulted reasoning. At the time of the Nuremberg Tribunal, it was quite clear that war crimes were unlawful, and known by Germany and all nations to be unlawful, even by 1939. The dpp, in his important study made in preparation for possible Legislation,25 indicated a hesitation as to whether crimes against humanity— also a head of indictment at Nuremberg—had been a known offence at the time of their commission. There are different views on that question. The drafting of the UK 1991 War Crimes Act is in the narrowest possible terms. It follows the cautious approach on this—and, indeed, every otherpoint. The Act confers jurisdiction on the British courts to try those who are currently UK residents for the offences of murder, manslaughter or culpable homicide amounting to war crimes that were committed during the Second World War. I am, of course, aware that in the debates in the House of Lords several of the United Kingdom’s most distinguished judges referred to this as a proposal for retrospective penal legislation. With all respect, this clearly is not so, in the sense that all the (narrowly defined) offences were manifestly unlawful as war crimes, throughout 1939–1945.

23 24 25

R. v. R. [1992]1 A.C. 599. SW v. United Kingdom, The Times, 5 Dec. 1995. Report of the War Crimes Enquiry, Cm.744 (1989), para. 6.44. See also Greenwood, “The War Crimes Act 1991”, in Fox and Meyer (Eds), Effecting Compliance (1993), pp. 221–225.

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What one did have in the 1991 Act, however, was a tardy assertion under English law of a jurisdiction already permitted to the United Kingdom under international law, for the purpose of trying offences known to have been offences at the time of their commission. One may or may not think that desirable—but it is certainly not a retrospective application of criminal law. The policy considerations for ensuring that the most heinous categories of crime attract the full reach of the law are apparent, not least in Bosnia and Rwanda. The Dayton Accord solution for the former,26 and any small hopes one might have for the latter,27 have trial and punishment at their heart. But it must also be conceded that there are particular circumstances in which the case for forgetting the past is powerful. The policy considerations concerning punishment for atrocities occurring in the past are many and varied. That they can sometimes pull in diverse directions is nowhere better illustrated than in the great debate about amnesties. The 1960s and 1970s in Latin America were characterised by dictatorships and the perpetration of acts of unspeakable cruelty, which included widespread torture and the phenomenon of the “disappeared”. The widespread and welcome return to democracy brought with it the question of the trial and punishment of the perpetrators of these deeds. The problem is at once political and legal. The victims of these unspeakable crimes, or—in the case of those who died or disappeared—their families, seek justice. In one country the outgoing dictatorship itself passed an amnesty law as the condition for the return to civilian rule. Alternatively, the newly elected government may believe from the outset that this option is not open to it—for example, the army, among whom the perpetrators will often be found, remains visibly in the wings, as if to emphasise that the new democracy exists only on sufferance. Attempts may be made to bring the violators of human rights to justice, but disturbances occur within the army as trials begin. You will recognise each of these examples in the recent history of Latin America. More complicated was the case of Uruguay, which held a public referendum on whether the “page should be turned” on bringing perpetrators to trial. The majority decided that the country should put the past behind it and that an amnesty should be granted. But by what moral entitlement may those who 26 27

Dayton Peace Agreement, initialled at Wright-Patterson Air Force Base in Dayton, Ohio, 21 Nov. 1995 and signed in Paris, 14 Dec. 1995: GA Doc. A/501750 “General Framework for Peace in Bosnia and Herzogovina”. Security Council Res. 955(1994) establishing the UN International Criminal Tribunal for Rwanda.

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have not suffered decide that the perpetrators of harm to others should walk free? Can the healing process occur if the evils of the past are rehearsed again, at length and in detail, in the present? But, equally, can the lessons of the past be learned if these evils appear to be tolerated? The dilemma is of truly momentous proportions. The Committee of Human Rights under the International Covenant on Civil and Political Rights has had to examine various States which find themselves in this dilemma. It is not that victims are entitled—in the legal sense, a­ nyway—to demand the punishment of their tormentors. Rather, the Committee has pointed to the obligation each State undertakes, under Article 2(1) of the Covenant, to guarantee human rights within its territories, and has suggested that trial and punishment for human rights violations are important elements in guaranteeing compliance with human rights obligations. Above all, any a­ mnesty must be constructed in such a way that it does not effectively eliminate what is the right of the families of the victims—to know exactly what happened. It is that fine line that the South African Truth and Reconciliation Commission seeks to tread. Those who are prepared to admit guilt may come before the Commission, to seek indemnity, giving full details of the events concerned and their responsibility in them. Those who deny their guilt will go before a court of law. Some important facts and truths do seem to be emerging. But it remains to be seen whether this will be sufficient to maintain the miraculous reconciliation achieved thus far.28 Occasionally, very occasionally, we see a State which decides that the best hope for reconciliation lies in going right back in time. Where other countries seek to turn the page forward, New Zealand has chosen to turn the pages back. Under the Treaty of Waitangi, signed in 1840 between the British Crown and representative chiefs, it was stipulated that there would be two peoples, one ­nation.29 Various exchanges of commitment were made to that end. The balance of power and advantage nonetheless swung in the direction of the  ­Pakhia—the white settlers. In 1975, faced with a growing Maori resentment, the New Z ­ ealand government established the Waitangi Tribunal. Its jurisdiction was further extended in 1985. Under what must surely rank as one of the bravest and most radical social experiments of our time, Maoris may 28 29

See P. Parker, “The Politics of Indemnities, Truth Telling and Reconciliation in South ­ frica: Ending Apartheid without Forgetting” I h.r.l.j. (1996) 1. A The Treaty of Waitangi had provided for the ceding of sovereignty to the British Crown; a guarantee that Maoris could retain their lands and other material and cultural treasures for so long as they wished; and an assurance that Maoris would enjoy equal rights of citizenship with all other British subjects.

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bring claims arising from prejudicial consequences of any legislation, policy or action of the Crown since the year 1840. The Waitangi Tribunal has only the power to recommend, no power of decision. Nonetheless, successive governments have given the closest attention to the recommendations of the Tribunal that the Treaty has been breached, and the results—in terms of the passing of control over natural resources, and of financial compensation—have been striking.30 Certain political leaders of the Maoris remained dissatisfied with what can be obtained through the Tribunal; and at various times political leaders have spoken of the need to cap the claims being advanced by the Maoris.31 But New Zealand has, in this extraordinary scheme, kept faith with the idea that the only way forward is to go backwards—back to the Treaty of Waitangi as a living social contract and the cornerstone of positive bicultural relationships between the Maori people and the other New Zealanders. III

Long Enough Time

I turn from our examination of “in respect of what time” to look at the issue of “long enough time”. Time limitations have a prominent role to play in all systems of law. Whether we speak of statutory limitations or the doctrine of laches, the policy purpose is the same. Time limitations are to be seen as one of the panoply of the techniques directed towards the principle of interest rei publicae ut finis litium sit (it is in the public interest that lawsuits should have an end). In English law this policy is supported also by such notions as cause of action estoppel, issue estoppel, the acceptance of foreign judgments, lacunae, striking out for delay, statutes of limitation and, of course, res judicata. The same policy consideration—the principle of finality—applies equally in international law, though the armoury of techniques to support it is more limited. When dealing in a horizontal legal order with sovereign States, striking out, for example, is manifestly inappropriate. Issue and cause estoppels do not exist as such. The principle of res judicata, indeed the whole concept of precedent, is complicated in the International Court because of the need for consent to jurisdiction. Article 59 of the ICJ Statute provides that judgments are binding only on the parties in the case concerned. At the same time, the 30 31

The Office of Treaty Settlements attached to the Ministry of Justice negotiates and implements claims settlements (including claims advanced through the Waitangi Tribunal). In 1994 the government released a number of proposals for the global settlement of claims. These proved unacceptable to public opinion.

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Court obviously bases itself on its past jurisprudence. These matters have recently been excellently analysed by Judge Shahabuddeen.32 The concept of limitations has a greater resonance in international law. It may sometimes fall to an international tribunal to pronounce upon national limitations. In the Emmott33 case in 1991 the European Court of Justice established the principle that, in the absence of specific Community rules on the subject, it was for the domestic legal system of each State to determine procedural conditions governing legal actions—provided always that this would not render it virtually impossible to exercise the rights conferred by Community law. The English limitations regarding actions in debt, in negligence or otherwise, continue to have a general application within the EU system. But they may also fall for consideration under the European Convention on Human Rights. In the recently reported case of Stubbings v. UK34 the applicant claimed violations of various articles of the European Convention arising from the limitation period in English law for rape and indecent assault. She had allegedly been the victim of family sexual abuse as a child but only when undergoing psychotherapy did she realise she had a cause of action. But by then she was out of time. The European Court of Human Rights looked at the matter by reference to the claimed violations of the Convention. There was in principle no violation of the right to access to a court. The six-year time limit was not unduly short— if an action had been commenced shortly before it ran out, the English courts would in fact have been adjudicating on matters which occurred about 20 years earlier. But a warning shot was fired. In the light of the developing awareness of the connections between child abuse and adult psychological disorders, “it was possible”, suggested the Court of Human Rights, “that the rules of limitations of actions applying in member States of the Council of Europe might have to be amended to make special provision for that group of claimants in the near future”. The balance between the rights of claimants and the concept of finality is not static and must be constantly subject to review. Within international human rights law itself the practice varies. For example, as I mentioned, the European Convention on Human Rights requires that an application be made within six months of the alleged violation having 32 33

34

Precedent in the World Court (1996). Emmott v. Minister for Social Welfare and the Attorney-General [1991] i.r.l.r. 387. See also the ecj’s reference to the principle of legal certainty in Gebroeders van Es Douane Agenten v. lnspecteurder lnroerrechten en Accijnzen (143/93, [1996] e.c.r. 1–431 at para. 27). Stubbings and Others v. United Kingdom, Case No. 36-37/1995, Times Human Rights Law Report, 24 Oct. 1996.

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o­ ccurred. By contrast, the International Covenant on Civil and Political Rights has no time limitation for bringing applications under the Optional Protocol. The Soviet Union became a party to the Covenant in 1976. The States of the former Soviet Union continue to be parties. Many of these States and other Eastern Europe States now accept the Optional Protocol, whereby individuals may bring actions for violations of Covenant rights. The profound implications of the absence of a limitation period for bringing an action perhaps explain why the Committee has taken a conservative approach to the theory of retrospective application of legal obligation. Neither the Statute of the International Court of Justice nor its Rules provide for any limitation period. The failure of a State to bring a claim until many years after the claimed delict may be for a variety of reasons. Attempts at ­settlement may be among them. It is common knowledge that prolonged settlement talks were held between Iran and the United States regarding two potential legal actions, one concerning the shooting down of the Iran Airbus in 1988 and the other over the bombardment of certain oil platforms in the Gulf. The first resulted in a settlement between the parties, the second did not. In the Oil Platforms case35 heard by the International Court in 1996, the United States drew to the attention of the Court the delay of four years in the institution of proceedings in 1992—not to achieve any procedural relief but to add credence to points it wished to advance regarding bona fides. In the case of Certain Phosphate Lands in Nauru36 Nauru claimed that Australia (as one of the joint Trusteeship Powers prior to Nauru’s independence) was responsible for the necessary rehabilitation of the occupied area of the island. Australia raised a variety of objections to the admissibility of the claim, including the fact that the Trusteeship Agreement, under which Australia acted, was long since terminated by General Assembly resolution, against a background in which Nauru’s complaints were already well known. The Court found, nonetheless, that any rights which Nauru might have had in connection with the rehabilitation of the lands remained unaffected. Australia also contended that the claim was brought too late—Nauru achieved independence on 31 January 1968 but raised the matter with Australia only in December 1988: nearly 21 years later. The International Court noted that international law does not lay down any specific time limits,37 and that it is for the Court to determine in the light of the 35 36 37

Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Rep. 1996. I.C.J. Rep. 1992, 240. Idem, p. 254.

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circumstances of each case whether the passage of time renders an application inadmissible. The Court found a sufficiency of initiative by Nauru vis-a-vis Australia in the 20-year period to avoid the application being rendered inadmissible by passage of time. Its finding seemed close to a determination that no laches of rights had occurred. That this is indeed a somewhat distinct matter is surely confirmed by the Court, when it immediately followed its rejection of inadmissibility by reason of passage of time with the statement: “Nevertheless, it will be for the Court, in due time, to ensure that Nauru’s delay in seising it will in no way cause prejudice to Australia with regard to both the establishment of the facts and the determination of the content of the applicable law.”38 It is interesting that, in the absence of any specific time limits in international law, the Court seemed to treat the question of want of action or otherwise as determinative of admissibility, and the prejudicial aspects of the question of delay as a management problem for the merits. In the event the matter was settled and we have no way of knowing how the Court would have exercised its intended protection against prejudice from delay. There is little agreement on the application of the principle of finality in respect of statutory limitations in criminal matters. Most civil law countries have statutory limitation periods for criminal offences. By contrast, most common law countries do not. For these countries it would seem that other policy considerations relating to public order outweigh those of finality. These policy considerations come into acute focus when the crimes are the gravest known in our depraved world. These are reflected in war crimes and in crimes against humanity. Certain efforts have been made to codify in treaty law the prohibition of statutory limitations in respect of these offences. The 1970 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity39 was used in the United Nations (where it was drafted) as an opportunity to enlarge the Nuremberg Definition of Crimes Against Humanity to include such contemporary considerations as apartheid and the violation of the rights of indigenous peoples. Accordingly, it attracted only a very particular support. Neither the United States nor any Western European country became party to it. In the European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes,40 drawn up within the Council of Europe, the list of offences went beyond the Nuremberg principles, 38 39 40

Idem, p. 255. Adopted by General Assembly Res. 2391(xxiii), 26 Nov. 1968. Council of Europe, European Conventions and Agreements, Vol. iii, 1972–74 (Strasbourg, 1975), pp. 212–215.

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to take into account the crimes of genocide as specified in the 1948 Genocide Convention and the violation of certain articles in the four 1949 Geneva Conventions concerning the protection of non-combatants in time of war. The Convention has never entered into effect. State practice on this matter remains diverse. Germany has avoided a general exception for this class of offences. Rather, the normal statutory limits for criminal offences have been extended once where war crimes and crimes against humanity are concerned—and all statutory limitation was removed for the offence of genocide. Limitations were in 1979 further extended, but this time for the general class of murder—which would include murders by Nazis but not necessarily the generic class of war crimes.41 In France the statutory limitations apply even to war crimes. It was for that reason that in 1983 Barbie could not be charged with war crimes. Crimes against humanity were a relatively new category of crime in French law, however, and they were introduced into French law as a new offence without limitation. As for the United Kingdom, the issue is academic in any event, in the sense that English law lacks statutory limitation periods for all criminal offences. The question of a special exemption for the most heinous crimes does not arise. IV

Too Long Ago

I turn finally to a different issue: the predication of contemporary rights and duties upon acts long since passed. It is this problem that is addressed by the so-called Rule of Inter-Temporal Law, known to every international lawyer. Few arbitral dicta have been more widely cited, or have come to assume a more important place in international law, than that of Judge Huber in the Island of Palmas case. It will be recalled that the dictum consists of two elements. The first part provides:42 A judicial fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time such a dispute in regard to it arises or falls to be settled. The observation was directed towards the question of the legal requirements, at a certain era, for the establishment of sovereign title. The question Max 41

For an excellent analysis, see F. Weiss, “Time Limits for the Prosecution of Crimes Against International Law” (1982) iii b.y.i.l. 162–195. 42 (1949) ii u.n.r.i.a.a. p. 829 at p. 845.

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­ uber was addressing was whether mere discovery had allowed Spain to acH quire and retain title. The second element of Huber’s doctrine has caused much more difficulty. He distinguished “between the creation of rights and the existence of rights” and spoke of a principle by virtue of which “the existence of the right, in other words, its continued manifestation, shall follow the conditions required by the evolution of the law”.43 Some have interpreted this second limb as providing that a right, even if lawfully obtained by reference to the law of the era, will be lost if a later rule of international law evolves by reference to which the basis of the “right” would no longer be lawful. But to give such an understanding to the second limb of the Huber dictum would often wipe out the legal consequences of the first. Our understanding of it should flow from the realisation that it was a dictum offered in the context of establishing and maintaining territorial title. The second element may then be seen as providing that the creation of an initial right does not of itself suffice to maintain it up to the moment of the claim. Perpetuation of that right, demonstrated by effective occupation (as required by later law), is necessary. The Huber dictum, taken in its entirety, may be taken as providing that by virtue of the principles of inter-temporal law a State must continue to maintain a title, validly won, in an effective manner—no more and no less. It has, however, been read in the most remarkably extensive fashion, as providing obligatory rules in circumstances that it never addressed, with consequences that it never intended.44 Even the first limb of the Huber dictum, apparently so well established, seems to have its exceptions. There are good reasons for thinking that treaties that guarantee human rights—whether expressly or as an incident of their subject matter—fall into a special category so far as inter-temporal law is concerned. The matter still cannot be better put than it was by Judge Tanaka in the 1966 South West Africa cases. There it had been suggested by South Africa that the mandate was to be interpreted by reference to the law as it stood in 1920, without reference to the much more recently formulated notion of self-determination. The reason Judge Tanaka believed that contemporary law should be applied was because:45 43 44

45

Ibid. The meaning and scope of the inter-temporal rule were the subject of contending pleadings, written and oral, in Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/ Chad), but the Court’s judgment turned on different issues and it thus never had need to pronounce upon these arguments. I.C.J. Rep. 1966, 294.

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In the present case, the protection of the acquired rights of the Respondent is not the issue, but its obligations, because the main purposes of the mandate system are ethical and humanitarian. The Respondent has no right to behave in an inhuman way today as well as during these 40 years. The European Court of Human Rights has taken an approach based on the same starting point, reminding us in the Tyrer case and others that:46 the Convention is a living instrument which … must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in general policy of the member States of the Council of Europe in this field. Whereas for the International Court the issue was the application of contemporary international law to the international human rights obligations undertaken in a treaty, for the European Court of Human Rights the issue has, rather, been the insistence on the European Convention on Human Rights as a living instrument, which is to be achieved by interpreting its provisions “in the light of present-day conditions”. Those “present-day conditions”, in turn, are to be found largely by reference to the developing practice of the member States themselves, in an approach that is now well established. This is not identical to the interpretation of obligations by reference to contemporary customary international law, but the underlying approach is very similar. If it is clear that the inter-temporal principle of international law, as it is commonly understood, does not apply in the interpretation of human rights obligations, what can be said of treaties in general? The International Court of Justice certainly has indicated that the doctrine of international law does apply to treaties, in the Right of Passage case47 and in Rights of Nationals of the United States of America in Morocco;48 it was recognised also by the Tribunal in the Guinea Bissau v. Senegal arbitration.49 But the matter is not as straightforward as it might seem. In the Aegean Sea case in 1978 the issue arose in the context of an agreement made by Greece in 1931 to accept compulsory procedures for settlement of disputes including those relating to 46 47 48 49

Judgment of the Court, Tyrer case, 25 Apr. 1978, para. 31, pubI. Court A, Vol. 26, pp. 15, 16. Supra n. 8. I.C.J. Rep. 1952, 176, 185–187. Award of 14 Feb. 1985; English trans. in (1988) 25 i.l.m. 251.

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“the territorial status of Greece”. How was that term to be understood? Could it include contested rights in the Aegean Sea? The Court said:50 Once it is established that the expression “the territorial status of Greece” was used in Greece’s instrument of accession as a generic term denoting any matters comprised within the concept of territorial status under general international law, the presumption necessarily arises that its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time. The apparent exception to the Huber rule in the interpretation of human rights obligations now has added to it the “generic” exception. How are these exceptions to be tied together, and what is the general rule of inter-temporal law as it applies to treaties? Sir Humphrey Waldock, when preparing for the International Law Commission his draft articles on the law of treaties, sought to introduce specific prov­ isions on inter-temporal law.51 But some took the view that the problem facing the International Law Commission was not really one of the application of an inter-temporal rule to the law of treaties at all. Rather, what was important was to look at the intention of the parties. The question to ask was whether it had been the intention of the parties, in settling their obligations, that those obligations should be determined by reference to the law as it then stood or as it might stand when any controversy later arose. Jimenez de Arechaga put it thus:52 The intention of the parties should be controlling, and there seemed to be two possibilities as far as that intention was concerned: either they had meant to incorporate in the treaty some legal concepts that would remain unchanged, or if they had no such intention, the legal concept might be subject to change and would then have to be interpreted not only in the context of the instrument, but also within the framework of the entire legal order to which they belonged. This perspective had in fact been adopted by the International Court in the Namibia advisory opinion, when it found that the guarantees in Article 22 had 50 I.C.J. Rep. 1978, 32, para. 77. 51 Third Report, draft Art.56. 52 (1964) I y.b.i.l.c. 34, para. 10.

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to be read against the background that the mandate was a “sacred trust for civilization”. Accordingly, it was to be assumed that the parties to the Covenant accepted that the content of Article 22 was evolutionary, and not static.53 Presumed intention was also the basis that the Court relied on in the Aegean Sea case to distinguish the finding in the Abu Dhabi arbitration,54 on which the Greek government relied. In that case the Sheikh of Abu Dhabi had granted to Petroleum Development Ltd the right to explore and exploit the oil in the territory, islands and waters belonging to him. Did this give Petroleum Development Ltd rights over the continental shelf, whose existence as a doctrine in international law at the time of the grant was in doubt? Lord Asquith stated that “it would seem a most artificial refinement to read back into a contract the implications of a doctrine not mooted till seven years later”.55 The International Court distinguished these facts from those it was facing in Aegean Sea. It found that there was an essential difference between the two cases. The Court stated:56 While there may be a presumption that a person transferring valuable property rights to another intends to transfer the rights which he possesses at that time, the case appears to the Court to be quite otherwise when a State, in agreeing to subject itself to compulsory procedures of pacific settlement, excepts from that agreement a category of disputes which, though covering clearly specified subject matters, is of a generic kind. We may now begin to see that intention of the parties is often to be deduced from the object and purpose of the agreement. That the intention of the parties to a treaty (perhaps revealed by the objects and purposes) should be controlling was also the approach approved by the Institut de Droit International in its resolution on the inter-temporal problem in international law.57 The Vienna Convention on the Law of Treaties as it finally emerged itself contains no general rule on the inter-temporal question. The only hint one gets is in Article 31, which provides simply that treaties are to be interpreted in accordance with any relevant rules of law. 53 54 55 56 57

Legal Consequences for States of the continued presence of South Africa in Namibia (South West Africa) I.C.J. Rep. 1971, 31. Petroleum Development Ltd v. Sheikh of Abu Dhabi (1951) i.s.i.l.r. 144. Idem, p. 152. I.C.J. Rep. 1978, 32, para. 77. Annuaire de l’lnstitut de droit international (Vol. 56), p. 536.

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There also exist certain disparate clauses that bear indirectly on intertemporal law. Thus Article 64, while making no pronouncement of general application, does stipulate that a treaty becomes void if it conflicts with a later emergent rule of jus cogens. (Article 53 provides that a treaty is also void if, at the time of its conclusion, it conflicts with a rule of jus cogens. No element of inter-temporal law is engaged here.) And Article 52 provides that a treaty is void if its conclusion has been procured by the threat or use of force contrary to the Charter of the United Nations. V

Conclusion

In conclusion, we may suggest that the Huber rule should not be extended ­beyond its proper confines. In the law of treaties—notwithstanding judicial indications that the Huber rule is applicable thereto—the intention of the parties is really the key. Attention to that point allows one to see that “generic clauses” and human rights provisions are not really random exceptions to a general rule. They are an application of a wider principle—intention of the parties, ­reflected by reference to the objects and purpose—that guides the law of treaties. A final concluding word: I hope I have said enough to show that time related problems in international law are by no means restricted to the inter-temporal rule. Indeed, there are many other temporal questions that I have not been able to touch upon—the concepts of “critical date”, of “reasonable time” (especially in human rights law), being among them. Even so there’s been “time for … a hundred visions and revisions, before the taking of a toast and tea”.58 58

T.S. Eliot, “The Love Song of J. Alfred Prufrock”.

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Chapter 12

Philip Allott, Eunomia: New Order for a New World, 2001 Comment by Dr Ralph Wilde, Reader, University College London Philip Allott is one of the most important international legal theorists, the most accomplished international legal theorist of UK nationality, and one of the leading international lawyers of his generation internationally. Originally an international lawyer in the UK diplomatic service, including postings to the post-war military administration authorities in Berlin and the European Communities in Brussels, he subsequently taught students international history and theory and developed, and continues to develop, his hugely original ideas about human society in his rooms in the entry-tower of Trinity College, Cambridge University, as a College Fellow and Professor. Eunomia, a monograph published originally in 1990, its paperback (with new forward) published in 2001, is one of the most significant works of international legal thought ever published. Its general themes were explored through more specific examples in the monograph Health of Nations in 2002 and embedded in the Invisible Power novels (2005 and 2008). A popular version, Eutopia, was published in 2016. Health of Nations was awarded the Certificate of Merit (book prize) of the American Society of International Law in 2003. Eunomia sets out an original, general approach to philosophy, steeped in and arising out of Allott’s acutely sophisticated, authoritative and broad appreciation of the canons of philosophical and political thought and the seminal developments in human society throughout history. Whereas many philosophies and political theories are concerned with human society at levels more particular than the global, Eunomia is a theory of and for a global society, in the tradition of cosmopolitan thought: the world society which an international rule of law presupposes. Allott offers human beings idealistic ways of thinking about themselves and their mutual relations which, he argues, offer the potential to enable the process of constituting a global society better than the one we have inhabited so far: the eunomia – good social order – of the title.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_013

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P. Allott, Eunomia: New Order for a New World (Oxford University Press 2001). Excerpt: Preface to the paperback edition pp. vii–xxxiii. Reproduced with the kind permission of Oxford University Press.

Eunomia: New Order for a New World Philip Allott

Preface to the Paperback Edition

Eunomia: New Order for a New World was published in 1990 at a time when a central feature of a 45-year-old world order had recently disappeared and when the phrase ‘New World Order’ could be used, even by a President of the United States, to describe the new international situation, and tentatively to celebrate that new situation. But the celebration did not last and the phrase was soon forgotten. The crude ambiguity of the Gulf War (August 1990–­February 1991) was too obvious and too familiar. The Gulf War seemed to herald a new postCold War era in the functioning of the UN Security Council, but its causes and its global strategic implications were soon seen to be as old as Great Power rivalry in the Middle East, and as traditional as those of countless international conflicts before and since 1945. The conflict took the most conventional of forms: the use of armed force by Iraq to assert an old claim to Kuwait as a ‘lost province’, Kuwait’s defence of its territorial integrity and political independence, collective action in support of Kuwait (and, to a lesser extent, in support of Iraq), the safeguarding of the vital economic interests of oil-importing states, the assertion of the special global responsibilities of hegemonic powers, an inconclusive outcome. In the light of such an analysis, even the most optimistic observer could not have seen the first signs of a new dawn in the long and endlessly repetitive history of international relations. The writing of Eunomia had been completed in 1989 before the occurrence of the events which would terminate the Cold War. Only in the preface was it possible to mention ‘major political developments, especially in Eastern Europe’. However, it was also possible to refer to recent statements by Mikhail Gorbachev, the Soviet leader, and Pope John Paul II calling for a new vision of world order. Since 1989 the human world has changed in ways which could not have been predicted in 1989, profound and subtle developments which have made more than ever necessary and urgent the forming of a new vision of a new kind of world order. It was and is the purpose of Eunomia to contribute to the forming of that new vision.

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The seven-month Gulf War was comparable to the Seven Years War of more leisurely times (1756–63), or the Franco-Prussian War of 1870–1 (another seven-month war), in that it was finally precipitated by the actions of one man, but its origins and its effects were far deeper and wider. Each was a transformatory war or, in Winston Churchill’s more colourful formulation, a hinge of fate. The Seven Years War was an anachronistic war, the last European war of the post-medieval social order. But it prepared the ground, not least by its economic effects in Britain and France, for the American and French Revolutions and for Britain’s undeclared revolution (1820–32), that is to say, for the end of ancient regimes. Similarly, the Franco-Prussian War prepared the ground for the final republicanizing of the French political system and, after much more ­bloodshed, for the political normalizing of Germany. Ten years later, we can now see that the Gulf War, another anachronistic war, was an end and a beginning, the beginning of a new kind of world order and of a new kind of world disorder. The Disciplines of War The Cold War had been fought on five levels, a five-ring circus. Psychological warfare used information, ideas, low culture, and even high culture as weapons of quasi-military significance. Covert war used espionage, subversion, and other still cruder means, to wound and to destabilize. The tactical manipulation of certain exceptional and continuing international crisis-situations was an arcane and ritualized game within the Great Game of a permanent unwar: the Middle East, divided Germany and divided Berlin, divided Korea, decolonization. Overt war consisted of occasional violent episodes of hand-to-hand fighting (Korea, Vietnam, and the Middle East), in which modern weapons and age-old barbarities were able to produce no useful results and great human suffering. The circus of all circuses was the Great Threat, the threat of nuclear war, threat of all threats, including the thrilling apocalyptic fantasy of Mutual Assured Destruction. The consensual moral philosophy of the Cold War was a rudimentary form of Hobbesian Natural Law, with three prudential but paradoxical principles deduced from the axiomatic imperative of self-preservation. (1) The end justifies the means even if the means might mean the end of humanity. (2) Selfdefence requires ultimate measures of self-defence, even if ultimate measures of self-defence might ultimately mean the obliteration of the self. (3) The economic is subordinate to the political, and the political is subordinate to the military. The rhetoric and the academics might speak of two First Worlds, a Third World (so-called developing countries), and Non-Aligned States, but the

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operative ­international political taxonomy in the minds of significant decisionmakers was more crude. Us, Them, the Troublesome, and the Insignificant. In other words, the world-view of the Cold War was a simplified world order, a brutal reduction to the absurd of a European world order which had begun to emerge at the beginning of the sixteenth century, a horizontal co-existence of competition and conflict between the controllers of the public realms of vastly diverse forms of society, diverse in social and economic development, diverse in their degrees and forms of wisdom and wickedness. In a post-Cold War world of intense conceptual confusion, it is possible to look back with pathetic nostalgia to a world we have lost, a world mapped by a sort of crazy lucidity. For those who did not experience the Cold War, or who have begun to forget what it was like to live through the Cold War, it is hard to imagine or to recall its all-consuming false consciousness. Opposition (to nuclear weapons, the war in Vietnam, the deployment of cruise missiles, the Star Wars project, or to a succession of armed interventions and proxy wars), if it could be expressed at all, was readily characterized as disloyal, unpatriotic, treasonable even. But so also was the mere expression of ideas which could be construed as favourable to the aims of the cold enemy, or even to the ideas favoured by the cold enemy. The personal consequences of dissent differed in the East and the West, as did public awareness of the forms and the extent of mind-control, but psychic oppression was a common feature of both of the so-called ‘camps’. New Mental Order A first feature of the post-1989 world was thus a profound psychic liberation, not only in countries formerly controlled by Communist governments but also in non-communist countries. A first flowering of that liberation was a victory celebration, a claim that Marxism had been ‘disproved’ by the experience of Communism in Eastern Europe and the Soviet Union. Strangely, the ending of psychic oppression had apparently reduced the supply of possible social philosophies. It was even suggested that the Disproving of Marxism had caused or coincided with the End of History, if history could be regarded as a long and painful search for the ideal social philosophy, and given that democracy­capitalism had shown itself to be the only reasonable claimant to that title. In the 1990s, democracy-capitalism rapidly came to be treated as the ­leading brand, as self-proving and as easy to sell world-wide as leading-brand soft drinks or high-performance motor- cars. Leading-brand products sell themselves not intellectually but imaginatively. If a product can appropriate to itself the idea that it works wonders, then further claims are unnecessary. Democracy-capitalism led to a revolution

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of rising expectations around the world, and not only in former Communist countries, because its real-world effects spoke more eloquently than could any social philosopher. The proof of the product was in the ever-increasing wealth of its leading practitioners. It seemed miraculous in its power to create material wealth, a perpetual happiness-machine, defying what might have seemed to be the harsh lessons of human history, if not its iron laws, and not least the interesting marxian Law of Increasing Misery brought about by the Contradictions of Capitalism. The ending of the artificial discipline of the Cold War led to another form of psychic liberation in the reasserting of suppressed national identify. The Cold War world order had been a post-imperial imperialism. The hegemonic powers of the Cold War era controlled national identities as firmly and as crudely as had any of the nineteenth-century imperial powers, from divided Germany to Israel-Palestine, from the Asian republics of the Soviet Union to Yugoslavia. Nationalism, a powerful psychic effect of complex historical and emotional causes which defy analysis, can only be suppressed by force, and can only be sublimated through social structures which transcend nationalism by creating another form of attachment to another form of subjectivity. The ending of the ritualized inter-governmental power-relationships of the Cold War (intra-bloc and inter-bloc) allowed the emergence of other voices in the discourse about international matters. Not only in formerly totalitarian societies but also in so-called ‘Western’ societies, governments found that they no longer had sole authority over the final determination of national strategic objectives and national tactical policies. In particular, their capacity for covert activities, and other non-transparent and non-accountable international behaviour, was greatly reduced. Internationally, nongovernmental organizations, self-appointed and of uncertain representative authority, found themselves able to participate in, and even influence, international decision-making. The ever-increasing internationalizing of the mass media of communication and the international networking of computer systems have begun to create a forum of public discourse which is transnational or non-national in character, and which is beyond the social and legal control of those who seek to control national public consciousness. The Cold War obsession with a crudely political form of diplomacy, resting directly on the threat and use of military power, gave way to a new obsession, the politics of economics. Political economy revealed itself once again as a fundamentalist religion, as it had been for the high-Victorian bourgeoisie on both sides of the Atlantic, a universal religion transcending cultural diversity, with its own metaphysics and its own moral philosophy. For the religion of political economy, everything natural or human is a commodity, with an e­ conomic

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v­ alue and a negotiable price, from philosophical ideas to atmospheric pollution, from human embryos to orphan children, from scientific hypotheses and the products of high culture to the personal ambition of aspiring politicians. In the world-view of political economy, value is, first and last, economic value, and virtue is the successful making and marketing of economic value. And what is true for individual economic actors is no less true for governments as the managers of the international activity of states, when states are seen as totalizing economic systems. On such a view, diplomacy is the continuation of successful economics by other means. An interesting side-effect of economic fundamentalism has been that the word ‘development’ has lost most of the semiotic power which it had acquired during the Cold War period. The very word had been a shibboleth of respectability for governments, so that, so long as they kept uttering the word in declarations, treaties, programmes, and routine rhetoric, they could do the least possible in the way of the actual redistribution of wealth, let alone in the fundamental re-engineering of those societies whose problems were not merely economic problems so much as profound socio-political structural problems, problems which were usually the flotsam left by the receding tide of colonialism. The economistic creed includes a belief in economic naturalism, ­supposing that social problems will be solved, more or less inevitably and spontaneously, by economic progress. Like a Victorian moralist, the political economist points to the health and happiness of those societies which have made ‘the necessary structural changes’ and to the continuing misery of those societies which have not. Since economic phenomena at least share the characteristic of natural phenomena (seas, rivers, and air) that they do not naturally respect political frontiers, the rise of economism has extended the conceptual horizons not only of the managers of major economic enterprises but also of national politicians. The word ‘environment’ has taken up some of the semiotic power lost by the word ‘development’, taking the place vacated by that word in declarations, treaties, programmes, and routine rhetoric, even co-opting the word ‘development’ to serve a very different semantic purpose in the phrase ‘sustainable development’. Once again, governments could make use of their practised skill in saying much about ‘the environment’ in order to do as little as possible, a skill which they had also been perfecting for almost a century in talking ­solemnly about the ‘outlawing of war’ and ‘the peaceful settlement of disputes’. Two other familiar phrases—‘the international community’ and ‘international ­security’—have been brought back to serve another day, to fill the vacuum left by the decline and fall of the concepts of ‘defence’ and ‘collective defence’

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in a world where ‘the enemy’ is everywhere and nowhere. H ­ owever, words help to form conceptual horizons, and such phrases, with their ­unavoidable ­universalist overtones, may be the outward signs of a real change in the axiomatic foundations of intergovernmental relations as understood by the governments themselves. Geopolitical Metamorphosis On the remains of the international system left by the economic chaos of the 1930s and the catastrophe of the Second World War, intergovernmental organizations multiplied like flies on rotting meat. Paid for by the taxpayers of the world, more or less unknown and unseen by those same taxpayers, they busied themselves with self-appointed tasks, some with spectacular success, others with little or no success to speak of. In the period since 1990, they have come to seem like lumbering leviathans left over from another geopolitical age. The problem is that, at least in the most developed societies, the general function of government has been undergoing fundamental change in an economy-dominated world. More and more, governments have come to be the ­managers of national economies, paid to use the legislative and executive machinery as efficiently as possible to serve the material well-being of the citizens, to keep the ship of state afloat and ahead of its nearest politico-economic rivals. The traditional political process has declined in significance in relation to other sub-systems of society, not only the economic sub-systems but also other opinion-forming and value-forming systems in general. In such societies, elections have come, more and more, to be a choice between alternative management teams, with management of the electoral process itself serving as a test of public-management skill, a humiliating rite of passage, rather than as a serious confrontation of alternative political programmes. The most politically ambitious of intergovernmental institutions, such as the United Nations or the European Union, are full of an out-dated atmosphere of governmental absolutism. Lesser organizations still breathe the stale air of bureaucratic absolutism. Since 1990, the landscape in which such organizations flourished has been changing, a transformation of geopolitical morphology. The change concerns the frontier between the internal and the external, the national and the international. In the era of ninteenth-century imperialism (until 1945), the external (the colony) was internalized into the sovereignty of the so-called mothercountry, and much of the internal social reality of the mother-country flowed into the colony, including social systems, law, and socially enforced values in general. But, in relations between the dominant powers themselves, the

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i­ nternal and the external were rigidly separated, war and so-called intervention being defined by their abnormality in this respect. Recently, the externalizing of the internal and the internalizing of the external have become normal. The term ‘globalization’ fails to catch the two-way action of the new international social engine. The term ‘interdependence’ fails to catch its dynamic quality. Not merely the national economy but a society’s social reality in the broadest sense is now formed as much by outside forces and influences as by domestic forces and influences. The idea that governments manage an internal realm, and co-operate externally through diplomacy and in intergovernmental organizations, has simply been surpassed by a more complex reality. A striking consequence of this new geopolitical morphology is that the postmedieval institutions which have been known as ‘foreign policy’ and ‘diplomacy’ have come to seem as obsolete as parlements or tax-farming in France after the Revolution of 1789. The idea that whole nations should speak to each other through a small elite of people employed for that purpose, and should have ‘relations’ reminiscent of the fickle personal relations between more or less self-willed monarchs, now seems as comical as it is unreal. The fact that it should be regarded as normal and reasonable that such ‘relations’ might from time to time lead to episodes of mass murder and mass destruction of property in the national interest (war) is now hardly credible. What was formerly ‘foreign policy’ has been replaced by a social process which we may call externalized government or international intergovernment, a process which is the continuation of the aims, functions, and methods of national government into the sphere where governmental functions overlap (international society). National public administrations now speak directly to each other, and through the mediation of intergovernmental institutions, so that even the administrative frontiers of the world no longer coincide with its  imaginary political frontiers. What was formerly known as ‘international ­relations’ is now the specialized practice of aspects of externalized government. Foreign policy and diplomacy of the old kind are now merely an ­old-fashioned game, and a dangerous game, to which a marginalized but incorrigible international ruling sub-class, of politicians and public officials, remains addicted. Another consequence of the new geopolitical morphology is a change in the nature and function of international law, a change which has been long maturing, but which must now be recognized as a significant element in the changing structure of international society. There seem now to be two kinds of international law. Old international law, as we may call it, is the modest selflimiting of the potentially conflictual behaviour of governments in relation to each other, as they recognize the emergence of new ‘states’, settle the limits of

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each other’s land and sea territory and the limits of their respective national legal systems, resolve disputes and disagreements which may arise in their everyday ‘relations’. New international law is universal legislation. Old international law is typically the law acknowledged by governments and their advisers and consecrated by the International Court of Justice in The Hague. New international law is made in countless international forums, implemented through countless international agencies, interpreted and applied by countless new international courts and tribunals. And still more significant new international law is re-enacted by national legislatures, implemented by national executive branches of government, enforced in national courts. We are now beginning to be able to see that old international law was essentially a rudimentary international constitutional law, providing the fundamental structures of a primitive form of international society, and that the International Court of Justice was, and is, a sort of rudimentary international constitutional court, as imposing and as marginal as the Reichskammergericht of the old Holy Roman Empire. It is beginning to be possible to see that international law, old and new together, forms part of an emerging universal legal system which transcends the imaginary frontier between the national and the international. There were structural anomalies which, for decades, troubled the minds of at least the more intellectually rigorous of international lawyers. The mass of ­international human rights law has meaning only as law applicable within the constitutional systems of states. The detailed substantive regulations of the law of the sea and the increasing volume of environmental law have meaning only if they are seen also as constraints on the internal behaviour of governments and on the ­behaviour of non-governmental actors in general. International trade law is the law of international trade, but more and more of its detailed substantive regulations must be enacted and enforced internally, with very substantial internal economic effects. The new development of international criminal law is obliging governments to accept that they may be made legally liable internationally for their internal official behaviour, and that they may be made internally ­accountable (before national courts) for their internal official behaviour which is made criminal by international legislation. Finally, a trend which the UN Secretary-General characterized in the ­early 1990s in a terminological distinction between peace-keeping and peace-­ making has borne remarkable, and apparently anomalous, fruit in various international situations, not least in former Yugoslavia, where internal ­constitutional ­order has broken down. It may be that the hallowed diplomatic concept of ‘international security’ is changing into something much more like the ancient and hallowed constitutional concept of ‘public order’, so that a

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collapse of ­internal constitutional order or a massive abuse of constitutional power within a state may come to be seen as a threat to international public order which international society, and hence international law, cannot ignore. If such a concept comes to be seen as a reasonable explanation and justification of political, and even military, intervention from outside into the internal constitutional order of the disruptive state, then deep-structural changes of geopolitical morphology are occurring, changes which go far beyond the universalizing of concern for international security which was embodied feebly in the League of Nations Covenant, more boldly in the UN Charter. International inter-government would be becoming international government. The phenomenon of a new international legal system extends far beyond what has traditionally been conceived of as ‘international’ law. In the 1990s it became possible to detect a subtle change in the nature of the l­ aw-phenomenon in general, not merely at the level of international law but also at the level of national law, and especially at the level of the co-existence of national legal systems. The fundamental social reconstruction of former communist societies, and of societies which were becoming communist-capitalist hybrids, revealed a fact which had been too familiar to be recognized as remarkable in older democratic-capitalist societies. Despite their ultimate high value of ‘freedom’, both democracy and capitalism require enormous volumes of law and public administration to function successfully. Law and public administration are an abridgement of private freedom, even if they are also the means of ensuring the exercise of private freedom in socially useful ways, ways which may also be privately profitable. These social transformations have also revealed the mutual dependence of democracy and capitalism, which together form a powerful constitutional dyad, with democratic processes being capable of providing very efficiently the volumes of law and public administration required by capit­ alism, efficiency being conceived as including the generating of a sufficient degree of acquiescence in the ‘legitimacy’ of such law and administration. A striking consequence of this fact is that, in the 1990s, the state of the lawmaking and law-applying systems of all societies all over the world came to be seen as a matter of general interest, to an extent which may be determined bilaterally in each case of bilateral economic transactions between two national economies, but which must also be determined at the level of international society as a whole, to the extent that the economy of international society is an interlocking worldwide system. It became clear that free-market ­capitalism is, above all, a legal system, a system which requires certain kinds of legal institutions, legal practices, and substantive law of all kinds, public and civil and criminal, from human rights law to the law of public administration, from the

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law of contract and the law of financial securities to the law of intellectual property, from the law of competition to the law of insider-trading and moneylaundering. It follows that a universalizing capitalist economy requires a universalizing of legal systems. In the 1990s the law of capitalism took on some of the characteristics which the law of human rights had acquired in the period after 1950. As the law of human rights had created fundamental, and fragile, international standards for controlling the abuse of public power in national constitutional systems, so the law of capitalism was beginning to establish fundamental, and more robust, international standards for organizing a capitalist, or partially capitalist, economy. An analogy might also be drawn with what has been referred to above as the emerging concept of international public order. In the 1990s there was an emerging concept of international economic order, symbolized and intensified by, but not solely caused by, the transformation of GATT into the WTO. And, at least for those who believe in the dyadic inseparability of democracy and capitalism, it was a necessary corollary that there should be established as soon as possible fundamental international standards for organizing a democratic society, a concept of international democratic order. Starting with the Helsinki Final Act of 1975, but with obsessive missionary zeal in the 1990s, seminars and declarations on the theory of democracy, even democracy counsellors and democracy inspectors, spread the gospel far and wide. It became possible to propose that international law itself might contain normative principles of democracy embodied in rules of general international law. A further consequence of these developments was that law at the national level itself became a commodity in international trade. For many lawyers, especially lawyers specializing in commercial law, ‘globalization’ in the legal field became an export-import business in legal concepts, legal institutions, substantive law, and legal services, a trade which can be profitable in itself for international consultants and self-globalizing law firms. But it is also a means of creating, within the intense competitive struggle of national economies, a new sort of comparative economic advantage, comparative legal advantage, if your trading-partner’s legal system can be made to conform closely to your own legal system, rather than to that of a competitor. In these ways, it is possible to speak of an emerging universal legal system which is liable to keep pace with the development of the emerging universal economy, as all national legal systems, like all national economic systems, become locked into each other, acting both as implementing agents of ­international law and as the essential basis of transnational economic transactions, that is to say, of economic transactions which involve the application of more than one legal system.

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International Constitutionalism When these developments within the international legal system are put beside the new developments in the system of international intergovernment discussed above, we may see that phenomena which have been seen hitherto as conceptual anomalies are now posing a fundamental challenge to world social order. That challenge is the problem of the legitimacy of international institutions. At some point in the 1990s, the Bretton Woods international financial institutions came to be seen by their more radical critics as arrogant agents of deep-structural social change in beneficiary countries, rather than merely as sources of last-resort public financing. At much the same time, when the GATT (an ‘agreement’) became the WTO (an ‘organization’), it came to be seen by its more radical critics as a new form of collective economic imperialism. Even the European Union, which had otherwise proved itself notably incompetent as an international actor outside the strictly economic field, set itself up as the arbiter of the constitutional consequences of the dissolution of federal Yugoslavia. Even the OECD, a body whose very existence had previously escaped the attention of all but the most well-informed of citizens, managed to attract radical criticism as a secretive self-interested oligarchy, after it had formulated some elementary pieties about the protection of overseas private investment. In a world of an emerging universal economy, a world of ever more complex and invasive international intergovernment, and a world in which major economic actors act economically on a global scale, with profound social and economic effects in the countries where they operate, we are facing problems similar to those which arose when national societies, in different ways and at different times, produced within themselves modern industrial and commercial economic systems of rapidly increasing complexity and sophistication, with enormously increased aggregates of collective social energy, under the impact of urbanization, and with the escalating wealth and power of an urban middle class. The development of liberal democracy, together with the intricate, tangible and intangible, social processes which make liberal democracy possible, was a response to these economic developments, organizing them and also legitimating them, at least in the minds of the ‘new masters’, the same urban middle class. The challenge of such social reconstruction at the level of international society will not be the same challenge in all respects, but it will certainly not be less difficult. Central to this challenge is the question of whether we can see signs of an emerging public mind of international society, since it is in the public mind of society that a society stores its ideas about itself and its high values, and in

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which a permanent struggle about its ideas and values is enacted. The hypothesis proposed in Eunomia suggests that a society constitutes itself, not only in the form of law and legal institutions and not only in the real-world struggles, political and economic and personal, of everyday life, but also in society’s struggle about ideas. The self-constituting of the international society of the twenty-first century will be no different. The infrastructure of international social consciousness is now very substantial. The internationalized mass media of communication, including g­ lobal news services. Internationally connected computers belonging to public authorities, commercial corporations, and private individuals. Internationalized popular culture. Internationalized high culture and academic culture. Universally organized religions. Intergovernmental organizations and international non-governmental organizations. Mass tourism. The exchange of consciousness involved in the emerging universal economy, including processes for the universalizing of demand for universalized products. Bridging the natural universality of academic culture and the emerging universality of economic phenomena, science and engineering have consolidated a place of charismatic power and authority in international social consciousness, the product of two centuries in which they have provided the practical basis for revolutionary social change, and in which they have taken on a role as a sort of pragmatic default-philosophy, displacing or, at least, replacing the lost charisma of traditional national social philosophies, religious and secular, and offering the possibility of human progress at the global level, in a realm of efficient means rather than culturally divisive ends. As such, they are ­re-forming and unifying the consciousness of all those who find themselves wanting the benefits and the products which science and engineering happen to make available. The fact that so much of this infrastructure of international social consciousness takes an institutional form, albeit involving institutions of many different kinds (governments, corporations, churches, professional bodies, universities and research institutions, public interest groups, etc.), has led many people to speak of an emerging international civil society. That phrase, now almost a cliche of routine political analysis in relation to national social systems, must be treated with caution. The phrase, at least in the English and French languages, pre-existed its use in the early nineteenth century by the German philosopher, Hegel (bürgerliche Gesellschaft). But it is the Hegelian concept which has dominated the modern use of the phrase. In that concept, civil society is contrasted with the rationalized form of public power represented by the word ‘state’. It is important to note that such a contrast is a heresy in relation to at least one

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orthodox view of liberal democracy, which is founded on the idea that, in a well-ordered society, the people govern themselves through institutions which are themselves representative institutions or are under the control of representative institutions. To introduce into international society the idea that governments and intergovernmental organization simply co-exist with a random collection (‘civil society’) of self-appointed and self-legitimating, more or less institutionalized, representations of individual interests, special interests, and public interests is to condemn international society to be a pre-revolutionary or counter- revolutionary system, as seen from the point of view of at least one orthodox theory of liberal democracy. The revolutionary transformation of national societies meant that the people took power over public power, not merely through the development of ‘public opinion’ as an additional organ of the constitution, and not only through new institutions, but also through the rise of a form of popular psychic power, a change of consciousness which meant that the people were no longer to be regarded as the subjects of the state, and that public power would be regarded as a delegation from the people. In particular, the rule of law came to be seen as the people’s main means of controlling the granting and the exercise of public power. The problem of developing an appropriate idea of international constitutionalism and then of enacting that idea, psychically and institutionally, in international society, has now revealed itself as one of the most formidable challenges facing the public mind of international society in the twenty-first century. Among the ideas which help to constitute a society are ideas of a particular kind, ideas which have been referred to traditionally as ideals. Our ideals allow us to say what is wrong with our world and to imagine ways in which it could be better, and they inspire us to want to make a better world. In the 1990s it was possible to see the emerging of something which might be construed as the universalizing of human ideals. The pathos of that development lies in the fact that it was accompanied by something which can only be called the universalizing of social evil. The struggle between the idea of the ideal and the fact of evil is as old as human society. A society which did not contain the idea of the ideal would be, at best, a static society or; more probably, a self-destroying society. It is for this reason that we look anxiously and hopefully for any signs of the idealizing of international society, a society whose long prehistory, at least as it is represented in conventional historiography, has been filled with the follies and the evils perpetrated by holders of public power. We become aware of our own ideals as we find ourselves making judgements about what we see of the human world. In the 1990s, the facts of ­world-wide

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social evil were drawn to the attention of human beings everywhere with unprecedented and relentless clarity. We were forced to come face-to-face with human misery and social chaos of every kind— war and civil war; genocide; mass deportations; poverty, hunger, and disease on a massive scale; every kind of abuse of public power; every kind of social oppression, economic exploitation, and moral degradation. Such things were brought into the living-rooms of comfortable and complacent people who were made to watch the suffering of people far away, suffering which was grossly multiplied and magnified by comparison with the structural social suffering of our own societies, unimaginable degrees of suffering, affecting unimaginable numbers of human beings. Through ever more efficient means of global communication, we saw such things with our own eyes, as if they were happening to our nearest neighbours. We were forced to remember that among our ideals are ideas of justice, social justice, equality, human dignity, self-determination, self-expression, self-fulfilment, human flourishing, good health, happiness, the good life in society. We were forced to remember that our human sympathy and our moral responsibility are not confined to those who are our nearest neighbours. The social evil that we witnessed so painfully in the 1990s evoked in many people a feeling of hopelessness in the face of so much human suffering. Millions of people were inspired to perform isolated acts of generosity and direct assistance, and to experience intermittent emotions of disgust and anger. But the evil seems to be so great and so pervasive, its causes so profound and so perennial, the available social means of redress so inadequate, that we seem to have no choice but to extrapolate to the global level the routine moral compromise we make in our own societies—living with, and occasionally deploring, the effects of structural social injustice, reassuring ourselves with a lazy naturalism, the belief that social evil is ultimately natural and inevitable, and a lazy individualism, a belief that the primary responsibility for improving society rests with the holders of public power, that is to say, with the very same people who, throughout human history, have been responsible for causing so much of the social evil suffered by the people and the peoples of the world. Such a pragmatic moral compromise burdens us with a permanent moral tension, a tension between our inescapable experience of the actual and our ineradicable idea of the ideal. The reduction of worldwide social evil is the greatest challenge for the international society of the twenty-first century. The universalizing of our idea of the ideal is a first step in recognizing and meeting that challenge. If we feel able to speak of an emerging universal legal system, of the possibility of international constitutionalism, and of the first signs of international social consciousness, perhaps even containing the idea of the ideal, we

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must also speak of their dialectical negation, namely, emerging international ­anarchy. There are abundant grounds for thinking that the e­ nding of the artificial discipline and the false consciousness of the Cold War era caused, or coincided with, the rise of a broad range of powerful international anti-social forces. The proliferation of nuclear weapons and long-range missile delivery systems. An international arms trade which is at least as substantial and as cynical as it ever was. Chaotic social systems, full of gross structural social injustice. Corrupt, arrogant, and incompetent governments, sometimes partially ‘democratized’, sometimes fraudulently democratized. Governments which are little more than criminal conspiracies, supported by the self-interest of a corrupt and greedy hyper-privileged social class. International organized crime, often linked with corrupt governments, haunting the darker margins of the legitimate international economy. The debasing of politics, and of public life generally, even in countries with the most sophisticated social systems, and a declining belief in the capacity of governments to resolve social problems and to manage social change rationally. The worldwide proliferation of moral corruption, through debased popular culture and the crudest forms of capitalism. The rise of irrationalism, materialism, cynicism, and pragmatism as transnational and transcultural devalued value-systems. All these things have been accompanied by an anti-social threat of a more general kind, the loss of national social control over national social reality. As transnational phenomena become delocalized, they begin to escape from localized social controls, including social high-values (for example, relating to obscene publications) and fundamental legal-economic structures (for example, intellectual property). ‘Globalization’, cherished cliché-concept of the 1990s, is a contradictory phenomenon: global social integration and global social disintegration, world order and world disorder. New World Disorder Such is the New World which we have inherited from the twentieth-century, an overwhelmingly dynamic process of permanent revolution rather than a social steady-state. No two-word phrase and no simple formula can epitomize its formless energy. A tentative and provisional summary of the present state of the self-transforming of international society might represent it as a process of processes, a set of highly charged psychic force-fields, overlapping and interacting in a multiple dialectic of change, negating and re-enforcing and surpassing each other, a revolution of declining expectations within a revolution of rising expectations. – The power of the past, which, for better and for worse, has made the human world in which we find ourselves, and which determines the potentiality of the human world which we will make in the future. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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– An emerging universal social consciousness (public mind) of all-humanity, creating the possibility of a true international society of the whole human race, and of rationally organized human progress, using the benefits of science and engineering, but also threatening to do damage to all subordinate forms of social consciousness. – The universalizing of social evil, as the human suffering caused by social systems and by holders of public power is magnified, taking effect trans­ nationally and even worldwide, with national social reality coming under the decisive influence of events, behaviour, and influences flowing from external social reality. – The emerging universal social system, providing the institutional means for reconciling the common interest of all subordinate human societies with the common interest of a possible society of all human beings, but also providing the opportunity for the unconstitutionalized exercise of worldwide social power, governmental and economic. – An emerging universal legal system, the legal system of all legal systems, enacting and enforcing the universal common interest of all human societies and all human beings, but permitting also the exercise of exceptional social power by those who control the determination of the universal common interest and who control the content of universalized law. – The emerging universal economic system, operated by transnational economic operators, regulated by governmental power, dominated by the ­principles, law, and practices of free-market capitalism, and by the processes and products provided by science and engineering, and acting as a continuing source of structural and incidental social injustice. – The emerging universal species-consciousness of the human species as it contemplates its universal relationship to its primary habitat (the environment) and to its second habitat (the human world), and as it becomes aware of its power to pollute, and its power to protect, both habitats. – Emerging international anarchy, as traditional structures and systems of national and international order give way under the pressure of integrating and disintegrating social forces which overwhelm the adaptive capacity of those structures and systems. – The pull of the particular, flowing from subjective and intellectual diversity of all kinds, cultural and political and personal, including national and subnational identities, and religious affiliations of all kinds. – The pull of the universal, providing ideas and ideals which transcend the actual state of the human world, including the ideas and ideals necessary to transcend, to organize, and to legitimate a universal international society, but including also spiritual, intellectual, and moral ideas and ideals which condemn the actual and the emerging states of the human world. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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– The power of the future, imposing on all human beings an unavoidable responsibility for making the future of the human world, using the seemingly unlimited creative capacity of the human mind, including its seemingly ­unlimited power over the natural world and over the human body as a physical phenomenon, but always subject to humanity’s seemingly unlimited capacity to misuse its species-capacities, to cause unlimited human suffering through social evil. The Eunomian Project Eunomia: New Order for a New World seeks to invoke the power of the future to re-imagine the human world by proposing a new ideal of international society, the society of all-humanity, the society of all societies. The ideal of Eunomia is the ideal of the human social world.When the book was first published, it attracted interest and support, and also three main criticisms—that it represented a form of philosophizing which was no longer possible at the end of the twentieth century; that it was Utopian, a dream rather than a prediction, too far removed from the probable development of international reality; that it failed to specify the practical steps, especially the institutional changes, which would allow us to get from here to there, from the actual to the ideal. The New World Disorder which we have inherited from the twentieth century, and especially from the dynamic and disorderly re-ordering of the 1990s, cries out for an effort of human self-re-imagining at the level of ideas, a reimagining which is not only possible but necessary and urgent, which is not merely a dream nor even a prediction but a re-imagining in the name of a selftranscending ideal and a self-transforming ambition, and which is as practical as any human activity can possibly be. To disprove a claim that a form of thinking is impossible, it is only necessary to show that it has been done. To disprove a claim that a set of ideas is merely Utopian, it is useful simply to recall that those ideas contain a future which is not only possible but also necessary, and that the human future is always an imaginary potentiality until it becomes a present actuality. To disprove a claim that an idea of the human future must also be a programme of practical action, it is only necessary to recall that theory is itself a form of practice. We make the human world, including human institutions, through the power of the human mind. What we have made by thinking we can make new by new thinking. Eunomia and Philosophy Philosophy in the Western tradition has always contained a critique of its own possibility. Since before the time of Socrates (fifth century bce), Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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a ­sceptical counterpoint has accompanied all philosophy’s claims. In the twentieth century, philosophy’s own self-doubting came to be philosophy’s dominant truth-claim, sustained by a whole series of apparently devastating meta-philosophical ideas. The idea that philosophy makes the universe in a form which merely reflects its own functioning, and so cannot claim to reveal the ‘real’ reality of the universe. The idea that philosophy only speaks about phenomena, that is to say, about the universe as it presents itself to the human mind. The idea that philosophy is a social product like any other, with no greater claim to authority than other socially constructed ideas. The idea that philosophy is a linguistic phenomenon like any other, and cannot claim a validity transcending the language in which it must be expressed. The idea that philosophy is a psychological phenomenon like any other, with conscious and unconscious causes like any other form of mental process. The idea that philosophy is a physiological product like any other, a set of epiphenomena caused by the activity of the brain and the nervous system. The idea that the truth-claims of philosophy inevitably fail the test set for the truth-claims of the natural sciences (verifiability or falsifiability by experiment). In the minds of many people, philosophy had ‘proved’ its own impossibility, having regard to one or more of these ideas. The Eunomian answer to this claim is threefold. (a) A truth-claim about the limits of the possibility of philosophy is itself a philosophical idea, and hence it has no more validity than the truthclaims which, it claims, are impossible. (b) The claim that physiology and biology will eventually explain human consciousness to itself is an impossible claim. When it is presented in a popularized form, such a claim is a gross deception of people who pathetically seek a simple solution to the problem of the power and the pain of human self-consciousness. The functioning of the human mind is d­ istinct from the functioning of the brain and nervous system. Mental events are also, but are not merely, physical events. Physiology and biology may eventually produce general theories of the functioning of the brain and nervous system. They will never be able to predict the ­formation of any particular idea at any particular moment in any particular mind, since there is no limit to our capacity to create new ideas, ideas of the real and the unreal, the possible and the impossible, the natural and the supernatural, the actual and the ideal, including unpredictable ideas which have great s­ ocial significance, mind-forming and society-forming ideas—­ Buddhism’s dharma, Jonathan Swift’s Lilliput, Adam Smith’s ­Invisible Hand, and so on and on. Philosophy is the ­self-contemplating of the human mind, a thinking thing thinking about its thinking, actor and spectator of its own mental events. It is inconceivable that h ­ uman ­beings will cease to make Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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use of their most characteristic species-capacity in order to think about their most characteristic s­pecies-activity. It is a p ­ erverse and arbitrary self-denial and s­ elf-wounding to seek to do so. (c) Human societies are systems of ideas. Human societies are mind-worlds and hence also language-worlds. They are processes of self-constituting in and through ideas, ideas which are communicated and stored in the form of language. Human societies are made possible by the way in which we can make and retain and re-make the elementary universalized substances of a shared language-world—self, society, love, freedom, truth, God, property, law, right, duty, justice, good, evil, and so on and on. Arbitrarily to deny the possibility of thinking about ideas at the most abstract level, and about-ideas-about ideas to the nth degree (epistemology, metaphysics, moral philosophy, social philosophy), is to submit human beings finally to the tyranny of the ideas that happen to exist already, or which happen to be generated as random products of autonomic social processes, and so to abandon the possibility of transcending and criticizing and re-imagining those ideas and the social systems which they sustain. It is an unbearable irony that the twentieth century, of all centuries, should have spawned the idea of ‘the end of philosophy’ and proclaimed the final triumph of ‘pragmatism’ (as the nineteenth century had prematurely announced ‘the death of God’ and the final triumph of ‘science’), when it was the twentieth century, above all others, which implemented big ideas socially, at the cost of unspeakable human suffering, from the Somme and Verdun to Auschwitz and Hiroshima and the Gulag and Rwanda. It was the twentieth century, above all others, which needed the self-healing power of the human mind, the power to rise above and to redeem the self-destructive power of the human mind, to resist the power to do terrible social evil in the name of ideas. It is, at least, true that philosophy’s relentless self-wounding in the twentieth century has made us much more sensitive to the problem of the social status of ideas As intellectual heirs of Kant, Hegel, Schopenhauer, Nietzsche, Mach, Wittgenstein, Freud, and Foucault, we are now able to survey more clearly and accurately than ever before the tortuous road which connects the universalizing activity of the human mind with the everyday social enforcement of ideas. There is no reason why we should abandon the claim of the human mind to be able to think universally, above and beyond social and cultural diversity, above and beyond the temporary contingencies of any particular state of human society or human psychology. There is every reason why we should recognize the universalist claim, since our societies have been made by the transformatory power of universalist ideas, including philosophy in the

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service of religion (theology) and philosophy, moral and social, in the service of human progress. To abandon the claim is to abandon the possibility of surpassing the universalist bases of society which we happen to have inherited from past states of universalizing human consciousness. Eunomia and Utopia Since the late eighteenth century, the dominant world-view in the minds of practitioners of, and commentators on, international relations and international law is of a world which is organized, and will continue to be organized, around the concept of the ‘state’, and in which the essential social process is the interaction of states, an interaction which is regulated by forms of polities, morality, and law specifically adapted to the nature of the interstate system, a system whose characteristic social process is diplomacy and whose ultimate self-ordering is through the use of armed force. On this view, international society, if there can be said to be any such thing, is nothing more than a rudimentary society of states, a barely socialized global state of nature. This ‘two-realm’ view—two social realities (national and international), two kinds of order, two kinds of politics, two kinds of morality, two kinds of law—is classified as realist, in the philosophical sense of the word, in that it treats a ‘state’ as a real quasipersonal entity, with its own will and its own ­interests, and ‘realist’ in an evaluative sense of the word, in that it claims to be a realistic representation of the actual state of international affairs and the actual state of mind of those who conduct international relations. Under the impact of the power of the future, we must say that the realist world-view is no longer realistic. Such is the effect and the lesson of the final exceptional decade of an exceptional century. We are at a turning-point of world h ­ istory, a t­ urning-point in the making of the human world. We cannot avoid the choice—to re-live the past or to make a new future. The new world which we have inherited from the twentieth century calls for a new idea of world order. The new world disorder requires a new world order. Eunomia: New Order for a New World offers an unashamedly idealist social philosophy, in the primary philosophical sense that it assumes the capacity of the human mind to find within itself universal ideas, including ideas about the self-constituting of human society, ideas which are not temporally or culturally contingent. It offers an idealist philosophy in a secondary philosophical sense, in that it supposes the capacity of the human mind to create a universefor-itself in the form of ideas, that is to say, stored mental events, so that society is seen as a form of human self-constituting in and through ideas, that is to say, ideas stored in social consciousness, the public mind of society, and in the

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private minds of individual human beings. Eunomia offers, thirdly, an idealist philosophy in the sense that it supposes that the human mind can find within itself the idea of a better human future, and can choose to make a better human future actual. It assumes that social philosophy can be formulated in such a way that society can identify and enact the particular form of idea which has traditionally been known as an ideal, an idea of the better potentiality contained in the actuality of society, a better potentiality which is capable of dominating all the processes of society, including the making, the application, and the enforcement of law. To pursue the ideal is necessarily and intentionally to oppose the tyranny of the actual. Idealism is not the realism of the actual but the realism of the possible. The ideal of a better human future is the possibility of a better human future. To suggest, as Eunomia does, that social idealism is also applicable to the social self-constituting of the whole human race has struck many readers as ‘utopian’ because the long history of inter-tribal, inter-national, inter-statal relations has seemed to be filled with behaviour of an intrinsically and irredeemably anti-social kind, up to and including an endless succession of murderous wars, within a human situation characterized by what seems to be permanent structural social injustice at the global level. In particular, it is hard to see any ideal potentiality at work in the miserable actuality of international relations in the modern period (from 1500), a reality from which the idea of the ideal seems as remote as the idea of altruism in a jungle. In response to this criticism, it is surely only necessary to say that our experience of the 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. Again and again, we have found that the human past contains other human possibilities, other ideas and ideals, than those which happen to have been actualized in a given society at a given time. There is no reason why the social past of all-humanity should also be its future, a past which has been made by a small class of people who happen to have dominated inter-societal social development, a class of holders of public power with narrow interests and narrower ideas, a collection of powerful human beings with a notable weakness for doing social evil on a grand scale. International social reality has not been challenged clearly and insistently enough by the great Ciceronian question: cui bono? (who profits?). Who has profited from, and who has paid the price for, the crude state of nature in which state-societies have co-existed? The Eunomian ideal includes the idea that it is human beings who should profit from human society. Why should not

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we imagine a better kind of human world made by people with better ideas and better ideals? And, having imagined such a world, why should we not do all that we can to make that world into the world that we inhabit, a better species-world of the remarkable human species? Eunomia and Action It takes only a thought-instant to transform one’s idea of international society from a state-centred to a human-centred mental universe. In the very next moment, one has a wholly new world-view, with wholly new values, wholly new possibilities, and wholly new purposes. In a thought-instant, we have made a wholly new human mind-world. In a transformed human mind-world, all human action is transformed. Theory is a form of practice, since practice at any given time inevitably takes the form which theory makes available at any given time. We see the world in the form in which our ideas present the world to us. Since the world, the natural and the human world, is the arena of our action, our action is formed by the form of the world formed by our minds. We enact the drama which our minds have composed. We speak the language which is available to us, seeing our potentiality and our purposes in the reality which we are able to speak. To change our idea of our world, to speak about the world in a new way, is to change what our world will become. The road from the ideal to the actual lies, not merely in institutional novelties, or programmes and ­blueprints of social change, but also, and primarily, in a change of mind. A revolution in society is also and, above all, a revolution in the mind. Eunomia suggests that a society forms itself through a three-in-one process of self-constituting, an unceasing interaction between ideas and practice and law, a society’s ideal, real, and legal constitutions. It follows that changes in any one of its forms of self-constituting affect the total process of a society’s self-constituting, and that large changes are liable to have large effects on that process. The history of human social progress suggests that new ideas have what may be called a prevenient effect on the self-constituting of society. New social theory cannot, by and in itself, cause a fundamental change in the institutional structure and the everyday practice of a society, social change being the effect of so many other causes, physical and organic and practical, which go far beyond the self-contemplating of the human mind. What theory can do is to provide a framework into which social change flows, an available mould or matrix, enabling us to understand, to control, and to shape social change. Social philosophy cannot dictate the form of new social institutions. New social institutions arise as new social philosophy meets actual and potential social reality in a given society. New social philosophy is an organism waiting

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for life to be breathed into it by new social practice. New social practice needs new social philosophy to determine the form of its organic growth. To change international social reality, we have to break the mould in which that reality has been formed. To take power over the future of international society, we have to take power over its self-constituting. To change the function and the functioning of the international social institutions which have been formed over recent centuries, we have to take power over the international social reality within which those institutions have been formed. To change international social reality, we have to take power over the power of those who have dominated the formation of social reality over recent centuries. To take power over the social power which has caused so much social evil, so much human suffering, over recent centuries, we have to use the form of power most readily available to us, the power of ideas. To bring order to the new world disorder which we have inherited from the twentieth century, we must use the ordering power of the human mind, its power to re-order its own order, and to bring order to its disorder, the mind’s wonderful power to transcend itself and to cure itself. And who are ‘we’? We are the people, nameless pawns in the game of diplomacy, human sacrifices in the rite of war. We are the people, permanent victims of the abuse of public power and economic power—shackled in serfdom and slavery, herded like cattle into mines and factories and slums, into concentration-camps and refugee-camps, driven at gun-point from our families and our homes, dehumanized by poverty and famine and disease, by the new slavery of consumerism and the mindless hedonism of popular culture. We are people with a permanent revolutionary possibility, the power to make a revolution, not in the streets but in the mind. And the long journey of r­ evolutionary change begins with a single revolutionary step. We can, if we wish, choose the human future. We, the people, can say what the human future will be, and what it will not be. Trinity College Cambridge December 2000 Notes (1) The Greek word eunomia (good social order) came to be associated with the name of Solon (c.640–c.588 BCE), a charismatic ‘law-giver’ of ancient ­Athens who laid down what was virtually a new social contract to resolve

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d­ eep-­structural social conflict. It was a new order which did not last (absit omen!). He was the author of an elegy entitled Eunomia, extolling the virtues of law-based social order. In ancient Greek mythology, Eunomia was a daughter of Zeus and Themis.

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Chapter 13

Dino Kritsiotis, Imagining the International Community, 2002 Comment by Peter Quayle, Head of Corporate Law, Asian Infrastructure Investment Bank The UN Charter begins with the famously bold determination of “we the peoples of the United Nations”, before these particular “peoples” – of the victorious coalition of States that fought and won the Second World War – step to the side-lines.a Instead, their place is taken by some other, subordinate “peoples”; peoples economically and socially disadvantaged, dispossessed and “non-­self-governing”.b The 1969 Vienna Convention on the Law of Treaties legislates for a normative meaning of jus cogens based on the recognition of the “international community of States as a whole” in an otherwise resolutely contractual regime.c In the Barcelona Traction case,d the ICJ determines that this “international community as a whole” has certain obligations erga omnes but only so as to grant States an individualised legal interest.e It is almost as if the world court is more confident (and poetic) when handling a community (“of ­destiny”) existing between a company and its shareholders.f Latterly, the Rome Statute limits the role of the “international community as a whole” to the International Criminal Court’s jurisdictional concern for “the most serious crimes”.g When the “all peoples” similar to the UN Charter make an appearance in the Statute (whether sovereign or suffering is uncertain) they are simply “united by ­[unspecified] common bonds”.h a United Nations Charter, 1 unts xvi, preamble. b Ibid, at preamble, and the reference to “the promotion of the economic and social advancement of all peoples”, Art 1(2) and Art 55 and the “respect for the principle of equal rights and self-determination of peoples”, and throughout Chapters XI and XII and the trusteeship system (Art 73) “for the administration of territories whose peoples have not yet attained a full measure of self-government”. c 1156 unts 331, Art 53, titled “Treaties Conflicting with a peremptory norm of general international law (‘jus cogens’)”. d Barcelona Traction, Light and Power Company, Limited, Second Phase (Belgium v Spain) (Judgment) [1970] ICJ Rep 3 e Ibid , para 33. f Ibid, para 45. g Rome Statute of the International Criminal Court, 17 July 1998, Art 5. h Ibid, preamble. © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_014

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Is an “international community” nothing more than a reassuring makeweight in international law? An answer is offered by this sustained critique by Dino Kritsiotis of Thomas Franck’s important Fairness in International Law and Institutions and his resulting guide to the imagined and influential “international community”. Between rhetorical art and legal reality, Kritsiotis skilfully finds “sufficient proofs that can be marshalled to make the case for a political force known as an international community”.

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D. Kritsiotis, ‘Imagining the International Community’, (2002) 12 European Journal of International Law, pp 961–92. Reproduced with the kind permission of the author.

Imagining the International Community* Dino Kritsiotis** Neither Marxists nor Austinians, admittedly, give much comfort to those concerned with visualizing the international ‘community’ in which rules are obeyed and obligations taken seriously. THOMAS M. FRANCK ‡

…

… the ‘international community’ in which everyone speaks roughly the same language of missiles and missives, sanctions and sanctimony. DAVID KENNEDY §

…

[We have come] to have an international system which was, and is, postfeudal society set in amber. Undemocratized. Unsocialized. Capable only of generating so-called international relations, in which so-called states act in the name of so-called national interests, through the exercise of ­so-called power, carrying out so-called foreign policy conducted by means of diplomacy, punctuated by medieval entertainments called wars or, in

* Presented to the Committee on Theory and International Law of the International Law Association (British Branch) at the University of Durham on 27 January 2001 and at the University of Glasgow on 1 June 2001. * * University of Nottingham. Rapporteur of the Committee on Theory and International Law of the International Law Association (British Branch) (1998–2001). I owe a special debt of gratitude to Thomas Franck and Colin Warbrick, and, of course, to the members of the Committee on Theory and International Law for providing an excellent and sustained intellectual environment for developing the ideas contained in this article. ‡ T.M. Franck, The Power of Legitimacy among Nations (1990) 15. § Kennedy, ‘The Disciplines of International Law and Policy’, 12 Leiden Journal of International Law (1999) 9, at 126.

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the miserable modern euphemism, armed conflict. This is the essence of the social process of the international non-society. PHILIP ALLOTT ◊

∵

1 Introduction At the heart of the thesis which is articulated and developed in Fairness in International Law and Institutions (1995) is the idea of community, which is defined as a ‘social system of continuing interaction and transaction’ and ‘an ongoing, structured relationship between a set of actors’.1 Communities, it is said in this volume, consist of ‘a common, conscious system of reciprocity between [their] constituents’2 and ‘shared moral imperatives and values’.3 The idea of community is fundamental to fairness discourse,4 ‘the process by which the law, and those who make law, seek to integrate [the] variables [of legitimacy and distributive justice], recognizing the tension between the community’s desire for both order (legitimacy) and change (justice), as well as the tensions between differing notions of what constitutes good order and good change in concrete circumstances’.5 There is a triumphant claim which resonates throughout these assessments of fairness discourse as international law enters its ‘post-ontological era’,6 and this claim relates to the ‘emerging sense of global community’ within the ◊

P. Allott, International Law and International Revolution: Reconceiving the World (1989) 10. 1 T.M. Franck, Fairness in International Law and Institutions (1995) 10 [hereinafter Fairness]. At 12, that ‘structured relationship’ is defined thus: ‘a community is defined by having a corpus of rules which it deems to be legitimate and by having agreed on a process that legitimates the exercise of authority, one which conduces to the making of fair rules and fair allocations’. 2 Ibid, at 10 (where the ‘system of reciprocity conduces to fairness dialogue’). 3 Ibid (or, at 11, of a ‘common moral enterprise’ and, at 12, of a ‘moral community engaged in formulating itself as a “rule community”’). 4 Ibid, at 26. 5 Ibid, at 25–26. 6 Ibid, at 6 (in which international lawyers ‘need no longer defend the very existence of international law’ and are ‘now free to undertake a critical assessment of its content’). Or, as he intimates to similar effect at 363, ‘how far international law has progressed, from dour scholastic issues of ontology to vibrant questions of survival’. See, further, Warbrick, ‘Brownlie’s Principles of Public International Law: An Assessment’, 11 ejil (2000) 621, at 625 (who is ‘sympathetic to the position that international lawyers need feel no e­ mbarrassment in explaining the legal nature of international law’ in its ‘post- epistemological situation’).

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international system.7 To be sure, such assertions reflect an abiding engagement with the matter and are traceable to an earlier work of Professor Thomas M. Franck, his influential The Power of Legitimacy Among Nations (1990).8 Towards the end of that seminal work, it was admitted that the ‘fundamental assumption of community’ had been made ‘but not demonstrated’ in the preceding chapters of that book.9 In consequence, the topic was then awarded the exclusive attention of an entire chapter,10 in which ‘community’ was defined as an association reaching ‘an advanced stage of development’11 and stood to be contrasted with a ‘rabble’: in that it is an organized system of interaction in accordance with rules, while a rabble typically involves unstructured, standardless interactions between actors whose conscious relationship to one another is limited to the circumstance of casual proximity. A rabble is a crowd whose members interact because they just happen to be in the same space at the same time. ‘Members’ of a rabble do not regard themselves as members, anymore than persons on a crowded subway car regard themselves as members of an underground.12 7 8

9 10 11 12

Ibid, at 11–13. T.M. Franck, The Power of Legitimacy among Nations (1990) [hereinafter Legitimacy] (where a sharp contrast is established in the opening chapter, at 5, between ‘societies of natural ­persons, as opposed to states’ and, at 8: ‘Teleologically speaking, one might hypothesize that nations obey rules of the community of states because they thereby manifest their m ­ embership in that community, which, in turn, validates their statehood’). A synthesis of the ‘legitimacy thesis’ is presented in Fairness, at 30–46, and at 82 AJIL (1988) 705. See, also, T.M. Franck, The Empowered Self: Law and Society in the Age of Individualism (1999) 98 [hereinafter Empowered Self]. While the overall emphasis in this later book is on the idea of personal self-determination, there is still recognition of the value of community and of the international community: ‘[w]hat appears to be happening in this new age of emergent individual rights and reconfiguration of loyalty systems is best explained in terms of what Professor Alexander Wendt has called a “sociology of international community”’: Wendt, ‘Collective Identity Formation and the International State’, 88 American Political Science Review (1994) 384, at 390. Ibid, at 181. Ibid, at 195–207. Ibid, at 196 (or, at 201–202, where it is used ‘to denote a high level of sophistication in the rule structure within which a group of actors habitually interact’). Ibid, at 196–197 (inspired by the work of Ronald Dworkin, that members of a true community ‘accept that they are governed by common principles, not just by rules hammered out in political compromise. Members of a society of principle accept that their political rights and duties are not exhausted by the particular decisions their political institutions have reached, but depend, more generally, on the scheme of principles those decisions presuppose and endorse. So each member accepts that others have rights and that he has duties flowing from that scheme’: Law’s Empire (1986), at 211).

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These reflections form part of an incremental and increasing turn within the discipline of international law from accounts of the requirements for statehood to the idea of the formation of an international community.13 Presented as such, we are given a radical alternative as our point of departure for conceptualizing and understanding international law, one that is far removed from sceptical receptions and even ideological resistances to ‘community’ that have appeared from time to time in international law literature.14 The general neglect in concentrating energies on this front has led to robust accusations that the normative process of international law ‘is doomed to be what it has been— marginal, residual and intermittent’:15 international law requires the context of a ‘community’ for it to exist ‘as a limitation of political power’ and be regarded as a force with independent reckoning in international relations.16 It is this 13

14

15 16

H. Mösler, The International Society as a Legal Community (rev. edn, 1980) and ‘International Legal Community’, 7 Encyclopaedia of Public International Law (1984) 309. ­Consider, also, the position of Rosalyn Higgins, that ‘when examining what is meant by the word “state”, it is necessary to appraise the community interests which will be affected by the decision to interpret it in one way rather than in another’. The community, of course, is strictly a ‘community of nations’ whose ‘long-range objectives’ shape the framework of principles governing statehood and derivations thereof, and, as such, those ‘generally recognized as full members of the international community’: The Development of ­International Law through the Political Organs of the United Nations (1963), at 11–12. See, also, Franck’s reference to states ‘in joining the international community, are bound by the ground rules of that community’: Fairness, at 29 (where a state’s membership of the ‘community of states’ is described as ‘an inescapable incidence of statehood’). C. de Visscher, Theory and Reality in International Law (1968), at 94. (‘It is therefore pure illusion to expect from the mere arrangement of inter-State relations the establishment of a community order; this can find a solid foundation only in the development of the true international spirit of men. There will be no international community so long as the political ends of the State overshadow the human ends of power’). Stephen Toope has written that his ‘understanding of the possibilities of international normativity’ is ‘predicated upon the view that there is no such thing as the “international community”, though ­generations of UN Secretaries-General would have us believe otherwise’: S. Toope, ‘Emerging Patterns of Governance and International Law’, in M. Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (2000) 91, at 103. See, further, P.E. Corbett, Law in Diplomacy (1959), at 273 (‘What is principally missing is the measure of agreement on supreme common values, the sense of community, loyalty, and mutual tolerance which within the state make compulsory institutions bearable’). P. Allott, Eunomia: New Order for a New World (rev. edn., 2001) 104 (para. 16.17). G. Niemeyer, Law without Force: The Function of Politics in International Law (1941), at 174 (concluding that ‘[i] n this respect the function of international law was not unlike that of constitutional law. This is the feature which distinguishes the international law of modern Europe from all other previous cases of legal procedures between states: [i]t consisted not only in occasional treaties and arbitrations, but in a solid body of rules which were neither created nor easily changed by the action of governments’).

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e­ ssential absence of ‘community’—or, at least, the absence of a consciousness of community—that has given some cause to lament the current critical condition of international law and its institutions. Of course, within mainstream literature on international law, references to and reliance upon the idea of an international community are not as rare as these inimical treatments would have us believe: there exists an extraordinary wealth of allusions to ‘community’ in both classic and modern scholarship, with Sir Hersch Lauterpacht’s feature work on The Function of Law in the International Community (1933) one of the earliest and most prominent examples to come to mind. Yet, for all the abundance of these references, it is rare for the ‘international community’ to have been subjected to the conscious endeavours of definition: it is almost as if there exists a subliminal and pervasive appreciation of the meaning of this term—of what forms and frames this ­community—that eliminates the need for further detail or consideration. The result is that, all told, the institution of an ‘international community’ is taken as a given for the most part and its usage taken for granted from the perspective of international law. This is where Fairness in International Law and Institutions (1995) breaks rank with a major share of the scholarship: it sets out to offer an informed and sustained discussion of the idea of an international community when considered through the kaleidoscope of fairness discourse as well as the histories of international law. This article responds to these formulations: it carries an exposition as well as a critical appreciation of the invocations of the metaphor of ‘community’ in Fairness in International Law and Institutions (1995). The article relates how twin conceptions of ‘international community’ emerge from reading Fairness and how, in ultimo, these conceptions serve to complement and reinforce each other. Part 2 explores the first of these conceptions, where ‘community’ is used as a rhetorical device for referring to the expanding set of ‘persons’ identified in orthodox accounts of the subjects of international law. Here, ‘community’ has been devised as a convenient descriptive harness for a series of multiple and co-existing communities within the international system. We build upon these expositions contained in Fairness and argue that these c­ ommunities—of legislators, addressees and adjudicators—are best understood in terms of their respective functions and capacities, all the while emphasizing the discursive nature of community when used in this, its rhetorical, sense. Part 3 of the article then moves to consider the much more applied and subtle manipulation of ‘community’ at work in Fairness. Here, the ‘international community’ appears to have been used in a more pronounced sense, where it is developed as an independent dynamic within the political infrastructure

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in order to provide substance to the notion of ‘fairness’ in law and in practice. We are, after all, informed at an early stage of proceedings that fairness discourse ‘presumes community’.17 It is in this respect that the international community can be said to be imagined: the manner of its conceptualization reveals—in provisional terms at least—the preferences of its author regarding the form which this community assumes as well as the priorities and methods which this community, in turn, shapes. The form of this community articulates whether it exists as a statist or a communitarian institution,18 and the claims made in Fairness are evaluated in a modest critique, where the notion of a community that shares both statist and communitarian elements is tested and where the relation between rhetorical and imagined communities is explored. The summaries of argument, and conclusions relating thereto, are given in the final section, Part 4, of the article. 2

The Rhetorical Usage of International Community

A Outline As the background for the exposition of the rhetorical invocation of ‘community’ in Fairness, it is proposed that some mention is made of how the term ‘international community’ has been used in existing scholarship. We use the term ‘rhetorical’ to indicate that the practice of referring to an ‘international community’ is part of a wider phenomenon in the literature of international law—it is not unique to Fairness—where the term is engaged for the purpose of collective reference: it brings within its fold the multitude of actors ­recognized to greater or lesser degrees as ‘persons’ within the international system. However, it is also argued that, on one interpretation of Fairness, what 17 18

Fairness, at 26 (‘If legitimacy validates community, community must be present for legitimacy to have content’) and at 8 (‘fairness supposes a moral compass, a sense of the just society’). Tasioulas, ‘In Defense of Relative Normativity: Communitarian Values and the Nicaragua Case’, 16 Oxford Journal of Legal Studies (1996) 85, at 116–117 (the ‘statist’ conception of international society exists where ‘[s]tates form the irreducible units of the international community and, given the absence of a system of organic representation, the idea of such a community is nothing other than the sum total of its states’ and the ‘communitarian’ conception of international society ‘affirms, instead, that it is only as members of the community of humankind as a whole—a community whose self-understanding is integrally orientated in part by the acknowledgment of shared values—that its components (be they states, people, organizations or individuals) can understand their own identities’). See, further, the dichotomization developed between the Grotian and Kantian international communities: A. Cassese, International Law (2001), at 18.

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is really occurring in the work is a conceptual shift towards the function rather than the identity of such actors in the traditional sense of states as opposed to individuals, international institutions as opposed to non-governmental organizations. Through this process, communities of legislators, addressees and adjudicators come into being, and these communities connect and interact with each other through the language or medium of international law. This is why the discursive nature of this community is emphasized in Fairness: it is this element which defines ‘community’ in this particular context and which characterises the relationships operating within that community. B Conventional Treatments It would be a false and unwarranted impression to suggest that no extended discussion has occurred on the reach and meaning of the ‘international community’: such accounts do of course obtain in dispersed fractions of mainstream literature, but these are few and far between and, when they have taken place, their purchase has been on the teaching that states are the makers and mainstay of this community: in the Euro-Mediterranean area in the Middle Ages an international Community existed which included all the different States of the region: a sole pluralistic Community, not a plurality of distinct Communities. The fact that the rules of law born in this one community did not bear a Catholic, or Orthodox, or Islamic label will be shown in all its importance the day in which the outer frontiers of this Community became opened to the participation of political systems of other regions and its law adapted to meet the need of a community of States that is world-wide, and therefore all the more markedly pluralistic.19 Others, such as Antonio Cassese, have plotted a related course, one that is an essential derivative of the above formula: the first third of his International Law In A Divided World (1986) charts the origins and foundations of the international community as understood from the history of the multiplication of states. This becomes clear if one considers the chronological milestones which are identified: the Peace of Westphalia (1648), the First and Second World 19

Ago, ‘Pluralism and the Origins of the International Community’, 3 Italian Yearbook of International Law (1977) 30 (emphasis added). See, further, Ago, ‘The First International Communities in the Mediterranean World’, 53 BYbIL (1982) 213. On the philosophical underpinnings, consider Bull, ‘The Importance of Grotius in the Study of International Relations’, in H. Bull, B. Kingsbury and A. Roberts (eds), Hugo Grotius and International Relations (1992) 65, at 71–75.

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Wars and the Charter of the United Nations (1945). Room is made for the ‘new subjects’ of this community—as if the ‘international community’ has become some sort of convenient short-hand for depicting the expanding range of persons within the system20—but the overwhelming emphasis of the analysis is on the continuing significance of states, as revealed when Cassese wrote, in 1986, that, ‘at present, the community is split into three main segments, each with a distinct socio-economic philosophy, a fairly fully developed ideology, and diverse political motivations—and even within each of these groups[,] there are many diversions and differences’.21 Elsewhere, the international community has been used to conjure the vital ‘universality’ of international law: that, notwithstanding differences of political or ideological principle, international law does not recognize ‘any distinctions in the membership of the international community’ and no longer ­participates in an enterprise in which the old Christian states of Western Europe constituted ‘the original international community within which international law grew up gradually through custom and treaty’.22 These sentiments find contemporary expression in doctrinal thinking on sovereignty and self-determination, or, as the International Court of Justice said in the Nicaragua Case (1986), ‘the fundamental principle of state sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a state’.23 The ‘community’ which 20

21

22 23

See, further, Fassbender, ‘The United Nations Charter as Constitution of the International Community’, 36 Columbia Journal of Transnational Law (1998) 529, at 532 (making ­reference to ‘the international community in its entirety, i.e., all subjects of international law’). A. Cassese, International Law in a Divided World (1986), at 32 (concluding that ‘the profound rifts existing in the international areas have also had a profound effect in the realm of law’). The result, at 33, of these ‘broad arenas of dissent or only partial agreement on the one side, and the emergence of certain fundamental standards of behaviour acceptable to all States on the other’ is ‘a distinction between three categories of international norms: universal (principles applicable to all States belonging to the three main groupings referred to [herein]), general (customary rules or norms of multilateral treaties accepted by only two groups of States), and particular (bilateral treaties, as well as multilateral treaties, adhered to by one segment only of the international community)’. See, further, Cassese, supra note 19, at 19–45. Sir R. Jennings and Sir A. Watts, Oppenheim’s International Law: Peace, vol. I (9th ed., 1992), at 87. Case Concerning Military and Paramilitary Activities in and against Nicaragua: Nicaragua v. United States of America, ICJ Reports (1986) 14, at 133 (paragraph 263). See, further, N. Wheeler, Saving Strangers: Humanitarian Intervention and International Society (2000), at 28 (describing the ‘rules of sovereignty and non-intervention’ as ‘the constitutive rules of international society’).

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arises within such conventional treatments is a community of sovereign states (hence, the romanticism embodied in the idea of a ‘family of nations’):24 the process is thereby begun of determining whether such a community knows of values other than the sovereign identities of its individual members—whether the ‘community’ becomes more than the mere collection of its parts, or, to use Franck’s words, ‘the system’s values, aims, and effects’25—and the extent to which (if at all) the ‘community’ is prepared to admit actors other than states within its following. C Beginnings of Community As observed above, the attention awarded to communitas in Fairness in International Law and Institutions (1995) is recurrent and its hold on the ensuing thesis is quite unmistakable. It would not be an exaggeration to say that it transfuses the consciousness of the entire work: There must also be a shared sense of identity of those entitled to a fair share; there must be an ascertainable community of persons ­self-consciously engaged in a common moral enterprise. The members of such a community participate not only in the sense of receiving a share of each allocated good or obligation, but they also participate in determining the rules by which the shares are allocated. There must, in other words, be a moral community, engaged in formulating itself as a ‘rule community’.26 Who, then, are the members of this community? It will be recalled that in The Power of Legitimacy Among Nations (1990), the intellectual forerunner to 24

25 26

Armstrong, ‘Law, Justice and the Idea of a World Society’, 75 International Affairs (1999) 547 (writing of the ‘societal grounding’ of international law as ‘a presumed society of states: a loose and limited association among sovereign entities whose primary purpose was to enable orderly relations among states without in any way diminishing their sovereign statehood and rights’). Franck describes the state as the ‘basic community’: Fairness, at 13. Fairness, at 9. Ibid, at 11–12. See, also, Koh, ‘Why Do Nations Obey International Law?’, 106 Yale Law Review (1997) 2599, at 2642 (that Franck ‘sees a transnational actor’s impulse to comply as deriving not from a multitude of cost-benefit calculations regarding particular rules, but more broadly rooted in the solidaristic “communitarian peer pressure” that nations feel as members of a club’); Simpson, ‘Is International Law Fair?’, 17 Michigan Journal of International Law (1996) 615, at 639 (‘Franck emphasizes the sense of community and there is much talk of global community’) and Tasioulas, Book Review, 1 Edinburgh Law Review (1997) 509 (reflecting on Franck’s appreciation of ‘a more communitarian self-image among humanity’ as a ‘pervasive feature of the contemporary world’).

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f­ airness discourse, Franck had concluded that the elements of a ‘rule community’ were in place in the ‘international arena of states’.27 In that work, there was specific categorization of the community as ‘a community of states and interstate institutions’: it was, emphatically and after evident deliberation, ‘not [one] of persons’.28 A recent and forceful pronouncement of such a state-based—and what Martti Koskenniemi has called, with necessary precision, ‘UN-directed’29— international community occurred in the political context when British Prime Minister Tony Blair addressed the Economic Club of Chicago in April 1999. There, Prime Minister Blair concluded that: [w]e are witnessing the beginnings of a new doctrine of international community. By this I mean the explicit recognition that today more than ever before, we are mutually dependent, that national interest is to a significant extent governed by international collaboration and that we need a clear and coherent debate as to the direction this doctrine takes us in each field of international endeavour. Just as within domestic politics, the notion of community—the belief that partnership and co-operation are essential to advance self-interest—is coming into its own; so it needs to find its international echo.30 27 28

29

30

Legitimacy, at 202. See, further, Wheeler, supra note 24 (that ‘international society, like other organizations in the social world, is constituted by rule-governed actions’). Ibid (emphasis added). There is a clear sense that gratuitous or emotive incantations of the ‘international community’ are best avoided, in preference for more considered applications of the term: ‘Analogies to tribes with ties of kinship, proximity and belief-system are helpful only metaphorically (as in ‘the global village’) or else are downright misleading. We are speaking of a community of states and interstate institutions, not of persons. While persons may be in fixed communion at many different levels and by virtue of many different forces, states are more limited in the ways they can relate to one another’ (emphasis added). Koskenniemi, ‘Repetition as Reform: Georges Abi-Saab Cours Général de droit international public’, 9 ejil (1998) 405, at 411. See, further, the discussion of the ‘present UN ­community’ as a distinct entity within the context of the jurisprudence issued by the International Court of Justice: M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989), at 409. Franck himself writes of the ‘UN community’ which ‘sided firmly with Kuwait against Iraq’ and he does so ‘because most states, especially those in the Third World, feared that to do otherwise would open the floodgates of uncontrollable global change’: ibid, at 23–24. In Legitimacy, at 226, Franck actually equates the United Nations with the ‘community of states’. Speech by Prime Minister Tony Blair to the Economic Club of Chicago on 22 April 1999. Located at www.fco.gov.uk/news/speechtext.asp?2316. See Evans, ‘Conflict Opens “Way to New International Community”’, The Times (London), 23 April 1999, 16. This excerpt has been described as ‘the clearest refrain’ of the doctrine of international community in the

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This theme—of countries ‘coming together’—has been revisited by Prime Minister Blair in recent times when, in a speech to the annual Labour Conference in Brighton in October 2001, he declared that the ‘power of community is asserting itself’ on the world stage.31 The ‘power of the international community’ could, he said, ‘sort out the blight that is continuing conflict in the Democratic Republic of the Congo’: ‘[t]he state of Africa is a scar on the conscience of the world [and] if the world as a community focused on it, we could heal it’.32 ‘Community’ has become the ‘lesson’ of ‘the financial markets, climate change, international terrorism, nuclear proliferation [and] world trade’ because ‘our self-interest and our mutual interests are today inextricably woven together’.33 It is also the instrument through which justice (or, in deference to current parlance, ‘fairness’) is realized: If globalisation works only for the benefit of the few, then it will fail and will deserve to fail. But if we follow the principles that have served us so well at home—that power, wealth and opportunity must be in the hands of the many, not the few—if we make that our guiding light for the global economy, then it will be a force for good and an international movement that we should take pride in leading.34 It is this idea of co-operation (as opposed to simple co-existence) in an interdependent world that has become the rallying cry of those chanting the coming of an ‘international community’ in modern times: let us not forget the Declaration of President Bedjaoui of the International Court of Justice in the Nuclear Weapons Advisory Opinion (1996): Despite the still modest breakthrough of ‘supranationalism’, the progress made in terms of the institutionalisation, not to say integration and ‘globalisation’, of international society is undeniable. Witness the proliferation of international organizations, the gradual substitution of an international law of co-operation for the traditional law of co-existence,

31 32 33 34

speech, and has been understood to mean that international relations is ‘a co-operative enterprise defined by the pursuit of shared goals and values: a universitas’: R. Jackson, The Global Covenant: Human Conduct in a World of States (2000) 356. Blair, ‘A Moment to Seize: Let Us Reorder this World around Us’, The Guardian (London), 3 October 2001, 4. Ibid. Ibid (or, elsewhere in the same speech, ‘the power of community, solidarity, the collective ability to further the individual’s interests’). Ibid.

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the emergence of the concept of ‘international community’ and its sometimes successful attempts at sub-jectivization. A token of all these developments is the place which international law now accords to concepts such as obligations erga omnes, rules of jus cogens, or the common heritage of mankind. The resolutely positivist, voluntarist approach of international law still current at the beginning of the [twentieth] century has been replaced by an objective conception of international law, a law more readily seeking to reflect a collective juridical conscience and respond to the social necessities of states organised as a community.35 Culled from their jurisprudential setting, these remarks are not too far removed from recent claims made that an international community is flourishing because, according to Prime Minister Blair, ‘[w]e are all internationalists now’.36 Though state-based, it must be noted, the international community is now also being modelled in terms of international institutions such as the African Union, the European Union, the World Trade Organization and the North Atlantic Treaty Organization. Indeed, when one reflects further back into the hallowed annuls of international jurisprudence, there are vivid incantations of ‘community’ as part of the rationalization for endowing international institutions with juridical personality: in 1949, for instance, the International Court of Justice accepted that the ‘subjects of law’ are ‘not necessarily identical in their nature or in the extent of their rights’ and that these depended upon (what the Court called) ‘the needs of the community’.37 International institutions are, after all, inter-state creations, at the helm of which lies the United Nations: Any new rules, however, will only work if we have reformed international institutions with which to apply them. If we want a world ruled by law and by international co-operation then we have to support the [United Nations] as its central pillar.38 35 36 37

38

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports (1996) 268, at 270–271 (per President Bedjaoui). Supra note 31. Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Reports (1949) 174, at 178. See, further, the Individual Opinion of Judge Alvarez, to the effect that the conclusion of the Court ‘appears to me to be in accordance with the general principles of the new international law, the legal conscience of the peoples and the exigencies of contemporary international life—three essential factors which have to be taken into account in the development of international law’. ICJ Reports (1949) 174, at 190. Supra note 31. Prime Minister Blair had earlier argued that we need to focus ‘in a serious and sustained way on the principles of the doctrine of international community and on the institutions that deliver them’. These included the areas of global finance (and Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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So far, so good. However, we note that it is a more ambitious ‘community’ which is endorsed in Fairness in International Law and Institutions (1995) when compared with that in The Power of Legitimacy Among Nations (1990). At first, there would appear to be no difference in the ‘community’ that Franck presents in 1990 and then again in 1995—consider his handling in Fairness of the ‘culturalanthropological aspects of rules’ and the institution of symbolic validation as against states and inter-state institutions39—but there can be no mistaking the tenor or the difference of the message which is delivered in Fairness, where a radical version (or vision?) of the international community comes bursting to light: ‘[w]hat was an anarchic rabble of states has transformed itself into a society in which a variety of participants—not merely states, but also individuals, corporations, churches, regional and global organizations, bureaucrats, and courts—now have a voice and are determined to interact’.40 In orchestrating the international community in this way, Franck appears to have recast his earlier mould of what constitutes this community: the select and elite international community brought to life in The Power of Legitimacy Among Nations has now become a ‘newly socialized community’ where ‘much of the attempt at interaction is discursive: an interlocutory process of exhortation, expiation, explanation and exposition’.41 At the same time, however, this is not an end in itself. Setting us on this path suggests that, in Fairness in International Law and Institutions, we are making our first fragile and tentative manoeuvres towards what has been called the socialization of international society, or ‘the capacity [of societies] to form socially their social purposes’.42

39

40

41 42

the G7), free trade (the World Trade Organization), the United Nations, the North Atlantic Treaty Organization, the environment (and the Kyoto process) and Third World debt. Fairness, at 37 (of how the ‘international community’ responds to the violation of rules ‘by rallying around the rule, as the Security Council and the International Court of Justice demonstrated when the Iranian regime encouraged the occupation of the U.S. Embassy in Tehran’). See, further, at 42, the discussion of the ‘secondary rules of recognition’, which ‘manifest the normativity of interactions between states, providing evidence of a community which defines, empowers and circumscribes statehood, and supporting a public perception of the law’s fairness’. Franck also places (at 45) considerable emphasis on the idea of associative rights and obligations and on the idea of statehood, ‘which attach to all states by virtue of their status as validated members of the international community’. Ibid, at 477 (signifying, at 4–5, the ‘progress’ and ‘maturity’ of international law ‘covering all aspects of relations among states, and also, more recently, aspects of relations between states and their federated units, between states and persons, between persons of several states, between states and multinational corporations, and between international organizations and their state members’). Ibid. P. Allott, International Law and International Revolution: Reconceiving the World (1989), at 8 (although Franck in Fairness, at 141, considers that the ‘rise of international ­systems’—such as the Secretariats of the United Nations and its specialized agencies, Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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With these proclamations, it would appear that the states of the world are going global with a project inaugurated by the countries of Western Europe and committed to: the business of trying to create a new form of society, a community, a Gemeinschaft, complementing and completing their national societies, in the spirit of culture which they had always made communally. It seemed then, as it seems now, that the self-transcending nature of the European Community, rudimentary and pre-democratic as it still is, has significance for the making of the new self-transcending international society of the whole world.43 D Multiple and Concentric Communities Are these differing accounts of the membership of the international community problematic, or are they reconcilable? To be sure, we are confronted here as much by a particular context as we are by a shift in focus. The shift in focus is clear: it is (and it will be argued that) the function (as opposed to the identity) of actors is what is driving part of the argumentation in Fairness when understood in the particular context of the discursive power and potential of international law. By its nature, this context has produced an increased crop of users of international law—increased because of the exponential spread outwards of entitlements and responsibilities to entities other than states—which has,

43

the C ­ ommission of the European Union ‘and many others’—has contributed to a ‘centripetal socialization and bureaucratization’). See, also, Hudson, ‘The Prospect for International Law in the Twentieth Century’, 10 Cornell Law Quarterly (1925) 419, at 459 (to the effect that ‘[t]he nineteenth century made the peoples of the world into an international community. The twentieth century must convert that community into an organized society’). Supra note 15, at xlv. Elsewhere (ibid, at xxx) Allott considers the alternative view of ‘­international society, if there can be said to be any such thing’ , as ‘nothing more than a rudimentary society of states, a barely socialized global state of nature’. Franck himself contends that the European Community ‘shows the way’ because ‘[i]ts Council of Ministers in Brussels operates as an organ of a community of states or governments; and the European Parliament at Strasbourg represents its other aspect, a community of persons’: Fairness, at 13. Andrew Linklater has written that within Western Europe, ‘some evidence of a transition from Westphalian to post-Westphalian principles of political organization is already evident’ and that this ‘new polity’ might ‘come to be regarded as a historical watershed within the evolution of international society as a whole’: The Transformation of Political Community (1998), at 204. See, also, the reference of Prime Minister Blair to Europe as ‘the most integrated grouping of all’: supra note 32.

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in turn, facilitated interaction and defined the nature of relationships between and among these communities. How we define these ‘multiple’ communities is then called into question, because Franck advises against depictions which prioritize a thematic dimension, so as to produce communities ‘of trade, of environmental concerns, of security, of health measures’.44 This much is clear, as is his defence of the multiple and concentric communities which exist within the international community. Their time, it would appear, has come: Communitas can be concentric and overlapping. Society is starting to perceive itself as a community of states and, simultaneously, as a community of persons. It is not a matter of abandoning concepts of state sovereignty but of recognizing in law what is increasingly evident in social and cultural practice: the striation of identity to accommodate multiple identifications.45 These words present, in effect, an international community which is more inclusive and all-encompassing of those it considers its members, and which functions as a structured community of actors operating across state frontiers. However, without more, it is not altogether clear what properties are being seized upon to define each of these communities: the cited paragraph makes reference to a ‘community of persons’, but, elsewhere in the work, the importance of other communities of actors is also discussed. It therefore becomes imperative to sift through the remaining evidence in Fairness to get a better sense of how these communities come into their own and why it is that they can be said to be members of a ‘discursive’ international community. After a detailed appreciation of what Franck has written, and reading Fairness as part of the progression of work to which it belongs, it is thought that 44

45

Fairness, at 12 and D.J. Harris, Cases and Materials on International Law (5th ed., 1998), at 6. Although, compare the position of Georges Abi-Saab, that ‘it is better, for the sake of precision, to speak of the degree of community existing within the group in relation to a given subject, at a given moment’: ‘Whither the International Community?’, 9 ejil (1998) 248, at 249. Franck does, however, advocate the idea of a ‘cross-sectoral approach’, as in the case of the law of the sea, which embraces ‘different interests and [creates] the basis of communitas—in a matrix including shipping, fishing, mining, archipelagic waters, and naval transit’ and which made the negotiations on the Law of the Sea Treaty of 1982 ‘so fruitful’: ibid, at 371. Fairness, at 13. For further reflections on this theme, consider R.J. Jackson, ‘International Community beyond the Cold War’, in G.M. Lyons and M. Mastanduno (eds), Beyond Westphalia? State Sovereignty and International Intervention (1995) 59.

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these communities can best be identified on the basis of the functions and competences of their respective members under international law.46 These could be identified as the legislators, addressees and adjudicators of the system. This approach, not presented in these terms in Fairness, appears to have informed the outcome of recent deliberations within the International Law Commission on the nature of the international community. These deliberations took place in the context of the Commission’s work on state responsibility, during which time states such as France, Mexico, Slovakia and the United Kingdom made the suggestion that the appearance of the phrase ‘the international community as a whole’ in the 2000 Draft Articles on State Responsi­bility47 should have been made to read ‘the international community of states as a whole’.48 These states relied upon the formulation of peremptory norms of general international law contained in the Vienna Convention of the Law of Treaties of 1969, and its related convention of 1986, which make reference to ‘the international community of states as a whole’.49 In response, Professor James Crawford, the Special Rapporteur on State Responsibility, concluded that no qualification to this ‘well-accepted phrase’ was necessary because, as he wrote, ‘states remain central to the process of international law-making and law-applying, and it is axiomatic that every state is as such a member of the ­international community. But the international community includes entities in addition to states; for example, the European Union, the International 46

This construction would seem to adhere to that advanced by Christian Tomuschat in his lectures at the Hague Academy of Public International Law: ‘Every modern system of governance is operated through law-making, administration and adjudication. The question arises whether the international community can be called a system of governance regulated by a constitution in the sense just delineated’. See Tomuschat, ‘Obligations Arising for States without or against their Will’, 241 RdC (1993–IV) 195, at 216 (where, at 211, ‘community’ is described as a term ‘suitable to indicate a closer union than between members of a society’). 47 See UN Doc. A/CN.4/L.600 (11 August 2000) (such as Article 43, which read: ‘A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually; or (b) to a group of States including that State, or the international community as a whole, and the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as to affect the enjoyment of the rights or the performance of the obligations of all the States concerned’) (emphasis added). The phrase also appeared in Articles 26, 34 and 41. 48 Fourth Report on State Responsibility, UN Doc. A/CN.4/517 (31 March 2001) (Professor James Crawford), 11–12 (emphasis added). See, also, State Responsibility: Comments and Observations Received from Governments: Ser. Art 43, UN Doc. A/CN.4/515 (16 March 2001). 49 1969 Vienna Convention on the Law of Treaties, 8 ilm (1969) 679, Article 53. See, also, the 1986 Convention on the Law of Treaties between States and International Organizations or between International Organizations: 25 ilm (1986) 543, Article 53.

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­ ommittee of the Red Cross, the United Nations itself’.50 In the Articles adC opted by the International Law Commission in August 2001, no qualification was therefore added to the phrase ‘the international community as a whole’.51 E Legislators, Addressees and Adjudicators Even accepting the division of communities into legislators, addressees and adjudicators, there must feature within this framework some margin for an overlap of functions—states, as legislators of international law, also happen to be its chief addressees52 and states themselves no longer remain sole legislators within the system53 but the main idea that is sustained is that the actors or persons within the system are defined in terms of their particular functions and capacities. Within the realm of the legislators of international law, for example, there is an undisputed acceptance of the continuing significance of states and of state consent: the chapter on just and unjust wars predicates rules such as those of the right of anticipatory self-defense upon ‘state conduct’54 and the laws of war are said to have benefited from ‘considerable consensual development’—in other words, the consensus of states.55 We learn of various judicial acknowledgements of ‘the common normative practice of states engaged in war’,56 of how international law is ‘discerned behaviourally’57 at this 50

51 52 53

54 55 56 57

Supra note 49 (emphasis added). See, further, J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002) 40–41 (‘The formulation [of “international community as a whole”] does not imply that there is a legal person, the international community. But it does suggest that, especially these days, the international community is a more inclusive one’). The integrity of the phrase—articulated by the International Court of Justice in the Barcelona Traction Case, ICJ ­Reports (1970) 3, at 32 (paragraph 33)—is thus preserved. See, also, Crawford, ‘Responsibility to the International Community as a Whole’, 8 Indiana Journal of Global Legal Studies (2001) 303, at 313–314 (noting that ‘[i]f the phrase “international community of states as a whole” is intended to be exclusive it no longer reflects the reality of the world’). UN Doc. A/CN.4/L.602/Rev.1 (26 July 2001). Fairness, at 245 (discussing the ‘normative constraints on the belligerence of states’). J.H. Jackson, The World Trade Organization: Constitution and Jurisprudence (1998) and Cass, ‘The “Constitutionalization” of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade’, 12 ejil (2001) 39, at 42. See, also, Crawford, supra note 51, at 313 (‘[I]nternational organizations play a role in identifying and applying peremptory norms; they do not merely act as a forum in which states do so’) (emphasis added). Fairness, at 251. Ibid, at 253. Ibid, at 254 (citing The Paquette Habana, 175 U.S. 677 (1900)). Ibid. As Franck has written before, international law is ‘a branch of behavioural science, as well as of normative philosophy’: Franck and Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’, 67 AJIL (1973) 275, at 303.

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point of time in the history of the ‘community’. On economic fairness, Franck comments that ‘it is by no means clear that international law has been designated by the community of nations to protect the government of a sovereign state against its own deliberate decision to act in a way which may well be unfair or imprudent’58—an unequivocal signalling of where the fundamental source of legal obligation continues to lie in the present period. It is true that there are certain occasions when Franck suggests that the foundations of legal obligation arise from sources external to states themselves.59 For example, his reading of the judgment of the Nuremberg tribunal is that it provides us with ‘a sense of law above state sovereignty, a “natural” law of humanity’s common custom, which manifests itself in the good conscience of mankind and in the normal (as opposed to the deviant) conduct of states’.60 However, this statement follows immediately after a recounting of the reasoning given by the tribunal, to the effect that the rules set down in the Hague Convention of 1907 had, by 1939, ‘been recognized by all nations, and were regarded as being declaratory of the laws and customs of war’.61 While the phenomenon of judge-made law is adverted to in places,62 what Franck in truth is addressing in these passages is the broader question of the impact which international institutions can have on the creation and development of rules of international law: he considers, for instance, the role of the Security Council in ‘generating new penumbral “customary” or definitional law’63 and writes of the ‘possibility for genuine systemic transformation’64 occasioned by the organs of the United Nations in this regard. One could go even further—pace the experiences of the 1997 Ottawa Convention on Anti-Personnel Mines65 and the 1998 Rome Statute on the International Criminal Court66—and mine 58 59

Ibid, at 445 (emphasis added). Ibid, at 265 (‘It may be ventured that the legal system of the community of states has evolved in a direction diametrically the opposite of the law within states. Whereas national law has moved from natural to positive, international law has turned from an exclusively positivist jurisprudence to one which incorporates a modern secular version of natural laws and rights comparable in force to those which inspired the authors of the United States Constitution’). 60 Ibid, at 263. 61 The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany (1950), 467. 62 Fairness, at 347 (described as a ‘profound fairness issue’ which ‘has not been resolved to general satisfaction within any state, so it is unlikely to be resolved readily in a global context’). 63 Ibid, at 266. 64 Ibid, at 286. 65 36 ilm (1997) 1507. 66 37 ilm (1998) 999.

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the ­unexplored seams of non-governmental organizations and their relation to and impact upon the ‘sources’ of international law. Yet, the overwhelming sense derived from these accounts affirms how potent state consent still is, as much as it underscores the potentialities of ‘an organic institutional system [where] law plays precisely such a reality-altering role, thereby affecting, altering, and restricting the options for unilateral action by the participating states, no matter how powerful’.67 Once international law has been made, it is communicated to its respective addressees: these are not, it is clear, confined to states, but include actors such as individuals, non-governmental organizations and multinational corporations.68 The momentous content of one chapter,69 on the fairness to persons through ‘the democratic entitlement’,70 is directed in toto towards the realization of the rights of individuals. Elsewhere, there is reference to the rights of guerrillas,71 and to the channelling of obligations to private parties.72 The 1963 Vienna Convention on Civil Liability for Nuclear Damage73 and the 1970 ­International Convention for Civil Liability for Oil Pollution Damage74 are recounted in terms of the provisions they make for the strict liability for nongovernmental actors. Furthermore, the idea of distributive justice (a central integer in fairness discourse) is considered from the perspective of ‘shareholders’ in ‘the process of governance by which distributive and conservational ­decisions about the resource are made’.75 We move, finally, to adjudicators as part of the system of adjudication and the administration of fairness. When Sir Robert Y. Jennings makes reference to developments in the law of the sea and human rights, he uses the term 67

Fairness, at 285. Evidence of just how ‘organic’ the system is can be found in the multilateral action known as Operation Desert Storm (at 288) and the extent of the United Nations ‘intelligence capability of its own’ with respect to monitoring compliance with the economic sanctions that it imposes (at 292). See, further, the ‘far-reaching political, legal and logistical as well as fiscal consequences for the U.N. system’ heralded by the management of mandates for the United Nations operation in Somalia (at 303). 68 Indeed, the entire project on legitimacy is conceived in terms of addressees (in the normative sense), as the formulation adopted is of ‘the property of a rule or rule-making institution which itself exerts a pull towards compliance on those addressed normatively’: Legitimacy, at 16 and 24 (emphasis added). 69 An earlier version of which was published as ‘The Emerging Right to Democratic Governance’, 86 AJIL (1992) 46. 70 Fairness, at 83–129. 71 Ibid, at 281. 72 Ibid, at 336. 73 2 ilm (1963) 727. 74 9 ilm (1970) 45. 75 Fairness, at 395.

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‘­community’ to refer to national law systems, where, he writes, ‘one finds that there is always one court which is the supreme court and therefore the ultimate legal authority’.76 The impression one obtains from this analogy is that, for the elements of an international community to be in place, adjudicators cannot be overlooked and their importance cannot be overstated. It is therefore necessary ‘for serious thought and consideration whether more could be done to ensure that the principal judicial organ of the United Nations is the supreme court of the international community, bearing in mind that a court which exists in isolation, however splendid, is not really in a position to be a supreme court in relation to other courts, as it does not have any formal relations with those other courts’.77 These sentiments reflect a certain unease at the present state of affairs—or, we could say, the affairs of states!—as Jennings himself writes of the ‘extraordinary anomaly of an international community’ in which ‘international organizations play an increasing role and yet, even interstate organizations cannot be parties, or be made parties, to contentious cases before the supreme court of that community’.78 That said, from the perspective of fairness discourse, there is a firm appreciation of the significance of adjudicators within the community: the advent of the World Trade Organization and the Understanding on Rules and Procedures Governing the Settlement of Disputes79 evidences ‘the move to mandatory process legitimacy in application of the rules to disputes’ and ‘marks a (potentially) long step towards the infusion of genuine fairness into the global trading system’.80 3

The Imagined International Community: A Modest Critique

A Fairness and Community Let us now turn to consider the application of ‘community’ within fairness discourse. At first, it should be said that fairness discourse is projected along parallel trajectories: the ‘process by which law is made in the international community’ as well as on ‘outcomes’, which are described as the ‘cardinal indicators of fairness’.81 The former of these two components travels under the

76 Jennings, ‘The International Court of Justice after Fifty Years’, 89 AJIL (1995) 493, at 504. 77 Ibid. 78 Ibid, at 504–505. 79 33 ilm (1994) 112. 80 Fairness, at 434. 81 Ibid, at 351 (‘[o]utcomes’, suggests Franck at ibid, ‘also provide a measure of the fairness of the process by which they are fashioned’).

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rubric of legitimacy, or ‘right process’,82 while the latter component is framed in terms of distributive justice.83 It will be appreciated that these expositions of fairness discourse are conceived and presented in the specific terms of a ‘community’—which supplies fairness with its meaning—rather than on a construction of fairness which adheres to some objective standard:84 ‘[f]airness is not “out there” waiting to be discovered,’ writes Franck; ‘it is a product of social context and history’.85 ‘Community’ for him is an essential part of that social context—he writes at one point that ‘the notion of a global community begins to reshape the terms of the discourse’86—so that our own assessments of fairness discourse are contingent upon our reception of ‘community’ and how it is worked into the argumentation of what it is to be (or not to be) ‘fair’. Of course, we have considered above the possibilities of functional communities at issue in Fairness: to recap, communities of legislators, addressees and adjudicators figure with some prominence in one reading of fairness discourse. Another, nuanced reading, however, reveals an insistence on the idea of the ‘international community’ as a separate political force, which injects an additional dynamic into the geopolitical realities of international relations.87 To be sure, in its acute form, this community is not developed as a ‘separate juridical entity’ in Fairness: it has no legal personality ‘over and above, and distinct from, the particular international organizations in which the idea of it 82 83

84

85 86 87

Ibid, at 477. Ibid. (‘Justice-based claims generally focus on distributive modalities and advance reasons for change in existing entitlements and patterns of distribution. Justice-based claims seek both release from improvident obligations and mitigation of the consequences of wrong-doing or bad choices. They may sacrifice expectations of stability in exchange for a new and better order’.) Franck thus departs from one of the strategies in J. Rawls, A Theory of Justice (1971), which he interprets as follows: ‘It is the Process by which principles of justice are defined which assumes pivotal importance. What the principles produce in the way of “goods” is not irrelevant, but secondary’: Legitimacy, at 215. For assessments of ‘fairness’ on the basis of internal versus external criteria, see C. Albin, Justice and Fairness in International Negotiation (2001), at 8–12. Franck affirms this point when he writes: ‘There are no objectively fair answers. All one can do is to refer the choices to a process of convergence involving states and persons’ (Fairness, at 370). Fairness, at 14. Ibid, at 371. Note the conclusion of Professor James Crawford in his work on state responsibility, that the use of the phrase ‘international community’ is ‘not, however, intended to imply that there is a legal person, the international community. Clearly there is not. But while particular organs or institutions (e.g. the principal organs of the United Nations) may represent community interests, generally or for particular purposes, their failure to act in a given case should not entail that a state in breach of an obligation to the community as a whole cannot be called into account’: supra note 49.

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may from time to time find actual expression’.88 Still, it remains a delicate enterprise which Franck is undertaking because of the impact on international law of a political force known as ‘community’ operating in all spaces of legal activity: legislation, application and adjudication. We therefore proceed on the basis of the specific applications of this ‘community’ which occur in fairness discourse. Here, we discover that Franck has imagined a community of essentially statist design—essentially because Franck is as conscious of present and future realities (where the state will continue to assert itself) as he is of the threat which a state-centric community poses to the project of ‘fairness’ which he is pursuing within the global realm. In the process, the ‘community’ of states comes to be imagined via the mechanisms of disaggregate fairness and international institutions. However, as this critique indicates, these mechanisms do not come without their share of difficulties, because the invocation of ‘community’ seems somewhat misplaced in certain moments and its manifestations are not as clear or as consistent as are made out at other times. B Specific Applications Let us commence with a brief portrait of how the ‘international community’ is summoned in the pages of The Power of Legitimacy Among Nations (1990), where Franck wrote of ‘traces of community in a world of nations’89 and of ‘the metaphorical negotiation of representatives of governments’90 convening behind the veil of ignorance to reach just conclusions on such dilemmas as non-intervention in situations of moral or humanitarian alarm. As observed above,91 notwithstanding certain departures from this formulation of ‘community’ when we reach fairness discourse five years later, there is no shortage of references in Fairness to the ‘community of states’ and ‘the states which constitute the world community’ (fairness to persons);92 to the ‘international community’ of ‘global and regional communities’ (fairness to peoples);93 to the ‘community of states’ (just and unjust wars);94 and to the ‘international 88

89 90 91 92 93 94

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Reports (1971) 56 (per Sir Gerald Fitzmaurice). See, also, Crawford, supra note 51, at 306 (‘There is no legal entity by [the] name [of “international community”]’). Legitimacy, at 182. And, of course, the revealing statement cited above, that ‘[w]e are speaking of a community of states and interstate institutions, not of persons’: at 202. See, also, Franck’s formulation, at 20, of ‘an international “community” of states’. Ibid, at 221. Supra notes 29 and 41 (and accompanying text). Fairness, at 84. Ibid, at 146. Ibid, at 256.

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c­ommunity of states’ or ‘community of nations’ (economic fairness).95 To demonstrate this emphasis, it is appropriate for us to conscript an example which Franck himself uses in the chapter on fairness to peoples. There, Franck maintains that a claim of peoples to self-determination ‘counterposes the following: (1) the interests of the claiming minority; (2) the interests of other groups directly affected, the majority and/or other minorities and (3) the interests of the international community’.96 This itemization is quite telling because one would think—pace the expansive understandings of the ‘international community’ which litter other aspects of fairness discourse97 and which have informed our earlier discussions—that this ‘community’ incorporates minorities as well as ‘other groups directly affected’. However, in this context, Franck appears to have awarded the idea a more precious, precise and distinct meaning, one that is quite separate from minorities and other groups and different in tone to the ‘international community’ when encountered in its rhetorical sense. On this reading, the notion of an international community is pressed into service to reflect a more particularized set of considerations before these are weighed in as a quotient of the fairness equation. When one reads on, one finds that the term is used to refer to ‘innocent bystanders’ or—since the interests are defined as those of ‘peace and good order’98—states. This interpretation is affirmed by the way in which the ‘international community’ is shaped at frequent intervals in Fairness: on judicial fairness, for example, we are informed that the ‘indispensable party shield’ raises ‘few problems of fairness, as long as the Court is willing to allow interested states sufficient latitude to intervene on their own initiative’99 and, on administrative fairness, ‘the diminished appetite of the international community for tackling potentially costly and nettlesome tasks in places which do not directly affect the members’ national interests’.100 His rejection of thematic communities—mentioned earlier101— occurs because the different regimes of environment, trade and human rights intersect within the infrastructure of the state.102 Consider what advances these statements make on the claim made in 1990 that the Convention on the

95 96 97 98 99 100 101 102

Ibid, at 413. Ibid, at 145–146. See, in particular, supra note 41. Fairness, at 146. Ibid, at 343. Ibid, at 180 (emphasis added). Supra note 45. Fairness, at 12.

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Elimination of All Forms of Discrimination against Women103 introduced an ‘element of ambiguity’ in its formulations because ‘[s]uch accommodation between justice and legitimacy is equally—perhaps more—necessary to the survival of a secular community of states’.104 With each of these examples—which reflect a broader pattern of the prioritization of a statist community operating within fairness discourse—the sense given is that the community is the sum of its parts but also that, in political terms, it is more than the sum of its parts: we are witnessing a situation in which states are indeed fashioning themselves into something akin to a community. The idea is to conceive the community beyond its discursive incarnation towards a system of shared ideals, policies, values. If such be the case, the upshot of these deliberations—where fairness discourse is conditioned by a community that has itself been conditioned by states—would suggest that the power and potential of fairness discourse to deliver a universal series of ‘just deserts’ (no mean task by any standard) is rather limited. Operating within such structural modalities, for instance, how would this ‘community’ respond to fundamental criticisms of the discipline of international law, pointing as they do to the ‘arbitrariness of traditional categories of analysis’ and suggesting that ‘in reality sex and gender are an integral part of international law in the sense that men and maleness are built into the structure of international law and that to ignore this is to misunderstand the nature of international law’?105 How, if at all, would this ‘community’ so-framed engage such criticism? How is it engaging such criticism? The concern is that, at base and for all its virtue and promise, fairness discourse becomes the bidding agent of this community of states, an elaborate scheme in which certain values are professed but where the essential realities remain unchanged. Perhaps fairness discourse affords an opportunity for this community to create impressions of integrity and justice when, in fact, it prejudices the very interests it is seeking to protect and promote?106 103 19 ilm (1980) 33. 104 Legitimacy, at 238. 105 H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (2000), at 18–19. Simpson considers, pace Charlesworth, Chinkin and Wright, ‘Feminist Approaches to International Law’, 85 AJIL (1991) 613, that ‘[i]t is remarkable’ that ‘the most innovative critique of this process is ignored altogether’: supra note 27, at 641. 106 Henderson, ‘British Fair Play Beats U.S. Golf’s Rough Justice’, The Times (London), 12 January 2001, at 15 (claiming that statistical evidence has demonstrated that the most widely used golf handicapping system (of the United States Golf Association) has been shown to be a handicap to less accomplished players and that, contrary to its intentions, the system discriminates in favour of better golfers). For the evidence, see Kupper, Hearne, Martin and Griffin, ‘Is the usga Golf Handicap System Equitable?’, 14 Chance (Winter 2001), 30

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To his credit, Franck has anticipated the problem: as far back as 1990, he offered a hint—and it was no more than a hint—that conceiving the analysis in terms of governments and states was ‘perhaps simply the wrong way [of thinking] about principles of justice in the international community’.107 He builds upon this reflection in his 1995 work, where at least two mechanisms have been engaged to withstand claims that fairness discourse is not radical—or, at least, not radical enough in its declared pursuits and ambitions. These mechanisms are predicated on the notion that the statist paradigm in and of itself represents ‘an imperfect measure of fairness’,108 and so it is that Franck concentrates part of his energies on (1) disaggregate fairness and (2) international ­institutions. Both of these mechanisms are summoned to mete out fairness in the international sphere, although, in the end, each mechanism serves to reinforce the idea of how much the state remains (and could forever remain) the basic unit of organization. Let us now deal with each of these mechanisms in turn. 1 Disaggregate Fairness Disaggregate fairness is worked into the thesis on the basis that aggregate fairness—fairness between states—is an insufficient instrument for actualizing justice within the international system. In the passage that follows, we learn of one manifestation of disaggregate fairness, which is ‘measured in terms of effects on individuals’: [t]he difficult problems of measurement inherent in all attempts to measure disaggregate impacts are compounded, in the special case of the environment, by claims of intergenerational fairness which seek to take into account the impact of various environmental policy choices and strategies on the ‘rights’ or ‘goods’ of future generations.109 For Franck, this recasting of ‘community’ in environmental cases does not make fairness discourse impossible: what it does is to make it ‘complicated’ (www.public.iastate.edu/%7Echance99/141.kupper.pdf). For a study to this effect, see Jochnick and Normand, ‘The Legitimation of Violence: A Critical History of the Laws of War’, 35 Harvard International Law Journal (1994) 49. 107 Legitimacy, at 221–222. See, further, supra note 85, at 12. Cf. B. Barry, Justice as Impartiality (1995) 51. 108 Fairness, at 371. 109 Ibid, at 371. ‘Disaggregated fairness’ is a form of fairness which surfaces earlier on (ibid, at 12) and embodies ‘the difference between fairness to states and fairness to persons. These may coincide, or they may not’.

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because ‘its matrix is so variegated, including poor and rich states, poor and rich persons, parsimonious and spendthrifty consumers and, most challenging of all, future as well as present generations’.110 Disaggregate fairness therefore becomes the means by which the original community of states, very much at work in 1990, is now caught, for the purposes of fairness discourse, gyrating further and further outward to the point where it is in danger of becoming (in a phrase that Franck himself uses) a ‘community of “everyone”’.111 Context aside, at the point of contact with disaggregate fairness in the passage quoted above, Franck introduces the additional consideration of an intertemporal dimension to ‘community’ that suggests engagement with the potential rather than the full problematique of disaggregate fairness as a workable concept within our world. As it is constructed here, it also betrays an anthropocentric understanding of the natural environment (which, it must be noted, has not been deemed to have its own intrinsic value; instead, its worth is tied to present and future generations of the human species).112 This means that while the idea of distributive justice has been developed as a value of this community, there is little to assist us in understanding how these values are configured and how, in real terms, each of these values relate to each other. Even if we were to have been apprised of the relevant constitutional and operational dynamics on these matters, the containment of intergenerational fairness—an idea ripe for exploration at this level of debate—to the natural environment is never explained. Just why is it that ‘intergenerational fairness’ is activated ‘in the special case of the environment’113 and not elsewhere? Why are the ‘generations’ thereby invoked generations of the future 110 Ibid, at 353. This idea, of the intergenerational dimension of fairness discourse, appears earlier (at 79): ‘Justice, as an augmentation of law, is also needed to protect those interests not ordinarily recognized by traditional law, such as the well-being of future generations and the “interests” of the biosphere’ and (at 351): ‘are persons—those now alive and those yet to be born—to be legally entitled to a quality of life which is globally applicable and, where necessary, globally implemented and enforced?’. 111 Ibid, at 15. 112 See, generally, Redgwell, ‘Life, The Universe and Everything: A Critique of Anthropocentric Rights’, in A. Boyle and M. Anderson (eds), Human Rights Approaches to Environmental Protection (1996) 71, at 72–73. See, further, the critique that Franck’s analysis ‘loses sight of the idea—or, more to the point, just never gets so far as to entertain it—that species of flora and fauna have a value quite independent of their value as goods to be distributed in fulfillment (whether instrumentally or constitutively) of human interests, and that this independent value ought to figure prominently in justifying and determining the content of legal regimes for their preservation’: Tasioulas, ‘International Law and the Limits of Fairness’, 13 ejil (2002) 993. 113 Fairness, at 371.

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and not also generations of the past? If a ‘community’ is being conceived in ­intergenerational terms, and, indeed, has the power to conceive of itself in such terms, then why cannot the ‘international community’ move to ‘[a]ffirm that the slave trade is a unique tragedy in the history of humanity, particularly against Africans—a crime against humanity which is unparalleled, not only in its abhorrent barbaric feature but also in terms of its enormous magnitude, its institutional nature, its transnational dimensions and especially its negation of the essence of the human nature of the victims’?114 Or is it a question of which international community is seeking to pass judgement on this period of human history? If the ‘power of community’115 can be mobilized for the sake of future and anonymous generations, can the same power not extend to determining the history of previous and known generations? If it can, then what is the measure of the power awarded to the present international community to conceive of and legislate its value system in the name of other generations? If not, then what is the measure of the power which denies the international community the capacity to dispense fairness to previous generations? 2 International Institutions We are, it would seem, on much firmer ground with contributions to a genuine ‘community’ made by international institutions: these made a regular appearance in 1990 but have been awarded a more central and commanding role in fairness discourse, where Franck has made them an integral aspect of his mission (hence the title of the book) and allocated two parts of the book to questions of fairness and institutional power and the institutions of distributive justice.116 The prevalence given to international institutions cannot be overstated in this discourse because one is left with the distinct impression that it is through such entities that an ‘international community’ in any honest sense of the term 114 Proposal of African states for consideration at the 2001 United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance and reported in McGreal, ‘Britain Accused Over Slave Trade’, The Guardian (London), 21 May 2001, at 2. 115 Supra note 32. 116 Fairness, at 351 (referring to ‘the burgeoning role of international institutions in conflict resolution’ and ibid, at 354, of fairness arising ‘as an issue in the evolution of institutions necessary to the application and implementation of a new norm’). It has been noted that historians of international relations ‘have not been paying sufficient attention to international organizations’: A. Iriye, Global Community: The Role of International Organizations in the Making of the Contemporary World (2002), at 4. Compare the contributions of political scientists on international organizations: E. Luard, International Agencies: The Emerging Framework of Interdependence (1977) and H. Jacobson, Networks of Independence: I­ nternational Organizations and the Global Political System (2nd edn, 1984).

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can be imagined, asserted or realized.117 To be sure, there are institutions and there are institutions: in terms of history, composition, responsibilities and operation. Taking the United Nations as a whole, we are introduced with care to its organs and personnel: the office of the Secretary-General is itself an important piece of the overall puzzle because, as Franck intimates, ‘this role has been vouchsafed not to a benign neutral government but to the senior bureaucrat of the international community’.118 At another point, the Secretary-General is announced as ‘the voice of world conscience’.119 However, witness the important considerations which bear down on that office: the Secretary-General is regarded within the institution as the ‘servant’ of the member states of the United Nations (and not of some spirited international community);120 the dominant position of the permanent members of the Security Council (‘which naturally may prefer to see the [United Nations] as a continuing conference of governments and not as an independent actor in the global system’);121 and the normative constraints of the office (‘as the executive head of an organization of sovereign states, he cannot be truly neutral about a non-negotiable principle of the organization: the inviolability of boundaries, especially in the face of de facto changes wrought through the use of force’).122 Shifts taking place in the ‘global power structure’123 since the end of the Cold War have meant that it is another ‘institution’ that has taken centre-stage in recent years, and the evaluations of the performance of the Security Council force us to question just how far this institution has come in terms of developing its own identity and traditions—as well as its capacities for ­representing 117 Franck asserts: ‘The past few decades have seen a radical reconfiguration of international processes’: ibid, at 173 and credits the initiatives of multilateral lending institutions such as the International Bank for Reconstruction and Development and the International Monetary Fund over and above bilateral aid programmes as part of the drive of the ‘international community’ to ‘create a number of entitlement programmes aimed at reducing the gap between the economic power of developed and developing countries’: ibid, at 416 and 418–420. See, further, ibid, at 352. 118 Ibid, at 174–175. See, further, Crawford, ‘The Charter of the United Nations as a Constitution’, in H. Fox (ed.), The Changing Constitution of the United Nations (1997) 3, at 10. 119 Ibid, at 181. 120 Ibid, at 176. Although Secretary-General Perez de Cuellar himself described the United Nations as ‘an organization of governments’ and that it would be ‘against our philosophy to be in touch with the enemies of governments’: UN Press Release SG/SM/4127 (27 April 1988), 6. Consider the later reference, ibid at 209, of the role of the Secretary-General ‘as “humble servant” of the political organs [of the United Nations]’: UN Press Release SG/SM/4752 (18 May 1992), 7. 121 Ibid, at 177. 122 Ibid, at 194. 123 Ibid, at 198.

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the construct known (at least in these treatments) as the ‘international community’. The discussion occurs against the background of the contributions made to ‘community’ by other institutions, such as the office of the United Nations Secretary-General.124 Here, the position taken is that the political and moral authority of the Security Council is such that ‘[i]ncreasingly, although  the Charter does not require it, even the use of force in individual or ­collective self-defense is being subject to authorization—normally prior ­authorization—by the Security Council’.125 However, at another point Franck alleges that the Security Council ‘is not a forum conducive to fairness discourse but seems driven almost entirely by short-term policy’126 and it is this claim above all which, it seems to me, comes scrambling closest to the grain of truth. If we probe into the reasons for this—reasons apart from but allied to the composition of the Council127—we are sure to find that the Council is still some distance from cultivating its own corporate persona in the global body politic, let alone acting as the executive ‘representative’ of an erstwhile ‘international community’. Its performance since the end of the Cold War—where, for example, the ‘fairness consensus of the international community’128 during the Lockerbie saga is located in the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civilian Aviation129 and not in the responses of the Security Council—brings a sobering influence to our reading of the claim that: ‘While the Security Council is a body composed of states, the members function collegially, rather than as prince-electors of the Holy Roman Empire. The Council is not merely a meeting of sovereign states. It has 124 Or, for that matter, the North Atlantic Treaty Organization: the idea of ‘community’ and its representatives is specifically invoked by Nigel White in the context of his assessment of Operation Allied Force: ‘It is easy to invoke the “international community” to legitimate a military intervention, but who or what is the “international community”? Do 19 democracies acting in concert represent the international community? The fact that NATO is composed of liberal democracies does not by itself suggest that it is the fulcrum of the international community, although there has been a significant trend in the international community towards democratic government’: ‘The Legality of Bombing in the Name of Humanity’, 5 Journal of Conflict and Security Law (2000) 27, at 35. A more favourable account is provided of the creation, in 1973, of ‘an environmental protection system, with the [United Nations Environmental Programme] at its core, which approaches the ­problems of the biosphere holistically, and which has institutionalised the impetus for change in a continuing, comprehensive process’: Fairness, at 359. 125 Fairness, at 313. 126 Ibid, at 232. 127 Legitimacy, at 176 (‘[N]ations not endowed with the veto do consider it an affront to the integrity of the system, and that perception may be growing’). 128 Fairness, at 242. 129 974 unts 177.

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the collective power to take decisions. When it acts, it may pre-empt powers ordinarily exercised by members of the United Nations system as incidents of their sovereignty’.130 We need not despair, though: if the Security Council has taken its time to find its stride and to develop principled applications of its own considerable powers, then it has also been engaged in creating offspring institutions which do seem to have an enhanced sense of ‘international community’ about them. How else could one rationalize recent developments with the office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia?131 For whose ‘community’ is the Prosecutor so hard at work?132 And which community’s ‘justice’ is being served in the process? It is once we turn to these agonizing questions that we begin to recognize the fundamental role of institutions in constituting a true ‘international community’, and it is for this reason that it has been said that international lawyers ‘are not the servants of governments but of international society’ as they are ‘servants not of power but of justice’.133 It is in this ambitious cause that another institution—the General Assembly of the United Nations—has made its presence felt: its campaign for a New International Economic Order has, according to Franck, ‘laid the foundation for a widening communitarian consensus that in the world, as in the state, the happenstance of affluence carries a responsibility to alleviate the condition of the less fortunate’.134 It is how Franck structures the argument here—note how the ‘world’ is rallied to good effect in this excerpt and held out in contrast to the ‘state’—that frames the competing propositions we are dealing with. So, it is institutions which have become the engines of change—they are the do or die of an authentic international community—and which are needed to make this ‘community’ matter: the General Assembly is, after all, where the ‘initiative’ of res communis ‘ushered in an entirely new fairness discourse’135 and where ‘a new process for making international law’136 was introduced in July 1994 (in the context of deep-sea bed and its subsoil). Furthermore, in the wake of 130 Fairness, at 284–285. To further effect, see M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (3rd ed., 2001) xiii (describing the politics of the United Nations as ‘no more edifying than the politics of many of its members’). 131 Hoyos, ‘Annan Hails Victory for International Justice System’, Financial Times (London), 30 June–1 July 2001, at 6. 132 Wright and Dempsey, ‘Croatia Left in Disarray by Demands over War Crimes’, Financial Times (London), 9 July 2001, at 18. 133 Allott, ‘State Responsibility and the Unmaking of International Law’, 29 Harvard International Law Journal (1988) 1, at 29. 134 Fairness, at 415. 135 Ibid, at 395. 136 Ibid, at 397.

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the intervention over Kosovo in the spring of 1999—occurring much later than the publication of Fairness but no less pertinent to the case Franck is making— there was a current of opinion which proposed that ‘when combined with its undoubted competence in matters of human rights and its legitimate claim to represent the international community’ it was the General Assembly that was ‘the natural alternative when the Security Council was deemed to have failed to take adequate action’.137 Given this context, it is small wonder that, in the manifesto that passes as the final chapter of Fairness, he situates the future of fairness discourse in the halls of the General Assembly: in the closing pages of his book, he announces that ‘successful fairness is unlikely to be perceived as occurring in forums which are composed unfairly’138 and sets forth his ‘modest proposal’ for a second chamber of the United Nations General Assembly based on universal suffrage.139 C Institutionalization of Community From these transcriptions, we also learn that sovereignty has ‘historically been a factor greatly overrated in international relations’140 and that, ‘far from being absolute, [sovereignty] is a form of community-sanctioned stewardship’.141 These, indeed, are profound and far-reaching statements which, in the course of things, will force a fundamental rethinking of our operating assumptions on states and on their relationship with international law and the wider world. However, in contrast with the above positions on the possible constitution of an international community and on the present state of sovereignty, it is ­appropriate to examine whether there is more life in the old sovereign yet— and that is through its propensities to close ranks with other sovereigns and create the political dynamic of a ‘community’ of sovereigns. It could well be that, faced with the daunting and ceaseless challenges which brace the contemporary age, sovereignty has found a formidable new form of asserting itself, and that is through the beloved institution of community. 137 Supra note 125, at 42 (emphasis added). 138 Fairness, at 479 (and, at 483: ‘The increasingly heard charges of illegitimacy, injustice and unfairness must be addressed’). A premium is placed by Franck on the notion of ‘structural impartiality’ for instance: ibid, at 319–327. 139 Ibid, at 483–484 (with the other chamber retaining its ‘Westphalian “one state, one voice” principle’). See, further, the comparison made between the General Assembly and the World Bank as a ‘problematic’ which ‘has become central to the discourse about restructuring [the] Global Environmental Facility’: ibid, at 355. 140 Ibid, at 3. 141 Ibid, at 432 (specified in the context of resource entitlements under the 1982 Law of the Sea Convention).

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When we read Fairness from the perspective of this ‘imagined’ and meaningful community, it becomes clear that the intellectual commitment exerts itself most in terms of a state-based community. Hence, the International Court of Justice is said to represent ‘such a major advance in the twentieth-century progress towards the institutionalizing of a community of states’,142 and we learn of an international trusteeship system ‘grounded’ in the notion of ‘limited authority conferred on a few states to administer territories on behalf of the international community of states which retain their legal interest in common’.143 The entire content of one chapter, written with exquisite detail, is devoted to the topic of ‘equity’ as the flagship of fairness, but takes place in the context of an unadulterated state-centric setting.144 There is, however, no clearer formulation of this line of thinking than that which appears in The Power of Legitimacy Among Nations (1990),145 where ‘the system of states’ is described as ‘the basic contemporary circumstance of the international community’.146 It is not, I do not think, that we are faced with a historical phenomenon or even an inevitable community that makes Franck regard or speak of it in this way. It is that there are sufficient proofs that can be marshalled to make the case for a political force known as an international community. In effect, Franck is tracing the evolution of the institutionalization of community and providing us with a modern portrait of the stage at which we find ourselves in this process and how far it is we still have to go. Furthermore, one senses that Franck writes with a degree of admiration and approval of the developments within state relations which inspired the introduction in 1971 of the Generalized System of Preferences as an exception to the ‘most favoured nation’ system147 and the conclusion of the 1991 Madrid Protocol on Environmental Protection to the Antarctic Treaty.148 There is also some appreciation that this 142 Ibid, at 316 (emphasis added). 143 Ibid, at 405 (emphasis added). 144 Ibid, at 47–80. See, further, the 1992 Framework Convention on Climate Change, 31 ilm (1992) 849. 145 Supra note 29. 146 Legitimacy, at 233. And, at 226: ‘The priorities and sensibilities of rulers, not the people’s shared (or intersecting) notions of justice, usually frame the contents of the rules and also have the most say in determining their compliance pull’. See, also, Koskenniemi, ‘The Future of Statehood’, 32 Harvard International Law Journal (1991) 397. 147 Fairness, at 426. 148 30 ilm (1991) 1455: ibid, at 404 (which represents ‘a modified notion of res communis in which, in effect, the most active participants recognize an obligation to preserve and protect the common area for the benefit of all’ such that ‘[t]he stewardship of Antarctica’s resources thus appears to be in the hands of a small proportion of states administering them for the benefit of the entire international community’) (emphasis added). See, also,

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‘statist’ ­conception of community is not as exclusive as it at first might seem: on the Gulf of Maine case (1984), Franck writes that ‘both governments gratefully accepted the imposed solution [of the International Court of Justice] and still felt free to protest those parts of the decision which disappointed the highest expectations of some of their constituents’.149 To this, one could perhaps add that the actual litigation of the case—on the delimitation of the continental shelf as well as the superjacent fishery zone between Canada and the United States of America—itself involved states acting on behalf of sections of their respective citizenries. It is the current system that has proved workable and which needs to be defended, Franck argues in a subsequent work, from the disruptive and destabilising forces of the future.150 Far too often we have come to chide the institution of a community of ‘statist’ orientation—and, perhaps, at times with good reason—without stepping back and thinking how much of a feat it is that we can speak of a ‘community’ in this context of all! Recall, for good measure, how impossible it seemed at the end of the Second World War for an international community to be created ‘out of units so fantastically disparate as China and Albania, Norway and Brazil’!151 Some sense of perspective—of historical proportion—is required in order to make our investigations meaningful and productive. How far have we come since the ‘two odes in honour of hopeless hope’152 of the 1970s— the Declaration on the Establishment of A New International Economic Order and the Charter of Economic Rights and Duties of States?153 Or the ‘two sinister epics of international mythology’,154 the Definition of Aggression and the Declaration on Principles of International Law Concerning Friendly Relations Among States? What does it mean that states concluded the 1998 Rome Statute of the International Criminal Court, which affirmed in its preamble that ‘the most serious crimes of concern to the international community as a

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the application of res communis in the context of the 1982 Law of the Sea Convention: ibid, at 430–432. Ibid, at 318. Infra note 165. E.H. Carr, Nationalism and After (1945) 43. Supra note 15, at xlii. The latter of these—General Assembly Resolution 3281 (xxix)—is described by Franck as ‘non-binding but influential’ and, critically given present discussions, see Art. 2(1): ‘Every state has and shall freely exercise full sovereignty, including possession, use and disposal, over all wealth, natural resources and economic activities’. This is criticized on the basis that it conflicts with the ‘rights of the international community to impose some degree of stewardship on nations’ regulation and use of their own resources’: Fairness, at 446. See, also, ibid, at 413–437. Supra note 15, at xliii.

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whole must not go unpunished’?155 Is there no ‘social capital’156 between and among states of which we can speak? Are we destined to agree with Philip Allott, that ‘[t]he essence of the international unsocial process is conceived as the interactive willing and acting of governments in relation to each other (so-called diplomacy) and physical conflicts of differing degrees of violence between the state-­systems or sponsored by the state-systems (so-called war or armed conflict)’?157 D Rhetorical and Imagined Communities It is when we compare the rhetorical and imagined communities at work in Fairness that we begin to get some sense of how ‘deep’ each of these respective communities are. When used in its rhetorical sense, we have seen how the idea of community is developed as the venue for discursive interaction, where ‘[t]he adoption of norms seems to be the price which the individual ­actor— person or state—must pay to participate in an interactive community’.158 This is what is called the ‘newly socialized community’ where ‘[t]he need to explain, to expatiate, is the deference which political power pays to the social potential of law’,159 and international law becomes the vital medium for these exchanges.160 Dialogue becomes the critical essence of community: community is about ‘who has a voice and how are decisions reached’161 where ‘right process’ is ‘defined by the community’.162 However, dialogue has also become the basis for criticism—captured in the castigation of the international community ‘in which everyone speaks roughly the same language of missiles and missives, sanctions and sanctimony’163— 155 37 ilm (1998) 999 (emphasis added). 156 I draw the term from the recent study of R.D. Putnam, Bowling Alone: The Collapse and Revival of American Community (2000). See, also, ‘An Interview with Robert D. Putnam’, 6 Journal of Democracy (1995) 65. 157 Supra note 15, at 244 (§13.105 (4)). 158 Ibid, at 477. 159 Ibid. See, supra note 42 (and accompanying text). 160 Kritsiotis, ‘The Power of International Law as Language’, 34 California Western Law Review (1998) 397, at 409. See, further, Reisman, ‘International Lawmaking: A Process of Communication’, 75 Proceedings asil (1981) 101, and Boutros-Ghali, ‘Foreword’ in International Law as a Language for International Relations (1996) xiv (‘next to the society of states, there is an international scientific community that desires to establish law as a language of international relations’). 161 Fairness, at 478. 162 Ibid, at 26. 163 Kennedy, ‘The Disciplines of International Law and Policy’, 12 Leiden Journal of International Law (1999) 9, at 126.

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because the community is regarded as no more than a ubiquitous and superficial forum where international law’s transformative impact is limited and self-serving. Contrast the position when the community is reduced to the more manageable base of state actors.164 Here, in our imagined community, we are moving beyond the virtues of discourse to a discourse of values. The ‘theoretical framework’ is a much tighter one: the admission is made that the framework at this level is ‘largely applicable to states, which join in common protective measures and institute institutional processes to secure safety, peace, and the promotion of prosperity’,165 where the talk is of the ‘wellspring of association’,166 the ‘conditions of membership’ and ‘ground rules’ of the community.167 What is at stake here is more than the notion of communication;168 it is about ‘associative’ or ‘communal’169 obligations,170 about discovering the extent to which the aforesaid community exists thick in the struggle for its own set of beliefs, values, ideals and ideas of progress. Read in this light, fairness discourse could be seen to be limited in its capacities to produce a ‘deep’ international community because it is stapled to the particular value of distributive justice (and, at least in the pages of Fairness, it would seem to little else).171 However, the very notion that distributive 164 A theme retained and detailed by Franck in his Empowered Self, at 23 (‘Unchecked, such virulence could lead to an unmanageable world of 2000 mutually hostile states’). 165 Fairness, at 27. 166 Ibid, at 26. 167 Ibid, at 29. 168 For further analysis, see Koskenniemi, ‘Letter to the Editors of the Symposium’, 93 AJIL (1999) 351. 169 R. Dworkin, Law’s Empire (1986), at 197. 170 Fairness, at 45. 171 Ibid, at 353 (‘If there is to be law, its power to pull states to agree to a new rule, or a new normative system, and to abide by new normative structures and strictures will significantly depend upon perceptions of the distributional justice with which a new order addresses questions of costs and benefits’). See Tasioulas, supra note 19, at 510 (‘The impression of thematic disunity is heightened [in Fairness] by the suspicion that issues of distributive justice have no immediate bearing on most of the topics discussed [therein]. One might have thought, to take just one example, that humanitarian law has a basis in “humanitarian” values distinct from distributive justice. Distributive justice sometimes impinges on these values, but usually only tangentially, as in questions of the distribution of benefits and burdens in carrying out operations such as humanitarian assistance or intervention’). Questions are thus prompted as to whether the ‘communities’ we have are indeed thematic and/or hierarchical, of whether there exists (within the framework of international trade relations) a ‘bias toward trade values [which] ignores other human values that are ordinarily a central part of the political processes of most communities’:

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justice is being put forward as a value and argued as one common denominator of states in various fields of mutual endeavour does suggest that there is prima facie evidence of a ‘community’ committed to more than just the value of the ‘sovereignty’ of each of its members. The incorporation of ‘significant fairness-based concepts’ into the Framework Convention on Climate Change of 1992172 is argued in this vein and its achievements and those of Kyoto in 1997 demonstrate a gathering sense of community beyond the sovereign self—even if not all members choose to share or participate in this process. Community, after all, does not mean unanimity:173 it is a social construct as well as a process and the sustenance and success of the imagined international community will depend upon the thriving network of discursive relationships occurring within the so-called rhetorical community. Furthermore, it should be said that while the value of distributive justice is pedalled throughout Fairness, it needs to be seen in the broader context of Franck’s other scholarship—such as The Empowered Self: Law and Society in the Age of Individualism (1999)—which details the development of other values by this community and by international law.174 If these representations present the realities, then the idealized community still remains at large. Our ‘international community’ is ‘deep’ enough to have conceived of the idea of jus cogens but not deep enough to know what to do with it. It is caught in the perennial mire of something called erga omnes (or obligations owed to the ‘community’ as a whole),175 and continues to inch

Perez, ‘WTO and UN Law: Institutional Comity in National Security’, 23 Yale Journal of International Law (1998) 368, at 376. 172 Fairness, at 392. 173 In his Separate Opinion in the Gabcikovo-Nagymaros Project Case (1997), Judge Christopher Weeramantry wrote there of the ‘general support of the international ­community’— a ‘community of nations’ is how he qualified that reference—for legal propositions and that the process of creating custom is due to the general will and not the unanimous will of ‘every member of the community’: Case Concerning The Gabcikovo-Nagymaros Project: Hungary v. Slovakia (25 September 1997), 95. 174 In Fairness, it is said: ‘humanity wants reassurance that the emerging legal system is capable of ensuring both stability and progressive change’: Fairness, at 7. 175 Case Concerning Barcelona Traction, Light and Power Co. Ltd., Belgium v. Spain, ICJ Reports (1970) 3, at 32; Case Concerning East Timor, Portugal v. Australia, ICJ Reports (1995) 90, at 102; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Yugoslavia, ICJ Reports (1996) 616. See, further Crawford, supra note 51, at 308–309 (‘[W]e have a situation where the pre-eminent court in the international legal system has not done much to clarify the modern law of obligations’).

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t­ oward so-called crimes and offences against the ‘international order’.176 That said, just how deep is the ‘international community’ that composed the 1948 United Nations Convention on the Prevention and Punishment of Genocide and stood back in 1994 when Rwanda was overtaken by the very murderous convulsions that the Convention was designed to prevent?177 Just how deep is the commitment of this community to universal human rights, to disarmament and world peace, to economic and environmental justice, to the self-­ determination of all peoples? 4 Conclusion The critique contained in this article has proceeded from a sceptical position regarding the need to invoke the idea of an international community within international law literature. The foundation of that scepticism lies in the fact, as any treatise of the discipline worth its salt will show, that international law has identified each of the actors of the international system for what they are— whether they be states, international institutions, individuals or corporations. As such, the need to engage additional appellations or terminologies has been questioned. In so doing, we have come to appreciate how these actors have been bundled together to give us a community of sorts, what has been labelled an international community in the rhetorical sense. The matter has not been left there, however, because the idea of multiple and concentric communities has been developed on the basis that these communities are best understood from the perspective of the functions of their respective members (as legislators, addressees and adjudicators). The discursive nature of these relationships and interactions establishes and defines this rhetorical community. Considerations of the idea of an international community have also made us aware of loose applications which the term invites: it is a ‘coded’ word which

176 R. Higgins, Problems and Process: International Law and How We Use It (1994), at 58. See, further, the formulations of the Supreme Court of Israel in the Eichmann Case, that the crimes of which Adolf Eichmann was accused constituted ‘acts which damage vital international interests; they impair the foundations and security of the international community; [and] they violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems adopted by civilized nations’: 36 ilr (1961) 5, 291. 177 L. Melvern, A People Betrayed: The Role of the West in Rwanda’s Genocide (2000). Also see Pfaff, ‘There is No World Community’, International Herald Tribune (The Hague), 22 April 1994, 5 (reflecting that the experience during the conflict in Bosnia-Herzegovina ‘demonstrated that the international community is a phantom’).

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is ‘open to manipulation’.178 Writing with some candour of this experience, former British Prime Minister Margaret Thatcher admitted in her memoirs that ‘the West or, as we tactfully preferred to describe it, “the international community”, would prevail over Saddam Hussein and reverse Iraq’s aggression against Kuwait’.179 However, we have also witnessed how in modern times this term— or, now, the doctrine of international community—has become a strategic part of the lexicon of international law and politics. These applications do appear to have come with their advantages: even the most doubting of philosophical minds has recognized that ‘words help to form conceptual horizons, and phrases [such as “the international community” and “international security”], with their unavoidable universalist overtones, may be the outward signs of a real change in the axiomatic foundations of intergovernmental relations as understood by the governments themselves’.180 The prospects held out by investigations of this nature—of how ‘history is on the move from state sovereignty to international community’181—set themselves in radical contrast to established traditions of legal thinking, which have cast international relations as ‘formalist [and] legalistic, entranced by a fantasy billiard ball world of states’.182 178 Weil, ‘Towards Relative Normativity in International Law?’, 77 AJIL (1983) 413, at 441 (‘as the international community still remains an imprecise entity, the normative power nominally vested in it is in fact entrusted to a directorate of this community, a de facto oligarchy. [T]he concepts of “legal conscience” and “legal community” may become code words, lending themselves to all kinds of manipulation, under whose cloak certain states may strive to implant an ideological system of law that would be a negation of the inherent pluralism of international society’). 179 M. Thatcher, The Path to Power (1995), at 508. See, however, M. Thatcher, Statecraft: ­Strategies for a Changing World (2002), at 35 (noting that ‘[t]his doctrine of “international community” à la Blair is a prescription for strategic muddle, military overstretch and ­ultimately, in the wake of inevitable failure, for an American retreat from global responsibility’). It is also observed, at 264: ‘The humiliation of America at the hands of those who regard themselves as representing the “international community” has continued. In May 2001 the US was voted off the UN Human Rights Commission. But Pakistan (with a military government), Sudan (with an Islamist regime conducting a genocidal civil war) and Sierra Leone (the scene of terrible abuses) are all represented. So much for the UN’s conception of human rights.’ The United States regained its seat on the Commission a year later: ‘US Regains Position on UN Rights Commission’, Washington Post, 30 April 2002, at A16. 180 Supra note 15, at xiii. Although, cf. Allott, ‘Kosovo and the Responsibility of Power’, 13 Leiden Journal of International Law (2000) 85 (that the Kosovo crisis illustrated that ‘[o] nce again, the reality of international society has overwhelmed the capacity of international law to respond coherently and convincingly to that reality [and that] [o]nce again, international law has revealed itself as the dysfunctional law of a dysfunctional society’). 181 Koskenniemi, supra note 30, at 407. 182 Supra note 164, at 114.

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These investigations have begun in earnest,183 and Professor Franck has made a contribution to the debate that is nothing short of significant and masterful. In Fairness, he has sought to transport the idea of community beyond its rhetorical application—valid though this is—to an imagined and meaningful community that has as its core the sovereign state in a world of proliferating international institutions. ‘Community’ in these pages is therefore being given flesh; it is being given depth. The path he has marked out for us enjoins both of these communities—the discursive and the value-driven—and underscores the significance of these communities for each other. Moreover, the heralding of an international community as a new political force in our midst is certain to impact at different times and with differing intensities in the different spheres of the making, application and adjudication of international law. Professor Franck has presented these arguments with considerable skill, erudition and confidence—he brands those who have rejected the advent of a global community as plain ‘wrong’184—in a work that promises to shape our deliberations in the contemporary period and beyond. We now have a forceful proclamation of the idea of an international community and have been urged to optimize the discursive and social powers of international law at a time of great political change and challenge. 183 See, in particular, the Hague Academy lectures of Tomuschat, supra note 47, and Simma, ‘From Bilateralism to Community Interest in International Law’, 250 RdC (1994) 217. See, further, Simma and Paulus, ‘The “International Community”: Facing the Challenge of Globalization’, 9 ejil (1998) 266. 184 Fairness, at 19 (responding to Rawls, ‘The Law of Peoples’, in S. Shute and S. Hurley (eds), On Human Rights: The Oxford Amnesty Lectures (1993), at 41–82).

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Chapter 14

Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules, 2005 Comment by Elizabeth Wilmshurst cmg, Distinguished Fellow, Chatham House Lawless World, of which the following is the first chapter, was published at a time when international law was being debated on the front pages of national newspapers. The 2003 Iraq conflict with all its international legal controversies was fresh in the mind, the detainees at the Guantanamo military base were in what was cogently described as a legal black hole and, extraordinarily, there were discussions about whether torture could be legal or ethical (extraordinary, because it was reasonable to believe that that particular debate had long since been settled). Lawless World deals with all of that and more. The book, with its accessible and informal style, shows that international law is not just for the experts and the elite. It can affect everyone; it can be readily understood. International law is here being popularised, in the best of senses; the book was read and enjoyed by lawyer and non-lawyer alike. It was and is a breath of fresh air amid the webs of complex reasoning put forward to justify the actions with which it deals. And yet Lawless World is not just a page-turner, valuable as that is. Philippe Sands, a professor and seasoned practitioner of international law in the UK, makes a valuable contribution to the legal debate. The book, with its subtitle “The Making and Breaking of Global Rules”, has as its principal focus issues that were topical at the beginning of this century for the first Bush administration in the US and the Blair government in the UK. But its argument remains relevant. It “makes the case for international rules”, as the preface says. While Sands is not “starry-eyed” about international law, he stresses that it is a system of standards of acceptable behaviour, embodying values and priorities. The first chapter “International Law: a short and recent history” takes us back to some of the foundations of modern international law, with the Atlantic Charter of 1941 leading directly to the drafting of the Charter of the United Nations and the subsequent developments in human rights, decolonisation law, international criminal law and trade law. It provides a reminder of the heady days when the US and the UK actively promoted international a­ greements, which would inevitably constrain national sovereignty, in the clear understanding that an international rules-based system was in their national interests. © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_015

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P. Sands, Lawless World – America and the Making and Breaking of Global Rules (Penguin 2006). Excerpt: Chapter 1, ‘International Law: a Short and Recent History’, pp. 1–22. Reproduced with the kind permission of the author.

International Law: A Short and Recent History Philippe Sands The best defence of our security lies in the spread of our values. But we cannot advance these values except within a framework that recognizes their universality. If it is a global threat, it needs a global response, based on global rules. tony blair, 5 March 20041

∵ Although international law has a long history, it is only in recent years that it has emerged as a more regular feature of modern political life. Diplomatic immunities, genocide and other international crimes, trade wars, global warming, the detainees held at Guantanamo Bay, the war in Iraq, the abuses at Abu Ghraib prison have brought the politics of international law into everyday life. This is particularly so in Britain, a middle-ranking power which relies on respect for inter­national laws. In the weeks before the Iraq War in March 2003, British Prime Minister Tony Blair pledged his adherence to international rules: British troops would only be committed to a war in Iraq if international law allowed, and the conditions of any occupation would respect global rules. Blair had little option. He faced festering public disquiet about the treatment of British detainees at Guantanamo, the lack of respect for the Geneva Conventions, and his government’s silence. Tony Blair’s public commitment was a necessary response to a growing concern that Britain was on the verge of a second Suez, using force with little international support and dubious legality. In 1956 Prime Minister Anthony Eden did not bother to seek an official opinion from his Attorney General and overrode the objections of Sir Gerald Fitzmaurice, the Senior Legal Adviser at the Foreign Office. Eden chose instead to rely on the more supportive views of ­Professor 1 ‘PM warns of continuing global terror threat’, 5 March 2004. .

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­ rthur Goodhart, former Professor of Jurisprudence at Oxford and Master of A University College, which had been set out in a letter to The Times.2 Blair at least did consult with his Attorney General, Lord Goldsmith QC, on several occasions, although it is not clear that he got the same advice on each occasion. In March 2003 the government took the unprecedented step of publishing the Attorney General’s late-formed view that the use of military force did not require an explicit Security Council mandate. This unusual step was needed for political reasons: to address public and media concerns, to encourage wavering labour MPs to vote for war, and to persuade Britain’s Chief of Defence to commit troops. It may have succeeded on the latter two counts, but it failed in the court of public opinion: letters appeared in the press, and notable public figures weighed in on the illegality of the war. The Attorney General’s argument continues to be the subject of almost unprecedented media and parliamentary attention. Lord Alexander, a conservative and highly respected former head of the Bar Council of England and Wales, thought the Attorney’s advice ‘risible’ and said so publicly. Issues concerning the legality of the Iraq War will dog the reputation of the Prime Minister and his Attorney General for years to come. Peter Hennessy, the British political commentator, described the issue as ‘the great fault line beneath the Blair premiership’, which ‘syringed the trust out of the Prime Minister’s office’.3 By December 2004 more than 600 detainees were still held at Guantanamo Bay, including four Britons. Only a small number of these individuals had been charged before military commissions. Until the US Supreme Court intervened in June 2004 to declare their right of access to US federal courts, for more than two and a half years they had no access to legal representation, nor to any court of law or tribunal. Lord Steyn, a serving judge in Britain’s highest court, the House of Lords, described detention under these conditions as a ‘stain on American justice’, wholly contrary to international law. Steyn also called on the British government to do more to protect the international rights of its citizens. His intervention was unparalleled, a reflection of concern at the very highest levels of the British legal establishment. A few months later, in December 2004, the Judicial Committee of the House of Lords ruled that a law enacted after 9/11 permitting the indefinite detention without charge of non-­nationals alleged to be involved in international terrorism was in clear violation of Britain’s international treaty obligations. 2 D.R. Thorpe, Eden: The Life and Times of Anthony Eden, First Earl of Avon, 1897–1977 (Pimlico, London, 2004), p. 478. See also Clare Dyer, ‘Remember Suez?’, The Guardian, 9 March 2004; Jesse Norman, ‘Tell us the reason why’, The Spectator, 1 November 2003. 3 ‘All the Many Tony’s’, Financial Times, 3–4 April 2004, p. W5.

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In the United States there had been less public interest in the finer detail of the legality of the Iraq War, or the conditions of detention at Guantanamo. That changed dramatically in March 2004, when the western world’s attention was focused on international rules by the publication of photographs depicting graphically the abuse of Iraqi and other Muslim detainees at Abu Ghraib prison in Baghdad. The Geneva Conventions became the subject of angry exchanges at hearings in the US Senate. There followed the publication of a leaked Pentagon memorandum which appeared to authorize the use of ­torture, contrary to America’s obligations under the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Actions taken in the aftermath of 9/11 were now raising serious questions about American commitment to basic rules of international law, including human rights and the treatment of detainees. Do those events signal the abandonment by Britain and the United States of their commitment to the post-Second World War legal and institutional arrangements which they, more than any other countries, put in place? What does this say about the future of inter­national law in the twentyfirst century?

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The British public has become accustomed to issues of international law ­affecting political discourse. This flows from membership of the European Community and obligations under the European Convention on Human Rights. Both international conventions have had a significant effect on British life. In the view of a sizeable minority of the population that effect gives rise to calls for withdrawal and the reclaiming of British sovereignty. But these international rules are seen as being in some way special, and not a part of the general rules of international law which have emerged since the Second World War. The change in British public interest in international law dates back to ­October 1998, when I was at the University of London’s School of Oriental and African Studies. My areas of focus included the environment – still a relatively new subject – and international courts and tribunals. International courts had been a very specialized topic but then began attracting greater attention with the impact of human rights courts (including the European Court of Human Rights) and the World Trade Organization’s new system for resolving trade disputes. In July 1998 agreement had been reached on the creation of a permanent International Criminal Court. This attracted great attention in the media. I was maintaining a discrete practice as a barrister, specializing in international law. The field was of little practical interest to most of my colleagues in my

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barristers’ chambers, many of whom maintained a polite but distant bemusement regarding this area of the law. Occasionally an international legal issue would break into public consciousness. There would be debate, for example, on sovereignty and whether or not some new EC treaty amendments should be ratified, or whether the new Labour government’s proposal to incorporate the European Convention on Human Rights into English law would change Britain’s constitutional order and further diminish its sovereignty. But the vast majority of the many developments in international law which had occurred since the 1940s were ignored. They were not subject to any real public scrutiny, either in Parliament or in the media. Important international treaties were not even being discussed in Cabinet: I remember watching Question Time on television one autumn evening in 1997, and being struck by the fact that Jack Straw, who was the Home Secretary at the time, had no knowledge of the controversial intergovernmental negotiations for a proposed new treaty which would regulate global investments (the so-called Multilateral Agreement on Investment, which collapsed later in 1998 in the face of objections from a coalition of governments and non­ governmental organizations (NGOs)). A Cabinet minister later confirmed that this treaty, like most, was never discussed or even mentioned. International law was a tightly guarded secret, monopolized by a small elite of foreign offices and civil servants, a handful of transnational corporations and NGOs such as Amnesty International and Greenpeace, a small number of academics, and an even smaller number of lawyers in private practice. Judging by media attention and dinner party chat, that situation has changed significantly over the past few years. To pinpoint a precise date for the change I would say the sixteenth of October 1998. This was the day on which the former President of Chile, Senator Augusto Pinochet, was arrested while recuperating in a private London clinic from back surgery. His arrest followed a request by Judge Baltasar Garzon, an independent Spanish criminal prosecutor, who was seeking Pinochet’s extradition to Spain to face criminal charges for violating international laws between II September 1973, when he seized power from Salvador Allende in a coup d’etat, and March 1990, when he relinquished Chile’s presidency. The arrest was to raise a fundamental question of international law: was Pinochet entitled to claim immunity from the jurisdiction of the English courts on the grounds that the alleged crimes were committed whilst he was Chile’s head of state? Politically, the question was of vital importance because it signalled a move away from the old international legal order, which was essentially dedicated to the protection of good relations between states. During the legal proceedings which were held before various English courts over the next two years, obscure rules of international law moved into the mainstream

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of political and public debate. The rules, the judges and the lawyers were scrutinized and discussed in the press, and the debate became a global one. From London to Santiago, from Kingston to Reykjavik, the media covered the case in the minutest detail. The courtrooms were packed with local and international journalists, and they had many questions. What rules of international law permitted Britain to exercise jurisdiction over a Chilean at the request of Spain? Where did the rules of international law come from? How were they enforced? How were they to be interpreted? What if different countries applied them differently? How did international law balance the interest of a sovereign state not to have its former head of state subjected to the indignity of criminal proceedings abroad with the interests of victims and the need to end impunity for the most serious international crimes? The House of Lords’ first judgment, on 25 November 1998, was broadcast live on the bbc and cnn and transmitted on radio broadcasts around the world, the first time this had ever happened. The following day the judgment led the front pages of virtually every newspaper in the world. It was a landmark day: under international law the former head of state of one country could not claim immunity from the jurisdiction of the courts of another country to avoid facing charges that he had committed the international crime of torture. In the end the decision of the House of Lords was based on a single treaty, the little known (but now mightily important) 1984 Convention against Torture. The case gave rise to copycat litigation, new constraints on the actions of governments, and an unparalleled interest in international law. The 1984 Convent­ ion became significant five years later in the controversies over the detention camps at Guantanamo Bay and Abu Ghraib prison in Iraq. The Pinochet case was significant for another reason. It coincided with increased attention to other rules of international law which had been put in place over the past fifty years, and which increasingly (but silently) impacted on people’s daily lives. Rules of international law which had been adopted since the end of the Second World War have provided the foundations for globalization. By the late 1990s there had been a sustained period of economic liberalization, and this was now marked by large demonstrations in Seattle and elsewhere against globalization and the rules of the new World Trade Organization. These, it was said, would prevent countries from applying their own health, environmental and labour standards. They were a new form of colonialism. During the 1990s, following the collapse of the Soviet bloc and the end of the Cold War, the international community created a new International Criminal Court (after fifty years of discussion) to end impunity for the most serious international crimes, including genocide and war crimes. It was during this period, in 1999, that President Milošević of the Federal ­Republic of Yugoslavia became the first serving head of state to be indicted by Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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an ­international c­ riminal ­tribunal, in The Hague. But it was also a time when sharp disagreements emerged between states as to how far the rules of international law should go. Negotiations for a global agreement on foreign investments c­ ollapsed. The United States withdrew from the negotiations to prevent global warming, as well as from other international treaties and negotiations. In the aftermath of the 9/11 attacks on the World Trade Center and the Pentagon attention was focused on the rules of international law to combat terrorism, as well as on the conditions of detention of prisoners at Guantánamo Bay and other camps in Afghanistan and Iraq. Throughout this period there was also sustained public debate on the continued validity and effectiveness of the rules prohibiting the use of armed force, which had been forged in the after­ math of the Second World War. The events in the Balkans in 1992, in Rwanda in 1994, the Great Lakes region in Africa since 1997, Kosovo in 1999, Afghanistan in 2001 and, most bitterly, in the spring of 2003 in Iraq, raised serious questions about the adequacy of international rules to protect fundamental human rights and to use force in self defence or under the aegis of the United Nations Security Council. International rules are now frequently seen as providing an independent benchmark against which to assess the justification of behaviour – and in particular the behaviour of states – which is politically or morally contentious. When I first studied the subject in the early 1980s, taught by a diminutive and remarkable Yorkshire man called Robbie Jennings, who went on to become a judge at the International Court of Justice, international law was presented as a topic which only one or two of the 300 students attending the international law lectures at Cambridge would ever come across in real life. We were taught that international law governs relations between states at the international level with little, if any, impact on citizens or on local issues. Before the Second World War international rules had been minimal in content, and addressed only a small number of areas of human activity.4 The two main sources of international legal obligation were – and continue to be – treaties and customary law. But there were very few treaties, and the practice of states which gave rise to customary law was difficult to discern.5 Beyond 4 For a useful historical summary, see Malcom Shaw, International Law, 5th edn (Cambridge University Press, 2003), pp. 13–41. 5 The traditional sources of international legal obligation are set out in Article 38 of the Statute of the International Court of Justice. This Article directs the Court to apply: a international conventions, general or particular, establishing rules recognized by the contesting states b international custom as evidence of a general practice accepted as law c the general principles of law recognized by civilized nations [my italics] d subject to Art 59, judicial decisions and teachings… Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the League of Nations and the International Labor Organization – both established in 1919 by the Treaty of Versailles, which brought the First World War to an end – there were almost no international organizations. Apart from the Central American Court of Justice, created in 1908, the first truly international court was the Permanent Court of International Justice in The Hague, related to the League of Nations. In 1927, in a dispute between France and Turkey, the Court declared, without pause or embarrassment, that states were basically free to do anything that was not expressly prohibited by international law.6 This was a world of sovereign freedom, with few international rules to constrain the behaviour of governments. However, there were rules of international law protecting the rights of minorities in certain parts of Europe, and emerging rules on the employment of women (particularly if they were pregnant or engaged as night workers) and of children. There were rules governing the treatment of foreigners and their property, including the investments of corporations abroad. But there were no rules of international law protecting fundamental human rights. International law did not prohibit the wholesale slaughter or elimination of groups of people on grounds of religion or ethnicity or political belief – as had happened in Nazi Germany, the Soviet Union and many other parts of the world. Nor were there restraints on territorial domination or the creation of colonies. The idea that a group of people had a right to self-determination was a distant dream. Piracy and slavery were out­lawed, but discrimination, racism, apartheid and colonial domination and exploitation were not. Nor was there any general prohibition on the use of force. In 1928 the United States, Britain, France and Germany, amongst others, had agreed in the ­Kellogg-Briand Pact to condemn war and renounce it as an instrument of national policy ‘in their relations with one another’. There were rules on how warfare could be conducted, including how prisoners of war should be treated and the types of weapons which could not be used, but these were extremely limited in scope. No global free trade rules existed, although a small number of bilateral trade rules had been adopted and preferences existed, for example in the British Empire. There were no rules of general international law committing states to conserve nature and protect the environment. In short, the 6 ‘International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.’ SS Lotus (Turkey v. France), Permanent Court of International Justice, Series A-No. 10, 1927.

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world of international law was premised on the principle that sovereign and independent states could do more or less what they wanted, except where they had expressly agreed otherwise. Since very little was prohibited, their freedom to act was virtually unlimited. A little more than half a century ago, this permissive legal landscape became the subject of an ambitious and sustained effort by various countries to build a rules-based system. From 1941 onwards the United States and Britain, with their allies (known as the United Nations), adopted a blueprint for a series of new institutions and laws to serve as the foundation for a rules-based approach to the international order. The Atlantic Charter was the starting point. On 14 August 1941, meeting aboard the US flagship Augusta in Ship Harbor, Newfoundland, American President Franklin Delano Roosevelt and British Prime Minister Winston Churchill adopted a charter declaring ‘certain common principles in the national policies of their respective countries on which they base their hopes for a better future for the world’. The Atlantic Charter, as it was known, committed America and Britain to a new order based on a few key principles: an end to territorial aggrandizement or territorial changes; respect for self-government; social security; peace and freedom from fear or want; high seas freedoms; and restraints on the use of force. These principles served as the guidelines for a new world order and were later enshrined in the United Nations Charter. The Roosevelt/Churchill scheme can be reduced even further to three simple pillars, which have remained in place for the last sixty years: a general obligation on states to refrain from the use of force in their international relations, except under strict conditions of self-defence or where authorized by the international community acting through the Security Council or a regional body; a new commitment to maintain the ‘inherent dignity’ and the ‘equal and inalienable rights’ of all members of the human family, through the adoption of international instruments which would protect human rights by the rule of law; and an undertaking to promote economic liberalization through the adoption of free trade rules and related international obligations in the fields of foreign investment and intellectual property. The Atlantic Charter inspired actions by states and also by individuals. Writing in his autobiography, Nelson Mandela saw the Charter as reaffirming his faith in the dignity of each human being and propagating a host of democratic principles: Some in the West saw the charter as empty promises, but not those of us in Africa. Inspired by the Atlantic Charter and the fight of the Allies against tyranny and aggression, the ANC created its own charter, called

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African Claims, which called for full citizenship for all Africans, the right to buy land and the repeal of all discriminating legislation.7 The Atlantic Charter captured the public imagination. A few months after it was adopted, on January 1942, America and Britain expanded their partnership to include the USSR, China and twenty­two other countries, joining together in the United Nations declaration. Within weeks of the end of the Second World War a series of international conferences had been convened to create a world order based on common values and minimum international rules, around the three pillars which Roosevelt and Churchill had agreed on. In April 1945 delegates from fifty countries met in San Francisco to negotiate a Charter for the United Nations to replace the defunct League of Nations. In his opening speech President Truman set out America’s strong commitment to international law, sweeping aside the opposition from hard-core Republicans in the US Senate. The UN Charter was signed on 26 June 1945 and came into force four months later. Its stated objectives included the development of international law, in particular to protect human rights, prevent war and promote economic and social progress. This was the starting point for the system of modern global rules. Although the US had never joined the League of Nations, it did become a party to the UN Charter. Within a decade a totally new system of international law and organizations had been created. By the 1950s there existed an embryonic global constitutional order, with rules that remain in place – albeit rather shakily in some c­ ases – to this day. The system which emerged largely reflected an effort to e­ xport Anglo-American values, and was motivated in part to distinguish the values of the West from those of the Soviet bloc, which had become entrenched behind the Iron Curtain which divided Europe. The development of the global rules was to become a major battleground for the Cold War. In the field of human rights and humanitarian law an important first step was the agreement to prosecute Nazi war criminals. The Charter for the Nuremberg Military Tribunal was agreed on 8 August 1945 by Britain, America, France and the Soviet Union. This radical and far-reaching document aimed to codify the rules of international law on war crimes and crimes against humanity. The head of the American delegation was Robert Jackson, a Justice of the United States Supreme Court, who went on to be the Chief Prosecutor at Nuremberg. In his memoirs he described how British officials wanted to dispose of the six or seven leading Nazis without trial, fearing that an open trial would provide a sounding board for Nazi propaganda. But Roosevelt disagreed: according to 7 Nelson Mandela, Long Walk to Freedom (Abacus, 1994), p. 110.

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Jackson he ‘was determined that a speedy but fair trial should be accorded to war criminals … the President insisted that there be a documentation of their crimes’.8 A few weeks later, a Commission on Human Rights was established at the United Nations. The American delegation was led by Eleanor Roosevelt, the recently widowed First Lady. Over the next few years she led efforts to negotiate what became the Universal Declaration of Human Rights, adopted in ­December 1948 by the UN General Assembly. It is arguably the single most important international instrument ever negotiated. She considered this text to be her finest accomplishment for its promotion of the values reflected in the US Constitution: We wanted as many nations as possible to accept the fact that men, for one reason or another, were born free and equal in dignity and rights, that they were endowed with reason and conscience, and should act towards one another in a spirit of brotherhood. The way to do that was to find words that everyone would accept.9 The Declaration set out the first ever code of basic human rights which would give effect to the United Nations’ determination that ‘human rights should be protected by the rule of law’. It was a non binding instrument, but it led directly to binding obligations and new instruments in Europe, the Americas and ­Africa. In 1966 many of its provisions were incorporated into two legally binding instruments of potentially global application, the International Covenant on Civil and Political Rights and the International Covenant on Economic and Social Rights. The day before the Universal Declaration was adopted, on 9 December 1948, the world’s first global human rights treaty was agreed: forty-one countries signed the Convention on the Prevention and Punishment of Genocide in Paris. The treaty characterized genocide as ‘a crime under international law’, and committed the parties to prevent and punish genocide. The United States did not become a party for another forty years. When it did so, however, in signing the implementing legislation President Ronald Reagan declared that he was fulfilling ‘the promise made earlier by Harry Truman to all the peoples of the world’, and rejected the argument that the Convention somehow infringed

8 J.Q. Barret (ed.), That Man: An Insider’s Portrait of Franklin D. Roosevelt (Oxford University Press, 2003), p. 110. 9 .

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American sovereignty.10 A year after the Genocide Convention, on 12 August 1949, forty-three countries adopted the four Geneva Conventions for the Protection of War Victims, including treaties on the treatment of prisoners of war (Geneva III) and the protection of civilians (Geneva IV). These instruments criminalized various acts, and made individuals – as well as governments – ­responsible. These are the international instruments which President George W. Bush sought to circumvent half a century later. New international agreements were pursued equally vigorously on economic matters. On 27 December 1945, after just three weeks of negotiations, the Bretton Woods Agreements were concluded, named after the vacation resort in New Hampshire where they were negotiated by forty-four countries. The agreements created the World Bank and the International Monetary Fund (imf), the basic framework for international financial relations which was considered indispensable to post-war economic reconstruction and development, as well as longer term banking and currency stability. The vision of economist John Maynard Keynes was central to these two agreements, inspired by the same theories which had influenced Roosevelt’s New Deal. Two years later, on 30 October 1947, twenty-three countries adopted the Genera l Agreement on Tariffs and Trade (GATT), the global framework rules committing parties to remove barriers to international trade in goods. GATT did not, however, include any formal institutional structures. That was left to a third organization, which was intended to exist alongside the imf and the World Bank. The Statute of the International Trade Organization (ITO) was adopted in Havana in March 1948, and was supposed to provide the institutional framework for the GATT free trade rules, as well as new rules to encourage overseas investments and end monopoly and other restrictive business practices. This seems to have been a treaty too far, at least for the US Congress, reflecting its distrust of global government. Under pressure, President Truman announced that he would not seek congressional approval for ratification of the ITO. It was effectively killed off until the mid-1990s, when the World Trade Organization (WTO) was created, ironically with strong American support. The failure of the ITO was an early sign that American endorsement for these new rules and institutions was not a foregone conclusion. Nevertheless, by the 1950s the foundations of a new international legal order had been created, and the vision of Churchill and Roosevelt largely accomplished. Over the next fifty years a growing body of inter­national rules was put in place, largely in the form of treaties, most of which have received widespread support. During this period of decolonization the number of states 10

Federal News Service, 4 November 1988.

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multiplied and the membership of the United Nations expanded rapidly. It reached 100 in 1961 and now stands at 191. Important arms control agreements were negotiated in the 1960s, with the treaty banning atmospheric nuclear tests (1960) and the treaty on nuclear non-proliferation (1968) attracting consider­ able public attention. In the early 1970s a systematic effort began – with the strong support of President Richard Nixon – to put in place rules for the protection of the global environment, including those relating to biodiversity, the ozone layer and the climate system. And beyond the global instruments were an even more extensive raft of regional treaties, aiming to protect fundamental human rights and creating economic unions and other regional trading and financial arrangements in Europe, Latin America and Africa, as well as in the Islamic world and with the western group of members of the Organization for ­Economic Cooperation and Development (OECD). By the early 1990s, after the Cold War had ended and the Berlin Wall had been torn down, the liberal Anglo-American vision of a rules-based international system appeared to be becoming a reality, albeit an imperfect one. Civil society and the private sector became actively interested in international rules, which also became the subject of increased media attention. That is not to say that during this period global order had been established and the rules were always complied with. Vietnam, the overthrow of Salvador Allende, Pol Pot, Idi Amin, the Balkans and Rwanda are merely the tip of a half­century of violence and abuse. But the new international rules pro­vided a framework for judging individual behaviour and government acts and, in theory at least, an end to impunity. It could no longer be said that international law allowed such atrocities. The United States and Britain had provided leadership and lent their support because they saw rules as a means of bringing stability. But this was not altruism at play: a rules-based system would promote Anglo­American values, create markets and protect established economic and social interests. It would also provide an instrument around which to build support against the Soviet bloc, and gain influence over a decolonized developing world. The rules created opportunities. Also in the 1980s and the 1990s a different voice emerged, reflecting an American and British approach which was considerably more sceptical about international rules and multilateralism. In the United States Ronald Reagan was elected into office, aiming to protect American sovereignty and an American way of life seen to be threatened by international law. With the rise of neo-conservatism in the United States, many of the rules were seen as making unjustified encroachments on American power. Reagan, Margaret Thatcher and Helmut Kohl of Germany walked away from the Law of the Sea Convention after fifteen years of negotiations, refusing to sign a treaty which,

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they claimed, undermined entrepreneurship and deregulation. In the context of the Iran Contra scandal and the conflict in Nicaragua and other parts of Central America, the United States withdrew its acceptance of the jurisdiction of the International Court of Justice (Britain did not follow suit, and to this day remains the only UN Permanent Member to accept that Court’s general jurisdiction, albeit with important and recently added caveats). Well before 9/11 the United States had turned against many of the international rules which lay outside the economic domain, including some which had attracted very broad support. Whereas President Jimmy Carter had invoked the rules of consular protection in the Iran hostages crisis, in 1979, twenty years later President Bill Clinton had no compunction in instructing his Solicitor General to tell the US Supreme Court that his Administration would not object if the Supreme Court ignored the International Court of Justice’s order that the execution of Angel Breard be temporarily suspended. Treaties were negotiated, but not signed. Many that were signed were not ratified. So the United States became one of just two countries, with Somalia, not to join the Convention on the Rights of the Child, because it outlawed the death penalty for juvenile criminals. The 1997 Kyoto Protocol (aimed at combating global warming) was demonized as a unique threat to the economy and American lifestyle (gas guzzlers in particular). And the 1998 Statute of the International Criminal Court was treated as though it was a great threat to American power, constraining military activity and subjecting American soldiers and leaders to the risk of politically motivated prosecution by an independent international prosecutor. The United States was entirely free to choose not to become a party to these or other treaties, but its reasons for not doing so marked a dramatic change of perspective. There emerged a presumption against international rules: they no longer created opportunities, but were seen as imposing significant constraints. This was a return to American exceptionalism, an attitude which had ­periodically – and powerfully – dominated its thinking earlier in the century. We are different, said the neo-conservatives, the rules cannot apply to us. We need to create an international order which is friendly to America’s security, prosperity and principles, proclaimed the sponsors of the Project for the New American Century in 1997, including Dick Cheney, Donald Rumsfeld and Paul Wolfowitz, the architects of the post-9/11 ‘war on terrorism’. Ironically, the retreat from the established international order coincided with the United States’ ever greater dependence on the global economy, one area where ­respect for the rules was seen as vital. And as this new approach emerged, Britain too found itself pulled in different directions. On the one hand, as a declining power with no empire to

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protect, it was more committed than ever to the international rule of law. On the other hand, it did not wish to alienate its great friend and ally.

…

In the meantime public perceptions of international law have been transformed. At some point in the 1990s these arcane rules moved out of the corridors of foreign ministries and into the boardrooms of businesses, the lobbying newsletters of non-governmental organizations (NGOs), and the front pages of our newspapers. International law went public. The monopoly which states held over the rules began to crumble. How did this happen? The conditions under which the changes have occurred are complex, and already the subject of a body of literature and ideas to which I will not add. Against the background of changes which took place in the 1980s and 1990s – the end of the Cold War, the economic and social integration of Europe, the rise of religious fundamentalism – four factors have emerged to transform perceptions about the function and nature of international laws. The first of these is ‘globalization’, a concept which caught on in the 1990s but which is, in reality, premised on a rules-based system of international relations, and international economic relations in particular. There would be no globalization without international law. Professor Anthony Giddens has depicted globalization as a ‘stretching process’, in which connections are made between different social contexts and regions, which then become networked across the earth as a whole. This creates the perception that there exists a connection between the interests of different countries and communities. What one country does to the environment, or to the human rights of its citizens, may be of legitimate interest to another community outside that country. The Pinochet case is a simple example of legal globalization in action: the British courts entertain a request from Spain to extradite to that country a Chilean for acts he is alleged to have carried out in Chile and Argentina, and then deny Pinochet’s claim to immunity on the basis of an international convention to which the three countries are parties and which treats the acts in question as international crimes. Without the treaty the case collapses: Spain would not have had a legal interest to which the English courts were able to accede. Chile would lose its entitlement to claim immunity for the acts of Pinochet while head of state. In a globalizing world international law recognizes the competing interests of different communities and finds ways to prioritize them. By providing a minimum set of rules international law underpins globalization. It encourages and eases air transport, trade and telecommunications, the factors necessary for economic globalization to occur. Activities which were

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previously limited to the local or national levels are internationalized, requiring law-making beyond the single state. Ironically, this in turn contributes to the very conditions which give rise to manifest feelings of disempowerment – citizens feel they have had no role in the development of the new international rules which disempower them. This feeling generated the anti-WTO demonstrations in Seattle in November 1999. So international law provides the foundations for globalization and, at the same time, becomes the object of discontent. And perhaps even more curiously, other international rules – promoting human rights and protecting the environment – become a source of transformative power to attack some of the harsher economic and social consequences of globalization. International rules alone are not responsible for globalization, which is catalysed by technological innovation, the second factor in the change in perception of the international legal order. It is not only the nature of the changes which prompt interest and action, but also their extent. We are only now becoming aware of the tremendous capacity for new technologies to produce harmful effects over extended geographic distances. The accident at the Chernobyl nuclear power plant in April 1986 illustrated the permeability of national boundaries in a manner which was not previously understood: hill farmers in Cumbria had their pasturing lands polluted and their livelihood destroyed by restrictions on sheep-grazing, and the British government continues to compensate them for pastures which remain off-limits nearly twenty years later. The depletion of the ozone layer and the onset of global warming reveal a greater understanding of the impact which new technologies may have over time and distance. We now know that releasing the contents of an aerosol spray in one country can ultimately harm the environment and citizens of another. A Londoner’s hairstyle may be an Australian’s cancer. The legal fiction of the sovereign state crumbles in the face of natural realities and economic impulses. Regulating an ever-broader range of activities necessarily becomes an international task. New technologies also transform the means of communication, with significant consequences for access to the products and processes of international law. Telephones, faxes, email and the internet have hugely increased the global exchange of information, and the speed at which it is communicated. These technologies have made generally accessible the documentation which forms part of international negotiations and decision-making processes. When I first studied international law, many of the most important United Nations’ documents – such as Security Council resolutions – were not available in the libraries of major universities until several years after they had been adopted. Security Council resolutions are now available to every person in the world with internet access, within minutes of their adoption. Security Council r­ esolution 1546, Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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which addressed the conditions of Iraqi governance after 30 June 2004, was instantly available once it had been adopted. People could read it and form their own views, and many did. Similarly, judgments of international courts can be downloaded from their websites on the very same day that they are presented to the parties. In June 1999 I sat with an Albanian government minister in Tirana viewing the website of the International Court of Justice as that body refused to order a halt to the bombing of Yugoslavia by NATO, in the actions taken to protect Kosovan Albanians. On the day the Court gave its judgment in that case I am told that there were almost one million hits on the Court’s website. An even greater number accessed the Court’s website in July 2004, to read the Advisory Opinion that Israel’s construction of a wall in the Occupied Palestinian Territory, including in and around East Jerusalem, was contrary to international law and should cease forthwith.11 There is a third factor for change, which is gradually weaving its way into international legal consciousness. This is the notion of ‘democratization’, which Professor Thomas Franck of New York University Law School has described as ‘becoming a global entitlement’.12 Democracy reflects the emergence of a universal expectation that those who seek a validation of their empowerment – the governors – should govern with the consent of the governed. Democracy has invariably been addressed as a national issue, giving rise to principles of self-determination, freedom of expression and the emergence of a normative entitlement to participate in electoral and other decision-making processes. Increasingly it is seen as encompassing rights of access to information, and to administrative and judicial remedies to challenge administrative acts which wrongly interfere with rights. Democratic claims too are being internationalized. If participatory democracy is relevant to the national levels of governments then why should it not also apply at the international level, where so many decisions which affect people’s lives are now being taken? There is ample evidence that access to information, decision­-making and remedies is now being sought in relation to the activities of international organizations, such as the World Trade Organization. You need look no further than the powerful claims concerning the ‘democratic deficit’ in the European Community to see the extent to which issues of democratic governance ­challenge international decision-making and provoke powerful grass-roots opinions. 11 See ICJ, Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, . 12 T.M. Franck, ‘The emerging right to democratic governance’, American Journal of International Law, vol. 86 (1992), pp. 46–91. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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With the internet people now have a great deal more information than before, and with that information corporations and NGOs – whose interests are at issue – are increasingly keen to influence governmental decisions. This has led to radical changes even within such conservative bodies as the World Bank; a decade ago it would have been unimaginable that private groups would be able to challenge some of the Bank’s lending decisions. But that is precisely what has happened with the creation of the World Bank Inspection Panel in 1993, a radical initiative which was taken as a result of efforts by disenchanted ­citizens. Against this background the exclusion of civil society from access to the WTO and other international bodies is hard to justify. Rules of international law which perpetuate feelings of exclusion will generate public ­disquiet and anger.  International laws and organizations exist to serve people, not governments. Finally, the trend towards deregulation and the enhancement of the role of private enterprise and ownership as a dominant feature of modern, postindustrial society is the fourth factor in increasing public interest in international law. If the frontiers of the state are to be pushed back at the national ­level, as Margaret Thatcher famously declared in 1977 before she became prime minister, then why should they not also be pushed back at the international level? Deregulating international capital flows, promoting private investments overseas and increasing global trade have greatly extended the international role of the private and corporate sectors. Not surprisingly, these players are not content with a backseat role in the making and applying of international law. They want to influence the content of the rules and contribute to their enforcement. They do so by pressuring governments and, increasingly, participating directly in international treaty negotiations. The result is that governmental and commercial interests act together at the international level, so that international laws accommodate changing requirements and provide for an increased role for the private sectors in the design of those rules. One example is the Kyoto Protocol on global warming. This commits developed countries to cut their emissions of carbon dioxide and other greenhouse gases. With Russia’s ­ratification on 18 November 2004, the Kyoto Protocol came into force on 16 February 2005. As it enters into force it will create an international market for trading in the right to emit greenhouse gases, with a direct role for the private sector. Global free trade rules are another area where corporate interests are directly affected. If the private sector is to have rights and obligations under international instruments, on what basis can they be excluded from the law-making process, or the traditional inter-governmental arrangements for dispute settlement? These issues coalesce around a new reality: as the activities of the private

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sector are directly affected by international laws they can ­legitimately expect to play a greater role in international affairs, and in international law-making. Globalization, advanced technologies, democratization, privatization and deregulation were not part of the traditional, state-centred background against which the United States and Britain made their visionary proposals in the 1940s. The four factors described above not only pose challenges to the established system, they help to transform it. By the 1990s the basic norms of international law were broadly established and accepted. As decolonization was followed by the fall of the Berlin Wall and the collapse of the Soviet bloc, Francis Fukuyama famously (and prematurely) declared the ‘end of history’. The world seemed to be poised on the verge of a new global order, reflecting shared values, commitments and rules. Or so we were led to believe. During the Clinton Administration a powerful group of neo-conservatives plotted to remake the international legal order. Their plan was set out in various manifestos, such as the Statement of Principles and other documents associated with the Project for the New American Century. The main targets included the rules which had allowed the detention of Pinochet, the new International Criminal Court, and the Kyoto Protocol on global warming. It was said that these threatened American national security. In November 2000 George W. Bush was elected into office, bringing with him many of the signatories of the Committee for the New American Century. John Bolton became one of President Bush’s senior foreign policy advisers and was appointed Under Secretary for Arms Control and International Security at the US State Department. In 1997, as Senior Vice President of the American Enterprise Institute in Washington, DC, he declared that treaties were simply political ‘and not legally binding’.13 Richard Haass, Director of Policy Planning at the US State Department and now President of the prestigious US Council on Foreign Relations, declared the Bush Administration’s commitment to ‘à la carte multilateralism’;14 in other words, the US could pick and choose those rules which it wished to follow, and in other areas dispense with multilateral rules and proceed according to its own interests. 13

14

‘Treaties are “law” only for U.S. domestic purposes. In their international operation, treaties are simply “political”, and not legally binding’: the Federalist Society at , 25 September 1997. He has also written that ‘There may be good and sufficient reasons to abide by the provisions of a treaty, and in most cases one would expect to do so because of the mutuality of benefits that treaties provide, but not because the United States is “legally” obliged to do so.’ John Bolton, ‘Is There Really “Law” in international Affairs?’, Transnational Law and Contemporary Problems, vol. 10, Spring 2000. San Francisco Chronicle, 10 August 2001, p. A25.

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Then came 9/11, and the wars in Afghanistan and Iraq. Shortly after the end  of the war in Iraq in April 2003, Richard Perle, an architect of the neoconservative agenda in the United States, went even further, declaring publicly that the war in Iraq provided an opportunity to refashion international law and undermine the United Nations. Such actions began to look like part of a systematic-neo conservative effort to refashion the international legal order in the light of new priorities and values. British Prime Minister Tony Blair seemed sympathetic to the call. After Iraq, in a speech at his constituency in Sedgefield, in the north-east of England, he too argued for a new international law: It may well be that under international law as presently constituted, a regime can systematically brutalize and oppress its people and there is nothing any­one can do, when dialogue, diplomacy and even sanctions fail, unless it comes within the definition of a humanitarian catastrophe. […] This may be the law, but should it be?15

…

I am not starry-eyed about international law. I recognize that, on occasion, it has failed millions around the world, and will continue to do so. But do recent events justify a wholesale change of approach? In the aftermath of 9/11, the ‘war on terrorism’ has been used to justify an assault on established international legal rules. One has to be clear that 9/11 did not require the rules to be suspended, or even abandoned altogether. Even before that day George W. Bush’s Administration had walked away from new international rules tackling global warming and biological weapons, and had been taking active steps to undermine the International Criminal Court. Even so, it is not the case that the United States has turned its back on the entire body of international law, or even most of it: the US is broadly committed to international free trade rules, for example those of the World Trade Organization and the North American Free Trade Agreement. It is seeking to adopt new rules in Central and South America and elsewhere in the world. It is strongly committed to the use of international laws to protect the rights of American investors overseas, and to rules protecting intellectual property rights. But do we want an international legal order which is essentially limited to the economic side of globalization? Or do we want international rules which promote other values and interests, as the US and Britain originally conceived? 15

‘PM warns of continuing global terror threat’, speech, 5 March 2004, available at .

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While the events of 11 September 2001 became a catalyst for the systematic disregard of established international rules on human rights, the treatment of combatant prisoners and the use of military force around the world, I would maintain that this is not the moment to abandon the vision set out in the Atlantic Charter. Quite the contrary. International law at the beginning of the twenty-first century is more important than ever. The role of the United States in trying to remake global rules needs to be seen for what it is, namely an abandonment of values that are more vital than ever. In large part, the British government has colluded or turned a blind eye, and has much diminished its ability to have a positive influence on the essential debate about the function of those international rules. Meanwhile public emotions are provoked by governments’ failures to abide by these rules. Sixty years after the Atlantic Charter was adopted, two key questions need to be addressed. Do we need new global rules, as the British Prime Minister has proclaimed? Or do we need fewer rules, as the Bush Administration proposes?

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Chapter 15

Vaughan Lowe, International Law, 2007 Comment by Jill Barrett, Visiting Reader in the School of Law, Queen Mary University of London Professor Vaughan Lowe QC has the distinction of being one of the most ­erudite and authoritative British international lawyers around today, yet also the most readable – qualities which are seldom combined to such a high degree. His scholarly writings on a range of subjects – notably the law of the sea, use of force and the nature of international law and litigation – all represent significant contributions to the literature on international law. This extract shows his ability to communicate complexity simply without oversimplification, while drawing upon a remarkable span of knowledge – from a Sumerian treaty held in the Louvre to the pocket cards issued to US forces during Operation Desert Storm.a International Law was published when Lowe was the Chichele Professor of Public International Law at the University of Oxford. He explained his source of inspiration and aim in the Preface: This book began its life as a successor to James Brierly’s Law of Nations. That excellent book provided an introduction to international law of the kind that might be helpful for a student to read in the vacation before starting to study the subject, or for an interested lay reader. Largely shorn of footnotes and technical details, it offered an overview of the scope and principles of international law. I hope that this text does much the same.b It certainly does achieve that aim, and is still top of the list of essential preliminary reading for international law courses all over the world; and no doubt will remain so for many years even if there is no new edition, as it addresses the fundamental nature of international law rather than the content of specific rules. But the appeal of this book is much broader than that. Any international lawyer, no matter how experienced, could also benefit from its insights and en-

a V. Lowe, International Law, 2007, at pp. 65 and 283 (not included in this Anthology). b James Brierly’, Law of Nations, 1928. See Chapter 2 of this Anthology.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_016

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joy Lowe’s turn of phrase. When I first read it I had been in practice at the Foreign and Commonwealth Office for twenty years, yet learnt from his analysis and enjoyed the way he explained things I already knew but could never have expressed so vividly. His musings on “Why do people comply with international law” chimed with my own experience in government. His notion of the way the ‘new intern or desk officer in a Foreign Ministry rapidly absorbs the culture’ invoked my own early FCO days when questioning why we had to draft something in a certain (peculiar) way and the response being ‘why is the sky blue?’ His description of the way international law becomes the lingua franca of lawyer-diplomats is spot on, as is his own assessment of that paragraph: ‘I exaggerate, perhaps: but not much’. His domestic law analogy to explain ‘How international law is applied and invoked’ – a tale involving a socially dysfunctional professor, his university notepaper and a remiss student – brought to mind one of the commonplace tasks of a foreign ministry lawyer: interpreting the wording of a protest in an incoming Note verbale to assess whether the sending government regards it as having a legal basis, on which a legal claim might be based. Usually it doesn’t, but when occasionally it does, as was the case a few years ago when Ireland made a series of protests to the UK government about the Mox plant at Sellafield, the gradual changes in style and wording subtly signalled the intention to invoke international settlement of dispute procedures in exactly the manner that Lowe describes. While so many academic writings on international law focus on its formal outputs, for example, court judgments and proceedings of international conferences, it is refreshing to read such an insightful ‘outsider’s’ account of the everyday workings of international law inside institutions. And one that is sprinkled with self-deprecating humour, an endearing hallmark of Lowe’s style.c c Eg V Lowe, International Law, 2007, Postscript, final line at p290 [Page 409 of this Anthology].

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V. Lowe, International Law (Oxford University Press 2007). Excerpts: Chapter 1, Introduction and Overview pp. 1–33, and Postscript p. 290. Reproduced with the kind permission of Oxford University Press.

International Law Vaughan Lowe

Introduction and Overview: The Ambit of International Law

1.1 Aim of the Book The world needs international law, because no State acting alone can achieve its aims. International co-operation is necessary; and international law is the framework within which international co-operation takes place. The point was well made by a former British Foreign Secretary, Douglas Hurd: [N]ation states are … incompetent. Not one of them, not even the United States as the single remaining super-power, can adequately provide for the needs that its citizens now articulate. The extent of that incompetence has become sharply clearer during this century. The inadequacies of national governments to provide security, prosperity or a decent environment has brought into being a huge array of international rules, conferences and institutions; the only answer to the puzzle of the immortal but incompetent nation state is effective co-operation between those states for all the purposes that lie beyond the reach of any one of them.1 That passage suggests some of the matters with which international law is concerned. The national security of each State depends upon an acceptance by other States of restrictions upon the right to use force to achieve their aims. Those restrictions are given their definitive expression in international law. National prosperity depends upon trade; and international trade is conducted within the rules that constitute the World Trade Organization (WTO) trading system and regional systems such as the North American Free Trade Agreement (NAFTA), the Southern Common Market (mercosur), and the Common Market for Eastern and Southern Africa (comesa). Factors that affect international competitiveness, such as national health and safety legislation and minimum employment standards, are also regulated as part of this broad scheme. Pollution of the land, sea, and air is the subject of a large and ­growing 1 Douglas Hurd, The Search for Peace (London: Warner Books, 1997), p. 6. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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network of global and regional treaties. Fundamental human rights are secured by multilateral treaty regimes in Africa, the Americas, and Europe, and are supplemented by increasing numbers of agreements on more specific matters such as the rights of children, minorities, and migrant workers. Plant and animal diseases, and drugs, and scientific research are the subject of i­ nternational agreements. So, too, are transportation, banking, arms control, educational exchanges, and extradition: the list, and the scope of international law, is almost infinite. More will be said about these subjects in the following pages. The refesrence to the ‘huge array of international rules, conferences and institutions’ suggests something of the processes by which the rules of ­international law are made. Take for example the question of the environment. No State can prevent global warming by acting alone. It may impose severe r­estrictions upon carbon dioxide emissions and engage in massive ­tree-planting programmes; but if no other State is doing so, its efforts will be practically p ­ ointless. Worse, the additional costs imposed on manufacturers and tax-payers as a result of those measures will tend to put that State’s economy at a competitive disadvantage: the role of ecological custodian comes at a real cost. Unless ‘greenness’ can be sold as a consumer good (as many companies, making a virtue of necessity in the face of environmental legislation, now seek to do) whatever international influence the State has as a competitor will begin to dwindle as businesses abroad unencumbered by strict environmental constraints i­ncrease their market shares. Unilateral action is at best ineffective and may be positively counter-productive. In a perfect world, all States would impose the same environmental regulations, at a level just sufficient to achieve the desired safety of the environment. The environmental aims would be ­secured; and no State would be at a competitive disadvantage as a result. Co-operation is necessary; and co-operation needs a framework. In order even to begin to attempt to co-operate, States must contact each other and know who is competent to give binding undertakings that will be respected by the government, the courts, and other public authorities of the other State. They need to know how to indicate that a particular agreement made by a State is formally binding, as a matter of legal obligation, and is not regarded simply as a matter of policy that can be varied or abandoned at will by the other State. These matters are governed by principles of diplomatic law and treaty law. In order to negotiate an agreement on environmental controls, State representatives need to discuss the issue. States may already have established an international organization with competence in the field, under whose auspices negotiations can take place. If not, States will have to convene a conference. This is not easy. If a State representative visits, say, Brussels, he or she may be threatened with arrest or with being sued in respect of some wrong that was

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allegedly committed by the State that sent them. The work of State representatives is greatly helped if they are assured that they will not be subject to such distractions, and the advantages of such immunity are generally thought to outweigh the disadvantages of closing off that particular means of challenging the conduct of foreign States before courts of law. Hence, international law provides for the immunity of diplomats and other State representatives. If an agreement on environmental controls is negotiated, it will be necessary to decide how far States may, or must, apply the controls to polluting ­activity. Certainly, States will be expected to apply it to everyone within their borders, whether or not the people concerned—car owners, factory owners, or whatever—are nationals of the State (and the determination both of borders and of nationality are themselves questions of international law). But what of, say, foreign subsidiaries of companies based in the State? May a company avoid pollution controls by shifting its manufacturing operations to another country, or may the State regulate its activities even when they take place abroad? And what if the country where the activities do take place has different rules for pollution control? These questions of the extent of a State’s right to regulate conduct are questions governed by the principles of international law concerning jurisdiction. Suppose that the foreign country where the subsidiary’s operations are located introduces draconian environmental laws that render either the subsidiary’s, or even the parent company’s, operations commercially unviable—a question that turns partly upon the way in which accounts may or must be drawn up in the different countries and on the ways in which taxes are imposed and taxes paid abroad are taken into account. Would the subsidiary or the parent company have any remedy, and if so, how could it be obtained? And suppose that some States that have become parties to the environmental treaty impose lower environmental standards than those required by the treaty, or adopt a lax approach to the enforcement of standards, so as to help their domestic businesses: would other, more conscientious States Parties have any remedy against the resulting inequities in the regulatory burden and tilting of the competitive playing field? The questions can be multiplied almost endlessly; and to almost all of them international law provides an answer. It will be apparent from that example that international law is concerned with the actions and treatment of individuals, corporations, and international organizations, as well as States; and is the concern of lawyers advising all of them. Corporate lawyers, environmental campaigners, and governments alike will scrutinize the way in which national environmental laws are drafted and imposed and measure them against the State’s international obligations—not

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only its obligations under environmental treaties but also obligations concerning conditions upon which international trade takes place, the treatment of foreign investments, non-discrimination, and other matters. Indeed, no ­lawyers now starting in practice are likely to avoid all contact with international law in their professional careers. Human rights obligations arising from international instruments are now a common ingredient of cases arising within the framework of administrative law and criminal law; family lawyers i­ncreasingly look to international treaties and the national legislation that implements them for assistance in matters such as child abduction and the collection of maintenance payments; labour lawyers invoke international standards in cases concerning working conditions; and commercial lawyers wade deep into the waters of international trade law in advising their clients. Though sometimes concealed by the overlay of municipal2 legislation, international law flows throughout the whole of national law. Little thought is given to the workings of international law until it ceases to operate satisfactorily. When international law malfunctions or disappoints the expectations of onlookers, trenchant questions are asked. Does it matter if international law is violated? Is international law anything more than a respectable cloak for the exercise of naked power, or an exercise in Utopian idealism? Are there right and wrong answers in international law, or is it all a matter of interpretation? What can international law do? I try to answer such questions in this short book. It is a book about international law, not a book of international law; and this is one reason why I have abandoned the lapidary prose traditional in legal textbooks in favour of a first-person narrative. I try to explain what international law does and how the international legal system operates, but not to set out a comprehensive or systematic account of what the rules of international law are. This approach was well described in the Preface to the first edition of the book that is, in the genealogy of Oxford publishing on international law, the ancestor of the present text, J.L. Brierly’s The Law of Nations, where Brierly wrote that: Any intelligent study of the problems of international relations must raise the question of the role, if any, to be assigned in them to law. Unfortunately current discussions of the matter too often assume that this question can be answered by a priori methods, to the neglect of any 2 ‘Municipal’ and ‘domestic’ are terms used by international lawyers to signify something within the legal order of a single State, in contrast to something within the international, interState legal order: for example, domestic courts in contrast to international courts; municipal law, such as English or Scots or French law, in contrast to international law.

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s­ erious examination either of the part that law is actually playing in the relation of states today, or of the conditions upon which an effective legal order in any society depends.3 Brierly thought that some knowledge of the system as it is actually practised between States is necessary as a corrective both for exaggerated hopes and for cynical indifference, and he tried to show that international law ‘is neither a chimera nor a panacea, but just one institution among others which we have at our disposal for the building up of a saner international order’. The need that Brierly identified is as urgent now as it was when he wrote, almost eighty years ago. The rest of this chapter consists of a brief outline of the scope and nature of international law. The remaining pages of this book consist largely of a gentle tour of the main areas in which international law is currently active and of the principles upon which international law is built and the methods used to build it. 1.2 The Scope and Nature of International Law The central core of international law may be described as the body of rules and principles that determine the rights and duties of States, primarily in respect of their dealings with other States and the citizens of other States, and that determine what is a State—which political entities, such as Australia and Palestine and Quebec, count as States, and when and within what geographical territory they exist. It may seem odd to describe the core of international law, rather than to define it. I have done so because definitions necessarily draw lines to distinguish one thing from another; and that approach is inappropriate in the case of international law. There is a penumbral area which can equally well be classified as international law or as some other branch of the law. Archetypal international law is concerned with the rights and duties of States towards one another; but the principles, materials and techniques of international law are applied much more widely. For example, the powers and duties of international organizations are governed by international law. Thus, while the Member States of the European Union are bound by internal EU law in their dealings with one another and

3 J.L. Brierly, The Law of Nations. An Introduction to the International Law of Peace (Oxford: Oxford University Press, 1928), p. v. [Editors’ note: See Chapter 3 in this volume].

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with organs of the EU (such as the European Commission), relations of other, non-member States with the EU are governed by international law. As a matter of EU law, competence over fisheries is a matter for the EU and not for Member States: it is the EU that makes fishery treaties under which EU vessels fish in the waters of non-Member States and vice versa; and those treaties are governed by international law in the same way as are treaties made between two States. Similarly, human rights treaties and treaties providing for the protection of foreign investments limit the powers of States Parties in their dealings with individuals and companies; and many such treaties give individuals and companies the right to bring proceedings against a State that has violated the treaty terms. To that extent, international law also encompasses dealings with individuals. But one might equally well regard the right of an individual to bring a case against a State in, say, the European Court of Justice, as an extension of the individual’s rights to sue that State in the State’s own national courts, under some such process as judicial review. There is no absolute line that sets the boundaries between international law and national laws; and some bodies of law and legal procedures have characteristics of each. What, then, are the particular characteristics of international law? There are obvious differences in the material sources. International lawyers are largely concerned with treaties and customary international law, while municipal lawyers are largely concerned with statutes and reports of court decisions. There are also differences of methodology. National courts, mindful of their duty not to usurp the role of the law-makers in the legislature, tend to adopt relatively inflexible and literal interpretations of legislation: international tribunals tend to have a more flexible and pragmatic approach, bending the interpretation of the text to current conditions where circumstances seem to demand it. But these differences are relatively minor. They are no greater than the differences between common law systems based upon case-law and legislation, such as English Law, civil law systems based upon comprehensive Codes, such as French law, and customary law systems based upon the application of customary rules, such as the customary courts in Tanzania. The crucial difference between international law and municipal laws is one of fundamental principle. National laws are invariably based upon some notion of sovereignty. National courts defer to national legislatures. If a national law says that the government or anyone else has the right to do a certain thing, the courts will not disagree. The legislature can do no wrong. Even where, as in the United States, statutes may be struck down because they are unconstitutional, the courts are still bound by the Constitution, which is itself a national law. The fact that the exercise of a right under national law may violate international law will not entitle national courts to deny the existence of that right Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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(unless national law itself directs the courts to apply international law in certain circumstances, as do the constitutions of Germany and The Netherlands for example). This subordination of the courts to the legislature is at the heart of what is meant when people assert the sovereignty of national parliaments. It means that no-one can tell the State (or more accurately the rulers of the State) what to do. That principle of sovereignty underpins national legal systems: it answers the question, who’s in charge here? It affirms the right of each State to be different, so that conduct that is lawful in one, such as smoking cannabis or stoning someone to death, may be punishable as a crime in another. National laws on matters such as credit, pornography, blasphemy, gun control, employment terms, marriage and divorce, abortion, drugs, taxation and social security, military service, and so on do much to define the nature of a State. They are a significant part of what makes the State, and the society within the State, different from its neighbours. International law, on the other hand, proceeds from precisely the opposite premise. It is based upon the principle that all States, whether they like it or not, are subject to international law and must comply with it. It may appear to be in this respect the antithesis of national sovereignty. But that is an oversimplification. Far from suppressing national sovereignty, in the way in which EU law suppresses national sovereignty in certain defined fields in order to secure the goals of economic and social advancement, international law seeks to secure the conditions that allow sovereign States to co-exist, and to enable each State to choose what kind of society will exist within its borders. International law does this by regulating relations between States. It is a little like a global equivalent of the laws that allocate certain powers to towns, counties, provinces, and other political subdivisions within a single State— with the crucial difference that in international law there is no equivalent of the central or federal government with rights to override the will of the local and provincial governments. In more abstract terms, we might say that international law governs the relationship between one particular level of distinct political communities (by which I mean simply social groups that are organized and impose rules made by the community upon the members of that community, and usually upon visitors sojourning within it). International law does not generally concern itself with relations between provinces or towns or whatever. It leaves those questions to the authorities within the State concerned. It concerns itself essentially with relations between States. From the earliest recorded times when mankind was organized into distinct tribal or political groups there was a body of rules that regulated the conduct of affairs between different ‘countries’ and their sovereigns. We still have many of the clay tablets upon which treaties were written in Babylonia the best part Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of four thousand years ago. Extradition arrangements were in place between Egyptian pharaohs and Hittite kings. In ancient Greece and Rome and India, the exchange of envoys between nations followed well-established rules, the violation of which could be a justification for war. It seems likely that a form of international law arises whenever groups begin to identify themselves as distinct from their neighbours; that international law is as primitive and elemental a social institution as law itself. One wonders whether it is not hard-wired into human consciousness, a corollary of a view of the world which, linguistically, divides actions in the patterns of verbs that distinguish between I, we, and they. I, the individual; we, the tribe; they, the others. From these primitive distinctions, which seem to be universal (or near universal), emerge the basic legal conditions that characterize international law. There is us; and there is them. We can be their friends, or their enemies. If they fight someone else, we can be for them, against them, or keep out of it altogether. We can, in international law terms, be at peace, at war, or neutral. To find out which, we need to send envoys, representatives. Our peace is sealed by treaties—the Latin word for allies, foederati, comes straight from the word for treaties, foedera. Our wars are bounded by rules. We fight because we have rights to uphold; and the morality that justifies the end also constrains the means that we use to achieve it. Our neutrality, which excuses us from involvement in the fights of our neighbours, similarly limits what we may and may not do without being considered to have taken sides. And when peace exists, and we trade with one another, we have rules that stipulate what rights and duties our traders have in each other’s territory: how far they are subject to the criminal law and so on. International law is not a unified, manufactured system, imposed upon the world of international or inter-communal relations. Nor, despite its deep roots in basic forms of social organization, is its scope determined a priori. The rules of international law cover whatever topics happen to have been regarded as appropriate for legal solution on the international plane. It is simply a formalized account of practices and principles which spring spontaneously and inevitably from the coexistence of distinct communities or which result from conscious efforts of States to co-operate in dealing with certain problems. From the earliest days those rules covered matters such as the making of war and peace and alliances, diplomatic exchanges, trade, and the return of fugitive offenders, and were initially evident simply as the customary practices, the ‘way of doing things’ in the field concerned. Gradually these practices and principles were reduced to writing and systematized, and the principles of the Law of Nations (as international law used to be known) were set out in textbooks, often intermingled with discussions of

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the principles of domestic government and right behaviour in general. Some such texts are of great antiquity. Fragments are readily identifiable in the Old Testament. In the Book of Deuteronomy, for example, there are clear rules on what armies are and are not permitted to do during the belligerent occupation of enemy territory—rules which (as I explain in Chapter 8) are very close to those which apply today in situations such as the occupation of Iraq by the United Kingdom and the United States and the Israeli occupation of the West Bank and Gaza. The Arthashastra of Kautilya, a magisterial treatise on statecraft written in India almost two thousand years ago, and the Siyar of the eighth-century Hanafite jurist, Shaybani, from what is now Iraq, are among the early classics. It is often asserted that international law in its modern form dates from the Treaty of Westphalia in 1648, which is said to have ‘created’ the system of modern nation-States. It is far from clear that this is so. The primacy of territorial units as the basis of social organization was evident in the Peace of Augsburg in 1555, and the notion of sovereignty was developed by Jean Bodin a little later in the sixteenth century. Either could be taken as indications of the emergence of a ‘new’ order of sovereign territorial States within the increasingly fragile chrysalis of the Holy Roman Empire. But there is another, more important, objection to the fixation with Westphalia as the birth of international law. The ‘Westphalia’ thesis focuses on the wrong issue. The strength and continuity of international law flows not from its conceptual basis but from its routine incorporation within the daily life of governments. The forms—treaties, embassies, claims to jurisdiction or immunity, to territory and nationality, and so on—go back far beyond the Treaty of Westphalia; and it is in the forms and formulas of governmental intercourse that the lifeblood of international law has always flowed. If one seeks a critical development to which the origins of modern international law might be attached, that development should probably be the routine recording of official dealings between different rulers or countries and the emergence of organized governmental archives, which occurred in Europe some time around the thirteenth century and many centuries earlier in Asia and the Middle East. One measure of this development is the consumption of the wax used to seal official documents. In the late 1220s, England’s Royal Chancery used about 3½ pounds of sealing wax each week: by the late 1260s, this had risen to about 32 pounds each week. In Europe, there were by the fourteenth or fifteenth century very well-­ established rules regulating the relations of States in times of war and of peace. Some of the rules find vivid expression in literature of the period. In England, the best-known examples arise a little later, in Shakespeare’s histories. ­Henry v,

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in particular, gives a central dramatic role to the Laws of War, as Theodor Meron has shown in his entertaining and erudite studies of international law in Shakespeare’s plays.4 These rules were rehearsed in court decisions and in opinions drafted by the international lawyers of the day, and eventually set out in the classic European tracts on international law. Those texts began to appear in the sixteenth century, centuries after the Middle Eastern and Asian texts. Their appearance coincided with the age of exploration and colonization by the European powers. While some of the earliest European texts, such as those by the great Spanish theologian–jurists Vitoria, Suarezand Ayala, addressed questions of the rights and duties of the European towards the peoples of the New World, most of the early European treatises dealt mainly with war, peace, diplomacy, and treaty-making—the traditional occupations of governments. That pattern continued for three centuries, and is reflected in the classic texts by Gentili, Grotius, Pufendorf, Vattel, and von Martens, albeit from a range of doctrinal perspectives. But by the later nineteenth century the scope of the texts was beginning to be considerably extended, so as to reflect the increasing range of topics upon which States were finding it useful to co-operate. In the nineteenth century treaties regulating the waging of war, designed to limit unnecessary suffering, were adopted. International organizations were established, such as the Commissions regulating the uses of several of the great European rivers and, rather later, bodies such as the International Telegraphic Union, designed to facilitate international co-operation in the wake of technological developments. These moves, which began around two hundred years ago, heralded a period of extraordinary development in international law, propelled by the coincidence of the realization of the need for international co-operation to address problems insoluble by individual States acting alone and the greatly increased possibility of international communication through innovations in road, rail, sea and air transport, and telegraphy. Over that period major developments have occurred in three areas: in the scope of international law, in the range of international organizations, and in the range of international actors. 1.3 The Changing Scope of International Law The first development is the massive expansion in the scope and sophistication of international law. The creation of the European Empires, and their g­ radual

4 Theodor Meron, Henry’s Wars and Shakespeare’s Laws (Oxford: Clarendon, 1993) and Bloody Constraint: War and Chivalry in Shakespeare (New York: OUP, 1998). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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dismantlement from the time of the wars of independence in the Americas in the late eighteenth and early nineteenth century onwards, demanded ­explanations of the differences between the various kinds of States—Great Powers, colonies, protectorates and so on—and of how they emerge and how one replaces another. These are the now familiar questions of international personality and State succession. At what point, for example, did the conflict in Yugoslavia in the 1990s cease to be an internal Yugoslavian problem in which outside States should not intervene and become an international conflict between Bosnia, Serbia, and Croatia in which other States might ally themselves with one or other of those newly emerged States? In contexts such as this the traditional rules evolved and were refined. A much more radical change occurred in the field of human rights. Classical international law was based on the supposition that it dealt with relations between States, and that each State could and should look after the interests of its own citizens. If a citizen was injured by a foreign State, it was for the citizen’s own State to demand compensation from the foreign State—to make a diplomatic claim. But no State had any right to tell another how it should treat its own citizens. That supposition was shaken to the core during the twentieth century. Close attention was paid in the years after the Great War to the treatment of ethnic minorities within States; but the decisive development followed the discovery of the way in which Nazi Germany and the communist Soviet Union had treated their own citizens. States could no longer remain indifferent to the mass slaughter of human beings. If pure altruism was not a sufficient reason for their intervention, the desirability of avoiding becoming embroiled in international conflicts such as World War Two, with the immense cost in suffering and resources that it entailed, was. The treatment of people was pulled out of the sphere of the domestic jurisdiction of States—the sphere of internal affairs, in which no other State has the right to intervene—and ­Human Rights law was added to the canon of international law. The making in 1948 of the Universal Declaration of Human Rights, along with the adoption of regional instruments such as the American Declaration of the Rights of Man in 1948 and the European Convention on Human Rights in 1950, marked the inception of modern international human rights law. They were followed by instruments such as the 1981 African Charter on Human and People’s Rights, and the 1994 Arab Charter on Human Rights. The emergence of human rights law is notable not only because it represented the acknowledgement that States had some legal, as opposed to purely political, interest in the way in which the internal affairs of other States were conducted, but also because the justification for this development lay not in existing legal principles but in moral imperatives lying outside the legal system. International law has, from the earliest times, had as close a relationship with moral principle Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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as does criminal law within a State, although the moral principles applicable in relations between States are by no means the same as those applicable between individual human beings. As the scope of State activity expanded, so did the scope of international law. Much of the development was incremental, with specific initiatives responding to the particular needs of the time; but there were larger scale movements. Two are particularly notable. The first, building on attempts in the late nineteenth and early twentieth centuries to deal with certain aspects of the international economy, is the creation of a near-comprehensive framework for international trade. Early agreements dealt with matters such as arrangements for international payments and exchange rates. The reconstruction of the international order that began after World War Two and centred upon the creation of the United Nations also saw the creation of the World Bank and the International Monetary Fund (imf), the General Agreement on Tariffs and Trade (GATT), and later the World Trade Organization (WTO), as well as various agreements regulating trade in primary commodities such as coffee and tropical timber. Regional economic organizations of immense importance were formed, first in Europe, and later in Africa, in North America, and in Latin America. International economic law is, perhaps, the fastest moving area of international law at present. A little later, international environmental law developed. International concern focused first on marine pollution, partly because that was one of the most visible forms of pollution and because its regulation intruded least upon the way that domestic and industrial life proceeded within States’ borders, and partly because it had the great benefit of falling within the competences of one of the most vigorous and successful of all international organizations, the International Maritime Organization (IMO). Economic law and environmental law have in common the characteristic that they bite deep into the internal order of a State. They touch detailed questions of financial and trade controls and of governmental regulation of business that are the stuff of party politics—issues on which elections are fought and won or lost. That is an indication both of the pervasive significance of international law in contemporary life and of the intensity of the pressure that drives governments to bind themselves to international policies in these fields as the only practical way of addressing some of the major problems that confront them. The development of international law is, of course, a continuing process. Much attention is being paid, for example, to the regulation of the Internet; and it is notable that some of the private industry initiatives such as the procedure for resolving disputes over internet domain names, established by the

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Internet Corporation for Assigned Names and Numbers (icann), dovetail into procedures established by international organizations of the traditional interState type, such as the World Intellectual Property Organization (wipo), a specialized UN agency. 1.4 The Emergence of International Organizations This great expansion in the scope of international law was accompanied by a second major development: the growth of international institutions. The existence in the early nineteenth century of administrative bodies such as the European River Commissions has already been noted. At the end of the nineteenth century, international judicial bodies appeared. The seminal episode, which signalled the possibility of the then Great Powers accepting judicial settlement of disputes between them, was the establishment in 1871 of the arbitration tribunal that settled the United States’ claims against Britain for compensation for the damage inflicted upon the Union by the confederate warship Alabama during the American Civil War.5 The Alabama, one of the most destructive warships in naval history, had been built in Birkenhead and delivered to the Confederacy in breach, so the United States argued, successfully, of Britain’s obligations as a neutral in the Civil War. The advantages of third-party involvement in the peaceful settlement of international disputes was underlined in 1902. An attack on British fishing vessels in the North Sea by the Russian Navy brought Britain to the brink of intervention on the side of Japan in the Russo-Japanese War; but again the matter was settled peacefully and swiftly, this time by a quasi-judicial Commission of Inquiry. The path to international adjudication was clear. It led to the establishment of the Permanent Court of International Justice (PCIJ) under the League of Nations, and its successor, the International Court of Justice (ICJ), under the United Nations. At first little used, in the 1990s the International Court became extremely busy, handling cases referred to it by States from all around the world. It is, however, only one among many international tribunals. International courts and tribunals are multiplying fast. Among the most notable are the dispute panels established by the World Trade Organization (WTO), the International Tribunal for the Law of the Sea (ITLOS), and the large number of ad hoc arbitration tribunals that have adjudicated upon investment disputes under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID), the North American Free Trade Agreement (NAFTA),

5 See T. Bingham, ‘The Alabama Claims Arbitration’ (2005) 54 ICLQ pp. 1–25.

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and some of the 2,000 or so bilateral investment protection treaties that now exist. International institutions also arose in the legislative field. International rule-making began in the late nineteenth century with the establishment of bodies such as the International Telecommunications Union (ITU), as it is now known. It grew from the perception that in areas of international activity, where goods or services or activities cross national borders, it is more efficient to agree upon regulations internationally than it is to leave it to each State to adopt its own, possibly idiosyncratic, measures. Today, there are scores of such bodies, in all areas of human activity. Many international organizations have competences that extend well beyond adjudication and rule-making, and which include the monitoring of compliance with the law and the formulation of policy. The United Nations is the pre-eminent global example; but developments within bodies such as the Organization for Security and Co-operation in Europe (OSCE), and the Economic Community of West African States (ECOWAS), indicate a recognition on the part of States that wide-ranging international co-operation is today a practical necessity, because few, if any, States have the capacity by themselves to deal with every problem that they may face. 1.5 The Emergence of New International Actors A third development in the international legal system was more radical. In the nineteenth century international law was primarily the concern of independent States, several of them colonial powers, in their dealings with one another. They applied their own imperial legal systems to dealing with their colonies and dependencies; but even those imperial systems mirrored the ­basic ­mechanisms and institutions of international law. At that time, however, ­international law could still properly be described as the body of rules that States applied in their dealings with one another. Sovereign States were, one might say, the only actors entitled to appear on the stage of international law. As international organizations became more familiar features of the international scene, and particularly after the establishment of the League of Nations in 1920, the question of their legal status arose. Unlike companies and corporations in domestic law, they were not the creatures or possessions of any single State, but there was a reluctance to accept that anything other than a State could truly claim a right to a place on the international stage. Nonetheless, practical necessities such as the making of agreements governing ­relations ­between the headquarters of international organizations and the

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State ‘hosting’ them led slowly to the acceptance that they should be recognized as having an independent status and the capacity to make international agreements in their own name. Just as companies make contracts in the same way as people do in domestic legal systems, and are therefore ‘persons’ recognized by those systems, so too are international organizations recognized as persons within the international legal system. Their capacities differ greatly. Some have very narrow remits and correspondingly narrow powers. Others, notably the European Union, have very extensive powers. Indeed, in certain fields of international activity, such as fisheries management and trade regulation, the EU has formally supplanted its Member States, the Union alone having the legal competence to negotiate international agreements with non-EU States. International organizations are not the only persons to share the stage of contemporary international law with States. States have long been held responsible under international law for the mistreatment of nationals of other States—‘aliens’ as they are often termed—but the traditional mechanism for invoking that responsibility was for the national State of the injured alien to take up the matter with the allegedly wrongdoing State. Indeed, that pattern is still followed on occasion. For example, in 1998 Paraguay brought a claim in the International Court of Justice against the United States in respect of a Paraguayan national threatened with the death sentence without, Paraguay said, having had the benefit of access to the Paraguayan consul when he was arrested, as required by the Vienna Convention on Consular Relations. Similar cases were subsequently brought against the United States by Germany in 1999 and by Mexico in 2003. The involvement of the State in the formal steps of preparing an international claim is, however, a time-consuming and expensive business which most governments usually consider to be an undesirable alternative to persisting with attempts to find a negotiated settlement. Moreover, where the injured person is not an individual but a company, the company may be better placed than its national government to pursue its claim. A large company will have the resources, the time, and the uncomplicated interest in pursuing the company’s particular interests against the foreign State, none of which may exist in the foreign ministry of the company’s home State. Indeed, companies have long negotiated with the governments of foreign States to conclude long-term concession contracts, for the building and operation of railways, mines, oil wells and refineries, and other large industrial projects. Those concessions, as might be expected of agreements between a State and foreign companies who are not its citizens and not entirely subject to its jurisdiction, have many of the

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characteristics of international agreements concluded between States. In their form, language and content they are a cross between a complex commercial contract and a treaty. It was a natural extension of the activity of companies in making these agreements with foreign States that the companies should be given the right themselves to make formal legal claims in cases where they considered that the agreement or their basic rights under international law had been violated. Thus, from the first half of the twentieth century onwards companies began to edge their way on to the international stage, making concession agreements with States and litigating against States as if they were their equals. Their place is now secured by the provision made for such actions by companies in the hundreds of bilateral investment treaties that protect their interests, and in multilateral agreements such as the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the ICSID Convention), the NAFTA, and the Energy Charter Treaty. Concurrently, in the mid twentieth century, a parallel development occurred in the field of human rights. The protection of human rights could have been left to States. The enforcement mechanism could have required that one State Party to a human rights convention should institute proceedings against another State Party if it considered that the other had violated the convention. This is, indeed, one of the mechanisms that still exists for the enforcement of human rights. But it was and is regarded as a mechanism of limited value. Effective constraints upon the abuse of government power are more likely to result from the internalization of human rights obligations into the everyday life of the State; and one way of ensuring this, and maximizing vigilance over the actions of States, is to give the individuals directly affected the right to institute proceedings in their own name. This right of individual petition, as it is known, was introduced in the 1950 European Convention on Human Rights, at first as an optional matter, individuals being entitled to initiate proceedings only against States that had chosen to accept the right of individual petition. It is now compulsory, binding on all the forty-four States currently Parties to the Convention; and around 14,000 individual petitions are lodged each year. Individuals, too, are in this field prominent actors on the international stage. Sometimes individuals are unable to pursue their rights effectively. They may be held in prison; the victims of government purges may be unknown; villages in remote areas may lack the facilities for communication with the relevant international bodies. In recognition of this some conventions, such as the 1978 American Convention on Human Rights, permit applications to be made by representative organizations. In this way Non-Governmental Organizations (NGOs) have secured an acknowledged place within the international legal system. They also have another, less formally acknowledged, role. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Particular NGOs have been enormously influential in promoting international agreements upon specific topics, especially in the fields of human rights and environmental law. Indeed, it is not uncommon to see NGO representatives occupying positions on the delegations of some, particularly very small, States at international conferences. The expertise and energy contributed by such NGO activity is of great value; but there are significant unresolved issues as to the principles that should govern the participation of unelected single-issue campaigning organizations in international legal processes. States, international organizations, individuals, and companies are by no means the only entities with which international law is concerned. Alongside the concern for human rights there has developed a concern for the rights of human groups as such. Indeed, the development of international mechanisms for the protection of human rights developed rather earlier in the context of group rights than it did for individual rights. Concern for minority groups was a prominent feature of the Versailles settlement in 1919, at the end of the Great War, thirty years before the Universal Declaration and the European Convention on Human Rights brought the defence of individual rights to the fore. In its most significant contemporary incarnation, the concern for group rights is evident in the recognition given by international law to the rights of ‘­peoples’—a development reflected in the title of the 1981 African Charter of Human and Peoples’ Rights. The rights of peoples have also been promoted in agreements on national minorities and minority languages, and less directly, by the development of areas of the law which are of particular importance when the rights of peoples and minority groups are under threat, such as refugee and humanitarian law. In principle, then, international law governs all activities of States that involve a foreign element: that is to say, all dealings by public authorities with foreign States or foreign citizens or with matters outside the borders of the State. The high tide of government regulation may have passed at some point in the late twentieth century: but governments still regulate so many aspects of life that barely any field of human activity escapes their attention, and with it the relevance of international law. Moreover, when international organizations and companies (and to a lesser extent individuals) come on to the international stage and deal with States as juridical equals, they adopt the forms and methods of international law. The character of international law will doubtless change with the mutation of the sovereign nation-State, but it will certainly not lose its importance. I have mentioned three broad areas of regulation: human rights, trade, and the environment. These are examined in more detail later, after the more fundamental principles of international law concerning the rights and duties of States have been considered. These principles are like the skeleton, the Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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framework on which the flesh of international co-operation is built; and it is ­necessary to consider them first. But before I do so, I must complete these introductory remarks by saying something about the reasons for the high level of compliance with international law, and the manner in which international law is made, invoked, and applied. 1.6 Why Do People Comply with International Law? I have said that the crucial difference between international law and municipal law is that in municipal law the State is sovereign. It has what may be called internal sovereignty, which means that its courts and its government are subject to the laws of that State, but only to the laws of that State. No superior governmental authority is recognized. I also noted that international law has no legislature. Nor is there an international police force, or even a compulsory system of courts before which States can be compelled to appear. Nevertheless, most States comply with most of the rules of international law most of the time. In the light of these characteristics, some people have asked why States do in fact obey international law. In fact, there are two questions that arise here: why do States comply with international law and why should States comply with international law? The first question, which asks why States do comply with international law, is largely empirical. We could ask those who decide on the actions that a State takes—or, to put it more precisely, those whose actions count as actions of the State—what role they give to international law in deciding upon courses of action and, to the extent that they are guided by it, why they are guided by it and what circumstances they regard as warranting action inconsistent with international law. International lawyers are not very good at making empirical inquiries of this kind, and the evidence is patchy, in large measure anecdotal and based upon the experience of those at the fringes of political power. Some points are, however, clear beyond dispute. The first point is that international law is not imposed on States against their will by an external legislature. Rules of international law mostly arise either from treaties or from customary international law. Treaties are like contracts, in as much as they are agreed and reciprocal commitments, which States are free to enter into or not as they please but which are binding once made. If a State considers that a particular treaty will confer on it more benefit than harm, knowing that every treaty involves some give and take between the parties, it may decide to become a party to the treaty. If the treaty seems likely to do more harm than good, it will not become a party. Treaties are, t­herefore, commitments that States have already decided that it is in their interest to

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comply with. It is scarcely surprising, therefore, that all States do generally comply with their treaty obligations. The position is broadly similar with regard to customary international law. Rules of customary law are not so much made as discerned. International relations, like all social relations, fall into certain patterns. For as long as there have been formal dealings between States, envoys and ambassadors have been sent from one to another. Perhaps somewhere in unrecorded history there was a time when envoys were regarded as disposable, and killed or captured once they had delivered their message. But for all recorded history they have been regarded as entitled to a degree of immunity and inviolability. Officials of a State did not have to consider each time a new envoy appeared how they should treat him. It was well known what the ‘right’ or ‘proper’ way to treat an envoy was; and it was understood that this was more than a matter of convention or convenience. It was an obligation. Rules of customary international law are, in essence, simply those international rules that are discerned as having this obligatory force. And again, because the customary practices are rooted in what States habitually do, it is no surprise that States should habitually comply with customary international law. Indeed, it is almost tautologous to make the point. One powerful reason why States do, and always have, complied with international law is, therefore, that they make the rules to suit them. International law constrains errant States, which seek to break away from established patterns of behaviour or to abandon treaty commitments that they have made. But by definition, international law is a constraint that sits very lightly on the shoulders of those who conform to it. While that inevitably gives international law, like all law, a conservative character, it also means that States can in general predict how other States will react in certain circumstances. States can reasonably suppose that their neighbours will, in general, act within the confines of the law. This aspect of State behaviour has been extensively analysed in terms of game theory, which analyses the ways in which actors in multiplayer situations where the reactions of other players are not certainly known in ­advance can best maximize their gains or minimize their losses. While the simple models of game theory6 seem to me ill-suited to the analysis of governmental decision-making, spread between different departments and subject to trade-offs across the whole range of governmental activity, the techniques

6 Among which the Prisoner’s Dilemma, and the minimax method devised for card players by James Waldegrave in 1713, are perhaps the best known.

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offer some interesting insights into how compliance with the law might be analysed if government were a rational process. Perhaps because some violations of international law are so dramatic, there is a tendency to suppose that States only obey it when they choose, and that the hard calculations of realpolitik give little weight to the law. That view, particularly widespread among those whose vision is unsullied by any knowledge or experience of the matter, is hopelessly wrong. If it were possible to quantify breaches of the law, giving points to each transgression of speed limits or parking offence, each technical assault in a crowded commuter train, each theft of office paper clips and pencils and computer time, each slander in home or school, and so on—not to mention the murders, rapes, burglaries, and woundings that are the stock in trade of every local newspaper, one might have a useful index against which the score for international law-breaking could be measured. But the fact is that, while wars and unarrested international villains are quite properly given much prominence, they no more indicate global lawlessness than riots, unlawful strikes, and unarrested national villains indicate domestic lawlessness. My guess is that the extent of compliance with international law is in fact significantly higher than the extent of compliance with many, perhaps most, national legal systems. Why? One reason has been given. International law is made by States to serve their interests, so it is likely that it will be in their interest to comply with it. A second powerful reason for compliance is caution. We speak of States acting. States do not, of course, act: people act for them. Most of the time the people acting for States are not tyrants or charismatic leaders: they are ordinary men and women holding down jobs in the civil service and hoping to be promoted, or at least not to be sacked. Complying with international law is almost always a safe option. It is a good answer, when anyone asks why a particular policy or action was implemented, to say that international law required it. Occasionally a bold step unjustified by the law may succeed and be applauded; but few are tempted to take the risk. As anyone who has any familiarity with the great machines of government will know, the functionaries who crave power are far fewer than those who crave immunity and a quiet life. There is an interesting field of inquiry here. Moral philosophy subjects human behaviour to searching scrutiny, pressing hard the analysis of motives and reasons and of intended and unintended consequences. On rare occasions, individuals consciously deliberate upon the actions that they should take, or are called upon to justify their actions. But moral behaviour is never taught in such a systematic manner. All parents will know that young children are taught, by the use of various incarnations of the stick and the carrot, that there are acceptable and unacceptable ways of doing things, and that there comes

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a point when the painful drilling of a child’s demand to know ‘why?’ is met with a blank ‘because’. Irrational and perhaps unjustifiable as such edicts may be, they form the bedrock of behavioural norms, the foundation upon which individual choice is built. So it is with States. The new intern or desk officer in a Foreign Ministry ­rapidly absorbs the culture, and knows how things are and are not done. And because bureaucracies are run by those who have been promoted for their skills at playing by the rules, there is an immense inertial attraction in all government departments to playing by the rules. There is another point embedded in the one just made. States are governed by elites. I make no particular political point here. I am not saying that international law is necessarily a weapon of class oppression or anything of that kind. States must be governed; government can only be carried on by a small minority of the population (otherwise there is no-one left to be governed); and the commitments into which the State enters will inevitably reflect what that small minority thinks is best. Whether what is ‘best’ is determined by referendum, representative democracy and accountable government, corruption, or self-interest, depends upon how the State is organized. But the point is important because it underlies another reason for what is in many respects the extraordinary cohesiveness and effectiveness of international law. States themselves differ widely in their characteristics. There are States with massive industrial and commercial bases, able to defend themselves economically and militarily against practically all conceivable threats; States where the life expectancy is under forty years, and governments lack the money and the infrastructure to provide basic governance and social welfare to populations regularly decimated by starvation and disease; States run by corrupt and brutal governments or dynasties, practically indistinguishable from criminal gangs. Yet all of them can, and usually will, have their well-dressed representatives smoothly making the circuit of diplomatic receptions in New York or Geneva. All can, and often do, sit down in international conferences and hammer out treaty after treaty by negotiations in which national interests may appear to be no more diverse than those in a gathering where representatives of a drug cartel (whether wanted international criminals or decorated captains of industry) negotiate over the terms of supply. Why? Observation suggests that one reason is simply that those who govern States have much more in common with each other than they have with many, perhaps most, of the people whom they govern. This is particularly true of the officials or foreign ministries, who conduct a large part of the international dealings of the State, and above all of the lawyers who serve in those ministries. They undergo a déformation professionnelle. They are trained in the lawyer’s

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and diplomat’s arts, often in one of a handful of universities in Europe or North America; dispatched to international conferences and organizations, where they meet others who have read the same books, the same law reports and treaties and are perhaps alumni of the same university; set to the drafting of diplomatic notes, treaties, and reports, according to a style so homogenous as to delight the drafter of a medieval book of court forms. To a significant degree they think alike and act alike. And international law is their lingua franca, the vehicle for their discussions, and the optic throughwhich they view the world. Little surprise that officials the world over should align themselves with the view that international law, their professional calling and livelihood, should be taken seriously. I exaggerate, perhaps: but not much. A further reason for the general observance of international law is the nature of the interest of governments in it. Their interests are long term; and they are varied. Governments are repeat players in international relations. Each decision they take must make sense not only in isolation, in the short term, but also in the long term. A government-run ‘buy locally’ campaign may have the short-term advantage of assisting domestic industry and agriculture. If, however, the consequence is that some months or years later trading partners whose exports to the State dried up because of the campaign retaliate by prohibiting imports of manufactured goods from the State, the advantage is likely to be outweighed by adverse effects—as it may if other States are encouraged by the campaign to put aside their international trading obligations and discourage imports from all States. Again, a government that is strenuously defending claims that it has in some way mistreated a foreign investor will be mindful of the fact that there may soon be a claim by one of its companies against a foreign government, and that the language of its defence may be quoted against that company. Consistency of behaviour is highly prized; and because of the way in which international law is formed, the balance of advantage for a State is likely to lie in consistently complying with it. While it is often said that politicians rarely look more than four or five years ahead, their horiz ons being bounded by the date of the next election, that is not true of the civil servants who run the day-to-day business of international relations. Their view of the interests of the State is usually close to that of the immortals. They know that a breach of ­international law today may well be cited against them in months or years to come. Similarly, the variety of a government’s interests weighs in favour of compliance with international law. If restrictions on imports from a particular State make it less likely that the restricted State will permit use of its ports and

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a­ irports for the replenishment of military vessels and aircraft in some future conflict, that is an important argument against imposing the restrictions. Any government contemplating a violation of its international legal obligations needs to consider the long-term impact upon its relations with all States across the whole range of international relations. There is likely to be a price to be paid for violations; and it is not easy to foresee when and where that price will be exacted. In most cases it is preferable to obey the law and sleep soundly. This point is often made by referring to the inter-dependence of States in the modern world. No State is so completely self-reliant that it can afford to offend, and invite retaliatory action from, other States by acting in disregard of its international commitments—though in particular circumstances it may decide that the advantages of non-compliance justify the risk of adverse consequences. The point is obvious, and applies to the social rules that hold any society together. The point does, however, have its limits. What has been said is true of governments as players in international relations, and also of international organizations. But earlier in this chapter I made the point that international law was now the concern also of companies and individuals. Most companies tend to have a much narrower range of interests than most States (there are no doubt exceptions, if multinational conglomerates are compared with tiny States dependent upon a handful of export products). Ultimately, companies are interested primarily in money. Individuals tend to have neither the breadth of interest nor the long-term views of States. There is, accordingly, much less of a restraint upon the manner in which companies and individuals pursue their interests in international law. For example, a company claiming compensation for the violation of its rights under an investment protection treaty has every reason to pitch its claim at the highest level. It has no fear that its words will later be cited against it, because it can never find itself in a position where it is called to account for the treatment of foreign investors. This asymmetry in certain branches of international law, which results from the fact that companies and individuals litigate against States on a footing of juridical equality, will, I suspect, distort the development of international law. It will remove a natural brake on the development of legal doctrine, permitting tribunals to develop the law rapidly in certain areas, with the possible consequence that States may rein in the rights of individuals and companies to litigate against them. 1.7 Why Should People Comply with International Law? I have left hanging the question, why should States (or more exactly, the people who run them) comply with international law? This is not a question that

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matters much to States. As I explained above, there are good explanations of why States operate in accordance with the normal rules of international intercourse, and those explanations do not depend upon a fundamental basis of obligation that renders rules of international law ‘binding’. The question seems to have arisen only for the sake of symmetry. People ask, particularly during civil wars and coups, why government decrees or parliamentary laws should be obeyed. The answer is always given in terms that seek to legitimize those in power: you should obey me not simply because if you do not I will tell the police to arrest you or the army to kill you, but because lawful authority is vested in me. Asked how I came by that lawful authority, I may say that I had a mandate from the people, or from God, or from the previous monarch. The history of the answers to the question makes up a large part of the history of political philosophy. The situation is similar in the case of international law. In the distant past, and indeed up to the Middle Ages in Europe, international law was widely regarded as in some way ordained by God. Kings were God’s anointed; an attack on the King’s representative was tantamount to an attack on the King himself; hence representatives were inviolable. There we have the seeds of the legal doctrine of diplomatic immunity. Treaties were commonly sworn before God, and their observance was accordingly a matter of religious obligation; hence the legal duty to observe treaties. Many examples could be taken. This essentially theological view of the rules applicable between rulers, and later between States, persisted in Europe into the sixteenth century. The tradition, rooted in a combination of Roman law and the theologies of Augustine and Aquinas, is most evident in the works of the Spanish writers such as Vitoria and Suarez. As the secular powers waxed and began to eclipse ecclesiastical powers, writers such as Hugo Grotius began to shift to a more secular idea of natural law, a necessary order of society that was inherent in the natural order of the world. If the early writers might be said to answer the question, ‘why should rulers obey the Law of Nations?’ by saying that God has ordained it, those who adopted this increasingly secular view would say, because the natural order of the world demands it. This development was coupled with a growing prominence given to treaties and the customary law of nations, by writers such as Alberico Gentili and Richard Zouche. Alongside the principles derived from the natural order of things, the commitments that States freely made in the form of treaty and customary law also defined the rights and duties of States. International lawyers up until the end of the eighteenth century tended to position themselves on a spectrum according to the relative importance that they accorded to the law of nature on the one hand and to customary international law and treaties on the other.

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Changes in perspectives and modes of thought are characteristic of ages rather than of particular dates. Perspectives emerge slowly, and they never entirely disappear, no matter how faint their echoes may be. The critical change from the earlier traditions came with the rejection of the idea that there was a natural order, whether ordained by God or otherwise, that entitled rulers to rule and obliged their subjects to submit. That rejection, epitomized in the ­famous words of Thomas Rainsborough in the Putney Debates during the English Civil War that ‘every man that is to live under a government ought first by his own consent to put himself under that government’, was clearly evident in the seventeenth century challenges to the divine right of kings. It reached its apotheosis in the late eighteenth century in the American and French revolutions, and the idea of consent as the basis of the authority of government became firmly rooted. The parallel development in international law shifted the explanation of its binding force onto the notion that States had consented to be bound by international law, through participation in the making of customary international law or treaty law. That notion was refined throughout the nineteenth century, under the influence of the curious notion of the ‘will’ of the State. By the end of that century the idea was firmly established that the authority of international law derived from the fact that States had—or were to be treated as if they had—consented to be bound by its rules, and not from any external source such as the ‘will of God’ or ‘the natural order’. That perspective, often described as the ‘positivist’ approach to international law, was by no means revolutionary. It was a descendant of much earlier views that gave prominence to the role of custom and treaties in the Law of Nations. But it was important because it slackened the bonds that held international law and theology or natural law theory close together. This change, like all doctrinal changes, was of course a conscious shift in political perspective. It was not that international lawyers came to realize that they had been mistaken as to the theoretical basis of obligation. Rather, they rejected the idea that those claiming the right to exercise power and authority could rest their claims upon appeals to the will of God or to the natural order of things, which the powerful have always had little difficulty in discerning. The shift in perspective was made in order to effect a shift in political power. Priests and divinely appointed kings, out: professional politicians and civil servants, in. International law in the twentieth century was understood and developed largely on the basis of this positivist outlook. States made new laws by agreement. States that had plainly not consented to be bound by certain rules, such as newly independent States emerging during the period of decolonization,

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a­ sserted the right to decide whether or not they would subscribe to them. Treaty regimes, such as that which created the European Community, were regarded as matters for Member States only, so that non-Members could not be obliged to recognize the organization or regime created by the treaty. Yet throughout the twentieth century the natural law tradition remained as a basso continuo underlying international law. It came to the fore in developments such as the Nuremburg war crimes tribunals and the notion of human rights law, and also in the resurrected idea that there are some rules in international law (the rules of jus cogens or peremptory rules of international law, as they are known), that are binding on all States regardless of whether or not the States have consented to be bound by them. In essence, positivists say that a State is bound by rules of international law because it has signed up to them, either literally in the case of treaty rules or metaphorically by the State’s participation in the making of customary law. That has been the dominant ideology of international law throughout the last century. The practical significance of this ideology upon the day-to-day operation of international law is not entirely negligible, as will be seen when I explain the role of consent in the making of international law; but it is small. The most important characteristic of twentieth century international law was its bureaucratization and the pervasive colouring of inter-governmental dealings by the concepts and vocabulary of international law: the nature of international governmental dealings is, as they say, subdued to what it works in, like the dyer’s hand. Those who actually engage in international lawyering are troubled seldom and little by the question of the theoretical basis of obligation. James Brierly, who devoted one of his more substantial articles to the question of the basis of obligation in international law, wisely observed that ‘we are all of us obliged to act as if we were convinced of the reality of an objective order, both physical and moral, if we are to go on living and acting at all’.7 Quite what the theoretical basis of that objective order might be is a matter that can in practice usually remain a mystery. Indeed, it is unhelpful to start from the question, what gives international law its binding force? This way of asking the question often signals a misconception as to what international law is. It suggests that international law is something outside States, an external body of rules imposed upon States against their will. This is not a helpful perspective for anyone wishing to understand how international law works. It makes much more sense to say that international law consists of that body of rules that States have decided are binding. 7 ‘The Basis of Obligation in International Law’, in H. Lauterpacht and C.H.M. Waldock, The Basis of Obligation in International Law (Oxford: Clarendon Press, 1959). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Let me explain that point. All social life runs on the basis of regularities of behaviour and response. We expect drivers in the United Kingdom to keep to the left-hand side of the road; we do not expect that if we say ‘how are you’ we will be met with a punch in the mouth; we expect that the deliberately scratching of someone’s car will be met with an emphatic protest; if we agree to meet someone for coffee at a certain time and place, we expect them to turn up as agreed; some of us still expect people to queue for buses in an orderly manner. Knowing the likely behaviour and responses of other people allows us to function effectively as a society; and understanding the rules and the consequences of breaking them allows us to plan our lives. Breaches of some of the rules may elicit a frown or a rebuke from others; breaches of other rules may result in a slap or a punch; and breaches of some rules may result in a visit from the police and a fine or spell in prison. We know that some rules are more important than others—or at least, that violations of different rules are likely to lead to different results. (It is not, however, the case that the rules of criminal law are always the most serious: we may regard the seduction of a spouse as a matter of greater importance than a parking offence, even though the latter is a crime and the former is not.) There are, then, many regularities in social behaviour that map out our expectations of the way that we and our neighbours should behave. And we, as a society, regard some of those regularities as so important that compliance with them should not be a matter of individual choice, or even a matter to be settled exclusively by the wrongdoer and his neighbours, but as matters sufficiently important to warrant the punishment of infractions by invoking the apparatus of the Law and the repressive power of the State. If we adopt the same perspective on international law, we can say that the rules of international law are those regularities in international behaviour that are regarded by the community of States as being so important that they do not accept that each State is entitled to decide freely for itself whether or not to comply with the rule. Thus, we should not ask, what makes international law binding? Rather, we should say that international law consists of those rules that are treated as legally binding. The practical significance of the basis of obligation for the daily practice of international law is limited, but its significance for the broad development of international law is immense. During the twentieth century the general assumption was that States are equal and independent and entitled to be free from foreign intervention in their internal affairs. That assumption is fast eroding. In the late twentieth century, and particularly since the fall of c­ ommunism in eastern Europe in the 1990s, the idea of a pax Americana began to gain hold— not least because the idea was implemented in a policy of intervention in various States that were regarded by the United States as having strayed intolerably Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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from the straight and narrow. The interventions, sometimes involving uses of force as, for example, in Grenada, Panama, Afghanistan, Kosovo, and Iraq, had a variety of motivations and justifications, and should not be r­ egarded as uniform instances of a single view. But there is underlying them a uniform view: that the United States has, in its own eyes, the right and the responsibility to impose the law in certain circumstances, and to do so ­unilaterally if ­necessary. The era of the independent sovereign State is drawing to a close. If this idea finds a coherent theoretical basis and is applied in the practice of States, it will produce a very significant shift in the nature of international law. 1.8 How International Law is Invoked and Applied I have said something about the scope of international law, and about the main ways in which it is made and the reasons for the widespread compliance with it. I turn next to the question of the manner in which it is invoked and applied. The application of the law proceeds in a way that is more subtle than is often assumed. As I observed above, government lawyers, and also lawyers in corporations and other organizations that operate internationally, tend to share a common intellectual background and to look at the world in much the same way. They see the world as made up of sovereign States, in principle coequal before the law, with boundaries fixed and jurisdiction circumscribed by the law; they see links of nationality and territory as significant markers of the extent of States’ legitimate interests, and so on. Thus, the international legal system and its principles and concepts become the framework for thinking about and practising international diplomacy. Given this shared view of the world, and shared understanding of international legal principles, the invocation of the law can be a gentle and allusive process, even in the midst of crisis. It usually proceeds in practice by a process known in the field of linguistics as illocution: that is, approximately, the implicit meaning that the speaker intends to communicate when saying something. This can be illustrated by a domestic analogy. 1.9 The Domestic Analogy Suppose that I, as a university professor, lend a book to a student. The book is not returned, and I ask for it back. If it is still not returned, despite increasingly urgent informal requests, I might write to the student on University ­notepaper. By doing so I can imply, or may expressly state, that within the University I am a Faculty member and the borrower is a student, bound by University

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r­ egulations on good conduct and so on. My request—what I want the student to do—remains the same; but shifting it into the University context by means of such signals has the effect of suggesting that I regard the University as in some sense party to the argument, and on my side. If that fails I may turn the ratchet further, and invoke formal University disciplinary procedures. This will force the University to take a stand; and if I am right in thinking that the regulations are on my side, the University will take my part in the argument. That, in turn, may lead bystanders to shy away from taking the part of the student. They may believe that a community needs rules, and that rules should be obeyed; or they may themselves have lent the student books and fear for their return; or they may simply fear being branded by the University authorities as collaborators with the student. In these ways, the shift into the University context increases my power as against that of the student. Moreover, the context of the dispute is redefined. The student may previously have argued that he needed the book for an essay, whereas I had no urgent need for it, or perhaps had a second copy. Such moral arguments are powerful in the straight request/refusal context; but they lose much force, and may be regarded as relevant (if at all) only to the mitigation of any punishment in the disciplinary context. If these steps fail, I may hint at the possibility of civil legal action, or of turning the matter over to the police as a case of theft. This, too, may be done by the use of language. The mere use of a term such as ‘court’ or ‘theft’ in exchanges with the student is enough to indicate the change of context. If police or court action is taken, the new context again alters the position. The moral arguments become totally irrelevant to the question of guilt on a theft charge. Support from bystanders is likely to ebb still further when the police become involved. And my power is greatly increased by having the police and the courts on side. There are a number of points to note. First, all of these shifts in the context of the dispute, in the factors and types of argument that are relevant, and the relative power of me and of the student, have been effected through the use of language. Indeed, all of the stages described above could have been traversed in the course of a single oral conversation. There is no need actually to have the police or the University proctors turn up at the scene: it is enough to allude to their existence and possible involvement. The power of the system, and power within the system, is a function of how the systems are structured and organized, and not immediately dependent upon actual exercises of power. There are of course limits to this. If the power in question is rarely or never exercised that will naturally diminish the force of the threat. If the student believes that

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the police are likely to tell me that they have better things to do than chase after the books of socially dysfunctional professors, my threat to involve them will carry little weight. Nonetheless, it is by no means the case that the persuasive power of the law depends upon the immediate availability of some means of enforcement. Second, the shifts in context were a matter of choice. There is no reason why I must make the dispute a matter of University discipline or of criminal law: that choice is mine. Moreover, the rational choice in almost every context is to handle a dispute at the informal, ‘social’ level, rather than translating it into a legal context. The choice is, however, one that can be made unilaterally. If I choose to try to involve the police, the student cannot insist that the dispute be handled without involving the authorities. There is a further lesson to be drawn from the domestic analogy. If the detention of the book does go before a University tribunal or a court, then whatever the outcome of the proceedings the authority of the tribunal or court is likely to be enhanced. Similarly, whatever rules are applied by the tribunal or court, the authority of those rules is also likely to be enhanced. The mere fact that the tribunal and the rule are used gives them greater prominence, and makes their existence more of a factor in the calculations of members of the community. This analogy broadly holds good on the international plane; and the 1990 Kuwait crisis offers an example. On 1 August 1990 Iraq invaded Kuwait, and the matter was quickly taken up by the UN Security Council. Many statements were made in the Security Council concerning the invasion. Typical examples include the following, all drawn from Security Council debates on the Kuwait crisis during August 1990: Mr Fortier (Canada) There can be no question that the brutal Iraqi aggression against Kuwait is totally unacceptable and represents a flagrant violation of the Charter of the United Nations as well as international law. … Mr Redzuan (Malaysia) … Malaysia considers the principles embodied in the Charter of the United Nations as sacrosanct in the conduct of relations between sovereign States. … Mr Blanc (France) The magnitude of these measures is justified, in the view of my Government, because of the unacceptable nature of Iraq’s military aggression, which is a major violation of international law and a serious threat to international peace and security. …

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Mr Rasi (Finland) The acquisition of the territory of another State by the use of force contradicts one of the most basic and firm principles of international law. … Mr Al-Anbari (Iraq) … The Iraqi Revolutionary Command Council stated that the former colonizers had not left our region without first having undertaken certain tasks. In the past, the Arab nation was one and indivisible. After independence was gained by the Arab States the many countries of the region were the result of foreign colonizers carving up the territory of the region. The c­ olonizers re-drew the geopolitical map of the region in order to weaken the Arab States. That did indeed split the Arab nation and made it difficult for it to speak with a single voice…. In that way a part of the region cherished by Iraq—Kuwait—was separated from Iraq. This was our country’s area of strategic access. The colonizers did not hesitate to do in Iraq what they did in other countries of the region. That is why the Iraqi Revolutionary Command Council decided to restore to our country the portion taken away from it, thus re-establishing the eternal, indestructible unity of our country. The pattern of the argument is clear. The States opposed to Iraq cited international law in support of their case. Iraq defended its actions on the basis of political and historical arguments, rather than on the basis of international law. Each side sought to locate the debate in the normative framework that best supported its case, and within which it had the greatest power. Notice that this explanation has not had to call upon any element of coercion in order to explain why the law is useful or why it is obeyed. In my domestic analogy, the law was brought to bear solely by the use of language in a face-to-face discussion. There is, however, one significant difference between the national and international legal orders. In national law it is generally true that individuals ultimately have the right, and accordingly the power, to insist upon the involvement of the authorities—the police, the courts, and so on— in their disputes. No international tribunal has compulsory jurisdiction. Even the discussion of an international dispute (let alone the taking of action to resolve it) by an organization such as the United Nations or NATO is a discretionary matter. States need to lobby and persuade in order to have the matter taken up. While the co-operation of the other party is not needed to shift the context, the co-operation of the members of the organization is. And if it is desired to refer the matter for judicial settlement in an international tribunal,

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that reference can only be made with the agreement, in some form or other, of both disputing States. This weakens the analogy, but not seriously. Most law—domestic and international—is complied with as a matter of choice, not through fear of sanctions. International law does, however, have a range of sanctions, many of which do not depend upon action through international courts and organizations. States may respond to violations of international law by imposing economic or other sanctions on the wrongdoer, which may have much greater impact than any judgment that a court might hand down. If international opinion turns against a State, it may pay a heavy price. Credit becomes more difficult to obtain; trade links and concessions may be withdrawn; the State may be diplomatically isolated, and its attempts to use international organizations may be opposed. And in extreme cases, where a wrongdoer threatens to attack another State, the right to use force against it in self defence exists. It might be said that such measures allow strong States to deter wrongdoing on the part of weak States but that no such measures can constrain strong States. That is not so. There are no States so strong that they are wholly immune to all of the pressures that may be brought to bear upon them. The military power of the United States cannot entirely insulate it from the economic power of OPEC or the European Union, for example; and there have been several intense trade disputes between the blocs. International and domestic political pressure may require that a government act legitimately within the limits of international law. Ultimately, a State set on disregarding the law may decide that the risks and potential sanctions are outweighed by the probable benefits, and choose to violate the law, just as an individual may choose to violate domestic law. That does not invalidate the law. All societies tolerate a certain level of lawbreaking, which is the result of the balance between the resources that the society is prepared to put into preventing the crimes and the social costs of the crimes themselves. If every citizen were accompanied everywhere by three police officers, crime statistics would no doubt fall, but not in proportion to the increase in the cost of policing. What matters is that on the overwhelming majority of occasions the overwhelming majority of people obey the law. The law is not an end in itself. It is an instrument for achieving certain social goals. There is no particular merit inherent in complete compliance with the law. The law succeeds if it secures enough compliance to enable civilized social life to proceed and if its enforcement is sufficiently effective, impartial, and n ­ on-discriminatory to satisfy the basic demands of justice. That is as true ­internationally as it is within any national society. […] Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

Postscript There is a tendency at present for international lawyers to write of the growth of NGOs and other non-State actors, and of the decline of the nation-State, with the gleeful enthusiasm of a cartoon character sawing off the tree branch on which he is sitting. Much of the enthusiasm derives, I suspect, from a wish to appropriate non-State actors and make them a part of international law, to keep the subject at the front of international concerns. My own view is slightly different. It is undeniable that the influence of the individual nation-State is declining. Global interdependence is increasingly pervasive and obvious as improved communications and the lessening of trade barriers encourages businesses to obtain supplies, employees, and funds abroad. Transfers of powers to international and supranational organizations such as NAFTA, the WTO, and the EU entail a corresponding reduction in the powers of national governments. Within States, pressures for decentralization and the devolution of power also drain power from the central government. And decisions taken by large corporations have direct effects upon the daily lives of countless millions of people that are as important in their way as the taxes and legislation that emanate from their respective governments. It seems plain that the power of the State is in decline when it is measured in relation to the increasing power of other actors. The result, however, is not so much an expansion in the scope of international law so as to claim all these other actors as its own, but rather that the boundaries between international law and neighbouring legal subjects are breaking down. International lawyers share ground with others. And this trend will continue. But the most important point is that all of the ground occupied by international law is shared with others who are not lawyers of any description, but men and women in the vast range of other professions and businesses whose cumulative efforts shape the world. Lawyers have a contribution to make. They offer one way of going about resolving some of the most crucial problems that face the world. But it is only one way among many. There are many times when it is much better to call upon a politician, or a priest, or a doctor, or a plumber.

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PART 2 Sources of International Law

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Chapter 16

Arnold D. McNair, The Functions and Differing Legal Character of Treaties, 1930 Comment by Jill Barrett, Visiting Reader in the School of Law, Queen Mary University of London Arnold Duncan McNair (1885–1975) was a British legal scholar, legal practitioner, university teacher and judge. He began his career as a solicitor and was later called to the Bar. In 1935 he succeeded to the Whewell Chair in international law at Cambridge University, but only two years later left to be Vice-Chancellor of Liverpool University. He returned to Cambridge in 1945 to be Professor of Comparative Law. In 1946 he was elected as a judge of the International Court of Justice in The Hague, in succession to Sir Cecil Hurst, and was its president from 1952 to 1955. He later served as the first President of the European Court of Human Rights from 1959 to 1965. According to Sir Robert Jennings: McNair was a very good judge, a task to which his scrupulous scholarship and shrewd, cautious, practical sense were ideally suited. He seldom delivered an individual opinion, nearly always preferring to share a broad consensus. His clarity, good sense, and independence were shown by the fact that he twice reached a decision against the United Kingdom.a McNair’s many writings covered a wide field of international law. One of the most well-known is his seminal book The Law of Treaties, 1961,b republished in 1986, and still frequently cited by today’s leading writers in this field.c Here we feature his much earlier ground-breaking article The Functions and Differing Legal Character of Treaties, published in 1930. In it he argues that the treaty is a “sadly overworked instrument”, and that, rather than attempting to lay down

a RY Jennings, ‘McNair, Arnold Duncan, first Baron McNair (1885–1975)’, Oxford Dictionary of National Biography (Oxford University Press 2004). b Second edition (OUP 1961). The first edition was published in 1938. c For example, it is cited 11 times in R Gardiner, Treaty Interpretation (2nd edn, OUP 2015) [See Chapter 38 of this Anthology], and many times by various authors in D B Hollis (ed), The Oxford Guide to Treaties (OUP 2012).

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general rules applicable to all treaties, greater attention should be paid to their different functions and legal character. He suggested that treaties fall into four categories: conveyances; contracts; law-making (subdivided into constitutional and pure law-making treaties); and charters of incorporation. He did not go on to formulate different sets of rules for each category, but suggested areas where logically the rules should be different and where, to some extent, practice already reflected this. However, the Vienna Conventions on the Law of Treaties (1969, 1978 and 1986)d did not categorise treaties by function. They essentially set out a single legal framework for all treaties, albeit that some distinctions are made within a few particular rules; for example, there are two special rules relating to international organisations.e While the simplicity of a single framework for all treaties is in many ways a great strength, it is incomplete and does not entirely accommodate developments in treaty practice of recent decades, especially the growth of multilateral standard-setting treaties with secondary law-making organs, and practice regarding objections to reservations to treaties. The questions raised by McNair in 1930 remain valid today, and writers addressing them in a contemporary context may still draw inspiration from his analysis in their quest to find solutions.f d Vienna Convention on the Law of Treaties 1969 (1155 unts 331); Vienna Convention on Succession of States in Respect of Treaties 1978 (1946 unts 3); and Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986 (25 ilm 543). e Vienna Convention on the Law of Treaties 1969, Art 5 and Art 20(3). f Recent examples of authors who have expressly made use of McNair’s analysis in this article: D Hollis, ‘Defining Treaties’, and C Brolmann, ‘Specialised Rules of Treaty Interpretation: International Organizations’ in D B Hollis (ed), The Oxford Guide to Treaties (OUP 2012), at 36–7 and 507, respectively.

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A. McNair, ‘The Functions and Differing Legal Character of Treaties’, (1930), 11 British Yearbook of International Law, pp. 100–18.* Reproduced with the kind permission of Oxford University Press.

The Functions and Differing Legal Character of Treaties1 Arnold D. McNair The following remarks are prompted by the belief that inadequate attention has been given by students of International Law to the widely differing functions and legal character of the instruments which it is customary to comprise under the term “treaty”. It is suggested that this branch of the law would be in a more advanced state if more writers on the subject would study these essential differences and endeavour to provide for them instead of attempting to lay down rules applicable to treaties in general.2 Most writers recognize and enu­ merate different kinds of treaties but either fail to realize, or only realize insufficiently, that these differences do not stop short at their contents but affect their legal character as well. No attempt will be made here to construct a new classification of treaties. I shall content myself with pointing out by means of a few illustrations the essential juridical character of certain types of treaties and the legal consequences which seem to me to follow. The internal laws of the modern state provide its members with a variety of legal instruments for the regulation of life within that community: the contract; the conveyance or assignment of immovable or movable property, which may be made for valuable consideration or may be a gift or an exchange; the gratuitous promise clothed in a particular form; the charter or private Act of Parliament creating a corporation; legislation, which may be constituent, such as a written constitution, fragmentary or complete, or may be declaratory of existing law, or create new law, or codify existing law with comparatively ­unimportant changes. Further, though rarely, we may find a constitutional document which closely resembles the international treaty itself, for instance, Magna Carta.3 * [Editors’ note: All footnotes in the original text re-started at No. 1 on every page. These have been amended to continuous order for the purposes of the present Anthology]. 1 Based on a lecture delivered at the request of the University of London on May 7, 1930, and upon lectures delivered at the Institut Universitaire des Hautes Études Internationales at Geneva. 2 For a recent survey of existing classifications, see Rapisardi-Mirabelli in Révue de Droit International et de Législation comparée, 3rd Ser., Vol. iv (1923), pp. 653–67. 3 On its legal character, see McKechnie, Magna Carta (2nd ed.), pp. 104–7. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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It would not be suggested that all these differing private law transactions are governed by rules of universal or even of general application, and yet such is the underlying assumption of international lawyers in dealing with the only and sadly overworked instrument with which international society is equipped for the purpose of carrying out its multifarious transactions. Thus, if international society wishes to enact a fundamental, organic, con­stitutional law, such as the Covenant of the League of Nations was intended to be and in large measure is in fact, it employs the treaty. If two states wish to put on record their adherence to the principle of the three-mile limit of territorial waters, as in the first article of the Anglo-American Liquor Convention of 1924, they use a treaty. If further they wish to enter into a bargain which derogates from that principle, again they use a treaty. If Denmark wishes to sell to the United States of America her West Indian possessions, as she did in 1916, or if Great Britain wishes to cede Heligoland to Germany in return for a recognition of certain British rights in Africa, as happened in 1890, they do so by treaty. Again, if the great European Powers are engaged upon one of their periodic resettlements and determine upon certain permanent dispositions to which they wish to give the force of “the public law of Europe”,4 they must do it by treaty. And if it is desired to create an international organization such as the International Union for the Protection of Works of Art and Literature, which resembles the corporation of private law, it is done by treaty. Is it likely, on the face of it, that all these multifarious types of treaties can be effectively governed by the same system of rules, whether recruited from the private law of contracts or from elsewhere? The assumption that they are so governed is responsible, I venture to think, for a number of the difficulties which this branch of law has produced and which will only be removed as and when the essential differences between certain kinds of treaties are more widely appreciated. 1

Treaties Having the Character of Conveyances

There is a class of treaties called “transitory” (unfortunately, as Westlake points out,5 because their characteristic is the permanence of their effect), or “dispositive”; these are treaties whereby one state creates in favour of another, or

4 See, for instance, Article 7 of the Treaty of Paris, 1856, which admitted Turkey to participation “in the advantages of the Public Law and System (Concert) of Europe”. 5 International Law, Vol. i, Peace (2nd ed.), pp. 60, 294.

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transfers to another, or recognizes another’s ownership of, real rights,6 rights in rem, for instance, in particular, treaties of cession including exchange. In this class we must also place a treaty like that of 1783 between Great Britain and the new United States of America, whereby the former recognized the independence and the territorial limits of the latter and relinquished “all claims to the government, propriety, and territorial rights of the same”. Closely akin are treaties which confer upon one party real rights in the territory of the other, whether we choose to call those rights international servitudes or not.7 Not quite so closely akin are treaties which enable the nationals of one party to acquire, for instance, by purchase or by inheritance, or to retain, real rights in respect of land subject to the sovereignty of the other. Let us examine some of these treaties in the light of a war supervening between the two contracting parties. Great confusion—not by any means dispelled—has resulted from hasty generalizations to the effect that war abrogates all treaties between the parties. As late as 1815 we find Lord Bathurst writing to John Quincy Adams, the American Secretary of State, as follows: “Great Britain … knows of no exception to the rule that all treaties are put an end to by a subsequent war between the same parties”, though later in the same note he admits the possibility of the existence of certain irrevocable provisions in such treaties.8 So also President Polk, in his annual message of December 7, 1847, announced that “A state of war abrogates treaties previously existing between the belligerents”,9 and in 1898, upon the outbreak of the Spanish-American War, the Spanish Government announced that it held the same view.10 Phillimore11 tells us that “it was at one time an international custom that the Belligerents should, at the breaking out of war, make a public and solemn proclamation that the obligations of Treaties between them had ceased. That custom has become obsolete. In the place of it has arisen the general maxim, that War, ipso facto (von selbst), abrogates Treaties between the Belligerents ”. We know now that these generalizations are incorrect and that certain kinds of treaties survive a war, though suspended in operation during the war, 6

This is not the distinction which Grotius, De jure belli ac pacis, ii, xvi, 16, makes between pactum reale and pactum personale, though there is a note by H. Cocceius on this passage, cited in Fow v. Southack (1815) 12 Mass. at p. 148 (Scott, Cases on International Law (1922) at p. 468) which comes nearer: pactum liberatorium quo paaJ remissa aut transactio facta est, qua jltS ewtinctum reviviscere non potest. 7 See McNair in British Year Book of International Law, 1925, pp. 111–27. 8 Moore, International Law Digest, § 779, Vol. v, p. 383. 9 Ibid., p. 375. 10 Ibid., p. 375. 11 International Law, Vol. iii (3rd ed.), dxxx.

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and that certain other kinds operate during the war. It is common to base these exceptions to the general principle upon the intention of the parties at the time of entering into the treaty.12 I am not sure whether a better test will not be found to consist in an examination of the true juridical character of the treaty in question; but in any case it will be admitted that once the juridical character of the instrument is understood it will be easier to determine the intentions of the parties. For instance, the real reason why a treaty of cession, whether or not it forms part of a treaty of peace, is not, once it has been carried out, affected by a subsequent state of war between the parties is surely that the treaty has, like a conveyance, produced its effect and has ceased to have vitality; it remains a link in the title of the new owner of the territory but that is all; it creates no outstanding obligations; it was intended to, and did, transfer certain rights in rem from the old owner to the new one. Could it be suggested that the outbreak of war between France and Germany in 1914 abrogated the cession of Alsace-Lorraine by France to Germany by the Treaty of Frankfort of 1871? France might well have intended that the loss of Alsace-Lorraine should not survive a future war with Germany, but it is clear from the legal character of the treaty that the cession is unaffected by the outbreak of the war of 1914. Mr. Justice Washington in the case of the Society for the Propagation of the Gospel v. The Town of New Haven in 1823, uses language which is pertinent here: There may be treaties of such a nature, as to their object and import, as that war will put an end to them; but where treaties contemplate a permanent arrangement of territorial and other national rights, or, in their terms, are meant to provide for the event of an intervening war, it would be against every principle of just interpretation to hold them extinguished by the event of war. If such were the law, even the treaty of 1783, so far as it fixed our limits, and acknowledged our independence, would be gone, and we should have had again to struggle for both upon original revolutionary principles. Such a construction was never asserted, and would be so monstrous as to supersede all reasoning.13 (Italics mine.)

12 13

See, for instance, Hurst in British Year Book of International Law, 1921–2, pp. 37–47. United States Supreme Court, 8 Wheaton 464; Hudson, Cases on International Law at p. 967; Dickinson, Cases and Readings upon the Law of Nations, at p. 1115. For the claim of the United States to possess an interest in the overseas possessions of Germany ceded by her by the Treaty of Versailles, though not ratified by the United States, on the ground that it was an executed grant in favour of designated grantees (of which it was one) and required no formal assent by the grantees by convention, see Hyde in the American Secretaries of State and Their Diplomacy, Vol. x (C.E. Hughes), p. 240.

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The learned judge was, however, not dealing with the effect of the war of 1812 between Great Britain and the United States upon a cession of British territory to the new Republic (though clearly he would have regarded such a cession as presenting an a fortiori case), but with its effect upon the title to lands in one of the states which a British corporation was permitted by the treaty of 1783 to retain, which was confirmed to it by a treaty of November 19, 1794, and which had not been divested by any legislative act having validity superior to those treaties. “The termination of a treaty”, he says, “cannot devest rights of property already vested under it.”14 We must not confuse rights of sovereignty transferred by one state to another with rights of property which one state by treaty with another state permits the nationals of the latter to acquire in the territory of the former, but there is much in common between treaties which transfer real rights from one state to another and treaties which enable the nationals of one state to acquire and hold real rights in the territory of another. There is abundant judicial authority for the proposition last cited from Mr. Justice Washington’s judgment. We need only refer here to the judgments of Sir John Leach, Master of the Rolls, in Sutton v. Sutton15 in 1830, of Mr. Justice Cardozo of the Court of Appeals of New York in Techt v. Hughes16 in 1920, and of the Supreme Court of Kansas in State (of Kansas) v. Reardon17 in 1926. In the last two cases reciprocal privileges of the inheritance of land conferred by treaty upon the nationals of two contracting states were held to survive the occurrence of a war between them. It will be noticed that in the Society for the Propagation of the Gospel’s case and in Sutton v. Sutton, what was upheld was a proprietary right acquired before the outbreak of the war alleged to have abrogated the treaty giving rise to that right. On the other hand in State (of Kansas) v. Reardon the treaty dated from 1828, the war broke out in 1917, and the descent was cast in 1924; nevertheless the treaty was upheld as a continuing source of proprietary rights, namely, the right of the deceased’s alien (exenemy) heir to inherit and to sell the land and to withdraw the proceeds from the United States.18 14 15 16 17 18

Ibid., see also Marshall, C.J., in Chirac v. Chirac (1817) 2 Wheaton, 259, 277 (Moore, op. cit.,§ 780) “the treaty had its full effect the instant a right was acquired under it; it had nothing further to perform, and its expiration or continuance afterwards was unimportant”. 1 Russell and Mylne, 663; Scott, Cases on International Law (1922), p. 468. 229 N.Y. 222; Hudson, op. cit., p. 969. 245 Pacific Reporter, 158 (1926); 120 Kansas, 614; Annual Digest (McNair and Lauterpacht), 1925–1926, p. 438. It appears to be the view of the United. States Supreme Court that in point of permanence a treaty creating rights of personal status (e.g. of migration) is different; see Karnuth v. United States (1929) 279 U.S. 231, 49 Supreme Court, 274; Hudson, op. cit., p. 977.

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Treaties Having the Character of Contracts

We now come to an even more fundamental distinction, namely, that between treaties whose essential juridical character is that of the Contract, and treaties whose essential juridical character is that of Law-making or Legislation. This distinction is at least half a century old, but its full implications are not yet realized. Lauterpacht19 tells us that it was introduced into international law by Bergbolm (in 1877) and Triepel (in 1899) and that it is Oppenheim who is mainly responsible for familiarizing British and American writers with the conception. On the one hand we have the Vertrag or contract where the will of one party is different from that of the other, the contract (Vertrag) being here a means for achieving different and opposite ends. Thus while the purchaser promises to pay the money, the seller undertakes to deliver the goods. On the other hand, (we have) the agreement (Vereinbarung) which serves the purpose of realizing identical aims. I acknowledge that the Vereinbarung makes rules only binding two parties, but the modern multilateral law-making treaty, about which I have a good deal to say later, is merely the Vereinbarung raised to a higher power. The many contracting parties concur in the purpose of creating identical rules binding upon all of them. My main point in referring to the contrast between these two types is that the old treaty which predominated until the Congress of Vienna20 – treaties of peace, alliance, friendship, neutrality, guarantee, commerce, &c. – was essentially the Vertrag; whereas the modern treaty of rapidly developing importance is the multi-lateral treaty21 which has been concluded in large numbers during the last half century and particularly since the Great War and which often ­creates international unions, such as the Copyright Union, or international

19 20 21

This decision presumably overrules that of the United States Circuit Court of A ­ ppeals in John B. McCandless v. United States ex rel. Paul Diaho given on March 9, 1928; see ­McNair, ‘L, a terminaison et la dissolution des traités’, in Hague Academy Recueil des Cours, 1928, Vol. ii, at p. 505, though it is just possible that the relator’s Indian status makes a difference. See also the Chinese Exclusion Case, Hudson, op. cit. p. 1121; Moore, op. cit., v, § 780; Dickinson, op. cit., p. 828. Private Law Sources and Analogies of International Law (1927), § 70. I do not overlook such earlier treaties as those cited by Hyde, International Law, Vol. ii,§ 799, for the denomination of contraband. See Hudson, “The Prospect for International Law in the Twentieth Century”, in Cornell Law Quarterly, x (1925), at pp. 482–4.

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r­ égimes, such as that of Freedom of Transit, or partial international codes such as The Hague Conventions, and this modern type is essentially the Vereinbarung. I suggest that it is significant that the seed-bed of the traditional rules as to the formation, validity, interpretation, and discharge of treaties which swell the bulk of our text-books, too often written in slavish imitation of their predecessors, was sown at a time when the old conception of a treaty as a compact, a bargain, a Vertrag, was exclusively predominant and the dawn of the new multilateral treaty had not begun. The legal identity of treaties and contracts22 is almost universally assumed by writers upon International Law, while recognizing, of course, certain differences such as the effect of duress in the conclusion of a treaty and the effect upon a treaty of the rebus sic stantibus doctrine. I do not wish to challenge that analogy, but three comments may be permitted; (a) in the matter of form, it is undeniably true; the nearest approach in private law to the treaty in point of form is the contract; and (b) there being no sovereign body above the states, it is convenient to seek in the consent of the parties either the cause, or a condition, of the binding force of a treaty, though the effect of doing this may be at once to invest the treaty with the whole panoply of contractual notions;23 but (c) we must be on our guard against the assumption that, merely because treaties have borrowed from private law contracts their form and the source of their binding force, all the rules as to formation, validity, interpretation, and discharge of contracts are equally applicable to treaties.24 Can we find any embryo traces of the effect of a growing recognition of the distinction between our two types, the contractual treaty and the law-making treaty, upon the rules of International Law governing treaties? I think we can. I call them embryo traces, and the illustrations are still apt to be somewhat blurred, because the distinction is yet in its infancy. Let us examine some of them. Travaux préparatoires. A well-known cleavage exists between the British and the Continental rules upon the interpretation of a statute, in this respect that in England the courts are not allowed “to seek the aid of parliamentary debates, reports of Royal Commissions, or other preliminary documents, when 22 23 24

For an examination, see Lauterpacht, op. cit., § 69–79a. For the purposes of my point it does not matter whether the consent of the parties is looked upon as the source of the obligation of treaties or merely as a condition essential to the operation of some other source of obligation: see Lauterpacht, op. cit., § 25. Reglade in an article entitled “De Ia Nature juridique des Traités intemationaux et du sens de la distinction des traités-lois et des traités-contrats” in Revue du droit public et de la science politique, xli (1924), p. 505, asserts the necessity of regarding all treaties as contracts in order to ensure that they will be enforced by the internal law of the contracting parties.

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endeavouring to interpret the obscurities of a statute,”25 whereas the general legal tradition of Europe not only does not forbid but actively encourages this practice. Broadly speaking, the same contrast between the two schools exists in the permissibility of resort to the preliminary negotiations of the parties as an aid to the interpretation of their written contract.26 At the present moment international tribunals, in particular the Permanent Court, are busy deciding whether they are going to adopt the English or the Continental practice. It will suffice for the moment to say that international practice forbids resort to travaux preparatoires when the text of a treaty is sufficiently clear in itself, the implication being that, when the text is not clear, this source of interpretation may be invoked. At any rate, it constantly is invoked and is not ruled out in limine.27 Professor Quincy Wright28 detects the emergence of a distinction between contractual treaties and law making treaties in the degree to which a tribunal called upon to interpret a treaty will resort to the study of travaux preparatoires. He points out that a tribunal is more ready to take this step in the case of the former kind of treaties than in the case of the latter. It is open to doubt whether this tendency has yet become conscious and defined, but it seems to me to be intrinsically reasonable. In the case of contractual treaties the number of parties is usually small and they have been in close contact during the negotiation of the treaty; it is therefore not unreasonable, when the text is not clear, to seek from their preliminary negotiations guidance as to their common under-standing of an ambiguous expression. In the case, however, of a multilateral law-making treaty it is common to find that only a few of the more important signatories29 took part in the negotiation of the treaty, which, upon signature or ratification by them, was thrown open to the world for accession; in such a case it would be unreasonable to expect acceding states to be or to make themselves familiar with “the preliminary conversations of the original negotiators”.30 This was the argument advanced by counsel for the French Government before the Permanent Court in the discussion of their combined second and third advisory opinion upon the competence of the ­International Labour Organization, namely, “that Powers who took no part in 25 See Herbert Smith in Journal of Comparative Legislation, 3rd Series, Vol. ix, pp. 155–8. 26 Anson, Law of Contract (17th ed., 1929, by Miles and Brierly), p. 814. 27 See Hyde, “The Interpretation of Treaties by the Permanent Court of International Justice”, in American Journal of International Law, Vol. xxiv (1930), pp. 13–19, and Oppenheim, International Law, Vol. i (4th ed., 1928), p. 763 n. (1); Yu, Interpretation of Treaties (1927), pp. 138–202. 28 American Journal of International Law, xxiii (1929), pp. 94–107. 29 E.g. the Declaration of Paris, 1856. 30 Quincy Wright, op. cit., p. 104.

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the preparatory work were invited to accede to the Treaty as it stood, and did so accede”,31 without (it may be added) having had the text of the preparatory work communicated to them.32 Recognition of States and Governments by Treaty. Again it has been suggested33 that the question whether or not one state recognizes a new state or the new and revolutionary Government of an old state by entering into a treaty with it may depend upon the nature of the treaty. That the signature of a treaty to which these two states alone were parties would involve recognition seems probable unless recognition were expressly reserved. Professor Hudson has pointed out that the United States of America, both in signing and ratifying the International Sanitary Convention of June 21, 1926, considered it necessary to make an express declaration that in so doing they must not be regarded as granting recognition to any Government (e.g. that of the Soviets) not already recognized by them or as entering into any contractual obligation with a state having a Government unrecognized by them.34 But this precedent was not followed by the United States when ratifying the Peace Pact of Paris of 1928 on January 17, 1929, after the adhesion of the Union of Socialist Soviet Republics on September 6, 1928. Is it not possible that herein lies yet another distinction between the legislative and other treaties? The creation of a contractual obligation between state A and state B may be difficult to reconcile with the absence of mutual recognition, but there does not appear to be any valid reason why they should not both make a common declaration of intention or give their consent to a new rule of conventional law without according recognition to one another. Though not in diplomatic contact with one another, their mutual relations are governed by law and I see no reason why they should not add to or alter that law while maintaining their diplomatic aloofness. Legality and Morality of Treaties. Most text-writers tell us that a treaty is null and void if its object is either illegal or immoral, and proceed to give somewhat speculative illustrations, such as the encouragement of piracy or slavery or an unprovoked attack upon a third state or the appropriation of part of the open sea. But I suspect that time will show that this rule is only applicable to contractual treaties and ought not to be stated in terms applicable to treaties as a whole.35 31 Publications of the Court, Series B, Nos. 2 and 3, p. 41. 32 See Ehrlich in Hague Academy’s Receuil des Cours, 1928, Vol. iv, p. 128, n (1). 33 Hudson in American Journal of International Law, xxiii (1929), at p. 128. 34 Ibid., at p. 130. 35 Réglade, op. cit., p. 521 n., asserts one reason for distinguishing between traitéslois and ­traités-contrats to be that a traité-loi can be terminated by unilateral denunciation, whereas a traité-contrat cannot. I cannot, however, accept this view and consider that the

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Obsolescence. The clausula rebus sic stantibus. Has the development of this doctrine been influenced, or ought it to be influenced, by a correct appreciation of the distinction in legal character between the contractual treaty and the legislative treaty?36 Before attempting to answer these questions it is necessary to notice that the doctrine has a double aspect, legal and political, and to consider, so far as the former aspect is concerned, to what extent an analogy exists in the realm of contract. I suspect that in origin the existence of the doctrine to-day is due to the fact that at one time it formed the subject-matter of an express term in many treaties and that that is why we speak of it as a clausula. As we have seen, Phillimore37 suggests that the now exploded maxim that war abrogates all treaties has a similar origin, namely, that upon the outbreak of a war it was at one time customary for each belligerent to issue a declaration formally repudiating all treaty obligations with its enemy – a practice which some centuries ago was doubtless a true reflection of the scientific nature of the treaty obligations then subsisting. Fischer Williams, in his article in the American Journal of Inter­national Law38 on “The Permanence of Treaties”, examines the juridical character of the doctrine rebus sic stantibus and points out the analogy to the doctrine of frustration of contract in British municipal law. “Like that doctrine it is really a device by which the rules as to absolute contracts (obligations) are reconciled with a special exception which justice demands; in the words of Lord Sumner. It is a legal, not a diplomatic doctrine.” I am disposed to agree that, in reference to those kinds of treaties which are contractual not merely in form but in essential juridical character, the doctrine of frustration of contract affords a useful analogy upon the lines of which the rebus sic stantibus doctrine may be profitably developed by international tribunals.39 But I am not so sure that for treaties which are legislative rather than contractual in character this analogy indicates the true line of advance. It may be wiser to recognize that matter is not so simple as that: see McNair, in Hague Academy’s Recueil des Cours, 1928, Vol. ii, at pp. 528–33. 36 We can dismiss from consideration treaties regarded as transfers of property, because it is clear and is generally admitted that the doctrine can only apply to those articles of a treaty which arc still executory (see Oppenheim, op. cit., Vol. i (3rd ed.), p. 689, n. (1)). 37 Op. cit., Vol. iii (3rd ed.), max. 38 Vol. xxii (1928), pp. 89–104. See also Lauterpacht, op. cit., §§ 75–7, and Brierly in Transactions of Grotius Society, Vol. xi (1926), at p. 18. 39 It is worth noting that in 1882 the Swiss Federal Court in dealing with the doctrine in the course of a dispute between Lucerne and Argovie mentioned the theory of an implied condition as one of its alternative bases: Arrêts du Tribunal fédéral suisse, 1882, Vol. viii, p. 57. Fora survey of some decisions bearing upon the doctrine, see McNair, in Hague Academy’s Recueil des Cours, 1928, Vol. ii, pp. 471–4.

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the political or economic or social conditions which made a law-making treaty desirable have changed and that new law adapted to the new circumstances is required. In other words, it may be that the change of circumstances demands in the case of contractual treaties the exercise of the judicial function, and in the case of law-making treaties the renewed exercise of the legislative function. For instance, the Declaration of Paris of 1856 is a typical law-making treaty. The circumstances of modern maritime warfare and of modern economic life have combined to modify profoundly the last three clauses of that Declaration. The modern practice whereby a belligerent state assumes almost the whole responsibility for the feeding of its civil population as well as of its combatant forces has given to the conception of contraband a new meaning which virtually torpedoes the second and third clauses of the Declaration. Yet it is difficult to see how the analogy of the doctrine of frustration of contract would suffice to bring the Declaration of Paris into harmony with modern conditions, or would be the correct method of establishing its obsolescence if that were desired. The remedy is more likely to be a legislative one. To pursue the municipal analogy, where is there a municipal legislature since the days of the Medes and the Persians which does not find it necessary to repeal and alter its laws? This process forms a large part of the everyday work of every legislature, and in Great Britain we have a permanent Statute Law Revision Committee to deal with it in its formal and non-controversial aspect. In so far then as treaties are regarded as legislation, it is essential that international law should develop some rule, or international society some organ, whereby this process can be carried out. It is inconceivable that the codes which the League of Nations is endeavouring to produce at The Hague Conference, which opened in March 1930, upon Nationality, Territorial Waters, and the Responsibility of States for Damage done in their Territory to the Person or Property of Foreigners should be intended to last for all time without amendment.40 With regard therefore to true law-making treaties, whether the law they make is general or universal, some means of revision is an essential ingredient in an international society. But it seems to me unlikely that the rebus sic stantibus doctrine in its contractual form contains the germ of this means, because, as applied to the two classes of treaties above mentioned, the means required is a legislative function and is not to be deduced from the principles of the law of obligations. An attempt to apply to them the analogy of frustration of contract is not likely to produce useful results. With regard to pure law-making treaties, 40

See the work of the Preparatory Committee discussed by Reeves in American Journal of International Law, xxiv (1930), pp. 52–7.

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there can be little doubt that if the movement of piecemeal codification succeeds, the signatory states will sooner or later set up a standing commission of revision, which may perhaps receive power to make minor amendments upon its own responsibility and to prepare and submit major amendments to the signatories for their ratification. This process is already discernible in certain technical spheres.41 When, however, we turn to the contractual kind of treaties, those which embody bargains between the parties regulating their future conduct, or confer mutual rights of trading or fishing for their respective subjects, exterritoriality treaties, treaties creating rights in the nature of servitudes of a non-political nature, we are in the realm of different ideas. It is submitted that it is in the sphere of this kind of treaty that the rebus sic stantibus doctrine will find its development on the legal side. 3

Law-Making Treaties

It will be convenient to divide these treaties into two classes: (a) treaties creating Constitutional42 International Law, and (b) treaties creating or declaring ordinary International Law. (i) Treaties creating Constitutional International Law. One of the many objects for which the society of nations employs the treaty is to add to its Constitutional Law. A state can have Constitutional Law before it has a Constitution. England did. The society of states has not yet got a complete Constitution, but it has a great deal of Constitutional Law, both customary and conventional, which may fairly be so described though not universally adopted. The latter branch may be illustrated by the following: Hague Convention I for the Pacific 41

42

For instance, the Aerial Navigation Convention of 1919 created an International Commission for Air Navigation (upon which each of the signatories has at least one representative and some of them more than one) whose duty it is (inter alia) to receive and make proposals for the modification or amendment of the Convention. Modifications of the articles of the Convention themselves require the formal adoption of all the contracting parties, but modifications of the Annexes to the Convention, when assented to by “threefourths of the total possible votes” require no such adoption and become effective upon notification to all the contracting parties. Again, Article 422 of the Treaty of Versailles enables amendments of the Labour Part of the Treaty to be made by the International Labour Conference subject to ratification “by the states whose representatives compose the Council of the League of Nations and by three-fourths of the Members”. Moreover there are a number of non-political International Unions which have power to act by a majority in matters of current administration (see Sayre, Experiments in International Administration (1919), pp. 25, 30, 31). But for an obvious disadvantage I should prefer to call it International Public Law.

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Settlement of International Disputes, the Covenant of the League of Nations, the Statute of the Permanent Court of International Justice, and the Peace Pact of Paris. Together with these treaties which create international organs and general rules, I think we are justified in placing those multilateral treaties which from time to time settle the political affairs of a group of countries in a particularly solemn and semi-dictatorial fashion which likens the arrangement to a governmental act imposed from above upon the parties affected, rather than to a voluntary bargain between them. It seems to me that these constitutional treaties of both kinds create a kind of public law transcending in kind and not merely in degree the ordinary agreements between states. What evidence is there of the possession, by treaties of these two kinds, of this peculiar juristic quality so as to justify us in placing them in a class by themselves? There are some traces among English text-writers of a recognition of a body of international public law possessing a peculiar sanctity and degree of permanence. Phillimore43 writes of certain treaties as incorporating “by the common consent, express or tacit, of all states concerned in its assertion and maintenance a great public principle (italics his) into the International Code”. In the writings of Westlake, although it is believed that he nowhere expressly formulates the doctrine of the existence of an “International Code” or a public law transcending in kind and not merely in degree ordinary agreements between states, there is implicit the notion of the special character of certain treaty stipulations. This is particularly so with regard to treaties establishing the neutralization of a state or of a portion of a state’s territory. He speaks of such treaties as “a part of the permanent system of Europe, only liable to be affected by one of those great revolutions which disturb that system at long intervals”.44 Again in discussing transitory or dispositive treaties and the effect of the rebus sic stantibus doctrine upon treaties creating servitudes, he speaks of “the Swiss, and European because Swiss, interest secured by the neutrality of Northern Savoy, which we must therefore hold to be obligatory on France as the successor in that region”.45 Later he speaks of the “servitude or easement … created in certain districts of Savoy, as a system of permanent neutrality created for the benefit of all Europe”.46 Although there have been several wars involving upon opposite sides some of the parties to the Vienna settlement of

43 44 45 46

Op. cit., Vol. iii, dxxxi (p. 796 in 3rd ed.): “That principle once incorporated … revives with Peace, or rather remains unaffected by War waged upon grounds unconnected with it.” International Law, 2nd ed., Vol. i, Peace, p. 30. Op. cit., at pp. 61, 62. Op. cit., at p. 297.

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1815, it is never47 suggested that the neutralization of Switzerland and of certain supporting territory not Swiss has thereby been abrogated. I suggest that we can detect two practical consequences which flow from the recognition or nascent recognition of this principle. The first is that treaties belonging to this class are not abrogated by the outbreak of war between a large number or all the contracting parties. The second is a tendency for them to produce exceptions to the rule that a treaty cannot confer benefits or impose burdens upon third parties: pacta tertiis nee nocent nee prosunt. (a) Effect of War. It is not suggested that the outbreak of war -even involving all the parties who sign and ratify or subsequently accede – would abrogate The Hague Conventions issuing from the Conferences of 1899 and 1907. The customary explanation of this fact, namely, that they manifest the obvious intent of the parties that they should exist during war, is inadequate because three of these Hague Conventions (Pacific Settlement, Employment of Force for the Recovery of Contract Debts, and Opening of Hostilities) contain rules applicable to a state of peace. Similarly, no one would, I think, suggest that the continued neutralization of Switzerland rests upon the happy accident that, of the parties guaranteeing it, only Spain, Sweden, and Switzerland herself were not belligerents in the Great War. Moreover, the survival de jure since that war of the two treaties guaranteeing the neutralization of Belgium is expressly recognized by the unratified treaty signed by Belgium, France, Great Britain, and Holland, on May 22, 1926, in which it was agreed that Austria, Germany, ­Hungary, and Russia should be invited to accede.48 (b) Pacta tertiis.49 Sweden was not a party to the Convention of 1856 between Great Britain, France, and Russia providing for the demilitarization of the A ­ aland Islands ; yet the Committee of Jurists (Larnaude, Struycken, and Huber), appointed by the Council of the League in 1920, describe50 that Convention as having created “true objective law”, as being “a part of European Law”, and as bearing “the character of a settlement regulating European interests”, so that Sweden by reason of the objective nature of the settlement of 1856 could “as a Power directly interested insist upon compliance with its

47

48 49 50

Amongst the many excuses put forward for the invasion by Germany of Belgium in 1914 (including the rebus sic stantibus doctrine) it was never, it is believed, asserted that the Austro-German or the Franco-Prussian War had abrogated the treaty of 1889 which neutralized Belgium. See Oppenheim, op. cit., Vol. i (4th ed., 1928), § 99. See McNair in British Year Book of International Law, 1925, “So-called State Servi­tudes,” at p. 122. League of Nations Official Journal, Special Supplement No. 8, October 1920, pp. 17, 18.

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provisions in so far as the contracting parties have not cancelled it”, although she had “no contractual right” under it. A similar tendency is discernible51 in the case of treaties which regulate the dedication to the world of some new facility for transit such as a canal or the right of navigation upon a river formerly closed. Thus the Permanent Court in the Wimbledon case speaks of the Kiel Canal as having become “an international waterway intended to provide under treaty guarantee easier access to the Baltic for the benefit of all nations of the world” (italics mine), although only twenty-eight states were parties to the Treaty of Versailles. Again, referring to the Suez and Panama Canals, it describes them as “illustrations of the general opinion according to which when an artificial waterway connecting two open seas has been permanently dedicated to the use of the whole world, such waterway is assimilated to natural straits” (for the purpose of the passage of belligerent men-of-war). (ii) Treaties creating or declaring ordinary International Law, or pure lawmaking treaties. These treaties are now frequently referred to as “legislation”, a term which requires some preliminary justification. The society of states has no legislative organ in the strict sense of the term, and the term “international legislation”52 which is becoming common, though dangerous as tending to obscure the principle of unanimity unless the person using it makes his meaning clear, nevertheless deserves to be retained. Oppenheim53 justified it on the grounds that “legislation is really nothing more than the conscious creation of law in contrast to the growth of law out of custom”, and that conventional international law shares with the internal legislation of a state the characteristic “that in both law is made in a direct, conscious, and purposive manner, in contrast to law that originates in custom”. These treaties, like the first class discussed above, are also multilateral. Some of them have much in common with a group we shall treat separately later, namely treaties which resemble charters of incorporation by bringing into existence a new International Union. For the present we are concerned with treaties creating rules of law which may be called ordinary or private law not concerned with the constitutional relations of the members of the society of states. They are steadily increasing in number.

51 52 53

See, however, Fenwick, International Law (1924), p. 338. For instance, see Hudson in American Journal of International Law, Vol. xxii (1928), at p. 339. Die Zukunft des Völkerrechts (1911), (translated by J.P. Bate and published by the Carnegie Endowment for International Peace in 1921), § 30.

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(a) In the first place we may mention those which, like the Declaration of Paris and most of The Hague Conventions of 1899 and 1907, contain rules governing the conduct of war. One of the latest is the Protocol of 1925 for the Prohibition of the Use in War of Asphyxiating, Poisonous, or other Gases, and of Bacteriological Methods of Warfare, which has received at least fifteen ratifications. (b) Secondly, we may point to the numerous Labour Conventions which have been negotiated by the International Labour Organization and are now in force between the states which have adopted them. They seem to me to be typical Vereinbarungen, their object being to secure identical rules upon the topics regulated by them in the different countries which adopt them. I think we may safely say that they are not abrogated by the outbreak of war between some or all of the parties bound by them, and the fact that some of them ­contain express power for a Government to suspend the operation of their provisions in the event of war or other emergency endangering the national safety54 points to this conclusion. They are in fact permanent law-making treaties, subject to a right of denunciation after the expiration of ten or five years (as the case may be) from the date of coming into force, and subject to a clause which ensures that at least once every ten years the General Conference of the International Labour Organization shall have the opportunity of considering the question of revision or modification. (c) Thirdly, we may point to a group of recent Conventions relating to transit and communications, e.g. the Conventions on Freedom of Transit (1921), Regime of Navigable Waterways of I­ nternational Concern (1921), International Regime of Maritime Ports (1923), Development of Hydraulic Power affecting more than one State (1923), and extract from them an instructive ­article, the second half of which seems to ­declare not only the intentions of the parties but what we should expect to happen even if no such article appeared: This statute does not prescribe the rights and duties of belligerents and neutrals in time of war. The statute shall, however, continue in force in time of war so far as such rights and duties permit. The common characteristics of all these groups may be said to be that they are multilateral, they make rules of pure law, and they are intended to be permanent (subject in certain cases to a stipulated right of denunciation). They

54

Eight Hours Convention, Article 14 (“war or other emergency”), Night Work of Young Persons in Industry Convention, Article 7 (“serious emergency”).

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are centuries and miles removed from the treaty of peace or of alliance or the treaty of commerce bargaining for reciprocal but different advantages.55 4

Treaties Akin to Charters of Incorporation

In response to needs resulting from increased international contact the last half century has seen the creation by treaty of a number of permanent international organizations for a variety of non-political purposes. These bodies are called Unions or Commissions or Institutes or by some other term, and we may conveniently describe them as Unions.56 We are not concerned now with the precise juristic character of these bodies or with the question whether any of them have attained international personality. It suffices for us that the treaties establishing them have the quality of creating more than mere contractual relationships between the parties and more than mere legislative rules binding upon the parties. They create something organic and permanent and they seem therefore to demand recognition as falling into a special category of treaty, though in fact they form a species of the law-making treaty. We may mention as types the Universal Postal Union, founded in 1874, of which at least 83 states, dominions, and colonies are members, the International Union for Protection of Industrial Property, founded in 1883, which has at least 32 members, and the Copyright Union, founded in 1886, which has at least 29 members. A score or more could be mentioned. Unions of this character have two characteristics which are noteworthy for our present purpose: (i) The evidence of facts and the balance of opinion are, I venture to think, in favour of the view that they are not dissolved by a war in which a very large part of their members may be involved, though of course war involves a suspension of intercourse amongst the belligerents and the

55

56

Is any significance to be attached to the word “statute” to describe the system or regime set up by a Convention and used in those above mentioned, in the Protocol establishing the Permanent Court, and elsewhere? I incline to think it indicates an intention to create something permanent, be it rules of law or an international organization; it is legislative rather than contractual. For a list of the principal Unions, see Oppenheim, op. cit., Vol. i (4th ed., 1928), Appendix B. See also Reinsch, Public International Unions (1916); Woolf, International Government (1916), pp. 153–78; Sayre, Experiments in International Administration (1919). See also Rapisardi-Mirabelli, “Théorie Générale des Unions Internationales” in Hague Academy’s Recueil des Cours, 1925, Vol. ii, pp. 345–90.

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Union.57 The fact that prudent draftsmen of treaties of peace take care to stipulate (e.g. Treaty of Versailles, 1919, Articles 283, 286) that the conventions establishing such Unions shall again be applied or “come into effect” does not to my mind militate against this view. (ii) Second consideration of interest to us is that the constitution of some of these Unions contains machinery which avoids “as a matter of practical administration” the necessity of the unanimity of the signatories in many of their operations.58 Therein again these Unions remind us of the corporations of private law, which, within the limits of the charter or statute which creates them, may perform most of their functions by the vote of a majority of their members. Conclusion There is good reason to think that in the near future many more disputes arising upon treaties will be referred to the decision of international tribunals than has been the case in the past. My submission is that the task of deciding these disputes will be made easier if we free ourselves from the traditional notion that the instrument known as the treaty is governed by a single set of rules, however inadequate; and set ourselves to study the greatly differing legal character of the several kinds of treaties and to frame rules appropriate to the character of each kind. The few pieces of evidence which I have brought together seem to me to justify this submission. 57

58

See Ladas, The International Protection of Industrial Property (1929), p. 727; Reinsch, Public International Unions (1916), pp. 173–5. For instance, the Supreme Court of Hamburg decided in the case of Ricordi v. Benjamin that a Copyright Convention of June 1884, to which only Germany and Italy were parties, was abrogated by the outbreak of war between them, but that the Berne Copyright Convention of September 9, 1886, establishing the Copyright Union, of which many neutral states were members, was not abrogated as between Germany and Italy. See Sayre, Experiments in International Administration (1919), pp. 25, 30, 31. See also the case of the International Commission for Air Navigation created by the Convention of 1919 for the Regulation of Aerial Navigation, Art. 34.

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Chapter 17

Judicial Committee of the Privy Council, Judgment, In re Piracy Jure Gentium, 1934 Comment by Claire Smith, UNESCO Many judicial comments, by necessity, become a relic of their time – replete with temporal limitations. This is certainly not the case with in re Piracy Jure Gentium. The law lords had before them, in 1936, “the question whether actual robbery is an essential element of the crime of piracy jure gentium, or whether a frustrated attempt to commit a piratical robbery is not equally piracy jure gentium.” Within this prism, they had the foresight to discuss questions that continue to vex international lawyers: international criminal jurisdiction and its practical implications, including the lack of means of trying or punishing alleged perpetrators; universal jurisdiction; and hostis humani generis (enemies of all states). Due to this enlightened approach, in re Piracy Jure Gentium is still referenced today and continues to provide a clear basis for the definition of piracy in international law. The judgment underscores that “international law has not become a crystallized code at any time, but is a living and expanding branch of the law.”a It is a reminder to lawyers and judges that while we may see little connection between daily practice and broader social, political or moral problems, the legal fraternity has potent agency to create change not limited to its era. The law lords who sat on this case were no strangers to ensuring their decisions could weather and influence legal evolution, and by extension society in the future. Viscount Sankey LC was educated at Oxford, and called to the bar in 1892. He became a judge in 1914. A strong proponent of human rights, under his Chairmanship, a charter for their protection entitled the Sankey Declaration of the Rights of Man was prepared in 1940. Lord Atkin was educated at Oxford, before being called to the bar in 1891. He became a judge in 1913, before becoming a Lord Justice of Appeal in 1919. Perhaps most famously, as a member of the House of Lords, he delivered the leading judgment in the landmark case of Donoghue v Stevenson.b Lord Tomlin was educated at Oxford, and called to the a In re Piracy Jure Gentium [1934] AC 586, 592. b Donoghue v Stevenson [1932] UKHL 100.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_018

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bar in 1891. In 1923, he was appointed as a judge to the Chancery Division of the High Court and knighted. Lord Tomlin was appointed Lord of Appeal in Ordinary in 1929, and then was sworn in as a Privy Councillor. Lord Macmillan was educated at the University of Edinburgh and the University of Glasgow. He became a King’s Counsel in 1912, before being appointed Lord Advocate in 1924, and was sworn to the Privy Council that same year. In 1930, he was appointed as a Lord of Appeal in Ordinary. Lord Wright was educated at Cambridge before being called to the bar in 1900. He was appointed to the Bench in 1925, and appointed Lord of Appeal in Ordinary in 1932. In 1945 he was the Chairman of the United Nations War Crimes Commission.

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Judicial Committee of the Privy Council, Judgment, In re Piracy Jure Gentium LR [1934] A. C. 586. Excerpt: pp. 586–600. Reproduced with the kind permission of iclr.

In re Piracy Jure Gentium Judicial Committee of the Privy Council J.C.* 1934 July 26. International Law—Piracy Jure Gentium—Actual Robbery not an Essential Element Actual robbery is not an essential element of the crime of piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.

Special Reference

An Order in Council, made under s. 4 of the Judicial Committee Act, 1833, and dated November 10, 1933, provided: “The question whether actual robbery is an essential element of the crime of piracy jure gentium, or whether a frustrated attempt to commit a piratical robbery is not equally piracy jure gentium, is referred to the Judicial Committee for their hearing and consideration.” The circumstances in which the Order was made appear from the report of their Lordships. 1934. July 2, 3, 5. Sir Thomas Inskip A.-G. (with him Wilfrid Lewis) appeared in support of the view that actual robbery was not an essential element. Sir Leslie Scott K.C. (with him Kenelm Preedy), representing the Secretary of State for the Colonies, contended to the contrary. In addition to cases mentioned in the report of their Lordships, counsel referred to R. v. Bonnet (1)1; Reg. v. McGregor (2)2; In re Tivnan (3)3; Att.-Gen. for * Present: Viscount Sankey L.C., Lord Atkin, Lord Tomlin, Lord Macmillan, and Lord Wright. 1 (1718) 15 St. Tri. col. 1231, 1234. 2 (1844) 1 C. & K. 429. 3 (1864) 5 B. & S. 645, 687.

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Hong Kong v. Kwok-a-Sing (4)4; Republic of Bolivia v. Indemnity Mutual Marine Assurance Co., Ld. (5)5; and, as to the jurisdiction of the Court of the Admiral, to Reg. v. Keyn (6)6; also to Oppenheim’s International Law, 4th ed., vol. i., p. 506, and o. e. d. s.v. “Pirate.” Lord Macmillan referred to Dole v. New England Mutual Insurance Co. (7)7; and, as to the relation between international law and municipal law, to Mortensen v. Peters (8)8 (per Lord Dunedin), on which question counsel referred to The Zamora. (9)9 July 26. The report of their Lordships was delivered by Viscount Sankey L.C. On January 4, 1931, on the high seas, a number of armed Chinese nationals were cruising in two Chinese junks. They pursued and attacked a cargo junk which was also a Chinese vessel. The master of the cargo junk attempted to escape, and a chase ensued during which the pursuers came within 200 yards of the cargo junk. The chase continued for over half an hour, during which shots were fired by the attacking party, and while it was still proceeding, the steamship Hang Sang approached and subsequently also the steamship Shui Chow. The officers in command of these merchant vessels intervened and through their agency, the pursuers were eventually taken in charge by the Commander of H.M.S. Somme, which had arrived in consequence of a report made by wireless. They were brought as prisoners to Hong Kong and indicted for the crime of piracy. The jury found them guilty subject to the following question of law: “Whether an accused person may be convicted of piracy in ­circumstances where no robbery has occurred.” The Full Court of Hong Kong on further consideration came to the conclusion that robbery was necessary to support a ­conviction of piracy and in the result the accused were acquitted. The decision of the Hong Kong Court was final and the present proceedings are in no sense an appeal from that Court, whose judgment stands. Upon November 10, 1933, His Majesty in Council made the following Order: “The question whether actual robbery is an essential element of the crime of piracy jure gentium, or whether a frustrated attempt to commit a piratical robbery is not equally piracy jure gentium, is referred to the Judicial Committee for their hearing and consideration.” 4 5 6 7 8 9

(1873) L. R. 5 P. C. 179. [1909] 1 K. B. 785, 796, 802. (1876) 2 Ex. D. 63. (1864) 2 Cliff. 394, 417, 418. (1906) 8 F. (J.) 93, 101. [1916] 2 A. C. 77, 91, 92.

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It is to this question that their Lordships have applied themselves, and they think it will be convenient to give their answer at once and then to make some further observations upon the matter. The answer is as follows: “Actual robbery is not an essential element in the crime of piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.” In considering such a question, the Board is permitted to consult and act upon a wider range of authority than that which it examines when the question for determination is one of municipal law only. The sources from which international law is derived include treaties between various States, State papers, municipal Acts of Parliament and the decisions of municipal Courts and last, but not least, opinions of jurisconsults or text-book writers. It is a process of inductive reasoning. It must be remembered that in the strict sense international law still has no legislature, no executive and no judiciary, though in a certain sense there is now an international judiciary in the Hague Tribunal and attempts are being made by the League of Nations to draw up codes of international law. Speaking generally, in embarking upon international law, their Lordships are to a great extent in the realm of opinion, and in estimating the value of opinion it is permissible not only to seek a consensus of views, but to select what appear to be the better views upon the question. With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country. But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes by its own nationals wherever committed, it is also recognized as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any State. He is no longer a national, but “hostis humani generis” and as such he is justiciable by any State anywhere: Grotius (1583–1645) “De Jure Belli ac Pacis,” vol. 2, cap. 20, § 40. Their Lordships have been referred to a very large number of Acts of Parliament, decided cases and opinions of juris-consults or text-book writers, some of which lend colour to the contention that robbery is a necessary ingredient of piracy, others to the opposite contention. Their Lordships do not propose to comment on all of them, but it will be convenient to begin the present discussion by referring to the Act of Henry VIII., cap. 15, in the year 1536, which was entitled “An Act for the punishment of pirates and robbers of the sea.” Before that Act, the jurisdiction over pirates was exercised by the High Court of Admiralty in England and that Court administered the civil law. The civilians,

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however, had found themselves handicapped by some of their canons of procedure, as for example, that a man could not be found guilty unless he either confessed or was proved guilty by two witnesses. The Act recites the deficiency of the Admiralty jurisdiction in the trial of offences according to the civil law and after referring to “all treasons, felonies, robberies, murders and confederacies hereafter to be committed in or upon the sea, etc.” (it is not necessary to set out the whole of it), proceeds to enact that all offences committed at sea, etc., shall be tried according to the common law under the King’s Commission, to be directed to the Admiralty and others within the realm. Many of the doubts and difficulties inherent in considering subsequent definitions of piracy are probably due to a mis-apprehension of that Act. It has been thought, for example, that nothing could be piracy unless it amounted to a felony as distinguished from a misdemeanour, and that, as an attempt to commit a crime was only a disdemeanour at common law, an attempt to commit piracy could not constitute the crime of piracy, because piracy is a felony as distinguished from a misdemeanour. This mistaken idea proceeds upon a misapprehension of the Act. In Coke’s (1552–1634) Institutes, Part 3, ed. 1809, after a discussion on felonies, robberies, murders and confederacies committed in or upon the sea, it is stated (p. 112) that the statute did not alter the offence of piracy or make the offence felony, but “leaveth the offence as it was before this Act, viz., felony only by the civil law, but giveth a mean of triall by the common law and inflicteth such pains of death as if they had been attainted of any felony etc. done upon the land. But yet the offence is not altered, for in the indictment upon this statute, the offence must be alleged upon the sea; so as this act inflicteth punishment for that which is a felony by the civill law, and no felony whereof the common law taketh knowledge.” The conception of piracy according to the civil law is expounded by Molloy (1646–1690) “De Jure Maritimo et Navali” or “A Treatise of affairs Maritime and of Commerce.” That book was first published in 1676 and the ninth edition in 1769. Chapter 4 is headed “Of Piracy.” The author defines a pirate as “a sea thief or hostis humani generis who to enrich himself either by surprize or open face sets upon merchants or other traders by sea.” He clearly does not regard piracy as necessarily involving successful robbery or as being inconsistent with an unsuccessful attempt. Thus in para. xiii. he says: “So likewise if a ship shall be assaulted by pirates and in the attempt the pirates shall be overcome if the captors bring them to the next port and the judge openly rejects the trial, or the captain cannot wait for the judge without certain peril and loss, justice may be done on them by the law of nature, and the same may be there executed by the captors.” Again in para. 14 he puts the case where “a pirate at sea assaults a

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ship but by force is prevented from entering her” and goes on to distinguish the rule as to accessories at the common law and by the law marine. A somewhat similar definition of a pirate is given by the almost contemporary Italian jurist, Casaregis, who wrote in 1670, and says (“De Commercio,” LXIV 4): “Proprie pirata ille dicitur qui sine patentibus alicujus principis ex propria tantum, ac privata auctoritate per mare discurrit depraedandi causa.” But in certain trials for piracy held in England under the Act of Henry VIII., a narrower definition of piracy seems to have been adopted. Thus in 1696, the trial R. v. Joseph Dawson (1)10 took place. The prisoners were indicted for “feloniously and piratically taking and carrying away from persons unknown a certain ship called the Gunsway. … upon the high seas ten leagues from the Cape St. Johns near Surat in the East Indies.” The Court was comprised of Sir Charles Hedges, then judge in the High Court of Admiralty, Lord Chief Justice Holt, Lord Chief Justice Treby, Lord Chief Baron Ward and a number of other judges. Sir Charles Hedges gave the charge to the grand jury. In it he said “now piracy is only a sea-term for robbery, piracy being a robbery committed within the jurisdiction of the Admiralty. If any man be assaulted within that jurisdiction, and his ship or goods violently taken away without legal authority, this is robbery and piracy.” Dawson’s case was described as the sheet-anchor for those who contend that robbery is an ingredient of piracy. It must be remembered, however, that every case must be read secundum subjectam materiam and must be held to refer to the facts under dispute. In Dawson’s case, the prisoners had undoubtedly committed robbery in their piratical expeditions. The only function of the Chief Judge was to charge the grand jury and in fact to say to them: “Gentlemen, if you find the prisoners have done these things, then you ought to return a true bill against them.” The same criticism applies to certain charges given to grand juries by Sir Leoline Jenkins (1623–1685) judge of the Admiralty Court (1685): see “Life of Leoline Jenkins,” vol. 1, p. 94. It cannot be suggested that these learned judges were purporting to give an exhaustive definition of piracy, and a moment’s reflection will show that a definition of piracy as sea robbery is both too narrow and too wide. Take one example only. Assume a modern liner with its crew and passengers, say of several thousand aboard, under its national flag, and suppose one passenger robbed another. It would be impossible to contend that such a robbery on the high seas was piracy and that the passenger in question had committed an act of piracy when he robbed his fellow 10

(1696) 13 St. Tr. col. 451.

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passenger, and was therefore liable to the penalty of death. “That is too wide a definition which would embrace all acts of plunder and violence in degree sufficient to constitute piracy simply because done on the high seas. As every crime can be committed at sea, piracy might thus be extended to the whole criminal code. If an act of robbery or murder were committed upon one of the passengers or crew by another in a vessel at sea, the vessel being at the time and continuing under lawful authority and the offender were secured and confined by the master of the vessel to be taken home for trial, this state of things would not authorise seizure and trial by any nation that chose to interfere or within whose limits the offender might afterwards be found”: Dana’s Wheaton, p. 193, note 83, quoted in Moore’s Digest of International Law (Washington, 1906) Article “Piracy,” p. 953. But over and above that we are not now in the year 1696, we are now in the year 1934. International law was not crystallized in the 17th century, but is a living and expanding code. In his treatise on international law, the English textbook writer Hall (1835–94) says at p. 25 of his preface to the third edition (1889)(1):11 “Looking back over the last couple of centuries we see international law at the close of each fifty years in a more solid position than that which it occupied at the beginning of the period. Progressively it has taken firmer hold, it has extended its sphere of operation, it has ceased to trouble itself about trivial formalities, it has more and more dared to grapple in detail with the fundamental facts in the relations of States. The area within which it reigns beyond dispute has in that time been infinitely enlarged, and it has been greatly enlarged within the memory of living man.” Again another example may be given. A body of international law is growing up with regard to aerial warfare and aerial transport, of which Sir Charles Hedges in 1696 could have had no possible idea. A definition of piracy which appears to limit the term to robbery on the high seas was put forward by that eminent authority Hale (1609–76), in his “Pleas of the Crown” ed. 1737, cap. 27, p. 305, where he states, “it is out of the question that piracy by the statute is robbery.” It is not surprising that subsequent definitions proceed on these lines. Hawkins (1673–1746) “Pleas of the Crown” (1716), 7th ed., 1795, vol. 1, defines a pirate rather differently, at p. 267 (1),12 “a pirate is one who, to enrich himself, either by surprise or open force, sets upon merchants or others trading by sea, to spoil them of their goods or treasure.” This does not necessarily import robbing. 11 12

Reprinted in 8th ed. 1924. 8th ed. 1824, p. 251..

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Blackstone (1726–80), book IV., p. 71, states, “the offence of piracy, by common law, consists in committing those acts of robbery and depredation upon the high seas which, if committed upon land, would have amounted to felony there.” East’s “Pleas of the Crown” (1803), vol. 2, p. 796, defines the offence of piracy by common law as “committing those acts of robbery and depredation upon the high seas which, if committed upon land, would have amounted to felony there.” This definition would exclude an attempt at piracy, because an attempt to commit a crime is, with certain exceptions, not a felony but a misdemeanour. Their Lordships were also referred to Scottish text-book writers, i­ncluding Hume (1757–1838) “Scottish Criminal Law” (1797), and Alison (1792–1867) “Scottish Criminal Law” (1832), where similar definitions are to be found. It is sufficient to say with regard to these English and Scottish writers that, as was to be expected, they followed in some cases almost verbatim the early concept, and the criticism upon them is: (1.) that it is obvious that their definitions were not exhaustive; (2.) that it is equally obvious that there appears to be from time to time a widening of the definition so as to include facts previously not foreseen; (3.) that they may have overlooked the explanation of the statute of Henry VIII. as given by Coke and quoted above, and have thought of piracy as felony according to common law whereas it was felony by civil law. In “Archbold’s Criminal Pleading” (28th ed., 1931) will be found a full conspectus of the various statutes on piracy which have been from time to time passed in this country defining the offence in various ways and creating new forms of offence as coming within the general term piracy. These, however, are immaterial for the purpose of the case, because it must always be remembered that the matter under present discussion is not what is piracy under any municipal Act of any particular country, but what is piracy jure gentium. When it is sought to be contended, as it was in this case, that armed men sailing the seas on board a vessel, without any commission from any State, could attack and kill everybody on board another vessel, sailing under a national flag, without committing the crime of piracy unless they stole, say, an article worth sixpence, their Lordships are almost tempted to say that a little common sense is a valuable quality in the interpretation of international law. This appears to be recognized in the “Digest of the Criminal Law,” by the distinguished writer, Sir James Fitzjames Stephen (1829–94), 7th ed., 1926, p. 102. At the end of the article on piracy it is stated that “it is doubtful whether persons cruising in armed vessels with intent to commit piracies, are pirates or not,” but in a significant footnote, it is added that “the doubt expressed at the end of the article is founded on the absence of any expressed authority for the affirmative of the proposition and on the absurdity of the negative.”

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The Oxford English Dictionary (1909) defines a pirate as “one who robs and plunders on the sea, navigable rivers, etc., or cruises about for that purpose.” It may now be convenient to turn to American authorities, and first of all Kent (1826). In his Commentaries, I. 183, he calls piracy “robbery, or a forcible depredation on the high seas, without lawful authority, and done animo furandi, and in the spirit and intention of universal hostility.” Wheaton writing in 1836, Elements Pt. II., cap. 2, para. 15, defines piracy as being the offence of “depredating on the seas, without being authorized by any foreign State, or with commissions from different sovereigns at war with each other.” This enshrines a concept which had prevailed from earliest times that one of the main ingredients of piracy is an act performed by a person sailing the high seas without the authority or commission of any State. This has been frequently applied in cases where insurgents had taken possession of a vessel belonging to their own country and the question arose what authority they had behind them. See the American case The Ambrose Light. (1)13 Another instance is the case of the Huascar. In 1877, a revolutionary outbreak occurred at Callao in Peru and the ironclad Huascar, which had been seized by the insurgents, put to sea, stopped British steamers, took a supply of coal from one of them without payment and forcibly took two Peruvian officials from on board another where they were passengers. The British Admiral justly considered the Huascar was a pirate, and attacked her. See Parl. Papers, Peru, No. 1, 1877. In Moore’s “Digest of International Law” (1906), vol. 2, p. 953, a pirate is defined as “one who, without legal authority from any State, attacks a ship with intention to appropriate what belongs to it. The pirate is a sea brigand. He has no right to any flag and is justiciable by all.” Time fails to deal with all the references to the works of foreign jurists to which their Lordships’ attention was directed. It will be sufficient to select a few examples. Ortolan (1802–1873), a French jurist, and professor at the University of Paris, says (Dip. de la Mer, book 2, Ch. 11) “Les pirates sont ceux, qui courrent les mers de leur propre autorité, pour y commettre des actes de déprédation pillant à main armée les navires de toutes les nations.” Bluntschli (1808–81), a Swiss jurist and a professor at Munich and Heidelberg, published, in 1868, “Le Droit International Codifié,” which, in art. 343, lays down: “Sont considérés comme pirates les navires qui, sans l’autorisation d’une puissance belligérante, cherchent à s’emparer des personnes, à faire du butin (navires et marchandises), ou à anéantir dans un but criminel les biens d’autrui.” 13

(1885) 25 Fed. Rep. 408, 435.

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Calvo (1824–1906), an Argentine jurist and Argentine Minister at Berlin, Le Droit International, 3rd ed., vol. 2, p. 285, para. 1134, defines piracy: “Tout vol ou pillage d’un navire ami, toute déprédation, tout acte de violence commis à main armée en pleine mer contre la personne ou les biens d’un étranger, soit en temps de paix, soit en temps de guerre.” An American case strongly relied upon by those who contend that robbery is an essential ingredient of piracy, is that of the United States v. Smith.14 (1) Story J. delivered the opinion of the Court and there states “whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea, animo furandi, is piracy.” He would be a bold lawyer to dispute the authority of so great a jurist, but the criticism upon that statement is that the learned judge was considering a case where the prisoners charged had possessed themselves of the vessel, the Irresistible, and had plundered and robbed a Spanish vessel. There was no doubt about the robbery, and though the definition is unimpeachable as far as it goes, it was applied to the facts under consideration and cannot be held to be an exhaustive definition including all acts of piracy. The case, however, is exceptionally valuable because from p. 163–180 of the report it tabulates the opinions of most of the writers on international law up to that time. But with all deference to so great an authority, the remark must be applied to Story J. in 1820 that has already been applied to Sir Charles Hedges in 1696, which is that international law has not become a crystallized code at any time, but is a living and expanding branch of the law. In a later American decision, United States v. The Malek Adhel (1)15, “if he wilfully sinks or destroys an innocent merchant ship, without any other object than to gratify his lawless appetite for mischief, it is just as much a piratical aggression, in the sense of the law of nations, and of the Act of Congress, as if he did it solely and exclusively for the sake of plunder, lucri causa. The law looks to it as an act of hostility, and being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the act of a pirate, and of one who is emphatically hostis humani generis.” Having thus referred to the two cases, Dawson (1696) and Smith (1820), which are typical of one side of the question, their Lordships will briefly refer to two others from which the opposite conclusion is to be gathered. It will be observed that both of them are more recent. The first is the decision in the case of the Serhassan Pirates (2)16, decided in the English High Court 14 15 16

(1820) 5 Wheat. 153, 161. (1844) 2 How. 210, 232. (1845) 2 W. Rob. 354..

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of Admiralty by that distinguished judge, Dr. Lushington (1782–1873), in 1845. It was on an application by certain officers for bounty which, under the statute 6 Geo. 4, c. 49, was given to persons who captured pirates, and the learned judge said (it is not necessary to detail all the facts of the case for the purpose of the present opinion) “the question which I have to determine is whether or not the attack which was made upon the British pinnance and the two other boats constituted an act of piracy on the part of these prahns, so as to bring the persons who were on board within the legal denomination of pirates.” He held it was an act of piracy and awarded the statutory bounty. It is true that that was a decision under the special statute under which the bounties were claimed, but it will be noted that there was no robbery in that case; what happened was that the pirates attacked, but were themselves beaten off and captured. A similar comment may be made on the case in 1853 of The Magellan Pirates (1)17, where Dr. Lushington said: “it was never, so far as I am able to find, deemed necessary to inquire whether parties so convicted of these crimes (i.e., ­robbery and murder), had intended to rob on the high seas, or to murder on the high seas.” Finally, there is the American case The Ambrose Light (2)18, where it was decided by a Federal Court that an armed ship must have the authority of a State behind it, and if it has not got such an authority, it is a pirate even though no act of robbery has been committed by it. It is true that the vessel in question was subsequently released on the ground that the Secretary of State had by implication recognized a state of war, but the value of the case lies in the decision of the Court. Their Lordships have dealt with two decisions by Dr. Lushington. It may here be not inappropriate to refer to another great English Admiralty judge and jurisconsult, Sir Robert Phillimore (1810–85). In his International Law, 3rd ed., vol. 1, 1879, he states: “piracy is an assault upon vessels navigated on the high seas committed animo furandi whether robbery or forcible depredation be effected or not and whether or not it be accompanied by murder or personal injury.” Lastly, Hall, to whose work on international law reference has already been made, states, on p. 314 of the 8th ed., 1924, “the various acts which are recognized or alleged to be piratical may be classed as follows: robbery or attempt at robbery of a vessel, by force or intimidation, either by way of attack from without, or by way of revolt of the crew and conversion of the vessel and cargo 17 18

(1853) 1 Spinks E. & A. 81. (2) 25 Fed. Rep. 408.

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to their own use.” Possibly the definition of piracy which comes nearest to accuracy coupled with brevity is that given by Kenny (1847–1930), “Outlines of Criminal Law,” 14th ed., p. 332, where he says piracy is “any armed violence at sea which is not a lawful act of war,” although even this would include a shooting affray between two passengers on a liner which could not be held to be piracy. It would, however, correctly include those acts which, as far as their Lordships know, have always been held to be piracy, that is, where the crew or passengers of a vessel on the high seas rise against the captain and officers and seek by armed force to seize the ship. Hall put such a case in the passage just cited; it is clear from his words that it is not less a case of piracy because the attempt fails. Before leaving the authorities, it is useful to refer to a most valuable treatise on the subject of piracy contained in “The Research into International Law by the Harvard Law School,” published at Cambridge, Mass., in 1932. In it, nearly all the cases, nearly all the statutes, and nearly all the opinions are set out on pp. 749 to 1013. In 1926 the subject of piracy engaged the attention of the League of Nations, who scheduled it as one of a number of subjects, the regulation of which by international agreement seemed to be desirable and realizable at the present moment. Consequently, they appointed a sub-committee of their committee of experts for the progressive codification of international law and requested the sub-committee to prepare a report upon the question. An account of the proceedings is contained in the League of Nations document, C 196, M 70, 1927 V. The sub-committee was presided over by the Japanese jurist Mr. Matsuda, the Japanese Ambassador in Rome, and in their report at p. 116, they state: “according to international law, piracy consists in sailing the seas for private ends without authorization from the government of any State with the object of committing depredations upon property or acts of violence against persons.” The report was submitted to a number of nations and an analysis of their replies will be found at p. 273 of the League of Nations document. A number of States recognized the possibility and desirability of an international convention on the question. The replies of Spain, p. 154; of Greece, p. 168; and e­ specially of Roumania, p. 208, deal at some length with the definition of ­piracy. Roumania adds, p. 208: “Mr. Matsuda maintains in his report that it is not necessary to premise explicitly the existence of a desire for gain, because the desire for gain is contained in the larger qualification ‘for private ends.’ In our view, the act of taking for private ends does not necessarily mean that the attack is inspired by the desire for gain. It is quite possible to attack without authorization from any State and for private ends, not with a desire for gain but for vengeance or for

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anarchistic or other ends.” The above definition does not in terms deal with an armed rising of the crew or passengers with the object of seizing the ship on the high seas. However that may be, their Lordships do not themselves propose to hazard a definition of piracy. They remember the words of M. Portalis, one of Napoleon’s commissioners, who said: “We have guarded against the dangerous ambition of wishing to regulate and to foresee everything. …. A new question springs up. Then how is it to be decided? To this question it is replied that the office of the law is to fix by enlarged rules the general maxims of right and wrong, to establish firm principles fruitful in consequences, and not to descend to the detail of all questions which may arise upon each particular topic.” (Quoted by Halsbury L.C. in Halsbury’s Laws of England, Introduction, p. ccxi). A careful examination of the subject shows a gradual widening of the earlier definition of piracy to bring it from time to time more in consonance with situations either not thought of or not in existence when the older jurisconsults were expressing their opinions. All that their Lordships propose to do is to answer the question put to them, and having examined all the various cases, all the various statutes and all the opinions of the various jurisconsults cited to them, they have come to the conclusion that the better view and the proper answer to give to the question addressed to them is that stated at the beginning—namely, that actual robbery is not an essential element in the crime of piracy jure gentium, and that a frustrated attempt to commit piratical robbery is equally piracy jure gentium. Solicitor: Treasury Solicitor.

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Chapter 18

Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1953 Comment by Laura Rees-Evans, Senior Associate, Fietta LLP “General principles of law recognized by civilized nations” are one of the sources of law included first within the Statute of the Permanent Court of International Justice, and subsequently in Article 38(1)(c) of the Statute of the International Court of Justice. They were originally included so as to avoid situations in which the court would be unable, on the basis that international law provided no answer, to resolve a dispute which came before it (a non liquet decision).a The concept of “general principles” is inherently amorphous and, as pointed out in the Preface to Cheng’s seminal text, “the inclusion [of] sub-paragraph (c) has aroused wide controversy amongst international lawyers as to its exact meaning and scope”;b not least because of the risk that they could be used “as an ideological cloak for self-interest”.c Cheng’s book was an ambitious and successful attempt to identify the meaning and scope of the concept of general principles as applied by international courts and tribunals. No other text covers exclusively and so comprehensively this source of law as it is applied across the multifarious fields of international law. Additionally, unlike other sources of law, the International Law Commission has never considered the topic of “general principles”. General Principles began life as Bin Cheng’s PhD thesis that he submitted to the University of London in 1950, under the supervision of Dr Georg Schwarzenberger. Originally published in 1953, the book has been reprinted four times (1987, 1994, 2006 and 2008). The frequency with which international courts and tribunals have referred to the book over the years testifies to its enduring relevance. It has been cited in the decisions of many of the world’s ­major

a G Schwarzenberger, ‘Foreword’ in B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (Stevens & Sons Ltd 1953) xi; see also, H Thirlway, The Sources of International Law (OUP 2014) 8. [See Chapter 37 of this Anthology]. b Cheng, n 3, xiii. c Ibid., xiv.

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i­nternational courts and tribunals,d including, perhaps most notably and influentially, in the Report of the WTO Appellate Body in Shrimp Products.e The book has had particular popularity in the growing volume of decisions of international investment tribunals.f It is within this context that, in every international arbitration proceeding in which I have worked, I have had occasion to resort to Cheng’s General Principles, particularly its analysis of the various manifestations of the principle of good faith. The book’s Introduction is selected for inclusion in this Anthology as it provides an overview of Cheng’s overall approach to this subject. The most influential parts of the book today are, in my opinion, Chapter 3 (Good Faith in Treaty Relations) and Chapter 4 (Good Faith in the Exercise of Rights (The Theory of Abuse of Rights)). In any case, there is no doubt that the entirety of General Principles has influenced and will continue to influence the way in which general principles of law are understood and applied by international courts and tribunals. d See, e.g. Prosecutor v Anto Furundzija (Judgment in Appeals Chamber) ICTY 23 (21 July 2000), 256 (principle of impartiality). The book has also been cited by judges and tribunal members of international courts and tribunals in a number of separate and dissenting opinions. e WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products – Report of the Appellate Body (12 October 1998) WT/DS58/AB/R [158] (theory of abuse of rights, in particular, the reasonable and bona fide exercise of rights). f Starting from Asian Agricultural Products Ltd (aapl) v Republic of Sri Lanka, ICSID Case No arb/87/3, Final Award (27 June 1990) (general principle of law placing the burden of proof upon the claimant) through to the present day (most recently, in the 2013 award in Micula v Romania, ICSID Case No. arb/05/20, Award (11 December 2013) (performance of treaty obligations in good faith)).

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B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (Stevens & Sons Ltd 1953). Excerpt: ‘Introduction’, pp. 1–26.

General Principles of Law as Applied by International Courts and Tribunals Bin Cheng Introduction “The general principles of law recognised by civilised nations”1 form part of the law to be applied by the permanent forum of the family of nations, the International Court of Justice. The present work is an attempt to apply the inductive method2 to the study of such principles and to demonstrate their practical application in the field of international law. It is based on an examination of the decisions of international courts and tribunals, which at the present time constitute the most important means for the determination of rules and principles of international law.3 A consideration of other law-determining agencies of international law, such as State practice or the writings of publicists, is beyond the scope of the present work. Article 38 of the Statute of the International Court of Justice provides:— 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: 1 See ICJ Statute, art. 38, para. 1 (c). 2 Mex.-U.S. g.c.c. (1923): Dujay Case (1929), Op. of Com. 1929, p. 180, at p. 185: “The existence or non-existence of a rule of law is established by a process of inductive reasoning.” See Schwarzenberger, “The Inductive Approach to International Law,” 60 Harvard L.R. (1946–47), p. 539; or the same author, 1. International Law, 1949, pp. xliii et seq. The Secretary-General of the U.N., in a Memorandum of March 7, 1949, observed that “there is a growing trend towards an inductive approach” (U.N. Doc. A/CN. 4/6, p. 114). 3 See Schwarzenberger, op. cit., pp. 550 et seq., 9 et seq., respectively on the hierarchy of “­law-determining agencies.” Cf. also the same author, 1 International Law, 1st ed., 1945, p. 2: “Compared with the dicta of textbooks and the practice of this or that State, the decisions of international courts have an authority and reality which cannot be surpassed.” Sir Arnold D. McNair, now President of the I.C.J., lecturing in 1928 at the Académie de Droit international on La terminaison et la dissolution des traités, said “We … attach more importance in the subject of international law to the practice and decisions of international tribunals than to the opinions of writers. … For our part, it is our intention rarely to cite authors” (22 Recueil La Haye (1928), p. 459, at p. 463. Transl.). In view of the fact that some of the international decisions referred to may not be easily, or generally, accessible, actual quotations, instead of mere references, will usually be given. To facilitate reference to writers, a select bibliography is to be found at the end of this volume.

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(a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting States; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognised by civilised nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex æquo et bono, if the parties agree thereto. This Article is the same as Article 38 of the Statute of the Permanent Court of International Justice, except for an alteration in the numbering of the ­paragraphs and sub-paragraphs4 and the addition of a few words of no great practical importance in the introductory phrase.5 The mention of “general principles of law recognised by civilised nations” (“les principes généraux de droit reconnus par les nations civilisées”) as part of the law to be applied by the Permanent Court of International Justice at once provoked considerable discussion among writers, in which the most divergent views on the character of such principles were expressed. Some writers consider that the expression refers primarily to general principles of international law and only subsidiarily to principles obtaining in the municipal law of the various States.6 Others hold that it would have been

4 In the Statute of the p.c.i.j., the paragraphs were not numbered, while the sub-paragraphs were numbered by arabic figures. The present art. 38 i (c) was, therefore, referred to, under the old statute, as art. 38 I 3, or often art. 38 3. For the sake of convenience, the new numbering will be used in this work even when referring to the Statute of the p.c.i.j. 5 The Statute of the p.c.i.j. simply said: “The Court shall apply.” The addition is due to the proposal made by the Chilean delegation in Committee I of Commission iv of the San Francisco Conference, 1945 (uncio: 13 Documents, pp. 284–285, 493). The Report of the Rapporteur of Committee iv/i explained: “The First Committee has adopted an addition to be inserted in the introductory phrase of this article referring to the function of the Court to decide disputes submitted to it in accordance with international law. The lacuna in the old Statute with reference to this point did not prevent the p.c.i.j. from regarding itself as an organ of international law; but the addition will accentuate that character of the new Court” (p. 392). As the Chilean delegation itself explained, the proposal was only actuated by a desire to see an express mention of the application of international law by the Court and was in accordance with the reiterated jurisprudence of the p.c.i.j. (p. 493). The amendment was, therefore, not intended, nor is it believed, to restrict the power of the new Court in any way as compared with that of the old. As it stands, however, this article removes any doubt, if any ever existed, that general principles of law recognised by civilised nations form part of international law. 6 Anzilotti, 1 Cours de Droit international, 1929, p. 117. Hudson, The p.c.i.j., 1920–42, 1943, p. 611. Castberg, “La méthodologie du droit international public,” 43 Recueil La Haye (1933), p. 313, Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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r­ edundant for the Statute to require the Court to apply general principles of international law, and that, therefore, this provision can refer only to principles obtaining in municipal law.7 Some writers even maintain that the expression is intended to refer exclusively to principles of private law.8 A difference of opinion also exists as to whether “the general principles of law recognised by civilised nations” are or are not principles of natural law. While certain authors think that they are,9 others deny categorically that they have any connection with natural law.10 A leading exponent of the modern

at pp. 370 et seq. Morelli, “La théorie générale du procès international,” 61 ibid. (1937), p. 253, at pp. 344 et seq. 7 Strupp, “Le droit du juge international de statuer selon l’équité,” 33 ibid. (1930), p. 357, at pp. 474–5. Scerni, I principî generali di diritto riconosciuti dalle nazioni civili, 1932, pp. 13 et seq. 8 Cf. Lauterpacht, Private Law Sources and Analogies of International Law, 1927, p. 71: “Those general principles of law are for most practical purposes identical with general principles of private law.” See also ibid., p. 85. For a criticism of this exclusive approach, see Le Fur, “Règles générales du droit de la paix.” 54 Recueil La Haye (1935), p. 5, at pp. 206–7. In his The Function of Law in the International Community, 1933, Lauterpacht admitted that they included also general principles of public law, general maxims and principles of jurisprudence. Grapin, Valeur internationale des principes généraux du droit, 1934, pp. 64–6. Ripert, “­Règles du droit civil applicables aux rapports internationaux,” 44 Recueil La Haye (1933), p. 569. Ripert believed that they were principles of municipal law (p. 580) or civil law (pp. 582–3). While he used the term “civil law” first in the sense of municipal law (  jus civile of the Romans), he seemed to have allowed it subsequently to assume its modern meaning of private law by tracing the evolution of the meaning of the term in France (p. 583). His main object, however, was to ascertain which principles of private law were really principles applicable in all legal systems (p. 569), and he did not appear to maintain that the latter were exclusively to be found in private law. 9 Spiropoulos, Die allgemeinen Rechtsgrundsätze im Völkerrecht, 1928, pp. 20 et seq., 56. Cf., however, his Théorie générale du droit international, 1930, pp. 106–7, and Traité théorique et pratique du droit international public, 1933, p. 33, where he said that it was only a question of classification whether “general principles of law” were called principles of positive or natural law Salvioli, “Observations,” 37 Annuaire (1932), p. 315. Cavaglieri, “Règles générales du droit de la paix,” 26 Recueil La Haye (1929), p. 311, at p. 544 (see infra, p. 4, note 14). [Editors’ note: page 452 of this Anthology]. 10 Strupp, op. cit., p. 452. Maintaining that these principles did not form part of existing international law, although applicable by the Court in virtue of its Statute, Strupp believed that they were principles contained in the positive laws of the various States, and were, therefore, not natural law (pp. 452–74). Strupp did not, however, deny the existence of a natural law with variable content, identifiable with justice or the juridical ideal of a legal community, although he denied it any force of law, either as a source or as a means of interpretation (pp. 457–60). Wolff in his “Les principes généraux du droit applicables dans les rapports internationaux,” 36 Recueil La Haye (1931), p. 479, at pp. 485, 496–7. went further. Conceiving law as quod principi placuit (p. 492), he denied altogether the possible existence of natural law. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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doctrine of natural law believes, however, that, while they are not actually principles of natural law, they are derived from it.11 Nor do authors agree as to whether “general principles of law” are part of the international legal order, simply because it is a legal order,12 or because there exists a rule of customary international law according to which such principles are applicable in international relations.13 Moreover, some writers maintain that “general principles of law” do not form part of existing international law at all, but only form part of the law to be applied by the World Court by virtue of the enabling provision in its Statute.14 The greatest conflict of views concerns the part played in international law by these “general principles.” While some writers regard them merely as a means for assisting the interpretation and application of international treaty 11

Le Fur, “La coutume et les principes généraux du droit comme sources du droit international public,” 3 Recueil Gény, 1936, p. 362, at p. 368. The relevant passage was almost textually reproduced in the same author’s “Règles générales, etc.,” loc. cit., p. 205. 12 Scerni, op. cit., pp. 29 et seq. F. A. v. der Heydte, “Glossen zu einer Theorie der allgemeinen Rechtsgrundsätze,” 33 Die Friedenswarte (1933), p. 289, at p. 290. v. der Heydte d­ istinguished two categories of “general principles.” He believed that certain “general principles” necessarily formed part of any legal system and, therefore, also of international law (see further, infra, p. 5, note 17). [Editors’ note: page 453 of this Anthology]. 13 Verdross, Die Verfassung der Völkerrechtsgemeinschaft, 1926, p. 59. Lauterpacht, Private Law Sources, etc., 1927, p. 63. Balladore-Pallieri, I Principii generali di diritto reconosciuti dalle nazioni civili, 1932, pp. 48 et seq., 60 et seq. In his Diritto internazionale pubblico, 1937, p. 138, Balladore-Pallieri changed his opinion and derived their validity from the very constitution of the international community. Wolff, op. cit., p. 483. 14 Cavaglieri, op. cit., p. 323, and particularly at p. 544: “These principles do not, in our opinion, belong to international law. They are rules of justice, of natural law, which, being to a great extent observed in the municipal law of civilised countries, are declared applicable by the Court, in the absence of actual rules of international law, conventional or customary” (Transl.). The above statement seems a rather dangerous one for a positivist like Cavaglieri to make; for he thereby admitted that principles of justice and natural law were to a great extent followed in the municipal law of civilised nations. And if it were shown that these general principles of law were in fact part of existing international law and not merely the law to be applied by the Court in virtue of art. 38 I (c), it would mean that, in international law also, principles of justice and natural law were applicable. Strupp, op. cit., p. 474. In his “Règles générales du droit de la paix,” 47 Recueil La Haye (1934), p. 263, at pp. 332 et seq., Strupp said that there had been no customary law admitting these general principles of law in toto, although a few had been individually adopted. Gihl, International Legislation, 1937, p. 107. and “Lacunes du droit international,” 3 (1) a.s.j.g. (n.t.i.r.) (1932), p. 37, at pp. 47 et seq. Morelli, op. cit., pp. 344 et seq., 348 et seq. Although Morelli believed that some of these general principles were deducible from rules of international law, he maintained that it was not possible for an international tribunal, in the absence of a special permissive rule, to resort to them.

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and customary law,15 and others consider them as no more than a subsidiary source of international law,16 some modern authors look upon “general principles” as the embodiment of the highest principles—the “superconstitution”— of international law.17

15

Salvioli, “La Corte permanente di Giustizia internationale,” 15 Rivista (1923), p. 11; 16 ibid. (1924), p. 272, at pp. 278–84. Makowski, “L’organisation actuelle de l’arbitrage international,” 36 Recueil La Haye (1931), p. 263, at pp. 360–1. 16 Lauterpacht, Private Law Sources, 1927, p. 69. Scerni, op. cit., 1932, pp. 40–1. Verdross, op. cit., p. 57. The same author as Rapporteur of the Institut de Droit International, 37 Annuaire (1932), p. 292. Cf. next footnote. 17 Scelle, Cours (Manuel) de droit international public, 1948, p. 580. Härle adopted a rather curious view in his “Les principes généraux de droit et le droit des gens,” 3 (16) r.d.i.l.c. (1935), p. 633. He started from the premise that the general principles of law mentioned in art. 38 I (c) were of a subsidiary character (pp. 679–80). When, however, he discovered that there were some general principles of law “auxquels … en droit international comme dans tous les autres systèmes de droit … est accordée une importance primordiale,” he said: “These principles have in fact acquired such an absolute and indisputable authority that States can no longer elaborate rules which are opposed to them. This particular category of general principles of law … (one has only to think … of the duty to interpret all obligations deriving from a treaty in good faith, … of the nullity of promises obtained through fraud, of the prohibition of the abusive exercise of rights, etc.), … does not, however, belong any more to those ‘general principles of law’ of a subsidiary character mentioned in art. 38, para. 3, but, on account of their inherent legal validity, to jus cogens, absolute and valid vis-à-vis all States” (p. 680. Transl. Author’s italics). It may be pointed out that some of the examples of the special category of general principles of law which, according to Härle, do not belong to the “general principles” mentioned in art. 38 I (c) are precisely those which the framers of the article regarded as typical of this provision, e.g., principle proscribing the abuse of rights (Procès-verbaux, p. 315), principle of good faith (Procès-verbaux, p. 335). Härle refused, however, to accept v. der Heydte’s division of these “general principles” into two categories. F.A. v. der Heydte distinguished, in art. 38 I (c), between (1) certain legal principles recognised by States as an essential part of any legal order, and (2) certain positive rules of municipal law which, though not forming an essential part of every legal order, were recognised by practically all States in foro domestico (op. cit., p. 290, c. 2). He believed that those who maintained the subsidiary character of general principles of law had confused these two distinct kinds of principles (p. 297, c. 1). The first category of “general principles” was considered jus cogens, the second category as of a subsidiary character (pp. 297. c. 2; 298, c. 1). Verdross in his “Les principes généraux dans la jurisprudence internationale” (52 Recueil La Haye (1935), p. 191) revised his previous views by accepting the view of Heydte. He now held that “general principles of law take precedence of (ont la précellence sur le) positive international law. In effect, they are at the foundation of positive law, from which the rules of the latter cannot derogate” (p. 205. Transl.). C. de Visscher, “Contribution à l’étude des sources du droit international,” 3 Recueil Gény, 1936, p. 389, at p. 397.

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Interesting though this discussion of the character of such “general principles” may be in the theory of international law, it is even more important to know what they in fact represent. For this reason, the purpose of the present study is not to ascertain what they ought to be theoretically, or how they should be classified, but is primarily intended to determine what they are in substance and the manner in which they have been applied by international tribunals.18 As an introduction to this study, the genesis of Article 38 I (c) of the Statute of the World Court may usefully be examined. In February, 1920, at its second meeting, the Council of the League of Nations appointed an Advisory Committee of Jurists for the purpose of preparing plans for the establishment of the Permanent Court of International Justice provided for in Article 14 of the Covenant of the League of Nations. This Advisory Committee19 held its meetings from June 16 to July 24, 1920,20 and was able to present its Report together with the Draft Statute of the Court to the Council of the League at its eighth session (July 30—August 5, 1920). Before the Advisory Committee actually met, a Memorandum was submitted to it by the Secretariat of the League of Nations, together with a number of draft schemes prepared by States and individuals, relating to the establishment of a World Court.21 In so far as the law to be applied by the Court was concerned, it will be found that none of these drafts took a positivist22 or v­ oluntarist23 18

19

20 21 22

23

Cf. Memorandum submitted by the Secretary-General of the U.N., Survey of International Law, 1949, A/CN. 4/1/Rev. 1, p. 22. While the Memorandum recognised that in any future codification of international law, no useful purpose would be served by any modification of art. 38 of the Statute of the I.C.J., it added: “A distinct element of usefulness might, however, attach to any commentary accompanying the definition and assembling the experience of the International Court of Justice and of other international tribunals in the application of the various sources of international law.” Members: Mineichiro Adatci, Rafael Altamira, Clovis Bevilaqua (owing to impossibility of attending the meetings, subsequently replaced by Raoul Fernandes), Descamps (Baron), Francis Hagerup, Albert de La Pradelle, Loder, Phillimore (Lord), Arturo Ricci-Busatti, Elihu Root (assisted by James Brown Scott). Secretary-General of the Committee: Dionisio Anzilotti. The minutes of the meeting were published under the title p.c.i.j.: Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, June 16th–July 24th, 1920, with Annexes, 1920. Herein cited as Procès-verbaux. PCIJ: 1 Documents. As used in this work, “positivism” denotes that school of thought which consider that law “properly so called” consists only of rules derived from a “determinate source” or, in other words, rendered “positive” by means of a formal process (cf., infra, p. 23). [Editors’ note: page 470 of this Anthology]. As used in this work “voluntarism” denotes that school of thought which emphasises the element of will in the formation of legal norms, either the will of the State, in the form of a command, or the will of the subjects, as manifested by consent. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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view. Besides treaties and established rules, the Court was ­according to these various drafts directed to apply “general principles of law,”24 “general principles of law and equity,”25 “general principles of justice and equity,”26 or even “rules which, in the considered opinion of the Court, should be the rules of international law.”27 It was, therefore, quite in line with these drafts, which may be considered as a fair indication of the general opinion on the subject, that, when the question of the law to be applied by the Court came up for discussion in the Advisory Committee of Jurists, Baron Descamps, Chairman of the Committee, proposed that, after conventions (clause 1) and commonly recognised custom (clause 2), the Court should apply “the rules of international law as recognised by the legal conscience of civilised nations” (clause 3),28 or, as they were described in the original French version of the proposal, “les règles de droit international telles que les reconnaît la conscience juridique des peuples civilisés.”29 Mr. Elihu Root, the American member of the Committee, while not objecting to the application by the Court of conventions and recognised custom (i.e., clauses 1 and 2 of the Descamps proposal), said that he “could not understand the exact meaning of clause 3.” He wondered whether it was possible to c­ ompel States to submit their disputes to a court, “which would administer not merely law, but also what it deems to be the conscience of civilised peoples.”30 It may be apposite to point out here that although some words, which are identically spelt in French and English, can be literally transposed from one language into the other, others carry subtle but important differences in meaning in the two languages so that literal transposition becomes impossible. Thus the word “conscience,” which exists both in English and in French, while it ­often 24 25 26

27

28 29

30

Draft Scheme of Denmark, Norway and Sweden, art. 27 ii. German Draft Scheme, art. 35. Clovis Bevilaqua’s Draft Scheme, art. 24 ii. Bevilaqua’s second category of rules is in fact customary international law. See his Explanatory Notes ad art. 24 (PCIJ: 1 Documents, p. 371). Art. 42 of the Swiss Draft Scheme establishes the following three categories: conventions, principles of international law, and the general principles of justice and equity. Art. 12 of the Draft of the Union Juridique Internationale directs the court to apply “law, justice and equity.” Draft Scheme of Denmark, Norway and Sweden, art. 27 ii (Alternative). Danish Draft Scheme, art. 15 ii. Norwegian Draft Scheme, art. 15 ii. Swedish Draft Scheme, art. 17 ii. Draft Scheme of the Five Neutral Powers (Denmark, Netherlands, Norway, Sweden, Switzerland), art. 2 ii. Translation of the Secretariat. The proceedings of the Advisory Committee were conducted in French, except in the case of Elihu Root, who used English. “The English text of the Procès-verbaux is to be looked upon as a translation, except in so far as concerns the speeches and remarks of Mr. Root” (Procès-verbaux, p. iv). Procès-verbaux, pp. 293–4. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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conveys the same meaning in both languages, does not invariably do so. “Conscience” has acquired in current English usage a primarily moral and introspective connotation—the sense of what is morally right or wrong possessed by an individual or a group as regards things for which the individual himself, or the group collectively, is responsible.31 In French, “conscience” denotes also “the sense of what is right or wrong,” but not necessarily what is morally right or wrong. For instance, the French speak of “liberté de conscience” for “freedom of belief,” thus distinguishing “conscience religieuse” from “conscience morale.” It follows that “conscience juridique” is equally distinguishable from “conscience morale.” It is a familiar expression with French jurists, meaning “the sense of what is juridically right or wrong.”32 31

32

Cf. The Oxford English Dictionary, sub voce “Conscience”: “4. The internal acknowledgment or recognition of the moral quality of one’s motives and actions; the sense of right or wrong as regards things for which one is responsible; the faculty or principle which pronounces upon the moral quality of one’s actions or motives, approving the right and condemning the wrong.” Ibid., Note on etymology: “The word is etymologically, as its form shows, a noun of condition or function, like science, prescience, intelligence, prudence, etc., and as such originally had no plural: a man or a people had more or less conscience. But in sense 4 [quoted above] it came gradually to be thought of as an individual entity, a member or organ of the mental system, of which each man possessed one, and thus it took a and plural. So my conscience, your conscience, was understood to mean no longer our respective shares or amounts of the common quality conscience, but to be two distinct individual consciences, mine and yours.” It has to be remembered that the word “conscience” in French stands for both “consciousness” and “conscience,” and, even when used in the latter sense, it does not necessarily bear many of the connotations of the word “conscience” in English. Used in the locution “conscience juridique,” “conscience” in fact conveys an idea covering both its meanings in English. “Conscience juridique” first conveys the meaning of the consciousness, or inward knowledge, of the objective law, or, if preferred, of a standard of judgment of human ­behaviour which has come to be specified as juridical, as distinct from the moral, religious or similar disciplines of human thought or conduct. Secondly, it denotes, as a consequence of this knowledge, the sentiment, rising sometimes to conviction, of what is right and wrong according to law (  jus), i.e., the general principles of the legal system. The expression “conscience juridique” was often used by other members of the Committee coming from Latin countries, as well as by Descamps. Thus Ricci-Busatti, of Italy, used the expression during the discussion of this very article. He said that his “conscience juridique” rose against the mention of teachings of writers as a source of law and against the establishment of a hierarchy among the various sources of law referred to in the draft (see Procès-verbaux, p. 332). Clovis Bevilaqua, of Brazil, also used the expression in his Explanatory Notes to his draft Statute of the p.c.i.j. (see PCIJ: 1 Documents, p. 370). The context in which it was used shows, moreover, that “conscience juridique” was identified in nature with the opinio juris in a custom. Indeed, opinio juris communis is often a suitable translation of the term. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Furthermore, although “conscience” in French also implies the passing of judgment upon human actions and motives, it does not invariably mean an introspective judgment upon one’s own actions and motives. Thus “conscience publique” in French merely means “the people’s sense of what is right or wrong” without necessarily implying self-judgment.33 For these reasons, the phrase “la conscience juridique des peuples civilisés” which figured in the Descamps proposal may be translated into English as “the sense common to all civilised peoples34 of what is juridically right or wrong,” or as “the opinio juris communis of civilised mankind.”35

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Dictionnaire Larousse du XXe Siècle defines “Conscience publique” as follows, sub voce “Conscience”: “Sentiment commun à un groupe, à une classe de personnes: La Conscience publique.” Dictionnaire de l’Académie française, sub voce, “Conscience”: “La Conscience publique, Le sentiment qu’un peuple a du bien et du mal. La Conscience du genre humain, Le Sentiment que tous les hommes ont du bien et du mal.” Cf. the following instances where “conscience publique” was used. Montesquieu, Lettres persanes, 129. Speaking of laws with which one disagrees, Montesquieu said: “Whatever may be these laws, one must always follow them and consider them as ‘la conscience publique,’ to which that [i.e., ‘la conscience’] of the individuals must submit.” (Transl.) See also the Preamble to the Hague Conventions Concerning the Laws and Customs of War on Land, 1899 and 1907, which speaks of “the rules and principles of the law of nations resulting” from the “exigences de la conscience publique.” These quotations demonstrate the intimate connection that is considered to exist between the law and the “conscience publique.” “Conscience juridique” is that part of the “conscience publique” which is specifically juridical in nature. It is regarded as the “material source” of the law. It should be noticed that the original proposal of Descamps referred to “peuples civilisés,” i.e., “civilised peoples” or “civilised mankind.” This is important, because the expressions “civilised nations” and “nations civilisées” which are now to be found in the English and French text of Art. 38 I (c) originate from Root’s amendment to the Descamps proposal. This amendment referred to “civilised nations,” which was the English translation used by the Committee of Jurists for Descamps’ “peuples civilisés.” In fact the earlier translation of the Root amendment also used “peuples civilisés” in the French version. Looked at from this angle, the word “nation” in Art. 38 I (c) should be understood not in its politico-legal sense, as it is used in “League of Nations,” “United Nations” or “International Law,” but in its more general sense of a people, as for instance, the Scottish nation, the French nation, the Maori nation, etc. Some further support for this view may be found in the fact that, at certain stages of the drafting of the Article, the word nation in clause 3 was written with a small n, while the same word in clause 4, in the sense of a country, was written with a capital N (see Texte adopté en Ière Lecture, Art. 35, Procès-verbaux, p. 659, at pp. 665–6). These translations are borne out by Descamps’ “Speech on the Rules of Law to be Applied,” delivered at the 14th Meeting of the Advisory Committee of Jurists (Procès-verbaux, pp. 322–5). “La conscience juridique des nations civilisées” was considered as the reflex of “objective justice” in man (p. 323), it was “the law of what is just and what is unjust that has been indelibly written and engraved upon the hearts of civilised peoples” (p. 325. Transl.). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The literal translation of the phrase by “the conscience of civilised nations” would seem to have a different meaning in English, namely, “the moral sense of right and wrong possessed by each civilised nation as regards things for which it is responsible.”36 And, since “conscience” in English denotes an essentially moral quality, the original English translation of the Descamps proposal, which spoke of the “legal conscience of civilised nations,” is, if not self-contradictory, at least difficult to understand, as, indeed, Mr. Root found it.37 The reason why Mr. Root at first objected to the Descamps proposal was certainly more substantial than one arising from a linguistic misunderstanding,38 but a proper understanding of the original proposal is nevertheless important. An examination of the various proposals put forward and opinions expressed during the discussion, concerning the rules of law to be applied by the Court, discloses five distinct views:— (1) First, a group of proposals refrained from indicating to the Court which rules of law it was to apply.39

See also Descamps, Procès-verbaux, p. 318, where he identified it with what “l’opinion universelle” recognised as “justice.” See supra, p. 8, note 32, in fine. [Editors’ note: page 456 of this Anthology] Cf. infra, note 36, in fine. 36 Cf. the use of the phrase in Oppenheim: International Law, Vol. 1, 4th ed., by McNair, London, 1928, p. 14: “The heads of the civilised States, their Governments, their Parliaments, and the public opinion of the whole of civilised humanity, agree and consent that the body of rules for international conduct which is called the Law of Nations shall, if necessary, be enforced by external power, in contradistinction to rules of international morality and courtesy, which are left to the consideration of the conscience of nations.” “Conscience of nations” is thus clearly recognised as a moral concept and stands in contradistinction to “external power,” as morality does to law. “Conscience” is in pectore in each nation regulating its own actions. The quotation also shows the contradistinction between the “conscience of nations” and “the public opinion of the whole of civilised humanity.” “La conscience juridique des peuples civilisés” in fact resembles the latter much more than the former. Cf. supra, note 35. [Editors’ note: page 457 of this Anthology]. 37 See supra, p. 7. [Editors’ note: page 453 of this Anthology]. 38 See infra, pp. 12 et seq. [Editors’ note: page 468 of this Anthology]. 39 La Pradelle, following the proposal of the Union-Juridique Internationale, proposed that the Statute should merely provide: “The Court shall judge in accordance with law, justice and equity.” He considered that while the judge had to decide according to law, “it was not necessary to define law for him” (Procès-verbaux, pp. 295–6). Phillimore was also inclined not to specify the law to be applied by the Court but only to insert in the oath which the judge was to take all that might be considered necessary concerning the law to be applied (ibid., p. 320). Previously he had pointed out that in the English system, the judge took an oath “to do justice according to law” (ibid., p. 315).

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(2) Secondly, the various Scandinavian drafts and that of the Five Neutral Powers,40 inspired by the Swiss Civil Code,41 directed the Court to apply conventions and recognised rules of international law, and, in default of such rules, to apply what, in its considered opinion, the rule of international law on the subject ought to be. The latter part of this proposal was regarded as conferring on the Court a legislative power,42 and, since all the members of the Committee were in agreement that a Court should not legislate,43 this formula did not find any favour.44 (3) Thirdly, there was the proposal of Baron Descamps, which was supported by M. Loder and M. Hagerup and received no serious opposition except from Mr. Elihu Root. In order to appreciate how much this view coincides with the fifth view, which was that of Lord Phillimore’s,45 it must be realised that, in his proposal, Baron Descamps defined international

40 41

Denmark, Netherlands, Norway, Sweden, Switzerland. Cf. Procès-verbaux, p. 296. For Art. 1 of the Swiss Civil Code, see Appendix 2, infra, p. 400, at p. 404. [Editors’ note: not included in this Anthology]. 42 Phillimore, Procès-verbaux, p. 295. 43 Phillimore, ibid., pp. 295, 316, 584; La Pradelle, ibid., p. 296; Elihu Root, ibid., p. 309; Loder, ibid., p. 311; Ricci-Busatti, ibid., 314; Hagerup, ibid., p. 319; Descamps, ibid., pp. 336, 620. The view of the Committee on this problem may also be gauged from a study of the evolution of Art. 38 I (d). The text prepared by the drafting committee of the Advisory Committee read: “The Court shall … apply … 4. rules of law derived from judicial decisions and the teachings of the most highly qualified publicists of the various nations” (ibid., p. 567). At the 27th Meeting of the Advisory Committee (July 19), the following phrase, “as subsidiary means for the determination of rules of law” was added to the end of clause 4 (ibid., p. 584), thus completely altering the meaning of this clause. Judicial decisions and teachings of publicists are no longer regarded as being able to create rules of law applicable to future cases; they serve only as means for the determination of the rules of law. They may properly be called “law-determining agencies” in distinction from “sources of law.” See Schwarzenberger, “The Inductive Approach to International Law,” 60 Harvard Law Review (1946–47), p. 539, at pp. 550 et seq.; 1 International Law, 1949, pp. 8 et seq. This point was further accentuated when at its 30th meeting (July 21), the Advisory Committee deleted the words “rules of law arising from” (Procès-verbaux, pp. 620, 655). The subsequent addition of the express reservation of Art. 59 of the Statute was also designed to avoid operative rules of law being drawn from judicial decisions for cases other than the one decided between the parties. From this examination of the origin of clause (d) of Art. 38 I, it emerges clearly that this clause is different in nature from the other three preceding clauses, and it may be concluded that, in the opinion of the framers of the Article, a court does not legislate or create rules of law and that its decisions are not sources, but only evidence or determining agents of the rules of law. 44 Even the member from Norway, Hagerup, believed, on second thoughts, that it went too far (Procès-verbaux, pp. 296, 319). 45 Infra, pp. 13 et seq. [Editors’ note: page 461 of this Anthology].

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custom as “pratique commune des nations, acceptée par elles comme loi.” As such, his conception of custom was much more restrictive than Lord Phillimore’s. According to the Descamps formula, both the consuetudo and the opinio juris, the two constitutive elements of a custom, have to be common to all nations. Adopting so stringent a view of international custom, it is not surprising that Baron Descamps should classify another portion of international law under a third heading, “les règles de droit international telles que les reconnaît la conscience juridique des peuples civilisés.” While he conceived these as rules of objective justice, he limited the formula to what the opinio juris communis of the civilised world considered as rules of international law. As the formula indicates, they are, in his opinion, already part and parcel of international law.46 These rules of objective justice, Baron Descamps also called “general principles of law,”47 and, as an illustration of the principles he had in mind, he cited the case of the application of the principle of res judicata in the Pious Fund Case by the Permanent Court of Arbitration.48 (4) Fourthly, there was the original view of Mr. Root who seemed ready to admit only clauses 1 and 2 of the Descamps proposal, and even entertained some doubt as to clause 2 concerning the application by the Court of commonly recognised custom.49 The position originally adopted by this distinguished American statesman, who had contributed so much to the establishment of the Permanent Court of International Justice, was, however, actuated more by an earnest wish to see the Statute of the Court accepted by all countries than by strict adherence to juridical principles.50 In this connection, it should be borne in mind that, at that time, the Advisory Committee had agreed in principle that the compulsory jurisdiction of the Court should be accepted by all the Members of the League of Nations by the very fact of adhering to the Statute of the Court. Mr. Root rightly linked this aspect of the question with the rules concerning the 46

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See Descamps’ “Speech on the Rules of Law to be Applied” delivered at the 14th Meeting (July 2, 1920), Procès-verbaux, pp. 322–5, and his quotation from the Preamble of the Hague Conventions Concerning the Laws and Customs of War on Land, 1899 and 1907. See also Statement of Fernandes (ibid., pp. 345–6). Ibid., p. 318. Likewise, Fernandes (p. 345). Ibid., p. 310. Cf. ibid., p. 316, where Phillimore pointed out that the Chairman was referring to the application of the principle of res judicata. Ibid., pp. 293–4. Cf. also ibid., pp. 286–7, where, during the discussion relating to the competence of the Court, Root had already maintained the view that “Nations will submit to positive law, but will not to principles as have not been developed into positive rules supported by an accord between all States.” See Root, ibid., pp. 308–9. Cf. La Pradelle, ibid., p. 314.

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application of law. However unconnected they may be from a juridical standpoint, their relation is certainly real and substantial from the point of view of States called upon to submit to the jurisdiction of the Court. A restrictive formula with regard to the law to be applied would, in Mr. Root’s opinion, have facilitated the acceptance of the step forward in the field of jurisdiction. He was, therefore, disposed to accept the Descamps proposal in respect of all the Court’s jurisdiction other than its ­compulsory jurisdiction.51 He was even disposed to accept it, where the Court had compulsory jurisdiction, so long as the dispute concerned the interpretation of a treaty, breaches of an obligation, the extent and nature of reparation for breach of an obligation, or the interpretation of judgments; but he was not prepared to accept it where the dispute concerned questions of international law in general.52 (5) Finally, there was Lord Phillimore’s amended text of the Descamps proposal, elaborated in conjunction with Mr. Root, which was, in fact, the text adopted by the Advisory Committee. On closer examination, Lord Phillimore’s views were not so different from those of Baron Descamps.53 His attitude with regard to the rules concerning the law to be applied by the Court was perhaps even more liberal than that of Baron Descamps; for he was ready to allow that, in the absence of treaty law, the Court should apply the rules of international law in force “from whatever source they may be derived.”54 But, even on the assumption that, by this formula, Lord Phillimore intended the only alternative to treaty law to be customary law,55 his conception of international custom was much more liberal than that of Baron Descamps; for he declared that, “generally speaking, all the principles of common law are applicable to international relations. They are in fact part of international law.”56 He considered the example cited by Baron Descamps to illustrate “les règles de droit international telles que les reconnaît la conscience juridique des peuples civilisés,” namely, the principle of res judicata, as one of the principles of common law. “This,” he said, “is a principle which has the same 51 Ibid., p. 310. 52 Ibid., pp. 313–4. 53 See supra, pp. 11 et seq. [Editors’ note: page 459 of this Anthology]. 54 Procès-verbaux, pp. 295, 317. 55 This does not seem, however, to be the case; for otherwise he would simply have said conventions and custom. Cf. also ibid., p. 333, where, on being pressed by Ricci-Busatti, Phillimore said that he admitted doctrine as a source of law. 56 Ibid., p. 316. International custom, thus conceived, would cover a much wider ground than merely “common practice between nations, accepted by them as law.”

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character of law as any formulated rule.”57 In other words, there are principles of international law in force which have not yet assumed the form of formulated rules. Indeed, when questioned by Baron Descamps, Lord Phillimore agreed that international law as understood by him resembled natural law.58 Theoretical niceties apart, there is, therefore, little practical difference between the views of Baron Descamps, who held that international law included certain principles of objective justice, and the views of Lord Phillimore, who held that international law included all the ­principles of common law, which itself resembled natural law. Furthermore, Lord Phillimore declared himself generally in agreement with M. Ricci-Busatti59 who had said that the Court should apply “general principles of law.”60 It is, indeed, in this formula that the views of Baron Descamps and Lord Phillimore found their common denominator.61 When, therefore, at the 15th Meeting of the Committee (July 3, 1920), the formula “the general principles of law recognised by civilised nations,” in lieu of the original clause 3, was actually proposed by Mr. Root, who had, in collaboration with Lord Phillimore, prepared an amended text to the Descamps proposal, it was immediately agreed to by Baron Descamps and the rest of the Committee. This is the origin of the present Article 38 I (c) of the Statute of the International Court of Justice.62 Reviewing the discussion in the Advisory Committee, it is quite plain that the Root-Phillimore amendment marked a reversal of Mr. Root’s original attitude and his conversion to the views of Lord Phillimore, to whose pen it seems safe to attribute the amended draft.63 The views of Phillimore and Descamps being in substance the same, there is no foundation for the assertion that the solution ultimately adopted 57 58 59 60 61 62 63

Ibid., p. 316. See French text. Ibid., p. 318. Ibid., p. 333. Ibid., p. 314. Supra, pp. 11 et seq. [Editors’ note: page 459 of this Anthology]. Procès-verbaux, pp. 331 et seq. The formula was presented by Elihu Root, because at the previous meeting, having expressed his disagreement with the Descamps’ proposal, he was asked by Hagerup, who supported Descamps’ views, to formulate his thoughts in writing (ibid., pp. 317–31). Having presented the draft, Root does not seem to have said anything more during the discussion, on the subject of the rules governing the application of law. At the 15th Meeting, when the draft was discussed, it was Phillimore who undertook to explain the meaning of the text, who defended its wording, and who consented to its amendment. In one instance, he spoke of the text “which he had formulated in agreement with [d’accord avec] Mr. Root” (p. 333. Phillimore spoke in French).

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c­ onstituted a rejection of the views of Descamps and the adoption of the original view of Elihu Root.64 Indeed the exact opposite is the case.65 Nor is it true to say that the formula finally arrived at was a “compromise of views very far apart.”66 The formula “general principles of law” is in fact the common denominator of two views which were in substance very much alike.67 With regard to this formula, and also with regard to the article as a whole, it is true to say, in the words of Lord Phillimore, when he moved that the Committee should proceed to the next item of the agenda, that “all the members were in agreement in substance, the criticism was directed only at the form.”68 Indeed, on the general question of the rules governing the application of law by the Court, all members of the Advisory Committee were fundamentally in agreement that the position of the international judge should be the same as that of a national judge.69 The difference of opinion that existed, as Lord Phillimore pointed out, was one between Continental and Anglo-Saxon lawyers in their different approach to the power of the judge. He said:— “These divergences arose from the Continental idea of justice; at the outset strict limitations are imposed on the judges, then through fear of restricting them too much they are given complete freedom within these

64 Härle, op. cit., p. 667. He said that because Elihu Root was in the majority, he was asked to draft the article. For the real reason why Elihu Root presented a draft, see preceding footnote. 65 J.B. Scott, who was present at the meetings of the Advisory Committee as legal adviser to Elihu Root, said in his Presidential address, at the Inaugural Meeting of the Lausanne Session of the Institut de Droit International in 1927 that “the expression general principles of law is only the English version of the phrase, equally precise but more elegant of our Latin friends: ‘la conscience juridique des nations civilisées’” (33 (3) Annuaire (1927), p. 34, at p. 54. Transl.). 66 Kopelmenas, “Quelques Réflexions au sujet de l’Article 38, 3° du Statut de la c.p.j.i.,” 43 r.g.d.i.p. (1936), p. 285, at p. 291. The author maintained that even a superficial reading of the proceedings would lead to this conclusion and, therefore, rejected the discussion in the Advisory Committee as of any value for explaining the meaning of Art. 38 I (c). There is, however, a danger of falling into error in a hasty reading. For instance, at p. 291, note 20, by citing Procès-verbaux, p. 295, he attributed to Phillimore the view that the application of general principles of law would confer upon the Court a legislative power, while in fact Phillimore was not referring to general principles of law at all but to the last part of Art. 2 of the Draft of the Five Neutral Powers. 67 Supra, p. 14. [Editors’ note: page 462 of this Anthology]. 68 Procès-verbaux, p. 338. 69 Cf. Loder (ibid., p. 312), La Pradelle (p. 312), Phillimore (pp. 315, 316), Hagerup (p. 317), Ricci-Busatti, as understood by Phillimore, (pp. 316 in fine, 333), Fernandes (p. 346).

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limits. The English system is different: the judge takes an oath ‘to do justice according to law’.”70 This “Continental” attitude towards the power of the judge to which Lord Phillimore referred may be explained in two ways. First, in codifying rules concerning the application of the law, it is realised in many countries that positive law, even when this includes custom, is insufficient to cover the entire juridical life of the community in all its multifarious and ever-changing aspects. In order to avoid a possible denial of justice, many civil codes expressly provide that the judge, in the absence of express or analogous provisions of positive law, should apply either natural law, as do some earlier codes, or general principles of law, or rules of law which he would lay down if he were himself the legislator.71 Secondly, even where the codes did not expressly recognise the existence and applicability of natural law or general principles of law, legal theory on the Continent, especially in Western Europe, witnessed, at the beginning of the twentieth century, a rising reaction against the excessive positivism and attachment to texts so characteristic of the nineteenth century. In place of the theory of the logical plenitude or self-sufficiency of the positive law, the modern theory maintains that the positive law has always been and always should be guided, supplemented and perhaps even corrected by an unformulated law. The latter is not the product of philosophical speculation as it was in the past, but a real and living force in the life of the legal community. The judge is no longer regarded as an “inanimate being,” “which speaks the words of the law,”72 70

Ibid., p. 315. Cf. also Phillimore, “Scheme for the p.c.i.j.,” 6 Grotius Transactions (1920), p. 89, at p. 94. 71 See infra, pp. 400 et seq., Appendix 2: Municipal Codes which provide for the Application of General Principles of Law, Equity, or Natural Law. [Editors’ note: not included in this Anthology]. 72 Montesquieu, De l’esprit des lois, Bk. xi, Chap. vi, where he also spoke of the power of the judge as being “so terrible among men.” Montesquieu, with his dogma of separation of powers and J.J. Rousseau, with his theory that the written law represented the “General Will,” both contributed to foster the “fetishism of the written law” in the nineteenth century. According to this view, for a judge to supplement or to adapt the law according to circumstances would be to usurp the legislative power or to misapply the general will. At that time, there was also a reaction against the judicial arbitrariness of the ancien régime. Portalis, one of the framers of the Code Napoléon, speaking of his own time, said: “One reasons as if the legislators were gods, and as if the judges were not even human beings” (see P.A. Fenet, 6 Recueil complet des travaux préparatoires du Code Civil, Paris, 1836, pp. 359–61). Despite Portalis’ lamentation, the promulgation of the French Civil Code in 1804 only gave a further impetus to underrate the function of the judge and to exalt the self-sufficiency of the written law (see Bonnecase, L’Ecole de l’Éxégèse en Droit civil, Paris,

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but as an intelligent collaborator of the legislator in the application of this living law.73 This tendency, which has sometimes been characterised as Juridical or ­Judicial Modernism, found a clear expression in a speech by M. Fernandes at the 15th Meeting of the Advisory Committee74 and this speech was regarded

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1924). At the end of the nineteenth century, the untenability of this theory in France was evident when the law as applied by the courts clearly went far beyond the original limits set by the written law (see Cruet, La vie du droit et l’impuissance des lois, Paris, 1908; G. Morin, La révolte des faits contre le Code, Paris, 1920). An important figure in this new tendency of the twentieth century is no doubt François Gény who in 1899 published his Méthode d’interprétation et sources en droit privé positif in which he severely criticised the traditional “fétichisme de la loi,” pointing out that Law consisted in more than its mere positive manifestations through the formal sources of law, i.e., written law and custom, and could only be found by a rational interpretation based on scientific methods. Positive law was not complete and sufficient for regulating all the multifarious aspects of the changing life of society. In the absence of positive rules, the judge was himself to find the rule of law applicable, not arbitrarily, but according to the methods which the ideal legislator would have used, by scrutinising the “nature of things” and those social elements which constitute the real sources of law, guided at the same time by legal science and technique. See also his Science et technique en droit privé positif, Paris, 1914–1924. His theory which had an immediate influence upon legal thinking in France and beyond, was epigrammatically summed up by himself as “Par le Code civil, mais au-delà du Code civil!” Cf. also Hauriou, Précis de droit constitutionnel, 1929, p. 236, note 6: “Mettre le juge au-dessous des principes et au-dessus de la loi écrite.” In Belgium, Vander Eycken published his Méthode positive de l’interprétation juridique in 1907, advocating the teleological interpretation of the law, that is to say, the interpretation of law in accordance with its social function. Cf. also, although these are published after 1920, G. Cornil, Le Droit privé, essai de sociologie simplifiée, Paris, 1924, p. 75: “The legislator and the judge are two organs of expression of the law each of which accomplishes an equally important task: that of the legislator satisfies the need of stability in social relations and that of the judge the no less imperative need of flexibility in social relations” (Transl.). H. de Page, De l’interprétation des lois, Bruxelles, Paris, 1925; and À propos du gouvernement des juges, l’equité en face du droit, Bruxelles, Paris, 1931. In Germany, there was the school of Freirecht, of which one of the more outspoken protagonists, H.-U. Kantorowicz, published in 1906 under the name of Gnaeus Flavius, Der Kampf um die Rechtswissenschaft, Heidelberg. Kantorowicz cited the example of Bartolus in the Middle Ages who is said to have taught his students in solving a case, first to find the solution in accordance with justice and then to find the juridical justification of the solution (op. cit., p. 21). For a summary survey of this movement in Germany up to 1914, see Gény, 1 Méthode d’interprétation, etc., 2nd ed., 1919, pp. 330–403. Procès-verbaux, pp. 345–346. While agreeing that a judge should not be allowed to create international law, Fernandes declared that, even in municipal law, there were certain incontrovertible principles of law derived from the idea of justice, guiding and giving life to the national law. In many cases, the judge would be unable to find an apposite rule of law, written or customary, governing the case presented to him, and would have to apply directly these general principles. In so doing, he would not be creating the law, but

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by the Chairman of the Committee as coinciding “with the general ideas of the Committee and with the project put forward by Mr. Root.”75 It may be said that, in general, this tendency was reflected in the belief that international judicial decisions would be able to contribute to the development of international law by gradually defining it,76 and in the constant concern among the various Continental members that if the international judge were permitted to apply only treaties and custom, he might in certain cases be forced to commit a denial of justice by declaring a non-liquet for want of a positive rule.77 They were anxious to obviate this danger, without, however, attaching too much importance to the formula to be chosen. The two Anglo-Saxon members were apparently the only ones who did not share this general anxiety,78 largely, no doubt, because the problem had not been so acute a subject of controversy in their countries as on the Continent. It was, however, to meet the fear entertained by the members of the Advisory Committee, that they finally agreed to the formula “the general principles of law recognised by civilised nations.”79 As the term “general principles of law” was one of the most usual in codified provisions on the application of law in the municipal sphere—in fact the national law of three of the ten members who drafted the Statute of the Permanent Court of International Justice contained this very formula80—it was hardly surprising that when the question of codifying the provisions on the application of law in the international sphere arose, the same term should be adopted. However, in adopting this provision, the members of the Advisory Committee did not intend to add to the armoury of the international judge a new adjunct to existing international law. Actuated by the belief that ­existing

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only bringing to light a latent rule of law. The same, he said, was true in the ­international sphere. To restrict the judge to the mere application of treaties and custom would be to withdraw from him many cases which involved legal relations between States and were, therefore, susceptible of a legal decision. It is clear from this speech that Fernandes considered that, just as in the municipal sphere, there were certain non-positive legal principles forming part of international law and superior to positive rules of law. See also Loder, ibid., p. 294. Ibid., p. 331. Ibid., pp. 294, 322, 336. This belief of the Committee is further evidenced by the adoption of Art. 38 I (d). For the significance of this provision, see supra, p. 11, note 43. [Editors’ note: page 459 of this Anthology]. Ibid., pp. 296, 311, 312, 313, 317, 318, 332. Cf., however, Ricci-Busatti (ibid., p. 314). But he maintained expressly that the Court had to apply general principles of law. Cf. Phillimore, “Scheme for the p.c.i.j.,” 6 Grotius Transactions (1920), p. 89, at p. 94. I.e., Brazil, Italy, Spain. See Appendix 2, infra, p. 400. The member from Brazil, Bevilaqua, proposed the formula in his Draft scheme. [Editors’ note: not included in this Anthology]. The member from Italy, Ricci-Busatti, was actually the first to use the formula during the discussion of the article in the Advisory Committee (Procès-verbaux, p. 314). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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international law consisted in more than the sum total of positive rules, in ­adopting the formula “the general principles of law recognised by civilised nations,” they were only giving a name to that part of existing international law which is not covered by conventions and custom sensu stricto.81 It was said that the application of these principles had hitherto been a constant practice of international tribunals82 and although it might be said that the latter, in applying them, brought latent rules of law to light, they did not create new rules;83 for the members of the Committee were in agreement that a judge should not legislate.84 If a State consented to the settlement of its disputes in accordance with international law, no special consent was necessary for the application of these general principles. This point was further confirmed by the discussion of this article in the Committees of the First Assembly of the League of Nations, where it was decided that the application of pure equity85 could not be placed on the same footing as the application of these general principles but must have the express consent of the parties concerned; hence the separate formulation of the provision in Article 38 2 of the Statute which provides that Article 38 1 “shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”86 A contrario, therefore, the application of general principles of law needs no special consent, which means that these 81

See the Speeches of Descamps and Fernandes (ibid., pp. 322–5, 345–6). Cf. also Loder (ibid., p. 294); Hagerup (pp. 296, 335), Phillimore (supra, pp. 13 et seq.) [Editors’ note: page 461 of this Anthology]. 82 Ibid., p. 310. 83 Cf. Fernandes’ speech at the 15th Meeting (ibid., p. 346), Loder (p. 294). 84 See supra, p. 11. [Editors’ note: page 459 of this Anthology]. 85 I.e., the application of equity not only secundum legem and praeter legem but also, if necessary, contra legem. 86 At the 7th meeting of the Sub-Committee of the Third Committee of the First Assembly, when the present article came up for discussion, Fromageot raised the question whether under the existing terms, the Court had the power to confirm an arrangement (“un jugement d’accord”) reached between the parties, and subsequently proposed that clause 3 should read “general principles of law and justice.” He explained that the amendment would allow the Court to ground its judgments solely on considerations of equity, although this did not imply that the Court might disregard existing rules (PCIJ: 2 Documents, p. 145). This amendment was adopted. At a subsequent meeting of the SubCommittee, Politis raised the question whether the amended text actually reflected the opinion of the Sub-Committee on the subject. This opinion, according to Politis, was that the right to apply general principles of justice existed only by virtue of an agreement between the parties. He consequently proposed the following formulation: “The general principles of law and, with the consent of the parties, the general principles of justice recognised by civilised nations.” After a discussion, the original formulation of the Committee of Jurists was retained, and the insertion of a new sentence was approved which read: “This provision shall not prejudice the power of the Court to decide a case ex aequo et bono if the parties agree thereto” (ibid., p. 157). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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principles form part of the existing international law. Furthermore, during the discussion in the Committees of the First Assembly, the words “in the order following” (“en ordre successif   ”) in the introductory phrase of the draft article were deleted87 thus eliminating any notion of hierarchy from the threefold classification of international law.88 With these modifications,89 the draft article became Article 38 of the Statute of the Permanent Court of International Justice and was unanimously adopted by the First Assembly of the League of Nations on December 13, 1920. Save for a literal amendment in the French text,90 the article suffered no modification during the lifetime of the Permanent Court. When the Permanent Court was to be replaced by a new World Court, the general opinion with regard to the provision concerning the application of the law was accurately summarised in the words of the Report of the Informal Inter-Allied Committee on the Future of the Permanent Court:—

87 88

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On a proposal of Loder and Fromageot (ibid., p. 145). The following words in the draft of the Advisory Committee were also considered as unnecessary and deleted: “Within the limits of its jurisdiction as defined above” (ibid., p. 145). Already in the Advisory Committee, Ricci-Busatti did not approve of the expression “ordre successif.” He thought that the judge should consider the various sources of law simultaneously in relation one to another (Procès-verbaux, p. 332). Descamps, however, preferred a classified gradation of sources (pp. 318–9, 336). Phillimore, who proposed the amended version of the article with Root, did not attach much importance to those words which he borrowed from the Descamps proposal. The enumeration was regarded only as following the logical order in which these rules or principles of law would occur to the mind of the judge (p. 333). See also ibid.; pp. 337 et seq. During the Meeting of Committee iv/i of the San Francisco Conference of the United Nations, 1945, the question was raised, when Art. 38 of the Statute of the Court came up for discussion, whether this Article, “enumerating the sources of law to be applied by the Court, intends also to stipulate the order in which they are to be resorted to. The two observers for the p.c.i.j. [Guerrero and Hudson], invited by the Chairman to comment, agreed that it did not” (uncio: 13 Documents, p. 164). As Ricci-Busatti said in the Advisory Committee, “If the expression ‘ordre successif   ’ only meant that a convention should be considered before, for instance, customary law, it is unnecessary” (Procès-verbaux, p. 337). This is already one of the fundamental principles of law (ibid.). Besides the modifications indicated above, there was also an addition to clause 4 of the words “subject to the provision of Art. 57 (bis)” (i.e., Art. 59 of the Statute), by the Council of the League of Nations at its 10th session (Brussels, October, 1920), an addition which did not alter the substance of the article. Before the Revision of the Statute of the p.c.i.j. pursuant to the Protocol of September 14, 1929, there was no equivalent expression in the French text of clause 4 of Art. 38 for the words “of the various nations” which existed in the English text. The two texts were brought into literal conformity during the revision by the insertion of the words “des diverses nations” in the French text. L.o.N.P.:C.166.M.66.1929.v. (1929. v.5.), p. 62. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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“140. The law to be applied by the Court is set out in Article 38 of the Statute, and, although the wording of this provision is open to certain criticisms, it has worked well in practice and its retention is recommended (paragraph 62).”91 Thus Article 38 of the Statute of the Permanent Court was adopted by the United Nations as Article 38 of the Statute of the International Court of Justice, with the mere addition in the introductory phrase of the words: “whose function is to decide in accordance with international law such disputes as are submitted to it” after “The Court.” No new element was thus introduced except perhaps an emphasis on the fact that the various rules and principles enumerated in paragraph I of the Article all form part of existing international law.92 Further testimony to the declaratory nature of Article 38 of the Statute may be found in a Memorandum of the Secretary-General of the United Nations who, when speaking of the Sources of International Law, said:— “The codification of this aspect of international law has been successfully accomplished by the definition of the sources of international law as given in Article 38 of the Statute of the International Court of Justice. That definition has been repeatedly treated as authoritative by international arbitral tribunals.”93 In some future Code of International Law it may confidently be expected that general principles of law will figure as an integral part of international law in any provision governing the application of law in the international sphere. Having thus examined the origin of Article 38 I (c) of the Statute of the International Court of Justice, it is now possible to grasp more accurately the meaning of this provision and of the Article as a whole. Article 38 of the Statute involves a juridical problem which confronts all systems of law, namely, what does law consist of and what are its sources?94 As 91

Report of the Informal Inter-Allied Committee on the Future of the p.c.i.j. (February 10, 1944), Cmd. 6531, 1944, p. 36. This is the conclusion and recommendation of the Committee as contained in Chap. xii of the Report. Paragraph 62 contains the fuller discussion of the subject (pp. 18–19). Similar views were held by Wang Chung-Hui (a former judge of the p.c.i.j.) and Basdevant (a judge of the I.C.J.) in the United Nations Committee of Jurists (uncio: 14 Documents, pp. 170–171). 92 See supra, p. 2, note 5. [Editors’ note: page 450 of this Anthology]. 93 U.N.: Survey of International Law in Relation to the Work of Codification of the International Law Commission (Memorandum submitted by the Secretary-General), 1949, A/CN.4/1/ Rev.1., p. 22. 94 Cf. La Pradelle, Procès-verbaux, p. 295. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the problem is so universal, it is not surprising that the theories and practice developed in municipal systems of law in this connection have exerted their influence upon the minds of those who were called upon to deal with it in the international sphere. The Article introduced nothing new in substance. It only effected a threefold division of existing international law into conventions, international custom, and general principles of law. The order in which these component parts of international law are enumerated is not, however, intended to represent a juridical hierarchy, but merely to indicate the order in which they would normally present themselves to the mind of an international judge when called upon to decide a dispute in accordance with international law. There is nothing to prevent these three categories of rules or principles of international law from being simultaneously present in the mind of the judge.95 His task consists precisely in declaring which are the relevant rules applicable to the case, in accordance with international law as a whole. Since conventions between the parties, international custom, and general principles of law may all furnish valid rules operative in the international sphere and capable of solving international legal questions, they constitute “sources” of international law. In distinction to sources of law, judicial decisions and the teachings of publicists, as they do not create rules of law but only serve as means for determining such rules, may properly be called lawdetermining agencies.96 The “sources” of law referred to here differ from the so-called “formal sources” of law which imply a special technique of legal formation.97 The adoption of Article 38 of the Statute of the Court is, in fact, a repudiation of the theory that only rules created by means of a formal process

95 Supra, p. 20. [Editors’ note: pages 467–468 of this Anthology]. 96 See supra, p. 1, note 3, and p. 11, note 43. [Editors’ note: page 449; 459 of this Anthology]. 97 Cf. Kopelmanas, “Essai d’une théorie des sources formelles du droit international,” 21 r.d.i. (1938), p. 101. The weakness of this theory consists in its conception of law as a mere bundle of individual and precisely formulated rules each bearing the hall mark of the special process by which it has been produced, thus elevating what is no more than a legal technique to the position of the source of legal validity, the source whence these processes receive their exclusive competence to make law remaining thus unexplained and unexplainable. The theory originates from the municipal sphere where, the technique of law being much more developed, it may have a semblance of truth. It fits very badly, however, into international law where few rules have received a precise formulation. In order to bring his theory more into line with reality, Kopelmanas is forced to give a very wide interpretation to “custom” (cf. his “Custom as a Means of the Creation of International Law,” 18 b.y.i.l. (1937), p. 127).

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are valid. It upholds the view that, like municipal systems of law, international law contains a number of unformulated principles.98 While conventions can be easily distinguished from the two other sources of international law, the line of demarcation between custom and general principles of law recognised by civilised nations is often not very clear, since international custom or customary international law, understood in a broad sense, may include all that is unwritten in international law, i.e., both custom and general principles of law.99 In Article 38, however, custom is used in a strict sense, being confined to what is a general practice among States accepted by them as law. General practice among nations, as well as the recognition of its legal character, is therefore required. It should be observed that the emphasis in the definition of what constitutes a custom lies not in the rule involved in the general practice, but rather in its being part of objective law as a whole. In the definition of the third source of international law, there is also the element of recognition on the part of civilised peoples but the requirement of a general practice is absent. The object of recognition is, therefore, no longer the legal character of the rule implied in an international usage, but the existence of certain principles intrinsically legal in nature. This part of international law consists in the general principles of that social phenomenon common to all civilised societies which is called law. Principles are to be distinguished from rules. “A rule … is essentially practical and, moreover, binding; there are rules of art as there are rules of government, while a principle expresses a general truth, which guides our action, serves as a theoretical basis for the various acts of our life, and the application of which to reality produces a given consequence.”100 This part of international law does not consist, therefore, in specific rules formulated for practical purposes, but in general propositions underlying the 98

Supra, pp. 6 et seq., 12, 14, 18–9. [Editors’ note: pages 454; 460; 462; 465–466 of this Anthology]. 99 Phillimore, for example, understood custom in a very broad sense. He considered all that part of international law which was not convention to be customary international law (Procès-verbaux, pp. 295–311). But his conception of custom was that of a Common Law (ibid., p. 316; Phillimore, “Scheme for the p.c.i.j.,” 6 Grotius Transactions (1920), p. 89, at p. 94), which in reality resembled natural law (Procès-verbaux, p. 318). Cf. also La Pradelle (ibid., p. 335); Raestad, “‘Droit coutumier’ et principes généraux en droit international,” 4 a.s.j.g. (n.t.i.r.) (1933), p. 62, at p. 62. 100 Ital.-Ven. M.C.C. (1903): Gentini Case, Ven. Arb. 1903, p. 720, at p. 725, the Umpire quoting Bourguignon & Bergerol’s Dictionnaire des Synonymes. Transl. See infra, p. 376. [Editors’ note: not included in this Anthology].

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v­ arious rules of law which express the essential qualities of juridical truth itself, in short of Law. Thus Lord Phillimore, who proposed the formula, explained that by general principles of law he meant “maxims of law.”101 But how is it possible to ascertain whether a given principle is a principle of law and not of another cognate social discipline, such as religion or morality? The recognition of its legal character by civilised peoples supplies the necessary element of determination. Lord Phillimore also explained that the principles referred to in Article 38 I (c) were those which were “accepted by all nations in foro domestico.”102 M. de La Pradelle took them to mean that general principles of law were the basis of the municipal law of all or nearly all States.103 The recognition of these principles in the municipal law of civilised peoples, where the conception of law is already highly developed, gives the necessary confirmation and evidence of the juridical character of the principle concerned. The qualification “recognised by civilised nations” was intended to safeguard against subjectivity and possible arbitrariness on the part of the judge.104 It should be noticed, however, that the word nation was originally used in the sense of “people” rather than “State.”105 The qualifying epithet “civilised” was, therefore, necessary in order to exclude from consideration systems of law of primitive communities which were not yet civilised.106 At a later stage, however, it would seem that the term was sometimes understood in the sense of States, in which case the word “civilised” must be considered as merely redundant, since any State which is a member of the international society must be considered as civilised.107 Amongst the examples of these general principles of law ­recognised by ­civilised nations, which were cited in the travaux 101 102 103 104 105 106

Procès-verbaux, p. 335. Ibid., p. 335. Ibid., p. 335. Cf. Descamps (ibid., pp. 311, 323 et seq.). Cf. supra, p. 9, note 34. [Editors’ note: page 457 of this Anthology]. Cf., however, La Pradelle (Procès-verbaux, p. 335) who maintained that law implied civilisation. But see Abu Dhabi Oil Arbitration (1951) (1 i.c.l.q. (1952) p. 247). While recognising that prima facie the concession-contract granted by the Ruler of Abu Dhabi should be governed by the law of Abu Dhabi, the Arbitrator excluded it on the ground that: “The Sheikh administers a purely discretionary justice with the assistance of the Koran; and it would be fanciful to suggest that in this very primitive region there is any settled body of legal principles applicable to the construction of modern commercial instruments” (pp. 250–1). Instead, he applied what were in fact “general principles of law” which he called “a sort of ‘modern law of nature’” (p. 251). 107 Cf. Ital.-Ven. M.C.C. (1903): Sambiaggio Case, Ven.-Arb. 1903, p. 66, at p. 691. ICJ: Reparation for Injuries suffered in the service of the U.N. (1949) Adv. Op., D.O. by Krylov, i.c.j. Reports, 1949, p. 174, at p. 219. Krylov referred to these principles as “general principles of law (­recognised by the nations)” omitting the word “civilised.” Cf. Krylov, “Les notions

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­préparatoires of the Article, were the principle of res judicata, the principle of good faith, certain principles relating to procedure,108 the principle that what is not forbidden is allowed, the principle proscribing the abuse of rights, the principle according to which, under special circumstances, the stronger takes ­rightful precedence over the weaker,109 and the principle lex specialis generalibus derogat.110 The ensuing pages are an investigation, based on the decisions of international courts and tribunals, into the substance of such general principles of law, as envisaged by Article 38 I (c) of the Statute of the International Court of Justice, and the limits of their application in international law. Without being exhaustive, the result of this investigation will show four main categories of general principles, which, it is gratifying to note, correspond to or include many of the examples of such principles cited by the framers of the provision. These four categories will be examined in the following order: 1. The principle of Self-Preservation, in which it will be found that what has been called the principle, according to which under special circumstances the stronger takes rightful precedence over the weaker, is but a special aspect; 2. The principle of Good Faith, which includes the principle proscribing the abuse of rights; 3. The juridical concept of Responsibility as an indispensable element in any juridical order and the general principles of law comprised in this concept; 4. Certain general principles of law in Judicial Proceedings. principales du Droit des Gens (La doctrine Soviètique du droit international),” 70 Recueil La Haye (1947), p. 407, at p. 449. 108 Procès-verbaux, p. 335. 109 Ibid., pp. 314–5, per Ricci-Busatti. La Pradelle was against the last-mentioned principle (p. 315). 110 Ibid., p. 337.

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Chapter 19

Gerald Fitzmaurice, Some Problems Regarding the Formal Sources of International Law, 1958 Comment by Sir Michael Wood, International Law Commission This short essay by Sir Gerald Fitzmaurice is important both for the light it sheds on some fundamental matters concerning the sources of international law, and for what is tells us about this most eminent jurist’s approach to the law. It is also a classic example of Fitzmaurice’s style. Fitzmaurice was first and foremost a practitioner, as the Foreign Office Legal Adviser between 1932 and 1960, and then successively Judge of the International Court of Justice and of the European Court of Human Rights. Nevertheless, he could write in what, superficially, may seem to be a highly theoretical, even dogmatic way. He was, after all, the member of the ILC who, as Special Rapporteur, insisted that the law of treaties should be dealt with as an expository code and not as a “treaty on the law of treaties”. His successor as Special Rapporteur, the academic Professor Waldock, had no such inhibitions, and virtually made his acceptance of the post conditional on the draft articles being given the form of a convention, which turned out to be a thoroughly practical decision. The present piece deals briefly but magisterially with some central issues at the heart of Fitzmaurice’s approach to the law. These include his view that treaties, including “law-making” treaties, are a source of obligation, not of law; that certain rules of law (which he terms “natural law”) have an inherent and necessary validity; and that decisions of international tribunals are a “quasiformal source”, and are not properly described as a “subsidiary means” on a level with writings (“juridical opinions”). He ends with a penetrating critique of the terms of Article 38, paragraph 1 of the Statute of the International Court of Justice. The article dates from 1958, and being in a Festschrift can be hard to locate. That alone justifies its inclusion in this collection. While written almost 60 years ago, the piece, like all of Fitzmaurice’s extensive writings, retains to the full its relevance and interest.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_020

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G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in FM van Asbeck et al (eds), Symbolae Verzijl (Martinus Nijhoff 1958) pp. 153–76. Reproduced with the kind permission of Brill Nijhoff.

Some Problems Regarding the Formal Sources of International Law Gerald Fitzmaurice I

Introduction

The sources of law are commonly classified as “formal” and “material”. Side by side with these there are the “evidences” or records of law. Thus, if State practice, for instance, is a source of law, it would be incorrect to regard such things as documents embodying diplomatic representations, notes of protest, etc., as constituting sources of law. They are evidences of it because they demonstrate certain attitudes on the part of States, but it is the State practice so evidenced which is the source of law. Accepting this classification, it is of course possible to use other terms to describe the formal and material sources. Thus they may be described as, respectively, the legal sources and the historical sources, as direct and indirect, as proximate or immediate, and remote or ultimate, and so on. Or, as has been suggested,1 the material sources might better be described as the “origins” of law. But whatever the terminology used, the essence of the distinction remains the same. Material, historical, indirect sources represent, so to speak, the stuff out of which the law is made. It is they which go to form the content of the law. These are the sources to which the lawgiver goes, so to speak, in order to obtain ideas, or to decide what the law is to consist of, and this is broadly true whether the lawgiver be conceived of as a national legislature, or as the international community evolving customary rules through State practice. The formal, legal, and direct sources consist of the acts or facts whereby this content, whatever it may be and from whatever material source it may be drawn, is clothed with legal validity and obligatory force. The essence of the distinction therefore is 1 By P.E. Corbett. Amongst the considerable literature of the subject, the three contributions which the present writer has found of special practical value, are, in order of date, Corbett’s “The Consent of States and the Sources of the Law of Nations,” British Year Book of International Law, Vol. 5 (1925), pp. 20–30; Heilborn’s “Les Sources du Droit International” in Hague Recueil, 1926, Vol. i, pp. 5–60; and Professor Alf Ross’ A Text Book of International Law (1947), Chapter ii. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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between the thing which inspires the content of the law, and the thing which gives that content its obligatory character as law. The present paper is not, save incidentally, concerned with the material sources of law, but only with the formal sources, and its principal object is to question three very commonly received views as to the character of the formal sources of international law, namely first, that treaties are formal sources of law; secondly, that natural law is not a formal source of law but only a material source; and thirdly that the decisions of international tribunals are nothing more than material sources of law. On the first of these points, the present p ­ aper suggests that treaties are not, in the proper sense of the term, formal sources of law. They may, according to circumstances, afford evidence of what the law is, or they may lead to the formation of law and thus be m ­ aterial ­sources. But they are in themselves sources of obligation rather than s­ ources of law – (the distinction between these two concepts is discussed below). ­Secondly, it will be suggested that, as regards natural law, a certain branch of it at any rate, must be regarded as a direct source of law; that there are certain rules and principles having such inherent validity that they cannot be either contested or dispensed with, so that they must form part of any legal system. In this aspect, therefore, at least, natural law operates as a formal source of law. On the third point, it will be suggested that the decisions of international tribunals, while not operating directly as judicial precedents, and while not therefore technically a formal source of law, have a status different from that of a merely material source, and could be characterized as quasi-formal in character. A further point which the paper will seek to bring out is the distinction between the source of law and the source of obligation, failure to recognise which has often led to confusion. Two distinct concepts are here involved. They may of course coincide – for instance, the same instrument may be both a source of law and a source of obligation, as in the case of an act of the legislature. But equally, an instrument may be a source of obligation only, and not a source of law, as, for instance, in the case of the ordinary contract. Confusion also results from a failure to distinguish between the source of the obligation to obey law in general, and as such, and the source of the obligation to obey some particular rule of law. The first answers the question “Why am I obliged to obey the law, whatever it may be at any given time?”; the other answers the question “How did this particular rule become part of the law I am obliged at this time to obey?” In the present paper it will not be possible to deal with all these matters (and others not mentioned) fully and systematically, whilst considerations of space will compel a somewhat dogmatic form of treatment. The observations contained in the paper are therefore in the nature of reflections which the ­author hopes to return to on some other occasion. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

478 II

Fitzmaurice

Why is There Controversy about the Sources of International Law?

It would normally be expected that the exponents of any legal system, even if they differed to a certain extent as to the precise character and mode of application of certain parts of the system, and of its rules, would be in broad agreement on the subject of sources. In the field of domestic, as opposed to international law, this may well be the case, although the reason for its being so may rather be that there is not the same occasion for underlying differences to find open expression. In the domestic field there is a fairly close identity, or apparent identity, between the source of the obligation (the obligation to obey a given rule) and the source of the law (i.e. of the rule itself) – between what the rule is, and what makes it law. This identity is most conspicuously seen in the legislative act, which both makes the law, and declares the obligation to obey it – i.e. creates the rule and enjoins that it must be obeyed. Yet even here, this is not the whole story. On the one hand, if the obligation to obey the rule set out in the legislative act springs from (i.e. has its source in) that act, the obligation to obey a given rule because it is formulated in such an act (i.e. is created by statute) does not, and cannot, spring from the particular legislative act itself, but only from an anterior general rule of law, deriving from the constitution, to the effect that acts of the legislature have the force of law and must be obeyed. Thus, if the statute is both the formal source of the rule, and of the obligation to conform to it, the constitution is the formal source of the obligation to conform to the statute and whatever rules it may contain, and thus indirectly or ultimately of the particular rule itself.2 Equally on the side of the content of the rule, the statute no doubt states this content – has indeed as its principal object to do so – and is in that sense the formal source of such content; but the material source of the content of the rule will lie outside the statute – in the intentions of the legislators, or the views of some executive department of the government – which may in turn be derived from further sources – e.g. expressions of popular opinion, the advice of technicians, etc. In the domestic field, these distinctions and possible ambiguities, and the difficulties both of theory and of terminology which they may involve, tend to remain latent. They are discussed as part of the science of jurisprudence, but have comparatively few repercussions on the content, the formation, the execution, or the interpretation of the law. In the international law field, 2 The question of the ultimate source of all legal obligation is one of some difficulty, and this paper does not profess to deal with it. For certain tentative reflexions showing the present writer’s approach to that subject, see his ,,The Foundations of the Authority of International Law and the Problem of Enforcement” in The Modern Law Review, January, 1956, pp. 1–13.

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the differences of view are much greater, more openly discussed, and have more immediate repercussions. There is a direct relationship between certain differences of approach to international law, certain controversies as to its basic character, on the one hand, and, on the other, certain divergencies of view as to its sources, both formal and material. These divergencies are, in their turn, c­ apable of influencing the content – or the view taken or suggested as to the content – of the law. For this there are several reasons – some of them ­obvious – that need not be discussed here; but perhaps the simplest way to approach the matter is through one of its most prominent elements, namely the absence in the international field of any legislator, legislature or statute law – a fact which has a variety of consequences. III

Are Treaties Sources of Law?

It is often said,3 and sometimes simply assumed that in the international field, treaties, and international agreements generally, are the equivalent of the domestic law statute, or at least a substitute for it, and serve a substantially similar purpose. But this is certainly an overstatement, if it is accurate at all, and it has had particularly unfortunate consequences in promoting a readiness to view treaties as a source of law of basically the same kind as statutes. Actually, if treaties (so constantly coupled with custom as one of the two main formal sources of international law) are a source of law at all (which is not strictly the case), this is never in the same sense as a statute. Treaties are, if anything, a material rather than a formal source of law. Even so called “law making” treaties do not really create law in the proper sense of the term,4 though they may lead to its emergence if their provisions are eventually caught up, so to speak, into the general body of customary international law, so as to bind even nonparties; or they may reflect it, where these provisions are simply declaratory or codificatory of existing general rules of law. They are then evidences of law, and of course a given treaty may (and many treaties do) have a double aspect, both declaring existing law and creating (not new law but) new conventional obligations that may lead to or become law.

3 The idea of treaties as a formal source of law is particularly attractive to opinion in the newer countries where there sometimes seems to be a feeling that customary international law is a sort of res inter alios acta. 4 i.e. as meaning rules of general validity for and application to the subjects of the legal system, not arising from particular obligations or undertakings on their part.

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Considered in themselves, and particularly in their inception, treaties are, formally, a source of obligation rather than a source of law. In their contractual aspect,5 they are no more a source of law than an ordinary private law contract; which simply creates rights and obligations. Such instruments (as also, on the international plane, a commercial treaty, for example) create obligations and rights, not law. In this connexion, the attempts which have been made to ascribe a law-making character to all treaties irrespective of the character of their content or the number of the parties to them, by postulating that some treaties create “particular” international law and others “general”, is of extremely dubious validity. There is really no such thing as “particular” international treaty law, though there are particular international treaty rights and obligations. The only “law” that enters into these is derived, not from the treaty creating them – or from any treaty – but from the principle pacta sunt servanda – an antecedent general principle of law. The law is that the obligation must be carried out, but the obligation is not, in itself, law.6 A genuine law may of course be applicable only to certain particular subjects of the legal system, but if so it is usually as members of a class, not as individuals. For instance, a law relating to married women obviously applies only to women who are married. But it applies automatically and ipso facto to all such women, not merely to those individual women who have set their hands to some particular instrument. In the latter event there would be rights or obligations for the women concerned, but not law – or if law, it would be something extraneous to the right or obligation, and general, not particular – i.e. that all rights and obligations thus arising must be honoured. A statute is always, from its inception, law: a treaty may reflect, or lead to, law, but, particularly in its inception, is not, as such, “law”. So called treaty law is really pseudo-law – a droit fainéant. In itself, the treaty and the “law” it contains only applies to the parties to it. True, where it reflects (e.g. codifies) existing law, non-parties may conform to the same rules, but they do so by virtue of the rules of general law thus reflected in the treaty, not by virtue of the treaty itself. In that sense, the treaty may be an instrument in which the law is conveniently stated, and evidence of what it is, but it is still not itself the law – it is still formally not a source of law but only evidence of it. Where a treaty is, or rather becomes, a material source of law, because the rules 5 It may be recalled that in the Reservations to the Genocide Convention case, the jointly dissenting Judges (Guerrero, McNair, Read and Hsu Mo), speaking of the so-called “law-making” general multilateral convention, pointed out that the circumstance “that this activity is often described as ‘legislative’ or ‘quasi-legislative’, must not obscure the fact that the legal basis of these conventions, and the essential thing that brings them into force, is the common consent of the parties”– (I.C.J. Reports, 1951, p. 32). 6 Cf. Corbett, op. cit., pp. 27–28, on this part of the subject generally.

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it contains come to be generally regarded as representing rules of universal applicability, it will nevertheless be the case that when non-parties apply or conform to these rules, this will be because the rules are or have become rules of general law: it is in the application of this general law, not of the treaty, that non-parties will act. For them, the rules are law; but the treaty is not the law, though it may be both the material source of it, and correctly state it. This position is equally true, strictly speaking, of parties to the treaty also. If the treaty reflects (codifies) existing law, then, in applying it, the parties merely conform to general law obligations already valid for them. The treaty may state what these obligations are, or define the scope of them, but it does not thereby alter their character as rules of general law to which the parties would be obliged to conform even in the absence of the treaty. In so far as it might purport to do so, it would cease merely to codify, and would create – not (for reasons already given) new law, but merely new particular obligations between, or vis-a-vis, particular parties.7 In the case of any provisions of a codificatory character, it is clear that the treaty (even for the parties) declares but does not create the law. It may (as between the parties) create a new basis of obligation to conform to the law, but does not on that account become the formal source of the law, even between the parties – just as, if, in the domestic field, one man were to enter into a contract with another, or subscribe to an undertaking to accord that other certain rights that were in any case due to him under the general law of the country, the contract or undertaking would still not constitute the source of the law thus implemented, though it might be the source of an additional or reinforced obligation to obey it.8 The position is the same, even as regards parties to a treaty, in those cases where the treaty does not reflect existing law but leads to the emergence of a new general rule of law. Before that occurs, the parties apply the treaty, not as law, but as an obligation inter se which antecedent general law respecting treaties compels them to carry out because they have undertaken to do so. If the treaty rule does eventually pass into general law, its formal source as law 7 These may eventually lead to the emergence of law (see below) and of course many “lawmaking” treaties have a double aspect – the declaratory or codificatory, and the development or progressive. 8 A codifying statute (under domestic law), even if purely declaratory of existing general or common law is in a different position – for being general and not founded on contract, but legislative in character, it becomes an independent formal source, not merely of the obligation to conform to the law it codifies, but of that law itself, and one which, because of its immediate and universal application to all the subjects of the legal system, supersedes the general or common law source. If the statute were subsequently repealed, the former common law rule would not revive or persist.

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(­subject to a point to be discussed presently) is clearly custom or practice – i.e. its adoption into general customary law. The parties, in applying it, are no doubt also (or still) applying the treaty: but, as they would now be bound to apply it even if there were no treaty (or if the treaty, quâ instrument, had lapsed or the party concerned had formally “denounced”, or given notice of withdrawal from it), its legal basis as law is clearly not the treaty, although it retains a treaty basis of obligation so far as the parties inter se are concerned. In the present writer’s opinion, the technical position would not really be any different even if it should happen that all the States of the world became parties to a treaty, and it were soi-disant ,,law-making” in character. A little reflection will show that the considerations mentioned above would still be applicable. Admittedly there would be general consent, but it would be this consent that would generate the law, and the treaty would merely be evidence of the consent. It is easy to be misled by the illusion or appearance of legislation, and the “statutory” overtones, caused in such a case by universal or quasi-universal participation; yet the basis of the obligation is and remains conventional, not statutory. Treaties have in fact, in themselves, only a pseudolegislative character. Does it follow from the foregoing analysis that international usage or custom (State practice etc.) is the only true formal source of international law? Before that question is considered, let it be noted that the above analysis serves at least to provide one reason for the existing uncertainties and controversies as to the sources of international law – for, if valid, it establishes that in the international field there is nothing that really quite corresponds to what, in the domestic field, is the formal source of law par excellence: legislation. This creates a sort of vacuum, in which controversy can flourish. But that is not all, for in the international field there exist certain fundamental obstacles to agreement on the subject of sources. IV

Can the Sources of Law Ever be Exhaustively Determined?

Some authorities have denied that any final determination as to the sources of law is possible. Thus Professor Alf Ross has very pertinently written:9 … the doctrine of the sources can never rest on precepts contained in one among the legal sources the existence of which the doctrine itself 9 Op. cit., p. 83.

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was meant to prove. The basis of the doctrine of legal sources is in all cases actual practice and that alone. The attempt to set up authoritative precepts for the sources of law must be regarded as later doctrinal reflections of the facts, which often are incomplete or misleading in the face of reality. There is clearly a great deal in this view. To re-state it in somewhat more mathematical form – if there is a rule that the sources of all rules must be found in either a, b, c, or d, then that rule must itself derive from a, b, c, or d: it would then become necessary to find an independent rule not deriving from a, b, c, or d, establishing the validity of a, b, c, and d themselves as sources: but this rule (whose source would not be a, b, c, or d) must itself have a source, say e: then a rule to establish the validity of e would be required, and an independent source, f, for that rule – and so on indefinitely. Leaving ultimates aside, what this shows is not so much that the sources of law are undiscoverable, as that they can never be exhaustively stated – for any proposition to the effect that a, b, c, and d…. (e) … (f) … etc., are the sources, and the only sources of law, must immediately be falsified by the fact that this proposition could only be established by invoking a further and independent proposition which would give the original proposition itself its validity, but which (requiring as it must a further and separate source) would then, by its very existence, be simultaneously destructive of the original proposition. A particular application of this position must now be considered. V

Natural Law as a Formal Source of Law

This matter may be approached as follows. On the basis of the view frequently expressed that, material sources apart, there are only two sources (i.e. two formal sources) of international law, namely treaty and custom, the analysis made earlier seems to eliminate the treaty as a formal source of law, and to re-classify it either as evidence in those cases where (or in so far as) the treaty is declaratory (codificatory) of existing law, or as a material source in those cases where (or in so far as) the treaty leads or contributes to the formation of a new customary rule of law. This would leave international usage or custom in sole possession of the field, if the frequently expressed view about treaty and custom as being the only formal sources of international law were otherwise unchallengeable. But two other candidates for inclusion amongst such sources have been nominated as it were – judicial precedent and the jus naturae, and their claims must now be considered, beginning with the latter.

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Few, even among the positivist – voluntarists, would deny that natural law is a material source of international law, apart from those extremists who deny the very existence of natural law as a category – a view which would make it difficult to account for the existence of law at all, for if the fact of law arises from social necessity, this is not in itself sufficient to account for its content. No doubt any given law is what it is because the legislator made it so. But what caused the legislator to make it that, and not something different? Once a general legal system is in existence, the question is not difficult to answer: but what of the beginnings of the legal system itself; what lay behind those; whence did legal ideas spring when there was no positive law in existence; what nourished the process of law-making in its inception? Assuming therefore the existence of the jus naturae,10 and admitting its function as a source of legal ideas, it nevertheless remains the case that the positivist rejects natural law absolutely as a formal source of law. The jus naturae, he says, may inspire the law but does not become the law until embodied in general State practice, until it thus receives the imprimatur of the general assent of States. Consent, acquiescence, assent, or recognition, express or implied, evidenced in terms or by conduct, is, on this view, the only true formal source of international law.11 This of course would also cover the case of treaties if these are to be regarded as formal sources of law.) To the positivist this is a self-evident truth, and this is so even for those positivists who, while maintaining that consent is always necessary for the content of any rule to be what it is – and in order that any particular rule may be invested with the force of law – concede that consent cannot be the foundation of the obligatory force 10

11

The difficulties arising from the uncertain character of the content of the jus naturae, the difficulty of ascertaining and establishing it, and the subjective elements that may be involved, cannot be denied. The author’s contention is that at least certain principles and rules having a fundamental character can be identified as necessary ingredients of natural law – ingredients precisely because of their necessary character. The present paper is not concerned to discuss how customary international law is formed, but it must be mentioned that the theory which denies the existence of any factor of consent, assent, acquiescence or recognition, and attributes the emergence of the rule simply to the usage itself and the settled practice of it (the pratique constante) irrespective of any subjective element (i.e. which rejects the necessity for the “opinio juris”), does not really bear examination. There are many usages, such as those of salutes at sea, customs exemptions for diplomatic agents, etc., which are virtually universal and invariable, yet no one contends that they amount to rules of law. In fact, those authorities who support this theory find themselves obliged, in order to distinguish between the settled practices that lead to law, and those that do not, to have recourse to subjective elements in another form, or at one remove (cf. Guggenheim, Traité de Droit International Public (1953), Tome i, pp. 46–48).

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of law in general, as a category, and as opposed to that of any particular rule of law. There is, of course, no doubt that general consent is a way, and even a principal way, in which rules possessed of legal force come into existence (i.e. that it is a formal source of law). Yet when it is suggested that it is the only way, and that there is no other, this is clearly open to question; for if there is a rule (call it rule X) that general consent, assent, acquiescence or recognition in some form is invariably necessary before a given rule (rule XI) is binding or has the force of law, what gave the basic rule (rule X) its legal force or made it binding? To say consent would merely be to argue in a circle and to attempt to prove a proposition in terms of itself. But even if the answer were consent, it would only thrust the problem a stage further back, for it would then become necessary to find a further anterior or antecedent rule (pre – X) giving such effect to that consent, i.e. giving legal force to rule X. Rule pre – X would then require to be accounted for similarly in terms of a rule pre-pre – X, and so on ad infinitum. There would arise accordingly an infinite regress, a fairly sure indication that the problem requires restatement. The positivist – voluntarist position in fact involves, if not a fundamental contradiction, at least a serious inconsistency or deficiency. If the proposition that consent in some form is necessary to the creation of any rule of law is put forward as a mere postulate, then of course it has no necessary or inherent validity. But if it is put forward as a necessary proposition, as being itself a rule of law, and a rule of international law, then it is a rule which clearly fails to explain its own validity – it is rule which, if correct, is so only because there exists an extraneous rule validating it, to which it does not itself apply – a rule which has validity irrespective of consent. But if there is such another rule, then clearly the proposition that consent is necessary to the creation of any rule of international law is wrong: in short it is the dilemma and the fallacy of the Cretan who said that all Cretans were liars – if true, it is not true. The moment it is stated as a rule of international law that the sources of international law are and can be only this or that, then in that very moment does this rule itself become false or unprovable. What is the conclusion? It is that the sources of international law cannot be stated, or cannot fully or certainly be stated, in terms of international law itself, and that there are and must be rules of law that have an inherent and necessary validity, in whose absence no system of law at all can exist or be originated. Such a rule, for instance, is the rule pacta sunt servanda. This rule does not require to be accounted for in terms of any other rule. It could neither not be, nor be other than what it is. It is not dependent on consent, for it would exist without it. There could not be a rule that pacta sunt non-servanda, or non

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sunt servanda, for then the pacta would no longer be pacta. Nor could there be a rule that pacta sunt interdum servanda et interdum non sunt servanda. The idea of servanda is inherent and necessary in the term pacta.12 The naturalist could accordingly formulate the following proposition: whenever a rule of law is found which could not be other than it is, could not not exist, and does not require to be accounted for or justified in terms of any other rule, it is a rule of natural law, and in respect of rules of this type at any rate, natural law is a formal source of law. The rule pacta sunt servanda is not the only rule of this kind in the international field. Take, for instance, the rule that a State or government cannot plead the provisions or deficiencies of its own internal laws or constitution as a ground or excuse for non-compliance with its international obligations. This is not affected by any of the current controversies as to the relationship between international law, as a category, and internal law as another category;13 for whatever the position taken up by the various protagonists, whether dualist, or monist – positivist, or monist – naturalist, they all of them admit the validity of this rule, though arriving at it as a conclusion reached through different chains of reasoning or on different grounds. The point about this rule is that it could not be other than what it is; it could not not be; and it is independent of any voluntarist element. No State subject to international law could ever have purported not to consent to it without in effect declaring itself not to be bound by international law at all, or rejecting that law as having obligatory force for the States supposedly subject to it. This is a rule of natural law, and belongs to that branch of it which, because of the absolutely necessary character of its rules, can fairly be regarded as constituting a formal source of law in the international field. Essentially of the same kind, though perhaps with less evident an aspect of necessity, is a companion rule based on the combined principles of the continuity of the State and the fact that international obligations are binding on the State as an entity, and not on particular organs of the State as such (though, as agents of the State, they are bound to carry out its 12

13

A logician or modern linguistic analyst would no doubt point out that this is equivalent to saying pacta sunt pacta. This is very true, but merely means that basically the proposition pacta sunt servanda is a tautology in the same sense that most mathematical propositions are tautologies – the two sides of the equation are merely re-statements or ­re-­arrangements of one another’s terms. But it is precisely in the tautology that the necessity resides; again as with mathematical propositions which, if correct at all (2 + 2 = 4), cannot be other than what they are. The author, in his course of lectures on the General Principles of International Law delivered at the Hague Academy in 1957, has suggested that this controversy is in a large measure unreal.

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o­ bligations) – namely that changes of régime, government or sovereign in a State, even revolutionary or unconstitutional changes, do not of themselves affect or alter such obligations, or constitute a valid ground of non-compliance. Analogous are rules of the type which assert that a State cannot plead its own wrong as a ground of non-compliance, or plead impossibility of performance arising from a situation it has itself brought about. These are rules of natural law having the same inherent necessity.14 Another interesting example is afforded by the somewhat mysterious rule that a new State, recognized as a member of the international community, becomes ipso facto and necessarily a subject of international law and bound by it. There is virtually universal agreement that this is so automatically and irrespective of the ‘consent’ of the new State. Now it is clear that this rule cannot itself derive simply from agreement or acquiescence, express or tacit, on the part merely of the existing members of the international community, or from any settled practice or usage evidencing such assent; for if consent or assent in one of these forms, or in any other form, were the sole source of the rule, then ex hypothesi the rule could not bind the new State ipso facto, for any rule really resting solely on agreement, can only bind parties to the agreement – (this is itself a necessary rule of natural law). It will be appreciated that the view which (whether correctly or not) would ascribe binding force to a rule which receives a sufficiently general assent (so as to bind even the dissenting minority), would necessarily be invoking a natural law source outside consent – for this view could never, in the nature of the case, have itself received the consent of all States (and manifestly has not); if therefore itself based on a general, but not universal assent, a source of validity antecedent to and outside that general assent would require to be found – a dilemma already described and now familiar. The ultimate source of any rule (if there is one) ascribing binding force to the general, but not universal, assent of States, would therefore have to be natural law operating directly as a formal source of law.) If therefore it cannot be said (except by admitting natural law to be per se a direct formal source of law) that a consensus of the existing members of the international community suffices to establish the proposition that the new member is ipso facto subject to international law irrespective of its own consent, then it must be shown either that the new member does in fact give its consent (a view which can be

14

An enquiry would probably reveal the existence of a surprising number of such rules in the international law field, though by no means all the rules often attributed to natural law have this quality of necessity – (and see generally Lauterpacht’s Private Law Sources and Analogies of International Law).

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discounted)15 or that such consent is unnecessary. In the latter case, it could only be unnecessary because there existed an antecedent rule (which would necessarily be a rule of natural law) to the effect that, in such cases, consent was not required – for this would be a case where a State would be bound irrespective of its consent. But only legislation, or the equivalent of legislation in the form of an antecedent rule of universal application, and as it were of statutory authority, can bind entities without their consent (given either generally or ad hoc, expressly or by implication). This might indeed, as suggested above, be said to be itself a rule of natural law; and only another rule of natural law could prevail over it. Either therefore, in the case of new States, there is a rule of natural law, operating as a direct formal source of law, that does so prevail and cancels the necessity for consent in this particular case; or (and this is one of the principal ideas that the present paper ventures to suggest), natural law, or a certain branch of natural law, though unenacted, has a legislative or statutory character, and, in the international field, is the only true equivalent, or the nearest equivalent, of statute. On that basis, natural law simply “legislates” to say that a new member of the international community is ipso facto bound by international law, just as a national of any country, born into it, is by that fact bound by its laws, or as birth into a family or tribe automatically makes the individual subject to the family or tribal customs. To show that this is what occurs would involve an enquiry into the theory of recognition exceeding the scope of the present paper. It must suffice to say that this view (which is clearly based on the declaratory rather than the constitutive theory of recognition) is one which at any rate avoids the numerous and transparent fictions entailed by the alternative view that the international community is like a sort of “club”, to which new members must as it were be “elected”, and for “admission” to which they “apply”, thereby impliedly “undertaking” to abide by the “rules”, or from which they can be “excluded” if they do not so agree.16 Enough has been said, perhaps, to show that consent, given by treaty or evidenced through State practice, because it cannot account for its own validity or law-making effect, can never constitute the sole formal source of international law; the treaty is not a formal source at all, while State practice, and the assent implied therein, cannot account for a number of the most important principles of law having a fundamental character. However that may be, it is certainly the lack, on the international plane, of those clearly adequate 15 16

This cannot be discussed here, but the view in question entails too many fictions and unrealities (see the end of the present paragraph). Cf. the author’s Hague Lectures mentioned in footnote on pag. 165 above. [Editors’ note: not included in this Anthology].

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and definite formal sources of law that exist on the domestic plane, which has made jurists of eminence feel the need to invoke the jus naturae as a direct and formal source of international law. The process is described with all his usual insight by Sir Hersch Lauterpacht in the following passage from an article devoted to an appreciation of the work of Hugo Grotius, written for the tercentenary of his death, in which the author stresses (inter alia) the part ascribed by Grotius to natural law as a direct source of international law, existing outside the will of States:17 The fact is that while within the State it is not essential to give to the idea of a higher law – of natural law – a function superior to that of providing the inarticulate ethical premiss underlying judicial decisions … in the international society the position is radically different. There – in a society deprived of normal legislative and judicial organs – the function of natural law, whatever may be its form, must approximate more closely to that of a direct source of law. In the absence of the overriding authority of the judicial and legislative organs of the State there must assert itself – unless anarchy or stagnation are to ensue – the persuasive but potent authority of reason and principle derived from the fact of the necessary co-existence of a plurality of States. This explains the pertinacity, in the international sphere, of the idea of natural law as a legal source.18 The view suggested in the present paper differs from this only in ascribing to a certain type of natural law rule, not merely persuasive, but inherent, force as a source of law. But it will be noted that in the above passage, the learned author places judicial on a level with legislative organs, as something that the international society lacks. This is true in the sense that although judicial organs certainly exist, recourse to them is neither compulsory, nor habitual. Nevertheless it is part of the object of this paper, as stated at the beginning of the present section, to consider the possibility that, when judicial organs do operate in the international field, their decisions rank in a certain sense, along with natural law, as a direct formal or quasi-formal source of law, supplementing custom and State practice. 17 18

“The Grotian Tradition in International Law”, British Year Book, Vol. 23 (1946), pp. 22–23. In the next sentence Sir Hersch, citing Westlake and Borchard, says that among modern writers the “search for a legal source supplementing the ordinary sources of positive law expresses itself in the doctrine of implied acquiescence of any single State confronted with the fact of general consent.” As to this, see the remarks made supra on pp. 165–167. [Editors’ note: not included in this Anthology].

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Are the Decisions of International Tribunals Formal Sources of Law?

That arbitral and judicial decisions constitute material sources of law no one will dispute. But even in those cases (as, for instance, in Anglo-Saxon countries) where judicial decisions also operate as binding precedents, it is possible to question whether they constitute formal sources of law. Judges, it may be said, declare or formulate or clarify or interpret or apply, or possibly develop the law; but they do not create, change or repeal it: that is for the legislature. However, while it is true that the courts do not overtly or avowedly create, change, or repeal the law (or if they do, do so only under the guise of other, less specific, processes), the view that their decisions are not formally of a law-making character is certainly not accepted in those countries where the judicial precedent is authoritative and binding. Thus to take English authorities on jurisprudence, Salmond19 lists “case-law” amongst the “legal” (i.e. formal) sources of law, and says that a “precedent … is the making of law by the recognition and application by the courts themselves in the administration of justice. Enacted law comes into the courts ab extra; case law is developed within the courts themselves”. Austin20 refers to “the childish fiction … that judiciary or common law is not made by [the courts], but is a miraculous something … existing from eternity, and merely declared, from time to time, by the judges”. Holland21 says that “the Courts … have necessarily been entrusted with a certain power of making rules for cases not provided for previously, and even of modifying existing laws from time to time in order to carry out the current ideas of what is equitable, or to adapt them to the changing needs of society”22 – and he goes on to cite a number of English judicial pronouncements in the same sense. For present purposes therefore, it will be assumed that wherever, under the legal system concerned, the judicial precedent is authoritative and binding, it is a formal source of law – and that even if the court does no more than formulate, interpret or apply the law, the particular formulation, interpretation or application so made or given, if not reversed on appeal, or, in some subsequent case, disapproved by a court of superior status, must be followed in any similar case by all courts of equal or inferior status, unless, from a legal or factual point of view, clear grounds for distinguishing between the two cases exist.23 19 20 21 22 23

Jurisprudence, 10th Ed. (1947), pp. 153–154. Lectures on Jurisprudence, (1885), Vol. 2, p. 655. Jurisprudence, 12th Ed. (1916), pp. 65–67. Can it be denied that this is precisely the effect of many decisions of, for instance, the Supreme Court of the United States? The authority of a precedent may be provisional, in that it may be upset by the decision of a higher court, but it none the less exists and governs unless and until that happens. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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It is usually held that the decisions of international tribunals do not operate to create law in the same way that the judicial precedent does under certain systems of domestic law. That they are not in the strict sense formal sources of law can indeed hardly be contested: they are only binding on the parties to the dispute, and binding on them only for the purposes of the particular case; they need not be followed by other international tribunals, or even by the same tribunal in another case. These propositions are true equally of the International Court of Justice. Yet further reflexion seems to indicate that if such decisions cannot be classed as direct formal sources of law, it is also not satisfactory to regard them as being simply one amongst various material sources of law. “… they are only binding on the parties to the dispute, and binding on them only for the purposes of the particular case …”. This is technically correct, but is it true as a practical reality? The point is most easily illustrated by an actual example. In the Anglo-Norwegian Fisheries case,24 the International Court of ­Justice decided that, in certain circumstances, the coastal line from which the territorial sea could be measured might consist not of low-water mark along the coast, but of a system of straight base-lines drawn across indentations or between certain points. Theoretically, the United Kingdom is only bound by this decision to accept the Norwegian base-line system, as approved by the Court. It is not (formally) bound to accept a similar system instituted by any other country. Furthermore, no country other than the United Kingdom is (formally) bound to accept even the Norwegian delimitation. In practice, it is ­obvious that neither the United Kingdom nor any other country could now successfully contest the general principle of straight base-lines, at any rate in any legal proceedings, even (in all probability) before a tribunal other than the International Court. It would, of course, be possible to contest particular aspects of the matter, e.g. whether, in a particular case, the circumstances justified the use of straight base-lines at all,25 or whether certain individual base-lines were in conformity with the principles laid down by the Court for determining how straight base-lines should be drawn. But it would not, in practice, any longer be possible to contend (as it was contended in the Anglo-Norwegian dispute) that there are no cases, other than those of bays proper, in which straight baselines, rather than the coastal low-water mark line, may legitimately be made the departure point for the seaward delimitation of the territorial sea. There is no need to enter into the question whether in effect the Court brought about 24 25

I.C.J. Reports, 1951, pp. 116 ff. The decision of the Court in the Fisheries case is sometimes erroneously regarded as validating the use of a base-line system in all and any circumstances. This is not so. Special circumstances are required, mainly geographical – cf. the author’s article in the British Year Book, Vol. 31 (1954), p. 371, at pp. 395–402. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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a change in maritime law on this subject, for everyone can agree that the decision certainly constituted a new application of it, and that it amounts to a quasi-formal source of law in that respect. Something must of course depend on the authority of the tribunal concerned, but it is by no means only the decisions of the International Court or of its predecessor that can have this effect,26 though in the nature of the case it will tend to attach itself to those decisions par excellence. Again, something depends on the character of the case and of the points at issue. It is not necessarily every decision (even of the Permanent or International Courts) that involves the type of point respecting which the decision of a superior tribunal will tend to operate as a formal or quasi-formal source of law.27 “… they need not be followed by other tribunals or even by the same tribunal in another case.” What has just been said will serve also to show that, while it may technically be the case that an international decision need not be followed, this frequently does not correspond with the realities of the situation that develops consequent upon the decision; and that, subject to various limitations, some kinds of decisions, once given, are almost certain, or intrinsically likely to be followed; and that they may be followed even by a tribunal which, had it been the one originally called upon to decide the point involved, might have decided it differently. But there is another aspect of the matter highly relevant to the effect on one international tribunal of the decisions or pronouncements of an other. No one who has been engaged in any international proceedings can doubt that the parties, their advocates and the tribunal itself, view in quite a different light such (material) sources of law as, for instance, the opinions of jurists (however eminent) and a decision, even if the tribunal giving it is composed of less eminent persons. No want of respect to the eminent jurist is involved in this; it is simply that a decision, if relevant to the case under discussion, has an actuality and a concrete character that causes it to impinge directly on the matters at issue, in a way that an abstract opinion, however good, can never do. This is easily seen in the attitude of both courts and advocates. When an advocate before an international tribunal cites juridical opinion, he does so because it supports his argument, or for its illustrative value, or because it contains a particularly felicitous or apposite statement of the point involved, and so on. When he cites an arbitral or judicial decision he does so for these reasons 26 27

One need only cite, in comparatively recent years, such well known decisions as the Island of Palmas case and the Finnish Ships case, and many of the decisions of Mixed Claims Commissions. For instance, decisions turning on the interpretation of treaties or other instruments would not always readily lend themselves to this process.

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also, but there is a difference – for, additionally, he cites it as something which the tribunal cannot ignore, which it is bound to take into consideration and (by implication) which it ought to follow unless the decision can be shown to have been clearly wrong, or distinguishable from the extant case, or in some way legally or factually inapplicable. Equally the tribunal, while it may well treat juridical opinion as something which is of interest but of no direct authority, and which the tribunal is free to disregard, will not usually feel free to ignore a relevant decision, and will normally feel obliged to treat it as something that must be accepted, or else – for good reason – rejected, but which must in any event be taken fully into account.28 In the light of these considerations, it is suggested that the decisions of international tribunals, while no doubt of varying weight and authority, cannot be regarded simply as no more than one among various material sources of law. It is not so much that they necessarily possess a higher intrinsic value than, for instance, eminent juridical opinion, but that they have a more direct and immediate impact on the realities of international life, the attitude of States, and the mind of judges and arbitrators in later cases. A decision is a fact: an opinion, however cogent, remains an opinion. For these reasons it would seem that, if the judicial or arbitral decision is not, in the international field, technically a formal source of law, it must be regarded as having a special status that differentiates it from other material sources, and causes it to be at least a quasi-formal source. Alternatively decisions might, quâ material sources, be characterized as “formally material” – i.e. as sources which tribunals are bound to take into account, even if they are not bound to follow them; so that, if the tribunal concerned does not follow a given decision, it must at least be in a position to distinguish or refute it on specific grounds. VII

Are the Formal Sources of International Law Correctly Set Out in Article 38 of the Statute of the International Court of Justice?

The answer, if the foregoing considerations are valid, is “only partly”; but it should be borne in mind that Article 38 of the Statute does not really profess to contain an abstract statement of the sources of international law, whether formal or material; and this is not affected by the preambular phrase “The Court, whose function it is to decide in accordance with international law … shall apply, etc.”, for (to take an example), the fact that international law requires treaties to 28

This does not necessarily mean that decisions must always be referred to co nomine in the judgment, or be therein discussed at length.

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be carried out, does not involve of itself that international law regards them as anything more than a source of obligation, and not necessarily that it regards them as a source of law. Strictly, therefore, Article 38 is simply a sort of standing directive to the Court as to what it is to apply in deciding cases brought before it – much as, in a compromis, the parties might refer a matter for decision by a tribunal on the basis of certain specified principles or elements, or categories of either. Professor Ross aptly remarks that “if only for this reason the instructions contained in … Article 38 cannot formally constitute the foundation for the doctrine of the sources of International Law”.29 Nevertheless, Article 38 is the formal source of what the Court has to apply, and clearly reflects an abstract view of what the sources of international law in general are. One feature of the Article (which must surely be regarded as a defect) is that it does not profess to distinguish between formal and material sources, and does not, save on one point,30 or inferentially31 (and then not entirely satisfactorily) establish any system of priority of application. It would however be a reasonable surmise, in the light of much current opinion, that heads (a) and (b) – international conventions and international custom – were intended to specify formal sources; while heads (c) and (d) – the general principles of law, and judicial decisions and the teachings of the most highly qualified publicists – were intended to refer to sources regarded as material rather than formal. If this is so, Article 38, considered as a statement of (or as embodying references to) the formal sources of international law, is at variance with several of the ideas expressed in the present paper – or perhaps it would be more becoming to say that these are at variance with it. At any rate, according to these ideas, international conventions (which must of course be applied whenever relevant, and this had to be specified in Article 38) are applicable not as (formal) sources of law, but (formally) as sources of obligation.32 Moreover, the characterization “international conventions, whether general or particular, establishing rules expressly recognized by the contesting States” is defective. 29 30 31 32

Op. cit., p. 83. Judicial decisions and the teachings of publicists are classed as “subsidiary means” of determination. The inference is that the intended order of priority is that of the four heads (a) to (d). But subject to these remarks, Article 38 is justified in placing international agreements first, since these are always a source of obligation, and the Court must decide on the basis not so much of the law, as of the parties’ obligations, whether arising from general law or from treaty. Moreover a treaty, if relevant and valid, always governs – for instance it might, as between the parties, exclude or replace a general rule of law by which they would otherwise be bound. Thus it is always ,,in accordance with international law” to apply the treaty, whether or not the treaty itself is, or contains, international law.

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“Particular” conventions, especially, do not establish “rules” (of law) but only rights and obligations. Many conventions do not (and do not even profess to) do more; while strictly, as has been suggested earlier, even the so-called “lawmaking” convention does not of itself create law. The drafting of head (b) in Article 38 is notoriously defective, but the source it mentions – international custom – is an undoubted formal source of international law. As regards head (c) – “the general principles of law recognized by civilized nations”, no one questions that these are material sources, but the view put forward in the present paper is that some of them, involving inherently necessary principles of natural law, are such as to cause natural law, at any rate in that aspect of it that relates to these principles, to be a formal, not merely a material, source of law. As regards head (d), this, according to the ideas expressed in the present paper, errs in placing judicial decisions on the same footing as the teachings of the most highly qualified publicists, and still more in conjointly characterizing them as “subsidiary means for the determination of rules of law”. Not an especially appropriate phrase even for the teachings of the publicists, it is quite inappropriate for judicial decisions, which can never be a subsidiary means of determination. In any case, if the view here suggested is correct – that whereas juridical opinion is a material source of law only, judicial decisions are more than that – there is a distinction between the two which Article 38 of the Statute fails to make. VIII

Conclusions

The main conclusions suggested by the present paper may be summarized as follows: (1) The formal sources of obligation33 must be distinguished from the formal sources of law. They may coincide, but may not, and are in any case distinct concepts. (2) The formal sources of law can never be exhaustively stated, for any rule purporting to limit them will, ex hypothesi, have itself to derive from one of the very sources it purports to validate, and will therefore require for its own validity an antecedent rule, independently derived, or having a separate and further source. Thus, for example, any rule to the effect that rules of international law can only come into existence through State 33

There is of course a further distinction, between the source of obligation generally, or of all obligation (not discussed in the present paper), and the sources of particular obligations.

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(3) (4)

(5)

(6)

(7) (8)

(9)

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consent, manifested in some form, is necessarily self-defeating as being (or if regarded as being) itself a rule of international law. Consent is ex hypothesi incapable of accounting for its own validity and law-making effect, and is also incapable of accounting for some of the most fundamental principles of law essential to any legal system whatever. The inference from (2) is that there must be rules of law having an inherent and necessary validity, which are ultimate formal sources of law, but are themselves underived. These are rules of natural law. Subject to (2), the formal sources of international law are (i) international custom or State practice, based on, or evidencing consent (assent, acquiescence, recognition) in some form; (ii) natural law in respect of those rules having the character described in (3); (iii) as a quasi-formal source – the decisions of international tribunals. Treaties are a formal source of international obligation, but (even in the case of so-called “law-making” treaties) are not a formal source of international law. They may be evidence of international law (where declaratory of, or codifying, existing law), or may be material sources of it (where leading to the formation or emergence of a general customary rule). Treaties are not therefore the international law equivalent of legislation. Even in the case of so-called “law-making” treaties, the obligation arises from specific consent and not from any statutory overtones, and the treaty creates obligation rather than (directly) law. The nearest equivalents to statutory law in the international field, though not enacted, are in fact the rules of natural law described in (3) above. Arbitral and judicial decisions are incorrectly described as being merely one amongst other material sources of law. Even though not formally binding, except for the parties and the occasion, they may be treated as a quasi-formal source. Article 38 of the Statute of the International Court of Justice is not, technically, an abstract statement of what the sources of international law in fact are, but a standing directive to the Court (analogous to any corresponding provisions of a compromis in a particular case) as to what it is to apply in deciding cases brought before it. In so far as Article 38 does purport to contain or reflect an abstract statement of the sources of international law, it is defective because (a) it does not distinguish between the formal and the material sources; (b) it establishes no system of priorities, except on one point, or inferentially – and then not in all respects the right one; (c) the formal sources of international law, while covered by it, are imperfectly or inappropriately stated. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

Chapter 20

Humphrey Waldock, First Report on the Law of Treaties, 1962 Comment by Dr Antonios Tzanakopoulos, Associate Professor, University of Oxford The subject of the law of treaties in the International Law Commission was dominated by British international lawyers. All Special Rapporteurs from beginning to end of the project were British: James Brierly, Sir Hersch Lauterpacht, Sir Gerald Fitzmaurice, and finally Sir Humphrey Waldock. Two each for Oxford and Cambridge, though Brierly was the only one not to sit on the bench of the ICJ (and not to be knighted). Sir Humphrey’s First Report on the Law of Treaties from 1962 is notable for a number of reasons, not least so because it is the first report on the subject that sets out draft articles to form the basis of a convention on the law of treaties, rather than simply constituting a “code of general character” which would not take the form of a treaty. The report, dealing with the conclusion, entry into force and registration of treaties reflects to a large extent Parts 1 and 2 of the 1969 Vienna Convention on the Law of Treaties,a even though the latter’s provisions appear in much more simplified and consolidated form. Most importantly, however, Sir Humphrey’s First Report sets out a number of draft provisions on reservations to treaties which furnished the basis of the current provisions of Articles 19–23 of the VCLT on the matter. It is Sir Humphrey’s ‘Historical Summary of the Question of Reservations to Multilateral Conventions’, an Appendix to the First Report, along with his draft Articles 1(i) (the definition of reservations) and 17–19 (power to formulate and withdraw, consent to, and objection to reservations) and their commentary, which is reproduced below. These provisions refer to one of the “most controversial domains” of the law of treaties and served as the basis for the some of the “most discussed provisions” of the VCLT, at least according to Alain Pellet, the Special Rapporteur appointed by the ILC later on to discuss precisely the issue of reservations.b a Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 ­January 1980) 1155 unts 331 (VCLT). b See his commentary to Art 19 VCLT in Corten and Klein (eds), The Vienna Conventions on the Law of Treaties—A Commentary (OUP 2011) 409. © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_021

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Sir Humphrey’s report marked the departure of the ILC from the principle of integrity and the espousal of a more “flexible” principle as to reservations, as well as a reluctant (and partial) embrace of the ICJ’s Advisory Opinion in Reservations to the Genocide Conventionc ([1951] ICJ Reports 15) – a position the ILC had uncharacteristically resisted for a long time. In what was clearly an exercise of progressive development, Sir Humphrey set out the foundations for the VCLT regime, though it is worth noting that he took two positions that did not survive the ILC or the Vienna Conference, but which would have laid to rest long discussions occasioned thereafter. The first is in the definition of “reservation”, where the latter is defined as a unilateral statement whereby a State “specifies as a condition of its consent to be bound by a treaty a certain term which will vary the legal effect of the treaty…” (emphasis added). Had this definition been adopted, the whole later debate as to the legal effects of an impermissible reservation, i.e. as to whether a reservation conditions consent to be bound by the treaty, and thus its impermissibility taints that consent, or whether the impermissible reservation is severable as it does not condition consent, would have been rendered redundant. The second position is taken in Draft Article 17, where Sir Humphrey does not adopt compatibility with the object and purpose of a treaty as a criterion of permissibility of the reservation, due to its overwhelmingly subjective nature. Rather, Draft Article 17, as suggested by the Special Rapporteur, provides in para 2(a) that “[w]hen formulating a reservation … a State shall have regard to the compatibility of the reservation with the object and purpose of the treaty” (emphasis added). This would have rendered the whole debate as to the impermissibility of reservations that are incompatible with the object and purpose of the treaty redundant. Everything would rather depend the on acceptance of or objection of the other States to the reservation submitted. But the two debates were not avoided, as the positions of Sir Humphrey did not make it into the VCLT – with the result that, 31 years later, the ILC decided to take up the matter of reservations to treaties again. This resulted in a Guide to Practice on Reservations to Treatiesd adopted in 2011, 18 years after the ILC took up the matter again and a whopping 49 years after Sir Humphrey’s ‘First Report’. c Reservations to the Genocide Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15. d ILC, ‘Guide to Practice on Reservations to Treaties’ (11 August 2011) Doc A/66/10/Add.1.

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H. Waldock, First Report on the Law of Treaties (Yearbook of the International Law Commission 1962). Excerpt: Introduction, pp. 28–31.

First Report on the Law of Treaties Humphrey Waldock Introduction A Summary of the Commission’s Proceedings1 (1) At its first session in 1949 the International Law Commission placed the “Law of Treaties” amongst the topics listed in paragraphs 15 and 16 of its report for that year as being suitable for codification and appointed Mr. J.L. Brierly as Special Rapporteur for the subject. It also decided to give this subject priority. However, owing to the various special tasks assigned to the Commission by the General Assembly and to the necessity for completing for the Assembly subjects like the law of the sea and ­diplomatic—and consular—intercourse and immunities, the Commission found it necessary again and again to postpone its consideration of the law of treaties. A number of important reports were produced by its successive Special Rapporteurs; but—with the exception of a special report on the subject of reservations to multilateral conventions in 1951, and work in 1959 on a substantial part of Sir G. Fitzmaurice’s report on the framing, conclusion and entry into force of treaties—the Commission was not able to do much more than give occasional glances at these reports. (2) At its second session in 1950 the Commission devoted its 49th to 53rd meetings to a preliminary discussion of Mr. J.L. Brierly’s first report (A/CN.4/23) and also had available to it replies of Governments (A/CN.4/19) to a questionnaire addressed to them under article 19, paragraph 2, of its Statute. The Commission’s report for this session contained the following observations (A/1316, paragraphs 161 and 162):

1 This summary is based upon paragraphs 8–11 in Chapter ii of the Commission’s report to the General Assembly in 1959 (document A/4169); Yearbook of the International Law Commission, 1959 (United Nations publication, Sales No.: 59.v.i, vol. ii), pp. 88–9.

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“The Commission devoted some time to a consideration of the scope of the subject to be covered in its study. Though it took a provisional decision that exchanges of notes should be covered, it did not undertake to say what position should be given to them by the Special Rapporteur. A majority of the Commission favoured the explanation of the term ‘treaty’ as a ‘formal instrument’ rather than as an ‘agreement recorded in writing’. Mention was frequently made by members of the Commission of the desirability of emphasizing the binding character of the obligations under international law established by a treaty.” “A majority of the Commission were also in favour of including in its study agreements to which international organizations are parties. There was general agreement that, while the treaty-making power of certain organizations is clear, the determination of the other organizations which possess capacity for making treaties would need further consideration.” (3) At its third session in 1951, the Commission had before it two reports from Mr. Brierly, one (A/CN.4/43) a continuation of the Commission’s general work on the law of treaties and the other (A/CN.4/41) a special report on “reservations to multilateral conventions” called for by the General Assembly at the same time as it had requested an advisory opinion from the International Court of Justice on the particular problem of reservations to the Convention on the Prevention and Punishment of the Crime of Genocide. As to the Commission’s opinions and recommendations on the special subject of reservations to multilateral conventions, there is no need to summarize them here, since this is done with some fullness in an appendix to the present report. Its general work on the law of treaties at its third session was summarized by the Commission in its report for 1951 as follows (A/1858, paragraphs 74 and 75): “At the third session of the Commission, Mr. Brierly presented a second report on the law of treaties. In this report, the special rapporteur submitted a number of draft articles which he had proposed in the draft convention contained in his report to the previous session.” “In the course of eight meetings (namely the 84th to 88th, and 98th to 100th meetings), the Commission considered these draft articles as well as some others contained in the first report of the special rapporteur. Various amendments were adopted and tentative texts were provisionally agreed upon. These texts were referred to the special rapporteur, who

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was requested to present to the Commission, at its fourth session, a final draft, together with a commentary thereon. The special rapporteur was also requested to do further work on the topic of the law of treaties as a whole and to submit a report thereon to the Commission.” But the Commission also took a further decision at that session concerning the question of international organizations already mentioned in its report for 1950. At its 98th meeting, it adopted “the suggestion put forward the previous year by Mr. Hudson, and supported by other members of the Commission, that it should leave aside, for the moment, the question of the capacity of international organizations to make treaties, that it should draft the articles with reference to States only and that it should examine later whether they could be applied to international organizations as they stood or whether they required modifications”. (4) At its fourth session in 1952 the Commission had before it a “Third Report on the Law of Treaties” (A/CN.4/54) prepared by Mr. Brierly, who, however, had meanwhile resigned his membership of the Commission. In the absence of its author the Commission did not think it expedient to discuss that report, and it confined itself to electing Mr. H. Lauterpacht to succeed Mr. Brierly as Special Rapporteur. (5) At its fifth session in 1953 the Commission received a report from Mr. Lauterpacht (A/CN.4/63) containing draft articles and commentaries on a number of topics in the law of treaties but, owing to its other commitments, was unable to take up the report at that session. It therefore instructed Mr. Lauterpacht to continue his work and present a further report. At its sixth session in 1954 the Commission duly received Mr. H. Lauterpacht’s second report (A/CN.4/87) but was again unable to take up the subject. Meanwhile Mr. (by then Sir H.) Lauterpacht had resigned from the Commission on his election as judge of the International Court of Justice, and at its seventh session in 1955 the Commission elected Sir G. Fitzmaurice as Special Rapporteur in his place. (6) At the next five sessions of the Commission, from 1956 to 1960, Sir G. Fitzmaurice presented five separate and comprehensive reports on the law of treaties, covering respectively (a) the framing, conclusion and entry into force of treaties (A/CN.4/101), (b) the termination of treaties (A/CN.4/107), (c) ­ essential and substantial validity of treaties (A/CN.4/115), (d) effects of treaties as between the parties (operation,

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execution and enforcement) (A/CN.4/120) and (e) treaties and third States (A/CN.4/130). During these years the Commission’s time was largely taken up with its work on the law of the sea and on diplomatic and consular intercourse and immunities, so that, apart from a brief discussion of certain general questions of treaty law at the 368th to 370th ­meetings of its 1956 session, it was only able to concentrate upon the law of treaties at its eleventh session in 1959. At that session it devoted some twenty-six meetings2 to a discussion of Sir G. Fitzmaurice’s first report on the framing, conclusion and entry into force of treaties, and provisionally adopted the texts of fourteen articles, together with their commentaries (A/4169, Chapter II). However, the time available was not sufficient to enable the Commission to complete its series of draft articles on this part of the law of treaties.3 In its report for 1959 the Commission drew particular attention (ibid., paragraph 18) to the fact that it did not envisage its work on the law of treaties as taking the form of one or more international conventions but had favoured the idea of “a code of a general character”. The reasons for preferring a “code” were stated to be twofold (ibid., citation from Sir G. Fitzmaurice’s first report): “First, it seems inappropriate that a code on the law of treaties should itself take the form of a treaty; or rather, it seems more appropriate that it should have an independent basis. In the second place, much of the law relating to treaties is not especially suitable for framing in conventional form. It consists of enunciations of principles and abstract rules, most easily stated in the form of a code; and this also has the advantage of rendering permissible the inclusion of a certain amount of declaratory and explanatory material in the body of the code, in a way that would not be possible if this had to be confined to a strict statement of obligation. Such material has considerable utility in making clear, on the face of the code itself, the legal concepts or reasoning on which the various provisions are based.” Mention was also made of possible difficulties that might arise if the law of  treaties were to be embodied in a multilateral convention and then some States did not become parties to it or, having become parties to it,

2 480th to 496th, 500th to 504th and 519th to 522nd meetings. 3 Chapter ii of the Commission’s report for 1959 contains article 1–10, and 14–17 of a proposed chapter of a comprehensive code on the law of treaties.

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s­ ubsequently denounced it. On the other hand, it recognized that these difficulties arise whenever a convention is drawn up embodying rules of customary law. Finally, it underlined that, if it were decided to cast the code in the form of a multilateral convention, considerable drafting changes, and possibly the omission of some material, would almost certainly be required. (7) The twelfth session, in 1960, was almost entirely taken up with consular intercourse and immunities and ad hoc diplomacy, so that no further progress was made with the law of treaties during that session. Then Sir G. F­ itzmaurice had himself to retire from the Commission on his election as judge of the International Court of Justice, and at the thirteenth session, in 1961, the C ­ ommission elected Sir H. Waldock to succeed him as Special Rapporteur for the law of treaties. At the same time the Commission took the following general decisions as to its work on the law of treaties (A/4843, paragraph 39): “(i) That its aim would be to prepare draft articles on the law of treaties intended to serve as the basis for a convention;” “(ii) That the Special Rapporteur should be requested to re-examine the work previously done in this field by the Commission and its Special Rapporteurs;” “(iii) That the Special Rapporteur should begin with the question of the conclusion of treaties and then proceed with the remainder of the subject, if possible covering the whole subject in two years.” The first of these decisions, as will be appreciated from the observation in the report for 1959, marked a radical change in the Commission’s approach to its work on the law of treaties. Instead of a mere expository statement of the law, it now envisaged the preparation of draft articles capable of serving as the basis for a multilateral convention. Only in this way, it felt, were really concrete results likely to be obtained from its work on this subject. B Scope of the Present Draft Articles (8) The Special Rapporteur, in accordance with the Commission’s decision, has aimed at preparing a group of draft articles which might provide the ­basis for a convention on the “conclusion” of treaties. “Entry into force” has been regarded as naturally associated with, if not actually part of, “conclusion”, while the subject of “registration of treaties” has been added as

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belonging essentially to the procedure of treaty-making and as being closely linked in point of time to entry into force.4 It is believed that, if the Commission finds it possible to reach a wide measure of agreement upon draft articles covering these three topics, they will furnish the basis either for a selfcontained convention on the “conclusion, entry into force and registration of treaties” or for a separate chapter in a larger ­convention covering the whole or a large part of the law of treaties. Having regard to the success achieved in the law of the sea by dealing successively in a series of separate conventions with more or less self-contained sections of the subject, and bearing in mind the almost unmanageable size of the total corpus of the law of treaties, it is believed that a somewhat similar procedure could usefully be adopted also for this subject. Accordingly, the Special Rapporteur has thought it right to try and prepare for the Commission’s consideration as closely integrated and self-contained a group of articles on the conclusion, entry into force and registration of treaties as possible. (9) The present articles differ considerably from those adopted by the Commission in 1959, in more than one respect. First, in draft articles on the conclusion of treaties it has not seemed appropriate to include articles 3 and 4 of the 1959 draft, which dealt with the “concept of validity” and “general conditions of obligatory force”. These two articles found a place at the beginning of the 1959 draft because in that draft the “conclusion” of treaties was envisaged as part of a general chapter on the “validity” of treaties, belonging more particularly to the subject of “formal validity”. This method of arrangement may have been appropriate enough for an expository code, but it seems to be somewhat too jurisprudential for a convention. As Sir G. Fitzmaurice pointed out in his first report (A/CN.4/101), the “conclusion” of treaties can be regarded either as a process or as a substantive matter relating to the validity of treaties. Clearly, the topic of “conclusion” of treaties has both aspects; but in the draft articles of a convention on the “conclusion, entry into force and registration of treaties” it would appear unnecessary—and perhaps rather artificial—to begin with solemn pronouncements about the concept of the validity of treaties and the general conditions of obligatory force. Secondly, and also for the reason that the Commission has changed from an expository code to the draft articles of a convention, the purely explanatory material in article 5 and paragraph 1 of article 6 of the 1959 draft has been­ 4 Article 102 of the Charter requires treaties to be registered “as soon as possible”, while the Regulations adopted by the General Assembly on 14 December 1946 provide that they shall not be registered until they have entered into force; see further the Commentary to article 22.

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omitted. Thirdly, the present draft aims at a more complete statement of the procedural aspects of treaty-making by adding such matters as the correction of errors in the text and the functions of a depositary and, as already mentioned, registration of treaties, which were not included in Sir G. Fitzmaurice’s draft of this topic. This seems to be not only justifiable but even necessary, if the emphasis is shifted, as the Special Rapporteur thinks that it must be in a convention, from the “validity” to the “process” aspect of conclusion of treaties. (10) The present draft naturally owes much to the valuable studies of Mr. Brierly and Sir H. Lauterpacht and especially to the detailed scientific exposition of the various topics by Sir G. Fitzmaurice. It also takes account of the provisional conclusions reached by the Commission itself at previous sessions, and has drawn inspiration from the debates at those sessions. But, although much of the ground covered by the present articles has been covered in previous reports, the conversion of the previous draft into the basis for a convention has necessitated a complete re-examination of it. Moreover, the previous work of the Commission had left unresolved a number of important and controversial matters, such as capacity to enter into treaties, ratification, reservations to multilateral conventions and the question of a “right” to participate in multilateral conventions, which provided difficult problems for the Special Rapporteur and must now engage the attention of the Commission. The draft articles have been arranged provisionally in five chapters, (a) “general provisions”, (b) “the rules governing the conclusion of treaties by States”, (c) “the entry into force and registration of treaties”, (d) “corrections of errors and the functions of depositaries”, and (e) “the treaties of international organizations”. (11) The last chapter is purely tentative and the Commission may not wish to carry its examination of treaty-making by international organizations very far until it has had the comments at any rate of the United Nations and the specialized agencies. In 1959 (A/4169, Chapter II, para. 6 of commentary to article 2), as previously in 1951 (98th meeting), the Commission decided to leave aside for the moment the question of the capacity of international organizations to make treaties; it decided to draft the articles with reference to States only and to examine later whether they could be applied to international organizations as they stood, or whether they required modifications. On the other hand, the Commission fully accepted that international organizations may possess treaty-making capacity and that international agreements concluded by international organizations possessing such capacity fall within the scope of the law of treaties. For in explaining what it meant by the phrase “other subjects of

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international law possessed of treaty-making capacity” the Commission said that the “obvious case” is that of international organizations.5 One course, no doubt, might be to leave aside altogether the question of the treaties of international organizations until the whole of the Commission’s work on the law of treaties, as it affects States, is complete and then to consider just how much of it is applicable to organizations. But, as already pointed out, the conclusion, entry into force and registration of treaties, with which the present articles are concerned, is to a large extent a self-contained branch of the law of treaties and, unless it is unavoidable, it seems better not to postpone all consideration of treaty-making by international organizations until some comparatively distant date, by which time the Commission will have dealt with many other matters not very closely related to this part of the law of treaties. The solution suggested is similar to that adopted by the Commission for the case of honorary consuls in its draft articles on consular intercourse and immunities (A/4843, Chapter II), namely, a separate chapter specifying the extent to which the provisions of the draft articles apply to the treaties of organizations and formulating any particular rules peculiar to these treaties. (12) There is one topic in the present articles which is of special complexity and difficulty, namely, “reservations to multilateral treaties”. It is, moreover, a topic which during the past eleven years has occupied the attention of the International Court of Justice, the Commission itself, the General Assembly and the Organization of American States, as well as of the Commission’s Special Rapporteurs. It may, it is believed, be convenient to members of the Commission to have before them a summary of the discussion of this question in recent years, and such a summary has therefore been provided in the form of an appendix to the present report. (13) Finally, the Special Rapporteur has begun work on a further section of the law of treaties with the idea of including in a second series of articles all the matters dealt with in Sir G. Fitzmaurice’s second and third reports. These matters, it is thought, can suitably be grouped together so as to form the subject of a second possible convention covering the various aspects of the validity, that is, substantive validity, and duration of treaties. It should then be possible to dispose of the matters comprised in Sir G. Fitzmaurice’s fourth and fifth reports in a third series of draft articles. The programme is, therefore, likely to occupy three years rather than the two years contemplated in the abovementioned decision of the Commission. 5 A/4169, loc. cit. In truth, international organizations now figure almost as prominently as States in the United Nations Treaty Series.

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Chapter 21

Judge Gerald Fitzmaurice, Separate Opinion, Temple of Preah Vihear, 1962 Comment by Brigid McCarthy, Intern, BIICL Sir Gerald Fitzmaurice was a judge at the ICJ from 1960 to 1973, during which time he made a distinctive contribution to the jurisprudence of the Court. Fitzmaurice’s judicial style was informed by his view that in international law “judicial pronouncements … constitute the principle method by which the law can find some concrete measure of clarification and development”.a Reflected also in his judgments is his “abhorrence of loose terminology and blurred conceptual boundaries”.b These attributes are clearly demonstrated in his Separate Opinion in Temple of Preah Vihear (Temple), where he goes far beyond the Court’s brief treatment of estoppel to step through its parameters in what has proved to be a lasting way. While the principle of estoppel in international law pre-dated Temple,c many of its cited applications “may be explicable on other grounds”.d Even where this might not be so,e successive courts largely avoided reference to estoppel. Thus, Fitzmaurice, along with three other judges who also gave separate opinions, gave estoppel its first stated and clear application.f Fitzmaurice’s influence and early insight can be seen across three debates that have featured in the development of estoppel in international law. First,

a Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3 (Separate Opinion of Judge Fitzmaurice), 65. b JG Merrills, ‘Sir Gerald Fitzmaurice’s Contribution to the Jurisprudence of the International Court of Justice’ (1976) 48 British Yearbook of International Law 213. c See: DW Bowett, ‘Estoppel Before International Tribunals and its Relation to Acquiescence’ (1957) 33 British Yearbook of International Law 179; IC MacGibbon, ‘Estoppel in International Law’ (1958) 7 International and Comparative Law Quarterly 468; G Schwarzenberger, ‘The Fundamental Principles in International Law’ (1955) 87 Hague Recueil 256. d I Sinclair, ‘Estoppel and acquiescence’ in V Lowe and M Fitzamurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (CUP 1996) 108. e See: Case Concerning the Arbitral Award made by the King of Spain on 23 December 1906 [1960] ICJ Rep 192. f ML Wagner, ‘Jurisdiction by Estoppel in the International Court of Justice’ (1986) 74 California Law Review 1786.

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the role of reliance in international estoppel has been disputed.g In Temple, Fitzmaurice’s insistence that reliance is a requirement of estoppel is in direct opposition to the view offered by Judge Alfaro that it is not.h The weight of the authority since has sided with Fitzmaurice.i Second, a lack of clarity in the jurisprudence on the distinction between acquiescence and estoppel has led to debate.j In this early treatment, Fitzmaurice provides a “profound” ­explanation of the difference.k Finally, in the face of uncertainty as to the extent to which an estoppel can arise from silence,l Fitzmaurice’s opinion has been influential and recently cited for its decisive authority.m g R Higgins, Problems and Process: International Law and How We Use It (Oxford University Press 1995), 36; [See Chapter 10 of this Anthology] ML Wagner, ‘Jurisdiction by Estoppel in the International Court of Justice’ (1986) 74 California Law Review 1780; A Ovchar, ‘Estoppel in the Jurisprudence of the ICJ: A principle promoting stability threatens to undermine it’ (2009) 6 Bond Law Review 20. h Temple of Preah Vihear (Cambodia v. Thailand) [1962] ICJ Rep 6 (Separate Opinion of Judge Alfaro). i See, for example: Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US) 1984 ICJ 392; Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) (Application for Permission to Intervene) [1990] ICJ Rep 92; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) ( Jurisdiction) [1998] ICJ Rep 275. j JR Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2012) 421; R Higgins, Problems and Process: International Law and How We Use It (OUP 1995) 36. [See Chapter 10 of this Anthology]. k I Sinclair, ‘Estoppel and acquiescence’ in V Lowe and M Fitzamurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (CUP 1996) 105. l A Ovchar, ‘Estoppel in the Jurisprudence of the ICJ: A principle promoting stability threatens to undermine it’ (2009) 21 Bond Law Review 11. m Chagos Marine Protected Area Arbitration (Mauritius v UK), Permanent Court of Arbitration, 18 March 2015 (Majority) at 437.

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Separate Opinion of Judge Sir Gerald Fitzmaurice, Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: ICJ Reports 1962, p. 6, at pp. 52–64.

Separate Opinion of Judge Sir Gerald Fitzmaurice, Temple of Preah Vihear (Cambodia v Thailand), Merits Judgment, International Court of Justice Judge Sir Gerald Fitzmaurice Although I am in full agreement with the operational part of the Judgment of the Court, and with its reasoning and language, there are certain matters which I should like to develop futher, and others—not mentioned in the J­ udgment— which seem to me to require a brief discussion. Since I have no intention of going over the whole ground again, I shall set out my points seriatim, in order of convenience, and without attempting to establish any particular connecting links between them.

The Pre-1904 Position

The Judgment states that the Court is not called upon to go into the ­situation as it existed previous to the treaty settlement of 1904; and this is true inasmuch as the rights of the Parties depend on, or flow from, that settlement, or events subsequent to it. There is however one fact, not referred to in the Judgment, which could have been of decisive importance in this case, namely that, previous to the boundary settlements of the period 1904–1908, the Temple of Preah Vihear was situated in territory that was, at that time, under Siamese sovereignty, because a treaty of 15 July 1867 between France (acting on behalf of ­Cambodia) and Siam (as Thailand was then called) had established a frontier line running well south of the Dangrek range of mountains, across the ­Cambodian plain. Since the effect of the 1904 treaty settlement was to shift the frontier to the north, and to place it along the general line of the Dangrek range, it follows that, by this settlement, Thailand was giving up territory. As a consequence, there arises a presumption in favorem ejus qui dat that Thailand did not ­relinquish any territory she cannot be proved to have relinquished. This means that in any conflict between a more northerly and a more ­southerly frontier line in the region of Preah Vihear, the latter line must be held to prevail, unless the former can be established. I agree with the Court that the former (i.e. the more northerly) line can be, and is, established, for the reasons given in the Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Judgment; but the foregoing considerations require to be stated in order that the significance of the conclusion may be fully apparent. The matter is brought into relief in another way. Throughout these proceedings Thailand has contended that, there never having been (as she maintains) any effective delimitation of the frontier in the eastern sector of the Dangrek range, as required by Article 3 of the Treaty of 1904, the result (by virtue of ­Article 1) is automatically to cause the frontier to run along the line of the watershed as ascertained by scientific survey. An interpretation even more favourable to Thailand would however be that, in the absence of the delimitation required by Article 3, in completion of Article 1, the latter provision could not have taken any practical effect, so that no new frontier line under the Treaty of 1904 would have come into existence at all, and the frontier would have remained as it was immediately previous to 1904, with the Temple area in Thailand. Since both these interpretations are favourable to Thailand, and either would have been decisive if the Court had not held that Thailand had in any event, subsequently, and independently, accepted a frontier placing the Temple in Cambodia, it was not necessary to choose between them. There is another aspect of the pre-1904 situation which is material, namely the considerable evidence in the record of the unsettled state of the frontiers between Siam and French Indo-China (of which Cambodia was then part), which had existed for a long time and was the cause of disturbed relations between France and Siam. This is mentioned towards the end of the Judgment. It is however a point that has to be borne constantly in mind from the start, in assessing what the Parties were really intending to achieve by the frontier settlements of the period 1904–1908, and as indicative of their desire to achieve a settlement that would be definite and durable.

Considerations of a Topographical, Historical and Cultural Character

The Court has dismissed these in a sentence, as not being legally decisive. I agree that they are not; but I think it desirable to say why, since these considerations occupied a prominent place in the arguments of the Parties. Such matters may have some legal relevance in a case about territorial sovereignty which turns on the weight of factual evidence that each party can adduce in support of its claim, and not on any more concrete and positive element, such as a treaty. In the present case it is accepted, and indeed contended by both Parties, that their rights derive from the treaty settlement of 1904, and on the subsequent events relative to or affecting that settlement. In consequence, extraneous factors Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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which might have weighed with them in making that settlement, and more particularly in determining how the line of the frontier was to run, can only have an incidental relevance in determining where today, as a matter of law, it does run. Moreover, for these factors to have any serious influence, it would at least be necessary that they should all point in the same direction, and furnish unambiguous indications. This is not the case here. As the Judgment of the Court points out, no certain deduction can be drawn from the desire of the Parties for natural and visible frontiers—the Dangreks in themselves furnished that, and would, in a general way, have done so, whether the line along the Dangreks was a crest, a watershed or an escarpment line. Equally, it is difficult to draw any certain deduction from the siting of the Temple. It overlooks the Cambodian plain: but it faces in the direction of Thailand. Its main access is from the latter direction; but there is also access from the Cambodian side—and this access, because steep and hard, must—precisely for that reason—have been contrived deliberately and of set purpose, contra naturam as it were, since it involved a climb of several hundred metres. Yet difficulty of access is not—or was not—all on one side: there is much evidence in the documentation of the case that the thickness of the jungle on the northern (Thai) side of the Temple had the consequence that visits had to be specially prepared, by the clearing of paths and the blazing of trails. This particular difficulty was much less prominent on the Cambodian side: but what remains certain is that if, though for different reasons and in different ways, access was not easy from either side, it was feasible from both, and was also achieved from both, at varying times and in varying degrees. As to the Khmer origins of the Temple—this factor (put forward by Cambodia) operates in an equally neutral way, since it seems to be admitted that there are and were, in these regions, populations of Khmer race on both sides of the frontier.

The proceedings of the Mixed Commission under the Treaty of 1904

Although I do not dissent from what the Judgment says under this head, I think many of the facts are so conjectural that it is exceedingly difficult to draw any sure conclusions from them. Various inferences may be more or less reasonable and warranted, but when all is said and done the only certain thing is that the Annex I map was produced in Paris by French topographical officers in N ­ ovember 1907, and was never, as such, seen (much less approved or adopted) by the Mixed Commission, which indeed appears to have ceased to function entirely after about February of that year—or at any rate it did not, after J­ anuary, hold any meeting of which there is any record. Whether the map Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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was based on any instructions that the Commission had given, or on rough sketches approved by it, must, in the absence of any evidence, remain a matter of surmise. It seems to me therefore that Thailand succeeds on this part of the case, about which it is hardly necessary to say more than that, however respectable the provenance of the map was, it must be held to have been a purely unilateral production, not in any way binding on Thailand at the moment of its communication to her, and subject entirely, at that time, to her acceptance or rejection, either in whole or in part.

Thailand’s Acceptance by Conduct of the Annex i line

Had the matter ended with the production of the map; or if the map had never been officially communicated to Thailand; or had been communicated in such a way, or in such circumstances, that no adverse conclusion could be drawn from her failure to react; or had been communicated but rejected, either as a whole, or in relation to Preah Vihear; then Thailand would, in my opinion, have been entitled to a finding in her favour, since I personally consider that there is little reasonable doubt that, in this particular region, the true line of the watershed runs, and ran in 1904, along the line of the escarpment. (Moreover, I could not myself regard the deviation from the line of the watershed at Preah Vihear as being covered by any discretionary powers of adaptation which the Mixed Commission might have possessed; but this matter is not in any event material, since it was not the Mixed Commission as such which made or approved the map.) The crucial issue in this case is therefore whether Thailand, by her conduct in 1908, and thereafter, in fact accepted the Annex I map line as representing the outcome of the work of delimitation provided for by the Treaty of 1904, knowing how it had been produced; or, more simply, whether Thailand just accepted the line as being the frontier line, accepting also the risk of its possible inaccuracy. The Judgment of the Court answers these questions in the affirmative, on grounds in which I fully concur. In doing so, I am not unmindful of the fact that acceptance by conduct alone, of an obligation in the nature of a treaty obligation, is not lightly to be presumed; especially where a frontier is in question; and even more so where the frontier line thus said to be accepted involves a departure from the delimitary criterion indicated by the relevant treaty. But if the plea of error or misapprehension is excluded, as I think it has to be (see below), I can place no other interpretation on Thailand’s conduct, considered as a whole, than that she accepted this particular line as representing the frontier in this region. Moreover, even negative conduct—that is to say failure Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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to act, ­react or speak, in circumstances where failure so to do must imply ­acquiescence or acceptance—is, in my opinion, quite sufficient for this purpose, if the facts are clear. I would only add to the views expressed in the Judgment, that I cannot accept the plea so eloquently urged on behalf of Thailand that any adherence to the Annex I line would have involved a departure from a solemn treaty obligation. This surely begs the question; for as the Judgment says, it is always open to governments, in their bilateral relations, to agree on a departure of this kind, provided they do so knowingly, or (as I think was Thailand’s case here) in circumstances in which they must be held to have accepted, and as it were discounted in advance, the risks or consequences of lack, or possible lack, of knowledge. In the present case, the conduct of each Party, over what was an important matter of common concern to both, was, in my opinion, evidence of, or amounted to, a mutual agreement to accept a certain line as the frontier line. What seems to me therefore really to have occurred was not in the legal sense a departure from the treaty provision concerned, but the mutual acceptance of a certain result as being its actual outcome, irrespective of the precise conformity of that outcome with the treaty criterion. I think it desirable here to mention a point of detail, but one nevertheless liable to give rise to some confusion. Another of the maps communicated to the Siamese authorities covered the Pnom Padang range of mountains which prolongs the Dangrek range eastwards to the river Mekong, and showed a frontier line apparently running along the crest of the Pnom Padang. This was because the Treaty of 1904, while prescribing a watershed line for the Dangreks, prescribed a crest line for the Pnom Padang, and the actual delimitation was carried out by the Mixed Commission set up under that Treaty. The subsequent boundary Treaty of March 1907, however, prescribed a watershed line for the Pnom Padang as well as for the Dangreks. But already in the meantime, the first (1904) Mixed Commission had (see minutes of its meeting of 18 January 1907) adopted the crest line (though the Commission seems in this region to have regarded the crest and watershed lines as coinciding). As far as I can understand the matter, the result was that although it was strictly part of the task of the second (1907) Mixed Commission to delimit the frontier along the Dangrek and Pnom Padang ranges, it only delimited the western Dangrek sector (the eastern sector being the task of the first Commission), and did not delimit the Pnom Padang at all. The crest line delimitation carried out by the first Commission in the Pnom Padang region therefore stood. There seems thus to have been a tacit understanding between the Governments that the relevant provisions of the 1907 Treaty would to this extent be ignored, since a delimitation, even though not the one provided for in this latter Treaty, had already been carried out. Here again, therefore, the Governments accepted the map line as Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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being the line of the frontier, even though it did not correspond with the latest treaty provision on the subject. This is a minor matter, but it illustrates very aptly how the Governments did not consider themselves as necessarily tied down to the treaty criteria in what they finally accepted as the frontier line.

The Question of Error

The Court has dealt very fully with this matter, but it is so central to the whole issue in this case that I desire to make some additional remarks about it. In the interests of the stability of contracts, the principle of error as vitiating consent is usually applied somewhat strictly; and I consider that this approach is also the correct one in international law, in the interests of the stability of treaties, and of frontier lines established by treaty or other forms of agreement. That there was (as I think) an error in the map by reference to the true watershed line does not necessarily mean that Thailand was herself under any misapprehension, nor that, if she was, she can, in law, now plead the fact. The Siamese authorities, in 1908 and thereafter, cannot possibly have failed to realize that the Annex I map showed Preah Vihear as being in Cambodia, since it so clearly did; and for the reasons given in the Judgment of the Court, the fact that, at this time, the Siamese authorities may have attached no importance to the Temple, or may have failed to realize the importance it would eventually assume for them, is legally quite irrelevant. This could never, per se, be a legal ground for claiming frontier rectification. The sole remaining question therefore is whether the Siamese authorities, if (as the Judgment holds) they accepted that Preah Vihear should be attributed to Cambodia (as part of French Indo-China), did so in the mistaken belief— and (as Thailand alleges) only on the basis of such a belief—that the line on the map corresponded to the watershed line. Even if the Siamese authorities of that date were under such a misapprehension, there are, in my opinion, two decisive reasons why Thailand cannot now rely on or plead the fact. The first arises as follows. It was the Siamese Government itself which, with the assent, and actually at the suggestion of the Siamese members of the Mixed Commission, formally requested that the work of preparing the maps of the frontier areas should be carried out by the French topographical officers. It was the same in connection with the work of the second Mixed Commission under the Treaty of 1907. In the eastern Dangrek sector moreover, the Siamese authorities did not even cause the French officers doing the survey work to be accompanied by a Siamese officer, as they could have done, and as was in fact done in other cases (and it was actually a French officer of Cambodian race who did the s­ urvey Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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work in the eastern Dangrek sector, as the Siamese members of the Mixed Commission perfectly well knew). The despatch from the Siamese Minister in Paris enclosing the series of maps, of which the Annex I map was one, also stated in the clearest possible terms that they were the maps produced by the French officers in response to “the Siamese Commissioners” request. The maps were then communicated to the Siamese members of the Mixed Commission, who of course equally knew this, and further would have known how far, if at all, the maps were based on work done or approved, or on instructions given by, the Commission itself. It is apparent, therefore, that no one on the Siamese side could have been under any misapprehension as to the provenance of these maps. Furthermore, is is evident that the Siamese authorities deliberately left the whole thing to the French elements involved, and thus accepted the risk that the maps might prove inaccurate in some respects. Consequently, it was for them to verify the results, if they wished to do so, in whatever way was most appropriate in the circumstances, e.g. by consulting neutral experts. If they did not (for whatever reasons) wish to do this, then they had to abide by these results. The formal request for extra copies for the use of the provincial Governors shows that, in any event, the case was not one of a mere passive reception of these maps by the Siamese authorities. The explanation of all this, there can be no reasonable doubt, is that, in effect, everyone on the Siamese side relied on the skill and good faith of the French topographical officers producing the maps. There can equally be no doubt that the latter acted in complete good faith, used all their skill, and fully believed that the watershed in the Preah Vihear region ran as indicated by the Annex I line. One may sympathize with Siam’s lack of topographical and cartographical expertise at this time, but one is dealing with sovereign independent States to whom certain rules of law apply; and it remains the fact that, in the absence of any question of lack of good faith, the legal effect of reliance on the skill of an expert is that one must abide by the results—in short, a principle akin to that of caveat emptor is relevant. This is so in all walks of life. A man who consults a lawyer, doctor, architect, or other expert, is held (in the absence of fraud or negligence—not here in question) to accept the possibility that the expert may be mistaken in the advice he gives, or less than perfect in the work he does. Like all human beings, he is fallible. Except in cases in which the doctrine of “absolute” risk or liability prevails, the law as a general rule affords no remedy against errors made in good faith and without negligence by duly qualified experts. The dangers of giving expert advice could not otherwise be accepted. The French officers in this case were of course fallible. They for instance (and both Parties were agreed about this) made an error over the course of the O’Tasem stream, which must have affected the whole question of how the watershed line ran in Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the Preah Vihear region. The authorities of French Indo-China were unaware of this error. They accepted the map as correct. Equally, the Siamese authorities, knowing the character and provenance of the map, being in a position to consult their Commissioners who had received it, or experts of their own choice, made no objection, and raised no query, in relation to a line which was clearly intended to represent and constitute the line of the frontier in this region, and which anyone looking at it must have seen at once placed Preah Vihear on the Cambodian side of the line. Today Thailand says the map was erroneous and that she was under a misapprehension about it. But the Siamese authorities of that date plainly accepted the risk that just such an error as this might in time be discovered; and whoever does that, must be held thereby also, and in advance, to have accepted such errors as do in fact eventually come to light. The other decisive reason why it is not possible to receive Thailand’s plea that she mistakenly believed the Annex I line to correspond to the line of the watershed, and that she only on that basis accepted the siting of Preah Vihear in Cambodia, is, as the Judgment of the Court points out, that this plea is totally inconsistent with her attitude over her “acts on the ground”, which she puts forward as evidence that she considered herself to have sovereignty over Preah Vihear and had never accepted the Annex I line; for if this was so, she must have regarded the map line as erroneous, and the map as showing Preah Vihear in Cambodia for that reason only. It does not make any difference that the Court has found that Thailand’s acts on the ground did not in fact suffice to demonstrate her non-acceptance of the map line. The inconsistency with the plea of mistaken belief lies in the very contention that they did.

Thailand’s “acts on the ground”

If Thailand’s attitude respecting her acts on the ground debars her from pleading error over the watershed question, she remains fully entitled to put them forward as evidence of a belief on her part that she had sovereignty over Preah Vihear, and did not accept the Annex I line in that region. But like the Court, I do not find these acts really convincing in that sense. Thailand has, I know, produced an impressive volume of evidence of local administrative activity relative to Preah Vihear; but it is not clear to me just what legal value can be attached to it. I have already drawn attention to the fact that previous to the 1904 treaty settlement, the Preah Vihear region (not in isolation of course, but as part of the eastern Dangrek sector) was, and had since 1867 been, under Siamese sovereignty, because the frontier at that time ran south of the whole Dangrek range. In view of this, it was perhaps to be expected (and would not

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in itself signify greatly) that in this rather remote region, and because of the difficulties of communication with Bangkok which must then have existed, the local officials and authorities of Khukhan province should, for a time, have continued, at and near Preah Vihear, to perform those acts and carry out those activities which they had been accustomed to perform and carry out for some time past. If this was the position, no very positive inference can be drawn from it. It is true that the Siamese authorities did take steps to make the frontier changes known locally; but, in this region, realization of them may have been slow to come through. There may for a time have been an element of fluidity in the local situation; but the real attitude of Siam as a State must, for the reasons given in the Judgment of the Court, be taken to be that evinced in the course of, and following upon, the visit of Prince Damrong in 1930—by far the most significant incident in this part of the case. To me it seems to have constituted a tacit recognition of Cambodian sovereignty over Preah Vihear, and the existence of possible reasons why Siam did not protest cannot, in law, alter the fact. I also could not help being struck by the evidence of one of Thailand’s own expert witnesses—a patently honest and reliable one, it seemed to me—to the effect that, in the course of a visit to this region in July 1961, during which he spent eleven days in carrying out a survey of the Temple area, he saw no sign of the inhabitants, rice cultivations, or forestry or other activities, that figure so prominently in the evidence furnished by Thailand respecting the period following on the treaty settlements of 1904–1908. This witness, when crossexamined on behalf of Cambodia, was asked whether he saw any people living between Preah Vihear and the nearest village on the Thai side—a distance of 10–15 kilometres—and he answered “No, there is [sc. he saw] nobody living there”. When asked whether he saw any people on Mount Preah Vihear itself, he said that, apart from the Thai police post, and one guard at the Temple, he saw “occasionally a few visitors … or tourists”. When asked whether he saw any people cultivating rice, he said “No. This area is covered by jungle forests and there is no rice cultivation”. Asked whether he saw any woodcutters or foresters about, he replied “During the eleven days I stayed there I did not see anybody”. In re-examination on behalf of Thailand, no questions were put to the witness on these points. It is obviously not permissible from this evidence, particularly on the basis of so short a stay, to draw any definite conclusion as to the situation existing at the earlier period. But even in eleven days it is possible to see if, in a restricted area, there are any habitations, cultivations, forestry work in progress, and so on. It seems therefore reasonable to infer—taking the scale of Siamese activity in this area, in the period following on the treaty settlement, to have been

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as indicated in the evidence furnished by Thailand—that it must since have undergone a notable diminution.

The Treaties of 1925 and 1937

These Treaties, the bearing and effect of which was much discussed in the written and oral proceedings, have, in my opinion, only a limited, though weighty significance in this case, namely as indicative of the importance the Parties attached to having stable and durable frontiers. This was shown by the fact that frontier revision was, in terms, excluded from the revisionary processes which were otherwise one of the main objects of these Treaties. The Court has made this fact the basis of a finding, with which I fully agree, that it is reasonable to assume from this feature of the Treaties that, by the boundary settlements of the period 1904–1908, the Parties were equally seeking stability and durability, and that this factor should therefore prevail in resolving any doubts in favour of, or against, a part of the frontier the validity of which is now called in question. It is a general principle of law, which has been applied in many contexts, that a party’s attitude, state of mind or intentions at a later date can be regarded as good evidence—in relation to the same or a closely connected matter— of his attitude, state of mind or intentions at an earlier date also; provided of course that there is no direct evidence rebutting the presumption thus raised. Similarly—and very important in cases affecting territorial sovereignty—the existence of a state of fact, or of a situation, at a later date, may furnish good presumptive evidence of its existence at an earlier date also, even where the later situation or state of affairs has in other respects to be excluded from consideration (Judge Huber in the Island of Palmas case, Reports of International Arbitral Awards, Vol. II, at p. 866; and see also the separate Opinion of Judge Basdevant in the Minquiers and Ecrehos case, I.C.J. Reports 1953, at p. 76 ff.). Cambodia however claimed another effect for the Treaties of 1925 and 1937, namely that by confirming the frontiers as already established, they imparted a new and independent treaty basis to the Annex I line, thereby validating it, even if it was not valid before. I do not think this contention well-founded. Such a confirmation of the existing frontiers no doubt implied that frontiers did exist, and possibly also that they existed and were complete at all points of contact between the two countries; but this could not, by itself, say anything at all as to what these frontiers were, or how exactly they ran. A confirmation only confirms what is; it cannot per se alter, add to, or detract from the latter, which must be ascertained ab extra—in this case by reference to the previous treaty settlements and the events relevant to them. The confirmation was evidence Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of the importance the Parties attached to the frontiers, but otherwise it left matters as they were, whatever they were.

The Principle of Preclusion and Estoppel

The Court has applied this principle in the present case to the effect that even if there could be any doubt as to whether Thailand did originally accept the Annex I map and line, so as to become bound by it, she is precluded by her subsequent conduct from now asserting her non-acceptance. With this conclusion I agree (it being postulated, for reasons already given, that no error or misapprehension can be pleaded). But the Court only glances at the matter, which needs a good deal of development. The principle of preclusion is the nearest equivalent in the field of international law to the common-law rule of estoppel, though perhaps not applied under such strict limiting conditions (and it is certainly applied as a rule of substance and not merely as one of evidence or procedure). It is quite distinct theoretically from the notion of acquiescence. But acquiescence can operate as a preclusion or estoppel in certain cases, for instance where silence, on an occasion where there was a duty or need to speak or act, implies agreement, or a waiver of rights, and can be regarded as a representation to that effect (see the cases, and the quotation from an Opinion of the British Law Officers, cited in Dr. D.W. Bowett’s article, “Estoppel before international tribunals and its relation to acquiescence”, in the British Year Book of International Law for 1957, at pp. 197–201; and see also Lord McNair’s Law of Treaties, 1961, p. 488). On that basis, it must be held in the present case that Thailand’s silence, in circumstances in which silence meant acquiescence, or acted as a representation of acceptance of the map line, operates to preclude or estop her from denying such acceptance, or operates as a waiver of her original right to reject the map line or its direction at Preah Vihear. However, in those cases where it can be shown that a party has, by conduct or otherwise, undertaken, or become bound by, an obligation, it is strictly not necessary or appropriate to invoke any rule of preclusion or estoppel, although the language of that rule is, in practice, often employed to describe the situation. Thus it may be said that A, having accepted a certain obligation, or having become bound by a certain instrument, cannot now be heard to deny the fact, to “blow hot and cold”. True enough, A cannot be heard to deny it; but what this really means is simply that A is bound, and, being bound, cannot escape from the obligation merely by denying its existence. In other words, if the denial can be shown to be false, there is no room or need for any plea of preclusion or estoppel. Such a plea is essentially a means of excluding a denial that might Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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be correct—irrespective of its correctness. It prevents the assertion of what might in fact be true. Its use must in consequence be subject to certain limitations. The real field of operation, therefore, of the rule of preclusion or estoppel, stricto sensu, in the present context, is where it is possible that the party concerned did not give the undertaking or accept the obligation in question (or there is room for doubt whether it did), but where that party’s subsequent conduct has been such, and has had such consequences, that it cannot be allowed to deny the existence of an undertaking, or that it is bound. The essential condition of the operation of the rule of preclusion or estoppel, as strictly to be understood, is that the party invoking the rule must have “relied upon” the statements or conduct of the other party, either to its own detriment or to the other’s advantage. The often invoked necessity for a consequent “change of position” on the part of the party invoking preclusion or estoppel is implied in this. A frequent source of misapprehension in this connection is the assumption that change of position means that the party invoking preclusion or estoppel must have been led to change its own position, by action it has itself taken consequent on the statements or conduct of the other party. It certainly includes that: but what it really means is that these statements, or this conduct, must have brought about a change in the relative positions of the parties, worsening that of the one, or improving that of the other, or both. The same requirement, that a change or alteration in the relative positions of the parties should have been caused, covers also certain other notions usually closely associated with the principle of preclusion or estoppel, such as for instance that the one party must have “relied” on the statements or conduct of the other; or that the latter must, by the same means, have “held itself out” as adopting a certain attitude; or must have made a “representation” of some kind. These factors are no doubt normally present; but the essential question is and remains whether the statements or conduct of the party impugned produced a change in relative positions, to its advantage or the other’s detriment. If so, that party cannot be heard to deny what it said or did. Applying this test to the circumstances of the present case, there can be little doubt that Cambodia’s legal position was weakened by the fact that (although a striking assertion of her sovereignty had been manifested on the occasion of Prince Damrong’s visit in 1930) it was not until 1949 that any protest on the diplomatic level was made about local acts of Thailand in violation, or at any rate in implied denial, of that sovereignty. But France (exercising the protectorate) was entitled to assume from the conduct of the central Siamese authorities that the latter accepted the frontier as mapped at Preah Vihear. On that basis, but on that basis only, France could safely ignore the activities of l­ocal Siamese authorities, and (the war period being ruled out, as I think it

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must be in this case) confine her diplomatic action, as she seems to have done, to cases clearly involving the central Siamese authorities. Similarly, it was only on the basis of a justifiable assumption of Thailand’s acceptance of the frontier line as mapped that a comparatively low level of administrative activity on the part of France and Cambodia at Preah Vihear would have been compatible with the upkeep of sovereignty. It is an established principle of international law that, especially in wild or remote regions, comparatively few acts are necessary for that purpose where the title does not primarily depend on the character or number of those acts themselves, but derives from a known and independent source, such as a treaty settlement. On the basis therefore of the acceptance of the map line by Thailand, as part of the treaty settlement, there would, in the upkeep of Cambodian title, have been no need (in respect of such a locality as that of the Temple area) to perform any but the most minimal and routine acts of administration. Clearly, if Thailand could now be heard to deny this acceptance, the whole legal foundation on which the relative inactivity of France and Cambodia in this region was fully explicable would be destroyed. In addition to the foregoing considerations, it may be useful to recall a deliberately non-technical statement of the matter given by a former Judge of the Court (writing in another capacity), as follows: A State cannot be allowed to avail itself of the advantages of the treaty when it suits it to do so and repudiate it when its performance becomes onerous. It is of little consequence whether that rule is based on what in English law is known as the principle of estoppel or the more generally conceived requirement of good faith. The former is probably not more than one of the aspects of the latter. (Lauterpacht, Report on the Law of Treaties, U.N. Document A/CN.4/63 of 24 March 1953, p. 157.)

The Question of Interpretation—Watershed Clause versus Map Line

The Court has dealt fully with this matter, although indicating in effect that, given the main basis of the Judgment, it does not strictly arise, because the Parties themselves resolved any possible conflict when they accepted the map line as being the outcome of the work of delimitation even if it might not in all respects follow the watershed line. I think the Court was nevertheless right to consider how any conflict should, as a matter of ordinary treaty interpretation, be resolved, for the following reason.

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It would have been open to Thailand in the present proceedings to have adopted a different course from the one she in fact followed. Instead of denying, she might have admitted acceptance of the map as representing the outcome of the work of delimitation, and also that the map became part of the treaty settlement. Having admitted that, however, it would still have been open to Thailand to contend that, precisely because the map had become part of the settlement, any conflict arising between it and a clause of the Treaty must fall to be resolved by the ordinary processes of treaty interpretation, and that Thailand must be entitled to the benefit of those processes, just as would be the case if an inconsistency were discovered between two provisions of the Treaty itself. On that basis, even if Thailand admitted her acceptance of the map, it was open to her to argue that in a conflict between a treaty clause that says “watershed” and a map that says something different, the former must prevail. It was therefore necessary for the Court to deal with the matter on that basis. There is of course no general rule whatever requiring that a conflict of this kind should be resolved in favour of the map line, and there have been plenty of cases (some of which were cited before the Court) where it has not been, even though the map was one of the instruments forming part of the whole treaty settlement (as here), and not a mere published sheet or atlas page—in which case it would, in itself, have no binding character for the parties. The question is one that must always depend on the interpretation of the treaty settlement, considered as a whole, in the light of the circumstances in which it was arrived at. So considered in the present case, I agree with the Court that, in this particular instance, the question of interpretation must be resolved in favour of the map line.

The Course of the Watershed Line

According to the basis adopted for the Judgment of the Court (with which basis I agree), it becomes unnecessary to consider how the watershed line really runs at Preah Vihear. I nevertheless desire to say that the expert evidence on this subject, written and oral, convinced me personally that the watershed line runs (and ran also in the period 1904–1908) as contended for by Thailand. (Signed) G.G. Fitzmaurice.

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Chapter 22

Clive Parry, The Sources and Evidences of International Law, 1965 Comment by Professor Emeritus Maurice Mendelson QC, Blackstone Chambers I did not know Clive Parry well. He was much older than me, and whereas he spent most of his academic career in Cambridge, mine was mostly in the “other place” and London. However, we did meet from time to time at conferences, and on one occasion I crossed swords with him in a professional capacity. I remember him as brilliant, learned, suave and witty; and though he could sometimes be trenchant in expressing his views, by all accounts he was capable of great kindness. He made several valuable contributions to international law, including editing the Consolidated Treaty Series, British International Cases 1964–1969; and some volumes of the British Digest of International Law. The latter would have been more useful had it been possible to complete it: as it turned out, only a handful of volumes were published. He was also the author of a number of interesting articles. But for me, perhaps his most significant contribution was his The Sources and Evidences of International Law. This slim volume was based on his Melland Schill lectures at Manchester University. It is less a student book than one for connoisseurs. It was partly this work that inspired me to get involved in the detailed study of sources some two decades later. It is full of penetrating insights (and indeed wit) on the subject. His discussion of the concept of “source” is one example and his examination of the role of the decisions of municipal courts as a source (or evidence) of international law is another. But there are many. That is not to say that all of his views are beyond dispute: for instance, his description of treaties as peripheral seems strange, even for 1965. But even when debatable, his perceptions rarely lacked interest. Even at a time when the subject has been exhaustively (one might even say exhaustingly) worked over, the book is still worth reading.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_023

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C. Parry, The Sources and Evidences of International Law (Manchester University Press 1965). Excerpt: Chapter 1, ‘The Problem in General’, pp. 1–27.

The Sources and Evidences of International Law* Clive Parry 1.

The Problem in General

Sources of Law in General In English jurisprudence at least, the classic scheme of the sources of law is that of Salmond, who divided them first into those which are ‘formal’ and those which are ‘material’—those imparting to a given rule the force of law and those  from which its substance is drawn. He further subdivided ‘material sources’ into ‘legal’ and ‘historical’ sources—those which the law itself acknowledges, such as statute and judicial precedent in England, and those which, though possibly no less influential, are not so acknowledged, as, for instance, the Roman legal system from which, via judicial precedent, many ­English rules are derived. Finally, in a footnote, Salmond distinguished a category of ‘literary’ sources, consisting in ‘the sources of our knowledge of the law, or rather the original authoritative sources of our knowledge, as opposed to later commentary and literature’.1 Though its primary distinction between ‘formal’ and ‘material’ sources, however difficult of application in practice, still commands some general acceptance, Salmond’s scheme has been much criticized. The alternatives to it which have been proffered have not, however, fared much better. Indeed Sir Carleton Allen, Salmond’s chief critic, is regarded by Professor Paton as advocating the abandonment of the search for the sources of law in favour of an enquiry, into first, its validity and, second, the origins of the materials from which it is fashioned, on the ground that the multiplicity of theories has utterly confused the term ‘source’.2 The Traditional Notion of Sources in International Law: Terminology International lawyers appear to have persisted longer in the search for ‘sources’. Whether this is because they have displayed a greater capacity for the clear * [Editors’ note: all footnotes in the original text re-started at No. 1 on every page. These have been amended to continuous order for the purposes of the present Anthology]. 1 Salmond, Jurisprudence (10th ed., 1947), pp. 151–6. 2 Paton, Jurisprudence (3rd ed., 1964), pp. 159–60. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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definition of terms is perhaps questionable. But their terminology is, in any case, slightly different from Salmond’s. In an endeavour to introduce some order into the words used, Professor Corbett essayed forty years ago to distinguish different elements relevant to the discussion. He thus laid it down: 1. The cause of international law is the desire of States to have the mutual relations which their social nature renders indispensable regulated with the greatest possible rationality and uniformity. 2. The basis of international law as a system and of the rules of which it is composed is the consent of States. 3. The origins of the rules of international law, which may also be called ‘the sources’ of that law—though the word ‘source’ has such a history of confusion behind it that it might well be abandoned—are the opinions, decisions or acts constituting the starting-point from which their more or less gradual establishment can be traced. 4. The records or evidence of international law are the documents or acts proving the consent of States to its rules. Among such records or evidence, treaties and practice play an essential part, though recourse must also be had to unilateral declarations, instructions to diplomatic agents, laws and ordinances, and, in a lesser degree, to the writings of authoritative jurists. Custom is merely that general practice which affords conclusive proof of a rule.3 Amongst the interesting features of this series of propositions is, first, that the term but not ostensibly the concept of the ‘sources’ of law is condemned, though both term and concept are narrower than Salmond would have made them; and, secondly, the introduction of the term ‘evidence’. This last is something more, it is clear, than Salmond’s ‘literary sources’. Even writers in English have not adhered to these golden rules, as is testified to by John Bassett Moore, who usually had a pretty turn of phrase. For, in the Introduction to his great series of International Adjudications he wrote: Being desirous to deal with the substance of things, and, by avoiding as far as possible wars of epithets, to save a great cause from needless injury and attrition, I have placed the words ‘source’ and ‘evidence’ [in  the title to a section on the influence of arbitral decisions on the law] in the ­alternative, thus leaving it to their partisans, who may often

3 Corbett, ‘The Consent of States and the Sources of the Law of Nations’, British Year Book of International Law, vi (1925), pp. 20, 29–30. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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agree  ­except in terminology, the unchallenged enjoyment of the title they prefer.4 Oppenheim endeavoured to resolve the confusion between ‘source’ and ‘cause’ by tracing the former term to its own source in the meaning of spring or well which has to be defined as the rising from the ground of a spring of water. When we see a stream of water and want to know whence it comes, we follow the stream upwards until we come to the spot where it rises naturally from the ground. On that spot, we say, is the source of the stream of water. We know very well that this source is not the cause of the existence of the stream of water…5 My own first undergraduate reaction on reading this passage, I must confess, was to wonder whether its author had speculated sufficiently on the word ‘cause’, let alone ‘source’. Would his expression of view on the source of water have been the same if he had had the same experience as I had had some three months before, when sitting as a candidate for the examination in chemistry conducted by the Oxford Delegacy of Local Examinations? For then, having laboriously complied with what I took to be an invitation to explain how to analyse the composition of the atmosphere by weight, I took a satisfied glance round the examination room, to discover to my disconcertion that everyone else was busy with protractors: which could only mean that they were occupied in drawing flasks and that the question must relate to analysis by volume and not by weight. Would Oppenheim have regarded oxygen and hydrogen, or the process of their combination, as cause or source? Oppenheim’s qualifications as a chemist apart—and mine are so slight that I will not vouch for the details of my reminiscence, only for its general nature, he continues as to the sources of law: If we apply the conception of source in this meaning to the term ‘source of law’ the confusion of source with cause cannot arise. Just as we see streams of water running over the surface of the earth, so we see, as it were, streams of rules running over the area of law. And if we want to know whence these rules come, we have to follow these streams upwards 4 International Adjudications, Modern Series (1929), vol. i, p. xii. 5 Oppenheim, op. cit. (8th ed., 1955), vol. i, p. 24.

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until we come to the beginning; where we find that such rules come into existence, there is the source of them. Of course, rules of law do not rise from a spot on the ground as water does; they rise from facts in the historical development of a community. Thus in Great Britain a good many rules of law rise every year from Acts of Parliament. ‘Source of law’ is therefore the name for an historical fact out of which rules of conduct rise into existence and legal force.6 Romantic and evocative though I find this image, I must avow that it is unhelpful to me for at least two reasons. First, I feel that the assertion that an Act of Parliament is, or is simply, ‘an historical fact’ would stand, and would not withstand, closer examination. And secondly, though I can see that an Act of Parliament would be both a ‘literary source’ in Salmond’s scheme and an item of ‘evidence’ in Professor Corbett’s, and that this circumstance would not exclude its inclusion also in other categories established by those authors (since these categories are not necessarily on the same plane or not mutually exclusive), I am troubled by the possible effect of Professor Corbett’s cursory assignment of custom to the category of evidence. To say this is perhaps to be obscure unless it is first explained that Oppenheim goes on almost immediately to say that ‘Custom is the oldest and the original source of International Law’, to define it as ‘a clear and continuous habit of doing certain actions [which] has grown up under the aegis of a conviction that these actions are, according to International Law, obligatory or right’, and to distinguish it from mere usage, a habit which has grown up without any such conviction.7 Professor Corbett is no doubt more logical here: he says in effect custom merely proves or illustrates—or indeed merely provides evidence—that the conduct it reflects is obligatory. Therefore, in his system, it cannot be a ‘source’—an origin. Oppenheim says or implies in somewhat circular fashion that a custom is already considered as binding before it becomes such, but it is for him a source. But perhaps I misunderstand Professor Corbett here. Perhaps what he terms practice is Oppenheim’s custom, and presumably he would concede practice to be both source and evidence in his sense. The alternative, which is not excluded, is that Professor Corbett has in fact carried out his threat and excised ‘source’ in all but name from his system: certainly it is difficult to regard practice, however defined, as involving no more than ‘the opinions, decisions or acts constituting the starting-point’. 6 Ibid., p. 25. 7 Oppenheim, op. cit. (8th ed., 1955), vol. i, pp. 25–6.

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However this may be, it is well—a point sometimes overlooked by students of international law—to see briefly how writers in other languages and other countries regard the matter of terminology. A fair and accurate summary seems, if one may say so, to be provided by Professor Sørensen, who says that in usual legal language the sources of international law are those things which indicate the actual or concrete content of that system. Admittedly, certain authors prefer to avoid the term altogether or substitute alternative lines of enquiry for an enquiry after sources. Among these he includes Professor Corbett, thus confirming in some measure the suspicion we have already aired. But there is no harm in retaining the word if one makes sure how it is intended to be used. And it should not be used in relation to the question why international law is in general binding. That is the problem of ‘basis’, upon which designation Professor Corbett and many others agree,8 or of ‘source’ in the singular. Nor should it be used in connection with the question what are the ‘material sources’ of international law in the sense of the elements and influences determining its content, be they the practical interests and needs of States or the idealistic urgings of the social conscience or the ideologies prevailing at any particular time.9 The Direction of the Traditional Enquiry The search being for the thing which, by the highest compulsive force as it were, gives to the content of the rules of international law their character as law, whither should it be directed? The traditional approach leads one to turn to Article 38(1) of the Statute of the International Court of Justice—formerly the same article in the Statute of the former Permanent Court of International Justice.10 Quite why this should be the approach is not wholly clear. That article, says Brierly, is ‘a text of the highest authority’,11 which is to state the proposition to be proved. The article does not even say that it purports to be a list of sources otherwise than by implication. For it simply states that the Court ‘whose function it is to decide in accordance with international law such disputes as are submitted to it, shall apply’ that which it prescribes. One of the matters so prescribed is ‘the writings of the most highly qualified publicists …

8 Cf. Brierly, The Basis of Obligation in International Law (1958). 9 Sørensen, Les Sources du Droit International (1946). 10 For full text of the Article see Appendix i, p. 116 below. [Editors’ note: not included in this Anthology]. 11 Brierly, Law of Nations (6th ed., 1963), p. 56.

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as subsidiary means for the determination of rules of law’, a formulation which suggests less a formal source than what Salmond would have called no more than legal literature—not even a literary source. Another item echoes, or is echoed by, Professor Corbett: namely ‘international custom as evidence of a general practice accepted by law’—not a source at all according to him, if he admits any sources at all. Critique of the Traditional Enquiry Nothing traditional stands unchallenged. Hence the traditional notion of a category of formal sources, in the sense explained, has naturally been challenged. One ground of opposition to it is that such a category is a logical impossibility. Some rule must underlie its authority. That rule must be outside any of the matters included within the category, otherwise its validity would simply depend on its being so included. But if we postulate an external rule—a higher norm—we must find a source for that in a still higher norm and so on. In fact this criticism is not very seriously pressed. I apprehend that it was first formulated by Professor Kelsen.12 But he is not afraid to relate the source to which the establishment of the category of formal sources owes its authority to something within that category, for reasons which will shortly appear. Judge Fitzmaurice too, who states the logical impossibility in a neat algebraic proposition, warns that ‘what this shows is not so much that the sources of law are undiscoverable, as that they can never be exhaustively stated’.13 One might add to this that all one lacks is the infinite chain of superior norms logically necessary for the single proposition that all the rest of the sources are valid—and one may perhaps do well enough without that. Professor Kelsen appears to think so because, as he sees it, the theory of the formal sources of law implies a distinction between the agencies of creation of law and the agencies of application of law which is of only relative importance.14 Parliament, yes, in a sense creates law by enactments which the courts apply. But if, as it were, the courts did not apply them Acts of Parliament would not be law.

12 Kelsen, General Theory of Law and State (translated by Wedberg, 1949), pp. 132–3. 13 Fitzmaurice, ‘Some Problems regarding the Formal Sources of International Law’, Symbolae Verzijl (1958), pp. 153, 161. 14 Kelsen, op. cit., pp. 339–41.

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The Direction of the Non-traditional Enquiry A particular development of the attack on the traditional category of the formal sources of international law has been effected by Professor Alf Ross. He accepts the theory of the logical impossibility of its exhaustiveness. He accepts too the unreality of the distinction between law-creating and law-applying organs. Indeed his main objection to the traditional doctrine is that the latter reduces the status of the judge to that of a mere law-applying agency, whereas to him and to others for whom ‘the judicial decision is the pulse of legal life’, it is clear enough that judges do a great deal more than apply a received ‘valid’ law in more or less mechanical fashion. Indeed, ‘validity’ for him is not a value applicable to law at all. What is significant is reality and the elements of reality, which are therefore the ‘real’ sources of law, are the factors which impel the judge to decide as he does. These include a received law, a species of statute, coming in a manner from above, and also custom, proceeding as it were from below, but they include also certain ‘free factors’. What these are is not wholly clear to me since Professor Ross describes them, roughly, as the product of the social consciousness and responsibility of judges but calls them ‘legal principle’.15 This, however, is not important, at least for the moment. What is significant is that the non-traditional approach of Professor Ross and his school leads in a sense to exactly the same result as the traditional approach: to a concentration of the enquiry into the sources of international law well-nigh exclusively upon the relatively restricted body of jurisprudence of such courts of very limited jurisdiction as the international community possesses: in effect upon the jurisprudence of the World Court. Just as the traditionalists produce very exhaustive, and indeed very valuable, commentaries upon that small body of decisions, so do the non-traditionalists. The Purpose of Any Enquiry into Sources and Evidences Now is this right and is it enough? This must depend upon the purpose of an enquiry as to what are the sources of international law. The ultimate purpose of such an enquiry is to find out what international law is. It is an essential preliminary step in that enquiry because, if attention be directed to the wrong sources, it is impossible to discover what international law is or, what is perhaps more important, what is not international law.

15 Ross, A Textbook of International Law (1947), p. 80.

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It is commonly said that there is no parallel problem in municipal law—in, that is to say, the law within the State. The reason assigned for this is that, within the State, the courts have universal jurisdiction and will say soon enough what the answer to any legal question is and whether an alleged legal rule—for instance a resolution of only one House of Parliament—is or is not in fact such a rule. This may be fairly broadly true, though it may be suspected that there are various and growing areas of administrative law where it is not so true. But it is not true also that the existence of courts of universal jurisdiction is the sole explanation for the diminished frequency with which the problem as to what are the sources of law is encountered within the State. The courts are enabled to dispose of such problems because, in effect, they know what the law is. In modern times, however, their certainty in this matter is contributed to very greatly by legislation. Uncertainty as to what the sources of law are in the international community as contrasted with the State community is as much attributable, if it exists to the degree that is claimed, to the absence of developed international legislative organs as it is to the restricted character of international judicial jurisdiction. And in fact it does not at all follow logically that either courts or legislatures are the institutions of which to enquire, or which primarily need to know, what are the sources of international law and, in consequence, what that law is or may be. The Nature of the International Community For the international community is a very peculiar one from the legal point of view. It lacks, as we have seen, comprehensive judicial institutions. It lacks developed legislative institutions, if indeed it has any at all. The system of law which applies within it is patronizingly described, in consequence of this or of its retention of the institution of self-help, as a primitive system. But it is not to be assumed without enquiry that this verdict is correct, or that the international community requires legislative institutions. It is essentially a society of States, and therefore of collectivities rather than individuals. All or very nearly all of these collectivities already have legislatures, from which it must follow, at least, that the competence of an international legislature must in any event be restricted to that of something very like the diet of a confederation unless the autonomy of the national legislatures is very considerably trenched upon. That might or might not be desirable from some points of view. But were it to begin to occur, as indeed it may well have done, and were it to continue, its logical consequence would be the ultimate transformation of the q­ uasi-confederation into a federation, and therefore the transformation of the whole basis upon which the international community has hitherto stood.

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In a delightful phrase Baty pointed out that ‘It is universally agreed that, in spite of the modern theories … International Law … nevertheless has ­something to do with States’.16 That still remains true. Not only are States the normal members of the international community but the whole theory of the law of that community, and of modern innovations in it no less, is constructed upon the basis of that fact. States are thus not only subjects of the law but they are objects as well: their territory is themselves. Equally, while it is to them the law is given, they are the lawgivers. And if any element of international legislation is to be discerned in the operations of international organizations, enthusiasts for such structures would do well to remember that the theory upon which they were built was one of delegation from the State. If by a process of change and growth international law is becoming or is to become something else, some other theory and some other principle must apply. The evidence would suggest indeed, that though the State may be tending to wither away under the influence of internationalist or supernationalist or transnationalist ideology, of technology, and of a general tendency to classlessness, there is a strong tide of nationalism which may not be pulling in quite the opposite, but is not pulling in the same, direction. Two answers can be given to the question as to which remarkable phenomenon of recent years has had the most influence upon the international community and its law: the extraordinary profusion of international organizations or the extraordinary growth in the number of States. Given then, that for the time being the State, which was the fundamental fact and assumption of the international legal system, remains an essential part of it, and remains an organ as well as a member of the international community, it may be as important to enquire what are the sources of international law for the State, and what the State considers them to be, as to enquire what are the sources for the Court and what the Court construes them to be. Concededly, international organizations are also to be taken into account in this regard. Some attention must be paid to what are the sources of international law for them, and how they view them. The question may thus be put in this form: are the prescriptions of Article 38 of universal validity? Do they in fact list all the sources of international law to be applied, not only by the Court, but by whatsoever organ of the international community? The Nature of the State It may be pertinently enquired at this point what I mean by the State. Anticipating the discussion a little I may reply, first that I shall seek to show that the 16 Baty, The Canons of International Law (1930), p. 1.

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executive State, though admittedly an organ of the international legal community, is very much else besides and is, fundamentally, a layman and not a lawyer. It is to my mind of the essence to appreciate this fact. But it would seem questionable whether it is, or ever was, the executive State alone with which we should be concerned. The State litigant before the World Court is a relatively familiar figure in the context of the discussion of sources. For Article 38 of the Statute, impliedly directing the Court to apply the sources it prescribes to the disputes coming before it, has to be read with Article 34(1) which confines the contentious jurisdiction to disputes between States. The State litigant is apparently the classical executive State—the coherent individual of international law. But we are no less familiar with the phenomenon of international law applying within the State—in the State’s courts. And the question arises whether that phenomenon can any longer be explained away on the basis that international law is to a certain degree, in one way or another, incorporated in municipal law and applies simply as municipal law. For more than a generation now the efforts of independent scholars have been devoted to the collection and publication in collected form of the decisions of municipal courts on questions of international law—or at least what is called by those making such collections international law.17 But to what end? The World Court does not, ostensibly, make use of their work. What, in fact, is the status of a municipal decision of this sort? Does it in any sense constitute a source of international law? If so, is it such a source as an international tribunal can rely on—so that the World Court has either, as it would clearly be more proper to say, not had occasion so far in its limited experience to do so, or has regrettably neglected so to do? Alternatively, are the decisions of municipal courts part of the practice of the States to which such courts belong and thus subsumed under that source of international law which Article 38 describes as ‘international custom, as evidence of a general practice accepted as law’? Or is there a third possibility: that the decisions of municipal judges are to be considered, from the point of view of international law, as no more than the opinions of learned individuals—as the writings of ‘highly qualified 17

The editors of the fourth to the eighth editions of Oppenheim’s treatise, Lord McNair and the late Judge Lauterpacht, who were, with Sir John Fischer Williams, responsible also for the Annual Digest of Public International Law Cases, now the International Law Reports, stand foremost among those in England. But the compilers of the numerous American Case Books—Dickinson, Hudson, Fenwick, Bishop, Sohn, Briggs, and Brewster and Katz, not to name them all—are not to be forgotten, nor the original compiler and the editor of that first English Case Book now so unhappily out of print, Pitt Cobbett, nor yet the works of Professors Schwarzenberger and Green.

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­ ublicists’? If one considers the cases of Lord Stowell or Chief Justice Marshall p this explanation of their status is of course attractive. But if municipal judges are no more than writers, what becomes of international judges in the light of the incorporation by reference, in Article 38 of the statute, of the provision of Article 59 to the effect that the decision of even the Court itself has no binding effect except in the proceedings in which it is given? And what, more generally, becomes of the thesis that an international decision is entitled to a particular respect because it has ‘an actuality and a concrete character that causes it to impinge directly on the matters at issue, in a way that an abstract opinion, however good, can never do’?18 Is not this thesis in any event applicable no less to municipal decisions? But before it is decided that the successive editors of the International Law Reports and of comparable collections have laboured in vain, or have laboured only to produce exercises in a particular department of municipal law, comparatively treated or otherwise, ought not a fourth possibility to be explored? It is commonly said that prize courts, at least, are not courts of municipal law at all, but courts of international law. The theory behind this opinion is largely unexplored it would seem. Its adoption explains the universal validity of adjudications in prize, properly arrived at. And the exceptional responsibility of States for the improper decisions of such of their courts as are prize courts is no doubt connected with the underlying theory, whatever it may or should be.19 But it is of course not difficult to relate the rule as to the universal validity of transfers of title by the decision of prize courts to the maxim locus regit actum, an ordinary principle of the conflicts of law and therefore, according to current theory, of municipal rather than international law—though there may be difficulties in connection with the operation of the competing principle that the courts of one State will not enforce the penal laws of another, which might have to be explained away on some such basis as that a title acquired under a penal law may still be recognized though it will not be affirmatively enforced in a foreign court. However this may be, universal recognition is ­habitually ­accorded to judgments of municipal courts other than prize courts on a basis, again according to current theory, other than that of international law. Perhaps current theory is merely wrong here. Perhaps modern international law still in a manner underwrites the classical ius gentium. If so the books of 18 19

Fitzmaurice, loc. cit., at p. 172. Remarkably, the leading English textbook on the subject, Colombos, The Law of Prize (2nd ed., 1941) does not, apparently, anywhere discuss the question of the international validity of title acquired through adjudication in prize.

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international law should contain, as normally they do not, rules relating to the limits of the civil jurisdiction of States, derived from the only source available, the decisions of municipal courts. But if the books omit this particular topic, they do nevertheless habitually include exhaustive accounts of the limits of municipal criminal jurisdiction and of the municipal jurisdictional immunities of States, organs of States, and diplomatic and consular envoys. They likewise devote much attention to the municipal legal consequences of the recognition of States and governments, and to the effect upon municipal legal rights of the so-called succession of States and governments. And it is of course in relation to these topics that the mass of municipal decisions has been imported into the books and which very largely accounts for the fact that whereas Sir Henry Maine mentions but one decision in his lectures the table of cases in Oppenheim now extends to thirty pages. The question arises as to whether all this is international law or whether it is not. Upon the strict dualist hypothesis it is not. It is simply that part of international law, or its reflection, which is or which has become part of municipal law. The dualist hypothesis is not, however, the only one. It would, moreover, be surprising if the devotion of the compilers of collections of municipal decisions was inspired simply by the doctrine that international law is part of the law of the land. It is scarcely credible that they have been concerned simply to instruct and inform municipal judges who may encounter again in their work the same problems which had been encountered before. It is sufficiently obvious that there has been also a view, perhaps often unspoken, perhaps to a large extent unconscious, that municipal law is also part of international law. In short, a two-way traffic has been contemplated. And, if the World Court has to some extent disappointed expectations in this regard, it does not follow that other organs of the international legal system have done the same. The executive governments of States, for instance, despite the theoretical problems arising from the separation of powers and the habitual independence of the judiciary may well have taken note of the current of municipal decisions. Alternatively, upon a monistic hypothesis, may it not be hazarded that municipal courts, in so far as their concern with such topics as have been mentioned comes in question, are themselves organs of the international legal system, applying not municipal law derived from international law but international law itself? That system, upon any theory of its relation to municipal law, manifestly has points of contact with the latter. And from very early times, in the shape of the monistic theory, there has been a strongly held contention that the two systems are really one. Today the tendency is towards a view that

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the battle of the dualists and the monists was fought upon a false issue. There is occurring something not unlike the liberation of the spirit experienced by the physicists when they realized that ‘up’ and ‘down’ were but relative terms. Law is not so much either municipal or international as national or transnational. And in the light of this the new and otherwise happy term ‘foreign relations law’ is not necessarily helpful. If, therefore, municipal decisions upon questions of international law have some value otherwise than as strictly municipal decisions—as, that is, sources either of the international law applicable by international tribunals, or by other organs of the international legal community of the category of States acting either severally or collectively, or as sources of a species of international law which, though applied by municipal courts, is still international law, then the question arises whether the labours of the collectors of such decisions, though they have not been in vain, have been entirely correctly directed so far? Should they have so largely failed to provide information on the standing within municipal hierarchies of the tribunals whose pronouncements they have printed? Is it of any profit to pile decision upon decision, now of the S­ upreme Court of the United States, now of the Civil Tribunal of the Department of the Lower Seine, without much, if any, discrimination? It is impossible to r­esist the impression that the process of making such collections began with the thought, which was no doubt a perfectly proper sentiment at that time, that anything which looked like the judgment of a court and which related however remotely to international law, was worth collecting—for the worthy end of making international law look more like law than it had beforehand. Now that the cause is won, however, it may be that some greater discrimination is desirable, upon the basis of a more exact assessment of the status of municipal decisions as sources of international law. The Nature of the Practice of States One possible solution of the problem of the relation of the decisions of a State’s courts to international law we have at least propounded if not discussed is to assign them to the category of the practice of the State. I think I have said sufficient to indicate that I do not myself regard this as a wholly adequate solution. In any event, I take leave to suggest that it must involve a voyage into seas for which the charts are poor. The Court, we shall see, has not yet had occasion to pronounce very directly or very fully upon this source, or upon the process of creation of international customary law. Yet the question—and incidentally the question of the relation of municipal decisions to international law—has been endowed, one might think, with

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a certain urgency in the light of the direction to the International Law Commission in its Statute to consider ways and means for making the evidence of customary international law more readily available, such as the collection and publication of documents concerning State practice and of the decisions of national and international courts on questions of international law. What documents do concern State practice? What, indeed, is State practice? Does it consist solely in what States do, or does it comprehend what they say or what they think? And, by the State, do we mean exclusively the executive State? Is the legislation or are the legislative debates of States irrelevant? Have the pronouncements of Courts, or even of unofficial elements such as the writings of publicists, any relevance? These last, we know, have a mention in ­Article 38. But what, if any, is their relation to the practice of States? What, again, is the relationship of the ‘general principles of law’, which the Statute of the Court mentions also, to the jurisprudence and practice of States? Even assuming some common understanding as to what the elements of the practice of States are, which would seem to be a necessary pre-requisite to the assembly of the evidence thereof, it remains to ask what is the relation of the practice of a single State to that of States generally. What does one do with the evidence of the practice of State A, of State B and State C? Does one weigh one against the other, and, if so, upon equal terms? Have ‘Russia and Geneva equal rights’ in this regard? Or should one seek some common denominator from them? All these questions would suggest a need for a further enquiry into ‘sources’.

The Expansion of the International Community and the Sources of International Law Another reason for some effort at re-appraisal of the sources of international law is to be found in the vast expansion of the community of States which has taken place, and taken place very rapidly and recently. Within a quarter of a century the number of States has virtually doubled. Many important ­consequences for what may be termed the technical development of international law must inevitably follow this remarkable event. In the first place, it is to be noted that many if not most of the newcomers upon the scene are not only newcomers but have little in the way of inherited international legal tradition. They are inevitably inexperienced. If the principal aim of a study of the sources of international law must be to determine

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what is international law, numerous of the new States obviously stand in need of such a service. For a long-established system in which the customary element plays a great part is not easy to grasp. Its frontiers cannot well be learned from books. It is not to be learned in a day. It has in fact to be extracted still to a large extent from principle, tradition, history and practice. For the longestablished States this has become a matter of instinct. Such for a very long time to come it cannot be for new States which, it must be remembered, must themselves, like the old States now, be dealing half their time with new States also. More precise guiding lines than have hitherto been necessary are therefore eminently desirable. This is illustrated incidentally upon a consideration of the second problem which seems to arise as a result of the virtually simultaneous arrival on the scene not only of numerous new and inexperienced States but also of new collective organs of the international community. These last include of course the Court, but there are others, for instance the United Nations and the International Law Commission. For it is not unimportant to recall that the World Court is very much a newcomer among the traditional organs of the traditionally disorganized international society—the long-established States themselves. And though in a short space of time it has most happily acquired a remarkable reputation and, by virtue of its nature as well as the sagacity of the men who have composed it, has come to lead a life and wield an influence of its own, the Court possesses an authority which is essentially a delegated authority. Its jurisdiction depends always upon the consent of States. Within limits which follow from the nature of the judicial function it must be told what to do. Its statute, and in particular Article 38, may thus be looked upon as in some sort a standing compromis d’arbitrage. In theory, therefore, should that compromis prove misconceived, or should it be misconceived by the tribunal it establishes, it can be amended by its framers, the States party to it, or those States can take other appropriate remedial action. If thus it were found that the Court had been incorrectly or insufficiently instructed as to the law it should apply, or if it proved unresponsive to its instructions, it would be for the parties to the Statute to mend matters. It must be admitted that the possibility adumbrated here was a somewhat theoretical one even before the recent expansion of the international community. Separately established institutions, even if they be merely bipartite arbitral tribunals, inevitably develop something in the way of a personality and tradition different from those of their creators. This is especially true of judicial institutions because of the character of their business. There is in consequence not very much even as few as two States can do when a tribunal they have set up acts in a manner which is unpalatable to both of them. And the practical difficulties of revision become

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immensely greater when what is in question is a truly International Court set up by multi-partite agreement. There is, however, one remedy available to the State litigant disappointed with the Court it has assisted to create: it can take care to keep out of that Court for the future. It is of course a matter for serious complaint and comment that many of the States which combined in the creation of the World Court pursue exactly that policy. So great is the influence of those who would see international law written from the cases, that this is almost universally held to be a matter for profound regret. But it is not wholly heretical to venture the suggestion that, in imaginable theoretical circumstances, the States might be wiser than the Court. Great tribunals have been known to be out of step with the times, as the record of the Judicial Committee of the Privy Council in the matter of Canadian appeals or of the Supreme Court of the United States in relation to the New Deal legislation sufficiently show. Indeed the possibility is inherent in the necessary concern of courts of law with remedial justice alone, and as such was pointed out already by Grotius. And, if the theoretical possibility suggested is thus not unreasonable in theory, it would be wholly unrealistic to deny that among members of governments, as distinct from international lawyers, the view is very often firmly held that international tribunals not only may be but very nearly always are, if not wrong, in a measure predestined to error. But that some authority other than the Court should be wiser than that august body implies in that other authority a measure of traditional experience not to be expected of the new States. If the Court err, therefore, it may as a result lead the new States into error, and, by reason of their number, ultimately the whole international community, with results permanently damaging to the entire system of international law. And, if this be a true possibility, it provides a very profound ground for an appeal that the sources of international law, and therefore international law, should not only be looked at exclusively through the eyes of the Court, but should be looked at with some urgency through other eyes as well. One illustration which is only partly hypothetical may be given of the possible dangers which are alluded to here. The new States are confronted, as is well known, with a problem which, though it also belongs to the realm of high theory, can still have practical aspects. This is the problem as to the extent to which rules of international law established before they came into existence are binding upon them. It is a very puzzling problem for which various theoretical solutions, none of them particularly satisfactory, can be offered. As is equally well known these solutions, however logically convincing, are not especially attractive emotionally to the new States because of a coincidental

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factor in the situation: that the system of international law grew up in Europe and was developed within the sphere of Europe and European colonization proper, whereas almost all the new States have arisen outside that region and are founded upon distinct ethnic and cultural societies. And as a consequence it is a little difficult to persuade African or Asian States of the relevance to their new international lives of much of the old learning in the books concerning, for instance, the Congress of Vienna. It is by no means unnatural that such States should, on the emotional plane, have a wistful regret that all that has not departed with direct European national rule. If the basis of rules of international law is consent, such States may and indeed do, consciously or unconsciously, ask why should not they be bound only by those rules to which they have expressly consented. Now though it is impossible not to be sympathetic to such a line of argument to a certain extent, the extent of one’s sympathy must be measured by the view one takes of the respective roles of custom and treaty in international law. It is not an impossible point of view that treaties are not only a source of international law but the prime source. Some countenance is given to such a point of view by the inclusion of a mention of treaties in Article 38 of the Statute of the Court, and by its mention first among all the matters which are referred to there. On that evidence, combined of course with other evidence, the point of view referred to is strongly held by some. The Court could scarcely be blamed if, on the faith of the Statute, it entertained the same opinion. Given their emotional predisposition in its favour, the new States might well be persuaded to that opinion by the Court, if the latter held it. Upon its basis they might proceed to the position that treaties are not only the prime but the only source of international law, and that only treaties are binding. And, given their numbers, even so remarkable a doctrine might make rapid progress towards universal acceptance. But were that to come about there would without question have to come about also the greatest imaginable revolution in the international legal system. One final point remains to be made while the position of the new States in relation to the question for the sources of international law is under discussion. These States, as has been seen, are often oppressed by the exclusively European tradition of international law. Before they came into existence it was not particularly relevant to examine the regional character of that tradition. For the world of sovereign States, as it then was, was a world confined to ­Europe and the area of European colonization in the true sense of that word. A proper concern for the future of the international legal system would suggest that as soon as may be it should be given, or be discovered to have, a somewhat wider basis. And a comparative examination of cultures may well reveal that

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what has been considered hitherto to be European is not European at all. It is, naturally, already known that there have been other systems of international legal relations besides that which is denominated the modern European system. Hitherto these have been dismissed as historical byways by the lawyer because they have not been considered to have contributed to the latter system. This is of course true in a strictly chronological sense. It cannot be pretended that the customs of Nigerian tribes have influenced the growth of the law of treaties or that the mutual courtesies of Indonesian islanders have anything directly to do with those which ambassadors receive. Yet if it should be that autonomous communities inevitably develop identical patterns of relationship between themselves in whatsoever culture, that is a remarkable circumstance, indicating that so-called European international law has a somewhat broader base than has been hitherto imagined, at least by its practitioners. It is, too, a circumstance which should render that law of universal acceptance. Such matters should be studied. It may well be that the rubric of Article 38 already permits of their consideration as sources of international law. They may thus be comprehended within a ‘general practice accepted as law’, or within ‘general principles of law recognized by civilized nations’. If so, this fact should be made more explicit than it now is.

The New Institutions of the International Community and the Sources of Law In an argumentation directed towards a reconsideration as to what are the sources of international law it is natural to move from the new States to the new collective institutions of the international community. It would be more correct perhaps to say that it is new activities rather than new institutions which must be looked to. For the United Nations, the principal institution whose activities come in question, does not exactly represent a new idea. In its beginnings it appeared to some as no more than a pale shadow of the League of Nations. The Charter, moreover, gave no very precise indications that its development would follow different lines. As it has fallen out, however, the United Nations has clearly come to play a role which involves a very direct impact upon the system of international law. The content of that law has very obviously been considerably changed as a result of the activity of that organization. And it is not possible, or at any rate not easy, to relate the changes which have come about to the traditional sources of the law. In accepted theory the Charter is a treaty. Any new rules of international law which it may have explicitly introduced are therefore attributable to that beginning. It is possible, too, to adopt a somewhat extended view of the nature of treaty in this connection and to find the source of obligation of various

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subsequent departures in the Charter itself on the thesis that what has been done in relation to them is merely to fill in details in the Charter. Such was the approach adopted in the first years of the life of the new organization in regard to, for instance, the question of its privileges and immunities. As the Preparatory Commission reminded its parent body, the obligation of members to accord appropriate privileges to the organization was already contained in Article 106 of the Charter. A general convention on the subject, such as was in fact adopted, merely spelled out the details of this existing obligation. A not dissimilar line of thought underlay the approach to the question of the distinct personality of the organization and, equally, the advisory opinion of the Court respecting it. The Charter was, as it were, a traité organisé, a living treaty, and both the practice under it as well as its original terms were to be taken into consideration in determining whether or not the organization had been endowed with an independent treaty-making power and other capacities associated with international personality. But, save as such extension of the Charter might be permissible, opinion was originally somewhat against the possibility of the United Nations having any direct influence upon international law. Brierly thus roundly declared that ‘apart from its control over the budget, all that the General Assembly can do is to discuss and recommend and initiate studies and consider reports from other bodies’. The farthest anyone outside the Secretariat appeared at first to go was to suggest, as did Professor Potter, that the resolutions of the General Assembly might eventually pass into customary law—and thus be subsumed under the second head of Article 38 of the Statute. Within the Secretariat, however, a rather different view was evidently taken from the outset. This is not to be discerned with complete clarity in Mr. Schachter’s well-known article on the development of international law through the legal opinions of the United Nations Secretariat.20 For he still saw the legal opinions of the Secretariat as either purely advisory or as related to the Secretary-General’s authority to make administrative decisions. In other words, though he felt that ‘the daily practice of its various organs was adding, bit by bit, to the body of international law’, he was claiming no more than that, firstly, the practice of the organization was part of the practice of States, and, secondly, that an internal law of the organization was developing. On the other hand Mr. Sloan, in an unofficial contribution of considerable verve, claimed already in 1949 that there were some areas in relation to which the sovereignty of States was not established where ‘the General Assembly acting as an agent of the international community may 20

O. Schachter, ‘The Development of International Law through the Legal Opinions of the United Nations Secretariat’, British Year Book of International Law, xxv (1948), p. 91.

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a­ ssert the right to enter the legal vacuum and take a binding decision’.21 For him it was even at that date maintainable that resolutions of the General Assembly were sometimes binding. And he derived, it would seem, their binding force from a general rather than a specific mandate to the General Assembly, from which it would follow that such resolutions as he had in mind could not be considered as mere extensions of the Charter. The question was re-examined by Professor Johnson some sixteen years later. The occasion for this re-examination was the author’s noticing some expressions of view by Judges Lauterpacht and Klaestad in their separate O ­ pinions in the Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South-West Africa Case in 1955. Judge Lauterpacht there said in particular: It is one thing to affirm the somewhat obvious principle that the recommendations of the General Assembly in the matter of trusteeship or otherwise addressed to the Members of the United Nations are not legally binding upon them in the sense that full effect must be given to them. It is another thing to give currency to the view that they have no force at all whether legal or other and that they cannot be regarded as forming in any sense part of a legal system of supervision.22 This suggestion coincided to some extent with the view of Professor Kelsen, put forward in 1951, that a resolution in relation to the maintenance of peace and security might possibly be binding.23 Professor Johnson concluded from a highly conscientious study of the matter that Mr. Sloan had put his case too high. But he also concluded, somewhat unexpectedly, that, though the general run of recommendations of the General Assembly—other than those which the Charter specifically says shall be binding—are not binding on members who vote against them, they nevertheless ‘have … a “legal effect” … in the sense that they may constitute a “subsidiary means for the determination of rules of law” capable of being used by an international court’.24 This conclusion has been described as unexpected. It is so because, whereas Professor Johnson evidently intended something in the nature of a negative verdict, he has in fact arrived at one of a positive sort. 21

Sloan, ‘The Binding Force of a Recommendation of the General Assembly of the United Nations’, Ibid., xxv (1948), p. 1. 22 i.c.j. Reports, 1955, pp. 67, 118. 23 Kelsen, The Law of the United Nations (1951), p. 195. 24 Johnson, ‘The Effect of Resolutions of the General Assembly’, British Year Book of International Law, xxxii (1955–6), pp. 97, 121–2.

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And this positive verdict may well be right. For it is exceedingly difficult to resist the impression that the content of international law is very different now from what it was commonly understood to be at the beginning of the life of the United Nations—even after the entry into force of the Charter. Numerous factors no doubt have contributed to the change. But among these the resolutions of the General Assembly would seem to have been of no little importance. It would not seem, moreover, that the effect of these resolutions can be explained away, as it were, or rather brought under the accepted categories of the sources of international law, by any argument that they are only binding for the States which vote in favour of them. There are in any event great difficulties about the theory that the resolutions of an organ of an international organization can be construed as a treaty between the States whose representatives vote in favour of it. It does not at all follow that those representatives are appropriately authorized to enter into tacit treaties by the mere fact of their accreditation to the organization concerned. The matter may be sufficiently tested by reference to the General Assembly’s resolution of 1960 concerning ‘colonialism’. Therein that body ‘declared’ amongst other things that ‘The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of human rights [and] is contrary to the Charter of the United Nations’, and that ‘All peoples have the right to self-determination’.25 Can even the nine abstaining members deny that the law of territorial sovereignty has been, or must be, rewritten as a result of that resolution? And must not even the 89 States which voted in favour of it concede that its disguise as an interpretation of the Charter, and therefore as existing law, is an exceedingly thin one? The general change in the climate of international law which has occurred since the United Nations came to life in rather novel fashion has not come about solely by means of resolutions of the General Assembly. The promotion of diplomatic conferences by the organization has been no less influential. And it is not, it is submitted, possible to consider that the effects produced by such conferences are confined to the formal treaties, if any, which emerge from them. Again it is sufficient in this context to take one example. Can anyone deny that the international law of the sea has been significantly changed as a result of the two United Nations Geneva Conferences—and this quite irrespective of the formal inconclusiveness of the second Conference or of the extent to which the conventions drawn up by the first Conference have or have not been accepted by States and have or have not had a formal effect? It is again Professor Johnson who has provided a valuable study on this matter. And again it is permissible to read into his conclusions rather more than he himself 25

United Nations, Resolutions of the General Assembly 1514 (xv).

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sees. For the upshot of his careful examination of the procedure and forms of conferences is that there is a distinction between conventions drafted by such conferences and ‘resolutions’ and ‘declarations’ and similar manifestoes. The distinction, according to him, depends on the existence or otherwise of an intent to enter into legal relations. He reinforces his conclusions as to the non-obligatory character of ‘resolutions’ of conferences, interestingly enough, by reference to his earlier verdict on resolutions of the General Assembly as being, in words he adopts from Judge Fitzmaurice, of a ‘fundamentally recommendatory character’. But, it is conceded, the ‘resolutions’ of a conference may be intended to be binding. The question is, from a certain point of view, one of intent rather than form.26 Is it not, however, necessary to go farther and to concede that a conference which ostensibly reaches no conclusion whatever may nevertheless change the law? Is it not also permissible to say that it is somewhat unrealistic to attempt to relate the apparently considerable and apparently effective law-creating activities of the United Nations which are conducted by means other than the conclusion of formal treaties to some other head of Article 38? This must at least be the case when there is considered the third channel through which the United Nations acts in this regard: the International Law Commission. The Commission is a body tacitly envisaged by the Charter of the United Nations, Article 13 whereof charges the General Assembly with ‘encouraging the progressive development of international law and its codification’. In its turn the General Assembly charged the Commission with the requisite technical work. The precise directions in the Statute of the Commission were interpreted, in a Survey of International Law in Relation to the Work of Codification of the International Law Commission,27 which appeared in 1949 under the name of the Secretary-General but which is known to be the work of an independent scholar, to absolve the Commission from ‘producing such drafts only as are intended to materialize as conventions to be adopted by a considerable number of States’—and which might therefore be considered to stand or fall according as they were so adopted or not, and to permit it to leave the fruits of its labours in the form of a draft either merely submitted to the General Assembly or of which the General Assembly has taken note or which it has approved without going to the length of recommending it to the Members of the United Nations with a view to the conclusion of a convention or ­without 26 27

Johnson, ‘The Conclusions of International Conferences’, British Year Book of International Law, xxxv (1959), p. 1. United Nations Document A/C.N.4/Rev. 1 (1949).

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proceeding to convene a conference for the purpose of concluding a convention. The thought here was that ‘drafts which are permitted to retain [a] preliminary status … would be at least in the category of writings of the most qualified publicists, referred to in Article 38…’ But it was claimed that Most probably their authority would be considerably higher. For they will be the product not only of a scholarly research, individual and collective, aided by the active co-operation of Governments, of national and international scientific bodies, and the resources of the United Nations. They will be the result of the deliberations and of the approval of the International Law Commission. …They will be of considerable potency in shaping scientific opinion and the practice of Governments.28 Is it possible to deny that this result has come about? Where, however, does the status, higher than that of the writings of the publicists, thus claimed for and achieved by the work of the Commission, stand in the hierarchy of sources Article 38 of the statute appears to establish? Thus far, among the new institutions of the international community, there have been mentioned only the United Nations, or rather the General Assembly, and the International Law Commission. This is not, however, to say that other institutions, whether with a world-wide mandate or of a regional character, cannot also be discovered to have been making law in other than the traditional ways. The example of the International Labour Organization indeed springs to the mind at once in this connection. For it is certainly very difficult to regard so-called international labour conventions as treaties. But, rather than make a catalogue of institutions, it is perhaps better to consider the impact upon the problem under discussion of other institutions from the point of view of their contribution to the expansion of the categories of international persons. The New International Persons and the Scope of International Law Allusion has already been made by the way to the assertion of the international legal personality of the United Nations. Its acceptance must involve that other international organizations possess personality, though it be not necessarily of the same quality as that of the United Nations any more than the p ­ ersonality of the United Nations is of the same quality as that of States. It must raise also the question whether the achievement by international organizations of 28

Ibid., pp. 15–18.

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at least quasi-membership of the international community invests them with that capacity to participate in the making and changing of the international legal system which States possess and the possession of which by States is the hallmark of that system. If it were the case—but it is submitted that it is still an eminently examinable proposition—that treaties were a source of international law, then this capacity would have immediately to be conceded to international organizations. For their treaty-making power is the foundation of their personality. But must not allowance also be made for a ‘practice of organizations’ akin to the ‘practice of States’ as a source of the law? If so, it is not made in Article 38 of the Statute of the Court. Moreover, there clearly has developed a ‘practice’ of organizations in relation to, for instance, the question of the right to membership of organizations, to that of the effect of change of identity of States upon membership, and perhaps to that of the relationship of the recognition of States and Governments to the right of representation within organizations. Mr. Schachter’s pioneering article is thus a valuable contribution. Such matters apart—and because they have to do with the relations of States to organizations as much as of organizations to States they can of course be looked on as aspects of the practice of States rather than of ­organizations— it is very strongly urged that what may be termed the internal law of international organizations, to say nothing of the rules governing the relations of ­organizations, not with States but inter se, are to be deemed a part of international law. The basis of these claims is, however, a somewhat negative one. It is that no other law can possibly apply. And, according to a somewhat barren logic, the case may be considered proved. But it is not wholly without significance that it has never apparently been suggested very seriously that the internal law of an internationalized territory must, by a parity of reasoning, also be considered to be international law. It has in the past at least been suggested that the law governing the relationship of the constituent parts of federal States is a sort of international law, and, on that basis, such cases as Re Labrador Boundary29 have crept into the books. But here the argument has been rather that, in such relations, the situation is one of close analogy. The suggestion, moreover, dates from the period when any straw was clutched at to make international law look more like law. The circumstance that international organizations have established tribunals to regulate their internal affairs has contributed to a further confusion of the issue. It is not impossible, however, to have sympathy for the inclusion in the International Law Reports of the decisions of the United Nations and 29

(1927) 43 t.l.r. 294.

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International Labour Organization Administrative Tribunals. For they have, after all, an intimate connection with international organizations whose international personality has, rightly or wrongly, been admitted. And the question what law those tribunals do apply if it be not international law is, in a rigidly formal sense, unanswerable. The inclusion also of the decisions of the European Court and Commission of Human Rights gives one a little more pause, however. For here the substance of the matters dealt with is apparently only formally and as it were accidentally international. It has become so merely because the States party to the European Convention on Human Rights have created in a particular regard a species of common court of appeal for individual complaints of violation of the Convention. And when it comes to the devotion of many pages to the exceedingly technical proceedings of the Court of the European Coal and Steel Community a most serious question presents itself to the mind. Is this mass of learning, which surely can concern directly, except in so far as it may yield an occasional point in the interpretation of treaties, only the Court from which it emanates and actual or potential practitioners and litigants before it: is this international law? To doubt that it is, must not be taken to imply any criticism of the learned editor of the International Law Reports or of others of his school of thought. The question may merely be one of terminology. It might simply be better to label this class of material ‘non-municipal law’ instead of ‘international law’, rather than to permit the latter to degenerate into no more than a formal category. There are, too, possibly dangers of misunderstanding. It might come to be thought that the law of administrative tribunals of international organizations or of what have been termed accidentally international tribunals was of more general application. But to say this is, of course, to assert that international law is more than a formal category: Now is this true? Is municipal law so-called more than a formal category? What, after all, is ‘the law of England’ other than what the appropriate authority makes it? Does it not, in virtue of the principles of the conflict of laws, sometimes transform itself into foreign law? Is it not at times international law in virtue of the rule that international law is part of the law of England? Is it perhaps sufficient to answer here that the law of England is still primarily the law between man and man or man and State in England, and that there is still a difference between a rule of English law and the stipulations of a contract which that law permits to be enforced? Or to say in relation to international law that the heart of the matter is still the State, for better or worse?

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The Particular Direction of the Enquiry If this be so, then the heart of the matter of the sources of international law is still Article 38 of the Statute—‘the official doctrine’ as Professor Ross calls it. Its content, however, ought to be examined not so much from the point of view of the Court as from that of the State. To such an examination I propose to devote the rest of my time. What, however, I shall find by so doing I have already in many respects indicated. This is not wholly because I have learned too well the duty of a lecturer who must deal with students: to ‘tell them what you are going to tell them, tell them, and then tell them again’. For I have here an audience of a rather different sort. No, the difficulty of exposition arises from the nature of the problem. What the sources of international law are cannot be stated; it can only be discussed.

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Chapter 23

Clive Parry, The Consolidated Treaty Series (1648–1918), 1969 Comment by Sir Michael Wood, Member, International Law Commission Clive Parry was my chief teacher in international law; and it was he who ­encouraged me to join the Foreign and Commonwealth Office (FCO), as a legal adviser, straight from university. I owe him a great deal, as do many international lawyers. Robbie Jennings, in his address at Parry’s memorial service in Cambridge, described Parry as “one of that remarkable band of lawyers who drew their inspiration from the character and teaching of Arnold McNair”; and went on to say that “Parry belonged to that essentially English, common-law trained, school of international lawyers that has flourished in this University …. With a strong predilection for the development of the law through decided cases and specific instances; suspicious, if not impatient, of abstract theories and doctrines; but realizing to the full the crucial importance of history…” Parry’s writings, including some not previously published (such as lectures delivered at Ankara and Istanbul universities towards the end of the Second World War, have recently been compiled by his son, Tony, and published as the Collected Papers of Professor Clive Parry).a This impressive pair of volumes contains an intriguing bibliography. They well illustrate Parry’s particular interests: the interface of national and international law, perhaps best seen in his extensive work on nationality law; his sense of the importance of history for the discipline of international law; and his deep thinking about sources, exemplified in his Melland Schill lectures. They well illustrate his special wit and character: “quirky, funny and immensely stimulating”. (As Lawrence Collins aptly described him). As well as an excellent writer and teacher, Parry was a great compiler. He understood the need to gather together and publish State practice, domestic case-law and treaties. His work with the Council of Europe on a Model Plan for digests of State practice, updated in the 1990s, is still in use in United Kingdom Materials in International Law, published annually in the British Yearbook of International Law. His efforts to compile the British Digest of International Law a A Parry (ed) Collected Papers of Professor Clive Parry (Wildy, Simmonds and Hill 2012).

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remain, and are likely to continue to remain, unfinished business. His volumes of British International Law Cases and Commonwealth International Law Cases, and the 95 volumes of his Law Officers’ Opinions to the Foreign Office, 1793–1860, are outstanding. Parry’s efforts to make treaties available were likewise on a very large scale. He worked closely with the FCO to publish An Index of British Treaties (from 1101 to 1968), which is still the basis of the FCO’s treaty list. The present short piece explains Parry’s approach to the Consolidated Treaty Series, an attempt – largely successful – to compile and make available virtually all treaties concluded between Westphalia (1648) and Versailles (1919), when the League of Nations Treaty Series began. The Consolidated Treaty Series comprises 231 volumes (plus indexes). It has been described as “a monument to [Parry’s] energy, legal and linguistic skill and to his vision in conceiving and bringing to completion so large a scale of work”.b It encapsulates many of his qualities and thoughts. As is explained, the Consolidated Treaty Series was promoted by the Council of Europe, under the sponsorship of BIICL and the American Society of International Law (ASIL). It was a co-operative effort that, some 70 years later, when the UN International Law Commission is once again reflecting on ways and means to make the evidence of customary international law more readily available, remains an inspiration for today’s joint ventures. b ‘Professor Clive Parry’ Times (London, 14 Sept. 1982).

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C. Parry, ‘The Consolidated Treaty Series (1648–1918)’ (1969), 18 International and Comparative Law Quarterly, pp. 1003–1007. Reproduced with the kind permission of the British Institute of International and Comparative Law.

The Consolidated Treaty Series (1648–1918) Clive Parry

The Need for the Series

As a result of the operation of the provisions of, first, the Covenant of the League of Nations and, secondly, the Charter of the United Nations for official registration and publication the location of texts of treaties of member States of these organisations is a relatively simple matter. Indeed, it may be said that the only real weakness of those great compilations, the League and the United Nations Treaty Series, apart from the fact that they are not of course wholly complete, is that it cannot in the nature of things be stated in relation to each of the instruments they contain what subsequently happens to it: whether it is modified or terminated by another treaty, or whether the circle of parties suffers enlargement or contraction. But with respect to the great bulk of treaties entered into before the commencement of those series the position is very different. He who would consult them is confronted by an embarrassing combination of superabundance and scarcity. On the one hand, innumerable treaty series, official and unofficial, have been printed—so many as to call for weighty bibliographies of them. On the other, many series are very difficult, if not impossible of access in many parts of the world. This is not to say that attempts have not been made to remedy the situation. Each successive series in a sense represents such an attempt, and the League series, of necessity the first official international collection, had an eminently worthy unofficial forerunner in the shape of that series which bears the name of Martens. Martens, however, apart from being sadly unavailable in many places today, is also not complete, particularly as regards extra­European treaties. It ­begins, moreover, only in 1760. Its founder did indeed produce a retrospective ­supplement, carrying matters back to 1700. But this, as its Preface explains, contains only such instruments as escaped the net of Dumont’s Corps ­Universe/ ­Diplomatique du Droit des Gens, published in 1726–39, because that work, ­despite its defects (which arose principally because its compiler worked from secondary sources and had a somewhat optimistic opinion of the l­inguistic facility of his readers), was still readily available at the turn of the eighteenth century. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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This is not the case today of course. But if the problem were simply one of the scarcity of Dumont and Martens, it would be easily capable of solution by their mere reproduction in facsimile. Having regard to their defects, something more radical is called for. The ideal of course, naturally, would be to rework them from the archival copies of treaties, which very largely still exist, incidentally supplying their omissions and providing in respect of their foreignlanguage content translations into what, for better or worse, has become the latest language of diplomacy—English. If that were done, the new work would presumably start where Dumont starts-with the year 800 A.D.

Origin of the Project

The compiler of the series now launched became particularly aware of the difficulties outlined above in the course of the preparation of the Index of British Treaties 1101–1968, now in the course of publication by H.M. Stationery Office. That limited exercise was found to call for consultation not only of the national archives but of many treaty collections not to be found all together in even the greatest of libraries, and also to involve many linguistic, geographical and historical problems. It was found, too, that the exercise was one which could probably never be perfectly performed. At the same time it became apparent that a more modest undertaking than the complete reworking of Dumont and Martens from the archival sources would be both feasible and exceedingly useful. For, in the first place, most, though not indeed all, treaties have been printed at one time or another. Secondly, though the output of treaties since 1918 has been vast, the numbers of those entered into before that date are relatively manageable. Indeed, if it be recalled how few States there were in existence before 1785, it will be appreciated that, with respect to the period before that date, the problem is not so much one of bulk as, in particular, of language. And, thirdly, unless one goes back very far indeed, the linguistic problem is not as great as might ­appear. A surprisingly large number of treaties in languages other than E ­ nglish or French of the seventeenth and eighteenth centuries were, it emerges, ­contemporaneously printed in translation in one of those languages. Given these facts, and given the great strides which processes of photo-­ reproduction and the like have recently taken, it appeared that a new consolidated treaty series would be perfectly practicable as well as very useful. Of the practical utility of such a series there can be no doubt. It is only necessary in this connection to point to two recent decisions of the International Court of Justice: the Minquiers and Ecrehos case, in which the parties adduced a long tale of sometimes very ancient treaties in support of their several claims, Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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and the Rights of Passage Case Where the Court relied in part on eighteenthcentury treaties of the Marathas. These reflections of the compiler of the present series occurred to him just at the time when the various organs of the Council of Europe were c­ onsidering what response that organisation should make to the United Nations General Assembly’s Resolution 2099 (XX), dated December 20, 1965, inaugurating a technical assistance programme in international law with special emphasis upon “the provision of legal publications and libraries, and translation of major legal works.” Accordingly, it was represented to the organisation that E ­ urope could scarcely make a more appropriate gift to the rest of the world in this context than a collection of treaties of the period when the system of international law still had some attributes of a system largely confined to States of European culture. Sponsorship This proposal so far found favour with the Council of Europe that, by Resolution (69) 12 of April 19, 1969, the Committee of Ministers of that organisation has resolved: Wishing to contribute to the implementation of Resolution 2099 (XX). of the General Assembly of the United Nations on technical assistance to promote the teaching, study, dissemination and wider appreciation of international law; Having taken note of the project of Dr. Clive Parry, Cambridge, dealing with the preparation of a Consolidated Treaty Series; covering the period 1648–1918, a project on which the European Committee on Legal Co-­ operation has formulated a favourable opinion; Taking account of the League of Nations Treaty Series starting in 1918 and the United Nations Treaty Series; Considering that those Treaty Series which were drawn up before 1918 are of a partial rather than a comprehensive character, and are moreover in many cases out of print; Considering that the publication of a consolidated treaty series covering the period 1648–1919 would make available to all states and not least to new states as well as recently created centres of university teaching the texts of treaties which are at present scarcely accessible by reason of their antiquity, their rarity and their wide dispersal throughout the world: A. Recommends: to the governments of member states to facilitate the preparation of this treaty series in particular by putting at the disposal of the editor so far Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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as possible the texts of treaties concluded by them and which are not otherwise available, and any translations in their possession of treaties drawn up in languages other than English or French; B. Decides: to assist towards the preparation of this series which nevertheless would retain its non-governmental character, and to this end to authorise the CCJ to act in a consultative capacity during its preparation and to keep itself informed of the progress of the work.

The Learned Societies

In addition, two of the principal learned societies of the English-speaking world having to do with international law, the American Society of International Law and the British Institute of International and Comparative Law, have finally agreed in principle to extend their sponsorship to the present series upon similar terms, and subject to the same conditions, as the Council of Europe.

Nature and Scope of the Series

As the text of the Council of Europe’s Resolution indicates, what is being attempted is something less than a collection of treaties of all time. The starting-point selected is thus not the year 800 A.D., at which Dumont begins, but rather 1648, classically regarded as the date of the setting up of the system of modern States between which the system of modern international law operates. What is intended is, for the period between that year and the date of commencement of the League of Nations Treaty Series (approximately 1918–20), to reproduce such prints of treaties in their original languages, as can be found in whatsoever collection, along with such translations into English or French as again can be found. If no such translation is discoverable it is proposed, wherever possible and desirable, to supply instead a species of calendaring or summary in one of those languages. Annotations It is proposed also to annotate in some measure the texts reproduced. Thus the sources from which they are taken will always be given, together with such information as to alternative sources as may be forthcoming. In addition, an

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a­ ttempt will be made to tell the reader what happens subsequently to any treaty; whether it was modified or terminated by a later transaction, and so forth.

Unprinted Treaties

As the series proceeds it is hoped to include in it the texts of treaties, derived from the several national archival collections, which have not thus far seen the light of print. It will be noted that the Council of Europe, in its Resolution set out above, has invited the co-operation of member governments with the compiler in the recovery of these texts, and of any English- or French-language translations of them which may exist. The organisation of this process is now in train.

Extent and Arrangement of the Series

Pending the completion of arrangements to this end, the first five volumes of the series have been prepared and are about to be issued. An inspection of them will show that the series is arranged chronologically, and that, so far as the beginning of the period to be covered is concerned, each volume comprehends on an average a span of something over two years. Soundings for later years which have been taken suggest that the output of treaties over the whole period remained fairly constant, so that the whole of that period, some 270 years, may reasonably be expected to be covered in some 140 volumes. It is hoped to proceed with the production of these at the rate of about 10 volumes annually.

Supplementary Volumes

Inevitably, in the assembly of the materials in chronological order, some instruments, even when they are in print, will escape insertion in due order. But equally inevitably a series even of the modest dimensions contemplated will require successive index volumes. It is proposed therefore to interrupt the procession of regular volumes at appropriate intervals with supplements consisting of consolidated indexes combined with reproductions of additional texts which, though in print, have failed to be included in correct chronological ­sequence, or which have been obtained from exclusively archival sources.

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In those successive supplementary volumes it may be convenient also to add to the annotations made to treaties already reproduced. For clearly the chronicling of the fate of treaties-of what happens to them subsequently to their first conclusion-cannot be made complete until the end of the whole ­period to be covered is reached. It cannot, as a matter of fact, even be rendered complete then, unless account is taken in some manner of the later period covered by the League and United Nations Series. It is not thought, however, that, given adequate cross-indexing any excessive inconvenience to the reader will be caused by the notation of the interaction of successive instruments upon the face of the later, rather than the earlier. In short, it is hoped that the series will improve in serviceability as it proceeds. Clive Parry.* * N.D. Professor Parry, Editor of the British Digest of International Law and of British International Law Cases, is the Compiler of the Consolidated Treaty Series A review of the first volumes will appear in the January 1970 issue of this Quarterly.-GENERAL. EDITOR.

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Chapter 24

Michael Akehurst, Custom as a Source of International Law, 1976 Comment by Fanni Andristyak, Intern, BIICL “Where does it say so?” was the question most commonly asked by our professor during my first course in law school. Rightly so, for it is the most elementary question to be answered in any legal analysis. Yet, when it comes to international law, even this most basic of inquiries – the identification of sources – ­becomes one that requires great discipline, creativity and self-restraint. It is also one that, like most quests in the field, may very well hold only the promise of arriving at ambiguities rather than certainties. In Custom as a Source, Michael Akehurst makes no attempt to hide these uncertainties. In fact, he spares no effort in highlighting them. In a journey through a series of debates with fellow academics, Akehurst accompanies the reader in an exploration of how international law is emerging through custom. Thus, his seemingly all-encompassing and doubtlessly critical work allows not only for the sharing of his clearly vast and thorough substantive knowledge, but also provides an excellent insight into the author’s method of analysis, as well as into the views of other scholars. In this work, Akehurst invariably seems to turn either one stone more or one stone less than the reader would expect; he restlessly exhausts, but rigorously stays within, the framework of his analysis. He engages with a wide spectrum of ideas, weaving legal theory into his writing throughout, but refusing to yield to the temptation to wander into either the field of politics or abstract hypotheticals. There is, therefore, much to be learned from Custom as a Source. It was noted by fellow international lawyers in a publication dedicated to his memory that Michael Akehurst was a difficult colleague and an infinitely patient teacher. The piece reproduced herein is the perfect illustration for this claim. Michael Akehurst (1940–1989) was a widely respected, and perhaps equally feared, international lawyer, scholar and teacher. He studied in Cambridge, obtained his doctorate from the University of Paris and taught at Keele ­University’s Department of Law, where he also worked on the editorial committee of the British Yearbook of International Law. He was, furthermore, the author of Modern Introduction to International Lawa, a textbook widely used by a M Akehurst, Modern Introduction to International Law (HarperCollins Academic, 1970). © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_025

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students of both international law and politics. This classic was first published in 1970 and was translated into Spanish, Portuguese, Chinese and Japanese. Since A ­ kehurst’s passing, Peter Malanczuk has taken upon himself to continue updating the book, which is now in its 8th revised edition.

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M. Akehurst, ‘Custom as a Source of International Law’ (1976), 47 British Yearbook of International Law, pp. 1–31. Reproduced with the kind permission of Oxford University Press.

Custom as a Source of International Law* Michael Akehurst** Saint Augustine of Hippo wrote in book eleven of his Confessions: ‘What, then, is time? If no one asks of me, I know; if I wish to explain to him who asks, I know not.’ The attitude of international lawyers towards customary international law is somewhat similar; they invoke rules of customary international law every day, but they have great difficulty in agreeing on a definition of customary international law. For instance, it is agreed that rules of customary international law are created by (or can be inferred from) the practice of States, but what constitutes State practice for this purpose? How frequent, prolonged and widespread must the practice be? How consistent must it be? Does it need to be accompanied by opinio juris, and, if so, what exactly is opinio juris? These questions, all of which raise very controversial issues, will be considered in turn in the first four sections of this article. The fifth and final section will deal with the relationship between treaties and custom, a problem which involves many of the issues discussed in the first four sections. I

What Constitutes State Practice?

Acts and Claims In a recent book, Professor D’Amato has adopted a very restrictive definition of the type of acts which are capable of constituting State practice. According to him, only physical acts count; ‘a claim is not an act … Claims …, although they may articulate a legal norm,1 cannot constitute the material component of custom.’2 He is not alone in his view. In his dissenting opinion in the ­Anglo-Norwegian Fisheries case, Judge Read said: ‘Customary international * © Dr. Michael Akehurst, 1976. [Editors’ note: all footnotes in the original text re-started at No. 1 on every page. These have been amended to continuous order for the purposes of the present Anthology]. ** M.A., LL.B. (Cantab.), Docteur de l’Universite de Paris; Reader in Law, Keele University. 1 I.e. they may be evidence of opinio juris; see below, p. 35. 2 D’Amato, The Concept of Custom in International Law (1971), p. 88. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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law … cannot be established by citing cases where coastal States have made ­extensive claims, but have not maintained their claims by the actual a­ ssertion of s­overeignty over foreign ships … The only convincing evidence of State ­practice is to be found in seizures, where the coastal State asserts its sovereignty over trespassing foreign ships.’3 But this is a minority view.4 For instance, arguments between States in diplomatic correspondence or at successive United Nations conferences on the law of the sea concerning the width of the territorial sea or of exclusive fishery zones cite claims made by States (and protests against those claims made by other States), without examining whether or not the claims have been enforced. A similar approach was adopted by ten of the fourteen judges in the Fisheries Jurisdiction case.5 In the North Sea Continental Shelf cases the International Court treated the Truman Proclamation and similar claims by other States as State practice which had given rise to a rule of customary law.6 At the Geneva conference in 1958 opinion was divided on the question whether such claims had already created a rule of customary law, but no State argued that such claims needed to be accompanied by physical acts in order to constitute State practice.7 In the Asylum case the Court seems to have attached equal importance to ‘the exercise of diplomatic asylum and … the official views

3 I.C.J. Reports, 1951, pp. 116, 191. It is not clear whether the Court as a whole agreed with this analysis. The Court said that the Norwegian system of measuring the territorial sea ‘was consistently applied by the Norwegian authorities’ (pp. 136–7) without clarifying what it meant by ‘applied’ (the fact that the Court left this point obscure could be interpreted to imply that the Court regarded the distinction between claims and physical acts as unimportant). 4 It may be that a claim supported by physical acts carries greater weight than a claim not supported by physical acts, but that is not the same as saying that the latter claim carries no weight at all (cf. below, p. 9, on the application of national laws). The quantity of practice needed to establish a customary rule depends on the quantity of practice which conflicts with the rule; see below, pp. 13–14, 19 and 20. [Editors’ note: pages 576–577, 584–585 of this Anthology]. 5 I.C.J. Reports, 1974, pp. 3, 47, 56–8, 81–8, 119–20, 135 and 161. The remaining four judges did not deal with this issue. 6 I.C.J. Reports, 1969, pp. 3, 32–3, 47 and 53. 7 Slouka, International Custom and the Continental Shelf (1968), pp. 90–6. Slouka argues that physical acts can sometimes create a situation in which a State is estopped from challenging an alleged rule of customary law in circumstances where claims or other statements would not have such an effect (compare Judge Gros in the Nuclear Tests case, I.C.J. Reports, 1974, pp. 253, 285, with the judgment of the International Court in the Asylum case, I.C.J. Reports, 1950, pp. 266, 278). But, pace Slouka, creating an estoppel is not the same as creating customary law. Estoppel requires proof of an act or statement by one’s opponent, whereas customary law is binding even on States which have never expressly agreed to it (see below, pp. 23–4). [Editors’ note: pages 590–591 of this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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expressed on various occasions’.8 In the Rights of United States Nationals in Morocco case, the Court was prepared to look for evidence of custom in d­ iplomatic ­correspondence9 and in conference records.10 Statements made by a State in pleadings before the International Court are liable to be cited against it as authority for customary law in subsequent cases.11 Moreover, if abstract declarations by States and national laws are capable of creating customary law,12 there is no reason for denying that claims and other statements made by States in the context of a specific dispute are capable of fulfilling the same function. D’Amato argues that claims and other statements by States are likely to conflict with one another, and that physical acts do not suffer from this defect. A State may make certain claims in its diplomatic correspondence, but these often clash with competing claims of other States and thus are not a reliable indicator of the content of international law … A State may say many things; it speaks with many voices, some reflecting divisions within top governmental circles … But a State can act in only one way at one time, and its unique actions, recorded in history, speak eloquently and decisively.13 However, the physical acts of one State can clash with the physical acts of other States; a State can act in different ways at different times, and different government departments can act in different ways at the same time.14 Physical acts do not necessarily produce a more consistent picture than claims or other statements do. Moreover, it is artificial to try to distinguish between what a State does and what it says. When one State recognizes another, it often merely says that it recognizes the other State, without performing any physical act; ‘recognition is no more than a form of words’.15 A further logical defect in D’Amato’s theory lies in his view that ‘a commitment to act should be included in our list of examples of the quantitative element’ of custom.16 By ‘commitment’ he means a treaty. And yet, in the light of 8 9 10

I.C.J. Reports, 1950, pp. 266, 277. I.C.J. Reports, 1952, pp. 176, 2. Ibid., p. 209. See also the dissenting opinion of Judge Chagla in the Right of Passage case, ibid., 1960, pp. 6, 121. 11 Marek, Répertoire des décisions et des documents … de la c.p.j.i. et de la c.i.j., série 1, vol. 2 (1967), p. 847 (and see p. 813, where M. Basdevant said that such statements helped to create customary law). 12 See below, pp. 4–10. [Editors’ note: pages 564–570 of this Anthology]. 13 Op. cit. (above, p. 1 n. 3), pp. 50–1. [Editors’ note: page 561, note 2 of this Anthology]. 14 The problems caused by inconsistencies in State practice are discussed below, pp. 20 et seq. 15 Parry, The Sources and Evidences of International Law (1965), p. 65. 16 Op. cit. (above, p. 1 n. 3), p. 89. [Editors’ note: page 561, note 2 of this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the Nuclear Tests case,17 a unilateral declaration can sometimes be as binding as a treaty. It would be interesting to know whether D’Amato would regard the declaration made by France in that case as evidence of a new rule of customary law prohibiting nuclear tests in the atmosphere. Be that as it may, D’Amato’s views about the inter-relation between treaties and custom are not likely to be accepted by most international lawyers.18 A treaty is not a physical act; it is a statement, a promise. What logical justification is there for regarding treaties as State practice, while denying that status to other statements (such as claims) made by States?19 True, a treaty is binding in international law, and other statements are usually not; but if (as is normally the case) a treaty creates rights and obligations only inter partes, there is no justification for attributing greater weight to treaties than to other statements as evidence of the rules of customary law governing the relations of States which are not parties to the treaty. Indeed, in a sense, any statement by a State gives rise to some degree of commitment, even though the commitment is usually political rather than legal; States are reluctant to expose themselves to the accusation of acting inconsistently. Moreover, if the statement has been incorporated in standing instructions to national officials or in a national law, there is a high probability that the State will act in accordance with its previous statement in future cases.20 Statements in Abstracto Dr. Thirlway’s definition of State practice is slightly less restrictive than Professor D’Amato’s; he is prepared to accept claims and other statements as State practice, but only if they are made in the context of some concrete situation and not merely in abstracto. …the occasion of an act of State practice contributing to the formation of custom must always be some specific dispute or potential dispute. The mere assertion in abstracto of the existence of a legal right or legal rule is not an act of State practice; but it may be adduced as evidence of 17 18 19

20

I.C.J. Reports, 1974, pp. 253, 267 et seq. See below, pp. 42 et seq. [Editors’ note: pages 613 of this Anthology]. One of the ways in which a treaty can help to create customary law is by asserting claims against non-parties (see below, p. 44); [Editors’ note: pages 613–26 of this Anthology]. it is inconsistent to regard such a treaty as evidence of customary law while denying that status to claims made unilaterally by one State against another. It is true that national instructions and national laws can be repealed, but equally a State can be released from its treaty commitments by its treaty partners. Consequently treaties do not necessarily have a higher value than national laws as a basis for predicting how a State will act in the future. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the acceptance by the State against which it is sought to set up a claim, of the customary rule which is alleged to exist, assuming that that State asserts that it is not bound by the alleged rule. More important, such assertions can be relied on as supplementary evidence both of State practice and of the existence of the opinio juris;21 but only as supplementary evidence, and not as one element to be included in the summing up of State practice for the purpose of asserting its generality. Practice or usage consists of an accumulation of acts which are material or concrete in the sense that they are intended to have an immediate effect on the legal relationships of the State concerned; and acts which are relevant only as assertions in the abstract, such as the recognition by a representative of a State at a diplomatic conference that an alleged rule exists, are not constitutive of practice and thus of custom, but only confirmatory of it.22 The distinction between acts which are constitutive of practice and acts which are only confirmatory of it is singularly thin. Indeed, the distinction between assertions made in the context of some concrete situation and assertions made in abstracto is also unrealistic, because it emphasizes appearances at the expense of reality. For instance, at a conference on the law of the sea the Arab States and Israel may appear to be making abstract assertions about the right of passage through straits, but it is probable that what they really have in mind is the right of passage through the Straits of Tiran. Conversely, a State may adopt a particular attitude in the context of a particular dispute, not because it has a real interest in the facts of the case, but because it wishes to secure acceptance of a general principle (e.g. Argentina’s protests over the kidnapping of Eichmann). Thus assertions about a particular dispute are dressed up as assertions in abstracto, and vice versa; it may not even be possible for an outside observer to tell whether this has happened. In short, there is no clear dividing line between the two classes of assertions; they merge into one another. In the judgments of courts and tribunals, and in the pleadings of States before international courts, there are many examples of government replies to the League of Nations Committee of Experts for the Progressive Codification of International Law being cited as constitutive of State practice, and no ­merely as confirmatory of it.23 The States, judges and arbitrators concerned 21

Similarly, D’Amato, while denying that such assertions constitute the material component of custom, admits that they may provide evidence of opinio juris: D’Amato, The Concept of Custom in International Law (1971), pp. 76 and 88. 22 Thirlway, International Customary Law and Codification (1972), p. 58. 23 Marek, op. cit. (above, p. 2 n. 8), pp. 915, 929–30; Mexican Union Railway claim (1930), r.i.a.a., vol. 5, pp. 115, 122–4; Eschauzier claim (1931), ibid., pp. 207, 210–12; Mergé claim Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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did not regard such replies as being different in kind from claims made in the context of a specific dispute. Indeed, in some cases the replies were cited as the sole evidence of the rule in question.24 In the North Sea Continental Shelf cases the Netherlands and Denmark ­argued that the equidistance principle had been created as a rule of customary law by the work of the International Law Commission, by the replies of governments and by the attitudes adopted by States at the Geneva conference. The Court rejected this argument, but only because the equidistance principle had been put forward as lex ferenda, not as lex lata.25 The Court did not deny that a rule of customary law could have been created in this way if it had been described as lex lata in the relevant discussions. In the Fisheries Jurisdiction case the Court cited a resolution passed by the 1958 conference and an amendment tabled at the 1960 conference as State practice which had helped to create a rule of customary law.26 The distinction made by the Court in the North Sea Continental Shelf cases between assertions of lex lata and assertions of lex ferenda is extremely important. An assertion that something ought to be the law is obviously not evidence that it is the law; indeed it may even be interpreted as evidence that it is not the law. Of course there is a danger that States may dress up claims for changes in the law as statements of existing law. But it is always open to other States to dispute such statements if they disagree with them. The making of such statements, coupled with the failure of other States to challenge them, may often be regarded as creating a new rule of customary law; the fact that the State making the statement knew that the statement did not reflect preexisting law does not necessarily prevent the statement from giving rise to a new rule of customary law. But, in this respect, there is nothing unique about such statements. As we shall see later, claims made by States in the context of concrete disputes can give rise to new rules of customary law in the same way as assertions made by States in abstracto; all that is needed is that the claim or assertion must be phrased as an assertion of lex lata and must be acquiesced in by the other States concerned.27 Assertions made in abstracto concerning the content of existing law are sometimes found in resolutions passed by the representatives of States at the (1955), i.l.r. 22 (1955), pp. 443, 449–50; In re Piracy Jure Gentium, [1934] A.C. 586, 599–600. 24 E.g., Mexican Union Railway claim. 25 I.C.J. Reports, 1969, pp. 3, 38. Cf. Judge Ammoun on pp. 105–6. 26 I.C.J. Reports, 1974, pp. 3, 26. 27 See below, pp. 36 et seq. But see also pp. 20–2, below, on the effects of lack of uniformity in State practice. [Editors’ note: pages 605, 585–587 of this Anthology].

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meetings of international organizations.28 The importance of such resolutions as a means of developing customary law is well established. The Nuremberg Tribunal relied on resolutions passed by the League of Nations Assembly and the Pan-American Conference of 1928, and on unratified treaties, as authority for its finding that aggressive war was criminal according to the ‘customs and practices of States’ even before the Kellogg–Briand Pact was signed.29 In Anglo-Iranian Oil Co. Ltd. v. supor an Italian court cited a General Assembly resolution as authority for a rule of customary law.30 In his separate opinion in the Barcelona Traction case, Judge Ammoun said: ‘the positions taken up by the delegates of States in international organizations and conferences, and in particular in the United Nations, naturally form part of State practice’ and ‘amount to precedents contributing to the formation of custom’.31 A similar view was taken by Judge Tanaka in the South West Africa cases,32 and by a number of writers.33 Such resolutions are authority for the content of customary law only if they claim to be declaratory of existing law.34 A clear example is resolution 96(I) of 11 December 1946, which says that ‘the General Assembly … affirms that genocide is a crime under international law’. But such declaratory language is surprisingly rare. For instance, the language used in the General Assembly 28

These resolutions are important because they are voted for by representatives of States. The fact that they are passed at meetings of international organizations is of no importance; they would have the same effect if they were passed at an international conference, meeting outside the framework of any international organization. 29 Cmd. 6964 (1946), pp. 40–1, followed by the Tokyo Tribunal, i.l.r. 15 (1948), pp. 356, 362–3. Contra, Judge Pal (International Military Tribunal for the Far East: Dissentient Judgment of Justice Pal, Calcutta (1953), pp. 32–70, especially pp. 38 and 56–8). 30 i.l.r. 22 (1955), pp. 23, 40–1. 31 I.C.J. Reports, 1970, pp. 3, 302–3. He makes no distinction between resolutions dealing with specific disputes and resolutions enunciating rules in abstracto. See also the Genocide case, I.C.J. Reports, 1951, pp. 15, 25–6 and 34–6, and Judge Ammoun’s separate opinion in the Namibia case, ibid., 1971, pp. 16, 74–5. 32 I.C.J. Reports, 1966, pp. 3, 291–2. Contra, Judge van Wyk, pp. 169–70, and possibly Judge Jessup, pp. 432 and 441. 33 Higgins, The Development of International Law through the Political Organs of the United Nations (1963), pp. 4–7 and passim; Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (1966), parts 2 and 3; Castañeda, Legal Effects of United Nations Resolutions (1969), Chapter 7. See also the writers cited by Judge Ammoun in the Barcelona Traction case, I.C.J. Reports, 1970, pp. 3, 303. 34 It is possible that some States will claim that a resolution is declaratory of customary law even though the claim is not supported by the actual wording of the resolution. But obviously such a claim reflects only the views of the States making the claim, and not the views of the other States which voted in favour of the resolution.

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resolutions on outer space is much more ambiguous.35 The preamble to the Charter of Economic Rights and Duties of States declares ‘that it is a fundamental purpose of the present Charter to promote the establishment of the new international economic order’; these words, especially the word ‘new’, negate the idea that the Charter is declaratory of existing law.36 It is also necessary to look at the voting figures (since a resolution which purports to be declaratory of customary law but which is opposed by a substantial number of States is obviously weaker evidence of customary law than a similar resolution which is passed unanimously37) and at the reasons given by States for casting their votes. A State voting in favour of such a resolution must be regarded as accepting that the resolution is declaratory of customary law, in the absence of a statement to the contrary. Conversely, a State voting against the resolution must be regarded as rejecting that view, in the absence of a statement to the contrary. A State which abstains is probably in the same position as a State which votes for the resolution, since it is well established that a State which does not take part in the formation of a rule of general customary law is bound by that rule unless it expressly dissents from an early date.38 If only part of the resolution claims to be declaratory of customary law, the votes cast in a separate vote (if there is one) on that part of the resolution are a much more reliable indication of the views of States than the vote taken on the resolution as a whole. A resolution cannot be regarded as declaratory of customary law if it is not phrased in declaratory terms. However, in areas where customary law is uncertain, or viewed by States with dissatisfaction for one reason or another, there is a possibility—but never a certainty—that such a resolution will influence the future development of customary law.39 35 36

37

38

39

Asamoah, op. cit. (above, n. 5), Part 3, especially pp. 157–8; Darwin, this Year Book, 42 (1967), p. 278; Cheng, Indian Journal of International Law, 5 (1965), p. 23, especially pp. 40–1; Thirlway, op. cit. (above, p. 4 n. 2), pp. 70–1. General Assembly resolution 3281 (xxix) of 12 December 1974 (text in International Legal Materials, 14 (1975), p. 251). Similar considerations apply to the Declaration on the Establishment of a New International Economic Order (resolution 3202 (S-vi) of 1 May 1974; ibid., 13 (1974), p. 720). See Professor Gillian White, Virginia Journal of International Law, 16 (1976), p. 323. See, e.g., Yearbook of the United Nations (1961), pp. 30–1, and American Journal of International Law, 67 (1973), pp. 329–30, concerning a General Assembly resolution which declared that the use of nuclear weapons was contrary to international law but which was opposed by most western States. See below, pp. 23–4. [Editors’ note: pages 590–592 of this Anthology]. On abstentions, see D’Amato, Canadian Year Book of International Law, 8 (1970), pp. 104, 114–15, and Virally, Annuaire français de droit international, 9 (1963), pp. 508, 539–40. Cf, the Western Sahara case, I.C.J. Reports, 1975, pp. 12, 23. See below, pp. 51–2. [Editors’ note: pages 624–625 of this Anthology].

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It is impossible to study modern international law without taking account of declaratory resolutions and other statements made by States in abstracto concerning the content of international law. It is significant that authors who refuse to classify such statements as ingredients of customary law admit them as authority under some other rubric. For instance, D’Amato classifies them as examples of consensus, which he regards as separate from custom and other sources of international law; if there is a consensus among States that something is law, then it is law.40 It is submitted, however, that such an approach is unhelpful and distorting. When States declare that something is customary law, it is artificial to classify such a declaration as a statement about something other than customary law. Besides, there is no clear dividing line between statements concerning the content of customary law made by States in abstracto and similar statements made in the context of some specific dispute; they merge into one another.41 The same problems arise in all cases, especially the problem of distinguishing between assertions of lex lata and assertions of lex ferenda,42 not to mention the problems which arise whenever one seeks to infer rules of customary law from State practice—how frequent, long, widespread and consistent must the practice be? what if different States accept differing rules of customary law? what is meant by opinio juris? The problems are the same, regardless of the kind of State practice (including assertions about the content of customary law made by States in abstracto) which one is considering; and the solutions to these problems also tend to be the same. Moreover, there is an important advantage to be gained by regarding statements in abstracto as creative of customary law. It is often supposed that the only way to change a customary rule is to break it frequently. There is no doubt that customary rules can be changed in this way, but the process is hardly one to be recommended by anyone who wishes to strengthen the rule of law in international relations. Fortunately there is a way out of the dilemma; as an alternative to changing customary law by breaking it, States can change it by repeatedly declaring that the old rule no longer exists—a much more desirable way of changing the law.

40 41 42

D’Amato, ‘On Consensus’, Canadian Year Book of International Law, 8 (1970), p. 104. See also D’Amato, The Concept of Custom in International Law (1971), p. 95, and Thirlway, International Customary Law and Codification (1972), pp. 68 and 76–7. See above, pp. 4 and 6 n. 3. [Editors’ note: pages 564 and 567 note 11 of this Anthology]. See above, p. 5. [Editors’ note: page 566 of this Anthology].

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National Laws and Judgments Extreme supporters of the theory that custom constitutes an implied agreement between States, such as Strupp, argued at one time that the only relevant State practice is the practice of organs which are competent to make treaties in the name of the State.43 One effect of this theory would be to exclude consideration of national laws as State practice. Traces of such an approach can be found in some of the individual and dissenting opinions in the Lotus case, especially in Judge Nyholm’s dissenting opinion: ‘There must have been acts of State accomplished in the domain of international relations, whilst mere municipal laws are insufficient.’44 But this is very much a minority view. In the Lotus case itself, Turkey relied heavily on the laws of various countries.45 France, instead of arguing that such laws could not be regarded as State practice, maintained that they had not received the assent of other States;46 and France, in her turn, invoked the laws of various countries as proof of customary law.47 A similar approach was adopted in previous disputes about criminal jurisdiction. Thus in 1877 the Foreign Office instructed the British Minister at Rio de Janeiro that ‘Her Majesty’s Government … would not be justified’ in protesting against a law extending the jurisdiction of Brazilian criminal courts, because the law was similar to the laws of several other countries.48 In the Cutting incident Mexico tried to justify her law by pointing out its similarity to the laws of other countries;49 the United States, instead of arguing that such laws could not be regarded as State practice, sought to show either that they were different from the Mexican law or that they were too few in number to give rise to a rule of customary law.50

43 Strupp, Recueil des cours, 47 (1934), pp. 263, 313–14. See the criticism of Strupp’s views by Sorensen, Les sources du droit international (1946), pp. 85–94. Presumably D’Amato would exclude national laws unless they have been applied (cf. above, p. 1) and Thirlway would exclude them unless they have been applied or unless they were passed in response to some specific dispute (cf. above, p. 4). 44 p.c.i.j., Series A, No. 10 (1927), at pp. 59–60. See also the equivocal remarks of Judge Altamira on p. 96. The main judgment of the Court does not seem to share this restrictive approach: pp. 20 and 23. 45 Marek, op. cit. (above p. 2 n. 8), pp. 864, 876 and 888. 46 Ibid., p. 856. 47 Ibid., pp. 857 and 887. 48 McNair, International Law Opinions (1956), vol. 2, p. 153. 49 Foreign Relations of the United States (1887), pp. 859–67. 50 Ibid., pp. 754–5 and 781–817.

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The United States also cited the laws of various countries as proof of customary law.51 There have been many cases where national courts have inferred the existence of rules of customary law from a comparison of the laws of different countries, on questions ranging from diplomatic immunity52 to ships’ lights,53 and the rights of enemy fishing vessels.54 In the Nottebohm case the International Court relied partly on the fact that national laws provide for naturalization only when there is a genuine link.55 In the North Sea Continental Shelf cases some of the judges included national laws or Parliamentary bills among the State practice which could give rise to rules of customary law concerning the continental shelf.56 Moreover, the International Law Commission and other bodies engaged in codification always treat national laws, regulations and judgments ‘as primary evidence of State practice’.57 Obviously a law which is frequently applied carries greater weight than a law which is never or seldom applied; any kind of State practice carries greater weight if it involves an element of repetition. But the mere enactment of a law is a form of State practice, even if the law is never applied.58 However, it may be rash to draw conclusions from an ambiguous law unless one knows how the courts of the State concerned have interpreted it. Similarly, a law which provides, for instance, that prosecutions may be brought against aliens for crimes committed abroad only with the permission of a Minister is inconclusive unless one knows how the Minister exercises his discretion. The effect of Strupp’s theory would be to exclude consideration, not only of national laws, but also of the practice of all departments of the executive which do not have the power to make treaties in the name of the State. This is ­obviously 51 52 53 54 55

Ibid., pp. 770–817. Lagos v. Baggianini (1953), i.l.r. 23 (1955), pp. 533, 537 (Italy). The Scotia (1871), 14 Wallace 170. The Paquete Habana (1900), 175 U.S. 677, 688–700. I.C.J. Reports, 1955, pp. 4, 22. See also the invocation of nationality laws in the PanevezysSaldutiskis Railway case: Marek, op. cit. (above, p. 2 n. 8), p. 924. 56 I.C.J. Reports, 1969, pp. 3, 129 (Ammoun), 175 (Tanaka) and 228–9 (Lachs). 57 Waldock, Recueil des cours, 106 (1962), pp. 1, 43. See also Year Book of the International Law Commission (1950), vol. 2, pp. 370–1, and Wolfke, Custom in Present International Law (1964), pp. 145–7. 58 This will normally be because there is never any occasion to apply the law. A rather different situation arises if the Courts of the State concerned disregard the law; this suggests either that the practice of the State concerned is inconsistent (cf. below, p. 20) or else that the law in question is void or is no longer in force (in which case it loses its value as State practice).

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much too restrictive; for instance, in many countries the admission and expulsion of aliens is handled by the Home Office or its equivalent, not by the Foreign Office or its equivalent, and one would obtain a very incomplete and inaccurate picture of the practice of such countries concerning the admission and expulsion of aliens if one looked only at the practice of the Foreign Office. Strupp’s theory also has the effect of refusing to regard national judgments as State practice.59 This may not matter much if one regards judicial decisions as a separate source of international law in their own right, but many international lawyers (including Strupp himself) do not regard judicial decisions as a separate source of international law. Writers like Strupp thus force themselves into the impossible position of trying to study a subject like belligerent rights at sea, while closing their eyes to the judgments of national prize courts. It is therefore not surprising that Strupp’s views are nowadays almost universally discredited. Even Tunkin, who resembles Strupp in regarding custom as an implied agreement between States, includes national laws and judgments as part of State practice.60 Omissions It is submitted that State practice covers any act or statement by a State from which views can be inferred about international law.61 It includes not only the types of act or statement which have been discussed in the preceding pages, but also other types of act or statement, such as standing or ad hoc ­instructions by a State to its officials, or criticisms by one State of the conduct of other States,62 or treaties (including treaties which have not entered into force).63

59 Strupp, Recueil des cours, 47 (1934), pp. 263, 314–15. See the classic criticism of Strupp’s views by Lauterpacht in this Year Book, 10 (1929), p. 65. 60 Tunkin, Theory of International Law (1974), pp. 184–5. 61 It is sometimes said that a particular type of act or statement is evidence of customary law. This is an ambiguous phrase. It can mean either that the act or statement is State practice, or that it is indirect or secondary evidence of State practice, in the same way that the views of writers are indirect or secondary evidence of State practice. Judges have often emphasized that writers record and interpret custom, but do not create it (e.g. R. v. Keyn (1876), 2 Ex. D. 63, 202–4). A similar distinction is not made between different types of acts or statements by States (with a few exceptions, already mentioned—see above, pp. 1 (n. 4), 6 (n. 1), 6 (n. 4), 8 (n. 2)) [Editors’ note: pages 562 (note 3), 567 (note 29), 567 (note 32), 570 (note 44) of this Anthology]; all kinds of acts and statements are cited indiscriminately, and there is no shortage of judicial dicta recognizing each kind of act or statement as State practice. 62 See below, pp. 38 et seq. [Editors’ note: page 608 of this Anthology]. 63 See below, pp. 42–9. [Editors’ note: page 613–622 of this Anthology].

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It can also include omissions and silence on the part of States. In the Lotus case the Permanent Court held that the absence of prosecutions did not prove the existence of a rule of customary law, but only because the omission had not been accompanied by opinio juris; there is a clear inference that omissions accompanied by opinio juris can give rise to a rule of customary law.64 In the Nottebohm case the International Court based its decision partly on ‘the practice of certain States which refrain from exercising protection’.65 Most writers include omissions as a form of State practice.66 Practice of International Institutions and Individuals So far we have been considering only the practice of States. It would seem, however, that the practice of international organizations can also create rules of customary law. It is true that most organs of most international organizations are composed of representatives of States, and that their practice is best regarded as the practice of States.67 But the practice of organs which are not composed of representatives of States, such as the United Nations Secretariat, can also create rules of customary law.68 In the Genocide case, both the judges in the majority and the dissenting judges supported their views by citing the Secretary-General’s practice as depositary of treaties and a decision of the Council of the League of Nations.69 Nor must one overlook the legal opinions of the United Nations Secretariat.70 One also needs to take account of the practice of international courts and tribunals—not only their judgments, which may arguably be a separate source of international law in their own right, but also their practice in dealing with incidental matters of evidence and procedure. It is less certain whether the practice of private individuals can create rules of customary law. Most writers admit that individuals are now capable 64

p.c.i.j., Series A, No. 10 (1927), at p. 28. Judge Altamira dissented on this point, arguing that omissions do not constitute State practice (p. 96). 65 I.C.J. Reports, 1955, pp. 4, 22 (italics added). 66 Tunkin, Theory of International Law (1974), pp. 116–17; and see below, pp. 37–42 [Editors’ note: pages 607–613 of this Anthology], on the effects of acquiescence. However, not all writers agree as to the meaning of omission; D’Amato, for instance, regards only physical acts as positive acts, and so classifies purely verbal claims or protests as omissions, which means that he draws from them conclusions which are the opposite of those drawn by other writers (D’Amato, The Concept of Custom in International Law (1971), pp. 61–3 and 88–9). 67 See above, pp. 5–7, especially, p. 5 n. 5. [Editors’ note: pages 566–569 of this Anthology]. 68 Akehurst, A Modern Introduction to International Law, second edition (1971), pp. 56–7. 69 I.C.J. Reports, 1951, p. 15, at pp. 25 and 34–6. 70 Schachter, this Year Book, 25 (1948), p. 91.

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of h ­ olding rights and duties under international law, and there is no a priori reason for arguing that the practice of individuals can never create rules of customary law.71 All the same, there are few, if any, examples of individuals performing this function in fact. International commercial custom on matters like bankers’ credits72 is not public international law, but simply law which is common to many different countries.73 Again, the practice which grows out of employment contracts concluded by individuals with international organizations74 is not a good example, since the type of practice which is a source of the law governing employment in international organizations is established unilaterally by the administration, without any need for acquiescence by the staff.75 Of course, the reactions of States to the acts of individuals (e.g. by prosecuting or failing to prosecute them for assaulting diplomats) can give rise to customary law, but that is not the same as saying that the acts of individuals give rise to customary law. Individuals may form pressure groups to campaign for changes in the law, but the change is made by States and not by individuals. It is arguable that even writers on international law, who exercise more influence on international law than other individuals, have no effect unless or until their views are accepted by States or by international courts.76 II

Quantity of Practice

The Problem of Repetition Can a rule of customary law be created by a single act (using ‘act’ in the wide sense which it has been given in the preceding pages, and including ­omissions),

71

On the connection between legal personality and the ability to create law, cf. Sereni, Diritto internationale, vol. 1 (1956), p. 117. 72 Cited by Kopelmanas, this Year Book, 18 (1937), pp. 127, 149–50. 73 On this distinction, see Akehurst, in this Year Book, 46 (1972–3), pp. 145, 212–14. See also Rousseau, Droit international public, vol. 1 (1970), pp. 328–9. 74 Cited by McRae, Canadian Year Book of International Law, 11 (1973), pp. 87, 99. 75 Akehurst, The Law Governing Employment in International Organizations (1967), p. 95. 76 See also below, p. 36 n. 7. [Editors’ note: page 606, note 229 of this Anthology].

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or is repetition essential? Most writers insist on repetition,77 although there are exceptions.78 Judicial authority is inconclusive. There are many cases where courts have held that a rule of customary law exists because it is supported by abundant practice,79 but that does not necessarily imply that less abundant practice would have been insufficient to establish the rule.80 Express statements are frequently made that repeated acts are necessary to give rise to customary law, but most of these statements are obiter dicta, because the judges went on to hold that the practice was conflicting81 or not accompanied by opinio juris,82 or because there was no practice at all supporting the alleged rule,83 or b­ ecause 77

78 79 80 81

82

83

See, for instance, Rousseau, Droit international public, vol. 1 (1970), p. 317, and Barberis, Nederlands Tijdschrift voor internationaal recht, 14 (1967), p. 367. See also the p.c.i.j. pleadings cited in Marek, op. cit. (above, p. 2 n. 8 [Editors’ note: page 563 note 11 of this Anthology]), pp. 814, 822, 827–8. Cf. Waldock, Recueil des cours, 106 (1962), pp. 1, 44: ‘the density of the practice … depends on the nature of the case. Some degree of repetition is inherent in the notion of custom, but, where the occasions for acting only arise spasmodically, the density required for the practice will obviously be less’. At first sight authorities who insist on the passage of time as necessary for the formation of custom (see below, pp. 15–16 [Editors’ note: pages 578–580 of this Anthology]) may be taken to imply the necessity of repetition, since time and repetition are often two sides of the same coin; but cf. Sørensen, Les Sources du droit international (1946), p. 102: ‘Lorsque … les actes sont de nature à créer un état juridique d’une durée sans limites expresses, le maintien de cet état juridique prend nécessairement la place de la répétition.’ Notably D’Amato, The Concept of Custom in International Law (1971), pp. 91–8, and Cheng, Indian Journal of International Law, 5 (1965), p. 23. See also Tunkin, Theory of International Law (1974), p. 114, and the writers cited by D’Amato, op. cit., pp. 50 and 58. E.g., the Wimbledon case (1923), where the p.c.i.j. rejected an argument which was contrary to a ‘consistent international practice’: p.c.i.j., Series A, No. 1, p. 25. On the dangers of arguing a contrario, see the Right of Passage case, below, p. 15. Genocide case, I.C.J. Reports, 1950, pp. 15, 25; Asylum case, ibid., pp. 266, 276–7. See also the dissenting opinion of Judge Azevedo in the Corfu Channel case, ibid., 1949, pp. 3, 99. Conflicting practice cannot give rise to customary law: see below, p. 20. [Editors’ note: page 585 of this Anthology]. Dissenting opinion of Judge Negulesco in the European Commission of the Danube case, p.c.i.j., Series B, No. 14, p. 105. It may sometimes be difficult to infer opinio juris from a single act. Wolfke, Custom in Present International Law (1964), pp. 155–6, argues that the amount of practice needed to establish a custom is less where there is strong evidence of opinio juris, just as the requirement of opinio juris is partly relaxed where there is abundant practice. See below, p. 36 n. 6, and p. 38 n. 2. [Editors’ note: page 605, note 228 and page 608 note 235 of this Anthology]. Dissenting opinion of Judge Guggenheim in the Nottebohm case, I.C.J. Reports, 1955, p. 55. See also the opinion of the Swiss Federal Council, reprinted in Revue générale de droit international public, 40 (1969), p. 203.

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the case concerned the use of practice to interpret a treaty and not a genuine customary rule.84 A few words should be said in this context about the North Sea Continental Shelf cases. Denmark and the Netherlands were able to cite only a very small number of previous examples of delimitation in support of their arguments. The International Court said: …the Court is not concerned to deny to … [the cases] cited all evidential value in favour of the thesis of Denmark and the Netherlands. It simply considers that they are inconclusive, and insufficient to bear the weight sought to be put upon them as evidence of such a settled practice, manifested in such circumstances, as would justify the inference that delimitation according to the principle of equidistance amounts to a mandatory rule of customary international law…85 At first sight this might be taken to mean that the cases were insufficient in number to give rise to a rule of customary law. But the Court stressed the absence of opinio juris, and pointed out that the cases were of dubious ­relevance.86 Moreover, the Court had already held that the relevant rule of customary law, which had started developing as early as 1945, required the continental shelf to be delimited in an equitable manner,87 and the application of the equidistance principle advocated by Denmark and the Netherlands would, in the circumstances of the case, have given rise to results which the Court regarded as inequitable. In effect, therefore, Denmark and the Netherlands were trying not only to establish a new rule of customary law88 but also to overthrow the old rule of customary law, and, as we shall see later, the amount of practice needed to establish a new rule which conflicts with the previously accepted

84

85 86

87 88

Italy–United States Air Transport Arbitration (1965), i.l.r. 45, pp. 393, 419. The practice had been frequent and consistent for six years—an additional reason for regarding as obiter dicta the tribunal’s remarks about the legal consequences which would have followed if these conditions had not been met. I.C.J. Reports, 1969, pp. 3, 45. Ibid., pp. 43–5. The cases were ‘inconclusive’ because they were of dubious relevance, not because they were few. Similarly, the Court’s insistence that practice must be ‘extensive and virtually uniform’ (p. 43) was concerned, not with the number of precedents cited, but with the number of participating States and with the absence of inconsistency; see below, p. 17. Ibid., pp. 33, 35–6, 46 and 47. [Editors’ note: pages 602, 605 and 618–619 of this Anthology]. Even Denmark and the Netherlands admitted that the equidistance principle was not well established before 1958: ibid., p. 38. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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rule is much greater than the amount of practice needed to establish a new rule in vacuo.89 It is submitted that the Staatsgerichtshof was correct when it stated obiter that it is possible (although very unusual) for a single act to create a rule of customary law.90 Much of the evidence of State practice is hidden in unpublished archives. Consequently one can never prove a rule of customary law in an absolute manner but only in a relative manner—one can only prove that the majority of the evidence available supports the alleged rule. A State which can cite more precedents than its opponent has a stronger case than its opponent,91 and in this respect it makes no difference whether the dispute is dealt with by negotiation or brought before an international court. A State which can cite only one or two acts of State practice in support of its case has a better case (other things being equal92) than its opponent, if its opponent cannot cite any State practice93—just as a State which can cite one writer or one judgment in support of its case has a better case than its opponent, if its opponent cannot cite any writers or judgments. One can also invoke the analogy of title to territory, where international courts are often ‘satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim’.94 Proof of customary law, like proof of title to ­territory, is relative, not absolute. Of course a rule of customary law which is supported by a lot of practice is more firmly established than a rule which is supported by very little practice, in the sense that it is less likely to be overthrown by subsequent changes in practice;95 but both of them are rules of customary law for the time being, and what will happen to them in the future can never be predicted with certainty. 89 90

See below, p. 19. [Editors’ note: page 584 of this Anthology]. Lübeck v. Mecklenburg-Schwerin (1928), cited in Hackworth, Digest of International Law, vol. 1 (1940), p. 15. The summary of the case in Annual Digest, 4 (1927–8), p. 8, is wrong on this point. 91 But see below, p. 20 [Editors’ note: page 585–586 of this Anthology], on the effects of inconsistency of practice. 92 In practice other things are seldom equal; see below, p. 19. [Editors’ note: page 584 of this Anthology]. 93 D’Amato, The Concept of Custom in International Law (1971), pp. 91–8. This approach has the advantage of avoiding the difficulty of determining the precise quantity of practice needed to establish a rule of customary law in an absolute manner. 94 Eastern Greenland case (1933), p.c.i.j., Series A/B, No. 53, p. 46. 95 See below, p. 19 [Editors’ note: page 584 of this Anthology]. Note also that a State can opt out of a rule of customary law only during the early stages of the rule’s existence (see below, p. 24) [Editors’ note: page 590–591 of this Anthology]; for this purpose, but for this purpose only, a distinction must be made between well-established rules and other rules. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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To some people, the idea of a custom being established by one or two acts is a contradiction in terms. But is it? The nature of custom, like the nature of all legal institutions, varies in accordance with the nature of the society in which it operates. National societies are composed of thousands (often millions) of individuals, who often know very little about one another’s doings; in such a society, a large number of acts, spread over a long period of time, are necessary to prove a custom, because it is only in this way that one can prove that the custom has been accepted by the people.96 International society is different. There are only a hundred and fifty States, and modern methods of publicity, communications and diplomacy make it easy for States to learn what other States are doing. In such an environment a single act, even if it involves only two States, has an impact which an act involving two individuals could almost never have in a national society. Moreover, the development of multilateral treaties, multilateral conferences and international organizations makes it possible for large numbers of States to participate in a single act. The number of States taking part in a practice is much more important than the number of separate acts of which the practice is composed, or the time over which it is spread; a single act involving fifty States provides stronger proof that a custom is accepted by the international community than ten separate acts involving ten separate pairs of States.97 Thus, in the North Sea Continental Shelf cases the International Court envisaged the possibility that ‘a very widespread and representative participation in the convention might suffice of itself’ to transform the provisions of Article 6 of the Geneva Convention on the Continental Shelf into rules of customary law, ‘even without the passage of any considerable period of time’ and apparently without any need of repetition or of subsequent practice of any sort.98 The Problem of Time In his dissenting opinion in the European Commission of the Danube case, Judge Negulesco said that custom required immemorial usage.99 This dictum has been frequently quoted since, although apparently never with approval. 96 97

98 99

In addition, legislators and judges are often jealous of custom as a rival source of law, and try to limit its effectiveness by making it harder to prove custom—something which seldom happens in international law. Repetition of resolutions of bodies like the General Assembly strengthens a rule of customary law; but a single resolution, even if it is never repeated, may sometimes create such a rule (pace Judge Tanaka in the South West Africa cases, I.C.J. Reports, 1966, pp. 3, 292), provided that there is no practice contradicting the alleged rule. Cf. Bleicher, American Journal of International Law, 63 (1969), p. 444. I.C.J. Reports, 1969, pp. 3, 42 (italics added). On the problems raised by this passage of the judgment, see below, pp. 17 and 50. [Editors’ note: pages 581, 622–623 of this Anthology]. p.c.i.j., Series B, No. 14 (1927), p. 105. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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In the Right of Passage case the International Court held that a practice lasting for more than 125 years had given rise to a rule of customary law,100 but did not say or even imply that a shorter period would not have sufficed. The problem of the time needed to give rise to a rule of customary law has arisen particularly in the context of the continental shelf. In the Abu Dhabi case in 1951 the arbitrator held that the doctrine of the continental shelf had not yet become a rule of customary law, but he based his decision on the inconsistency of the practice and not on its novelty.101 At the Geneva conference in 1958 Greece said that a period of ten years was too short to establish the doctrine as a rule of customary law;102 but Israel disagreed,103 and so by implication did the other nineteen States which considered that the doctrine had ­already become a rule of customary law.104 In the North Sea Continental Shelf cases the International Court said that ‘the passage of only a short ­period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law’.105 In the same case Judge Lachs mentioned ‘the freedom of movement into outer space’ as an example of a customary rule which had been ‘established within a remarkably short period of time’.106 He might also have mentioned the principle of national sovereignty over air space, which, according to Brierly, arose ‘at the moment the 1914 war broke out’.107 The heart of the matter is probably that the requirement of time is very much bound up with the requirement of repetition. If many acts are needed to establish a rule of customary law, time will almost certainly also be needed, if only because it is most unlikely that many acts will occur simultaneously. Conversely, if a single act is sufficient to establish a customary rule, the requirement of time falls by the wayside. As a result, much of what was said above about repetition applies equally to time. In particular, the supposed requirement of time, like the supposed requirement of repetition, can usually be dispensed with if there are no precedents which can be cited against the alleged rule of customary law.108

100 101 102 103 104 105 106 107 108

I.C.J. Reports, 1960, pp. 6, 40. i.l.r. 18 (1951), pp. 144, 155. United Nations Conference on the Law of the Sea, 1958, Official Records, vol. 6, p. 6. Ibid., p. 17. For details, see Slouka, International Custom and the Continental Shelf (1968), pp. 91–3. I.C.J. Reports, 1969, pp. 3, 43. See also pp. 176–9 (Judge Tanaka) and 230 (Judge Lachs). Ibid., p. 230. Yearbook of the International Law Commission (1950), vol. 1, p. 5. Cf. above, pp. 13–14. [Editors’ note: page 576–577 of this Anthology]. Somewhat different problems arise when a custom spread over a long period of time clashes with a conflicting custom spread over a shorter period of time; see below, p. 19 n. 5, and p. 20. [Editors’ note: page 584, note 132, and page 585 of this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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In the Lotus case the Turkish government argued that a custom must be old enough to express the general consent of the international community.109 But if that consent can be expressed in other ways, the requirement of time becomes redundant. As Baxter puts it, the time factor as a separate element in the proof of custom now seems irrelevant. The new customary rule will be established as soon as it acquires the necessary degree of acceptance.110 In a national society, time is an essential ingredient of custom because one can prove that a custom is accepted by the people only by pointing to a large number of acts, spread over a long period of time. But in international society there are other ways of proving that a custom is accepted by States; the number of States taking part in an act or acts is more important than the time over which the acts are spread.111 Time is less important now than it used to be, because improvements in communications enable the actions and reactions of States to be known all over the world more quickly than in the past.112 Moreover the existence of international organizations gives States more opportunities to make known their views about emergent rules of customary law, and this speeds up the development of these rules.113 The Number of States Taking Part in a Practice It has been argued in the preceding pages of this section that a rule of customary law is established if it is accepted by the international community, and that the number of States taking part in a practice is a more important criterion of acceptance than the number of acts of which the practice is composed, and a much more important criterion than the duration of the practice. However, it is difficult to lay down any precise rule about the number of States which must 109 Marek, op. cit. (above, p. 2 n. 8), p. 801. In many cases ‘a reasonable period of time must elapse for the reaction of … [other] States to be properly manifested’: Shihata, Revue égyptienne de droit international, 22 (1966), pp. 51, 74, citing Sørensen, Les sources du droit international (1946), p. 102. 110 Recueil des cours, 129 (1970), pp. 25, 67. 111 Cf. above, p. 14. MacGibbon argues that the time needed to establish a custom in which many States participate is shorter than the time needed to establish a custom in which few States participate: this Year Book, 33 (1957), pp. 115, 120 et seq. And see Nelson, Modern Law Review, 35 (1972), pp. 52, 54–5. 112 Wolfke, Custom in Present International Law (1964), p. 68 (he also points out that rules on things like spacecraft have to develop quickly in order to keep pace with the growing speed of technological change). 113 Arangio-Ruiz, Recueil des cours, 137 (1972), pp. 419, 484–6.

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participate in a practice before a rule of customary law can be formed. Participation includes not only the actions of States, but also the reactions of other States whose interests are affected;114 even so, an action of one State may affect the interests of only one or two other States, and the question arises whether the practice of a small number of States can create a rule of customary international law. Most of the rules of customary law applied by international tribunals have been based on very widespread participation, but such cases are inconclusive on the question whether less widespread participation would have been sufficient to create a rule of customary law.115 Some of the older authorities suggest that all States must agree to a rule before it can become a rule of customary law.116 Other authorities insist only on a general practice, pointing out that Article 38 (1) (b) of the International Court’s Statute speaks of a general practice, not of a universal practice.117 Even the requirement of general practice can sometimes be a stringent one. In the North Sea Continental Shelf cases the Court insisted on ‘a very widespread and representative participation’; ‘State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform.’118 But these statements must be seen in their context. The Court was dealing with a contention that a customary rule, corresponding to Article 6 of the Geneva Convention on the Continental Shelf, had ‘come into being since the Convention, partly because of its [the Convention’s] own 114 See below, pp. 37–42 [Editors’ note: pages 607–613 of this Anthology], on the significance of protests and acquiescence. Even land-locked States participate in the formation of rules about the width of the territorial sea or of the continental shelf, if their interests are affected by the claims of coastal States (as might happen, for instance, if a land-locked State had a merchant fleet). Similarly, rules about international rivers and canals are created not only by the States in whose territory they lie, but also by other States which want to use them, and rules about spacecraft are created not only by the actions of States which launch them, but also by the reactions of other States over whose territory they pass. 115 Cf. the requirement of time in the Right of Passage case, above, p. 15. 116 Tinoco case (1923), r.i.a.a., vol. 1, pp. 375, 381. See also the dissenting opinion of Judge Weiss in the Lotus case (1927), p.c.i.j., Series A, No. 10, pp. 43–4, and the p.c.i.j. pleadings cited by Marek (op. cit., above, p. 2 n. 8), pp. 812, 844 and 876. 117 Guggenheim, Traité de droit international public, vol. 1 (1953), p. 47; Kunz, American Journal of International Law, 47 (1953), p. 666; Tunkin, Theory of International Law (1974), p. 118; North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 104 (Judge Ammoun) and 229 (Judge Lachs); Barcelona Traction case, I.C.J. Reports, 1970, pp. 3, 330 (Judge A ­ mmoun). It may, however, be unwise to place much reliance on the wording of Article 38, the drafting of which is notoriously defective; for instance, practice is evidence of a custom, and not (as Article 38 (1) (b) says) vice versa. Moreover, the wording of Article 38 (1) (b) has not prevented the Court applying regional and bilateral customs; see below, p. 28. 118 I.C.J. Reports, 1969, pp. 3, 42, 43.

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impact, partly on the basis of subsequent State practice’; and the Court prefaced its remarks with the warning that ‘this result is not lightly to be regarded as having been attained’.119 If the case had involved, not the transformation of a treaty provision into customary law, but the creation of custom in some other way, it is possible that the Court would not have laid down such a stringent requirement. Moreover, the equidistance principle conflicted with what the Court regarded as the existing rule of customary law on the subject,120 and the amount of practice which is needed to establish a new rule which conflicts with the previously accepted rule is greater than the amount of practice needed to establish a new rule in vacuo.121 Judges who insist on rigid rules about the minimum number of States which must participate in a practice seldom agree with one another about the definition of that minimum. Some insist on unanimity.122 Judge Tanaka thought that a few dissenting States could not prevent the formation of a customary rule, but this implies none the less that a very large majority is required.123 Judge Ammoun said that half the States in the world was probably not enough,124 but this could be taken to mean that not much more than 50 per cent was needed; later he said that the consent of the States of the third world was needed.125 119 Ibid., p. 41. This warning by the Court can also be used to distinguish Judge Read’s views in the Nottebohm case (I.C.J. Reports, 1955, pp. 4, 41) about the Rio Convention and the Bancroft Treaties—views which in any case were not shared by the majority of the Court (ibid., pp. 22–3). 120 See above, p. 13. [Editors’ note: page 576 of this Anthology]. 121 See below, p. 19. [Editors’ note: page 584 of this Anthology]. 122 See above, n. 2. 123 South West Africa cases, I.C.J. Reports, 1966, pp. 3, 291. Probably the reason why he insisted on a very large majority is that he apparently believed that dissenting States were bound (p. 293); States are not prepared to accept that a custom followed by 51 per cent of States and rejected by 49 per cent is binding on all States. There is, however, another solution to this problem; if one accepts that a dissenting State is not bound (see below, p. 24), there is comparatively little objection to the view that a custom followed by a small number of States is binding on them and on States which express no opinion for or against the custom (i.e. on all States except those who dissent). Dissenting States need one safety valve; they do not need two. 124 North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 130 (cf. Judge Lachs on p. 229). Cf. also the dissenting opinion of Judge Loder in the Lotus case, p.c.i.j., Series A, No. 10 (1927), p. 34: ‘a considerable majority of States’. 125 Barcelona Traction case, I.C.J. Reports, 1970, pp. 3, 330. Cf. the view often expressed by Soviet writers that rules of customary law need to be accepted by ‘socialist’ States as well as by ‘capitalist’ States. Such views raise more questions than they answer. Must all States in a bloc consent, or only a majority, or only the bloc leaders? How do you tell what bloc a State belongs to? What about States which belong neither to the socialist bloc nor to the capitalist bloc nor to the third world?

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It is submitted that all such approaches are misconceived. The number of States needed to create a rule of customary law varies according to the amount of practice which conflicts with the rule. A practice followed by a very small number of States can create a rule of customary law if there is no practice which conflicts with the rule.126 All of the judicial dicta requiring practice by a large number of States have been uttered in cases where practice conflicted,127 which casts doubt on their relevance to cases where there is no conflicting practice. Moreover, the number of States in the world is now much higher than it was in the nineteenth century and the first half of the twentieth century; many of them have been independent for only a short period of time, with the result that their practice on many topics is non-existent or at least unpublished. To require practice by a high proportion of States in these circumstances is to make the establishment of new customary law an intolerably difficult process. Variables and Presumptions It has been argued in the preceding pages of this section that, where other things are equal, a very small number of acts, involving very few States and of very limited duration, is sufficient to create a rule of customary law, provided that there is no conflicting practice. But other things are seldom equal. It is inappropriate to talk about a party having the onus of proving customary law,128 except possibly in the case of local custom,129 if only because an international 126 Cf. above, pp. 13–14. In the Asylum case Colombia contended that the Montevideo ­Convention of 1933 ‘merely codified principles which were already recognized by Latin American custom, and that it is valid against Peru as a proof of customary law’. The Court commented: ‘The limited number of States which have ratified this Convention reveals the weakness of this argument.’ However, weakness is a matter of degree, and even a weak case is better than no case; if matters had rested there, Colombia might have won. But the Court immediately added that Colombia’s argument was ‘invalidated by the preamble [of the Montevideo Convention] which states that this Convention modifies the Havana Convention’ (I.C.J. Reports, 1950, pp. 266, 277). See also below, p. 49. 127 Tinoco case (cf. above, p. 17 n. 2) [Editors’ note: page 581, note 116 of this Anthology]; Lotus case (cf. the dissenting opinions of Judges Loder and Weiss (p.c.i.j., Series A, No. 10, pp. 34 and 43–4)); North Sea Continental Shelf cases (cf. above, p. 17) [Editors’ note: page 581 of this Anthology]; South West Africa cases (cf. above, p. 17 n. 9) [Editors’ note: page 582, note 123 of this Anthology]; Barcelona Traction case (I.C.J. Reports, 1970, pp. 3, 307, 315–16, 330); Asylum case (I.C.J. Reports, 1950, pp. 266, 276–7). See also the p.c.i.j. pleadings cited by Marek (op. cit., supra, p. 2 n. 8) [Editors’ note: page 563, note 11 of this Anthology], pp. 812–13, 830–1, 844 and 876, and the United States argument in the Cutting incident (loc. cit., supra, p. 9 at n. 1 and n. 2). [Editors’ note: page 562 of this Anthology]. 128 Fisheries Jurisdiction case, I.C.J. Reports, 1974, pp. 3, 9, 59, 78–9. 129 Ibid., pp. 78–9; Francioni, Rivista di diritto internazionale, 54 (1971), pp. 397, 419–21. See also the Asylum case, I.C.J. Reports, 1950, pp. 266, 276.

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tribunal is free to base its decision on authorities which have not been cited by the parties.130 Nevertheless the fact remains that the quantity of practice needed to create a customary rule is much greater in some circumstances than in others. In particular, a great quantity of practice is needed to overturn existing rules of customary law.131 The better established a rule is (i.e. the more frequent, long-standing132 and widespread the practice which supports it), the greater the quantity of practice needed to overturn it. Conversely, a new rule which differs only slightly from the pre-existing rule can be established more easily than a rule which is radically different from the pre-existing rule.133 There is a very strong presumption against change in the law. There are also other presumptions which need to be considered, even though they are not as strong as the presumption against change in the law.134 There is, for instance, a presumption that rules governing one factual situation should be applied to similar factual situations by way of analogy, and there is a presumption against exceptions to broad principles.135 It requires a good deal of practice to rebut such a presumption. Moreover such a presumption can be used to provide a solution in a case where there is no practice whatever on the precise point in dispute. It is a general technique of legal reasoning, and probably of all reasoning, to attach greater weight to close analogies than to distant analogies, and to 130 Lotus case (1927), p.c.i.j., Series A, No. 10, p. 31. There is probably nothing to forbid a court doing its own research into local custom (pace Francioni, loc. cit., previous note), although in practice a court will probably find it easier to do research into general custom than research into local custom. 131 Fisheries case, I.C.J. Reports, 1951, pp. 116, 152, per Judge Alvarez; Lotus case, p.c.i.j., Series A, No. 10, p. 34, per Judge Loder. 132 A rule supported by both old and recent practice is more firmly established than a rule which is supported only by old practice or only by recent practice. A rule which is supported only by old practice is open to the accusation that it does not correspond to modern needs; a rule which is supported only by recent practice runs the risk of disappearing as quickly as it appeared. 133 Lauterpacht, this Year Book, 27 (1950), p. 393; D’Amato, The Concept of Custom in International Law (1971), pp. 60–1. 134 One rather specialized presumption has already been mentioned; transformation of a treaty rule into customary law ‘is not lightly to be regarded as having been attained’ (see above, p. 17). [Editors’ note: page 581–582 of this Anthology]. 135 The David (1933), Annual Digest, 7 (1933–4), p. 137; joint dissenting opinion in the first Admissions case, I.C.J. Reports, 1948, pp. 57, 86. This is probably why there is an onus of proof on a party alleging a local custom (Asylum case, I.C.J. Reports, 1950, pp. 266, 276), and why pre-scriptive rights which conflict with normal rules require more time for their establishment than rules of general customary law (cf. MacGibbon, this Year Book, 33 (1957), pp. 115, 121 et seq.). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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s­ pecific principles than to broad principles. Thus a principle of very great generality, such as the presumption in favour of the liberty of action by States laid down in the Lotus case,136 is not devoid of all value, but will often be overridden by a more specific principle or by a close analogy.137 III

Consistency of Practice

In the Right of Passage case the International Court held that a constant and uniform practice had given rise to a rule of customary law.138 But it would be dangerous to infer from such a statement that inconsistencies in State practice are invariably fatal to the establishment of a customary rule.139 It is true that in the Asylum case the Court found that no customary rule had been established, because the practice was not constant and uniform; but in that case there were major inconsistencies.140 A small amount of inconsistency does not prevent

136 p.c.i.j., Series A, No. 10 (1927), pp. 18, 19 and 21. 137 This may explain why the presumption in favour of liberty of action is seldom invoked by States (cf. Akehurst, this Year Book, 46 (1972–3), pp. 145, 167). The presumption only applies to acts by a State on its own territory; there is a presumption against the legality of acts by one State on the territory of another State (Lotus case, at pp. 17–19; Asylum case, I.C.J. Reports, 1950, pp. 266, 274–5). Note also that in the Lotus case Turkey was claiming a right to exercise concurrent jurisdiction, not exclusive jurisdiction; when a State claims an exclusive right, it is limiting the liberty of action of other States and therefore cannot rely on a presumption in favour of the liberty of its own action. Thus in a territorial dispute each side argues, in effect, that the other State is under a duty not to exercise sovereignty over the disputed territory. In the Anglo-Norwegian fisheries dispute, Norway argued that the United Kingdom was under a duty not to fish in the disputed waters, while the United Kingdom argued that Norway was under a duty not to molest British trawlers; thus neither side was entitled to invoke the presumption in favour of the liberty of State action.  Contrary to what is sometimes suggested, Turkey derived no advantage from the fact that she appeared as the defendant in the Lotus case; the presumption in favour of Turkey’s liberty of action would have been exactly the same if, for instance, Turkey had appeared as the plaintiff, seeking a declaration that her action was lawful. 138 I.C.J. Reports, 1960, pp. 6, 40. See also Judge Spender’s dissenting opinion (ibid., pp. 99– 100), and the Wimbledon case, p. 12 n. 3, above. 139 Cf. the author’s comments on another aspect of this case, above, p. 15. 140 I.C.J. Reports, 1950, pp. 266, 276–7. Similar considerations apply to the cases cited above, pp. 12 n. 5, 15 n. 4 and 18 n. 4, as well as to the Fisheries case, I.C.J. Reports, 1951, pp. 116, 131, and to Judge Krylov’s dissenting opinion in the Corfu Channel case, I.C.J. Reports, 1949, pp. 4, 74. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the establishment of customary rules;141 practice must be virtually uniform,142 not absolutely uniform. However, although a small amount of inconsistency does not prevent the creation of a rule, it does have the effect of increasing the amount of practice which is needed to establish the rule.143 It is also necessary to consider the time at which inconsistencies occur. In the Paquete Habana case the United States Supreme Court found that practice was inconsistent up till 1815, but consistent thereafter; there was thus nothing to prevent the establishment of a customary rule after 1815, even though the existence of the rule before that date was doubtful.144 Conversely, consistent practice in the past creates a rule which can only be destroyed by abundant modern practice which goes consistently against the rule; if modern practice partly supports the rule and partly goes against it, it is insufficient to destroy the rule.145 Practice which is marked by major inconsistencies at all relevant times is self-defeating and cannot give rise to a customary rule. However, there are various methods of resolving or explaining away inconsistencies so that apparent inconsistency is not always fatal to the establishment of customary law. These methods—some dubious, some sound—will be examined in the remaining pages of this section. 141 Fisheries case, I.C.J. Reports, 1951, pp. 116, 138. 142 North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 43. See also Judge McNair’s dissenting opinion in the Fisheries case, I.C.J. Reports, 1951, pp. 116, 168, and Judge Lachs’ dissenting opinion in the North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 229. Cf. Judge Wellington Koo’s separate opinion in the Barcelona Traction case, I.C.J. Reports, 1964, pp. 6, 63: ‘There exists always the possibility of a difference of opinion as to the ­degree of uniformity … necessary’ to establish a customary rule. 143 See above, pp. 13–14, 15, 18 and 19. [Editors’ note: page 576–578, 582–584 of this Anthology]. 144 175 U.S. 677 (1900). In many cases (but not all), States which originally opposed a majority practice will fall into line with the majority in the course of time. 145 Asylum case, I.C.J. Reports, 1950, pp. 266, 336, per Judge Azevedo, and see below, p. 31. [Editors’ note: page 599 of this Anthology] Departures from a practice which provoke protests do not prevent the development of a customary rule: Sørensen, Les sources du droit international (1946), p. 103, and see below, pp. 37–42. [Editors’ note: page 607–613 of this Anthology].  Some of the judges in the Fisheries Jurisdiction case said that recent practice was too inconsistent to create a rule prohibiting the extension of exclusive fishing zones beyond twelve miles (I.C.J. Reports, 1974, pp. 3, 47, 57–9, 86). But clearly such a rule existed at some time in the past, and therefore the inconsistency of recent practice, far from supporting claims of more than twelve miles, is fatal to them (ibid., p. 161, per Judge Petrén). Similarly Judge Loder’s remarks in the Lotus case (p.c.i.j., Series A, No. 10, p. 34) about altering the rules governing criminal jurisdiction beg the question as to what those rules were before modern controversies on the subject arose: see below, p. 31 n. 2. [Editors’ note: page 599, note 198 of this Anthology].

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Conflicts between Different Kinds of Practice A broad definition of what constitutes State practice, such as the definition adopted by the present author,146 increases the chances that inconsistencies will be found in State practice—inconsistencies which might disappear if a narrower definition of State practice were adopted.147 It is tempting to argue that some kinds of practice override (or are more important than) other kinds of practice, in the hope of eliminating inconsistencies or at least of reducing them to a low level where they will not prevent the establishment of customary rules. But it is submitted that this approach is unsound and should not be adopted. There is no compelling reason for attaching greater importance to one kind of practice than to another. It could be argued that the attitude adopted by a State in the context of a specific dispute has a more practical character than a statement in abstracto, just as a judgment has a more practical character than an academic opinion. On the other hand, the attitude adopted by a State in the context of a specific dispute may be designed only to further the interests of the State in that particular dispute, without any thought of the way in which such an attitude would affect other disputes; an abstract statement may be less self-seeking and may be based on more mature reflection.148 Such arguments tend to cancel one another out. Besides, they are over-generalizations which may not be applicable in all cases. Similarly, if the Foreign Office of a State follows one practice and the Courts of the State follow another practice, over-generalizations about the greater expertise of the Foreign Office and the greater impartiality of the Courts tend to cancel one another out. Moreover, considerations of expertise and impartiality, which would be relevant if we were comparing the value of different lawdetermining agencies, are irrelevant in the present context, which concerns a law-creating process;149 State practice creates custom, and the possible bias or 146 See above, pp. 1–11. [Editors’ note: pages 561–574 of this Anthology]. 147 For instance, General Assembly resolutions declaring the illegality of racial discrimination could, if they stood alone, create a rule of customary law to that effect (see above, pp. 5–7 [Editors’ note: page 566–568 of this Anthology]). But a number of States which vote for such resolutions practise racial discrimination in their own territory and this inconsistency prevents the development of a customary rule prohibiting racial discrimination. 148 The fact that any statement by a State is likely to be quoted against it in the future (cf. above, p. 2 n. 8 and p. 4 n. 3) ought to induce States to be cautious in the statements they make about international law; but these are counsels of perfection which are often disregarded in practice. 149 On the distinction between law-creating processes and law-determining agencies, see Schwarzenberger, International Law, third edition (1957), vol. 1, pp. 26–8.

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ignorance of the individuals constituting the various organs of different States does not prevent the practice of those organs giving rise to rules of customary law, any more than the possible bias or ignorance of Members of Parliament prevent Acts of Parliament being a source of English law (and, be it noted, a source which overrides the rules of common law enunciated by judges who are usually more impartial and more learned than Members of Parliament).150 In any case, differences between the practice followed by different organs of a State tend to disappear in time, as the views of one organ prevail over the views of others. From that moment onwards the practice of the State becomes consistent and thus capable of contributing to the development of customary law.

Is the Practice of Some States More Important than the Practice of Others? It often happens that one practice is followed by some States and a contrary practice is followed by other States. Suggestions are sometimes made that the practice of some States is more important than the practice of other States. The usual purpose of such suggestions is to take advantage of the principle that minor inconsistencies do not prevent the formation of customary law,151 and to argue that the practice of States which dissent from a particular rule is not sufficiently important to invalidate that rule. The author has already attacked such suggestions elsewhere,152 but it is worth adding a few further points. In the first place, such suggestions are made only by academic writers; they are not found in diplomatic correspondence or in the judgments of courts.153 In the North Sea Continental Shelf cases the International Court said that practice must include the practice of States whose interests are specially affected,154 and that the absence of practice by other States did not prevent the creation of a rule of customary law,155 but that is not the same as saying that the practice followed by the States whose interests

150 Practice marked by impartiality and expertise is not intrinsically more important than other practice; however, there is a chance (but not a certainty) that it will receive more publicity, and will be more widely imitated, than other practice (see below, p. 23, especially n. 2). [Editors’ note: page 589 of this Anthology]. 151 See above, p. 20. [Editors’ note: page 585 of this Anthology]. 152 Akehurst, A Modern Introduction to International Law, second edition (1971), p. 48. 153 D’Amato, The Concept of Custom in International Law (1971), pp. 65–7 and 96–7. 154 I.C.J. Reports, 1969, pp. 3, 42, 43. A less stringent requirement might apply in other cases; see above, p. 17. [Editors’ note: page 582 of this Anthology]. 155 I.C.J. Reports, 1969, pp. 3, 42, 176, 227, 229.

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were specially affected could give rise to a rule of customary law if a contrary practice had been followed by other States. Of course some States exercise a greater influence on the development of customary law than other States, but that is because the practice of some States is more frequent or better publicized than the practice of other States,  not ­because it is intrinsically more important than the practice of other States. A State whose interests are not affected by a particular issue is likely to contribute little or nothing to the practice on that issue.156 A State with worldwide interests, which maintains embassies in all other States, will have more ­opportunities to contribute to the development of rules concerning diplomatic immunities than a small State which can afford to maintain embassies only in two or three other States. The actions of a great power (especially if it publishes digests of its international practice) will probably receive more publicity than the actions of smaller powers, and are therefore more likely to be imitated by other States;157 but there is no certainty that such imitation will occur, and it is the presence or absence of imitation which affects the future development of customary law, not the fact that the original actions were taken by a great power. Indeed, some small powers may be suspicious of the great powers, and will therefore be more likely to imitate other small powers than to imitate the 156 Thus in the North Sea Continental Shelf cases, it was natural that land-locked States contributed little to the development of customary law concerning lateral delimitation of the continental shelf, because they had little interest in the question (cf. above, p. 22 n. 7). But this argument must be used with caution, because the interests of States are often wider than one might think; see above, p. 16, especially n. 6. [Editors’ note: page 581, note 114 of this Anthology]. 157 But publicity also depends on chance and on many other factors which have nothing to do with the relative size of the States concerned. For instance, an amusing or outrageous incident may receive disproportionate publicity, and a State which feels strongly about an issue will probably make its grievance heard more effectively than a State which regards an issue as trivial. See also D’Amato, The Concept of Custom in International Law (1971), pp. 96–7, for an interesting suggestion that States whose officials and writers have a high degree of sophistication in international law are more likely to be listened to than other States. Among the many factors which can induce one State to imitate another, one sometimes finds some subtle influences. For instance, when the United States and the United Kingdom made claims in the 1940s to the continental shelf (claims which might have been regarded as contrary to the freedom of the seas), other States quickly imitated those claims; they probably reasoned that the fact that such claims had been made by the two States which were the traditional defenders of the freedom of the seas indicated either that such claims were not really contrary to the freedom of the seas or else that the freedom of the seas was moribund, and they saw no point in being plus royalistes que le roi. If the claims had been initiated by the Soviet Union, a State not renowned for its devotion to the freedom of the seas, they would probably not have been imitated so readily.

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great powers. This illustrates the weakness of suggestions that the practice of great powers is invariably more important than the practice of small powers; such suggestions have obvious attractions for great powers, but their chances of being accepted by other powers are very low. Dissenting States A State can be bound by a rule of customary law even if it has never consented to that rule. There is no need to prove that the State is numbered among those States whose practice has given rise to the rule.158 There are many examples of international and national courts holding that a State is bound by a rule of customary law, even though the precedents supporting the rule did not involve the State in question.159 A State whose practice neither supports nor rejects a rule of customary law is bound by that rule of customary law. However, a State whose practice shows that it rejects the rule is in a different position. Once a rule of customary law has become binding on a State, the State cannot release itself from its obligations unilaterally; the rule remains binding until it is replaced by a new and different rule, and the development of a new rule cannot be achieved unilaterally but requires the participation of other States. The question therefore is whether a State can prevent a rule of customary law becoming binding on it in the first place. The answer appears to be yes, provided that the State opposes the rule in the early days of the rule’s existence (or formation) and maintains its opposition consistently thereafter.160 Opposition which is manifested for 158 North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 28, 130. 159 For details, see Verdross, Recueil des cours, 30 (1929), pp. 275, 296; Basdevant, ibid., 58 (1936), pp. 475, 488–9; D’Amato, The Concept of Custom in International Law (1971), p. 190. See also the citation of resolutions of the Pan-American Conference by the Nuremberg Tribunal: Cmd. 6964 (1946), p. 41. Contra, Lubeck v. Mecklenburg-Schwerin (1928), cited in Hackworth, Digest of International Law, vol. 1 (1940), p. 15, but this case can be distinguished on the grounds that it dealt with a prescriptive right over territory and not with genuine custom. Statements by some delegates of the Vienna Conference on the Law of Treaties appear to go against the statement in the main text above (Official Records, First Session, pp. 197– 201, and Second Session, pp. 63–72), but are obviously insufficient to undermine what was a well-established rule before the conference (cf. above, p. 19). Some delegates may have failed to distinguish between a State which has merely not participated in a practice and a State which has actively opposed it, although one cannot explain away the Venezuelan statement on such grounds (Official Records, First Session, p. 444, para. 49). 160 This result can be avoided if the ‘new rule’ can be presented as an interpretation of an old rule which is binding on the dissenting State. Cf. Judge Jessup’s argument in the South West Africa cases that General Assembly resolutions condemning apartheid merely interpreted South Africa’s obligations under the mandate and imposed no new obligations on

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the first time after the rule has become firmly established is too late to prevent the State being bound.161 Conversely, when early opposition is abandoned it loses its effectiveness to prevent the rule becoming binding on the State. The leading case which supports this view is the Fisheries case, where the International Court, after holding that the practice supporting the ten-mile bay rule was not sufficiently consistent to give rise to a rule of customary law, added: ‘In any event, the … rule would appear to be inapplicable as against Norway, in as much as she has always opposed any attempt to apply it to the Norwegian coast.’162 Attempts have been made to interpret this passage in a different sense, but they are not very convincing. For instance, D’Amato, who believes that general customary law is binding on dissenting States but that special custom163 is not, suggests that in the passage cited the Court was considering whether the ten-mile bay rule was valid as a special custom.164 But he is forced to admit that the preceding sentences of the Court’s judgment deal with the British argument that the ten-mile bay rule was a rule of general customary law; and it is scarcely conceivable that the Court would consider the very different issue of special custom in the next sentence without giving the slightest indication that it was changing the issue under discussion—all the more so since the issue of special custom had not been raised by the pleadings.165 Holloway suggests that ‘the Court seems to have based its ruling not merely on Norway’s refusal to accept the application of an alleged rule of general international law, but on the acquiescence of other States in Norway’s practice’.166 But the Court said nothing about acquiescence by other States in the context of the ten-mile bay rule, although seven pages later it did emphasize the lack of opposition by other States to Norway’s general system of delimitation (which raised wider issues than the delimitation of bays).167 This difference of South Africa: I.C.J. Reports, 1966, pp. 3, 441 (see also Judge Padilla Nervo at pp. 467 et seq.). This process is easier if the rule is couched in very general terms. 161 That is, unless other States acquiesce. The United Kingdom has for many years considered that the Scandinavian States have a prescriptive right to a four-mile territorial sea, in derogation from the three-mile rule traditionally upheld by the United Kingdom. Historic bays are another example of the same process at work. 162 I.C.J. Reports, 1951, pp. 116, 131 (italics added). 163 See below, p. 29. [Editors’ note: page 596 of this Anthology]. 164 D’Amato, The Concept of Custom in International Law (1971), p. 261. 165 Fisheries case, Pleadings, vol. 1, pp. 381 et seq., and vol. 2, pp. 428–9. See also Fitzmaurice, this Year Book, 30 (1953), pp. 1, 24–6, and Recueil des cours, 92 (1957), pp. 5, 99–100. 166 Holloway, Modern Trends in Treaty Law (1967), pp. 560–1. 167 I.C.J. Reports, 1951, pp. 116, 138.

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t­ reatment indicates that the Court did not regard acquiescence by other States as necessary to establish the inapplicability of the ten-mile bay rule to Norway (since Norway had always opposed the rule from an early stage of the rule’s existence), but did regard acquiescence as relevant in refuting the British contention that Norway’s general use of straight base-lines was contrary to rules of international law which were well established long before Norway started using straight base-lines. Moreover, the present author’s views about dissenting States are supported by other judgments168 and by other writers.169 It is true that in the North Sea Continental Shelf cases the International Court said that ‘customary law rules …, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour’.170 But the kind of exclusion which the Court apparently had in mind was exclusion occurring some time after the rule had started to develop—which, as we have already seen, occurs too late to prevent the rule being binding on the dissenting State (unlike opposition expressed ab initio). The Court’s dictum appears in the section of the judgment dealing with the argument by Denmark and the Netherlands that the development of a customary law rule of delimitation corresponding to Article 6 of the Geneva Convention on the Continental Shelf, which had begun before 1958, had been completed by the signing of that Convention; the Court replied, inter alia, that the signing of the Convention could not have had that effect, because the Convention allowed reservations to Article 6.171 In other words, the fact that States which had not previously objected to the equidistance principle were allowed 168 Asylum case, I.C.J. Reports, 1950, pp. 266, 336, per Judge Azevedo; South West Africa cases, I.C.J. Reports, 1966, pp. 3, 169–70, per Judge van Wyk (contra, semble, Judge Tanaka, p. 293); Fisheries Jurisdiction case, I.C.J. Reports, 1974, pp. 3, 92, per Judge de Castro; North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 229, 232 and 238, per Judge Lachs, and p. 247, per Judge Sørensen; The Antelope (1825), 23 U.S. 66, 122. 169 Fitzmaurice, this Year Book, 30 (1953), pp. 1, 26; Sørensen, Recueil des cours, 101 (1960), pp. 1, 45; Lauterpacht, International Law, vol. 1 (1970), p. 66; Verzijl, International Law in Historical Perspective, vol. 1 (1968), pp. 37–8; Thirlway, International Customary Law and Codification (1972), p. 110. Writers who believe that custom is an implied agreement between States (which includes all Soviet writers) go even further than the present author in arguing that a dissenting State is not bound.  Contra, Quadri, Diritto internazionale pubblico, second edition (1956), p. 93; Francioni, Rivista di diritto internazionale, 54 (1971), pp. 397, 416; and probably Kelsen, Principles of International Law (1952), pp. 316–17. 170 I.C.J. Reports, 1969, pp. 3, 38. 171 The Court’s views about reservations are open to doubt (see below, p. 48 [Editors’ note: page 620 of this Anthology]), and this doubt must also extend to the whole process of reasoning by which the Court reached those views. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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to ­exclude its application to them from 1958 onwards showed that the equidistance principle could not have become an established rule of customary law in 1958; if the equidistance principle had become an established rule in 1958, dissent expressed for the first time in or after 1958 would have been too late to prevent the rule being binding on the dissenting States. Dissent expressed during the initial period of a rule’s existence, however, is another matter, and one with which the Court did not deal. If a State were unable to opt out of a developing rule of customary law by dissenting from it ab initio, the creation of new rules of customary law would be surrounded by all kinds of logical and practical difficulties. If the dissent of a single State could prevent the creation of a new rule, new rules would hardly ever be created. If a dissenting State could be bound against its will, customary law would in effect be created by a system of majority voting; but it would be impossible to reach agreement about the size of the majority required, and whether (and, if so, how) the ‘votes’ of different States should be weighted.172 Moreover, States which were confident of being in a majority would adopt an uncompromising attitude towards the minority. (The absence of majority voting means that rules of customary law are often uncertain; but, when a consensus is reached, one can be fairly certain that it represents a workable compromise which would almost certainly not have been reached by majority voting.)173 Recognition of a right of dissent removes these difficulties. Unanimity is not required, nor is any kind of majority. Practice followed even by a small number of States can create new customary rules, provided the practice be consistent.174 Even inconsistency does not prevent the creation of new customary rules, if it takes the form of some States following one practice and other States following another practice, for in these circumstances it is possible to say that different rules of customary law have come into force among different groups of States.175 In short, dissent by some States does not prevent the creation of new customary rules by other States; it is merely that the dissenting States are not bound by the new rules. Unless dissenting States are numerous,176 they seldom maintain their dissent for long. Resolutions passed by large majorities at meetings of i­nternational 172 See above, pp. 22–3 [Editors’ note: page 588–590 of this Anthology], and Akehurst, A Modern Introduction to International Law, second edition (1971), p. 48. 173 This point is developed further by D’Amato, The Concept of Custom in International Law (1971), p. 29. 174 See above, pp. 18 and 20. [Editors’ note: page 583 and 585 of this Anthology]. 175 See below, pp. 28–31. [Editors’ note: page 595–599 of this Anthology]. 176 Special problems can arise in this event; see below, pp. 30–1. [Editors’ note: page 598–599 of this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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organizations will remind them how isolated they are. The views of writers, in so far as they reflect State practice, will be used to reinforce the opinion of the majority of States and to put pressure on the minority to conform. Moreover, the practical difficulties which the dissenting States are likely to experience in enforcing their rights may well cause them to change their attitude. An example may make this point clearer. Since 1930 a new customary rule has gradually developed, allowing coastal States exclusive fishing rights for twelve miles (or possibly more) from their shores, and replacing the old rule which limited them to three miles. The United Kingdom dissented from the new rule. In theory the United Kingdom remained entitled to fish in the same areas as before. In practice, however, the United Kingdom found it virtually impossible to enforce its rights (Iceland’s disregard of the International Court’s judgment in the Fisheries Jurisdiction case is a striking example). Meanwhile the seas three miles off the British coast continued to be fished by foreign trawlers, which increased in number as they were excluded from fishing grounds off other States’ coasts. The United Kingdom thus suffered all the disadvantages of upholding the three-mile limit, without enjoying any of the advantages in practice—a situation which eventually induced the United Kingdom to claim, with some exceptions, a twelve-mile exclusive fishing zone. New States According to traditional theory, new States are bound automatically by all rules of customary law in existence at the time when they become independent.177 This theory is not accepted by writers (especially writers from Communist countries) who believe that custom is an implied agreement between States and that new States are not bound without their consent.178 However, such writers are prepared to infer consent from entry into relations with other States unless the new State makes a reservation expressly withholding its consent. This qualification reduces the element of consent to a fiction; but, since such reservations are never made in real life, the practical result is the same as the result produced by the traditional theory. The attitude of the new States of Asia and Africa is somewhat lacking in clarity and consistency. At times they deny that they are bound by certain rules which harm their interests; but they 177 Ware v. Hylton (1796), 3 U.S. 199, 281; D’Amato, The Concept of Custom in International Law (1971), pp. 191–3. 178 Tunkin, Droit international public: problèmes théoriques (1965), p. 87; Bokor-Szegö, New States and International Law (1970), Chapter 2. See the devastating criticism of such views by Sørensen, Recueil des cours, 101 (1960), pp. 1, 46.

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accept other rules without question, as if those rules were binding on them automatically and not solely because the new States had consented to those rules. The traditional theory is in keeping with what has been said above about dissenting States. A State can ‘opt out’ of a rule of customary law by dissenting before the rule becomes well established, but not afterwards. Unfortunately for the new States, most rules of customary law were well established before the States concerned became independent; independence came too late for them to dissent effectively. From a legal point of view the problems caused by the emergence of a hundred new States are the same as the problems caused by the emergence of one.179 Politically, however, it may be difficult to persuade the new States to accept that they are bound against their will by customs created by old States, if the new States outnumber the old. The resentment felt by the new States in such a situation may be reduced if they realize that they are well placed to change the law from within. New customs followed by new States are not binding on old States, but, if the new customs receive a large degree of support, the remaining opposition will eventually disappear—as has already happened in the case of exclusive fishing zones.180 Even before that happens, the opposition of new States to old customs is bound to cast doubt on the customs; both old States and new States will try to avoid the uncertainties of customary law by entering into treaties to regulate their relationships, and new States, when negotiating such treaties (whether they be multilateral treaties for the codification and progressive development of international law, or ad hoc bilateral arrangements), will probably succeed in ensuring that the treaties go at least some way towards meeting their wishes. And the existence of treaties which depart from previously accepted views of customary law serves to undermine those views still further.181 Regional and Special Custom Customs which differ from those practised by the majority of States can grow up among the States of a particular region. Thus there can be customs peculiar 179 Fitzmaurice, International Relations, 5 (1975), pp. 743, 765–7. Contra, S.N. Guha Roy, American Journal of International Law, 55 (1961), pp. 863, 881 et seq. 180 See above, p. 27. [Editors’ note: page 594 of this Anthology]. 181 Thirlway, International Customary Law and Codification (1972), p. 5; Akehurst, A Modern Introduction to International Law, second edition (1971), pp. 35, 39, 50 and 118. And see below, pp. 51–2. [Editors’ note: page 624–625 of this Anthology].

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to Latin America182 or to other regions of the world.183 In theory at least, there could also be customs existing among groups of States which are linked to one another, not by geographical proximity, but by historical, racial, political, ­religious or other affinities—for instance, customs common to capitalist countries184 or to communist countries or to States in the British Commonwealth. Indeed, there is no logical reason why the States concerned need have anything in common apart from the fact that they follow a particular custom;185 and thus in the Right of Passage case the International Court applied a bilateral custom which existed only between India and Portugal.186 Since the States practising such customs are not necessarily within the same geographical ­region of the world, ‘regional custom’ is too narrow a term to describe such customs; it is proposed to use the term ‘special custom’ to cover regional customs and all other customs which are practised by limited groups of States. A special custom, by definition, is one which conflicts with general custom.187 As between the States bound by the special custom, the special custom prevails over the general custom—lex specialis derogat generali188 (unless the 182 Asylum case, I.C.J. Reports, 1950, pp. 266, 276–8. 183 See the decision of the Austrian Supreme Court reported in International Law Reports, 38, p. 133 (‘the general rules of international law applicable in Continental Europe’), and Judge Ammoun’s separate opinion in the Barcelona Traction case, I.C.J. Reports, 1970, pp. 3, 290–1. 184 In the Barcelona Traction case the International Court held that there was no general custom giving Belgium locus standi (I.C.J. Reports, 1970, pp. 3, 47). But it is submitted that Judge Gros was right in suggesting that the Court should also have considered whether there was a special custom among capitalist States giving Belgium locus standi (ibid., pp. 273–4 and 277; contra, Judge Ammoun, at p. 330). 185 In the Asylum case, I.C.J. Reports, 1950, pp. 266, 277–8, the International Court recognized that a custom might exist among all Latin-American States or only among some of them. 186 I.C.J. Reports, 1960, pp. 6, 39. 187 If a small number of States follow a custom and the practice of other States neither supports nor rejects that custom, that custom is binding on all States; see above, p. 18.  One of the advantages of recognizing the possibility of special customs is that it provides a means of explaining away inconsistencies which would otherwise be fatal to the creation of general custom (cf. above, p. 20 [Editors’ note: page 585 of this Anthology]). When the different practice followed inter se by States in a particular group is kept separate, the remaining practice may be consistent enough to create a general customary rule. 188 Right of Passage case, I.C.J. Reports, 1960, pp. 6, 44. See also Osakwe, American Journal of International Law, 66 (1972), pp. 596, 597, 599. Sereni, Diritto internazionale, vol. 1 (1958), p. 174, argues that a later general custom overrides an earlier special custom. But, in view of the presumption against changes in the law (see above, p. 19 [Editors’ note: page 584 of this Anthology]), this result would follow only if there were clear evidence that the parties to the special custom were applying the new general custom inter se and no longer applying the old special custom.

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general custom is jus cogens). As between a State bound by the special c­ ustom and a State not so bound, the general custom applies.189 Even if the State bound by the special custom is not bound by the general custom because it has consistently dissented from the general custom,190 its relations with the State not bound by the special custom are by definition not governed by the special custom—one cannot apply a custom to a State which is not bound by it. Instead, the relations between the two States are governed by the former general custom which existed before the new general custom came into being.191 A general custom is binding, not only on States whose practice created the custom, but also on States whose practice neither supports nor rejects the custom, and on new States which come into being after the custom has become well established—in short, it is binding on all States except those which consistently opposed the custom from its inception. A similar rule cannot apply to a special custom which has grown up among States which have nothing in common except their participation in the custom; in such cases the custom is binding only on the States whose practice supports the custom.192 However, Thirlway suggests that a custom which has grown up among some of the States belonging to a well-defined group is binding on all States in that group, except those which consistently opposed the custom from its inception.193 In some cases there may be difficulty in deciding which States form part of the group. For instance, would a custom existing among certain Spanish-speaking States in South America be binding on the Spanish-speaking States of Central America, or on States like Brazil and Guyana which are situated in South America but which are not Spanish-speaking? However, this is not a decisive reason for rejecting the view outlined above; there are borderline areas on the edge of many rules of law which produce uncertainty, but that does not prevent the rules working satisfactorily in other cases. If, as the author believes, Thirlway’s view is correct, it would produce workable results in many cases; for instance, 189 See the cases cited by Rousseau, Droit international public, vol. 1 (1970), pp. 322–3, and by Paul de Visscher, Recueil des cours, 136 (1972), pp. 1, 76–7. See also Cohen-Jonathan, Annuaire français de droit international, 7 (1961), pp. 119, 133–4, and Judge Alvarez’ dissenting opinion in the Asylum case, I.C.J. Reports, 1950, pp. 266, 293 (although he seems to contradict himself on p. 294). 190 See above, pp. 23–7. [Editors’ note: page 590–594 of this Anthology]. 191 See above, pp. 23–7, and below, p. 31. [Editors’ note: pages 590–594 and page 599 of this Anthology]. 192 A State can also be bound by virtue of State succession, although this may be limited to customs concerning rights which ‘run with the land’, as in the Right of Passage case, I.C.J. Reports, 1960, p. 6. 193 Thirlway, International Customary Law and Codification (1972), pp. 135–41, citing other writers.

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there would be no doubt that a custom existing among some S­ panish-speaking States in South America would be binding on all Spanish-speaking States in South America (except those which had consistently opposed it from its inception). It would certainly be very inconvenient if the rules governing the formation of special custom differed from the rules governing the formation of general custom; one would not know which set of rules to apply in cases where it was uncertain whether the custom under consideration was special or general. Such cases can easily arise. In an international community numbering only 150 States, the difference between a special custom and a general custom is bound to be less clear than it is in a national society consisting of many thousands or even millions of individuals. Where States are divided into two groups of roughly equal size, with one group following one custom and the other following another custom, who can say which is the general custom and which is the special custom? This is a problem with which the classical writers on international law were familiar. For instance, Grotius wrote: …the law of nations … has received its obligatory force from the will of all nations, or of many nations. I added ‘of many nations’ for the reason that, outside of the sphere of the law of nature, which is also frequently called the law of nations, there is hardly any law common to all nations. Not infrequently in fact, in one part of the world there is a law of nations which is not such elsewhere…194 And Vattel wrote that custom might exist among all nations or among some only.195 The problem may have been lost sight of during the nineteenth and early twentieth centuries, when the international community was small and homogeneous, but in the more heterogeneous international community of today the problem is very much alive. Different States have different views about the expropriation of foreign-owned property and about the width of the territorial sea and of exclusive fishing zones. Is there, in fact, any general custom on such topics,196 or are there only separate sub-systems of special custom? Recognition of separate sub-systems of special custom provides a solution to problems which might otherwise be almost insoluble. If one rule applies among one half of the international community and another rule applies 194 De iure belli ac pacis, book 1, Chapter 1, s. 14 (1). 195 The Law of Nations, preliminaries, para. 26. 196 Modern practice is obviously too inconsistent to create a customary rule, although a rule may have been created in the past when practice was more consistent; see above, pp. 20–1. [Editors’ note: page 585–586 of this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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among the other half, disputes between States in the first group can be settled by applying the first rule and disputes between States in the second group can be settled by applying the second rule; this is obviously more satisfactory than trying to find a general custom common to States in both groups. The difficulty arises when there is a dispute between a State in the first group and a State in the second group. If the States in the first group have always dissented from the custom practised by the States in the second group, and if the States in the second group have always dissented from the custom practised by the States in the first group, then neither group is bound by the custom of the other group. The only solution, unless one is prepared to admit that there are gaps in the law (something which international courts and tribunals have never been willing to do), is to go back in history to a time when a rule accepted by both groups of States did exist, and continue to apply that rule.197 This approach may seem artificial, since it may involve applying an outdated rule which neither group of States applies in its modern intra-group relations, and its results are likely to be uncertain, since the history of many areas of international law is veiled in obscurity;198 but it is probably less productive of artificiality and uncertainty than any other solution which might be suggested to what is one of the most difficult problems in international law. IV

Opinio Juris

The Traditional Approach Practice199 on its own is not enough to create a rule of customary law; it must be accompanied by evidence of opinio juris. The traditional approach to opinio juris was well summarized by the International Court in the North Sea 197 The same solution must be applied when one group of States continues to apply the old rule and another group of States applies the new rule; see Akehurst, A Modern Introduction to International Law, second edition (1971), p. 48, and Tunkin, Theory of International Law (1974), p. 125. Cf. above, p. 21, at n. 1. 198 Verzijl, International Law in Historical Perspective, vol. 1 (1968), pp. 400–34. For instance, the universality and passive personality principles of criminal jurisdiction, which are usually regarded by English-speaking States as contrary to international law, are supported by a practice in some continental countries which goes back for centuries and which is probably as old as the English practice of basing jurisdiction on the territorial principle (Akehurst, this Year Book, 46 (1972–3), pp. 145, 163). Who can confidently say what (if any) rule of customary law existed before this divergence of practice arose? 199 Throughout this section, references to practice, conduct, acts or actions include omissions, where appropriate. On the definition of practice generally, see above, pp. 1–11. [Editors’ note: page 561–574 of this Anthology].

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­Continental Shelf cases, where it said that the acts constituting the practice in question …must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it … The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g. in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.200 Statements of the same approach are found in other judgments of the Court201 and of its predecessor, the Permanent Court of International Justice.202 Moreover, Article 38 (1) (b) of the Court’s Statute, by providing that practice must be ‘accepted as law’, seems to require opinio juris, although it leaves the meaning of opinio juris uncertain.203 However, the traditional approach gives rise to difficulties. It seems to ­require that States must believe that something is already law before it can ­become law. Such a belief is by definition mistaken, and, although such mistakes are possible, they are likely to be rare. It is stretching credulity to suggest that all the many rules of customary law existing today originated on the basis of such mistakes. Moreover, such an approach leaves no room for the deliberate creation of new rules to meet new needs, in the future. It is not surprising, therefore, that various attempts have been made to ­reformulate the requirement of opinio juris, in order to escape from the difficulties caused by the traditional approach. 200 I.C.J. Reports, 1969, pp. 3, 44. 201 Asylum case, ibid., 1950, pp. 266, 277; Rights of United States Nationals in Morocco case, ibid., 1952, pp. 176, 200; Right of Passage case, ibid., 1960, pp. 6, 42–3 (see also the individual and dissenting opinions on pp. 63, 82, 90 and 120); Judge Dillard’s individual opinion in the Fisheries Jurisdiction case, ibid., 1974, pp. 3, 58. 202 The leading case is the Lotus case (1927), p.c.i.j., Series A, No. 10, pp. 28, 60 and 96–7. See also Judge Negulesco’s dissenting opinion in the European Commission of the Danube case (1927), p.c.i.j., Series B, No. 14, pp. 105–6 and 114. 203 Article 38 (1) (b) has been cited in support of the view that custom is an implied agreement (Tunkin, Droit international public: problèmes théoriques (1965), p. 79) and in support of the theory that custom is merely the discovery of pre-existing natural law (Kunz, American Journal of International Law, 47 (1953), pp. 662, 664).

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Writers Denying or Minimizing the Need for Opinio Juris The most radical approach is a denial of any requirement of opinio juris.204 In many cases courts have concluded from an examination of practice that a rule of customary law exists, without requiring or finding any evidence of opinio juris.205 However, such cases may simply represent an elision in judicial reasoning; although there are many cases which do not mention opinio juris, there are none which say expressly that it is unnecessary. Besides, there are many judgments of the Permanent Court of International Justice and of the International Court of Justice affirming the need for opinio juris.206 (These cases are not merely obiter dicta: the absence of opinio juris was fatal to the French claim in the Lotus case, and to the Netherlands and Danish claim in the North Sea Continental Shelf cases.) Some writers conclude that the cases conflict, and that the judge has an unfettered discretion to insist on, or dispense with, the requirement of opinio juris.207 But such an approach is useless as a means of predicting how the judge will decide a case, nor does it provide any solution for cases which never come to court (such cases are even more frequent in international law than in municipal legal systems, because States are often reluctant to accept the jurisdiction of international courts).208 204 Kelsen and Guggenheim came close to holding this view at one time; see below, p. 33 n. 2. [Editors’ note: page 601, note 207 of this Anthology]. It is sometimes argued that opinio juris can be inferred from the frequency or consistency of practice (Séfériades, Revue générale de droit international public, 43 (1936), pp. 129, 144; Asylum case, I.C.J. Reports, 1950, pp. 266, 336, per Judge Azevedo, dissenting; Ch. de Visscher, Theory and Reality in Public International Law (1957), p. 149 n. 29; Silving, Iowa Law Review, 31 (1946), pp. 614, 626). This view is tantamount to denying the need for opinio juris, because it eliminates opinio juris as a separate requirement for the creation of customary law, additional to the quantitative requirement of practice. See also below, p. 50. [Editors’ note: page 623 of this Anthology]. 205 Jenks, The Prospects of International Adjudication (1964), pp. 253–8. See also Fisheries Jurisdiction case, I.C.J. Reports, 1974, pp. 3, 24–6; Nottebohm case, ibid., 1955, pp. 4, 21–3; Lauritzen v. Government of Chile (1956), i.l.r. 23 (1956), pp. 703, 729–31; Lagos v. Baggianini (1953), i.l.r. 22 (1955), p. 533; and the cases on treaties cited below, p. 43 n. 8. 206 See above, pp. 31–2. 207 Kelsen, Revue internationale de la théorie du droit, 1 (1939), pp. 253, 264–6; Guggenheim, Traité de droit international public, first edition, vol. 1 (1953), pp. 46–8. Note that both Kelsen and Guggenheim altered their positions later; see below, p. 34. 208 Guggenheim spoke of ‘competent organs’, which would presumably include not only courts, but also the political organs of international organizations called upon to decide international disputes. Even so, not all disputes are brought before international organizations, and the problem of knowing how to predict decisions also remains. Guggenheim suggested two guidelines for his ‘competent organs’—the practice must be constant, and capable of being supported by a sanction. But, as the existence of comity proves, not all constant practice gives rise to rules of customary law. The existence of

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International law, like all legal systems, contains permissive rules as well as rules imposing obligations.209 If States habitually act in a particular way (e.g. by writing to one another on white paper), is this because international law requires them so to act, or because international law merely permits them so to act? The frequency or consistency of the practice provides no answer to this question; opinio juris alone can provide the answer. Moreover, opinio juris is also needed in order to distinguish legal obligations from non-legal obligations, such as obligations derived from considerations of morality, courtesy or comity.210 If opinio juris is abandoned, some other criterion for making such distinctions will be needed to take its place. Most authors who seek to eliminate opinio juris, in whole or in part, do not face this problem, although Quadri is an exception. He suggests that the difference between customary law and ­comity is based on the relative importance of the issue involved—de minimis non curat lex.211 This would explain why there is no rule of law requiring States to use white paper; but it does not explain why the enforcement of foreign judgments, which is important enough to merit the conclusion of treaties, is not important enough to be regulated by customary law.212 Nor does Quadri’s criterion provide any means of distinguishing between permissive rules of law and rules of law imposing duties. Some authors argue that consistent practice should be regarded as ­giving rise to a rule of law imposing a duty, in the absence of indications that the practice was not intended to be legally obligatory; instead of looking for opinio juris, a court should look for opinio non-juris.213 States do sometimes do things sanctions is also an unreliable test. Retorsion can follow breach of non-legal rules as well as breach of legal rules; and to say ‘reprisals can be imposed, therefore this is a rule of law’ is an inversion of the normal process of reasoning. ‘La sanzione … è … la conseguenza che deriva da un preliminare accertamento della giuridicità della regola, non la causa di tale giuridicità’: Francioni, Rivista di diritto internazionale, 54 (1971), pp. 397, 408. 209 See below, pp. 37–8. [Editors’ note: page 607–608 of this Anthology]. 210 The importance of opinio juris was not understood until fairly late in the nineteenth century (D’Amato, The Concept of Custom in International Law (1971), pp. 47–9; Rousseau, Droit international public, vol. 1 (1970), pp. 323–4). Until then, little distinction was made between public international law and rules which were common to the laws of different countries (jus gentium in the original Roman sense). But it is now realized that a similarity between the laws of different countries does not, in the absence of opinio juris, mean that there is any obligation on States under international law to preserve such a similarity (Rousseau, op. cit., pp. 332–3; Akehurst, this Year Book, 46 (1972–3), pp. 145, 212–16 and 225). 211 Recueil des cours, 113 (1964), pp. 237, 328. 212 Akehurst, this Year Book, 46 (1972–3), pp. 145, 232–40. 213 Lauterpacht, The Development of International Law by the International Court (1958), p. 380; Guggenheim, Traité de droit international public, second edition (1967), pp. 103–5; Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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while denying that they are under any legal obligation to do so, as when they pay compensation ex gratia.214 But such disclaimers are often not made. For instance, so far as the present author is aware, no State has ever said that it is not under a duty to use white paper for its diplomatic correspondence. A theory which is liable to force us to treat as legally obligatory a practice like that, which we all know instinctively not to be legally obligatory, is obviously unsound.215 Opinio Juris as the Consciousness of Moral or Social Needs The weakness of the traditional theory of opinio juris is that it appears to require that States should regard conduct as obligatory before it can become obligatory. One way round this difficulty has been suggested by a number of writers who define opinio juris as a belief that conduct is required by some extra-legal norm; such a belief, coupled with practice, creates a rule of customary law. Thus Le Fur defines opinio juris as ‘la conviction où sont les États de la nécessité d’observer la règle en question comme étant fondée sur l’idée de justice’.216 Scelle defines it as ‘le sentiment, ou tout au moins l’instinct, d’obéir à une nécessité sociale’.217 Kelsen, of all people, wrote in 1945 that opinio ­juris is not limited to a belief that conduct is required by law; ‘it is sufficient that the States consider themselves bound by any norm whatever’.218 Thirlway writes that ‘the requirement of opinio juris is equivalent merely to the need for the practice in question to have been accompanied by either a sense of

Judge Sørensen’s dissenting opinion in the North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 246–7. 214 For other examples, see British & Foreign State Papers, vol. 77, p. 940; Rights of United States Nationals in Morocco, I.C.J. Reports, 1952, pp. 176, 200. 215 Of course it is possible to turn this argument round the other way, and say that traditional ideas of opinio juris are unsound because it is often difficult to find positive indications that States regard as obligatory various practices which all international lawyers know instinctively to be obligatory. But the ease or difficulty of showing that practice is accompanied by opinio juris depends partly on one’s definition of practice; if abstract statements are included in the concept of practice (see above, pp. 4–8 [Editors’ note: page 564–569 of this Anthology]), finding indications of opinio juris becomes much easier, because such statements often contain an expression of opinio juris. 216 Recueil des cours, 54 (1935), pp. 5, 198. See also the individual opinion of Judge Wellington Koo in the Right of Passage case, I.C.J. Reports, 1960, pp. 6, 67. 217 Recueil des cours, 46 (1933), pp. 331, 434. See also Kopelmanas, this Year Book, 18 (1937), p. 148. 218 Kelsen, General Theory of Law and State (1945), p. 114. Similar views have occasionally appeared in McDougal’s thinking: McDougal and others, Law and Public Order in Space (1963), p. 117. See, generally, D’Amato, The Concept of Custom in International Law (1971), pp. 67–8. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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c­ onforming with the law, or the view that the practice was potentially law, as suited to the needs of the international community…’219 Traces of a similar approach can perhaps be discerned in McDougal’s emphasis on the part played by reasonableness in the development of customary law.220 Of course many customary rules reflect prevailing ideas of justice and social needs, but the overlap is not nearly as complete as the theories mentioned in the previous paragraph would seem to require. Practice accompanied by a sense of moral or social obligation does not always create a rule of customary law. The immorality of aggressive war was recognized centuries before its illegality. Most, if not all, developed countries give aid to poorer countries and would probably admit that they have a moral obligation to do so, but how many of them recognize a legal obligation to give aid? Conversely, there are many illogical distinctions and exceptions in customary law which have grown up for historical reasons, but which cannot be regarded as a response to moral or social needs. Thus, a State is liable for the acts of its political sub-divisions, except for their contractual debts; a neutral State must prevent its nationals supplying warships to a belligerent, but need not prevent them supplying tanks. The International Court has emphasized that moral considerations do not necessarily produce rules of law. In the South West Africa case the Court said: Throughout this case it has been suggested … that humanitarian considerations are sufficient in themselves to generate legal rights and ­obligations … The Court does not think so. It is a court of law, and can take account of moral principles only in so far as these are given a sufficient expression in legal form.221 Similarly, in the Haya de la Torre case the Court drew a distinction between legal obligations and considerations of courtesy and good neighbourliness.222 219 Thirlway, International Customary Law and Codification (1972), pp. 53–4. 220 D’Amato, The Concept of Custom in International Law (1971), pp. 215–29. 221 I.C.J. Reports, 1966, pp. 3, 34. The case concerned the interpretation of the mandate over South West Africa, but the Court’s statement is in sufficiently general terms to apply to the creation of customary law also.  In view of the criticism which the Court’s judgment aroused, it is worth pointing out that the Court’s dictum about humanitarian considerations is not contrary to its advisory opinions on South West Africa, in which it relied, not on abstract moral and humanitarian considerations, but on the purpose of the mandate, as it appeared from the text of the mandate and of the League Covenant.  Of course the Court does not close its eyes totally to humanitarian considerations (Corfu Channel case, I.C.J. Reports, 1949, pp. 4, 22); it is simply that humanitarian considerations are not invariably reflected in rules of law. 222 I.C.J. Reports, 1951, pp. 71, 83. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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D’Amato’s Theory of Articulation Professor D’Amato substitutes for opinio juris the requirement that the practice in question must be preceded or accompanied by the ‘articulation’ of a rule of customary law. ‘The articulation of a rule of international law … in advance of or concurrently with a positive act (or omission) of a State gives a State notice that its action or decision will have legal implications. In other words, given such notice, statesmen will be able freely to decide whether or not to pursue various policies, knowing that their acts may create or modify international law. The absence of prior notification that acts or abstentions have legal consequences is an effective barrier to the extrapolation of legal norms from patterns of conduct that are noticed ex post facto.’223 A rule can be articulated by a State, a court, an international organization or a writer, provided it receives sufficient publicity for States to have actual or constructive notice of it.224 D’Amato says that ‘a single writer or a single State may effectively articulate a new rule of international law’, provided that there is no articulation of a conflicting rule; where a conflicting rule has been articulated, the rule which has been articulated more often will prevail.225 At first sight this echoes his views about the quantity of practice needed to establish a customary rule,226 but it is open to suspicion. For instance, when Japan adopted the western calendar in 1872, she said she was doing so in response to a duty imposed by international law.227 So far as the present author is aware, no State has ever articulated the view that the western calendar is permitted but not required by international law; that view has been taken for granted, but never stated expressly. On  D’Amato’s reasoning, all States which have used the western calendar since 1872 have been confirming a rule of international law making such use ­obligatory—which is manifestly absurd. In order to establish a rule of customary law requiring particular conduct, it is not necessary to prove that all or even most of the instances of such conduct have been accompanied by acknowledgments of its obligatory character; but the view that such conduct is required (and not merely permitted) does become questionable when the instances of such conduct infinitely outnumber statements that it is obligatory.228

223 D’Amato, The Concept of Custom in International Law (1971), p. 75. 224 Ibid., pp. 85–7. 225 Ibid., pp. 76–7. 226 See above, pp. 13–14. [Editors’ note: page 576–578 of this Anthology]. 227 Jennings, this Year Book, 34 (1958), pp. 334, 353. 228 For this reason the author cannot share the view expressed by Wolfke, Custom in Present International Law (1954), pp. 155–6, that the requirement of opinio juris becomes progressively less exacting as practice becomes more abundant. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Statements, not Beliefs Yet, although D’Amato’s theory can be criticized on matters of detail, it does recognize the essential truth that what matters is statements, not beliefs. Practice creates a rule of customary law that particular conduct is obligatory, if it is accompanied by statements on the part of States229 that such conduct is obligatory. This is not really very different from the traditional view of opinio juris. The traditional view seeks evidence of what States believe; the present author prefers to look for statements of belief by States. The similarity between the two views is worth stressing; the traditional view is open to objections,230 but the judicial support for the traditional view is so strong that the traditional view ought not to be modified except to the minimum degree necessary to meet these objections. The traditional view implies, even if it does not state expressly, that opinio juris consists of the genuine beliefs of States. It is submitted, however, that a statement by a State about the content of customary law should be taken as opinio juris even if the State does not believe in the truth of the statement. It will often be impossible to prove that a State did not believe that its statement was true;231 however, even if such proof is forthcoming, it does not detract from the value of the statement. For instance, the Truman Proclamation of 1945 claimed that international law gave a coastal State exclusive rights over its continental shelf. It makes no difference whether the United States genuinely believed that international law gave such rights to the coastal State or not; the important thing is that the United States said that international law gave such rights to the coastal State, and other States concurred. This is the main way in which customary law changes. States assert that something is already a rule of international law. Maybe the States concerned have made a genuine mistake, maybe they know that their statements are false—all that is irrelevant. If other States acquiesce, a new rule of customary 229 Or on the part of other bodies whose practice is capable of giving rise to customary law (see above, p. 11 [Editors’ note: page 573 of this Anthology]). However, despite D’Amato’s views to the contrary (see above, n. 2 [Editors’ note: note 224 of this Anthology]), statements by writers that particular conduct is obligatory must be viewed with suspicion if there are no similar statements by States; the practice of individuals, such as writers, cannot normally create customary law. Although the United States Supreme Court relied to some extent on the views of writers as evidence of opinio juris in The Paquete Habana (1900), 175 U.S. 677, 700–8, it did also find other evidence of opinio juris (e.g. the protest by the French government mentioned on p. 692 and the judgments of French courts mentioned on p. 695). 230 See above, p. 32. [Editors’ note: page 600 of this Anthology]. 231 The difficulty of ascertaining the true beliefs of States has been well described by D’Amato, The Concept of Custom in International Law (1971), pp. 35–9. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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law comes into being. The practice of States needs to be accompanied by (or consist of) statements that something is already law before it can become law; practice does not need to be accompanied by a genuine belief that it is already law.232 It is important to note, however, that opinio juris is to be found in assertions that something is already law, not in statements that it ought to be law, or that it is required by morality, courtesy, comity, social needs, etc. A statement that something is morally obligatory may help to create rules of international morality; it cannot help to create rules of international law. Duties and Liberties Much of the confusion surrounding the whole topic of opinio juris is caused by the assumption made by many authors that all rules of international law are framed in terms of duties. But that is not so; in addition to rules laying down duties, there are rules which give a State a liberty to act in a particular way, without making such conduct obligatory—permissive rules, as the Permanent Court called them in the Lotus case.233 The way in which opinio juris can be revealed varies according to the nature of the rule in dispute. In the case of a permissive rule, it may be possible to find express statements that States are permitted to act in a particular way. But express statements are not necessary to establish a permissive rule; a claim that States are entitled to

232 See also Akehurst, A Modern Introduction to International Law, second edition (1971), pp. 46–7 and 306; and cf. above, p. 5. 233 See Dias, Jurisprudence, third edition (1970), Chapter 9. Liberty on the part of one State need not be coupled with a duty on the part of other States (e.g. concurrent jurisdiction), but sometimes it is; thus, when a State claims an exclusive right over its continental shelf, it is in effect claiming that it is permitted to exploit its continental shelf and that other States are under a duty not to exploit its continental shelf. The duty/right and liberty/no-right relationships are both static. There are also dynamic relationships (the power/liability relationship and the immunity/no-power relationship) which are concerned with the creation, alteration or extinction of legal relationships. Dynamic relationships have seldom been considered by international tribunals; thus the issue in the Nottebohm case, which might have been classified as the existence or nonexistence of Liechtenstein’s power to confer its nationality, was analysed by the International Court in terms of Guatemala’s alleged duty to recognize Nottebohm’s Liechtenstein nationality (I.C.J. Reports, 1955, pp. 4, 20). A priori, it is suggested that a power/liability relationship, like a liberty/no-right relationship, can be inferred from action by one State and acquiescence by another (thus, if State A confers its nationality on X and claims on his behalf against State B, and if State B raises no objections to A’s locus standi, we can infer that A had power to confer its nationality on X), but that an immunity/no-power relationship (e.g. a limitation on a State’s power to confer nationality), like a right/duty relationship, must be evidenced by express statements. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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act in a particular way can be inferred from the fact that they do act in that way.234 Claims that States are entitled to act in a particular way, whether they are made expressly or inferred from the conduct of States, must meet with acquiescence (i.e. lack of protests) from other States whose interests are affected, since international law governs the relations between States and not the position of a single State in isolation from other States.235 In the case of rules imposing duties, it is not enough to show that States have acted in the manner required by the alleged rule, and that other States have acquiesced in such action. There must be statements by States that they regard such action as obligatory, not voluntary. Such statements may take the form of a declaration in abstracto that all States have a duty to act, an acknowledgment by a State that it has a duty to act, or an assertion by a State that another State has a duty to act236 (such an assertion is usually contained in a protest against action (or a claim to be entitled to act) by the other State which is at variance with the rule in question). Protests and Acquiescence It will be apparent from what has been said above that protests and acquiescence play a central role in the formation of customary international law.237 Protest is the opposite of acquiescence, just as a rule that States are under a duty not to do something is the opposite of a permissive rule that they are at liberty to do it. If actions by some States (or claims that they are entitled to act) encounter acquiescence by other States, a permissive rule of international 234 Nuclear Tests case, I.C.J. Reports, 1974, pp. 253, 305, per Judge Petrén. This inference can of course be negatived by an express statement; thus, if a State justifies its action as a reprisal, the inference must be that the action would in normal circumstances be illegal. 235 But if one State claims that it has a right to act and the other State denies that right but permits the first State to act ex gratia, the claim will have little authority as a precedent in the future. If there is no statement claiming or recognizing a right to act, it may be dangerous to infer opinio juris from one or two isolated acts; the inference becomes stronger as the acts grow in number. See above, p. 12 n. 6. [Editors’ note: page 575 note 82 of this Anthology]. 236 But one must also consider how the other State reacts to this claim. If it fails to act, or if it denies that it has a duty to act, the claim will have little authority as a precedent in the future. The practice of States may remain unchanged, but statements that conduct is obligatory, which accompanied the conduct in the past, may be replaced in time by statements that it is not obligatory, or vice versa. It is in this way that rules of law turn into rules of comity and vice versa. However, such changes cannot be brought about by one group of States against the opposition of another group; cf. above, pp. 18–19 and 20. 237 See also MacGibbon, this Year Book, 33 (1957), p. 115; Suy, Les actes juridiques unilatéraux en droit international public (1962), pp. 215–67.

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law comes into being; if they encounter protests, the legality of the actions in dispute is, to say the least, doubtful. The motives of the States concerned are irrelevant. For instance, State A may think that State B’s action is contrary to international law but may refrain from protesting because it does not want to jeopardize the conclusion of a trade agreement with State B. Or again, State A may vote for a draft resolution tabled by State B in the General Assembly asserting that something is a rule of international law, not because State A agrees with the statement in the resolution but because it wishes to curry favour with State B. In such cases State A must be treated as if it shared State B’s views on the legal issue involved; what counts is what State A says or refrains from saying in public, not what State A secretly believes.238 It is always necessary to consider how States react to an act (or claim to be entitled to act) by another State. Consequently acts or claims by one State which other States could not have been expected to know about carry very little weight, and no conclusion can be drawn from failure to protest against such acts or claims.239 Protests are not only evidence of opinio juris; they also form part of the quantitative element of State practice.240 When acts or claims by some States encounter protests from other States, the acts (or claims) and protests often cancel each other out, with the result that no rule of customary law comes into being. Thus in the Fisheries case Judge Read said: ‘… it is necessary to rule out seizures made by Norway at and since the commencement of the dispute. They met with immediate protest by the United Kingdom and must therefore be dis-regarded.’241 Protests can themselves create a rule of customary law, but only if the acts or claims protested against are withdrawn or not repeated, if the number of protests greatly outnumbers the acts or claims protested against, or if the States protesting greatly outnumber the States responsible for the acts or claims in dispute—otherwise practice is too inconsistent to give rise to a customary

238 It is possible that the position adopted by State A would have no legal effects if State A had been intimidated by the threat or use of force by State B, or if its officials had been bribed or coerced by State B (by analogy from the rules governing nullity of treaties). But these are extreme cases which are unlikely to happen often in practice. 239 In the Fisheries case the Court emphasized that the United Kingdom must have known of the Norwegian system of baselines: I.C.J. Reports, 1951, pp. 116, 138–9. 240 See above, p. 10. [Editors’ note: page 572 of this Anthology]. 241 I.C.J. Reports, 1951, pp. 116, 191.

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rule. A small amount of inconsistency does not prevent a rule of customary law coming into existence, but a large amount does.242 In determining the relative weight to be attached to acts or claims and to protests against such acts or claims, it is necessary to take into account ‘the number of protests, the vehemence of the protests, the subsequent actions of the parties, the importance of the interests affected and the effluxion of time’.243 Thus isolated protests in the face of repeated claims are probably insufficient to prevent the growth of a customary rule based on such claims. On the other hand, isolated acts or claims which conflict with a well-established rule of international law are insufficient to create a contrary rule,244 and so, strictly speaking, it is unnecessary to protest against such acts or claims in order to deprive them of their law-creating effect, since they have no law-­creating effect in the first place.245 The number and vehemence of the protests needed to create a customary rule (or to prevent acts and claims creating a contrary rule) vary according to the extent to which the acts or claims affect the interests of other States. If an act affects the interests of only one State, protest by that State will carry great weight; if it affects the interests of many States, protests by a small number of those States will carry little weight. No hard and fast line can be drawn between States whose interests are affected and States whose interests are not affected; rather, the interests of different States are affected to varying degrees, and acquiescence by a State whose interests are greatly affected is more significant than acquiescence by a State whose interests are only slightly affected.246 The extent to which a State’s interests are affected varies according to the nature of the act concerned. Failure to protest against an assertion in abstracto about the content of customary law is less significant than failure to protest against concrete action taken by a State in a specific case which has an immediate impact on the interests of another State. Failure to protest against the enactment of a law is less significant than failure to protest against its application. Even so, failure to protest against the enactment of a law does have some significance;247 the fact that States often protest against the enactment

242 See above, p. 20. [Editors’ note: page 585 of this Anthology]. 243 O’Connell, this Year Book, 45 (1971), pp. 1, 63. 244 See above, p. 19. [Editors’ note: page 584 of this Anthology]. 245 Cf. Lauterpacht, this Year Book, 27 (1950), pp. 376, 397–8. 246 Cf. Fisheries Jurisdiction case, I.C.J. Reports, 1974, pp. 3, 58, per Judge Dillard. 247 Despite Judge Loder’s statement to the contrary in the Lotus case (1927), p.c.i.j., Series A, No. 10, p. 34.

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of laws248 suggests that States believe that such protests have some value, and in the Lotus case the Permanent Court emphasized that the enactment of laws claiming jurisdiction under the objective territorial principle had not provoked protests from other States.249 The view that protests form part of the quantitative element of State practice has been challenged by D’Amato. According to him, a protest can a­ rticulate a rule of international law,250 but it cannot be cited as part of the quantitative element of State practice. Consequently protests are not enough to prevent a new rule of customary law arising from other States’ physical acts. The precedent-creating effect of such physical acts can only be nullified by contrary physical acts on the part of States which are aggrieved by the physical acts of other States.251 If D’Amato’s view were accepted in practice, there would be disastrous consequences for world public order. A state which wished to prevent the formation of a rule allowing overflight of its territory by artificial satellites could no longer achieve its object by making protests; it would have ‘to interfere with the satellite’s flight’ or ‘retaliate in some other way against the Soviet Union unless she ceased to launch sputniks’.252 Thus a polite difference of opinion would be converted into a major international dispute. Moreover, D’Amato’s view is inconsistent. A protest ‘by all or nearly all the other States … may amount to a consensus, … which … would be effective evidence of international law’,253 but protests by individual States would not have similar effects. Protests can prevent the formation of special custom but not of general custom,254 despite the fact that the difference between special custom and general custom is often hard to discern in practice.255

248 MacGibbon, this Year Book, 30 (1953), pp. 293, 299–305; Wortley, Expropriation in International Law (1959), pp. 72, 74–5. Cf. McNair, International Law Opinions (1956), vol. 2, p. 153. 249 p.c.i.j., Series A, No. 10, p. 23. 250 D’Amato, The Concept of Custom in International Law (1971), p. 86; cf. above, pp. 35–6. 251 Ibid., pp. 89 and 174. 252 Ibid., p. 89 n. 21. Note that this gives an unfair advantage to great powers. A small power which would have no hesitation about protesting to the Soviet Union would probably not dare to resort to physical action against the Soviet Union. Moreover, D’Amato implies that even physical acts by an aggrieved State would have no legal significance unless they succeeded in preventing overflight by satellites. In practice, therefore, a State could prevent the formation of a rule permitting overflight only by shooting down satellites. 253 Ibid., p. 102 n. 34. Cf. above, p. 7. 254 Ibid., pp. 261–2. 255 Cf. above, p. 30.

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Finally, D’Amato’s view receives no support from the judgments of international courts.256 In the Lotus case the Permanent Court said: …the Court feels called upon to lay stress upon the fact that it does not appear that the States concerned have objected to criminal proceedings in respect of collision cases before the courts of a country other than that the flag of which was flown, or that they have made protests … This fact is directly opposed to the existence of a tacit consent on the part of States to the exclusive jurisdiction of the State whose flag is flown, such as the Agent of the French government has thought it possible to deduce from the infrequency of questions of jurisdiction before criminal courts. It seems hardly probable, and it would not be in accordance with international practice, that the French government in the Ortigia/Oncle-Joseph case and the German government in the Ekbatana/West-Hinder case would have omitted to protest against the exercise of criminal jurisdiction by the Italian and Belgian courts, if they had really thought that this was a violation of international law.257 In the Fisheries case the International Court emphasized the absence of protests by other States against Norway’s use of straight baselines.258 It is not clear whether the Court regarded this as a case of general custom or as a case of 256 It may be that protests carry greater weight if they are backed up by action (cf. above, p. 40 n. 1); but that is a difference of degree, not of kind. Cf. also p. 2 n. 1 and p. 9, above. In diplomatic correspondence States treat the presence or absence of protests on previous occasions as important in determining the content of international law: McNair, International Law Opinions (1956), vol. 2, p. 153; Foreign Relations of the United States (1887), p. 837. 257 p.c.i.j., Series A, No. 10, p. 29. See also the dissenting opinion of Judge Altamira on p. 103, and of above, p. 40 n. 6. Note that the Court (and Judge Altamira) rejected Judge Loder’s view that consent must not merely be tacit, but, in most cases, express’ (ibid., p. 60). In the Elida case (1915) the German Supreme Prize Court held that extension of the territorial sea is valid only if it is recognized by other States: ‘a mere failure to object, however, is not identical with a positive concurrence of nations’. But the Court was not consistent, because it recalled that at a conference in 1882 Germany’s representative … declared, without meeting with opposition, that by the term “coastal waters” a zone of three miles was to be understood’ (American Journal of International Law, 10 (1916), pp. 916, 918; italics added). See also the equivocal remarks by Sir Charles Russell in his argument before the Tribunal in the Behring Sea arbitration, cited by Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), p. 106; and see, generally, MacGibbon, this Year Book, 33 (1957), pp. 115, 138–9. 258 I.C.J. Reports, 1951, pp. 116, 136–9. See also p. 39 n. 4, above. [Editors’ note: page 609, note 241 of this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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­special custom,259 but a few pages earlier the Court said that ‘several States have deemed it necessary to follow the straight baselines method and … they have not encountered objections of principle by other States’260 and this apparently involved an issue of general custom. Moreover, subsequent practice has interpreted the Fisheries case as laying down a precedent of general applicability, and not merely a prescriptive rule in favour of Norway alone. In the Fisheries Jurisdiction case several judges emphasized the existence of protests as a strong argument against the legality of exclusive fishing zones exceeding twelve miles.261 The judges who took a contrary view did not follow D’Amato’s approach and regard protests as incapable of preventing the formation of a custom; instead, they emphasized that some other States had not protested.262 Finally, in his dissenting opinion in the North Sea Continental Shelf cases Judge Lachs said: The first instruments that man sent into outer space traversed the air space of States and circled above them in outer space, yet the ­launching States sought no permission, nor did the other States protest. This is how the freedom of movement into outer space, and in it, came to be established and recognized as law within a remarkably short period of time… To postulate that all States, even those which initiate a given practice, ­believe themselves to be acting under a legal obligation is to resort to a ­fiction—and in fact to deny the possibility of developing such rules. For the path may indeed start from voluntary, unilateral acts r­elying on the confident expectation that they will find acquiescence or be emulated…263 V

Treaties and Custom

Can treaties create customary law? If States habitually make treaties undertaking certain obligations towards one another, can those treaties be cited as 259 Cf. above, pp. 28–9. D’Amato, The Concept of Custom in International Law (1971), pp. 261–2, interprets it as a case of special custom. However, the ambiguity of the Court’s judgment may suggest that the Court saw no essential difference between general and special custom, at least as far as the process of creating custom was concerned. 260 I.C.J. Reports, 1951, pp. 116, 129. 261 I.C.J. Reports, 1974, pp. 3, 47, 58, 161. Judge Dillard also emphasized the lack of protests against claims not exceeding twelve miles (ibid., p. 58). 262 Ibid., p. 47. 263 I.C.J. Reports, 1969, pp. 3, 230, 231. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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authority for the existence of such obligations in customary law? Professor D’Amato gives an almost unqualified ‘yes’ to these questions, and cites many cases in support of his view.264 But not all the cases support his view. In the Lotus case the Permanent Court dismissed the treaties cited by France as irrelevant, but only after it had said: ‘it is not absolutely certain that this stipulation [found in several treaties] is to be regarded as expressing a general principle of [customary] law.’265 The report of the Committee of Jurists on the Aaland Islands stated that ‘the recognition of this principle [of self-determination] in a certain number of treaties cannot be considered as sufficient to put it upon the same footing as a positive rule of the law of nations’.266 In The State (Duggan) v. Tapley the Irish Supreme Court said that it ‘does not accept the view that a principle of [customary] international law can be established in this way [by citing treaties]—at least where the principle sought to be established is contrary to, or qualifies, an existing rule’.267 In West Rand Central Gold Mining Co. v. The King, Lord Alverstone said: ‘the reference which … writers … make to stipulations in particular treaties as evidence of international law is as little convincing as the attempt … to establish a trade custom … by adducing evidence … of particular contracts … We have already pointed out how little value particular stipulations in treaties possess as evidence of that which may be called international common law.’268 Moreover, as we shall see, many cases regard treaties as authority for customary law only in certain circumstances, which clearly suggests that in other circumstances treaties are not authority for customary law. The present author has defined State practice in very wide terms,269 and has no difficulty in regarding treaties as State practice. But State practice, in order to give rise to customary law, must be accompanied by opinio juris, i.e. by a belief (or, rather, a statement) by States that certain conduct is required or permitted by customary law.270 Does the requirement of opinio juris apply to the creation of customary rules by treaties, or does the relationship between 264 D’Amato, The Concept of Custom in International Law (1971), Chapter 5. Not all the cases he cites are relevant: thus cases in which a treaty is interpreted by comparing its provisions with other treaties (op. cit., pp. 119–20) have nothing to do with customary law. 265 p.c.i.j., Series A, No. 10, p. 27. 266 League of Nations, Official Journal, Special Supplement No. 3 (1920), p. 5. 267 i.l.r. 18 (1951), pp. 336, 338–9. 268 [1905] 2 K.B. 391, 402, 405. 269 See above, p. 10. [Editors’ note: page 572 of this Anthology]. 270 In the case of a permissive rule, opinio juris need not take the form of an express statement; a claim to be entitled to act in a particular way can be inferred from the fact that States do act in that way (cf. above, p. 38). However, the fact that States are permitted by treaty to act in a particular way does not necessarily justify the inference that States claim to be entitled to act in that way in the absence of a treaty. But see below, p. 44, concerning Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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t­reaties and custom disprove (or constitute an exception to) the present author’s views about opinio juris?271 There have been cases in which courts have inferred customary rules from treaties without mentioning opinio juris.272 However, such cases may simply represent an elision in judicial reasoning; although there are many cases which do not mention opinio juris, there are none which say expressly that it is unnecessary. Moreover, the need for opinio juris is clearly stated in the North Sea Continental Shelf cases, where Denmark and the Netherlands argued that a customary rule, corresponding to Article 6 of the Geneva Convention on the ­Continental Shelf, had ‘come into being since the Convention, partly because of its [the Convention’s] own impact, partly on the basis of subsequent State practice’. The Court commented that this argument implied that a rule inspired by A ­ rticle 6 ‘has … passed into the general corpus of international law, and is now accepted as such by the opinio juris’.273 In order for this to happen, said the Court, ‘State practice … should … have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved’.274 Denmark and the Netherlands invoked, inter alia, various bilateral treaties for the delimitation of the continental shelf as evidence that the rule laid down in Article 6 of the Convention had become a rule of customary law. The Court

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treaties claiming a right to take action affecting third parties. [Editors’ note: page 616 of this Anthology]. A similar problem arises, regardless of the way in which opinio juris is interpreted. D’Amato, The Concept of Custom in International Law (1971), pp. 161–2, says that treaties articulate a norm of international law, which appears to bring his views about treaties into line with his general theory of articulation (cf. above, p. 35). The fatal flaw in this reasoning is that treaties do not, in most cases, articulate the norm as one of customary law (unless one assumes that laying down a rule in a treaty automatically means articulating the rule as a norm of customary law—but that is to assume without argument the very thing which D’Amato sets out to prove). Fisheries Jurisdiction case, I.C.J. Reports, 1974, pp. 3, 26; Nottebohm case, ibid., 1955, pp. 4, 22–3; Lauritzen v. Government of Chile (1956), i.l.r. 23 (1956), pp. 703, 729–31; Lagos v. Baggianini (1953), i.l.r. 22 (1955), p. 533; Società Arethusa Film v. Reist (1955), ibid., p. 544; Whiteman, Digest of International Law, vol. 6 (1968), pp. 569, 570; ibid., vol. 3 (1964), p. 934 (for a contrary view, see Berber, Rivers in International Law (1959), pp. 128–59). The same thing can happen with other forms of State practice; see above, p. 32. [Editors’ note: page 599 of this Anthology]. In the Barcelona Traction case the need for opinio juris was mentioned by Judge Ammoun (I.C.J. Reports, 1970, pp. 3, 305–6), but not by Judge Wellington Koo (I.C.J. Reports, 1964, pp. 6, 63) or Judge Gros (I.C.J. Reports, 1970, pp. 277–8). The Court contented itself with observing that the treaties invoked were inconsistent and irrelevant (I.C.J. Reports, 1970, p. 40). I.C.J. Reports, 1969, pp. 3, 41. Ibid., p. 43. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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held that the treaties showed nothing of the sort, because they were not accompanied by opinio juris. …the parties agreed to draw … the boundaries according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so.275 The better view would appear to be that treaties, like other forms of State practice, must be accompanied by opinio juris in order to create customary law. It is now proposed to examine the ways in which the requirement of opinio juris can be satisfied in the case of treaties. Treaties Providing for Action Affecting Third Parties Treaties sometimes provide for action against third parties or their nationals. The legal justification of such action cannot be found in the treaty, since treaties cannot take away the rights of third parties. By entering into such treaties, the contracting parties are in effect claiming that customary law permits them to take such action vis-à-vis other States, and, if other States do not protest against the conclusion or execution of such treaties, one is entitled to infer that there is a permissive rule of international law authorizing such action. Examples may be found in treaties providing for the prosecution of nationals of third States for crimes committed outside the territory of the contracting States.276 Similarly, the fact that Article 6 of the North Atlantic Treaty of 1949 provides for collective self-defence in the event of an ‘attack … on the vessels or aircraft … of any of the parties’ suggests that the customary right of selfdefence277 can be exercised in the event of attacks on ships or aircraft as well as in the event of attacks on territory. When the treaties setting up the Armed Neutralities of 1780 and 1800 provided for reprisals by all the parties against a belligerent which interfered unlawfully with the ships of one of the parties, they were in effect claiming that customary law permitted collective reprisals 275 Ibid., pp. 44–5; and see above, p. 32 n. 1. 276 Akehurst, this Year Book, 46 (1972–3), pp. 145, 160–2. In Article 3 of the Washington Convention of 6 February 1922 the contracting parties claimed the power to try individuals acting on behalf of any State if they broke the rules laid down in the Convention for the protection of merchant ships in wartime. 277 The fact that Article 51 of the United Nations Charter speaks of self-defence as an ‘inherent right’ suggests that the right still exists under customary law as well as by virtue of Article 51 (although the circumstances in which it may be exercised are probably limited by Article 51).

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in such circumstances.278 In the Wimbledon case the Permanent Court pointed out that no one had ever alleged that the neutrality of Turkey or the United States had been violated by the performance of their obligations under the treaties governing the Suez and Panama canals, and concluded that Germany’s customary law duties as a neutral nation would not be violated by permitting the passage of foreign ships carrying contraband through the Kiel canal, as required by Article 380 of the Treaty of Versailles;279 in other words, the treaties governing the Suez and Panama canals claimed in effect that customary rules of neutrality did not forbid the passage of ships carrying contraband, and this claim had created or confirmed a permissive rule of customary law because it had not been challenged by belligerent States which were not parties to the treaties.

Statements in a Treaty or in the Travaux Préparatoires about Customary Law Evidence of opinio juris may take the form of statements about customary law in the text of a treaty or in the travaux préparatoires.280 The most obvious example of such statements is a statement that some or all of the provisions of the treaty codify (or are declaratory of) existing customary law, but the statement can also take other forms. For instance, in the North Sea Continental Shelf cases Denmark and the Netherlands argued that the development of a customary law rule of delimitation, corresponding to Article 6 of the Geneva Convention on the Continental Shelf, which had begun before 1958, had been ­completed by the signing of that Convention; however, they were unable to cite any statement in the Convention or in the travaux préparatoires which supported their argument, and indeed the Court said that the statements in the travaux préparatoires indicated that Article 6 had been ‘proposed … with considerable hesitation, somewhat on an experimental basis, at most de lege ferenda, and not at all de lege lata or as an emerging rule of customary international law’.281 When a treaty applies a rule to the facts of a particular case, there may be statements in the treaty or in the travaux préparatoires that the rule 278 Akehurst, this Year Book, 44 (1970), pp. 1, 3–4. 279 p.c.i.j., Series A, No. 1, pp. 26, 28. 280 Such statements constitute State practice and evidence of opinio juris even if the treaty never comes into force; the same is true of statements made during negotiations which do not succeed in producing a treaty. See Baxter, Recueil des cours, 129 (1970), pp. 25, 99– 101; above, pp. 4–5; below, p. 46 n. 2 and p. 49. Note that many of the cases cited on p. 46, below, concerned treaties which had not entered into force at the time of the case in question. 281 I.C.J. Reports, 1969, pp. 3, 38. Cf. Judge Morelli on p. 197.

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in question is a rule of customary law.282 Alternatively, a treaty may contain a recital that something is a rule of customary law, and then go on to provide machinery for the enforcement of the rule,283 or to make exceptions to the rule;284 in such cases the recital is authority for the content of customary law, but the rest of the treaty is not. Finally a treaty which provides for the waiver of rights or obligations furnishes authority for the view that the rights or obligations had some foundation.285 Treaties codifying customary law have frequently been cited as authority for customary law in judgments and State practice. This is particularly true of certain provisions of the thirteenth Hague Convention of 1907,286 of the Geneva Conventions of 1958 on the Law of the Sea,287 of the Vienna Convention on Diplomatic Relations of 1961,288 of the Vienna Convention on Consular Relations of 1963,289 and of the Vienna Convention on the Law of Treaties.290 282 The bilateral delimitation agreements cited in the North Sea Continental Shelf cases (see above, p. 44) [Editors’ note: page 615 of this Anthology] did not help to establish a rule of customary law, because there was no such statement in the agreements or in the travaux préparatoires. 283 E.g. the unratified treaties cited by the Nuremberg Tribunal (1946), Cmd. 6964, p. 40. See also the judgment of the Tokyo Tribunal, Annual Digest, 15 (1948), pp. 356, 362–3, and the Genocide Convention, United Nations Treaty Series, vol. 78, p. 277. 284 E.g. the Anglo-American Liquor Treaty of 1924: Colombos, International Law of the Sea, sixth edition (1967), p. 142 (see also ibid., pp. 95–7). 285 E.g. Akehurst, A Modern Introduction to International Law, second edition (1971), p. 117, at n. 1. Treaties providing for the waiver of claims are much weaker authority because the fact that a claim was waived does not necessarily imply it was well founded. 286 Attilio Regolo case (1945), r.i.a.a., vol. 12, pp. 1, 8. 287 See below, n. 10. [Editors’ note: page 619, note 291 of this Anthology]. See also Empresa Hondurena de Vapores v. McLeod (1962), i.l.r. 34, pp. 51, 59–60; Dominion Coal Co. v. Municipality of the County of Cape Breton (1963), i.l.r. 42, pp. 62, 78; In re the Ownership and Jurisdiction over Offshore Mineral Rights (1967), i.l.r. 43, pp. 93, 104, 113; Fisheries Jurisdiction case, I.C.J. Reports, 1973, pp. 3, 25–7, per Judge Fitzmaurice; Barcelona Traction case, I.C.J. Reports, 1970, pp. 3, 187 and 305, per Judges Jessup and Ammoun. 288 Canadian Year Book of International Law, 3 (1965), pp. 317–18; Revue belge de droit international, 9 (1973), p. 639; i.l.r. 38, pp. 162, 167; Barcelona Traction case, I.C.J. Reports, 1970, pp. 3, 305, per Judge Ammoun. 289 Canadian Year Book of International Law, 5 (1967), p. 259; International Legal Materials, 13 (1974), p. 1436, Article 3; Barcelona Traction case, I.C.J. Reports, 1970, pp. 3, 305, per Judge Ammoun. 290 Barcelona Traction case, I.C.J. Reports, 1970, pp. 3, 303, 305, per Judge Ammoun; Namibia case, I.C.J. Reports, 1971, pp. 16, 47; Appeal Relating to the Jurisdiction of the i.c.a.o. Council, I.C.J. Reports, 1972, pp. 46, 63–4, 67, 101–2, 107, 109, 127–30, 132, 138, 146, 148; Fisheries Jurisdiction case, I.C.J. Reports, 1973, pp. 3, 14, 18, 21, 43, 47; Nuclear Tests case, I.C.J. Reports, 1974, pp. 253, 334–8, 349, 357, 418; Kingdom of Greece v. Federal Republic of Germany (1972), i.l.r. 47, pp. 418, 450–2; Decision No. 9 of the Council of Europe Appeals Board (Maryan

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In most of these cases the court or State invoking the treaty provisions said that they were declaratory of customary law. What grounds did the court or State have for thinking that the treaty was declaratory of customary law? Where the preamble to a treaty declares that it is declaratory of customary law, it is easy enough to cite the preamble.291 Such preambles are, however, very rare, because it is usually impossible for the drafters of a treaty to claim honestly that all its provisions are declaratory of customary law; most of the provisions may be, but others are bound to contain an element of innovation, if only because State practice is often so sparse, ambiguous or conflicting that any body which tries to codify customary law soon finds itself crossing the often imperceptible boundary between codification and progressive development.292 It is often possible to find statements in the travaux préparatoires that particular provisions are declaratory of customary law, but the discovery and citation of such statements is a tedious process.293 So, not surprisingly, in the cases already mentioned the courts or States concerned have usually contented themselves with saying that the treaty is declaratory of customary law without citing any authority for saying that the treaty is declaratory. This approach is not as haphazard as it may seem, since it is common knowledge that most of the provisions of the treaties cited in the previous paragraph were declaratory of customary law.294 The significant thing, however, is that courts or States invoking such treaties often seem to find it necessary to justify such invocation by saying that the treaty is declaratory of customary law; this suggests that the courts or States concerned would have been (to say the least) Green), p. 4 n. 1; Briggs, American Journal of International Law, 68 (1974), p. 51; Lawrie, International Affairs, 47 (1971), p. 708. 291 Fisheries Jurisdiction case, I.C.J. Reports, 1974, pp. 3, 22; ibid., 1973, pp. 3, 25, per Judge Fitzmaurice. 292 Shihata, Revue égyptienne de droit international, 22 (1966), pp. 51, 63–5; Baxter, Recueil des cours, 129 (1970), pp. 25, 39–42. 293 It is possible (but improbable) that a treaty may be declaratory of customary law even though there is no statement to that effect in the treaty or in the travaux préparatoires. In such a case one can only prove the declaratory nature of the treaty by examining all the available evidence of State practice. But this process is even more tedious than examining the travaux préparatoires. Moreover, by proving the declaratory nature of the treaty in this way, one is proving customary law without reference to the treaty; and, once customary law dehors the treaty has been proved, citation of the treaty becomes unnecessary. See Baxter, Recueil des cours, 129 (1970), pp. 25, 42–3. 294 But there is a difference between most of the provisions being declaratory and all the provisions being declaratory; by overlooking this difference, judgments and State practice run the risk of treating provisions which were not declaratory as if they were declaratory. See, for example, the citation of the procedural provisions of the Vienna Convention on the Law of Treaties in the Fisheries Jurisdiction case, I.C.J. Reports, 1973, pp. 3, 21.

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much less ready to invoke the treaty if they had not thought that it was declaratory of pre-existing law. When a treaty or its travaux préparatoires contain statements that part or all of the treaty is declaratory of customary law, it is not enough to show that the States making those statements knew them to be untrue; if other States do not challenge those statements, they can create a new rule of customary law,295 although the existence of conflicting practice may sometimes prevent that happening.296 It may also be possible to point to statements in the treaty or in its travaux préparatoires that part or all of the treaty is not declaratory of customary law. Thus in the Asylum case Colombia argued that the Montevideo Convention of 1933 ‘has merely codified principles which were already recognized by Latin American custom’; the Court held that ‘this argument is invalidated by the preamble [of the Montevideo Convention] which states that this Convention modifies the Havana Convention’.297 In Re Martinez the Italian Court of Cassation held that Article 24 of the Geneva Convention on the Territorial Sea was not declaratory of customary law, partly because statements had been made at meetings of the International Law Commission and at the Geneva conference asserting its non-declaratory character.298 Is it possible to infer that a treaty is not declaratory of customary law from the fact that it allows for withdrawal, revision or reservations? As far as clauses providing for withdrawal or revision are concerned the answer is probably no.299 The reason for inserting such clauses may have been to give States an opportunity to reconsider their position in the event of customary law changing after the conclusion of the treaty; their insertion is thus not necessarily an indication that the treaty was not declaratory of customary law as it existed when the treaty was concluded. Reservations present more of a problem. The judgment in the North Sea Continental Shelf cases suggests that the presence of a clause permitting reservations to a particular provision prevents that provision being regarded as

295 296 297 298

See above, pp. 5 and 37. [Editors’ note: pages 584 and 607 of this Anthology]. See above, p. 20. [Editors’ note: page 585 of this Anthology]. I.C.J. Reports, 1950, pp. 266, 277. i.l.r. 29, pp. 170, 172–4. See also above, p. 45 [Editors’ note: page 617 of this Anthology], and Akehurst, this Year Book, 46 (1972–3), pp. 145, 166 n. 1. 299 Baxter, Recueil des cours, 129 (1970), pp. 25, 51–3. Contra, Judge Petrén’s separate opinion in the Nuclear Tests case, I.C.J. Reports, 1974, pp. 253, 305. See also Thirlway, International Customary Law and Codification (1972), p. 94, and Judge Padilla Nervo’s separate opinion in the North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 87.

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declaratory of customary law.300 But this view is open to question. The Court relied strongly on the idea that customary law is binding on all States. So it is, as a general rule, but there can be exceptions in the case of dissenting States;301 it is only natural that a dissenting State, which is not bound by a particular rule of customary law, should be allowed to make a reservation against an article of a treaty which codifies that rule. Alternatively, a State may claim that a particular provision in a treaty is not declaratory of customary law and may refuse to accept that provision; other States, while disagreeing with that claim, may prefer that the first State should become a party to the treaty, even at the cost of making a reservation to the provision in question, than that it should be prevented from becoming a party to the treaty at all. Of course, if many reservations are made to a particular provision, they make it difficult to regard that provision as declaratory of customary law, although difficulty is not the same as impossibility; the mere fact that reservations are permitted casts little doubt on the declaratory nature of the provisions concerned if no reservations or very few reservations are made in fact.302 Finally, the fact that a treaty has received few ratifications is not necessarily an argument for not regarding it as declaratory of customary law. The most frequent reasons for failure to ratify are inertia and lack of Parliamentary time (if ratification requires the participation of the legislature, as it does in many countries).303 However, these are reasons for delaying ratification and not for withholding it permanently. Consequently, the persuasive value of a treaty as evidence of customary law will not be undermined by widespread failure to ratify early in its life, but will gradually wane if many years pass without bringing many ratifications.304 Even so, the treaty may still retain some 300 I.C.J. Reports, 1969, pp. 3, 38–9. In fact, Denmark and the Netherlands argued, not that Article 6 of the Geneva Convention on the Continental Shelf was declaratory of existing customary law, but that the development of a customary rule corresponding to Article 6, which had begun before 1958, had been completed by the signing of the Convention. However, if the possibility of making reservations was fatal to that argument (as the Court held), it would seem a fortiori to be fatal to any claim that the provision in question is declaratory of customary law. 301 See above, pp. 23–7. [Editors’ note: pages 590–594 of this Anthology]. 302 The views expressed by the Court in the North Sea Continental Shelf cases have been criticized by Baxter, Recueil des cours, 129 (1970), pp. 25, 47–51; Brown, Current Legal Problems, 23 (1970), pp. 187, 209; Goldie, American Journal of International Law, 63 (1969), p. 536; Lang, Le plateau continental de la Mer du Nord (1970), pp. 98–9; Thirlway, International Customary Law and Codification (1972), pp. 120–4. See also the dissenting opinions of Judges Koretsky, Morelli, Lachs and Sørensen, I.C.J. Reports, 1969, pp. 3, 163–4, 197–8, ­223–5, 248 and 252–3. 303 North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 226, per Judge Lachs. 304 Baxter, Recueil des cours, 129 (1970), pp. 25, 99–101.

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v­ alue as ­evidence of customary law; one possible reason for not ratifying is that States may think that ratification is unnecessary if the rules laid down in the treaty are already binding as customary law. In addition, prolonged paucity of ratifications is more damaging if all the provisions of a treaty are alleged to be declaratory of customary law305 than it is if only some of the provisions are alleged to be declaratory of customary law;306 in the latter case, States may genuinely believe that part of the treaty is declaratory of customary law and yet refuse to ratify it because they object to the other parts. Statements Subsequent to the Treaty Statements by States that the rules of customary law are the same as rules laid down in a treaty can be made in the text of the treaty or in its travaux préparatoires. They can also be made after the conclusion of the treaty. Such subsequent statements can take several different forms. They may allege that customary law was the same at the time of the treaty’s conclusion, or they may allege that customary law has fallen into line with the treaty at some time (specified or unspecified) after the treaty’s conclusion. They may be made by States parties to the treaty, or by other States. They may refer to the treaty by name, or they may not. In a sense any invocation of a provision of a treaty by or against a State which is not a party to it must be interpreted as a statement that customary law coincides with that provision, unless the case can be explained by virtue of the rules of the law of treaties which occasionally allow a treaty to create rights or obligations for third States. But, in one form or another, a statement recognizing the coincidence between the treaty and customary law is essential. Article 38 of the Vienna Convention on the Law of Treaties provides: ‘Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of law, recognized as such.’ The words ‘recognized as such’ were added at the Vienna Conference in order to emphasize that rules laid down in treaties could not transmute themselves automatically into customary law; the consent of States was needed for the creation of new customary law.307 Despite some ambiguities, the judgment in the North Sea Continental Shelf cases supports this view. Denmark and the Netherlands argued that a rule of customary law, identical to the rule contained in Article 6 of the Geneva Convention on the Continental Shelf, had ‘come into being since the Convention, 305 Asylum case, I.C.J. Reports, 1950, pp. 266, 277. 306 Cf. above, p. 46 n. 2. 307 United Nations Conference on the Law of Treaties, Official Records, First Session, pp. 197– 201, and Second Session, pp. 63–72.

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partly because of its [the Convention’s] own impact, partly on the basis of subsequent practice’. In dealing with the first half of this argument, the Court said: ‘With respect to the … elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that … a very widespread and representative participation in the convention might suffice of itself …’308 Thirlway interprets this passage to mean that opinio juris could have been inferred from widespread and representative participation, and that no express evidence of opinio juris was necessary.309 However, it is more likely that the Court was here thinking of the quantitative elements which are often regarded as necessary for the creation of customary law, such as repetition and the passage of time. In the next paragraph of its judgment, the Court said that ‘State practice … should have been both extensive and virtually uniform … and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved’.310 From this it is clear that opinio juris is not something which can be inferred from practice, however extensive; it is an additional requirement.311 Moreover, as we have seen, the Court was very strict in requiring evidence of opinio juris when considering the second half of the Danish and Dutch argument;312 it is hardly to be expected that a strict approach to opinio juris in the context of the second half of the argument would be combined with a lax approach in the context of the first half of the argument. After all, the Court prefaced its consideration of both parts of the argument with the warning that ‘this result is not lightly to be regarded as having been attained’.313 Whether or not a rule laid down initially in a treaty is subsequently accepted as a rule of customary law is a question of fact. No useful purpose is served by trying to make a priori distinctions between rules which are capable of ripening into customary rules and rules which do not have that capacity.314

308 I.C.J. Reports, 1969, pp. 3, 41 and 42. 309 Thirlway, International Customary Law and Codification (1972), p. 86. 310 I.C.J. Reports, 1969, pp. 3, 43. 311 It is submitted that probably the only way such a requirement could be satisfied is by citing express statements by the States concerned; they might, for instance, have said that they were ratifying or acceding to the Convention because they considered that all of its provisions were identical with customary law. 312 See above, pp. 31–2 and 44. [Editors’ note: pages 599–600, 616 of this Anthology]. 313 I.C.J. Reports, 1969, pp. 3, 41. 314 For examples of such distinctions, see D’Amato, The Concept of Custom in International Law (1971), pp. 105–12, and the judgment in the North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 42. This aspect of the judgment is cogently criticized by Marek, Revue belge de droit international, 6 (1970), pp. 44, 58. See also Judge Lachs’ dissenting opinion,

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However, some predictions can be made about the kinds of treaty rules which are most likely to be subsequently accepted as customary rules (there is no certainty that such acceptance will occur, only varying degrees of probability). The probability of such acceptance occurring varies in inverse proportion to the extent to which the treaty rules differ from previously accepted rules of customary law.315 In particular, treaty rules which merely add precision to customary law are very likely to be accepted as customary rules in the future; thus, treaty provisions fixing river boundaries in accordance with the Thalweg principle could be regarded as simply adding greater refinement to the principle of equal division, laid down earlier by Grotius and Vattel. Indeed, the difference between such treaties and treaties which are declaratory of pre-existing customary law is really only a difference of degree, emphasis or viewpoint, for even a treaty which is declaratory of pre-existing customary law (by codifying it or by applying it to the facts of a specific case) adds some measure of precision to it. This may explain why courts often regard treaties adding precision to customary law as authority for customary law, without citing any evidence that the treaty rules have been followed in the non-treaty practice of States.316 Treaty rules are fairly likely to be accepted as customary rules if there is uncertainty as to the content of pre-existing customary law. In particular, diplomats and municipal judges who have little experience in handling the sources of international law are likely to lack the patience to sift through a mass of conflicting evidence of customary law; instead, they will often apply the rules laid down in a more succinct and accessible document such as a multilateral treaty, a General Assembly resolution or a resolution of an unofficial body such as the Institut de droit international. The rules contained in such documents may not have been customary law at the outset, but they are turned into customary law by subsequent application (if it is accompanied by opinio juris). However, it I.C.J. Reports, 1969, pp. 3, 222–5; Baxter, Recueil des cours, 129 (1970), pp. 25, 62–4; and ­Nelson, Modern Law Review, 35 (1972), pp. 52, 53–4. 315 Cf. The State (Duggan) v. Tapley, above, p. 43. 316 E.g. New Jersey v. Delaware (1933), 291 U.S. 361, 381–4; applying the Thalweg principle laid down in earlier treaties. Cf. the finding of the Nuremberg Tribunal that the Hague Regulations of 1907 differed from previously accepted customary law, but that by 1939 ‘these rules … were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war’ (Cmd. 6964, 1946, p. 65). The Tribunal did not explain how the rules had become rules of customary law. Perhaps part of the explanation lies in the fact that the rules simply added precision to the basic principle of customary law that a belligerent must not cause suffering which is not justified by military necessity; the rules were evidence of the changing content of that principle. Cf. Baxter, this Year Book, 41 (1965–6), pp. 275, 280–3, 297–8.

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should be noted that subsequent application, which is essential if these rules are to become customary law, may not always occur. For instance, if the uncertainty of customary law is caused by a clash of interests between different groups of States, it is likely that each group will continue to adhere to the view of customary law which suits its interests, instead of bringing its non-treaty practice into line with treaties which represent a compromise between the two groups of States. Thus disputes between capitalist and communist States over the expropriation of foreign-owned property have been settled by treaties which represent a compromise between the capitalist view of customary law (full compensation) and the communist view (no compensation), but rules of customary law have not developed out of the treaties because the non-treaty practice of each side continues to follow the view of customary law previously taken by that side.317 It is also fairly likely that treaty rules will be accepted as rules of customary law if many States are dissatisfied with pre-existing customary law. Where such dissatisfaction exists, any well-publicized statement, whether it be a treaty, a General Assembly resolution or a resolution of an unofficial body such as the Institut de droit international, may constitute a catalyst which will stimulate new practice and thus a new customary rule. But the statement, if it is only a statement of lex ferenda, cannot itself create a new customary rule; it is the practice inspired by the statement, and accompanied by opinio juris, which creates the rule.318 The process may take place very quickly, but that should not blind us to the fact that there is more than one stage in the process. The law of the sea provides a topical illustration of this process. Much of the old customary law of the sea is viewed with dissatisfaction by States because of its growing uncertainty and inability to respond to technological changes. All the present indications are that the adoption of a new treaty on the law of the sea by the United Nations Conference on the Law of the Sea will be immediately followed by a rush of claims by States inspired by the treaty, even though most of the provisions of the treaty will not be (and will not even be claimed to be) declaratory of existing law, and even though many years may pass before the treaty enters into force. Indeed, even the prospect of such a treaty being 317 The treaties add to the uncertainty of the old customary law (disputes are settled by treaty and not in accordance with customary law, and the resulting absence of recent precedents makes customary law uncertain), but they do not generate new customary law. 318 Thirlway, International Customary Law and Codification (1972), p. 64. Such practice does not always occur. For instance, when States became dissatisfied with the absence of a rule of customary law requiring extradition, they rectified the situation by concluding extradition treaties, but the extradition treaties did not lead to a change in non-treaty practice and thus in customary law.

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adopted has stimulated some States to make claims inspired by predictions of what the content of that treaty may be,319 and such claims are likely to grow in number now that the adoption of an informal single negotiating text320 by the conference has made it easier for States to guess what the content of the treaty may be. It is probable that a clear failure by the conference to reach agreement would also stimulate States to extend their claims to areas of the sea, just as the failure of the 1930, 1958 and 1960 conferences to reach agreement on the width of the territorial sea stimulated many States to claim a wider territorial sea. There are thus a number of things which can stimulate new State practice; but it is the practice (accompanied by opinio juris), and not the stimuli, which creates new customary law. Thus, although the practice of States may seek to anticipate the outcome of the conference, the International Court has refused to do the same.321

Summary

1. Customary international law is created by State practice. State practice means any act or statement by a State from which views about customary law can be inferred; it includes physical acts, claims, declarations in abstracto (such as General Assembly resolutions), national laws, national judgments and omissions. Customary international law can also be created by the practice of international organizations and (in theory, at least) by the practice of individuals. 2. As regards the quantity of practice needed to create a customary rule, the number of States participating is more important than the frequency or duration of the practice. Even a practice followed by a few States, on a few occasions and for a short period of time, can create a customary rule, provided that there is no practice which conflicts with the rule, and provided that other things are equal; but other things are seldom completely equal, because there are various presumptions (e.g. the presumption in favour of the liberty of State action) which need to be taken into account. 3 (a). Major inconsistencies in State practice prevent the creation of a customary rule; such inconsistencies cannot be explained away by saying that one 319 Another factor inspiring the claims is a belief that other States will soon make similar claims. 320 Text in International Legal Materials, 14 (1975), p. 682. 321 Fisheries Jurisdiction case, I.C.J. Reports, 1974, pp. 3, 23–4. The Court also noted ‘that a number of States has asserted an extension of fishing limits’, but apparently regarded such claims as insufficient to establish a customary rule, presumably because they conflicted with pre-existing law and had been challenged by other States.

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type of practice is more important than another or that the practice of some States is more important than the practice of others. 3 (b). A State is not bound by a customary rule if it has consistently opposed that rule from its inception. However, a new State is bound by rules which were well established before it became independent. 3 (c). Special (e.g. regional) customs can co-exist with general customs. Apart from the number of States bound by the customs, there is little difference between special and general customs; where the number of States following one practice is roughly the same as the number of States following another practice, it may be difficult to say which is the special custom and which is the general custom. 4. Opinio juris is necessary for the creation of customary rules; State practice, in order to create a customary rule, must be accompanied by (or consist of) statements that certain conduct is permitted, required or forbidden by international law (a claim that conduct is permitted can be inferred from the mere existence of such conduct, but claims that conduct is required or forbidden need to be stated expressly). It is not necessary that the State making such statements believes them to be true; what is necessary is that the statements are not challenged by other States. 5. Treaties are part of State practice and can create customary rules if the requirements of opinio juris are met, e.g. if the treaty or its travaux préparatoires contain a claim that the treaty is declaratory of pre-existing customary law. Sometimes a treaty which is not accompanied by opinio juris may nevertheless be imitated in subsequent practice; but in such cases it is the subsequent practice (accompanied by opinio juris), and not the treaty, which creates customary rules.

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Chapter 25

Robert Y. Jennings, What is International Law and How Do We Tell When We See It?, 1983 Comment by Zoe Hough, Intern, BIICL One of the giants of international law, Sir Robert Jennings enjoyed a remarkable and multi-faceted career as an academic, barrister and judge at the ICJ, serving as its President from 1991 to 1994. His impact on international law endures to this day. Jennings’ academic prowess is evident in his superb Cambridge-Tilburg Law Lecture “What is International Law and how do we tell it when we see it?” Delivered in March 1980, the lecture offers a comprehensive and academically rigorous exploration of the sources of international law, inevitably beginning with Article 38 of the Statute of the ICJ. One of the notable characteristics of the lecture is the clarity with which Jennings is able to methodically and incisively explain the complex issues concerning treaties, custom, general principles of law as recognised by civilised nations, judicial decisions and the teachings of the most highly qualified publicists as sources of international law. He offers a clear historical background of each source, deftly grapples with the controversial issues concerning the use of each as a source of international law and offers his own views as to how they are best utilised in discerning what is international law from what is not. In his conclusion, Jennings states that it is “both gratifying and exciting that so many variations of law-making and law-changing procedures are evolving before our eyes”. Jennings’ engaging and clear style results in the reader, and no doubt the original audience, of ‘What is International Law and how do we tell it when we see it’ being infected with that same excitement about the field of international law and the role of international lawyers.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_026

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R.Y. Jennings, ‘What is International Law and how do we tell when we see it?’ In: BS Markesinis and JHM Willems (Eds), The Cambridge-Tilburg Law Lectures, Third Series 1980 (Kluwer 1983), pp. 3–32. Reproduced with the kind permission of Brill Nijhoff.

What is International Law and How Do We Tell When We See It? Robert Y. Jennings Article 49 of the Rules of the International Court of Justice requires parties before the Court, in their pleadings, to include a “statement of the law” in the case. How does one today set about the task of identifying principles and rules of international law, and of distinguishing it from that which, whatever else it may be, is not law? This is not a problem simply of international law. It arises in every system; and tends to arise in an acute form at times of political or social unsettlement. Thus in English law, when the issue of the freedom of the individual in the person of John Wilkes was the challenge to the independence of the Courts and the Judiciary. In the leading case of Entick v. Carrington (1765), about the seizure of John Wilkes’s papers with a view to prosecution for criminal libel, “Mr. Wilkes’s private pocket book filling the mouth of the sack”, Lord Camden said this concerning the alleged powers of the authorities: If it is law, it will be found in our books. It it is not to be found there, it is not law. What, then, is the state of our ‘books’ in international law? It is a pertinent question, because although lawyers know that the quality of certainty of law is one on which there must be much compromise, not least in the interests of justice, it is a desideratum of any strong law that there is reasonable ­certainty about where one should look to find it. Nor is this less important for the w ­ ell-being of the International Court of Justice in particular or the process of international litigation in general. It has sometimes been complained that the decisions of the World Court have been unpredictable. But the outcome of any case worth litigating must be to a serious degree unpredictable. The problem lies deeper and is more serious than that: it is that the choice of legal principles to be applied and upon which the decision will be made is itself often unpredictable; a circumstance which must be a discouragement if not even a deterrent to governments contemplating international litigation. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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I doubt whether anybody is going to dissent from the proposition that there has been never a time when there has been so much confusion and doubt about the tests of the validity – or sources – of international law, than the p ­ resent. This is natural enough at a time when the tide of development, change and elaboration in international law is flowing stronger than ever before. So the present confusion is far from being of itself a reason for pessimism. All the same, there is no denying that it is a major problem calling for, if not necessarily a speedy solution, at least a sound one. It should be remembered at the outset that in considering the sources of international law, we are looking not only at the tests of validity of the law – the touchstone of what is law and what is not – but also at the ways in which law is made and changed. This is a complication not found, at least not to the same degree, in domestic systems of law. For instance, in a system of domestic law the interpretation and application of a statute is quite distinct form the actual process of legislation: so much so that, in English law for example, debates in parliament during the legislative process are not permitted even to be cited in order to assist in the process of interpretation. But in international law the questions of whether a rule of customary law exists, and how customary law is made, tend in practice to coalesce. Inescapably the inquiry begins with Article 38 of the Statute of the International Court of Justice, which sets out what the Court, “whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply”. The list that follows is probably the first thing that any international lawyer learns: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The subsidiary means, cases and writings, particularly cases, I shall come back to. The so-called “general principles” have no very clear meaning but the fact that the ambiguity has never had to be resolved is perhaps indicative of this provision’s relative lack of importance in practical matters. But again I shall return to that question. Certainly it is treaties and custom that are, and always have been, of major importance; and it is these that I want mainly but not wholly to talk about; as far as maybe in that order; but, of course, in reality they are not always clearly separable, and new developments have made them more inter-connected rahter than less so. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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But first, a word of caution about Article 38 itself. We have to use it because it is part of the Statute of the Court and because the problems, therefore, in practice tend to present themselves in the context of that provision. But we must also remember that it is a 1920 draft and not always well-suited to international law in the 1980s. So we must use it, but interpreting where need be; as in a written constitution; and remembering that it is an open question whether it is now of itself a sufficient guide to the content of modern international law. Treaties Treaties used to be the most readily indentifiable element of international law. A treaty had identifiable parties and, with rare and easily recognized exceptions, it created rights and objections only upon those States parties, which had voluntarily subscribed to it by whatever mode, or modes, were provided. Indeed it was this contractual nature of the treaty that persuaded Sir Gerald Fitzmaurice to say that it was, therefore, not a source of law but a source of obligation (see Symbolae Verzijl, (1958), pp. 156 ff). That simple position was, I suppose, first changed by the Genocide Convention Advisory Opinion, and the subsequent emergence of new rules about reservations, which had the result that the task of finding out which States are parties to a particular treaty, and in relation to which other States parties, is now often a matter of quite esoteric research in the case of multilateral treaties. Moreover, the answer may be dubious and even disputed. One need go no further than the Anglo-French case in 1976–7 over the English Channel. It was only after full pleadings from both sides, and oral argument, that the Court was able to decide, though with, on this point, a different opinion from one Judge, that Article 6 of the 1958 Geneva Continental Shelf provision dit not apply between the Parties to the Channel Islands area, but did apply to the Western Approaches area. Another complicating factor about treaties as a source of law has been the enormous success and importance of the efforts made, through the work of the International Law Commission, to codify large parts of international law by multilateral treaty: a complicating factor not least because the whole experience of the International Law Commission has shown that there can be no hard-and-fast distinction between codification strictly-so-called and progressive development. And indeed, even if items of strict codification could be identified, the very fact of changing the law from an unwritten source to a written source is itself inevitably a major change. For the techniques of d­ ealing

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with, interpreting, and applying a written law – by which I mean one with a single authoritative text – are quite different from the techniques of dealing with an unwritten rule. Indeed, a codifying and progressively developing text can have a life and authority quite apart from its obligatory force as a treaty – witness, for example, the influence and even authority of the Vienna Convention on the Law of Treaties, long before it recently came into force as a treaty for certain ratifying States. Furthermore, it is a little unrealistic simply to say that the codified rule is binding on States not Parties to the Treaty, simply as a customary rule, whilst ratifying States are bound both by the custom and the treaty text. For the fact is that the customary rule has in large if not entire measure com to be the rule as it is expressed in the text, partly because the text was the result of both the preparatory work of the International Law Commission, and of strenuous negotiation at the Vienna Conference; and partly also just because of its availability as a single text. So one begins to wonder how far the ratification of such codifying and developing conventions really matters very much. Certainly a State which wishes not to be bound by such a rule will usually need not only not to ratify but positively to reject. Even then, it could be unsuccessful, if the rule is regarded as a statement, or should one say, restatement, of custom. Of course the situation is different where the treaty is not simply law-making, or law-stating, but sets out for example to create an organization. States do not become members of an organization by the development of custom. For this sort of change, the treaty is essential as such. Yet there is another, and not easily reconcilable, way of looking at the matter. If a Court takes the view that a treaty provision is not codificatory in the broad sense of the term – that is to say, including a necessary ingredient of progressive development – then it would appear that a strict and orthodox view of the ambit of treaty obligation may be taken. I need hardly remind you of the International Court of Justice’s attitude towards Article 6 of the 1958 Continental Shelf Convention, in the North Sea cases Judgment. In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn upon a convention specifically providing for a particular method by which the intention to become bound by the regime of the convention is to be manifested – namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way.

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So, according to this view of the matter, the gateway leading from mere treaty provision to the creation of new custom is straight and narrow. The same strict view was evidenced also, of course, in the Asylum case. Thus, the influence of the treaty provision will greatly differ in its ambit of obligation according as whether it is to be regarded as codificatory or not. It is hardly necessary to add that this distinction itself, important as it may be, is often a very nice one on which more than one opinion is possible. Accordingly, it is relevant here to consider a somewhat puzzling passage of the North Sea Judgment, about the requirements of a treaty provision before it can even be considered whether it has become a customary rule of law, whether by force of example, by the spread of practice, and the like. Concerning the possibility of a treaty provision becoming, through practice, part of customary law, and thus “to have become binding even for countries which have never, and do not, become parties to the Convention”: “There is no doubt”, added the Court, “that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary law may be formed. At the same time this result is not lightly to be regarded as having been attained” (para. 71). Nevertheless, it could come about, went on the Court, “even without the passage of any considerable time”; and “a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected” (para. 73). All this is commonsense. But there is another passage in the same Judgment where it is laid down that, for custom to arise from treaty provision: “It would in the first place be necessary that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law” (para. 72). The Court did not regard the rule in Article 6 of the Geneva Continental Shelf convention, as having this character; although it is interesting to note in passing that all the difficulties the Court raises in regard to Article 6 would seem to apply with equal force to Articles 74 and 83 of the Draft Convention on the Law of the Sea, which do purport to be drafts suitable for a universal rule. Now what did Article 6 lack to make it potentially of a fundamentally “normcreating character”? What sort of distinction can we trace between a rule that is merely of a norm-creating character and one that is “fundamentally” of a norm-creating character? And if the convention had been generally ratified, would Article 6 not then be a “general rule of law”, whether or not it was of a norm-creating character? Anyway, if it is binding between Parties to the treaty, how can it fall to be of a norm-creating character?

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Perhaps all the Court means by this obscure passage is that they did not like the idea of Article 6 becoming a general rule, so were minded to persuade themselves that it actually could not do so. Or perhaps it is a way of wrapping up, what is probably the fact, that the Court takes to itself some discretion to decide whether it is minded to elevate a treaty norm into a general norm. One can, of course, appreciate that a provision which cannot, so to speak, stand on its own feet, but is partly dependent for its object and content or proper functioning on other provisions of a treaty, which provisions happen to be essentially contractual in nature, cannot logically and reasonably become a rule of general custom, for thus would it be divorced from the qualifying effect of its context in the convention. This would be to make a rule of custom different in its effect from the treaty rule from which it was derived. But it is difficult to see how this could possibly be true of Article 6 of the 1958 Treaty. And the statement of the Court begins to look even odder, when it is remembered that the Court declared Article 1 to represent existing general customary law; even though that Article was obviously, one would have supposed, a temporary, holding article; that “exploitability” could never have represented a definitive rule of a potentially norm-creating character; and though the Article begins with the words, “For the purpose of these Articles, the term ‘continental shelf’, is used …”. This question of when a treaty provision turns into custom arises also in another dimension. I mean the classical argument found in the older text books: if you have a more or less large number of bilateral treaties saying the same thing, should one regard this as evidence of a developing custom; or as evidence that governments felt it necessary to make the treaties in order precisely to contract out of the customary rule? There can be no general answer to that question. It is necessary in each case to go through the pain of deciding which way it should go; and if it happens to be a Court that incurs that pain of decision, the answer will probably stick. A topical example is the tension between the nieo and the many scores of bilateral investment treaties providing for full compensation in the event of nationalisation. But before we can take this matter any further, we must turn to look more particularly at custom. Custom The identification of custom used to be a comfortable and reasonably secure process. Like most of my generation, I was brought up on the periods of Mr. Justice Gray’s measured prose in the Supreme Court of the U.S. in the ­cases

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of the “Paquete Habana” and the “Lola” in 1899. The question was whether small fishing boats were exempt from capture as prize. For evidence of “the customs and usages of civilized nations”, he referred to the works of jurists and commentators; and he found an established rule of international law, “founded on considerations both of humanity to a poor and industrious class of men, and of the natural convenience of belligerent States”, that such vessels “honestly pursuing their peaceful calling were exempt from capture”. For evidence of custom, Pitt Cobbett, in a good, popular case book of the period, lists “records of State action”, and “Text-writers of Authority”. As to what is now called the element of the opinio juris sive necessitatis, but was then frankly called consent, or assent, of States, there was no need to attempt to show that “the State in question” had assented to the rule; in the words of Professor West-lake’s great text book of 1904, “it is enough to show that the general consensus of opinion within the limits of European civilization is in favour of the rule”. But if customary law was then relatively easy to identify, it was also correspondingly difficult to change or develop. It had, if you like, a strong element of inertia. So much so that, in the inter-war period, it supposed that one of the ways of preventing war must be to find procedures of what was called “peaceful change”. The League of Nations was hamstrung by the unanimity rule, and there were feelings of guilt about the Peace Treaty of Versailles, and the desire to change it without it being changed by another European war. So the central problem of international law then seemed to be its rigidity. In lectures delivered in 1931, Sir John Fischer Williams said: “Perhaps the most difficult and certainly the most important of the problems which have to be solved if the world is to be freed from war between civilized nations is the problem how men are able to combine the avoidance of war with the necessity of giving effect to changes in international relationships”. It is a curious irony that whilst codification was under suspicion of introducing even more rigidity, the Hague Conference of 1930, which attempted to codify some parts of the law declared to be so well established as to be “ripe for codification”, ended in almost unmitigated failure. Whether or not that diagnosis was correct for its time, the scene today could hardly be more different. The efforts of the International Commission in promoting the codification and progressive development of central areas of international law, have met with important success. One need think only of the great law of the sea codifications of Geneva in 1958; the Vienna conventions on diplomatic and consular law, the Vienna convention on the Law of Treaties, the recent convention on State Succession to Treaties, and the present difficult and controversial yet highly promising work of the Commission on State Succession in matters other than treaties, on State Responsibility, and so forth. Large Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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and important areas of international customary law have thus become written law. Nor has this been done without change, and very considerable elaboration and development of the law. And as to actual changes in the law: one need only think of the reversal in the attitude of the Commission itself, in the course of its labours over the question of reservations to treaties; and the eventual adoption by the Vienna Conference of an even more radical form of the new rule; and its subsequent acceptance in may quarters as being a general rule. There is also a disquieting side to this ferment in the law. There are now so many vehicles for the expression of opinio juris – digests of State practice and opinion, resolutions of innumerable inter-governmental and non-­ governmental organizations or ad hoc conferences, and of the General ­Assembly itself – that it is increasingly difficult to say with any conviction what is lege lata and what is lege ferenda. In some fields, indeed, that vital distinction has become so blurred as to defy definition with any certainty. In the area of economic law there are almost contending systems. And then there are sometimes ‘standards’ rather than law. Where do we place those in our scheme of sources? In fact the whole exercise of identifying general customary law has become immensely complex, and correspondingly uncertain; and in so many areas it is not just a question of inquiry but also of a policy-choice. For the line between laws and contending proposals for laws to become so difficult to establish, however, is a serious matter, and bodes no good at all for the authority of the law. It is the element of conviction that lends customary law its authority; and if the conviction be missing, so pro tanto is the authority. Perhaps it is time to face squarely the fact that the orthodox tests of ­custom – practice and opinio juris – are often not only inadequate but even irrelevant for the identification of much new law today. And the reason is not far to seek: much of this new law is not custom at all, and does not even resemble custom. It is recent, it is innovatory, it involves topical policy decisions, and it is often the focus of contention. Anything less like custom in the ordinary meaning of that term it would be difficult to imagine. Take for instance a question on which it is now generally accepted that there is both a treaty rule and a customary law rule and that they are different, and therefore the distinction is significant: I mean the law governing continental shelf boundaries between opposite or adjacent States. The State practice here is voluminous, it is all recent; and it is constantly being augmented, so that much depends upon the moments of time at which it is sampled. But what is this so-called practice? It is a series of boundary settlements by agreement. Very few of them give any clue as to the general principles if any that underlie the agreement. The different factors influencing the choice of the agreed Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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boundary are obviously of great variety, including the respective bargaining power of the parties, and possibly including considerations having nothing to do directly with the boundary question. To study such agreements as evidence of an opinio juris concerning universal principles does not really make sense. Yet such is the strength of ingrained habits of thought that every pleading put before a tribunal in a seaboundary case – i.e. by definition a case in which agreement was not found possible of achievement – has its chapter headed ‘State practice’ in which these agreements are examined. And not surprisingly each Party is always able to give that identical body of practice the stamp of its own particular thesis. The fact of the matter is, of course, that – leaving aside for the moment what has transpired to the Law of the Sea Conference – the law of continental shelf boundaries outside the parties to the 1958 Convention, is pure Judgemade law. The supposition that the principles emerged from practice is a pure fiction. The two continental shelf boundary cases that have so far come before international courts bear out this analysis. The International Court of Justice, in the North Sea cases, was invited by Denmark and the Netherlands to examine a body of agreements, arguing that they showed that the equidistance principle as it is stated in Article 6 of the Geneva Convention was, or had become, the general rule for States not parties to the Convention. The Court’s conclusion on this was the negative one that this body of practice showed nothing of the sort. The Arbitral Court in the Anglo-French case had put before it a great body of State agreements said to be evidence of this or that rule concerning continental shelf boundaries. This body of practice is barely mentioned in the Award. Indeed one commentator says that this omission is “very disappointing” (D.W. Bowett in byil). But I would submit that it was eminently sensible. It would be absurd to try to arrive at the general law of continental shelf boundaries by looking at these agreements for “usage” and “opinio juris”; as if one were trying to establish a “custom” in the ordinary meaning of the word. I am not suggesting, of course, that these agreements are necessarily irrelevant to the task of the Court in such a case. On the contrary, the Court in the Anglo-French case found the technique for its decision in regard to the Scillies from the “half-effect” technique used in an agreement (it was presumably the way the Iranian island of Kharg). But in thus approving and adopting a device for satisfying equitable principles in the case of certain islands, the Court was not establishing a customary rule in any sense. Or take another body of practice that does not lend itself usefully to the traditional customary law kind of inquiry. One of the most important questions of sea law today is that of passage, or transit, through international straits. How could one conceivably extract adequate rules concerning passage, or the

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­ owers of coastal States, from the great body of practice that the daily passage p of ships in their millions represents? Or again, to take a topical issue of some importance, is it not evident that State practice is going to be of little or no use to decide whether unilateral deep-sea mining is lawful or not? Moreover, the attempt to assess the effect of practice raises awkward questions about precedent, and about the effects of unilateral action. Unilateral action is sometimes described as a possible source of new law – one need go no further than Canada’s unilateral and protested action in 1970 in relation to Arctic waters, which has indeed made new law (see Article 234 of the Draft Treaty on the Law of the Sea). But to attempt to categorize that sort of development as some kind of customary law based upon practice would be bizarre. The other element of traditional customary law, the opinio juris sive necessitatis, is, where it can be established, still a test of law – for, after all, it is little more than a slightly obscure way of asking the question. But the difficulty today is the now embarrasingly rich and varied range of evidences of opinio juris, not only in the digests of so-called State practice, but also in the almost daily spate of material, more or less with legal content, emanating from one more or less authoritative body or another; and, of course, the fact that this great floud of material is likely to show dispute and contention about what the opinio juris should be. How is one to distil an ‘opinio juris’ from a welter of ostensibly authoritative but mutually incompatible opinions? This problem has been well-studied in particular relation to ‘recommendations’ of various kinds, and especially those of the General Assembly of the United Nations. It is obviously not possible here to look at the question very closely. Nevertheless, it is in the attitude to resolutions of both courts and governments that a clue may be found as to how to tackle this problem. It is obvious that international organizations can, within the ambit of their constitutions, make internal law for themselves (Cahier, R.G.D.I.P. 67, 1963, p.  563; Skewbiszewski, International Law Tomorrow). But how far can they make law, or contribute to the making of law, for States? Professor Schreuer says this in a recent valuable study (German Year Book of International Law, vol. 20, 1977, p. 103): International practice, however, shows a constant reliance on the recommendations type of decisions of international organizations. State organs, including domestic courts, international judicial bodies and political international organs frequently rely on them and apply them to specific situations. Furthermore there is evident reluctance openly to contravene recommendations such as resolutions of the United ­Nations

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General Assembly. Whenever possible, States confronted with recommendations will not attempt to rely on an assertion of their legal irrelevance, but will either deny violations, assert the inapplicability of a recommendation to the specific case or will claim that the particular recommendation was irregular or ultra vires. Comparison with other types of international prescription sometimes suggests that the effectiveness of some recommendations does not fall short of certain treaty ­provisions or customary rules. In short, recommendations may not make law, but you would hesitate to advise a government that it may, therefore, ignore them, even in a legal argument. How do we rationalize this factual position? Writers have sought to do this, some by seeing recommendations as analogous to treaty law; or as belonging to custom; even as an expression of general principles of law; or merely as raw material for the determination of new rules of law. Of course the answer probably is that they are related to all the orthodox sources, and also to none. Certainly, where an organization of a specialized kind – such as icao – is making laws and regulations concerning its special field, it seems pointless to try to categorize it under any of the orthodox heads. It is more difficult where an organizations expresses views and wishes that touch the principles of quite general international law, such as the nieo. Yet even as one makes that distinction one questions whether it is a real one. I am convinced it is a mistake to try to force these newer trends and techniques into one or other of the compartments of the 1920 mould. Perhaps we are too near to this revolution in the nature and content of the subject to be able to make any final categorization. A wise Court does not decide more than it has to decide. But we may do as a Court does, when faced with a series of apposite recommendations that should not be ignored; note them and draw the consequences, and leave others to explain our action in terms of legal philosophy and jurisprudence. It may, at first sight, seem pusilanimous to avoid a scientific exercise in this way: yet keeping an open mind does at least have the advantage that one might the more readily recognize the nature of the change once it is matured and ready for categorization. International law has already been much bedevilled by looking for domestic law analogies that turned out not to exist – such as ‘legislation’. So let us be ready for a solution that reflects the needs of international society. So perhaps the time has come to recognize that what we still quaintly call custom includes some custom certainly, but also many other kinds of law, of which neither the method of the making of it, nor yet the tests of its validity,

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have anything much to do with custom. When Professor Cheng felt impelled to invent the paradox, ‘instant custom’, for the laws governing space, we should have taken the hint that perhaps it was instant because it was not custom.

General Principles of Law Recognized by Civilized Nations

Article 38(c) of the Court’s Statute, which refers to the general principles of law recognized by civilized nations, is enigmatic; and that is the last thing a source of law should be. It should be remembered that when this was drafted by the Committee of Jurists in 1920, it was assumed that the Statute of the Court would impose some important measure of compulsory jurisdiction. In the event this was rejected by the League of Nations; but the Articles of the Statute were not revised to take account of this fundamental change in the functions of the Court. It is clear, however, that the intention of Roots’ formulation of para. (c) was to limit the discretion of Judges, i.e. they be tempted to impose subjective notions of justice. It is, therefore, ironic that para. (c) was later seen by writers like Hersch Lauterpacht and Jenks as a tool for the expansion and change of the content of international law. Certainly the influence of Lauterpacht’s study of Private Law Analogies had a great influence as a source book of ideas of rules and principles in the formative years of the Court’s jurisprudence. But the former importance given to ‘general principles’, by writers such as Hersch Lauterpacht, as marking the end of positivism and the triumph of the law of nature, is not likely to excite many breasts today. That is to do with controversies long outworn. The reference to civilized nations, with its implication that some are not civilized, is not perhaps as embarrassing as it seemed even a decade ago. In any event, it should be remembered that international lawyers of the 20’s were classical scholars, that they knew that a civitas was a particular kind of polity, and that territories with only tribal social organizations were, however r­ espectable or even superior in other ways, not the polities then contemplated as subjects of international law: or indeed today, for all States are now “civilized” in that essentially political sense. So, if we take it that the general principles of law are, as Sir Gerald Fitzmaurice has suggested, just those necessary general principles such as the rules of natural justice, res judicata, and the like, then there is no great difficulty, though their content will then be very limited, and virtually confined to obvious, basic principles that hardly require today a distinct source. One does worry a little about the continuing tendency of some to regard Article 38(c) as a blank cheque to go delving among selected municipal laws: a

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sort of comparative lawyer’s charter. This possibility was doubtless attractive at the time when international law seemed short on material and on elaboration. But, as we have already seen, the problem today is that we have so much material to marshall somehow under Article 38 (a) and (b), that we hardly know how best to start. Besides, is not the general principles from private law idea based upon a dangerously vulnerable idea? It had its apotheosis in the late Dr. Jenks’s books, “The common law of mankind”. I yield to nobody in my admiration for it as a fertile source of ideas. But is the underlying idea really sound? Would it not be possible to write an equally impressive book, showing the importance of the basic differences between different legal systems: the not-common law of mankind? The large approach to general principles may even have brought about harm. It has encouraged people to argue from quite general principles, divorced from the rules that give them meaning: rules that qualify, that temper and restrict, and so on. Think, for example, of the use that has been made of pacta sunt servanda by some American corporation lawyers; in propagating simplistic views of the unqualified binding character of contract, that are otherwise not to be met with, outside relatively primitive societies, and presenting them as part of international law. One is sometimes tempted to think that Article 38(c) is truely an historical remnant of the 1920s and should be regarded today as having little more than academic interest? We now turn to what Article 38 calls “subsidiary means for the ascertainment of the law”; namely, judicial decisions and writings.

Judicial Decisions

There has long been no room for doubt that international law has become very much a case law. This development was the inescapable result of the ready availability of international case reports. The great value of decided cases for the development and clarification of the law is largely because truth is stranger than fiction, and real life throws up circumstances which the most imaginative writers never thought of. The special place of judicial decisions has been admirably stated by Sir ­Gerald Fitzmaurice (Symbolae Verzijl, 1958, p. 172): …When an advocate before an international tribunal cites a juridical opinion, he does so because it supports his argument, or for its illustrative

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value, or because it contains a particularly felicitous or apposite ­statement of the point involved, and so on. When he cites an arbitral or judicial decision he does so for these reasons also, but there is a d­ ifference – for, additionally, he cites something which the tribunal cannot ignore, which it is bound to take into consideration and (by implication) which it ought to follow unless the decision can be shown to have been clearly wrong, or distinguishable from the extant case, or in some way legally or factually inapplicable. Equally the tribunal, while it may well treat juridical opinion as something which is of interest but of no direct authority, and which the tribunal is free to disregard, will not usually feel free to ignore a relevant decision, and will normally feel obliged to treat it as something that must be accepted, or else – for good reason – rejected, but which must in any event be taken fully into account. Certainly judicial decisions must become even more important in direct ratio with the quantity and contradictory nature of modern material evidences of law. The difficulty of deciding what the customary law is, can only add authority to a judicial decision resulting from the careful consideration and weighing of such materials. It is interesting that this is precisely how judicial decision and precedent came to be so important in the common law. As Sir William Blackstone put it in his famous and influential Commentaries (Introduction, para. 3): “these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law”. Blackstone’s comment on the laws of England can be applied without change to international law today. Perhaps we ought, therefore, to give rather more thought to the ways in which we employ cases in argument. And for this it would seem reasonable to look at the experience of the common law, which is first-and-foremost a case law. One of the first things the common lawyer learns is the discipline of extracting from the Report of a Judgment, the ratio decidendi, and discarding the obiter dicta which, however interesting, were not essential to the decision on the facts before the Court and accordingly no part of the binding precedent. Certainly, there can be no binding precedent in international law, if only because there is no hierarchy of courts without which the notion of a binding precedent is impossible. Nevertheless, there is room for more discipline in the extraction of principle from decided cases, not least because they have become so important. Far too often the method found in writers on international law is to regard a Judgment as if it were a sort of holy writ, from which gobbets may be quoted often without relating them to their context in the Judgment as a whole, their relation to the decision, or the particular facts and issues in the case.

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The Court in the Anglo-French Arbitration Award of 1977 pointed the way when, considering some of the pronouncements of the ics in the North Sea cases concerning the customary rates governing the delimitation of the continental shelf, it said: “…and in appreciating the implications of some of these pronouncements it may be necessary to bear in mind that they may here have in mind the particular context of the concave geographical configuration in that case involving the coasts of three adjoining States” (para. 76). There is another aspect of case law that merits consideration. In the common law at least, the reasoning of the Court will usually bear a close relationship to the arguments put before it by the parties. So much so, that it is not uncommon to “distinguish” precedents on the ground that a certain argument, thought in retrospect to be cogent or even decisive, was not put to the Court by either party. Thus it can be said that it is not a persuasive precedent; though there is still no doubt, of course, that it was res judicata. International tribunals have not felt the need to exercise any such restraint upon the scope of the reasons relied upon in the decision of award. The Nottebohm, before the ICJ, case was a notorious example of the Court finding for itself a somewhat novel principle of decision that had not been argued by ­either party. Another instance, less extreme than Nottebohm, but which has, nevertheless, attracted some criticism, was the principle of decision of the Court in the English Channel case, in regard to the western approaches. The French and the British arguments had both treated this as an opposite coast situation. The Court treated it with some cogency as having some of the qualities of adjacent coasts. But this had not been argued before the Court. Should the Parties not have been asked by the Court to comment on this possibility? This is something the common lawyer finds strange; in a common law Court it is exceedingly unlikely that anything that occurs to the mind of the Court will remain unargued, for the Court, if it has in mind a point that has not been argued, will ask the parties for their views on it. This degree of flexibility is not so easy in an international tribunal where counsel representing a sovereign State is usually on a tight rein and must always seek instructions to depart from his brief, and could certainly be in no position to give answers or reasons off the cuff. International tribunals are certainly asking more questions than they used to; and this is a tendency to be encouraged, even if it usually means that the answers must be submitted in writing, thus avoiding the true confrontation of arguments. I am not, of course, suggesting that it is in any way wrong for a Court to make an innovatory decision which reshapes the law. On the contrary, most of the

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great Judgments, whether of international law or domestic law, do precisely that; not exactly making new law, but perceiving that familiar, existing materials form a pattern, when looked at in a right or just novel, perspective, which has not hitherto been fully appreciated. The question I am asking, is whether it is right for a Court to surprise the parties with such a decision. Should not the point be first put to them for argument? Should they not first be given a chance to comment upon the law seen from a different perspective? To ensure this needs no more than an extension of the purpose of questions from the Court. Admittedly there are difficulties in practice. Nevertheless, there is a point of principle. For what is the use of such lengthy written pleadings and oral ­argument-commonly four, and not infrequently five, stages of argument – if the Court is then to have a sort of ‘clean slate’ rule in respect of its actual decision? There is another aspect of, not so much the content of arguments, as of the form of pleadings, that calls for comment. Some domestic systems, like the English, make written pleadings short and formal, a mere preparation for the “day in court”, which in a big case may be many days of oral argument. Others, like the American, though also common law, put everything into the written briefs, and the oral argument, including questions from the Court, even in a big case in the Supreme Court, may be measured in minutes. International tribunals mostly make the most of both written and oral proceedings: Memorials, usually volumes, then Counter Memorials, often a Reply, then two rounds of oral argument. Yet in the usual case of a special agreement or compromis, when written pleadings are exchanged simultaneously, the oral proceedings provide the first occasion on which there is a true confrontation of arguments. Each counter memorial, for instance, will be dealing with the arguments in the other side’s Memorial of perhaps 6 months or more ago, which arguments may in their Counter-Memorial have been diminished or even abandoned, or replaced by new arguments. This is not always an efficient way of conducting an argument; and there is a question whether this usual procedure is a good way of getting the real issues known to the Court; or indeed to the Parties. It must be very frustrating to a Court to receive formally, and ceremoniously, on the same day, Memorials in many volumes from each side, and find that they seem almost to be addressed to different cases and meet at very few points. Yet it is difficult to think of any solution for this problem, as long as governments are shy of being in the position of defendant.

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The International Law Reports comprise not only decisions of international courts and tribunals but also of many municipal – or domestic – courts. These are of great and probably increasing value, because more and more ­international law needs by its very nature to be mediated through domestic law, and it is there that the problems arise. Who, for example, could begin to ­understand the innter complexities and distinctions of the very old rule of international law about State immunity from jurisdiction, without recourse to domestic cases? And think how much poorer our law of international rivers would be, without the jurisprudence of the United States appellate courts on that subject. It is interesting to note that, in English Courts at least, it is now commonplace to cite foreign domestic cases, citing for that purpose the International Law Reports: this is not done, it is perhaps hardly necessary to add, in order to discover general principles of law, but rather to consult other experience regarding points of detail and applications of the law, exactly as with a Judgment of the ICJ. It may cause surprise that I have spent so long on merely one of the sources which is described in Article 38 as a “subsidiary means for the ascertainment of the law”. This is because it is precisely here – the analysis, refinement, clarification, and systematising of a mass of existing law, or near-law, that our contemporary problem resides. Paradoxically, the subsidiary means are now, at least for a season, of the first importance. Let us, therefore, turn also to what the Statute quaintly calls: – “The teaching of the most highly qualified publicists”.

The Teaching of the Most Highly Qualified Publicists

Text-writers have indeed been fortunate in the descriptions of their work, both in the Statute itself, and in Mr. Justice Gray’s Supreme Court Judgment: …jurists and commentators who by years of labour, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Though it immediately adds a word of caution: Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

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The citation is automatically dated by the assumption that such a distinction may readily be made. It is in a way natural that the place of text writers should decline as the importance of case law increases. Even a decade ago one might have subscribed to that view. Good writings were, of course, a help in understanding legal problems. But one did not go so much to writers to find out what the law is. One need only flick through the Judgments and Opinions in the ICJ to know that the function of text writers that Mr. Justice Gray had in mind is now at least secondary. There are other sources and evidences and the problem is not their sparseness so much as their richness. But I want to suggest that text writers have today a particular task to perform, which they alone can properly fulfil, and on which the future health of international law depends in no small measure. A principal burden of these lectures has been the difficulty of using the materials now available in such vast supply – digests, reports, State practice, papers, resolutions, recommendations, &c. &c. – and distilling from them what the law is. It may seem odd to suggest any addition to the already unmanageable mass od comment and material. But it is precisely, in this situation that writers should come into their own again. Taking particular aspects or problems of the law, the writers can analyse, distil, explain, clarify, and describe the law, in a way that is not open to a Court which has to focus on the disposal of a particular problem. For there is this paradox: that at a time when there is a plethora of materials and practice, great areas of the accepted statements of the law are still in need of analysis and elaboration. Think, for example, of the leap forward that was taken at the UN Conference on the Law of the Sea when we stopped talking about ‘innocent passage’ tout court, and identified (now in Article 19 of the Draft Treaty) 12 kinds of non-innocent passage. Or think of the revolution of legal thinking when the late Sir Hersch Lauterpacht in his book, ‘A Bill of Human Rights’, moved on from general statements about ‘fundamental’ rights, or minimum international standards, and separate, defined rights in the Articles of a draft Statute. So the main burden of this part of my discourse has been, that the ‘subsidiary means for the ascertainment of the law’ – judicial decisions and ­commentators  – are today probably of greater importance than ever before; and that it is these two sources which are most likely to bring certainty and clarity in the places where the mass of material evidences is so large and confused, as to obscure the basic distinction between law and proposal.

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New Departures in the Third United Nations Conference on the Law of the Sea

We began these lectures by remarking that, in international law, there tends to be a confusion of the ways of identifying what is law and what is not law, and the ways of making and changing law. It is no surprise, therefore, that the experience in that important governmental exercise, the Third United Nations Conference on the Law of the Sea, which has in its remit both the codifying of existing law and the making of new law, should be an indespensible subject of study for any inquirer into the nature and sources of international law today. And, indeed, significant changes have come about at the Third United ­Nations Conference on the Law of the Sea (UNCLOS III). That conference, in spite of some disappointments, could still prove to be the most important thing that has happened to international law since the foundation of the ­United ­Nations itself. As an experiment in law-making, it has been innovatory to a degree. There has never been any diplomatic conference remotely like it. Whereas the 1958 Geneva law of the sea conference was in a world of some 80 States, this one has to comprehend getting on for twice that number, many of the newer ones with no previous experience of a diplomatic conference, and many delegations beginning with little or no understanding of the nature and fabric of international law itself. Yet this is the conference which, in a decision that was bold to the point of seeming reckless, was given the task of welding into one single treaty of now 320 draft Articles, leaving aside Annexes, virtually the entirety of the existing law of the seas as well as inventing a brand-new regime for deepsea mining in the areas beyond national jurisdiction. This involved wrestling with new problems such as pollution, conservation, and scientific research in sea areas. Nor could it simplify its task by the distinguishing between established law and new law, or between codification and progressive development; for the whole was to be what the modern jargon calls a “package deal”; that is, it was recognized at the outset that concessions in one part of the law might be made in return for complementary concessions in a different part of the law: trading, for example, transit through straits, for perhaps some question concerning the authority of the International Sea Agency in respect of deep-sea mining. So at a stroke the authority even of any codification element was inescapably jeopardized; and because there was to be a large element of political decision, the great experience and authority of the International Law ­Commission was excluded. Yet, it was to aim at “an international treaty of a u­ niversal

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character, generally agreed upon” – a formula which itself gives food for thought. Because the Group of 77 (actually more than 100) developing States had a working majority, and also, as they have demonstrated, remarkable solidity, yet accepting that the cooperation and agreement of some other, major States, especially maritime powers and industrial powers, would be essential, voting was eschewed and a concept of consensus employed to secure emergence of decisions. Consensus is much more flexible than an abstention mechanism; for it means that things get through when minorities do not feel minded actively and vigorously to oppose. And their torpor may be induced by more than sentiment. It may be a package deal, for instance. It may be all kinds of things. But that it has worked surprisingly effectively, nobody can deny. All in all, UNCLOS III suggests that there may be emerging an international machinery for decision-making, which is in one way remarkably novel, but in other ways firmly a part and extension of the traditional method of international diplomacy (in fact arguably more so than a procedure of adopting a text by two-thirds majority voting). Without doubt the most remarkable of the conference’s innovatory mechanisms, and closely related to ‘consensus’, has been the succession of so-called negotiating texts, thus far in 6 versions: first the Informal Single Negotiating Text; then the Revised Single Negotiating Text; then the Informal Composite Negotiating Text (icnt) Revs. 1 & 2, and now the Draft Treaty of 1980. If the Conference were to cease to function at its next session, the draft treaty would still be not only an important source of law, but probably the most important source of principles and rules on this very large part of international law. The origin of these negotiating texts was the necessity for a conference of 5000 delegates to have a single text on which discussion can focus. The conference, doing without the preparatory work of the ILC, dit not have one. So a negotiating text had to be produced; and these texts were produced, each part under the authority of the several chairmen of committees but ultimately of the President of the Conference himself. The texts can have no authority as such, for their function is to serve as a point of departure for discussion and negotiation, and this is insisted upon in the introductions. Nevertheless, the idea was a brilliant invention and a new contribution to the resources of international diplomacy; and the Draft Treaty, despite its ­curious parentage, is possibly the most important single document of all time in the field of substantive international law. Apart from that observation, it is not possible to generalize about the Draft Treaty; for its content ranges from codification, through every possible mixture

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of consolidation and development, to the very new principles of Part XI – “the Area” beyond national jurisdiction – and the proposed creation of the Authority, the Enterprise, and similar purely innovatory proposals. Much of Part II, e.g. the regime of the continental shelf, is word for word the 1958 convention, and has remained not only unchanged but virtually unchallenged in more than seven years of the conference. What more convincing evidence could there be, that this is authentic and unchallengeable customary law? Particularly as it has survived the ‘package deal’, demonstrating that this law was so well established that trading it for this or that concession was out of the question. Other parts, like Article 19 on the meaning of innocent passage, so obviously grow out of the established though previously relatively unelaborated principle, that it would not be possible to go back on this logical development: the result of lawyerlike thinking and hard work rather than any policydecision. Others, like the articles on transit rights in international straits, are drafts that emerged from strenuous debate and dispute, and evenutally stilled the dispute and achieved a consensus. This is a long way towards the making of new, generally accepted law; unless, indeed, some ‘package’ element were later to prove corrosive of what seems now to have been achieved, and bearing in mind the President’s warning in his introduction to icnt Rev. 2: …the very nature of the concept of a package deal required that no delegation’s position on a particular issue should be treated as irrevocable until at least all the elements of the package had formed the subject of agreement and that, therefore, every delegation had the right to reserve its position on any particular issue until it had received satisfaction on other issues which it considered to be of vital importance to it A/CONF. 62/WP.10/Rev. 2.

But supposing delegations did not reserve their positions in time? One has the impression from the outside that all this is rather like working in a material like cement, that remains easily plastic for quite a long time; but parts of it gradually, and perhaps even unexpectedly, harden beyond any possibility of change. Certainly the whole thing is not a package to the end; much of it is already unchangeable. But is it then already law? There are some problems about the answer to that question, that I shall come to in a moment. Other parts of the Draft Treaty, such as the principle, if not the details, of the Exclusive Economic Zone, are new law assuredly; but law already firmly established in the practice of States.

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The draft treaty is not a document for the layman. Its content ranges from undoubted law to highly controversial proposal; some of it, like the proposal to create an International Sea Agency, that could only be created by treaty, not a draft treaty, in any event. So one needs even inside knowledge as well as expertise to disentangle the very different categories of content. Yet one can say that, looking at the document at the present moment, a large part of it has already made law – it will never be possible, for example, to go back on the basic principles of archipelagic waters, or to call in question the EEZ; or perhaps even extension of continental shelf to continental margin edge.

The Dilemma over the Status of the Negotiating Text of the Draft Treaty

Nevertheless, the conference must ultimately undertake a difficult exercise which must raise in a new form many of the classical questions about the nature of international law and its sources. The transference of negotiating text into treaty text will be yet another moment of truth for the whole exercise. For then there is a danger that the document may actually lose some part of the authority it already seems to possess. It is then no longer an instrument, considerable parts of which can be said to represent a consensus of the international community; but simply a draft treaty, which by definition binds only those which ratify, and will not, apart from the somewhat limited possibilities of provisional application, come into effect for any, until 60 or so ratifications have been deposited (Art. 308.1). Moreover, it is at this stage that the ‘package deal’ concept starts to work negatively. It was never easily reconcilable with an exercise in codification. But does it not also lead fairly easily to a conclusion that a completed package treaty that a State may assuredly decide to ratify or not to ratify, represents a whole package; not a codification of general law? And this supposition can only be strengthened by the prohibition of reservations. These very difficult questions have already been met particularly, of course, in relation to the final clauses. And it is a tribute to the efficiency of the Conference procedures that final clauses have been accepted, presumably not only by, but with, consensus. It was always logically inescapable that, with a package deal, reservations could, with few exceptions, not be permitted. And so Article 309 provides: No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.

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Yet even this position, logical and inevitable as it may be, provides a new kind of puzzle. The International Court of Justice in the North Sea cases concluded that the prohibition, in the 1958 Geneva Continental Shelf Convention, of any reservations to Articles 1, 2 and 3, indicated that these were codificatory of ­already established customary law. Yet in this draft Treaty, reservations are forbidden because it is a package deal; which means that it is not a codification, but a negotiated solution. Also there is the disturbing implication that although it may not be rejected in part, by means of reservation, it may be rejected as a whole – in fact as a package – by means of non-ratification. And that, if codificatory parts could be identified, States apparently do not have the option to accede to only the codificatory and consolidatory parts – which position might be thought to weaken rather than strengthen those parts. Furthermore, it is in fact the codificatory elements, not the innovatory elements, that stand, ironically enough, in most jeopardy from less than general ratification if the treaty becomes more than a draft. If sufficient ratifications are collected to enable the establishment the Authority, it would already at that stage be uncommonly difficult in practice for a non-ratifying State to do anything about the Authority’s exercise of its competence according to the treaty. After all, an organization, once created, has some kind of objective existence, and not only for parties to the treaty. It is no longer a merely contractual matter; there is an element of status. Contrast that, however, with the regime of transit rights through international Straits, or archipelagic waters. It might not be so easy for a maritime State to insist to a coastal State that the transit regime is new general law and not just contractual law for ratifying States. One ought not to discuss Article 309 without reference to Article 310 which permits interpretative declarations, because its meaning is far from clear: Article 309 shall not preclude a State Party, at the time of signing, ratifying or acceeding to this Convention, from making declarations of statements, however phrased or named, with a view, inter alia, to the ­harmonization of national laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or modify the legal effect of the provisions of this Convention in their application to that State Party. It is notorious that it is not easy in practice to distinguish between reservation and interpretative declaration. Again, one need go no further than the

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­ nglo-French Arbitration of 1977 for that. But the difficulty is normally to esA tablish whether the intention of the Party was to make a reservation or merely to state a strongly held view on the correct meaning of the instrument. This particular difficulty presumably cannot exist in relation to these Articles 309 and 310; for if reservations are simply not permitted, there must be an irrebuttable presumption that only an interpretative declaration could have been intended. But what is the purport of those words, “… with a view, inter alia, to the harmonization of national laws and regulations with the provisions of this Convention…”? Is this a disguised reservation, after all? Is there not a danger that it will be supposed to mean, “the harmonization of the Convention with national laws and regulations”? Presumably it is intended to refer particularly to the protection of vested rights under unilateral legislation on deep sea mining? If so, it may be harmless enough, for it can only refer to a transitory phase: though, of course, it may in a particular instance have a quite long-term effect. And if it is so intended, the difference from a reservation becomes paper-thin. It is perhaps too optimistic to suppose that this treaty “of a universal character” will be universally ratified; certainly not before a period has passed sufficiently long to be a crucial period in the law of the sea, and perhaps even for deep-sea mining. What will be the law of the sea for non-parties? How far can a treaty with say 61 parties be of a “universal” character? In this event, signature may prove to be of considerable importance, assuming that virtually all the Conference participants would be signatories. There is Article 18 of the Vienna Convention on the Law of Treaties. In respect of so comprehensive a convention this cannot be other than a very considerable undertaking. Nevertheless, it must fall far short of the effect of ratification. Here it is useful to recall the instructive passage in the dissenting Opinion of Judge Morelli in the North Sea Continental Shelf cases (ICJ Rep. 1969, p. 198): In connection with the Convention it may be observed that it was signed by the Federal Republic. This means that the Federal Republic participated in a technical operation which, to the extent of the Convention’s avowed purpose of codification, consisted in the establishment of general international law. By its signature the Federal Republic expressed an opinion which, within the limits indicated above, may be qualified as an opinio juris. But it was a mere opinion and not a statement of will, which could only be expressed by ratification. For it is only by ratification that the States signatories to a Convention express their will either to accept

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new rules or, in the case of a codification convention, to recognize the preexisting rules as binding. However that may be, one thing is certain: that the general law binding upon non-parties to a law-of-the-sea convention will not be the customary international law of the sea as it existed at the commencement of the conference. Not only has customary law necessarily been developing during that period, but the existence of the conference has both contributed to and in no small measure shaped the process. It could not be otherwise. The existence of stable elements in the negotiating texts (apparently fixed items of the package, as it were) has contributed especially to the process. For where the requirement is to distil the law from practice and opinion, any text which purports to represent a consensus and is properly drafted, will be used as authority, and may be difficult or impossible to displace. Nevertheless, question-marks must hang over those parts of the law where the conference has at some stage of the negotiation seen serious dispute and, in a word, a lack of consensus. Could, for instance, a right of transit be claimed through international straits by a non-party to the treaty? Is that part of the package available to one who in the end rejects the package? Insofar as ­Article 38 refers to “all ships and aircraft” it would seem that even a third party might benefit from that part of the treaty. But it must be doubtful whether the right could be claimed against a non-party; at least a non-signatory non-party, if such there prove to be. A more difficult question could be that of the freedom of the high seas in relation to deep-sea mining. This is not the place to canvass the question whether the existing principle of the freedom of the seas encompasses some form of unilateral freedom to mine the resources of the area beyond national jurisdiction. The question that is of primary interest here, is how far it is possible by treaty to establish a novel, generally applicable regime, and to create an Authority having in effect monopoly competence; and lawfully to inhibit third parties from any other mode of participation in deep-sea mining, for instance by reliance upon freedom of the seas as unmodified by the treaty? In a word, how far and in what ways can a general treaty have a “universal character”? This question has been debated in connexion with the various laws, notably in the United States and Germany, for unilateral deep-sea-mining legislation of an interim character. These proposals provoked a stiff response in the formal statement made on 15 September, 1978, “Declaring the Position of the Group of 77 on Unilateral Legislation affecting the Resources of the Deep Seabed”.

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It is to be noted that this statement, though it speaks of the “work for a global treaty affecting the ocean space as a whole”, and again of a “universally agreed treaty”, and a “comprehensive treaty”, does not in fact appear even prospectively to rely upon the possible general effect of such a treaty, but on two other arguments, namely: that there “is no practice, much less custom in the legal sense, of actual exploitation of the seabed beyond national jurisdiction which could be deemed as a legal right or grounds for such exploitation”; and, second and more significantly, upon the Declaration of Principles contained in General Assembly Resolution 2749 (XXV) of 17 December, 1970. That Declaration, it was urged, “… was not a recommendation simply inviting States to behave in a certain way .… It was a solemn pronouncement by the most representative organ of the international community declaring that the resources of the seabed beyond national jurisdiction are the common heritage of mankind as a whole, and that they can only be exploited under an international regime and not unilaterally appropriated”. The Declaration goes on then to assert that for various reasons, such as that it was adopted without dissent (though there were 14 abstentions), and so forth, “it establishes a principle of international law in the precise sense of Article 38 of the Statute of the International Court of Justice and constitutes an authoritative expression of the opinion of the international community on the matter”. It is perhaps not entirely clear which “precise sense” of Article 38 was in mind, but the reference would seem to be the “general principles of law”; and one, moreover, distinctly at odds with other meanings hitherto commonly received. What is clear enough, is the claim, on the basis of this Resolution, to give special value to a particular part of the comprehensive treaty, for the Resolution of 1970 deals only with the area beyond national jurisdiction, and to raise it, so to speak a priori, to the status of a generally binding regime. But what then becomes of the package deal, of which the deep-sea mining provisions have certainly been an important element of negotiation? Are there other elements of the package that can be put into the same category of principles of international law “in the precise sense of Article 38 of the Statute of the International Court of Justice”? There is little point in attempting at the present juncture to probe these, and many other, questions further; for the Third United Nations Conference on the Law of the Sea is still in the midst of its work and the nature of the outcome is far from certain. But the Conference itself is only one symptom of a generally new and rapidly changing position of international law; which reflects the major movements

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in international relations: the emergency of so many new States into the international society; the aftermath of war and the ‘decolonialization’ process; the realignments of power; military tensions between north and south. All this has made radical changes in international law imperative. Yet it was precisely in its procedures of law-making and law-changing that traditional international law was weakest. It is therefore both gratifying and exciting that so many variations of lawmaking and law-changing procedures are evolving before our eyes: ranging from the consensus procedures of UNCLOS III, through the more orthodox but remarkably effective procedures of the International Law Commission in the codification and progressive development of international law, to the more controversial but nevertheless effective methods of assertion and proposal that have been employed to propagate the notion of a new economic order. One thing is certain: it is the task of professional international lawyers, especially the scholars and teachers, to systematize, interpret, explain, and adapt, these new developments. If the seven years of UNCLOS III have taught anything, it must surely be the practical importance of international law and of the particular juristic skills that it requires. There is more in the way of immediate practical tasks for international lawyers to do than at any other time.

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Chapter 26

Ian Sinclair, The Vienna Convention on the Law of Treaties, 1984 Comment by Sir Iain Macleod KCMG, Legal Adviser, Foreign & ­Commonwealth Office This work, first published four years after the end of the diplomatic conference which adopted the text of the Vienna Convention on the Law of Treaties,a was expanded and published again in 1984. The author was singularly well placed to write on the subject. As a deputy legal adviser in the Foreign and Commonwealth Office, he played a leading role in the British delegation to the Vienna Conference in 1969 and was central to the drafting of the Convention. As Legal Adviser to the FCO from 1976 to 1984, he was able to draw on his daily experience of the application of the Convention in practice in preparing the second and final edition of the work in 1984. The book contains chapters on the scope of the Convention and its relationship to customary law; the conclusion and entry into force of treaties; reservations (one of the book’s most important contributions); the observance, ­application, amendment and modification of treaties; interpretation of treaties; the invalidity, termination and suspension of operation of treaties; jus cogens and settlement of disputes; and on the significance of the Convention. It is a record of the history of one of the great diplomatic negotiations on international law; a penetrating analysis of the meaning of the text and context of the Convention, and of customary law. It draws on the author’s experience as a negotiator and practitioner and is a masterly display of international legal technique and methods applied to the interpretation and analysis of an international legal text. The work belongs in a strong tradition of British writing on the law of treaties (McNair’s Law Of Treatiesb published in the 1960s, and more recently important monographs from Gardinerc and Austd). Sinclair’s contribution a Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 unts 331 (VCLT). b A McNair, Law of Treaties (OUP, 1961). c R Gardiner, Treaty Interpretation (2nd edn, Oxford 2015). [See Chapter 38 of this Anthology]. d A Aust, Modern Treaty law and Practice (2nd edn, Cambridge 2007). [See Chapter 28 of this Anthology].

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_027

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­ owever remains unique. It was hailed as a classic on publication and a reh viewer of the second edition commented that, “It is difficult to conceive how any serious analysis of any legal problem related to treaty law could start without consideration of Sinclair’s work”.e Sinclair refused to prepare or authorise a third edition, and, although there have been many developments in this area of law since 1984, the work remains powerfully relevant. It continues to be cited before international courts and tribunals and is “firmly within the scope of Article 38(1)(d) of the Statute of the International Court of Justice”.f e E Zoller, ‘The Vienna Convention on the Law of Treaties (2nd ed.)’(1985) 79 American Journal of International Law, 799 at 801. f F Berman and M Wood, ‘Obituary’, (2013) 83 British Yearbook of International Law at 4.

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I.M. Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press 1984). Excerpt: Chapter 8, ‘The Significance of the Convention’, pp. 242–60.

The Significance of the Convention Ian Sinclair It is perhaps easier, some fourteen years after the adoption of the Convention, to assess its significance than it was in the immediate aftermath of the Vienna Conference. The hopes and fears of the participants can now be appreciated dispassionately in the light of subsequent experience. It is also possible to form the beginnings of a judgment on the impact which codification of the law of treaties has had, and continues to have, on the development of other branches of international law. Above all, we can now see the ways in which, by the consolidating effect it has had on the law, the Convention has established itself as the foundation-stone of the modern law of treaties. I

Codification of the Law of Treaties: The Unintended Triptych? There are three conditions which often look alike Yet differ completely, flourish in the same hedgerow. t.s. eliot, Little Gidding

A quick reading of the Report made by the Commission to the General Assembly in 1966 reveals only too clearly the self-imposed limitations which the Commission had put on their study of the law of treaties. Excluded from the scope of the Commission’s proposals were the following: (a) treaties between States and other subjects of international law, as well as treaties between such other subjects of international law; (b) treaties not in written form; (c) the effect of the outbreak of hostilities upon treaties. (d) the succession of States in respect of treaties; (e) the effect upon treaties of the extinction of the international personality of a State; (f) the international responsibility of a State with respect to failure to perform a treaty obligation;

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(g) the most-favoured nation clause; (h) the application of treaties providing for obligations or rights to be performed or enjoyed by individuals; (i) the relationship between treaty law and customary law. For each and every one of these exclusions, the Commission gives what at first sight appears to be a plausible reason. As regards (a), it is said that ‘treaties concluded by international organisations have many special characteristics’; and that ‘it would both unduly complicate and delay the drafting of the present articles if [the Commission] were to include in them satisfactory provisions concerning treaties of international organisations’.1 As regards (b), the Commission do not deny the legal force of oral agreements under international law, but consider that ‘in the interests of clarity and simplicity, its draft articles on the law of treaties must be confined to agreements in written form’.2 As regards (c), the Commission had already concluded in 1963 that the draft articles should not contain any provisions concerning the effect of the outbreak of hostilities upon treaties because ‘study of this topic would inevitably involve a consideration of the effect of the provisions of the Charter concerning the threat or use of force upon the legality of the recourse to the particular hostilities in question’; this question could not, in the Commission’s view, be conveniently dealt with in the context of its work on the law of treaties.3 As regards (d), the Commission had decided that the question of succession of States in respect of treaties could be ‘more appropriately dealt with under the item of its agenda relating to succession of States and Governments’.4 As regards (e), the Commission likewise considered that no useful provisions could be formulated on the effect upon treaties of the extinction of the international personality of a State ‘without taking into account the problem of the succession of States to treaty rights and obligations’.5 As regards ( f ), the Commission had agreed in 1964 that the question of the international responsibility of a State with respect to a failure to perform a treaty obligation ‘would involve not only the general principles governing the reparation to be made for breach of a treaty, but also the grounds which may be invoked in justification for the nonperformance of a treaty’; the Commission accordingly decided to take up these 1 Yearbook of the International Law Commission (1966–ii), 187. 2 Ibid., 189. 3 Yearbook of the International Law Commission (1963–ii), 189. The Institut de Droit International has now taken up the topic of the effects of armed conflicts on treaties, Professor Bengt Broms acting as rapporteur: see 59 Annuaire de l’Institut de Droit International (1981); Part i, 201–84. 4 Yearbook of the International Law Commission (1966–ii), 177. 5 Yearbook of the International Law Commission (1963–ii), 189.

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matters in connexion with its study of State responsibility.6 As regards (g), the Commission had thought it inadvisable to deal with the ‘most favoured nation’ clause in its general codification of the law of treaties, believing it might at some future time appropriately form the subject of a special study.7 As regards (h), there was a division of opinion within the Commission on whether the draft articles on the law of treaties should cover the application of treaties providing for obligations or rights to be performed or enjoyed by individuals, some members taking the view that such a provision would go beyond the scope of the law of treaties.8 Finally, as regards (i), the Commission pointed out in the introduction to their final set of draft articles on the law of treaties that consideration of the whole question of the relationship between treaty law and customary law ‘would lead it far outside the scope of the law of treaties proper and would more appropriately be the subject of an independent study’.9 Each and every one of these reasons, considered in isolation, can be justified. But, cumulatively, they reveal the Commission’s uncertainty about the scope of the law of treaties. This is not surprising. Treaties are one of the primary sources of international law in general; they are simultaneously technical instruments governed by a distinct set of rules relating to their conclusion, entry into force, interpretation, application, amendment, validity and termination. In the broader sense, the law of treaties touches upon and interacts with every other branch of general international law. As Rosenne aptly puts it, many of the articles in the Convention ‘only deal with the treaty-law aspect of a given hypothesis which itself may have points of contact with other topics’.10 This no doubt explains the Commission’s unwillingness to venture more than they thought strictly necessary beyond the confines of the law of treaties viewed in the narrower sense — that is to say, as a series of provisions covering the formation, effects and duration of written agreements between States. It is as if the Commission had deliberately decided to paint in the style of Pieter de Hooch rather than Titian or Veronese. They denied the broader canvas in order to concentrate on the domestic minutiae. There is nothing wrong with this; indeed, there is much to be said for this disciplined approach. ­Nevertheless, the ­Commission 6 7

8 9 10

Yearbook of the International Law Commission (1966–ii), 177. Ibid. The m.f.n. clause was placed on the agenda of the Commission in 1967. A brief history of the consideration of this topic by the Commission, leading to the submission to the General Assembly in 1978 of a thirty-article draft on m.f.n. clauses, is given in The Work of the International Law Commission, 73–77 (3rd ed., 1980). Yearbook of the International Law Commission (1964–ii), 176. Yearbook of the International Law Commission (1966–ii), 177. Rosenne, ‘The settlement of treaty disputes under the Vienna Convention of 1969,’ Z.a.ö.R.V. (1971), at 61.

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did not escape criticism at the Conference for having subjected their draft to such severe limitations. In particular, many delegations were disturbed at the exclusion from the scope of the draft of treaties between States and international organisations or between international organisations themselves; and this led to the adoption by the Conference of a resolution recommending that the Commission take up the study, in consultation with the principal international organisations, of the question of treaties concluded between States and international organisations or between two or more international organisations.11 As we have seen, this has led to the submission by the Commission in 1982 of a final set of eighty draft articles (together with an Annex) on the topic with a recommendation that a plenipotentiary conference be convened to study the draft articles and to conclude a convention on the subject.12 The exclusion from the scope of the Convention of the problem of succession of States in respect of treaties did not attract so much criticism at the Conference. At the time, it was envisaged that the Commission would be tackling this topic within the framework of its study of the problem of succession of States and Governments. It was thought to be more relevant to the law of succession than to the law of treaties.13 However, when, after the conclusion of its work on the law of treaties in 1966, the Commission took up again in 1967 the topic of succession of States and Governments, its new Special Rapporteur on ‘Succession of States in respect of treaties’ (Sir Humphrey Waldock) rapidly reached the conclusion, in his first report on the topic, that ‘… the solution of the problems of so-called succession in respect of treaties is to-day to be sought within the framework of the law of treaties rather than of any general law of succession’.14 Subsequent developments, leading to the opening for signature on 23 August 1978 of the Vienna Convention on Succession of States in respect of Treaties, have been fully covered elsewhere.15 11 Official Records, First Session, 2nd, 3rd and 11th meetings. 12 Chapter i supra, p. 6, and note 11 to that chapter. [Editors’ note: not included in this Anthology]. 13 This was the conclusion reached by a sub-committee of the Commission in 1964, which recommended inter alia that succession in respect of treaties should be dealt with in the context of succession of States, rather than in that of the law of treaties. The full text of the sub-committee’s report, which was approved by the Commission in 1963, will be found in Annex ii to the Report of the International Law Commission covering the work of its fifteenth session: Yearbook of the International Law Commission (1963–ii), 260–300. See also Sinclair, ‘Some Reflections on the Vienna Convention on Succession of States in respect of Treaties’, Essays in honour of Erik Castren, 149–56 (1979). 14 First Report on Succession of States in respect of Treaties (doc. A/CN.4/202): reproduced in Yearbook of the International Law Commission (1968–ii), 87–93 (at 89). 15 Sinclair, loc. cit., footnote 13 above; and Yasseen, ‘La Convention de Vienne sur la Succession d’États en matière de traités’, 24 Annuaire français de droit international (1978), at 59–113. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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And so we have, in terms of the title to this section, the unintended triptych. The central panel is, of course, the Vienna Convention on the Law of Treaties. The right-hand panel, now completed, is the Vienna Convention on Succession of States in respect of Treaties (which, pace the view expressed by Sir Humphrey Waldock, has at least as much to do with the law of succession as with the law of treaties); and the left-hand panel will be constituted by the projected convention on the law of treaties between States and international organisations or between international organisations. It might be thought that a triptych so composed would exhaust the content of the law of treaties. But the law of treaties, even in the narrower sense, has some of the qualities to be discerned in a series of mirrors so fixed as to provide infinitely receding images; for it is no secret that the Commission’s proposals on the law of treaties between States and international organisations or between international organisations would exclude from their scope treaties concluded between international organisations and subjects of international law other than States or organisations (e.g. an agreement concluded between an international organisation and the International Committee of the Red Cross).16 The unintended triptych is, therefore, even in its own terms, an incomplete work — or, to change the metaphor, an unfinished symphony. But this is no way to underrate or undervalue the significance of what has been achieved by way of codification of the law of treaties. The Vienna Convention on the Law of Treaties incorporates technical solutions to a number of problems which have long troubled international lawyers, even if these technical solutions are frequently formulated as residual rules to be applied unless the particular treaty otherwise provides or a different intention is otherwise established. Indeed, it is a mark of the subtlety and sophistication of the Commission’s proposals that they were so often formulated in such a way as to give maximum effect to the principle of the autonomy of the negotiating States. The major task at the Vienna Conference was however to establish a proper balance between the requirement of security of treaties and the demand for recognition of newly emerging concepts, such as jus cogens, which might be destructive of that very security. A balance has been struck (some might say a precarious balance), and this balance contains one element which, despite the criticisms to which it has been exposed, is heartening — namely, a renewed role for the International Court of Justice in relation to the interpretation and application of the jus cogens articles. 16

Report of the International Law Commission on the work of its 34th session (1982), g.a.o.r. (xxxvii) Supplement No. 10 (A/37/10), 36. Cf. Chapter i supra, p. 7. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The Temporal Element But at my back I always hear Time’s wingèd chariot hurrying near. marvell, To his Coy Mistress

The time factor in the law of treaties was always present in the consciousness of the Commission and of the participants in the Conference. In some instances, it had to be confronted and settled as an integral part of the rule which it was proposed to lay down. This is certainly true of Articles 24 and 25 (on entry into force and provisional application); it is even more true of Article 30 (successive treaties relating to the same subject-matter). In other instances the intertemporal element had to be incorporated, even if in a distinctly muted form, as a subsidiary component of the substantive rule; in this context, reference can be made to paragraph 3 of Article 31 requiring, as part of the general rule of interpretation, that there be taken into account, together with the context, not only subsequent agreements between the parties and subsequent practice, but also ‘any relevant rules of international law applicable in the relations between the parties’. Finally, the time factor had to be tackled directly in the context of Articles 28 (non-retroactivity of treaties) and 4 (non-retroactivity of the Convention). Let us look a bit more closely at certain aspects of the rules laid down in the Convention with respect to entry into force and provisional application. Paragraph 3 of Article 24 provides that: When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. There can be little quarrel with this rule, and indeed it was not discussed at the Conference. What is interesting is its genesis. In first proposing a rule in this sense to the Commission, the Special Rapporteur (Sir Humphrey Waldock) has emphasised that it was based on the principle that a treaty does not have retroactive effect unless it otherwise provides; and that this principle applies equally in those cases where the treaty has been signed subject to ratification. There is no longer any mention of non-retroactivity in the Commission’s commentary to what is now Article 24; but the rationale of the rule in paragraph 3 must surely be that a State’s consent to be bound by a treaty expressed by ratification or accession has no retroactive effects, even if the instrument of ratification or accession is deposited after the treaty has entered into force

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generally.17 In other words, paragraph 3 of Article 24 can be viewed as simply another aspect of the general principle of non-retroactivity. Article 25 raises quite different problems. The Commission had presented a draft article entitled ‘Entry into force provisionally’ which provided that ‘a treaty may enter into force provisionally’ if certain conditions were met. The concept of provisional entry into force was strongly attacked on the ground that there could not be two entries into force and that confusion should be avoided between mere application, which was a question of practice, and entry into force, which was a formal legal notion.18 As one of the participants explained: The word ‘provisionally’ introduced a time element, and unless emphasis was placed on application rather than entry into force, it would be necessary to specify that the word ‘provisionally’ referred to time and not to legal effects.19 In the light of these and other interventions, and on the basis of an amendment tabled by the delegations of Czechoslovakia and Yugoslavia, it was decided to re-formulate Article 25 in terms of provisional application rather than provisional entry into force. In terms of theory and doctrine, this change would appear to be justified, since the better view is that provisional application results from an accessory or secondary informal agreement among the parties to a treaty that the substantive provisions of the treaty, or certain selected substantive provisions, should be applied pending the formal entry into force of the treaty.20 It may also be helpful to analyse at this stage the Commission’s handling of the inter-temporal element in the context of the interpretation of treaties. In the set of draft articles adopted by the Commission on first reading, Article 69, paragraph 1, under the heading ‘General Rule of Interpretation’, was formulated as follows: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to each term: (a) in the context of the treaty and in the light of its objects and purposes; and 17 18 19 20

Nascimento e Silva, ‘Le facteur temps et les traités’, 154 Recueil des Cours (1977), at 227–8. Official Records, First Session, 26th meeting (Myslil and Maresca). Ibid. (Rosenne). Nascimento e Silva, loc. cit., at 230–2, citing interventions by Messrs. Briggs, Reuter and Ago at the 1965 session of the Commission.

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(b) in the light of the rules of general international law in force at the time of its conclusion.21 In their commentary to this provision, the Commission stressed that subparagraph (b) constituted the application to treaties of the general principle of inter-temporal law enunciated by Judge Huber in the Island of Palmas arbitration, namely that: …a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled.22 However, the members of the Commission were divided in their views on this particular formulation. Some members, while accepting that the initial meaning of the terms of a treaty is to be found by reference to the law in force at the time of its conclusion, took the view that the interpretation of the treaty might be affected by subsequent changes in the general rules of international law. The majority, however, considered that the effect of changes in the law upon a treaty was more a question of the modification of the rule laid down in the treaty by a later legal rule than one of the interpretation of the terms of the treaty.23 As a result, the Commission dropped the phrase ‘in force at the time of its conclusion’ in their final draft of the ‘General Rule of Interpretation’ (which has now become Article 31 of the Convention). The Commission explained their shift in attitude as follows: On re-examining the provision, the Commission considered that the formula used in the 1964 text was unsatisfactory, since it covered only partially the question of the so-called intertemporal law in its application to the interpretation of treaties and might, in consequence, lead to misunderstanding. It also considered that, in any event, the relevance of rules of international law for the interpretation of treaties in any given case was dependent on the intentions of the parties, and that to attempt to formulate a rule covering comprehensively the temporal element would present difficulties.24 It further considered that correct application of the temporal element would normally be indicated by interpretation 21 Yearbook of the International Law Commission (1964–ii), 199: emphasis supplied. 22 2 r.i.a.a., 831. 23 Elias, ‘The Doctrine of Inter-Temporal Law’, 74 a.j.i.l. (1980), at 302–3; cf. Nascimento e Silva, loc. cit., at 266–7. 24 Yearbook of the International Law Commission (1966–ii), 222.

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of the term in good faith. The Commission therefore concluded that it should omit the temporal element and revise the reference to international law so as to make it read ‘any relevant rules of international law applicable in the relations between the parties’. This episode demonstrates vividly the complexities of the general principle of inter-temporal law and the reluctance of the Commission (and indeed of the Conference) to come to grips with the problem of how it should be applied in relation to the interpretation of treaties. Here again, the time factor proved to be a notable source of nervousness and confusion. But of course the time factor had to be faced squarely in the context of what has now become Article 28 of the Convention dealing with the non-­ retroactivity of treaties. As we have seen, the principle of non-retroactivity embodied in Article 28 is cast as a residual rule to be applied ‘unless a different intention appears from the treaty or is otherwise established’. In other words, non-retroactivity is not a rule of jus cogens; everything depends on the intentions of the parties.25 Despite the difficulties which they confronted in seeking to formulate precisely the general principle of non-retroactivity of treaties, one can almost sense the feeling of relief with which the Commission must have moved from consideration of the inter-temporal law to consideration of the principle of non-retroactivity. Here at least they were on more solid ground, relying, as they could, on a considerable body of international jurisprudence. But the concern which the time factor provoked in the participants at the Conference was not altogether dissipated by the adoption of Article 28. It manifested itself again in the concluding stages of the Conference in the context of proposals for a specific article on the non-retroactivity of the Convention itself. These proposals (which subsequently led to the inclusion in the Convention of Article 4) evoked a sympathetic response from the overwhelming majority of the participants; but it is noteworthy that the sympathetic response was dictated by widely differing considerations. For some delegations, a provision on the lines of Article 4 was needed because several of the provisions in the Convention (Articles 12, 14, 49, 50 and 56) introduced fundamental changes in practice or ran counter to generally accepted rules of international law;26 for other delegations, a provision on the lines of Article 4 was considered desirable, not simply because certain articles in the Convention might not be expressive of rules of customary international law, but more significantly to 25 26

See Chapter iv supra, p. 85. [Editors’ note: not included in this Anthology]. Official Records, Second Session, 100th meeting (Carmona).

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emphasise that the dispute-settlement machinery could not be invoked in relation to c­ ontinuing disputes involving treaties concluded before the entry into force of the Convention with respect to the parties in dispute.27 Throughout the debates on what has now become Article 4, the underlying, if not clearly articulated, anxiety was that, notwithstanding the terms of Article 28, some States parties to the new Convention might seek to argue that particular provisions had retroactive effects; the danger was the more real given that the Commission had, in their commentaries to what are now Articles 52, 53 and 64 of the Convention specifically declared that these provisions should not be interpreted as applying retroactively, thereby possibly implying (on an a contrario argument) that other provisions could be interpreted as applying retroactively.28 However that may be, the vast majority of delegations represented at the Conference, if for widely varying reasons, wished to affirm in positive terms the non-retroactivity of the Convention itself (that is to say, its non-application to treaties concluded by States before the entry into force of the Convention with regard to such States), while preserving the application to such treaties of any rules set forth in the Convention to which treaties would be subject independently of the Convention (that is to say, rules of customary international law or general principles of law); and this is the solution now embodied in Article 4. Article 4 does of course operate as an additional, and highly significant, limitation upon the scope of the Convention. To the substantive limitations noted at the beginning of this Chapter must be added the severe temporal limitation imposed by Article 4. There has been little occasion yet, in the application of the Convention, to assess the full implications of Article 4;29 for present purposes, it is sufficient only to note that the non-retroactivity of the Convention further diminishes its role as a treaty instrument. III

The Invalidity of Treaties ‘Well, I sha’n’t go, at any rate,’ said Alice: ‘besides that’s not a regular rule: you invented it just now.’ ‘It’s the oldest rule in the book,’ said the King. lewis carroll, Alice’s Adventures in Wonderland

27 28 29

Ibid., 101st meeting (Blix). Nascimento e Silva, loc. cit., at 288. Some of these implications are addressed by Vierdag, ‘The law governing treaty relations between parties to the Vienna Convention on the Law of Treaties and States not party to the Convention’, 76 a.j.i.l. (1982), at 779–801.

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This brief excerpt from the trial scene in Alice in Wonderland is illustrative of the atmosphere pervading the debates at the Conference on some of the more controversial grounds of invalidity now embodied in Part V of the Convention. More particularly is it evocative of the gulf between the protagonists of jus cogens and the doubters; and if there is a modicum of truth in Alice’s protest, there is also a modicum of truth in the King’s retort. Indeed, Alice’s world affords other parallels. The Queen’s outrageous call for ‘Sentence first — verdict afterwards’ was precisely what many delegations feared would be the result if the detailed rules of invalidity were spelt out without any impartial check upon their unilateral application by individual States. In retrospect — or at least in the perspective of fourteen years’ subsequent experience — it can be seen that the hopes and fears of those on both sides of the divide were equally exaggerated. The impact of the Convention on the stability of treaty relations has so far been neutral. Treaty disputes have not disappeared; but neither have they proliferated. Admittedly, there have been dicta by individual judges in the International Court of Justice supportive of an expanded notion of jus cogens; but these dicta remain no more than dicta, and the influence of the jus cogens concept is to be seen rather more in other branches of international law than in the law of treaties itself. In particular, the asserted distinction between ‘international crimes’ and ‘international delicts’ in the International Law Commission’s draft articles on State responsibility owes much to the new-found enthusiasm for establishing a hierarchical order among international legal obligations; and, equally, any further development of the actio popularis (which, if it ever takes place, will inevitably be subjected to stringent conditions because of the danger it poses to the principle of non-intervention) will no doubt be founded on the analogous distinction between obligations erga omnes and other obligations — that is to say, the distinction hinted at in the Barcelona Traction case. What of the future? It can be anticipated that, on the political level, vague charges will continue to be made about the invalidity of so-called ‘unequal’ treaties, and that an attempt may be made to sustain some of these charges by reference to grounds of invalidity codified in the Convention. But the instances in which the validity of a treaty may be impeached on the more classical grounds of error and fraud will remain as infrequent as they have been in the past. Jus cogens will continue to be a fruitful subject for scholarly speculation and analysis; but the occasions on which it may be invoked to challenge the validity of a treaty will be rare indeed, if only because the vast majority of States can be expected to behave with reasonable restraint and to refrain from concluding treaties the content of which would shock the conscience of all mankind.

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Can it be said therefore that all the sound and fury generated at the Conference on the content of Part V of the Convention signified nothing? The cynic might argue so; but the cynic would be wrong. The Conference was an arena in which various conflicts of interest were fought out — between East and West, between old established States and newly independent States, between those harbouring a territorial grievance and the objects of that grievance, and between the devotees of pacta sunt servanda and those seeking release from what were considered to be inconvenient treaty obligations. Those various groupings overlapped and interwove, forming complicated patterns of mutual interest on particular issues. But above and beyond the traditional and identifiable cross-current of national attitudes and perceptions was a division between those participants who viewed codification of the substantive rules of the law of treaties as an end in itself and those who believed that codification of the substantive rules must march hand in hand with the development of machinery for the even-handed application of those rules. For those of both persuasions, the fact that the Convention has not attracted general, far less universal, participation must be accounted something of a failure: for those of the former because it may be taken to suggest something less than full accord on the content of the law of treaties, and for those of the latter because it demonstrates the continuing (and, in their view, perverse) reluctance of many States to accept that international law is as much a discipline as any other system of law. But the expression ‘something of a failure’ may be too strong. It ignores the true impact of the Convention as an instrument for consolidating and fixing in written form the central features of the law of treaties between States; for codifying what had hitherto defied codification, for settling longdisputed theoretical issues by ingenious formulations, and for integrating, within the process of codification, elements of progressive development some of which are difficult to disentangle from codification stricto sensu. It is to this aspect of the Convention that we now turn. IV

The Final Paradox A paradox, a paradox — a most ingenious paradox. w.s. gilbert, The Pirates of Penzance

And so we come to the final paradox. We have already seen how, in 1956, the Commission approved a proposal made by its then Special Rapporteur on the Law of Treaties (Fitzmaurice) that the codification of the law of treaties should take the form of an expository code; and how, in 1961, the Commission reversed

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its position and decided that the codification of the law of treaties should be completed in a form which could serve as a basis for a convention.30 Now we have the Vienna Convention; but partly because the Convention is subject to the substantive and temporal limitations which have already been noted, and partly because it has not yet attracted more than forty-two instruments of ratification or accession,31 its practical effect as a treaty instrument is strictly limited. The ‘treaty on treaties’ has accordingly so far had little or no impact as a treaty. But as a code — or rather as a restatement and consolidation of existing or emergent principles of treaty law — it has had a dynamic and continuing influence, and it will continue to have that influence. Long before the formal entry into force of the Convention, its provisions were, as has already been demonstrated, being regularly cited and applied, not as treaty provisions but as the expression in large measure of existing principles of customary international law, by the International Court of Justice and by standing or ad hoc arbitration tribunals; and it can confidently be asserted that the legal advisers to Foreign Ministries and to international organisations will nowadays turn initially to the Convention for guidance when confronted with difficult or controversial points of treaty law. The guidance may not always be decisive, given the generality of the rules incorporated in the Convention and the fact that its scope is so limited; but the impact of the Convention on the treaty-making practices of governments cannot be gainsaid. Despite everything, therefore, the Convention has begun to exercise a decisive influence on the growth and development of treaty law; and attempts are even being made to transpose some of its more controversial features, such as the jus cogens doctrine, into other branches of international law. The fact nonetheless remains that the fate of the Convention qua treaty instrument demonstrates clearly the restrictions which the law of treaties itself (and by its very nature) imposes upon the application of conventional instruments. It is indeed the existence of these very restrictions which puts a premium upon the operation of customary law as a vehicle for determining the rights and obligations of States, even in the field of the law of treaties itself. V

Treaty and Custom Custom, then, is the great guide of human life — Hume, Inquiry concerning Human Understanding

30 Chapter i supra, pp. 3–5. [Editors’ note: not included in this Anthology]. 31 As of 31 March 1983.

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The end of our study and analysis is also the beginning of another — namely, the ever-evolving relationship between treaty and custom. That relationship is particularly delicate when the treaty concerned is designed to codify rules of customary law. Some, including Thirlway, have expressed considerable doubts about the value of the multilateral codifying convention. It is rightly pointed out that ‘customary law develops of its own accord, without there being any need for States to do more than continue their day-to-day relations, whereas a treaty régime can only be changed by deliberate act of the parties’.32 Furthermore, there is the danger, pointed out by Baxter, that a codifying convention can interfere with the organic growth of the law through custom: But it must be observed that if a treaty is declaratory or constitutive of customary international law, the customary international law dehors the treaty (but identical in terms with it) is frozen in the same pattern as the law of the treaty. To the extent that customary international law assimilates itself to the treaty, to that same extent the growth and further development of customary international law will be arrested. If the treaty is revised or amended, the customary international law will remain in the image of the treaty as it was before it was revised. The process whereby the treaty exercises its effect as declaratory of the law or passes into customary law must be repeated all over again with the amendment or new treaty.33 To this may be added the further argument that, for States which do not become parties to the codifying convention, the latter is only evidence of the state of customary international law at the time of its adoption. For such States, other evidence, in particular of practice since the adoption of the convention, may be invoked to demonstrate that, for them, the law has not stood still; but the convention itself will still remain strong evidence of the continuing state of the law, so that it will undoubtedly have a freezing effect upon the development of customary international law, even for States not parties to it.34 These arguments are formidable, but they are by no means decisive. They depend very much on the view which one takes of customary international law, and its relationship to conventional law. Much has been written in recent years about the constituent elements of customary international law.35 ­Broadly 32 Thirlway, op. cit., at 125. 33 Baxter, ‘Treaties and Custom’, 129 Recueil des Cours (1970), at 96–7. 34 Thirlway, op. cit., at 126. 35 See, in particular, Thirlway, op. cit.; D’Amato, The Concept of Custom in International Law (1971); Baxter, loc. cit., footnote 33 above, at 31–104, and ‘Multilateral Treaties as Evidence

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speaking, it may be said that the existence of a rule of customary international law postulates two elements: (1) a general practice of States and (2) the acceptance by States of the general practice as law.36 The content of each of these two elements is controversial. There is first of all the question whether a claim, as opposed to a physical act, can constitute State practice. For D’Amato, a claim cannot as such constitute a material component of custom, although it may provide some evidence of opinio juris.37 He argues that: A State may make certain claims in diplomatic correspondence, but these often clash with competing claims of other States and thus are not a reliable indicator of the content of international law… But a State can act in only one way at one time, and its unique actions recorded in history, speak eloquently and decisively.38 This limited view of one of the two main constituent elements of custom has been cogently criticised by Akehurst who points out that physical acts of a State, which may in any event clash with the physical acts of other States, do not necessarily produce a more consistent picture than claims or other statements do.39 Furthermore, D’Amato takes the view that a treaty or convention can amount to what he terms an ‘act or commitment’ of a State which may be constitutive of a general practice. But this also imports a measure of confusion into the process whereby norms of customary international law are generated; for treaties or conventions are not physical acts in themselves — they are merely statements or promises undertaken by the States parties to them.40 Furthermore, if (as is usually the case) a treaty or convention creates rights and obligations only inter partes, it seems illogical to attribute greater weight to such an instrument than to other statements as evidence of the rules of customary international law applicable generally — that is to say, even in relation to States not parties to the instrument. Thirlway takes a rather broader view of the quantitative element in the formation of custom by admitting the relevance of claims and other statements in State practice. However, he considers that such claims or other statements are relevant only when made in the context of a concrete situation and not of Customary International Law’, 41 b.y.i.l. (1965–66), at 257–300; and Akehurst, ‘Custom as a Source of International Law’, 47 b.y.i.l. (1974–75), at 1–53. 36 Schwarzenberger, A Manual of International Law, 32 (1967). 37 D’Amato, The Concept of Custom in International Law, 88 (1971). 38 D’Amato, op. cit., at 50–1. 39 Akehurst, loc. cit., at 3. 40 Ibid.

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when made, as it were, in abstracto. For example, he would treat the recognition by a representative of a State at a diplomatic conference of the existence of an alleged rule of customary international law as being confirmatory, rather than constitutive, of custom.41 This distinction between what is confirmatory of custom, and what is constitutive of it, may be thought to be rather fine,42 the more particularly when unilateral declarations made by senior government officials can be held, in certain circumstances, to be as binding upon a State as a treaty duly ratified.43 The better view would appear to be that State practice covers any act or statement made by or on behalf of a State from which its view can be inferred about the existence or content of a rule of international law. In this context, protest plays an important role. As Akehurst puts it: When acts or claims by some States encounter protests from other states, the acts (or claims) and protests often cancel each other out, with the result that no rule of customary law comes into being.44 Protest normally has this negative connotation, in the sense that it may, if sustained, prevent the formation of custom. Akehurst maintains that protest may also have a positive rule in the creation of custom,45 but this may be doubted. He is nonetheless right in asserting that: In determining the relative weight to be attached to acts or claims and to protests against such acts or claims, it is necessary to take into account ‘the number of protests, the vehemence of the protests, the subsequent actions of the parties, the importance of the interests affected and the effluxions of time’. Thus isolated protests in the face of repeated claims are probably insufficient to prevent the growth of a customary rule based on such claims.46 Practice would seem to confirm this observation. One need only consider claims to exclusive economic zones advanced by States during the negotiation of the (Third) United Nations Convention on the Law of the Sea; although the exclusive economic zone (EEZ) was a new concept deriving from the process 41 Thirlway, op. cit., at 58. 42 Akehurst, loc. cit., at 4. 43 As in the Nuclear Tests Cases. 44 Akehurst, loc. cit., at 39. 45 Ibid., at 40. 46 I.C.J. Rep. (1969), at 44.

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of negotiation itself, many States ‘jumped the gun’ by advancing EEZ claims in their national legislation before the adoption of the Convention — and it would be a bold jurist who would assert that such claims are or were ill-­ founded, notwithstanding that some States may have protested against such (possibly) premature assertions. The other principal element in the formation of custom — the opinio juris sive necessitatis — need not detain us long. Again, there are differing views on what is required to establish the opinio juris. The International Court of Justice, in the North Sea Continental Shelf cases, has stressed the requirement that acts alleged to be constitutive of a general practice accepted as law: …must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.… The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.47 This is the traditional concept of the opinio juris. But it is not altogether satisfactory since, as Akehurst points out, ‘it seems to require that States must believe something is already law before it can become law’.48 Various theories have been constructed to overcome this intellectual difficulty. Thus Thirlway states: …the requirement of opinio juris is equivalent merely to the need for the practice in question to have been accompanied by either a sense of conforming with the law, or the view that the practice was potentially law, as suited to the needs of the international community, and not a mere matter of convenience or courtesy. The psychological element would thus also include the view that if the practice in question was not required by the law, it was in the process of becoming so.49 More radical is the approach of D’Amato who appears to deny the need for the opinio juris. D’Amato proposes that for the qualitative element in the formation of custom (represented traditionally by the opinio juris), there should be substituted the requirement that the practice in question must be preceded or accompanied by the ‘articulation’ of a rule in the sense of the practice:

47 Akehurst, loc. cit., at 32. 48 Thirlway, op. cit., at 53–4. 49 D’Amato, op. cit., at 75.

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The articulation of a rule of international law … in advance of or concurrently with a positive act (or omission) of a State gives a State notice that its action or decision will have legal implications. In other words, given such notice, statesmen will be able freely to decide whether or not to pursue various policies, knowing that their acts may create or modify international law. The absence of prior notification that acts or abstentions have legal consequences is an effective barrier to the extrapolation of legal norms from patterns of conduct that are noticed ex post facto.50 In D’Amato’s system, ‘articulation’ of a rule of international law could be effected by means of diplomatic correspondence, by a General Assembly resolution, by the writings of a responsible jurist or by a court, provided the ‘articulation’ receives sufficient publicity for States to have actual or constructive notice of it.51 The ‘rule of international law’ articulated in D’Amato’s system must presumably denote a rule advanced as a new rule de lege ferenda, rather than an existing rule.52 D’Amato’s theory, while interesting, lacks conviction. It seems to be clearly linked with his general approach to international law as ‘a psychological bargaining mechanism involving conflicting claims among national decisionmakers and their legal counsel’ and ‘as a process by which the better of two conflicting claims prevails’.53 In this light, Thirlway’s criticism of the theory is persuasive: Thus the reason why the elements of generality and repetition have been excluded from Professor D’Amato’s conception of the quantitative constituent of a customary rule is because for him a rule of customary law is merely something of a greater or lesser degree of persuasiveness: it is neither a statement of general practice or conformity, nor an assertion of an obligation. Thus both the element of ‘custom’ and the element of ‘law’ in any traditional sense have been whittled down to vanishing point.54 D’Amato of course takes the view that treaties ‘articulate’ norms of international law. But the problem with this approach is that treaties do not purport to 50 Ibid., at 85–7. 51 Thirlway, op. cit., at 50. 52 D’Amato, op. cit., at 18. 53 Thirlway, op. cit., at 51. 54 Akehurst, loc. cit., at 43, footnote 7.

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articulate the norms which they contain as norms of customary law, but rather as norms of treaty law, whatever their original source may have been.55 The real issue would accordingly appear to be whether treaties, considered as elements of State practice rather than as ‘articulations’, need to be accompanied by opinio juris in the traditional sense in order to be regarded as being expressive of or as generating rules of customary international law; and, if so, how this requirement of opinio juris can be satisfied. In this context, evidence of opinio juris may take the form of statements about customary law in the text of a treaty or in the travaux préparatoires.56 This is particularly the case with codifying conventions. We have already sought to trace57 from the travaux préparatoires of the Vienna Convention on the Law of Treaties indications of which provisions in the Convention are expressive of customary law rules and which provisions partake more of progressive development. Akehurst also takes the view that statements by States made subsequently to the conclusion of a treaty can fulfil the requirement of opinio juris: Such subsequent statements can take several different forms. They may allege that customary law was the same at the time of the treaty’s conclusion, or they may allege that customary law has fallen into line with the treaty at some time (specified or unspecified) after the treaty’s conclusion. They may be made by States parties to the treaty, or by other States. They may refer to the treaty by name, or they may not. In a sense any invocation of a provision of a treaty by or against a State which is not a party to it must be interpreted as a statement that customary law coincides with that provision, unless the case can be explained by virtue of the rules of the law of treaties which occasionally allow a treaty to create rights or obligations for third States.57 While there is some force in Akehurst’s view, it is submitted that subsequent statements in this sense, whether made by States parties to the treaty or by other States, carry much less conviction than the actual practice of States generally. If and to the extent that States not parties to the treaty conform to, or seek to exercise rights deriving from, a provision in the treaty, their action may be taken as expressive of a conviction that that particular provision is expressive of, or has generated, a rule of customary law. But to the extent that they do 55 Akehurst, loc. cit., at 45. 56 In Chapter i. 57 Akehurst, loc. cit., at 49.

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not, subsequent statements made by States parties to the treaty that the treaty is expressive of or has generated a rule or rules of customary law will carry no more conviction than their intrinsic worth merits. It is the totality of the evidence which must surely count. Akehurst indeed, in a subsequent passage, goes far towards admitting this: It is also fairly likely that treaty rules will be accepted as rules of customary law if many States are dissatisfied with pre-existing customary law. Where such dissatisfaction exists, any well-publicized statement … may constitute a catalyst which will stimulate new practice and thus a new customary rule. But the statement, if it is only a statement of the lex ferenda, cannot itself create a new customary rule; it is the practice inspired by the statement, and accompanied by opinio juris, which creates the rule.58 From what has been said above, it will be apparent that the relationship between treaty and custom is a dynamic one. This is particularly true of the relationship between a codifying convention and custom. A codifying convention will, by definition, contain a large number of rules whose source lies in customary law (although the rules formulated in the codifying convention may embody supplementary or qualifying clauses which savour more of progressive development than codification). The rights and obligations of States parties to the codifying convention will, after it has entered into force and subject to whatever temporal or other limitations may be embodied in the convention, henceforth be regulated by the convention as regards matters falling within its scope. But for States not parties to the codifying convention, customary law will continue to apply; and customary law will continue to regulate matters not covered in the convention, even for States parties to the codifying convention. Thus, customary law continues to operate alongside a codifying convention; and the more limitations imposed on the scope of the codifying convention by the convention itself, the greater will be the room for the continued ­operation of customary law alongside the convention. As we have already seen, the Vienna Convention on the Law of Treaties deliberately excludes from its scope, by virtue of substantive or temporal limitations, many significant aspects of treaty law and practice. These will continue to be regulated by customary law, including any new developments in customary law brought about by the general practice of States accompanied by the opinio juris. This could be a cause of some concern if it were to be anticipated that new developments in customary law in relation to those matters of treaty law and practice which are not 58 Akehurst, loc. cit., at 52.

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regulated by the Vienna Convention would run counter to the rules embodied in the Convention itself. Fortunately, this risk would seem to be a very slight one, given the fact that the majority of the rules contained in the Convention are expressed as residual rules which will yield to any contrary provisions contained in a particular treaty. In sum, therefore, the relationship between the Vienna Convention and customary law will continue to be a subtle and complex one. The interplay between conventional and customary law provides constant challenges to the theoretician (and indeed to the practitioner). A codifying convention will influence the content and the development of custom, to the extent that particular norms contained in the convention may be regarded by a tribunal as being expressive of, or as generating, a rule of customary law; and customary law itself, operating alongside the codifying convention, has its role to play in filling in the gaps which any exercise in codification and progressive development inevitably leaves. It has been argued that ‘… in the long run the objective of ensuring unity of practice and obligation in international law will be more effectively achieved if the matters in question are left to the slow accumulation and growth of custom, than if the device of a codifying treaty is adopted’.59 Whatever merit there may be in this view of the matter (and it is a view which is certainly open to challenge), the fact remains that the process of progressive development and codification of international law through the activities of the International Law Commission and the United Nations General Assembly is bound to continue. Whether a particular topic selected for progressive development and codification should be translated into a convention will, or ought to, depend on the nature of the topic. Even if the decision is in favour of a codifying convention, there will still be ample scope for the operation of customary law on the topic, given the inherent limitations which the law of treaties imposes on the operation of conventional instruments. 59 Thirlway, op. cit., at 128–9.

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Chapter 27

Judge Robert Y. Jennings, Dissenting Opinion, Military and Paramilitary Activities in and against Nicaragua, 1986 Comment by Mubarak Waseem, Intern, BIICL Although Sir Robert Jennings contributed to 20 judgments and advisory opinions during his time as a judge at the ICJ from 1982–1995 (including his time as President from 1991–1994), he penned only four dissents, and one separate opinion, usually opting to contribute to the Court’s influential majorities.a Indeed, he was critical of “the ‘monograph’ type of opinions which may be stimulating in professorial seminars but can only confuse and discourage governments from becoming parties to a case if what they seek is a clear and unambiguous solution of their particular dispute”.b The dissenting opinion of Sir Robert Jennings in the merits phase of Military and Paramilitary Activities in and Against Nicaragua (“Nicaragua”) is arguably Jennings’ most erudite and well-known single-authored opinion on the World Court. The opinion is a sharp critique of the approach of the majority to many of the issues in the merits phase, rooted in Jennings’ positivist approach to the US reservation to the optional clause of jurisdiction under Article 36(2) of the Statute of the ICJ, excluding “disputes arising under a multilateral treaty”.c Although the dissent analyses issues of armed attack, collective self-defence and the principle of non-intervention in customary international law (issues

a Sir Robert Jennings dissented in Continental Shelf (Libyan Arab Jamahiriya v Malta) (Application by Italy for Permission to Intervene) [1984] ICJ Rep 3, 148; Application for Review of Judgment No 333 of the United Nations Administrative Tribunal (Advisory Opinion) [1987] ICJ Rep 18, 134; Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1982] ICJ Rep 240, 301; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14, 531. He wrote a separate opinion in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v USA) (Jurisdiction and Admissibility) [1984] ICJ Rep 392, 533. b RJ Jennings, ‘General Introduction’, in Zimmermann et al., The Statute of the International Court of Justice: A Commentary (1st edn, OUP 2006) 12. Jennings ascribed this tendency toward “indulgent” Separate and Dissenting Opinions to two of his British predecessors on the court, who displayed “a full measure of exhaustiveness” in their individual opinions – ibid, 11. c Nicaragua (Merits) [1986] (above n a), para 42.

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on which Jennings diverged from the majority), the extract below is Jennings’ analysis of the effect of the US reservation, and the interplay between convention and customary international norms, which formed the basis for many of his “no” votes to the operative paragraph of the majority’s judgment. The opinion carefully and methodically examines conceptual tensions between conventional and customary international law. For example, Jennings explores what is now commonly referred to as the “Baxter Paradox” (after American jurist Richard Reeve Baxter). He asks whether practice arising out of the UN Charter under the “novel” concept of collective self-defence in Article 51 could later give rise to a parallel norm in customary international law, and concludes that there is “no room and no need for the very artificial postulate of a customary law paralleling these Charter provisions”.d The dissent remains a powerful analysis of the relationship between ­Articles 38(1)(a) and (b) of the ICJ Statute, and critique of the approach of the m ­ ajority to finding norms of customary international law paralleling novel treaty provisions. d Dissenting Opinion, [1986] ICJ Rep 14, at p. 531. [Page 687 in this Anthology].

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Dissenting Opinion of Judge Sir Robert Jennings, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment of 27 June 1986: ICJ Reports 1986, p. 14, at pp. 528–536.

Dissenting Opinion of Judge Sir Robert Jennings, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits Judgment, International Court of Justice* Judge Sir Robert Jennings Although I have to disagree with several of the findings of the Court, particularly on the question of jurisdiction, I must, at the outset of this opinion, associate myself wholly with the Court’s expression of regret over the United States decision not to appear, or to take any part, in the present phase of this case. This non-appearance has been particularly ­unfortunate – perhaps not least for the United States – in a case which involves complicated questions of fact; where, in the merits phase, witnesses giving evidence as to the facts were called and examined by counsel for the Applicant, but their evidence was not tested by cross-examination by counsel for the Respondent; and where the Respondent itself provided neither oral nor documentary evidence. I also wish to express my regret that, in a Court which by its Statute is elected in such a way as to assure “the representation of the main forms of civilization and of the principal legal systems of the world”, the United States in its statement accompanying the announcement of the non-participation in the present phase of the case should have chosen to refer to the national origins of two of the Judges who took part in the earlier phases of the case. As to the effects of the United States failure to appear in the merits phase, and the meaning and application of Article 53 of the Court’s Statute, I am in entire agreement with the Court; and it is hardly necessary for me to add that I agree with the Court that, despite having chosen not to appear in the present phase, the United States remains a Party to the case, and is bound by the Judgment of the Court; just as is also Nicaragua. In a case like the present where an important question of jurisdiction had to be left to be dealt with at the merits stage, it is incumbent upon those Judges who have felt it necessary to vote “No” to some of the items of the dispositif, to explain their views, if only briefly. The reason is that the scheme * [Editors’ note: all footnotes in the original text re-started at No. 1 every page. These have been amended to continuous order for the purposes of the present Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of the dispositif is necessarily designed to enable the majority to express their decision. Even amongst them, reasons for the decision may differ; but the actual decision, expressed by the vote “Yes”, will be essentially the same decision for all of them. Not so for those voting “No”. An example is the very important subparagraph (3) of paragraph 292 in the present case, by which those voting “Yes” express their common view that the respondent State has acted in breach of its obligation not to intervene in the affairs of another State: – a vote, “No”, however, might mean that in the opinion of that Judge, the Respondent’s acts did not amount to intervention; or that there was a legal justification by way of collective self-defence; or that the action was justified as a counter measure; or that, as in the case of the present Judge, the Court had no jurisdiction to decide any of these things, and therefore the vote “No”, of itself, expressed no opinion whatsoever on those other substantive questions. I shall deal first with the multilateral treaty reservation and jurisdiction; then jurisdiction under the 1956 fcn Treaty; and finally make some brief comments on the substance of the Judgment.

Effect of the Multilateral Treaty Reservation

The multilateral treaty reservation is so oddly drafted that it must give rise to difficulties of interpretation. I agree with the Judgment, however, that, in spite of these difficulties, the Court has to respect it and apply it. The reason for this could not be clearer. The jurisdiction of the Court is consensual, this requirement being an emanation of the independence of the sovereign State; which, it is in the present case not without pertinence to note, is also the basis of the principle of non-intervention. Consequently the Court, in the exercise under Article 36, paragraph 6, of its Statute of its competence to decide a dispute concerning its jurisdiction, must always satisfy itself that consent has in fact been accorded, before it can decide that jurisdiction exists. Moreover, the Court has to be mindful that a consent given in a declaration made under Article 36, paragraph 2, – the “Optional Clause” – is a consent that no State needs to make and that relatively very few have ever done so. Accordingly, any reservation qualifying such a consent especially demands caution and respect. I have, therefore, voted “yes” to subparagraph (1) of paragraph 292. I agree with the decision of the Court, and for the reasons it gives in the Judgment, that the United States multilateral treaty reservation operates to exclude the Court’s jurisdiction in respect of the several multilateral treaties with which the dispute between the Parties to this case is concerned: including, most importantly, the Charter of the United Nations (particularly Art. 2, para. 4, governing the use of force or threat of force, and Art. 51 governing the right Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of individual and collective self-defence); and the Charter of the Organization of American States. I am unable, however, to agree with the Court’s persuasion that, whilst accepting the pertinence of the reservation, it can, nevertheless, decide on the Nicaraguan Application by applying general customary law, as it were in lieu of recourse to the relevant multilateral treaties. This proposition raises some interesting problems about the relationship of customary law and the United Nations Charter in particular; and I shall first touch briefly upon these; but only briefly because, there are two further and decisive reasons, which apply not only to the United Nations Charter but also to other relevant multilateral treaties, and show most cogently why they cannot be avoided in this case by retreating into custom.

…

Let us look first, therefore, at the relationship between customary international law, and Article 2, paragraph 4, and Article 51 of the United Nations Charter. There is no doubt that there was, prior to the United Nations Charter, a customary law which restricted the lawful use of force, and which correspondingly provided also for a right to use force in self-defence; as indeed the use of the term “inherent” in Article 51 of the United Nations Charter suggests. The proposition, however, that, after the Charter, there exists alongside those Charter provisions on force and self-defence, an independent customary law that can be applied as alternative to Articles 2, paragraph 4, and 51 of the Charter, raises questions about how and when this correspondence came about, and about what the differences, if any, between customary law and the Charter provisions, may be. A multilateral treaty may certainly be declaratory of customary international law either: as incorporating and giving recognition to a rule of customary international law that existed prior to the conclusion of the treaty or, on the other hand, as being the fons et origo of a rule of international law which subsequently secured the general assent of States and thereby was transformed into customary law. (see baxter, British Year Book of International Law, Vol. XLI, 1965–1966, p. 277) It could hardly be contended that these provisions of the Charter were merely a codification of the existing customary law. The literature is replete with statements that Article 2, paragraph 4, – for example in speaking of “force” rather than war, and providing that even a “threat of force” may be ­unlawful – ­represented an important innovation in the law. The late Sir Humphrey ­Waldock, in a passage dealing with matters very much in issue in the present case, put it this way: Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The illegality of recourse to armed reprisals or other forms of armed intervention not amounting to war was not established beyond all doubt by the law of the League, or by the Nuremberg and Tokyo Trials. That was brought about by the law of the Charter… (106 Collected Courses, Academy of International Law, The Hague (1962-II), p. 231) Even Article 51, though referring to an “inherent” and therefore supposedly pre-existing, right of self-defence, introduced a novel concept in speaking of “collective self-defence”.1 Article 51 was introduced into the Charter at a late stage for the specific purpose of clarifying the position in regard to collective understandings – multilateral treaties – for mutual self-defence, which were part of the contemporary scene. If, then, the Charter was not a codification of existing custom about force and self-defence, the question must then be asked whether a general customary law, replicating the Charter provisions, has developed as a result of the influence of the Charter provisions, coupled presumably with subsequent and consonant States’ practice; so that it might be said that these Charter provisions: generated a rule which, while only conventional or contractual in its 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 to the Convention. (I.C.J. Reports 1969, p. 41, para. 71) But there are obvious difficulties about extracting even a scintilla of relevant “practice” on these matters from the behaviour of those few States which are not parties to the Charter; and the behaviour of all the rest, and the opinio juris which it might otherwise evidence, is surely explained by their being bound by the Charter itself.2 There is, however, a further problem: the widely recognized special status of the Charter itself. This is evident from paragraph 6 of Article 2, that:

1 Cf. Aréchaga, 159 Collected Courses, The Hague (1978-i), at p. 87, and p. 96 where he goes so far as to assert: “The so-called customary law of self-defence supposedly pre-existing the Charter, and dependent on this single word [inherent] simply did not exist.” 2 For an assessment of this important question, especially in relation to the Declaration of Principles of Friendly Relations, see Professor Arangio-Ruiz, 137 Collected Courses, The Hague (1972-iii), Chap. iv.

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The Organization shall ensure that States which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. This contemplates obligations for non-members arising immediately upon the coming into operation of the Charter, which obligations could at that time only be derived, like those for Members, directly from the Charter itself. Even “instant” custom, if there be such a thing, can hardly be simultaneous with the instrument from which it develops. There is, therefore, no room and no need for the very artificial postulate of a customary law paralleling these Charter provisions. That certain provisions of the Charter are as such part of general international law, is the conclusion of no less an authority than Hans Kelsen: It is certainly the main purpose of Article 2, paragraph 6, to extend the most important function of the Organisation: to maintain peace by taking ‘effective collective measures’ to the relation between Members and non-members as well as the relation between non-members and thus to impose upon them the obligation stipulated in Article 2, paragraph 4. (The Law of the United Nations, 1950, p. 108) And again: From the point of view of existing international law, the attempt of the Charter to apply to states which are not contracting parties to it must be characterized as revolutionary. (Ibid., p. 110) Kelsen would hardly have used the word “revolutionary” if he had thought of it as depending upon a development of customary law.3 That the Court has not wholly succeeded in escaping from the Charter and other multilateral treaties, is evident from even a casual perusal of the Judgment; the Court has in the event found it impossible to avoid what is in effect a consideration of treaty provisions as such. As the Court puts it, the Court “can and must take them [the multilateral treaties] into account in determining the

3 For later views to much the same effect, see McNair, Law of Treaties, 1961. p. 217, where he speaks of these Charter provisions as possessing “a constitutive or semi-legislative character”; also Brownlie, International Law and the Use of Force by States, 1963, p. 113, e.g., “the difference between Article 2, paragraph 4, and ‘general international law’ is the merest technicality”; see also Tunkin, 95 Collected Courses, The Hague (1958-iii), pp. 65–66.

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content of the customary law which the United States is also alleged to have infringed” (para. 183). This use of treaty provisions as “evidence” of custom, takes the form of an interpretation of the treaty text. Yet the Court itself acknowledges that treatylaw and customary law can be distinguished precisely because the canons of interpretation are different (para. 178). To indulge the treaty interpretation process, in order to determine the content of a posited customary rule, must raise a suspicion that it is in reality the treaty itself that is being applied under another name. Of course this way of going about things may be justified where the treaty text was, from the beginning, designed to be a codification of custom; or where the treaty is itself the origin of a customary law rule. But, as we have already seen, this could certainly not be said of Article 2, paragraph 4, or even Article 51, of the United Nations Charter; nor indeed of most of the other relevant multilateral treaty provisions. The reader cannot but put to himself the question whether the Judgment would, in its main substance, have been noticeably different in its content and argument, had the application of the multilateral treaty reservation been rejected.

…

There is no need to pursue further the relationship of the United Nations Charter and customary law; for even if a different view of this question could be adopted, there remains, quite independently, a most cogent objection to any attempt to decide the issues of force and self-defence without the Charter of the United Nations or other relevant treaties. Although the multilateral treaty reservation qualifies the jurisdiction of this Court, it does not qualify the ­substantive law governing the behaviour of the Parties at the material times. Article 38 of the Court’s own Statute requires it first to apply “international conventions”, “general” as well as “particular” ones, “establishing rules expressly recognized by the contesting States”; and the relevant provisions of the Charter – and indeed also of the Charter of the Organization of American States, and of the Rio Treaty – have at all material times been principal elements of the applicable law governing the conduct, rights and obligations of the Parties. It seems, therefore, eccentric, if not perverse, to attempt to determine the central issues of the present case, after having first abstracted these principal elements of the law applicable to the case, and which still obligate both the Parties.

…

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There is yet another reason why it is, in my view, not possible to circumvent the multilateral treaty reservation by resort to a residuary customary law; even supposing the latter could be disentangled from treaty and separately identified as to its content. The multilateral treaty reservation does not merely reserve jurisdiction over a multilateral treaty, where there is an “affected” party not a party to the case before the Court; it reserves jurisdiction over “disputes arising under a multilateral treaty”. Clearly the legal nature of a dispute is determined by the attitude of the parties between which the dispute is joined. Nicaragua eventually, though not originally, pleaded its case in the duplex form of a dispute under multilateral treaties or, in the alternative, a dispute under customary law. But there are at least two sides to a dispute. The United States did not countenance a dispute arising only under custom. Its response to the charge of the unlawful use of force, was based firmly on the terms of Article 51 of the Charter. One party cannot in effect redefine the response of the other party. If the Respondent relies on Article 51, there is a dispute arising under a multilateral treaty. Consequently, I am unable to see how the main elements of this dispute – the use of force, and collective self-defence – can be characterized as other than disputes arising under a multilateral treaty. That being so, it follows from the multilateral treaty reservation, that the Court’s jurisdiction is lacking, not merely in respect of a relevant multilateral treaty, but in respect of that dispute. Accordingly, I have voted “No” to subparagraph (2) of paragraph 292; not at all on grounds of substance but on the ground of lack of jurisdiction. It follows also that I have had to vote “No” to subparagraph (4), dealing with certain direct attacks on Nicaraguan territory, and to subparagraph (5), dealing with unauthorized overflight of Nicaraguan territory; again because of lack of jurisdiction to decide one way or the other on the question of self-defence.

…

The question next arises whether there are any claims in the Nicaraguan application, which can be severed from disputes arising under multilateral treaties and can therefore be decided by the Court without trespass upon that area which the reservation has put outside the jurisdiction conferred upon it by the United States Declaration under Article 36, paragraph 2? To answer this question requires an exercise in the characterization of the various issues raised by the application. In particular, it requires some examination of the applicable law; for the multilateral treaty reservation characterizes excluded disputes in terms of the kind of law applicable to them. The Court could not, therefore, avoid some examination of the applicable law, even for those matters which

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it finally has no jurisdiction to decide; which shows how correct it was for the Court to join the consideration of the multilateral treaties reservation to the merits in 1984. It will be convenient to examine from the point of view of jurisdiction, first the question of intervention; then the mining of the ports; then the breaches of humanitarian law; and then the different question – different because it refers to Article 36, paragraph 1, of the Court’s Statute – of the jurisdiction of the Court under the Friendship, Commerce and Navigation Treaty of 1956.

The Principle of Non-intervention and the Multilateral Treaty Reservation

How far does the multilateral treaty reservation prevent the Court from deciding the questions concerning the principle of non-intervention? There can be no doubt that the principle of non-intervention is an autonomous principle of customary law; indeed it is very much older than any of the multilateral treaty régimes in question. It is, moreover, a principle of law which in the inter-­American system has its own peculiar development, interpretation and importance. One is, however, immediately faced with the difficulty that a plea of collective self-defence is obviously a possible justification of intervention and that this is the justification which the United States has pleaded. So it is again a dispute arising under Article 51 of the United Nations Charter. If one turns to the Inter-American system of law, the same problem arises. Article 18 of the Charter of the Organization of American States deals with intervention in peculiarly comprehensive terms, in that it prohibits intervention “for any reason whatever”; it also, in Article 21, deals with force and self-defence, but in specifically treaty terms. Thus, by that article, the American States “bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfillment thereof ” (emphasis added). The latter phrase can only mean that self-defence in the inter-American system by definition requires recourse to multilateral treaties; such as, obviously, the Rio Treaty on Mutual Assistance, as well as the Principle of the oas Charter (Art. 3 ( f )) that: “An act of aggression against one American State is an act of aggression against all the other American States.” In short, I am wholly unable to see how the issues of intervention raised in the instant case – intervention indeed by either Party, for each accuses the other of it – can be categorized as other than a dispute, or disputes, arising under multilateral treaties, and thus

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caught by the multilateral treaty reservation; at any rate where self-defence has formally been pleaded as a justification. A possible way out of the jurisdictional problem which needs to be investigated is the following. It is certain that a respondent State could not be permitted to make a dispute into one arising under a multilateral treaty, merely by making an unsupportable allegation that a treaty was involved. Suppose, in the present case, it were manifest on the face of the matter that there had in fact been no armed attack to which a plea of collective self-defence could be a permissible response? In that event it could surely be said that there was truly no dispute arising under Article 51 of the Charter. This, however, is not at all the position. There is a case to answer. The Court has carefully examined both the law and the fact and has made a formal decision in subparagraph (2) of paragraph 292. In short, there is no escaping the fact that this is a decision of a dispute arising under Article 51. Accordingly, I have had to vote “No” to subparagraph (3) of paragraph 292; not indeed on the ground that there has been no United States intervention in Nicaragua, for it is obvious that there has been, but because I cannot see that the Court has jurisdiction to decide whether or not the intervention is justified as an operation of collective self-defence.

…



The Question of the Mining of Nicaraguan Ports

The dispute concerning the responsibility of the United States for the unnotified mining of Nicaraguan ports, which apparently resulted in damage to a number of merchant ships, some under the flags of third States, seems to be a matter which does not arise out of the provisions of multilateral treaties, and is therefore within the jurisdiction of the Court. When this Court had to consider the laying of mines in a seaway in the Corfu Channel case, it did not find it necessary, in connection with the responsibility for damage caused by the mines, to invoke the provisions of the United Nations Charter, but based its decision on the obligation to notify the existence of the mines “for the benefit of shipping in general”; an obligation: based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of freedom of maritime communication;

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and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States (I.C.J. Reports 1949, p. 22) This law would seem to apply a fortiori where a State lays mines in another State’s ports or port approaches, and fails to notify shipping. Nor does this conclusion depend upon a construction of Article 51 of the Charter, for even supposing the United States were acting in legitimate self-defence, failure to notify shipping would still make the mine-laying unlawful. No doubt that the Court is right, therefore, in finding that the United States has, in this matter, acted unlawfully. Accordingly, I have found myself able to vote for subparagraph (8) of the dispositif; and also for subparagraph (7), which refers to the 1956 Treaty of Friendship, Commerce and Navigation, which will be discussed in a following section of this opinion. I am not able, however, to vote “Yes” to subparagraph (6), which deals with the laying of the mines in terms of a duty of non-intervention, and also in terms of a violation of sovereignty. This of course again raises the question of possible justification of the United States action as part of a collective self-defence operation; and on this there is in my view no jurisdiction to make a finding. There is, nevertheless, a problem in regard even to the finding that the laying of unnotified mines was unlawful. With the question of collective s­ elf-­defence undecided, it is far from clear that the respondent State is answerable to ­Nicaragua for damaging, or impeding its shipping; and the third States whose shipping was involved are not before the Court. However, since the laying of unnotified mines is of itself an unlawful act, it seemed right nevertheless to vote for subparagraph (8).

…

The Contras and Humanitarian Law Nicaragua claims that the contras have committed violations both of the law of human rights and of humanitarian law and that the responsibility for these acts should be attributed to the United States. This is, again, a question which is not one arising under the Charter of the United Nations or of the Organization of American States, for such acts obviously are unlawful even if committed in the course of justified collective self-defence. On the other hand, it might be objected that the question of possible breaches of humanitarian law must be a dispute arising under the 1949 Geneva multilateral Conventions; and there must be at least very serious doubts whether those conventions could be Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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regarded as embodying customary law. Even the Court’s view that the common Article 3, laying down a “minimum yardstick” (para. 218) for armed conflicts of a non-international character, are applicable as “elementary considerations of humanity”, is not a matter free from difficulty. Nevertheless, there is also the point that there is no third State “affected” by a decision taken under an Article of the Geneva Conventions; not at any rate in the way that El Salvador can be seen to be “affected” by a decision taken under Articles 2, paragraph 4, and 51 of the United Nations Charter. It is clear enough that there has been conduct – not indeed confined to one side of the civil strife – that is contrary to human rights, humanitarian law and indeed also the most elementary considerations of humanity (see the Report of Amnesty International, Nicaragua: the Human Rights Record, March 1986, AMR/43/01/86). To impute any of these acts to the United States, as acts of the United States – which is what Nicaragua asks the Court to do – would require a double exercise: there must not only be evidence of the particular acts in question, but the acts must also be imputable to the United States according to the rules governing State Responsibility in international law; which, in short, means that the unlawful acts of the contras must have been committed in such a way, or in such circumstances, as to make them in substance the acts of the United States itself. The Court’s finding, made clear in the final phrase of subparagraph (9) of paragraph 292, is that no such acts can be imputed to the United States, and that this claim and charge of Nicaragua is rejected. There remains, however, the matter of the dissemination of the so-called manual by the United States. This was wholly deplorable; though it is fair to ­remember that, when it came to the notice of the House of Representatives Permanent Select Committee on Intelligence, it was rightly condemned by them, the contras were urged to ignore it, and an attempt was made to recall copies (para. 120). Again, the dissemination of this manual does not, in international law, make unlawful acts of the contras into acts imputable to the United States. This is presumably why the Court’s rebuke is in the non-technical terms of “encouragement” of unlawful acts. Nevertheless, a rebuke is appropriate and I have had no hesitation in voting “Yes” to that part of the Court’s decision. Accordingly, I have voted “Yes” to subparagraph (9) of paragraph 292.

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Treaty of Friendship, Commerce and Navigation of 21 January 1956

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Treaty of Friendship, Commerce and Navigation of 21 January 1956, which provides: 2. Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means. The Court found in the previous phase of the case, that: to the extent that the claims in Nicaragua’s Application constitute a dispute as to the interpretation or the application of the Articles of the Treaty of 1956 … the Court has jurisdiction under that Treaty to entertain such claims (I.C.J. Reports 1984, p. 429) Since that Judgment, the United States has denounced the Treaty by a Note of 1 May 1985, giving the year’s notice of denunciation required by Article XXV, paragraph 3, of the Treaty. Since this denunciation was long after joinder of issue, it remains a possible ground of jurisdiction in this case. First, it should be noted that the 1956 Treaty creates, by Article XXIV, a title of jurisdiction under Article 36, paragraph 1, of the Court’s Statute, being a treaty “in force” at the material time. It is a title of jurisdiction which is different from, and independent of, the question of jurisdiction under the United States Declaration made under Article 36, paragraph 2, of the Statute. It is, therefore, a title of jurisdiction which is not touched by the multilateral ­treaties r­ eservation, which applies only to the Declaration made under Article 36, paragraph 2; and there is, accordingly, nothing to prevent the Court, when it is dealing with matters covered by the jurisdiction clause of the fcn Treaty, from considering and applying, for example, Articles 2, paragraph 4, and 51 of the United Nations Charter or any other relevant multilateral treaties. ­Indeed, the first part of ­Article XXI (d) of the fcn Treaty, to be considered below, clearly contemplates certain kinds of “obligations of a Party” arising from the United Nations Charter as being relevant to the interpretation and application of the treaty. This does not mean that the principal dispute, the subject of the Nicaraguan Application, could be dealt with under the fcn Treaty jurisdiction clause; except indeed in so far as it may involve a dispute which directly concerns the “interpretation or application” of the provisions of the treaty. I am unable to accept the Nicaraguan argument, by which the treaty jurisdiction is supposed

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to comprise matters which could be said in general terms to be inconsistent with the “object and purpose” of an fcn treaty, but are not referred to specific articles of the treaty. The jurisdiction clause of such a treaty could not be regarded as conferring a jurisdiction to pass upon matters external to the actual provisions of the treaty, even though such matters may affect the operation of the treaty. Suppose hostilities, or even war, should arise between parties to an fcn treaty, then the Court under a jurisdiction clause surely does not have jurisdiction to pass upon the general question of the lawfulness or otherwise of the outbreak of hostilities or of war, on the ground only that this defeated the object and purpose of the treaty; though of course it might have jurisdiction for instance to decide whether there was a “war” or hostilities, for the purposes of interpreting and applying a war clause which was a term of the treaty. If it were otherwise, there would be no apparent limit to the kinds of dispute which might in certain circumstances be claimed to come under such a jurisdiction clause. The conferment of such a potentially roving jurisdiction could not have been within the intention of the parties when they agreed the jurisdiction clause; and if the Court had asserted such a jurisdiction, this would only have discouraged future mention of the Court in such fcn treaty jurisdiction c­ lauses. I am therefore glad to note that the Court (para. 271) bases its jurisdiction here on Article 36, paragraph 2, of the Statute; though that course is not open to me, taking the view I do on the effect of the multilateral treaty reservation. It is in any event abundantly clear that the object and purpose of this particular Treaty could not have anything like so large an ambit as Nicaragua contended. The Treaty is, in its preamble, said to be “based in general upon the principles of national and most-favoured-nation treatment unconditionally accorded”: a strictly technical formula concerned essentially with commercial relations. Thus, the “object and purpose” of this Treaty is simply not capable of being stretched in the way Nicaragua wished. If one looks, accordingly, at the actual provisions of the Treaty, perhaps one is struck first by the extent to which many of the terms of the Treaty have been faithfully observed by both Parties. There is much, for example, concerning the treatment of the nationals of one Party in the territory of the other (e.g., Arts. VIII, IX, X and XI) and United States citizens seem to be able to travel freely to Nicaragua. As to Nicaraguans in the United States, it was striking that Mr. Chamorro, whose affidavit is much relied upon by the Court excuses himself from travelling to The Hague to give oral testimony, because travel outside the United States could possibly, he had been advised, prejudice his application for leave to establish himself and his family as permanent residents in the United States.

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Nevertheless, there are acts of the United States which appear prima facie to be breaches of actual provisions of the Treaty. The mining of the ports very clearly touches Article XIX, which provides that between the territories of the two parties there shall be freedom of commerce and navigation. And by declaring a general embargo on trade with Nicaragua on 1 May 1985, the United States is prima facie in breach of the actual stipulations of several articles, including in particular Article XIX again; for the comprehensive trade embargo is repugnant to an undertaking to establish “freedom of commerce”; and to the provision of that Article that: 3. Vessels of either Party shall have liberty, on equal terms with vessels of the other Party and on equal terms with vessels of any third country, to come with their cargoes to all ports, places and waters of such other Party open to foreign commerce and navigation. At this point, however, it is necessary to consider the effect of Article XXI which contains a list of provisos – measures which the “present Treaty shall not preclude the application of” – which qualify the entire Treaty. The interesting one for present purposes is: (d) necessary to fulfill the obligations of a Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests. The point that immediately occurs to the mind is that measures taken in individual or collective self-defence, or as counter-measures, are clearly caught by this proviso as measures necessary to protect essential security. The question arising under Article XXI is not, however, whether such measures are justified in international law as action taken in self-defence, or as justified counter-measures in general international law; the question is whether the measures in question are, or are not, in breach of the Treaty. Any operation that comes squarely within Article XXI, as a measure taken by one party to the Treaty, as being “necessary to protect its essential security interests”, cannot be in breach of the Treaty. I do not see what other meaning can be given to a clause which simply states that “The present Treaty shall not preclude the application” of such measures, and thus is a proviso to the entire Treaty. Turning now, therefore, to the “measures” which the Court’s decision treats as breaches of this Treaty, it will be convenient first to consider the unnotified mining of Nicaraguan ports which, in subparagraph (7) of paragraph 292, is

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said to be in breach of the Treaty. This is a question which I have not found it at all easy to resolve. There is of course, as already mentioned above, no question that the United States, “by failing to make known the existence and location of the mines”, has indeed “acted in breach of its obligations under customary international law” (subpara. 8). The question, however, in relation to the 1956 Treaty, is not whether the United States acted in breach of “elementary considerations of humanity”, but whether it acted also in breach of the bilateral treaty relationship with Nicaragua, having regard to the general proviso in Article XXI? Again it must be emphasized that the issue here is not simply the lawfulness or unlawfulness of the act in general international law, but whether it was also in breach of the terms of the Treaty? Certainly it is prima facie a breach of Article XIX, providing for freedom of navigation; but is it a “measure” excepted by the proviso clause of Article XXI? Although not without some remaining doubts, I have come to the conclusion that Article XXI cannot have contemplated a measure which cannot, under general international law, be justified even as being part of an operation in legitimate self-defence. I have therefore voted “Yes” to subparagraph (8) of paragraph 292. (As explained above, I cannot vote in favour of subparagraph (6) because this is dependent upon being able to vote “Yes” to subparagraph (2).) Turning now to subparagraph (10) of paragraph 292, the Court finds that the “attacks on Nicaraguan territory referred to in subparagraph (4)”, are calculated to deprive the 1956 Treaty of its object and purpose. Here, there is, in my view, no need to consider Article XXI, because I fail to see how these direct attacks upon Nicaraguan territory have anything to do with the treaty at all. In fact any examination of whether bombing attacks are, or are not, breaches of a treaty “based in general upon the principles of national and of most-favoured-nation treatment unconditionally accorded”, might be thought not wholly free from an element of absurdity. I have already discussed the question of jurisdiction in relation to the “object and purpose”; but here it is the substance of the Court’s decision that causes me unease. Either those acts are breaches of some provision of the Treaty or they have nothing to do with the Treaty. The “object and purpose” of a treaty cannot be a concept existing independently of any of its terms. I have, therefore, voted “No” to subparagraph (10). As to the general embargo on trade with Nicaragua of 1 May 1985: this was instituted by the Executive Order of 1 May 1985, made by the President of the United States; it contained a finding that “the policies and actions of the Government of Nicaragua constitute an unusual and extraordinary threat to the

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national security and foreign policy of the United States”; the Order also declared a “national emergency to deal with that threat” (see Judgment, para. 125). This statement on national security made no reference to Article XXI of the 1956 Treaty, and was presumably to serve a purpose of domestic United States law. It went on to prohibit “all imports into the United States of goods and services of Nicaraguan origin”; and “all exports from the United States of goods and services to or destined for Nicaragua, except those destined for the organized democratic resistance, and transactions relating thereto”. There was also a prohibition in general terms on all air carriers and vessels, the latter being prohibited from entering United States ports if of Nicaraguan registry. There is no difficulty in holding that the total trade embargo, and of air and sea transit, by the Order of 1 May 1985, was a prima facie breach of the terms of the Treaty; and again it is Article XIX that is directly involved. It seems to me there is equally no difficulty in seeing that these measures came squarely within Article XXI and therefore are not in breach of the Treaty. Accordingly, I have voted “No” to subparagraph (11) of paragraph 292.

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The Place of “Armed Attack”

Although I am of the opinion that, owing to the operation of the multilateral treaty reservation, the Court has no jurisdiction to pass upon the question of self-defence, it seems right nevertheless to comment briefly upon some passages of the Court’s Judgment where it deals with these matters in a way with which I do not find myself entirely in agreement. The question of what constitutes “armed attack” for the purposes of Article 51, and its relation to the definition of aggression, are large and controversial questions in which it would be inappropriate to become involved in this opinion. It is of course a fact that collective self-defence is a concept that lends itself to abuse. One must therefore sympathize with the anxiety of the Court to define it in terms of some strictness (though it is a little surprising that the Court does not at all consider the problems of the quite different French text: “où un Membre … est l’objet d’une agression armée”). There is a question, however, whether the Court has perhaps gone too far in this direction. The Court (para. 195) allows that, where a State is involved with the organization of “armed bands” operating in the territory of another State, this, “because of its scale and effects”, could amount to “armed attack” under ­Article 51; but that this does not extend to “assistance to rebels in the form of the ­provision of weapons or logistical or other support” (ibid.). Such conduct, the Court goes Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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on to say, may not amount to an armed attack; but “may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States” (ibid.). It may readily be agreed that the mere provision of arms cannot be said to amount to an armed attack. But the provision of arms may, nevertheless, be a very important element in what might be thought to amount to armed attack, where it is coupled with other kinds of involvement. Accordingly, it seems to me that to say that the provision of arms, coupled with “logistical or other support” is not armed attack is going much too far. Logistical support may itself be crucial. According to the dictionary, logistics covers the “art of moving, lodging, and supplying troops and equipment” (Concise Oxford English Dictionary, 7th ed., 1982). If there is added to all this “other support”, it becomes difficult to understand what it is, short of direct attack by a State’s own forces, that may not be done apparently without a lawful response in the form of collective self-defence; nor indeed may be responded to at all by the use of force or threat of force, for, to cite the Court again, “States do not have a right of ‘­collective’ armed response to acts which do not constitute an ‘armed attack’” (see para. 211). This looks to me neither realistic nor just in the world where power struggles are in every continent carried on by destabilization, interference in civil strife, comfort, aid and encouragement to rebels, and the like. The original scheme of the United Nations Charter, whereby force would be deployed by the United Nations itself, in accordance with the provisions of Chapter VII of the Charter, has never come into effect. Therefore an essential element in the Charter design is totally missing. In this situation it seems dangerous to define unnecessarily strictly the conditions for lawful self-defence, so as to leave a large area where both a forcible response to force is forbidden, and yet the United Nations employment of force, which was intended to fill that gap, is absent. These observations have mainly to do with the Court’s statement of the law. As to the case before the Court, I remain somewhat doubtful whether the ­Nicaraguan involvement with Salvadorian rebels has not involved some forms of “other support” besides the possible provision, whether officially or unofficially, of weapons. There seems to have been perhaps overmuch concentration on the question of the supply, or transit, of arms; as if that were of itself crucial, which it is not. Yet one is bound to observe that here, where questions of fact may be every bit as important as the law, the United States can hardly complain at the inevitable consequences of its failure to plead during the substantive phase of the case. It is true that a great volume of material about the facts was provided to the Court by the United States during the earlier phases of the case. Yet a party which fails at the material stage to appear and expound and explain even the material that it has already provided, inevitably p ­ rejudices Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the appreciation and assessment of the facts of the case. There are limits to what the Court can do, in accordance with Article 53 of the Statute, to satisfy itself about a non-appearing party’s case; and that is especially so where the facts are crucial. If this were not so, it would be difficult to understand what written and oral pleadings are about.

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The Nature of Collective Self-Defence

Another matter which seems to call for brief comment, is the treatment of collective self-defence by the Court. The passages beginning with paragraph 196 seem to take a somewhat formalistic view of the conditions for the exercise of collective self-defence. Obviously the notion of collective self-defence is open to abuse and it is necessary to ensure that it is not employable as a mere cover for aggression disguised as protection, and the Court is therefore right to define it somewhat strictly. Even so, it may be doubted whether it is helpful to suggest that the attacked State must in some more or less formal way have “declared” itself the victim of an attack and then have, as an additional “requirement”, made a formal request to a particular third State for assistance. Thus the Court says: The Court concludes that the requirement of a request by the State which is the victim of the alleged attack is additional to the requirement that such a State should have declared itself to have been attacked. (Para. 199.) It may readily be agreed that the victim State must both be in real need of assistance and must want it and that the fulfilment of both these conditions must be shown. But to ask that these requirements take the form of some sort of formal declaration and request might sometimes be unrealistic. But there is another objection to this way of looking at collective selfdefence. It seems to be based almost upon an idea of vicarious defence by champions: that a third State may lawfully come to the aid of an authenticated victim of armed attack provided that the requirements of a declaration of attack and a request for assistance are complied with. But whatever collective ­self-defence means, it does not mean vicarious defence; for that way the notion is indeed open to abuse. The assisting State is not an authorized champion, permitted under certain conditions to go to the aid of a favoured State. The assisting State surely must, by going to the victim State’s assistance,

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be also, and in addition to other requirements, in some measure defending itself. There should even in “collective self-defence” be some real element of self4 involved with the notion of defence. This is presumably also the philosophy which underlies mutual security arrangements, such as the system of the Organization of American States, for which indeed Article 51 was specifically designed. By such a system of collective security, the security of each member State is meant to be involved with the security of the others; not merely as a result of a contractual arrangement but by the real consequences of the system and its organization. Thus, Article 27 of the Charter of the Organization of American States provides that: Every act of aggression by a State against the territorial integrity or the inviolability of the territory or against the sovereignty or political independence of an American State shall be considered an act of aggression against the other American States. This, I believe, should not be regarded as a mere contractual arrangement for collective defence – a legal fiction used as a device for arranging for mutual defence –; it is to be regarded as an organized system of collective security by which the security of each member is made really and truly to have become involved with the security of the others, thus providing a true basis for a system of collective self defence. This underlying philosophy of collective s­ elf-defence is well expressed in a classical definition of that concept in Lauterpacht’s ­edition of Oppenheim’s International Law (Vol. II, 1952, p. 155): It will be noted that, in a sense, Article 51 enlarges the right of self-­ defence as usually understood – and the corresponding right of recourse to force  – by authorising both individual and collective self-defence. This means that a Member of the United Nations is permitted to have recourse to action in self-defence not only when it is itself the object of armed attack, but also when such attack is directed against any other State or States whose safety and independence are deemed vital to the safety and independence of the State thus resisting – or participating in forcible resistance to – the aggressor. (Signed) R.Y. Jennings. 4 It may be objected that the very term “self-defence” is a common law notion, and that, for instance, the French equivalent of “légitime défense” does not mention “self”. Here, however, the French version is for once, merely unhelpful; it does no more than beg the question of what is “légitime”.

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Chapter 28

Anthony Aust, The Theory and Practice of Informal International Instruments, 1986 Comment by Jill Barrett, Visiting Reader in the School of Law, Queen Mary University of London Tony Aust,* former Deputy Legal Adviser at the Foreign and Commonwealth ­Office, is probably best known outside government circles for his published work on the law and practice of treaties. His book Modern Treaty Law and ­Practice, first published in 2000, is already in its third edition.a Its focus on the practical aspects of treaty work, not just the legal framework, makes it immensely useful for anyone who works with treaties, in government, international organisations or private practice, as well as for those in academe wishing to see the whole picture. Since it was first published, a much-thumbed copy has sat on the desk of every FCO legal adviser and treaty official, and, so I’m told, it is also highly valued by diplomats and lawyers from many other countries. This article, published in 1986 when Aust was FCO Legal Counsellor, lays the foundations for two of the core chapters of the book: Chapter 2 (What is a treaty?) and Chapter 3 (MOUs). It was one of the first academic writings to consider, in depth, the legal nature and status of international instruments that fall outside the accepted definition of a treaty, the extent of their use being little known outside government, as most were (and still are) not published. The article is still well worth (re-)reading, and it is especially interesting to do so alongside those two book chapters. In this article, Aust draws a distinction between “treaties” and “informal instruments”, defining the latter as “an instrument which is not a treaty because the parties to it do not intend it to be legally binding”. He grapples with the conceptual difficulty that the treaty status of an instrument turns on intention to be bound not form; yet the “form” used (including style of wording) may provide important evidence of that intention. He explores the vast spectrum of informal instruments intended to be binding, those not so intended, and those that are hybrid and ambiguous. In his book he instead distinguishes between “treaties” and “MOUs”, but this change of terminology is not free from

* The Editors note with sadness the death of Tony Aust on 3 December 2017, after a long illness. a A Aust, Modern Treaty Law and Practice (3rd edn, CUP 2013). © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_029

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difficulty either, given that the status of an instrument is not determined by its name any more than by its form, and many documents called MOUs are treaties. This article contains fuller discussion of some important issues, in particular the possible legal consequences of “informal” instruments intended not to be binding. His analysis of the potential application of the international law doctrines of good faith and estoppel – which he illustrates by reference to documents forming part of the Cyprus independence packageb – now seems especially prescient in light of the decision on this point of the UNCLOS tribunal in the Chagos Island case between Mauritius and the UK in 2015.c b A Aust, ‘The Theory and Practice of Informal International Instruments’ (1986) 35(4) International and Comparative Law Quarterly, 807–12, esp at 809. This Chapter, 725–31, esp at 728. c Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) Annex vii Tribunal Award, 18 March 2015, Permanent Court of Arbitration.

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A. Aust, ‘The Theory and Practice of Informal International Instruments’ (1986) 35(4) International & Comparative Law Quarterly, pp. 787–812. Reproduced with the kind permission of the British Institute of International and Comparative Law.

The Theory and Practice of Informal International Instruments Anthony Aust* Lawyers practising in foreign or defence ministries are familiar with the use of informal instruments to record arrangements between States. To others, especially those outside government circles, they are documents which are seldom mentioned and even more rarely seen. They were referred to by the late Judge Baxter as a “vast sub-structure of intergovernmental paper”.1 To what extent they are a significant vehicle for the conduct of business between States must, to the outsider, be very unclear. Articles aboot such informal i­ nstruments-which have been described variously as “gentlemen’s agreements”,2 ­“non-binding agreements”,3 de facto agreements4 and “non-legal agreements”5 do not deal in any detail with the large number and wide range of informal instruments which are entered into by States every year. This is hardly surprising. Most of them are never published, and those that are may be published for specific political reasons. As a result, they are usually untypical. * Legal Counsellor, Foreign and Commonwealth Office. This article is based on a paper given to the Public International Law Group of the S­ ociety of Public Teachers of Law at Birmingham University on 12 September 1985. The views ­expressed are personal and do not necessarily represent the views of the UK Government. 1 Baxter, “International Law in ‘Her Infinite Variety’” (1980) 29 I.C.L.Q. 549. 2 See Eisemann, “Le gentlemen’s agreement comme source du droit international” (1979) 106 Journal du droit international 326–348. 3 See Münch, “Comments on the 1968 Draft Convention on the Law of Treaties; Non-binding Agreements” (1969) 29 ZaöRV 1–11; and Schachter, “The Twilight Existence of Non-binding International Agreements” (1977) 71 a.j.i.l. 296–304. 4 See Roessler, “Law, De Facto Agreements and Declarations of Principles in International ­Economic Relations” (1978) 21 German Yearbook of International Law 41. 5 The term used by Professor Masakuni Hasegawa in his paper, “Non-legal international agreement lr – in search of their practical meanings through five actual cases”, read at the meeting of the Public International Law Group of the Society of Public Teachers of Law at Birmingham University on 12 September 1985. See also Bothe, “Legal and Non-legal Norms-a meaningful distinction in international relations” (1980) xi n.y.i.l.

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The distinction between treaties and informal instruments will be examined in detail later. But, for the purpose of describing how and why informal instruments are used, the following working definition is adopted: “informal instrument” means an instrument which is not a treaty because the parties to it do not intend it to be legally binding. These instruments will be discussed under the following main headings: 1. How and why informal instruments are employed, with particular reference to British practice. 2. The distinction between informal instruments and treaties. 3. The practice of other States regarding the status of informal instruments. 4. Evidence of the intention of the parties as to the status of an instrument. 5. Whether informal instruments are really treaties. 6. The possible legal consequences of informal instruments. I

How and Why Informal Instruments are Employed, with Particular Reference to British Practice

Today informal instruments are employed in almost every field of international relations-diplomatic, defence, commercial, aid, transport. There is probably no area where they are not found. In many cases, all things being equal, a treaty could be employed. Frequently they supplement treaties. A good example of these are the Memoranda of Understanding commonly entered into by, or on behalf of, the parties to bilateral air services agreements, and which are usually treated as confidential. The United Kingdom has about 80 air services agreements, and most of them are supplemented by such confidential instruments. The Commonwealth still tends to use informal instruments (both bilateral and multilateral) even when a treaty would have been more likely to be used if the countries had been foreign. The Commonwealth Secretariat was established in 1965 by an unsigned and undated “Agreed Memorandum”, although it was of course published.6 Other Commonwealth bodies, such as the Commonwealth Foundation and the Commonwealth Agricultural Bureaux, have been similarly established.7 The 1966 Scheme relating to the Rendition of ­Fugitive Offenders within the Commonwealth is COQtained in an unsigned and undated document adopted by a Meeting of Commonwealth Law Ministers.8 Since the inter se doctrine appears to have been rejected even before the end of the 6 Cmnd. 2713. It was not published in the UK Treaty Series. 7 The Commonwealth Agricultural Bureaux are now in the process of being reconstituted by a treaty. 8 Cmnd. 3008.

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Second World War,9 the reason for the prevalence of informal instruments in intra-Commonwealth relations may have to be sought elsewhere. It may stem from a continued (and laudable) attitude that the Commonwealth is more of a club, between whose members gentlemen’s agreements are enough-an attitude reflecting the rather special nature of the Commonwealth.10 The main procedural reasons11 for using informal instruments in preference to treaties are simplicity, speed, flexibility, and confidentiality. The first three overlap to a large degree under a general heading of “convenience”, having various aspects. A Lack of Formality Since they are not entering into a treaty, the parties do not usually have to worry about elaborate final clauses or the formalities which surround treaty making. Normally an informal instrument will be expressed to come into “operation” or “effect” on signature, or at a fixed date, and without need for any subsequent procedure. This factor alone can mean that it can be drawn up, signed, and become effective much more quickly than a treaty. Even when a treaty can enter into force on signature, the internal constitutional procedures required before it can even be concluded are often elaborate and lengthy. In some cases these problems may be such that the only way of proceeding is by way of an informal instrument. In the case of an amendment to the constituent instrument of an international organisation, the constitutional and procedural problems of the Member States are often compounded by like problems of the organisation itself. Because of these, informal instruments are often used to supplement or even supersede the constituent instrument, at least on an interim basis.12 Like treaties, informal instruments are signed by ministers or officials, though probably more often by officials. B No Requirement to Publish Since it is not a treaty, there is usually no national requirement to publish an informal instrument. In the United Kingdom, treaties concluded by Her 9

See Fawcett, The British Commonwealth in International Law, pp. 144–194; and R.Y. J­ ennings, “The Commonwealth and International Law” (1953) 30 b.y.i.l. 320. 10 See Dale, “Is the Commonwealth an International Organisation?” (1982) 31 i.c.l.q. 451. 11 Where the content is purely administrative or procedural in nature, or the subject is a gift or grant (e.g. of aid funds) which is in essence a unilateral promise, this could be said to be a substantive reason against using a treaty. 12 In relation to international economic organisations, see Roessler, op. cit. supra n. 4, at pp. 50–53.

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­ ajesty’s Government are published as Command Papers and, on entry into M force, in the Treaty Series of Command Papers;13 in due course they are registered with the United Nations. Even if it is not confidential, an informal instrument is not published by the government unless there is a special reason, such as the political importance of the subject matter, or because it is closely associated with a treaty.14 C No Requirement of Registration Not being a treaty, an informal instrument is not required to be registered with the UN. Article 102 of the UN Charter provides that: 1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. 2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations. Neither the Charter, nor the regulations made under Article 102, define “treaty” or “international agreement”.15 Not being a treaty, there would seem to be no barrier to an informal instrument being invoked before organs of the UN, including the International Court of Justice; whether this would help in a legal argument before such bodies would depend on whether the instrument has legal consequences. In contrast to Article 102 of the Charter, Article 83 of the Chicago Convention on International Civil Aviation of 1944 provides that: …any contracting State may make arrangements not inconsistent with the provisions of this Convention. Any such arrangement shall be forthwith registered with the Council, which shall make it public as soon as possible. It might be thought that the registration requirements of the Chicago Convention are therefore more extensive than those of the Charter, even though the former include no sanction for non-registration. Whatever the original ­intention, it would appear from the practice of the parties to the Chicago Convention that the vast majority do not consider the requirements to extend to 13 14 15

Very occasionally, due to an oversight, a treaty may not be published. An example is the exchange of interpretative letters regarding the UK/US Air Services Agreement (“Bermuda 2”) of 23 July 1977 (u.k.t.s. No.76 of 1977, Cmnd.7016). See Fawcett, op. cit. infra n. 25, at pp. 389–396, where he argues that Art.102 is drawn widely enough to include agreements which do not create legal relations. He had in mind the several “political” agreements registered in the late 1940s. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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informal instruments concluded between States. Most air services agreements have informal implementing instruments, and very few of these have been notified to icao.16 D Dispute Settlement An informal instrument will often contain provisions for the settlement of disputes. It is quite common to provide that any dispute will be settled by ­negotiation between the parties and not referred to any third party, court or tribunal. Such a provision is consistent with the intention of the parties not to conclude a legally binding instrument.17 E Termination The termination provisions of many informal instruments can be very similar to those found in treaties. A period of notice is usually required, although often this is less than the 12 months commonly found in treaties. Sometimes there is no provision for termination, especially when the instrument is supplementary to a treaty. Difficult questions can then arise. If the instrument is freestanding it can probably be terminated by giving reasonable notice, although strictly speaking if it is not a legally binding instrument it could be argued that no notice is required, at least as a matter of law. On the other hand, if the instrument is supplementary to a treaty and has no termination clause, can it be terminated before the treaty itself is terminated? Much may depend upon its purpose. If it is essential for the implementation of the treaty, the arguments against termination of the informal instrument alone are stronger. But, once again, if the informal instrument is not legally binding, what is the legal obstacle to giving immediate notice? F Amendment One of the greatest advantages of an informal instrument is the ease with which it can be amended. Since it is not a treaty, any amendment can be ­effected with the same ease and speed as the conclusion of the instrument itself. In the case of arrangements involving complicated technical or financial provisions, such as collaborative defence projects or development aid arrangements, there is usually a need to make frequent, though sometimes relatively minor, modifications. When the arrangements are multilateral the need for a method of amendment with the least possible formality and delay is often essential for their effective implementation. 16 17

The registration rules adopted by icao define “arrangements” to include arrangements between States and airlines, some of which have been registered with icao. See Fawcett, op. cit. infra n. 25, at p. 388. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The liberalised arrangements regarding air services which the United Kingdom has negotiated since 1984 with Belgium, the Federal Republic of Germany, Luxembourg, the Netherlands and Switzerland are all embodied in informal instruments, entitled “Agreed Record of Discussions” or, in one case, “Confidential Memorandum of Understanding”. This enabled the arrangements to come into effect quickly. They are experimental in nature, and the particular form used will make it that much easier to modify their terms in the light of experience. Modifications have already been made to the arrangements with the Netherlands.18 Too frequent recourse to informal instruments can carry dangers. There is sometimes a tendency among government officials who are not practising lawyers to regard the drafting of informal instruments (even on a matter of great importance) as not requiring quite the same close attention as the drafting of treaties. Since in most cases the content could equally well be put into a treaty, and since errors in the drafting can give rise to the same dimension of international dispute as under a treaty, any such tendency is to be regretted. Even if the commitments undertaken in an informal instrument are only political, there is no good reason why they should be expressed with less precision. But, if the attitude is more relaxed, this may merely reflect the fact that the parties do not intend to enter into a legally binding instrument. Some officials may tend to shy away from the treaty form even when there is no particular need to avoid it. The very word “treaty” may conjure up the fearsome formalities of diplomacy. One of the tasks of legal advisers to foreign ministries is to explain the differences between a treaty and an informal instrument, and why one might be preferable to the other. In principle, unless there are good reasons for using an informal instrument, a treaty is usually to be preferred. One important practical advantage of a treaty is that, being published in a series, it is that much easier to find, not only by members of the public but also by officials. Excessive use of informal instruments can sometimes lead to “retrieval problems”. G Confidentiality A more obvious reason for preferring an informal instrument is confidentiality; because it is not a treaty there is no obligation to register it with the UN, or even to publish it. Thus, certain arrangements, particularly in the defence field, which have to be kept confidential for reasons of national security, are contained in informal instruments. All States have such instruments and no one would suggest that they should be published or registered, although it is 18

Although not published, the substance of the various arrangements has been publicised in press releases by the Department of Transport. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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sometimes necessary for national parliaments to be informed of their contents on a selective or confidential basis.19 Quite often they are supplementary to treaties. The 1963 UK/US Agreement on Polaris missiles is clearly an umbrella agreement, the detailed technical and financial arrangements being found in unpublished instruments. Article II, paragraph 2, provides for each party’s representatives to enter into: such technical arrangements, consistent with [the] Agreement, as may be necessary.20 In March 1985 the United Kingdom and United States Governments concluded an Exchange of Notes, constituting an agreement, regarding arrangements for the use by United Kingdom forces of United States military facilities on Ascension Island. This is even more explicit on the question of the instrument to be used for recording the details of the arrangements. The only substantive paragraph in the Exchange of Notes provides that: the arrangements shall be established in a memorandum of understanding to be concluded between the Ministry of Defence representing the Government of the United Kingdom and the Department for Defense representing the Government of the United States.21 Another reason for the use of informal, unpublished instruments is to protect sensitive commercial information. This is particularly so today when governments are involved in obtaining concessions or contracts for their companies, and especially where governments act, in effect, as proxies for them. The c­ onfidential instruments associated with air services agreements, under which traffic rights and capacity entitlements are often determined, are prime examples. H Interpretation Baxter suggested that in the interpretation and application of informal ­instruments it would be convenient and reasonable to use the rules for the interpretation of treaties, at least in so far as they are not at variance with the 19 The UK/US Memorandum of Understanding on UK participation in the US strategic defence initiative (sdi) research programme, signed in December 1985, is confidential and will not be made available to Parliament; see statements by the Prime Minister (Hansard, 5 Dec. 1985, col. 423) and by the Defence Secretary (Hansard, 9 Dec. 1985, cols. 623, 629, 631 and 634). 20 u.k.t.s. No. 59 of 1963 (Cmnd. 2108) (emphasis added). 21 u.k.t.s. No. 39 of 1985 (Cmnd. 9590) (emphasis added). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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non-binding nature of such instruments.22 For many matters the application of those rules by analogy is obviously sensible. In practice the travaux preparatoires of an informal instrument can be as important as those of a treaty. II

The Distinction between Informal Instruments and Treaties

The fundamental distinction between an informal instrument and a treaty is that, although the former puts on record the mutual understandings of the States concerned as to how each will act in relation to the other, or others, the parties have no intention that the instrument should itself create a legal relationship and be binding on them. According to Oppenheim, the decisive factor in ascertaining whether an instrument is a treaty is “whether it is intended to create legal rights and obligations between the parties”.23 McNair defined “treaty” as a written agreement by which two or more States “create or intend to create a relation between themselves operating within the sphere of inter­national law”?24 Fawcett, writing in 1953, considered that an essential element of a legally binding international agreement-as opposed to “international agreements of political obligation” (e.g. treaties of alliance)–was “the intention of the parties to create legal relations between them”.25 On the other hand, Article 2 of the Vienna Convention on the Law of Treaties defines “treaty” as: An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.26 Read in isolation this definition might tend to suggest that, because they are made by subjects of international law operating within its sphere, even ­informal instruments are treaties; and at first sight it might look as if there is some support for this view from the International Law Commission. The 1966 Commentary on its draft articles on the Law of Treaties said that: very many single instruments in daily use, such as “an agreed minute” or a “memorandum of understanding”, could not appropriately be called 22 Op. cit. supra n. i, at pp. 302–303. 23 Oppenheim, International Law (8th ed.), pp. 899–900. 24 McNair, Law of Treat U.S (1961), p. 15. 25 Fawcett, “The Legal Character of International Agreements” (1953) 30 b.y.i.l. 381, 385. 26 u.k.t.s. No. SS of 1980 (Cmnd.7964). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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formal instruments, but they are undoubtedly international agreements subject to the law of treaties. A general convention on the law of treaties must cover all such agreements.27 The ILC termed such informal agreements “treaties in simplified form”. Far from being exceptional, the ILC saw them as very common and being used at a steadily increasing rate. Earlier, at its 14th session in 1962, the ILC had devised the definition: “Treaty in simplified form” means a treaty concluded by exchange of letters, agreed minute, memorandum of understanding, Jsoint declaration or other instrument concluded by any similar procedure.28 Because of opposition by a number of governments, the definition was omitted from the draft articles approved by the ILC at its 17th session in 1965.29 A careful reading of the 1966 Commentary leads one, however, to the conclusion that the ILC only had in mind instruments which the parties intended to be legally binding. As discussed in this article, for many years there have been instruments described as “Memoranda of Understanding” which use treaty language and are undoubtedly treaties.30 The ILC seems to have had these in mind, not the informal instruments described in this article. Furthermore, although the definition of treaty in the Vienna Convention does not include any explicit reference to an intention to create relations under international law, the Commentary of the ILC on its draft articles makes it clear that the element of intention is embraced in the phrase “governed by international law”.31 Eisemann32 divides his “gentlemen’s agreements” into three categories: first, “accord informel politique”, of which the Atlantic Charter is given as a prime example; second, “accord informel suppletif’, examples of which include the London Agreement of 1946 regarding the non-permanent members of the Security Council, and the Luxembourg Compromise of 1966 regarding voting in the Council of Ministers of the EEC; third, ”accord informel normatif’, where Eisemann appears to be referring to instruments which, although not drawn up in the form of a treaty, are more than mere declarations or expressions of political will or self-denying ordinances in that, in some sense, they Jay down 27 [1966] ii Yearbook of the ILC 188. 28 [1962] ii Yearbook of the ILC 161. 29 [1965] i Yearbook of the ILC 307. 30 Op. cit. supra n. 24, at pp. 3–4. 31 [1966] ii Yearbook of the ILC 188–189. For a history of the drafting of the phrase see Eisemann, op. cit. supra n. 2, at pp. 340–343. 32 Op. cit. supra n. 2, at p. 331. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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norms for the behaviour of the States concerned. He cites as examples arrangements reached within the ambit of the GATT; and there are many examples of informal instruments drawn up under the auspices of, or between, international organisations. But, equally, there are even more examples of such ­instruments, both bilateral and multilateral, drawn up quite independently of international organisations. Although Eisemann sees his accord informe/ normatif as closer to the classic international agreement, he describes its function and status as follows: Son but est, en effet, de fonnuler un cadre nonnatif dans lequel devront s’inscrire les relations des États. En cela, il ne differe pas d’une convention internationale. Mais les parties ant refusé de donnu à leur engagement La forme d’un acte conventionnel régi par le droit des traités.33 III

The Practice of Other States Regarding the Status of Informal Instruments

So far this article has dealt primarily with United Kingdom practice, which is tolerably clear. But, whilst other governments are for the most part willing to go along with the United Kingdom on language and form, they do not always agree that the end product is not a treaty, even when it does not have to be published or presented to a national parliament. Discovering the precise legal position of other States on this subject is not at all easy, but there appear to be States which do not draw so rigid a distinction between treaties and informal instruments. The Dutch Government seems to regard any instrument containing provisions which are binding in international law, whatever its form or designation, to be a treaty. What exactly is meant by “binding in international law” is unclear, but in practice informal instruments are often regarded by the Netherlands as treaties. There appear to be two main exceptions: instruments (such as the Atlantic Charter) which are only considered to be binding politically, and administrative agreements. The latter are agreements between ministers within their areas of competence and which make it clear that they are not acting on behalf of their respective governments. This distinction is somewhat artificial, given that a minister derives his authority from his government, but it may be useful in appropriate cases if it avoids the need for publication and parliamentary approval. Problems may arise, however, when the subject matter involves more than one minister in the same government. There is also the 33

Op. cit. supra n. 2, at p. 336 (emphasis added).

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objection that agreements between ministers can sometimes lead to uncertainty as to whether they operate in international or municipal law. Israel seems to treat many informal instruments as international agreements. Examples are the various memoranda exchanged between Israel and the United States in the context of the Sinai II Agreement. Interestingly – ­especially in view of what is known about United States practice – doubts have been expressed in the United States Congress as to the legal character of some of these memoranda; but this may well be for political reasons.34 Examining United States practice is particularly valuable because there is more documentation about it than for any other State. Under the federal law regarding the publication of international agreements35 and what is popularly known as the “Case Act” of 1972,36 all “international agreements” (other than “treaties” which have to be submitted to the Senate for approval)37 have to be published annually and the text submitted to Congress within 60 days of entry into force. The only exception is if, in the opinion of the President, the “immediate public disclosure” of the agreement would be “prejudicial to the national security of the United States”. In that event it is transmitted to the Senate Committee on Foreign Relations and to the Committee on Foreign Affairs of the House of Representatives under “an appropriate injunction of secrecy”. The purpose of the International Agreement Regulations made by the State Department on 27 April 198138 is to implement the Case Act by giving guidance to agencies of the US Government as to the types of international instruments which the Act requires to be notified to Congress. In order to do this the regulations lay down five general criteria by which to judge whether a particular instrument is an international agreement. The passage in the regulations which sets out the criteria is worth quoting from fairly extensively (emphasis added): (a) General. The following criteria are to be applied in deciding whether any undertaking, oral agreement, document or set of documents, including an exchange of notes or of correspondence, constitutes an international agreement …. Each of the criteria except those in paragraph (a)(5) of this section [i.e. the form of the instrument] must be met in order for any given undertaking of the United States to constitute an international agreement. 34 35 36 37 38

Information taken from a paper by Theodore Meron prepared for the Conference on ­ ational Treaty Law and Procedure at Bellagio in August 1977. N i u.s.c. 112a. i. Public Law 92–4(3), as amended by i u.s.c. 112b. I.e. “executive agreements” for the purpose of US constitutional law. 22 Code of Federal Regulations, Part 181; see 46 Federal Register 35917 of 13 July 1981.

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(1) Identity and intention of the parties. A party to any international agreement must be a state, a state agency, or an intergovernmental organization. The parties must intend their undertaking to be legally binding, and not merely of political or personal effect. Documents intended to have political or moral weight, but not intended to be legally binding, are not international agreements. An example of the latter is the Final Act of the Helsinki Conference on Cooperation and Security in Europe. In addition, the parties must intend their undertaking to be governed by international law, although this intent need not be manifested by a third-party dispute settlement mechanism or any express reference to international law. In the absence of any provision in the arrangement with respect to governing law, it will be presumed to be governed by international law. This presumption may be overcome by clear evidence, in the negotiating history of the agreement or otherwise, that the parties intended the arrangement to be governed by another legal system …. (2) Significance of the arrangement. Minor or trivial undertakings, even if couched in legal language and form, are not considered international agreements… In deciding what level of significance must be reached before a particular arrangement becomes an international agreement, the entire context of the transaction and the expectations and intent of the parties must be taken into account. It is often a matter of degree… It remains a matter of judgment based on all the circumstances of the transaction… Examples of arrangements that may constitute international agreements are agreements that: (a) are of political significance; (b) involve substantial grants of funds or loans by the United States or credits payable to the United States; (c) constitute a substantial commitment of funds that extends beyond a fiscal year or would be a basis for requesting new appropriations; (d) involve continuing and/or substantial cooperation in the conduct of a particular program or activity, such as scientific, technical, or other cooperation, including the exchange or receipt of information and its treatment, or the pooling of data…. (3) Specificity, including objective criteria for determining enforceability. International agreements require precision and specificity in the language setting forth the undertakings of the parties. ­Undertakings couched in vague or very general terms containing no objective criteria for determining enforceability or performance are not normally international agreements. Most frequently such terms reflect an intent not to be bound. For example, a promise to “help develop a more viable world econornic system” Jacks the s­ pecificity Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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essential to constitute a legally binding international agreement. However, tM intent of the parties is the key factor. Undertakings as general as those of, for example, Articles 55 and 56 of the United Nations ­Charter have been held to create internationally binding ­obligations ­intended as such by the parties. (4) Necessity for two or more parties… (5) Form. Form as such is not normally an important factor, but it does deserve consideration. Documents which do not follow the customary form for international agreements, as to matters such as style, final clauses, signatures, or entry into force dates, may or may not be international agreements. Failure to use the customary form may constitute evidence of a lack of intent to be legally bound by the arrangement. If, however, the general content and context reveal an intention to enter into a legally binding relationship, a departure from customary form will not preclude the arrangement from being an international agreement. Moreover, the title of the agreement will not be determinative. Decisions will be rn. adt on the basis of the substance of the arrangement, rather than on its denomination as an international agreement, a memorandum of understanding, exchange of notes, exchange of letters, technical arrangement, protocol, note verbale, aide-memoire, agreed minute, or any other name. (b) Agency-level agreements. Agency-level agreements are international agreements … if they satisfy the criteria discussed in paragraph (a) of this section. The fact that an agreement is concluded by and on behalf of a particular agency of the United States Government, rather than the United States Government, does not mean that the agreement is not an international agreement. Determinations are made on the basis of the substance of the agency-level agreement in question. (c) Implementing agreements. An implementing agreement, if it satisfies the criteria discussed in paragraph (a) of this section, may be an international agreement, depending upon how precisely it is anticipated and identified in the underlying agreement it is designed to implement. If the terms of the implementing agreement are closely anticipated and identified in the underlying agreement, only the underlying agreement is considered an international agreement. Project annexes and other documents which provide technical content for an umbrella agreement are not ­normally treated as international agreements. However, if the underlying ­agreement is general in nature, and the implementing agreement meets the specified criteria of paragraph (a) of this section, the implementing agreement might well be an international agreement. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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(d) Extensions and modifications of agreements. If an undertaking constitutes an international agreement … then a subsequent extension or modification of such an agreement would itself constitute an international agreement… (e) Oral agreements. Any oral arrangement that meets the criteria discussed in paragraphs (a)(l)–(4) of this section is an international agreement and, pursuant to section (a) of the (Case) Act, must be reduced to writing by the agency that concluded the oral arrangement. In such written form, the arrangement is subject to all the requirements of the (Case) Act… The words emphasised in subparagraphs (a)(l)–(3) and (5) show the same approach as that of the UK Government; there must be an intention to enter into legally binding undertakings. Subparagraph (a)(5) appears also to recognise, at least implicitly, that use of non-treaty language (“a departure from customary form”) carries a presumption that the parties did not intend to enter into a legally binding relationship. But it is clear also that in US practice use of nontreaty language does not preclude the instrument from being an international agreement, if “the general content and context reveal an intention to enter into a legally binding relationship”. This does, however, rather beg the question and, by giving less weight to the form of the instrument than British practice does, it is much more difficult to predict whether a particular instrument will be regarded by the United States Government as an international agreement. It must, however, be remembered that the purpose of the regulations is to implement the Case Act. This is well illustrated by the treatment in the regulations of oral agreements, which are not, of course, international agreements for the purposes of the Vienna Convention. Not all instruments disclosed to Congress pursuant to the Case Act are therefore treaties for the purpose of Article 102 of the Charter. Certainly, classified instruments on defence matters (transmitted to Congress under “an appropriate injunction of secrecy”) are not registered with the UN. IV

Evidence of the Intention of the Parties as to the Status of an Instrument

A Form The intention of the parties as to the status of an instrument is often most easily ascertained by examining the form and wording. In British practice use of terms such as “shall”, “agree” and “enter into force” denote an intention to ­conclude a treaty. Using “will” rather than “shall”, avoiding terms such as “agree” or “undertake”, providing for the instrument to “come into operation” or “come

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into effect”, and describing it as a “Memorandum of Understanding”, “Arrangement” or such like denotes an intention to create something less than a treaty. Although British practice is shared by many States, the UK is perhaps stricter and more consistent in applying it than most. Foreign government officials are all too familiar with the British official who insists on changing the title of a draft from “Agreement” to “Memorandum of Understanding”, and every “shall” to “will”. It may even be seen by some as a slightly tiresome, if harmless–even quaint–British obsession. Taken on its own, however, the title of an instrument can be most misleading as to intention. An “Agreed Minute” may or may not be a treaty. The only significant difference between the text of an Exchange of Notes which has treaty status and one which merely records under­standings may be in the final sentence. If it is intended to be a treaty it is customary to say expressly that the exchange “shall constitute an agreement between our two Governments”. If not, it is usual to specify that the exchange “records the understandings of our two Governments”. The description “Memorandum of Understanding” can be the most misleading. It is arguable that the inclusion of treaty language in the Memorandum of Understanding of 5 October 1954 between the governments of Italy, the United Kingdom, the United States and Yugoslavia about the Free Territory of Trieste demonstrated the intention of the parties to conclude a treaty. However, it was not published in the UK Treaty Series, although it was registered with the UN.39 There are at least three instruments related to the Treaty of Peace with Italy which, although described as Memoranda of Understanding, are clearly treaties and have been published in the UK Treaty Series.40 Under the subheading “Memoranda of Understanding”, ­McNair cites one of these as an example of “an informal but nevertheless legal agreement”.41 A recent example of an instrument whose title might lead one to think that it was not intended to be a treaty is the “Provisional Understanding regarding Deep Seabed Matters” signed at Geneva on 3 August 1984 between Belgium, France, the Federal Republic of Germany, Italy, Japan, the Netherlands, the United Kingdom and the United States. Despite its title it uses treaty language throughout, refers to itself as “this Agreement”, and has been published in the UK Treaty Series.42 39 235 u.n.t.s. 99. 40 German trade marks in Italy (u.k.t.s. No. 52 of 1956); Oaims by British Nationals under Art.78 of the Treaty of Peace (u.k.t.s. No. 51 of 1957); German assets in Italy (u.k.t.s. No. 52 of 1957). 41 Op. cit. supra n. 24, at pp. 3–4. 42 u.k.t.s. No. 24 of 1985 (Cmnd. 9536).

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A Memorandum of Understanding of 2 May 1982 regarding airline tariffs on the North Atlantic is expressed to be between “the United States and certain Member States of the European Civil Aviation Conference”. It employs words such as “shall” and other treaty language, especially in the final clauses. Yet it begins “the undersigned delegates have entered into the following understanding”. Even more confusing is the fact that the delegates are described as signing for their respective “aeronautical authorities”, not governments or States as such. It was drafted by experts from aeronautical authorities who may have been unfamiliar with the niceties of treaty making. An earlier curiosity in the world of international air services is the 1973 UK/US Memorandum of Understanding on Advance Booking Charters. This was drawn up using non-treaty language, but was then annexed to an Exchange of Notes between the United Kingdom and United States Governments which provided that the Exchange, together with the Memorandum of Understanding, constituted an agreement between the two governments.43 These examples are of free-standing instruments. Instruments are also drawn up using non-treaty language which, because they are so closely associated with a treaty, may be published with it and sometimes registered at the UN. (These fall into Eisemann’s category of accord informel supplétif.) A good example is the Exchange of Notes concerning the Administration of the Sovereign Base Areas in Cyprus. Unlike most of the other Exchanges of Notes associated with the 1960 Treaty of Establishment of the Republic of Cyprus, it did not constitute a treaty, although it is clearly complementary to the Treaty of Establishment.44 A recent example of an informal subsidiary instrument is the Memorandum on the Implementation of the Provisional Understanding regarding Deep Seabed Matters. This was published in the UK Treaty Series with the Provisional Understanding,45 even though the Memorandum uses non-treaty language only. It is, however, not the intention of the UK Government to register the Memorandum with the UN, since it is clear from its terms that it was not intended to be a treaty. Any doubt as to the status of the Declaration on Trade in Services, signed by the United States and Israel on 22 April 1985, is dispelled by the preamble which declares that: …the principles set forth below shall not be legally binding…46 43 u.k.t.s. No. 60 of 1973 (Cmnd. 5316). 44 u.k.t.s. No. 4 of 1961 (Cmnd. 1252); see the Exchange of Notes, pp. 95–100. 45 See supra n. 42. 46 [1985] xxiv i.l.m. 679.

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Similarly, the States which adopted the Final Act of the Conference on Security and Co-operation in Europe made clear their intention not to enter into a treaty by expressly stating in the Final Act itself that it was “not eligible for registration under Article 102 of the Charter”.47 B Content The subject matter or content of an instrument is not a good guide to the intention of the parties as to status, since the same subject matter can be found both in instruments clearly regarded as treaties, and in those which are not. A notable exception is when the instrument provides for the settlement of disputes between the parties by compulsory international judicial process. The inclusion of such a provision is consistent only with an intention to enter into a legally binding instrument.48 C Circumstances in Which the Instrument was Concluded If the form, language or express terms of the instrument do not contain sufficient evidence of the intention of the parties as to status, it is necessary to consider the circumstances in which the instrument was drawn up, and subsequent actions and statements of its authors. As Virally puts it: Le Caractère, juridique ou purement politique, d’un engagement figurant dans un texte international de nature incertaine dépend de l’intention des parties telle qu’elle peut être établie par l’examen des termes employés pour l’exprimer, des circonstances dans lesquelles le texte a été adopté et du comportement ultérieur des parties.49 D Registration of the Instrument Registration of an instrument with the UN pursuant to Article 102 is usually good evidence that the parties regard it as a treaty, but not always. Sometimes it may be registered by one party even though the other does not regard it as a treaty.50 Sometimes this difference of view may only become apparent long after. A particular problem arises over the registration of subsidiary ­instruments. 47 48 49 50

Cmnd. 6198. See Fawcett, op. cit. supra n. 25, at pp. 387–388. Institut du Droit International, Annuaire, Vol. 60, Tome i, p. 357. The celebrated dispute between the UK and Irish Governments over the registration under the Covenant of the League of Nations by Ireland of the Articles of Agreement for a Treaty between Great Britain and Ireland, of 6 Dec. 1921, turned more on the d­ isagreement between the governments as to the status of Ireland, and the inter se doctrine, than on the status of the instrument itself; see Fawcett, op. cit. supra n. 25, at pp. 154–156.

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Some States supply copies of these with a treaty when presenting it for registration. The practice of the UN Secretariat appears to be to register more or less anything presented to it, even if there may be doubt whether registration is required. But the Secretariat has made it clear that registration does not confer on the instrument the status of a treaty or an international agreement if it does not already have that status51. On the other hand, failure to register a treaty does not deprive it of treaty status, even if it cannot be invoked before an organ of the UN. E Disagreement as to Status A nice problem can arise when the parties disagree as to the status of an instrument. The author is aware of at least one instance of this happening when the instrument was on the point of being signed, and two after the instrument had become effective. In these two latter cases the disagreement only became apparent once a dispute had arisen between the parties, and that may well have been a factor. In both cases the instrument was supplementary to a treaty. Very difficult problems can arise when an informal instrument which is subsidiary to a treaty contains provisions purporting to amend, or which are otherwise inconsistent with, the treaty. This raises the question whether the inconsistent provisions are null and void, or have some legal effect. In certain cases the informal instrument might be regarded as evidence of a mutual waiver of rights under the treaty. Over-reliance on such instruments to modify provisions in treaties can, however, be dangerous. Not only can it lead to uncertainty as to the precise effect on the treaty, but it can also have the effect of undermining those provisions of the treaty which have not been the subject of any modification.52 It is not usually necessary to determine the precise status of an informal subsidiary instrument which is in the nature of a statement of interpretation of a treaty. The rules relating to such instruments in Article 31 of the Vienna Convention on the Law of Treaties probably cover most cases adequately. V

Whether Informal Instruments are Really Treaties

Although the practice of States is a very important factor, some commentators might argue that many (perhaps most) States are mistaken in believing that informal instruments are not treaties. Given that many treaties cannot in 51 52

See Goodrich, Charter of the United Nations (3rd ed.), p. 612. See also Fawcett, op. cit. supra n. 25, at pp. 389–390. See also Roessler, op. cit. supra n. 4, at pp. 55–56. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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­ ractice be brought before an international court or tribunal, if the substance p of an informal instrument is the record of what would ordinarily be described as an agreement, is there any valid reason for not regarding it as a treaty? Any such attempt to show that there is no legal distinction between an informal instrument and a treaty immediately runs up against a problem when it is clear that the parties did not intend the mstrument to be legally binding. To deal with this, one would have to argue in favour of an objective test which disregards the intention of the parties. One might attempt to justify taking such a radical view by employing three arguments. The first argument relies on the general principle ex re sed non ex nomine. This is as much a principle of international as of domestic law and, under ­Article 38 of its Statute, the International Court of Justice is required to apply “the general principles of law recognised by civilised nations”. In English contract law the courts apply an objective test of whether the parties intended to create legal relations, and tend to look with particular disfavour at any attempt to circumvent statutory requirements by formal means. For a time landlords were able to avoid the Rent Acts by the use of “licences”. But the courts have brought such devices under control by looking at the substance of the transaction. In Street v. Mountford53 the House of Lords had to decide whether a document signed by Mrs Mountford created a licence or a tenancy. Although it was described as a “licence agreement” and Mrs Mountford signed a statement at the end that she understood and accepted that “a licence in the above form does not and is not intended to give me a tenancy protected under the Rent Acts”, because the accommodation had been granted for a term at a rent with exclusive possession, and Mr Street (her solicitor landlord) provided neither attendance nor services, on its true construction it created a tenancy. As Lord Templeman said: …the consequences in law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement. If the agreement satisfied all the requirements of a tenancy then it produced a tenancy and the parties cannot alter tk effect of the agreement by insisting that they only created a licence. The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.54 53 54

[1984] 1 W.L.R. 877; for a general study of the courts’ attitude, see Anson and Guest, Principles of th English Law of Contract (1979), p. 66 t seq. Jd m. p. 884 (emphasis added). In “Gentlemen’s Agreements regulating Business under Dutch Civil Law” (1984) xxxi Netherlands International Law Review 2, Dr Wessels Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The second argument might be that the States will often be of unequal power; one may be economically or militarily inferior or, being a demandeur, in a weaker negotiating position. The status of the instrument can then be dictated by the stronger party. This may be particularly so in the case of arrangements for development aid. Is the developing country then bound to accept that the instrument is not legally binding on the donor State? And, since in practice it would be impossible to draw a clear line between arrangements between unequal parties and those between equals, should not all instruments which record “agreements” be regarded as treaties whatever the professed intention of the signatories? On the other hand, although a developing country may be at a disadvantage if pledges of aid are contained in mere informal instruments, when it has to enter into onerous commitments, it might be to its advantage for them not to be embodied in legally binding arrangements. The third (and perhaps rather stronger) argument might be that the international community has a general interest in seeing that agreements (bilateral as well as multilateral) are kept. The maintenance of the rule of law is as important in international relations as it is in one’s own country. Just as national courts should be constantly on their guard against forms of words designed to obscure the true nature of a transaction or to avoid its legal consequences, so international courts and tribunals should not be slow to reject such devices, especially given the purpose of Article 102. Its forerunner, Article 18 of the Covenant of the League of Nations,55 was intended to rid the world of secret treaties; might not the widespread use of informal instruments herald their return? But arguments such as these are incompatible with the fundamental principle of the sovereign equality of States and, in particular, their freedom to exercise (or not to exercise) their treaty-making power. As Eisemann puts it: Le droit international étant domine par Ia règle du consensualisme, il ­serait paradoxal de refuser aux Etats Ia possibilité de s’engager volontairement dans une relation aux effets juridiques incomplets: qui peut Ie plus peut le moins.56

d­ emonstrates by examples drawn from Dutch and various other legal systems and from EEC law that, even though businessmen may put their hand to a document which expressly says that it is not a contract, it may nevertheless have legal consequences. 55 [1919] b.s.p. 7. Art.18 provided that no “treaty or international engagement” would be binding until it had been registered with the League. 56 Op. cit. supra n. 2, at p. 344 (emphasis added).

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An objective test may well be appropriate for a municipal legal system with a national legislature and a hierarchy of courts. Given the present structure of international society, it is unsuitable for dealing with relations between sovereign States. Moreover, if informal instruments were really treaties one would expect this to be reflected in the practice of States in registering international agreements under Article 102 of the Charter. Such instruments are numerous, and manyprobably the vast majority-are not confidential. Of the 1,200 instruments published in the UN Treaty Series for 1977 (the latest complete year of publication) only two could be described as informal instruments in the strict sense. One is a Memorandum of Understanding between the United States and Brazilian Governments concerning consultations on matters of mutual interest of 21 February 1976.57 It contains no treaty language whatsoever. The other is a Memorandum between the US Department of Defense and the Commission on Studies of the National Territory of Mexico of 25 July 1975.58 This records “understandings and arrangements” and otherwise uses non-treaty language, although it does refer in one part to “obligations under this arrangement”. Unless 1977 was untypical (and there is no reason to believe that it was), this substantial sample suggests that, even if some States assert that there is no real distinction between a treaty and an informal instrument, such a belief is not reflected in registration practice.59 VI

The Possible Legal Consequences of Informal Instruments

Rather than try to show that the parties to informal instruments are like the Bourgeois Gentilhomme, and have all the time been entering into treaties, it would be more productive to examine the possible legal consequences which may arise from the conclusion of informal instruments. In other words, can an instrument which is not in itself legally binding nevertheless give rise to legal consequences? At first sight it appears that an informal instrument can have effect only in political or moral terms; if breached, the sanction is political–a State cannot take the matter to any international court or tribunal or impose the countermeasures it might be entitled to take in the case of breach of a treaty. It can 57 58 59

u.n.t.s. 196. u.n.t.s. 148. Following the enactment of the Case Act in 1972 it would not be surprising to find an increasing number of informal instruments registered by the United States.

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show its displeasure by resorting to the (much undervalued) right of retorsion.60 Baxter regarded informal instruments as “soft” law, and went so far as to suggest that compliance with them by officials was more a matter of “bureaucratic habit” in order to maintain the “credit rating” of their government.61 But in choosing an informal instrument does a State give up all the advantages of a legally binding instrument–in particular enforceability–in return for speed, flexibility, confidentiality, etc? Can a State conclude bilateral arrangements about, say, status of forces with two other States, using in one case a treaty and in the other an informal instrument (there are many British examples where the difference is only in the form, the substance of the arrangements being the same), and treat the informal instrument as no more than an expression of political will? An international tribunal might be reluctant to dismiss so lightly the effect of an informal instrument. One might expect the tribunal to be concerned not so much with the form of the instrument as whether it records an agreement. There can be little doubt that the vast majority of informal instruments do record agreements (using that term in its ordinary sense) between subjects of international law; they may therefore not be devoid of all legal consequences. Even if an instrument is not itself binding in international law, that does not make it impossible for legal rights and obligations to be derived from it. State A concludes an informal instrument which expresses its “intention” to pay State B $500 million in development aid over a period of five years. State B relies on that statement of intent and, assuming that it will be carried out, plans its development programme accordingly. Is State A nevertheless free, as a matter of law, to say later that it has changed its mind? Is its obligation limited to notifying State B of that change of mind?62 Although much would depend upon the circumstances, such a statement of intent may have legal consequences. A unilateral declaration of intent becomes binding if the State making the declaration intends to be bound by it. Underlying the rule is the ­fundamental international law principle of good faith; examples are the Nuclear Tests case (Australia v. France);63 the Eastern Greenland case64 and the South West Africa

60 61 62

See Whiteman, Digest of International Law (2nd ed.), Vol. 12, p. 311 el seq. Op. cit. supra n. l, at p. 556. See the Portendic case (1843) 42 b.f.s.p. 1377–1378, and the discussion of it in Cheng, General Principles of Law as applied by International Courts and Tribunals, pp. 137–140. 63 [1974] I.C.J. Rep. 267–268. An identical passage is to be found in the Nuclear Tests (New Zealand v. France) case (1974) I.C.J. Rep. 472–473. 64 [1933] p.c.i.j. Series A/B, No. 53, 71.

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cases (preliminary objections).65 It appears from these authorities that the main requirement for a unilateral declaration to become binding is the intention of the State making it to be bound. The application of this principle by the International Court in the Nuclear Tests case is of considerable interest. The five declarations made by the French Government reviewed by the Court were a communique by the President’s office, a statement by the Foreign Minister before the UN General Assembly, and three statements at press conferences. The Court interpreted these as a whole as a statement that the French Government would not conduct atmospheric nuclear tests in the future. Despite the relatively informal nature of most of the statements, the Court held that the French Government had undertaken a legal obligation to that effect vis-à-vis the international community. The following passage in the Court’s judgment shows the manner in which an intention to enter into legal obligations was implied: 51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced. The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect.66 Although on the facts the Court’s finding of an intention to be bound was somewhat dubious, nevertheless the judgment emphasises the role of good faith, and at the very least suggests that unilateral statements might be held to give rise to legal obligations more readily than had been previously thought. The position may be that much stronger when a declaration is contained in

65 [1962] I.C.J. Rep. 402–404, 417–418; see also Brownlie, Principles of Public lnur­national Law (2nd ed.), p. 616; and Fitzmaurice, “The Law and Procedure of the Inter­national Court of Justice 1951–4: Treaty Interpretation and other Treaty Points” (1957) 33 b.y.i.l. 229–230. 66 [1974] I.C.J. Rep. 269.

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a bilateral or multilateral instrument and there is, in effect, an exchange of declarations. Mention was made earlier of one of the Exchanges of Notes associated with the Treaty for the Establishment of the Republic of Cyprus, which was published and registered with it even though it was not itself a treaty. This was the “Exchange of Notes and Declaration by Her Majesty’s Government in the United Kingdom concerning the Administration of the Sovereign Base Areas”.67 It consists of a letter written on behalf of the United Kingdom enclosing a “Declaration” by the UK Government regarding the administration of the Sovereign Base Areas, and an acknowledgment from the Government of Cyprus. The Exchange itself is not expressed to constitute an agreement and the Declara on uses non-treaty language, expressing matters in terms of objects and intentions. Although some of the objects are general in nature (“full co-operation with the Republic of Cyprus”) others are very specific and deal with a multitude of practical matters such as freedom of access, legislation, customs, taxes, currency, mining, land registration, prisons, police, etc. In paragraph 2 the UK Government declares its “intention” not to develop the Sovereign Base Areas for other than military purposes “or to set up and administer ‘colonies’ ”. In paragraph 5 the UK Government expresses its willingness to co-operate with the authorities of the Republic to establish a joint consultative board to advise the authorities of the Republic and of the Sovereign Base Areas “on such arrangements as may be necessary from time to time to give effect to the intentions of Her Majesty’s Government set out in this Declaration”. The covering letter expresses the desire of the UK Government “to assure the Government of the Republic of Cyprus” that it is “determined to stand by [the] Declaration and thereby to create a continuous and lasting system of administration in the Sovereign Base Areas founded on close co-operation between the authorities of those areas and the authorities of the Republic of Cyprus.” Although at the time the UK Government offered what it considered to be no more than a political commitment, the Declaration and covering letter contain-as part of the independence package-such firm declarations of intent that some might argue that the United Kingdom must be regarded as being legally bound by them, provided of course that the Republic of Cyprus continues (as of course it does) to respect the rights of the United Kingdom in relation to the Sovereign Base Areas. On the other hand, it could be argued that, since the matter was dealt with in a document which was deliberately drafted in a quite different manner from the other independence texts, there is no reason to attribute to it now a legal effect which was not that mutually accepted in 1960. 67 See op. cit. supra n. 22.

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But what if it cannot be demonstrated that a State intended to be bound by its declaration? The intention of States when signing an informal instrument not to enter into a legally binding agreement must raise a strong presumption against any intention to be bound by any statement contained in it. A more fruitful (and perhaps rather better paved) avenue to explore may be that of estoppel. The doctrine in international law is a substantive rule, not merely one of evidence. It is a broader and less technical rule than estoppel in ­English law, being founded also on the principle that good faith must prevail in international relations. The exact scope of the international law doctrine is far from settled, but in general it may be said that where clear statements (or conduct) of one government lead another government bona fide and reasonably to act to its own detriment, or to the benefit of the first government, then the first government is estopped from going back on its statements or conduct. The doctrine was developed by the International Court of Justice in the Temple of Preah Vihear case.68 Judge Fitzmaurice described it thus: The essential condition of the operation of the rule of preclusion or estoppel, as strictly to be understood, is that the party invoking the rule must have “relied upon” the statements or conduct of the other party, either to its own detriment or to the other’s advantage … the essential question is and remains whether the statements or conduct of the party impugned produced a change in relative positions, to its advantage or the other’s detriment. If so, that party cannot be heard to deny what it said or did.69 Judge Spender said: “In my opinion the principle operates to prevent a State contesting b­ efore the Court a situation contrary to a clear and unequivocal representation previously made by it to another State, either expressly or impliedly, on which representation the other State was, in the circumstances, entitled to rely and in fact did rely, and as a result that other State has been prejudiced or the State making it has secured some benefit or advantage for itself.”70 68 [1962] I.C.J. Rep. 6. 69 Idem, pp. 63–64. 70 Idem, pp. 143–144. See also the judgment in the Arg ntute-Chik Frontier Arbitration (1966) xvi Reports of International Arbitral Awards 109, 164; Bowett, “Estoppel before

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Although estoppel should not be seen as the easy solution to all the legal problems raised by the use of informal instruments, it may help to solve some of the particular problems already mentioned. If two States choose to record the settlement of a dispute between them in an informal instrument rather than a treaty–perhaps for reasons of confidentiality–they are clearly estopped from denying that the terms of the settlement are binding. Where a provision of an informal instrument which implements an earlier treaty is inconsistent with the treaty, estoppel provides a basis for treating the provision in the informal instrument as effectively overriding (or at least suspending the operation of) the treaty to the extent necessary. The doctrine may also solve the problem of the legal effect of a termination provision in an informal instrument. The principles of good faith (at least as a principle of law)71 or estoppel do not apply to instruments such as the Atlantic Charter, the Helsinki Final Act, the Bonn Declaration on hijacking72 or the Gleneagles “Agreement” on sporting contacts with South Africa, which are more in the nature of statements of political will. They give rise to no legal consequences, although the dividing line between them and other informal instruments may be rather more difficult to draw than between those instruments and treaties. But, if there are cases where a non-binding instrument may give rise to legal consequences, does it make much sense to continue to treat it as if it were not a treaty? The distinction between a treaty which contains legal rights and obligations, and an informal instrument which can give rise to legal consequences, is admittedly rather fine. Eisemann puts it thus: En somme, il semble que l’on puisse définir Ie gentlemen’s agreement, que l’on préférera appeler accord informel, comme un accord international conclu par deux ou plusieurs Etats créant des droits et obligations réciproques insusceptibles de fonder immédiatement Ia responsabilité intemationale des parties.73 But the distinction is still valid and valuable. Since the Second World War the number of independent States has increased threefold. Arrangements between them, both bilateral and multilateral, especially in the fields of commerce, defence and aid, have increased enormously. The complexity and sophistication

71 72 73

I­ nternational Tribunals and its Relation to Acquiescence” (1957) 33 b.y.i.l. 176; MacGibbon “Estoppel in International Law” (1958) 7 i.c.l.q. 468. See Fawcett, op. cit. supra n. 25, at pp. 396–398. On the Bonn Declaration, see Busuttil, “The Bonn Declaration on International Terrorism: A Non-Binding International Agreement on Aircraft Hijacking” (1982) 31 i.c.l.q. 474. Op. cit. supra n. 2, at p. 347 (emphasis added).

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of such arrangements requires quick and flexible, not time-consuming, formal procedures. In certain cases confidentiality needs to be preserved. Often a treaty is not a suitable vehicle for recording such arrangements. No one is obliged to enter into any deal. When a State does so with another State, it is not forced to record it only in a treaty. A State, in the exercise of its sovereignty, is free to deny itself the advantages (such as they are) of treaties in order to benefit from the advantages of informal instruments. They have proved to be a valuable device, but no more than a device. If properly used, and their legal consequences correctly analysed, they need pose no threat to the treaty-making process.

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Chapter 29

Christine Chinkin, The Challenge of Soft Law: Development and Change in International Law, 1989 Comment by Brigid McCarthy, Intern, BIICL Professor Christine Chinkin’s influence is apparent across a number of topics in international law. She has been widely recognised for her work on women’s human rights and dispute resolution. Her work on the former is represented in this Anthology in her article “Reservations and Objections to CEDAW”. For her outstanding contribution to international human rights, she was awarded (with Hilary Charlesworth) the 2006 Goler T Butcher Medal by the American Society of International Law (ASIL). Chinkin’s contribution to international law is an ongoing one: she is emerita Professor of International Law at the LSE, a Barrister at Matrix Chambers and a member of various advisory and editorial panels. The article below concerns soft law. While this is a topic Chinkin has subsequently written on,a this early article, of only 16 pages, was foundational and has had a lasting impact on many aspects of the subject. In 2014, Alan Boyle reflected that, it “remains one of the best discussions” of soft law.b Extensive work has been done by various international lawyers and academics to define soft law and its parameters. In Part II, Chinkin undertakes this task, but does so with such brevity that at first blush it seems only preparatory to her more detailed analyses later in the paper. However, her concise contribution is a lasting and insightful one, which continues to merit reference in contemporary discussions of definition.c In Part III, Chinkin discusses when soft law may become hard law. This has emerged as a significant aspect of soft law scholarship. Perhaps this is because, as Chinkin astutely identifies, “[l]awyers have a tendency to favour the legal norm”. Once again, Chinkin’s insights have proven influential. a For example: C Chinkin, ‘Normative Development in the International Legal System’, in D Shelton (ed), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (OUP 2003) 21. b A Boyle, ‘Soft Law in International Law-Making’ in MD Evans (ed), International Law (OUP 2014) 118–36. c For example: Ibid, 119.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_030

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At the time of the article’s publication, soft law was a controversial conceptual category still gaining in its currency.d At the centre of debate was what “soft law” was and whether it could be considered law at all. Although disagreement persists on these issues, today much of the debate has moved on to the topic Chinkin discusses in Part IV – the advantages and disadvantages of soft law as a tool.e As Fajardo identifies, in 1989 Chinkin tackled this subject “with far-sighted thoroughness”.f d G Handl et al., ‘A Hard Look at Soft Law’ (1988) 82 Proceedings of the Annual Meeting (American Society of International Law) 371; H Charlesworth, ‘Law-making and sources’ in J Crawford and M Koskenniemi (eds) The Cambridge Companion to International Law (CUP 2012) 198. e H Thirlway, ‘Specialities: jus cogens, Obligations erga omnes, Soft Law’ in The Sources of International Law, (OUP 2014) 142, 164; Boyle (n. 2), 123. f T Fajardo, ‘Soft Law’ (Oxford Bibliographies in International Law, 20 January 2014), available at: .

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C.M. Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 International and Comparative Law Quarterly pp. 850–866. Reproduced with the kind permission of the British Institute of International and Comparative Law.

The Challenge of Soft Law: Development and Change in International Law Christine Chinkin* I

Introduction

There is a wide diversity in the instruments of so-called soft law which makes the generic term a misleading simplification.1 Even a cursory examination of these diverse instruments inevitably exposes their many variables in form, language, subject matter, participants, addressees, purposes, follow-up and monitoring procedures. These variables, coupled with the inherent contradictions in any concept of soft law, highlight the challenges presented to the structure and substance of the traditional international legal order by the increasing use of soft law forms. Both the contradictions and the challenge exist at many levels and are revealed by the conflicting claims arising out of instruments of soft law that are made by States and other participants in the international legal order. These claims and the responses made to them challenge the accepted international legal order on the juristic, substantive and procedural levels, while the complexity of some of the inherent contradictions within the claims themselves further confuses any analysis. This is especially evident in the context of international economic law, which will be the primary focus of this article. It will briefly examine some of the conflicting claims and the challenges they present to the international legal order. * Senior Lecturer in Law, Sydney University. This note is an expanded and amended version of a paper delivered on a Panel on “A Hard Look at Soft Law” at the 82nd Annual Meeting of the American Society of International Law, April 1988. 1 There is a vast body of literature on international soft law. See especially: Oru challa-­ Wesierski, “A Framework for Understanding Soft Law” (1984) 30 McGill L.J. 37; Bothe, “Legal and Non-Legal Norms – a Meaningful Distinction in International Relations?” (1980) 11 Neth. y.b.i.l. 65; Tammes, “Soft Law”, in E. Radice Arbor, Essays on International and Comparative Law in Honour of Judge Erades. (1983); Seidl-Hohenveldern, “International Economic Soft Law” (1980) 163 Rec. des Cours 164; Gold, “Strengthening the Soft International Law of Exchange Arrangements” (1983) a.j.i.l. 443, and other works as referred to. It is a characteristic of soft law that it is in written form. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Identification of Hard Law and Soft Law

Soft law instruments range from treaties, but which include only soft obligations (“legal soft law”2), to non-binding or voluntary resolutions and codes of conduct formulated and accepted by international and regional organisations (“non-legal soft law”), to statements prepared by individuals in a non-governmental capacity, but which purport to lay down international principles.3 The use of a treaty form does not of itself ensure a hard obligation. The Vienna Convention on the Law of Treaties does not require treaties between States to create any identifiable rights and obligations4 to be subject to its regime. It is sufficient that the agreement is in writing and subject to international law. However, if a treaty is to be regarded as “hard”, it must be precisely worded and specify the exact obligations undertaken or the rights granted. Where a treaty provides only for the gradual acquiring of standards or for general goals and programmed action it is itself soft5 “for what is apparently a treaty may be devoid of legal content”.6 The Vienna Convention imposed a unity on the law of treaties that has not been wholly successful. As argued by Lord McNair,7 treaties do not all perform the same function in the international arena and consequently should not be subject to an identical regime. The Vienna Convention, however, makes few

2 A number of definitions have been suggested. Some writers refer only to norms in hard law form, usually a treaty but with vague or weak requirements and characterise this as “legal soft law” while others concentrate on instruments in non-legal form, e.g. resolutions of ­international organisations and codes of conduct, termed “non-legal soft law”. See, especially, Gruchalla-Wesierski, idem, p. 44. 3 E.g. the Universal Declaration of the Rights of Peoples, adopted 4 July 1976. This Declaration was drafted and adopted not by States but by eminent international lawyers from diverse legal cultures. s.m of this Declaration is on economic rights and includes rights to permanent sovereignty, the common heritage of mankind, equity in international trade and the right of peoples to choose freely their own path to development. See Rich, “The Right to Development: A Right of Peoples?”, in J. Crawford (ed.), The Rights of Peoples (1988), pp. 39–54. 4 Vienna Convention on the Law of Treaties (hereinafter “Vienna Convention”) u.n.t.s. No.58 (1980), Cmnd.7694, UN Doc.A/Conf.39/27 (1969). Art. 2 defines a treaty as “an international agreement concluded between States in written form and governed by international law”. 5 See Baxter, “International Law in her Infinite Variety” (1980) 29 i.c.l.q. 549 for a discussion of “hard” and “soft” international agreements. 6 D. O’Connell, International Law (1970), Vol. 1, p. 246. 7 McNair, “The Functions and Differing Legal Character of Treaties” (1930) 11 b.y.b.i.l. 100.

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distinctions between the diverse purposes of treaties8 and does impose a single regime which cannot be regarded as uniformly appropriate. Nor is there any distinction drawn within the Vienna Convention between treaties (or treaty provisions) that are hard and those that are soft. Like treaties, soft law instruments are very varied. It is therefore undesirable that a single uniform response to claims resting upon soft law instruments be formulated. Many are concluded at a high level of abstraction and generality while others have a much greater degree of specificity. This can be well ­illustrated by the instruments which have been negotiated to establish a New International Economic Order. The first resolutions of the New International Economic Order established its overall goals. These resolutions, notably the Declaration on the Establishment of a New International Economic Order9 and the follow-up Charter of Economic Rights and Duties of States 1974,10 set the agenda and established an overall political framework for the proposed new economic order. These resolutions provided a wide coverage of subject matter in general language. ­Subsequent instruments to give substantive content to this framework were proposed, and negotiations to formulate them have taken place over the ensuing years.11 These later resolutions and codes of conduct have been specialised and intended to provide more detailed regulation in the particular fields targeted in the original resolutions. Indeed, some have been extremely narrow in subject matter,12 and in striking contrast to the generality of the early instruments. This very specificity makes them more likely to be effective in controlling the proscribed activities. Today there are diverse instruments comprising both the generalised policy and programmatory statements, as well as the more detailed attempts at regulation in various precise fields. These differences in purpose and style make problematic attempts to construct a systematic framework for the analysis of soft law which is neither interspersed with many exceptions nor is at an excessively high level of generalisation and abstraction. 8

One exception is Art. 60(5), which excludes treatie!i of a humanitarian character from the operation of Art. 60(1)–(3). 9 G.A. Res.3201 (S-vi), (1974) 13 i.l.m. 715. 10 G.A. Res.3281 (xxix), (1975) 14 i.l.m. 251. 11 E.g. UN Draft Code on the Transfer of Technology; UN Restrictive Business Practices Code, adopted by the u.n.g.a. 5 Dec. 1980, UN Doc. TD/RBP/Conf./10/ Rev.1 (1980); UN Draft Code on TI1UUioational Corporations. 12 E.g. the WHO Code on the International Marketing of Breastmilk Substitutes 1981, Res. wha 34.22, Annex WHO Doc. A/34NR/15; FAO International Code of Conduct on the Distribution and Use of Pesticides 1985, FAO C85/REP, Res.10/85.

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Claims as to the Status of Soft Law: Development and Change in International Law

A Subject Matter of Claims Soft law instruments are concluded by States to combine collective regulation and restraint in economic dealings with a flexibility and freedom to manoeuvre where events or changing circumstances so require. They are, however, ­frequently not only regulatory but are also intended to construct and programme the development towards a new international economic structure.13 The initial impetus for this was a consequence of the decolonisation process. Its political expression was through the increase in claims to the right of self-­ determination and their acceptance by the General Assembly.14 Its economic corollary was the growth of claims from the newly independent States to a right to development, itself an offshoot of the human rights movement. The concepts inherent in the use of soft law forms in international economic relations are the forces for development and change in international law. They both cause change and are consequential upon it. However, the substance of any right to development15 is far removed both from the narrow subject matter of international economic law as conceived of in the immediate post-Second World War era16 and from that of the first and second generations of human rights law.17 Economic development necessitates the resolution of international claims for the allocation of resources according to principles of distributive justice, in conjunction with notions of affirmative action and entitlement so as to achieve substantive equality of States. The very subject matter of international economic law has therefore been expanded to incorporate these ideas so that it now embraces topics such as restrictive trade practices, control of transnational corporations, foreign investment, transfer 13

14 15

16 17

This is also true of soft law instruments in other subject areas. E.g. human rights, The Universal Declaration on Human Rights 1948 G.A. Res.217A(iii), g.a.o.r., 3rd Sess., Pt. l, ­Resolutions, p. 71 and the environment, the Stockholm Declaration on the Human Environment, Report of the UN Conference on the Human Environment, UN Doc. A/ Conf.48/14. G.A. Res. 1515(xv), 14 Dec. 1960. g.a.o.r. 15th Sess., Supp. 16, p. 66. Both the existence of a right to development and its possible content are controversial. See Schacter, “The Evolving Law of Development” (1976) 15 Col. J. Trans. L. 1; Rich, “The Right to, Development as an Emerging Human Right” (1983) 23 v.j.i.l. 287; Rich, op. cit. supra n. 3. Primarily international trade regulation through the GATT and international currency regulation through the Bretton Woods Agreement. For the notion of the first and second generations of human rights law, see K. Vasak, “A Thirty Year Struggle-the Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights” UNESCO Courier, 29 Nov. 1977, as cited in Rich, op. cit. supra n. 3. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of technology, consumer protection,18 allocation of the resources of the sea, commodity agreements and the sales and marketing of particular products such as breast milk substitutes and pesticides. Many of these areas were previously regarded as being within domestic jurisdiction. A State’s economic policy was as much its own internal business as its political structure. The dominant participants in international economic relations are not exclusively, or even primarily, States but entities controlled by domestic law-individuals and national and transnational corporate organisations. Taking the principles enunciated in Articles 1, 55 and 56 of the United Nations Charter19 as a starting point, the ambit of legitimate international concern has been broadened by these instruments. However, this development has not necessarily been accompanied by a determination of the appropriateness of international regulation in these fields and of its applicability to ­essentially domestic bodies.20 The outcome has been to limit the domestic jurisdiction exception and consequently the notion of economic self-determination. This expansion of subject matter to encompass an overall development of a New International Economic Order is one reason for the many contradictions in the area. Claims are made in this expanded area of international economic law that lie contrary to traditional principles of international law such as sovereign equality, non-preferential and reciprocal treatment and nondiscrimination. Developing States rely upon sovereign equality to reinforce their independent status and standing in the international community while simultaneously denying it through claims to receive non-reciprocal, preferential treatment in the economic sphere. In an analytical study carried out by unitar,21 sovereign equality is placed directly alongside a duty to co-operate as two of the most fundamental 18 19

20 21

See the UN Guidelines for Consumer Protection, u.n.g.a. Res.39/248, adopted unanimously 9 Apr. 1985. Harland, “The United Nations Guidelines for Consumer Protection” (1987) 10 J. Consumer Policy 245. Art. 1, para. 3 includes the achievement of “international co-operation in solving international problems of an economic, social, cultural or humanitarian character” as a Purpose of the UN. Art. 55 states:“ …the United Nations shall promote: …b. solution of international economic, social health and related problems; …”. Art. 56 states: “All Members pledge themselves to take joint and separate action in cooperation with the Organisation for the achievement of the purposes set forth in Article 55.” This development is similar to that decried by Professor Brownlie of the proliferation of new human rights without attention to the “quality control” needed: Brownlie, “The Rights of Peoples in Modem International Law”, in Crawford, op. cit. supra n. 3, at p. 15. “Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order”, prepared by Prof. Abi-Saab, UN Doc. N 39/504, Add. i (1984). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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­principles22 of the New International Economic Order.23 Sovereign equality incorporates the right to economic self-determination but this is limited by the restrictions said to be imposed by the duty to co-operate. The report elaborates upon the content of this latter duty. It includes, inter alia, the principle of preferential treatment for developing countries, the right of every State to benefit from science and technology and the principle of entitlement of developing countries to development assistance. These principles, based upon a claim of disadvantage, contradict the legal concept of sovereignty24 and assert legal outcomes of disadvantage. Indeed, “the concepts of economic independence and world-wide distribution are in a way contradictory”.25 The principles of the New International Economic Order expose the fiction of sovereign equality while continuing to assert it;26 the soft law instruments that have been formulated to promote and establish that Order rest upon this same contradiction. These contradictions are at the level of the underlying principles of international economic law; there are others at the level of substantive detail.27 These can be found both across the various instruments and within single ones. Many of the instruments cover similar ground and there is overlap between them.28 While later instruments attempt to build upon the earlier ones the language need not always be consistent or there may have been a deliberate drawing back, or change of direction. Programmes for development do not routinely progress in a single forward direction. Another factor producing inconsistency is that there are now many different international and regional arenas with the development of international economic law upon their agenda.29 The different participants in the ­negotiation 22 23

24 25 26 27 28

29

Idem, p. 40. Cf. the Declaration on the Right to Development, 4 Dec. 1986, O.A. Res.41/128. Art. 3(3) states: “States should fulfil their rights and duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, mutual interest and cooperation among all States…” Hom, “Nonnative Problems of a New International Economic Order” (1982) 16 J. World Trade L. 338, 343. Idem, p. 341. Riphagen, “From Soft Law to Jus Cogens and Back” (1987) 17 v.u.w.l.r. 81. See examples in Seidi-Hohenveldem, op. cit. supra n. 1, at p. 217. E.g. the UN Code of Conduct on Transnational Corporations reiterates many of the principles found in the UN Guidelines for Consumer Protection. See Harland, “Some International Dimensions of Consumer Law and Policy” (1987) 29 Journal of the Indian Law Institute 451. Among the institutions that have been instrumental in the negotiation and production of soft law instruments are: unctad (Restrictive Business Practices Code, Code on the Transfer of Technology); the UN Center on Transnational Corporations (Code on Transnational Corporations); the UN Economic and Social Council (“the illicit payments Code”); OECD (Declaration on International Investment and Multinational Enterprises, Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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and formulation processes of such instruments and their diverse backgrounds and goals make uniformity improbable. There is also a growing concern that there are now simply too many instruments and States cannot effectively implement them all.30 Where textual inconsistencies arise between treaties, technical problems of amendment by successive treaties and treaty interpretation under the Vienna Convention arise. These are avoided by the use of a soft form. Indeed, it is a feature of soft law that it should be viewed in its totality as providing overall direction and policy and not in its component parts. However, it is becoming increasingly difficult to keep grasp of the totality in the light of the multiplicity of instruments and the inconsistencies between them. B Transformation of Soft Law into Hard Law The first claims to be identified relate to the status of these instruments and expose the most fundamental challenge: on the one hand there is the deliberate avoidance of traditional legal forms, while on the other there are claims that some of these non-legal forms have themselves acquired legal force31 and even legal force of a superior nature, that is, a norm of jus cogens.32 Such strong claims need to be treated with caution: they are either assertions that the soft form has hardened into legal norms or they amount to an assertion that the very sources of international law33 have undergone change. Any claim in the former category requires careful analysis to determine whether it does indeed represent the actual commitments of States (i.e. constitutes customary international law). A claim in the second category is much more controversial for it amounts to an assertion of a “revolutionary change in the structure of the system itself.”34 The claim is that there has been a change in the criteria for Guidelines for Multinational Enterprises, Recommendation concerning Action against Restrictive Business Practices affecting International Trade including those involving Multinational Enterprises); ICC (Guidelines for International Investments); and the ILO, the WHO and FAO. The overlap in the subject matter of these instruments is evident from this list. The ICC, unlike the other bodies, is of course a private, non-governmental body. 30 See F. Morgenstern, Legal Problems of National Organisations (1986), pp. 98–103 for expressions of concern about the multiplicity of standard setting instruments and the lack of “any single body with an overview of the entire standard setting process”. 31 Horn, op. cit. supra n. 24, at p. 347. 32 That is, a “peremptory norm of international law” as defined in Vienna Convention, Art. 53. 33 Art. 38(1) of the Statute of the International Court gives the accepted sources of international law: international conventions whether general or particular; international cmtom; the general principles of law; judicial decisions and the teachings of the most highly qualified publicists. 34 Garibaldi, “The Legal Status of General Assembly Resolutions: Some Conceptual Observations” (1979) 73 Proc. Am. Soc. Int. L. 324. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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validity in international law and its acceptance would necessitate a reworking of the sources of international law. Claims in the first category, that the principles contained in a soft law instrument have become transformed into hard law, rest upon an assertion that subsequent State practice has changed the status of the principles. It may also be urged that this very transformation was a major goal of the formulation of the principles. The requisite State practice may be the inclusion of principles originally expressed in soft law forms into treaties, although it is likely that the language would have to be adapted to create hard obligations. Such action represents a deliberate choice on the art of States parties to the treaty to change the status of the principles.35 Far more problematic is the second claim, that soft law principles have come to represent customary international law. Such principles do not and cannot per se be regarded as customary international law for a number of reasons. There must be sufficient evidence of State practice and opinio juris. “The elements of the formation of the rules of general international law-international custom-are not some esoteric invention but rather they provide criteria by which the actual expectations and commitments of States can be tested.”36 State practice is evidenced by what States do, as well as by what they say. Before a decision-maker accepts such a claim, evidence should be produced that an instrument of soft law has been consistently acted upon. Even where there is evidence of a consistent and uniform body of State practice, there is the need to establish opinio juris and the conceptual problem as to whether action taken in compliance with an instrument specifically denied to be legally binding and asserted to be voluntary can be evidence of opinio juris.37 The required intention to be bound may be denied, either expressly by the words of the instrument, or implicitly by the choice of a soft law form. The interests of States in voting for the adoption of a soft law instrument will differ along with their expectations and intentions as to implementation. This is not to deny 35

E.g. the incorporation of G.A. Resolutions (Res.1721(xvi); 1884(xviii); 1962(xviii)) into the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and Celestial Bodies 1967,610 u.n.t.s. 205; the incorporation of the Universal Declaration of Human Rights 1948, G.A. Res.217A(iii), g.a.o.r., 3rd Sess., Pt.1, Resolutions, p. 71 into the International Covenant on Qvil and Political Rights, Annex to G.A. Res.2200, 21 g.a.o.r., Supp. 16, UN Doc.A/6316, p. 52 (1966) and the International Covenant on Economic, Social and Cultural Rights, Annex to G.A. Res.2200, idem, p. 49. 36 Brownlie, op. cit. supra n. 20. 37 Baade, “The Legal Effects of Codes of Conduct for Multinational Enterprises”, in N. Horn (ed.), Studies in Transnational Economic Law, Vol. l, Legal Problems of Codes of Conduct for Multinational Enterprises (1980).

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that soft law can become customary international law or be declaratory of it. It can clearly do so, and the relevant soft law instruments may well have a catalytic effect. Since soft law is used in international economic relations precisely where there is an intention in at least some of the participants to develop and change the law it cannot be expected that this will happen instantly or readily: the notion of instant customary law appears incompatible with the revolutionary content of much soft law.38 However, these assertions must themselves be reconsidered in the light of the decision of the International Court of Justice in the Nicaragua case.39 There the Court held that the opinio juris of States with respect to the prohibition against the use of force could be deduced from their attitude towards the relevant resolutions of the General Assembly.40 Without any more evidence of the alleged opinio juris than mere acceptance of the resolutions, the Court determined that there was indeed an established principle of customary international law.41 This conclusion was reached despite many instances of inconsistent State . practice which were not considered by the Court to be fatal to the claim, but were dismissed as illegal breaches of the rule. The decision appears to represent a willingness by the Court to accept the transformation of soft law principles into hard law. It may indeed be a greater recognition of General Assembly resolutions as constituting a source of international law and thus be a redefinition of those sources. This would be just such a revolutionary change in the sources of international law.42 However, the principles in the resolutions in question had their basis in ­Article 2(4) of the United Nations Charter, which the Court found itself ­excluded from applying by the terms of the Vandenburg Reservation made by the United States to its acceptance of the jurisdiction of the Court under Article 36(2) of the Statute of the Court. Once the Court had taken that step it had cornered itself into finding the resolutions constituted customary international law. It need not necessarily follow that the Court would treat other soft 38 39 40 41 42

See Dupuy, “Declaratory Law and Programmatory Law: From Revolutionary Custom to ‘Soft Law’”, in Horn, idem, p. 247. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits) (1986) I.C.J. Rep. 14. Notably G.A. Res. 2625(xxv), Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, adopted without a vote by the G.A., 24 Oct. 1970. Nicaragua, supra n. 39, at paras. ibs-194, 202–209. See, D’Amato, “Training Customary International Law” (1987) 81 a.i.j.l. 101 for the opinion that “If voting for a UN Resolution means investing it with opinio juris, then the latter has no independent content; one may simply apply the UN Resolution as it is and mislabel it ‘Customary law’.”

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law resolutions, such as those constituting the New International Economic Order, in the same non-rigorous way. Another point of distinction between the resolutions in the Nicaragua case and international economic law is that the former are aimed directly at the activities of States themselves, while in international economic relations it is the activities of individuals and corporations that are crucial to the creation of expectations as to the observance of the regulating instruments. However, the behaviour of these entities cannot constitute State practice. International soft law principles can also be implemented into municipal law, either by the State authorities or by individuals through their contracts. The former is evidence of State practice. There is no reason why States should not adopt into municipal law whatever aspects of soft law they desire. No other State, whether a participant in the soft law instrument or not, can object to this process. This may be done either through formal prescription or through the enunciation of standards by domestic administrative and judicial decisionmakers. The domestic content of, for example, standards of unfair trading or public policy can be derived from the standards enunciated in the international instruments. Once adopted by the domestic courts of one State they can then be applied in the courts of other States through conflicts rules. In a number of States there have been domestic formulations of codes of conduct and guidelines for the self-regulation of various business and commercial concerns.43 The growth of soft law instruments in international relations has been mirrored domestically. There is an awareness that economic activities, whether performed in the domestic or international plane, cannot always be appropriately regulated by legislation or other forms of hard law. There is no reason why voluntary codes or guidelines concluded domestically should not incorporate or adapt standards formulated in the international codes. Although adoption from one soft law instrument into another does not alter the legal status of the principles in the way that incorporation into legislation or judicial decisions in common law countries does, this process would continue the pattern of creation of expectations as to future behaviour among those accepting the regulations. There is the further, more significant question, as to whether it is even desirable to claim that soft law has in fact become hard law. Lawyers have a tendency to favour the legal norm and see this claim as desirable but the outcome 43

For examples of domestic soft law codes, see N. Reich and L. J. Smith (eds.), “Special Issue: Implementing the Consumer-Supplier Dialogue Through Soft Law” (1984) 7 J. Consumer Policy.

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of any such conclusion must also be considered. If a principle is, or becomes, a legal norm certain legal consequences follow from its performance and its breach. If claims that soft law principles have become hard law are to be accepted, it must be possible both to determine breach and the legal outcome of any claim of breach. “The quality of the legal consequences must be considered with some precision.”44 IV

Choice of Soft Law Forms

Both treaties and international customary law have inadequacies for the regulation of this area of international relations so that it is not surprising that new techniques were sought for the projection of a New International Economic Order. The success of the development of human rights law from the Universal Declaration on Human Rights was an encouraging model to adopt. Multilateral treaties are slow to be concluded, slower still to come into force, and bind only the parties to them. The avoidance of the treaty form means that States are not bound by either domestic or international rules relating to treaties. There may be domestic constitutional technicalities to be satisfied before a treaty can be ratified;45 the growth of executive agreements in United States domestic law was a national response to this while the evolution of soft law forms is an international one. The Vienna Convention aimed at hardening the rules regulating those treaties that come within its terms. For example, the rules regulating the termination46 and amendment47 of treaties are restrictive; a fundamental change of circumstances is a ground for termination but only within tightly drawn limits and is not a basis for amendment within the terms of the Convention.48 It is possibly no coincidence that the trend towards concluding international soft law instruments gained momentum within a very short time after the finalising of the Vienna Convention, which hardened the rules governing treaties. Despite the potential disadvantages of treaties the reality is that the process of negotiating a soft law instrument can often be as complex and lengthy as 44 45 46 47 48

Brownlie, “Legal Effects of Codes of Conduct for MNEs: Commentary”, in Horn, op. cit. supra n. 37, at p. 42. E.g. Art. ii, s.2 of the US Constitution requires two-thirds of the Senate to concur in the making of a treaty. Vienna Convention, Arts. 54–64. Idem, Arts. 39–41. Idem, Art. 62.

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that for the negotiation of a treaty.49 This is inconsistent with a belief that the end result is in any event of no legal significance. Further, States make precise exceptions where they do not wish to be taken as bound;50 many of these statements approach the language and form of a treaty reservation, itself a device for avoiding a hard treaty commitment. These statements are not subject to the Vienna Convention provisions on reservations.51 They may be taken as a form of protest against being bound by some possibly emergent rule of customary international law,52 especially where the instrument has been adopted by consensus. The very action of ensuring that dissent is on record also reveals the concern of States that claims will be made that these non-legal forms represent international law. This inconsistency between rejection of the treaty form while simultaneously acting as though it had been used is symptomatic of anticipated claims that new norms have been established despite assertions that they have not. It is also representative of the confusion as to how international norms are made. The use of a soft law form is often a compromise53 between those States which did not favour any regulatory instrument and those which would have preferred the conclusion of a treaty. Although it is the substantive claims of the newly independent States that challenge the international legal order, those States often favour the use of the traditional sources to bestow the required certain legality upon their claims. However, a soft law form is preferable to either no outcome at all to negotiations, or to a treaty with diluted and vague provisions. In the light of the requirement of the International Court of Justice “that the provision concerned should, at all events potentially be of a fundamentally norm creating character”,54 such a treaty may be less likely to evolve as customary international law than a more precisely worded resolution. Even if such a provision cannot be shown to have become customary international 49

50 51 52 53 54

E.g. the negotiations for the Code of Conduct for Transnational Corporation which were commenced in 1977. See Maynard, “A Code of Conduct for Transnational Corporations” (1983) 4 The Company Lawyer 103 for a description of the first five years of negotiations. This makes arguments that the soft law form is speedier to conclude appear hollow. E.g. the reservations of the Federal Republic of Germany, France, Japan, the UK and the US to G.A. Res. 3201(5-vi) (1974) 13 i.l.m. 744. Vienna Convention, Arts. 19–23. On the role of protest against the emergence of a new rule of international law, see AngloNorwegian Fisheries Case (UK v. Norway) [1951] I.C.J. Rep. 116; Asylum case (Colombia v. Peru) [1950] I.C.J. Rep. 266. Compromise is still more evident in the so-called “Zebra” instruments which contain both legally binding and non-binding provisions. North Sea Continental Shelf cases (Fed. Rep. of Germany v. Denmark; Fed. Rep. of Germany v. The Netherlands) (1969) I.C.J. Rep. 3, para. 72.

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law it may in practice be harder to discount than a treaty which has failed to come into force. The increasing use of soft law forms also reflects the present importance of the organised international and regional, specialised and general institutional bodies for the negotiation, formulation and propagation of principles of international law. Despite this widespread reliance upon multilateral negotiation, however, an essential element of international economic relations remains the bilateral barter or trade-off which cannot easily be incorporated within multipartite institutional resolutions.55 Although soft law instruments have a high profile a large number of bilateral treaties and international contracts are still regularly concluded between States in the conduct of their economic affairs. Further, the multilateral treaty is still the preferred instrumentality where formal rights and obligations need to be specified. Soft law is well suited for the specification of interests and values but does not provide the required precision for such matters as the passing of title or of risk. There is a continuing process of treaty-making in the formation of international economic relations which runs parallel to and supplements the developments in soft law.56 This emphasises the deliberate choice made between hard law and soft law forms and reinforces the view that they are not intended to be equated. V

Claims as to Outcomes

A Soft Means of Enforcement Claims may also be made about the outcome of non-compliance with soft law and its use in the settlement of disputes. Much of the substantive content of soft law is subjective and discretionary57 and is inherently unsuited to adjudication. What it is pre-eminently suitable for is avoiding the need for adjudication by providing a framework for negotiation and other non-adjudicative forms of dispute resolution by creating expectations as to the frame of reference for the conduct of negotiations. This process is well illustrated by the Badger58 and Hertz59 incidents where the Organisation for Economic Cooperation and ­Development Guidelines on Restrictive Business Practices were used to 55 Riphagen, op. cit. supra n. 26, at p. 97. 56 An obvious example is the Vienna Convention for the International Sale of Goods 1980 (1980) 19 i.l.m. 671. 57 For the characteristics of soft law see Gruchalla-Wesierski, op. cit. supra n. 1. 58 See R. Blanpain, The Badger Case and the OECD Guidelines for Multinational Enterprises (1977). 59 Idem, pp. 157–161.

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reach an adjustment of the respective disputes, although the Guidelines were not directly applicable and could have been discounted in an adjudication. Soft law has an informative and educative role which is well suited to nonjudicial means of dispute settlement and to self-regulation between interested participants. Domestic alternative dispute resolution procedures are being increasingly promoted in a number of jurisdictions as the disadvantages of litigation for dispute resolution become ever more apparent.60 Again the international developments mirror domestic ones. Soft means of enforcement through the role of monitoring or follow-up agencies can assist in this role.61 Monitoring and watchdog bodies can be established domestically or internationally which can lobby governments and corporations as well as document violations. They can also further the development and reform process by suggesting amendments based upon their experience of examining the operation of the instruments.62 Since adjudication has never been the primary means of resolving international disputes, especially those involving economic matters, the unsuitability of soft law for adjudication should not be viewed as a major disadvantage. B In Domestic Courts The conclusion by States of international soft law instruments has outcomes in domestic as well as international arenas. The decision in a case may turn upon the bench’s opinion as to whether the State has entered into a genuine international (hard) commitment. The case of The Commonwealth v. ­Tasmania63 can be used as illustration. In that case the High Court of Australia decided that the external affairs power in Section 51(xxix) of the Commonwealth C ­ onstitution64 enables the Commonwealth Parliament to give effect to an international treaty 60

See S. Goldberg, E. Green and F. Sander, Di. Jpuu Ruoumon (1985) for an overview of different techniques being used in domestic and international dispute resolution processes. 61 See Morgenstern, op. cit. supra n. 30, at pp. 125–134 for a discussion of implementation of non-binding standards. 62 See Violating the Pesticide Code, A Survey of Indonesia, The Philippines and Thailand by the International Organisation of Consumers Unions, Regional Office for Asia and the Pacific and the Institute for Consumer Policy Research, Consumers Union (1987). This is a report into the implementation of the Pesticide Code in the three named countries 16 months after its adoption. It recommended changes to the Code, especially that it include prior informed consent. 63 (1983) 46 a.l.r. 625. 64 The Commonwealth of Australia, Constitution Act, s.51, itemises the legislative powers of the Commonwealth Parliament. It states: “The Parliament shall, subject to this Constitution, have powers to make laws for the peace, order and good government of the ­Commonwealth with respect to:- …(xxix) External affairs; …”

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to which Australia is a party. The treaty in question was the UNESCO Convention for the Protection of the World Cultural and National Heritage. One of the issues before the Court was whether the terms of the treaty were sufficiently precise to create any binding obligations on the parties that could be implemented by legislation, that is was the treaty hard or soft law. The High Court was divided on this point. One viewpoint was that of Gibbs CJ, who concluded that the articles of the Convention imposed no outright obligations upon Australia. He focused on words and phrases like “endeavour”, “in so far as is possible”, “each State will do all it can to this end”, and “as appropriate for each country” to illustrate the subjective and discretionary nature of the provisions. He concluded that no obligation could be more vaguely expressed and that it would be incapable of enforcement.65 Mason J (for the majority) came to the opposite conclusion.66 He felt the Convention imposed a series of obligations upon the parties that were capable of being implemented by legislation. States had undertaken a serious negotiation process and concluded a treaty which they must have intended to create binding commitments for those States which became parties to it. Article 5 of the Convention includes the obligation to take legal measures and gives a “strong and positive declaration of what each State will do in the discharge of the responsibility affirmed by the first sentence”. This Article cannot be read “as a mere statement of intention” for it is “expressed in the form of a command”.67 Taking these two judges as representative of the opposite views expressed by the Court it is noticeable that neither relied upon the fact the instrument was in hard treaty form. Instead, they examined the full context of the treaty including the negotiating process, the number of participants and their intentions, its purpose and language, as well as general principles of international law before determining whether there was a hard obligation. The effects of entering into a binding or non-binding instrument are not restricted to the international arena and full contextual analysis is needed to resolve claims as to the outcome of becoming party to such an instrument. C In the International Court While the soft law form may be regarded as unsuited to adjudication, it may be significant that the International Court of Justice has furthered the development of soft law principles. In cases where it has been concerned with the distribution of resources it has emphasised the principles of equity which 65 66 67

(1983) 46 a.l.r. 625, 658–661. This view was upheld in Richardson v. Formry Commission and Another (1988) a.l.r. 238. (1983) 46 a.l.r. 625, 698–700.

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­ nderpin the New International Economic Order. For example, a determinau tion that parties have a duty to negotiate was asserted to be a proper exercise of the judicial function.68 Where a case is commenced by special agreement with the parties requesting guidance on the allocation of resources such an approach may be unexceptional.69 However, where, as in the Fisheries Jurisdiction case70 the Court’s jurisdiction was contested and the question put to the Court was the legality or otherwise of specific fishing zones this does not seem to be so readily acceptable. Indeed in the North Sea Continental Shelf cases the provision in question (Article 6 of the Geneva Convention on the Continental Shelf) itself allowed for special circumstances so that the equidistance principle contained therein was not a hard rule. Although the Court asserted in the Icelandic Fisheries Jurisdiction case that it was applying lex lata and not anticipating the law before the “legislator has laid it down”71 it was aware of the UNCLOS III negotiations and would not have wished to give a judgment that was out of tune with the developments there. This reliance upon equity and equitable principles in cases of boundary disputes illustrates the effect of the application of soft principles. A stable boundary regime requires boundaries to be precise and fixed by law. The appeal to the soft notion of equity in the allocation of resources has allowed almost every boundary dispute to be argued upon its own facts within the framework of the New International Economic Order. This allows for flexibility and recognition of special circumstances but, as with the relativity of normative standards, the price might be uncertainty and tension. VI

Normative Consequences of these Claims

It has been argued that these various contradictory claims coupled with the diverse modalities for achieving the goals of the New International Economic Order have led to a blurring of normativity.72 It is no longer possible to assume that a proposition is either a legally binding norm or not, for that ignores the different status that might be claimed for a proposition according to its context or desired goal. While this position accords flexibility and a means for programmed and controlled development of standards, it plays havoc with juristic 68 69 70 71 72

Fisheries Jurisdiction case (Merits) (UK v. Iceland) (1974) I.C.J. Rep. 3, para. 75. As in the North Sea Continental Shelf cases, supra n. 54. Fisheries Jurisdiction case (UK v. lceland) (1974) I.C.J. Rep. 3. Idem, para. 53. Weil, “Towards Relative Normativity in International Law” (1983) a.j.i.l. 413.

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concepts and creates conceptual uncertainty. It means an abandonment of the concept of legal ordering as an autonomous means of international control distinct from other means of social control and allows an interplay between law and non-law. It has also been argued that these many variables mean that the international order cannot be viewed on a simple linear scale progressing from non-law at one extreme to jus cogens at the other, but rather as a continuum in which there is a constant complex interlocking between jus cogens and non-law or soft law and, moreover, “the logical requirements of law seem to get lost in the process”.73 However, there has always been a blurring of law and non-law in the international arena. The labels have never been precise. Although pacta sunt servanda,74 the use of the treaty form does not ensure that hard legal commitments have been undertaken by the parties; treaties can be entirely soft or can include specific soft provisions. Thus even hard treaty law has soft grey areas. Participants in the international arena need to be able to anticipate the action and reactions of other participants so as to make reasoned choices about their own behaviour. To do this effectively the instruments of soft law cannot be ignored. They provide for the shaping and sharing of values and so create expectations as to the restraints States will accept upon their own behaviour and will urge or impose upon others within their jurisdiction. They must be assumed to have been concluded in good faith to determine some restraint upon States’ economic activities. While soft law may not be directly used to found a cause of action it has both a legitimising and delegitimising direct effect: it is extremely difficult for even a State that rejected some instrument of soft law to argue that behaviour in conformity with it by those who accepted it is illegitimate. While there is no doctrine of desuetude in international law, the legitimacy of a previously existing norm of international law may be undermined by emerging principles of soft law. Even the expectation that instruments of soft law will be ignored is an important indicator of future behaviour. Those States that reject any particular resolution or code do not generally distance themselves from the negotiating process and do not subsequently ignore its existence. Instead they make it public that they feel no obligation to comply, allowing other States to react as they think appropriate. While there are no direct legal sanctions for noncompliance the incidental effects may include diplomatic and moral pressure. This is in practice a major enforcement mechanism for all international law and may well prove to be effective. 73 Riphagen, op. cit. supra n. 26, at p. 99. 74 Vienna Convention, Art. 26.

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The use of soft law instruments has presented a challenge to the normative structure, the traditional sources, the subjects and subject matter of international law. The international legal order is an evolving one that requires a wide range of modalities for change and development, especially into new subject areas. The participants within the deceotraIised international legal system do not have available for use the legislative processes or other sophisticated techniques for change that typically exist in domestic legal systems. They must draw upon the entire continuum of mechanisms ranging from the traditional international legal forms to the soft law instruments. Labelling these instruments as law or non-law disguises the reality that both play a major role in the development of international law and both are needed for the regulation of States’ activities and for the creation of expectations. Soft law instruments allow for the incorporation of conflicting standards and goals and provide States with the room to manoeuvre in the making of claims and counterclaims. While this process inevitably causes normative confusion and uncertainty in terms of the traditional sources of international law, it is probably the inevitable consequence of unresolved pressures for change in international law.

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Chapter 30

Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 1994 Comment by Richard Mackenzie-Gray Scott, Research Fellow, BIICL This monograph by Sir Arthur Watts QC encompasses both the theoretical and practical aspects of the legal position of senior State officials under international law, examining areas ranging from immunities to State responsibility. It was based on his 1994 Hague lectures in which he pioneered the study of this topic, recognising that the personal immunities of these officials are distinct from the immunities of the State. This was but one of Watts’ many specialisations, which made him one of the most respected international lawyers of his generation. The law and practice contained within this book covers a wide historical scope, which allows the reader to gain an in-depth understanding of how this aspect of international law has developed. The enduring importance of this book was recently acknowledged by Dame Rosalyn Higgins at a seminar on this subject held at BIICL as part of the Arthur Watts public international law seminar series.a A particularly intuitive aspect of the book is Chapter IV, ‘Statements by Heads of State, Heads of Governments and Foreign Ministers’, in which Watts discusses how legal rules might adapt to advances in communication and media practices. What is remarkable about this is that he was pre-emptively engaging with the (at the time) unforeseeable advances in technology that are shaping the way in which State officials make statements today. There are incredibly complicated subjects within the book that are put forward in a clear and logical manner; for example, the provision of evidence before international courts and tribunals by foreign ministers, which highlight his skill in simplifying complex points as opposed to obfuscating them. This allows an important area of international law to be understood by the widest possible readership. a ‘The Position of Heads of State and other Senior Officials in International Law’, Arthur Watts public international law seminar series sponsored by Volterra Fietta, held at BIICL on 23 January 2014. See Summary Report of proceedings, p. 2. Available at: https://www.biicl.org/ eventpapers/174/the-position-of-heads-of-state-and-senior-officials-in-international-law.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_031

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Watts’ grasp of international law and its operation shines through with great frequency throughout this book. The predominant undertone is that States are their own makers under international law. When evaluating the significance of any aspect of international law, it is essential to recognise that ‘much depends on the intentions of the States concerned. International law is not given to great reliance on formalities as a way of determining issues of substance.’b Additional comment by the Editors: Watts’ writings inspired Joanne Foakes, who worked with him at the Foreign and Commonwealth Office, to undertake her own research on this subject many years later. In 2012, she updated Watts’ writings on this subject in the Max Planck Encyclopedia of International Law,c and in 2014 published her own book, The Position of Heads of State and Senior Officials in International Law (OUP 2014), which builds on much of Watts’ monograph although the scope of coverage is not identical, and does not include the subject of the excerpt presented here. We selected Chapter IV for inclusion in this Anthology as it remains the most authoritative and comprehensive treatment of the subject of unilateral statements by senior officials; and we placed it within this chapter as unilateral statements illustrate an important source of international obligations in customary international law. b A Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, at p. 123. [page 764 in this Anthology]. c ‘Heads of State’ and ‘Heads of Governments and Other Senior Officials’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law Vol. iv (Oxford University Press 2012) at 758–764; and 754–758 respectively (as updated by Joanne Foakes).

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A. Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers (Martinus Nijhoff 1994). Excerpt: Chapter IV, ‘Statements by Heads of State, Heads of Governments and Foreign Ministers’, pp. 114–129. Reproduced with the kind permission of Brill Nijhoff.

Statements by Heads of States, Heads of Governments and Foreign Ministers* Arthur Watts Recent decades have seen a revolution in means of communication, with associated changes in media practices. This has included a great increase in ­media access to senior State representatives, and unceasing demands for them to comment on matters of international concern. It is appropriate to consider the legal significance of such comments — and in particular those made by foreign ministers, for it is usually (but by no means always) they who are ­involved — as well as that of some other less formal statements and declarations by Heads of States and the like. Formal declarations made in an international context should be noted simply as a starting point, and then disregarded as they fall outside the main scope of these present observations. So, there is usually little problem about the legal standing of a letter signed by a foreign minister and addressed to the foreign minister of another State, who in turn replies in the same sense. Such an “­exchange of letters” is an established form by which international relations are conducted, and in the right circumstances there will be no doubt about their status as international agreements. Similarly, it is quite usual for a treaty to be concluded where part of the overall package consists of a unilateral declaration made by, say, the foreign minister of one party and appended to the ­treaty.1 While in form a unilateral statement, in reality its terms will have been as much a subject of negotiation and agreement as the terms of the treaty itself. For present purposes what sets such practices apart is that in making them the foreign minister is making a considered, deliberate and relatively formal contribution to well-established international processes, the legal consequences of which are usually clear. * [Editors’ note: Footnote numbering has been amended for the purposes of this Anthology]. 1 See e.g. case concerning the Arbitral Award Made by the King of Spain on 23 December 1906, ICJ Reports 1960, pp. 192, 203–204, 214.

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Minutes of Meetings: Oral Statements

One does not, however, have to move far from such familiar territory before entering areas of much greater uncertainty. Thus foreign ministers spend much of their time in meetings, either with other foreign ministers or with other States’ ambassadors. Minutes are written recording what was discussed; and they might be signed by the two foreign ministers concerned to show that they both understood what transpired in the same way, or — more usually — they might be prepared by just one of them as a record for his ministry’s files. All this is part of the normal process of bureaucracy. There is, however, a question as to what, if any, value such minutes have in international law. The problem is both practical and topical. In the Qatar v. Bahrain case2 the International Court of Justice had occasion to consider the first of the two situations just mentioned, namely minutes of a meeting which had been signed by the foreign ministers who had participated in it. Qatar argued that the minutes constituted an international agreement. Bahrain maintained that they were no more than a simple record of negotiations; Bahrain further argued that as the foreign minister was not constitutionally empowered to conclude such an agreement taking effect immediately,3 he could only have been subscribing to a statement recording a political understanding and not signing a legally binding agreement. Having paid particular attention to the terms of these minutes, and the circumstances in which they were drawn up, the Court — apparently ignoring the constitutional argument, and dismissing the relevance of the foreign minister’s intentions — concluded that they enumerate the commitments to which the Parties have consented … [and] thus create rights and obligations in international law for the Parties. They constitute an international agreement.4 Where foreign ministers together sign an agreed record of their discussions, it is perhaps not too surprising that they be held to be committed by their signed minutes. A minister’s unilateral record of a meeting, prepared for internal foreign ministry purposes, would seem to be very different. Yet just over 60 years 2 Judgment of 1 July 1994. 3 As to this argument see above, Chapter ii, Section ii (ii). [Editors’ note: not included in this Anthology]. 4 Judgment of 1 July 1994, para. 25.

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ago it was established, in the Legal Status of Eastern Greenland case,5 that such a unilateral record might be legally binding in international law. Norway had proclaimed part of Greenland to be under Norwegian sovereignty. Denmark, however, regarded Greenland as under Danish sovereignty. At an earlier stage the Danish Minister accredited to Norway had had discussions about the matter with the Norwegian foreign minister, Mr. Ihlen. During the discussions the Danish Minister had asked about the prospects of the ­Norwegian Government not making any difficulties in the settlement of the  question of Denmark’s extension of its political and economic interests to the whole of Greenland. Mr. Ihlen had replied that the question would be examined, and eight days later recorded in an internal minute for the ministry that he had that day informed the Danish Minister “that the Norwegian Government would not make any difficulties in the settlement of this question”.6 The Court found that, as a result of the undertaking involved in Mr. Ihlen’s oral statement as recorded in the minutes, Norway was under an obligation to refrain from contesting Denmark’s sovereignty over Greenland as a whole. It said that it was beyond all dispute that a reply of this nature given by the Minister of Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the ­Minister belongs.7 The Court’s statement clearly contains a number of qualifying conditions which had been met by the foreign minister’s statement in this particular case — such as that its terms were appropriate for giving rise to a commitment of the kind in question, that it was made on behalf of his government, that it was made in response to a request from another State’s diplomatic representative, and that it was on a subject which fell within the minister’s province.8 5 PCIJ, Ser. A/B, No. 53 (1933). On this aspect of the case see Preuss. “The Dispute between Denmark and Norway over the Sovereignty of East Greenland”, AJIL, 26 (1932), pp. 469, 477–478; Garner, “The International Binding Force of Oral Declarations”, AJIL, 27 (1933), pp. 493–497; McNair, op. cit. footnote 23 supra, pp. 9–10, 73–75. [Editors’ note: not included in this Anthology]. 6 PCIJ, Ser. A/B, No. 53, at p. 70. 7 Ibid., at p. 71. 8 In the Minquiers and Ecrehos case (ICJ Reports 1953, p. 47) the Court attached weight as an admission of British sovereignty over disputed islands to a letter written by the French M ­ inister

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It is not necessarily the case, however, that those conditions must always be met, and that others might not be appropriate in other cases. For example, in the Eastern Greenland case the foreign minister made his oral statement in response to a request from a diplomatic representative. But there seems no compelling reason to treat the fact that it was a response to a request as decisive, or that it can only be such statements by a foreign minister which can commit the State; a foreign minister who himself volunteers a statement in the course of discussion with an ambassador may just as much commit his State by it, as may a statement volunteered by, or made as a response by, a head of government or even a Head of State, whether in the course of discussions with an ambassador or with their counterparts from another State. In this respect the critical element would seem to be that the statement be made in the course of official discussions between a senior State representative and another State’s authorized representative. The need for such elements to be present before an oral statement made in discussions may be binding on the speaker’s State serves to exclude from the scope of the Court’s finding many informal observations which may be made by foreign ministers in talking to members of the diplomatic corps. Even so, it still covers a potentially wide range of statements by foreign ministers as well as, it would seem, by Heads of States or heads of governments; but in their cases, there is the added consideration that since both of them may be regarded as having competence across the whole range of State and governmental activity, the restriction implicit in the need for their statements to be on matters falling with their provinces is of limited effect. The essential safeguard for foreign ministers and the like lies in the Court’s emphasis on the need to have careful regard to what was said and the circumstances surrounding its saying. This is apparent from the Eastern Greenland case, not only in the reference to the “nature” of the statement made and to the other elements to which the Court attached importance, but also in an aspect of the judgment which is often overlooked. Although the Court regarded the foreign minister’s statement as involving an obligation to refrain from contesting Danish sovereignty, it expressly rejected the argument that it constituted a recognition of that sovereignty. It did so by reference to a “careful examination of the words used and of the circumstances in which they were used, as well as the subsequent developments”.9 The Court’s approach to these matters was

of Marine (p. 71): as Judge Basdevant pointed out in his separate opinion, questions of territorial sovereignty were not within the province of a Minister of Marine (pp. 80–81). 9 PCIJ, Ser. A/B, No. 53, at p. 69.

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underlined in the Aegean Sea Continental Shelf case,10 and in the very recent Qatar v. Bahrain case.11 If the principle is thus established that unilateral oral statements made in certain circumstances can commit the State, there is a further, practical, question to consider: how does one know what the foreign minister said? In the Eastern Greenland case the Permanent Court relied on records from the ­Norwegian foreign ministry’s archives, which had been tendered in evidence. It is, indeed, in essence a question of evidence. In that context, one must recall the power of many international tribunals to call upon the parties to produce relevant evidence (which may include records of meetings) and to draw appropriate conclusions from any failure to comply. If other forms of evidence are available, they too may be used, and nowadays the possibility of electronic recording of discussions cannot be excluded. II

Interviews, and Statements to the Press

In dealings with the media, the use of tape recorders is already commonplace. Journalists and television reporters, as a standard practice when putting questions to foreign ministers and the like, place recording devices in front of those they are interviewing — and such interviews may vary from the very formal, to the very informal putting of questions to someone on the steps of a meeting place or even a private residence. The question arises whether answers given on such occasions will commit the State concerned. Usually they will not, if only for the reason that on such occasions the answers given are so vague and insubstantial that they could not possibly be taken to commit the speaker to anything. But it may sometimes be that the answer is more specific and substantial: a foreign minister may, for example, come out of a meeting with his counterpart from another State and say that they had discussed a certain matter of bilateral concern and that he had agreed that the issue did not involve any breach of relevant treaty obligations; or a head of government may at a press conference give explanations about certain international actions recently taken by his State. Do such statements commit the State? Clearly, not all of the elements to which the Permanent Court of International Justice attached importance in the Eastern Greenland case are present. Yet senior State representatives represent and speak for their States. Provided that they are speaking “on the record”, 10 11

See footnote 285 infra. [Editors’ note: page 764, note 31 of this Anthology]. Judgment of 1 July 1994, paras. 23–30.

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and in a context which can reasonably be taken as showing an intention that their words be taken seriously, there is much to be said for giving their statements some legal weight as evidence of the position taken by their States on the matter in question. That, at least, has been the view taken by the International Court of Justice. In the Military and Paramilitary Activities in and against Nicaragua case,12 the Court considered at some length the weight to be attached to evidence from senior State representatives.13 It noted that the material before the Court included statements made on various occasions; some, made “during press conferences or interviews, were reported by the local or international press”.14 The Court took the view that statements of this kind, emanating from high-ranking official political figures, sometimes indeed of the highest rank, are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. They may then be construed as a form of admission.15 The Court emphasized the caution with which, even so, it had to treat such statements, and the surrounding circumstances which had to be taken into account. All that said, the Court then included in its review of evidence on the basis of which it had found certain facts established remarks by President Reagan during a televised interview,16 and subsequently treated one of the President’s answers to a question put to him at a press conference as an admission of certain facts by the United States.17 Perhaps even more striking is the fact that statements made at a press conference may serve not just as an admission, but as the basis for an obligation incumbent upon the State. The Nuclear Tests cases18 are well known as 12 13 14 15 16 17 18

ICJ Reports 1986, p. 14. Ibid., pp. 40–44. Ibid., pp. 40–44. Ibid., pp. 40–44. Ibid., p. 47. Ibid., p. 49. ICJ Reports 1974, pp. 253, 457. On this aspect of the Court’s judgment see Franck, “Word Made Law: The Decision in the Nuclear Test Cases”, AJIL, 69 (1975), pp. 612–620; Carbone, “Promise in International Law: A Confirmation of Its Binding Force”, Italian Yearbook of International Law, 1 (1975), pp. 166–172; Rubin, “The International Legal Effect of ­Unilateral Declarations”, AJIL, 71 (1977), pp. 1–30; Thirlway, “The Law and Procedure of the ­International Court of Justice 1960–1989”, British Year Book of International Law, 60 (1989), pp. 1, 8–20.

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e­ stablishing that unilateral statements may give rise to international obligations: what, however, is often overlooked is that it was a statement at a press conference by the President of France which the International Court of Justice regarded as “the most essential”19 when concluding that France had unilaterally undertaken certain obligations.20 Indeed, States often prefer to conduct their relations with the media at arms length. Rather than (or sometimes in addition to) holding a press conference or giving an interview, with all the risks attendant upon giving extempore responses to such questions as might be put, foreign ministers (and others) often prefer to issue to the press a statement or communiqué, or to leave dealings with the media to their specialist press advisers. One can conveniently distinguish between unilateral statements issued by or on behalf of a foreign minister (which may conveniently be referred to as a press statement), statements issued by two or more foreign ministers jointly (conveniently referred to as press communiqués), and statements made orally by a press adviser on behalf of a foreign minister. Press statements issued on behalf of a foreign minister will usually be in carefully considered language, and intended to put forward his official view on the matter being dealt with in it. Depending, of course, on the actual content of the statement, there seems no reason in principle why the statement should not be regarded as committing the State to whatever it says in it. That view was at the heart of the judgment of the International Court of Justice in the Nuclear Tests cases.21 In those cases the Court considered that the real object of Australia’s and New Zealand’s application to the Court was to obtain a termination of French atmospheric nuclear tests in the Pacific. The Court concluded that certain statements made by France had resulted in France undertaking an obligation to hold no further nuclear tests in the atmosphere in the Pacific, and that therefore the objective sought by the applicants had been achieved. The principal statements by France included a statement (“communiqué”) issued by

19 20

21

ICJ Reports 1974, p. 269. It is also noteworthy that two of the other French statements were made by the Minister of Defence at a press conference and during an interview on French television: ibid., at p. 266. In contrast, the Court has denied binding effect to a statement made by a Head of State in an interview with a press agency because the circumstances did not show an intention to be bound: case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986, at pp. 571–574. Footnote 272 supra. [Editors’ note: page 760, note 18 of this Anthology].

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the President’s Office, and statements by the President at a press conference and by the foreign minister at the United Nations.22 The Court said that [t]here can be no doubt, in view of [the President’s] functions, that his public communications or statements, oral or written, as Head of State, are in international relations acts of the French State. His statements, and those of members of the French Government acting under his authority … constitute a whole. Thus, in whatever form these statements were expressed, they must be held to constitute an engagement of the State, having regard to their intention and to the circumstances in which they were made.23 As to what conditions have to be satisfied if such unilateral statements are to be binding for the State making them, the Court attached importance to it being the intention of the State “that it should become bound according to its terms”, and given publicly; whether the requisite intention exists is to be ascertained by interpretation of the statement.24 The Court noted, however, that when “States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for”.25 Such a cautious approach was also evident in the Court’s judgment in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali).26 In that case the Head of State of Mali had made a statement in a press interview to which Burkina Faso sought to attach a binding quality. The Court did not uphold that contention. It emphasized that everything depended upon the intentions of the State making a unilateral declaration, and in that context attached weight to the consideration that in the circumstances there was nothing to have prevented the parties from concluding an agreement had they wanted to enter into a binding commitment, and that, not having done so, the unilateral declaration was not to be regarded as having been made with an intention to be bound by it.27 While unilateral statements of the kind in issue in that case are relevant as an indication of the intentions and beliefs of the State in whose name or on whose behalf they are made, press communiqués have the added element that they represent the views of two or more States. Like unilateral press 22 23 24 25 26 27

ICJ Reports 1974, pp. 265–266. Ibid., p. 269. Ibid., p. 267. Ibid., p. 267. ICJ Reports 1986, p. 554. ICJ Reports 1986, pp. 573–574.

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statements, communiqués will usually be in terms which have been carefully worked out between the representatives of the States concerned, and will set out as much, or as little, as they choose to make public about the course of the discussions which have taken place. Since such communiqués represent the considered views of both or all the participants, there seems little reason to deny to them the effect, at least, of a series of unilateral statements representing the separate but identical views of each of the participants individually. But press communiqués have the additional element of being, however informally and non-technically, an agreed expression of the participants’ views. There is thus a question whether this can give them the character of agreements, and binding as such on the participating States. Of course, like press statements, press communiqués often have little substantive content, merely, perhaps, recording that friendly discussions took place, and further meetings will take place later. Such texts are of little legal value (although it would not be true to say that they have none at all: they would, for example, at least be evidence that the meeting to which they referred did take place, and might preclude any of the participants from denying that fact). It is, however, not at all unusual for press communiqués to be of considerable substance. It may be recalled, for example, that the so-called “Luxembourg compromise” of 196628 about voting in the Council of the EEC was in form only a communiqué issued after the meeting of foreign ministers in Luxembourg at which the compromise was arrived at. Again, the so-called “­Gleneagles agreement” of 1977,29 in which Commonwealth Heads of States and governments meeting at Gleneagles in Scotland recorded their intentions as regards the consequences in the field of sport of South Africa’s then policy of apartheid, was not strictly an “agreement” but only a communiqué issued after that meeting. That common misnomer for the “Gleneagles agreement” indicates the scope of the possible problems which can arise over press communiqués. In a political sense they may indeed record an agreement of sorts, and so be appropriately referred to, politically, as an agreement. However, in strictly legal terms, their status as agreements is far from clear (even assuming always that their content and language is appropriate to an instrument intended to give rise to legal rights and obligations in international law). They will, for example,

28 29

Bulletin of the EEC, March 1966, pp. 8–10. Commonwealth Year Book (1978), pp. 53–54; and see Elkind and Shaw, British Year Book of International Law, 55 (1984), pp. 191–206.

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not be in the customary form for international agreements; they will not be signed by the ministers concerned; and they are most unlikely to have been submitted to whatever might be the normal constitutional processes of the States concerned in relation to international agreements,30 or submitted to the Secretary-General of the United Nations for registration under Article 102 of the Charter (and if they were submitted, it is not clear that he would accept them for registration). Yet this is an uncertain area of the law, where much depends on the intentions of the States concerned. International law is not given to great reliance on formalities as a way of determining issues of substance. Even at the outset the States concerned might take the position that they intend the communiqué to represent an agreement between them; they might, for example, have good domestic political reasons for proceeding in this somewhat unorthodox way. Even if that was not their original intention, their subsequent conduct might establish that they regard the communiqué as constituting an agreement, or at least preclude them from denying it that status. It would seem that some such views have already commended themselves to the International Court of Justice. In the Aegean Sea Continental Shelf case31 the Court was presented with an argument by Greece that a press communiqué issued after a meeting between the Prime Ministers of Greece and Turkey constituted an agreement between those two States to submit their dispute to the Court. The Court did not find it necessary to decide the point, but did observe that it knows of no rule of international law which might preclude a joint communiqué from constituting an international agreement to submit a dispute to arbitration or judicial settlement; whether it did so would require the Court to have regard “above all to its actual terms and to the particular circumstances in which it was drawn up”32 which include the historical context leading up to the communiqué.33 Although the Court concluded that in all the circumstances the press communiqué did not constitute a binding agreement conferring jurisdiction on the Court, it

30 31 32 33

This point was made by Turkey in the Aegean Sea Continental Shelf case: see footnote 285 infra. [Editors’ note: page 764, note 31 of this Anthology]. ICJ Reports 1978, p. 3. ICJ Reports 1978, p. 39. Ibid., pp. 41–44.

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e­ xpressly left open the possibility that it might have other implications for the position of the parties.34 Allowing that the circumstances of particular cases might justify the conclusion that the States concerned were bound by a press communiqué as an agreement, there does of course arise the question, in relation to proceedings on it before the International Court of Justice, whether the terms of Article 102 (2) of the Charter allow it to be invoked before the Court, given (as will perhaps usually be the case) that it will not have been registered under that Article. That, of course, may not in practice prove decisive: as the Court observed in the Qatar v. Bahrain case, non-registration or late registration … does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties.35 If the sanction of non-invocability is to be avoided the Court would appear to look benignly on late registration once proceedings seem imminent, and perhaps even after they have begun. There is, of course, a relationship between the possibility that a press communiqué may constitute an agreement and the extent to which it is accepted in international law that agreements may be concluded informally, and even orally. That these possibilities exist is generally admitted. Where a foreign minister, rather than dealing directly with the media, either orally or through statements and communiqués issued to the press, leaves such dealings to be handled by his specialist press advisers, the situation has become somewhat removed from the position of the foreign minister himself. Yet it may not be totally devoid of implications for his position. Let us assume that a meeting of foreign ministers is held to discuss a dispute, that afterwards there is no press statement or communiqué, and that it is left to a minister’s press adviser to announce to the press that in the light of the discussions the minister had decided not to pursue further action against the other State. The possibility cannot be excluded that such a statement would be held to be binding upon the minister — that is, upon his State. Something very like that has indeed happened recently, in a judgment of the European Court of Justice.36 The EC Treaty allows proceedings to be taken in respect of “decisions” taken by the Commission. The press spokesman for 34 35 36

Ibid., p. 44. Judgment of 1 July 1994, para. 29. Air France v. Commission of the European Communities, Case T-3/93, [1994] ecr ii-121.

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the Commission announced, after a meeting of the Commission, that it had decided to take no further action upon a certain matter; no other public communication of that decision was at that time made by the Commission. In proceedings to have that “decision” annulled, the Court rejected the argument that there was indeed no “decision”, and it regarded the spokesman’s announcement as producing legal effects and as a decision against which proceedings could be mounted in the manner provided by the Treaty. In somewhat similar vein, the International Court of Justice in the Nuclear Tests cases treated a statement (“communiqué”) issued by the Office of the President of France as one of “the essential statements” by the President and giving rise to an international obligation for France.37 III

Official Speeches

It is, of course, not just in relation to the media that senior State representatives make statements which may commit their States. In some ways, any situation in which, acting officially in the exercise of their office, they utter oral or written statements may be one in which there is a risk that the State concerned will be committed by what has been said. An obvious example is a speech by a Head of State or foreign minister or other senior State representative in the general debate which takes place at the beginning of each annual session of the General Assembly of the United Nations. Such a public and official occasion for the making of a speech can scarcely fail to commit his State to whatever is said in it. It is an international occasion on which matters of international concern are discussed, and international repercussions for what is said cannot be avoided. In the Nuclear Tests cases one of the statements from which France’s obligation to cease atmospheric nuclear tests was derived was the foreign minister’s speech to the General Assembly in 1974.38 There is, it must also be acknowledged, another aspect of the matter. This is that whatever is said in such circumstances is clearly an element of State practice, contributing as may be appropriate to the development of customary international law. While statements made on the international stage can thus clearly be ­regarded as committing a State, there is perhaps more room to question the significance for international law of statements made in a purely domestic 37 38

ICJ Reports 1974, at pp. 265, 269. ICJ Reports 1974, p. 266.

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f­ orum, for example in statements made to a national parliament or in testimony before a parliamentary committee. Such statements are clearly not made on an international occasion; those making the statements, as well as those to whom the statements are made, have domestic considerations in mind. Yet their relevance for the State’s position in international law cannot be excluded. They will, for example, be used as evidence of that State’s practice in matters of international law, as the various national collections of State practice amply demonstrate. Furthermore, nowadays no foreign minister or head of government, or Head of State, making a statement to a national parliamentary organ can be unaware that what is said there will, if it touches on important international issues, be known virtually instantly across the world. The difficulty of tailoring statements to match the susceptibilities of two different national and international audiences is one with which leading politicians are very familiar. One needs, however, to exercise some caution. The essentially domestic context of national parliamentary occasions cannot be wholly discounted. ­Everything must depend on the circumstances of the particular case. To hold a State bound by what a political leader may say in the heat of party debate may go further than is justifiable; so may holding a State to what is said in an unprepared answer to a sudden question. On the other hand, where a foreign minister, say, is making a set-piece speech to his parliament on an important matter of foreign affairs, the presumption that what he is saying represents his considered and official view of the matter is very strong indeed. He may, thus, be giving the government’s account of some international action on which it has or is about to embark, or he may be presenting to parliament, and explaining, a treaty which has just been concluded. In such circumstances, it would seem wholly appropriate for the State to be committed internationally to what the foreign minister says. That commitment can take various forms. The minister’s statement might itself be of a kind to amount to a unilateral statement binding on the State, in circumstances such as those already considered; it may show acquiescence on the part of the State in some situation which would otherwise be of doubtful legality; it may give rise to a preclusion, preventing that State from in future making assertions inconsistent with the statement;39 it may simply be treated as evidence of what the State believed the position to be at the time — say, what a treaty meant, or what the legal basis for its actions was.

39

Case concerning the Arbitral Award Made by the King of Spain on 23 December 1906, ICJ Reports 1960, pp. 192, 211, 212–213.

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The point arose in the Beagle Channel arbitration between Argentina and Chile, the award in which was delivered in 1977.40 One of the issues before the arbitration tribunal was the legal effect of a treaty concluded between Argentina and Chile in 1881. Both the Argentine and Chilean foreign ministers, who had been the chief negotiators for their respective States (the Chilean foreign minister during its later stages only) made speeches to their respective Chambers of Deputies following the conclusion of the treaty, setting out their views of its achievements. The tribunal paid careful attention to what the two foreign ministers had said,41 as confirmation or corroboration of certain conclusions which the tribunal had reached on other grounds. IV

Evidence by Foreign Ministers

So far this chapter has, in effect, been concerned with the inadvertent legal consequences of various statements that might be made by or on behalf of foreign ministers and the like. There is another aspect of the matter which at least needs to be touched on, which is the intentional making by foreign ministers (and in this context it will usually be they) of statements for the purpose of providing evidence before international tribunals. The practice is well known in many systems of municipal law, and may be exemplified by the British practice of issuing “Foreign Office certificates” relating to certain kinds of matters:42 such practices depend on the different States’ municipal laws. Internationally, however, the situation is less clear. The questions may be asked whether, in international proceedings, a foreign minister may properly give evidence, for example by affidavit, on a matter within his personal ­knowledge — say, the circumstances of the conclusion of a treaty in which he was personally involved; whether he may give such evidence not on the basis of personal involvement in the circumstances in issue, but on the basis that as foreign minister he is the best available witness as to matters affecting his government’s international relations; and whether, if such evidence from the foreign minister is put forward by his State, it is to be given any special weight as coming from the holder of the office of foreign minister. The issue is not theoretical, and arose very recently in the Qatar v. Bahrain case.43 In that case Bahrain submitted an affidavit by its foreign minister as 40 ilr, 52, p. 93. 41 Ibid., pp. 186–191, 198–199. 42 See Oppenheim, op. cit. footnote 13 supra, § 460. [Editors’ note: not included in this Anthology]. 43 Judgment of 1 July 1994. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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e­ vidence relating to the possible status of a document as an international agreement: he denied that it could have had that status, since in the particular circumstances he was not constitutionally empowered to conclude a document having that status, and as he was aware of that situation he had been prepared to subscribe to a statement recording a political understanding, but not to sign a legally binding agreement.44 The Court somewhat tersely brushed aside this evidence, and held that the document in question did constitute an international agreement.45 It is, perhaps, significant that in this instance the foreign minister was giving evidence in support of his State’s position in the proceedings before the Court. In the Military and Paramilitary Activities in and against Nicaragua case the Court had also been presented with evidence submitted by a declaration by the Nicaraguan foreign minister and by an affidavit submitted by the United States Secretary of State. The Court emphasized that it could certainly retain such parts of the evidence of members of governments as may be contrary to the interests or contentions of their State, or as relate to matters not disputed, whereas for the rest it considered that (at least in the special circumstances of that case), such evidence had to be treated with great reserve.46 So too, to go back to the statement by the Norwegian foreign minister in the Legal Status of Eastern Greenland case,47 that statement was one which was against, rather than in support of, Norway’s interests. 44 45 46 47

See also Chapter ii, Section ii (ii). [Editors’ note: not included in this Anthology]. Judgment of 1 July 1994, para. 27. ICJ Reports 1986, pp. 3, 43. But even statements against interest, issued by foreign ministries, are not necessarily of decisive importance: Asylum case, ICJ Reports 1950, at p. 278. See Section i of this chapter.

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Chapter 31

Maurice Mendelson, The Formation of Customary International Law, 1998 Comment by Dr Eirik Bjorge, Junior Research Fellow, Jesus College, University of Oxford From an early point in his career as an international lawyer, Maurice Mendelson QC (born 1943) combined academic work with practice at the Bar. The early immersion into legal practice meant that he acquired, at a formative stage of his career, expertise within the then fledgling fields of international human rights and international investment law. Indeed, he acted as counsel in both the East African Asians’ casea and in Holiday Inns v Morocco,b each case in its own right prefiguring important developments of modern public international law. Though Mendelson’s scholarly contributions are many, his most important one probably remains his work on international customary law. As will be seen from the following extract, thematically this work sits comfortably within the mainstream of what could be called general international law. It deals with the formation of customary international law and forcefully and clearly makes the argument that, in most cases, widespread and consistent State practice alone suffices for constructing customary international law. Another related strand of Mendelson’s writings deserves to be highlighted here as well, which is his development of the concept of legitimate expectations. In putting a premium on the concept of the legitimate expectation, both in terms of what constitutes customary international law, but also more generally, Mendelson showed both academic and practical foresight. Subsequent to Mendelson’s Hague lectures, the concept of legitimate expectations has taken on an extremely important meaning within public international law, not least in the fields of investment law and human rights law (both being fields, incidentally, in which Mendelson continues to practise). More and more, international courts and tribunals deciding traditional public international law cases emphasise the importance of the protection of “the

a East African Asians v The United Kingdom (1981) 3 ehrr 76. b Holiday Inns SA and others v Morocco ICSID Case No arb/72/1.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_032

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legitimate expectations of a State that acts in reliance upon the representations of another”,c thus ensuring the rule of law guarantee that a State cannot blow hot and cold. This is not the place to disentangle from the propter hoc the post hoc of that development; it seems, however, to be a development of which Mendelson has every reason to be glad. The concept of legitimate expectations is taking on the role he argued it always already performed, ie that of “the grundnorm or underlying explanation of all of the ‘sources’ of international law”.d c See, e.g. Chagos Marine Protected Area (Mauritius v United Kingdom) pca, Award of 18 March 2015, 435; Philippines v China, pca, Award on Jurisdiction and Admissibility of 29 October 2015, 250. d M H Mendelson, The Formation of Customary International Law, at 184.

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M.H. Mendelson, The Formation of Customary International Law (1998) 272 Hague Recueil des Cours 155, pp. 245–293. Excerpt: Chapter iii, ‘The Subjective Element in Customary International Law’, pp. 245–267. Reproduced with the kind permission of Brill Nijhoff.

The Subjective Element in Customary International Law242 Maurice Mendelson It is the nature of a hypothesis, when once a man has conceived it, that it accumulates everything to itself, as proper nourishment; and from the moment of your first begetting it, it generally grows the stronger by everything you see, hear, read or understand. This is very useful. Lawrence Sterne, Tristram Shandy (1759–1767)

∵

1 Introduction In the previous chapter we looked at the objective element in customary international law — what we may loosely call State practice, though we saw that it includes the practice of certain other international actors, notably international organizations. We might be excused for thinking that a consistent and sufficiently dense and representative practice is all that is needed for there to be a customary rule. After all, that is what customary law is all about — the law emerges from constant and uniform practice. However, for a number of reasons, this has not satisfied all of the commentators.243 I shall go into these reasons in more detail later, but it will be useful briefly to sketch out one or two of the main (alleged) justifications for the subjective element first. 242 [Editors’ note: for this excerpt the original footnote numbers are retained]. This chapter is largely based on my article “The Subjective Element in Customary International Law”, 66 British Year Book of International Law (1995), p. 177, but has been revised in the light of further reflection and of the comments of, amongst others, members of the International Law Association International Committee on the Formation of Customary (General) International Law, which I chair. The views expressed in that article were largely adopted by the Committee: see ILA, Report of the 67th Conference (Helsinki, 1996), p. 622; for discussion, see ibid., p. 647. 243 For a useful historical survey of nineteenth and early twentieth century literature, see G. Gianni, La coutume en droit international (1931). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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For one thing, it is said that to focus on the practice does not enable us to differentiate habits giving rise to customary law from mere usages, which might be equally regular in their character, but do not give rise to legal obligations. For instance, the legal rules regarding nationality of claims have emerged from State practice; but whilst it is also common practice for Governments to send letters of condolence to other Governments when Heads of State die, no-one would claim that this is a matter of legal obligation. It is thought that the introduction of what we shall call a subjective element helps here: in the case of condolence letters no-one believes that there is a legal obligation to act in that way. This element of belief, the so-called opinio juris sive necessitatis, is something which I shall examine in some detail later. I shall suggest that, although recourse to the subjective element helps us understand why, in particular circumstances, a constant and uniform practice does not give rise to a customary rule, these are somewhat exceptional cases and, in the run-of-the-mill case, the subjective element is of limited value. Secondly, commentators want to explain why regularities of behaviour give rise to law, and for them the subjective element provides the necessary ingredient to enable this transformation to take place. In his famous criticism of natural law theory, Hume pointed out that it is not possible, logically, to derive an “ought” (a legal rule) from an “is” (an observable regularity). The same might be said here: the fact that States regularly behave in a certain way cannot tell us why they (or others) should be legally bound to continue to do so. So the commentators offer various explanations, which generally fall into one or other of the following types. Some — often called the “voluntarists” find the explanation in consent: just as treaties are the formal, written expression of States’ will, so custom is the tacit, informal manifestation of it. Others find the basis of custom’s binding force in States’ belief in the legal necessity or permissibility of the practice in question — which I shall call for short the “belief” or “opinio juris” approach.244 244 B. Stern neatly describes this distinction as one between opinio juris assentiment and opinio juris sentiment: “La coutume au cœur du droit international: quelques réflexions”, in Mélanges offerts à Paul Reuter: le droit international, unité et diversité (1981), p. 479. The dualism is in a sense a manifestation of two opposing currents in international law; that of individualism/ voluntarism and that of collectivism. Cf. M. Koskenniemi, From Apology to Utopia (1989); D. Kennedy, International Legal Structures (1987). The controversy between supporters of the two approaches to the subjective element goes back at least 200 years, and has continued unabated. In 1950, members of the International Law Commission were very much in disagreement about the issue: Yearbook of the International Law Commission, 1950-ii, pp. 25–26 and 367–374; ibid., Vol. i, pp. 4–6. A recent issue of the International and Comparative Law Quarterly contains two articles adopting diametrically opposed views on this subject: O. Elias, “The Nature of the Subjective Element Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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In a sense, I submit, this quest for a reason for the binding force of custom is unnecessary. If there is a rule saying that legal obligations arise from (certain types of) State practice, for practical purposes, that may well be all that we need to know.245 To take an analogy: if you know that there is a rule saying that treaties are binding, what you need to find out is whether the document you have before you is indeed a treaty, and whether any of the exclusionary rules which determine when treaties are not binding apply to the facts of your case. You do not need to speculate on the reason why the rule that treaties are binding is itself a binding legal rule: that belongs more to the more recondite realms of legal theory. The analogy is, I think, a fair one: practically everyone agrees that (persistent objectors and other special cases aside) States are bound by rules emerging from constant and uniform practice of sufficient generality; they only d­ isagree as to why this should be so, and this is more a matter of legal theory. To put it differently, I suggested in Chapter I that how we are to know what are the rules relating to the formation of customary (or any other sort of) international law is by observing the behaviour of States — by investigating, in other words, whether States, as the addressees of legal norms,246 operate on the basis that, whilst process or phenomenon x gives rise to legal obligations, y does not.247 So then, the necessity of a subjective element to accompany practice rests on two (interrelated) perceived needs: for a justification of the emergence of legal rules from behaviour, and for a criterion to differentiate behaviour which gives rise to legal norms from that which does not. Notwithstanding the doubts I have already adumbrated, and which I shall develop below, the attention that this issue has attracted is such that it really cannot be ignored. As ­Thirlway put it: The precise definition of … the psychological element in the formation of custom, the philosopher’s stone which transmutes the inert mass of in Customary International Law”, 44 International and Comparative Law Quarterly (1995), p. 501; and I. Lobo de Souza, “The Role of State Consent in the Customary Process”, ibid., p. 521. 245 Cf. T. Gihl, “The Legal Character and Sources of International Law”, 1 Scandinavian Studies in Law (1957), p. 51 at p. 67. 246 And, to a lesser extent, courts, writers and other persons engaged in the practice of international law. 247 Pace G. Fitzmaurice, “Some Problems Regarding the Formal Sources of Law”, Symbolae Verzijl (1958), p. 153, it does not matter for practical purposes whether this leads to the question why State practice should determine what are the sources of international law, and to other such questions in an infinite regress. The answer, ultimately, is bound to be political, moral, or otherwise meta-legal (see supra, Chap. i, Sec. 5) [Editors’ note: not included in this Anthology]; but for present purposes such speculations are unnecessary. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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accumulated usage into the gold of binding legal rules, has probably caused more academic controversy than all the actual contested claims made by States on the basis of alleged custom, put together.248 One is tempted to add that the quest for this particular “philosopher’s stone” has generated far more heat than either light or gold. Much of the debate appears, with respect, to be something of a “dialogue of the deaf”. Too often, those who appear to disagree with each other do so because they do not appreciate that they are in fact addressing different questions, or different aspects of the same phenomenon. There is also a widespread failure to ask sufficiently detailed or limited questions, with the consequence of over-generalization. Some examples may be useful, although it will only be later that they will be elaborated upon. (1) When one is considering the role of the subjective element, it is important to distinguish between the subjectivity of a particular State and that of the generality of States. For example, even if we were to accept, for the sake of argument, that the consent of the generality of States is needed before a customary rule comes into being, it by no means follows that, for a particular State to be bound by that rule, one must show that that particular State consented to it. (2) It is important to bear in mind the distinction between the stage at which custom is being formed, and that at which it is already “mature”, being generally observed. At the latter stage, the reason why States in general, and a particular State (e.g. a new one), comply with a settled practice may well be the existence of a general opinio juris or belief in its obligatory nature. But it does not follow from this that belief of that kind (or any belief) plays a part in the formation of a new rule, as we shall see. (3) I will suggest later that it is useful to distinguish between necessary ­conditions and sufficient conditions: that just because a State can be bound through the expression of its consent to a rule — a sufficient ­condition — this does not prove that a State can only be bound if its consent can be demonstrated. In other words, the individual State’s consent is not a necessary condition, though it may be a sufficient one.249 It is 248 H. Thirlway, International Customary Law and Codification (1972), p. 47. This observation also neatly highlights the fact that, in the real world, the matter may be less problematic than in groves of Academe. 249 I appreciate that this is a somewhat unusual way of using the distinction. Normally, the contrast between necessary and sufficient conditions is made in order to show that the fulfilment of condition x may be necessary for a legal consequence to ensure, but that it is not sufficient. Essentially, my thesis is that the consent of a State is sufficient to result in its being

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quite possible logically, and is in fact the case, that there are two alternative routes to being bound by a rule of customary law. I shall also suggest that the dichotomy between these two approaches has been drawn too sharply, and that neither school has a monopoly of wisdom. Consent plays a role in some circumstances, but belief in others. The context in which one poses the question is crucial.250 It seems fair to say that much of the material is ambiguous enough to allow commentators to find in it whatever their preconceptions lead them to expect.251 Thus, those who stress the subjectivities (the will or belief) of the actors are not daunted by the fact that often the only information one has is the external conduct of States — we do not necessarily know what States believe or wish: for these commentators, conduct is often the evidence or manifestation of those subjectivities. Again, those who consider that consent is the key to customary law are not downcast by the largely undisputed fact that general customary rules bind States who have given no intimation of such consent: such States, they say, are deemed to have agreed tacitly. Because these are matters of judgment, inference and interpretation, it is not to be expected that scientific methods of proof (examination of empirical evidence and logical analysis) will definitively establish the correctness or otherwise of particular theories. The only tools we can use here are an understanding of the practice of international decision-makers,252 common sense and, perhaps, Occam’s razor — “entities [in this case legal concepts and fictions] are not to be multiplied unnecessarily”.

bound by a customary rule; but it is not necessary for such individual consent to have been given (still less, proved) if it can be shown that there is a general practice (and no persistent objection by the State concerned). 250 This is not the same as P. Haggenmacher’s ingenious espousal of a sort of gestalt approach to the problem: “La doctrine des deux éléments du droit coutumier dans la pratique de la Cour internationale”, 90 Revue générale de droit international public (1986), p. 5 at pp. 111 et seq. His reliance on overarching principles of international law seems overstated; and whilst there is obviously a good deal of truth in his view (shared with many other authors) that the opinion of the judge is decisive, this seems to overlook the fact that custom (like law in general) is not merely what the judge declares (cf. H.L.A. Hart, The Concept of Law (1st ed., 1961), pp. 121–150). A fortiori when it is recalled that, in the international system, the role of the judge is somewhat sporadic and peripheral: see supra, Chap. i, Sec. 4. [Editors’ note: not included in this Anthology]. See also infra, text accompanying footnotes 356–357. [Editors’ note: not included in this Anthology]. 251 This is perhaps partly due to the informal nature of customary law and of the process by which it is formed. 252 In the broad sense of the term, including, for example, government officials.

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The International Court has, on a number of occasions, asserted that the subjective element is necessary. I hope to show, however, that these pronouncements were actually made, for the most part, in special circumstances, and that it is not in fact necessary to demonstrate the presence of the subjective element in all, or perhaps even most, instances. The Court’s pronouncements have also been rather unclear as to whether the requisite subjective element is belief or will, and supporters of both schools can invoke the case-law in support of their views. The Permanent Court of International Justice in the S.S. “Lotus” gave some encouragement to voluntarists by observing that International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as ­expressing principles of law…253 though it should be noted that the phrase “generally accepted” suggests that the consent of each and every State is not necessary, and it will also be seen shortly that the judgment also appears to lend support to the “belief” approach. In the Asylum case the International Court of Justice observed that “The Party which relies on a [regional or local] custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party”, and went on to rely on non-acceptance by Peru as one ground for rejecting the claims of Colombia.254 In the Fisheries case the Court relied heavily on the absence of protest by interested States generally, and the United Kingdom in particular;255 and in the Right of Passage case it referred to the practice in question being “accepted” by the parties.256 On the other hand, there is no shortage of case-law relying on general opinion rather than the consent of the parties. Thus, in the S.S. “Wimbledon” case 253 PCIJ, Series A, No. 10 (1927), p. 4 at p. 18. 254 ICJ Reports 1950, p. 266 at pp. 276–278. See supra, Chap. ii, Secs. 5 and 6. [Editors’ note: not included in this Anthology]. On the other hand, there is also language here which has been invoked in aid of the belief approach, e.g. “respected by the territorial States as a duty incumbent on them”. 255 ICJ Reports 1951, p. 116 at pp. 136–139; cf. also its reliance on the agreement of the parties as to the breadth of the territorial sea, at p. 128. 256 ICJ Reports 1960, p. 6 at pp. 39–40. The language is, however, somewhat ambiguous: ­“acceptance as law” could mean acknowledgment of an existing legal position, which is not an implausible interpretation when it is recalled that India was a successor State. On the other hand, where a bilateral (local) custom is concerned, both parties will need to have known about the practice and (if only by implication) to have agreed to it.

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the Permanent Court alluded to the fact that passage of belligerent warships and ships carrying contraband through the Suez Canal “had never been regarded by anyone as violating the neutrality of the Ottoman Empire” and to the absence of objections by anybody to the like passage through the Panama Canal; and it went on to say that these precedents were “merely illustrations of the general opinion according to which … such a waterway is assimilated to natural straits….”257 In Nottebohm (Second Phase) the Court relied on what it held to be generally recognized rules, without any reference to acceptance or the like on the part of either Guatemala or Liechtenstein;258 similarly in Barcelona Traction (Second Phase).259 Indeed, there have even been express holdings that opinio juris is required. In the “Lotus” case the Permanent Court, in repudiating French reliance on the relative absence of prosecutions of the crew of foreign ships involved in collisions on the high seas, said that only if such abstention were based on [States] being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact [of general abstention, with some exceptions] does not allow one to infer that States have been conscious of having such a duty…260 In the North Sea Continental Shelf cases261 the ICJ cited this pronouncement and, referring to the assertion by Denmark and the Netherlands that certain delimitation agreements by non-parties to the Geneva Convention on the Continental Shelf 1958 evidenced the existence of a new rule of customary law regarding delimitation, observed that even if these instances … were much more numerous than they in fact are, they would not, even in the aggregate, suffice to constitute the opinio juris; — for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it. The need for such a belief, i.e. the existence of a subjective 257 258 259 260 261

PCIJ, Series A, No. 1, p. 15 at pp. 26–28. ICJ Reports 1955, p. 4 at pp. 12–26. ICJ Reports 1970, p. 3 at pp. 42–48 (emphasis added). PCIJ, Series A, No. 10, p. 4 at p. 28. But note the reference to tacit consent on the next page. ICJ Reports 1969, p. 3 at p. 44, para. 77. See also p. 41, para. 71.

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element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.262 In the Continental Shelf (Libya/Malta) case263 the Court said that It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions [such as the Law of the Sea Convention 1982] may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them. It did not, however, go on to develop the point with which we are now concerned. In the Nicaragua case (Merits) it made repeated reference to its need to establish, not only the practice, but also the opinio juris of States.264 The first half of the above-quoted pronouncement was also repeated in the recent advisory opinion on the Legality of the Threat or Use of Nuclear Weapons.265 I will, however, suggest shortly that even these apparently clear statements of support for the “belief” approach are not conclusive. Moreover, and with the greatest respect, I think we should be cautious about attaching too much weight to the Court’s pronouncements, for another reason. As was observed in Chapter I,266 the International Court, important though it may be, is not the sole, or even the central, decision-maker in the international legal system. Furthermore, the function of judges and arbitrators requires them to take a still photograph, so to speak, of the state of the (customary) law at a given moment; whilst others — such as government officials or detached 262 It is curious that the Court thought that the need for a notion (in this case, opinio juris) can be implicit in its content. The Man in the Moon is a notion, but this does not prove his existence or his necessity. As a matter of logic, the most that can be deduced from the content of the notion of opinio juris is that some have thought it to be relevant or necessary, not that it is in fact relevant or necessary. 263 ICJ Reports 1985, p. 13 at pp. 29–30, para. 27. 264 ICJ Reports 1986, p. 14 at pp. 97–98, paras. 183–185, pp. 99–100, paras. 188–189, p. 101, para. 191, and pp. 108–110, paras. 206–207 and 211. 265 ICJ Reports 1996, p. 226 at pp. 253–255, paras. 64–73. 266 Sec. 4.

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observers — can take more account of the dynamics of the way customary rules develop.267 So whilst practitioners before the Court need to construe and dissect every judicial pronouncement with minute attention, we may perhaps be excused from over-stressing their importance here.268 I propose to look first of all at the voluntarist approach. I will then turn to the question of opinio juris. Having discovered deficiencies in both schools, I will then propose a somewhat different approach. 2

The Voluntarist Approach

Ancient (municipal) law is frequently characterized by the coexistence of customary law and what might (more or less loosely) be described as legislation by the sovereign. Accordingly, there is a long history of municipal jurists seeking to explain the phenomenon of customary law. For instance, there are frequently cited Roman law texts which indicate that what the people wills expressly is law (legislation), and what it wills or consents to implicitly is customary law.269 And in the field of public international law, writers from at least Grotius270 onwards echoed these maxims, asserting that what States agree to expressly is treaty law, and what they agree to implicitly is customary law.271 267 Cf. my “Formation of International Law and the Observational Stand-point”, Appendix to the First Report of the Rapporteur, First Interim Report of the International Committee on the Formation of Rules of Customary (General) International Law, in International Law Association, Report of the 63rd Conference (Warsaw, 1988), p. 941. 268 The more so when others have already undertaken that task: cf. e.g. Fitzmaurice, The Law and Procedure of the International Court of Justice (1986), i, pp. 197–199, ii, 631–632; H. Thirlway, “The Law and Procedure of the International Court of Justice, 1960–89 (Part Two)”, 61 British Year Book of International Law (1990), p. 1 at pp. 31–110; Haggemacher, 90 Revue générale de droit international public, pp. 111 et seq. 269 “Consuetudine jus esse putatur id, quod voluntate omnium sine lege vetustas comprobavit”: Cicero, de invent. 2.22.67. “Inveterata consuetudo pro lege non immerito custoditur et hoc est jus quod dicitur moribus constitutum. nam cum ipsae leges nulla alia ex causa nos teneant quod judicio populi receptae sunt, merito et ea quae sine ullo scripto populus probavit tenebunt onmes: nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis?” Digest 1.3.32.1 (Julian, 84 Dig.). Cf. h.t. 35 (Hermogenian, libro I juris epitomarum) — “tacit agreement of the citizens”; h.t. 36 (Paul ad Sabinum vii) — especial weight is to be given to custom because it has received such approval that it was not necessary to reduce it to writing. 270 De jure belli ac pacis (1646 ed.), Prolegomena, §§ 1, 17 and 40. 271 Another strand of thought found in Grotius and other classical authors (though the way in which they put it varied) was that customary law was the working out in practice of the precepts of natural law, or the filling in of gaps in natural law, from which customary law

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But it is the rise of positivism, with its rejection of natural law and emphasis on the sovereign will of States, that brought the voluntarist approach to the fore.272 Put in its simplest form, the voluntarist thesis says that, since States are sovereign, they cannot be bound by legal obligations without their consent.273 This plainly applies to treaties and, according to this approach, applies equally to custom. Some go so far as to follow and adapt the Roman view of custom as tacit legislation by treating customary international law as tacit treaty law.274 Others, such as Wolfke, are quite insistent that customary law is not a form of unwritten treaty, for a variety of reasons, such as that, whilst the will of those entering into a treaty to change the status quo is clearly manifested, “in the event [sic] of customary law, such will is most often reduced to a mere tacit acquiescence in the practice”.275 Furthermore, as we saw in Chapter II, the range of persons who can contribute to the formation of customary law is wider than that of those empowered to conclude treaties.276 And so on.

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ultimately derived its validity. Such theories are generally regarded today as outmoded and philosophically untenable, but it will be necessary to revert to this topic briefly when I discuss the concept of opinio necessitatis (text accompanying footnotes 314–318, infra) [Editors’ note: not included in this Anthology]. See e.g. L. Oppenheim, International Law, Vol. i (1st ed., 1905), pp. 15–18 — though it should be noted that there are strong traces here of a Rous-seauesque volonté générale; W.E. Hall, A Treatise on International Law (8th ed., 1924), p. 5; H. Triepel, “Les rapports entre de droit interne et le droit international”, 1 Recueil des cours (1923), p. 77 at pp. 82–83; D. Anzilotti (trans. G. Gidel), Cours de droit international (1929), p. 67; A. Cavaglieri “Règles générales du droit de la paix”, 26 Recueil des cours (1929), p. 315 at p. 322; K. Strupp, “Les règles générales du droit de la paix”, 47 Recueil des cours (1934), p. 257 at pp. 301 et seq. A leading Soviet voluntarist, G.I. Tunkin, rather confused matters by seeking to equate the “traditional” concept of opinio juris with consent, will or agreement. He did this by first equating opinio juris with “recognition” of a rule (an ambiguous concept, as we shall see), and then stating that recognition is no more than the exercise of State will: Theory of International Law (trans. W.E. Butler), 1974, pp. 113–133. But whatever the obscurities in the concept of opinio juris sive necessitatis (which will be examined shortly), one thing is certain: the word opinio means belief, not will or agreement. E.g. Anzilotti, Cours de droit international, p. 68. But of course treaties, even multilateral ones, are not legislation. Custom in Present International Law (2nd ed., 1993), pp. 96–100. A similar view is taken by S. Sur, “La coutume internationale. Sa vie, son œuvre”, 3 Droits, revue française de théorie juridique (1986), pp. 111, 122–123. Sec. 1. There are indeed many differences. Amongst other things, the means of creation, and particularly how the wills of the parties are brought into convergence, vary; reservations to customary law are not (as such) possible; there is no direct equivalent in customary law of the law of treaties’ doctrine of vices de consentement; and there is no provision for unilateral withdrawal from an established customary law obligation. Nevertheless, if

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It is undeniable that the will of States plays an important part in the formation of customary law: customary rules are not created, as the British E ­ mpire was once said to have been acquired, “in a fit of absence of mind”. But the strict voluntarist theory goes further: it does not consider it sufficient that some States (or even the great majority of them) have willed the existence of a new customary rule. As a matter of principle, it requires each and every State to give its consent to the customary rule in question before it can be bound by it. I stress this: it is not just the will of States in general, but the individual will of each and every State. This seems inconsistent with reality. When we consider the emergence of such universally applicable customary rules and principles as those relating to diplomatic immunities, the prohibition of piracy and of privateering, and sovereign rights over the continental shelf, it is simply impossible to show that each and every State positively consented to the emergence of the rule in question. Yet it is virtually unanimously accepted by the authorities that these rules have indeed come to bind all States.277 The real nature of the process by which these customary rules emerged seems to be more along the following lines. Some States actively created the practice, either by initiating it or by imitating it; and others, who were directly affected by the (express or implied) claims in question, by acquiescing in them. This initiation, imitation and acquiescence may plausibly be described in terms of will. But others still, who were not directly affected, sat by and did nothing, and in due course found themselves bound by the emerging rule. One can actually observe this process with regard to the continental shelf, for example. To say that all States gave their consent, in any normal sense of the word “consent”, is simply untrue. There is no real acquiescence here. In this context, it is helpful to recall that the international community is not the only customary law society that has ever existed. In domestic societies where customary law has played an important part, its creation and replacement (not to mention its precise formulation and enforcement), often results from the activities of a relatively few leading “movers and shakers” (not necessarily the same for every area of activity), with others finding themselves bound without having

the voluntarist view were correct (which I question), there is at least a strong analogy with treaties, if not an identity. 277 See e.g., J.C. Bluntschli, Le droit international codifié (trans. M. Lardy, 1870), p. 57; C. De Visscher, “La codification du droit international”, 6 Recueil des cours (1925), p. 325 at p. 361; G. Finch, The Sources of Modern International Law (1937), p. 48; P. Guggenheim, Traité de droit international public, Vol. i (2nd ed., 1967), p. 107.

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consciously consented to the particular rule, or at any rate that formulation of it.278 The same is true of international society. Voluntarists such as Strupp, Tunkin, Wolfke and Danilenko do not regard this objection as fatal. They say that the States who do nothing impliedly consent or are deemed to do so: their passivity is a form of acquiescence or tacit consent.279 This is superficially an attractive explanation; but it is a mere fiction. In other words, it does not describe what actually happens. Several authors who equate silence with tacit consent distinguish between “specially affected States” and others. In principle, it is only the former who, if their interests are affected, are expected to protest, with the result that, if they do not, they can be taken to have acquiesced and are therefore bound by the rule. But even those who, like MacGibbon, go into acquiescence quite deeply, rarely take the analysis very far on the particular question of the presumed consent of “specially affected States”.280 First, it is said that only affected States who knew, or might have been expected to know281 of the practice can be said to tacitly acquiesce in it. But it is far from clear that all those who have found themselves bound by a general customary knew of the practice in question. Admittedly today, given the expansion of international communications and the fact that a good deal of diplomacy is carried out in international organizations and conferences, States are less likely to be ignorant. But this is a relatively recent phenomenon and it is certainly not the case that, even in the quite recent past, all States knew what was going on in all other parts of the world. Moreover, future developments may render presumed knowledge even more of a fiction than it is today: it may well be that, with the proliferation of publications reporting State behaviour 278 See e.g. J.-A. Brutails, La coutume d’Andorre (2nd ed., 1965); C.K. Allen, Law in the Making (7th ed., 1964), p. 148; M. Gluckman, Ideas in Barotse Jurisprudence (rev. ed., 1965); Introduction by M. Gluckman in A.N. Allott, A.L. Epstein and M. Gluckman (eds.), Ideas and Procedures in African Customary Law (1969), esp. at pp. 1–15; E.V. Mittlebeeler, African Custom and Western Law (1976); B. Goldin and M. Gelfand, African Law and Custom in Rhodesia (1975); J.F. Holleman, Shona Customary Law (1952); A. Watson, The Evolution of Law (1985), Chap. ii; id., Sources of Law, Legal Change and Ambiguity (1985), Chap. ii. 279 Respectively op. cit., footnotes 272, 273 and 275 supra [Editors’ note: not included in this Anthology]; G. Danilenko, “The Theory of Customary International Law”, 31 German Yearbook of International Law (1988), p. 9; id., L­ aw-Making in the International Community (1993), Chap. iii. This approach has a long pedigree: see e.g. S. Rachel, De Jure Naturae et Gentium Dissertationes (1676): De Jure G ­ entium, x and xxxvii. 280 I. MacGibbon, “The Scope of Acquiescence in International Law”, 31 British Year Book of International Law (1954), p. 143. A partial exception is M.E. Villiger, Customary International Law and Treaties (1985), pp. 18–22. 281 Cf. Fisheries case, ICJ Reports 1951, p. 116 at pp. 138–139.

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(often failing to distinguish between the trivial and the important) and with more and more information becoming available electronically, many States who are technically in possession of the relevant data will have insufficient means to process or evaluate them. I shall return to this in Chapter V, when I consider “new” methods of customary law formation.282 Meanwhile, I simply repeat that only States with knowledge are capable of acquiescing, and not all States know or knew of the practice in question. Secondly, the idea of being “specially affected” is not very precise. Every time a State makes a claim erga omnes, or relies on a purported general rule, every other State is potentially affected, because the claim is a brick in the edifice of a (new) customary rule. But what is the degree to which it needs to be affected? Suppose that State A asserts a new form of jurisdiction over fishing in waters adjacent to it. States B, C and D, whose nationals already fish there, might reasonably be expected to protest and, if they do not, can be presumed to have acquiesced. Perhaps States E, F, and G, whose nationals do not at present fish in those waters, but who might do so in the foreseeable future, should also protest. But what of States H to Z, who have no actual or potential interest in these particular waters? For one of them to protest, simply on the ground that the precedent might be invoked in the future by one of its own neighbours, might be thought unnecessary and unfriendly, and it does not seem that such “longrange” protests are at all common.283 Yet these remoter States are not really acquiescing. Again, suppose that State A enacts legislation claiming a right of 282 Secs. 1, 3 and 4. 283 This is not to say that such protests can never occur, just that they do not seem at all common. Professor Ian Brownlie has kindly drawn my attention to the protests against allegedly illegal extensions of maritime jurisdiction set out in M.W. Mouton, The Continental Shelf (1952), pp. 89–96, 214 and 319. But most or all of these were by States who were, or could have been, directly affected by the decrees in question. Many of the protests were by the United States against the decrees of its Latin American neighbours, and it is reasonable to assume that its fishing vessels and warships actually did or might in future use those waters. (The legislation in many cases involved the extension of territorial waters, and not just the establishment of fishery zones.) At least so far as concerns fishing, the same is true of the British (and probably the Netherlands and Belgian) protests against the Icelandic baselines. Similarly for the Japanese protest against the extension of Korean sovereignty to certain waters adjacent to the peninsula. It is less certain that British boats were fishing in the waters off Ecuador, Peru, Chile and so on (though British colonies in the area should not be overlooked). But insofar as the protested decrees of these States constituted or were tantamount to extensions of territorial waters, British naval interests would have been affected. And even if it could be shown that, on occasion, major powers who are particularly vigilant protest simply to preserve the position in general law, even when their actual or prospective interests are not directly affected by the specific legislation protested against, this would appear to be the exception rather than the rule.

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extraterritorial jurisdiction which might be thought exorbitant. Those directly affected by the application of such laws may be expected to protest — as the trading partners of the United States have, on various occasions. But would it be appropriate for States whose nationals are only potentially liable under these laws to protest? And what of those countries which do not have significant commercial relations with the country enacting the legislation? Should they protest, merely on the grounds that this would otherwise constitute a precedent which different States might invoke against them in the future? It is not clear that they either would or should. But if that is so, then it is simply not true that all of those who fail to protest can reasonably be taken to have actually acquiesced. Danilenko asserts that even “indirectly affected” States must be taken to acquiesce.284 But this is a pure fiction or, to put it differently, a presumption of law. And if it is a presumption of law, it seems to be a reinstatement of the “objectivist” approach to which voluntarists object: it would not be through the exercise of their will that these States are bound, but some other reason, such as natural law or the interest of the civitas maxima. A fortiori for those authors who make such presumptions of law irrebuttable in certain cases. A similar point can be made about the basis upon which existing customary law is said to bind new States and existing States who are newcomers to a particular type of activity (e.g. landlocked States engaging in maritime activity, as they are entitled to do).285 That these categories of States are bound by the existing customary law is accepted almost unanimously in the doctrine, and — more importantly — the fact is that, in the practice of States and of tribunals, it is simply taken for granted that new entrants are bound by the existing customary rules.286

Of course, it is difficult to be categorical on this point, because many protests remain confidential: see my “Practice, Propaganda and Principle in International Law”, (1989) Current Legal Problems, p. 1 at p. 12. 284 31 German Yearbook of International Law (1988), p. 9. Cf. his Law Making in the International Community, p. 108. 285 See e.g. H. Accioly, Tratado de direito internacional publico (2nd ed., 1956), i, pp. 38–39. 286 C.H.M. Waldock, “General Course on Public International Law”, 106 Recueil des cours (1962), pp. 52–53, points out that in the cases in which they participated in the PCIJ and ICJ, respectively, neither Poland nor India sought to rely on the fact that they were new States, and that it seems to have been assumed that they would be bound by existing rules: see German Settlers in Poland case (1923), PCIJ, Series B, No. 6, at p. 36; Certain German Interests in Polish Upper Silesia case (1926), PCIJ, Series A, No. 7, at pp. 22 and 42; Right of Passage case, ICJ Reports 1960, p. 6. Subsequent cases involving recently independent States and, for example, delimitation, have confirmed this view.

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It is of course possible to argue, with Redslob, Tunkin and others that new States are in fact free to repudiate existing customary law en bloc, but that they choose not to do so in order to gain the benefits of full participation in the international system that they have just joined, and can be presumed to consent to existing custom as soon as they enter the international community. Mutatis mutandis, the same could be said of States participating for the first time in a particular activity. It is difficult, if not impossible, to disprove this argument.287 Nevertheless, it strikes one as rather artificial. If there is a better explanation, i.e. one more consistent with the observable phenomena of social behaviour, it is to be preferred. It is submitted that in reality the new State is entering an existing legal system and is simply expected (and expects) to conform.288 Similarly with the new actor. Certainly, States in these categories are free to try and change existing customary law through contrary practice which obtains the acquiescence of others (or through amendment by treaty). But that is equally true for existing members of the community. And until the existing customary rules are changed, they continue to oblige old and new members alike. Here, too, the voluntarist thesis does not seem to accord with reality; and to call in aid a legal fiction begs the question why it is needed at all. There is, in fact, no indication in the jurisprudence of the International Court on the subject of general (as opposed to local and — possibly — 287 M. Sørensen, “Principes de droit international public”, 101 Recueil des cours (1960), pp. 45–46, argues that, if the thesis in question were correct, existing States would be equally free to decide not to apply established customary rules to a new State. I. Lobo de Souza, 44 International and Comparative Law Quarterly, pp. 533–534, points out that it is unconvincing to argue that new States consent to certain rules which they immediately try to have reformed because they do not like them. The article as a whole is a strong attack on the voluntarist thesis. 288 As B. Cheng points out, it would be wrong to invoke the analogy of the child born into municipal society. The child is certainly bound by the rules of that society without its consent. But there are major differences between the power structure of municipal society and that of the international society: “Custom: The Future of General State Practice in a Divided World”, in R. Macdonald and D. Johnston (eds.), The Structure and Process of International Law (1983), p. 513 at p. 516. What one might perhaps say, however, is that participation in a society necessarily entails participation in its legal system, for the two are necessarily intertwined. In the American case of Ware v. Hylton, (1796) 3 Dallas, p. 199 at p. 281, Wilson J. said “When the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement.” (The last eight words sound quaint today.) See also the message of the United States Secretary of State, Webster, to the United States Minister to Mexico, 15 April 1842, cited in J.B. Moore, International Law ­Digest, i (1906), p. 6. But other statements indicating that the binding force is due to ­consent are also cited ibid., pp. 8–9.

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r­ egional) ­custom, that it is necessary to prove the existence of express or tacit consent on the part of the particular State concerned. If it has consented (as the United Kingdom was held to have done in the Fisheries case in relation to the Norwegian straight base-line system),289 so much the better; but whilst consent in such instances is a sufficient condition for being bound, it has never yet been held to be a necessary condition.290 In short, the voluntarist theory has great difficulty in explaining how it is that, without any manifestation by them of consent, inactive and unaffected States, new States and those new to an activity, all find themselves bound by general customary rules. It tries to overcome these obstacles by the use of legal fictions of a rather unconvincing kind, and one is entitled to ask whether, that being so, the theory has any use. But before doing so, it may be helpful to consider why voluntarists are so wedded to their theory. In some cases, writers may have been consciously or unconsciously persuaded by the requirements of ideology or the political position of their ­Government. Thus communist ideology and the policy of the Soviet State (at any rate until just before its demise) was rather antipathetic to customary international law, which was regarded as the product of an outmoded system dominated by bourgeois States. The preferred mode of rule-creation was the treaty, individual consent to which was the indispensable condition of being individually bound.291 Another reason why some favour the voluntarist approach is, it is submitted, the assumptions — usually not articulated or carefully analysed — that

289 ICJ Reports 1951, p. 116 at pp. 138–139. 290 There are quite a few examples of international and municipal tribunals assuming that a party would be bound if there was a rule of general law, without seeking the consent of that party. See e.g. the Wimbledon case (1923), PCIJ, Series A, No. 1, pp. 15 at pp. 25–28; ­Nottebohm case (Second Phase), ICJ Reports 1955, p. 4 at pp. 22 ff.; North Sea Continental Shelf cases, ICJ Reports 1969, p. 3 at pp. 42–43; Gulf of Maine case, ICJ Reports 1984, p. 246 at pp. 292–293; The “Regolo Attilio” case, (1945) UN Rep. of Int. Arbitral Awards, p. 1 at pp. 8–9; The “Scotia” (1871) 14 Wallace, p. 170 (US Supreme Court). Local and regional customs may be different. As already indicated (supra Chap. ii, Sec. 5) [Editors’ note: not included in this Anthology], bilateral (local) customs obviously depend on the assent (express or tacit) of the State whom it is sought to burden (cf. Right of Passage case, ICJ Reports 1960, p. 6); and there is some authority that this is also so in the case of regional customs (Asylum case, ICJ Reports 1950, p. 266). 291 Western observers should beware of priding themselves on a lack of a corresponding ideological and political motivation. A legal system in which States can find themselves bound without their positive consent (expressly or tacitly given) is one which may tend (though not invariably) to favour the most active and influential States, currently the “West”.

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they make about the role of consent in the international legal system as a whole.292 It is commonly said that international law is based on the consent of sovereign States; ergo customary law, which is part of that corpus, must equally depend on consent. Now, undoubtedly, consent plays a very important part in the s­ ystem, at different levels; but to argue from this premise that the consent of each and every State is necessary to the formation of a rule of general international law is misconceived. The logical error can be better understood by considering the role of consent at different levels of analysis, or in different contexts. At the most general, systemic level, if States chose to dispense with international law as a whole and to operate on anarchic principles, they could certainly do so. In that sense, it is true that international law as a whole is dependent on consent. But given that States have in fact consented to the existence of a system of international law as a whole, continue to do so (and in practical terms have little option), it does not necessarily follow that the creation and binding force of each individual rule in the system is dependent on the consent of each and every subject at each and every moment. Descending from the most general, systemic level to the sources of international law, it may be thought that these, at least, are dependent on the consent of States. In one sense they are. It is States, as the principal subjects of the system, who decide what processes will be recognized as generating rules of law. If they chose, they could recognize papal pronouncements or the randomly generated choices of a computer, say, as sources of legal obligation. Less fancifully, if they chose to treat resolutions of the General Assembly as ipso facto creating rules of law, such resolutions would be a source of legal obligation for States. But once again, to say that the consent of States is needed for a particular process to be accepted as a source of law is not necessarily to say that the only processes recognized by them are those which involve the individual consent of each and every State. For example, if States as a whole recognized the binding force of decrees by the Pope (as once Western rulers did), his pronouncements would not entail any act of State will as a part of the law-making process. Mutatis mutandis, the binding force of a General Assembly resolution would not, in the hypothetical situation, depend on the consent of the minority States. Maybe we will discover that each of the recognized sources does in fact require the manifestation of individual consent; but this must be determined empirically, without preconceptions. Indeed, if States decided that certain types of dispute should be decided by the random determinations of a computer (like a lottery), no act of human cogitation would be involved at 292 Cf. P. Reuter, Droit international public (6th ed., 1983), p. 111.

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all: the element of will comes in only at the level of choosing that method. For convenience, the context just discussed might be called the identification-ofsources level. What has yet to be established is that consent is an indispensable part of the content of the individual source: the particular-source-content level. Coming down one more level, then, and looking at the formal sources which actually are recognized, we find that the Statute of the ICJ essentially recognizes three: treaties, custom, and what it describes as “general principles of law recognized by civilized nations”.293 Is consent an indispensable element of each? The meaning of the third source recognized in Article 38 (1) of the Court’s Statute, “general principles of law recognized by civilized nations”, is not entirely clear. The Court has not elucidated its meaning, and the commentators differ. Indeed, it seems that even those who drafted the Statute differed as to what it meant, and in some cases were probably not clear in their own minds. However, in practice at least, one of the things it does mean is general principles of national law which are suitable for transplantation to international society. Now, in this sense of the term, it should be noted, there is no requirement of individual consent. If a principle is found in main municipal legal systems, and there is no reason of principle militating against transplantation to international society, then the principle is one of international law, ipso facto and without the need for consent to its transplantation.294 This would also be true if, as some would argue, the phrase in Article 38 (1) (c) denotes concepts inherent in the idea of any or all kinds of legal system — not just municipal law. So here we have already found one source which does not include individual consent as part of the rule-generating process. Turning from general principles to the first item listed in the Statute of the Court, treaties certainly seem at first sight to require individual consent. Above all, it is a well-recognized principle that they bind only the States which actively consent to them by signature, ratification, accession etc. But this is not the whole story. Once a State has consented to be bound by a treaty which has come into force, it is universally accepted that it cannot release itself from its

293 For present purposes, the judicial decisions and writings of the most highly q­ ualified publicists referred to in Article 38 (1) (d) may be discounted as being merely evidence of the law rather than formal sources of it, though this may be something of an ­over-simplification: see infra, Chap. vi. [Editors’ note: not included in this Anthology]. 294 The fact that the State can be said to have consented to the rule’s forming part of its ­municipal system is no answer to this point. Neither would it help to argue that States have consented to Article 38 (1) (c) of the Statute: the issue at present is whether the giving of consent by each and every State, and particularly one alleged to be bound by the “general principle”, is necessary. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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obligations merely by withdrawing its consent. More generally, the rules concerning treaties’ identity, creation, validity, application, interpretation, amendment, modification, suspension and termination all depend on rules outside States’ individual and continuing consent. But in any case, even if treaties as a source of international law were wholly dependent on consent, this would prove nothing about the other main source of international law, custom, unless we were to make the assumption that only agreement can be a source of international law — for which assumption, as has already been seen, there is no a priori justification and would, indeed, be assuming the very point which the voluntarists need to prove. One is therefore obliged to examine empirically whether the creation of customary rules is indeed treated by States as requiring individual consent. And in fact, as has already been submitted, neither the decisions of international tribunals nor the overwhelming generality of State practice seem to require the individual consent of each and every State, or even of the State alleged to be bound by a generally accepted rule.295 (Still less is there evidence that the continuing validity of a customary obligation is dependent on continuing individual consent to it.) And for what it is worth, the drafting history of Article 38 (1) (b) of the Statute seems to bear out the conclusion that its authors were by no means all thinking in terms of tacit consent.296 I submit, therefore, that the argument that individual consent is a necessary precondition of being bound by a customary rule is based on a logical confusion of the levels of analysis: just because in some senses international law is dependent on State consent does not reduce customary international law to a tacit and informal analogue of treaty law. But this does not mean that the voluntarist approach has no value at all as an explanation of the creation of customary law obligations; and now is a moment where the distinction between States in general and particular States, and between necessary and sufficient conditions, may throw some light. (a) It is a necessary (but not sufficient) condition of the creation of a general customary rule that at least some States should have willed the existence of the rule: the State or States initiating the practice, and the State or States imitating or genuinely acquiescing in it. Customs do not nowadays grow up by

295 A stronger argument in favour of the voluntarist approach than the one just analysed would be that to dispense with the consent of each and every State would be to violate the principle of sovereign equality. However, this is far from being the only violation of that principle (if such it be); and one of the strengths of customary international law in its traditional form is that it reflects the realities of power. 296 For a particularly full account, see Haggenmacher, 90 rgdip, at pp. 18–32. Cf. supra, Chap. i, Sec. 7. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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themselves, if ever they did. In short, someone’s will needs to be actively engaged before a customary rule can even begin to be created. (b) If it can be shown that the particular State allegedly bound by a customary rule actually initiated the practice or imitated it, this act of will is sufficient to make the rule binding on it. The United States, by making its proclamation on the continental shelf, both implicitly and explicitly accepted that other States could claim the same right against it. Moreover, the United Kingdom followed the lead given by the Truman Proclamation by making its own, similar claims. Whether or not the doctrine matured into one of general customary law would not matter for this purpose: the United Kingdom would have been bound, vis-à-vis the United States and other States making similar claims, as a matter of (at least) particular law.297 (c) Similarly, if a State does actually acquiesce in a practice, this is equivalent to consent and will be sufficient to bind it. The most obvious form of such acquiescence is where State A requires State B, on legal grounds, to do or refrain from doing something, and State B complies. For instance, State A demands compensation from State B for some act, and B pays; or A demands the release of an arrested diplomat, and he is released. But real acquiescence (as opposed to that presumed by a voluntarist fiction) also occurs if State C’s interests are directly engaged by some innovative conduct on the part of D, but C does not protest or take other action. See, for

297 Admittedly, in the Nicaragua (Merits) case, ICJ Reports 1986, p. 14 at pp. 97–98, the Court expressly refused to accept the recognition by the two parties of certain rules as customary law as sufficient: it had to examine the opinio juris of States in general. This seems to suggest that acceptance by the individual party is not in fact sufficient. An interesting discussion is possible as to whether, as a matter of procedure, the Court ought to go beyond a concession of the party which is alleged to be bound by the rule in question. ­Possibly the Court thought that, since the rules in question were of general law, it should not pronounce on this because (despite Article 59 of the Statute) its pronouncements might affect third States. But even if it is thought that the Court was right to act as it did in that case, the case seems to be an exception to the general principle, well recognized in its jurisprudence, that if a party does consent to an alleged customary rule it will be bound by it. Cf. Fisheries case, ICJ Reports 1951, p. 116 at p. 128 (regarding the 4-mile limit of Norway’s territorial sea); Fisheries Jurisdiction (Merits) case, ICJ Reports 1974, p. 3 at p. 24, para. 54. Indeed, some arbitral awards have treated the parties’ agreement as to the applicable law as a, or the, reason not to look further; see e.g. Guinea/Guinea-Bissau Maritime Boundary Delimitation arbitration, (1985) 77 International Law Reports, pp. 635, 661 (acceptance by parties — and international tribunals — of rules set out in Article 31 (1) of the Vienna Convention on the Law of Treaties); Filleting within the Gulf of St. Lawrence arbitration (1986), 82 International Law Reports pp. 591, 627. Cf. Thirlway, 61 British Year Book of International Law, p. 1 at pp. 51–52.

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example, the Fisheries case, where the Court held that the United Kingdom’s failure to protest against the Norwegian straight base-line system, of which it must have known and which directly affected its national interests, precluded it from complaining about the ­application of those rules to its nationals.298 In such cases, consent is, once again, a sufficient condition for the imposition of a customary rule on the State concerned.299 (d) If a State expressly refuses to accept an emerging rule of customary international law, the prevailing view is that it is able to opt out. This is the 298 ICJ Reports 1951, p. 116 at pp. 136–139. The strands in the Court’s reasoning here are notoriously difficult to disentangle. The broad context was a discussion of whether a rule of general international law existed of the type contended for by the United Kingdom, viz., that the base-line required for the delimitation of the territorial sea was the low-water line along the coast, and that the Norwegian straight base-line system was (with exceptions) illegal. However, the Court was at the same time considering whether Norway had made out an historic title to the waters in question (in which case acquiescence by others, amongst them the United Kingdom, was relevant). There seems to be a third strand to the reasoning, too, which is that the acquiescence of the United Kingdom as the foreign State principally affected, precluded it from complaining. Reliance is placed here especially on the words “The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s enforcement of her system against the United Kingdom.” (P. 139, emphasis added.) 299 Some of these instances might be said to amount to tacit agreements. But see supra, footnotes 275 and 276, and accompanying text. Again, in some cases the consent of the particular State may make a rule opposable to it, by means of estoppel, recognition and so on. See e.g. the ICJ’s treatment of the United Kingdom failure to protest in the Fisheries case, supra. There is no doubt that there is a degree of overlap between customary law, on the one hand, and unilateral acts (or omissions) giving rise to opposability, on the other. But there are differences. For example, for an estoppel to occur there has to be a representation (of fact — possibly representations of law do not count) and there has to be reliance by the other party. Moreover, acts giving rise to opposability normally only affect relations between pairs of States, and have no legal impact beyond the sphere of their operation. By contrast, a State’s consent to, or acquiescence in, a customary rule, has an impact beyond its immediate sphere of operation: it is a “building block” in the edifice of a general customary rule. In the Fisheries case, for instance, the Court made reference, not just to the United Kingdom’s failure to protest, but also to the “general tolerance of foreign States” of Norway’s straight base-line system, having previously specifically referred to France (ICJ Reports 1951, pp. 116, 135–137 and 138). If toleration of the Norwegian system by, say, France were merely a question of opposability, it would have been irrelevant in a case brought by the United Kingdom. Furthermore, a State may, by its unilateral act, alter its own obligations under customary law without necessarily affecting the corpus of the latter — e.g. if a State unilaterally grants greater rights of passage to other States than customary (or treaty) law requires, conscious of the concession that it is making and not claiming that the general law so requires.

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“persistent objector” rule which we considered in the previous chapter. If this rule does indeed exist (which, it was submitted, is indeed the case), it can be said that the refusal of consent is sufficient to prevent that State from being bound. In short, the consent or genuine (not fictitiously postulated) acquiescence of some States is necessary for a customary rule to come into being at all; individual consent will enable the individual State to be bound; and persistent ­objection will prevent it. But in other respects, the voluntarists have failed to establish that (individual) consent is a necessity. Though their approach is plausible and hard to disprove definitively, there are important respects in which it does not furnish the answer. At the theoretical level, it is often based on a logical error concerning the level of analysis; and empirically it postulates a will which is often lacking in fact. It seeks to overcome these deficiencies by relying on a presumption of consent, a sort of legal fiction.300 But if there is some other explanation that fits better, it seems appropriate to dispense with these fictions and the hypotheses that they support or try to rescue. The time has therefore come to consider whether an approach which emphasizes belief rather than consent is preferable.301

300 One is reminded of the elaborate theories about solar and planetary motion which were elaborated in order to sustain an earth-centred theory of the movement of the solar system, but which ultimately had to be abandoned in favour of a heliocentric model. See also the quotation at the head of this chapter. 301 Mention should perhaps be made here of a theory put forward by A. D’Amato, The Concept of Custom in International Law (1971), pp. 74–87. He equates opinio juris with the articulation of a (new or existing) rule of international law, either concurrently with, or in advance of, a positive act or omission by a State. According to D’Amato, anyone can articulate a new rule of customary law: a State, an organ of an international organization, or even a single writer (p. 86). If a State (any State) which knows or ought to know of this articulation simultaneously or subsequently acts consistently with it, even if it does not allude to the articulation, we have the beginnings of a customary rule. It seems, therefore, that if a solitary professor in some obscure “ivory tower” (more likely today to be made of recycled aluminium) manages to get some eccentric idea published in a “leading journal”, and decades later some State act is performed which would be consistent with the professor’s rule, although the officials concerned in reality had no knowledge of the professor or his writings, this is enough to create a customary rule. (It is not an exaggeration to say “this is enough [for D’Amato] to create a customary rule”, for according to his account of what he calls “the quantitative element” a single act suffices, though two are better: ibid., p. 91). See also supra, Chap. ii, Sec. 5. With respect, it is only necessary to spell out in full what D’Amato already states to be his articulation theory to reduce it ad absurdum. In fact, its purpose is to deal with the problem of how we distinguish customary rules from rules of comity, omissions, disclaimers, and so on. It will be suggested shortly that there are better ways of dealing with these issues.

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Opinio Juris Sive Necessitatis

Literally, the phrase means “belief (or opinion) of law or of necessity”. This does not make much sense in English, and in fact its clumsiness as a piece of Latin makes one suspect that it was not Roman at all. And, indeed, I have not found it in the Digest or other classical writings on Roman law; and although my check on the Glossators and Post-Glossators has, admittedly, not been e­ xhaustive, the expression does not seem to have much of a pedigree in Roman law. The first person to use the complete phrase — and this in a municipal law context — appears to have been Gény in 1919,302 though, as Guggenheim noted,303 one finds parts of the phrase or something like it in the writings of the German historical school in the late eighteenth and early nineteenth centuries.304 We shall return to the historical school later. So far as specifically international law is concerned, the expression does not seem to have been used by any of the so-called “fathers” of the subject, and the earliest use of the concept — though not the precise phrase — that I have found in this context is in Rivier in 1896.305 The idea was quickly adopted by many others, however.306 It is quite common to dress up legal maxims and the like in Roman robes in order to give them an air of respectability, though only too often the toga can muffle thought. In this case, the robes seem not even to be genuine, and it is submitted that the linguistic incoherence of the phrase opinio juris sive necessitatis reflects a certain incoherence of the thought behind it. 302 F. Gény, Méthode d’interprétation et sources en droit privé positif (2nd ed., 1919), pp. 319– 324, 360. 303 P. Guggenheim, “Contribution à l’histoire des sources du droit des gens”, 94 Recueil des cours (1958), p. 1 at p. 52; id., “L’origine de la notion de l’opinio juris sive necessitatis comme deuxième élément de la coutume dans l’histoire du droit des gens”, in Hommage d’une génération de juristes au Président Basdevant (1960), p. 258. 304 Cf. D.C.F. Glück, Ausführliche Erläuterung der Pandekten (1797), p. 461; G.F. Puchta, Das Gewohnheitsrecht (2 vols., 1828 and 1837), Vol. ii, Book 3, Chap. ii, pp. 29–30 and 33–39; F.C. von Savigny, System des heuitgen Römischen Rechts, i (1840), pp. 32–34. Compare the rather similar school of so-called “objective law”: e.g. L. Duguit, Traité de droit constitutionnel (2nd ed., 1921), i, pp. 65 and 73–74; G. Scelle, “Règles générales du droit de la paix”, 46 Recueil des cours (1933), pp. 327, 431–432 and 432–436. R.M. Walden, “The Subjective Element in the Formation of Customary International Law”, 12 Israel LR (1977), p. 344 at p. 358, n. 47, is correct when he states that Allen’s attribution of the concept of opinio necessitatis to Blackstone (repeated by C. Parry, The Sources and Evidence of International Law (1965), p. 61) is mistaken. 305 A. Rivier, Principes du droit des gens, i, p. 35. But there are perhaps earlier hints of this in Savigny, System des heutigen Römischen Rechts (1840), i, pp. 32–34. Cf. J. Kosters, “Les fondements du droit des gens”, iv Bibliotheca Visseriana (1925), p. 115. 306 See Accioly, Tratado de Direito Internacional Publico, pp. 38–40.

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What does opinio juris sive necessitatis mean, or what should it mean, in the context of international law? At this point, it may be helpful to offer a provisional working translation or definition. It is a belief in the legally permissible or obligatory nature of the conduct in question,307 or of its necessity. (We shall return later to the part of this definition which relates to necessity.) On the subject of belief, it may also be convenient at this juncture to refer to an observation made by Virally,308 and echoed by D’Amato309 and Akehurst,310 amongst others. We cannot know what States believe, it is said. First of all States, being abstractions or institutions, do not have minds of their own; and in any case, since much of the decision-making within Government takes place in secret, we cannot know what States (or those who direct or speak for them) really think, but only what they say they think. There may be something of an exaggeration here. In some instances, we can discover their views because the opinions of their legal advisers or Governments are published.311 Furthermore, I shall suggest later that the express or presumptive understandings and beliefs of States about the rules of international law are in certain circumstances relevant. But, with these qualifications, Virally’s observation is a useful one. We should not speak of a psychological element in custom, but of a subjective one, for it is more a question of the positions taken by the organs of States about international law, in their internal processes312 and in their interaction with other States, than of their beliefs. This viewpoint is not unrelated to the wellknown observation of McDougal that the customary process is one of claim

307 The bipolar nature of legal relations means that if X has a legal right (e.g. to compensation), Y will have a duty to pay; and if X has a liberty (e.g. of innocent passage through Y’s territorial sea), Y will have no right to complain and an obligation not to interfere with that passage. These ideas can be expressed in terms of obligatoriness and permissibility. See supra, footnotes 61–62 and accompanying text, and Chap. i, Sec. 6. [Editors’ note: not included in this Anthology]. It is hard to follow MacGibbon’s suggestion (“Customary International Law and Acquiescence”, 33 British Year Book of International Law (1957), p. 115 at pp. 127–128) that the role of opinio juris should be limited to claims to positive conduct. 308 M. Virally, “The Sources of International Law”, in M. Sørensen (ed.), Manual of Public ­International Law (1968), p. 116 at pp. 133–134. 309 The Concept of Custom in International Law, pp. 35–39. 310 “Custom as a Source of International Law”, 47 British Year Book of International Law (1974– 1975), p. 1 at pp. 36–37. 311 Though admittedly this is done only on a partial and selective basis and often only long after the event; and though it must also be conceded that the opinion of a Government legal adviser does not invariably become that of the Government. 312 Including the communications of Governments to national legislatures and courts, and the express or implicit prises de position about rules of international law by national courts and legislatures in the exercise of their functions: see supra, Chap. ii, Secs. 1 and 2. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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and response, where the legal claims and the responses concerned need not be express, but implicit in the conduct of those concerned. Armed with our working definition, we can now return to the question: What part does or should the notion of opinio juris sive necessitatis play in the context of customary international law? To begin with, it is important to appreciate that the phrase has been used in different contexts to express different things. Some of these usages may be perfectly comprehensible, or even correct, in their own context: however, ­confusion and error arises when a concept which makes perfectly good sense in one framework is moved to another, or when the same concept is made to perform many different types of task. (a) The concept of opinio juris may be used to try to explain why the substantive rules of a legal system are as they are, and not something different. This brings us back to the so-called historical school of jurisprudence. In the nineteenth century, Savigny and his colleagues and followers wanted to explain why, say, German law was (and should be) different from French law, Italian law, and so on. What they said was that law — ­especially customary law — represented the national spirit, the Volksgeist of the particular people concerned. Customary rules were not the result of a formal, law-making process: they just emerged out of the juridical consciousness of the people, and the actual practice was but the manifestation of this opinio juris.313 This product of Romantic nationalism has long been discredited as a legal theory; and it seems particularly inappropriate to public international law, where no Volk with common traditions and culture yet exists, and where customary rules these days do not just grow up, but come into being through the deliberate conduct of the principal actors, for the most part. (b) Somewhat akin to the historical school’s approach is the idea that customary law comes about because of the social necessity of a practice — what I might term an opinio necessitatis.314 As an explanation of why ­customary rules come about, there is no doubt something in this idea. For instance, in issuing the Truman Proclamation, the United States invoked a sort of opinio necessitatis. It claimed that it was “reasonable and just” for

313 Cf. Ago’s “spontaneous law”, supra, accompanying text footnote 15. 314 There are several variants of this approach. Cf. e.g. L. Duguit, i, Traité de droit constitutionnel (2nd ed., 1921), p. 65; G. Scelle, “Règles générales du droit de la paix”, 46 Recueil des cours (1933), p. 327 at p. 434; J. Basdevant, “Règles générales du droit de la paix”, 58 Recueil des cours (1936), p. 471 at p. 516; Judge Negulesco’s dissenting opinion in the European Commission of the Danube case, PCIJ, Series B, No. 14 (1927), pp. 84, 105 and 114. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the coastal State to have jurisdiction and control over adjacent continental shelf resources, since its co-operation was needed for them to be conserved or exploited; since the shelf might be regarded as an extension of its land-mass; since these resources might be an extension of a pool or deposit already lying within its territory; and since self-protection made it necessary for the coastal State to keep a close watch over offshore activities.315 This was not the expression of a belief in the existence of a legal necessity imposed by current law: it was, rather, an assertion of political necessity and reasonableness. But as a means of attempting to persuade other States to accept this new claim, it was prudent to proceed in this manner. In short, opinio necessitatis in this sense316 can play a part in the law-creating process, even though extra-legal necessity and reasonableness are not themselves sufficient to make law. It is, however, important to reiterate that an alleged rule is not law just because it is (alleged to be) socially necessary: to borrow a phrase from the ancient cartographers, “here be lions” in the shape of natural law317 and policy-oriented jurisprudence.318 (c) Reference to the intentions, expectations or understandings of States is of some use in helping us distinguish rules which are legally obligatory from those which are not. The need to draw such a distinction is not confined to custom, but found in the law of treaties as well. It is well known that the Final Act of the Helsinki Conference on Security and Co-operation in Europe was not intended to be legally binding as such.319 And there are in fact many other examples of non-binding international agreements.320 But it is undoubtedly for the purpose of distinguishing usages which generate customary rules from those that do not that the subjective element (though not necessarily opinio juris as normally understood) is most useful. The Court itself referred to this function in the North Sea Continental Shelf cases.321 It will be helpful, however, to analyse how it works rather more closely. In doing so, I suggest that it is useful to think of the subjective element as a means of distinguishing, not so 315 13 Dept. of State Bulletin, No. 327 (1945), p. 485. 316 Probably not one intended by the originators of the phrase. 317 For a thoughtful account of a possible limited return to a natural law approach, cf. C. Dominicé, “Le grand retour au droit naturel en droit des gens”, in Mélanges en l’honneur de Jacques-Michel Grossen (1992), p. 399. 318 T. Gihl also rightly points out that by no means all new customary rules come into being out of a common sense of necessity or reasonableness — power politics also plays a part: 1 Scandinavian Studies in Law (1957), p. 51 at p. 81. 319 14 Int. Legal Materials (1975), p. 1292. 320 See e.g. A. Aust, “The Theory and Practice of Informal International Instruments”, 35 International and Comparative Law Quarterly (1986), p. 787. 321 ICJ Reports 1969, p. 3 at p. 44, para. 77.

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much (or only) one class of rules from another, but those instances of State practice which count towards the formation of law from those which do not. (i) First, there are those practices which, although regularly observed, might said be to fall into a class of actions which seem, by their character, incapable of giving rise to customary obligations. For example, sending condolences on the death of a head of State. (It might seem inevitable that these rules of etiquette should not be considered legally obligatory; but given the importance which has been attached to protocol in other times and other societies, it is not entirely axiomatic.322) If forced to explain why these practices amount merely to comity (i.e. are not legally binding), we would probably say that it is generally believed in the international community that they do not give rise to legal obligations (a sort of opinio non juris), or — to put it differently — no-one claims performance of these duties as a matter of legal right. But the truth is that the absence of legal obligation in such a context is today regarded as selfevident, just as, in municipal law, social invitations are treated as self-evidently not a matter for legal regulation.323 These practices do not count as legal precedents, then. (ii) Secondly, there are cases where the usage is of such a nature that it could perfectly well give rise to legal rights and duties, but it happens not to do so because of a common belief that such is the case (again, the opinio non juris) or, to put it differently, because such claims are never made. A frequently cited example is the exemption from customs duties of goods imported for the personal use of diplomats. Article 36 of the Vienna Convention on Diplomatic Relations 1961 shows that this exemption is perfectly capable of being the subject of legal regulation; but before the adoption of the Convention the privilege was regarded as being merely a matter of comity.324 So here, too, the practice is not, from a legal point of view, precedential.

322 R. Quadri, “Cours général de droit international public”, 113 Recueil des cours (1964), p. 237 at p. 328, seems mistaken when he says that the distinction between legal usages and rules of mere comity depends on the relative importance of the subject-matter. 323 This seems to answer Akehurst’s point, 47 British Year Book of International Law, p. 34, that States do not normally issue disclaimers about the obligatoriness of this kind of conduct. 324 (1958-ii) Yearbook of the International Law Commission, pp. 182–184. Reference may also be made here to the observation of the ICJ in the Nicaragua (Merits) case, to the effect that precedents ostensibly contrary to the principle of non-intervention should not count if the evidence suggested that States were not so acting under a claim of right; and a fortiori if they accept the legal rule, but seek to justify their conduct on other grounds: ICJ Reports 1986, p. 14 at p. 98, para. 186, and p. 109, para. 207.

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(iii) Thirdly, there are the disclaimer cases. Here we have acts of State practice which would be perfectly capable of creating precedents which could in the future be invoked against the State performing the act or against others, but for an accompanying statement of the Government concerned that it is, for example, making payment ex gratia or without prejudice. Here, though it is possible to describe this phenomenon in terms of belief, the language of claims (and the response to them) is even more suitable: indeed, the natural term to describe this type of conduct is disclaimer. The disclaimer prevents what would otherwise be a legal precedent from counting as one. (iv) Fourthly, there are those cases where the conduct in question is ambiguous; here again recourse is had (not least by the International Court) to the subjective element, often (somewhat unhelpfully) couched in terms of opinio juris, in order to explain why the conduct does not count as a precedent. (α) One such case is omissions. I argued in Chapter II that omissions are perfectly capable, if they are sufficiently unambiguous, of constituting acts of State practice in the form of abstention.325 But even though it is possible for such omissions to count, in many cases the evidence is in fact ambiguous. Take, for example, the “Lotus” case.326 There, France argued that the rarity of prosecutions for collisions on the high seas (other than by the flag State of the ship on board which the wrongful act took place) was evidence of an obligation not to institute such prosecutions. The Permanent Court disagreed, on the ground that there was no evidence of a “conscious[ness] of having a duty to abstain”. What it seems to have been saying (or should have said) is this. There are all sorts of possible reasons why a State might refrain from prosecution in such a case. One possibility, admittedly, is that customary international law prohibits it. But there may be other reasons: for example, lack of jurisdiction under municipal law, lack of interest, or a belief that the courts of the flag State are a more convenient forum. In the absence of evidence that those who refrained from prosecuting did so by reference to an international legal rule — not necessarily an existing one, but one to whose establishment they were contributing — their ­abstentions simply did not count as precedents. In other words, the conduct was too ambiguous in the absence of evidence that the

325 Supra, Chap. ii, Sec. 2. [Editors’ note: not included in this Anthology]. 326 PCIJ, Series A, No. 10, at p. 28. Cf. the dissenting opinion of Judge Nyholm, pp. 59 and 60.

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reason why the States refrained was connected with their position (claims or responses) about what international law requires. Similarly, in its recent advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court rightly decided that it could not deduce an opinio juris that the use of nuclear weapons was under all ­circumstances illegal from the fortunate fact that they had in fact not been used since 1945.327 (β) Omissions are not the only kind of ambiguous conduct, however. Another occurred in the North Sea Continental Shelf cases,328 which I shall examine in greater detail in Chapter IV. There, the alternative argument of Denmark and the Netherlands was that, even if Article 6 of the Geneva Convention on the Continental Shelf 1958 did not embody pre-existing customary law or crystallize an emerging rule, State practice had grown up since 1958 along the same lines as the treaty norm, so that a new rule of customary international law had come into being. In support of this contention they referred to a number of bilateral treaties whereby the continental shelf had been apportioned on the basis of equidistance. The International Court of Justice rejected this contention, relying once again (amongst other things) on the absence of evidence of opinio juris.329 What the Court was apparently saying was the following. Yes, one of the conceivable reasons why States might decide to delimit their overlapping continental shelf on the basis of equidistance is the existence of a legal obligation (established or evolving) requiring them to do so. But there are other possible explanations. For example, to

327 ICJ Reports 1996, p. 226 at pp. 253–254, paras. 64–67. There was also evidence that States were in fact deeply divided on the legality of such use. 328 ICJ Reports 1969, p. 3. See text accompanying footnote 163, supra. [Editors’ note: not included in this Anthology]. 329 The Court found that over half of the States which had delimited on the basis of equidistance were already, or were shortly to become, parties to the Geneva Convention on the Continental Shelf. Their practice could therefore be discounted, as they had a treaty obligation so to act. It went on: “As regards those States, on the other hand, which were not, and have not become parties to the Convention, the basis of their action can only be problematical and must remain entirely speculative… [N]o inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law… The essential point in this connection … is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris.” (Ibid., at pp. 43–44, paras. 76–77.)

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divide a resource equally is an obvious common-sense way of settling a dispute over entitlement; but just because two States decide to “go halves”, this does not necessarily mean that either of them thought that this was the limit of its entitlement, or that it was obliged to determine the matter in that way. The conduct, in short, was ambiguous, and in such cases it will only be if there is an accompanying opinio juris or, to put it in different words, an unambiguous claim and response based on international law, that the conduct in question will count as a precedent.330 Another instance of positive, yet in a sense ambiguous, conduct is to be found in the Nicaragua (Merits) case.331 The Court was considering the principle of non-intervention, and had decided that it was well established in customary law and, in particular, accepted by the United States (which was being accused in the present case of unlawful intervention). It was, however, confronted with the following problem: There have been in recent years a number of instances of foreign intervention for the benefit of forces opposed to the government of another State. The Court … has to consider whether there might be indications of a practice illustrative of belief in a kind of general right for States to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State, whose cause appeared particularly worthy by reason of the political and moral values with which it was identified. For such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention. 330 Cf., to similar effect, the Court’s treatment of arrangements made for compensation for the nationalization of foreign-owned property in the Barcelona Traction case (Second Phase), ICJ Reports 1970, p. 3 at p. 40, para. 61. The North Sea Continental Shelf cases offer us another example of ambiguity. Before it came to consider whether a new rule of customary international law had come into being, the ICJ had to consider whether Article 6 of the Convention on the Continental Shelf codified an existing customary rule making equidistance the starting point for continental shelf delimitation. The article might have done so, but not necessarily — yet another type of ambiguity. To resolve it, the Court looked at what the drafters of the Convention, and particularly the International Law Commission, believed to be the state of existing customary law. And, as we shall see in the next chapter [Editors’ note: not included in this Anthology], the Court rejected the contention on the grounds that the Commission had included the provision as a measure of progressive development of the law, rather than as an expression of what it believed to be lex lata or inherent in the concept of the continental shelf: ibid., pp. 32–36, paras. 47–56. 331 ICJ Reports 1986, p. 14 at pp. 108–109, paras. 206–208.

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Pausing there, the Court was, in short, confronted by an apparently well-­ established rule (of non-intervention), seemingly accepted even by the State accused of violating it, but also a limited amount of apparently inconsistent practice. If the latter had “counted”, the Court would have had to conclude either that the general rule did not in fact exist (because, as we have seen, ­inconsistent practice does not constitute customary law), or that there were legal exceptions to the general rule. But the Court found a way of dealing with this inconsistent practice. After quoting the North Sea Continental Shelf cases’ insistence on evidence of opinio juris,332 it went on: The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend toward a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law. In particular, as regards the conduct towards Nicaragua which is the subject of the present case, the United States has not claimed that its intervention, which it justified in this way on the political level, was also justified on the legal level, alleging the exercise of a new right of intervention regarded by the United States as existing in such circumstances. As mentioned above, the United States has, on the legal plane, justified its intervention expressly and solely by reference to the ‘classic’ rules involved, namely, collective self-defence against an armed attack. Nicaragua, for its part, has often expressed its solidarity and sympathy with the opposition in various States, especially in El Salvador. But Nicaragua too has not argued that this was a legal basis for an intervention, let alone an intervention involving the use of force.

332 The passage is cited in the text accompanying footnote 262 supra. [Editors’ note: not included in this Anthology].

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Thus, the Court was able to hold that the inconsistent behaviour did not “count” where there was no claim of right.333 The uses of opinio juris which have been identified so far334 essentially concern the disqualification of certain forms of State practice as rule-creating precedents, because of an opinio non juris or a disclaimer, or because of the ambiguity of the conduct in question. But these are all special, and comparatively unusual, cases. In particular, they do not tell us whether, in the more typical instance of an unambiguous, constant and uniform practice of several States, unaccompanied by disclaimers or the like, and unopposed by others (including those directly affected by the practice), it is necessary to demonstrate some sort of opinio juris. Of course, in such a case it might be relatively easy to infer the existence of the subjective element from the practice, if one so desired. But this begs the question why it is necessary to look for it at all. In asserting the necessity of a subjective element in custom, Brownlie correctly says “The essential problem is surely one of proof, and especially the incidence of the burden of proof.”335 He goes on to observe that, in the practice of the ICJ there are two types of approach. On the one hand, “in many cases the Court is willing to assume the existence of an opinio juris on the basis of evidence of a general practice, or a consensus in the literature, or the previous determinations of the Court or other international tribunals”. I shall return to this general point shortly; suffice it to say that the observation is broadly correct, except that often it is less a question of the Court’s assuming the existence of opinio juris as of its simply not mentioning it, which is not necessarily the same thing. Brownlie goes on to say that in a significant minority of cases the Court has adopted a more rigorous approach and has called for more positive evidence of the recognition of the validity of the rules in question in the practice of states. The choice of approach appears to depend upon the nature of the issues (that is, the state of the law may be a primary point in contention), and the discretion of the Court. He then goes on to quote the passages from the “Lotus”, North Sea Continental Shelf and Nicaragua (Merits) cases to which I have just referred. He apparently 333 Whether we classify the behaviour inconsistent with the principle of non-intervention as ambiguous, or as analogous to cases of disclaimer (because there was an absence of a claim of right where one might have been expected) is of little importance. 334 Leaving aside dubious explanations along Savignian lines or appeals to social necessity and suchlike. 335 Principles of Public International Law, p. 7.

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has some difficulty in explaining the Court’s insistence on opinio juris in the first and third of these. I hope that I have offered a consistent and coherent explanation of why these cases were treated differently from others in which opinio juris was not mentioned, or where proof of it was not required.336 To recapitulate, then, whilst some concept like opinio non juris may be a useful tool in helping us to decide that certain instances of conduct do not count as legally relevant precedents, these are rather exceptional cases, and it has still to be determined whether the concept of the positive opinio juris has a wider utility. In one limited, and almost trivial sense, the answer seems to be “yes”. We might invoke opinio juris as the explanation of why States conform to an established customary rule. If, for example, a new State instructs its military aircraft to respect the airspace of others in time of peace, we may, if we wish, explain this in terms of its belief that it is obliged to do so. It should, however, be noted that this explanation is in a sense superfluous: all we are really saying is that the State follows the practice because it is the law. But this would be true of the observance of the State’s treaty obligations too: it obeys the law because it is the law. Here the concept of opinio juris is being used as part of a general theory of legal ­obligation — and possibly not a very useful part, because it seems tautologous. Courts, and indeed States, may also find it useful to point out in particular cases that a particular rule is generally accepted, without having to go through all the steps necessary to demonstrate why it is has become law. In the same way, a domestic judge in an uncodified system can take it for granted that, say, parties to contracts are normally required to fulfil them, without having to prove the rule’s legal pedigree. But we probably do not need elaborate theories of opinio juris to account for this. But it should be noted that this last instance concerned cases of established customary law. The concept of opinio juris, as traditionally formulated in terms of the recognition of a right or obligation, is definitely unhelpful when it comes to the creation of new rules. For if the practice is a new one involving a departure from (and breach of) previous law, as with the Truman Proclamation regarding the continental shelf, how can the State concerned possibly entertain the opinion that it is acting in according with the law? As Kelsen pointed out, 336 It is not, on this analysis, a matter of “the discretion of the Court”. Neither is it simply that “the state of the law may be a primary point in contention”, for there have been other cases where whether something was or was not a rule of customary law has been in contention without the issue of opinio juris being seriously examined. These are cases where the issue was more one of whether the objective element was ­present but it may be significant that, in most of them, the Court did not trouble to go on to search for the subjective element.

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in theory one might try to circumvent this difficulty by saying that the State is acting in error;337 but this is plainly improbable in the case of the United States in that instance, and in most other cases too. Kelsen himself dismissed the suggestion as implausible,338 though other supporters of the opinio juris approach have from time to time been tempted by it.339 The truth is that the State which introduces a new practice has in these cases no belief that its conduct is permitted or required by existing law, and neither have the first States to respond positively or negatively to its conduct.340 No opinio juris, then, but a claim and the acceptance of a claim — express in the case of the Truman Proclamation, and implicit in some other instances where States simply act by initiating conduct or by responding to the conduct of others.341 337 A difficult and controversial passage in the Digest, attributed to Celsus, raises this issue: D.1.3.39. 338 “Théorie du droit coutumier”, 1 Revue internationale de la théorie du droit (NS) (1939), p. 253 at p. 263. 339 Stern attempts to resurrect this notion by saying that “Il suffit parfois de croire à l’amour pour qu’il existe”: “La coutume au cœur du droit international”, in Mélanges offerts à Paul Reuter: Le droit international, unité et diversité, p. 487. But her charming analogy is misleading: States are (in this regard at least) far less prone to self-deception than lovers. 340 As Judge Lachs observed in his dissenting opinion in the North Sea Continental Shelf cases, to postulate otherwise is to resort to a legal fiction, and to require a conviction that the conduct is already a matter of legal obligation is to deny the possibility of developing new rules of customary law: ICJ Reports 1969, p. 218 at p. 231. It is apparently because of this circularity that § 1–205 of the American Uniform Commercial Code has jettisoned any reference to opinio juris in relation to commercial customary law in favour of: “A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question”: R. Goode, “Usage and its Reception in Transnational Commercial Law”, 46 International and Comparative Law Quarterly (1997), p. 1 at pp. 8–10. 341 It is important to notice that the proclamation of 1945 was not a claim in vindication of an undoubted existing right — for example, the United States’ undisputed sovereignty over the Florida Keys. It was more in the nature of a political claim, a claim de lege ferenda. For perfectly understandable reasons, people who want the law changed often use the same sort of language as those asserting clearly established legal rights. They speak in terms of “should” and “must” because non-legal rules, such as those of morality, use the same terminology. Moreover those who put forward moral or political claims often find it convenient to borrow the language of the law, and speak of “the rights of animals” or the “right to development”, even in contexts where the legal system currently accords no such rights. Even in municipal society, it is far from unknown for people to assert legal rights against other parties without having much confidence that the law supports them. And in a relatively unstructured society, like that of States, where one way of changing the law is to break or bend the rules (so long as others accept it), it is in the innovator’s interest not to be too overt about its deviation, but rather to put forward its claim in terms redolent of lex lata, rather than lex ferenda. It is simply more diplomatic.

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Some of the more sophisticated proponents of the belief approach try to rescue the idea of opinio juris from the apparent contradiction that the innovator cannot believe that its conduct is in accordance with the law by, in effect, trying to retain the same language (opinio juris) whilst in fact differentiating the type of subjective element in play at the formative stage of a customary rule from that which obtains when the custom is mature.342 Put simply, the thesis is that, at the earlier stage, it is simply a matter of the “pioneers” believing that it would be desirable that x were the rule;343 at the later stage, the (general) belief is that x is the law. As a factual description of the process by which a customary rule is built up, there is nothing wrong with this. What is, however, unhelpful is to try to use opinio juris to cover two quite distinct concepts and two distinct processes.344 It is false to the origins of the expression: as we have seen, the historic school from whom it originated had a different conception. It is also false to the meaning normally ascribed to the term, because it is conceded that the innovating State does not have a belief that the rule already exists in law. And above all, to use the same term for two different things is imprecise, unscientific and confusing. One has only to look at the use of the term by the International Court, and the response to its pronouncements by the commentators, to confirm this. Take the well-known quotation from the North Sea Continental Shelf cases cited at the beginning of this chapter.345 Having decided that the 1958 Geneva Convention on the Continental Shelf neither evidenced existing pre-customary law nor crystallized an emerging rule, the Court was faced with the alternative plea that a new customary rule had come into being subsequently. In support of this, Denmark and the Netherlands had relied heavily on the practice of some States after 1958 in delimiting according to the principle (technique) of equidistance. It was in this context that the Court said: even if these instances … were much more numerous than they in fact are, they would not, even in the aggregate, suffice to constitute the opinio juris; — for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, 342 E.g. J. Finnis, Natural Law and Natural Rights (1980), pp. 238–245; B. Cheng, “Custom: The Future of General State Practice in a Divided World”, in R.St.J. Macdonald and D. Johnston (eds.), The Structure and Process of International Law (1983), p. 515; M. Bos, A Methodology of International Law (1984), p. 223. 343 What I have described above as opinio necessitatis. 344 I do not of course dispute that these are the grey areas between the two, especially when the rule is in the process of attracting a growing number of adherents. 345 P. 251.

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but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris sive ­necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. Now logically, to talk of a feeling of complying with an existing obligation when one is considering whether new conduct is capable of creating a new rule is a contradiction. What, I suggest, the Court was really trying to say was that these pieces of practice did not count towards the creation of a new rule because there was no evidence of a claim of right or its acceptance by the respective parties to these bilateral agreements etc. Using tags like opinio juris simply adds to the confusion. If recourse must be had to a subjective element,346 the term opinio juris should be confined to cases where there is a widespread opinion that something is (already) the law (i.e. the customary rule is “mature”). If the expression is used in the context of the creation of rules347 then, pace Finnis, Cheng, Bos and others, it does risk the circularity that they seek to avoid.348 Once again, the same function can be better served by the use of concepts like “claim and response”. Thus, we have found that opinio juris is of only limited utility. When properly explicated, it provides a reason — if one is needed — why certain types of potential precedent do not count, though these cases are better understood if different expressions, such as “claim” and “response”, are used. We have also seen that it provides a somewhat tautologous explanation of obedience to established customary rules. But it does not provide a very helpful account of the creation of these rules. In this regard, it is in a sense the mirror image of the voluntarist approach, which, we have seen, fairly adequately explains the inception of the process by which new rules are created, but does not really help us understand obedience to established law, nor how it is that customary rules come to bind non-participants. Both approaches offer a partial, but not a complete, solution.

346 Which I shall suggest is not generally necessary: see infra, Sec. 4. 347 Or their modification, as opposed to their application. 348 Accordingly S. Sur, La coutume internationale, pamphlet 2, p. 1, argues that opinio juris relates to the demonstration of the existence of the customary rule, not to its formation.

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809

A Synthesis or an Alternative Hypothesis?

Given that both the voluntarist and the opinio juris approaches have their deficiencies and that each offers at best a partial explanation of the creation and existence of customary rules, it may at first sight seem tempting to attempt a synthesis. (Parenthetically, we may observe that, if a synthesis of the two approaches is desired, this would, as it happens, be consistent with the words “a general practice accepted as law” in Article 38 (1) (b) of the Statute. The word “accept” has two different senses: it can mean choosing a particular state of affairs (e.g. accepting a job) or it can mean simply acknowledging a state of affairs (“I accept that death is inevitable”). So, here, one might say that in some cases the “acceptance” would be consent to a rule, and in others an acknowledgment that something is already the law (opinio juris) — an acknowledgment, incidentally, that need not come from States alone, but could emanate from a tribunal, for instance.349) By way of synthesis, it could be suggested with some plausibility that, whilst the voluntarist thesis is the better approach to the question of the formation of  customary rules, the one which emphasizes belief better explains why ­mature customary rules are observed.350 As we have seen, it can be helpful to distinguish between different stages in the formation of customary law:351 but the approach is hardly a panacea. For one thing, custom-creation and custom-application are not entirely alternative categories: the customary process, as I pointed out in Chapter I, is a continuing one, and every act which conforms to an established practice helps to strengthen it, and every act which violates it helps to undermine it.352 In other words, at the mature stage of a customary rule, practice is constitutive as well as evidential.353 Another objection to a synthesis or compromise solution is that, as has been argued above, individual consent is a sufficient (even if 349 I am not suggesting that this ambiguity in the Statute was deliberate. 350 Cf. Fitzmaurice, “The General Principles of International Law Considered from the Standpoint of the Rule of Law”, 92 Recueil des cours (1957), p. 1 at pp. 98–99 and 103; MacGibbon, 33 British Year Book of International Law, p. 115 at p. 137. 351 For elaborate forms of stages analysis, cf. e.g. H. Meijers, “How is International Law Made — the Stages of Growth of International Law and the Use of Its Customary Rules”, 9 Netherlands Yearbook of International Law (1978), p. 3; G.J.H. van Hoof, Rethinking the Sources of International Law (1983); Bin Cheng, “Custom: The Future of General State Practice in a Divided World”, in R.St.J. Mcdonald and D.M. Johnston (eds.), The Structure and Process of International Law (1983), p. 515. 352 Unless the violation is objected to, in which case the violation is in a sense neutralized. If the objection is successful, the rule is actually strengthened. 353 Cf. P. Heilborn, “Les sources du droit international”, 11 Recueil des cours (1926), p. 1 at p. 13.

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not a necessary) basis of individual obligation at all stages. Thirdly, and more importantly, the problem is not so much the initiation of a customary rule or the reasons for obeying it when it is mature. Rather, the difficulty is with the intermediate stage. After a limited number of important actors have initiated a practice (whether by originating it, imitating it, or “genuinely” acquiescing in the sense in which I have already defined this354), what is it that effects the transformation (which undoubtedly and not infrequently occurs) from particular law to general law binding even the passive bystander? As has been argued above, to say that the magic ingredient is consent is possible only by the use of fictions and presumptions which in fact negative (at least to some extent) the idea of consent. And yet, at this intermediate stage, it may well be premature to speak of a belief in the rule’s already being generally obligatory — opinio juris. One way of dealing with this difficulty of the intermediate stage is to ignore it. Often, as I have already pointed out, the “consumer” of legal rules does not need to know when the fruit ripened, but simply whether it is ripe when he comes to eat it, or is still too hard or sour to eat. Indeed (to change the metaphor), to ask a follower of fashion at what exact moment something became the mode is in a sense to miss the point of informal rule-systems.355 Secondly, 354 A sense which excludes those States who neither manifest their acquiescence nor, being directly affected by a practice, can be deemed to acquiesce. 355 The efforts of J. Crawford and T. Viles to determine the state of international law on the day after the Truman Proclamations on the continental shelf and coastal fisheries highlight (as they intend) the difficulty of determining the exact status of customary rule at certain (but, it is submitted, not all) stages of its evolution: “International Law on a Given Day”, in Völkerrecht zwischen normativen Anspruch und politischer Realität: Festschrift für Karl Zemanek zum 65 Geburtstag (1994), p. 45. It seems, however, that they exaggerate some of the difficulties, and that the elaborate investigation does not ultimately advance the discussion of the problem of opinio juris beyond the point at which it was left by previous writings. Thus, to say (at p. 67) that the United States’ opinio juris about its new claim to the continental shelf was not that it already was the law, but simply that it should become the law in the future is, as we have seen, a known response to the question how it could have believed that what it was doing was permissible under existing law, when manifestly it was not. But this is rather far from the normal signification of the phrase opinio juris, and in addition begs the question why we need to have recourse to the notion of opinio juris at all in such a case. Neither is it helpful to invoke the maxim ex injuria jus non oritur in order to cast doubt on how the Truman Proclamation could have given rise to new law (ibid.). The existing law of the sea on this subject (as on most others) was jus dispositivum, which means that States were free both to vary it by treaty and to replace it with new customary rules by means of recognition, acquiescence and imitation. Furthermore, to say that how a court might have answered a question about the continental shelf on the day after the Proclamation “would have depended, inter alia, on the wisdom of the Court” seems a little vague, even if possible responses are suggested: are the authors saying that a court would have had a discretion, or simply that some judges are more

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it can be pointed out that, in practical terms, there is often little to choose between the two main theories. Whether or not an inactive State is regarded as being bound by a merely general opinio juris or by an individual consent which is presumed is perhaps a matter of taste. A further avoidance technique would be to emphasize the discretion of the judge in deciding on the existence and extent of the customary rule.356 There is undoubtedly some value in such an approach. And yet, judges are supposed (at least by the public) to apply the law, not make it; and, in any case, as already observed, the chances of a dispute coming before an international tribunal are, in the absence of compulsory jurisdiction, small. If no such tribunal is available, it is somewhat unsatisfactory (though perhaps realistic up to a point) to say that the question whether there is a customary rule is left entirely to the auto-interpretation of States.357 In short, neither an amalgam of the two interpretations of the subjective element, nor avoidance techniques, seem wholly to solve the problem. It is time, therefore, to consider a different approach. Contrary to the prevailing orthodoxy, I would submit that it is unnecessary, either in theory or (particularly) in practice, to establish the presence either of opinio juris or of consent, in most cases. It is of course true that the International Court has on several occasions solemnly said that opinio juris is one of the two elements of custom (the other being practice). But first of all, in most of these cases there was some ambiguity or other uncertainty in the practice, so that opinio juris was a necessary tool in resolving the uncertainty in those particular circumstances and in helping to establish why the apparent precedents did not count. This is the case with the omissions in the “Lotus” and Nuclear Weapons cases; the equivocal bilateral delimitation treaties in the North Sea Continental Shelf cases; and, in the Nicaragua (Merits) case, the superficially inconsistent practice relating to ­intervention — all of which I have just explained and shown to be special.358

adept at finding the right answer than others? They may also exaggerate the degree to which this question was an open one for the hypothetical court on the date selected: even in the light of the copious background material which they deploy, it is hard to see how any reasonable court could have upheld the United States’ claim before there had been any clear acceptance or concordant practice by other States, and when, in particular, the other party to the imagined litigation had not accepted it (ex hypothesi). 356 Cf. e.g. H. Lauterpacht, The Development of International Law by the International Court (1958), pp. 368–393; M. Sørensen, Les sources du droit international (1946), p. 24. 357 See further infra, Chap. vi. [Editors’ note: not included in this Anthology]. 358 Supra, Sec. 3.

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I have to concede that opinio juris did not play this role in the Continental Shelf (Libya/Malta) case,359 but the reference there seems to have had no particular significance. The Court pointed out that “the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States”, before going on to observe that, although it could not rely on the Law of the Sea Convention as such (it not being in force), the new treaty was still of some relevance (for reasons to be discussed in the next chapter). Nothing further was said about opinio juris and the reference to it seems to be no more than a ritual repetition of the usual “two elements” definition. That leaves only the Nicaragua (Merits) case, where there are references, other than the one just mentioned, to the two elements, the subjective one being described largely in terms of opinio juris.360 But in fact, in their context 359 ICJ Reports 1985, p. 13 at pp. 29–30, para. 27. 360 The key references to the need for the subjective element are the following: “183. [T]he Court has next to consider what are the rules of customary international law applicable to the present dispute. For this purpose, it has to direct its attention to the practice and opinio juris of States; as the Court recently observed: ‘It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them [citing the above-mentioned Libya/ Malta case].’ In this respect, the Court must not lose sight of the Charter of the United Nations and that of the [Organization of American States], notwithstanding the operation of the multilateral treaty reservation. Although the Court has no jurisdiction to determine whether the conduct of the United States constitutes a breach of those conventions, it can and must take them into account in ascertaining the content of the customary international law which the United States is also alleged to have infringed. 184. The Court notes that there is in fact evidence … of a considerable degree of agreement between the Parties as to the content of the customary international law relating to the non-use of force and non-intervention. This concurrence of their views does not however dispense the Court from having itself to ascertain what rules of customary international law are applicable. The mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary international law, and as applicable as such to those States. Bound as it is by Article 38 of its Statute to apply, inter alia, international custom ‘as evidence of a general practice accepted as law’, the Court may not disregard the essential role played by general practice. Where two States agree to incorporate a particular rule in a treaty, their agreement suffices to make that rule a legal one, binding upon them; but in the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris is confirmed by practice. 185. [I]n the present case, apart from the treaty commitments binding the Parties to the rules in question, there are various instances of their having expressed recognition of the validity thereof as customary international law in other ways. It is therefore in the

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the pronouncements in question are probably not fundamentally inconsistent with the thesis presented here. Insofar as the Court was relying on what it regarded as acceptance of the relevant principles as customary law by the Parties, it has already been submitted that individual consent is a sufficient condition for a practice to constitute a binding obligation for those who consent. Insofar as it believed that it had sufficient evidence to show that non-intervention and the non-use of force were widely acknowledged to be rules of customary law (in other words, mature rules), it was using opinio juris in its core sense, light of this ‘subjective element’ — the expression used by the Court in its 1969 Judgment in the North Sea Continental Shelf cases (ICJ Reports 1969, p. 44) — that the Court has to appraise the relevant practice.” (ICJ Reports 1986, p. 14 at pp. 97–98.) “188. The Court thus finds that both Parties take the view that the principles as to the use of force incorporated into the United Nations Charter correspond, in essentials, to those found in customary international law… The Court has however to be satisfied that there exists in customary international law an opinio juris as to the binding character of such abstention. This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (xxv) entitled ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’. The effect of consent to the text of such resolutions cannot be understood as merely that of a ‘reiteration or elucidation’ of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves… It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule (or set of rules), to be thenceforth treated separately from the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter.” (Ibid., pp. 99–100.) “202. Expressions of an opinio juris regarding the existence of the principle of nonintervention in customary international law are numerous and not difficult to find. Of course, statements whereby States avow their recognition of the principles of international law set forth in the United Nations Charter cannot strictly be interpreted as applying to the principle of non-intervention … since this principle is not, as such, spelt out in the Charter. But it was never intended that the Charter should embody written confirmation of every essential principle of international law in force. The existence in the opinio juris of the principle of non-intervention is backed by established and substantial practice…” (ICJ Reports 1986, p. 106.) “207. In considering the instances of [foreign intervention in support of forces opposed to their Government], the Court has to emphasize that, as was observed in the North Sea Continental Shelf cases, for a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis (ICJ Reports 1969, p. 44, para. 77).’” (Ibid., pp. 108–109.)

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as a means of dispensing itself from the necessity of laboriously examining the steps by which the rules had been established. And insofar as it used the concept of opinio juris to explain why certain apparent departures from the non-intervention rule did not really undermine it, because the purported justifications were not based on exceptions to, or the non-existence of, the principal rule, I have already characterized this as one of those special cases where opinio non juris, so to speak, has a useful part to play in helping us to determine what practice does not count towards the formation of custom — or, to put it differently, what is being claimed in a legal context.361 It also seems right to point out that the Court’s handling of custom in the Nicaragua case has been criticized, with varying degrees of severity, both in separate and dissenting opinions, and in the literature.362 Leaving these rather special cases aside, we find that, where there is a well-established practice, the Court and other international tribunals, not to mention States themselves, tend to conclude that there is a customary rule without looking for proof of opinio juris (or any other subjective element), whether individual or general, at any rate overtly. They have simply relied on 361 I have already dealt (supra, footnote 297) [Editors’ note: not included in this Anthology] with the controversial observation in paragraph 184 about the opinio juris of the parties needing to be confirmed by the general practice, and need only repeat that the issue there seemed to be more concerned with the proof of general law in the light of concessions of the parties — in other words, with an evidential point — than with the role of opinio juris as such. 362 I shall deal with some of these criticisms in Chapters iv and v. For the moment, the principal criticisms of the Court’s use of customary law can be summarized as follows. (1) It dealt unsatisfactorily with the question whether the customary law was “subsumed and supervened” by the Charter and other treaties. (2) Although clearly indicating that there are two separate elements of customary law, the Court appears to have “doublecounted” General Assembly resolutions and participation in treaties as evidence both of practice and of opinio juris. (3) It dealt unsatisfactorily with the question whether and how far participation in, and practice under, a treaty counts towards the formation or evidencing of customary law. (4) It is questionable whether some of the treaties and resolutions relied on by the Court in fact supported the conclusions it drew from them. See the s­ eparate opinion of Judge Ago, ICJ Reports 1986, pp. 181, 183–184; and the dissenting opinions of Judges Oda (pp. 212, 215–219), Schwebel (pp. 259, 302–306) and Jennings (pp. 528, 529–537). Criticisms in the literature include H. Charlesworth, “Customary International Law and the Nicaragua Case”, 11 Australian Yearbook of International Law (1990), p. 1; A. D’Amato, “Trashing Customary International Law”, 81 American Journal of International Law (1987), p. 101; Panel discussion, “The Jurisprudence of the Court in the Nicaragua Decision”, 81 Proceedings of the American Society of International Law (1987), p. 258; Thirlway, 61 British Year Book of International Law, pp. 46–50; and my “The Nicaragua Case and Customary International Law”, 26 Coexistence (1989), p. 85 (also reprinted in W. Butler (ed.), The Non-Use of Force in International Law (1989), p. 85).

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the practice.363 The cases are indeed legion in which these bodies have baldly asserted that such-and-such is the rule, without explicit reference to either of the famous two elements.364 If the rule in question is well established, the tribunal may (but may not) point out that it is accepted by States generally. But normally there is no real investigation into the subjectivities of States, either generally or individually. The subjective element really only comes into its own if evidence of consent or recognition on the part of the State(s) directly concerned happens to be forthcoming (consent being a sufficient condition); or if the circumstances are such as to suggest that the precedents should perhaps not count (because of the general context, ambiguity, or disclaimers); or (probably) where the State whom it is sought to bind tries to show that it was a persistent objector. In its broad outlines, the submission that the subjective element is superfluous is not a new one: it was made over fifty years ago by Kelsen,365

363 See e.g. Fisheries case, ICJ Reports 1951, p. 116 at p. 128 (low, as opposed to high, water mark the starting point for measurement of the territorial sea); Nottebohm case (Second Phase), ICJ Reports 1955, p. 4 at p. 23 (definition of nationality); Barcelona Traction case, ICJ Reports 1970, p. 3 at p. 42 (para. 70 — attribution of nationality to corporations); Continental Shelf (Libya/Malta) case, ICJ Reports 1985, p. 13 at p. 33 (para. 34 — exclusive economic zone now a part of customary law). 364 See, for example, the Corfu Channel (Merits) case, ICJ Reports 1949, p. 4 at p. 22 and ­Nicaragua (Merits) case, ICJ Reports 1986, 1986, pp. 14, 113–114 (para. 218) — elementary considerations of humanity; Nicaragua (Merits) case, ibid., p. 94 (para. 176, proportionality and necessity); ibid., p. 111 (para. 212, sovereignty over air space); Barcelona Traction case (Second Phase), ICJ Reports 1970, p. 3 at p. 32 (para. 33 — duties of host States). In several cases, the Court did not even expressly identify the rule as one of customary law. Similarly the arbitral tribunal in the aramco arbitration (Saudi Arabia v. Arabian American Oil Co.) (1958), 17 Int. Law Rep., pp. 117, 212 (“According to a great principle of public international law, the ports of every state must be open to foreign merchant vessels…” — citing only one author and a treaty by way of illustration). See, for example, the Corfu Channel (Merits) case, ICJ Reports 1949, p. 4 at p. 22 and Nicaragua (Merits) case, ICJ Reports 1986, 1986, pp. 14, 113–114 (para. 218) — elementary considerations of humanity; Nicaragua (Merits) case, ibid., p. 94 (para. 176, proportionality and necessity); ibid., p. 111 (para. 212, sovereignty over air space); Barcelona Traction case (Second Phase), ICJ Reports 1970, p. 3 at p. 32 (para. 33 — duties of host States). In several cases, the Court did not even expressly identify the rule as one of customary law. Similarly the arbitral tribunal in the aramco arbitration (Saudi Arabia v. Arabian American Oil Co.) (1958), 17 Int. Law Rep., pp. 117, 212 (“According to a great principle of public international law, the ports of every state must be open to foreign merchant vessels…” — citing only one author and a treaty by way of illustration). I gratefully acknowledge the contribution of Dr. Stephen Neff, of Edinburgh University, in identifying some of the instances cited in this and the preceding footnote. 365 1 Revue internationale de la théorie du droit (NS), p. 253.

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Guggenheim366 and Kopelmanas.367 But Kelsen368 and Guggenheim369 later recanted (at least to some extent), seemingly because of the need to find a criterion for distinguishing comity from law. Perhaps that recantation was premature and unnecessary. Provided that we allow a limited and exceptional role for the subjective element in the ways we have previously outlined, there seems to be no particular reason why it should be looked for in the standard, run-of-the-mill case. The ritual incantation at all times of the need for opinio juris (or some other subjective element) can become a substitute for thought. Practice which satisfies the criteria for the material element (density, representativeness, etc.) should be enough. This conclusion is consistent with the general theory of sources adumbrated earlier:370 it would be perfectly possible to have a rule which says that, if there is a sufficiently widespread practice (which is not disqualified in the ways I have described), then there is a general rule of law binding all States (except persistent objectors); and that if the State or States concerned have individually consented to the rule, they will in any case be bound thereby.371 Before concluding, I should briefly revert to a question I adumbrated earlier:372 how far is it desirable or possible to separate the objective and the subjective elements? In the first place, if the submissions I have made on the subjective element are correct, it follows that, very often, there is no problem: one simply investigates whether the requirements about the consistency, density and representativeness of the practice have been fulfilled, and it is only exceptionally that it is necessary to consider the subjective element. Of course, if it is present in the form of consent, so much the better. Whether or not this thesis is accepted, looked at more generally, notwithstanding the Court’s references to the need for two elements, it is not always easy to separate them. For one thing, as I suggested in Chapter II,373 statements are themselves a form of practice, albeit perhaps not a very strong one (unless in the form of a protest). And if we view the customary process as one 366 “Les deux éléments de la coutume en droit international”, in Les techniques et les principes du droit public: Etudes en honneur de G. Scelle (1950), i, p. 275. 367 “Custom as a Means of the Creation of International Law”, 18 British Year Book of International Law (1937), p. 127. 368 General Theory of Law and State (1945), p. 114. 369 Traité de droit international public, Vol. i (2nd ed., 1967), pp. 104–105. 370 Supra, Sec. 2. 371 Initially, probably only on the basis of reciprocity. 372 Chap. i, Sec. 7. [Editors’ note: not included in this Anthology]. 373 Chap. ii, Sec. 2. [Editors’ note: not included in this Anthology].

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of claim and response, an express claim by a State is both practice and the public “revelation” of its subjective attitude, whilst the same can be said, mutatis mutandis, for an act which contains an implicit claim that the State is acting in pursuance of a legal right or obligation. Indeed, for Cheng, who regards opinio juris as the only necessary component of custom, the function of the practice is merely to provide evidence of the existence of opinio juris, though it is fair to say that his view is thought by most commentators to go too far, and is ­unsupported by the case-law or State practice.374 In his very thorough and thought provoking analysis of the subject, Haggenmacher has even gone so far as to put forward as sort of gestalt view of customary law, in which the two elements are inextricably entwined and the multiform meanings which can be attributed to the subjective element influence the meaning to be attributed to the objective element, and ultimately leave a very considerable liberty of appreciation to the Court.375 I would not wish to go as far as him,376 and have sought to identify rational principles relating to the use of the subjective element; but it can readily be agreed that the two elements are often virtually inextricable. It is partly out of deference to the Court’s pronouncements and the orthodox view, and partly due to the limitations imposed by the need to expound the subject systematically and comprehensibly, that I have dealt with them separately in this course of lectures. 5

Summary and Conclusions

1. A State’s consent to a rule will normally be a sufficient explanation of its being bound by it, and its refusal at the formative stage of a rule a reason why it is not bound. But the voluntarist approach does not provide a satisfactory explanation of the whole of customary law. In particular, it does not provide a convincing reason why States who have not truly participated in the formation of a rule should be bound by it — though undoubtedly they are. 2. Opinio juris sive necessitatis, for its part, is a phrase of dubious provenance and uncertain meaning. It has played a role in explaining why certain types of conduct constitute mere comity or otherwise do not count as­ 374 Bin Cheng, “United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law?”, 5 Indian Journal of International Law (1965), p. 23; id., op. cit., supra, footnote 351. [Editors’ note: not included in this Anthology]. I shall return to Cheng’s views in Chapter v, Section 2 (d). [Editors’ note: not included in this Anthology]. 375 90 rgdip, p. 5 at pp. 108 et seq. 376 See supra, footnote 250. [Editors’ note: not included in this Anthology].

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precedents. It is probable, however, that these functions could be as well or better performed by using the language of claim and response. 3. In any case, there seems analytically to be no particular reason to insist on proof of the presence of opinio juris in the standard type of case, where there is a constant, uniform and unambiguous practice of sufficient generality, clearly taking place in a legal context and unaccompanied by disclaimers, with no evidence of opposition at the time of the rule’s formation by the State whom it is sought to burden with the customary obligation, or by another State or group of States sufficiently important to have prevented a general rule coming into existence at all. The adoption of the present thesis would bring doctrine more into line with the practice of States and of international tribunals than the mechanical repetition of the necessity of the two elements. As a matter of theory, too, it is submitted that this approach could be justified in terms of the creation of legitimate expectations.377 Put simply, if a State actually consents to a rule, a legitimate expectation will be created that it will comply with it, just as a disclaimer or persistent dissent at the appropriate time will prevent such an expectation being formed; and where there is a constant and uniform practice of sufficient generality, in a legal context, it seems legitimate for members of the community to expect each other to continue to observe that practice. And finally, as a matter of policy, the solution proposed seems a reasonable one. If a relevant practice is sufficiently widespread, it ought to become law, because otherwise the convoy will have to move at the pace of the slowest. To require proof of consent — or even opinio juris on the part of each and every State — seems excessive and unnecessary. At the same time, the sovereignty and the reasonable interests of States can be safeguarded. If a sufficient number of like-minded States object to a new practice, they can prevent its ever becoming general law. And in addition, the individual State can individually opt out, at the formative stage, by becoming a persistent objector. By these means, customary law, in the “classical” sense, can continue to make a useful contribution to the development of international law. In the next chapter, I shall examine the role of treaties in the ascertainment and development of customary law. And in the following one I propose to examine some less “traditional” possible methods for the development of customary law. 377 See supra, Chap. i, Sec. 5. [Editors’ note: not included in this Anthology].

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Chapter 32

Alan Boyle, Some Reflections on the Relationship of Treaties and Soft Law, 1999 Comment by Paata Simsive, Intern, BIICL Educated at the University of Oxford, Hague Academy of International Law and the University of Edinburgh, Professor Alan Boyle has contributed extensively to various fields of international law. He is a barrister and has appeared as counsel in notable cases before the International Court of Justice (ICJ) and International Tribunal for the Law of the Sea (ITLOS). His scholarly works and personal insights have inspired students, academics and practitioners in the fields of the law of treaties, international law-making, international environmental law, the law of the sea and international dispute resolution. He has taught law in a number of universities in the UK, USA, France and Italy. Currently, he teaches law at the University of Edinburgh. He is also an arbitrator on the pca’s environmental arbitration list and a special arbitrator under Annex VIII of the 1982 UN Convention on the Law of the Sea. The article that follows was published in 1999 when Professor Boyle was General Editor of the International and Comparative Law Quarterly. It presents original and innovative ideas that have had a significant and lasting impact on the subject. The starting point is an important observation that the relationship between traditional sources of international law and soft law, in the international law-making context, is no longer adequately assessed and thus should be reconsidered. The article continues by unfolding the main characteristics of soft law. Soft law instruments, he argues, represent an attractive alternative to law-making by treaty.a Moreover, when it comes to determining a means of codifying customary international law, soft law instruments appear to be just as useful as treaties.b Soft law can also be a part of the multilateral treaty-making process by providing the detailed rules and technical standards required for implementation of treaties. Recalling the landmark ICJ cases, this work concludes

a A Boyle, ‘Some Reflections on the Relationship of Treaties and Soft Law’ (1999) 48 ICLQ, at p. 902. [Page 823 in this Anthology]. b Ibid, 903. [Page 824 in this Anthology].

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_033

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that although soft law principles are not legally binding, their interaction with related treaties may transform their legal status into “something more”.c Boyle’s article has great persuasive and influential force. Almost two decades later, it remains one of the most innovative and insightful works that has made a significant contribution to drawing the contours that define the concept of soft law. Professor Boyle, having analysed it in detail, admits that soft law can definitely be abused, but so can most legal forms. Those legal professionals who maintain that soft law is simply not law have perhaps missed this article – one that should be read. c Ibid, 906. [Page 828 in this Anthology].

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A. Boyle, ‘Some Reflections on the Relationship of Treaties and Soft Law’ (1999), 48 International and Comparative Law Quarterly, pp. 901–913. Reproduced with the kind permission of the British Institute of International and Compar­ative Law.

Some Reflections on the Relationship of Treaties and Soft Law Alan Boyle 1 Introduction My starting point for this discussion of the relationship between treaties and soft law is the observation that the subtlety of the processes by which contemporary international law can be created is no longer adequately captured by reference to the orthodox categories of custom and treaty. The role of soft law as an element in international law-making is now widely appreciated, and its influence throughout international law is evident. Within that law-making process the relationships between treaty and custom, or between soft law and custom are also well understood. The relationship between treaties and soft law is less often explored, but it is no less important, and has great practical relevance to the work of international organisations. 2

What is Soft Law?

Soft law has a wide range of possible meanings,1 but three are of direct relevance to the present enquiry: (1) Soft Law is not Binding When used in this sense soft law can be contrasted with hard law, which is binding. Treaties are by definition always hard law because they are always binding. In this category of soft law the legal form is decisive: if the form is that 1 See generally Baxter, “International Law in Her Infinite Variety” (1980) 29 i.c.l.q. 549; Cbinkin, “The Challenge of Soft Law: Development and Change in International Law” (1989) 38 i.c.l.q. 850; Dupuy, “Soft Law and the International Law of the Environment” (1991) 12 Michigan j.i.l 420; Sztuclti, “Reflections on International Soft Law”, in de Lege (1992), 365; Elias and Lim, “General Principles of Law, Soft Law and the Identification of International Law” (1997) 28 Neths. Ybk. IL 3.

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of a treaty it cannot be soft law. If the form is that of a non-binding agreement, such as the Helsinki Accords,2 it will not be a treaty for precisely that reason and we will have what is in effect a “soft” agreement. Of course, the question whether an agreement is a binding treaty is not necessarily easy to answer, as we can observe in the Qatar-Bahrain Maritime Delimitation Case.3 Moreover, an agreement involving states may be binding even if it is not a treaty,4 so the distinction between hard and soft agreements is not simply synonymous with the distinction between treaties and non-treaties. Moreover, once soft law begins to interact with binding treaties its non-binding character may be lost or altered. (2) Soft Law Consists of General Norms or Principles, not Rules An alternative view of soft law focuses on the contrast between “rules”, involving clear and reasonably specific commitments which are in this sense hard law, and “norms” or “principles”, which, being more open-textured or general in their content and wording can thus be seen as soft. From this perspective treaties may be either hard or soft, or both, as we shall see later in regard to the Convention on Climate Change. In this category it is the content of the treaty provision which is decisive in determining whether it is hard or soft, not its form as a treaty. Soft Law is Law that is not Readily Enforceable through Binding Dispute Resolution Here the contrast is between a treaty subject to compulsory adjudication in cases of dispute, such as the 1982 UN Convention on the Law of the Sea,5 and a treaty or other instrument under which disputes can be referred unilaterally only to non-binding conciliation or a non-binding compliance procedure, such as the Montreal Protocol to the Convention on the Ozone ­Layer.6 These examples represent only some of the gradations on a spectrum of possibilities, which shade ultimately into dispute avoidance, but in this category it is the character of the dispute resolution process which determines whether we have hard or soft law. What is obvious from this discussion is that the distinction between treaty and soft law is not clear cut: a treaty can be both hard and soft, and in several different senses at once. Of itself this (3)

2 See Schachter, “The Twilight Existence of Non-Binding International Agreements” (1997) 71 a.j.i.l. 296. 3 (1994) I.C.J. Rep. 112. 4 For example an agreement between a state and a multinational company: see Anglo-Iranian Oil Case (1952) I.C.J. Rep. 93. 5 Infra, n. 36. 6 Infra, n. 40. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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is neither contradictory nor problematic, so long as we are clear about what we mean when we use the terms hard and soft law. Bearing this caveat in mind, we can now explore the relationship between treaties and soft law more fully. 3

Soft-Law as Non-binding Law

Reliance on soft law as part of the law-making process takes a number of different forms, including declarations of intergovernmental conferences, such as the Rio Declaration on Environment and Development; resolutions of the UN General Assembly, such as those dealing with outer space, the deep seabed, decolonisation, or permanent sovereignty over natural resources; or codes of conduct, guidelines and recommendations of international organisations, such as IAEA, IMO, UNEP or FAO. While the legal effect of these different soft law instruments is not necessarily the same, it is characteristic of all of them that they are carefully negotiated, and often carefully drafted statements, which are in some cases intended to have some normative significance despite their non-binding, non-treaty form. There is at least an element of good faith commitment, and in many cases, a desire to influence state practice and an element of law-making intention and progressive development. In this sense non-binding soft law instruments are not fundamentally different from those multilateral treaties which serve much the same law-making purposes. In this respect they may be both an alternative to and a part of the process of multilateral treaty-making. (1) Soft Law as an Alternative to Law-Making by Treaty There are several reasons why soft law instruments may represent an attractive alternative to law-making by treaty. First, it may be easier to reach agreement when the form is non-binding. Use of soft law instruments enables states to agree to more detailed and precise provisions because their legal commitment, and the consequences of any non-compliance, are more limited. Secondly, it may be easier for some states to adhere to non-binding instruments because they can avoid the domestic treaty ratification process, and perhaps escape democratic account­ability for the domestic treaty ratification process, and perhaps escape democratic accountability for the policy to which they have agreed. Of course this may also make it comparably harder to implement such policies if funding, legislation, or public support are necessary. Thirdly, soft law instruments will normally be easier to amend or replace than treaties, particularly when all that is required is the adoption of a new resolution by an international institution. Treaties take time to replace or amend, and the attempt Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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to do so can result in an awkward and overlapping network of old and new obligations between different sets of parties. One of the better examples of the confused state of the law which can result is the 1929 Warsaw Convention Relating to International Carriage by Air.7 Lastly, soft law instruments may provide more immediate evidence of international support and consensus than a treaty whose impact is heavily qualified by reservations and the need to wait for ratification and entry into force. Given the relative advantages of soft law over treaties, it is perhaps surprising that the multilateral treaty has until now been the International Law Com­mission’s preferred instrument for the codification of international law.8 Although a treaty basis may be required when creating new international organisations or institutions, or for dispute settlement provisions, soft law instruments appear to be just as useful a means of codifying international law as treaties. Provided they contain no binding dispute settlement clauses, the Commission’s draft articles on the law of state responsibility could equally well be codified using either a General Assembly resolution or an intergovernmental declaration.9 Indeed this may be more effective than using a treaty, which, like the Vienna Convention on the Law of Treaties, runs the risk of securing only a relatively small number of parties. The Commission’s work on treaties is among its most successful and authoritative codifications, but it is difficult to suggest that this owes much to its treaty status, or to the number of states parties. The argument for using a treaty rather than a soft law instrument is stronger in the case of new law-making, such as the re-negotiation of the law of the sea or the elaboration of human rights law, although in many of these cases institutions with extensive powers were also being established at the same time and a treaty was thus desirable in any event. But even for new law, non-binding instruments may still be useful if they can help generate widespread and consistent state practice and/or provide evidence of opinio juris in support of a customary rule. There are good examples of UN General Assembly resolutions and intergovernmental declarations having this effect in the Nicaragua Case10 7

See Gardiner, “Revising the Law of Carriage by Air. Mechanisms in Treaties and Contract” (1998) 47 i.c.l.q. 278. 8 Articles 17 and 23 of the Statute of the Commission do refer expressly to the conclusion of conventions, but other possibilities are left open. 9 The Commission considered the eventual form of its draft articles at its 50th Session in 1998 but deferred a decision on whether to propose a convention or a declaration. It was noted that the dispute settlement provisions in part three of the draft could not be included in a declaration: see Rept. of the I.L.C (1998), Ch. 7, para. 224. 10 (1986) I.C.J. Rep. 14.

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the Nuclear Weapons Advisory Opinion,11 and the Gabcikovo-Nagymaros Dam Case.12 What all of this suggests is that the non-binding form of an instrument is of relatively limited relevance in the context of customary international lawmaking. Treaties do not generate or codify customary law because of their binding form but because they either influence state practice and provide evidence of opinio juris for new or emerging rules, or because they are good evidence of what the existing law is. In many cases this is no different from the potential effect of non-binding soft law instruments. Both treaties and soft law instruments can be vehicles for focusing consensus on rules and principles, and for mobilising a consistent, general response on the part of states. Depending upon what is involved, treaties may be more effective than soft law instruments for this purpose because they indicate a stronger commitment to the principles in question and to that extent carry greater weight than a soft law instrument, but the assumption that they are necessarily more authoritative is misplaced. To take only one example, it is clear that the 1992 Rio Declaration on Environment and Development both codifies some existing international law and tries to develop some new law.13 It is not obvious that a treaty with the same provisions would carry greater weight or achieve its objectives any more successfully. On the contrary, it is quite possible that such a treaty would, seven years later, still have far from universal participation, whereas the Declaration secured immediate consensus support, with such authority as that implies. At the same time, it seems clear that agreements such as those on climate change and biological diversity could only be in treaty form, because of the combination of their status as new law, their more detailed terms, and their institutional provisions. These are good examples of cases where because of the content of an agreement, incorporation in a treaty is the right option and does carry a greater sense of commitment than a soft law instrument. (2) Soft Law as Pan of the Multilateral Treaty-Making Process Some non-binding soft-law instruments are significant only because they are the first step in a process eventually leading to conclusion of a m ­ ultilateral treaty. Examples are numerous, but they include the IAEA Guidelines14 which formed the basis for the rapid adoption of the 1986 Convention on Early 11 (1996) I.C.J. Rep. 241. 12 (1997) I.C.J. Rep. 7. 13 See A.E. Boyle and D. Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Prospects (Oxford, 1999), Ch. l; Sands (ed.), Greening International Law (London, 1993), Chs. 1 and 3. 14 IAEA/ifcirc/321 (1985).

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­ otification of a Nuclear Accident following the Chernobyl accident; UNEP N Guidelines on Environmental Impact Assessment15 which were subsequently incorporated in the 1991 ECE Convention on Environmental Impact Assessment in a Trans­boundary Context; and UNEP’s Guidelines on Land-based Sources of Marine Pollution16 which provided a model for regional treaties such as the Kuwait Protocol.17 Other soft law instruments are used as mechanisms for authoritative interpretation or amplification of the terms of a treaty. This has occasionally been the role of General Assembly resolutions in regard to articles of the UN ­Charter, such as those dealing with decolonisation or the use of force.18 The same task is performed more frequently by resolutions, recommendations and decisions of other international organisations, and by the conferences of parties to treaties. Thus it was a resolution of the parties to the Montreal Protocol to the Ozone Convention which first set out the terms of the non-compliance procedure provided for in the protocol.19 The procedure was subsequently revised and then incorporated by amendment as an annex in the protocol,20 showing again bow non-binding soft law can often be readily transformed into binding form. Similarly, UNEP’s Cairo Guidelines on the Transport of Hazardous Waste21 can be regarded as an amplification of the obligation of “environmentally sound management” provided for in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes.22 Another important related role for soft law instruments is to provide the detailed rules and technical standards required for implementation of some treaties. Environmental soft law is quite often important for this reason, setting standards of best practice or due diligence to be achieved by the parties in implementing their obligations. These “ecostandards” are essential in giving hard content to the overly-general and open-textured terms of framework environmental treaties.23 The advantages of regulating environmental risks in this way are that the detailed rules can easily be changed or strengthened as scientific 15 16 17

UNEP/GC.14125 (1987). UNEP/WG.120/3 (1985). 1990 Kuwait Protocol for the Protection of the Marine Environment Against Marine Pollution from Land-Gased Sources. 18 See Western Sahara Advisory Opinion (1975) I.C.J. Rep. 12: Nicaragua Que (1986) I.C.J. Rep. 14. 19 Decision ii/5, UNEP/OzL.Pro/WG.3/2/2, Annex iii (1990). 20 Supra, n. 6. 21 UNEP/WG.l22/3. 22 Article 4. 23 See P. Contini and P.H. Sand, “Methods to Expedite Environmental Protection: International Ecostandards”, (1972) 66 a.j.i.l. 37.

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understanding develops or as political priorities change. Such standards can of course be adopted in binding form, using easily amended annexes to provide flexibility, but this is not always what parties want. The IAEA has made particular use of formally non-binding ecostandards, through its nuclear safety codes and principles. These generally represent an authoritative technical and political consensus, approved by the Board of Governors or General Conference of the Agency. Despite their soft law status it is relatively easy to see them as minimum internationally endorsed standards of conduct, and to regard failure to comply as presumptively a failure to fulfil the customary obligation of due diligence in the regulation and control of nuclear activities.24 However, because of the uncertainty posed by this very soft approach to nuclear safety, the Convention on Nuclear Safety and the Joint Convention on the Safety of Spent Fuel and Radioactive Waste Management have now incorporated in binding treaty articles the main elements of IAEA’s fundamental safety standards for nuclear installations, radioactive waste management and radiation protection, and most of its Code of Practice on the Transboundary Movement of Radioactive Waste.25 Those remaining IAEA standards which retain a soft law status26 will still be relevant when determining how the basic obligations of states parties to these agreements are to be implemented. Moreover, under the Joint Convention there is also an obligation on states parties to take account of relevant IAEA standards in adopting national law. These various agreements have significantly strengthened the legal force of IAEA standards and, in conjunction with non-binding soft-law safety standards, have created a more convincing legal framework for the international regulation of nuclear risks. They exemplify once again how soft-law and treaties can interact in a complex regulatory framework. Some treaties give binding force to soft-law instruments by incorporating them into the terms of a treaty by implied reference. The 1982 UN Convention on the Law of the Sea makes extensive use of this technique, impliedly incorporating recommendations and resolutions of IMO, as well as treaties such as the 1973 marpol Convention, under provisions variously requiring or 24 25

26

The preamble to the Convention on Nuclear Safety recognises that internationally formulated safety guidelines “can provide guidance on contemporary means of achieving a high level of safety.” IAEA Safety Series No. 110: TM Safety of Nuclear Installations (Vienna, 1993); IAEA Safety Series No. lll-F: The Principles of Radioactive Waste Management (Vienna, 1995); IAEA Safety Series No. 120: Radiation Protection and the Safety of Radiation Sources (Vienna, 1996); IAEA GC (xxxiv)/939: Code of Practice on the Transboundary Movement of Nuclear Waste (1990). E.g. the nuss codes, IAEA GC (xxxii)/489 (1988).

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permitting states to apply “generally accepted rules and standards established through the competent international organisation or general diplomatic conference”.27 Thus although IMO has no power under its constitution to take formally binding decisions, UNCLOS may indirectly render some of these decisions obligatory. Lastly, soft law instruments may operate in conjunction with a treaty to provide evidence of opinio juris for the possible emergence of a rule of customary international law 10 case law, including the Nicaragua Case, shows how the interplay between the UN Charter and resolutions of the General Assembly can have this effect. These examples all point to the conclusion that the non-binding force of soft-law can be over-stated. In many of the above examples states are not necessarily free to disregard applicable soft-law instruments: even when not incorporated directly into a treaty, they may represent an agreed understanding of its terms. Thus, although of themselves these instruments may not be legally binding, their interaction with related treaties may transform their legal status into something more. 4

Soft Law as General Norms or Principles

The point was made many years ago by the late Judge Baxter that some treaties are soft in the sense that they impose no real obligations on the parties.28 Though formally binding, the vagueness, indeterminacy, or generality of their provisions may deprive them of the character of “hard law” in any meaningful sense. This remains true. The Framework Convention on Climate Change provides a good example. Adopted at the Rio Conference in 1992, this treaty does impose some commitments on the parties, but its core articles, dealing with policies and measures to tackle greenhouse gas emissions, are so cautiously and obscurely worded and so weak that it is uncertain whether any real ­obligations are created.29 Moreover, whatever commitments have been undertaken by developing states are also conditional on performance of solidarity

27 1982 UN Convention on the Law of Sea, Articles 207–212. 28 (1980) 29 i.c.l.q. 549. 29 Especially Article 4(1) and (2). The United States’ interpretation of these articles was that “there is nothing in any of the language which constitutes a commitment to any specific level of emissions at any time….” The parties determined at their first meeting in 1995 that the commitments were inadequate and they agreed to commence negotiation of the much more specific commitments now contained in the 1997 Kyoto Protocol.

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commitments by developed state parties to provide funding and transfer of technology.30 Such treaty provisions are almost impossible to breach and in that limited sense Judge Baxter is justified in calling them soft-law. More of a political bargain than a legal one, these are “soft” undertakings of a very fragile kind. They are not normative and cannot be described as creating “rules” in any meaningful sense. This is probably true of very many, if not most treaties, a point recognised by the International Court in the North Sea Continental Shelf Case when it specified that one of the conditions to be met before a treaty could be regarded as law-making is that it should be so drafted as to be “potentially normative” in character.31 There is, however, a second and more significant sense in which a treaty may be potentially normative, but still “soft” in character, because it articulates “principles” rather than “rules”. Such principles do have legal significance in much the same way that Dworkin uses the idea of constitutional principles.32 They may lay down parameters which affect the way court decide cases33 or the way an international institution exercises its discretionary powers. They can set limits, or provide guidance, or determine how conflicts between other rules or principles will be resolved. They may lack the supposedly harder edge of a “rule” or an “obligation”, but they are certainly not legally irrelevant. As such they constitute a very important form of law, which may be “soft”, but which should not be confused with “non-binding” law. The Convention on Climate Change once again provides some good examples of such principles explicitly included in a major treaty. Indeed, given how weak the rest of the treaty is, the principles found in Article 3 are arguably the most important “law” in the whole agreement because they prescribe how the regime for regulating climate change is to be developed by the parties. It is worth quoting the main elements of Article 3: Article 3: Principles In their actions to achieve the objective of the Convention and to implement its provisions, the parties shall be guided, inter alia, by the following:

30 Article 4(7). 31 (1969) I.C.J. Rep. 3. 32 R. Dworkin, Taking Rights Seriously (Oxford, 1977). This argument is developed by Sands, in, W. Lang (ed.) Sustainable Development and International Law (London, 1995), Ch. 5. 33 See e.g. the International Court’s reliance on the principle of sustainable development in the Gabcikovo-Nagymaros Case, on which see Lowe, in, A.E. Boyle and D. Freestone (eds) International Law and Sustainable Development (Oxford, 1999), Ch. 2, and Boyle, “Gabcikovo-Nagymaros Case: New Wine in Old Bottles” (1997) 8 Yearbook of International Environmental Law 13.

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1.

The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities. 2. The Parties should take precautionary measures to anticipate, prevent, or minimise the causes of climate change and mitigate its adverse effects. 3. The Parties have a right to, and should, promote sustainable development. These elements of Article 3 are all drawn directly from the non-binding Rio Declaration on Environment and Development; they reflect principles which are not simply part of the Climate Change Convention, but which are also emerging at the level of general international law, even if it is as yet premature to accord them the status of customary international law. They are not expressed in obligatory terms: the use of “should” qualifies their application, despite the obligatory wording of the chapeau sentence. All of these principles are open-textured in the sense that there is considerable uncertainty concerning their specific content and they leave much room for interpretation and elaboration. They are not at all like rules requiring states to conduct an environmental impact assessment, or to prevent harm to other states. Given their explicit role as guidance and their explicitly softer formulation, the “principles” in Article 3 are not necessarily binding rules which must be complied with or which entail responsibility for breach if not complied with; yet, despite all these limitations they are not legally irrelevant.34 At the very least Article 3 is relevant to interpretation and implementation of the Convention as well as creating expectations concerning matters which must be taken into account in good faith in the negotiation of further instruments. Article 3 takes a novel approach to environmental protection, but in the context of a dynamic and evolutionary regulatory regime such as the Climate Change Convention it has the important merit of providing some predictability regarding the parameters within which the parties are required to work towards the objective of the Convention. In particular, they are not faced with a completely blank sheet of paper when entering subsequent protocol negotiations or when the Conference of the Parties takes decisions under the various articles empowering it to do so. Thus it is significant that the relevance of ­Article 3 was reiterated in the mandate for negotiation of the Kyoto Protocol35 and is referred to in the preamble to the Protocol. It is a nice question whether the parties collectively are entitled to disregard the principles contained in 34 35

See the debate between Sands and Mann in W. Lang (ed.) Sustainable Development and International Law (London, 1995), 53–74. The so-called “Berlin mandate”: Decision 1/CP.l, in Report of the Conference of the Parties on its 1st Session, UN Doc. FCCC/CP/1995/7/Add.l.

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Article 3, or what the legal effect of decisions which do so may be, but however weak it may seem, parties whose interests are affected do have a right to insist on having the principles of Article 3 taken into account. Sustainable development, intergenerational equity, or the precautionary principle, are all more convincingly seen in this sense: not as binding obligations which must be complied with, but as principles, considerations or objectives to be taken account of-they may be soft, but they are still law. 5

Soft Enforcement

Another way of distinguishing hard and soft law is to focus not on questions of form or content but on methods of dispute settlement in case of non-­ compliance. What might be called hard enforcement is characterised most ­obviously by compulsory binding settlement of disputes. The 1982 UN Convention on the Law of the Sea is one of the foremost examples of a treaty which is subject to hard enforcement through a sophisticated scheme of compulsory dispute settlement involving both the ICJ and the International Tribunal for the Law of the Sea, as well as various forms of arbitration.36 The Convention also affirms that states are responsible in international law for the performance of their environmental obligations under the Convention37 and in various circumstances it gives them either the power or the duty to use their own criminal law to enforce internationally agreed rules and standards against ships.38 All of these elements add up to a treaty which is hard in every sense of the term. The contrasting model of “soft enforcement”, or “dispute avoidance”, is one in which problems are referred to non-binding conciliation before an independent third party, or to some form of non-compliance procedure involving

36

37 38

See Part xv, on which see Boyle, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction” (1997) 46 i.c.l.q. 37; R. Churchill, “Dispute Settlement in the Law of the Sea and Alternatives to it”, in, M. Evans (ed.) Remedies in International Law: The Institutional Dilemma (Oxford, 1998), 85; J. Merrills, International Dispute Settlement (3rd ed. Cambridge, 1999), Ch. 8; R. Churchill and A.V. Lowe, The Law of the Sea (3rd ed., Manchester, 1999), 01.19; L. Sohn, Settlement of Law of the Sea Disputes (1995) 10 lnt J. of Marine and Coastal Law 205; A. Adede, The System for Settlement of Disputes Under the UNCLOS (Dordrecht, 1987); E.D. Brown, “Dispute Settlement and the Law of the Sea: The UN Convention Regime” (1997) 21 Marine Policy 17. Article 235(1). Articles 216–18, 220.

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other parties to the treaty.39 In both situations there is an attempt to find an agreed solution, rather than to engage in adversarial litigation or claims for reparation. Soft enforcement characteristically evades issues of responsibility for breach, and relies on a combination of inducements or the possibility of termination or suspension of treaty rights to secure compliance. Soft enforcement is best exemplified by the non-compliance procedure adopted by parties to the 1987 Montreal Protocol to the Ozone Convention.40 This procedure, adopted in 1990 and revised in 1992, can be invoked by any party to the protocol, or by the protocol secretariat, or by the party itself, wherever there are thought to be problems regarding compliance. The matter is then referred for investigation to an Implementation Committee consisting of 10 parties elected on the basis of equitable geographical representation. The main task of this committee is to consider the submissions, information and observations made to it with a view to securing an amicable solution of the matter on the basis of respect for the provisions of the Protocol. This is very similar to the provision for negotiation of a friendly settlement under the ­European ­Convention on Human Rights.41 The Implementation Committee can seek whatever information it needs through the secretariat; for this purpose it may also visit the territory of the party under investigation if invited to do so. A report is then made to the full Meeting of the Parties, which decides what steps to call for in order to bring about full compliance. These can include the provision of appropriate financial, technical, or training assistance in order to help the party to comply. If these measures are insufficient, cautions can be issued, or, as a last resort, rights and privileges under the treaty can be suspended in 39

40

41

See Adede, in, W. Lang, (ed.) Sustainable Development and International Law (London, 1995), 01.8; Birnie, “Legal Techniques of Settling Disputes: The Soft Settlement Approach”, in, W.E. Butler (ed.) Perestroika and International Law (Dordrecht, 1990), 177; Gehring, “International Environmental Regimes: Dynamic Sectoral Legal Systems” ( 1990) 1 Year book of International Environmental Law, 35; Hand!, “Controlling Implementation of and Compliance with International Environmental Commitments: The Rocky Road From Rio”, (1994) 5 Colorado jielp 327; Kiss, “Compliance with International and European Environmental Obligations” (1996) Hague Yearbook of International Law 45; Lang, “Compliance Control in International Environmental Law” (1996) 56 ZaORV 685. Article 8, and Annex iv, as adopted at Copenhagen in 1992. The process is described in UNEP, Report of the Implementation Commission for the Montreal Protocol 20th Meeting, UNEP/OzLPro/lmp/Com/20/4, paras. 24–33, and Yoshida, “Soft Enforcement of Treaties: The Montreal Non-Compliance Procedure and the Functions of the Internal International lnstitutions” (1999) 10 Colorado jielp 95. 1950 European Convention on Human Rights, Article 28 provided that the Commission on Human Rights shall place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention.

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accordance with the law of treaties. A very similar procedure has been adopted under the 1979 Convention on Long Range Transboundary Air Pollution.42 The non-compliance procedure has been invoked on several occasions by parties to the Montreal Protocol who are in difficulty, notably Russia and a number of other states from the former Soviet Union, where problems of noncompliance have been the most serious. Various measures have been recommended by the Meeting of the Parties, including the provision of assistance, GEF funding, and the issuing of cautions.43 Further funding from the GEF has also been conditional on the Meeting of the Parties certifying that progress is satisfactory. The effect has been to secure compliance, albeit at the cost of some delay in implementation. There is also provision in Article 18 of the Kyoto Protocol to the Framework Convention on Climate Change for a non-compliance procedure to be negotiated. Developing a process capable of handling the more complex commitments undertaken for climate change is not straightforward and none had yet been agreed at the time of writing.44 However, the Climate Change Convention has created another innovation in “soft settlement” through the provision for a “multilateral consultative process” to resolve questions regarding implementation.45 This process can be extended to the Kyoto Protocol if the parties so decide. It is intended to be an even softer form of dispute avoidance than the Montreal Protocol non-compliance procedure; conducted by a panel 42

See Decision 1997/12, in, unece, Report of the 15th Session of the Executive Body (1997), Annex iii and Szell, “The Development of Multilateral Mechanisms for Monitoring Compliance”, in, W. Lang (ed.), Sustainable Development and International Law (London, 1995), 97. 43 See UNEP, Report of the 7th Meeting of the Parties to the Montreal Protocol Decisions vii/15–19 (Poland, Bulgaria, Belarus, Russia, Ukraine) UNEP/OzLPro.7/12 (1995); idem, Report of the 8th Meeting, Decisions viii/22–25 (Latvia, Lithuania, Czech Republic, Russia) UNEP/OzLPro.8/12 (1996); idem, Report of the 9th Meeting, Decision ix/29–32 (Latvia, Lithuania, Russia, Czech Republic) UNEP/OzLPro.9/12 (1997). For the most recent position see Report of the Implementation Committee for the Montreal Protocol, 20th meeting, UNEP/OzLPro/lmpCom/20/4 (1998). See generally Werksman, “Compliance and Transition: Russia’s Non-Compliance Tests the Ozone Regime” (1996) 36 ZaORV 750; Victor, The Early Operation and Effectiveness of the Montreal Protocol’s Non-compliance Procedure and (Vienna, 1996); R. Benedick, Ozone Diplomacy (London, 1998 edition), Ch. 17; O. Yoshida, “Soft Enforcement of Treaties: The Montreal Protocol’s Noncompliance Procedures” (1999) 10 Colorado jielp 95. 44 The problems are discussed in Werksman, Responding to the Non-Compliance Under the Climate Change Regime (OECD, 1998) idem, in, Cameron, Wemman, Roderick (eds), ­Improving Compliance with International Environmental Law, 85ff. 45 1992 unfcc Article 13; 1997 Kyoto Protocol Article 16. For details of the process see 6th Report of the Ad Hoc Working Group on Article 13 (1998) UN Doc. FCCC/AG13/1998/2.

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of experts, rather than by other member states, it is non-judicial in character, non­confrontational, and advisory rather than supervisory. No sanctions of any kind can be imposed, not even suspension of rights and privileges; there is power only to recommend measures to facilitate co-operation ad implementation and to clarify issues and promote understanding of the Convention. As in the Montreal Protocol non-compliance procedure, parties may bring questions concerning their own implementation or that of other parties to the Multilateral Consultative Committee; the Conference of the Parties may also do so. This new process represents a further move away from formal, binding, third party dispute settlement in favour of procedures that facilitate compliance but cannot compel it Like the Montreal Protocol procedure it tries to resolve problems, differences, or disputes, through political rather than judicial processes, relying on negotiation and persuasion, rather than formal findings of breach of treaty or responsibility. “Soft enforcement” of this kind is not confined to environmental agreements; it has however been criticised by Koskenniemi for undermining the binding character of the treaties concerned and setting them apart from “normal” treaties.46 It does give us, as we have seen, another category of “soft” treaty. Why do states employ these techniques of soft enforcement for certain treaties? There are several reasons. First, like non-binding instruments, it facilitates agreement on rules or commitments which are hard in content. These rules or commitments do have the binding force of a treaty, with all that implies in terms of a sense of obligation, but the consequences of non-compliance are not as severe or potentially troublesome as they would be if there were compulsory binding adjudication in every case of dispute or alleged non-compliance. This may be important in areas such as climate change, where compliance may not be equally easy for all states, or where the capacities of states differ. It allows some leeway for parties in difficulty, while the emphasis on co-operation is consistent with broader notions of solidarity which underlie many modern environmental agreements. Secondly, soft enforcement is more suited to a regulatory approach which emphasises prevention of problems rather than reparation after the event. Thirdly, where, as in the case of climate change or ozone depletion, non-compliance affects all parties to the treaty equally, there is considerable merit in designing a process for securing compliance which is multilateral in character and which allows all parties, as well as NGOs, to participate, and which ensures that all

46

Koskenniemi, “Breach of Treaty or Non-Compliance?” (1992) 3 Yearbook of International Environmental Law 123.

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interests are adequately represented. Although it is possible to accommodate a multiplicity of parties and NGOs in judicial proceedings,47 it is not easy to do so, and an adversarial procedure is not well suited to the resolution of the kind of non-compliance problems likely to arise under global environmental treaties. Lastly, soft enforcement typically facilitates more readily than judicial processes the necessary input of scientific and technical expertise required to deal with issues of compliance under agreements of this kind. That is probably the major contribution of the processes of review developed under the Ozone and Climate Change Conventions. None of this is to deny that hard settlement should remain an option under any of these treaties, in case the parties to a dispute should choose to resort to it. The evidence referred to earlier suggests that Koskenniemi’s scepticism may be misplaced with regard to the operation of the Montreal Protocol’s ­non-compliance procedure. Whether the same judgment can in due course be made in relation to the much more difficult and complex problem of climate change remains to be seen. It is of course wise to avoid disputes regarding compliance with treaties, or with softer instruments, but it is also necessary to have some assurance that they can be resolved, if not by persuasion and negotiation, then by some other authoritative process. From that perspective hard and soft enforcement are perhaps better seen not as alternatives but as complementary to each other. 6 Conclusions Soft law is manifestly a multi-faceted concept, whose relationship to treaties is both subtle and diverse. It presents alternatives to treaties in certain circumstances, at other times it complements them, while also providing different ways of understanding the legal effect of different kinds of treaty. Those who maintain that soft law is simply not law have perhaps missed some of the points made here; moreover those who see a treaty as necessarily having

47

See for example the Nuclear Weapons Advisory Opinion (1996) I.C.J. Rep. 241 in which some 40 states made written or oral submissions to the court. In contentious cases involving the construction of a multilateral convention all parties to the convention have a right to intervene in the proceedings and the construction so given will be equally binding on such states: Statute of the I.C.J., Article 66. It should be noted, however, that an allegation of non-compliance is not necessarily a question of construction.

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greater legal effect than soft law have perhaps not looked hard enough at the “infinite variety” of treaties, to quote Baxter once more. Soft law in its various forms can of course be abused, but so can most legal forms, and it has generally been more helpful to the process of international law-making than it has been objectionable. It is simply another tool in the professional lawyer’s armoury.

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Chapter 33

Robert Y. Jennings, Reflections on the Subsidiary Means for the Determination of Rules of Law, 2003 Comment by Professor Emeritus Maurice Mendelson QC, Blackstone Chambers Others will no doubt describe the character and contribution of Robbie Jennings more fully in this Anthology, so I shall confine myself to saying that he was both wise and kind. The present piece was published in 2003, not long before his death. It deals with the matters covered by Article 38(1)(d) of the Statute of the ICJ and is typically thoughtful and trenchant. On the “teachings of the most highly qualified publicists of the various nations”, he notes a considerable increase in quantity. Some of it is attributed to a welcome growth in the amount of international law; but he also laments the pressure on academics, particularly young ones, to publish, all too often, work that is repetitive, states the obvious or is not thoroughly enough researched and thought through.a He also laments the failure of many modern authors to distinguish what they think the law is from what they would like it to be, and the influence that the sheer weight of numbers of such authors can exercise on the deliberations of bodies like the ICJ. This also leads him to emphasise the the need for judges, too, to differentiate lex ferenda from lex lata, as they do not always do. He also criticises the Court for the way in which it simply deploys quotations from its previous decisions, without trying to extract the ratio decidendi or underlying principle. It sometimes gives the impression, he says, that – ­notwithstanding the absence of binding precedent – previous decisions are a kind of Holy Writ. He gives as an example the oft repeated definition of a “dispute” in the Mavrommatis Palestine Concessions case,b which he points out is really no definition – or a very clumsy one – and is in fact obiter. It is ­refreshing to hear this sort of thing from the mouth of a most distinguished member of the Court. a I have some sympathy with his view: I once began a review of a bibliography of international law by saying: “I had had hopes that the paper shortage would be the greatest boon to scholarship since Gutenberg, but alas it was not to be”. b Mavrommatis Palestine Concessions (Greece v United Kingdom) [1924] PCIJ (ser B) No 3. © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_034

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He also disagrees with Fitzmaurice that judicial decisions are rather more important than the teachings of publicists. The argumentation is quite subtle, but ultimately perhaps this disagreement is not so significant. When it comes to decisions of the ICJ itself, there can be little doubt that where there is a “precedent” it will carry considerable weight – much more than the opinions of publicists. Where, on the other hand, there is no ICJ case directly in point, but perhaps there are decisions of other courts or tribunals, the whole matter becomes much more complicated and does not admit of a simple yes or no answer. This was not the most important of Jennings’ essays – not unreasonably, given that he was nearly 90 when he wrote it and it was a contribution to a festschrift which is not always a vehicle for profound scholarship. (Perhaps he should have listed among the reasons for poor quality output the pressure that senior jurists find themselves under to contribute to one anothers’ festschriften.) But it is typical of the man that, even in that context and despite his great age, he still produced something thought-provoking and elegantly written.

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R. Jennings, ‘Reflections on the Subsidiary Means for the Determination of Rules of Law’ in Studi di Diritto Internazionale in Onore di Gaetano Arangio Ruiz (Editoriale Scientifica srl 2003), pp. 319–338.

Reflections on the Subsidiary Means for the Determination of Rules of Law R. Jennings* A great deal is written nowadays about the sources of international law. Rightly so, for this is the key to any kind of answer to the layman’s most usual question about the subject: “what is international law and where do you find it if you want to know what it says?” This is a highly pertinent question but unfortunately not one with an easy answer, even though, as the layman will most likely know, for most municipal systems of law there is on the contrary usually no great problem about identifying and briefly describing the possible sources. Studies of the sources of public international law tend to begin by referring to Article 38 of the Statute of the International Court of Justice – which does not mention the term “sources” – and therefore to concentrate upon treaties, custom and even “general principles of law”; even though the latter is uncertain and controversial of meaning and content. But as Professor Arangio-Ruiz has been and still is a prolific and influential writer about international law, and is especially devoted to the proper use and meaning of words, it seemed appropriate in this tribute to him and to his work, to discuss the last in that 1920s list of what the International Court of Justice is to “apply” when deciding “in accordance with international law such disputes as are submitted to it”; namely “…the teachings of the most highly qualified publicists of the various nations, as subsidiary means (‘comme moyen auxiliare’) for the determination of rules of law”. It soon became apparent however that one would need also to look at the other subsidiary means, namely judicial decisions, if only for purposes of comparison. We shall however begin with the publicists and turn to judicial decisions later in this article.

* Whewell Professor of International Law (Emeritus), Cambridge University: President Emeri­ tus, International Court of Justice: Honorary Member of the Institut de Droit International.

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The Work of “the Most Highly Qualified Publicists of the Various Nations”

An important and novel feature of the work of publicists nowadays, and one that has greatly altered the very nature of this “subsidiary means”, is the change in the sheer volume of publications compared with that which the drafters of what became the present Article 38 must have had in mind when they worked on the original Statute of the Permanent Court of International Justice as part of the general settlement after the end of the First World War. The amount of the publications of these “publicists”, as the Statute quaintly but accurately still calls them, much of it be it said of good quality, threatens to make this subsidiary means, if it is not so already, quite unmanageable. There are several reasons for this change in the amount of publication. The amount of international law to be described and discussed is itself much greater and the material more complex than it used to be, and it is also constantly changing and developing, always in the direction of having even more of it. This also means that there are very many more public international lawyers than there were. And all of them, especially the young and vigorous, are under great and somewhat artificial pressure to write and publish or perish. This is partly because of the way in which our universities, and not least their faculties of law, are now generally governed and controlled. Market-blessed “competition” and so-called “transparency” and “accountability” are the order of the day, and the money for university work is controlled by bureaucrats who find such questionable devices as statistics and “league tables” useful methods of control, and of seeming to justify the continuance of their own power and employment. So there is enormous pressure upon academic lawyers and even on some of those who practice, not only to publish their “research” (which term nowadays seems to comprise any reasonably painstaking investigation or analysis of well-known materials); but also to publish early and even to meet the particular dates set by these bureaucrats for their regular “assessments”, as they like to call them. For this is now the way that law faculties can acquire reputations that look well in the media, with their devotion to tabloid forms of presentation. This pressure to publish as much as possible, and preferably more than the next man or woman, is of course welcomed and much encouraged by the publishers who control the market of law books that the libraries more or less have to find funds to purchase. Accordingly, new journals dealing with ever more specialised aspects of international law, appear at regular intervals, the editors of which journals then start canvassing for the writings of publishable articles and so augmenting the pressures to produce more and more paper. The result of all this is that, quite apart from the normal consequences of the

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expansion of the ambit and content of public international law, there are these artificial and consciously contrived pressures, serving the joint vested interests of university bureaucrats and administrators, and the legal publishers, which pressures are exercised upon the young, able and ambitious, and often shockingly underpaid, academic lawyers. When there is added to all this the simultaneous very welcome expansion of the amount of international litigation – in the International Court of Justice, in international arbitrations and especially of commercial arbitrations – and the proliferation of international tribunals of all kinds, it is inevitable that this mass of published material should be used and cited before courts, and tribunals, by advocates in their pleadings. For they all feel themselves under some pressure to show themselves at least as learned as their opponents. Moreover, computers do make it much easier to identify and cite, if not better to understand, a vast array of materials. But what is the court or tribunal supposed to do with all this published material? Or, should we rather ask, what should it be used for? How, for example, is the International Court of Justice, which is still governed by the little changed Article 38.1 (d), to use this great mass of materials as a “subsidiary means for the determination of rules of law”? The drafters of the predecessor of Article 38 might well have had in mind the celebrated answer to this question given by Mr. Justice Gray, a great master of the felicitous use of English words, in his Supreme Court judgment in the case of The Paquete Habana and The Lola, in 1900:1 “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Histon v. Guyot, 159 US 113, 163, 164, 214, 215.” [The latter was a decision of 1895 by the same judge who in that case also was much influenced by Wheaton who was most certainly himself one of the ‘most highly qualified publicists’]. 1 175 US 6777.

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Mr. Justice Gray after the quoted passage of his decision, then goes on again to quote Wheaton who, going much further than Article 38, placed “text-writers of authority” as being among the “principal sources of international law”. It will be noted, however, that Mr. Justice Gray’s famous dictum makes it clear that in his view these writings are used indeed as “subsidiary means for the ­determination of rules of law” to which “resort must be had” where the more primary sources are inadequate. Even ‘if the drafters of Article 38 were not thinking specifically of this dictum, it is clear that they and Mr. Justice Gray were of one mind about the place and utility of the works of highly qualified publicists. And this dictum of Mr. Justice Gray helps to make good sense of the phrase “subsidiary means for the determination of rules of law” and must indeed be what the drafters who employed it, had in mind. There were of course, in Mr. Justice Gray’s time, only a handful of such publicists, at any rate ones writing in English, each one of them very well known. Thus, the works of publicists were then to be used as learned and reliable evidences of what the law was, at any rate where the answer to that question was not already clear from primary sources of the law, such as treaties and well-established rules of customary law. That was the sole proper reason why the members of an international court or tribunal would consult writers. They were certainly not to be consulted for their speculations about what the law in their opinion ought to be but solely for hard evidence of what the law actually was. Nowadays, however, there is a practical difficulty in resorting to this kind of intellectual process. The contemporary reader might at this point ask himself or herself when was the last time he or she read a published article or longer scholarly work in which the author was constantly at pains to distinguish clearly between his or her views of what the law ought to be and his or her views of what it actually is. Some time ago he or she might have done so with some, if not most, writers. Arnold McNair was always insistent on the crucial importance of making that distinction clearly and on the necessity to have it constantly in mind. Even then, however, some writers were very much aware that there may be a rather large indeterminate area between clear law and possible or desirable law. One thinks of a favourite phrase of so important and influential a scholar as Sir Hersch Lauterpacht: “there is room for the view that…” Does some such phrase indicate what is believed might be the law, or what some others reasonably think might be the law, or is it looking to the future rather than present law? The answer is probably that the reader was left to choose what to make of it. O’Connell, writing in 1969, was clearly very much aware of a relatively new problem, when he said: “The value of an author will depend very much upon what his work is expected to yield. Concerning the furnishing of evidence of practice, there Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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is today a pardonable cynicism concerning the publicist, resulting from the discovery that he has tended to repeat what his brethren have said, use the materials which they have selected and reveal subjectivity in the selection of his own. Much uncritical repetition of facts and arguments can be detected in several works, which suggests that a not inconsiderable proportion of writers who have committed themselves to propositions of international law have done so without appropriate thought and discriminating analysis”.2 Natural ambition and the pressures mentioned above offer today even greater temptations to writers to try to create for themselves some part in the making of new law and perhaps to cut comers in the effort to do so. The part played by writings in the creation, or ‘development’ as many prefer to call it, of new law is not at all a new phenomenon. Brownlie, for example, cites the considerable influence of Gidel on the “development” of the law of the sea. Yet this undoubtedly true observation of practical effects of the work of Gidel tends rather to call in question the validity of any clear distinction, of the kind relied upon by Mr. Justice Gray, between the two kinds of influence. Where a work cited in argument before a tribunal is one of learned elaboration and about possible wider implications of an existing rule of law, it is often not easy to say with any certainty which side of the Mr. Justice Gray line the writing falls. In any event it is certainly true that writings can bring about changes in the law, and that sometimes before judges have any chance to consider the relevant rule of law in an actual case. It is not so much nowadays a question about the influence of writers of the stature of Gidel, Verdross, Rousseau, Oppenheim and Hall, who belonged to an earlier and different period of international law. Nowadays the influence is not confined to a few leaders among the publicists. No doubt, as O’Connell says, one has to be careful where writers seem to be largely copying each other; and yet the fact of the matter is that sheer weight of numbers of writers, especially when they come from different contexts and write in different languages, but all saying essentially the same sort of thing, can be very influential, not least before a court when the views are presented by skilled advocates. Who could deny that the jus cogens idea has owed a great deal to the influence of a body of opinion of publicists all engaged on a parallel endeavour, and to their common influence rather than to the authority of any particular one or two of them? The conversion of the important political idea of “self-determination” into a so-called international law “right” of certain kinds of peoples, even though defective in many if not most of the essential qualities of a “right” properly 2 See O’Connell D.P., International Law (2nd ed.), vol. i, London, 1970, p. 16. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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s­ o-called, and even though it has been a cause of much instability and bloodshed, must be laid largely at the door of the professors of international law. Furthermore it is obvious that the law of human rights, though now it is embodied in treaties and in some constitutions, had its initial impetus in the writings, and not least by the early and now almost forgotten particular work of Sir Hersch Lauterpacht in his early and pioneering work, “An International Bill of the Rights of Man”.3 The importance of that pioneering work was that Lauterpacht was not content to talk in then usual large and general terms about human rights but thought out a draft bill of such rights, and set it all down, article by article. There is no doubt about the powerful influence of that work on the development of a law of human rights. Lauterpacht, however, who greatly revered McNair, was quite clear about the nature of the task he had undertaken in that early work on human rights. In his Preface he says: “In leaving the safe path of expounding the existing law and in choosing to propound schemes involving fundamental legal changes, the lawyer cannot legitimately complain of any trenchant criticism by the expert and by the layman alike”. Turning to another aspect of modem international law let us not forget that the ten year United Nations Conference on the Law of the Sea, which resulted in the 1982 Convention, radically changing even the fundamental principles of the international law of the sea, was triggered by one speech of Arvid Pardo, the Foreign Minister of Malta, who taught and believed that there were great riches at the bottom of the deep oceans and that these riches were the “common heritage of mankind”. That these riches proved to be a chimera did not prevent the radical revision of the law of the sea, which that single speech and idea in effect precipitated. It is beyond doubt therefore that the work of publicists has in fact always had a major part in the formation, development and elaboration of international law and that their practical influence over change and development of international law has probably been augmented rather than diminished in ­recent decades. This does not invalidate the dictum of Mr Justice Gray. He was, after all, merely describing the limited and technical purpose for which he, as a working judge, consulted the work of publicists in reaching his decision in that particular case. And in any event that is what Article 38 of the Statute of the ICJ also envisages. But it does show that the problem of writings as a source is altogether more complex than either Mr. Justice Gray or the drafters of Article 38 had envisaged. 3 Published in 1945, but the Preface is dated Cambridge, Eng. October, 1944. This pioneering work tends to be overshadowed by the larger work, International Law and Human Rights, 1950.

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What then should the attitude of judges and other members of international tribunals be towards this creative aspect of the work of publicists when it is cited as it were as an significant part of the legal history of the development of the legal rule of principle in question? The neat answer seems to be that, if a particular branch of law is at least in important part the result of certain writings of publicists, then the work of the writers will have become simply part of the history of the development of that branch of the law. The rule or principle would, on this hypothesis, be already to be found in the primary sources. If one needed to know what is meant now by the “common heritage of mankind” the court looks not at Pardo’s speech but at the text of the 1982 Convention and at later precedent cases. If the court wants to know the content of contemporary human rights law it does not look at Lauterpacht’s draft articles but at the United Nations Declaration or at several other instruments. But in actual practice this neat distinction, between writings as evidence of what the law is and writings as evidence of the history of its development into a rule found in the primary sources, tends to break down. If, for instance, a certain writer’s work was especially influential in the formation of a rule of law, what is more natural than to try to shed light on the meaning of the rule now, by referring to the hopes and intentions of a writer who was much involved in the beginnings of the rule? This has surely been the position with, for example, the writings of Gidel on the law of the sea. The fact of the matter is that it is extremely difficult – in some cases even impossible – for a court to draw a clear line between the use of writings strictly for the Mr. Justice Gray’s purposes and the work of writers in the larger field of the development and elaboration of the law. This is not to invalidate the belief of McNair that writers should endeavour always to observe a distinction between expounding the law and expounding proposals. But what court should do with the result, whatever it might be, is a different matter. It is also well to remember that Article 38.1 (c), as also Mr. Justice Gray dictum, deal with what should be done by a court or tribunal when deciding a dispute submitted for its decision. Litigation about disputes, however, is only a part, and moreover a marginal part, of the whole matter of the application and administration of the law. It is important to appreciate and to respect the difference between forensic behaviour on the one hand, and the routine application and administration of the law on the other. It is a weakness of the normal teaching of, and professional training in, the law – and probably this is especially true of international lawyers – that the sole practical question is always assumed to be what a judge should do and what counsel should do in the course of litigation over some identifiable legal dispute. The case-book method of teaching virtually assumes that the main if not the sole function of law and

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of lawyers is to deal with “disputes”. Yet, in the real-life everyday function of law in society, the dealing with actual legal disputes is only marginal. They are the instances where the law has failed, in spite of the arts of legislation and drafting, to provide a clear answer. The more important question is about the meaning and interpretation of legal rules as they function in the routine and non-litigious ordering of a society governed by the rule of law. The ideal rule of law is so wise, or at least so clear, that it tends to avoid the creation of disputes about it (disputes as to fact are of course another thing). This writer has sometimes thought that the legal adviser of governments should have a sounder and clearer experience of international law than those who see it mainly when acting as counsel or judges in the litigation of disputes. Article 38 deals only with disputes. It says so in terms when it provides what rules the court shall apply in deciding such disputes as are submitted to it. It is instructive at this point in the discussion now to consider what the late Sir Gerald Fitzmaurice had to say about these subsidiary means and what part they play in the determination of the rules to be applied. Fitzmaurice after all was in his time both a legal adviser of a government and much later an eminent judge both in the International Court of justice and in international arbitrations. He was evidently anxious to draw a clear distinction between the two “subsidiary means” stated in Article 38, namely ‘judicial decisions’ and the works of “the most highly qualified publicists”. In bringing into the equation the factor provided by that other subsidiary means of determination of rules of law, the “judicial decisions”. Sir Gerald said this (in Symbolae Verzijl, 1958, at p. 172): “When an advocate before an international tribunal cites juridical opinion, he does so because it supports his arguments, or for its illustrative value, or because it contains a particularly felicitous or apposite statement of the point involved, and so on. When he cites an arbitral or ­judicial decision he does so for these reasons also, but there is a d­ ifference – for, additionally, he cites it as something which the tribunal cannot ignore, which it is bound to take into consideration and (by implication) which it ought to follow unless the decision can be shown to have been clearly wrong, or distinguishable from the extant case, or in some way legally or factually inapplicable. Equally the tribunal, while it may treat juridical opinion as something which is of interest but no direct authority, and which the tribunal is free to disregard, will not usually feel free to ignore a relevant decision, and will normally feel obliged to treat it as something that must be accepted, or else – for good reason – rejected, but which must in any event be taken fully into account.”

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Here Fitzmaurice was looking at the problem primarily from the point of view of the advocate wishing to reinforce his own argument. But he also adds the reaction, which in his view is required of a judge, who is the recipient of an argument citing decided cases; a reaction that, in Fitzmaurice’s view, is wholly different from what he is supposed to do when faced with the citing of the works of a publicist, thus making a sharp distinction between these two sources, notwithstanding that they are bracketed together in Article 38 as being, both of them, ‘subsidiary means’ and that the text shows no hint that any difference of status or of function was intended to be conveyed. Fitzmaurice cites no authority for either of his propositions. Nor indeed does he produce any, argument in support. Nevertheless, this sharply made distinction and difference between the two “subsidiary means”, if it be a true one, clearly amounts to an important gloss on Article 38.1 (d). Fitzmaurice, however, was content to make the mere assertion, which he clearly regarded as simply beyond cavil. Is his view right; or does it perhaps simply reflect a general feeling that comes naturally to the common law-trained international lawyer, that precedent cases simply are by their nature more important and more persuasive than the views of the publicists? At first sight the Fitzmaurice distinction appears to be confirmed by the practice, and especially by the practice of the International Court of Justice which, as is well known never quotes the views of writers and publicists in its Judgments and Opinions; though this practice is only a convention and there is of course no corresponding rule in the Statute or in the Rules of the Court. This conventional practice seems however to have been the product not so much of any firm view or conviction about the respective importance of the two subsidiary means for the determination of rules of law, but rather of a somewhat squeamish fear of being thought to make invidious distinctions between publicists. This fear is understandable; for within the world circuit of professional international lawyers there is inevitably something of a club atmosphere. The practice of the ICJ not to cite writers in its decisions is one of those harmless habits that are not easy to defend but which it would be difficult, and probably also rather pointless, to endeavour to change. And in any event the opinions of writers are freely and frequently cited in separate and dissenting opinions as well as being commonly employed by counsel in their pleadings both written and oral; and these uses of publicists have long been accepted practice and do not seem to cause any embarrassment. As the Court has, in the nature of things, to take separate opinions into consideration, it follows that the views of writers might, even if indirectly, have played their part in the deliberations of the Court and of the drafting committee. Nor have the counsel of the parties ever hesitated to use the views of publicists both in w ­ ritten and in oral

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­ leadings. On the other hand it may be that, advocates prefer where possible p to cite cases simply because a cited case may find its way even into the text of the Court’s decisions, whereas the view of a publicist will not. It does not follow, pace Fitzmaurice, that a cited case has necessarily and per se had more influence on the judgment or Opinions of the Court than the views of an unmentioned publicist. There would appear to have been, at least one occasion, when the Court simply adopted, though without acknowledgment or hint of the source, a somewhat novel view, and even the very words in which that view had been expressed, in a published article by a publicist who happened later to be himself a judge of the Court, and was indeed a very senior member of the Court in the case in which his view was tacitly adopted. Probably the most important result of the Court’s decision in the Nottebohm case in 1955 was the establishment of what seemed then a somewhat innovative rule of a need in international law for there to be also what has become known as a “genuine” factual link, in as well as the existence of a formal nationality in law, for a person purporting before an international tribunal to be entitled to the diplomatic protection of a country of which he is undoubtedly a national The existence in the local law of a State’s nationality, as the Court said, “only entitles that State to exercise protection vis-a-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national” (I.C.J. Reports 1955, pp. 23 ff.). That idea is however to be found expressed in much the same terms, in a 1909 article by Basdevant who was a senior judge in the actual case.4 It is no doubt entirely natural for a judge who has also earlier been a publicist to recollect his own earlier views if they are apposite and provided they have not changed with the passing of time. The example does however raise a hypothetical question whether, if the Court were minded to express its decision in the actual terms of a work written by one who had not later become a Member of the Court, the Court would then think it right to employ those terms and ideas in its judgment but still without acknowledgement of the source? Another curious factor in this problem of the differences in the uses made of judicial decision and of publicists, is that the text of Article 38 does seem to be more specific in its instructions about the use (or “application” to use the term of the Article itself) of the work of publicists than in its instructions about the use of judicial decision. The Article does not speak of the writing, 4 See Revue de droit international privé, vol. 5, p. 56. I am indebted to Professor Kurt Lipstein for this reference and it was indeed his discovery (he was also counsel in the Nottebohm case). See his article in Gedachinisschrift Ludwig Marxer, 1963, pp. 304 ff.

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or even the publications, of publicists of the various nations, but about their “teachings”. This term “teachings” was presumably an attempt at a translation of the French “doctrine”, and it might in fact have been better translated simply as “doctrine”. The idea of doctrine seems to introduce a new factor. It suggests that an examination of the works of publicists in the plural, may be used to find out whether a view is one which may be said to constitute a teaching or doctrine that is accepted by publicists in general of at any rate by a considerable number of them. But such a search for the doctrine or teachings of the publicists is nowadays a very different proposition from the situation contemplated by Mr. Justice Gray in 1900. The teachings of the publicists is now a very different matter from the statements found in the works of a handful of eminent writers a century ago. Much of the work of publicists today is embodied in the reports and resolutions of associations and institutions. There is, for example, the material to be found in the volumes of studies, reports and resolutions, published by the Institut de droit international; or indeed off the volumes published by the International Law Association, and also by many national or regional organisations which organise scholarly studies of particular subjects and problems. And of course both of the particular sources just mentioned had already long been in existence when Article 38 of the Court’s Statute was being drafted. These and other such sources of doctrine may or may not in particular instances make it clear whether they are dealing with the lege lata or the lege ferenda. The NGO pressure groups are usually much more concerned with causes, and therefore with de lege ferenda, rather than de lege lata. They are therefore probably more important for the shaping and changing of the law than for the work of tribunals. At this point however one finds oneself dealing not at all with the evidences of existing law but rather with the ways in which new international law is made. This is still of course within the crucial subject of the study of the sources of international law; but it is not the sense in which that term is used in Article 38; nor is it to do with the sources of law that a court will normally find itself dealing with in deciding a case on the basis of clearly existing and establishing law. This distinction is however nowadays often not easy to sustain. Pressure groups creating doctrine often find it advantageous to blur the distinction and to dress their proposals as existing law if it be properly understood. So we have to ask how far the maintenance of the distinction so strongly insisted upon by Mr. Justice Gray matters today. In the view of the present writer it matters crucially for the members of any international court or tribunal. The authority of a court or tribunal of law is based upon the supposition that it is applying existing and known law. The application of a known rule of law in new and

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perhaps unforeseen circumstances requires a creative and usually therefore unpredictable decision. But this kind of extension or elaboration of existing rules of law is manifestly and necessarily well within the remit of a court of justice. If on the other hand a court gives the appearance of having usurped the role of the legislator and made unmistakably new rules of law then it does so, however seemingly worthy the result may appear to be, at its peril. For the court is then by definition wholly lacking the authority to perform such a task, and the decision is open to challenge on grounds that are part of the general principles of law. There is also another reason why evident law-making by a court or tribunal is open to objection: a court of justice is not only not possessed of authority to attempt that task, its members are also probably unqualified to do so. Legislation certainly requires legal skills, especially at the drafting stage; but a legal training does not include training in matters of social policy or for example economic policy. The legislature of a developed state governed by the rule of law will consult many different interests and kinds of knowledge in deciding what new laws are needed. It is never left to the judges to decide. It may be added that this limitation is also valid for the work of publicists. They may and certainly do influence the direction of the development of the law, as we have already noted above; but that does not make them a source of law. Accordingly a tribunal faced with citations from writers should always be astute to distinguish between what is essentially propaganda for a certain point of view and what is a neutral and expert view on what the law of the moment really is. 2

Judicial Decisions

Obviously one cannot test the validity of the sharp Fitzmaurice distinction between the two subsidiary means by looking only at one of them. So it is necessary now to consider the attitude of tribunals, and in particular of the International Court of Justice (for it was that tribunal that Fitzmaurice surely had very much in mind) towards precedent judicial decisions. It is certain that the ICJ has always taken its own past decisions very seriously and is also in no way reluctant to mention the decisions of other tribunals that it has taken into consideration. There is, however, the complication that, as Fitzmaurice himself makes very clear, the advocate may cite a case before a tribunal merely for the same reasons as he might cite publications, namely because the case “supports his arguments, or for its illustrative value, or it contains a felicitous or apposite statement of the point involved”. If that be so, there is then a necessary inference that at any rate some of the cases introduced by the advocate

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addressing the tribunal, are not cited by him or by her as the kind of cases that the Court is obliged, just because they are judicial decisions, to take “fully into consideration” and either to follow or, if need be, distinguish. In short, it appears that a passage in a happily expressed judicial decision can be treated as if it were a useful published essay from which felicitous extracts may be used; not because they are per se special because they are judicial decisions but simply because they are felicitiously expressed. But if this is so, what then has happened to the Fitzmaurice notion that a court or tribunal is under a legal obligation to adopt a different attitude to judicial decision and to consider fully any case cited before it and either follow it or distinguish it? The answer is surely that judicial decisions may be used in a number of different ways and with different intentions. But is there technically a clear and identifiable difference between the process of considering a judicial decision as a useful source for a felicitous formula or paragraph and the process of using it as a decision that requires to be fully considered and either followed or distinguished? For if there is such a definable technical difference then we have found that basic difference between the use of judicial decisions and the use of the teachings of the publicists, that Fitzmaurice clearly considered of great importance. An answer to this question is clearly to be found in the common law systems of municipal law, all of which are all basically case law systems. To find “the precedent” – that which must be fully considered and either followed or ­distinguished – one needs to look not just at attractive passages of a judgment but at the decision made by the court regarding the case as a whole. One examines the decision as a whole to find out what was the juridical reasoning (the ratio decidendi) that resulted in the court’s decision in that kind of juridical problem produced by the facts and pleadings in that case, firmly setting to one side any obiter dicta; that is to say any views expressed in the judgment which were not an essential part of the reasoning which led to the decision of the tribunal. The precedent case itself was of course concerned only with the parties and facts of that particular case. In some, indeed in most, cases before that court the court’s view of the law will be clear and the decision will therefore be merely illustrative of the applicable law and will probably therefore not appear in the law reports. It is for the editor of the reports to make that decision. But if the case is one of those that, though involving the application of known and established existing rules of law, nevertheless has raised a new aspect or problem involved in the practical application of that law, then the case should be reported and will become a guiding precedent for that particular novel aspect of the already existing law. The process of distilling the ratio decidendi from the new and therefore reported precedent is a deductive process

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adding to the body of the relevant law a gloss dealing with not just the decision in the case but a precedent for dealing with any future cases involving the particular novel aspect of the right application of the rules or principles of law involved. It might be supposed that this sophisticated and developed process of dealing with precedent cases in common law systems is irrelevant to international law because it is bound up with the fact that the common law systems involve a rule of binding precedent, and Article 59 of the Statute of the International Court of Justice rejects the notion of binding precedent cases. These considerations are doubtfully relevant to the international law problem, however, for a system of binding precedent can only develop in a system where there is a clear hierarchy of courts, and where accordingly the higher court is by no means necessarily bound by the decisions of the courts below. In the international sphere there is no such hierarchy, indeed there is no thoughtout pattern of the mutual relationships of the multitude of international tribunals at all. Each one, as we have already seen, rather thinks of itself as an independent little empire of jurisdiction. The International Court therefore, even though it is the principal judicial tribunal of the United Nations, is in the extraordinary and remarkable position of being both a court of first instance and at the same time the ultimate and final court. There has never been any serious suggestion that the International Court of Justice would be bound by its own decisions or by the decisions of any other tribunal or court. There can be no doubt, however, that the Court does regard its own past decisions as usually strongly persuasive. But what exactly is it that is persuasive? Is it something that is analogous to the common lawyer’s method of finding the ratio decidendi which was determinative of the case; or is it just its decision on one point that happens to be useful in the instant case? The practice, as indeed also the theory, are not at all clear on this point. The ICJ habitually uses quotations from its own previous judicial decisions in very much the same way as it uses writings. One cannot make even a slight acquaintance of the reports of the decisions in both Judgments and Opinions of the International Court of Justice without perceiving that short passages from its own judicial decisions are quite often cited because of the pertinence and utility – rather than the felicity of phrase – of the quoted passage of the text. In such instances the Court often makes little or no attempt to examine the reported decision as a whole or to identify an underlying principle of the decision in the case; for to find the persuasive precedent decision may or may not be the purpose of the exercise. It is not easy to see how this frequent use of single short passages from a judgment differs in principle or in practice from the use of other passages from the ‘teachings of the most highly

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qualified publicists of the various nations’, which the Court is there entitled to use in its decisions but does not do so in actual practice. It is no doubt true that an advocate citing a previous judicial decision by the Court itself can confidently expect the Court to take careful notice of it. But that is not so much because the Court recognises it as being in a special category of importance because it is a “judicial decision”, but rather simply because it is part of the text of a decision by the Court or of its predecessor. Binding precedent is rejected but a feeling for consistency, and respect for earlier decisions, are both very strong and lead in practice to a practical result which is one, not of binding precedent, but of certainly of strongly persuasive ­precedent. It is this resulting practical situation that one supposes that Fitzmaurice knew very well from his own experience and was endeavouring to describe and to warn about. It is not that judicial decisions are in a special category per se but that judicial, and indeed other, decisions of the “principal judicial organ of the United Nations”, or of its predecessor are rightly thought to be in a special category. And this clearly applies to judicial text that is cited as a useful or felicitous expression without much regard to the decision as a whole. Indeed it would not be far out to say that the Court is sometimes inclined to cite certain isolated passages from its previous reported Judgments and Opinions as if it were some kind of Holy Writ. Take, for one example, the very frequently cited passage from a judgment of the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case,5 where there was a question whether or not the Court had jurisdiction over a case between Greece and the Mandatory for Palestine (Great Britain), where Article 26 of the Mandate provided that …if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of I­ nternational justice provided for by Article 14 of the Covenant of the League of Nations. The question having been raised whether this was in fact such a dispute, the Court devised the now famous and much repeated answer:

5 PCIJ, Series A, No. 2, 1924.

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A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. The present suit between Great Britain and Greece certainly possesses these characteristics. This “definition” of a dispute, as all scholars of the law reports well know, has been cited since then in virtually any case before either the Permanent Court or the present Court, in which the question of what is a dispute has been raised. This is curious because in this favourite passage the Court had simply fallen into that logic trap that lawyers love to set for themselves and comfortably to fall into, of supposing that problems of definition can be solved by finding a synonym or even an approximate synonym for the word to be interpreted. All law reports are full of instances of this fallacy. In the Mavrommatis case there was really no great difficulty about the original term “dispute”; for it is what international lawyers, in a different context, would readily hold to be a ‘plain term’ which therefore does not call for interpretation. And the term is rendered, in its context in the text of the Mandate, even plainer when it confers the Court’s jurisdiction over “any dispute whatever between the Mandatory and another Member of the League of Nations relating to the interpretation and application of the provisions of the Mandate…”. So it is not disputes in general that are subject to the jurisdiction but only this particular sort of dispute. The word “disagreement”, on the other hand, is not any plainer, if indeed it is as plain, as the word dispute. The drafters of the Mandate would not have dreamt of conferring jurisdiction over “any disagreement whatever…”. And there are many “disagreements” that do not amount to “disputes”. It is a much less exact term. Negotiated settlements of disputes by agreements to differ or disagree are common and useful and designed to avoid disputes And what subjected the disagreement in the 1924 case to the Court’s jurisdiction under the terms of the Mandate was that at least one of the two parties in disagreement had decided to treat the disagreement as a “dispute” concerning the interpretation or application of the Mandate. How does it help to say that the dispute is a disagreement? And the question put to the Court was not whether this was truly a dispute, which it manifestly was, but whether it was a dispute concerning the interpretation or application of the Mandate. This problem was not advanced in any way by defining a dispute as a disagreement. It is simply irrelevant to suggest, as the Court seems to be doing, that it had jurisdiction because the alleged dispute was a disagreement of fact or law. No doubt it is a disagreement; but the Court was not given jurisdiction over mere disagreements even when they were about the interpretation and application of the Mandate.

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Furthermore, neither a dispute nor yet a disagreement is necessarily one between “two persons”. This was a most extraordinary suggestion from the Court in which third parties are given rights of intervention, and in which the extension of a dispute to third parties has arisen before the Court itself in so many disputes over maritime and land boundaries. The reason this passage has been cited in so many successive cases as the embodiment of juristic wisdom is no doubt simply because it is a handy and memorable phrase. Drafting committees are always glad to find or remember such phrases that seem to provide an easy and convenient further step in the drafting process and the very use of which can create an impression that some definite advance has been made in that process just by recollecting and quoting them. Certainly, even where one has a system of binding precedent and is therefore careful to define very carefully what it is that is binding, a court might still cite a single passage from a previous decision because it was a felicitous expression of what one wishes to say. The decisions of Lord Stowell in the English Court of Admiralty, provided a rich source of such tempting and even delicious quotations. This use of what, in the contemporary language, might be called “sound bites”, is a very different process from that of the finding of the principles of decision of the whole case, and of discarding obiter dicta, this all for purpose of finding what precisely it is that, in Fitzmaurice’s terms, ought to be fully considered and either followed or distinguished. Whatever it might be, this special quality surely cannot be found in an obiter dictum like the favourite sentence from the Mavrommatis case. There is however another peculiarity of the practice of the International Court of Justice. As we have already seen, the Court is always ready to cite and to use its own past decisions, and to quote its own past use of language. But the Court is nevertheless somewhat hesitant to rely upon decisions of any other tribunal, unless indeed that decision falls to be mentioned as part of the facts of the case. This again is understandable. The very number and different kinds of such tribunals militates against any eagerness of the Hague Court to rely upon this maize of often conflicting decisions of other tribunals including nowadays of a growing number of arbitration tribunals that have been established ad hoc for a particular case. Nevertheless, the Court has recently shown that it is prepared to cite and consider in its judgments the decisions of municipal courts where these seem to be highly relevant and especially where such a decision has been strongly relied upon in the argument of at least one of the parties. Thus, very recently, in the Case Concerning the Arrest Warrant of 11 April (Democratic Republic of the Congo v. Belgium, 14 February 2002) the Court carefully considered inter alia

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the decision of the English House of Lords in the Pinochet case, and the decision of the French Court of Cassation in the Quadaffi case; mainly no doubt because they had been much relied on in the argument, but also because the Court, having carefully examined both these decisions, felt it incumbent upon it to say that it had been unable to deduce from them the conclusions that one of the Parties had wished it to draw (see paras. 57 and 58). Even so, however, it probably cannot be said that the Court considered these English and French decisions simply because, since they were “judicial decisions”, it therefore felt obliged to do so. There can however be difficulties with the precedent decisions of other courts and tribunals arising from their largely uncharted relationship – or perhaps their lack of any relationship – with the International Court of Justice. In the case of Loizidou v. Turkey (40/1993/435/514) the European Court of Human Rights distinguished the “long-established practice of the International Court of Justice” in respect of the interpretation of a well known form of reservation to compulsory jurisdiction. Turkey had used the identical text in a reservation to jurisdiction of the Strasbourg Court obviously supposing that the ICJ view of this text would prevail, as indeed Turkey had clearly assumed must be the position. The Strasbourg Court, however, felt free to depart from the precedent views of the International Court of Justice on the meaning and effect of the identical text “because of the substantial differences between the two systems. The International Court of justice is a free-standing international tribunal which has no links to a standard-setting treaty such as the Convention” [the European Convention on Human Rights]. The notion that the “Principal Judicial Organ of the United Nations”, and presumably unlike the Strasbourg Court, is a “freestanding international tribunal” is not easy to interpret. But it seems to depend on the further statement that the Court has no links with a “standard-setting treaty”. Some might no doubt take the view that the United Nations Charter qualifies as a standard-setting treaty. What is clear, however, is that this road, whatever the reasons for going along it, leads directly to the fragmentation of international law. The Strasbourg decision is a sad precedent, for it assumes that there is no legal international community; a situation that only too many powerful operators will be glad to endorse. Where there is a real legal community, such as that existing in any State system governed by the rule of law, the many different tribunals are connected by some sort of common constitutional law; even if the result of that law is that a particular tribunal is independent in certain matters, the crucial point being that it then derives its independence from, and within the limits set by the general law of the State constitution.

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3 Conclusions This brief inquiry into the subsidiary sources today takes us back eventually to first principles. Both judicial decisions today and the teachings of publicists today are much harder to manage than they used to be, largely because of the oversupply of both of these possible means for the determination of rules of law. So perhaps one should end by two brief statements of the basic principles by that great international lawyer of the English school, James Leslie Brierly, in his short but ever clear and fresh little book The Law of Nations (these quotations are from his own 5th edition of 1954). Of judicial precedents he says, Precedents are not binding authorities in international law, but the English theory of their binding force merely elevates into a dogma a natural tendency of all judicial procedure. When any system of law has reached a stage at which it is thought worth while to report the decisions and the reasoning of judges, other judges inevitably give weight, though not necessarily decisive weight, to the work of their predecessors or colleagues. And of what he calls Text-writers, he says, The function of text-writers in the international system is in no way peculiar; it is a misapprehension to suppose that they have or claim any authority to make the law. Actually they render exactly the same services as in any other legal system. One of those services is to provide useful evidence of what the law is. [Here he quotes Mr. Justice Gray and then continues:] Another function of text-writers is referred to by Mr. Justice Gray when he speaks of their “speculations concerning what the law ought to be”, for their writings may help to create opinion which may influence the conduct of states and thus indirectly in the course of time help to modify the actual law… But it is important not to confuse these two functions, the providing of evidence of what the law is, and the exercise of influence on its development. As to the important distinction made by Fitzmaurice, one may again end with one short paragraph from Brierly: The notion that the position of international differs from that of other legal writers is perhaps due to two causes. The first is that in the past the

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influence of international writers as exponents of the law has not been brought into competition with the influence of judges. The second is that continental lawyers neither exalt the function of the judge, nor depreciate that of the text-writers, to the extent that the training of English lawyers leads them to do.

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Chapter 34

Christine Bell, Peace Agreements: Their Nature and Legal Status, 2006 Comment by Hae Jin Choo, Intern, BIICL Ten years after ‘Peace Agreements: Their Nature and Legal Status’ was published in the American Journal of International Law, this innovative and thoroughly researched article by Christine Bell on peace agreements and lex pacificatoria remains more relevant than ever in the current environment of continuous world conflict resolved intermittently with temporary truces. Christine Bell began her legal career studying at Cambridge (1988) and went on to obtain an LLM from Harvard (1990). She became a barrister in 1990 and later qualified as an attorney in New York. She was a Director of the Centre for International and Comparative Human Rights Law at Queen’s University, Belfast from 1997 to 1999, and a Professor of Public International Law and a founder of Transitional Justice Institute at the University of Ulster from 2000 to 2011. She is presently Professor of Constitutional Law at the University of Edinburgh, a co-director of the Global Justice Academy and a member of the British Academy. Her main research interests lie in the interface between constitutional and international law, gender and conflict, and legal theory, with a particular interest in peace processes and their agreements.a ‘Peace Agreements’ is notable for winning the American Society of International Law’s Francis Deake Prize, a prize awarded to young authors for exemplary scholarship published in the American Journal of International Law. It explores the role of peace agreements in peace processes from a legal perspective. Bell explains that, despite appearing to be legal agreements, ­substantive peace agreements are difficult to place within existing international ­legal categories, particularly when they are signed directly by non-state parties. She ­examines whether they are treaties as defined in the Vienna Convention on the Law of Treaties, or, if not, what legal status they have, if any. She asks whether it matters if peace agreements are legally binding or not, and to what

a Biography of Professor Christine Bell, available at .

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_035

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extent this affects compliance. She compares binding agreements with soft law or informal agreements in terms of their effectiveness, concluding that the legal status of a peace agreement might matter. Her analysis thus contributes not only an in-depth study of peace agreements, but also to the wider literature on the nature of treaties and other sources of international legal obligations. The article thoroughly dissects various examples of peace agreements to draw on their commonalities that converge to demonstrate an emerging lex pacificatoria. Bell argues that an in-depth understanding of lex pacificatoria may lead to an improved understanding of how to enhance compliance with peace agreements and has implications for future development of international law. Her ideas are developed further in a book called On the Law of Peace: Peace Agreements and the Lex Pacificatoria (2008) published two years later.b As yet another truce brokered by the USA and Russia on a ceasefire in Syria fails, there is almost a duty on international jurists to contribute to the promotion of international peace by examining why certain peace agreements fail and some succeed. As Bell argues, acknowledging the law of lex pacificatoria may provide international legal scholars with a platform to help them have a better understanding of how to foster successful peace processes and increase observance of peace agreements. b Ibid.

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C. Bell, ‘Peace Agreements: Their Nature and Legal Status’ (2006), 100 American Journal of ­International Law, pp. 373–412. Reproduced with the kind permission of Cambridge University Press.

Peace Agreements: Their Nature and Legal Status Christine Bell* The last fifteen years have seen a proliferation of peace agreements. Some 50 percent of civil wars have terminated in peace agreements since 1990, more than in the previous two centuries combined, when only one in five resulted in negotiated settlement.1 Numerically, these settlements amount to over three hundred peace agreements in some forty jurisdictions.2 International standards have even begun to regulate peace agreements. United Nations guidelines, guidelines and recommendations of the secretary-general, and Security Council resolutions have all normatively addressed peace agreements: both the processes by which they are negotiated and their substance, particularly with relation to accountability for past human rights abuses.3 * Professor of Public International Law, Transitional Justice Institute, University of Ulster. The author would like to thank Colm Campbell, Kathleen Cavanaugh, Christine Chinkin, John Darby, Shane Darcy, Jeremie Gilbert, Christopher McCrudden, Ian Martin, Fionnuala Ni Aolain, Ursula O’Hare, Ruti Teitel, Colin Warbrick, and David Wippman for comments on earlier drafts; and also William Twining for earlier advice. The author also thanks Catherine O’Rourke for invaluable research assistance and comments; Joy Bell, Megan Fairlie, and Catherine Turner for proofreading; and John McNee and John McCann for assistance with Larin. Mistakes that remain are the author’s own. 1 TIMOTHY D. SISK, PEACEMAKING IN CIVIL WARS: OBSTACLES, OPTIONS, AND OPPORTUNITIES (Kroc Inst. Int’l Peace Stud., Occasional Paper Series No. 20:0P:2, 2001), available at ; see also A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565, 85 (2004); In Larger Freedom: Towards Development, Security and Human Rights for All Report of the Secretary-General, UN Doc. A/59/2005 & annex, 108 (2005); cf Peter Wallensteen & Margareta Sollenberg, Armed Conflicts, Conflict Termination and Peace Agreements, 1989–96, 34 J. PEACE RES. 339 (1997). 2 CHRISTINE BELL, PEACE AGREEMENTS AND HUMAN RIGHTS, app. (2000). See also the increasing number of Web sites and publications dedicated to making the text of peace agreements available, for example, Conciliation Resources, ; U.S. Institute of Peace, ; and INCORE: University of Ulster, . 3 See Women, Peace and Security, Report of the Secretary-General, UN Doc. S/2004/814; SC Res. 1325 (Oct. 31, 2000); UN Press Release SG/SM/7257, Secretary-General Comments on Guidelines Given to Envoys (Dec. 10, 1999) (noting the issuance of guidelines addressing human rights and peace negotiations); UN Common on Hum. Rts., Addendum: Updated Set

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The rise of the peace agreement has four common threads. The end of the Cold War saw an increase both in violent conflict occurring mainly within state borders (although often with transnational dimensions), and in the international attention devoted to such conflict.4 Second, a common approach to conflict resolution emerged that involved direct negotiations between ­governments and their armed opponents, who were treated for these purposes as equals.5 This approach contrasted with earlier methods of noninterference or engaging primarily with states, often through regional frameworks.6 Third, this method resulted in a common approach to settlement design that linked cease-fires to agreement on new political and legal arrangements for holding and exercising power. Fourth, hard-gained settlement terms were formally documented in written, signed, and publicly available agreements, involving both domestic and international participation. While the events of September 11, 2001, appear to have accelerated a renewed focus on interstate conflict, surprisingly perhaps, the widespread use of peace agreements has quietly continued and even found new contexts.7 Peace agreements have become relevant to attempts to reconstruct societies in the wake of interstate conflict, as evidenced by the situations in Kosovo, Mghanistan, and Iraq. Here, the interstate use of force has led to international involvement in internal state building. This project has required the forging of accords between conflicted groups through a process of constitution making as negotiated agreement.

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of ­Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, UN Doc. E/CN.4/2005/102/Add.1 [hereinafter Principles to Combat Impunity]; see also The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, Report of the Secretary General, UN Doc. S/2004/616 (providing for a series of recommendations for negotiations, peace agreements, and Security Council mandates); Report of the Panel on United Nations Peace Operations [Brahimi Report], UN Doc. A55/305-S/2000/809, 58 (providing for UN ability to put conditions on peace agreements in which it will be asked to be involved); cf A More Secure World, supra note 1, 103, 226–28, 264; In Larger Freedom, supra note 1, passim. INTERNATIONAL LAW AND ETHNIC CONFLICT (David Wippman ed., 1998); Patrick M. ­Regan, Conditions of Successful Third-Party Intervention in Intrastate Conflicts, 40 J. CONFLICT RESOL. 336 (1996). Christopher Clapham, Rwanda: The Perils of Peacemaking, 35 J. PEACE REs. 193, 194 (1998) (arguing that a new notion of “standing” emerged after the Cold War, which required that all parties to the conflict be recognized as valid participants in any peacemaking process). See MALCOLM N. SHAW, INTERNATIONAL LAW 1036–39 (5th ed. 2003) (on noninterference). For an example of a regional framework that focused on the state and required disarming of armed opposition groups as a precursor to direct negotiations, see ­Agreement for Procedure on Establishing Firm and Lasting Peace in Central Arnerica, Aug. 7, 1987, C ­ ostaRicaEI Sal.-Guat.-Hond.-Nicar., UN Doc. A42/521-S/19085, annex (1987), 26 ILM 1166 (1987). See peace agreement Web sites cited supra note 2. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Despite the prevalence of documents that could be described as peace agreements, and the emergence of legal standards addressing them as a category, the term “peace agreement” remains largely undefined and unexplored. The label is often attached to documented agreements between parties to a violent internal conflict to establish a cease-fire together with new political and legal structures.8 A decade and a half of post-Cold War practice has given rise to a growing scholarship on peace agreements, particularly in the social science and conflict resolution fields. However, this literature has paid little attention to the role of the peace agreement as a binding document. Social scientists and conflict resolution analysts have examined what makes peace agreements succeed or fail. They have tried to isolate the different elements of settlements, so as to test empirically and through case studies the extent to which they reduce conflict.9 This research, in its design and results, treats peace agreements as a group but tends to accord a limited role to the related questions of how an agreement is worded and whether or not it is a legal document. It focuses on the prime factors affecting compliance as the dynamics of third-party interventions;10 the structural characteristics of conflict processes, such as the role of “ripeness” and economics;11 changing regional and/or systemic power relationships and balances;12 and the range of issues covered by the agreement (with some attention to settlement design).13 Legal literature, 8 BELL, supra note 2, at 6. 9 See generally ENDING CIVIL WARS: THE IMPLEMENTATION OF PEACE AGREEMENTS (Stephen John Stedman, Donald Rothchild, & Elizabeth M. Cousens eds., 2002); FEN OSLER HAMPSON, NURTURING PEACE: WHY PEACE SETTLEMENTS SUCCEED OR FAIL (1996) (for overviews of the field). 10 See, e.g., Kristian Skrede Gleditsch & Kyle Beardsley, Nosy Neighbors: Third-Party Actors in Centra/American Conflicts, 48 J. CONFLICT RESOL. 379 (2004); Regan, supra note 4; Stephen John Stedman & Donald Rothchild, Peace Operations: From Short- Term to LongTerm Commitment, 3 INT’L PEACEKEEPING 17, 25 (1996) (giving some limited attention to the clarity of a peace agreement); Barbara Walter, The Critical Barrier to Civil War Settlement, 51 INT’LORG. 335 (1997). 11 See, e.g., I. WILLIAM ZARTMAN, RIPE FOR RESOLUTION (1985); WORLD BANK, CONFLICT PREVENTION AND RECONSTRUCTION UNIT, BREAKING THE CONFLICT TRAP: CIVIL WAR AND DEVELOPMENT POLICY 83 (2003), available at . 12 See, e.g., James D. Fearon & David D. Laitin, Ethnicity, Insurgency, and Civil War, 97AM. POL. SCI. REV. 75 (2003). 13 See, e.g., VIRGINIA PAGE FORTNA, PEACE TIME: CEASE-FIRE AGREEMENTS AND THE DURABILITY OF PEACE (2004); LOUIS KRIESBERG, CONSTRUCTIVE CONFLICTS: FROM ESCALATION TO RESOLUTION 283–84 (1998); Dorina A. Bekoe, Toward a Theory of Peace Agreement Implementation: The Case of Liberia, 38 J. ASIAN & AFR. STUD. 256 (2003); Ulrich Schneckener, Making Power-Sharing Work: Lessons from Successes and Failures in Ethnic Conflict Regulation, 39 J. PEACE RES. 203 (2002); Stephen John Stedman, Spoiler Problems in Peace Processes, 22 INT’L SECURITY 5 (1997). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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in contrast, has produced detailed appraisals of the terms, structure, and legal ­nature of specific agreements14 but little sustained analysis of peace agreements per se.15 Each position is worth challenging. As regards legal literature, the scale of the phenomenon of peace agreements; the emerging body of standards dealing with them as a group; and a range of common practices relating to their ­negotiation, design, content, and implementation-all point to a set of documents with common legal features. As regards social science literature, the sidelining of the legal attributes of peace agreements with respect to compliance or implementation flies in the face of even the most nuanced accounts of why law might matter. Further insight into compliance is useful, given that research suggests that nearly half of all peace agreements break down within five years, and more within a ten-year period, while many of the remainder enter a “no war, no peace” limbo whose evaluation is difficult.16 This article explores the role of peace agreements in peace processes from a legal perspective. In particular, it examines when and how peace agreements emerge in peace processes (Part I), and the extent to which they take recognizable legal forms or are “legalized” (Part II). This discussion is used to explore the relationship between legalization of peace agreements and compliance 14

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Most notably, the Israeli/Palestinian Oslo Accords. GEOFFREY R. WATSON, THE OSLO ACCORDS: INTERNATIONAL LAW AND THE ISRAELI-PALESTINIAN PEACE AGREEMENTS (2000); John Quigley, The Israel-PLO Interim Agreements: Are They Treaties? 30 CORNELL INT’L L.J. 717 (1997); see also Colm Campbell, Fionnuala Ni Aolain, & Colin Harvey, The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland, 66 MOD. L. REV. 317 (2003); P.H. Kooijmans, The Security Council and Non-State Entities as Parties to Conflicts, in INTERNATIONAL LAW: THEORY AND PRACTICE: ESSAYS IN HONOUR OF ERIC SUY 333 (Karel Wellens ed., 1998); Fionnuala Ni Aolain, The Fractured Soul of the Dayton Peace Agreement: A Legal Analysis, 19 MICH. J. INT’L L. 957 (1998); Steven R. Ratner, The Cambodia Settlement Agreements, 87 AJIL 1 (1993); Carsten Stahn, Constitution Without a State? Kosovo Under the United Nations Constitutional Framework for Self-­Government, 14 LEIDEN J. INT’LL. 531 (2001); Sienho Yee, The New Constitution of Bosniaand Herzegovina, 7 EUR. J. INT’L L. 176 (1996). But see STEVEN R. RATNER, THE NEW UN PEACEKEEPING: BUILDING PEACE IN LANDS OF CONFLICT AFTER THE COLD WAR 26–28 ( 1995) (for partial discussion of the legal obligations imposed by peace agreements in the context of their relevance to consent and UN peacekeeping); David Wippman, Treaty-Based Intervention: Who Can Say No? 62 U. CHI. L. REV. 607, 642–43 (1995). Cf (for materials approaching peace agreements as a group). Lawyers have also not looked particularly at social science insights into implementation. In Larger Freedom, supra note 1, ¶ 114; Bekoe, supra note 13; Roy Licklider, The Consequences of Negotiated Settlements in Civil Wars, 1945–1993, 89 AM. POL. SCI. REV. 681, 685 (1995).

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with them.17 The article argues (Parts III–V) that peace agreements are clearly legalized documents; that they have some characteristic features that persist across examples; and that these amount to a common legal practice-lex pacificatoria, or law of the peacemakers (Part VI).18 Recognizing peace agreement legalization as lex pacificatoria is argued to be useful in further understanding the relationship of law to compliance in this context. It facilitates informed exchange between different peace processes as regards how best to promote compliance; engagement with social science debates on the factors affecting an agreement’s success or failure; and understanding and challenging of the force of the lex. I

Patterns of Peace Agreements

As peace processes evolve, a wide variety of documents that can be termed “peace agreement” are produced. These can usefully be classified into three main types, which tend to emerge at different stages of a conflict: prenegotiation agreements, framework/substantive agreements, and implementation/ renegotiation agreements.19 Prenegotiation Agreements The prenegotiation stage of a peace process, often termed “talks about talks,” typically revolves around how to get everyone to the negotiating table with an agreed-upon agenda. For parties to a long-term conflict, any move to the negotiating table is a trial-and-error process linked to whether they perceive themselves as getting more at the table than on the battlefield. For face-toface or proximity negotiations to take place at all, parties need assurances that the talks will not be used by the other side to gain military and/or political advantages.20 The prenegotiation stage tends to focus on who is going 17

This analysis, slightly adapted, is taken from Kenneth W. Abbott, Robert 0. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, & Duncan Snidal, The Concept of Legalization, 54 INT’L ORG. 401 (2000); see also infra text at notes 73–77. 18 The term lex paciftcatoria, however, is the author’s own. Cicero used the term “pacificatoria legatione,” or “delegation of peacekeepers” (translation by author), in CICERO PHILIPPIC, bk. xii, § 1, ¶3 (n.d.), reprinted in CICERO PHILIPPICS 508 (Walter C.A. Kerr trans., William Heinemann Ltd. 1926). 19 BELL, supra note 2, at 20–29; cf  Wallensteen & Sollenberg, supra note 1 (using different classification with some similarities). 20 C.R. MITCHELL, THE STRUCTURE OF INTERNATIONAL CONFLICT 206–16 (1981); ­ZARTMAN, supra note 11.

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to negotiate and with what status, raising issues such as the return of negotiators from exile or their release from prison; safeguards as to future physical integrity and ­freedom from imprisonment; and limits on how the war may be waged while negotiations take place.21 Often agreements emerging at this stage are incremental with the aim of building to a formal cease-fire that will enable multiparty talks. Typically, they do not include all the parties to the conflict but take the form of bilateral agreements between some of the parties and remain secret until a later date. Regional initiatives may also form a “pre” prenegotiation attempt to set or bolster a context for efforts at negotiations. The Harare Declaration,22 promulgated by the Organization of African Unity in 1989, set out conditions for multiparty talks in South Africa, which began to influence the parameters for negotiations, and formed the basis of Nelson Mandela’ s secret talks with President F.W. de Klerk.23 In Afghanistan in 1999, the “six plus two” group (four bordering states, the Russian Federation, and the United States) aimed at building a context for talks through their Tashkent Declaration.24 The prenegotiation stage, if successful, will culminate in some form of cease-fire and direct talks designed to resolve the substantive issues in the conflict. The agreements made at this stage, if published at all, have much more the feel of context setting declarations or political pacts than binding legal agreements. They tend to be recorded as “declarations” or “records” of agreement or mutual understandings, rather than as agreements using the language of obligation.25 These titles reflect the role of joint documents at this stage of the 21 MITCHELL, supra note 20. 22 Declaration of the OAU Ad-hoc Committee on Southern Africa on the Question of South Africa, Aug. 21, 1989, UN Doc. N44/697, annex, available at . 23 NELSON MANDELA, LONG WALK TO FREEDOM: THE AUTOBIOGRAPHY OF NELSON MANDELA 663 (Abacus ed. 1995). 24 Tashkent Declaration on Fundamental Principles for a Peaceful Settlement of the Conflict in Afghanistan], July 19, 1999, UN Doc. A/54/174-S/1999/812, annex, available at [hereinafter Tashkent Declaration]; cf  Joint Declaration of the EC Troika and the Parties Directly Concerned with the Yugoslav Crisis], July 7, 1991, reprinted in YUGOSLAVIA THROUGH DOCUMENTS: FROM ITS CREATION TO ITS DISSOLUTION 311 (Snezana Trifunovska ed., 1994) (EC attempt to set a context to address escalating hostilities in former Yugoslavia). 25 See, for example, the early agreements in South Africa between the African National Congress (anc) and the South African National Party (sag), and/or Inkatha (ifp), dealing incrementally with common commitments to end violence (Groote Schuur Minute, May 4, 1990, anc-sag); ending of armed actions and review of states of emergency (Pretoria Minute, Aug. 6, 1990, anc-sag); and implementing of antiviolence measures and stabilizing peace (Royal Hotel Minute, Jan. 29, 1991, anc-ifp; DF Malan Accord, Feb. 12, 1991, anc-sag). These documents are available online at , apart from the Royal Hotel Minute, which is reprinted in SOUTH AFRICAN INSTITUTE OF RACE RELATIONS, RACE RELATIONS SURVEY 1991–92, app. E, at 519 (1992). Joint Declaration on Peace: The Downing Street Declaration, Dec. 15, 1993, Ir.-U.K.; and Statement by the Taoiseach, Mr. Albert Reynolds, on the Joint Declaration on Peace (Dec. 15, 1993), at . Joint Declaration on Peace, supra note 26. EAMONN MALLIE & DAVID MCKITTRICK, THE FIGHT FOR PEACE: THE SECRET ­STORY BEHIND THE IRISH PEACE PROCESS 105–06 (1996).

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the conflict and thus to halt the violence more permanently. The agreements reached at this stage most clearly deserve the label “peace agreement.” They tend to be more inclusive of the main groups involved in waging the war by military means. They are usually public and formally recorded in written, signed form and include international participants. Those who stay outside the process are often those who choose to do so, so as to outbid the local signatories. The Burundi Peace Agreement, the Belfast Agreement, Sierra Leone’s Lome Agreement, and the South African Interim Constitution are all examples.29 Substantive/framework agreements establish or confirm mechanisms for demilitarization and demobilization intended to end military violence, by linking them to new constitutional structures addressing governance, elections, and legal and human rights institutions. These agreements vary in the degree of detail they contain—either full detail or principles with accompanying processes of reform may be provided. They also vary as to whether conflicts over sovereignty, statehood, and identify are completely resolved (as they largely were in South Africa); partially resolved and partially postponed (Northern Ireland); or almost completely postponed (Kosovo and Israel/­Palestine). Some processes work toward one framework agreement with lengthy and detailed provisions aimed at dealing holistically with the issues, such as the Belfast Agreement and the South African Interim Constitution.30 Other processes, such as those of Guatemala, El Salvador, and Burundi, build up consensus issue by issue in a set of agreements that are ultimately brought together or ratified by a comprehensive final agreement.31 Once framework agreements are reached in formal talks, their implementation requires parties to make fundamental compromises with respect to 29

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Arusha Peace and Reconciliation Agreement for Burundi, Aug. 28, 2000, available at [hereinafter Burundi Peace Agreement]; Agreement Reached in the Multi-Parry Negotiations, Apr. 10, 1998, 37 ilm 751 (1998), available at [hereinafter Belfast Agreement]; Peace Agreement, July 7, 1999, Sierra Leone-Revolutionary United Front of Sierra Leone (RUF/SL), available at [hereinafter Lome Agreement]; INTERIM CONST. (S. Afr.) (Act No. 200, Dec. 22, 1993), available at . Belfast Agreement, supra note 29; INTERIM CONST., supra note 29. See, e.g., Agreement on a Firm and Lasting Peace, Dec. 29, 1996, Guat.-Unidad revolucionaria nacional guatemalteca (urng), UN Doc. A/51/796 -S/1997/114 i 14, Annex ii, 36 ilm 258 (1997) [hereinafter Guatemala Peace Agreement]; Joint Declaration, Oct. 4, 1994, El Sal.-Frente farabundo marti para Ia liberacion nacional (fmln), available at [hereinafter El Salvador Agreement]; Burundi Peace Agreement, supra note 29.

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their preferred outcome and their use of force. They will do so only if they feel that the commitments they obtained from the other side are going to be ­implemented. This need for reciprocity is reflected in the attention the parties pay to the detail of the wording of agreements and the frequent use of lawyers during negotiations. Peace agreements share a legal-looking structure, with preambles, sections, articles, and annexes. They also share legal-type language, speaking of parties, signatories, and binding obligations. The structure and language of peace agreements suggest that the parties mutually view them as legal documents. However, they do not easily fit within traditional legal categories such as treaty, international agreement, or constitution. The main reason is that the conflicts themselves are neither clearly interstate nor clearly ­internal.32 Peace agreements deal both with the external legitimacy of the state and the transnational dimensions of the conflict, and with the state’s internal constitutional order. The presence of nonstate signatories tends to take them outside international legal definitions of “treaty” or “international agreement,” while the presence of multiple state parties tends to make them difficult to analyze as domestic legal documents. This feature is discussed further in Part II below. Implementation/Renegotiation Agreements Implementation agreements begin to advance and develop aspects of the framework, fleshing out their detail. The Israeli-Palestinian Interim Agreement (Oslo II) filled out and partially implemented the framework in Oslo I; the South African final Constitution developed and implemented the Interim Constitution.33 By their nature, implementation agreements involve new negotiations and in practice often undergo a measure of renegotiation as parties test whether they can claw back concessions made at an earlier stage. Implementation agreements typically include all the parties to the framework agreement. Sometimes implementation agreements are not documented, and sometimes they take on recognizable legal forms. Indeed, to some extent, the notion of ongoing agreements being “peace agreements” may begin to disappear at this point as the conflict resolution attempts of the peace process merge imperceptibly into the ongoing processes of public law, signifying a measure of success. Thus, treaties appear as a device to address and ­normalize 32 33

INTERNATIONAL LAW AND ETHNIC CONFLICT, supra note 4; Gleditsch & Beardsley, supra note 10, at 379; Regan, supra note 4. See Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995, Isr.-plo, 36 ilm 551 (1997) (Oslo ii); CONST. (S. Afr.) (Act No. 108, 1996, entered into force Feb. 7, 1997).

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regional ­relationships affected by the conflict.34 At the domestic level, peace ­agreements are often taken forward in the form of constitution making or legislation, a step removed from the main peace agreement, as is dealt with further in Part III below. Conversely, implementation may be uneven or nonexistent; in such cases, implementation agreements can in effect involve renegotiation and new agreements whose relationship to the former peace agreement is often unclear. The quite different examples of Sierra Leone, L­ iberia, and the later Israeli-Palestinian agreements all illustrate the potential ambiguity in characterizing an agreement as an implementing, renegotiated, or entirely new instrument.35 In summary, peace processes produce documents at the prenegotiation and implementation stage whose characterization as peace agreements could be contested. However, they indicate that many substantive/framework agreements constitute peace agreements par excellence. These agreements form the main focus of the remainder of the discussion. II

Peace Agreement Legalization

The Difficulties of Legal Categorization Despite appearing to be legal agreements, substantive peace agreements are difficult to place within existing international legal categories as positively understood. Such classification is hampered by the limitations of the categories, especially their unsuitability with regard to accommodating the hybrid subject matter of peace agreements and their mix of state and nonstate signatories. According to Article 2 of the Vienna Convention on the Law of Treaties of 1969, much of which is accepted as restating customary international law, a treaty is “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”36 34

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See, e.g., Agreement on the Normalization of Relations, Aug. 23, 1996, Croat.-Fed. Rep. Yugo. (fry), 35 ilm 1219 (1996); Treaty of Peace, Oct. 26, 1994, Isr.-Jordan, 34 ilm 43 (1995); see also Agreement on the Regulation of Relations and Promotion of Cooperation, Apr. 8, 1996, fry-Maced., 35 ilm 1246; Agreement on Special Parallel Relations, Feb. 28, 1997, fry-Rep. Srpska, available at . See agreements concerning Sierra Leone, 1996–99, at ; Accords of the Liberian Conflict, 1990–96, at ; Israel-Palestine peace agreements, 1993-present, at . Vienna Convention on the Law of Treaties, May 23, 1969, Art. 2, 1155 unts 331 [hereinafter Vienna Convention].

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The definition suffers from ambiguities.37 In particular, although ­commentators and judicial bodies alike regard intent as crucial to treaty formation, the notion is at best implicit in the Convention.38 Intent to be bound can be ascertained from the text of the agreement and surrounding evidence about the intentions of the parties, such as the subject matter of the obligations and the choice of language.39 This evidence can raise difficulties for peace agreements, which deal with a state’s internal institutions and structures, albeit so as to affect the nature and legitimacy (and sometimes territorial integrity) of the state on the international plane. Nevertheless, if the Vienna Convention’s definition is used as a starting point, some peace agreements appear to be treaties. Peace agreements in “pure” interstate conflicts clearly constitute treaties, although in the last fifteen years, these have been a minority.40 Treaties can also be used to address conflict with a mainly internal dimension. Parties to a conflict that were not states at its onset can have attained that status by the time a peace agreement is reached, as the General Framework Agreement for Peace in Bosnia and Herzegovina, or Dayton Peace Agreement (dpa), illustrates.41 However, other agreements signed directly with nonstate parties would seem to fall outside the strict definition of a treaty under the Vienna Convention, posing the question as to what legal status, if any, such agreements have. The definition was accepted as narrow at the time the Convention was concluded, in particular because it excluded oral agreements and, critically for this discussion, agreements signed by “other subjects of international law.”42 However, these omissions were remedied by Article 3 of the Vienna Convention (and a second convention in 1986

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Arguably, it places emphasis on a positivist notion of the treaty as a “formal instrument” defined by formalist criteria, rather than as a substantive “source of obligation,” although these two concepts are both present to some degree. SHABTAI ROSENNE, DEVELOPMENTS IN THE LAW OF TREATIES, 1945–1986, at 14–15 (1988). See, e.g., SHAW, supra note 6, at 812. See Vienna Convention, supra note 36, Art. 31; cf  MARITI KOSKENNIEMI, FROM APOLOGY TO UTOPIA 300 (1989) (on the difficulty of constructing intention). For a review of interstate wars since 1990, see MONTY G. MARSHALL & TED ROBERT GURR, PEACE AND CONFLICT 2005: A GLOBAL SURVEY OF ARMED CONFLICTS, SELFDETERMINATION MOVEMENTS, AND DEMOCRACY 11–12 (2005), available at (references concerning five interstate conflicts, the majority of which have some relationship to intrastate conflict and follow similar peace agreement patterns, to some extent). General Framework Agreement for Peace in Bosnia and Herzegovina, Dec. 14, 1995, 35 ilm 75 (1996) [hereinafter DPA]. See, e.g., ROSENNE, supra note 37, at 11.

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providing for treaties between states and international organizations), which together provided for the legal status of agreements that prior to 1969 were regarded as treaties.43 Article 3 states: The fact that the present Convention does not apply to international agreements concluded between states and other subjects of international law or ­between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law ­independently of the Convention; (c) the application of the Convention to the relations of states as between themselves under international agreements to which other subjects of international law are also parties. This provision is significant for the current discussion because it indicates that agreements between state and nonstate parties that are subjects of international law, or indeed between such nonstate parties alone, can be legally binding international agreements. Thus, customary law rules as regards formation and breach, similar to those codified in the 1969 Vienna Convention, apply.44 However, the Vienna Convention’s notion of “subjects of international law” leaves a gray area concerning who can claim such status that has assumed far greater importance than when the Convention was drafted in 1969, and is particularly relevant to practice relating to peace agreements.45 Three main groups who sign peace agreements have some basis for claiming the status of subjects of international law. While an extended discussion of their international legal status is beyond the scope of this article, a brief summary can illustrate their claims. Most obviously, armed opposition groups sign peace agreements as main protagonists of internal conflicts. In many peace agreements signed by armed 43

Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, Mar. 21, 1986, 25 ilm 543 (1986) (has a similarly worded Article 3); see also ARNOLD DUNCAN MCNAIR, THE LAW OF TREATIES (1961) (for law of treaties prior to 1969); ROSENNE, supra note 37, at 17–18 (noting International Law Commission drafts that included “any international agreement in written form … concluded between two or more States or other subjects of international law” as treaties). 44 See LINDSAY MOIR, THE LAW OF INTERNAL ARMED CONFLICT 53 (2002); Antonio Cassese, The Status of Rebels Under the 1977 Geneva Protocol on Non-international Anned Conflicts, 30 INT’L & COMP. L.Q 416, 423 (1981). 45 ROSENNE, supra note 37, ar 10–33 (noting the growth of the gray area in 1989; id. at 32).

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opposition groups, grounds can be found to assert that the parties intended the agreement to be binding on the international legal plane, and that the nonstate signatories were “subjects of international law”- based on the recognition of such groups under international law, in particular through ­humanitarian law.46 Many agreements potentially fulfill these criteria and could serve as examples; all use formal legal language and have international signatories. These include agreements in Angola (between the government and unita), Burundi (between the government, armed opposition groups, and political parties), the Democratic Republic of the Congo (between the government and armed opposition groups), Guatemala (between the government and Unidad revolucionaria nacional guatemalteca (urng)), El Salvador (between the government and the Frente farabundo marti para la liberacion nacional (fmln)), Israel/ Palestine (between the Israeli government and the Palestine Liberation Organization (plo)), Mozambique (between the government and renamo), Rwanda (between the government and the Rwandese Patriotic Front), and Sierra Leone (between the government and the Revolutionary United Front of Sierra Leone (ruf)).47 46

47

See, e.g., common Art. 3, Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 ust 3114, 75 unts 31; ­Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 ust 3217, 75 unts 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 ust 3316, 75 unts 135; and Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 ust 3516, 75 unts 287 [hereinafter Geneva Conventions]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 unts 3 [hereinafter Protocol i]; Protocol Additional to the Geneva Conventions of 1949, and Relating to the Protection of ­Victims of Non-international Armed Conflicts, opened for signature Dec. 12, 1977, 1125 unts 609 [hereinafter Protocol ii]; International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 1, 999 unts 171; International Covenant on Economic, Social and Cuirural Rights, Dec. 16, 1966, Art. 1, 993 unts 3; Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (xv) 4, 11, 18 (Dec. 14, 1960) (referring to “national liberation movements”); moir, supra note 44; LiESBETH ZEGVELD, ACCOUNTABILITY OF ARMED OPPOSITION GROUPS IN INTERNATIONAL LAW (2002); Cassese, supra note 44. See Lusaka Protocol, Nov. 15, 1994, Angola -Uniao nacional para a independencia total de Angola (unita), UN Doc. S/1994/1441, at ; Burundi Peace Agreement, supra note 29; Ceasefire Agreement, July 10, 1999, Aug. 1 & 31, 1999, Dem. Rep. Congo-other Afr. states-Movement for the Liberation of the Congo-Congolese Rally for Democracy (witnessed by international organizations), at ; Guatemala Peace Agreement, supra note 31; El Salvador Agreement, supra note 31; Israel-Palestine peace agreements, supra note 35; General Peace Agreement for Mozambique, Oct. 4, 1992, Mozam.-RENAMO, at ; Peace Agreement, Aug. 4, 1993, Rwanda Rwandese Patriotic Front, at ; Lome Agreement, supra note 29. S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 189 (2004). ILO Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, 28 ilm 1382 (1989); see ANAYA, supra note 48, at 15–31, 110; see also ANNA MEIJKNECHT, TOWARDS INTERNATIONAL PERSONALITY: THE POSITION OF MINORITIES AND INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2001); Joshua Castellino & Jeremie Gilbert, Self-Determination, Indigenous Peoples and Minorities, 3 MACQUARIE L.J. ISS (2003). Actions and Measures for Chiapas: Joint Commitments and Proposals, and related agreements (San Andres de Larrainzar Agreements), Mex.-Chiapas-Ejercito zapatista de liberaci6n nacional (ezln), Feb. 16, 1996, at ; Bangladesh: Chittagong Hill Tracts Treaty, Dec. 2, 1997, Bangl. Parbattya Chattagram Jana Samhati Samiti-inhabitants of Chittagong Hill Tracts, at ; Assam Accord, Aug. 15, 1985, India-Assam Students Union-All Assam Gana Sangram Prishad, and other agreements, reprinted in P.S. DATTA, ETHNIC PEACE ACCORDS IN INDIA ( 1995), Accord at ; Accord de Noumea, May 5, 1998, Fr.-Kanaks, at (the agreement was not signed, but proposed (Art. 6(5)) that a committee of signatories be set up to take into consideration opinions of local bodies consulted on the agreement, take part in the preparation of legislation, and ensure the proper implementation of the agreement. The agreement also notes that it was approved by the partners to the earlier peace accord); Agreement on Identiry and Rights of lndigenous Peoples, Mar. 31, 1995, Guat.-URNG, UN Doc. A/49/882-S/1995/256, 36 ilm 285 (1997), available at .

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the conflict. Similar agreements have been signed in situations that—while less clearly involving violent conflict—did involve ongoing land disputes connected with self-determination, and what could be called the “structural violence” of marginalization.51 Such agreements were concluded between South Mrica and the ‡Khomani San, and, in a rapidly growing number, between indigenous peoples and the Canadian government.52 Both types of indigenous peoples’ agreements evidence a legal nature, in terms of the language used, the type of commitments made by the parties, and the provision for detailed reciprocal bargains. The agreements also deal with matters integral to the notion of statehood, such as sovereignty, territory, government, and the language of “self-­determination.” In some cases, they provide for legislation to give commitments domestic legal status. Finally, political and military leaders of minority groups with secessionist claims in autonomous areas often sign peace agreements with the states in which they form a minority. These agreements include those between ­Georgia and Abkhazia, Moldova and Transdniestria, parties on the island of Bougainville and Papua New Guinea, and Russia and Chechnya.53 The agreements use

51 52

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JOHAN GALTUNG, PEACE BY PEACEFUL MEANS: PEACE AND CONFLICT, DEVELOPMENT AND CIVILIZATION 197 (1996) (frames the term “structural violence” to refer to any constraint on human potential due to economic and political structures). On the Final Agreement of March 21, 1999, between South Africa and the :j:Khomani San (comprising Mier Settlement and San Settlement) (Afrikaans version on file with author), see South Africa Press Release, Deputy President Mbeki and Minister Hanekom to Officiate at Khomani/Southern Kalahari San Land Claim (Mar. 12, 1999), at; Roger Chennells, The‡ Khomani San Land Claim, 26 CULTURAL SURVIVAL Q. 51 (2002). A summary of the Canada-Nisga’ a Framework Agreement, 1991, Can.-Brit. Colum.-Nisga’a Tribal Council, and a full list of Canadian agreements are available at . The Agreement-inPrinciple, Feb. 15, 1996, and the Final Agreement, Aug. 4, 1999, Can.-Brit. Colum.-Nisga’a Tribal Council, are available at (and linked archive). For full texts of the Georgia-Abkhazia agreements, see A QUESTION OF SOVEREIGNTY: THE GEORGIA ABKHAZIA PEACE PROCESS, ACCORD, Sept. 1999 (Jonathan Cohen ed.), available at . On Moldova- Transdniestria, see, for example, Memorandum on the Bases for Normalization of Relations, May 8, 1997, Mold.-Transdniestria, at . On Bougainville-Papua New Guinea, see Lincoln Agreement on Peace, Security and Development on Bougainville, Jan. 23, 1998, Papua N.G.-Bougainville Transitional Gov’t-Bougainville Resistance Force-Bougainville Interim Gov’t-Bougainville Revolutionary Army-Bougainville leaders; Bougainville Peace Agreement, Aug. 30, 2001 (see Section A regarding legal status), both available at . On Russia-Chechnya, see Truce Agreement: Principles for Determining the

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the language of obligation and evidence intention to be bound. Treaties can, of course, be signed by substate entities such as the constituent parts of a federation, depending on the powers conferred on them domestically.54 However, in these cases the status of the substate entity and its relationship to the state are disputed and the entity is typically operating extraconstitutionally. Nonstate groups could again attempt to argue that they are “subjects of international law” because they represent minority groups. While legal documents dealing with minorities have proliferated and arguably confer on them a right as groups, their claim to international subjectivity is generally considered to be weaker than that of indigenous peoples.55 Furthermore, there is little guiding authority on the mechanisms by which political or military leaders (mostly men) can claim to be the legitimate representatives of minority groups, although elections would provide some basis for the claim. Other claims to legal subjectivity might lie in the concept of the “state-in-the-making” whose treatymaking capacity must be recognized for statehood to be negotiated, or recognition that the minority’s representatives have status as a national liberation movement or erstwhile armed group.56 To some extent, the problem of legal status reflects international law’s difficulties in dealing with transitional situations. The categorization of nonstate actors as minorities rather than armed opposition groups, national liberation movements, or even states is itself a product of transition. In the course of the peace process, both the legal regime and the humanitarian law status of nonstate groups change, as the group moves from armed opposition to inclusion in government and the level of conflict subsides.57 A lack of governmental status (regional or otherwise) often ensues because the peace process has subsequently stalled, leaving the status of both the substate region and those who govern it in legal limbo.58

54 55

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Fundamentals of Relations Between the Russian Federation and the Chechen Republic [Khasavuyrt Accord], Aug. 25, 1996, Russ. Chechnya (on file with author). ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 48–49 (2000). See MEIJKNECHT, supra note 49, at 225 (noting that any rational basis for this difference is difficult to find, and locating it in the acknowledgment of historical wrongs done to indigenous peoples); see also ANTONIO CASSESE, INTERNATIONAL LAW 63 (2nd ed. 2005); HECTOR GROS ESPIELL, THE RIGHT TO SELF-DETERMINATION: IMPLEMENTATION OF UNITED NATIONS RESOLUTIONS ¶56, UN Doc. E/CN.4/Sub.2/405/Rev.1, UN Sales No. E.79. XlV.5 (1980). Cf  Peter Malanczuk, Some Basic Aspects of the Agreements Between Israel and the plo from the Perspective of International Law, 7 EUR. J. INT’L L. 485 (1996) (effectively arguing that these concepts give the Israeli-plo agreements international legal status). See Christine Bell & Johanna Keenan, Human Rights Non-governmental Organisations and the Problems of Transition, 26 HUM. RTS. Q. 330, 344–45 (2004). Cf. Wallensteen & Solienberg, supra note 1, at 343 (classifying some of the peace agreements in these situations as “partial agreements”).

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The difficulty is that deciding whether some or all of the above agreements constitute binding international agreements is a tautological exercise.59 Many commentators equate the notion of international legal subjectivity with international legal personality,60 and from this view many of the above groups appear to fall short, having some of the attributes of legal personality, but not all.61 Other writers, most notably Anna Meijknecht, suggest that international legal subjectivity is a subcomponent of international legal personality, meaning that something less than full personality might indicate treaty-making capacity.62 The tautology arises because a claim to international subjectivity, on either view, involves examining what rights, powers, duties, and immunities the actors in question are accorded on the international plane, including whether they are permitted to sign treaties or international agreements.63 Moreover, the main evidence of such permission may be the existence of an internationalized peace agreement itself.64 Recognizing peace agreements as international agreements therefore seems to require the nonstate group and the agreement to “bootstrap” each other into the international legal realm. R ­ osalyn 59 MEIJKNECHT, supra note 49, at 24–25. 60 See generally Reparation for Injuries Suffered in the Service of the United Nations, 1949 ICJ rep. 174, 179 (Apr. 11); ANNIKA TAHVANAINEN, THE CAPACITY TO CONCLUDE ­TREATIES-WHICH ENTITIES CAN BECOME PARTIES TO TREATIES UNDER ­INTERNATIONAL LAW? (Institute for Human Rights, Abo Akademi University, 2004) (report to the committee drafting a Nordic treaty on the Sami indigenous people’s rights). 61 See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 57 (6th ed. 2003); PETER MALANCZUK, AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW 91 (1997); SHAW, supra note 6, at 175–246. Some of these commentators view actors with some attributes of legal personality as having “limited legal personality” or constituting “partial international legal subjects.” See Peter Malanczuk, Multinational Enterprises and Treaty-Making-A Contribution to the Discussion on Non-State Actors and the “Subjects” of International Law, in MULTILATERAL TREATY-MAKING: THE CURRENT STATUS OF CHALLENGES TO AND REFORMS NEEDED IN THE INTERNATIONAL LEGISLATIVE PROCESS 45, 55 (Vera Gowlland-Debbas ed., 2000) [hereinafter Malanczuk, Multinational Enterprises]. 62 MEIJKNECHT, supra note 49, at 34. 63 See JAN KLABBERS, AN INTRODUCTION TO INTERNATIONAL INSTITUTIONAL LAW 43–48 (2002); cf  Malanczuk, Multinational Enterprises, supra note 6 i, at 55 (arguing that some subjects of international law “have legal personality only with respect to certain international rights and obligations”). 64 See ZEGVELD, supra note 46, at 51 (discussing the status of the El Salvador Agreement on Human Rights, July 26, 1990, El Sal.-FMLN-UN, UN Doc. A44/971-S/21541, annex (1990)); cf Antonio Cassese, The Special Court and International Law: The Decision Concerning the Lome Agreement, 2 J. INT’L CRIM. JUST. 1130, 1134–35 (2004) (arguing that the Lome Agreement was an international one, owing to the status of the nonstate actors, but also the intention of the parties in signing the Agreement). But see Kooijmans, supra note 14.

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Higgins has suggested that the notion of international participants in an international legal system conceived of as a “particular decision-making process” may be more conducive to understanding the current status of nonstate actors than traditional subject-object dichotomies.65 This approach can aid in determining whether current peace agreement practice is increasingly posing a fundamental challenge to the existing international legal order. It does not, however, assist in deciding definitively whether or not a peace agreement is a binding international agreement. Legalization and Compliance Does it matter whether or not peace agreements are binding legal documents? For domestic lawyers, the connection between the legal categorization of a document and its enforcement seems to be self-evident.66 However, because the consequences of formal international legal status are less clear, international lawyers more readily question whether and how the binding legal form of an obligation affects compliance with it. Unlike political pacts or merely ­declaratory documents, treaties and international agreements are legally binding instruments with established enforcement mechanisms. However, their enforcement is notoriously less concrete than in domestic legal systems owing to the relative “anarchy” of the international legal order, in particular the absence of a central enforcement mechanism.67 The Vienna Convention on the Law of Treaties provides rules for dealing with termination and suspension of the operation of treaties, which in effect encapsulate self-help in the form of either partially or completely walking away as a state’s main remedy for another state party’s breach of the treaty.68 Therefore, enforcement in the domestic legal sense as backed up by courts does not exist. Implementation depends on the voluntary, ongoing assent of the parties.69 Commentators acknowledge that formal legal status still affects compliance, as discussed in Part III below.70 However, they also acknowledge that soft law or informal agreements generate 65 66 67 68 69 70

ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 50 (1994). See, e.g., RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990). See, e.g., CASSESE, supra note 55, at 5. Vienna Convention, supra note 36, pt. v. Charles Lipson, Why Are Some International Agreements Informal? 45 INT’L ORG. 495 (1991) (describing the term “binding agreement” as “misleading hyperbole”). See generally COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM (Dinah Shelton ed., 2000); 54 INT’L 0RG., No. 3, Legalization and World Politics (2000); Anthony Aust, The Theory and Practice of Informal International Instruments, 35 INT’L & COMP. L.Q. 787 (1986); Richard R. Baxter, International Law in “Her Infinite Variety,” 29 INT’L&COMP. L.Q. 549 (1980); Lipson, supra note 69;

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some of the same pressures for compliance as the hard law or formal ones, and can be equally effective.71 Moreover, even hard law commitments do not operate in a “monolithic or unidimensional” way.72 These considerations led Abbott, Keohane, Moravcsik, Slaughter, and Snidal to propose a broader concept of “legalization” as more useful to understanding an agreement’s legal status than deciding whether it constitutes hard or soft law.73 They set out a three-way matrix that maps the legalization of an agreement or norm according to (1) how “legal” the nature of the obligation is, (2) the precision with which it is drafted, and (3) the delegation to a third party of the power to interpret and enforce the agreement. Thus, an obligation expressed as a binding rule in precise language, to be enforced by an international court or organization, might stand “near the ideal type of full legalization, as in highly developed domestic legal systems.”74 A loose obligation, such as an expressly nonlegal norm, stated as a vague principle, to be enforced only by means of diplomacy, would stand at the other end of the spectrum. However, in between it is more difficult to separate and order the three dimensions: In some settings a strong legal obligation … might be more legalized than a weaker obligation…, even if the latter were more precise and entailed stronger delegation. Furthermore, the relative significance of delegation vis-a-vis other dimensions becomes less clear at lower levels, since truly “high” delegation, including judicial or quasi-judicial authority, almost never exists together with low levels of legal obligation.75 Therefore, the degree of legalization is captured by all three factors rather than just one.76 States attempt to manage the future risks of signing an agreement

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Oscar Schachter, The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296 ( 1977). See sources cited supra note 70. W. Michael Reisman, The Concept and Functions of Soft Law in International Politics, in ESSAYS IN HONOUR OF JUDGE TASLIM OLAWALE ELIAS 135, 136 (Emmanuel G. Bello & Bola A. Ajibola eds., 1992). Abbott et al., supra note 18; see also Hartmut Hillgenberg, A Fresh Look at Soft Law, 10 EUR. J. INT’L L. 499 ( 1999) (full discussion of the mechanisms with which nontreaty commitments form “legal effect”); cf JAN KLABBERS, THE CONCEPT OF TREATY IN INTERNATIONAL LAW (1996); Christine Chinkin, Nonnative Development in the International Legal System, in COMMITMENT AND COMPLIANCE, supra note 70, at 21, 24; Reisman, supra note 72. Abbott et al., supra note 18, at 405. Id. at 406. Id.

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by trying to manipulate all three factors so as to balance the need to lock in the other party’s commitment with the importance of ensuring exit strategies for themselves. This analysis is useful in understanding how and why the legal status of a peace agreement might matter. As Abbott and his colleagues suggest, it opens up common ground between the explorations of political scientists and lawyers as regards implementation.77 Furthermore, although designed for the ­international sphere, their analysis also makes it possible to consider the relationship of a peace agreement’s status as a “constitution” to what appear to be “un-constitution-like” types of obligation and third-party enforcement. In the following sections, the notion of legalization proposed by Abbott and his colleagues is adapted and applied to peace agreement practice addressing legal form (Part III), the nature of the obligation (Part IV), and delegation of interpretation and enforcement to third parties (Part V). This examination begins to reveal the distinctive nature of peace agreement legalization, building the case for a lex pacificatoria. III

Legal Form

An agreement’s legal form remains relevant to compliance because formalized agreements raise the reputation costs of noncompliance.78 Deciding when to use formal or informal agreements is also linked to a range of strategic choices for states concerning reputation, speed, capacity for revision, and domestic legal requirements.79 In the context of peace agreements, however, the difficulties of legal classification mean that the choice between binding and ­nonbinding agreement is not straightforward. Under international law as currently constituted, state and nonstate actors that wish to sign legally binding agreements can make the terms of their agreements sound legal, can refer to international law as a basis for their commitments, and can delegate enforcement tasks to a range of international actors, as discussed in Parts IV and V below. There may be good arguments that these factors take the agreements into the realm of international law, and even make them international agreements;80 but those who wish to frame agreements clearly as treaties can 77 78 79 80

Id. at 402. See generally sources cited supra note 70. See generally sources cited supra note 70. See Cassese, supra note 64; cf Malanczuk, Multinational Enterprises, supra note 61, at 58–62 (discussing legal starus of multinational companies and internationalized contracts). But see supra notes 59–65 and corresponding text.

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best do so by framing them as between state parties only. The choice, therefore, is between a treaty whose formal parties differ from those agreeing to the obligations, and agreements whose status as binding international agreements remains in doubt. This calls for a different understanding of how legal form connects to compliance in the peace agreement context, in terms of both the reputation costs of breach and the strategic choices available with regard to how agreements are framed. State and nonstate actors that sign agreements directly with each other can attempt to use other dimensions of legalization (such as precise language and third-party enforcement) to compensate for the lack of clear legal form, as discussed in Parts IV and V below. Yet something remains lost. The lingering ambiguity over the binding status of an agreement can undo the parties’ intention to be bound, by offering those who would later renege an opportunity to dismiss the agreement as not binding.81 Looking first to the state’s commitments, to the extent that the legal status of such an agreement is unclear, this deficiency undermines the notion that the state has attached its reputation to the agreement and has a self-interest in the integrity of the international l­ egal system. Furthermore, the constraints on self-serving “auto-interpretation” brought by accepted modes of legal discourse to discussions, for example, of breach, force majeure, and impossibility are negated. In their place are left political and moral debates as regards breach, fault, and consequence, which have little claim to independence from the underlying disputes at the heart of the conflict, weakening their impact on conflict resolution.82 There is also some reason to believe that parties to agreements take their obligations more seriously when they believe them to be legal.83 A binding legal agreement may be particularly meaningful in ensuring the commitment of nonstate actors. As the Permanent Court of International Justice noted, “[T]he right of entering into international engagements is an attribute of State sovereignty.”84 In the context of peace agreements, the imprimatur of legal form might influence nonstate actors to comply less because they have a reputation to lose if they fail to do so than because they have a new 81 82 83 84

See, e.g., Prosecuror v. Kallon, Kamara, Decision on Jurisdiction, Nos. scsl-2004–15AR72(E), scsl-2004–16-AR72(E) (Mar. 13, 2004) [hereinafter Kallon] (discussed infra text at notes 88–99). See, e.g., ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AN AGREEMENT WITHOUT GIVING IN 84–98 (2nd ed. 1992) (for importance of “objective criteria,” as standards external to the parries in the conflict). See WATSON, supra note 14, at vii; see also THOMAS M. FRANCK, THE POWER OF ­LEGITIMACY AMONG NATIONS 35–37 (1990). S.S. “Wimbledon,” 1923 PCIJ (ser. A) No. 1, at 25.

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status and legitimacy to gain, which are tied up with the status of the peace agreement itself. State actors might be expected to resist conceding formal legal status to peace agreements precisely for this reason, especially given the current climate of “war against terrorism.”85 However, there are also reasons why it might be in states’ interests to concede treaty status.86 First, clarity over the binding nature of the agreement may add little to the claims of the nonstate group that has not already been conceded by the very fact of an agreement. Formal treaty status cements a cost, rather than creating it. Conversely, preserving the ambiguity over whether the agreement is binding also weakens its currency for states. The compromises of peace agreements are carefully crafted to stop terrible wars. Nonstate armed groups are less likely to abide by agreements that they know from the outset are merely “pieces of paper.” Worse still for states, rejecting the legal status of both the nonstate group and the peace agreement may result in the argument that the state is bound while the nonstate actors are not.87 The positive legal status of peace agreements also remains important to compliance because it carries weight in legal forums: courts and tribunals use it as a starting point in determining their own jurisdiction. Here, positivist law categories hold sway, no matter how unfashionable, because they provide a rational basis for clear decision making. This can be illustrated by the Kallon case of the appeals chamber of the Special Court for Sierra Leone, established to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law during the conflict in that country.88 In this case the defendants challenged the Special Court’s 85

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Cf Ruth Wedgwood, Legal Personality and the Role of Non-governmental Organization and Non-State Political Entities in the United Nations System, in NON-STATE ACTORS AS NEW SUBJECTS OF INTERNATIONAL LAW 21, 35 (Rainer Hofmann & Nils Geissler eds., 1999) (arguing that it may prolong conflict because international status may strengthen the ­resistance of nonstate groups to settlement, citing the example of Georgia and Abkhazia); cf AUST, supra note 54, at 48–54 (discussing the exercise of treaty-making capacity by parts of a srare); Oliver Lissitzyn, Territorial Entities Other Than States in the Law of Treaties, 125 RECUEIL DES COURS 5 (1983 iii) (semble). Cf Wedgwood, supra note 85, at 34 (Wedgwood’s (converse) argument relating to the difficulties of lack of legal status for nonstare actors). See Vienna Convention, supra note 36, Art. 3(c); cf Cassese, supra note 64, at 1139–40 (noting the argument rhat translating Sierra Leone’s Lome Agreement into national legislation could mean that its provisions continue to bind the government, even when the underlying agreement was void, thus preventing the government from prosecuting amnestied crimes in domestic courts). There can also be arguments that notions of estoppel, precommitment, and unilateral declaration would obligate the stare. See WATSON, supra note 14, at 201–64; Hillgenberg, supra note 73, at 505. Kallon, supra note 81.

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jurisdiction on the basis that it contravened the amnesty provision of the Lome Peace Agreement, and that it would constitute an abuse of process to allow the prosecution of pre-Lome crimes.89 The appeals chamber found itself considering the legal status of the agreement signed by the government and the ruf, so as to determine the validity of the amnesty. With respect to the status of the ruf and the Lome Agreement, the chamber distinguished between being bound under common Article 3 of the Geneva Conventions (which it accepted as applicable), and the ruf’s treaty-making ability, stating that “[i]nternational law does not seem to have vested [the ruf] with such capacity.90” The tautologies of the decision, which relies on blank statements of law that are far from self evident, point to the difficulties of the positivist law project in this area, but not its irrelevance.91 Even on the decision’s own terms, the question arises of whether it would have made any difference if legal provisions according a greater degree of international subjectivity to the nonstate actor had been acknowledged to apply, such as Protocol II (indicating territorial control) or even Protocol I (acknowledging the group in question to be a “national liberation movement” akin to a state).92 While Protocol I can be argued to be anachronistic, it still has some relevance, most notably in the Israeli-Palestinian conflict since the plo signed the initial Israeli- Palestinian agreements.93 The need to overrule the amnesty of the Lome Agreement might appear to demonstrate why states should not concede that peace agreements signed with nonstate actors are binding on the international level.94 However, rejection of Lome as a binding agreement let the ruf off the hook as regards compliance, while leaving the state subject to arguments that it was still bound to comply by virtue of its interstate commitments and its national legislation.95 Moreover, rejection of the international legal status of Lome was not necessary in order to invalidate its amnesty provision.96 The Kallon result could have been 89 90 91

For the Lome Agreement, see supra note 29. Kallon, supra note 81, ¶48. Cf Cassese, supra note 64 (noting the tautologies of the decision and criticizing the reasoning). 92 Protocol i, supra note 46, Art. 2; Protocol ii, supra note 46, Art. 1. 93 ZEGVELD, supra note 46, at 16–17. 94 Cf  Wedgwood, supra note 86, at 36 (arguing that decisions over treaty-making capacity should be made with a view to the implications of so doing). 95 Cf Kallon, supra note 81, 62 (where the Special Court drew a distinction between the issue of the state’s obligations under the Agreement, and the validity of the treaty establishing the jurisdiction of the court). 96 But see 2 WITNESS TO TRUTH: REPORT OF THE SIERRA LEONE TRUTH AND RECONCILIATION COMMISSION 559 (2004) (finding that the amnesty was necessary to making peace).

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reached by applying notions of treaty breach (the ruf having continued fighting in violation of the cease-fire commitments);97 or by deeming the amnesty provision invalid to the extent that it covered certain crimes against humanity, serious war crimes, torture, and other gross violations of human rights;98 or even by finding that the amnesty section applied only to future domestic law proceedings (for which a tenuous basis can be discerned in the wording).99 Kallon does not stand alone: a range of international tribunals may be called upon to adjudicate on the compatibility of peace agreements with international law for a variety of reasons.100 Domestic courts, too, often end up examining the political and legal questions at the heart of the agreement, through constitutional or legislative adjudication that must determine the extent to which the peace agreement is a foundational interpretive document, or indeed a treaty, and where it is a political document to be deferred to as dealing with political questions only.101 To be sure, in many situations the role of courts and tribunals will be marginal to an agreement’s success or failure: 97

See Letter Dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations Addressed to the President of the Security Council, UN Doc. S/2000/786, annex, cited in Kallon, supra note 81, 8–9; see also Cassese, supra note 64, at 1138–39 (arguing that this would have been a better legal approach). 98 See Kallon, supra note 81, 66–74 (discussion of the limits of amnesty). 99 See Lome Agreement, supra note 29, Art. ix; cf  Brief of the Redress Trust (Redress), the Lawyers Committee for Human Rights, and the International Commission of Jurists, ­Kallon (n.d.), supra note 81, available at . 100 See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ rep. 131, para. 2.4(c) (July 9) (Elaraby, J., sep. op.) (describing the 1993 Oslo Accord as “contractual and … legally binding on Israel” when finding the construction of the wall contrary to international law). 101 See, e.g., Robinson v. Sec’y of State for N. lr., [2002] UKHL 32, available at [hereinafter Robimon] (the House of Lords majority judgment held that the Northern Ireland Act should be interpreted purposively, in light of the unique circumstances underlying it. The Law Lords (per Hoffmann, L.J .) described the Act as “a constitution for Northern Ireland, framed to create a continuing form of government against the background of the history of the territory and the principles agreed in Belfast”; id., 25); Azanian People’s Org. (azapo) v. President of S. Afr. & Others, 1996 (4) SA 671, 25 (CC) (challenging establishment of amnesty under Truth and Reconciliation law as a violation of international law); cf hcj 4481/91, Bargil v. Israel, [1991] lsrSC 47(4) 210, available at , cited in DAVID KRETZMER, THE OCCUPATION OF JUSTICE: THE SUPREME COURT OF ISRAEL AND THE OCCUPIED TERRITORIES 23–24, 204 n. 23 (2002) (where the court dismissed as non-justiciable a petition challenging the legality of the Likud government’s settlement policy because the matter was a political question and the subject of intensive peace negotiations).

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courts and tribunals are likely to be ineffective in sustaining an agreement in the face of fundamental and violent dissent.102 However, marginal relevance is not the same as irrelevance. Courts and tribunals have the capacity to extend and develop the agreement’s meaning where they find it to be part of the legal framework.103 More negatively, they have the capacity to terminate the operation of an agreement even in the face of political chances to sustain it.104 The positive law status of peace agreements therefore remains important to their implementation. This importance, in turn, begins to explain innovations in legal form, which enable parties to frame obligations so that they fall within recognizable traditional legal categories. Contrived Treaty Form Drafters of peace agreements sometimes attempt to contrive treaty status for them. They do this by framing an agreement between state and nonstate actors as if it were simply between states (although they typically do so when the states have also been involved to some extent as participants in the conflict). Bosnia’s dpa, the British/Irish treaty at the end of the Belfast Agreement, and Cambodia’s Paris Accords are all framed as agreements between state parties, and yet are also attempts to bind the ethnic/national groups who were waging war within state borders.105 This practice has precursors in the patterns of earlier peace processes, as regards Cambodia in the Indochina Conference of 1954;106 ethnic conflict in Cyprus in the 1960s;107 and the Camp David 102 See infra text at notes 131–38. 103 Robinson, supra note 101 (in effect revising, to prevent the collapse of the devolved legislature, the very clear electoral procedures set out in the Northern Ireland Act, 1998). 104 Cf Ex parte Chairperson of Constitutional Assembly: In re Certification of Constitution of S. Afr., 1996 (4) SA 774 (CC), 1996 (10) bclr 1253 (CC) [hereinafter In re Certification of Constitution] (delayed rather than prevented the certification of the final Constitution); see also Robinson, supra note 101, 111142–75 (dissenting judgments of Lord Hutton and Lord Hobhouse, respectively, which would have terminated the operation of the devolved legislative Assembly that stood at the center of the Belfast Agreement). 105 See supra text at note 41. 106 Final Declaration of the Geneva Conference on the Problem of Restoring Peace in IndoChina, July 21, 1954, 31 DEP’T ST. BULL. 164 (1954), UK Cmd. 9239, at 9, 60 AJIL 643 (1966). 107 Three agreements were signed on February 19, 1959: Basic Structure of the Republic of Cyprus; Treaty of Guarantee Between the Republic of Cyprus and Greece, the United Kingdom, and Turkey; Treaty of Alliance Between the Republic of Cyprus, Greece, and Turkey, reprinted in DOCUMENTS ON INTERNATIONAL AFFAIRS 1959 (Gillian King ed., 1963), available at ; see also JEFFREYL. DUNOFF, STEVEN R. RATNER, & DAVID WIPPMAN, INTERNATIONAL LAW: NORMS, ACTORS, PROCESS: A PROBLEM-ORIENTED APPROACH 33–66 (2002); David Wippman, International Law and Ethnic Conflict in Cyprus, 31 TEX. INT’L L.J. 141 (1996).

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­ rocess in the Middle East in 1978, on which Bosnia’s Dayton process was in p part modeled.108 These treaties use state-parry commitments to lock in nonstate actors in a two-way dynamic. The state parties in effect guarantee to kindred nonstate actors that the commitments to them in the agreement will be delivered; and to other parties that the commitments of nonstate actors will be honored. To achieve and reinforce this relationship between treaty and nonstate actor, some “unique legal features” were written into these agreements with a view to enabling the nonstate group to sign them.109 The dpa, for example, consists of a central agreement signed by the three republics and witnessed by other states together with the European Union, and a dozen attached agreements (framed as annexes) signed by different permutations of parties and signatories, including the substate entities created by the Agreement.110 Both state and entity treaty commitments are difficult to place within a technical legal analysis. The basis for the entity signatures is unclear: as substate regions they came into existence by virtue of the dpa, and therefore could not have had treaty-making capacity as constituent parts of the federation.111 Neither was there any overt agreement of agency between the state and the entity.112 As for the Belfast Agreement, it is composed of a multiparty agreement and a British-Irish treaty, which parcels out the intergovernmental commitments in treaty form. Under the terms of this treaty, however, both governments make legislative and constitutional commitments requiring the cooperation of actors beyond their control including “the people of the island of Ireland.”113 The 108 The Camp David Accords pointed toward a similar interstate initiation and underwriting of negotiations, although they did not reach the multilateral treaty stage. Framework for Peace in the Middle East, Isr.-Egypt, Sept. 17, 1978, 1136 unts 196; Framework for the Conclusion of a Peace Treaty, Isr.-Egypt, Sept. 17, 1978, 1138 unts 53. The accords were both signed by Israel and Egypt and witnessed by then-president of the United States Jimmy Carter. See GUYORA BINDER, TREATY CONFLICT AND POLITICAL CONTRADICTION: THE DIALECTIC OF DUPLICITY (1988). On the relationship of the Camp David and Dayron processes, see RICHARD HOLBROOK£, TO END A WAR 204 (1999). 109 Paola Gaeta, The Dayton Agreements and International Law, 7 EUR. J. INT’L L. 147 (1996); see also AUST, supra note 54, at 52. 110 The central annexes were signed by the Republic of Bosnia and Herzegovina and the entities. However, Annex 1-B (Agreement on Regional Stabilization) and Annex 10 (Agreement on Civilian Implementation) were signed by the three republics and the entities. DPA, supra note 41. 111 Wedgwood, supra note 85, at 34. 112 Gaeta, supra note 109, at 150–52. 113 Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, Apr. 10, 1998, Art. i (ii), 37 ilm 777 (1998), available at .

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Agreement on a Comprehensive Political Settlement of the Cambodia Conflict of 1991 was signed “on behalf of Cambodia” by all the members of Cambodia’s National Supreme Council, and Article 28 provides that “[t]he signature on behalf of Cambodia by the members of the snc shall commit all Cambodian parties and armed forces to the provisions of this Agreement.”114 In each case, treaty status was achieved by having states alone sign the main body of the agreement directly and incorporating commitments of non­state actors in innovative ways. Does this strategy then remedy the deficits in legal form of peace agreements signed directly with nonstate parties? The very anempt to contrive ­treaty status indicates the seriousness of state commitments, raising the costs of noncompliance for the state parties. As noted, it may also be relevant to legal adjudication. Nevertheless, the lack of correlation between the parties to the conflict and the parties to the treaty negates some of the benefits of choosing a clear legal form for the obligations. Treaty status can be achieved only by forgoing the inclusion of the nonstate actor as a direct party to the treaty, even though the nonstate actor’s compliance lies at the heart of the agreement’s implementation. The reputation costs of formal treaty status will only attach directly to state parties, even though they may lead indirectly to political costs for nonstate actors.115 If state guarantees on behalf of  kindred nonstate groups are undelivered, it will be very difficult to tell whether the reason was insufficient effort or lack of capacity to influence these nonstate actors. As regards state underwriting of commitments to kindred nonstate groups, the state’s self-interest may soon induce it to reconsider.116 Moreover, peace-agreement treaties also suffer from two other problems, similar to those Richard Baxter highlighted with respect to treaty enforcement generally.117 They often amount to incomplete agreements, because they provide for further agreements in an 114 Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, Oct. 23, 1991, 31 ilm 180 (1992) [hereinafter Cambodia Political Settlement]; see also Ramer, supra note 14, at 9 (interestingly showing that this device was aimed primarily at enabling authority to be granted from a national sovereign to the UN Transitional Authority for Cambodia, without using Chapter vii of the UN Charter). 115 See, e.g., FORTNA, supra note 13, at 21. The Cambodian mechanism probably comes closest to including non­state actors as parties to the treaty but is not available in contexts where the nonstate actors do not cumulatively equate to “the state.” 116 See, e.g., Declaration of the Parties to the Agreement Between Ireland and the U ­ nited Kingdom, Apr. 19, 2004, Ir.-UK, available at (British-Irish agreement on reinterpretation of the Belfast  Agreement’s citizenship provisions, to accommodate Irish immigration). 117 Richard R. Baxter, International Law in “Her Infinite Variety,” 29 INT’L & COMP. L.Q. 549 (1980).

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attempt to stage and sequence issues and develop a peace process. This quality makes them susceptible to a “stop-start” dynamic in which it is difficult to assess whether failure to negotiate constitutes a treaty breach. In the context of a peace agreement, this difficulty is accentuated because parties typically test whether they can reclaim concessions, or because continuing conflict changes their self-interest and/or their capacity for compromise. Peace agreements further suffer from the problems of political treaties such as “treaties of alliance”: namely, that “[a] change in a government’s orientation must … be regarded as ‘a fundamental change in circumstances,’” which changes the foundation for the treaty as well.118 Again, such considerations have heightened relevance when it comes to peace agreements, which involve existential compromises by the state with regard to how it conceives of its own sovereignty, power, monopoly over the use of force, and capacity to resist nonstate violence. Such agreements may be uniquely vulnerable to subsequent violence and internal elections. The limits of treaty status for peace agreements partly explain why these treaties share features with nontreaty peace agreements, such as references to the commitments of nonstate actors and the presence of a range of third-party signatories, as discussed in Parts IV and V below. Contrived Constitutional Form An alternative way of securing a clear legal form for a peace agreement is to locate it in the domestic legal realm as a constitution. As has been pointed out, peace agreements are hybrid in a way that goes beyond the nature of their participants: they address both the external position of the state on the international plane and the internal constitutional structure of the state. ­Indeed, constitutional revision is often proffered by states as a means of defusing conflict,119 resulting in the styling of some peace agreements as ­constitutions. The main framework peace agreement in South Africa, for example, was the Interim Constitution, which set up a transitional arrangement designed to lead to elections and a constitutional assembly that would produce a final constitution. The Interim Constitution documented the “deal” as to how the 118 Id. at 550. 119 See, e.g., Bill No. 372, The Constitution of Sri Lanka-Draft Bill to Repeal and Replace Constitution of Sri Lanka, presented to Parliament Aug. 3, 2000, at ; Fiji Act No. 13 of 1997, Constitution Amendment Act 1997, as amended by Act No.5 of 1998, at ; Macedonia Framework Agreement (Ohrid Framework Agreement), Aug. 13, 2001, Annex A, Constitutional Amendments, at .

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African National Congress (anc) and the National Party/South African government would hold power, the transitional mechanisms for government, and agreed principles that were to set the parameters for the drafting of a final ­constitution by the newly elected representatives.120 As other parties reached agreement with the anc at the eleventh hour, new provisions were added to cut the Inkatha Freedom Party and right-wing Afrikaner groups into both the deal and the constitutional framework.121 Similarly, attempts to broker cease-fires in Bosnia-Herzegovina focused on peace agreements that in effect were constitutional blueprints whose principal purpose was to accommodate the new minorities inevitably created by the disintegration of the former ­Yugoslavia.122 The final deal in Bosnia reflected a correlation between peace agreement negotiations and constitution making. The Washington Agreement, designed to bring peace between Bosniacs (Bosnian Muslims) and Croats in Bosnia had two parts: a preliminary agreement of only ten lines, plus a constitution for the federation that set out a “power map” as between Croats and Bosniacs.123 Peace agreements may include constitutions as merely one of their components: Annex 4 of the dpa is a “constitution” for the Republic of Bosnia and Herzegovina, although the peace agreement in its entirety can also be viewed as a constitution in the broadest sense.124 The failed Rambouillet Accords in Kosovo also included both a constitution and a broad framework for governance.125 The Bougainville Peace Agreement provided for a constitution and transitional arrangements.126 Here again, however, the demands of the peace process mean that the peace-agreement constitution differs from traditional constitutions in both form and substance. In stable democratic societies, constitutions are viewed 120 INTERIM CONST., supra note 29, Ch. 5. 121 Act No. 2 of 1994, Constitution of the Republic of South Africa Amendment Act, 1994, amend to sched. 4 of Act 200 of 1993, §13, Art. xxxiv [hereinafter South Arica Amendment Act] (self-determination provisions addressed at the Mrikaner Brotherhood in South Arica); see BELL, supra note 2, at 49. 122 For more detail, see BELL, supra note 2, at 107. 123 Preliminary Agreement Concerning the Establishment of a Confederation, Mar. 18, 1994, Bosn. & Herz.­Croat., 33 ilm 605 (1994); Constitution of the Federation, Mar. 18, 1994, id. at 740 (together, Washington Agreement), available at . 124 DPA, supra note 41; see also BELL, supra note 2, at 144–47. 125 Rambouillet Accords: Interim Agreement for Peace and Self-Government in Kosovo, Feb. 23, 1999, UN Doc. S/1999/648, annex, available at [hereinafter Rambouillet Accords]. Security Council Resolution 1244 (June 10, 1999) then drew on this agreement to provide for transitional arrangements. 126 Bougainville Peace Agreement, supra note 53.

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as superior to domestic law and less open to revision: they are foundational documents, setting out the distribution of power and encapsulating the values, aspirations, and ethos of the state.127 Peace-agreement constitutions, however, are also literal “social contracts” negotiated between political elites who have been at the heart of the conflict, often under pressure from the international community to conform to the notion of a constitution as establishing democratic institutions, government by law, and individual rights.128 As a result, particularly in situations of ethnic conflict, these constitutions do not just serve as a social contract between individuals and the state (or between individuals as to the nature and limits of the state); they also constitute a horizontal contract between different groups of individuals. As a glance at these constitutions reveals, this feature often results in a degree of contractual detail that smacks of the reciprocal obligation of private law rather than the broad “founding principles” of public law. The Interim Constitution of South Africa illustrates the phenomenon: it is 227 pages long (in two languages), with copious detail.129 Instead of aiming at establishing permanence, peace-agreement constitutions are often explicitly transitional, providing for their imminent revision, extension, or even demise.130 They tend to be distinctive in their heightened reference to international law, and also in their use of third-party enforcement, relying both on constitutional courts with mandates explicitly shaped by the context of conflict resolution, and on a pluralist range of enforcement mechanisms that cut across political and legal spheres, as well as domestic and international spheres (see Part V, below). The lack of “fit” between peace agreements and domestic law categories represents a mirror image of the lack of fit with international law categories. It again evidences a common nature of peace agreements regardless of their legal categorization, which is located in their mix of state and nonstate signatories, the need to address simultaneously both “internal” and “external” dimensions of intrastate conflict, and the need to address both short-term and long-term peace process goals. As with treaty form, these distinctive attributes negate some of the “hard law” advantages of constitutional form. Even in traditional settings, constitutional interpretation is accepted as implicating politics in a deeper and more 127 See ERIC BARENDT, AN INTRODUCTION TO CONSTITUTIONAL LAW 3–4 (1998). 128 Cf  Paul R. Williams & William Spencer, Iraq’s Political Compact, BOSTON GLOBE, Aug. 13, 2005, at AI5 (arguing that Iraq’s draft constitution is “first and foremost a political compact”). 129 INTERIM CONST., supra note 29. 130 See id., Ch. 5 (The Adoption of a New Constitution); see also RUTI TEITEL, T ­ RANSITIONAL JUSTICE 197–201 (2000) (documenting the use of temporary “transitional” constitutions in a range of jurisdictions).

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overt way than the interpretation of legislation, in opening up value debates and in requiring an ongoing working out of the relationship between the judiciary and the legislature that cuts to the heart of the relationship between law and politics itself.131 Such controversies are dramatically accentuated in societies that are constructing both core democratic and legal institutions, using a constitution negotiated out of violent conflict and tentative beginnings in ceasefires. Indeed, it has been suggested that transitional concepts of constitutionalism require new theories of adjudication.132 Constitutional interpretation in traditional settings draws on established notions of the rule of law and operates to buttress traditional concepts of order, community, and stability. However, in the transitional setting these concepts, and indeed the neutrality of the judiciary itself, are typically deeply contested. These circumstances point to the need for an activist, transformative approach to constitutional interpretation, and a judiciary that is willing and able to engage with the legal and political nature of transition, and the implications for its own role. Peace agreements sometimes signal this need by calling for flexible, “purposive” approaches to constitutional interpretation.133 Yet the more judges attempt to engage in this type of interpretation, the more they risk politicizing their role, by articulating what appear to be political goals.134 As the constitutional judicial function will be new by virtue of the context, the legitimacy of both the judiciary and the judicial function itself will be tied up with any goals that judges articulate. The stop-start nature of peace agreements also means that the judicial role is likely to be fundamentally tested by the capacity of key actors to act outside the constitution. Political violence and ongoing dissent to the legitimacy of the state “challenge[ ] the very presuppositions upon which our commitment to constitutional politics must be predicated.”135 How effective constitutional adjudication is in countering such dissent, or indeed in policing excessive responses to it, remains an open question. Such examples as exist seem to indicate that the judicial role can occasionally be effective in a 131 MARTIN LOUGHLIN, SWORD AND SCALES (2000) (reviewing relationship between law and politics in public law realm). 132 TEITEL, supra note 130, at 5. 133 Bougainville Peace Agreement, supra note 53, §A.3; INTERIM CONST., supra note 29, Art. 35. 134 Cf JOSEPH MARKO, FIVE YEARS OF CONSTITUTIONAL JURISPRUDENCE IN BOSNIA AND HERZEGOVINA: A FIRST BALANCE (European Diversity & Autonomy Papers No. 7/2004), available at (whose analysis illustrates the underlying politics of the reasoning of the Bosnian Constitutional Court decisions with respect to the dpa). 135 JOHN E. FINN, CONSTITUTIONS IN CRISIS: POLITICAL VIOLENCE AND THE RULE OF LAW 6 (1991).

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bold sense,136 but more often merely plays at the fringes of the dispute137 or fails completely.138 Framing peace agreements as constitutions can also be counterproductive in terms of compliance. Constitutional status gives rise to questions about the relationship of the peace-agreement constitution to the past constitutional order. Peace-agreement constitutions tend to supplant existing constitutions outside their established processes for revision or replacement. The constitution of the dpa, for example, did not refer to or acknowledge the previous B ­ osnian Constitution, or attempt to work within its legal framework.139 A peace agreement’s claim to constitutional validity lies in the lack of legitimacy of the previous constitution (and by implication the state), and the need to negotiate an end to the violence that reflects the question mark over the state’s legitimacy. In some cases (for example, South Africa) the lack of state legitimacy is accepted by all sides; however, in many other cases it is not. Lack of c­ onstitutional continuity, coupled with the international involvement that tends to be required to broker agreement in these circumstances, leaves the peace agreement and new regime open to charges of illegitimacy as a constitutional rupture, and an externally imposed one at that.140 These arguments are often manipulated by opponents of the agreement on the side of the former state.141

136 E.g., Republic of Fiji Islands v. Prasad, [2001] fjca 2, available at (asserting the continued status of the 1997 Fijian Constitution in aftermath of coup); see George Williams, Republic of Fiji v. Prasad, 2 MELBOURNE J. INT’L L. 144 (200 1); Venkatlyer, Restoration Constitutionalism in the South Pacific, 15 PAC. RIM L. & POL’Y J. 39, 59–72 (2006). 137 KRETZMER, supra note 101, at 187 (arguing that while the Israeli Supreme Court has been conservative, it has had some influence in shaping decisions in the “shadow of the law”). 138 Sallah v. Attorney-General (Const. Ct. Ghana, Apr. 20, 1970, unreported), reprinted in 2 SAMUEL GYANDOH & J. GRIFFITHS, A SOURCEBOOK OF THE CONSTITUTIONAL LAW OF GHANA 493 (1972) (concerning the validity of the dismissal of a senior civil servant belonging to the earlier regime following a coup); see also Tayyab Mahmud, jurisprudence of Successful Treason: Coup d’Etat & Common Law, 27 CORNELL INT’L L.J. 49, 65–69 (1994). 139 See Slu beni glasnik Bosne i Hercegovine, Case U 7/97 (Const. Ct. Bosn. & Herz. Dec. 22, 1997), available at ; Yee, supra note 14, at 176–92. 140 See sources cited supra note 139. 141 This difficulty bolsters the argument that peace agreements face a particular set of implementation difficulties in formally democratic states. See Colm Campbell & Fionnuala Ni Aolain, The Paradox a/Transition in Conflicted Democracies, 27 HUM. RTS. Q. 172 (2005). These states are the most likely to have a functioning prior constitutional order from which to attack the constitutional manifestations of the peace agreement.

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Contrived “Agreement” and UN Security Council Resolutions Another way of achieving binding legal obligations is to lock the parties to a conflict into a framework underwritten by Security Council resolutions.142 ­Security Council resolutions can be used to bring the force of law to peace agreement commitments, establishing mechanisms for monitoring compliance that stand independently of the status of the agreement itself, which nevertheless forms their raison d’etre.143 Security Council resolutions can also be used to impose a framework for governance and ongoing negotiations, even in the absence of agreement. Here the “peace process” is rooted in binding UN Security Council resolution, with international constitution brokering as a conflict resolution device. This approach has characterized processes of postconflict reconstruction consequent to the international use of force by NATO in Kosovo, the U.S.-led ­interventions in Afghanistan and Iraq, and the turmoil in postreferendum East Timor. The internal processes that the international community (in its different forms) has fashioned in these cases have essentially consisted of an initial framework for internationalized governance provided by a Security Council resolution, followed by constitutional processes that are used to broker agreement between the competing domestic groups. The processes in Kosovo, Afghanistan, and East Timor can be briefly sketched as having four stages: (1) adoption of a Security Council resolution providing a mandate for the international establishment of an interim administration;144 (2) e­ stablishment of an appointed local transitional government—multiethnic where relevant— which is gradually given increasing powers (from consultation toward limited direct exercise of power),145 in an attempt to foster cooperation between 142 See, e.g., SC Res. 1023 (Nov. 22, 1995) (on which Croatian Erdut Agreement of 1995, infra note 190, was suspensive); SC Res. 1244 (June 10, 1999). 143 See, e.g., SC Res 788 (Nov. 19, 1992) (calling for Liberian parties to Yamoussoukro iv Accord to respect the agreement and requesting the secretary-general to dispatch a special representative to Liberia to evaluate and report on the situation, and to submit a report on the implementation of the resolution). 144 Kosovo: SC Res. 1244, supra note 142; East Timor: SC Res. 1272 (Oct. 25, 1999); Afghanistan: SC Res. 1378 (Nov. 14, 2001). 145 Kosovo: UN Doc. unmik/reg/2000/1 (Jan. 14, 2000) (establishing Joint Interim Administrative Structure, thereby implementing the agreement signed on December 15, 1999, by the Kosovo Albanian political party leaders present at the talks leading to the Rambouillet Accords); East Timor: UN Docs. untaet/reg/1999/2 (Dec. 2, 1999), 2000/23 (July 14, 2000), 2000/24 (July 14, 2000); Afghanistan: SC Res. 1383 (Dec. 6, 2001) (endorsing Agreement on Provisional Arrangements in Afghanistan Pending the Reestablishment of ­Permanent Government Institutions, Dec. 5, 2001, UN Doc. S/2001/1154 §1(4) [hereinafter Bonn Agreement]).

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competing groups and to pave the way to (3) elections;146 and (4) drafting of a new constitution to replace the interim structures of governance with permanent structures (these last two sometimes happening in reverse order).147 Despite not being UN-led,148 U.S. reconstruction in Iraq appears to be following a broadly similar constitution-making pattern (albeit with further questions about its legitimacy).149 The use of peace agreement patterns in a context where there is no initial “agreement” can be argued to be an accentuation of existing peace agreement practice as much as an aberration from it. Its extremes reflect peace process patterns that use internationalized commitments at the beginning stage, ostensibly to enable resort to local constitutionalism and politics as the permanent vehicle for ongoing conflict resolution at the end stage. In summary, peace agreements are drafted in an attempt to use a legal form and appear to evidence an intent to be legally bound. However, these aims are somewhat frustrated at present by the limits of traditional legal categories, and in particular the difficulty of fitting direct agreements between state and nonstate parties into those categories. The compliance pull gained by achieving obligations with a clear claim to be binding as treaties or constitutions is undermined by the lack of correlation between the parties to the obligation and the formal parties to the agreement, and the peculiar nature of the peace ­agreement as a process document. These shortcomings point to the i­ mportance 146 East Timor: UN Doc. untaet/reg/2001/2 (Mar. 16, 2001); Kosovo: UN Doc. unmik/reg/ 200119 (May 15, 2001) (Constitutional Framework for Provisional Self-­Government); Afghanistan: Bonn Agreement, supra note 145, §1(4). 147 East Timor: UN Doc. untaet/reg/200 1/2, supra note 146; Kosovo: UN Doc. unmik/ reg/200 1/9, supra note 146; Afghanistan: Bonn Agreement, supra note 145, § 1(6). 148 But note, as regards UN authorization, SC Res. 1500 (Aug. 14, 2003) (welcoming establishment of Governing Council of Iraq); SC Res. 1511 (Oct. 16, 2003) (welcoming ­establishment of preparatory constitutional committee); SC Res. 1546 (June 8, 2004) (endorsing proposed framework for transition). 149 (1) Mandate: SC Res. 1483 (May 22, 2003) (recognizing the United Kingdom and the United States as occupying forces under unified command (“the Authority”)). (2) Transitional government: cpa Reg. 6 (July 13, 2003), available at (establishing the Governing Council of Iraq (gci) as the principal body of the Iraqi interim administration with a consultative role); Law of Administration for the State of Iraq for the Transitional Period, Mar. 8, 2004, at (providing for vesting an Iraqi interim government consisting of a president, prime minister, and cabinet of ministers with full sovereignty [hereinafter Transitional Administrative Law]); cpa Reg. 9 (June 9, 2004), available at cpa Reg. 6 Web site, supra (dissolving the Coalition Provisional Authority (cpa)). (3) Elections: Transitional Administrative Law, supra (elections held on January 30, 2005). (4) New Constitution: Text of the Draft Iraqi Constitution, available at (draft approved October 15, 2005).

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of legalized models as an alternative to formal legal status and help to explain why peace agreements are characterized by common innovations as regards form, obligations, and third-party delegation, regardless of whether or not they can be placed in a formal legal category. IV

The Nature of Obligations

The limits and deficits of legal form may be compensated for by how an agreement’s obligations are crafted, to some extent. Precise and coherent commitments, it is argued, facilitate compliance by imparting clarity regarding ­implementation and breach, which enhances their normative “compliance pull.”150 Conversely, imprecise language can decrease the normative compliance pull even of obligations framed in legally binding forms.151 Peace agreement legalization, however, also points to constitutional discourse as an equally important way of framing obligations in legal terms. In this area, the distinctiveness of peace agreements is driven by the difficulties of constructing obligations that can rely on different rationales for legalization at different stages of the peace process. Precision for Short-Term Goals Peace agreement commitments aimed at ending the immediate violence are clearly based on precise drafting to legalize their obligations. Establishing cease-fires, demobilization, and later demilitarization requires clear and verifiable commitments documented as precise obligations. The language of peace agreements bears this out: they are written through with agreed numbers of armed forces, specification of weaponry, timetables, and even maps.152 Research on the success or failure of these commitments emphasizes the importance of precision to compliance.153 Indeed, this research suggests that ­precision may be critical to limiting the scope for drastic “mistakes” by armies when withdrawing.154 Precise commitments relating to demobilization 150 Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT’L ORG. 421, 428–29 (2000) (citing FRANCK, supra note 83). 151 Id. 152 See, e.g., Angola: Lusaka Protocol, supra note 47; Democratic Republic of Congo: Cease fire Agreement, supra note 47; El Salvador: Peace Agreement, Jan. 16, 1992, El Sal.-FMLN, UN Doc. A/46/864-S/23501, annex (1992), available at . 153 FORTNA, supra note 13. 154 Id. at 20.

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and demilitarization are also especially amenable to third-party monitoring, ­interpretation, and enforcement. Peace agreements frequently provide full detail of mandate, role, and verification procedures, as illustrated by the extensive provisions of Angola’s Lusaka Protocol of 1994, Bosnia’s dpa of 1995, and Sierra Leone’s Lome Agreement of 1999.155 Precision and Political Institutions Peace agreements also evidence precision and detail in the forms of internal government they aim at establishing—particularly as regards the transitional arrangements. In the same way that demobilization signifies a transfer of power, so do the new arrangements for government. The mechanics of the transfer of political power are just as important to the parties, not least because they are linked to the vulnerability created by demobilization commitments. However, precision is also needed in dealing with the technical legal issues that the transition raises as to the applicable legal regime, such as what laws are in force, the specific timing of when and how the legal regime will change, and the detail of the effect of these changes on political and legal institutions like the presidency, the police, and the courts. The transitional provisions of Burundi’s Arusha Accord and South Africa’s Interim Constitution are examples.156 In addition, a high degree of precision is often characteristic of the longerterm provisions on how power will be held and exercised. Here, the precision of peace agreement commitments is linked to the substantive content of the obligations through the notion of mutual “enlightened self-interest.” The drafters of peace agreements often focus on creating incentives for cooperation and self-execution by providing for tightly reciprocal obligations at the levels both of stopping the violence and of creating democratic institutions. For political and military elites making fundamental compromises, the devil is quite literally in the details, as parties try to anticipate the consequences of any new arrangements for their own power. Thus, for an ethnic group whose separatist claims are to be accommodated with something less than its own state, the detail of which powers are to be devolved to the substate entity, the relationship of the entity to the central state, the precise numbers of the different ­ethnic groups in the central and regional institutions, their weighting as regards veto powers or constitutional amendment, and the procedures for breaking deadlock will all be crucial to agreement. The peace agreements for Burundi, Northern Ireland, 155 Lusaka Protocol, supra note 47, Annex 3; dpa, supra note 41, Annex 1A; Lome Agreement, supra note 29, Annex 1. 156 Burundi Peace Agreement, supra note 29, Protocol ii, Ch. ii; INTERIM CONST., supra note 29, Ch. 15.

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South Africa, Bosnia, and Bougainville illustrate the detail that r­ esults.157 Similarly for armed groups in left-right conflicts, the move to political participation typically involves detail on the democratic principles to govern the state and its key institutions, and the precise mechanisms by which it will open up to multiparty democracy. The agreements of Mozambique, Guatemala, and El Salvador serve as examples.158 This conflict-oriented detail also permeates the equality and human rights provisions that typically form part of the power map and are closely tied to the arrangements for government. In cases of ethnic conflict, detail is often crucial to providing for equality within centralized state structures, in particular for minorities left in the wrong territory at the sub divisional level. In the case of ideological conflicts, human rights detail plays an important role in underwriting the process of democratization, for example by providing for specific rights to political organization, or by focusing on eliminating prevalent human rights abuses. This aspect is illustrated by the emphasis on nondiscrimination in the Bosnian dpa, and the detailed provisions aimed at stopping disappearances in the El Salvadoran and Guatemalan human rights agreements, together with the detailed provision for the reform of key legal institutions found in their later agreements.159 The level of detail and contractual “feel” of peace-agreement constitutions, as has been pointed out, is somewhat at odds with their characterization as constitutions but reflects common conflict resolution goals. The Limits of Precision There are limits, however, to the compliance pull of precision in the peace agreement context that point to the importance of alternative modes of legalization. Precision may be insufficient to providing incentives to cooperation where the agreement does not encapsulate any real agreement between the parties. Thus, the difficulties and failures of implementation in, for example, Rwanda, Sierra Leone, and to a lesser extent Bosnia have been put down to the absence of genuine agreement at the heart of the accords.160 Those peace agreements became to a greater or lesser extent vehicles for pursuing ­largely 157 Burundi Peace Agreement, supra note 29; Belfast Agreement, supra note 29; INTERIM CONST., supra note 29; dpa, supra note 4 i; Bougainville Peace Agreement, supra note 53. 158 General Peace Agreement for Mozambique, supra note 47; Guatemala Peace Agreement, supra note 31; El Salvador Agreement, supra note 31. 159 dpa, supra note 41, Annex 4, Art. 2; El Salvador Agreement on Human Rights, supra note 64, Art. i; Comprehensive Agreement on Human Rights, Mar. 29, 1994, Guat.-URNG-UN, Art. 3.2, available at . 160 Yusuf Bangura, Strategic Policy Failure and Governance in Sierra Leone, 38 J. MOD. AFR. STUD. 551, 564 (2000); Clapham, supra note 5; INTERNATIONAL CRISIS GROUP, IS

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unchanged military agendas. The Arusha Accords of Rwanda even stand charged with facilitating genocide by changing the domestic military and political power balance while failing to grapple with the parties’ lack of commitment to making the accords work.161 Precision may also not be the key tool for managing the longer-term difficulties of implementation, which cannot be anticipated. The assumptions that underlie the fashioning of reciprocal commitments may become undone over time, particularly as the peace process enters the arena of domestic implementation.162 Paradoxically, tightly reciprocal peace agreement commitments can often shake loose the seeds of the agreement’s own demise. For example, in Northern Ireland, the operation of the devolved Assembly (a key Unionist goal) was conditioned on the operation of cross-border bodies  (a  key  ­Nationalist ­demand), which Unionists had insisted would be subject to the Assembly.163 However, under pressure from their antiagreement factions, the  concerns of Unionists over lack of ira decommissioning trumped their desire to self-­ govern. At this point, their reciprocal self-interest disappeared and the mechanism based on it in fact worked against implementation of the agreement by requiring all of the political institutions to be dismantled once one collapsed. More subtly, in South Africa the transitional consociational mechanisms and ­safeguards of constitutionalism that were aimed at minority protection were effectively negated by the unanticipated scale of the electoral victories of the anc, which soon gave it the percentages required to change the Constitution unilaterally.164 In short, while precision constitutes an important tool for short-term goals of peace agreements, it is less effective in promoting the long-term goal of constitutionalism as a mechanism of ongoing conflict transformation.165

­ AYTON FAILING? BOSNIA FOUR YEARS AFTER THE PEACE AGREEMENT (Europe ReD port No. 80, 1999), available at . 161 Clapham, supra note 5. 162 See Ben D. Mar, Peace Initiatives and Public Opinion: The Domestic Context of Conflict Resolution, 34 J. PEACE RES. 197 (1997). 163 See In re Application by de Brun and McGuinness for Judicial Review, [2001] niqb 3. 164 Cf ADRIAN GUELKE, SOUTH AFRICA IN TRANSITION: A MISUNDERSTOOD MIRACLE (1999) (arguing that South Africa’s Interim Constitution has been misunderstood as a constitutional compromise between majority and minority communities, with the strongest restraints on majority power expressly transitional). Note, however, that it can be argued that on occasion the anc felt politically constrained to work within the existing constitution rather than to amend it unilaterally. 165 Cf Schneckener, supra note 13 (arguing that the key to long-term success of peace agreements lies in institutional design aimed at enabling elite leadership and cooperation).

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Constitutional Values as Alternative Legalization The longer-term goals of peace agreements must be achieved through the deeper constitutionalization of the commitments they embody. This requires the building of trust between the parties to the conflict, and securing their baseline commitment to the working of the new institutions, including the constitution itself. Attempts to set the foundation for a shared constitutional outlook are often contained in a peace agreement’s vaguer language relating to the nature of the agreement and the nature of the state. Typically, this language is imprecise: either aspirational in outlook or deliberately employing “constructive ambiguity” to enable agreement. The agreed history of the opening chapter of the Burundi Peace Agreement, the self-determination provisions addressed to the Afrikaner Brotherhood in South Africa, the self­determination and binationalist language of the Belfast Agreement, and Guatemala’s commitments on indigenous peoples, all address substantive causes of the conflict and attempt to signal the different nature of the postagreement state.166 The lack of precision does not indicate a lack of legalization or a failure of drafting; rather, the very vagueness of what are symbolic and aspirational provisions evidences the substantive long-term goal of finding shared notions of identity and statehood.167 The language of constitutional values also serves other purposes, such as legitimacy and good process. Detailed precision with regard to longer-term constitutional development not merely encounters a problem of anticipation, but also is arguably undesirable.168 A narrow range of actors tends to be involved in peace negotiations; typically, they do not have the expertise, legitimacy, or sometimes even the will necessary to design long-term constitutions and consequent institutional reform in all their value-driven complexity. Processes of ongoing institutional development and reform both serve as a risk management device with similarities to third-party delegation in other contexts and, importantly, lend legitimacy to the constitution-making project. By setting forth principles and processes rather than final provisions, peace negotiations can be concluded more quickly, while also enabling broader civic involvement 166 Burundi Peace Agreement, supra note 29, Protocol i, Ch. i; South Africa Amendment Act, supra note 121, §13, Art. xxxiv; Belfast Agreement, supra note 29; Agreement on the Identity and Rights of Indigenous Peoples, pmbl., supra note 50. 167 Cf Abbott & Snidal, supra note 150. 168 See SC Res. 1325, 15 (Oct. 31, 2000); Women, Peace and Security, supra note 3, 63; Principles to Combat Impunity, supra note 3, princ. 6 (recommending broad consultation on the composition of truth commissions), princ. 32 (reparations procedures), princ. 35 (institutional reforms aimed at preventing recurrence of violations); see also The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, supra note 3, 64(h).

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in the processes of reform-involvement that is important to the local ownership and effectiveness of the new institutions. This is an alternative way of legalizing obligations. Process Dilemmas: Legalization in Transition Tensions, however, color the relationship between the short-term and longterm conflict resolution goals of peace agreements. While treaty like internationalized commitments are useful and even important to implementing an agreement in the short term, they may operate in subtle and not-so-subtle ways to negate and frustrate the longer-term goals of domestic constitutionalization. Thus, mediators often face a set of dilemmas as to how to achieve both short and long-term goals, while providing for functioning institutions during the transitional period.169 These dilemmas include whether to have elections before or after constitutional reform projects; when and how to introduce mechanisms to account for past abuses; when to use international “off-thepeg” legal tools as transitional devices; and whether these measures might undermine localized processes of constitutional development. The dilemmas, often framed as clashes of “principle” and “pragmatism,” in fact r­eflect the ­tension between different short-term and long-term conflict resolution imperatives, and the fact that different international and domestic actors have different ­degrees of legitimacy at different stages of the implementation process.170 The tensions point to a central, distinctive compliance challenge for the legalization of peace agreements. The obligations must be framed so that they can depend on different rationales and mechanisms for enforcement at different stages of the peace process. In their ideal form, peace agreements attempt to incorporate internationalized treatylike commitments with a high degree of third-party enforcement, while enabling a transition to domestic constitutional commitments, implemented through normalized politics and normalized public law processes. The difficulty for drafters is to craft obligations that will pin down commitments that are clear enough to command compliance yet leave some room for the coherent holistic development also crucial to compliance. In summary, precision is a valuable element of peace agreement legalization in the short term, particularly as regards the military commitments and transitional mechanisms of government. It suffers from limitations, however, 169 See HAMPSON, supra note 9; Christine Bell, Peace Agreements and Human Rights: Implications for the UN, in THE UN, HUMAN RIGHTS AND POST-CONFLICT SITUATIONS 241, 246–48 (Nigel D. White & Dirk Klaasen eds., 2005). 170 See sources cited supra note 169.

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in providing for the longer-term constitutionalization of commitments as worked out through the entrenched reform of political and legal institutions, where precise detail on wholesale constitutional reform can be counterproductive to compliance and is better served by the language of principle, values, and symbolism. The challenge is to find a way to use both forms of legalized obligation so as to bolster compliance, in a context where different forms of legalization bolster or undermine at different stages of the process. V

Delegation to Third Parties

The distinctive characteristics of peace agreements are further illustrated by the ways they delegate authority to designated third parties to interpret and implement their provisions. This element constitutes the third dimension of legalization. Abbott and colleagues plot a spectrum of legalization as regards third-party delegation, which ranges from a high end to a low end:171 from binding decisions of international or domestic courts with general jurisdiction and direct private access; through courts with limited jurisdiction and ­access; to arbitration, mediation, or conciliation. At the top end of the spectrum, thirdparty delegation is legally binding; at the bottom end, it amounts to little more than a forum for purely political bargaining. The range of third-party delegation in peace agreements is very broad and cannot be examined fully here. The general dynamics can be illustrated, however, by examining two persistent features, the use of third-party guarantors, and what I have termed “hybrid legal pluralism.” These again, it is argued, illustrate a distinctive lex pacificatoria, both in types of mechanism and in related notions of how third parties can best influence the implementation of peace agreements. Third-Party Guarantors The majority of peace agreements employ third-party states and international organizations as signatories to agreements, either through direct signature or signature in the capacity of “witnesses,” “guarantors,” or “observers.”172 What 171 Abbott et al., supra note 17, at 404. 172 Examples are numerous. See, e.g., dpa, supra note 41 (United States, United Kingdom, France, Germany, Russia, and the European Union as witnesses); Lome Agreement, supra note 29, Art. 34 (Togo, the United Nations, the Organization of African Unity (oau), the Economic Community of West African States (ECOWAS), and the Commonwealth of Nations as moral guarantors); Tashkent Declaration, supra note 24 (the United Nations as observer).

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this practice means, or whether the terms in which the organization signs have any technical legal implication, is unclear. (Is a “witness” different from a “guarantor,” “observer,” “moral guarantor,” or an “outside” state as an apparently coequal signatory without specific commitments?) While these states and organizations often continue to be involved in the peace process, little discussion has been devoted to whether or how their involvement is shaped by their signature and the particular label by which they are described as a third party to the agreement.173 It is suggested here that their role as signatories works in various ways. Most significantly perhaps, the signature of third-party guarantors can reinforce their role as “norm promoters” by influencing the progress of the peace agreement. Mark Peceny and William Stanley have argued that third-party effectiveness lies more in its norm promotion capacity than in delivering security guarantees.174 Using Central America as an example, they argue that the peace processes followed a three-stage trajectory illustrating this role: (1) local actors in the conflicts adopted liberal practices to legitimate themselves internationally; (2) internationally mediated negotiations demonstrated to the combatants that the adversaries had changed their preferences and could be trusted to move from violence to the political rules set out in the peace agreements; and (3) international actors and the United Nations engaged in concrete and direct efforts to support liberal social reconstruction and widen participation in it.175 This link between third-party guarantees and norm promotion can be seen in the increasingly self-conscious approaches of the United Nations as a “normative negotiator.” Involvement of the United Nations as observer, mediator, and/or signatory now appears to bring with it normative constraints as to the content of peace agreements, which helps to explain the increasing attempts to provide guidelines and standards for such agreements. In 1999 the UN 173 See preliminary discussion of contemporary treaty guarantees in Wippman, supra note 15, passim; BRAD R. ROTH, GOVERNMENTAL ILLEGITIMACY IN INTERNATIONAL LAW 193–94 (2000). Cf Georg Ress, Guarantee, in 2 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 626 (Rudolf Bernhardr ed., 1995); Georg Ress, Guarantee Treaties, in id. at 634 (discussing guarantees and treaties of guarantee and their implications for stare obligations). But see Kallon, supra note 81, 141 (where Special Court interpreted third-party signatures as evidence that those parties were “moral guarantors” that “assumed no legal obligation”). 174 Mark Peceny & William Stanley, Liberal Social Reconstruction and the Resolution of Civil Wars in Central America, 55 INT’L ORG. 149, 151 (2001). But see Roland Paris, The Perils of Liberal International Peacebuilding, 22 INT’L SECURITY 54 (1997) (criticizing the same strategy for contributing to instability in war-torn societies). 175 Peceny & Stanley, supra note 174; see also Ellen L. Lutz & Kathryn Sikkink, International Human Rights Law and Practice in Latin America, 54 INT’L ORG. 633 (2000).

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s­ ecretary-general established guidelines for his representatives that, although not public, apparently dealt with the normative human rights constraints on peace agreements, in particular with reference to amnesty.176 Shortly thereafter, in one clear example of third-party enforcement, the UN special envoy in Sierra Leone added a “disclaimer” to his signature of the Lome Agreement with respect to the amnesty provision’s inconsistency with international law.177 This action was to play a part in the establishment of the Sierra Leone Special Court and the eventual demise of the amnesty.178 The UN secretary-general’s recent report on the rule of law affirms the constraints on UN involvement in peace agreements.179 The value of norm promotion also helps to explain the compliance value of having even nongovernmental actors sign peace agreements, such as the San Egidio community as mediator in Mozambique, and the Catholic Church as “moral and spiritual guide” in the Colombian peace accords.180 Arguably, their value as signatories derives not just from their ongoing mediation function, but from the norm-promoting role they have played.181 Third-party signatories help to insert some of the advantages of treaty s­ tatus into instruments whose status as international agreements is questionable. The presence of third-party signatories means that the treaty partners have created obligations to each other and to the third parties as well.182 This commitment raises the compliance stakes for both state and nonstate signatories, particularly when third parties view themselves as having an active norm promotion function. As regards the state, it may counterbalance the political ­nature of the commitments made to nonstate actors. As regards nonstate actors, the third party’s opinions and pressures with regard to breach will not be as easy to dismiss as those of the “other side.” International legitimacy may be a substantive goal of nonstate actors, and articulating a need to keep third p ­ arties on board 176 UN Press Release SG/SM/7257, supra note 3. 177 See Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, UN Doc. S/1999/836, ¶54. 178 See Kallon, supra note 81, ¶89. 179 The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, supra note 3, ¶13. 180 General Peace Agreement for Mozambique, supra note 47; Accord, Mar. 9, 1990, Colom.political parties M-19-Catholic Church (in the capacity of a moral and spiritual guide for the process), available at . 181 See Dinis S. Sengulane & Jaime Pedro Goncalves, A Calling for Peace: Christian Leaders and the Questfor Reconciliation in Mozambique, in THE MOZAMBICAN PEACE PROCESS IN PERSPECTIVE, ACCORD, 1998 (Jeremy Armon, Dylan Hendrikson, & Alex Vines eds.), available at . 182 Kooijmans, supra note 14.

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may also increase their ability to resist their own outbidders locally.183 As has been noted, the use of outside state signatures may also address the commitments of these states themselves to peace, less as third p ­ arties and more as regards their own involvement in the international or transnational dimensions of the “intrastate” conflict. The inclusion of third-party guarantors as signatories of peace agreements may appear cosmetic and low on the spectrum of legalization, especially when they are not even states. However, this assessment may underestimate the ways that such guarantors can tie the status of the peace agreement to the normative direction of the commitments it contains. This norm ­promotion role, of course, raises important questions as to how third-party neutrality, ­consistency, and legal legitimacy affect third-party norm promotion capacities. It seems likely that this norm promotion function is reduced where third-party interventions are not clearly rooted in international norms, or even violate them.184 Hybrid Legal Pluralism The third-party tapestry of peace agreements typically involves a wide variety of international, domestic, and hybrid mechanisms, many of which straddle the law-politics boundary and have overlapping functions and sometimes even mandates. This form of third-party delegation can be characterized as “hybrid legal pluralism” and is rooted in the hybrid nature of peace agreements, already alluded to.185 It can be mapped loosely on the spectrum of third party delegation running from high legalization to low legalization. While binding court decisions are often placed at the top end of the legalization spectrum, in the peace agreement context detailed peacekeeping mandates aimed at oversight and verification of security guarantees can provide equally strong mechanisms by involving third parties in the day-to-day fabric of implementation. Elaborate mandates for peacekeeping and monitoring, underwritten by 183 See Gleditsch & Beardsley, supra note 10 (showing how the different parties were affected by transnational input to the peace processes in Central America). 184 See Outi Korhonen, International Governance in Post-conflict Situatiom, 14 LEIDEN J. INT’L L. 495 (200 1); Ralph Wilde, From Danzig to East Timor and Beyond The Role of International Territorial Administration, 95 AJIL 583 (2001) [hereinafter Wilde, Danzig to East Timor]; Ralph Wilde, Representing International Territorial Administration: A Critique of Some Approaches, 15 EUR. J. INT’L L. 71 (2004) [hereinafter Wilde, Representing ITA]. 185 Cf  Campbell, Harvey, & Ni Aolain, supra note 14, passim (arguing that the Belfast Agreement should be seen as a hybrid domestic and international law instrument); Laura A. Dickinson, The Promise of Hybrid Courts, 97 AJIL 295 (2003) (discussion of hybrid courts and tribunals).

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Security Council resolutions, are often crucial to establishing cease-fires and consequent processes of demobilization, demilitarization, and reintegration. The relevant provisions of the dpa and the Cambodian Paris Accords all form good examples.186 Binding arbitration is often presented as next in the legalization spectrum. In the peace agreement context a range of different mechanisms play a similar type of role to binding arbitration. Processes of review associated with Security Council resolutions that have underwritten peace agreements fit this mold. ­Interestingly, Security Council resolutions can also be used to supplement matters that were not dealt with in the agreement at all, for example reform of the judiciary.187 International involvement in discrete peace agreement tasks or in the reform of domestic legal processes can play a similar role. International participation is often used to develop and implement specific provisions of peace agreements, with a rule-making power delegated to the international actor in question. As regards provisions on refugees and displaced persons, for example, the UN High Commissioner for Refugees is often charged with assisting in implementation, and on occasion has been vested with the power to produce its own rules or even further agreements.188 Similarly, several agreements have given the International Committee of the Red Cross a role and rule-making power in the release of prisoners.189 A range of international and hybrid b­ odies 186 dpa, supra note 41, Annex 1A (Military Aspects of the Peace Settlement); Cambodia Political Settlement, supra note 114, Annex 2 (Withdrawal, Ceasefire, and Related Measures). 187 See William G. O’Neill, Reform of Law Enforcement Agencies and the Judiciary ‘l[‘l[19–24 (Int’l Council on Hum. Rts. Pol’y working paper, 2005), at . 188 See, e.g., dpa, supra note 41, Annex 7, Art. 1; Burundi Peace Agreement, supra note 29, Protocol iv, Ch. 3, Art. 17; Quadripartite Agreement on Voluntary Return of Refugees and Displaced Persons, Georgia-Abkhazia Russ.-UNHCR, Apr. 4, 1994, available at ACCORD, supra note 53; Comprehensive Peace Agreement, Aug. 18, 2003, Liber.-Liberians United for Reconciliation and Democracy (lurd)-Movement for Democracy in Liberia (model)political parties, Art. 12 [hereinafter Liberia Peace Agreement]; Cotonou Agreement, July 25, 1993, Liber. interim gov’t-National Patriotic Front of Liber.-United Liberation Movement of Liber. for Democracy ECOWAS-UN, pt. iii, §F, Art. 18, UN Doc. S/26272 (1993); Economic Community of West African States Six Month Peace Plan for Sierra Leone (23 October 1997–22 April 1998), Oct. 23, 1997, ECOWAS-Armed Forces Revolutionary Council regime of Sierra Leone-UN-OAU, Art. 4. The latter three agreements are available online at . 189 See, e.g., Lusaka Protocol, supra note 47, Annex 3.11.10; dpa, supra note 41, Annex 1, Art. 9; Final Act of the Paris Conference on Cambodia, Oct. 23, 1991, Art 13, 31 ilm 174 (1992); Cambodia Political Setdement, supra note 114, pt. xi; Democratic Republic of the Congo: Ceasefire Agreement, supra note 47, Art. 3(9); General Peace Agreement for Mozambique, supra note 47, Protocol vi(3); Agreement on Implementing the Cease-fire and

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have been put in charge of supervising or monitoring elections.190 The use of international or hybrid criminal tribunals or truth commissions with respect to dealing with the past might also fall in the category of entrusting international actors with discrete tasks. These forums involve a form of n ­ onconsensual jurisdiction relating to one dimension of the agreement; they enjoy rule-making authority and many apply a form of international law.191 In this context international human rights bodies can play similar specific enforcement roles through treaty-monitoring functions, although these roles are ongoing. As governments ratify treaties in consequence of peace agreements, and become subject to their reporting mechanisms, they often adduce the agreement as evidence of progress on human rights issues. Human rights bodies have shown innovative responses, which operate to enforce large sections of the agreement, and sometimes the agreement in its entirety.192 In all these areas international involvement not only reinforces compliance, but enables both detail and controversy to be resolved outside the main negotiations.193 International third-party involvement thus assists both substance and process.

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on ­Modalities of Disarmament (Supplement to the General Agreement signed in Addis Ababa on 8 January 1993), Jan. 15, 1993, Somali movements and parries, Art. 4, available at . See, e.g., dpa, supra note 41, Annex 3 (provides for Organization for Security and Co-­ operation in Europe (OSCE) to oversee elections); Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium (Erdut Agreement), Nov. 12, 1995, Croat.-Local Serb Community, UN Doc. A50/757-S/1995/951, annex, Art. 12, 35 ilm 184 (1996) (OSCE and United Nations, other international organizations, and interested states requested to oversee elections); Agreement between Guinea Bissau and the Self-Proclaimed Military Junta, Nov. 1, 1998, Art. 5, available at (ECOWAS, Community of Portuguese-speaking countries, and the international community to observe elections); Liberia Peace Agreement, supra note 188, Art. ix (United Nations, oau, ECOWAS, and nations elsewhere to be requested to monitor elections); General Peace Agreement for Mozambique, supra note 47, Protocol iii (United Nations, oau, and other agreed organizations to monitor elections). See, e.g., Burundi Peace Agreement, supra note 29, Protocol i, Art. 6 (delegating decision on establishing international criminal tribunal to the UN Security Council). But cf  SC Res. 1315 (Aug. 14, 2000) (establishing the Special Court for Sierra Leone, despite provision for it not being included in the terms of the Lome Agreement); SC Res. 827 (May 25, 1993) (establishing the International Criminal Tribunal for the Former Yugoslavia, even though it was not explicitly provided for in the dpa). See International Labour Organization, Report of the Committee Set up to Examine the Representation Alleging Non-observance by Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), Made Under Article 24 of the ILO Constitution by the Authentic Workers’ Front (fat) (2004), available at (where ilo examined the complaint as regards the Convention through the framework of the San Andres Larrainzar Agreements between the elzn and the Mexican government, supra note 50, which were based on this Convention). See Burundi Peace Agreement, supra note 29, Protocol i, Art. 6. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Beyond this there is a broad spectrum of international participation in a variety of essentially domestic tasks, such as the organization of transitional government, constitutional and legal reform, participation in courts and tribunals, development of civil society, and general reconciliation.194 Here, the involvement of international third parties reflects difficulties with domestic processes. Domestic legislation, for example, would seem to lie at the “high” end of the spectrum of delegation, as an internalization of international commitments that enables legal adjudication. However, in the peace agreement context, as with constitutional adjudication, it raises a particular set of compliance difficulties and can also undermine compliance. Translating commitments into simple legislative form involves opposition groups with opposition agendas, who were not primary parties to the deal. In contrast to accepted processes of treaty ratification, the lack of formal legal status of peace agreements leaves the parameters of the incorporation debate more open. Opposition groups may force the government to backtrack on commitments so as to respond to its primary domestic constituency. Particularly in identity conflicts, a minority or indigenous group may find itself in a second, more diffuse set of negotiations where its own role is reduced to lobbying against the watering down of a finely crafted deal of which it was a coauthor. Indeed, the state’s own democratic processes can be used by political outbidders on the state side to prevent implementation altogether, either in opposition, or indeed because they win the next elections on the strength of their antiagreement platform.195 In the Middle East, the elections following the assassination of Prime Minister Yitzhak Rabin saw victory for the anti-Oslo Benjamin Netanyahu by a slim majority; as a result, the Israeli government reversed its approach to the peace process even though there had arguably been no sea change in the Israeli public’s support for it.196 In Sri Lanka in November 2003, favorable government soundings to a proposal by the Liberation Tigers of Tamil Eelam for an interim (autonomy) agreement led the antipeace-process president (from the opposition party) to fire three government ministers who had been involved in the ­negotiations, prorogue parliament, and declare a state of emergency.197 Problems with passing new legislation to complete commitments in peace a­ greements have 194 See generally Korhonen, supra note 184. 195 See Mor, supra note 165; Stedman, supra note 13. 196 See Ian S. Lustick, Ending Protracted Conflicts: The Oslo Peace Process Between Political Partnership and Legality, 30 CORNELL INT’L L.J. 741 (1997). 197 See Motion for a Resolution Tabled for the Debate on Cases of Breaches of Human Rights, Democracy and the Rule of Law Pursuant to Rule 50 of the Rules of Procedure by Luigi Vinci on Sri Lanka, EUR. PARL. DOC. PE 338, 629 (2003), at . Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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o­ ccurred in Macedonia and Bangladesh,198 among other countries, where opposition political parties were able to use their positions in legislative and executive branches to undermine implementation of the agreement and the peace process itself. To address these difficulties, peace agreements tend to include substantive reform of legislative and constitutional processes and institutions that make international law a key reference point and give international actors a role in what are normally domestic institutions.199 An example is the dpa’s involvement of international actors in all of Bosnia’s key domestic legal institutions and the role of the Office of the High Representative as “final authority in ­theater regarding interpretation” (a role that came to include the power to legislate in the event of political deadlock).200 Other examples include the internationalized reform of policing and criminal justice in Northern Ireland, and the similar processes established in Central American peace agreements.201 Lower still on the spectrum of legalization, a range of arbitration, mediation, review, and “peace promotion” processes can be established, to operate almost completely at the political level. Examples include the British/Irish governmental review process of the Belfast Agreement,202 the Joint Israeli-­Palestinian Liaison Committee,203 and in many agreements an assortment of peace promotion bodies204 and provision for new agreements to be negotiated.205 198 See Nicholas Whyte, Macedonia: Not out of the Woods Yet, INTERNATIONAL CRISIS GROUP UPDATE BRIEFING (Feb. 25, 2005), at ; Devasish Roy, The International Character of Treaties with Indigenous Peoples and Implementation Challenges for Intra-State Peace and Autonomy Agreements Between Indigenous Peoples and States: The Case of the Chittagong Hill Tracts, Bangladesh at 3, UN Doc. HR/ Geneva/TSIP /Sem/2003/BP .8, available at . 199 Cf   Campbell, Harvey, & Ni Aolain, supra note 14, at 326–28 (arguing that the Belfast Agreement must be read as a “hybrid” international/domestic agreement). 200 dpa, supra note 41, Annex 10, Art. v. 201 Belfast Agreement, supra note 29, Annexes A, B, respectively; El Salvador: Peace Agreement, supra note 152, Ch. 2, Art. 3(B) (providing for international legal advisory services for police monitoring); Agreement on the Strengthening of Civilian Power and on the Role of the Armed Forces in a Democratic Society, Sept. 19, 1996, Guat.-URNG-UN, pt. iv, ¶31, 36 ilm 304 (urging international community to provide technical and financial assistance with police reform). 202 Belfast Agreement, supra note 29, “Validation, Implementation and Review.” 203 Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, Isr.plo, Art. x, 32 ilm 1525 (1993) [hereinafter Declaration of principles]. 204 See, e.g., Addis Ababa Agreement Concluded at the First Session of the Conference on National Reconciliation in Somalia, Mar. 27, 1993, Somali Movements and Parries, pt. v, available at . 205 See, e.g., Declaration of Principles, supra note 203, Art. vii.

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The hybrid legal pluralism of peace agreements bears some similarity to other uses of international law alluded to by the term lex pacijicatoria. Legal pluralism occurs in settings such as environmental law and contract compliance, where a range of quasi-legal mechanisms cut across international and domestic legal spheres in an attempt to give soft law commitments some impact on compliance.206 As regards “hybridization,” internationalized contracts have used general principles of international law either as the law governing the contract, or as a tool for amiables compositeurs, to prevent state parties from manipulating national law to their advantage.207 International law can thus provide a basis for enforcement of the contract internationally and even in domestic courts, regardless of the fact that the contract itself may not constitute a binding international agreement.208 Nevertheless, the hybrid legal pluralism of peace agreements is arguably distinctive in several respects. While a mapping from more legalized to more political commitments (high to low) is loosely possible, it is difficult to distinguish between the implementation of the peace agreement and continuation of the peace process: postagreement does not equate to postconflict. This problem, in turn, makes it difficult to distinguish between the delegation of implementation of the agreement and ongoing mediation of the ­agreement’s development.209 The boundary between political and legal mechanisms also tends to be particularly blurred in the transitional context. Legal institutions as both subjects and objects of reform tend to be more overtly politicized during transitions. Thus, the mixed international/domestic legal institutions of Bosnia with their multiethnic composition, and the new South African Constitutional Court’s constitutional certification function (­replicated in Burundi), could be viewed as examples of strong legalized delegation, or as new political negotiating forums for development and validation of

206 Cf  Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599 (1997); Christopher McCrudden, Human Rights Codes for Transnational Corporations: The Sullivan and MacBride Principles, in COMMITMENT AND COMPLIANCE, supra note 70, at 418. 207 Karyn S. Weinberg, Equity in International Arbitration: How Fair is “Fair”? A Study of Lex Mercatoria and Amiable Composition, 12 B.U. INT’L L.J. 227 (1994); if Derek W. Bowen, Claims Between States and Private Entities: The Twilight Zone of International Law, 35 CATH. U. L. REV. 929 (1986); A.A. Fatouros, International Law and the Internationalized Contract, 74 AJIL 134 (1980). 208 Fatouros, supra note 207. 209 Cf  RATNER, supra note 15, at 43–50 (noting that the most recent phase of UN peacekeeping related to negotiated agreements involves both “preserving” and “promoting” the settlement, id. at 44).

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c­ onstitutional law and values.210 Conversely, political institutions established through the contract like language of the peace agreement tend to have a legalized feel, as evidenced by some of the procedures for breaking deadlock in consociational mechanisms, which on occasion have recourse to courts.211 Peace agreements are also difficult to plot in terms of different international and domestic forms of delegation because of the design of “hybrid” mechanisms involving both international and domestic actors in hybrid institutions. International and domestic actors work together across many aspects of the agreement to enforce and develop it: on joint military commissions212 joint peace-monitoring councils,213 and consultative processes during international administrations.214 As a result, this hybrid legal pluralism is distinctive in the depth and reach of both the “hybridization” and the pluralism of the mechanisms that simultaneously enforce and develop the agreement. The hybrid legal pluralism of peace agreements is also distinctive with regard to its underlying rationale. Peace agreements resemble internationalized contracts in the use of international law as a basis for a legal order that is “neutral” as between the parties. However, in the peace agreement context, the use of international law is driven less by the need for an autonomous denationalized legal order, and more by the need to take processes of domestic legal reform outside their normal channels so as to address the illegitimacy of the preagreement legal and political order.215 The use of international law reflects the fact that in internal conflicts the legitimacy and role of law itself is typically implicated, as the very notion of the rule of law has been degraded and devalued and requires rehabilitation.216 Domestic law processes thus are both 210 dpa, supra note 41, Annex 4, Art. 6 (Constitutional Court), Annex 6, Art. 7 (Human Rights Chamber); INTERIM CONST., supra note 29, Ch. 5, Art. 71; see also In re Certification of Constitution, supra note 104, 1996 (4) SA 774 (CC), 1996 (10) bclr 1253 (CC); Burundi Peace Agreement, supra note 29, Protocol ii, Ch. 2, Art. 15(5) (similar provision). 211 See, e.g., dpa, supra note 41, Annex 4, Art. iv(3)(f). 212 See, e.g., id., Annex 1A, Art. 8; Cambodia Political Settlement, supra note 114, Annex 2, Art. 2 (providing for Mixed Military Working Group to be established to resolve problems arising in the observance of the cease-fire). 213 See, e.g., Burundi Peace Agreement, supra note 29, Protocol iii, Ch. 3, Art. 27; Bougainville Peace Agreement, supra note 53, pt. E. 214 See notes 144–49 supra and corresponding text. 215 But note that the distinction can also be viewed as one of degree, as peace agreements have in parr developed common practices through transnational contacts, while in the commercial law setting common legal practices respond to a notion of the “illegitimacy” of national laws, albeit in a very different context. 216 Christine Bell, Colm Campbell, & Fionnuala Ni Aoliin, Justice Discourses in Transition, 13 SOC. LEGAL STUD. 305, 309 (2004).

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a potential enforcement tool (the subject of change) and the object of change, complicating any notion of their role in producing compliance. In rare c­ ases, such as that of South Africa, transformation of the domestic order can be achieved through a domestically implemented fundamental reconstruction. In most cases, it cannot. At the other extreme, internationalization can bring domestic functions to the paradoxical situation where they are undertaken in their entirety by international actors. The most comprehensive internationalization of these processes is found in the “contrived agreement” situation, and the use of an international territorial administration (ITA)217 ITAs indicate the capacity for international “third parties” to subsume and carry out the functions of government in their totality. They are instituted in the name of conflict resolution and evidence the close connection between “implementation” and “development” of a framework for peace. As Ralph Wilde notes, international territorial administration is justified legally, morally, and politically in terms of the deficits in sovereignty and governance of the state in question, although it again gives rise to questions about the limited legitimacy of international actors in undertaking domestic governance.218 In summary, the examination of third-party delegation has begun to illustrate both the way that use of thirdparty guarantors can bring about norm promotion and the use of what has been termed “hybrid legal pluralism.” The distinctiveness of hybrid legal pluralism in this context is driven by the need to respond to the politicization and degradation of domestic law in conflicts. Thus, international “third party” enforcement often necessarily includes the domestic actors whose agreement is intended to be forged in hybrid institutions. Conversely, domestic legal forms tend to be internationalized through a heightened role for international law, and by involving international actors in implementing the agreement. VI

The Nature of Peace Agreements: A New Lex Pacifica Toria?

Toward a Lex Pacificatoria Peace agreements have produced practices of legalization marked by some consistency across widely varying peace processes. This legalization can be argued to constitute an emerging lex pacificatoria (law of the peacemakers) that draws on the idea of lex mercatoria (international law deriving from the

217 See generally Wilde, Danzig to East Timor, supra note 184; Wilde, Representing ita, supra note 184. 218 See sources cited supra note 184.

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practices of merchants) as a source of international commercial law.219 This embryonic lex pacificatoria can now be identified as including – a distinctive self-determination role: peace agreements address both ­external and internal challenges to a state’s legitimacy through new permutations of government and human rights protections; – a distinctive mix of state and nonstate signatories: peace agreements are “hybrid” agreements straddling international and domestic legal categories; – distinctive types of obligation: peace agreements consist of both ­treaty like/contractual and value-driven/constitutional provisions; and – distinctive types of third-parry delegation: peace agreements rely on hybrid legal pluralism, involving multiple intertwined and overlapping legal and political mechanisms, for their implementation. These distinctive elements reflect the conflict resolution role of peace agreements as simultaneously foundational and process-oriented documents. If we set aside legal categories and consider peace agreements on their own terms, they may be best thought of as transitional internationalized constitutions. They provide a power map and framework for governance, but it is often only FIGURE 1

Peace Agreement Goals over Time

Internationalized implementation Short-term/negative peace Contractual/quasi-private law Politicized legal institutions Legalized political mechanisms

Domestic implementation Long-term/positive peace Constitutional/public law Normalized legal institutions Normalized political mechanisms Ideal trajectory

219 See, e.g., Andreas F. Lowenfeld, Lex Mercatoria: An Arbitrators View, in LEX MERCATORIA AND ARBITRATION 71, 84–85 (Thomas E. Carbonneau ed., rev. ed. 1998) (explaining that the concept of lex mercatoria “is not that of a self-contained system covering all aspects of international commercial law to the exclusion of national law, but rather … a source of law made up of custom, practice, convention, precedent-and many national laws”); see also A. CLAIRE CUTLER, PRIVATE POWER AND GLOBAL AUTHORITI: TRANSNATIONAL MERCHANT LAW IN THE GLOBAL POLITICAL ECONOMY 16 (2003). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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partial and transitional, requiring further development. Contractual, treaty like commitments, backed up by delegation to mechanisms that are typically internationalized, are aimed at ensuring short-term implementation. However, domestic legal and political processes are contemplated to form the long-term vehicle for conflict transformation, and a transition to these must take place. Figure 1 above, illustrates an idealized trajectory of peace agreement goals over time. This trajectory illustrates why peace agreements contain their distinctive mix of hybrid ingredients. It also points to peace agreement legalization as an attempt to bridge the uneasy gap between the short-term and long-term peace process goals and mechanisms. The hybrid nature of peace agreements goes beyond form, signatories, and even substance, in reaching to a need to rely on different rationales for why pacta sunt servanda at different stages in the process. In their initial stages peace agreements are meant to ­command implementation as contractual-like treaties; but it is their ability (or  not) to serve as constitutions that enables them to continue as conflict resolution frameworks. Thus, Rwanda’s Arusha Accords, which failed so dramatically as an internationalized agreement, were still used after the genocide to provide and legitimate the basic framework of governance: as a treaty they would have been void, but as a constitution they could live on—albeit problematically.220 The attempt to produce legal-type documents, and indeed the very existence of the peace agreement phenomenon, testifies to the importance of legalized commitments to peace agreement parties: they constitute a key way of doing business. Any theory of how peace agreement legalization promotes compliance would seem best located in accounts of transnational legal processes as “normative, dynamic, and constitutive.”221 Such accounts argue that the compliance pull of legalized agreements lies in their capacity to promote transactions between parties that over time interpret and internalize norms so as to “reconstitute the interests and even the identities of the participants in the process.”222 This description rings true in the peace agreement context and appears to go far in explaining how the interrelated dynamics of form, obligation, and third parties, described above, aim at inducing compliance.223 220 U.S. Dep’t of State, Background Note: Rwanda (Mar. 2006), at . 221 Koh, supra note 206, at 2646. 222 Id. (Koh identifies this process as having three main dynamics: interaction (between transnational actors and parties); interpretation (of the application of legal norms); and internalization (of legal norms). He argues that this theory synthesizes, rather than replaces, other theories of compliance.) 223 Cf id. at 2651–54 (using Oslo Accords as an example, Koh argues that transnational legal processes tied the antipeace-process Netanyahu into the Oslo framework to the point where he even signed and complied with a further agreement). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Yet the distinctive attributes of their legalization all reflect the fact that if peace agreements are to construct states as peaceful, democratic, and legitimate, they must reconstruct a division between political and legal order and to some extent between international, domestic, and even public and private spheres. This requirement gives rise to two difficulties for any theory of compliance. First, peace agreements focus on processes as much as outcomes, so that what constitutes compliance with them is under negotiation even as they are being implemented. This suggests a need to have some basis for distinguishing between the compliance pull of transnational legal processes on the parties and simple renegotiation.224 Second, the notion of internalizing norms is complicated by the position of domestic law in the peace agreement setting, where it is both object and subject of negotiation. Paradoxically, these difficulties characteristically result in the internationalization of domestic legal processes. International involvement itself, however, faces increasing normative and legitimacy challenges as time passes, creating a transitional dilemma for its norm promotion capacity. While full elaboration of how any theory of compliance can account for these complications is beyond the scope of this article, it is suggested that understanding the common dynamics of peace agreement legalization-the lex pacificatoria-is a key starting point. Only through identifying the essential elements of peace agreement practice and understanding the extent to which it is both a unified and a legal practice can further lines of inquiry be established. The Case for the Lex Pacificatoria To be characterized as lex pacificatoria, peace agreement legalization must make the case that it is law (lex); and that it is distinct to peacemakers (pacificatoria). As regards lex, this article has argued that peace agreement practice evidences a strong degree of coherence stemming from the importance of legalization to achieving agreement between parties in the first place. It is further suggested that just as the term lex mercatoria seeks to provide a label conducive to understanding the ways that commercial practices assert their own legalization across international and domestic spheres,225 so the term lex pacificatoria usefully captures similar dynamics with regard to the legalization of peace agreement commitments. Ultimately, whether the case for the lex has 224 Koh’s account of the role of transnational legal process in the Oslo Accords itself illustrates this difficulty, id. at 2653, as it can be argued that the agreements signed by Netanyahu in fact operated to dismantle key Oslo understandings rather than to implement them. 225 CUTLER, supra note 219; Lowenfeld, supra note 219.

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been made depends on one’s factual assessment of peace agreement practice and one’s view of what constitutes law (whether—and which—­essentialist functionalist definitions or nonessentialist conventionalist definitions are preferred).226 Whether the embryonic lex pacificatoria is differentiated enough to constitute a “new” form of law deserves further consideration. International law could move to accommodate peace agreements signed with nonstate actors as international agreements, just as it has accommodated agreements with international organizations.227 Indeed, this article has demonstrated how peace agreement practice may be forcing this accommodation. However, it must also be acknowledged that to move to a clear understanding of all such peace agreements as binding international agreements would change the face of international law, even as arguments persist that it is indeed moving away from the notion of states as the primary actors.228 Such acknowledgment would also raise the problem of what lines are to be drawn with reference to international law. While many of the agreements reviewed here have an arguable claim to be considered as international agreements because the nonstate actors enjoy some type of legal subjectivity, other similar agreements are signed by actors such as domestic politicians, members of civil society, and armed groups with little claim at all to such status.229 Moreover, domestic legal forms cannot easily accommodate peace agreements without major revision, as the discussion of peace-agreement constitutions illustrated. These categorization difficulties point to the usefulness of considering peace agreement practice on its own terms, as a distinctive use of law that cuts across international and domestic, public and private spheres. While the lex operates in an interstitial place similar to that of other legal documents such as internationalized contracts, it does so for quite different reasons and to quite different ends-it is the law of the peacemaker rather than the merchant. 226 See Brian Z. Tamanaha, A Non-essentialist Version of Legal Pluralism, 27 ]. L. & Soc. 296 (2000) (review of nature of pluralist approaches to what constitutes “law”). 227 KLABBERS, supra note 63; Catherine Briilmann, A Flat Earth? International Organisations in the System of International Law, 70 NORDIC]. INT’L L. 319 (2001); cf  Malanczuk, Multinational Enterprises, supra note 61 (discussing whether internationalized contracts evidence a revision of international law). 228 See Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992). 229 See, e.g., Burundi Peace Agreement, supra note 29 (signed by a range of political parties as well as armed opposition groups); see also Dili Peace Accord, Apr. 21, 1999 (signed by the National Council of Timorese Resistance and Falantil, and the Pro-integration Party); cf  South Africa National Peace Accord, Sept. 14, 1991, available at (signed by anc and National Party government, and a range of forty parries, including civic acrors).

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The Lex Pacificatoria and Compliance Inquiries This evaluation of the case for the lex pacificatoria indicates the ways that it constitutes a tool for further developing an understanding of the relationship of law to compliance in the peace agreement context. In fact, the main value of the term may be instrumental. Labeling peace agreement legalization as constituting a distinct legal practice highlights its coherence and can inform ­borrowings across peace processes in the search for implementation. It enables dialogue with empirical researchers, in particular with reference to their own often contradictory and unsatisfactory attempts to measure the success or failure of peace agreements.230 While focused on “civil war” or “internal conflict,” the studies use different definitions and thus compare different sets of data. Indeed, debate continues on the extent to which “civil war” can usefully be considered an undifferentiated category.231 The authors also disagree on how to measure peace.232 Should it be measured by the number of deaths caused by the conflict (raising the difficulty of how to define such a death)? What period of time demonstrates the existence of peace? When does the absence of deaths and lack of ostensible conflict indicate an accord’s success, or repression and failure? Should indicators of democracy also be included in any quantification of success? Furthermore, the choices made by social scientists as to how to correlate peace agreement provisions with conflict outcomes often seem problematically selective, and at odds with approaches that could factor in the dynamics of processes that are much less easily tested empirically.233 As a result, the studies find different factors to be crucial to success, with consequentially differing policy implications. Understanding the lex pacificatoria embodied in peace agreement legalization makes an important contribution to these empirical debates because it reveals why some of the empirical quandaries are so intractable. If peace agreements are identified as transitional constitutions, then the difficulty of measuring success or failure lies in the difficulty of evaluating whether a constitution is successful or not. Clearly, there are empirical ways to measure ­success or failure, based on level of violent conflict or whether the constitution’s institutions are up and running. 230 See, e.g., Peceny & Stanley, supra note 174; Nicholas Sambanis, Using Case Studies to Expand Economic Models of Civil War, 2 PERSP. ON POL. 259 (2004); see also Licklider, supra note 16, at 685 (discussing difficulties with definitions and research design). 231 See, e.g., Peceny & Stanley, supra note 174; Sambanis, supra note 230; cf Licklider, supra note 16. 232 See, e.g., FORTNA, supra note 13; Licklider, supra note 16; Walter, supra note 10. 233 The case study approaches do provide some process analysis. See Sambanis, supra note 230 (critiquing WORLD BANK, supra note 11); cf  Bekoe, supra note 13.

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However, whether a constitution is actually working involves a much b­ roader discussion of what it is that the constitution was meant to do. This includes questions such as, in what ways has the constitution provided alternatives to violent conflict? To what extent does it deliver benefits such as equality between groups and legitimacy to government? Does constitutional discourse divide or unite ethnically divided polities, and does it prevent or enable other political conversations? To have a sensible discussion about how law relates to compliance, we must have some discussion about what compliance should look like. These questions point to the benefit of examining peace agreements by means of a broad definition, and indeed of linking the discussion to ongoing debates about processes of social change and democratic renewal even outside the context of violent conflict. It suggests a need for social scientists and lawyers to talk to each other about the stuff of jurisprudence. Recognition of a lex pacificatoria also indicates the need for further examination of the implications of legal pluralistic practice for compliance, particularly at the domestic level. The term lex pacificatoria signals the range of new inquiries. What is the relevance of the agreement’s text to political discourse? How has international participation shaped this relationship? How have the various bodies charged with implementing the agreement—national monitoring commissions, peace councils, or even truth and reconciliation commissions—evolved quasi-legal regulation? Or conversely, where legal forums adjudicate on implementation, what is the role of peace agreements as regards judicial functions? At what point can legal adjudication cut free from the agreement’s apparent goals, and how do we decide whether this cutting free represents a negation of the agreement or the achievement of a successful transition to “normal” political and legal structures? The compliance implications of the hybrid pluralist legal tapestry of peace agreement implementation at the domestic level have received little attention. Finally, and perhaps most important, recognition of a lex pacificatoria enables engagement with the force of the lex and so offers the chance to question and shape its assumptions and manifestations. The phenomenal aspects of peace agreement practice point to a “univocal political meaning” on the global front, which operates to legitimate internationalized processes and blueprints.234 This legitimating narrative presents peace agreements as always a good thing and peace processes as always moving ­straightforwardly from conflict to peace, and from internationalized process to domestic 234 Boaventura de Sousa Santos, Law and Democracy: (Mis)trusting the Global Reform of Courts, in GLOBALISING INSTITUTIONS: CASE STUDIES IN REGULATION AND INNOVATION 253 (Jane Jenson & Boaventura de Sousa Santos eds., 2000).

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c­onstitutionalization, in ­ conformity with human rights standards. International actors appear as neutral and legitimate, and national actors as violent and equally at fault. In fact, peace processes evidence different degrees of legitimacy and neutrality of both international and domestic actors. They can move both away from and toward violence. They produce agreements that often have an ambiguous relationship to international law’s normative standards, particularly those of human rights law. The fiction of a voluntary agreement crafted by equal parties, so crucial to achieving agreement, often disappears at the implementation stage, which involves supervising and enforcing what, in essence, are fundamental reallocations of power. At this point, international implementers must often abandon either their “neutrality” or their effectiveness-in practice, not all the parties can win.235 The choice has implications for the normative basis on which international actors assert their legitimacy.236 The above discussion has indicated that the legitimacy and the effectiveness of peace agreement legalization are related. Unless we understand the coherence of peace agreement legalization as having the force of law, we risk losing sight of a necessary discussion as to the identity of the moral and normative underpinnings of the emerging lex. Such a loss leaves technical devices and patterns-from constitutional blueprints to transitional justice mechanisms-to be rolled out without any coherent comparative discussion of whether they build on or undermine their possible normative justifications.237 Without this discussion it can be somewhat puzzling why virtually identical measures seem legitimate and successful in some cases and illegitimate and unsuccessful in others. Unveiling a lex pacificatoria reveals not just the normative capacity of international law, but the capacity of peace agreement practice to recast its norms.238 This capacity reaches its height where peace agreement practice 235 See Eva Bertram, Reinventing Governments: The Promise and Perils of United Nations Peace Building, 39 J. CONFLICT RESOL. 401 (1995). 236 See sources cited supra note 184. 237 For evidence of the potential of “organizational” tools to promote common practice without articulating norms, see U.S. Dep’t of State, Post-conflict Reconstruction Essential Tasks Matrix (Apr. 1, 2005), at (note, however, caveats in the preface as regards the need to be appropriate for context). See Post Conflict Reconstruction Unit, Post Conflict Stabilisation: Improving the United Kingdom’s Contribution (Autumn 2004), at . 238 Cf  BELL, supra note 2, at 320; Nathaniel Berman, The International Law of Nationalism: Group Identity and Legal History, in INTERNATIONAL LAW AND ETHNIC CONFLICT, ­supra note 4, at 25.

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touches on normative gaps with regard to how international law deals with both mainly internal conflict and transitional situations.239 The peace agreement phenomenon and the emerging lex pacificatoria therefore stand firmly at the heart of current debates over the future direction and power of international law itself and deserve further consideration. 239 See sources cited supra note 238.

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Chapter 35

David H. Anderson, The Role of the International Lawyer in the Negotiation of Treaties, 2007 Comment by Arianne Griffith, Research Assistant, BIICL David Heywood Anderson CMG is probably best known for his role as former Judge of the International Tribunal for the Law of the Sea (ITLOS). However his international law expertise and experience is far broader. Anderson served as a legal adviser to the UK Foreign and Commonwealth Office (fco) for over 30 years, before retiring as Second Legal Adviser to the FCO in 1996. During this time, he was Agent for the UK in the Fisheries Jurisdiction Casea before the International Court of Justice and an active member of UK delegations to several international conferences, including the Third UN Conference on the Law of the Sea (which negotiated the UN Convention on the Law of the Sea)b and the Vienna Conference on the Law of Treaties (which negotiated the Vienna Convention on the Law of Treaties).c Anderson is currently listed as an arbitrator under Annex VII of the UN Convention on the Law of the Sea. He is widely published on the law of the sea and the law of treaties in particular and on various other international law topics including jurisdiction, dispute settlement and international tribunals. Anderson writes in clear, plain language, making his work easy to read and understand. His chapter on “The Role of the International Lawyer in the Negotiation of Treaties” gives insights into his decades of experience as a legal adviser and his participation in lawmaking conferences. The introduction to the chapter contextualises treaty negotiation at both the bilateral and multilateral levels as an important part of international diplomacy. The chapter is then divided into two parts, the first dealing with the role of the international lawyer in applying the law of treaties and the second dealing with their role in applying other rules of international law. a Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) [1974] ICJ Rep 3. b United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 unts 3. c Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 unts 331.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_036

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Anderson ably and clearly addresses the fundamentals of the application of the law of treaties; he explains how the Vienna Convention on the Law of Treaties assists international lawyers in treaty negotiations, but also how these negotiations, led by international lawyers, may result in the creation of both binding and non-binding instruments. Likening multilateral treaties to primary legislation at the global level, he makes a convincing argument for reservations to be prohibited or restricted in scope, contributing to the perennial debate on this issue. The second part of the chapter covers rules outside of the law of treaties that are relevant to the work of an international lawyer. Here Anderson suggests that one of the first questions that must be answered by international lawyers when faced with a problem involving another State, is whether or not to negotiate. He then presents a range of options that are available in the context of proposed negotiations, discussing each against his wealth of experience in these matters. This chapter provides an insider’s perspective on the obstacles that confronted negotiating parties at the conclusion of the Third UN Conference on the Law of the Sea and how those were overcome using what he refers to as the appropriate “treaty architecture”. Anderson effectively relates how the dynamics of diverging interests operate at international conferences and consultations. He thereby demonstrates that the outcomes are the result of ­extraordinary efforts in problem solving on the part of the lawyers and diplomats involved. Throughout the chapter, Anderson suggests that an international lawyer in the position of legal adviser to a State must play a steadying role and ensure that all options are duly considered. In addition, given their responsibilities for balancing competing interests and securing agreeable outcomes in treaty negotiations, the international lawyer always remains at the centre of the storm. Anderson’s experience, as reflected in this chapter (and in his other writings), is an inspiration to young international lawyers.

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D. Anderson, Modern Law of the Sea: Selected Essays (Martinus Njhoff 2007). Excerpt: Chapter 18, ‘The Role of the International Lawyer in the Negotiation of Treaties’, pp. 325–40. Reproduced with the kind permission of Brill Nijhoff.

The Role of the International Lawyer in the Negotiation of Treaties* David H. Anderson

Introduction

The practice of international law involves the Legal Advisers to the Foreign and Commonwealth Office (FCO) in negotiations on a regular basis. These negotiations concern all manner of issues: leading examples include claims (notably in respect of nationalised property); fisheries; air services; defence cooperation; draft Resolutions in the General Assembly and the Security Council on a wide variety of politico-legal questions; differences concerning the interpretation or application, including the non-performance, of existing treaties; and, above all, negotiations leading to the conclusion of new treaties. In many instances, these treaties have to do not only with substantive arrangements for inter-governmental cooperation or for the settlement of a difference but also with the constitution of an international organisation. The focus in this paper will be on the negotiation of new treaties, including the sometimes delicate task of making amendments or adjustments to existing treaties, drawing upon experiences as one of the Legal Advisers. The negotiation of treaties represents a significant part of diplomacy. Thus, Article 3 of the Vienna Convention on Diplomatic Relations lists “Negotiating with the Government of the receiving State” among the functions of a diplomatic mission. In the era of the United Nations, international relations have been transformed by the conclusion of innumerable bilateral and multilateral treaties relating to many different matters. For those involved, whether diplomats or lawyers, in the processes of concluding such treaties, the negotiations are always challenging, often creative and rarely dull. As Satow’s Guide to ­Diplomatic Practice puts it,

* This chapter, the text of a lecture given at the British Institute of International and Comparative Law, was first published in C. Wickremasinghe (ed.), The International Lawyer as Practitioner, BIICL 2000, Chapter 2. It has been edited slightly, but not updated.

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there are few more rewarding things in diplomacy than a successful ­negotiation … from which both or all sides derive some satisfaction. For mutual satisfaction is the best guarantee of permanence.1 The point was put in a slightly different way by Sir Harold Nicholson, as follows: Diplomacy is the art of negotiating documents in a ratifiable and therefore dependable form.2 Nicholson was drawing a distinction between representational or conference diplomacy (specifically, debating in an organisation such as the League of Nations) and conducting diplomatic exchanges intended to lead to a written agreement among the governments taking part. Negotiations, whether for the conclusion of a treaty or for the settlement of a difference, typically provide a stream of interesting legal issues which the negotiators have to try to solve. Clearly, international lawyers play important roles in the negotiation of treaties, both bilateral and multilateral, including treaties drawn up under the auspices of the United Nations and other international organisations. I

The Role of the International Lawyer in Applying the Law of Treaties

A The Positive Impact of the Vienna Convention of 1969 The Vienna Convention on the Law of Treaties represents a pillar of modern international law. It was largely a work of codification, a topic which lies beyond the scope of this paper.3 In the present context of the negotiation of treaties, it is relevant to note simply that the Convention gives very great assistance to the international lawyer. Surprisingly often, doctrinal differences born of constitutional factors give rise to obstacles to progress in negotiations. In overcoming such problems, instead of having to rely solely upon the writings of publicists such as Lord McNair and Professor Reuter (excellent as their respective works, Law of Treaties4 and Introduction to the Law of Treaties5 remain), today the lawyer engaged in negotiations has a near-comprehensive 1 Satow’s Guide to Diplomatic Practice, 5th edition by Lord Gore-Booth (London, Longman, 1979), p. 350. 2 H. Nicholson, Peacemaking (1919). 3 Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd Ed. (Manchester University Press, 1984). 4 The Law of Treaties, (Oxford, Clarendon Press, 1961). Reprinted 1998. 5 Introduction to the Law of Treaties, 2nd English edition, (Kegan Paul International, 1995). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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code of rules readily to hand in the Vienna Convention of 1969. In practice, all negotiators refer to it in their day-to-day work, irrespective of whether a particular government has established its consent to be bound by it as a treaty. The Convention has achieved the status of being an integral part of the basic international legal order. Its terms cover the conclusion and entry into force of treaties in sufficient detail to permit in practice the speedy resolution, either around the table or by suitable means of telecommunication, of those problems which typically arise in drafting the final clauses of both bilateral and multilateral treaties. It has also facilitated some simplification of final clauses: for example, there is less often a need to spell out the tasks of the depositary. B Reservations to Multilateral Conventions If there remains a weakness in the Convention, it lies in the various rules on reservations and it is most appropriate that the ILC has taken up this topic again.6 To my mind, there is something rather old-fashioned about the whole concept of reservations. In the case of bilateral treaties and those with restricted participation, attaching a unilateral reservation to an instrument of ratification often represents nothing less than an attempt to reopen the prior negotiations with a new demand or to alter the balance of the agreement reached across the table. At the multilateral level, the making of reservations may be symptomatic of a partial failure in the negotiating process, for example, the ­premature closure of debate and recourse to voting. The better way in global negotiations is first to talk problems through in all their details, in both formal and informal meetings, accommodating those positions or points of view which are found by the negotiators to be acceptable, perhaps as parts of a “package”, and then to prohibit reservations to the final text of the convention. It is, of course, also possible to negotiate special terms according to which certain specified exceptions may be made upon ratification and reservations to the remainder of the text are prohibited, as was done in the case of the Convention on the Law of the Sea. After all, why should there be wide scope for ­making reservations to law-making conventions, which are akin to primary legislation at the global level and which are intended to bring clarity and uniformity to the law and State practice? The existence of reservations in certain cases tends to weaken the fabric of the very law which the particular convention was intended to strengthen. At the very least, reservations reduce ­uniformity and create u ­ ncertainty in the law. One of the strengths of the Charter of the United N ­ ations, which is of course not only a constitution but also a statement 6 In 1994, Professor Alain Pellet was appointed Special Rapporteur for the topic. For accounts of the work of the Commission, see the Reports on its 48th and 49th sessions (A/51/10 and A/52/10). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of fundamental legal principles, lies in the absence of reservations to its terms. The discouragement of reservations, at least in the case of law-making conventions, is the direction in which negotiators or law-makers should head in the future, even if the result in some cases may be to prolong negotiations whilst difficult issues are resolved. It would be a sign of a maturing legal system to ­witness a decline in the numbers of reservations in the coming years. C Questions of Form In regard to negotiations which are intended to produce a formal text, a perennial issue for the international lawyer is the question of form. The first issue is that of the designation of the parties, whether Heads of States (now rare), States or Governments. Somewhat related is the making of the choice between a single instrument, whether in the form of a treaty, agreement or convention, or two or more instruments (such as an exchange of notes or an agreement and supplementary protocol). These choices should be made in the light of both legal and presentational factors. The legal factors include the constitutional and Parliamentary implications for the governments concerned. Clearly, a form which would facilitate internal processing is to be preferred over one which is likely to become fraught with Parliamentary difficulties. Apart from such considerations, the precise choice of form may depend upon presentational factors and an assessment of the political significance of the subject-matter. Issues which are being regulated once and for all, such as boundaries, are best dealt with by a fairly solemn type of instrument such as a treaty or agreement. Any technical or related questions can be dealt with in annexes or possibly in protocols. The latter course would require more than one signature and could lead to the adoption of a free-standing instrument. Arrangements for cooperation on technical questions are best couched as agreements or conventions. Temporary or short-lived arrangements, or ones relating to purely technical matters, are often set out in exchanges of notes or letters. Despite the variety of designations of treaty-type instruments, “terminology is not a determinant factor as to the character of an international agreement…”.7 They are all equally binding in law and in accordance with their terms. A prior question which may often need to be asked by the international lawyer is whether it is the intention to conclude a treaty or agreement, or to adopt instead the text of something else such as a political declaration, a communiqué, a gentlemen’s agreement or a non-binding memorandum of ­understanding (MOU). The treaty draftsman has to carry out the intentions indicated by political decision-makers and to draft an appropriate text for the client Department. It is well known that in British practice many a­ rrangements 7 Per the ICJ in the South West Africa cases (Preliminary Objections), [1962] ICJ Rep., at p. 330. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of a lasting nature, notably in the field of defence cooperation, are cast in the form of MOUs. Such texts, many of which run to some length, create relationships lasting several years and normally carry with them some legal effects. They are usually not presented to Parliament as White Papers, nor registered with the UN under Article 102 of the Charter.8 As a result, the texts are not w ­ idely known and their existence may even be overlooked by non-specialists. Other Governments follow a different practice and conclude open treaties which are then supplemented by secret arrangements such as technical a­ nnexes. A rare British example of this latter model is the Polaris Sales Agreement with the United States.9 It is beyond the scope of this short article to e­ xplore fully the question of the legal status of the typical MOU.10 However, two points may be noted. At the Vienna Conference, the British delegation’s ­effort11 to add to the proposed definition of the term “treaty” in the Vienna Convention an express reference to the element of intention to create legal rights and obligations proved to be unsuccessful. As a result, the element of intention has to be regarded as being included in the phrase “governed by international law” in that definition. Secondly, the Treaty Series of White Papers contains more than one instrument called a “Memorandum of Understanding” with other Governments. These MOUs were signed on behalf of the U ­ nited Kingdom under Full Powers and they clearly represent treaties with legally binding rights and obligations.12 As a result, some doubt exists over the viability in certain cases of the doctrine that in order to avoid concluding a treaty all that has to be done is simply to cast the text as a MOU and to avoid using words such as “shall”, “agree” and “undertake”. A more explicit statement of intention may be 8 9 10

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Aust, “The Theory and Practice of Informal International Instruments”, 35 ICLQ (1986) 787. Rosenne, Developments in the Law of Treaties 1945–1986, (Cambridge, Cambridge U ­ niversity Press, 1989) reviews the form and function of the non-binding instrument, at p. 107ff. UK Treaty Series No. 59 (1963), Cmnd. 2108; 474 unts 49. Jennings and Watts (eds.), Oppenheim’s International Law, 9th Edition, (London, Longman, 1992) argue that “…States cannot avoid an instrument being a treaty merely by giving it a title suggesting otherwise. They may, however, still adopt instruments which do not constitute treaties, provided that as a matter of substance and not of mere nomenclature the instruments are appropriate to such a conclusion.” (p. 1209). The learned editors question the ILC’s statement (ybilc (1966) Vol. ii, p. 188) that a Memorandum of Understanding was “undoubtedly” an international agreement. First in written comments on the International Law Commission’s preliminary draft articles (contained in Volume ii of the Yearbook of the ILC, 1962) and secondly in a statement by Sir Ian Sinclair in the Committee of the Whole (Official Records, 2nd session, p. 228). The written comment was that “the element of an intention to create legal obligations has not been, but should be, included in the definition”. For example, Memorandum of Understanding between China and Belgium, Canada, ­Germany, Italy, Netherlands, UK and US on the Avoidance of Overlaps and Conflicts relating to Deep Seabed Areas of 22 February 1991, UK Treaty Series No. 52 (1991), Cm 1628. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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required. For example, an international tribunal faced with such a case may decide to look at the instrument and the arrangement it records in the round and to consider the substance as well as the form of the arrangement. The good international lawyer and negotiator should address in each case the question of the best form of instrument available to meet the wider political objectives and should not push too far the doctrine that the use of an MOU is sufficient in itself to signify a non-binding instrument. The substantive content of the instrument is an important factor. Moreover, an instrument which takes the form of a memorandum of understanding may still produce, by its terms, some legal effects and be subject to the law of treaties, for example in considering questions having to do with its true interpretation and application. D Treaty Formalities If the client Department does wish to have a treaty, the practice of the FCO remains that the texts of all treaties must be shown to the Legal Advisers in good time. In the UK Treaty Series of White Papers for 1995, there were over 110 treaties, and the number for 1996 was 108, an average of over two treaties per week throughout the year. This task of advising upon the drafting and conclusion of treaties of all kinds forms one of the core activities of the Legal Advisers. The overall practice is coordinated by the legal adviser to the Treaty Department, always with the availability of help from more senior colleagues. Advice is given not only on drafting (often in the form of re-drafting), but also on questions of form (would the subject matter be handled better in the form of a simple Exchange of Notes or more elaborately as an articled Agreement?). In addition, advice is given, in the case of articled agreements, on the Final Clauses to do with signature, ratification, entry into force, provisional application, duration, termination and the like. Another issue for consideration in the case of many global arrangements for inter-governmental cooperation is whether or not the treaty should be made applicable to the dozen or so remaining British overseas territories, how their authorities should be consulted, and how their p ­ articipation should be signified and effected in the event of a positive response. In this general role in the processes of concluding treaties, the Legal Advisers are often not directly involved in the actual conduct of the negotiations. They have, nonetheless, a vital role in advising on points of treaty law and practice, in drafting, and more generally in drawing attention to any legal problems which they may identify. These days, the issues may be ones of international law, of EC law (including questions of national and Community competence) or of UK law. The advice goes beyond the conclusion of treaties, extending also to the presentation of the text to Parliament in accordance with the ­so-called

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Ponsonby Rule,13 as well as to the appropriate means of implementing the treaty through legislative or administrative measures. Legal Advisers are often included in delegations headed by Ministers or senior diplomats for bilateral, regional or multilateral talks. There they play basically the same role as in their day-to-day advisory work in the FCO, but by being on the spot in negotiations they can make sure from the outset that the drafting does not start from the wrong basis and proceed in a wrong direction. In multilateral work, they often serve on drafting committees and can help to ensure that the different versions of the convention carry approximately the same meaning. E Treaty “Architecture” Turning now from the routine work of the international lawyer to the conduct of complex political negotiations, the role of the legal adviser may, in some instances, take on new dimensions. Here, the role may well extend from the usual questions of form and drafting to the more challenging tasks of conceiving and building a structure of instruments which becomes the final treaty or settlement if the talks are successful. This is the important role of the international lawyer as, in effect, the architect of a treaty. A good example is the package of measures adopted by the Edinburgh European Council in order to meet Danish concerns over the Maastricht Treaty. The task was to modify the effects without amending the text of that Treaty.14 Two further examples may serve to illustrate this architectural role of the international lawyer in the negotiation of treaties. 1 The Implementation Agreement 1994 The first example is set in a UN context. In the spring of 1993, there arose the challenge of how best to give effect to the then emerging conclusions of the UN Secretary-General’s Consultations15 concerning Part 11 of the UN Convention on the Law of the Sea (1982). It was clear to those participating in these Consultations that legal effect would have to be given to the eventual conclusions. For political reasons, this aim had to be achieved without convening a new Diplomatic Conference (which could have been called, for example, the “Fourth 13 14 15

Practice was examined during debates in the House of Lords on the Treaties (Parliamentary Approval) Bill in 1996: extracts are set out in G. Marston (ed.), “United Kingdom ­Materials in International Law”, in 67 byil (1996) 746ff. Treaty on European Union of 7 February 1992, UK Treaty Series No. 12 (1994), Cm 2485. For accounts of the UN Secretary-General’s consultations, see 42 ICLQ (1993) 654 and 43 ICLQ (1994) 886 by the present writer (reproduced as Chapters 16 and 17 above).

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UN Conference on the Law of the Sea”) and without formally a­ mending the ­Convention of 1982. Politically, the idea of calling a new Conference was unacceptable to the great majority of Governments, especially those which had recently established their consent to be bound by the Convention. Discussions of the question of form during the Secretary-General’s Consultations had clearly shown that textual amendment of Part 11 and its related Annexes was too controversial. Well over 50 States had completed their internal procedures and had ratified the Convention by the middle of 1993. For perfectly understandable reasons of domestic politics, they were reluctant to go back to their respective Legislatures in order to seek approval of an amending Protocol or the like, so soon after the Legislators had approved the Convention. At the same time, many participants were conscious of the fact that the clock would begin running towards the Convention’s entry into force as soon as the 60th ratification was deposited, an event which could arise at any time. In the Consultations, it was considered essential by all participants to avoid bringing about the situation whereby there were two sets of parties, each one bound by different texts. The International Seabed Authority could not work on that basis, for example. It was also thought to be inappropriate, particularly by States which had not ratified, to wait for the entry into force of the Convention and then to apply its Articles 312 to 314 concerning the processes of amendment. In that situation, the States parties would have had the decisive power in accordance with the terms of those Articles, to the exclusion, somewhat paradoxically, of the very States which, having withheld ratification on account of their opposition to Part 11, wished to see adjustments made to its terms. A review of the various possible precedents was made. A precedent for altering the effect of a Convention before its entry into force by means of a Protocol was found: this was the case of marpol 1973–1978.16 A precedent for modifying a Convention adopted by a Diplomatic Conference by means of a Protocol adopted by the UN General Assembly (as an annex to a Resolution) was found: this was the Protocol of 1967 to the Convention on the Status of Refugees of 1951.17 There existed plenty of precedents for the provisional application of a newly adopted text, including one which had modified a prior text. However, there was no precedent for modifying the effect of a UN Convention without in any way amending it textually. Yet it was important for many reasons to bring about conditions permitting universal participation in the los Convention, something which required in practice substantial alterations in

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Protocol of 17 February 1978 to the Convention on the Prevention of Pollution from Ships, of 2 November 1973. Convention: 189 unts 137 (1951). Protocol: 606 unts 267 (1967). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the arrangements for deep sea-bed mining set out in Part 11. The issue was how to go about achieving the objective. Work began on a package of texts designed to meet the various factors described above. These texts were (1) a draft General Assembly Resolution which would adopt and open for signature the text of (2) an Agreement on the ­Implementation of Part 11 of the los Convention (the term “implementation” carried a neutral yet positive connotation). The draft Agreement took the form of a short, articled agreement, comprising a preamble which explained the purpose of the Agreement and the substantive provisions, notably the articles which established the relationship between the Agreement and the Convention. Three annexes were appended to the draft Agreement and formed integral parts of it. These three were, first, the Agreed Conclusions of the ­Secretary-General’s Consultations; secondly, the Consequential Adjustments to Part 11; and thirdly provision for a Finance Committee in the Authority. The suggestions for the question of form, together with illustrative drafts, were shared with a very restricted group of like-minded colleagues in other capitals and the substantive content of the annexes was formulated. However, it quickly became apparent that several other participants in the Consultations held some very different ideas on the question of form. In particular, for the purposes of discussions during the round of Consultations held in April 1993, the UN Legal Counsel circulated a paper describing four d­ ifferent options for dealing with this question: namely, a Protocol to the Convention; an interpretative agreement consisting of understandings; an interpretative agreement for an initial, interim regime to be followed by a Conference to adopt the definitive regime; and, finally, an additional agreement for a transition from an initial phase to the definitive regime to be developed by the Seabed Authority.18 All four options were far removed from the package of texts described above. The Legal Counsel’s paper, appearing in an up-dated form in June 1993, produced a delicate situation in the Consultations and there arose the risk of losing momentum at the next round starting on 2 August 1993. On the first day of this round of Consultations, on 2 August, there ensued lengthy informal consultations with like-minded delegations on the basis of the draft Resolution and draft Agreement described above. A group of representatives from both developed and developing States decided to take an early initiative and table a new paper based on the drafts. In that way, an alternative approach to the issue of the form would be placed on the table in front of the

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For further details, see 43 ICLQ (1994) 886, as well as the Introduction to the text of the Convention and the Implementing Agreement of 1994 published by the UN Secretariat in 1997. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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participants. However, at this stage the “like-minded” delegates were still a long way apart on substance, although they were broadly agreed on the alternative approach and upon the structure of the drafts, that is to say, a Resolution of the General Assembly to which would be attached a short Agreement (plus detailed annexes) which would be adopted and opened for signature by States at UN Headquarters. In order to get around their substantive differences, the device was agreed that all concerned could insist on including points of substance on which they felt strongly and, equally, others opposed to those points could seek in later consultations to change parts of the drafts to be tabled by the group to which they belonged. After intensive discussions over several hours during the afternoon and evening of 2 August, texts of the Resolution and Agreement were completed for the purpose of tabling them at the first opportunity. At about 0200 hours on 3 August, Dr G. French (Australia)—who held the master texts in his laptop word-processor—found a standard picture of a boat in his graphics directory. He down loaded the picture for the cover page and printed out the final version of the drafts for presentation to the next meeting. That was how the so-called “Boat Paper” came into being. At 1030 that same morning, copies of the Boat Paper were handed out to a rather bemused meeting of the Consultations. However, after the initial shock on the part of the majority of those present, who had gained no prior inkling of what was in preparation, the positive features of the drafts quickly became apparent and in the course of two or three meetings the focus of discussion gradually shifted from the Secretariat’s paper to the Boat Paper. The three annexes were found in the discussions to be confusing, and they were quickly merged into a single annex, albeit one which had 9 sections. The substantive differences remained amongst the members of the Boat Group, as well as amongst the much wider participation, but the issue of form had been successfully resolved. After a good deal of further negotiation over almost 12 months, the General Assembly adopted Resolution 48/263 of 28 July 1994, thereby also adopting and opening for signature the Agreement on the Implementation of Part 11.19 The Agreement provides that its parties undertake to implement Part 11 in accordance with the Agreement. The two instruments are to be interpreted and applied together as a single instrument. In the event of inconsistency, the Agreement prevails. According to the Annex (an integral part of the Agreement), certain provisions in Part 11 “shall not apply” and some others “shall be interpreted to mean” what is laid down in the Annex. In the place of disapplied provisions, some entirely new arrangements were adopted. In other words, the effects of Part 11 and its related Annexes were altered, but without formally 19

UK White Paper Miscellaneous No. 44 (1994), Cm 2705. The Agreement entered into force in 1996 and the UK ratified it upon accession to the LOS Convention in 1997. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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amending the terms of the Convention. In an effort to minimise the risk of having two schools of parties, the Agreement was provisionally applied from 16 November 1994 by its signatories, unless they opted out by notifying the depositary. Consent to be bound could be expressed tacitly in certain cases. The entry into force of the Agreement was linked to participation in the Convention and the Agreement by certain developed States which had manifested in the past an interest in deep seabed mining and which would, in practice, also provide financial contributions large enough to fund the institutions created by the Convention (once some transitional financing arrangements had expired). This Agreement entered into force in mid-1996 and now has over 80 parties. It removed from Part 11 the ideological and economic problems seen by the UK and other industrialised countries. The Agreement opened up the possibility of universal participation in the Convention, to which there are now over 125 parties, with all that means for the rule of law and for the maintenance of peace and security over the seas and oceans, amounting to 70 per cent of the Earth’s surface. The Agreement may have surprised some treaty experts and indeed it is replete with innovation. But it has solved the problem left over in 1982, which was its purpose. It need never be taken as a precedent for treatymaking in the future. 2 The Berlin Agreement of 1971/1972 The second example of the architectural role of the international lawyer in the negotiation of treaties was the Berlin Agreement of 1971/1972. In this instance, only six Governments were involved: the Four Powers (France, Soviet Union, UK and US) which at that time retained rights and responsibilities for Berlin and matters affecting Germany as a whole; plus the Federal Republic of Germany (frg) and the German Democratic Republic. The latter was not recognised as a State by the three Western Allies, who, moreover, were not willing to accept the Berlin Wall and what it represented. They wished, on the other hand, to remove Berlin as a flashpoint in East/West relations and to improve links of all kinds between Berlin and the frg. The Conference was highly political. Among the many political experts on the German problem, the role of the international lawyer in the negotiations was to be equipped with a copy of ­virtually every text on the Berlin problem,20 plus the Vienna Convention on the Law of Treaties, in order to shape the emerging Agreement. In the event, the entire edifice known as the Berlin Settlement was built on the foundations of Article 31 of the Vienna Convention. Thus, there is a short 20

Plus a copy of the invaluable article entitled “The Relationship between Berlin and the F.R.G.” by C.D. Lush in 14 ICLQ (1965) 742. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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articled Agreement in which, after some general provisions, the Three Powers made a declaration to the Soviet Union. The latter made a declaration in reply, using the term “German Democratic Republic”. All this was stated, therefore, to be “without prejudice” to legal positions. There are then four Annexes, containing communications from the three Western Governments to the Soviet Government, and vice versa. Next, there are Notes from the three Ambassadors to the Soviet Ambassador, informing him of certain textual interpretations of the Agreement which they intended to convey to the Federal German Chancellor in exercise of their post-War powers. The Soviet Ambassador simply took note in his reply. This was Article 31(2)(b) of the Vienna Convention at work. Finally, the Four Power Agreement was to be buttressed by instruments drawn up between the competent German authorities, to be approved subsequently in a Final Quadripartite Protocol. The latter was the equivalent of the steel cross-members on a modern sky-scraper, holding the whole structure together. During the last round of negotiations, however, the whole legal edifice was severely threatened from forces external to the meeting room. An understanding appeared to have been reached in direct contacts between Capitals for the addition of two new elements, namely provisions about visas for West Berliners to enter the Soviet Union and about the opening of a Soviet Consulate General in West Berlin. The carefully designed structure was suddenly in danger of becoming top-heavy with the addition of two new floors! The solution was to build two single-storey extensions on the sides; they were called Agreed ­Minutes I and II. This Agreement was criticised by some commentators as having gone too far towards accepting the gdr de facto and praised by others as having helped to stabilise the situation and so reduce the risk of a war in Central Europe, with unimaginable consequences. Subsequent developments, including G ­ erman Unification, tend to support the second, more pragmatic view. The role of the international lawyer in this instance was akin to that of scribe and treaty ­architect for the political negotiators gathered together in “the building formerly occupied by the Allied Control Council in the American Sector of Berlin” where, as its Testimonium recites, the Quadripartite Agreement was signed on 3 September 1972.21 II

21

The Role of the International Lawyer in Applying Other Rules of

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International Law A The “Question Préalable”: To Negotiate or Not? Quite apart from the law of treaties, many other rules of international law form part of the legal negotiator’s armoury. Sometimes, when there exists a problem in relations between two Governments, the first question to be addressed on each side is whether or not to negotiate at all about the problem. The role of the international lawyer is to advise on the extent of the rights of the Government concerned and the strengths and weaknesses in its claims vis-à-vis the other side. If it is decided to negotiate, the next question is whether all aspects should be brought to the negotiating table or only some of them. An example of this aspect may be helpful. In the 1960s, negotiations were held with the ­Soviet Government about financial and property claims arising from the incorporation of the Baltic States into the Soviet Union in 1940, incorporations recognised here de facto but not de jure. Claimants in the UK called upon successive Governments to pay them compensation, to be met from assets frozen in this country under wartime powers, including gold. Negotiations began during the time of the Government headed by Mr Macmillan and ended with a meeting between the two Prime Ministers, Mr Wilson and Mr Kosygin, in 1967, at the end of which agreed terms were drawn up. The Downing Street Agreement was roundly criticised by Sir John Foster in the House of Commons on the ground that London should not have negotiated with Moscow on these claims, or at least not all of them.22 The sequel, after the dissolution of the Soviet Union and the establishment of diplomatic relations with Estonia, Latvia and Lithuania, served to underline the problems involved. The case illustrates vividly the need to think well ahead before opening talks. B The Negotiation of the Modus Vivendi A second question is whether it is legally possible to negotiate in the face of fundamental differences of positions or unbridgeable gaps. In some cases, negotiations may be futile. In others, a useful tool for the pragmatic international lawyer is the modus vivendi, that is to say, an agreement which is expressed to be “without prejudice” to legal positions, which leaves the fundamental differences unaffected, but which provides for some cooperation on specific aspects of the matters in dispute. The “half loaf” which is the modus vivendi may often be better than “no bread”, a worsening of relations resulting in ­confrontation. It may also be politically preferable to the submission of the fundamental

22

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d­ ispute to an international judicial body for decision on the merits. During the so-called “Cod War” with Iceland, an Interim Agreement for two years was drawn up in 1973 which was stated to be “without prejudice to legal position or rights of either government”. The case brought by the United Kingdom against ­Iceland continued in the International Court of Justice whilst the Agreement was in force. Questions about the Agreement were posed to the UK Agent by some of the Judges during the hearings on the merits in March 1974. Was the dispute not in suspense? Was the case not moot? In a valuable passage in the ­judgment, the majority of the members of the Court rejected that point of view, adding that the contrary view would discourage parties from negotiating such agreements in the future, efforts which were fully consistent with the duty to settle disputes by peaceful means under the principles of the UN Charter.23 In the Icelandic agreement, the “without prejudice” clause was cast in very simple terms. In other instances, the “without prejudice” article has taken on a more comprehensive and sophisticated form. The Antarctic Treaty of 1959 contains in its Article IV the seminal text, widely believed to have been worked on by Sir Gerald Fitzmaurice and Professor Andre Gros at a time when they were the Legal Advisers to the Foreign Office and the Quai d’Orsay, respectively. Twenty years later, this text inspired the negotiators of the Convention on the Conservation of Antarctic Marine Living Resources to apply the ideas to the maritime areas around the Antarctic.24 In turn, those two instruments inspired the negotiators in the processes of reconciliation between the UK and Argentina after the conflict of 1982, who produced what became known as the Madrid Formula.25 The latter has opened the way for some mutually beneficial cooperation over the conservation of fish stocks in the SW Atlantic and over the search for hydrocarbons, including in this regard an Area of Special Cooperation.26 Cooperation has been assisted by the creation of two Commissions, made up of delegations from the two sides, whose work is all subject to the ­Madrid Formula. All this has allowed trade and other relations to prosper: it has been good both for the conservation of the fish and for the fishermen, as well as for the two economies. It should prove to be good also for the oil industry on both sides, not forgetting the environment.

23 [1974] ICJ Rep. 3, at p. 20. 24 UK Treaty Series No. 21 (1982), Cmnd. 8714. 25 29 ilm (1990) 1291; G. Marston (ed.), “UK Materials in International Law”, 61 byil 543. 26 35 ilm (1996) 301; G. Marston (ed.), “UK Materials in International Law”, 66 byil 667.

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C Negotiation and Recourse to Means of Third Party Settlement The international lawyer also has an important role in advising his or her Government that the time has come to stop negotiating and to seek a solution through arbitration or judicial settlement. This is particularly the case with bilateral talks, of course. Maritime boundary delimitation is a case in point. It is not, of course, part of the international lawyer’s role to prolong talks unnecessarily when alternative means of settling a dispute remain open. There may be a danger in forming a “luncheon club” with the other side, meeting alternately in the two capitals, and going around the problem in circles, without reaching agreement. Recourse to litigation involves forming a view upon the jurisdictional possibilities and upon the likely outcome in court. How much is the client’s case really worth? What would be the most likely result? Advising on maritime boundaries is notoriously difficult these days, since the outcome in almost every case decided has been a surprise to participants and outsiders alike. If there is agreement to proceed to arbitration, then the international lawyer naturally has a leading role in the negotiation of the compromis. At the same time, a negotiated settlement has many advantages. The risk of litigation is avoided. Control is kept over the result, as well as its timing and public presentation. The 1988 Agreement on the Delimitation of the Continental Shelf between the UK and the Irish Republic took 48 rounds of talks in all. It settled a difference which had started in 1964 and gone very close to submission to arbitration in 1982. It was a difficult negotiation at times, but ultimately successful. The Agreement was endorsed by Parliament (twice)27 and the Dail. The previous “blight” on prospecting disappeared. D Negotiation and the Reform of International Law The Third Conference on the Law of the Sea was one of great interest to very many international lawyers. The work was that of law reform, rather than codification. The role of the legal advisers who attended the Conference was to assist the successive leaders of the British delegation and to pursue the objectives agreed by Ministers and reflected in the delegation’s instructions. In practice, in my case it meant explaining British proposals on innocent passage, on the right of transit passage through straits used for international navigation and on the regime of the High Seas.28 At times, there was a feeling that some of Sir Gerald Fitzmaurice’s achievements at Geneva were being revised or altered—and, somewhat surprisingly, by British proposals. These 27 28

The Petroleum Royalties (Relief) and Continental Shelf Act 1989 and the Continental Shelf Act 1989. A/CONF.62/C.2/L. 3 and L. 54.

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­ roposals, however, had a special element. As well as putting forward new p ideas and taking further provisions outlined in the Conventions of 1958,29 they also re-­proposed the greater parts of the Conventions on the Territorial Sea and on the High Seas. Many of the additions and changes were suggested in the light of experience gained after 1958. For example, one addition responded to the failure of the Strasbourg Convention of 1965 on the Suppression of Unauthorised Marine Broadcasting to prevent interference caused by “pirate broadcasting” in the North Sea with the radio spectrum assigned, through the International Telecommunications Union, to public services, including ambulances and the like. Because these proposals for, as it were, the amendment and consolidation of the Conventions of 1958 appeared at the Caracas session, they were included in the Main Trends document and eventually they found their way into the Convention of 1982.30 The historical continuity of the law of the sea was preserved, subject of course to making some far-reaching reforms. After the Caracas session, the role of this international lawyer in the negotiation of what became the UK Convention on the Law of the Sea entailed sitting week after week in the informal working group of the Second Committee going through the Negotiating Texts article by article, sentence by sentence. It was called by some of the participants “the University of the Sea”. The participants learned where the problems were in the different parts of the world on maritime issues. Caracas and the later sessions were exciting times for many international lawyers. E The Role of the International Lawyer as the Negotiator of Treaties After a long apprenticeship as a member of many delegations, an international lawyer may graduate to the position of the leader of a delegation. Here the international lawyer is not only the lawyer charged with giving legal and treaty advice to the delegation, he or she is also the negotiator. This role of spokesman and negotiator is much more satisfying than simply being a member of a team and sometimes listening to one’s leader putting the point badly or even saying the wrong thing. This probably still happens at summits, as well as at lower levels of diplomacy. The official negotiator carries more responsibility, especially if a deal struck ad referendum to Ministers is rejected as a bad result for your Government. But there is absolutely no reason to suppose that an ­international lawyer is not the best equipped negotiator on topics which have 29 30

For example, Article 94 on the duties of flag States. Many provisions in Parts ii, iii and v of the Convention, including Article 109 on unauthorised broadcasting, can be traced back to the proposals in A/CONF. 62/C.2/L. 3 and ibid. L. 54.

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a high legal element in them. In his classic monograph Diplomacy, Sir Harold Nicholson wrote: The worst kind of diplomatists are missionaries, fanatics and lawyers; the best kind are the reasonable and humane sceptics. Thus it is not religion which has been the main formative influence in diplomatic theory; it is common sense.31 His criticism of lawyers has been cited all too often. His work on diplomatic technique is full of correct assessments and shrewd insights. For example, in an essay published in 1961 he forecast the eventual collapse of communism as a result of the work of repressed heretics within the Soviet orbit. Was he correct over the worth of lawyers as diplomats? It is perfectly possible to fall into the trap of applying legal techniques (weight of evidence; burden of proof; punish the guilty) beyond their true courtroom context. But that is not to say that lawyer-diplomats are guilty of making diplomatic gaffes all the time and the statement is, of course, an over-simplification. There may also be the nonfanatical lawyer who can apply a bit of common sense, the reasonable and ­humane sceptic, alongside his of her non-lawyer colleagues. There are active today very many prominent international lawyers who have vast experience and expertise in the field of diplomacy including the negotiation of treaties. From the writer’s experience of negotiations, it suffices to mention the names of Ambassadors Javier Perez de Cuellar,32 Philippe Kirsch,33 Tommy Koh34 and Satya Nandan.35 All are lawyers who have been much involved with the

31 Nicholson, Diplomacy, Third Edition (1969), Chapter ii. 32 See his Pilgrimage for Peace: A Secretary-General’s Memoir (1997), especially Chapter 14 describing his efforts to resolve the conflict over the Falkland Islands. He now heads the Commission on Cultural Development (UNESCO). 33 Ambassador Kirsch has served as President of the Rome Conferences for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988) and for the Establishment of an International Criminal Court (1998). He is now the President of the International Criminal Court. 34 See his collection of writings and speeches The Quest for World Order: Perspectives of a Pragmatic Idealist (1998). Ambassador Koh has served as the President of the latter part of the Third UN Conference on the Law of the Sea, as well as of the UN Conference on the Environment and Development (“the Earth Summit”). He is now Ambassador at Large of Singapore. 35 Ambassador Nandan served as the Rapporteur of the Second Committee of the Third Law of the Sea Conference, as the Chairman of the “Boat Group” and as the President of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (1993–5). He

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­negotiation of treaties, particularly in the context of the United Nations. Experience shows that many qualities are required if negotiations for a new treaty or for the settlement of a dispute are to be fruitful. They include: – patience; – courtesy; – a thorough study of the issue or dispute; – an accurate assessment of what your claim is worth in, say, the ICJ or another tribunal; – the need to listen carefully to what is said across the table, and to evaluate what is not said or not reiterated during the second or third round; – the need to re-examine your starting position in the light of the other side’s argument and to stand firm or to look for a compromise in the light of that re-examination; – the need sometimes to use imagination in a search for solutions, including putting together packages; – a willingness to draw on past precedents, but an equal readiness to create a new precedent; and, above all, perhaps – the need to keep a sense of proportion and to use common sense, as counselled by Sir Harold Nicholson. Working alongside Ministers and senior diplomats was the best training in negotiating technique. Working under Foreign Office Legal Advisers from Sir Gerald Fitzmaurice onwards provided much expert instruction on the practice of international law. Negotiating treaties was one of the most satisfying tasks during an interesting career as a legal adviser in the Foreign and Commonwealth Office.

is now the Secretary-General of the International Seabed Authority.

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British Contributions to International Law, 1915–2015 Volume 2

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British Contributions to International Law, 1915–2015 An Anthology Set volume 2

Edited by

Jill Barrett Jean-Pierre Gauci

leiden | boston

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Library of Congress Cataloging-in-Publication Data Names: Barrett, Jill M., 1958- editor. | Gauci, Jean-Pierre, editor. Title: British contributions to international law, 1915-2015 : an anthology set / edited by Jill Barrett, Jean-Pierre Gauci. Description: Leiden ; Boston : Brill Nijhoff, 2021. Identifiers: LCCN 2019048117 (print) | LCCN 2019048118 (ebook) | ISBN 9789004284180 (v. 1 ; hardback) | ISBN 9789004379527 (v. 2 ; hardback) | ISBN 9789004379541 (v. 3 ; hardback) | ISBN 9789004379565 (v. 4 ; hardback) | ISBN 9789004386235 (hardback) | ISBN 9789004386242 (ebook edition) Subjects: LCSH: International law--Great Britain. | International law--British influences. | International law--History--20th century. Classification: LCC KZ1242 .B75 2020 (print) | LCC KZ1242 (ebook) | DDC 341--dc23 LC record available at https://lccn.loc.gov/2019048117 LC ebook record available at https://lccn.loc.gov/2019048118

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISBN 978-90-04-28418-0 (hardback, vol. 1) ISBN 978-90-04-37952-7 (hardback, vol. 2) ISBN 978-90-04-37954-1 (hardback, vol. 3) ISBN 978-90-04-37956-5 (hardback, vol. 4) ISBN 978-90-04-38623-5 (hardback, set) ISBN 978-90-04-38624-2 (e-book) Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

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Contents volume 1 Foreword  XIX British Institute of International and Comparative Law  XXI Editors’ Biographies  XXIII General Introduction  XXV

PART 1 Nature of International Law 1

Lassa Oppenheim, International Law: A Treatise, 1920  3 Martin Clark

2

James Brierly, The Law of Nations: An Introduction to the International Law of Peace, 1928  27 Andrew Clapham

3

Hersch Lauterpacht, The Function of Law in the International Community, 1933  51 Nancy Simons

4

Georg Schwarzenberger, The Rule of Law and the Disintegration of the International Society, 1939  67 Andraž Zidar

5

Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, 1957  93 Therese O’Donnell

6

Herbert L.A. Hart, The Concept of Law, 1961  107 Colin Warbrick

7

Norman S. Marsh, The Rule of Law as a Supra-National Concept, 1961  131 Marine Corhay

8

Malcolm Shaw, International Law, 1977–2014  165 Richard Mackenzie-Gray Scott Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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9

Arthur Watts, The International Rule of Law, 1993  207 Robert McCorquodale

10

Rosalyn Higgins, Problems and Process: International Law and How We Use It, 1995  241 Philippa Webb

11

Rosalyn Higgins, Time and the Law: International Perspectives on an Old Problem, 1997  261 Ben Juratowitch

12

Philip Allott, Eunomia: New Order for a New World, 2001  285 Ralph Wilde

13

Dino Kritsiotis, Imagining the International Community, 2002  311 Peter Quayle

14

Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules, 2005  353 Elizabeth Wilmshurst

15

Vaughan Lowe, International Law, 2007  375 Jill Barrett

PART 2 Sources of International Law 16

Arnold D. McNair, The Functions and Differing Legal Character of Treaties, 1930  413 Jill Barrett

17

Judicial Committee of the Privy Council, Judgment, In re Piracy Jure Gentium, 1934  433 Claire Smith

18

Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1953  447 Laura Rees-Evans

19

Gerald Fitzmaurice, Some Problems Regarding the Formal Sources of International Law, 1958  475 Michael Wood Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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20 Humphrey Waldock, First Report on The Law of Treaties, 1962  497 Antonios Tzanakopoulos 21

Judge Gerald Fitzmaurice, Separate Opinion, Temple of Preah Vihear, 1962  507 Brigid McCarthy

22

Clive Parry, The Sources and Evidences of International Law, 1965  523 Maurice Mendelson

23

Clive Parry, The Consolidated Treaty Series (1648–1918), 1969  551 Michael Wood

24 Michael Akehurst, Custom as a Source of International Law, 1976  559 Fanni Andristyak 25

Robert Y. Jennings, What is International Law and How Do We Tell When We See It?, 1983  629 Zoe Hough

26 Ian Sinclair, The Vienna Convention on the Law of Treaties, 1984  657 Iain Macleod 27

Judge Robert Y. Jennings, Dissenting Opinion, Military and Paramilitary Activities in and against Nicaragua, 1986  681 Mubarak Waseem

28 Anthony Aust, The Theory and Practice of Informal International Instruments, 1986   703 Jill Barrett 29 Christine Chinkin, The Challenge of Soft Law: Development and Change in International Law, 1989  733 Brigid McCarthy 30

Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 1994  753 Richard Mackenzie-Gray Scott Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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31

Maurice Mendelson, The Formation of Customary International Law, 1998  771 Eirik Bjorge

32

Alan Boyle, Some Reflections on the Relationship of Treaties and Soft Law, 1999  819 Paata Simsive

33

Robert Y. Jennings, Reflections on the Subsidiary Means for the Determination of Rules of Law, 2003  837 Maurice Mendelson

34 Christine Bell, Peace Agreements: Their Nature and Legal Status, 2006   859 Hae Jin Choo 35 David H. Anderson, The Role of the International Lawyer in the Negotiation of Treaties, 2007  921 Arianne Griffith

volume 2 Part 2 Sources of International Law (cont.) 36 Michael Wood, First Report on Formation and Evidence of Customary International Law, 2013  941 Jill Barrett 37

Hugh Thirlway, The Sources of International Law, 2014  967 Charles Shwenn

38 Richard K. Gardiner, Treaty Interpretation, 2015  1001 Jill Barrett

PART 3 Subjects of International Law 39 Arnold D. McNair, Equality in International Law, 1927  1037 Gerry Simpson Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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40 Ian Brownlie, Principles of Public International Law, 1973  1059 James Crawford 41

Her Majesty’s Government, Statements on the Recognition of Governments, 1980 and 2011  1099 Vaughan Lowe

42 Colin Warbrick, Recognition of States, 1992  1105 Nikolaos Pavlopoulos 43 James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, 2002  1121 Andraž Zidar 44 Robert McCorquodale, An Inclusive Legal System, 2004  1153 Philip Allott 45 James Crawford, The Creation of States in International Law, 2007  1191 Robert McCorquodale

PART 4 Sovereignty, Territory, Jurisdiction and Space 46 Robert Y. Jennings, The Acquisition of Territory in International Law, 1963  1227 Michael Wood 47 Vaughan Lowe, The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution, 1985  1247 Patricia Vella de Fremeux 48 Arthur Watts, International Law and the Antarctic Treaty System, 1992  1273 Jill Barrett 49 Bin Cheng, Studies in International Space Law, 1997  1299 Sa’id Mosteshar 50

Ralph Wilde, International Territorial Administration, 2008  1331 Paata Simsive Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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PART 5 State Immunities 51

Ernst Satow, A Guide to Diplomatic Practice, 1917  1367 Lady-Gené Waszkewitz

52

Judicial Committee of the Privy Council, Judgment, Chung Chi Cheung v the King, 1939  1377 Jedsarit Sahussarungsi

53

Lord Alfred T. Denning, Judgment, Trendtex Trading Corporation v Central Bank of Nigeria, 1977  1389 Hazel Fox

54 State Immunity Act 1978 (UK) and Hazel Fox, The Law of State Immunity, 2002  1411 Philippa Webb 55

Lord Richard Wilberforce, Judgment, Buttes Gas and Oil Company v Hammer, 1982  1453 Hazel Fox

56 House of Lords, Judgment, I Congreso del Partido, 1982  1483 Hazel Fox 57

Eileen Denza, Diplomatic Law, 1998  1527 Kate Jones

58 House of Lords, Judgment, R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (Amnesty International Intervening) (No 3), 1999  1539 Philippa Webb

PART 6 International Organisations 59 Walter Phillimore, The Phillimore Plan, 20 March 1918 (Draft Convention), 1918  1547 Gerry Simpson

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60 Lassa Oppenheim and Thomas Lawrence, Two Lectures on The League of Nations, 1919  1553 Martin Clark 61

Her Majesty’s Government, The Atlantic Charter (First Draft), 1941  1587 Andraž Zidar

62 Wilfred Jenks, Some Constitutional Problems of International Organizations, 1945  1591 Andraž Zidar 63 Winston S. Churchill, Speech on the Council of Europe, 1949  1623 Alistair McGlone 64 Elihu Lauterpacht, The Legal Effect of Illegal Acts of International Organisations, 1965  1629 Peter Quayle 65 Dapo Akande, The International Court of Justice and the Security Council: Is there Room for Judicial Control of the Decisions of the Political Organs of the United Nations?, 1997  1667 Sotirios-Ioannis Lekkas 66 Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers, 2005  1707 Peter Quayle 67 Thérèse O’Donnell, Naming and Shaming: The Sorry Tale of Security Council Resolution 1530 (2004), 2006  1715 Sotirios-Ioannis Lekkas

PART 7 International Dispute Settlement 68 Walter Phillimore, Scheme for the Permanent Court of International Justice, 1920  1749 Martin Clark 69 Gillian M. White, The Use of Experts by International Tribunals, 1965  1759 David H. Anderson Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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70 John G. Merrills, International Dispute Settlement, 1984  1773 Mubarak Waseem 71

Judge Elihu Lauterpacht, The Position of the Ad Hoc Judge, 1993  1795 Rosalyn Higgins

72

Anthony Cassese, Interview with Sir Robert Jennings, 1994  1797 Rosalyn Higgins

73

Judge Rosalyn Higgins, Separate Opinion, Oil Platforms Case, 1996  1851 Antonios Tzanakopoulos

74 Rosalyn Higgins, Ethics and International Law, 2009  1869 Arman Sarvarian 75

Philippa Webb, International Judicial Integration and Fragmentation, 2013  1887 Fanni Andristyak

volume 3 PART 8 Human Rights 76 Hartley Shawcross, Opening Speech at Nuremburg, 1945  1921 Elizabeth Wilmshurst 77

Judge Arnold D. McNair, Speech at the Formal Inauguration of the European Court of Human Rights, 1959  1977 Merris Amos

78

Peter Benenson, The Forgotten Prisoners, 1961  1981 Jean-Pierre Gauci

79

David J. Harris, The European Social Charter, 1964  1991 Kristin Hausler

80 James E.S. Fawcett, Human Rights: Our Country in Europe, 1983  2005 Merris Amos Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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81

Guy S. Goodwin-Gill, The Refugee in International Law, 1983  2019 Violeta Moreno-Lax

82 Nigel Rodley, The Treatment of Prisoners under International Law, 1987  2043 Emilie Fitzsimons 83

Patrick Thornberry, International Law and the Rights of Minorities, 1991  2067 Martha Llonch

84 United Nations Human Rights Committee (Rosalyn Higgins), General Comment 24, 1994  2083 Robert McCorquodale 85 Robert McCorquodale, Self-determination: A Human Rights Approach, 1994  2095 Fanni Andristyak 86 Christine Chinkin, Reservations and Objections to the Convention on the Elimination of All Forms of Discrimination against Women, 1996  2129 Richard Mackenzie-Gray Scott 87 Malcolm D. Evans, Religion, Law and Human Rights: Locating the Debate, 2000  2151 Martha Llonch 88 Susan Marks, Exploitation as an International Legal Concept, 2004  2177 Martin Clark 89 Lord Thomas Bingham, Judgment, Regina v Immigration Officer at Prague Airport and Another, Ex Parte European Roma Rights Centre and Others, 2004  2205 Domenico Vallario 90 Brenda Hale, Beanstalk or Living Instrument? How Tall Can the European Convention on Human Rights Grow?, 2011  2237 Jean-Pierre Gauci

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PART 9 Use of Force 91

Humphrey Waldock, The Regulation of the Use of Force by Individual States in International Law, 1952  2257 Michael Wood

92 Derek K. Bowett, Self-Defence in International Law, 1958  2283 Nancy Simons 93

Margaret Thatcher, Statements to the House of Commons on ‘Falkland Islands’, 1982  2313 Jill Barrett

94 Her Majesty’s Government, Statements on Humanitarian Intervention, 1991, 1998, 1999 and 2013  2329 Shehzad Charania 95 Christopher Greenwood, The Legality of Using Force Against Iraq, 2002  2343 Antonios Tzanakopoulos 96 Tony Blair, Doctrine of the International Community and Sedgefield Speech (and Responses by Teachers of International Law), 1999, 2003–4   2355 Therese O’Donnell 97 Ministry of Defence, The Manual of the Law of Armed Conflict, 2004  2391 Charles Garraway 98 Nigel D. White, Self-Defence, Security Council Authority and Iraq, 2005  2401 Daniel Wand 99 Elizabeth Wilmshurst, The Chatham House Principles of International Law on the Use of Force in Self-Defence, 2005  2433 Charles Garraway 100 Christopher Greenwood, Essays on War in International Law, 2006  2447 Charles Garraway Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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101 Ralph Zacklin, The United Nations Secretariat and the Use of Force in a Unipolar World: Power v. Principle, 2010  2475 Ines Pierre de la Briere 102 Daniel Bethlehem, Self Defence against Non-State Actors (and Response by E Wilmshurst and M Wood), 2012   2489 Daniel Wand 103 Christine Gray, The Use of Force and the International Legal Order, 2014  2519 Michael Wood

PART 10 The Law of the Sea 104 Cecil J.B. Hurst, Whose is the Bed of the Sea?, 1923–1924  2563 David H. Anderson 105 Gerald Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, 1959  2573 David H. Anderson 106 Joyce A.C. Gutteridge, The 1958 Geneva Convention on the Continental Shelf, 1959  2625 David H. Anderson 107 Daniel P. O’ Connell, The International Law of the Sea, 1982  2651 David H. Anderson 108 Geoffrey Marston, The Incorporation of Continental Shelf Rights into United Kingdom Law, 1996  2685 David H. Anderson 109 Robin R. Churchill, The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention, 2005  2731 David H. Anderson 110 David H. Anderson, Modern Law of the Sea Selected Essays, 2008  2787 Jill Barrett

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volume 4 PART 11 International Environmental and Energy Law 111

Patricia W. Birnie, International Legal Issues in the Management and Protection of the Whale: A Review of Four Decades of Experience, 1989  2841 Jill Barrett

112 Patrick Széll, The Development of Multilateral Mechanisms for Monitoring Compliance, 1995  2879 Alistair McGlone 113 Farhana Yamin and Joanna Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures, 2004  2897 Jill Barrett 114 Catherine Redgwell, International Regulation of Energy Activities, 2007  2927 Danae Azaria 115 Patricia W. Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment, 2009  2973 Danae Azaria

PART 12 International Law and the United Kingdom 116 Her Majesty’s Government and the UK Parliament, The Ponsonby Rule: From Convention to Statute, 1924 to 2010  3027 Jill Barrett 117 William Eric Beckett, Report by the Agent on the Corfu Case, 1949  3043 Yasuo Kita 118 International Court of Justice, Judgment, Corfu Channel Case, 1949  3059 Naomi Burke Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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119 Kenneth Simmonds, Some English Precursors of Hugo Grotius, 1957  3095 David H. Anderson 120 James E. Fawcett, The British Commonwealth in International Law, 1963  3109 Brigid McCarthy 121 Kenneth Roberts-Wray, The Commonwealth and Colonial Law, 1966  3131 Zoe Hough 122 Francis A. Mann, Foreign Affairs in English Courts, 1986  3149 Paola Iacovino 123 Roger O’Keefe, Customary International Crimes in English Courts, 2002  3173 Lady-Gené Waszkewitz 124 Shaheed Fatima, Using International Law in Domestic Courts, 2003  3225 Jedsarit Sahussarungsi 125 Michael Wood, The United Kingdom’s Acceptance of the Compulsory Jurisdiction of the International Court of Justice, 2006  3261 Rosalyn Higgins 126 Thomas Bingham, Widening Horizons: The Influence of Comparative Law and International Law on Domestic Law, 2010  3285 Robert Volterra 127 Lord Jonathan Mance, Judgment, HM Treasury v Ahmed, 2010  3305 Zoe Hough 128 Jill Barrett, The United Kingdom and Parliamentary Scrutiny of Treaties, 2011  3337 Kasey McCall-Smith 129 Ian Hendry and Susan Dickson, British Overseas Territories Law, 2011  3367 Jill Barrett Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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130 Franklin Berman, Treaty-Making within the British Commonwealth, 2015  3391 Zoe Hough

PART 13 Teaching and Theory in International Law 131 Henry Goudy et al, From Grotius Society to BIICL and ICLQ, 1915, 1952, 1956 and 2012  3423 Robert McCorquodale 132 David H.N. Johnson, The English Tradition in International Law, 1962  3477 Ines Pierre de la Briere 133 Colin Warbrick and Anthony Carty, Essays on Theory and International Law, 1991  3509 Sahib Singh 134 Martti Koskenniemi, Lauterpacht: The Victorian Tradition in International Law, 1997  3553 Martin Clark 135 Gerry Simpson, On the Magic Mountain: Teaching Public International Law, 1999  3613 Jean-Pierre Gauci

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PART 2 Sources of International Law (cont.)

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Chapter 36

Michael Wood, First Report on Formation and Evidence of Customary International Law, 2013 Comment by Jill Barrett, Visiting Reader in the School of Law, Queen Mary University of London Sir Michael Wood KCMG is a member of the UN International Law Commission (ILC), first elected in 2008. In 2012, the ILC decided to include the topic “Formation and evidence of customary international law” in its programme of work, and appointed him as Special Rapporteur for the topic. His contributions can be seen in his Note of 2012a and five reports of 2013, 2014, 2015, 2016 and 2018,b a set of papers that is worth reading in its entirety. Here we have chosen part of the First Report which sets out his initial views on the scope of the topic and its output, as well as his assessment of the literature and the difficult issues. It has a number of impressive features, especially in light of the ILC’s Text of the draft conclusions on identification of customary international law adopted by the Commission and the accompanying commentaries, 2016.c Sir Michael set out his aim as: “to offer some guidance to those called upon to apply rules of customary international law on how to identify such rules in concrete cases. This includes, but is not limited to, judges in domestic courts, and judges and arbitrators in specialized courts and tribunals.”d Accordingly, he a ‘Formation and evidence of customary international law’, Note by Michael Wood, Special Rapporteur’, UNGA International Law Commission, 64th session (2012) UN Doc A/CN.4/653. b ‘First Report on formation and evidence of customary international law by Michael Wood, Special Rapporteur’, UNGA International Law Commission, 65th Session (2013) UN Doc A/CN.4/663; Second report of the Special Rapporteur, Michael Wood, UNGA International Law Commission, 66th session (2014) UN Doc A/CN.4/672; Third report of the Special Rapporteur, Michael Wood, UNGA International Law Commission, 67th Session (2015) UN Doc A/CN.4/682; Fourth report of the Special Rapporteur, Michael Wood, UNGA International Law Commission, 68th Session (2016) UN Doc A/CN.4/695 + Add.1; Fifth report of the Special Rapporteur, Michael Wood, UNGA International Law Commission, 70th Session (2018) UN Doc A/CN.4/717. These reports are available on the ILC website at: http://legal .un.org/ilc/guide/1_13.shtml. c Report of the International Law Commission on the work of its 68th Session, 2 May–10 June and 4 July–12 August 2016, (UNGA International Law Commission Report (2016)) UN Doc A/71/10, CH. V, paras. 50–63. d This report, para 14, page 949 in this Anthology. This aim was endorsed by the ILC in the General Commentary, para (1), ILC Report, ibid, para 63.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_037

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proposed that the ILC’s output be a set of “conclusions” with commentaries.e He proposed 16 draft conclusions; the ILC adopted 16 draft conclusions, with commentaries, whose content is remarkably similar to Sir Michael’s original proposals. He indicated that he hoped the final product (including commentaries) would not exceed around 30 pages;f the ILC’s draft is 38 pages. In 2012 he proposed a timetable for delivery of his four reports and adoption of conclusions by the ILC by 2016, described by other members as “ambitious”; all of this was achieved on schedule – a remarkable achievement in itself, especially considering the duration of the ILC’s work on other topics. The contents of the Special Rapporteur’s reports, and the ILC text, reflect Sir Michael’s characteristically orthodox approach to international law. Its twoelement approach to identifying customary international law keeps the focus on the “is” rather than the “ought to be” or “might be” in the future;g it is rooted firmly in the views and practice of States and judicial decisions, summarising academic debates then deftly laying them to one side.h It firmly dismisses the notion that the “practice” element of customary international law could include practice of entities other than States and international organisations.i It reinforces a clear distinction between “law” and “non-law”,j and the unity of the international law system.k This outcome is testament to Sir Michael’s exceptional gifts as a legal drafter, diplomat and negotiator, as well as his intellectual rigour in presenting legal analysis, and his seasoned judgement in designing a topic with a practical aim that addresses a real need. It is, at the time of writing, too soon to know what impact the ILC’s work will have. The draft conclusions await States’ responses, which will inform the ILC’s final output. The proof of its success will lie, ultimately, in whether it is found useful by those whose task is to apply customary international law. I predict, confidently, that its aims will be achieved, and that the ILC’s approach to this topic will be seen as an excellent model for its future work. In any event, the Special Rapporteur’s reports will endure as a valuable resource on this subject in their own right. e This report, para 18. f For example, in his seminar presentation on “The Current Work of the UN International Law Commission” on 14 October 2015, at University College London. g This report, para 16. h ‘First Report, (n 2), para 101, ends’: “Scholars continue to debate customary international law. Such debates will doubtless continue”. i This report, para 98, and Second report (n 2), para 45. j This report, para 28 and footnote 55. k This report, paras 19–21.

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M. Wood, First Report on Formation and Evidence of Customary International Law, UNGA ­International Law Commission, 65th Session (17 May 2013) UN Doc A/CN.4/663. Excerpt: Paragraphs 1–45.

First Report on Formation and Evidence of Customary International Law Sir Michael Wood, Special Rapporteur

Part One: Introductory

I Introduction 1. During its sixty-fourth session, in 2012, the Commission decided to place the topic “Formation and evidence of customary international law” on its current programme of work, and appointed Michael Wood as Special Rapporteur.1 The Special Rapporteur prepared a note setting out his preliminary thoughts on the topic, particularly on the scope and tentative programme of work,2 which was the basis for an initial debate later in the session.3 2. In the course of the Sixth Committee debate later that year, delegations emphasized the importance and utility of the topic, as well as the significant role played by customary international law at the international and national levels. The inherent difficulties of the topic were also stressed, in particular the complexity of assessing the existence of a rule of customary international law. Delegations further underlined the need to preserve the flexibility of the customary process. Other points included the importance of exploring the meaning and manifestations of State practice and opinio juris as constitutive elements of customary international law; the relevance of the relationship between treaties and customary international law; the need to examine the role of international organizations with regard to the formation and evidence of rules of customary international law; and the desirability of an outcome that would be practical.4 1 A/CN.4/SR.3132, p. 16. 2 A/CN.4/653. 3 A/CN.4/SR.3148, 3150, 3151, 3152 (24, 26, 27 and 30 July 2012); A/67/10, pp. 108–115. 4 A/C.6/67/SR.18–25; Report of the International Law Commission on the work of its s­ ixty-third and sixty-fourth sessions: Topical summary of the discussion held in the Sixth Committee of the General Assembly during its sixty-seventh session, prepared by the Secretariat (A.CN.4/657), paras. 47–52.

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3. In its resolution 67/92, the General Assembly noted with appreciation the Commission’s decision to include the topic in its programme of work, and drew the attention of Governments to the importance of having their views on the specific issues identified in Chapter III of the report of the International Law Commission on the work of its sixty-fourth session.5 4. At its sixty-fourth session the Commission requested States to “provide information on their practice relating to the formation of customary international law and the types of evidence suitable for establishing such law in a given situation, as set out in: (a) Official statements before legislatures, courts and international organizations; and (b) Decisions of national, regional and subregional courts”.6 The Special Rapporteur suggests that the Commission now request replies by 31 January 2014. 5. The Commission also requested the Secretariat to prepare a memorandum identifying elements of the previous work of the Commission that could be particularly relevant to the topic.7 As described in Section II below, the Secretariat’s memorandum gives detailed information on the Commission’s past practice that is relevant to the topic,8 and will be a valuable resource for the Commission’s further work. 6. The present report is introductory in nature. Its aim is to provide a basis for future work and discussions on the topic. As such, after describing the previous relevant work of the Commission, in part two it discusses the scope of the topic (including whether jus cogens should be covered), and possible outcomes. Part three then considers some issues concerning customary international law as a source of law, including Article 38.1 (b) of the Statute of the International Court of Justice and terminology. Part four describes the principal categories of materials on the processes of formation and evidence of customary international law (practice of States and other intergovernmental actors; case law of the International Court of Justice and other courts and tribunals; the work of other bodies; and writings). In doing so, it looks at various approaches that have been suggested for, and the experience accumulated with regard to, the formation and evidence of rules of customary international law. 7. The work of the International Law Association deserves special mention at the outset, and is described in greater detail in Section X below. The ­Association’s London Statement of Principles of 2000 was the culmination of a major exercise, lasting 15 years and concluded some 13 years ago, to examine the 5 General Assembly resolution 67/92 of 14 December 2012, paras. 4 and 7. 6 A/67/10, p. 8. 7 A/67/10, p. 108. 8 A/CN.4/659.

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process of the formation of customary international law.9 The ­Commission’s work will differ from that of the Association in important respects, not least because of the Commission’s unique position as a subsidiary organ of the General Assembly and the corresponding relationship that the Commission has with States.10 II Previous Work of the Commission 8. It is useful to recall the related work by the Commission, including its early work mandated by article 24 of its Statute, and its work on the law of treaties and the topic “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”. Much of the Commission’s work has been concerned with the identification of customary international law, though it has sometimes been cautious about clearly distinguishing b­ etween the codification of international law and its progressive development.11 9. In accordance with article 24 of its Statute,12 the Commission considered the topic “Ways and means of making the evidence of customary international law more readily available” at its first and second sessions in 1949 and 1950. Based on a memorandum by the Secretariat13 and a working paper by Manley O. Hudson,14 the Commission made a number of recommendations, ­including 9

10

11 12

13 14

London Statement of Principles Applicable to the Formation of General Customary International Law, with commentary: Resolution 16/2000 (Formation of General C ­ ustomary International Law), adopted at the sixty-ninth Conference of the International Law ­Association, in ­London, on 29 July 2000. G.M. Danilenko, Law-Making in the International Community (Martinus Nijhoff Publishers, 1993), 128–9 (“…an authoritative clarification of the criteria of custom would be best accomplished through a carefully drafted restatement, prepared, for example, by the United Nations International Law Commission”). D. McRae, “The Interrelationship of Codification and Progressive Development in the Work of the International Law Commission”, Journal of International Law and Diplomacy (Kokusaiho Gaiko Zassi), 111 (2013), 75–94. Article 24 of the Statute of the Commission provides that “[t]he Commission shall consider ways and means for making the evidence of customary international law more readily available, such as the collection and publication of documents concerning State practice and of the decisions of national and international courts and on questions of international law, and shall make a report to the General Assembly on this matter.” A/CN.4/6 and Corr.1. A/CN.4/16 and Add.1. Referring to the scope of customary international law, Hudson suggested, inter alia, that “the emergence of a principle or rule of customary international law would seem to require presence of the following elements: (a) concordant practice by a number of States with reference to a type of situation falling within the domain of international relations; (b) continuation or repetition of the practice over a considerable period of time; (c) conception that the practice is required by, or consistent with, p ­ revailing

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that the General Assembly call to the attention of States the desirability of publishing digests of their diplomatic correspondence and other materials relating to international law, to make evidence of their practice more accessible.15 This influential report led to a number of important publications in the field of international law, on a national and international level, including the United Nations Legislative Series and the Reports of International Arbitral Awards, as well as national digests of practice.16 10. Two important surveys of international law were prepared, in 194817 and in 1971,18 to assist the Commission in its choice of topics. It is interesting to recall what the 1948 survey said under the heading “Sources of International Law”: The codification of this aspect of international law has been successfully accomplished by the definition of the sources of international law as given in article 38 of the Statute of the International Court of Justice. That definition has been repeatedly treated as authoritative by international arbitral tribunals. It is doubtful whether any useful purposes would be served by attempts to make it more specific, as, for instance, by defining the conditions of the creation and of the continued validity of international custom or by enumerating, by way of example, some of the general principles of law which article 38 of the Statute recognizes as one of the three principal sources of the law to be applied by the Court. international law; and (d) general acquiescence in the practice by other States” (para. 11). The working paper further elaborated on the evidence of customary international law. 15 Yearbook of the International Law Commission 1950, vol. ii, 367–374 (Report of the ILC for 1950, document A/1316, paras. 24–94, especially paras. 90–94); C. Parry, The Sources and Evidences of International Law (Manchester University Press, 1965), 70–82, reproduced in A. Parry (ed.), Collected Papers of Professor Clive Parry (Wildy, Simmonds and Hill Publishing, 2012), Vol. ii, 1–105. 16 A/CN.4/659, paras. 9–11. The Committee of Ministers of the Council of Europe adopted a Model Plan for the Classification of Documents concerning State Practice in the Field of Public International Law in 1968 (CM/Res (68) 17), which has served as a framework for a number of national publications; the Model Plan was substantially revised in 1997 (CM/ Rec (97) 11). 17 Survey of International Law in Relation to the Work of Codification of the International Law Commission: Preparatory work within the purview of article 18, paragraph 1, of the Statute of the International Law Commission — Memorandum submitted by the Secretary-General (A/CN.4/1/Rev.1, 10 February 1949) (United Nations publication, Sales No. 1948.v.1(1)). That the 1948 Survey was the work of Hersch Lauterpacht was acknowledged by the Secretary to the Commission in 1960: Yearbook of the International Law Commission 1960, vol. i, 52. 18 Survey of international law: Working paper prepared by the Secretary-General: A/CN.4/245, Yearbook of the International Law Commission 1971 (United Nations publication, Sales No. E.72.v.6 (Part ii) vol. ii, Part Two, 1). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The inclusion of a definition of sources of international law within any general scheme of codification would serve the requirements of systematic symmetry as distinguished from any pressing practical need. A distinct e­ lement of usefulness might, however, attach to any commentary accompanying the definition and assembling the experience of the International Court of Justice and of other international tribunals in the application of the various sources of international law.19 The 1971 survey did not revisit this issue. But an unofficial survey dating from 1998, under the heading “Items that should not be inscribed on the ILC’s agenda”, contained the following: The ILC should not inscribe the topic ‘Sources’ (with the exception of treaties) on its agenda. It is counterproductive, and may be impossible, to codify the relatively flexible processes by which rules of customary international law are formed. Moreover, in the field of sources the questions are fundamental (e.g., what is custom? how is it formed?) as opposed to secondary (e.g., what are the rules of treaty interpretation?), and such fundamental questions seem to be exceptionally theory-dependent.20 In deciding to take up the present topic, the Commission was aware of these past views. But it was also aware that, in the words of the 2011 syllabus: an appreciation of the process of [customary international law’s] formation and identification is essential for all those who have to apply the rules of international law. Securing a common understanding of the process could be of considerable practical importance. This is so not least because questions of customary international law increasingly fall to be dealt with by those who may not be international law specialists, such as those working in the domestic courts of many countries, those in government ministries other than Ministries for Foreign Affairs, and those working for non-governmental organizations.21 11. As explained in the memorandum by the Secretariat (A/CN.4/659), the Commission has dealt with the formation and identification of customary 19 20 21

Supra note 17, at 22. Report of the Study Group on the Future Work of the International Law Commission, para. 104, in M.R. Anderson et al. (eds.), The International Law Commission and the future of international law (British Institute of International and Comparative Law, 1998), 42. Annex A to the Commission’s 2011 report, A/66/10, para. 3. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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i­ nternational law on numerous occasions. Taking account of the Commission’s relevant work since 1949 (in particular final drafts adopted by the Commission over the years on the various topics that it has considered), the memorandum “endeavours to identify elements in the previous work of the Commission that could be particularly relevant to the topic ‘Formation and evidence of customary international law’”. In its main part, the memorandum considers “the Commission’s approach to the identification of customary international law and the process of its formation, by focusing on: (a) the Commission’s general approach; (b) State practice; (c) the so-called subjective element (opinio juris sive necessitatis); (d) the relevance of the practice of international organizations; and (e) the relevance of judicial pronouncements and writings of publicists.” It also covers “certain aspects of the operation of customary law within the international legal system”, relating to “the binding nature and characteristics of the rules of customary international law — including regional rules, rules establishing erga omnes obligations and rules of jus cogens — as well as to the relationship of customary international law with treaties and ‘general international law’.”22 12. The Secretariat memorandum suggests, inter alia, that uniformity and generality of State practice have consistently been regarded by the Commission as key considerations in the formation and evidence of rules of c­ ustomary international law. It further identifies that, in addition to State practice, the Commission has “frequently referred” in this context — albeit by different ­formulations — to “what is often defined as the subjective element of customary international law”.23 The memorandum notes that “a variety of materials” have been relied upon by the Commission in assessing both State practice and the “subjective element” associated with it, and that judicial pronouncements and the writings of publicists, as well as the practice of international organizations, have not infrequently proven relevant to such work.

Part Two: Scope and Outcome

III Scope and Outcome of the Topic 13. The scope of the present topic and possible outcomes of the Commission’s work were discussed during the Commission’s debate in 2012,24 and during the debate in the Sixth Committee at the sixty-seventh session of the ­General 22 23 24

See A/CN.4/659, summary. Ibid., at para. 26. See note 3 above.

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­Assembly.25 The question was raised as to whether the title of the topic, with references both to “formation” and “evidence” of customary international law, accurately covered the subject-matter envisaged; it was also noted that the various language versions of these references were somewhat inconsistent.26 It was, moreover, suggested that the central issue was the “identification” of customary international law, and that the reference to “formation” risked making the subject too broad or too theoretical. 14. In the view of the Special Rapporteur, whatever the precise title, the aim of the topic is to offer some guidance to those called upon to apply rules of customary international law on how to identify such rules in concrete cases. This includes, but is not limited to, judges in domestic courts, and judges and arbitrators in specialized international courts and tribunals. 15. In the English version of the title, the terms “formation” and “evidence” were intended to indicate that, in order to determine whether a rule of customary international law exists, it is necessary to consider both the requirements for the formation of a rule of customary international law, and the types of evidence that establish the fulfilment of those requirements. It may, nevertheless, be useful to ensure, at an early stage, that the title accurately reflects the intended scope of the topic in the various languages (including English), and has the same meaning in them all. 16. There are many approaches to customary international law among ­international lawyers, particularly among writers, some looking at it mainly as a source of international law, others more concerned with its operation within a domestic legal system. While some seek to describe and clarify the current position on the methods of its formation and identification, others explicitly look to the future.27 The Special Rapporteur is of the opinion that the Commission should aim to describe the current state of international law on the formation and evidence of rules of customary international law, without prejudice to ­developments that might occur in the future. 17. The debates in the Commission and the Sixth Committee in 2012 suggested that in order to avoid unnecessary overlap, the scope of the topic needs to be clearly delimited vis-à-vis other topics on the Commission’s agenda, past and present. Other topics include “Fragmentation of international law: ­difficulties arising from the diversification and expansion of international 25 26 27

See note 4 above. These are at present: In Arabic “‫ ;”ﻧﺸﺄة اﻟﻖ … ﺛﺒﺎﺗﻪ‬in Chinese “形成与证据”; in French “formation et identification”; in Russian “формирование и доказательство существования”; in Spanish “formación y documentación”. See Section xi below. [Editors’ note: not included in this Anthology].

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law”,28 and “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”.29 This should not be difficult in practice; the dividing lines are reasonably clear.30 18. It should not be expected that the outcome of the Commission’s work will be a series of hard-and-fast rules for the identification of rules of customary international law. Instead, the aim is to shed light on the general processes of the formation and evidence of rules of customary international law: there seemed to be widespread agreement in the discussions thus far that the appropriate outcome for the Commission’s work should be a set of “conclusions” with commentaries.31 19. One issue that the Commission will need to address is whether there are different approaches to the formation and evidence of customary international law in different fields of international law, such as international human rights law,32 international criminal law33 and international humanitarian law.34 The formation and evidence of rules of customary international law in 28

For the outcome of the Commission’s work on that topic, see Report of the International Law Commission on the work of its fifty-eighth session, A/61/10, para. 251, as well as document A/CN.4/L.682 and Add.1 and Corr.1. 29 The topic was previously entitled “Treaties over time”. 30 First report on subsequent agreements and subsequent practice in relation to treaty interpretation, by Georg Nolte, Special Rapporteur (A/CN.4/660), para. 7. 31 The London Statement of Principles, likewise, comprises “a statement of the relevant rules and principles, as the Committee understands them … some practical guidance for those called upon to apply or advise on the law, as well as for scholars and students. Many have a need for relatively concise and clear guidelines on a matter which often causes considerable perplexity…” (pp. 3–4, para. 4). 32 See, e.g., E. Klein (ed.), Menschenrechtsschutz durch Gewohnheitsrecht, Kolloquium 26–28 September 2002 Potsdam (Berliner Wissenschafts-Verlag, 2003); R.B. Lillich, “The Growing Importance of Customary International Human Rights Law”, Georgia Journal of International and Comparative Law, 25 (1995/6), 1–30; and H.G. Cohen, “Symposium: The Global Impact and Implementation of Human Rights Norms: From Fragmentation to Constitutionalization”, Pacific McGeorge Global Business & Development Law Journal, 25 (2012), 381–394. 33 See, e.g., W. Schabas, “Customary Law or ‘Judge-Made’ Law: Judicial Creativity at the UN Criminal Tribunals”, in J. Doria et al. (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff Publishers, 2009), 77. 34 See, e.g., J. d’Aspremont, “An autonomous regime of identification of customary international humanitarian law: do not say what you do or do not do what you say?”, in R. van Steenbergh (ed.), Droit international humanitaire: un régime spécial de droit international? (Bruylant, 2013), 67–95; and T. Meron, “The Continuing Role of Custom in the Formation of International Humanitarian Law”, American Journal of International Law, 90 (1996), 238–249. Meron has also suggested that “it is difficult to find positive, concrete state practice with respect to rules that are largely prohibitive — as the rules of humanitarian law

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different fields may raise particular issues and it may therefore be for consideration whether, and if so to what degree, different weight may be given to different materials depending on the field in question.35 At the same time, it should be recalled that, in the words of Judge Greenwood, “[i]nternational law is not a series of fragmented specialist and self- contained bodies of law, each of which functions in isolation from the others; it is a single, unified system of law.”36 20. Another question, raised in the initial debate within the Commission, was whether the approach to be adopted depended on the intended audience.37 It will be recalled that the “observational standpoint” was also considered at the outset of the International Law Association exercise.38 In the view of the Special Rapporteur, the accepted approach for identifying the law

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generally are — because such rules are largely respected through abstentions from violations, rather than affirmative practice”: T. Meron, The Making of International Criminal Justice: A View from the Bench: Selected Speeches (Oxford University Press, 2011), 32. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, 3 February 2012, para. 73 (“for the purposes of the present case the most pertinent State practice is to be found in […] national judicial decisions…”); Prosecutor v. Tadić, ICTY Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, para. 99 (“Before pointing to some principles and rules of customary law that have emerged in the international community for the purpose of regulating civil strife, a word of caution on the law-making process in the law of armed conflict is necessary. When attempting to ascertain State practice with a view to establishing the existence of a customary rule or a general principle, it is difficult, if not impossible, to pinpoint the actual behaviour of the troops in the field for the purpose of establishing whether they in fact comply with, or disregard, certain standards of behaviour. This examination is rendered extremely difficult by the fact that not only is access to the theatre of military operations normally refused to independent observers (often even to the icrc) but information on the actual conduct of hostilities is withheld by the parties to the conflict; what is worse, often recourse is had to misinformation with a view to misleading the enemy as well as public opinion and foreign Governments. In appraising the formation of customary rules or general principles one should therefore be aware that, on account of the inherent nature of this subject-matter, reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions”). Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (Compensation owed by the Democratic Republic of the Congo to the Republic of Guinea), Judgment, 19 June 2012, Declaration of Judge Greenwood, para. 8. See also A/61/10, para. 251; and the analytical study finalized by the Chairman of the Study Group (A/CN.4/L.682 and Corr.1 and Add.1), paras. 33–34. A/CN.4/SR.3148, p. 6 (Murase). London Statement of Principles, para. 7; appendix on “Formation of International Law and the Observational Standpoint” to the First Report of the Rapporteur: International Law Association, Report of the Sixty-third Conference, 1986, 936.

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should be the same for all; a shared, general understanding is precisely what the Commission may hope to achieve. 21. In the course of the Commission’s work it will be necessary to address general questions of methodology in the identification of rules of customary international law, such as the relative weight to be accorded to empirical research into State practice, as against deductive reasoning. It is also the case that practical considerations may affect methodology, especially in a world of nearly 200 States (as well as other international actors), though this is not a new challenge. Also noteworthy are the inherent difficulties of the topic, primarily the very nature of customary international law as unwritten law, and the ideological and theoretical controversies that are often associated with it.39 22. The present topic deals with the processes involved in the formation of rules of customary international law and with the necessary evidence for identifying them. The topic is not concerned with determining the substance of particular rules.40 It aims to provide guidance on how to identify a rule of customary international law at a given moment, not to address the question of which particular rules have achieved such status.41 Nor is it the purpose to consider the position of customary international law within the law to be applied by the various courts and tribunals, or special provisions and procedures that may exist at the various domestic levels for identifying rules of customary international law (though these must be borne in mind when assessing the decisions of domestic courts). 23. It follows that (subject to any change that the Commission may make to the title of the topic42) a first conclusion, on the scope of the draft conclusions, could read: 1. Scope. The present draft conclusions concern the formation and evidence of rules of customary international law.

39 40 41

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See also London Statement of Principles, para. 2. Cf, the distinction between primary and secondary rules that was so important in the Commission’s work on Responsibility of States for Internationally Wrongful Acts. In any event it is important to bear in mind that “the customary law process is a continuing one: it does not stop when a rule has emerged”: M.H. Mendelson, “The Formation of Customary International Law”, 272 Recueil des Cours (1998), 155, 188; see also K. Wolfke, “Some Persistent Controversies Regarding Customary International Law”, Netherlands Yearbook of International Law, 24 (1993) 1, 15 (“ascertaining international customs and the formulations of the corresponding legal rules may be carried out repeatedly on various occasions. Such identification is never final…”). Supra notes 3 and 4.

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IV Whether jus cogens Should be Covered 24. The question was raised, in the debates in the Commission and the Sixth Committee in 2012, as to whether the present topic should cover the formation and evidence of peremptory norms of general international law (jus cogens).43 25. Rules of jus cogens are legal norms “accepted and recognized by the international community of States as a whole” as norms “from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character”.44 While the existence of this category of “superior” international law is no longer seriously contested,45 doctrinal controversy still abounds with regard to its substantive content, as well as the evidentiary elements associated with it.46 It is particularly relevant in the 43

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Vienna Convention on the Law of Treaties, 1969, articles 53, 64. The definition in the ­ ienna Convention is of general application: see para. (5) of the commentary to article V 26 of the Articles on State Responsibility, Yearbook of the International Law Commission 2001, vol. ii, p. 85, cited in para (2) of the commentary on article 26 of the Articles on the Responsibility of International Organizations, ILC Report 2011, p. 120. Vienna Convention on the Law of Treaties, article 53; see also P. Dailler, M. Forteau and A. Pellet, Droit international public, 8th edition (Librairie générale de droit et de jurisprudence (L.G.D.J.) 2009), 220–229; and J. Frowein, “Ius Cogens”, in Max Planck Encyclopedia of Public International Law (2012). See, e.g., the conclusions emerging from the studies and discussions of the International Law Commission’s Study Group on “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, chaired by Martti ­Koskenniemi: report of the International Law Commission on the work of its 58th s­ ession, 1 May-9 June and 3 July–11 August 2006 (A/CN.4/L.702); and the references to jus cogens in judgments of the International Court of Justice, e.g. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 6, at p. 52; Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012, paras. 92–97; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, para. 99. See also Frowein, supra note 44, paras. 3–5 (“It can thus be said that the existence of ius cogens in public international law is recognized today by State practice, by codified treaty law, and by legal theory”). See, e.g., A. D’Amato, “It’s a Bird, It’s a Plane, It’s Jus Cogens”, Connecticut Journal of International Law, 6 (1990), 1–6; K. Kawasaki, “A Brief Note on the Legal Effects of Jus Cogens in International Law”, Hitotsubashi Journal of Law and Politics, 34 (2006), 27–43; H. Charlesworth, “Law-Making and Sources”, in J. Crawford and M. Koskenniemi (eds.), The Cambridge Companion to International Law (Cambridge University Press, 2012), 187, 191; P. Tavernier, “L’identification des règles fondamentales, un problème résolu?”, in C. ­Tomuschat and J.M. Thouvenin (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Martinus Nijhoff Publishers, 2006), 1, 19; S. ­Kadelbach, “Jus Cogens, Obligations Erga Omnes and other Rules — The Identification of Fundamental Norms”, in C. Tomuschat and J.M. Thouvenin (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Martinus ­Nijhoff Publishers, 2006) 21, 28; and M.E. Villiger, Customary International Law and

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present context to note that an “aura of mystery”47 still surrounds the source of jus cogens rules: some international lawyers consider them to be a special category of customary international law;48 others deny that they can derive from custom;49 still others are of the view that customary international law is merely one possible source of jus cogens.50 It has been suggested that one’s

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Treaties: A Manual of the Theory and Practice of the Interrelation of Sources, 2nd edition (Kluwer Law International, 1997), 7. A. Bianchi, “Human Rights and the Magic of Jus Cogens”, European Journal of International Law, 19 (2008), 491, 493. See, e.g., A. de Hoogh, Obligations Erga Omnes and International Crimes (Kluwer Law International, 1996) 45–48; P. Reuter, Introduction au droit des traités (Librairie Armond ­Colin, 1972), 139–140; M.H. Mendelson, supra note 41, at 181; A. Kaczorowska, Public International Law, 4th edition (Routledge, 2010), 28; R. Jennings and A. Watts (eds.), ­Oppenheim’s International Law, 9th edition (Oxford University Press, 1992) 7–8; R.B. Baker, “Customary International Law in the 21st Century: Old Challenges and New Debates”, European Journal of International Law, 21 (2010) 173, 177; A. D’Amato, The Concept of Custom in International Law (Cornell University Press, 1971), 132; A. Cassese, “For an Enhanced Role of Jus Cogens”, in A. Cassese (ed.), Realizing Utopia (Oxford University Press, 2012), 158, 164; T. Meron, “On a Hierarchy of International Human Rights”, American Journal of International Law, 80 (1986), 1, 13–21; A. McNair, Law of Treaties (Clarendon Press, 1961), 213–215; J. Paust, “The Reality of Jus Cogens”, Connecticut Journal of International Law, 7 (1991), 81, 82; J. Crawford, Brownlie’s Principles of Public International Law, 8th edition (Oxford University Press, 2012), 594; N.G. Onuf and R.K. Birney, “Peremptory Norms of International Law: Their Source, Function and Future”, Denver Journal of International Law and Policy, 4 (1974), 187, 191; F. Orrego Vicuña, “Customary International Law in a Global Community: Tailor Made?”, Estudios Internacionales, 148 (2005), 21, 36–37; and B.D. Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge University Press, 2010), 243–260; Mr. Forteau too said during the Commission’s sixty-fourth session that “[j]us cogens rules were by definition part of customary law” (A/CN.4/SR.3150, p. 11). See, e.g., M.E. O’Connell, “Jus Cogens: International Law’s Higher Ethical Norms”, in D.E. Childress iii (ed.), The Role of Ethics in International Law (Cambridge University Press, 2012), 78, 83; M.W. Janis, “The Nature of Jus Cogens”, Connecticut Journal of International Law, 3 (1988), 359, 360–361; G.J.H. van Hoof, Rethinking the Sources of International Law (Kluwer Law and Taxation Publishers, 1983), 164; J. Vidmar, “Norm Conflicts and Hierarchy in International Law: Towards a Vertical International Legal System?”, in E. de Wet and J. Vidmar (eds.), Hierarchy in International Law: The Place of Human Rights (Oxford University Press, 2012), 13, 26; and F. Domb, “Jus Cogens and Human Rights”, Israel Yearbook of International Law, 6 (1992), 106. Mr. Murphy said during the Commission’s sixty-fourth session, with reference to jus cogens, that “it was not a creature of any one source of international law but rather a limitation on those sources”; Mr. Tladi too suggested that “customary international law and treaty law were based on a theory of State consent, while jus cogens was … based on something different” (A/CN.4/SR.3148, pp. 8, 10). See, e.g., M. Akehurst, “The Hierarchy of the Sources of International Law”, British Yearbook of International Law, 47 (1976), 273, 282–284; G.I. Tunkin, “Jus Cogens in Contemporary International Law”, University of Toledo Law Review, 3 (1971), 107, 116; M.N. Shaw,

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view as to the relationship between jus cogens and customary international law depends, essentially, on the conception that one has of the latter.51 26. There are arguments for and against covering jus cogens in the present topic. On one view, rules of customary international law may possibly be found to be, or evolve into, rules of jus cogens, and the two may be linked by common constitutive elements. Another view is that jus cogens “present[s] its own difficulties in terms of evidence, formation and classification, which [are] outside the scope of the [present] topic”.52 A majority of members of the Commission, and of representatives in the Sixth Committee, who addressed the matter in 2012, considered that it would be better not to cover jus cogens in the present topic. 27. For essentially pragmatic reasons, so as not to complicate further what is already a complex topic,53 the Special Rapporteur considers that it would be preferable not to deal with the issue as a part of the present topic. However, as members of the Commission observed, this does not mean that reference will not be made from time to time to rules of jus cogens in particular contexts.

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International Law, 6th edition (Cambridge University Press, 2008), 127; C.A. Bradley and M. Gulati, “Withdrawing from International Custom”, Yale Law Journal, 120 (2010), 202, 212; R. Nieto-Navia, International Peremptory Norms (Jus Cogens) and International Humanitarian Law (2001), available at www.iccnow.org/documents/WritingColombiaEng.pdf, pp. 11–12; P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th revised edition (Routledge, 1997), 58; and A. Orakhelashvili, Peremptory Norms in International Law (Oxford University Press, 2006), 126. G.J.H. van Hoof, supra note 49, at 163–164 (“the answer to the question of whether or not customary international law can play an important role in establishing jus cogens also depends on what concept of this source one takes as a point of departure. Those who adhere to a flexible conception of custom are most likely to consider customary international law a perfect source of jus cogens, because in their view it produces rules of general international law binding upon all States in the world … Those, in contrast, who start from a more rigid conception of custom are likely to reach the opposite conclusion; adherents to this view argue that, as a result of changes in the international law-making process prompted by the structure of present international society, there are not many customary rules of international law left, which bind the entire international community of States, and, moreover, such rules cannot be expected to be very numerous in the future”). A/CN.4/SR.3148, pp. 8–9 (Murphy). Mr. Tladi, for example, expressed doubts that that the Commission “would be able to reach agreement on various aspects of jus cogens”; Mr. Park suggested that dealing with jus cogens might at this time open a “Pandora’s box” (see, respectively, A/CN.4/SR.3148, p. 10, and A/CN.4/SR.3150, p. 9). See also the 1993 proposal by A. Jacovides that the Commission should take on the topic: Yearbook of the International Law Commission 1993, vol. ii, Part One, 213–220.

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Part Three: Customary International Law as a Source of International Law

Customary International Law and its Relationship to Other Sources Listed in Article 38 of the Statute of the International Court of Justice 28. Public international law is law,54 and customary international law is one of the main sources of that law.55 By “source” in this context it is meant a formal source,56 “that which gives to the content of rules of international law their character as law”.57 29. Article 38.1 of the Statute of the International Court of Justice, which is widely regarded as an authoritative statement of sources of international law,58 reads as follows: V

1.

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The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law;

For a recent examination, see F. Mégret, “International law as law”, in J. Crawford and M. Koskenniemi (eds.), The Cambridge Companion to International Law (Cambridge University Press, 2012), 64–92. It is important, for the authority of international law, to maintain a clear distinction between law and non-law, between rules of law and non-legal principles and standards. “Soft law”, a term without clear meaning that has been described as more of a “catchword” and mostly refers to rules that are deliberately made non-binding, is not law (see, e.g. D. Thürer, “Soft Law”, Max Planck Encyclopedia of Public International Law (2012); v. Lowe, International Law (Oxford University Press, 2007)), 95–97; M.N. Shaw, supra note 50, at 117–119; and S.D. Murphy, Principles of International Law, 2nd edition (West Publishing Company, 2012), 111–123. Soft law may, however, contribute to the formation of customary international law; this will be explored in future reports. The formal sources of international law are “the processes through which international law rules become legally relevant”, while the material sources “can be defined as the political, sociological, economic, moral or religious origins of the legal rules”: A. Pellet, “Article 38”, in Zimmermann et al., The Statute of the International Court of Justice: A Commentary, 2nd edition (Oxford University Press, 2012), Marginal Note (MN) 111. I. Sinclair, The Vienna Convention on the Law of Treaties, 2nd edition (Manchester University Press, 1984), 2. A. Pellet, supra note 56, at 812–32, MN 209–249. There is no need, for present purposes, to enter into the debate as to whether Article 38.1, drawn up in 1920, remains a complete list: see R. Wolfrum, “Sources of International Law”, in Max Planck Encyclopedia of Public International Law (2012), para. 10. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the general principles of law recognized by civilized nations; subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

30. Article 38.1 (b) is identical to Article 38 (b) of the Statute of the Permanent Court of International Justice, which itself had been prepared for the Council of the League of Nations by an Advisory Committee of Jurists in 1920.59 The Chairman of the Advisory Committee of Jurists, Baron Descamps, had originally proposed the following: 2.

international custom, being practice between nations accepted by them as law.60

There is little recorded discussion of this provision in the Advisory Committee, or in the Council or Assembly of the League. In the Root-Phillimore plan, this provision read: “International custom, as evidence of a common practice in use between nations and accepted by them as law”.61 Ultimately, however, the following text emerged from the Drafting Committee: “international custom, as evidence of a general practice, which is accepted as law”.62 This text was submitted to the League of Nations, and adopted with only drafting changes.63 59

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There had been earlier attempts to address the issue. In particular, under article 7 of the (unratified) Convention (xii) relative to the Creation of an International Prize Court of 18 October 1907, that Court was to apply, in the absence of a treaty in force, “rules of international law”, provided that they were “generally recognized”: see A. Pellet, supra note 56, MN 11–13. On the work of the Advisory Committee, see O. Spiermann, “‘Who attempts too much does nothing well’: the 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice”, British Yearbook of International Law, 73 (2002), 187–260; and O. Spiermann, “Historical Introduction”, in A. Zimmermann et al., The Statute of the International Court of Justice: A Commentary, 2nd edition (Oxford University Press, 2012), MN 6–22. Procès-Verbaux of the Proceedings of the Advisory Committee of Jurists (1920), 306, Annex No. 3. The United States member of the Advisory Committee, Root, proposed a text that was identical except for the addition of “recognized” before “practice”: 344, Annex No. 1. Descamps referred to customary international law as “a very natural and extremely reliable method of development [of international law] since it results entirely from the constant expression of the legal convictions and of the needs of the nations in their mutual intercourse”: 322. Ibid., 548. Ibid., 567. Ibid., 680. As adopted by the Advisory Committee on first reading, the subparagraph was changed to read: “International custom, being the recognition of a general practice, ­accepted as law”. The change was not maintained in the text submitted to the League. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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It does not seem to have been discussed during the preparation and adoption of the International Court of Justice Statute in 1944/45.64 31. Article 38.1 (b) is often said to be “badly drafted”.65 On the other hand, it has been said that “[t]here are two key elements in the formation of a customary international law rule. They are elegantly and succinctly expressed in Article 38 of the ICJ Statute”;66 and that “Article 38 of the ICJ Statute cannot be considered a simple guide, limited solely to a technical role in the court, but rather — despite its imperfections — the enunciations of the modes of law formation”.67 32. Article 38.1 has frequently been referred to or reproduced in later ­instruments.68 Although in terms it only applies to the International 64

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On the negotiating history of article 38.1 (b) see P. Haggenmacher, “La doctrine des deux éléments du droit coutumier dans la pratique de la Cour internationale”, Revue générale de droit international public (rgdip), 90 (1986), 5, 19–32; A. Pellet, supra note 56, MN 17– 48; and R.D. Kearney, “Sources of Law and the International Court of Justice”, in L. Gross (ed.), The Future of the International Court of Justice, Vol. ii (Oceana Publications, 1976), 610–723. Looking back at the negotiation in 1950, Manley O. Hudson remarked that the drafters of the Statute “had no very clear idea as to what constituted international custom”: Yearbook 1950, vol. i, p. 6, para. 45. See e.g., J.L. Kunz, “The Nature of Customary International Law”, American Journal of International Law, 47 (1953), 662, 664; and K. Wolfke, supra note 41, at 3. Villiger has written, “It is notorious that this provision is lacking… For the Court cannot apply a custom, only customary law; and subpara. 1 (b) reverses the logical order of events, since it is general practice accepted as law which constitutes evidence of a customary rule”: M.E. Villiger, supra note 46, at 15. D.J. Bederman, The Spirit of International Law (University of Georgia Press, 2006), 9, 33; see also A.A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (Martinus Nijhoff Publishers, 2010), 116 (“Article 38 itself of the ICJ Statute duly qualifies international custom in referring to it as ‘evidence of a general practice accepted as law’”). S. Sur, International Law, Power, Security and Justice: Essays on International Law and Relations (Hart Publishing, 2010), 166; see also R.Y. Jennings, “The Identification of International Law”, in B. Cheng (ed.), International Law: Teaching and Practice (Stevens & Sons, 1982), 3, 9. A. Pellet, supra note 56, MN 49–54. Article 28 of the 1928 General Act for the Pacific Settlement of International Disputes (and article 28 of the 1948 Revised General Act); article 33 of the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States. Sometimes we find a cross-reference to Article 38 of the Statute: for example, in articles 74 and 83 of the United Nations Convention on the Law of the Sea, 1982. Other instruments use different terms: for example, article 21 (1) (b) of the Rome Statute of the International Criminal Court (“applicable treaties and the principles and rules of international law, including the established principles of the law of armed conflict”); article 20 (1) of the Protocol of the Court of Justice of the African Union, which includes but expands on the language of the International Court of Justice: article 20 (1) (c) is identical to art. 38 (1) (b). For the use of article 38.1 in the work of the International Law Commission,

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Court,69 the sources defined in Article 38.1 are generally regarded as valid for other international courts and tribunals as well, subject to any specific rules in their respective statutes.70 33. It is necessary, for the purposes of the present topic, to consider the ­relationship between customary international law and the other sources of ­international law listed in Article 38.1 of the Statute of the International Court, though the present topic is not intended to cover these other sources as such. 34. The relationship between customary international law and treaties is an important aspect of the topic,71 to be discussed in later reports. In short, the interplay between these two “entangled” sources of international law may be highly relevant for the present purposes as it is generally recognized that treaties may be reflective of pre-existing rules of customary international law; generate new rules and serve as evidence of their existence; or, through their negotiation processes, have a crystallizing effect for emerging rules of customary international law.72 Such a relationship is particularly interesting in the see article 12 of the 1953 Draft Convention on Arbitral Procedure (Yearbook of the International Law Commission 1953, vol. ii, p. 210), and article 10 of the 1958 Draft (Yearbook of the International Law Commission 1958, vol. ii, p. 84) (which each begin with the important qualification “In the absence of any agreement between the parties concerning the law to be applied”). 69 M. Forteau, “The Diversity of Applicable Law before International Tribunals as a Source of Forum Shopping and Fragmentation of International Law: An Assessment”, in R. Wolfrum and I. Gätzschmann (eds.), International Dispute Settlement: Room for Innovations? (Springer, 2012), 417, 420–421. 70 Section ix below. Thirlway has written: “it is generally agreed that the sources defined in Art. 38 are valid also for other international tribunals”: R. Wolfrum and I. Gätzschmann (eds.), International Dispute Settlement: Room for Innovations? (Springer, 2012), 313. Of the reference to “other rules of international law not incompatible with this Convention” in article 293 of the United Nations Convention on the Law of the Sea, Thirlway writes “no further definition is offered, leaving Art. 38 of the ICJ Statute as the recognized yardstick” (ibid., at 314, fn. 9). 71 See A/CN.4/659, Section iii.B. 72 See in general O. Schachter, “Entangled Treaty and Custom”, in Y. Dinstein (ed.), International Law in a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Martinus Nijhoff Publishers, 1989), 717–738; B.B. Jia, “The Relations between Treaties and Custom”, Chinese Journal of International Law, 9 (2010), 81–109; G. Boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Publishing, 2012), 84; J.K. Gamble, Jr., “The Treaty/Custom Dichotomy: An Overview”, Texas International Law Journal, 16 (1981), 305–319; K. Wolfke, “Treaties and Custom: Aspects of Interrelation”, in J. Klabbers and R. Lefeber (eds.), Essays on the Law of Treaties: A collection of Essays in Honour of Bert Vierdag (Martinus Nijhoff Publishers, 1998), 31–39; G.L. Scott and C.L. Carr, “Multilateral Treaties and the Formation of Customary International Law”, Denver Journal of International Law and Policy, 25 (1996), 71–94; M.E. Villiger, supra note 46; and R.R. Baxter, “Treaties and Custom”, 129 Recueil des Cours (1970), 25–105.

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light of the fact that “contemporary customary international law, although unwritten, is increasingly characterized by the strict relationship between it and written texts”.73 It should also be borne in mind that customary international law has an “existence of its own” even where an identical rule is to be found in a treaty.74 35. It is sometimes suggested that treaties are now a more important source of international law than customary international law.75 Such generalizations are neither particularly illuminating nor necessarily accurate. Even in fields where there are widely accepted “codification” conventions, the rules of customary international law continue to govern questions not regulated by the conventions76 and continue to apply in relations with and between non-­ parties.77 Rules of customary international law may also fill possible lacunae in treaties, and assist in their interpretation.78 An international court may also 73 74 75 76

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T. Treves, “Customary International Law”, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2012), para. 2. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 14, at pp. 94–96, paras. 177–178. “In the past decades, treaties have superseded customary international law as the most important source of international law…”: O. Dörr and K. Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary (Springer, 2012), 11. See, for example, Vienna Convention on the Law of Treaties, final preambular paragraph; and article 4 (non-retroactivity). The Martens clause was an early example of the continuing importance of customary international law, notwithstanding a treaty: J. von Bernstorff, “Martens Clause”, in Max Planck Encyclopedia of Public International Law (2012). In the 1977 Additional Protocol i to the Geneva Conventions, the expression “the usages established between civilized nations” was replaced by “established custom”, the term also used in later conventions: Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, adopted on 10 October 1980, fifth preambular paragraph; and Convention on Cluster Munitions, adopted on 30 May 2008, eleventh preambular paragraph. For example, the Vienna Convention on the Law of Treaties only directly applies in relations between the States parties thereto. The rules of customary international law on the law of treaties apply in relations between States not party to the Vienna Convention on the Law of Treaties, and between a State party and a non-party: see E.W. Vierdag, “The Law Governing Treaty Relations between Parties to the Vienna Convention on the Law of Treaties and States not Party to the Convention”, American Journal of International Law, 76 (1982), 779–801. Vienna Convention on the Law of Treaties, article 31.3 (c); Conclusions of the work of the study group on the fragmentation of international law: difficulties arising from the diversification and expansion of international law, conclusions (17) to (20) (A/61/10), para. 251. See also Amoco International Finance Corporation v. Iran (1987-ii) 15 Iran-United States Claims Tribunal (usctr) 222, para. 112; Baxter, supra note 72, at 103 (“Treaties will

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decide that it may apply customary international law where a particular treaty cannot be applied because of limits on its jurisdiction.79 36. The distinction between customary international law and “general principles of law”80 is also important, but not always clear in the case law or the literature.81 Article 38.1 (c) lists “general principles of law recognized by civilized nations” as a source of international law separately from customary international law. In the case law and in writings this is sometimes taken to refer not only to general principles common to the various systems of internal law but also to general principles of international law. The International Court itself may have recourse to general principles of international law in circumstances when the criteria for customary international law are not present. As one author has explained: The relatively frequent reference by the ICJ to principles that are not part of municipal laws is explained, at least in part, by the narrow definition of customary international law that is provided in Art. 38 (1)(b) ICJ Statute. Should custom be regarded, as stated in that provision, as ‘evidence of a general practice accepted as law’, given the insufficiency

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c­ ontinue to exercise a most important impact on the content of general international law. Even if all States should expressly assume the obligations of codification treaties, regard will still have to be paid to customary international law in the interpretations of those instruments, and the treaties will in turn generate new customary international law growing out of the application of the agreements”). As in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), supra note 74, at pp. 92–97, paras. 172–182. At p. 97, para. 182 the Court concluded that “it should exercise the jurisdiction conferred upon it by the United States declaration of acceptance under Article 36, paragraph 2, of the Statute, to determine the claims of Nicaragua based upon customary international law notwithstanding the exclusion from its jurisdiction of disputes “arising under” the United Nations and Organization of American States Charters”. G. Gaja, “General Principles of Law”, in Max Planck Encyclopedia of Public International Law (2012); A. Pellet, supra note 56, MN 250–269. On the different meanings of “general principles of law” see, e.g. O. Schachter, International Law in Theory and Practice (Martinus Nijhoff Publishers, 1991), 50–55; see also B. Schlütter, Developments in Customary International Law: Theory and the Practice of the International Court of Justice and the International ad hoc Criminal Tribunals for Rwanda and Yugoslavia (Martinus Nijhoff Publishers, 2010), 71–86. On a call for clarity in this regard, see B. Simma and P. Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles”, Australian Yearbook of International Law, 12 (1988–1989), 82–108; N. Petersen, “Customary Law without Custom? Rules, Principles, and the Role of State Practice in International Law Creation”, American University International Law Review, 23 (2008), 275–310.

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of practice, several rules of international law which are not based on ­treaties would not fit in the definition of custom. Hence the reference to principles or general principles.82 While it may be difficult to distinguish between customary international law and general principles in the abstract, whatever the scope of general principles it remains important to identify those rules which, by their nature, need to be grounded in the actual practice of States.83 37. Customary international law is also to be distinguished from conduct by international actors that neither generates a legal right or obligation nor carries such a legal implication. Not all international acts bear legal significance: acts of comity and courtesy, or mere usage, even if carried out as a matter of tradition, thus lie outside the scope of customary international law and the present topic.84 38. It is perhaps unnecessary, at least at this stage, to enter upon the question of the nature of the rules governing the formation and identification of rules of customary international law, for example, whether such rules are themselves part of customary international law.85 But as in any legal system, there must in public international law be rules for identifying the sources of the law. These can be found for present purposes by examining in particular how States and courts set about the task of identifying the law. VI Terminology 39. Terminology is important. “Customary international law” or “rules of ­customary international law”86 would seem to be the expressions in most 82 83 84 85

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G. Gaja, supra note 80, para. 18. J. Crawford (ed.), supra note 48, at 37. G.I. Tunkin, “Remarks on the Juridical Nature of Customary Norms of International Law”, California Law Review, 49 (1961), 419, 422; J. Crawford, supra note 48, at 23–24. Cf. the debate on the nature of some rules of treaty law, particularly pacta sunt servanda. Sinclair refers in this connection to “doctrinal arguments” consideration of which “of necessity leads us into somewhat metaphysical regions”: I. Sinclair, supra note 57, at 2–3. See also J. Kammerhofer, “Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems”, European Journal of International Law, 15 (2004), 523, 538–542. Vienna Convention on the Law of Treaties 1969, eighth preambular paragraph. Article 38 of the Vienna Convention has “customary rule of international law”. The word “rules” is used in this report to include “principles”. As a Chamber of the International Court of Justice said (in the context of maritime delimitation), “[t]he association of the terms ‘rules’ and ‘principles’ is no more than the use of a dual expression to convey one and the

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c­ ommon use for the source of international law with which the present topic is concerned.87 The expression “general customary international law” is sometimes found, usually in contradistinction to “special” or “regional” customary international law.88 The term “universal customary international law” may have a similar meaning. 40. The expression “international customary law” is also found, but might suggest a subcategory of “customary law”, and hence a misleading relationship between customary international law and the customary law found in some domestic legal systems. 41. Customary international law is commonly referred to as “international custom” or “custom”, but this also may be misleading, depending on the context.89 These terms may be confused with the objective element in the

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same idea, since in this context ‘principles’ clearly means principles of law, that is, it also includes rules of international law in whose case the use of the term ‘principles’ may be justified because of their more general and more fundamental character” (I.C.J. Reports 1984, p. 246, at pp. 288–290, para. 79); Gaja has written: “While the distinction between principles and rules has not been elaborated in judicial or arbitral decisions, the use of the term principles denotes the general nature of the norm in question” (G. Gaja, supra note 80, para. 31). An older term for “international law” is “the law of nations”, which has by no means fallen out of use: M.W. Janis, “International law?”, Harvard Journal of International Law, 32 (1991), 363–72; M.W. Janis, America and the Law of Nations 1776–1939 (Oxford University Press, 2010), Chapter 1 (“Blackstone and Bentham: The Law of Nations and International Law”); A. Clapham, Brierly’s Law of Nations, 7th edition (Oxford University Press, 2012), xiii–xiv. It is sometimes suggested that “law of nations” is the more appropriate term given the expanding actors in the field, for example, in P. Dailler, M. Forteau and A. Pellet, supra note 44, at 43–50. Blackstone’s Commentaries on the Laws of England (1765–1769) uses the term “law of nations” to refer broadly to the field of what is now known as international law, thus encompassing both treaties and customary international law. Yet sometimes the term “law of nations” has been used to refer to international law other than treaties. Thus, in the First Judiciary Act of 1789, Ch. 20, § 9, 1 Stat. 73 (1789), the United States Congress adopted a provision that refers to violations of “the law of nations or a treaty of the United States”. In this sense, the term “law of nations” is a synonym for what is now called customary international law, rather than international law generally. As the Restatement (Third) of U.S. Foreign Relations Law, § 111, Introductory Note (1987) puts it: The term “‘law of nations’ was used to describe the customary rules and obligations that regulated conduct between states and certain aspects of state conduct towards individuals”. Terms used in the internal law of the various States to refer to customary international law vary considerably. Though it will be recalled that the term “international custom” appears in art. 38.1 (b) of the Statute of the International Court of Justice.

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f­ ormation of customary international law (practice), where other related terms that are often used interchangeably are “usage” and “practice”.90 42. The term “general international law” is commonly used,91 but needs some explanation.92 The International Court, and the Commission itself, have used the term in a variety of contexts and with a variety of meanings.93 Its use to mean only customary international law can be confusing. At times the term is used to mean something broader than general customary international law, such as customary international law together with general principles of law, and/or together with widely accepted international conventions. It is desirable that the specific meaning intended by this term be made clear whenever the context leaves the meaning unclear. 43. Accuracy and consistency in the use of terminology by practitioners and scholars alike could help clarify the treatment of customary international law as a source of law. The Special Rapporteur proposes to use the terms “customary international law” and “rules of customary international law”. 44. One obstacle to achieving a consistent use of terms is the different usages in different languages. The establishment of a short lexicon of relevant terms, in the six official languages of the United Nations, to be developed as work on the topic proceeds, could be helpful. In addition to the term “customary international law” it could include “State practice”, “practice”, “usage”, and “opinio juris sive necessitatis”. 90

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See also G.I. Tunkin, supra note 84, at 422 (differentiating between “usage” and “­custom” on the one hand, and “customary norm of international law” on the other hand); K. Wolfke, supra note 41, 2 (referring to the “notorious inconsistency in the use of terminology ­related to customary international law” and calling for a distinction between “international custom” on the one hand and “practice”, “habit” or “usage” on the other hand); and C. Ochoa, “The Individual and Customary International Law Formation”, Virginia Journal of International Law, 48 (2007), 119, 125–129. See, for example, articles 53 and 64 of the Vienna Convention on the Law of Treaties (Jus cogens). G.P. Buzzini, “La “généralité” du droit international general: Réflexions sur la polysémie d’un concept”, rgdip, 108 (2004), 381–406; G.P. Buzzini, Le droit international général au travers et au-delà de la coutume, thesis, University of Geneva (2007); C. Tomuschat, “What is ‘general international law’” in Guerra y Paz: 1945–2009, Obra homenaje al Dr. Santiago Torres Bernardez (Universidad del País Vasco/Euskal Herriko Unibertsitatea, 2010), 329– 348; and R. Wolfrum, “General International Law (Principles, Rules, and Standards)”, in Max Planck Encyclopedia of Public International Law (2012). A/CN.4/659, Section iii C. As was stated in the fragmentation study, “there is no wellarticulated or uniform understanding of what [general international law] might mean. ‘General international law’ clearly refers to general customary law as well as ‘general principles of law recognized by civilized nations’ under article 38 (1) (c) of the Statute of the International Court.”

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45. The following conclusion is proposed on the use of terms, which can be developed as work on the topic proceeds. 2.

Use of terms. For the purposes of the present draft conclusions: (a) “customary international law” or “rules of customary international law” means the rules of international law referred to in Article 38, paragraph 1 (b) of the Statute of the International Court of Justice; (b) [“State practice” or “practice” …;] (c) [“opinio juris” or “opinio juris sive necessitatis” …;] (d) …

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Chapter 37

Hugh Thirlway, The Sources of International Law, 2014 Comment by Charles Shwenn, Intern, BIICL Hugh Thirlway began his legal education at John’ College, Cambridge before completing his Doctorat en Droit at the Université de Nancy. In 1968, he joined the staff of the Registry of the International Court of Justice (ICJ) and later ­became head of its Legal Department in 1987. He has taught international law at the Graduate Institute of International Studies, The Hague Academy of ­International law and is a Visiting Professor at the University of Bristol, Universiteit Leiden and Ludwig Maximilian Universität in Munich. Professor Thirlway’s The Sources of International Law was published in 2014 and, as the author acknowledges, undertakes the “immense”a task of providing an authoritative overview of the wide variety of teaching relating to international legal sources. The essential nature of international law, constructed as it has been on a piecemeal basis between states, has rendered the subject of the sources of international law contentious and complex. Acknowledging “the absence of certain familiar landmarks, and the presence of unusual features”,b Thirlway confidently navigates the intricacies of this area. He takes as a starting point the definition of the “formal sources of international law” contained within Article 38 of the Statute of the ICJ before discussing the wider debates that have arisen in relation to sources. The author characterises the salient debates in this area with clarity. The discussion of issues such as whether there are sources beyond Article 38,c how “treaty law” can properly be defined,d and understanding the “hierarchy of sources”,e are approached in a broad fact-based style which assists the reader in understanding the principles that govern the status of international legal materials. Where such clear definitional lines are either absent or obscured, a detailed overview of the relevant issues is offered.f Throughout the book, a H Thirlway, The Sources of International Law, (OUP 2014), Preface. b Ibid. c Ibid, 19–25. [Pages 988 to 994 in this Anthology] d Ibid, 44–52. e Ibid, 132–41. f See, for instance, discussion of alternatives to the traditional doctrine of sources at 198–229.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_038

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­ hirlway resists the opportunity to advance his own jurisprudential theories. T Instead, and to the credit of the work, an objective, critical analysis is undertaken in areas where there is little common ground. The experience of the author, the breadth of subject matter covered, and the empirical approach adopted in relation to areas of contention, all contribute to endow this work with an authority that secures its position as one of the definitive guides to understanding the sources of modern international law.

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H. Thirlway, The Sources of International Law (Oxford University Press 2014). Excerpt: Chapter 1, ‘The Nature of International Law and the Concept of Sources’, pp. 1–30. ­Reproduced with the kind permission of Oxford University Press.

The Nature of International Law and the Concept of Sources Hugh Thirlway 1 Introduction The concept of the ‘sources of law’ is frequently to be encountered in legal writing in the field of international law, and in the decisions of international tribunals. While at the level of the application of this system, that is to say in the direct relations and negotiations between States, the notion of sources is less visible, it nevertheless underlies any claim to a legal entitlement, and any complaint of a breach of international law. This is one way in which, considered from the standpoint of the systems of law in force in the various countries and regions of the world, international law is different. While it is no longer possible, as historically it once was, to suggest that as a system it does not deserve the name of ‘law’,1 the lawyer versed in one or more systems of domestic law may well be confused by the absence of certain familiar landmarks, and the presence of unusual features. The concept of ‘sources of international law’ is one of these, as is the very fact that international law, in its everyday application, appears to require such a concept, which does not normally need to be invoked in domestic (national) systems, though it is of course present there also.2 Even a definition of ‘law’ in the international context may not be an entirely simple matter; but let us offer a simple working definition for immediate purposes: it is, shall we say, a system of precepts governing relations between 1 Cf. H.L.A. Hart, The Concept of Law, 2nd edn. (Oxford: Clarendon, 1994), 213ff. 2 Cf. Hart., Concept of Law, 95 ff. Neither the term ‘sources’, nor the concept, is a familiar part of the everyday lexicon of English or American lawyers. In French legal terminology, the term source’se rapporte aux procédés de creation de règles juridiques’ for purposes of domestic law, but has a wider meaning for international law, covering ‘à la fois les modes de production normatifs (des règles generales, du droit objectif) et les modes de création de droits et obligations particuliers (du droit subjectif)’ (M. Kohen, ‘La pratique et la théorie des sources du droit international’, in Société française pour le droit international, Colloque de Genève (2004), 81 at 82). Another way of expressing the point is to observe that in domestic law, contracts create obligations but do not make law, while in international law, treaties are a source not merely of obligations but of law. See further Ch. 11 Sect. 1. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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a defined group of persons or entities (the ‘subjects’ of law), such that an act of compliance or non-compliance with those precepts involves certain consequences, which are independent of the will of the actor; this in the sense that the actor may choose to comply, or to refuse, in the knowledge and possibly with the intention that the appropriate consequence will follow, but is not free to choose whether or not the act will have those predetermined consequences.3 From where does international law derive its content and its authority? At the level of domestic law, questions of this kind rarely need to be posed, because the answer in most cases is evident. A fundamental element of a legal and social structure is a legislature, whatever particular form it may take. If the legislator has spoken, the result is (unless otherwise stipulated) binding law, to be observed by all persons present on the territory. The primary ‘source’ of law is thus the legislature. In some legal systems, there may exist also a body of law established over the years by decisions of the courts, not in application of legislation but of a body of ‘common law’ or ‘customary law’, and this too may be regarded as a ‘source’. Also absent from the international scene is any system of public courts, including a court of last resort, not only open to all members of the international community, but having compulsory and binding jurisdiction over each of them. The jurisdiction of the International Court of Justice (hereafter ‘the ICJ’) remains voluntary, even for members of the United Nations, who are as such parties to its Statute. There exists, however, a large and continually growing number of treaties, bilateral and multilateral, providing for each of the parties to bring a dispute with another party before the ICJ, or before another instance having powers of binding settlement. The details of international judicial and arbitral settlement of disputes are not here our concern: but the existence of dispute settlement mechanisms is in itself significant. All law has ultimately to be put to the test of ‘How would a court decide?’ (ubi judex, ibi jus), even when, as in the case of disputes between many members of the international community, there exists no mechanism for judicial examination and settlement unless and until the parties so agree. In the courtroom the question has to be ‘What is the law?’ and not ‘What ought the law to be?’4 3 It is in this sense that law is said to be ‘binding’, another slippery concept to define (Hart, Concept of Law, 216). Another way of looking at this aspect is with the idea of ‘authority’: see B.D. Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge: Cambridge University Press, 2010), 47 ff. See also the idea of ‘sanction’ in H. Kelsen, Allgemeines Staatslehre, French trans.: Théorie générale du droit et de l’État (Paris: LGDJ; Brussels: Bruylant, 1997), 11. 4 Similarly, when the ICJ was engaged in determining a territorial frontier, between El Salvador and Honduras, it rejected arguments based on El Salvador’s greater need for territory, due to

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At the international level, broadly speaking such a legislator and such a supreme court are thus absent; but law exists and is created or changed, and one way of expressing this phenomenon is through recognition of certain ‘sources’. The term itself has, however, become indissolubly associated with the theory of international law known as ‘positivism’,5 and with a special status attached to a particular international text: Article 38 of the Statute (the international convention) that created the Permanent Court of International Justice in 1920, a text that was re-enacted in almost identical terms in the 1946 Statute of that body’s successor, the ICJ. This text forms a convenient starting-point for study of the concept of sources; but that is not to say that the present work is necessarily imbued solely with a positivist spirit. Any theory of international law has to answer the same question: How do we know what is, and what is not, law, and how did this or that rule come to have that status? We shall examine at a later stage how some modern philosophies deal with the problem, and whether or to what extent this involves the notion of ‘sources’. Nor has Article 38 of the PCIJ and ICJ Statutes, in the years since 1920 and 1946, been universally regarded as the final and only definition of the sources of international law: indeed, we shall have to examine a number of contentions or proposals for a widening or even abandonment of the sources listed, or even of the concept of ‘sources’ itself. But these are best understood when confronted with the structure of legal thinking that underlay Article 38, or has developed around its terms. 2

Formal and Material Sources

The ‘source’ of a given precept is at once the historical basis; the manner in which that precept came into existence; and—more importantly—the answer to the question, Why is this a binding precept, which I must respect? For these three meanings two terms are generally used: the ‘formal source’ of a rule and its ‘material source’, but unfortunately they are not used entirely consistently by different writers. The important distinction for our purposes is between the place, normally a written document, where the terms of the rule can be found demographic pressures, and ‘the superior natural resources…said to be enjoyed by Honduras’; the Court observed that ‘the question is not whether the colonial province [that became El Salvador] needed wide boundaries, but where those boundaries actually were’: [1992] ICJ Rep 396, para. 58. See also Continental Shelf (Tunisial Libyan Arab Jamahiriya), excluding economic considerations from affecting the position of the boundary between two continental shelves: [1982] ICJ Rep 77–8, paras. 106–7. 5 For explanation, see Sect. 4.

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conveniently stated: this is the material source; and the legal element that gives to the rule its quality as law: this is the formal source. It is noticeable that the term ‘sources’ is sometimes used too indiscriminately: ‘Sometimes the word “source” is used to indicate the basis of international law; sometimes it is confused with the social origin and other “causes” of the law; at others it is indicative of the formal law-making agency, and at others again it is used instead of the term evidence of the law …’6 The distinction formal/material is directed to avoiding this confusion. It has been most clearly expressed perhaps in Oppenheim’s International Law, where the distinction is that the formal source is ‘the source from which the legal rule derives its legal validity’, while the material source ‘denotes the provenance of the substantive content of the rule. … [T]reaties are one formal source, and custom is another: thus, for example, the formal source of a particular rule may be custom, although its material source may be found in a bilateral treaty concluded many years previously, or in some state’s unilateral declaration.’7 It is also possible for a scholarly statement of a rule which has come to exist in State practice, but in an ill-defined manner, to constitute the material source, as being the best available enunciation or definition thereof; or of course, a rule may be advanced as one that would be desirable or useful, and subsequent State practice may conform to it. In either case, the formal source of the rule is custom, as explained in Section 3. The distinction is, as mentioned already, traditional; but the terms have been borrowed for the purposes of more contemporary views of the international lawmaking process. Thus, for example, one writer suggests a distinction on the basis that the term material sources refers ‘to all the moral or social processes by which the content of international law is developed (e.g., power play, cultural conflicts, ideological tensions), as opposed to the formal processes by which that content is then identified and usually modified to become law (e.g. legislative enactment).’8 Usages of this kind are, it is suggested, to be

6 D.P. O’Connell, International Law, 2nd edn. (London: Stevens & Sons, 1970), 7. 7 9th edn. by R. Jennings and J. Watts, Oppenheim’s International Law (Oxford: Oxford University Press), 23 §8. The distinction may perhaps be different for French writers: cf. Nguyen Quoc Dinh, P. Daillier, and A. Pellet, Droit international public, 5th edn. (Paris: LGDJ, 1994), 111 §59, using the term ‘sources formelles’ to mean ‘les fondements sociologiques des normes internationales, leur base politique, morale ou économique plus ou moins explicitées par la doctrine ou les sujets du droit.’; H. Thierry, ‘L’évolution du droit international’, 222 Recueil des cours (1990-iii), 30. 8 Samantha Besson, ‘Theorizing the Sources of International Law’, in S. Besson and J. Tasioulas (eds.), The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–85 at 170. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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deprecated, since whether or not the traditional doctrine of sources still has validity, its terminology has an established meaning, and it is the doctrine, not the terminology, that may be the target of re-thinking or redefinition.9 Less objectionable from this viewpoint, as not involving a redefinition of established terminology, is the distinction made by some writers in the context of sources between the negotium and the instrumentum. This distinction is normally (perhaps solely) relevant in the context of a written instrument as a source, e.g. a treaty: the norm, the obligation considered as an abstract entity, is the negotium; the written document in which it is set out is the instrumentum. The latter is the ‘container’; the former the content.10 3

Enumeration of the Recognized Formal Sources

Article 38, in the form in which it appears in the ICJ Statute, reads as follows: 1.

2.

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, estab­ lishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59,11 judicial decisions and the teachings of the most highly qualified publicists of the various ­nations, as subsidiary means for the determination of rules of law. This provision shall not prejudice the power of the Court to decide a case ex æquo et bono, if the parties agree thereto.

Although in form this is merely a directive to a particular international body as to what rules it is to apply, the opening phrase stating that the Court’s function 9

10

11

Note that this usage also does not reflect the possibility that the material source and the formal source may be unrelated, in the sense that, for example, a rule developed in ­customary law may be defined in the terms found in a treaty. The formal source is not necessarily the legislative culmination of the process referred to by the material source. See J. d’Aspremont, Formalism and the Sources of International Law (Oxford: Oxford University Press, 2011), 174–5, who emphasizes that ‘both the content and the container can potentially serve as a formal signpost that indicates whether the norm in question is an international legal rule’ (emphasis original). See further Ch. vi Sect. 2, in connection with the distinction in relation to soft law. Article 59 provides that ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’ Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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is ‘to decide in accordance with international law’ (which was in fact added to the Statute of the PCIJ when it was readopted as the ICJ Statute12) confirms that the application of sub-paragraphs (a) to (d) will result in international law being applied; i.e. that no international law is to be found elsewhere, and that everything pointed to as being such by those subparagraphs is indeed international law.13 This is qualified by the indication that judicial decisions and teachings are no more than ‘subsidiary’ sources; what this means will be examined at the end of this section. A different view has been advanced by Judge Shahabuddeen in his book Precedent in the World Court, that subparagraphs (a) to (d) of Article 38, paragraph 1, are not exhaustive of ‘international law’ as more generally referred to in Article 36, paragraph 2 (b). Since the Court’s function is ‘to decide in accordance with international law’, if a principle can be shown to form part of international law the Court must decide in accordance with that principle where relevant, whether or not it falls under subparagraphs (a) to (d) of Article 38, paragraph 1 … On that view, it is at least arguable that the Court is not prevented from discovering international law by other means if it can.14 The context makes clear that the ‘other means’ that Judge Shahabuddeen has in mind are the ICJ’s own earlier decisions, which, in his view, are not always and necessarily limited to the role of ‘subsidiary means’ for the determination of rules of law. This theory will be considered in Chapter V, Section 2(a); at this point we need only note that the more widely accepted view is that paragraph 1 of Article 38 lists exhaustively, if not the only existing sources of international law, at least the only sources available to the ICJ for purposes of decision. Each of these sources will require a chapter to itself, but some outline at this point of the nature of each, and how it operates, will be useful, as well as some reflections on the relations between them. Since the ICJ, and by implication each State as a subject of law, is thus provided with more than one source, more than one place to look for the law to be applied, the question also arises of the relation between them: the problem known as the ‘hierarchy of sources’. 12

13 14

Added at the San Francisco Conference on the proposal of Chile, in order to give a clearer picture of the Court’s mission as an international judicial organ. This text has been invoked in support of the holding that the existence of a dispute is ‘the primary condition for the Court to exercise its judicial function’: Nuclear Tests [1974] ICJ Rep 271, para. 57. Article 38 is often referred to as having this significance; see e.g. the reference in UNCLOS (the United Nations Convention on the Law of the Sea): see n. 21. Precedent in the World Court (Cambridge: Cambridge University Press, 2007), 81.

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Are the sources to be consulted in any particular order, and if an adequate rule is found in the first source consulted, does the quest for the applicable law stop there? Is there any order of rank: does a rule found in one source prevail over a rule found in another? And does the adoption by the international community, or simply by two or more States, e.g. by treaty, have an impact on any more general rule that then existed? These questions also will be examined more closely in Chapter VI. Without prejudicing that question of hierarchy, then, let us briefly consider the sources in the order in which Article 38 states them. Treaties and conventions are of course a major feature of international ­relations; their defining function is to impose agreed duties on the parties to them, though of course not every provision of every treaty plays this role. Such duties may be active—duties to take certain steps in certain situations—or ­restrictive—duties not to do certain things that they may otherwise be fully entitled to do. In this treaties resemble the contracts of private law, which similarly impose obligations; those obligations are not normally considered to be ‘law’ for the parties,15 but this linguistic difference relates to the essentially socially imposed, centrally determined nature of municipal law. The binding force of treaties rests on a principle usually expressed as pacta sunt servanda— what has been agreed to is to be respected.16 At this point we need not concern ourselves with the question where that principle itself fits into general international law: sufficient to note that if an agreement, as to what is to be done or not done in the future, could freely be departed from, there would be no point in making it. International custom is described in Article 38 as being ‘evidence of a general practice accepted as law’. This definition has been challenged, questioned, ridiculed, supported, and generally argued over ever since the PCIJ Statute was adopted; its adequacy will be considered in Chapter III. The idea is straightforward enough, and corresponds to a regular feature of national legal systems. At least in some fields, a practice of dealing with a particular matter or problem, affecting the interests of more than one subject of law, grows up because it presents advantages, or at least convenience, for both sides. At some subsequent moment there is recognition (not necessarily unanimous among those 15 16

But cf. Art. 1134 of the French Code civil, providing that agreements ‘tiennent lieu de loi à ceux qui les ont faites’. Even in a positivist approach, it does not, however, follow, as has been suggested, that the phrase implies that States are only ‘bound by the laws they have consented to’ (e.g. Besson, ‘Theorizing the Sources of International Law’, 165). The whole importance of the theory of custom is in establishing commitment without specific acceptance, while leaving room for specific rejection (the ‘persistent objector’: see Ch. iii Sect. 5).

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concerned, but at least widespread), that this has become the way to deal with that particular problem, so that, at least, the onus is on any participant in the matter to show why in this or that case some other solution should be adopted. Finally, it becomes recognized that the practice is binding, in the sense that any participant who wishes to depart from it can do so only with the agreement of any other actor or actors concerned. Thus the formula, according to one view, should rather be that the general practice is evidence that the rule it embodies is accepted as law. The general principles of law were included as a precaution. During the discussions of the Advisory Commission of Jurists that produced the original draft of the PCIJ Statute, the question arose whether international treaties and international custom would supply an answer to every legal question that might arise before the planned international tribunal; and if not, what was to be done about it. There was general agreement that one scenario that should be avoided if at all possible was that in which the new court would have to refuse to resolve a dispute brought before it on the ground that the applicable law provided no answer—what is technically known as a non liquet decision. Exactly what general principles may be invoked is controversial; what was originally envisaged seems to have been that a principle developed in national systems of law might be relied upon in an inter-State dispute which was in some way parallel to the circumstances of the national case; but we shall have to consider wider views that have been advanced.17 The jurisprudence of the two Courts has produced very little in the way of example, either of indication of such principles, or of a non-liquet. The judicial decisions and teachings of publicists are specifically stated to be invoked merely ‘as subsidiary means for the determination of rules of law’. This last phrase goes to the question of hierarchy of sources mentioned earlier: it is clear that the opinion of even the most highly qualified publicist cannot prevail over a rule clearly laid down in a treaty or established in customary law. They are also ‘subsidiary’ in another sense: they do not normally purport to be ultimate sources, but rather intermediaries. Neither a judge nor a scholar says ‘This is the law, because I say so’; they both lay down what they regard as established by one of the other sources, or (in the case of the scholar) what might be considered as lex ferenda—law that ought to exist. The paradox is, of course, that the ICJ will probably only be turning to the judge or the scholar because the Court has not succeeded in finding authority in one of the other sources. The point will be considered further in Chapter V. 17 Ch. iv Sect. 1.

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Each of these sources will be studied more closely in a separate chapter; but the brief outline here given will serve as basis for examination of some wider questions. 4

Nature and Operation of the Sources

It will be convenient to adopt two general assumptions, which may have to be re-examined later. First, that the existence and content of all international law is best understood in terms of the system by which the various principles and rules have established themselves, i.e. a system of sources.18 Some other recent theories will be considered in a later chapter; this is not to discount their possible importance, but the primary aim of this book is to convey an understanding of the traditional approach. Secondly, it is assumed here that the available sources are the same for all branches of international law, even though the extent to which each specific source (treaty, custom, general principle) has in fact operated in, or affected, that branch will vary, sometimes quite markedly. For much of the history of international law, these starting-points would have been widely accepted. More recently, however, attention has been called to the multiplicity of fields in which international law has branched out, or divided itself, and it is argued by some scholars that this ‘fragmentation’19 of international law means, among other things, that the traditional doctrine of sources

18

19

This was the starting-point for the United Nations Charter, the preamble to which declares the determination of the peoples of the United Nations ‘to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’ (emphasis added). See in particular J. Pauwelyn, Conflict of Norms in Public International Law (Cambridge: Cambridge University Press, 2001); A. do Amiral Júnior, ‘El “dialogo” de las fuentes: fragmentación y coherencia en el derecho internacional contemporaneo’, Revista Española de Derecho Internacional, 62/1 (2010), 61. Note also the Report of the ILC Study Group on the question, A/CN. 4/L682 (see Ch. iii, text and n. 49 [Editors’ note: not included in this Anthology]). It has been very well observed by Condorelli that much (if not all) of the fragmentation of international law emphasized by some scholars may in reality be attributable to ‘the fragmentation of the observing eye’: the ‘relentless expansion and diversification of international law are increasingly leading to specialization: international law practitioners tend to shut themselves up in the various sectors in which they work and to ignore all or nearly all of the others’: ‘Customary International Law: The Yesterday, Today and Tomorrow of General International Law’, in A. Cassese (ed.), Realizing Utopia: The Future of International Law (Oxford: Oxford University Press, 2012). For a cynical view of the responsibility of scholars for this phenomenon, see J. d’Aspremont, ‘Softness in International Law: A Self-Serving Quest for New Legal Materials’, 5 ejil (2008), 1075.

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is no longer adequate. Fuller examination of this contention must be reserved for a later stage (Ch. IX). It is perhaps when changes and developments are needed in a legal system that the concept of sources proves its utility. Law established by treaty can of course be modified by a further or supplemental treaty; in bilateral relations this will not normally cause problems, but the renegotiation of a multilateral convention is more complex, and a new or amending convention may have to await successive ratifications to become effective. Customary law is in this respect usually more flexible and responsive. A claim is made by a subject of law (a State, in the context with which we are concerned) that has not been made before. How are other States to react? And when they have reacted, what is the significance of their reaction for purposes of assessing the validity of that claim, and of similar claims that may subsequently be made? That this may be a problem, even in a system that has reached such a comparatively advanced stage of development as has modern international law, is demonstrated by the rapid changes in the law of the sea that have occurred since the middle of the last century. Up to, say, the end of the Second World War, the nature and extent of the claims that a State with a coastline could make over or in relation to the waters off its coasts were fairly clearly defined. As the technical possibilities of exploitation of the seabed advanced, and also under the influence of increased competition for fishery resources, increasingly extensive claims began to be made by coastal States. There was sufficient similarity or uniformity in the nature of such claims for a consistent practice to give rise to a development of customary law, which was reflected in the four Conventions on the law of the sea adopted at ­Geneva in 1958;20 further developments were similarly reflected, or extended, in the detailed provisions of the United Nations Convention on the Law of the Sea adopted at Montego Bay in 1982. The point of collision of State interests, both literally and figuratively, fell where the claims of one coastal State confronted or overlapped with those of another: where was the line to be drawn? It is significant that the negotiations leading up to the 1982 Law of the Sea Convention, which had successfully reconciled States’ interests to the degree that made possible detailed provisions on the territorial sea and the continental shelf (as well as such tricky questions as the position of archipelagic States), failed completely to resolve this crux. All that could be done was to include a

20

On the Continental Shelf, the High Seas, Fishing and the Conservation of the Living Resources of the High Seas, and the Territorial Sea and the Contiguous Zone.

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provision on delimitation drafted in such vague terms as to be almost a pious redundancy.21 As already observed, the concept of sources is primarily associated with legal positivism, of which the central tenet is that international law derives from the consent of the States that are its subjects.22 This consent has to be looked for either in treaties, where the consent of those who will be subject to the rule is direct and immediate, or in international custom, which reveals or embodies what the general community of States has consented to regard as required of each individual subject of law. Thus treaties and international custom are the two main sources of law; customary law may be found stated in opinions of scholars, or in decisions of international (or indeed national) tribunals, but these are not themselves sources. Another way of looking at the positivist or voluntarist approach is to see it as holding that the identification of a norm or binding rule of law within a given system—in this case, international law—is effected by reference to the origin of the rule, the way in which it came into existence. This is a familiar, if invisible, intellectual process in the context of national systems of law (what international lawyers refer to as ‘municipal’ legal systems): if national legislation, an act of a national parliament, lays down a rule of law, then that is an authoritative norm for the purposes of the national system. Whether it is a sound rule, a good or a just rule, is for this purpose irrelevant; presumably the legislature thought it appropriate to legislate to this effect because it was considered a sound rule, but its legal force does not depend directly on such intrinsic qualities. For those citizens (if there are such) who think it an unjust or inappropriate rule it carries exactly the same legal force and weight as for

21

22

UNCLOS, Article 83(1): ‘The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution’. A particularly clear account of this approach is given by Jean Salmon, ‘Le droit international à l’épreuve au tournant du XXième siècle’, Cursos Euromediterráneos Bancaja de Derecho Internacional 35 (2002). An extreme version of this approach was the Soviet theory of international law, of which little is heard nowadays. ‘The fundamental principle of this theory is that in an international system consisting primarily of sovereign and equal states there is no other means of creating rules of law binding upon these states except by the coordination of the wills of states regarding the contents of the rules and their recognition as legally binding’: Grigory Tunkin, in Festschrift für Stephan Verosta (Berlin: Duncker & Humblot, 1980), 67–77 at 69. The author recognizes that this theory is in effect taken from the pre-existing bourgeois theory, but is at pains to differentiate the two. See also this Chapter, n. 82.

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those who approve its enactment; and if circumstances change so that it becomes less appropriate, it nevertheless remains law until repealed.23 The underlying reason for this is less evident at the national, municipal-law level than it is in the context of international law. It is, however, at least one possible interpretation of national legal systems (though one that is less widely adopted today than in the past24) to say that the structure of government, including in particular the process by which laws are made, is established by a social contract, by the agreement of the governed. On that basis, a democratic national system of law may be deemed voluntaristic. Similarly, according to the positivist view of international law, it is the collective will of States, the members of the community regulated by international law, that underlies the law by which they are bound.25 The classic judicial statement to that effect is to be found in the judgment of the Permanent Court of International Justice in the case of the SS Lotus: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as ­expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.26

23 24 25

26

Subject to any provision in the relevant municipal system for expiry through obsolescence, such as the ‘sunset clause’ included in e.g. the USA Patriot Act, and similar provisions in legislation in a number of other countries. For a severe criticism of ‘the rigidity and narrow-mindedness of nineteenth-century positivism’ in an international law context, see O’Connell, International Law, i. 20. It has been objected that ‘the very idea of self-imposed obligation contradicts the implication of obligation that it is an imposition’: Anthony Carry, ‘Critical International Law: Recent Trends in the Theory of International Law’, 1 ejil (1991) 1, at p. 6, commenting on Kennedy, International Legal Structures. It is, however, evident that actors in a legal system (human beings) can and do accept obligations, i.e. commit themselves to behaviour that they would, but for the acceptance, have been free to leave undone. PCIJ (ser. A), no. 10 (1927), 18. For the relationship between this principle and the concept of non liquet, see Ch. iv Sect. 3. The passage has also been given an alternative interpretation as being less far-reaching than it might appear, and also as an obiter dictum not essential to the Court’s argument in the case: H. Lauterpacht, The Development of International Law by the International Court (Cambridge: Cambridge University Press, 1996), 359–61; A. Pellet, ‘Lotus: Que de sottises on profère en ton nom? Remarques sur le concept de souveraineté dans la jurisprudence de la Cour mondiale’, Mélanges en l’honneur de Jean-Pierre Puissochet (Paris: Pedone, 2008), 215–30.

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The point is of course clearest in the context of conventions and treaties, one of the recognized sources of international law, according to the classical conception of international law-making. If two States conclude a treaty obliging them to follow, in relation to each other, a particular course of conduct in defined circumstances, their subsequent legal obligation was created by the meeting of their wills: what is involved is a self-imposed limitation on the freedom of action of each.27 The same is equally true if the treaty in question is a multilateral one, with a great number of parties: the obligations imposed on United Nations Member States by the Charter are treaty obligations, freely accepted by each Member by the act of ratifying the Charter.28 The same principle also operates even if the parties to an instrument have deliberately left themselves freedom to manoeuvre, either by committing themselves in vague terms (such as undertaking ‘to use their best endeavours’ toward a particular end), or by employing a legal form less automatically binding than a treaty; these are varieties of what is known as ‘soft law’, to be discussed in more detail in Chapter VII Sect. 2. The second major generally recognized source of international law, international custom, is also derivable from, or attributable to, a voluntarist view. International customary law, as we shall see, comes into existence from a combination of two factors: State practice and a psychological element referred to as the opinio juris sive necessitatis, a Latin expression difficult to translate literally, but which signifies something like ‘a view that something is required by considerations of law or of necessity’.29 States choose to regulate their affairs in relation to other States in accordance with certain practices, or customs, which become—gradually or perhaps sometimes quite quickly—the established or recognized way of doing things, so that eventually it is tacitly agreed that departures from these practices are not automatically authorized, but require the assent of the other State or States concerned. At that point, a customary rule of law has become established, not just by repetition, but because repetition, and general or widespread participation, are taken to indicate the consent of those subject to the rule that it should be so.

27 28

29

For this reason, it has been argued that treaties are less a source of law than a source of obligations: see Ch. ii, text and n. 7. Many of the more general obligations are also matters of customary law, but that is because they were so prior to the adoption of the Charter, or have developed as such alongside—and partly under the influence of—the Charter, not because they are in the Charter. The precise role of considerations of necessity is difficult to pin down: see further in Ch. iii Sect. 2(c).

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This aspect is accentuated by the recognition of international lawyers that it may happen that one State (or a small group of States) with special interests or subject to special circumstances may make it clear from the outset that it or they do not consent to the growth of the customary rule; and in that event a State in that position will or may be exempted from the application of the new rule as what is referred to as a ‘persistent objector’.30 The recognition of this possibility emphasizes the consensual nature of custom. The function of sources in the international legal structure is to supply the rules of law that make up that system; if no source can credibly be cited for a rule that is claimed to exist, then the conclusion follows that the alleged rule does not exist. It is therefore important in each case to settle the question: what sort of rules are to be looked for—enabling or prohibitory? If the actions of a State are challenged as being contrary to international law, must the challenger show, by reference to the established sources, that there is a rule of international law with which those actions are inconsistent; or must the challenged State show, on a similar basis, the existence of a rule positively authorizing those actions? Or does the answer to this question depend on the area of law, or the type of rule, concerned? The classic approach to the matter invokes the decision of the Permanent Court of International Justice in the case of the ss Lotus, just cited. This approach, which was controversial even at the time, and in the context, of that decision, is that since ‘[r]estrictions on the independence of States cannot…be presumed’, in case of dispute it is the party arguing for such a restriction to establish that it results from a rule deriving from one of the recognized sources.31 A further nuance was, however, added by the ICJ advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo. In that case the UN General Assembly had asked for an opinion on whether the declaration of independence was ‘in accordance with’ international law; the Court noted that [t]he answer to that question turns on whether or not the applicable international law prohibited the declaration of independence. If the Court 30 31

See further in Ch. iii Sect. 5. This is often referred to as ‘the Lotus presumption’; however, it was powerfully argued by Ole Spiermann, in a comment on the Nuclear Weapons advisory opinion, that the PCIJ applied, not a presumption but a ‘residual principle’, a principle that applies in the absence of other rules; for the significance of the distinction see ‘Lotus and the Double Structure of International Legal Argument’, in Boisson de Chazournes and Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons (Cambridge: Cambridge University Press, 1999), 131.

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concludes that it did, then it must answer the question put by saying that the declaration of independence was not in accordance with international law. It follows that the task which the Court is called upon to perform is to determine whether the declaration of independence was adopted in violation of international law. The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away. Indeed, it is entirely possible for a particular act—such as a unilateral declaration of independence—not to be in violation of international law without necessarily constituting the exercise of a right conferred by it.32 This appears to recognize the existence of acts that are legally ‘neutral’; it does not seem possible to read the ruling as a finding of the existence of a permissory rule, since to do something which is permitted, and which cannot be ­objected to because it is permitted, is indistinguishable from the exercise of a right. Permissory rules do of course exist; but in most cases they will be found to correspond to the absence of a restrictive rule, or to the existence of a restrictive rule barring interference with the permitted conduct. Thus a State with a coastline may claim certain rights over the waters and seabed off its coasts;33 the ‘reflection’ of this is that other States are debarred by law from claiming rights inconsistent with those of the coastal State. In this connection, it has been argued that even if in principle a State has a right to do whatever is not specifically prohibited by international law, there is an ultimate limitation in that the ‘residual right does not extend to the doing of things which, by reason of their essential nature cannot form the subject of a right’; and the specific instance that gave rise to this reflection was the asserted right to possess and, if necessary, make use of, nuclear weapons.34 Here we may simply note this 32 [2010] ICJ Rep 425–6, para. 56. 33 Some of these are in fact attributed by law automatically, by virtue of the coastal position of the State, but for others, their assertion and their extent are determined (up to a recognized maximum) by the choice of the State, even though in practice every State claims 100% of its entitlement. 34 See dissenting opinion of Judge Shahabuddeen, Legality of the Threat or Use of Nuclear Weapons [1996-i] ICJ Rep 392 ff.: ‘actions which could destroy mankind and civilization and thus bring to an end the basis on which States exist and in turn the basis on which rights and obligations exist within the international community’. See also the suggested ‘distinguishing’ of the Lotus decision at p. 396.

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extreme case as showing that the Lotus principle of freedom of action by States does not necessarily lead to anarchy and disaster. At a fairly high level of abstraction, we may say that there are in fact only two bases on which a system of legal rules can be established. Either a rule of law can be demonstrated to be such on the basis of, as it were, its pedigree: it came into existence by one of the ways recognized by the legal system concerned as methods of law-creation, and this, as we have seen, is ultimately on the basis that those methods are consensual in origin. Or, alternatively, a suggested rule of law must stand or fall on its own merits, as devised to secure justice and in fact securing it (at least in foreseeable circumstances).35 At this point, however, an element of individual judgement, and thus of eventual controversy, enters into the discussion: who is to decide what rule secures justice? Who is to decide what is justice in particular circumstances? May a subject of law who disagrees with a rule, and considers it an unjust rule, be exempted from it? It is a truism that men and women of goodwill can come to radically different conclusions on matters that the law is or may be called upon to regulate. This is not to say (to revert to international law) that philosophies other than voluntarism are incapable of providing an adequate basis for the existence of legal rules in international society; but the system of international law as we have it today is, of course, a historical creation. Initially the dominant philosophy was that of natural law, the positivist view that succeeded it was, until comparatively recently, virtually unchallenged because it corresponded to the observable growth of, and change in, international law. Some alternative theories will be briefly discussed in Chapter IX. The third of the recognized sources of international law, however, remains to be briefly considered in this context: what is referred to in the Statute of the International Court of Justice as ‘the general principles of law recognized by civilised nations’ (Article 38(1)(c)). Does this source, in contrast to the two sources already discussed, give rise to law so qualified not by its ‘pedigree’ but by its intrinsic merits as directed to achieving justice? This question will be discussed in more detail in Chapter IV; there has in fact been some development with regard to the recognized scope of this provision. It may here be noted that the text does not refer to ‘general principles of law’ at large, but to those 35

It should not be overlooked that some rules of law exist simply because society requires that there be some rule in place, to prevent chaos, but the rule actually employed may be no more or less ‘just’ than any other that might be devised. The obvious example is the rule as to which side of the road is to be used by traffic in each direction. See also the use of a similar example by E.A. Roberts, ‘Traditional and Modern Approaches to International Law: A Reconciliation’, 95 AJIL (2001) 757, and the discussion of this in Ch. ix. [Editors’ note: not included in this Anthology].

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‘recognized by civilised nations’,36 i.e. solely or primarily those that have been found by States to be appropriate for recognition in their internal systems, and (by implication) accepted as suitable for international application. Here too there is a substantial consensual element. Whether or not one accepts the classic concept of sources, and in particular custom (involving State practice) as a source, there is much to be learned from observing what States in diplomatic exchanges assert to be their legal rights, or accept as their legal obligations, and the justifications offered for their positions.37 This practice rarely—if ever—throws light on States’ conceptions of how international law is made, beyond the assertion in a given dispute that a particular convention is governing, or that there is a clearly established customary rule in support of a position taken. In so far as it is a matter of record, it does seem that the debate proceeds most frequently on the basis of a classical conception of law as source-derived. While the same observation may be true of the decisions of international tribunals, in particular the ICJ, this fact is referable to the requirement of the Court’s Statute that the Court apply international law derived from the classic sources; and the language of judicial and arbitral decisions of course has an influence on the language of legal argument in disputes that, at least theoretically, may come to judicial determination. 5

Whose Law? States and Non-state Actors

The classic doctrine of sources was developed in the context of the Westphalian system of international law, in which the only subjects of international law, in the sense of those who at one and the same time were bound by it and

36

37

Objection has been taken to the expression ‘civilized’ (see e.g. the separate opinion of Judge Ammoun in the North Sea Continental Shelf case [1969] ICJ Rep 133–5) as implying that some ‘nations’ were regarded as ‘uncivilized’; but the distinction did make sense at the time (1920) it was originally drafted, and its intention may have been simply to define the type of principle contemplated rather than to classify individual States as more or less ‘civilised’: see further Ch. iv n. 8. [Editors’ note: not included in this Anthology]. It was even argued by an author hostile to the ‘classic’ conception of sources, McWhinney, that ‘The emphasis today has, in fact, shifted from the old neo-positivist insistence on closed, a priori, formal categories of “sources”, to a neo-Realist, Law-as-Fact, approach in which the enquiry, as to a claimed principle or rule of law, is directed to whether the parties involved, expressly or by their conduct, regarded the proposition concerned as normative and legally binding upon them.’: The International Court of Justice and the Western Tradition of International Law, Nijhoff 1987, p. 31. This seems perhaps an excessively voluntarist view.

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collectively created it, were States.38 By 1949, however, the ICJ could observe, with reference to the developing international system, that ‘The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends on the needs of the community.’39 As regards the United Nations Organization, the Court came to the conclusion that ‘the Organization is an international person’; that it was ‘a subject of international law and capable of possessing international rights and duties’.40 There was thus no longer any doubt that international legal personality was not confined to States, but was henceforth enjoyed also by international organizations of various kinds and dimensions. In the subsequent period, the concept has become recognized of ‘non-State actors’; this category, somewhat heterogeneous, and perhaps even not truly juridical, appears to comprise international organizations, trade associations, transnational corporations, and perhaps even terrorist groups and transnational criminal organizations.41 Individuals are also included; according to classical international law, they had no role to play: for example, injury to an individual by a State other than that of nationality could only be redressed if his national State chose to exercise diplomatic protection on behalf of its subject; and injury by the individual’s own national State was legally without significance.42 At the present time, the extent to which, and the way in which, a natural person may be a subject of international law is a developing issue, but the individual is no longer totally invisible on the international plane.43 Whether non-State actors are or are not to be defined as ‘subjects’ of international law is not a question that needs to be examined here.44 However, it was observed earlier that States used to have the monopoly of creation of the 38 39 40 41 42

43

44

With a few anomalous exceptions, such as the Order of St John. Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 178. Reparation for Injuries, 179. In this sense, Markus Wagner, ‘Non-State Actors’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012), vii. 742, para. 1. The legal philosophy of the monist Georges Scelle (1878–1961) was that the individual was the central element of public international law, which only existed through and for the individual (see his Précis du droit des gens (Paris: Dalloz-Sirey, 1932–4), and ‘Règles générales du droit de la paix’, 46 Recueil de cours 327 (1933)). A separate objection to the ‘legitimacy’ of international law is that its institutions ‘fail to take the legitimate interest of non-state individuals or groups seriously enough and often operate so as to threaten their welfare’; A. Buchanan, ‘Legitimacy of International Law’, in Besson and Tasioulas (eds.), The Philosophy of International Law (Oxford: Oxford University Press, 2010) 86. A distinction is currently drawn between the status of ‘active’ subject of international law (potential ‘créateur de normes’), and ‘passive’ subject (‘titulaire de droits’); it is generally recognized that the individual does at least have the latter status.

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law that bound them in their mutual relations. Does the significance now attached to some of these non-States include the possibility of participating in the making of international law, and if so, does our conception of the sources of law need to be adjusted accordingly? The influence of, for example, nongovernmental organizations (NGOs) in the codification of a number of areas of law has been very significant, when invited by States to participate in, for example, the Rio Process and the Earth Summit; and the text and adoption of the Rome Statute of the International Criminal Court owes much to NGO participation in the travaux préparatoires.45 The background to the two requests made to the ICJ in 1993–4 for advisory opinions on the legitimacy of nuclear weapons included a very active role for NGOs (approved of by some and deplored by others46). The outcome of processes such as these, however, has been, in the first example, an instrument of a treaty-nature, binding on States and other subjects of international law, and in the second an international judicial pronouncement, in each case in perfect harmony with Article 38, paragraph 1 (a), of the ICJ Statute. What might call for a reassessment of the doctrine of sources would be if the participation of entities of this kind in international life could be shown to operate in a more direct way, not through the intermediary of treaty, so as to suggest their participation in the creation of quasi-custom, or even some kind of law-making activity not fitting into the traditional categories. While some scholars consider that NGOs may contribute directly to the establishment both of practice and of opinio juris,47 the better view appears to be that their impact is on the limited level just described. But even if this view is correct, it does not call in question the role of custom as a source, or imply the existence of any additional source.48 A special case is that of the United Nations International Law Commission, charged, according to its Statute, both with making proposals ‘for the progressive development of international law’ and with selecting topics and making proposals for codification.49 It has frequently been remarked that the 45 46 47 48

49

See e.g. Philippe Kirsch and John T. Holmes, ‘The Rome Conference on the International Criminal Court: The Negotiating Process’, 93 AJIL (1999), 2. Cf. the opinions of Judges Oda and Weeramantry [1996-i] ICJ Rep 335–6 (Oda) and 438 (Weeramantry). e.g. I.R. Gunning, ‘Modernizing Customary International Law: the Challenge of Human Rights’, 31 Virginia Journal of International Law (1991), 211, 227–34, cited in Lepard, Customary International Law, 186. The position of d’Aspremont in this respect is obscured by his individual terminology: he speaks of activities that ‘generate communitarian semantics of law-ascertainment’ (Formalism and the Sources of International Law, 203–17 passim), the precise significance of which is, for the present writer at least, difficult to grasp. Statute of the ILC, Arts. 16, 18.

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­ ommission does not itself make this distinction clear in its work, and it has C itself in fact proposed its abolition.50 The presentation by the Commission of a field of law for purposes of codification may therefore incorporate rules that strictly have not yet attained recognition as such (or at least remain in a grey area). While the proposals made will normally result in a convention, and thus acquire, in terms of sources, a treaty-basis, in the meantime the authority of the Commission may give some weight or status to its travaux préparatoires. In the case concerning Application of the Genocide Convention, the International Court treated Article 16 of the ILC Draft Articles on State Responsibility as ‘reflecting a customary rule’,51 though there is some doubt whether the ILC itself regarded it as such.52 In view of the eminence of the Commission’s membership, this might, however, be classified as an example of the ‘teachings of the most highly qualified publicists’ under Article 38, paragraph 1(d)! More generally, however, an increased role of non-State actors in the development and operation of international law, which was at one time heralded as an imminent and desirable53 development, seems not to have come about, despite factors that may be resumed under the heading of ‘globalization’.54 At all events, there is no trace of a new legal philosophy empowering such actors to make a contribution in a form suggestive of the birth of a new source of international law, or a new, non-source-based theory of legal production. 6

Are there Additional Formal Sources, not in Article 38?

The enumeration of formal sources in Article 38 of the PCIJ Statute was ­presumably then regarded as complete, or sufficiently complete for the purposes of judicial settlement, which probably comes to the same thing. Whether or not it was so in 1920, it has since been questioned whether there may not 50 Report of the ILC, 48th Session (1996), A/51/10, paras. 147(a) and 156–9. 51 [2007-i] ICJ Rep 27, para. 420. 52 The Court did not, however, apply Article 16, but rather prayed it in aid for the interpretation of Article iii, paragraph 1(e) of the Genocide Convention on complicity in genocide. 53 But which may have a downside: some influential non-State actors have their own agenda, not necessarily in any sense benevolent: see Joyeeta Gupta, ‘The Role of Non-State Actors in International Environmental Affairs’, Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht (2003), 459–86, particularly 478ff. 54 See Nehal Bhuta, ‘The Role International Actors Other Than States can Play in the New World Order’, in A. Cassese (ed.), Realizing Utopia: The Future of International Law (Oxford: Oxford University Press, 2012), 61, and particularly 66–70. As Cassese points out in the same publication, ‘most non-State actors are only tangentially restrained by international rules’ and could with advantage be brought under their sway: pp. 675–6.

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be today other possible sources of international law. Presumably the International Court, whose powers are circumscribed by its Statute, would not be able to rely on these eo nomine; but it should not be overlooked that while decisions of international organizations (for example) are not listed in Article 38, this does not mean that the Court cannot apply such decisions in its reasoning. It must, however, be possible for the process to be analysed as the application of one of the named sources. As candidates for the category of unrecognized sources, a number of possibilities have been mentioned in the literature, but an overall study of the problem, published in 2000, will here be employed as a useful starting-point.55 The author enumerates the following possible sources: unilateral acts of States; acts of international lawmaking on the part of international organizations; and agreements between States and international enterprises. In a ­further category of what may conceivably be sources of international law are listed consent/consensus; international standards; the use of analogy as a source; decisions of international tribunals (these of course are already recognized as subsidiary sources in Article 38 para. 2 of the ICJ Statute); and some parts of natural law (the ius naturae). 6.a Unilateral Acts The well-known Nuclear Tests cases involved reliance by the International Court on a unilateral act by a State (an announcement by the French Government) as a basis for a legal obligation, and made no attempt in its judgments to link these with any recognized source of law.56 It is therefore tempting to see these cases as the unavowed recognition of a source outside the Article 38 enumeration. This is, however, by no means a necessary conclusion. The cases will be discussed further in the light also of the ‘Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations’, adopted by the International law Commission in 2006.57 The context chosen for that examination will be in connection with the ‘treaties and conventions’ of paragraph 1(a) of Article 38; the reason being (briefly) that it is here argued that what matters is acceptance by another State, that a unilateral act that prompts absolutely no reaction on the level of international relations is of no 55

56 57

Suzanne Kratzsch, Rechtsquellen des Völkerrechts außerhalb von Artikel 38 Absatz 1 ighStatut, Inaugural dissertation, Tübingen; Köhler-Druck, Tübingen, 2000. Another useful survey of the matter is that of Pellet, in A. Zimmerman et al. (eds.), The Statute of the International Court of Justice: A Commentary, 2nd edn. (Oxford University Press, 2012), sub Art. 38 paras. 87–110. A fuller account of the case will be given in Ch. ii, Sect. 4. See the Report of the ILC, 58th Session, A/61/10, pp. 369–81.

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legal relevance or significance. The Court had to close its eyes to this evident fact, for reasons—one might say—of judicial convenience.58 It makes better legal sense, as will be explained further,59 to see a unilateral act on the international plane as a sort of inchoate treaty, completed by subsequent events. The study of the International Law Commission is non-committal on the question of the source of the obligation.60 6.b Decisions of International Organizations If and to the extent that the taking of binding decisions by and within international organizations does not involve the exercise of powers conferred (ultimately or proximately) by treaty, this possibility is of course a delicate and highly relevant issue. However, if the constitutive treaty of the organization provides for certain decisions of defined organs to be binding on the member States, then their binding force is consensual, however unwelcome a particular decision may be to one or more Member States.61 In view of the reservation to the Security Council of Charter powers to take decisions binding on the M ­ embers, the question arises most specifically in relation to resolutions of the General Assembly. We are not here concerned with decisions concerning the internal operation of the Organization (for example, the adoption of the budget), but of decisions purporting to enact or to affect general ­international law. May these, and resolutions of similar bodies within other international organizations, rank as sources of law in their own right, and if so in what ­circumstances? There are situations in which for such decisions to have that status would seem to be a way of achieving some end generally regarded as ­desirable, as in the case of the numerous condemnations by the General Assembly of the South African regime and the position of South West Africa (Namibia) during the post-war period. However, to seek to promote General Assembly resolutions to the rank of a ‘source of law’ on this basis betrays a confusion of thought: as mentioned earlier, sources theory defines what 58

The care taken by the Court in those cases not to ask the applicant States for their reaction, presumably for fear that it would be unfavourable, means that this approach in casu involved certain jurisprudential gymnastics, but it is suggested that this fact does not compromise the principle of the quasi-treaty nature of such acts. See further in Ch. ii. [Editors’ note: not included in this Anthology]. 59 Ch. ii Sect. 4. [Editors’ note: not included in this Anthology]. 60 Except perhaps by implication in the use of the word ‘creating’ in the title of the study: see further in Ch. ii Sect. 4. [Editors’ note: not included in this Anthology]. 61 Thus the imposition of sanctions imposed by the Security Council is something ‘agreed to’ by the States affected, pace Pellet in Zimmerman et al. (eds.), The Statute of the ICJ, sub Art. 38, para. 99. An ‘act done under an authority contained in…a treaty’ derives its force from the treaty, even if that does not give the act ‘a treaty character’: cf. joint dissenting opinion of Judges Spender and Fitzmaurice, South West Africa [1962] ICJ Rep 490–1. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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­ rescriptions are law in terms of their origins, not of their desirability.62 The p ICJ did of course observe, in the Namibia advisory opinion, that ‘it would not be correct to assume that, because the General Assembly is in principle vested with recommendatory powers, it is debarred from adopting, in specific cases within the framework of its competence, resolutions which make determinations or have operative design’.63 This is sometimes read as a recognition of general dispositive powers in the Assembly; but as Pellet clearly demonstrates,64 the point was that the Assembly, representing for this purpose the UN as ­successor to the League of Nations in relation to the Mandate for South West Africa, had exercised the power to terminate the Mandate on the ground of persistent ­violations by the other party. This was not a q­ uasi-legislative power, but one conferred by the general law of obligations; the sentence quoted asserted simply that such a power was not excluded because the Assembly, as a constitutional matter, had only recommendatory powers. The decision was binding on South Africa, and on all other States that might be concerned, not as Members of the UN, but as international actors bound to respect an acte juridique properly performed by another international actor. It is also true that decisions of an organ of an international organization not having inherent binding force may in a sense acquire it through the acceptance of the decision by the State or States concerned, as in the example of the creation of jurisdiction through the acceptance by Albania of the Security Council recommendation in the Corfu Channel case;65 but this of course is simply an example of the consensual principle in action, and does not advance the discussion of the substantive point. In short, decisions of an organ of an international organization may be effectively lawmaking to the extent that the constituent treaty of the organization (or another treaty of similar ranking) confers power to make decisions binding on the member States, and of course subject to compliance with any restrictions or procedures laid down by the authorizing text. Their essentially treaty-law basis also determines to what extent such decisions can depart from or prevail over other existing legal rights and obligations, reserving (as always) considerations of jus cogens, or may detract from customary rules or rights. Any conflict with other treaty-rights or obligations is regulated by the provisions of the respective treaties, and in the case of the United Nations, this of 62 See this chapter, text and n. 35. 63 [1971] ICJ Rep 50, para. 105. 64 Pellet, in Zimmerman et al. (eds.), The Statute of the ICJ, sub Art. 38, para. 103. In the same sense, R. Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon, 1994), 26–7. 65 See Corfu Channel [1947–8] ICJ Rep 26; cited by Pellet (previous note). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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course signifies that the Charter, and acts based upon it, prevail (Art. 103).66 Beyond that, such decision cannot be regarded as an independent technique of lawmaking, thus a ‘source’ in our terminology.67 On the other hand, decisions of this kind, made by the General Assembly or, for example, human rights bodies, are of considerable importance for their contribution to customary law; and this aspect will accordingly be treated in Chapter III, devoted to custom (Section 2(d)). 6.c Agreements between States and International Enterprises The study already cited68 mentions these (Verträge zwischen multinationalen Unternehmen und Staaten) as a final category of instruments capable, it is suggested, of constituting a source of international law not included in the enumeration of Article 38 of the ICJ Statute. The agreements contemplated are apparently those referred to in the OECD declaration of 21 June 1976.69 It seems to be established that multinational corporations of this kind do possess, for some purposes, a degree of international legal personality;70 but whether this is essential for the agreements here considered to be regarded as a source is uncertain. In 1952, the International Court in the Anglo-Iranian Oil Co. case refused to see the company’s concession contract as a treaty between the United Kingdom and Iran for purposes of the term ‘treaties and conventions’ in the Iranian declaration of acceptance of jurisdiction;71 and the same decision would almost certainly still be reached today. For purposes of the present study, furthermore, it is probably sufficient to say that an agreement of this kind is undoubtedly a source of obligation (to recall a distinction already

66

There is a constitutional debate as to possible limitations on the powers of the Security Council where their use may conflict with other norms, which however need not be gone into here: see the discussion in A. Boyle and C. Chinkin, The Making of International Law (Oxford: Oxford University Press, 2007), 114 and 229–33. 67 In this sense the Report of the ILA Committee on the Formation of Customary Law, discussed in Ch. iii Sect. 2(c), §28 in fine, to the effect that ‘as a general rule’ General Assembly resolutions ‘do not ipso facto create new rules of international law’. 68 Kratzsch, Rechtsquellen des Völkerrechts. 69 Kratzsch, Rechtsquellen des Völkerrechts, 120–1; the Declaration does not in fact give a formal definition, but speaks of ‘companies or other entities established in more than one country and so linked that they may coordinate their operations in various ways’: OECD Guidelines for Multinational Enterprises, i. Concepts and Principles, para. 4. 70 For purposes e.g. of settlement of disputes in the context of the International Centre for the Settlement of Investment Disputes (ICSID): see e.g. the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States, Art. 25. 71 [1952] ICJ Rep 111–12.

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mentioned72), and to that extent within the scope of the pacta sunt servanda principle, but is so only for the parties. Whether for the State party it can be called a source of international law does not seem to be more than a question of terminology without further impact.73 6.d Other Proposals Turning to the less evident candidates suggested in the study referred to: analogy is well established as a method of legal reasoning, but it is difficult to regard it as a source. There are no principles or rules contained within ‘analogy’ itself; it serves as a lens through which to look at other fields of law—a conduit rather than a source.74 As regards judicial and arbitral decisions, it is possible to read paragraph 1(d) of Article 38 as referring solely to national court decisions (though this clashes with the reservation as to Article 59), and to regard decisions of international tribunals as a source without qualification. All that needs be added here to what has already been said on this is that they are not generally given that rank in subsequent international decisions; the matter will be considered further in Chapter V.75 Finally as regards ‘natural law’, this too probably only operates as a synonym for the ‘general principles of law’ recognized by Article 38, paragraph 1(c), and discussed in Chapter IV. The currently accepted system of sources is also often criticized for incompleteness, without a specific suggestion necessarily being made for an identifiable ‘new’ source. This is particularly likely to be based on the plethora of ­international ‘legal’ texts which to a greater or lesser degree regulate, or purport to regulate, State action: not merely conventions but resolutions, declarations, model codes, decisions, recommendations et hoc genus omne: it is d­ ifficult to find a term sufficiently all-embracing. It is against this background that Matthias Goldmann has presented his concept of ‘standard instruments for the exercise of international public authority’, which will be further considered in Chapter IX.

72 73

74 75

And see further Ch. ii, text and n. 7 [Editors’ note: not included in this Anthology]. See also Pellet in Zimmerman et al. (eds.), The Statute of the ICJ, sub Art. 38, paras. 84–6. A different question, which is of practical import and well known in commercial arbitration, is whether some ‘internationalization’ of the agreement protects the non-State partner from conduct on the part of the State as sovereign (e.g. new legislation) that would prejudice the performance of the agreement; but this is outside the scope of the present study. See Thirlway, ‘Concepts, Principles, Rules and Analogies: International and Municipal Legal Reasoning’, 294 Recueil des cours (2002), 267 at 287. Sect. 2(a).

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In theory, the ultimate basis for the legal authority of these, as already indicated, would appear to be ‘treaties and conventions’ and thus Article 38, paragraph 1(a) of the ICJ Statute, as they constitute different degrees of ‘delegated legislation’: the treaty empowers a governing body to take such action, that body resolves to authorize a commission to implement it, that commission adopts regulations, under which a decision is taken at some lower level, and that decision authorizes the issue of a notice…76 It would often be a wearisome task to trace such an instrument to its ultimate treaty-source; but it must always be possible to do so for the ultimate end product to have the force of ‘law’. The problem is familiar in the specialized field of European Community law, which recognizes a principle of ‘positive legality’ in this connection.77 It is only by such a ‘constitutionalization’ approach that one can find a firm basis for instruments of this kind consistently with the requirements of Article 38.78 This may not, however, be the whole of the story. It has also been pointed out that in some circumstances there may be such a thing as legislation by bureaucracy. It has been suggested that there is a possible movement towards limitation of State autonomy, even in the context of a regime established by non-binding instrument, through institutional ‘routine’, which signifies ‘the potential for reiterated interaction through which networks of specialized government officials, international civil servants and private actors establish common norms and identities—a process which may lead to even greater dissociation of the respective institutional bodies from the will and interests of state governments’.79 7

Religious Law as a Rival or Additional Source

As we have already observed, the unity and universality of international law implies that, unless the contrary can be shown, all subsystems or specialized 76

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For an extreme example, note the argument that States concluding a taxation treaty might be taken to have incorporated silently, not merely a Model Convention prepared by OECD, but also the Commentary published by OECD upon it: see Sjoud Douma and Frank Engelen (eds.), The Legal Status of the OECD Commentaries (Amsterdam: IBFD, 2008). See Armin von Bogdandy, ‘General Principles of International Public Authority’, 9 German Law Journal (2008), 1934–5. Bogdandy, ‘General Principles of International Public Authority’, 1936. Jürgen Friedrich, ‘Legal Challenges of Non-Binding Instruments: The Case of the FAO Code of Conduct for Responsible Fisheries’, 9 German Law Journal (2008), 1541; see also Touko Piiparinen, ‘Law versus Bureaucratic Culture: The Case of the ICC and the Transcendence of Instrumental Rationality’, in J. Klabbers and T. Piiparinen (eds.), Normative Pluralism in International Law: Exploring Global Governance (Cambridge: Cambridge University Press, 2013). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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fields of international law will operate on the basis that they derive their force from the established sources of Article 38 of the ICJ Statute. That universality also implies that, in principle, the individual legal, political, or religious system of a State does not impinge on its acceptance of, and compliance with, general international law. It is well established that on the international plane a State may not rely on the provisions of its internal law to evade its international obligations;80 while a State’s domestic courts may apply, or be obliged by internal law to apply, provisions of that internal law that are clearly not consistent with general international law,81 any deleterious effect that this may have on other States’ interests will raise questions of State responsibility—at which point, as already stated, the provisions of internal law afford no defence. A particular philosophy or religion existing within a given State may, however, be regarded as of such primacy as to be legally unchallengeable, to such an extent that the State will be reluctant to accept the principle just outlined, and will seek to regulate any conflict between its obligations under international law and the dictates of that philosophy or religion by allowing the latter to prevail. At one time this was, broadly speaking, the case as regards Marxism in the Soviet system. One aspect of this approach was the theory that, alongside general international law there existed a form of ‘particular international law’, socialist internationalism, which governed the relationship between ­Soviet bloc States, to the exclusion of conflicting rules of general law. This did not, however, mean a rejection of general international law as operative outside the Soviet system. The generally accepted doctrine of treaty and custom as sources was accepted, but customary law, because of its roots in the pre-Marxist past, was regarded as regressive, and as binding only by virtue of individual State consent. The collapse of the Soviet system has rendered these contentions largely obsolete.82

80 81

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It was stated by the ICJ as a ‘fundamental principle of international law that international law prevails over domestic law’: Application of the Obligation to Arbitrate under Section 21 of the UN Headquarters Agreement [1988] ICJ Rep 34, para. 57. This may cause complications if it is suggested that customary law is in the process of changing, and the courts of one or more States are, as it were, ahead of the trend; particularly if the constitution of the State concerned provides for the direct internal application of international law. See the position of Italy in relation to the law of State immunity in the case of Jurisdictional Immunities of the State, and the Reflection in the ESIL Newsletter (January 2013) by G. Cataldi: ‘The Implementation of the ICJ’s Decision in the Jurisdictional Immunities of the State case in the Italian Domestic Order: What Balance should be made between Fundamental Human Rights and International Obligations?’. But not entirely so, as the Marxist approach is still alive in e.g. China: on this and other aspects of the current situation, see Bhupinder Chimni, ‘Marxism’, in Wolfrum (ed.), Max Planck Encyclopedia, vii. 11, paras. 31–5. See also this chapter, n. 22. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Since the waning of the influence of the teachings of the Catholic Church on moral and legal concepts, it has become possible for at least half a century to say that international law is now free from any religious input—that it is ‘laicized’.83 There is, however, one system of law operating on a supranational or international level that presents problems that are not easily soluble by application of the principles just stated: Islamic law. This system is supranational of its nature, being addressed, as a minimum, to all who accept Islam, and supranational in its operation, being adopted and applied by a considerable group of sovereign States.84 Nor is it simply a question of belief or morals: the Shari’ah is a system of law.85 The potential for collision with general international law, at least as understood by lawyers of the Western liberal tradition, becomes evident when certain aspects of the Shari’ah are compared with particular norms of human rights law.86 The absolutist claims made for the Shari’ah also make it difficult to classify it as a form of local or regional customary law. The problem will be examined in more detail under the heading of ‘Human rights law’, in Chapter VIII. It is mentioned here because it is possible to see the intervention of the Shari’ah by Islamic States in controversies over their obligations under major human rights conventions, and even more so in so far as it is claimed that these obligations also exist—for all States—in customary law, as the assertion of the existence of a source of law not merely additional to the classical sources, but capable, to some degree, of overriding them. As will be explained, efforts are being made, particularly among Islamic States, to reach an accommodation on delicate issues (freedom of religion, rights of 83 84 85

86

See e.g. Guggenheim, ‘Principes de droit international public’, 80 Recueil des cours (1952i), 32; J. Salmon, ‘Le droit international á l’épreuve au tournant du XXIème siecle’, Cursos Euro-mediterrámeos Bancaj de Derecho Internacional (2002), 153–6. There are at the present time forty-three Muslim majority States, of which twenty-three have declared Islam as state religion: Niaz A. Shah, ‘The Use of Force under Islamic Law’, 24 EJIL (2013), 343 at 363. Two terms are used to refer to Islamic law: Shari’ah, which means ‘path to be followed’, and Fiqh, meaning ‘understanding’, a term used for the methods of Islamic law. For simplicity, Shari’ah will be used here without making this distinction: see Mashood A. Baderin, International Human Rights and Islamic Law (Oxford: Oxford University Press, 2003), 33. A delicate question is whether there is a divergence between the laws of war as understood in the Islamic world and in other nations: Mahmoudi, ‘Islamic Approach to International Law’, in Wolfrum (ed.), Max Planck Encyclopedia, vi. 390–4, paras. 21–43, suggests that this may have been so in the past, but no longer; in the same sense. Shah, ‘The Use of Force under Islamic Law’, 343. A different view is advanced by Andrew F. Marx and Naz K. Modizzadek, ‘Ambivalent Universalism? Jus ad Bellum in Modern Islamic Legal Discourse’, 24 EJIL (2013), 367.

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women), but the potential for disputes involving the question of principle remains, though unlikely, for jurisdictional reasons, to require judicial, and therefore authoritative, settlement. In its most extreme form, the view might be advanced that an Islamic State cannot be held bound to an international legal obligation that contradicts Islamic law; this is in fact implied in the constitutions of certain Islamic States.87 Does this amount to the assertion of the existence of an additional source of international law? If a constitutionally Islamic State becomes a party to a convention, for example a human rights convention, that imposes requirements incompatible with Islamic teaching, the implementation of the convention obligations might be challenged in the domestic courts of that State as being unconstitutional.88 The problem can be initially avoided as regards treaty obligations by accepting them subject to appropriately drawn reservations, and as will be explained, this has been done. It then arises at a second stage, however, if it is suggested that such reservations are invalid, as contrary to the object and purpose of the relevant convention. In its most acute form, it could result from an extension in this respect of the jurisprudence of the Loizidou and Bellilos cases before the ECHR, to the effect that an invalid reservation can simply be severed, leaving the State party to the convention unprotected by its reservation.89 This jurisprudence is now less favoured, and it is suggested that it should not be followed in relation to a reservation on such a sensitive and delicate point. If, however, it were asserted, for example, that for an Islamic State to authorize men only to practise polygamy was in breach of a customary rule of human rights law, and that State asserted the primacy for this purpose of the Shari’ah, on what basis could that assertion be upheld without doing violence to the recognized doctrine of sources? It is tempting to turn to the ‘general principles of law’ of paragraph 1(c) of Article 38; these are generally recognized to include the principles applied in municipal systems. However, as explained in Chapter IV, when transferred the international plane they undergo an internationalization, broadly substituting States for individual subjects of law, and operating by analogy. The fact that the domestic legal systems of a substantial group of States incorporate Shari’ah law is therefore not legally significant on the international plane.

87 88 89

See further in Ch. viii Sect. 2(c). [Editors’ note: not included in this Anthology]. See Shah, ‘The Use of Force under Islamic Law’, 343 at 363–4. See Ch. ii, text and note 32. [Editors’ note: not included in this Anthology].

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Is the Theory of Sources still Sufficient?

A major criticism of the traditional doctrine of sources is that it is no longer capable of accounting for, or regulating, the immense mass of q­ uasi-legislative activity that makes up the international law of which States must now take account in their day-to-day relations and activities. A categorization of the ­‘instruments by which international institutions exercise public authority’ would include, in descending order of degree of binding authority, ‘international treaties, periodic treaty amendments, decisions on individual cases with binding effect or decisions having the potential to become binding by way of domestic recognition’; ‘various types of soft, i.e., non-binding legal instruments’ including ‘product standards or codes of conduct’; ‘instruments containing non-binding rules that are foremost aimed at facilitating consultation, or soft private law instruments’; and ‘non-legal instruments that are devoid of any deontic elements, but nevertheless have a high legal or political impact on the effected policy area’, including such things as ‘reports on implementation and compliance’.90 Certainly the concept advanced by this author of a system of ‘standard instruments for the exercise of international public authority’, into which all these could be fitted in an orderly and consistent manner, is one highly to be recommended; but it does not—as the title of the article cited might lead one to suppose—involve a rethinking of the concept of sources. It is an essay in constitutional thinking, which does not necessarily involve abandonment of what are regarded as the bases on which the edifice must stand.91 Many modern theories ‘of’ international law are in fact not directed to the question to which the concept of sources was traditionally supposed to supply the answer, namely, why is international law binding upon international actors (primarily States), and how does it relate to the ‘sovereignty’ with which States are, equally traditionally, endowed? Answers to that question may be of two kinds: first ‘external’ justification, appealing to a standard outside and above sovereignty, primarily one of an ethical or divinely decreed nature, but possibly also based upon historical necessity. Secondly, ‘internal’ justification, whereby sovereignty is self-limiting, that its acceptance implies acceptance of its limitation to the extent that the sovereign entity abides by what it has agreed to, explicitly or implicitly.92 The problem of the first justification is that 90 91 92

M. Goldmann, ‘Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority’, German Law Journal (2008), 1866–908. See further Ch. ix Sect. 1(c). [Editors’ note: not included in this Anthology]. It is in this sense that the present writer understands M. Koskenniemi, ‘International Legal Theory and Doctrine’, in Wolfrum (ed.), Max Planck Encyclopedia, v. 979–80, para. 15.

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it implies, if not the existence and nature of a deity, a degree of shared recognition of the relevant ethical principles that is hard to come by—or a fragmentation of law in parallel to differences of ethical background. A number of present-day scholarly studies in international law bypass or set aside this problem, to concentrate, for example, on a more sociological approach: rather than ask why States are bound by international law, they ask how States see themselves as bound, and how they can best devise a system that satisfactorily integrates and co-ordinates their conflicting interests. At best, these plans have a certain unreality, given that the present system, with all its faults, is both an existing fact and the only vehicle for change; and they may even incur the charge of lack of realism or appropriateness to international society.93 Some studies of this kind will be briefly noted at a later stage (Ch. IX). One circumstance that has, it is suggested, cast doubt on the adequacy of the traditional concept of sources to comprehend modern international law in all its variety is the evident phenomenon, already noted, of the ‘fragmentation’ of international law, the appearance of more and more specialized areas of international law, to which—it is suggested—different rules apply than would be applicable in ‘mainstream’ international law.94 This phenomenon has been the subject of a very thorough examination by a study group of the International Law Commission.95 Do any of these special rules also purport to be based upon a source or sources other than, or independent of, the traditional triad of treaty, custom, and general principles? The study group did not tackle this question directly; it noted that ‘One aspect that does seem to unite most of the new regimes is that they claim binding force from and are understood by their practitioners to be covered by the law of treaties.’96 It therefore approached the matter adopting as ‘conceptual framework’ the Vienna Convention on the Law of Treaties. It did consider the question whether there was some exclusivity of the individual special regimes in relation to each other; i.e. whether each of them could be said to be self-contained, so that, for example, ‘[a] human rights body, for example, should have no business to apply a WTO 93 94 95 96

Some may remember the traditional tale of the man who discovered a miracle cure, but was unable to discover the corresponding disease. The term ‘fragmentation’ does have some question-begging implications, as a specialization may remain within the corpus of general law, rather than constituting a ‘fragment’ apart from the rest. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group, A/CN.4/L682. See further Ch. viii n. 5. [Editors’ note: not included in this Anthology]. Fragmentation of International Law, 15, para. 17.

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covered agreement’, and rejected this view.97 The group does not, however, ­appear to have thought worth examining any contention that a special regime might derive some of its rules from a non-traditional source. A number of subsystems will be studied more closely in Chapter VIII, where attention will also be paid to the idea of ‘special regimes’. 97

Fragmentation of International Law, 28–9, paras. 44–5, and 91ff., paras. 172ff.

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Chapter 38

Richard K. Gardiner, Treaty Interpretation, 2015 Comment by Jill Barrett, Visiting Reader in the School of Law, Queen Mary University of London The foreword to the first edition of Richard Gardiner’s Treaty Interpretation, published in 2008, begins: “This is a book I should like to have written”. Coming from Sir Michael Wood, this is high praise indeed. That it was amply justified is evident not only from the quality of analysis on every page, but also from the extensive impact the book has had. Its focus is the rules of treaty interpretation set out in the Vienna Convention on the Law of Treaties, Articles 31, 32 and 33, which Gardiner calls “the Vienna rules”. He examines how they were drafted, and how they have been applied in practice, both expressly and implicitly. As Wood wrote, “it contains enough theory to place the rules in context, … while remaining essentially a practical guide.” Gardiner was for a number of years a legal adviser in the UK’s Foreign and Commonwealth Office and with the Attorney General’s Office, before moving to the Faculty of Laws, University College London in the 1980s, where he became Professor of International Law. FCO legal advisers interpret treaties on an almost daily basis, applying the Vienna rules, but seldom is it necessary to provide a step-by-step account of the process of applying those rules and how they justify the result. One day, Gardiner was asked to provide such an account (by lawyers in another department whose minister wished to resist Gardiner’s interpretation of a particular treaty) and, as he set about doing so, he discovered that there was very little academic writing or judicial reasoning on the subject. His research on that occasion led to his writing ‘Treaty Interpretation in the English Courts since Fothergill v Monarch Airlines’ (1995) 44 ICLQ 620,a which laid the foundations for the book. Since Gardiner’s book, there has been an explosion of academic writings on this subject which owe a great deal to his study. Moreover, the International Law Commission has found it very useful, as evidenced by the numerous citations in Reports of the International Law ­Commission 2016 and in previous years in its work on treaties led by Georg Nolte. a This article was cited recently by the Scottish Appeal Court in William Begg v Her Majesty’s Advocate 2010 sccr 681, [2015] hcjac 69 HCA/2014/3408/XC. © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_039

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Treaty Interpretation has been cited by a number of courts and tribunals in their judgments, including the International Criminal Court,b several investment treaty arbitration tribunals,c and Australian courts, notably the Federal Court of Australia,d Australian High Court,e the Supreme Court of New South Wales Court of Appeal,f and the Administrative Appeals Tribunal of Australia.g In Li v Zhou [2014] the Supreme Court of New South Wales Court of Appeal made extensive use of Gardiner’s analysis in the way it systematically applied the Vienna rules to interpret the Torture Convention.h More typically however, courts and tribunals refer to the Vienna rules generally when interpreting treaties, or they pick out one or more aspects of the rules and highlight how that has guided their approach without systematically applying each stage of the rules. No doubt the second edition of Treaty Interpretation will receive even wider attention than the first, and will contribute to better understanding and use of the Vienna Rules. b The Prosecutor v Jean-Pierre Bemba Gombo, Aime Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidele Babala Wandu and Narcisse Arido – Consolidated Prosecution Response to the Defence Submissions on the Legal Elements of the Charged Offences and Modes of ­Liability – Office of the Prosecutor [2015] Int Crim C 684, ICC-01/05-01/13-1024 (22 June 2015). c For example, Venezuela US, srl v. Bolivarian Republic of Venezuela, Interim Award, July 26, 2016. 2013–34: Venezuela US, srl (Barbados) c Républica Bolivariana de Venezuela Caso cpa (Spanish only – uncitral arbitration at Permanent Court of Arbitration). d Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous Federal Court of Australia July 19, 2013 [2013] fcafc 75 2013 WL 3828803; and Qenos Pty Ltd v Ship apl Sydney, Federal Court of Australia September 25, 2009 187 fcr 282 2009 WL 3089125. e Bywater Investments Ltd v Federal Commissioner of Taxation High Court of Australia November 16, 2016 [2016] hca 45 2016 WL 6694292. f Li v Zhou [2014] nswca 176 (5 June 2014); and United Airlines Inc v Sercel Australia Pty Ltd Court of Appeal of the Supreme Court of New South Wales 5 March 2012 [2012] nswca 24 2012 WL 860909. g Bakelmun v Secretary, Department of Social Services Administrative Appeals Tribunal of Australia December 16, 2015 [2015] aata 969 2015 WL 9255321. h In Li v Zhou [2014], (nf), Gardiner, Treaty Interpretation (1st edn) cited in paras 20, 21, 22, 65.

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R.K. Gardiner, Treaty Interpretation (2nd edn, Oxford University Press 2015). Excerpt: Chapter 10, ‘Criticism, Themes, Issues, and Conclusions’, pp. 451–74, 483–6, 495. Reproduced with the kind permission of Oxford University Press.

Criticism, Themes, Issues, and Conclusions Richard K. Gardiner Criticisms of the Vienna rules—inadequacy of traditional analyses— originalist, constructivist, and evolutionary approaches—inconsistent and incomplete application of the rules—examples from particular ­regimes—conclusions [T]he structure of Articles 31 to 33 of the Vienna Convention has become the virtually indispensable scaffolding for the reasoning on questions of treaty i­nterpretation, and this despite the intention of the authors of the Convention that it should not establish anything like a hierarchy of rules.1 International law’s canon for interpreting international agreements is codified in the Vienna Convention on the Law of Treaties. Its provisions have become something of a clause de style in international judgments and arbitral awards: whether routinely and briefly referred to or solemnly reproduced verbatim, they are not always systematically applied. But a failure to apply the rules of interpretation properly may distort the resulting elucidation of the agreement made by the parties and do them an injustice by retroactively changing the legal regime under which they had arranged and managed their affairs.2 No claim can be made that the Vienna rules provide a comprehensive set of rules for treaty interpretation that will achieve uniform application and a single possible outcome in every case. At the very least, however, they ­offer a list of ingredients, a coherent structure, and some guidance on method. Yet increasingly abundant references to the Vienna rules are frequently not matched by use of them to engage with all the items mandated by the rules or are marked 1 H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989, Supplement 2006: Part Three’ (2006) 77 BYBIL 1, at 19; see also this and further studies reproduced in H Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford: OUP, 2013). 2 M H Arsanjani and W M Reisman, ‘Interpreting Treaties for the Benefit of Third Parties: The “Salvors’ Doctrine” and the Use of Legislative History in Investment Treaties’ (2010) 104 AJIL 597, at 598–9. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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by failure to deploy them in the proper manner. The result is that the case law displays such a disparate picture as to make criticism vulnerable to the very defects which so many of the judgments, awards, and decisions present – that is, the criticisms are based on an incomplete picture of how the rules should work. Criticism of the rules based on interpretations reached by inadequate application of them is directed at the wrong target. It is not the rules that are at fault but incomplete knowledge of their content and application. This chapter, nevertheless, picks up some of the criticisms and looks at the development of application of the Vienna rules, supplementing the study in Part II above with brief reference to theory, themes, and issues. The idea of looking beyond the Vienna Convention for the law of treaties has several distinct aspects.3 First, the law is not static. Several decades have passed since the time at which the Convention’s provisions were thought out. The rules of interpretation therefore now need to take into account more recent developments and difficulties, in particular those revealed by practice and case law. Second, the Convention did not provide a complete code covering all details of the law of treaties. Some parts of the law have proved to require more detailed consideration such as the rules on reservations and the distinction between reservations, interpretative declarations, and conditional declarations. Third, since the Vienna rules only provide basic guidance on interpretation, and principally what is to be taken into account rather than great detail of how interpretative elements are to be used, there is a whole further level of the interpretative exercise. It seems important to stress at the outset that the ILC in conceiving the Vienna rules on treaty interpretation never saw them as complete formulae in the sense of lists of ingredients to be used every time, still less as algorithms in the sense of sets of sequential instructions. Rather, the Commission saw them as key principles to be applied following their own inherent logic and on the basis of which interpreters would exercise their own skills of judgement, insight, and their experience of legal processes. In the light of these aims it is understandable that the Vienna rules were not made more extensive or more ambitious. While analysis of treaty interpretation, elaboration of theories, and identification of traits may prove helpful and revealing, that should not replace an understanding of the rules as a starting point and framework. General descriptions of approaches, such as ‘textual’, ‘teleological’, ‘purposive’, or ‘evolutionary’ are not, individually or collectively, a substitute for actual familiarity with all the elements of the rules and full use of them. However, these general descriptions of approaches to treaty 3 Cf E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford: OUP, 2011).

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i­nterpretation may help analysis and provide useful indicators of further topics for consideration, with emphasis on the proviso just noted. A further aspect of the development of study of treaty interpretation is the emergence of special fields, such as treaty interpretation in world trade law, human rights, international investment, tax, etc. Such is the extent of case law in these areas that there is sufficient to warrant complete books on treaty interpretation for each one.4 These provide excellent accounts of the subject with copious examples far beyond the scope of the present work. No attempt is made here to outline the issues specific to each subject area which this mass of case law raises. Some of it has been used to illustrate points in the preceding chapters. What is attempted here is to pick out some of the developments in these areas that illustrate aspects of the Vienna rules pertinent to criticism or explanation of them. The main themes of this concluding chapter are that: the Vienna rules provide a framework for interpretative reasoning for all treaties, even if they only take the interpreter part of the way; the more vague the wording of a treaty, the greater scope which the interpreter has to exercise discretion; such exercise of discretion needs to be based on a full understanding of all the rules and must be carried out in good faith. 1

The notion of ‘rules’ of interpretation

1.1 Reviewing ‘interpretation’ The process of interpretation is described above in Chapter 1 as ‘giving’ meaning to the treaty. This followed the firm rejection by Waldock of any notion that the process of interpretation is ‘a mere mechanical one of drawing inevitable meanings from the words in a text, or of searching for and discovering some pre-existing specific intention of the parties with respect to every situation arising under a treaty.’ ‘In most instances’, he wrote, ‘interpretation involves giving a meaning to a text’.5 The significance of ‘giving’ meaning rather than ‘finding’ meaning is twofold. ‘Finding’ meaning steers an interpreter towards scrutinising the text to 4 See e.g. I Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford: OUP, 2009); G Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: OUP, 2007); J R Weeramantry, Treaty Interpretation in Investment Arbitration (Oxford: OUP, 2012); N Shelton, Interpretation and Application of Tax Treaties (London: LexisNexis, 2004); F Engelen, Interpretation of Tax Treaties Under International Law (Amsterdam: ibfd Publications BV, 2004). 5 [1964] Yearbook of the ILC, vol. ii, p. 53, para (1): see Chapter 1, Section 3.6 above. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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discern a meaning within it. It also implies looking for the ‘original’ meaning. While both these elements play a part in the process envisaged by the Vienna rules, finding the meaning embodies a much narrower approach than that of giving a meaning to the text and does not accurately reflect the Vienna rules. This is, first, because the principles in the Vienna rules are not exclusively ‘textual’ in the sense of drawing meaning solely from the text, despite the epithet ‘textual’ being applied to them as adverse criticism.6 Second, interpretation is not a quest aiming to find the ‘original’ meaning, though in cases where such a concept is appropriate the Vienna rules include that possibility. Third, ‘giving’ meaning better reflects the process of interpretation because the skill of the interpreter lies in identifying the appropriate meaning through a range of elements which simply delving into the wording of the treaty may not yield up. Skills of assessment and judgement are required to weigh up the interpretative elements and to produce the proper outcome. 1.2 What can ‘rules’ achieve? Of the many criticisms which can be made of the Vienna rules some may be the result of false expectations raised by dubbing them ‘rules’. The nature and role of rules has been investigated both in the context of the WTO and more generally by Jan Klabbers.7 In part of the latter analysis he examines an assessment by H Jefferson Powell of the virtues required by judges and, in his summation, attractively concludes that ‘[w]hat matters is not virtuoso technique, but virtuous reading’.8 Recognizing a ‘morality of disagreement’, he approves an approach which engages in debate as part of ‘the art and politics of interpretation’: 6 The ILC used ‘textual’ to differentiate the approach in the draft articles from an unregulated search for intention, indicating an approach using the text as the starting point: see Chapter 1 above. [Editors’ note: not included in this Anthology]. 7 J Klabbers, ‘On Rationalism in Politics: Interpretation of Treaties and the World Trade Organization’ (2005) 74 Nordic jil 405, and J Klabbers, ‘Virtuous Interpretation’ in M Fitzmaurice, O Elias, and P Merkouris (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Leiden: Brill, 2010); see also J Klabbers, writing that ‘The main function served by the Vienna Convention’s rules, then, is as something of a battlefield: the continuation of politics by other means’, and ‘… rules on interpretation can do little more than set the outward parameters: certain things are not acceptable to begin with …’ . 8 Klabbers, ‘Virtuous Interpretation’ in M Fitzmaurice and others (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on, at pp. 34–6, citing, at p. 36, H ­Jefferson Powell, Constitutional Conscience: The Moral Dimension of Judicial Decision (Chicago: University of Chicago Press, 2008); on the moral dimension in interpretation of the ­European Convention on Human Rights, see G Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: OUP, 2007).

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This calls for rules on how to conduct the debate, of course, but rules of interpretation cannot play that role, for their main function is to stifle today’s debate in the name of yesterday’s (seeming) agreement.9 In his conclusions Klabbers emphasizes the significance of who constitutes the readership of texts and the importance of good faith in their approach to interpretation of them. In relation to the proliferation of third party determination of legal issues he states: Yet, curiously enough, with the creation of all those courts and tribunals, it would seem that the call for rules on interpretation has not diminished: quite the contrary, it has increased. … Any rule, any treaty, can be misread … this is also why the notion of good faith is included in the general rule on interpretation as laid down in article 31. It is perhaps time to re-discover this particular element of the rule: the reference to the virtues—the good faith—of the interpreter. This suggests that individuals should approach the interpretation of texts with humility, acquiescence, integrity and candour, as Powell proposes, rather than with the mechanistic sense of applying a rule as if it were mathematics.10 There is every reason to concur in the importance of debate to resolve disagreement, to doubt whether more rules would solve problems of how texts are read, to avoid mechanistic approaches, and above all to sustain the importance of good faith in leading towards virtuous interpretation. It is less clear that the ‘main’ function of rules of interpretation is to stifle debate, that there is actually a demand for more rules, or that a mechanistic approach (firmly rejected by the ILC) would, or could in any practical sense, prevail over, or act as a counterpoint to, good faith. Klabbers also points out ‘appeals to rules never settle a debate, but only begin the interpretative process that constitutes the international system’.11 This nicely captures the role of the Vienna rules in providing a starting point and framework for interpretation though at present,

9 10 11

Klabbers, ‘Virtuous Interpretation’, at p. 35. Klabbers, ‘Virtuous Interpretation’ in Fitzmaurice and others (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on, at p. 37 referring to H ­Jefferson Powell, Constitutional Conscience: The Moral Dimension of Judicial Decision. J Klabbers, ‘The Meaning of Rules’ (2006) 20(3) International Relations 295; see also J ­Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’ (2010) 23 Harv Hum Rts J 1.

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far from there being a demand for more rules, even the existing rules ones are sometimes briefly mentioned only to be incompletely used.12 As regards the role of ‘debate’ in interpretation, this is difficult to isolate from the individual circumstances in which a need for interpretation arises. Where there is an emerging difference of view between parties to a treaty, the most common treaty provision for initial resolution of differences actually favours debate, usually termed ‘negotiation’ in typical treaty language. However, this is far from the only circumstance in which a need for interpretation arises, unilateral interpretation being probably the most common (and most commonly uncontroversial). An interpreter may therefore need to gauge whether their perception of the meaning is likely to prove uncontroversial or, if not, whether an interpretation is likely to require negotiation, third party determination, or amendment of the terms of the treaty. In a general sense the role of debate in treaty interpretation may be more or less prominent depending on the view taken as to what a treaty is, or what the subject and content is of a particular treaty. McDougal’s concept of a treaty as ‘a continuing process of communication and collaboration between the parties in the shaping and sharing of demanded values’ greatly favours the ‘debate’ approach to interpretation.13 Philip Allott’s definition of a treaty as ‘a disagreement reduced to writing’ effectively emphasizes the potential need to resolve differences over interpretation.14 These descriptions may convey something of the reality of treaties; but a further reality is that states do regulate their conduct by application of established agreements, do generally seek to abide by their commitments in t­ reaties, and often do make provision in advance for resolving differences in current understanding of a treaty, or over their inclinations in implementing it, on the basis of what has been agreed in the past. There is a discernible difference between debate to ascertain what obligations are acceptable to both or all parties and interpretation to establish what is understood to have been agreed. R ­ educing the notion of international agreement to a continuing process of communication or just an ongoing debate would be to deny the idea of commitment and of a treaty itself. If the parties wish to develop new obligations, then they may 12

13 14

See, for example, Section 5.2 below; and see further M Waibel, ‘Uniformity versus specialization (2): A uniform regime of treaty interpretation?’ Chapter 13 in C J Tams, A Tzanakopoulos and others (eds), Research Handbook On The Law Of Treaties (Cheltenham: ­Edward Elgar, 2014), 386–88. See Chapter 2, Section 6 above; cf H G Cohen, ‘International Law’s Erie Moment’ (2013) 34 Mich J Int’l L 249, at 257; on this and the development of the Vienna rules, see further Klabbers, ‘Virtuous Interpretation’, at pp. 23–31. P Allott, ‘The Concept of International Law’ (1999) 10 ejil 31, at 43.

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decide to amend or terminate a treaty. If, however, they differ over the extent of obligations in an established agreement, or as to whether they wish to maintain it in existence, a realistic assessment of the interpretation to be placed on the treaty is necessary. The Vienna rules seek to provide some guidance on how to achieve this. Far from having a main function of stifling debate, the Vienna rules import the product of any such debate into the general rule of interpretation itself. A significant set of elements of the general rule, which is lost on many interpreters who go no further than the first paragraph of article 31, is the requirement to take into account agreements on interpretation and evidence of uniform practice amounting to agreement. Interpretative agreements between the ­parties are necessarily the result of negotiation or debate, while practice in relation to a problematic treaty provision may be the outcome of discussions leading to understandings on what practices to adopt in application of the treaty. Of course, where such agreements and practice take hold, third party dispute settlement is not engaged, which may explain why instances pointing up these elements of the general rule do not feature so greatly in studies of treaty interpretation. The current work of the ILC on subsequent agreements and subsequent practice in relation to interpretation of treaties may encourage greater familiarity with these parts of the general rule. As further evidence that the Vienna provisions on interpretation were not conceived as in any sense to be applied mechanistically or as if mathematical formulae, the views of the ILC itself bear repeating. Waldock, the principal architect of the rules, had himself emphasized earlier warnings against viewing treaty interpretation as a mechanical operation, concluding that: This is obviously a task which calls for investigation, weighing of evidence, judgment, foresight, and a nice appreciation of a number of factors varying from case to case. No canons of interpretation can be of absolute and universal utility in performing such a task, and it seems desirable that any idea that they can be should be dispelled.15 More specifically in relation to ‘rules’ he indicated that: …any ‘principles’ found by the Commission to be ‘rules’ should, so far as seems advisable, be formulated as such. In a sense all ‘rules’ of 15 [1964] Yearbook of the ILC, vol. ii, p. 53, para (1), quoting from and citing Part iii of the Harvard draft codification of international law in (1935) 29 AJIL Supp. 653, at 946, and see Chapter 1 Section 3.6 above.

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i­nterpretation have the character of ‘guidelines’ since their application in a particular case depends so much on the appreciation of the context and the circumstances of the point to be interpreted.16 Finally, provided the Vienna rules are understood and used in the manner in which they were designed to be, the result is not a mechanical approach to interpretation. It was the primacy of good faith which was one of the motivating factors in persuading the ILC to draw up the rules: [T]he Commission confined itself to trying to isolate and codify the comparatively few general principles which appear to constitute general rules for the interpretation of treaties. Admittedly, the task of formulating even these rules is not easy, but the Commission considered that there were cogent reasons why it should be attempted. First, the interpretation of treaties in good faith and according to law is essential if the pacta sunt servanda rule is to have any real meaning…17 2

Ambiguity and vagueness distinguished …texts can be either vague or ambiguous. … The two terms are sometimes used interchangeably, and, when this is the case, they both mark a general lack of what we might call ‘determinacy’ (or ‘clarity’ or ‘certainty’) of meaning. But the terms ‘vague’ and ‘ambiguous’ also have technical (or more precise) meanings, such that there is a real difference in their meaning.18

Good faith and fidelity to what the parties to a treaty have agreed must motivate the interpreter in using the available interpretative elements. However, treaty provisions vary in their formulation from the very general to the extremely particular. While the latter may contain more of their own ­interpretative solutions,

16 17 18

Extract from Sixth Report of Special Rapporteur (Waldock), [1966] Yearbook of the ILC, vol. ii, page 94, para 1. Commentary on draft articles [1966] Yearbook of the ILC, vol. ii, pp. 218–19, para (5). L B Solum, ‘The Interpretation-Construction Distinction’ (2010–2011) 27 Const Comment 95, at 97 (footnote omitted); see also L B Solum, ‘Originalism and Constitutional Construction’ (2013–2014) 82 Fordham L Rev 453, and S T Helmersen, ‘Evolutive Treaty Interpretation: Legality, Semantics and Distinctions’ (2013) 6 European Journal of Legal Studies 127, at 142–44.

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the former may benefit from analysis somewhat analogous to that applied to national constitutions. For example, as a prelude to investigating ‘originalist’ and ‘constructivist’ approaches to interpretation of constitutions, Professor Solum defines certain terms.19 The first distinction which he makes is between ‘ambiguity’ and ‘vagueness’.20 This may be useful in the context of treaty interpretation, though perhaps in a different way from that of its application to constitutional interpretation. In Professor Solum’s usage ‘ambiguity refers to the multiplicity of sense’ or, as expressed in one of the dictionary meanings, ‘capability of being understood in two or more ways’.21 He explains vagueness as ‘the existence of borderline cases: a term is vague if there are cases where the term might or might not apply’.22 The example which he uses of the former (ambiguity) is ‘cool’, with two substantial uses denoting temperature or a certain relaxed style. ‘Vagueness’ is exemplified by ‘tall’, for which the starting point is indeterminate (though the context may provide a rough indication). Professor Solum notes that a word or phrase can be both vague and ambiguous, ‘cool’ being ambiguous as described above, but when used of temperature it is also vague.23 The other pair of preliminary definitions given in the same study contrasts ‘semantic content’ and ‘legal content’. Semantic content is described as ‘the linguistic meaning of the text’ whereas the legal content is the effect or doctrines which the words or provisions produce.24 An example is the US constitutional provision that Congress shall make no law abridging the freedom of speech. ‘Freedom’ has a readily identified semantic meaning, but its legal content is what has led to a number of doctrines such as that forbidding prior restraint of utterance or publication. ‘Prior restraint’ is not present in the words of the text but principles precluding prior restraint in most circumstances have been

19

20 21 22 23 24

L B Solum, ‘The Interpretation-Construction Distinction’ (2010–2011) 27 Const Comment 95; see also L B Solum, ‘Originalism and Constitutional Construction’ (2013–2014) 82 Fordham L Rev 453; for general material on the originalist and constructivist debate, see Solum, ‘The Interpretation-Construction Distinction’, at 95, note 1 and G Letsas, ‘Intentionalism and the Interpretation of the ECHR’ in Fitzmaurice and others (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on, at 258. At 97–98. Oxford English Dictionary, meaning 3.a. L B Solum, ‘The Interpretation-Construction Distinction’ (2010–2011) 27 Const. Comment 95, at 98, footnote omitted. Solum at 98; it can also be noted that ‘tall’ could likewise be described as ambiguous as well as vague, though there is little risk that a ‘tall story’ will be taken as having anything much to do with height. Solum at 98–99.

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found to be the legal content of the regime envisaged by the constitutional provision.25 Put another way: Legal interpretation turns a semantic ‘text’ into a legal norm… The semantic meaning of a text is the totality of all meanings that may be attached to the language in question (the public language) or in the private lexicon of the text’s author (the private code). To interpret a text is to choose its legal meaning from among a number of semantic possibilities—to decide which of a text’s semantic meanings constitutes its proper legal meaning. The semantic meaning of the text determines its semantic ­potential …. The legal meaning carries this potential into practice.26 The definitions given above lead to development of the argument that interpretation is what yields semantic content and recognizes or discovers the ­linguistic meaning, while it is construction which determines legal content or legal effect. The further idea is that ambiguity ‘characteristically can be resolved by interpretation’, although evidence from the context may not always achieve this resolution.27 Construction, however, goes further by (in ­paraphrase) elaborating or extrapolating from the semantic meaning the rules or regime which can actually be applied.28 The immediate significance for treaty interpretation of this careful labelling of features of interpretative circumstances lies in its implication that the modus operandi may have to vary according to the particular treaty. A human rights treaty formulating rights in very broad terms is quite different from an agreement specifying in minute detail how taxation is to fall upon those engaged in international activities. This is not a matter of categorizing types of treaties so much as looking at how their provisions are formulated. In somewhat different terms, the ICJ has shown signs of an approach based on the way a treaty is drafted by adopting the concept that some terms in treaties are to be taken as ‘generic’.29

25 26 27 28 29

Solum at 99–100. A Barak, Purposive Interpretation in Law (Princeton: Princeton University Press, 2007), 6–7 (footnote omitted). Solum, ‘The Interpretation-Construction Distinction’, at 102. Solum at 102 et seq where the theory and analysis is applied particularly to constitutional construction. See Section 4.1 below, and P Merkouris, Article 31(3)(c) of the VCLT and the Principle of Systemic Integration (Ph D Thesis, 2010) pp. 97–8 and 114–21; .

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Discussion of approaches to US constitutional interpretation offers a further parallel. This is the contrast between the approach of ‘originalists’, who look for the original intention of the constitution’s framers, and that of ‘living constitutionalists’ who consider that the constitution should be interpreted in the light of developments up to the moment of interpretation.30 This suggests comparison with the issues of time in treaty interpretation, the intertemporal law, and evolutionary interpretation.31 The general point here is that as regards the life of a treaty, the Vienna rules envisage taking into account a range of elements, potentially extending from before its birth to the moment of interpretation, though with some differentiation in the value to be attributed to the various elements. In treaty interpretation it is not a firm dichotomy between original intention and living i­nstrument strategies. The rules allow for a more bespoke approach. The treaty itself may steer the interpreter in one direction or another. The use of preparatory work, though supplementary rather than part of the general rule, extends from assisting a general understanding, through a very wide notion of ‘confirming’ meaning, to a much more closely conditioned role of ‘determining’ meaning. The reality, however, is that the interplay between the elements of the general rule and supplementary means may depend on the strength and clarity of the one or the other, as may the interplay between the elements of the general rules itself. A good example of this is the rule that abstentions by permanent members of the Security Council on non-procedural matters, matters which require their ‘concurring’ votes, are not treated as non-concurring. The records show that in the negotiation of the Charter of the UN the question was raised whether the abstention of any one of the permanent members would have the same effect as a negative vote by that member in preventing the Security Council from reaching a decision on such a matter.32 The answer took the somewhat oblique angle along the lines that permanent members could not be expected to assume obligations to act in serious matters of international peace and security in consequence of a decision in which they had not concurred, but a proposed amendment that might have clarified the matter was not adopted.33 30 31 32 33

L B Solum, ‘The Interpretation-Construction Distinction’ (2010–2011) 27 Const. Comment 95, at 130. See Chapter 1, Section 3.5, and Chapter 7, Sections 1.1 and 1.2 above [Editors’ note: not included in this Anthology] and, on evolutionary interpretation, Section 4 below. S A Tiewul, ‘Namibia and the Unanimity Principle in the Security Council: Is Abstention a Concurring Vote?’ (1974) 11 U Ghana LJ 20, at 24–5. Tiewul, ‘Namibia and the Unanimity Principle in the Security Council’ (1974) 11 U Ghana LJ 20, at 25–26.

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How the practice developed a clear interpretation from qualified reception initially to unchallengeable acceptance, and the relevant dynamics in both Security Council and among the general membership of the UN, has been well described.34 Evaluating a clear practice as set against an unclear intention in the preparatory work is by no means uncommon in treaty interpretation. 3

‘Textual’, ‘teleological’, ‘seeking intention’, and other approaches

The dominant analysis of treaty interpretation when the Vienna rules were being drawn up still holds sway in several writings although with some reformulation and additions. Analysis tends to identify underlying theories, bases or trends such as ‘textual’, ‘purposive’, ‘evolutionary’, etc. Sometimes these are brought to the forefront in the practice of certain courts and tribunals, the Vienna rules being merely mentioned as a waypoint to freer pastureland. The three most common approaches are described in terms such as ‘textual’, ‘teleological’, and ‘seeking intention’, though the latter two are perhaps better indicated by Pauwelyn and Elsig in terms of ‘underlying objective’ and ‘party intent’.35 These descriptions are apt because they indicate more closely the ­approaches sometimes taken in substitution for the Vienna rules or where ­application of the rules is limited to the first paragraph (or parts of the first paragraph) of the general rule. In their analysis of what international tribunals actually do when interpreting treaties and how their behaviour can be explained, Pauwelyn and Elsig provide useful insights into what can look like interpretative choices as presented by courts and tribunals. They offer ‘a taxonomy of the most important and most commonly discussed choices of interpretation techniques that tribunals must select from’, well described in question form in the largely s­elf-explanatory headings of Part II of their study: A. The Dominant Hermeneutic: Text, Party Intent, or Underlying Objective? B. Timing: Original or Evolutionary Interpretation? C. Activism: Work-to-Rule or Gap-Filling Approach? D. Case-by-Case Analysis or Rule of Precedent? E. Linkage: Self-Contained or Systemic Interpretation?36 34 35

36

Tiewul, at 26–35 and 40, fn 71. J Pauwelyn and M Elsig, ‘The Politics of Treaty Interpretation: Variations and Explanations across International Tribunals’, Chapter 18 in J L Dunoff and M A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge: CUP, 2012), 450. Pauwelyn and Elsig ‘The Politics of Treaty Interpretation’, 449–59.

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The authors’ identification of these ‘interpretative choices’ is to set the frame for seeking explanations of how and why international tribunals opt for one approach rather than another. This is a challenging exercise in which the dynamics at work are explained and shown in schematic forms. This exercise is not further explored here, but the classifications of choice and the examples which the authors give do usefully prompt some questions as to whether courts and tribunals have grasped how the Vienna rules were designed to work. The general rule is emphatically not à la carte as is suggested by the idea of these questions as encapsulating ‘interpretative choices’ among techniques. The scheme of the Vienna rules envisages that all the elements of the general rule present in any particular case are to be weighed up together and against one another. Even if one looks at the first paragraph of article 31 separately, as does heading A, in the Vienna rules the ordinary meaning of a treaty term is to be identified in the context and in the light of the treaty’s object and purpose, rather than programming any one of these elements as the dominant force. Similarly, ‘timing’ in the sense of selecting original or evolutionary interpretation in heading B, although it receded behind the veil when article 31(3) (c) was winnowed down to its present form, was left in the Vienna rules to be identified by full interpretation of the treaty. A complete application of the Vienna rules is a process which could take into account considerations such as whether it involved a one-off transaction, long-term expectation of continuing application and development, drafting in terms which are generic and would inevitably need elaboration, etc. However, these factors should not be evaluated as if a choice between two strategies. They are contained in the general rule. There are increasing indications from the ICJ that no a priori restrictive or expansive approach is appropriate, contrary to what is implied by heading C. The individual treaty itself postulates the proper course to adopt through the assessment of factors (including ones such as those just mentioned).37 In terms of the Vienna rules, heading D’s choice between a case-by-case ­approach and one of precedent resolves itself in different senses. A treaty governing the work of a court or tribunal may direct that a case has binding effect only on the parties in the particular case; but this leaves open whether judgments, decisions, and awards may constitute practice amounting to agreed 37 See Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) [2009] ICJ Reports 214, considered in Chapter 8 Section 4.5.4 above, and, with a more specific link to context and object and purpose, Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment of 31 March 2014, para 58, where the ICJ stated: ‘Taking into account the preamble and other relevant provisions of the Convention referred to above, the Court observes that neither a restrictive nor an expansive interpretation of Article viii [the provision in issue] is justified’.

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i­nterpretation as envisaged by article 31(3)(b) of the Vienna Convention if there is sufficient unopposed repetition in a system of independent adjudication accepted in advance by the parties to a treaty. Similarly, the response to heading E is that this is the element addressed in article 31(3)(c), and thus to be taken into account in combination with the other elements of the general rule. A particular aspect of the question in this last heading is the extent to which the Vienna rules mandate reference to other international obligations (that is those under other treaties).38 While article 31(3)(c) is the only direct indication of a link to be made to other treaty obligations in the interpretative process, further possible avenues of approach may be open. The simplest is where the treaty itself makes a direct reference to another one. A second possibility is that one or more terms in issue are such as to have an ordinary meaning which it is appropriate to select because of its established use (particularly if frequent) in other treaties. In some circumstances the object and purpose may also point to a link.39 The significance of these possibilities is that they show how it is the full range of elements present in relation to each particular treaty which guide the interpreter, not a general choice of some predominant means. Although not aiming at analysis of the Vienna rules, Pauwelyn and Elsig do actually show how tribunals have often misunderstood the rules. They describe the Vienna Convention as offering two main principles: The first is that treaties must be interpreted in ‘good faith,’ in accordance with the ‘ordinary meaning’ of the ‘terms’ or text of the treaty, in their ‘context,’ and in light of the treaty’s ‘object and purpose.’ [fn citing Vienna Convention] This summing up of text, context, and purpose is described as a holistic, non-hierarchical exercise, albeit one that starts with the text of the treaty (Abi-Saab 2010). The VCLT’s second main principle is that the ‘preparatory work of the treaty and the circumstances of its conclusion’ are only secondary sources of interpretation to confirm meaning established under the first principle or in case the meaning of the treaty remains unclear or leads to an absurd result. [fn citing Vienna Convention, article 32]40 38

39 40

Cf A van Aaken, ‘Defragmentation of International Law through Constitutional Interpretation: A Methodological Proposal’ (2009) 16 Indiana Journal of Global Legal Studies 483, at 495–98; and see Chapter 7, Section 3.2.2 above. [Editors’ note: not included in this Anthology]. For examples of the various possibilities, see van Aaken, at 495–96. Pauwelyn and Elsig, ‘The Politics of Treaty Interpretation’, at 448; the work cited in the quotation is G Abi-Saab, “The Appellate Body and Treaty Interpretation,” in Fitzmaurice and others (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on, 99–109. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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This analysis suggests undue limits to the material to be taken into account in treaty interpretation and unbalances the elements of the process encapsulated in the rules. Describing article 31(1) as the first of two ‘main’ principles, and as the second that preparatory work and circumstances of conclusion are only ‘secondary sources’ of interpretation, omits from the set of rules subsequent agreement and practice constituting agreement (both ‘authentic’ means of interpretation in the ILC’s view), leaves out the role of rules of international law applicable in the relations between the parties, ignores special meanings, and omits the role of supplementary means specifically ‘to determine’ the meaning when the itemised preconditions are met. In the latter instance, where supplementary means ‘determine’ the meaning, preparatory work and circumstances of conclusion are clearly not ‘secondary’ but predominant. Taken collectively, the interpretative choices which Pauwelyn and Elsig identify are essentially in harmony with, and substantially contained within, the Vienna rules, but only if rolled up into evaluation of all the elements in the rules. Where courts and tribunals adopt just one of the choices—that is, selecting one element of the Vienna rules to the exclusion or automatic relegation of others—they have effectively abandoned the rules or fallen prey to the temptation of ‘excessive molecularization’.41 It is the case, however, that the rules only gently hint at the proper method of their deployment, necessitating an act of interpretation to that end. There is, therefore, the resultant requirement of judgement to take the interpretative exercise to its conclusion in each case; but without proper consideration of all the elements in the rules, the foundation for the exercise of discretion and judgement is not laid. 3.1 ‘Textual’ does not mean ‘literal’ and is an unhelpful label A major criticism of the Vienna rules, most prominently advanced by Professor McDougal at the Vienna Conference and in his other writing, was that the proposed rules were highly restrictive, with what he described as an ‘insistent emphasis upon an impossible, conformity-imposing textuality’.42 Some have seen the rules as including a ‘literal’ approach to interpretation, even if combined with other techniques.43 Such views are ill-founded. The ILC, in its work on the draft rules, used the term ‘textual’ to indicate that the text was to be taken as an authentic 41 42 43

See warning in introduction to Chapter 5 above. [Editors’ note: not included in this Anthology]. M S McDougal, ‘The International Law Commission’s Draft Articles upon Interpretation: Textuality Redivivus’ (1967) 61 AJIL 992. See e.g. G G Lawrie, ‘The Application and Interpretation of the Vienna Convention on the Law of Treaties’ [1972] hklj 261, at 274. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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e­ xpression of the intention of the parties and that, consequently, the text was to be ‘the starting point of interpretation’ rather than ‘an investigation ab initio into the intention of the parties’.44 As Letsas notes: ‘There are no general theories of textual interpretation.’45 He rightly indicates that ‘textualism is an unfortunate label to the extent that it advocates strict interpretation in order to avoid recourse to extra-textual arguments.’46 The Vienna rules themselves clearly include a range of elements going beyond the text of the treaty itself. ‘Context’ is defined to include material outside the treaty text proper; subsequent agreements and practice are both outside the treaty text itself, while the latter does not necessitate any text at all; relevant rules of international law applicable in the relations between the parties are not within the treaty text; preparatory work, the circumstances of the treaty’s conclusion, and material for use as other supplementary means, are likewise not part of the treaty text. Thus the term ‘textual’ is a misleading label to place on the approach of the Vienna rules. The misunderstandings about the Vienna rules and the supposition of their insistence on textuality are helpfully analysed by Villiger, who notes as one of the reasons for this: …somewhat unfortunately—and here indeed lies a misunderstanding— the forceful United States campaign in Vienna most likely led to this conclusion: because its delegation criticized the alleged textuality of Articles 31 and 32, a rejection of the US amendment appeared to imply that the articles were textual.47 ‘Teleological’ is not warranted as a description of the general approach Just as it is misleading to characterize the Vienna rules as ‘textual’, so it can be inaccurate to derive from them a ‘teleological’ approach. This is not inaccuracy in the sense that the rules exclude purpose from the relevant elements, but inaccuracy in two ways. First, the proper approach requires that all the elements present in any given interpretative exercise are considered and evaluated. This includes the object and purpose of the treaty which has a particular role 3.2

44 45 46 47

See Chapter 1 above, text to fn 8, emphasis added. [Editors’ note: not included in this Anthology]. G Letsas, ‘Intentionalism and the Interpretation of the ECHR’ in Fitzmaurice and others (eds), TreatyInterpretationandtheViennaConventionontheLawof Treaties:30Yearson, at 266. Letsas, at 266. M E Villiger, ‘The Rules on Interpretation—Misgivings, Misunderstandings, Miscarriage? The ‘Crucible’ Intended by the International Law Commission’, Chapter 6 in Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention, at 117 (original emphasis). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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in relation to the identification of the ordinary meaning, while the ‘context’ ­requires consideration of the whole treaty and other defined matter. Second, there is no warrant for using a teleological approach as a compendious substitute for the rules. Thus, for example, caution is needed in evaluating the following explanation of the work of the Inter-American Court of Human Rights: Although the Court usually begins its reasoning by looking at the text, it has, in general, not relied on a primarily textual approach but rather resorted to other means of interpretation. The Court’s reluctance to assign a more prominent role to a provision’s ordinary meaning is ultimately the consequence of the Court’s emphasis on object and purpose. Thus, the Court stressed that …the ‘ordinary meaning’ of terms cannot of itself become the sole rule, for it must always be considered within its context and, in particular, in the light of the object and purpose of the treaty.52 In the Inter-American Court’s jurisprudence the ‘object and purpose’ appears to play the most important role among the different means of ­interpretation. A characteristic feature of this Court’s object and purposebased approach is its emphasis on the overriding aim of the ­Convention as a whole to effectively protect human rights… 52 Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-American Court of Human Rights, Series A, No. 4 (19 January 1984), para. 23; Article 55 of the American Convention on Human Rights, Advisory Opinion OC-20/09, Inter-American Court of Human Rights, Series A, No. 20 (29 September 2009), para. 26.48

This analysis seems to suggest that a textual approach and one which has regard to the treaty’s object and purpose are different ‘means of interpretation’ rather than elements of a single general rule. Yet in this quotation above from the Inter-American Court’s own judgment, the Court indicates an approach to identifying the ordinary meaning of a term using context and object and purpose in just the way envisaged by the ILC for use of these elements, rather than choosing between a textual and a teleological approach. If the product of the Court’s application of rules of interpretation has been to place weight on object and purpose and on effectiveness, this may be a legitimate evaluation

48

G Nolte (ILC Special Rapporteur), ‘First Report on subsequent agreements and subsequent practice in relation to treaty interpretation’, A/CN.4/660 (19 March 2013), paras 19–20 (further footnotes omitted). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of treaty provisions drafted in a manner which is both ambiguous and vague in the senses described above.49 Only if the Court omitted consideration of the elements required by the general rule, substituting a purely general teleological interpretation for application of the rules of interpretation, would the approach be at odds with the Vienna Convention. Substitution of a general teleological interpretation for application of the Vienna rules is what has occurred in some judgments of ad hoc international criminal tribunals.50 This is plainly at odds with the approach mandated by the Vienna rules and highlights the danger of analysis which views differentiation between textual and teleological as admissible in contrast to the synthesis envisaged by the Vienna provisions. 3.3 Seeking intention If the ILC used the term ‘textual’ primarily to identify the process of interpretation as one which does not involve launching into a separate quest to find the intention of the parties, the Commission may also have had in mind some of the difficulties which Hersch Lauterpacht identified in the rules of interpretation used before the adoption of the Vienna rules: It may be added that in so far as ‘revealing the intention of the parties’ has in itself assumed the complexion of a somewhat stereotyped formula, it may, on occasions, conceal the true difficulties of interpretation. For the question frequently arises whether the intention of the parties can be the decisive factor in cases where, as often happens in international instruments, the treaty—far from giving expression to any common intention of the parties—actually registers the absence of any common intention (either in general or in relation to the subject-matter of the dispute) or contains provisions which are mutually inconsistent and which the creative work of interpretation must reduce to some coherent meaning.51 Lauterpacht followed this statement with an analogy to the use of ‘presumed intention’ of the parties to a contract and noted: ‘In the international sphere the occasions for such necessity of acting on implied intention are more 49

50 51

Cf L Lixinski, ‘Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law’ (2010) 21 ejil 585, examining case law of the Inter-American Court and its particular approach to treaty interpretation in the light of article 29 of the American Convention; see also Section 5.1 below. See Section 5.2 below. H Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ (1949) xxvi BYBIL 48, at 52 (footnotes omitted).

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frequent’.52 The need to avoid the danger which the ILC saw in using the term ‘intent’—that the interpreter would head off in an entirely unconstrained quest for the putative content of the minds of the negotiating states—suggests the need for an even greater caution in implying such content. If the terms ‘intent’ or ‘presumed intent’ are to be used, it is in the sense that what is being described is the product of application of the Vienna rules. As the ICJ has put it, a treaty provision is to be interpreted ‘in accordance with the intentions of its authors as reflected by the text of the treaty and the other relevant factors in terms of interpretation’.53 The ILC has more recently explained the position in its commentary on one of its draft conclusions on interpretation of treaty terms capable of evolving over time. There it refers to the possible role of subsequent agreements and subsequent practice in providing assistance in determining whether or not ‘the presumed intention of the parties upon the conclusion of the treaty was to give a term used a meaning which is capable of evolving over time’.54 The ILC commented that: [The draft conclusion] by using the phrase ‘presumed intention’, refers to the intention of the parties as determined through the application of the various means of interpretation which are recognized in articles 31 and 32 [of the Vienna Convention]. The presumed intention is thus not a separately identifiable original will, and the travaux préparatoires are not the primary basis for determining the presumed intention of the parties, but they are only, as article 32 indicates, a supplementary means of interpretation.55 This makes it clear that what is envisaged by the reference to ‘presumed intention’ is not any imputed intention independent of a complete and proper 52

53 54 55

Lauterpacht, at 52; cf G Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: OUP, 2007), at 71–72 usefully analysing intention in terms of ‘intentions of principle’, ‘intentions of detail’ and ‘meta-intentions’, but concluding that ‘any theory of interpretation for the ECHR (or any international treaty) must at some stage stand outside the drafters’ intentions and provide a normative justification based on values of political morality’ (at 71–72). Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) [2009] ICJ ­Reports 214, at 237, para 48 (emphasis added). Draft conclusion 3 in ILC Report on the Work of its Sixty-fifth Session (2013), General ­Assembly Official Records, Sixty-eighth Session, Supplement No. 10 (A/68/10), Chapter iv, p. 12. ILC Report on the Work of its Sixty-fifth Session (2013), General Assembly Official ­Records, Sixty-eighth Session, Supplement No. 10 (A/68/10), p. 27 para (9).

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a­ pplication of the Vienna rules, but simply the result of their use. This has been helpfully described as the ‘objectivized, or objective, nature of “the intention of the parties”’.56 There remains, of course, the same danger that has arisen with the terms ‘textual’ and ‘teleological’ that some interpreters will seize on the term ‘intention’ as offering a short cut or the means to avoid the sometimes laborious task of applying the rules fully. 4

Evolutionary Interpretation …the evolutionary interpretation of treaties is not a separate method of interpretation; it is rather the result of a proper application of the usual means of interpretation, as means by which to establish the intention of the parties. … The ‘intention of the parties’ is a construct to be derived from the articulation of the ‘means of interpretation admissible’ in the process of interpretation …’.57

This extract from a comprehensive study of evolutionary interpretation answers the main question relevant here, namely whether evolutionary interpretation is a distinct method or means of interpretation. Following the same approach as the extract and the emerging view of the ILC, the answer is that where evolution in the meaning of the terms of a treaty occurs, identification of the interpretation as ‘evolutionary’ is the result of the proper application of the Vienna rules.58 The topic is nevertheless of considerable importance in treaty interpretation because it addresses problems of time factors, one of the most difficult issues in treaty interpretation. ‘Evolutionary interpretation’ and its cognate ‘evolutive interpretation’ are terms which have been put into circulation mainly through case law and, in 56 57 58

E Bjorge, The Evolutionary Interpretation of Treaties (Oxford: OUP, 2014), 2–3 (footnote omitted). Bjorge, 2 (footnote omitted). Commentary on draft Conclusion 3 in Chapter iv of the ILC Report on the Work of its Sixty-fifth Session (2013), p. 27, para (8) (footnote omitted): ‘In the final analysis, most international courts and tribunals have not recognized evolutive interpretation as a separate form of interpretation, but instead have arrived at such an evolutive interpretation in application of the various means of interpretation which are mentioned in articles 31 and 32 of the Vienna Convention…Any evolutive interpretation of the meaning of a term over time must therefore result from the ordinary process of treaty interpretation’; and M Fitzmaurice, ‘Interpretation of Human Rights Treaties’, Chapter 31 in D Shelton (ed), The Oxford Handbook of International Human Rights Law (Oxford: OUP, 2013), at 745. The terms ‘evolutionary interpretation’ and ‘evolutive interpretation’ are treated here as indistinguishable, but the former is preferred as closer to common usage. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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particular, through analysis of pronouncements of courts and tribunals, most notably of the ICJ and the ECtHR.59 There is no standard definition of either term in relation to usage in legal contexts, but the gist is that the meaning of treaty terms may change over time. In the sense considered here, this evolution is without the specific intervention of the parties to amend or modify the terms and distinct from attribution of meaning by showing practice evidencing agreement.60 There are three main areas of focus: 1. Terms of a treaty may be such as to embrace change of meaning, perhaps most commonly to expand their coverage so as to include new activities, scientific advances, technological developments etc. where these would not have been specifically conceived at the time the treaty was drawn up. 2. The treaty may constitute a regime of a nature inherently adapted to development, perhaps where the treaty’s provisions could be viewed as having ‘constitutional’ characteristics, such as treaties giving powers to an international organization or stating broad propositions of principle which necessarily involve elaboration to have precise effect. 3. Developments elsewhere in the legal system may impact on the particular treaty, where there are, for example, emerging fields of law such as environmental law, or later treaties on the same subject or ones in some way related. These categories, which are not mutually exclusive, may help in analysis of evolutionary interpretation but, as the observation at the head of this section notes, the labels ‘evolutionary interpretation’ and ‘evolutive interpretation’ do not provide distinct means of interpreting treaties. The situation which they depict is better viewed as harnessing the results of proper interpretation in accordance with the Vienna rules.61 59

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For examples from other international judicial bodies, such as WTO, International Tribunal on the Law of the Sea, and the Inter-American Court of Human Rights, see ILC Report on the Work of its Sixty-fifth Session (2013), General Assembly Official Records, Sixty-eighth Session, Supplement No. 10 (A/68/10), Chapter iv, p. 26, para (7). Draft conclusion 3 in the work of the ILC on subsequent agreements and subsequent practice in relation to the interpretation of treaties states: ‘Subsequent agreements and subsequent practice under articles 31 and 32 may assist in determining whether or not the presumed intention of the parties upon the conclusion of the treaty was to give a term used a meaning which is capable of evolving over time.’ ILC Report on the Work of its Sixty-fifth Session (2013), p. 24; this suggests that subsequent agreements and subsequent practice in the Vienna rules may be prominent elements leading towards a conclusion that an evolutionary interpretation is appropriate. Cf J Arato, ‘Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences’ (2010) 9 The Law and Practice of International Courts and Tribunals 443 where evolutive interpretation is analysed as a ‘technique’ compared with subsequent practice as a technique; this approach may be broadly in line with the current work of the ILC on subsequent agreements and Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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4.1 The International Court of Justice The ICJ used the term ‘evolutionary’ in its Namibia advisory opinion in the context of the system of mandates set up under the League of Nations. The Court considered that the guiding concepts in the Covenant of the League ‘were not static, but were by definition evolutionary … The parties to the Covenant must consequently be deemed to have accepted them as such.’62 The ICJ has not subsequently made great use of the description ‘evolutionary’, though it has implicitly done so, for example in a number of cases where it has assessed use of a term as ‘generic’. More specifically, in the Navigational and Related Rights case (Costa Rica v Nicaragua) the Court reviewed the circumstances in which it had previously had to consider how to interpret a term whose meaning had evolved since the conclusion of the treaty at issue.63 In that case the ICJ transposed to interpretation of treaty provisions the approach which it had adopted in the Aegean Sea case interpreting a Greek reservation to exclude disputes relating to ‘territorial status’; it interpreted this term as extending to the continental shelf even though that area was not a known legal concept at the time of the relevant 1928 treaty.64 In the Navigational and Related Rights case (Costa Rica v Nicaragua) the Court identified the underlying idea as being that: …where the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is ‘of continuing duration’, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning.65

62

63 64 65

s­ ubsequent ­practice in relation to treaty interpretation, but the emphasis in the present work is directed to how the elements of the general rule, the supplementary means and the provisions on languages work together to give meaning to a treaty rather than viewing any elements (particularly those of the general rule) as distinct means of interpretation. Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa), notwithstanding Security Council resolution 276 (1970) [1971] icj Reports 16, at 31, para 53 (emphasis added); and see fuller extract and consideration of this case in Chapter 7, Section 1.2 above. Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) [2009] ICJ Reports 214, at 242–4, paras 63–71, and see further consideration of this case in Chapter 6, Section 4.7 above. Aegean Sea Continental Shelf (Greece v. Turkey) [1978] ICJ Reports 3; see Chapter 5, Section 3.3.5 above. [Editors’ note: not included in this Anthology]. Dispute regarding Navigational etc. (Costa Rica v Nicaragua) [2009] ICJ Reports 214, at 243, para 66.

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This suggests three elements as indicators that evolutionary interpretation is appropriate: – use of language adapted to evolve, such as ‘generic’ terms; – long or indefinite duration of the treaty; – consequent general presumption of awareness and intention of the parties that those terms would evolve.66 A significant point to note from the development of the ICJ’s approach to evolutionary interpretation is that it seems in line with the Vienna rules, although its opinion in the Namibia case was given very soon after the conclusion of the Vienna Convention and many years before the ICJ’s specific endorsement of the Vienna rules. As shown in the quotation from that case above, the Court looked to see that the terms and concepts used in the treaty were ‘by definition evolutionary’ and ‘deemed’ that the parties must therefore have accepted them as such. In other words the Court did not set off on an inquiry into the intentions of the parties outside the treaty but, as the Court put it in Navigational and Related Rights (Costa Rica v Nicaragua), based its assessment on ‘the intentions of its authors as reflected by the text of the treaty’, that is, through interpretation of the treaty.67 Criticism that such an approach does not look to the actual intentions of the parties may misunderstand the objective effect of application of the Vienna rules to give a meaning to the text of a treaty. The emerging reliance by the ILC on the ‘presumed intention’ of the parties, in the context of the role of subsequent agreements and subsequent practice in interpretation, indirectly supports the idea of deeming parties to have accepted evolutionary interpretation by suggesting one type of relevant evidence, but this is always with the understanding that ‘presumed intention’ is the product of proper application of the Vienna rules. Individual judges of the ICJ have explored evolutionary interpretation more extensively. A particularly useful account of the relevant case law was given by Judge Guillaume in the Navigational and Related Rights case (Costa Rica v Nicaragua) where he identified contrasting approaches: The question of the effect of the passage of time on treaty interpretation has been the subject of spirited debate in the literature between 66 67

See also S T Helmersen, ‘Evolutive Treaty Interpretation: Legality, Semantics and Distinctions’ (2013) 6 European Journal of Legal Studies 127. Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) [2009] ICJ Reports 214, at 237, para 48. See further Bjorge, The Evolutionary Interpretation of Treaties and cf M Dawidowicz, ‘The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflections on Costa Rica v. Nicaragua’ (2011) 24 Leiden Journal of International Law 201.

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­ roponents of ‘contemporaneous’ (also called ‘fixed reference’) interp pretation and advocates of ‘evolutionary’ (also called ‘mobile reference’) interpretation. Thus, within the International Law Commission ‘there was support for the principle of contemporaneity as well as the evolutive approach’, but a consensus seems to have emerged to the effect that the problem should be resolved through the application of ordinary methods of treaty interpretation.68 This confirms that problems presented by time considerations should be resolved by ‘ordinary methods’ of treaty interpretation. Nevertheless, analysis, such as that of Judge Guillaume, does offer broader help in tackling those problems. Expansion of the meaning resulting from development of new activities or technologies potentially coming within a generic or vague term is a different situation from one where new rules of law have to be considered. The latter directs attention to article 31(3)(c) of the Vienna Convention’s general rule, while the former requires appropriate resolution of terms that may be ‘vague’ but in appropriate circumstances are properly subjected to evolutionary interpretation.69 A further aspect of the approach taken by the ICJ to evolutionary interpretation is the significance which the Court attaches to institutional arrangements. In the Whaling case the Court described the role of the Commission set up under the International Whaling Convention. That Convention incorporated a Schedule setting out provisions regulating the conservation of whale stocks or the management of the whaling industry.70 These provisions can be 68

Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Declaration of Judge ad hoc Guillaume, [2009] ICJ Reports 214, at 296–6, para 9 (footnotes omitted) and paras 10–15 listing and analysing examples of interpretations falling into either category (‘fixed’ or ‘mobile’ reference) or showing features from both. 69 The ‘Iron Rhine’ arbitral award offers a very good example of account being taken of developments coming within article 31(3)(c): see Chapter 7, Sections 4.1.2, 4.2, and 4.7 above; [Editors’ note: not included in this Anthology] cf the ICJ judgment in the Danube Dams case, Case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Reports 7, at 67–68, para 112: ‘By inserting these evolving provisions [previously enumerated articles] in the Treaty, the parties recognized the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law.’ It has been noted, however, that the Court was here suggesting the parties reach further agreement on this and it is therefore questionable whether this should be regarded as evolutive interpretation: Helmersen, ‘Evolutive Treaty Interpretation: Legality, Semantics and Distinctions’, at 132. 70 Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment of 31 March 2014, para 45; and for full analysis of issues of interpretation raised in this case, see M Fitzmaurice, ‘The Whaling Convention and Thorny Issues of Interpretation’, in

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amended by the Commission, and have been amended to such an extent that the ICJ observed: ‘The functions conferred on the Commission have made the Convention an evolving instrument’.71 The significance of institutional arrangements in relation to evolutionary interpretation and for interpretation of ‘vague’ provisions is particularly apparent in the case of treaties establishing courts to consider issues of human rights. The contribution of the ECtHR to developing the idea of evolutionary interpretation is briefly considered here, and the role of institutional arrangements in interpretation of human rights treaties in the following section. 4.2 The European Court of Human Rights ‘Vague’, in the sense discussed above, is the description which best characterizes many of the formulations in human rights treaties. Hence it is no surprise that decisions of the ECtHR have established a number of doctrines based on the principles in the European Convention on Human Rights and the Court has provided the cradle for development of ‘evolutive’ interpretation in line with the concept of the Convention as a ‘living instrument’. This points to ‘­dynamic’ rather than ‘static’ interpretation.72 It has been noted that there are two main ways in which evolutive interpretation may occur.73 First, there may be a change to an interpretation that at a particular point reflected a settled meaning, whether settled by absence of different understanding at the time of drafting, by practice, or by decision of a competent institution. Second, there may be an interpretation ‘applying a provision to a novel set of circumstances which were not anticipated during drafting, ratification, or previous case law and thus on which no settled understanding actually exists’.74 The former type of change is akin to amendment.75 The latter may most readily attract the epithet ‘dynamic’, particularly if viewed

71 72

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D Tamada and M Fitzmaurice (eds), Whaling in the Antarctic: The Judgment and its Implications (Nijhoff/Brill, forthcoming). Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment of 31 March 2014, para 45; and see Bjorge, The Evolutionary Interpretation of Treaties, 80–2. See M Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties: Part i’ (2008) 21 Hague Yearbook of International Law 101 and ‘Part ii’ (2009) 22 Hague Yearbook of International Law 3; P-M Dupuy ‘Evolutionary Interpretation of Treaties: Between Memory and Prophecy’, Chapter 7 in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford: OUP, 2011); K Dzehtsiarou and C O’Mahony, ‘Evolutive Interpretation of Rights Provisions: A Comparison of the European Court of Human Rights and the U.S. Supreme Court’ (2013) 44 Columbia Human Rights Law Review 309. Dzehtsiarou and O’Mahony, at 319. Dzehtsiarou and O’Mahony, at 319. Dzehtsiarou and O’Mahony, at 319.

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as in some way drawing a wider inspiration than an immediate literal impression would afford if taken without regard to context and other factors. The ECtHR’s jurisprudence is mainly in this second category, although there are examples of judgments which are at odds with earlier ones or seem substantially so (and thus within the first category).76 ‘Evolutive’ is generally directly equated with the ‘living instrument’ approach as stated by the ECtHR in the Tyrer (corporal punishment) case: [T]he Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the Member States of the Council of Europe in this field.77 Though in different language, this can be seen to be based on a somewhat similar idea to that of the ICJ in the Namibia case above. The ECtHR explicitly makes this link, referring to: the Court’s well-established approach to the Convention as a living ­instrument which must be interpreted in the light of present-day conditions … a principle which reflects the general rule that the interpretation of international treaties requires consideration of the evolution of the relevant legal norms and concepts (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 153, ECHR 2008; and Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] International Court of Justice Reports 16, pp. 31–32, § 53).78 The notion of the European Convention as a ‘living instrument’ in the 1978 Tyrer case has become a ‘given’ in the jurisprudence of the ECtHR79 However, the actual description ‘evolutive’ is perhaps more commonly found in the separate and dissenting judgments. The general idea is that an approximation of a current consensus is to be taken into account in interpreting the vague terms of 76 77 78 79

See for example Goodwin v UK (Application no 28957/95), Judgment of 11 July 2002, at paras 73–5 explaining the basis for the Court not following its earlier judgments. Tyrer v United Kingdom, Series A, No 26, (1979–80) 2 ehrr1, at 10, para 31. Ternovskis v Latvia (Application no 33637/02), Judgment of 29 April 2014, para 49 (further citations of ECtHR jurisprudence omitted). See, for example, X v Austria (Application no 19010/07), Judgment of 19 February 2013, para 139: ‘… given that the Convention is a living instrument …’.

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the Convention, such consensus not being confined to too precise an analysis of domestic laws and international instruments.80 The case law of the ECtHR on evolutive interpretation is too extensive for detailed analysis such as has been thoroughly undertaken elsewhere.81 In the present context, however, it may be helpful to note that Letsas suggests that the Court introduced the notion of a living instrument ‘with a view to understand better the principles that underpin the Convention, regardless of how states themselves apply these principles’.82 Letsas also observes that the jurisprudence of the ECtHR shows a ‘shift from commonly accepted standards in domestic legislation to signs of evolution of attitudes among modern societies’, leading to a conclusion that the Court has been ‘primarily interested in evolution towards the moral truth of the ECHR rights, not in evolution towards some commonly accepted standard, regardless of its content’.83 While it can be seen that article 31(3)(c) of the Vienna Convention is a mandate for taking into account relevant obligations from other international sources, and is a provision to which the ECtHR has been making increasing reference, as the Court does not confine itself strictly to obligations binding on all relevant parties, the central question here is whether the Court’s approach applies, or is consistent with, the Vienna rules.84 Does the Court’s view of the European Convention and its own function warrant what looks like a rather sweeping reliance on the object and purpose of the Convention? In the 1975 Golder case, where the Court found that a right to have access to a court was necessarily inherent in a provision which may appear to safeguard rights to due process in the course of proceedings, the Court was attentive to formulating reasons fitting the Vienna rules.85 While this may be viewed as a 80

Cf K Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the European Convention on Human Rights’ (2011) 12 German LJ 1730; see also A Mowbray, ‘The Creativity of the European Court of Human Rights’ (2005) 5 Human Rights Law Review 57, contrasting the ‘living instrument’ doctrine and the ‘practical and effective’ doctrine. 81 See, for example, G Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: OUP, 2007), M Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties: Part i’ (2008) 21 Hague Yearbook of International Law 101 and ‘Part ii’ (2009) 22 Hague Yearbook of International Law 3. 82 Letsas, A Theory of Interpretation, at 75. 83 Letsas, at 77 and 79. 84 On the Court’s use of article 31(3)(c), see J Arato, ‘Constitutional Transformation in the ECtHR: Strasbourg’s Expansive Recourse to External Rules of International Law’ (2011– 2012) 37 Brook J Int’l L 349; and V P Tzevelekos, ‘The Use of Article 31(3)(C) of the VCLT in the Case Law of the ECtHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology—Between Evolution and Systemic Integration’ (2009–2010) 31 Mich J Int’l L 621. 85 See further Chapter 7, Section 4.5 above. [Editors’ note: not included in this Anthology].

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dynamic approach, it is less appropriately labelled evolutive since the decision did not rely on any approximation of consensus or on a range of external sources of growing applicability. The difficulty with the approach in Tyrer is that the analysis of the growing consensus is sparse and not based on materials constituting obligations which would fit within article 31(3)(c). It can be suggested, however, that there are elements of underpinning for this type of evolutive interpretation in the Vienna rules: the principles of good faith, effectiveness, taking into account context, object and purpose, considering general rules of international law and obligations in other instruments, and so forth; but these only provide a limited platform in the case of a treaty whose provisions are vague and are combined with establishment of institutions which, even if not originally ­designed for evolutive initiatives, have been revamped to give sharper focus to that end. A ­possible conclusion is that human rights treaties warrant distinct consideration, not because interpretative rules different from those in the ­Vienna ­Convention apply but because the treaty provisions are drawn up in a way which takes the interpreter beyond the rules. The case law which human rights treaties have generated illustrates particularly well the way in which the Vienna rules lead to interpretation embracing development of doctrines necessary to give meaning to ‘vague’ provisions when accompanied by institutions to this end. […] 6

Inconsistent Interpretations

6.1 Is there always a single interpretation that is correct? If the Vienna rules provide a single set of principles of treaty interpretation, does it follow that the rules are defective if their application leaves open the possibility that different courts and tribunals may interpret the same treaty provisions in a different sense or if their interpretation differs from an intention clearly expressed in preparatory work? The answer lies in the role and purpose of the Vienna rules. It was always a given that there was no mechanical method of ascertaining meaning but that there could be rules giving general guidance on the paths to be followed. However, while the rules constitute a uniform set of principles which should maximize the possibility of reaching a proper interpretation, because of the need for ‘investigation, weighing of evidence, judgment, foresight, and a nice appreciation of a number of factors varying from case to case’ (in Waldock’s phrase above), the outcome of essentially the same exercise may not invariably be uniform. Examining the

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few instances of divergent interpretations may show how uniform rules nevertheless could provide a better starting point, though no guarantee of uniform outcomes. In its general approach the WTO Appellate Body continues to stress that the principles of interpretation in the Vienna rules are to be followed in a holistic fashion. In United States—Continued Zeroing the Appellate Body stated: …the enterprise of interpretation is intended to ascertain the proper meaning of a provision; one that fits harmoniously with the terms, context, and object and purpose of the treaty. … The purpose of such an exercise is therefore to narrow the range of interpretations, not to generate conflicting, competing interpretations. Interpretative tools cannot be ­applied selectively or in isolation from one another. It would be a subversion of the interpretative disciplines of the Vienna Convention if application of those disciplines yielded contradiction instead of coherence and harmony among, and effect to, all relevant treaty provisions.118 However, the case law of the Appellate Body reveals a difficult question ­concerning the Vienna rules arising from a provision in the ‘Anti-Dumping Agreement’ which directs the approach of a WTO panel to reviewing measures adopted by national authorities in application of the Agreement. As regards facts established by the national authorities, the panel is to determine whether the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned.119 As regards interpretation of the Anti-Dumping Agreement: the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the 118 United States—Continued Existence and Application of Zeroing Methodology, Report of Appellate Body, WT/DS350/AB/R. 4 February 2009, para 273, footnote omitted. 119 Agreement on Implementation of Article vi of the General Agreement on Tariffs and Trade 1994 (‘the Anti-Dumping Agreement’), article 17.6(i).

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authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.120 It can be seen that as regards both fact and interpretation, these provisions are designed to define the extent to which the WTO panel is to pay respect to the decisions of the national authorities. However, as regards interpretation of the international agreement, there is something of an apparent contradiction. The panel is to follow customary rules of interpretation, which aim to result in a single meaning, while the second sentence of the provision in question suggests multiple meanings. The provision might therefore be thought to suggest that the Vienna rules, as a statement of customary law, envisage different ‘permissible’ interpretations of the same provision. Yet although the Vienna rules do not provide a mechanical route to a ‘correct’ result, their proper application should lead to a single autonomous meaning of a treaty or at least the meaning that is legally relevant to the matter in issue. In application of the Anti-Dumping Agreement, the Appellate Body has adopted an approach which views the reference to ‘permissible interpretations’ as requiring the interpretative process to be interrupted at a point where differing ‘permissible’ interpretations have been revealed: …the proper interpretation of the second sentence of Article 17.6(ii) must itself be consistent with the rules and principles set out in the Vienna Convention. This means that it cannot be interpreted in a way that would render it redundant, or that derogates from the customary rules of interpretation of public international law. However, the second sentence allows for the possibility that the application of the rules of the Vienna Convention may give rise to an interpretative range and, if it does, an interpretation falling within that range is permissible and must be given effect by holding the measure to be in conformity with the covered agreement. The function of the second sentence is thus to give effect to the interpretative range rather than to require the interpreter to pursue further the interpretative exercise to the point where only one interpretation within that range may prevail.121 This approach accepts that the interpretative exercise could be pursued to result in a single interpretation but that the Anti-Dumping Agreement mandates acceptance of any one which a party has adopted within a range of permissible 120 Article 17.6(ii), emphasis added. 121 United States—Continued Existence and Application of Zeroing Methodology, Report, at para 272. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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interpretations. The Appellate Body excludes from such a range the mere existence of multiple possible meanings.122 It also excludes contradictory interpretations from forming part of a range.123 Hence, if applying the Vienna rules is seen as a process of ‘progressive encirclement’ (in the description used by an arbitral tribunal), the Appellate Body views the process as stopping before entering the innermost circle.124 Unfortunately, application of the metaphor cannot be illustrated from the Report in United States—Continued Zeroing because the Appellate Body found that the interpretations offered as alternatives to the one which it espoused would be ‘flatly contradictory’ and ‘repugnant to the customary rules of treaty interpretation’.125 The possibility of parallel permissible interpretations should, in any event, be seen as peculiar to any treaty which, like the Anti-Dumping Agreement, envisages this.126 Normally a treaty provision has only one correct interpretation, even though there may be scope for great divergence of opinion as to what that interpretation is. […] 7 Conclusion Metaphors may have a role, if limited, in helping to understand how the Vienna rules should guide an interpreter. The ILC’s ‘crucible’ metaphor remains 122 United States—Continued Existence and Application of Zeroing Methodology, Report, at para 268. 123 United States—Continued Existence and Application of Zeroing Methodology, Report, at para 273. 124 On ‘progressive encirclement’ see Aguas del Tunari v Bolivia (ICSID arb/02/03), Award of 21 October 2005, para 91, and Chapter 5, epigraph and introduction, above; and see further D McRae, ‘Treaty Interpretation by the WTO Appellate Body: The Conundrum of Article 17(6) of the WTO Antidumping Agreement’, Chapter 10 in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford: OUP, 2011). 125 United States—Continued Existence and Application of Zeroing Methodology, Report, at para 317. 126 In a more extended study of this case, McRae helpfully provides an analysis of the AntiDumping Agreement problem with a suggested approach for a solution having a focus on the need for rigorous analysis of the term ‘permissible’ by the Appellate Body to provide the threshold for determining what is permissible: McRae, ‘Treaty Interpretation by the WTO Appellate Body: The Conundrum of Article 17(6) of the WTO Antidumping Agreement’, Chapter 10 in Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention, at 180–3; McRae suggests that in analysing the competing arguments of the disputing parties, ‘the greater the balance between the different approaches, the more likelihood that it can be said that there are two permissible interpretations, even though if the process went further one would be chosen’. This seems fairly close to the analysis in the text above. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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one of the most useful explanations of the much misunderstood general rule. Ask whether the rules are more in the nature of formulae than algorithms and one is taken to loose analogies with lists of ingredients and step-by-step instructions on how to bake a cake. Neither fits the bill, but both correctly suggest some features of the rules. The suggestion quoted at the head of this chapter, that the structure provided by the Vienna rules ‘has become the virtually indispensable scaffolding for the reasoning on questions of treaty interpretation’, particularly nicely sums up the role of the rules, even if ‘indispensable’ may be conceal an unhealthily large number of cases where passing reference to the rules has substituted for thorough application. The key points remain unchanging. The rules apply as a starting point for all treaty interpretation. The general rule is the whole of article 31 of the Vienna Convention, not just its first paragraph. The further paragraphs of article 31 are not secondary or subordinate. They provide elements such as subsequent agreement and practice which, if present in any given case, may have very great interpretative weight in the crucible. Consideration of supplementary means is not confined to situations of ambiguity, obscurity, etc. Such means have a wider role in assisting understanding and in confirming meaning when the preconditions for their role to ‘determine’ meaning are not met. Good faith, which is the first element mentioned in the rules, should control the whole process of interpretation.

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part 3 Subjects of International Law

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Chapter 39

Arnold D. McNair, Equality in International Law, 1927 Comment by Professor Gerry Simpson, London School of Economics In February 1927, Arnold McNair, soon to hold the Whewell Chair in International Law at Cambridge – at least for two short years – but at the time a lecturer at Gonville and Cauis, and Reader at the LSE, delivered a special lecture at the LSE on “Equality in International Law”. This was part of a series of lectures on the subject of equality in general (Harold Laski was one of the previous speakers). As I discovered while researching my own doctoral thesis (entitled “Unequal Sovereigns in the International Legal Order”), there had been a huge surge of interest in equality in the 1920s. At least two significant monographs were published early in the decade, by Edwin Dickinson at Michigana and Julius Goebel at Columbia.b Why the concern with equality at this time? Certainly the recent formation of the League of Nations had something to do with it. How was an international organisation to be structured around the requirements of executive action and the equal rights of sovereigns? Then there was the problem of the revolutionary State. Were Bolshevik Russia or Imperial Germany to be understood as sovereign equals? Such questions led many writers, including McNair, back to James Lorimer with his taxonomies of inequality and refusal to slavishly adhere to the “doctrine of the equality of state”.c States, according to Lorimer, were equally entitled to be treated as States but were not also entitled to be treated as “equal states”.d This latter idea was a category mistake traceable to Pufendorf and, as ­McNair describes it, “…the months spent in a Danish prison in 1658, with his mind full of Grotius and Hobbes, but without access to any books and without adequate exercise or fresh air”.e This is not just the article’s best joke but an indication of McNair’s own approach, which was to view the task of the jurist as a b c d e

E Dickinson, The Equality of States in International Law (Harvard University Press 1920). J Goebel, ‘The Equality of States’ (1923) 23/1 Columbia Law Review 1–29. A McNair, ‘Equality in International Law’ (1927) 23/2 Michigan Law Review, 134. Ibid, 135. [Page 1042 in this Anthology] Ibid, 134. [Page 1041 in this Anthology]

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one of ­disassembling equality into its constituent units and various meanings in order to reveal the inequalities at the heart of legal equality (political (in) equalities were another thing altogether). Thus, what he calls “forensic equality” is an equality “in the assertion and vindication by law of such rights as state may have”. So far, so good. But then, in a Lorimeresque move, McNair discusses “equality of capacity for rights”f and notes that States exercising their sovereignty are able to choose to “permanently impair” this capacity to acquire or exercise rights.g McNair gives the examples of Panama (in her arrangement with the United States) and Switzerland’s permanent neutralisation. Of course States do not “choose” to relinquish these rights under conditions of equality. And here we arrive at McNair’s third denotation of equality: “equality for law-making purposes”. On one hand, this form of equality went too far for McNair. The legislative equality of States “operated as a clog on the processes of international legislation”. One can well imagine today’s international environmental lawyers and activists vigorously nodding their heads in agreement. On the other hand this form of equality did not go far enough. A richer, more substantive concept of equality might render invalid those arrangements entered into by States under duress or coercion. On 24 March 1939, just over ten years after McNair’s Article was published, President Hacha was being chased, by Goering and Von Ribbentrop, around a table in Berlin and harried into signing an agreement allowing Nazi Germany to annex Czechoslovakia. Thirty years after that, Articles 51 and 52 of the Vienna Convention on the Law of Treaties rendered void “unequal treaties” created through coercion or through illegal threats and uses of force. f Ibid, 151. [Page 1043 in this Anthology] g Ibid.

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A. McNair, ‘Equality in International Law’ (1927) Michigan Law Review, Vol. 26, No. 2, pp. 131–152. Reproduced with the kind permission of the Michigan Law Review.

Equality in International Law* Arnold McNair ** A Introduction Under this title I propose to discuss the present position of the old doctrine of the Equality of States, to consider whether it has been helpful in the development of international society, and what prospect there is of that s­ ociety f­ inding in international law an instrument wherewith to bring about less ­inequality between States than at present exists. For a statement of what may perhaps still be called the conventional meaning of the doctrine I shall go to the work of the late Professor Oppenheim who wrote as follows:1 The equality before International Law of all members States of the Family of Nations is an invariable equality derived from their International Personality. Whatever inequality may exist between States as regards their size, population, power, degree of civilization, wealth, and other qualities, they are nevertheless equals as International Persons. From this principle he deduced three important consequences: (1) “that, whenever a question arises which has to be settled by the Family of Nations, every State has a right to a vote but to one vote only”; (2), “that— legally though not politically—the vote of the weakest and smallest State has quite as much weight as the vote of the largest and most powerful”; (3) “that— according to rule par in parem non habet imperium-no State can claim jurisdiction over another full Sovereign State”. So that no State can without its consent be sued in the courts of another. * A lecture delivered at the London School of Economics and Political Science in February, 1927, as Reader in Public International Law in the University of London, being one of six lectures delivered by a group of members of the staff of the School on “The Idea of Equality.” ** Of Gray’s Inn, Barrister-at-Law, Fellow and Lecturer of Gonville and Caius College in the University of Cambridge, and Reader in Public International Law in the University of London. 1 International Law, vol. i (3rd ed.) (1920) § us.

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Later he points out that legal equality must not be confused with political equality.2 B

The Past

On the historical side there is very little, if anything, that can be usefully added to two valuable and recent studies by American writers, The Equality of States in International Law by Professor Edwin DeWitt Dickinson of the Michigan Law School, in 1920, and The Equality of States by Dr. Julius Goebel, Jr., of Columbia University in 1923. Both upon the historical genesis of the doctrine and upon its value in the development of international law, these two writers are far from being in agreement, as we shall see later. The purpose of this lecture relates more to the present and to the future than to the past and I shall not attempt to add anything to the exhaustive investigations of these two writers. Professor Dickinson, who is hostile to the doctrine, is naturally concerned to deprive it of the authority which would attach to it if it could be shown to be part of the Grotian system of international law. His conclusion is that (p. 334): Grotius neither discussed the conception nor based his system upon it… It had its beginning as a naturalist doctrine in the writings of that school of publicists who acknowledged the leadership of Pufendorf and the inspiration of Thomas Hobbes. The early positivists developed no such conception. It was not until the middle of the eighteenth century, in the period of Burlamaqui, Vattel, Wolff, and Moser, that publicists of all schools included the equality of states among their leading principles. Once established by the process of reasoning (previously summarized by the author), the principle was reinforced by theories of sovereignty. The absolute equality of sovereign states became one of the primary postulates of le droit des gens theorique. Professor P.J. Noel Baker of the University of London, as the result of an independent investigation, entirely confirms these conclusions and asserts that it is3 “a complete mistake to claim the authority of Grotius for the doctrine of equality, though, by a false ‘Grotian tradition,’ this has been done by Lawrence and many others as well.” Baker, like Dickinson, attributes the doc2 Ibid, § 116. 3 “The Doctrine of Legal Equality of States” in British Yecw Book of International Law, 1923–26, at p. 6. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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trine to “Pufendorf and other leaders of the reaction to extreme naturalism.” Pufendorf’s argument is seductively simple: “All persons in a state of nature are equal; the persons of international law are in a state of nature; therefore they are equal.”4 Without denying the value of the inspirations which international law has derived from the law of nature, it is permissible to point out that in Pufendorf’s state of nature man is little more than a featherless biped entirely devoid of political organization “since all subjection and all command are equally banished,”5 so that the state of nature in which the persons of international law find themselves according to his second premises is a state of affairs very different from mankind’s state of nature and an argument based on the similarity of these two “states of nature” is dangerous. On the other hand, Goebel claims for Leibnitz, writing in 1677, “the first statement in the idioms of modern jurisprudence of the conception of equality in international law”,6 and states that he inferred it in a truly realistic fashion from the actual diplomatic practice of states prevailing over a period of two or three centuries before he wrote.7 Whoever can make the best claim to be the “true and first inventor” of the doctrine, there seems little doubt that its almost universal reception into the orthodox literature is due to the eight months spent by Pufendorf in a Danish prison in 1658,8 with his mind full of Grotius and Hobbes, but without access to any books and without adequate exercise or fresh air. One of the strongest movements in dynamic political science today is the attack upon sovereignty, to which one of my colleagues9 in this series of lectures has “consecrated” no small part of his abundant energies. The undermining of the doctrine of the Equality of States seems to be a flank action on the same front. That sovereignty postulates equality is, in one sense, almost selfevident, and it is significant that the qualities which Oppenheim and other maintainers of the doctrine of equality derive from it are among the very qualities which Westlake10 and Pollock would attribute to the fact of independence. Oppenheim’s statement that “no State can claim jurisdiction over another full sovereign State” can be based with equal relevance upon a principle of equality or a principle of sovereignty.

4 lbid. 5 Dickinson, op. cit. p. 78. 6 Goebel, op. cit. p. 88. 7 Ibid., pp. s6–s8. See also a review of Goebel’s work in Am. J. of Int. Law xviii (1927) pp. 386– 388, by Quincy Wright, who considers that the opposition between Dickinson and Goebel is less radical than at first appears. 8 Dickinson, op. cit., p. 76. 9 Professor H. ]. Laski. 10 International Law, vol i, (Peace) (1910) p. 321: “the equality of sovereign states is merely their independence under another name.” Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Most of the well known publicists of the nineteenth century followed Pufendorf and one another, somewhat slavishly, in asserting the doctrine of the Equality of States, and few of them paused to think out what it meant, and where it came from. To have doubted it would have been to lay hands upon the ark of the covenant. But Lorimer,11 Regius Professor of Public Law and the Law of Nature and Nations in the University of Edinburgh, an original thinker whose work does not receive today the attention which it deserves, (largely, I think, because he was a reformer and was apt to speak de lege lata and de lege ferenda in the same breath,) did a great deal in his Institutes of Law, published in 1872, and his Institutes of the Law of Nations in 1883, to start the questioning and re-consideration of the doctrine. He was in part a naturalist for the reason that Grotius was and that all must be who seek to impart an ethical element into the development of international law, but he was a naturalist who could face the facts, and there are signs that in the period of constructive and practical idealism which began in 1919 he is coming into his own again. On the matter in hand he said:12 All States are equally entitled to be recognized as States, on the simple ground that they are States; but all States are not entitled to be recognized as equal States, simply because they are not equal States. Russia and Roumania are equally entitled to be recognized as States, but they are not entitled to be recognized as equal States. Any attempt to depart from this principle, whatever be the sphere of jurisprudence with which we are occupied, leads not to the vindication but to the violation of equality before the law. To pursue the literary side of the controversy, we find Kaufmann13 in 1911, referring to the passage from Westlake cited above, and saying: The right to equality, in the sense of an inherent equality of power and rights, is nonsense, and in the sense of formal equality of capacity for rights is nothing else but a tautological expression for the conception of International Personality. The doctrine is also severely criticised by Nelson14 in 1917, and since the World War one German writer after another has joined in the hue and cry, the ­influence of pickinson being patent and acknowledged. 11 12 13 14

See Dickinson, op. cit., p. 136. Institutes of the Law of Nations, vol. ii, p. 260(n). Das Wesen des Voelkerrechts und die Clausula Rebus Sic Stanibus (1911) p. 195. Rechtswissenschaft ohne Recht (1917), particularly pp. g6–106. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Fleischmann in his edition of Liszt qualifies his author’s dogmatic statement of the doctrine with the sentence: “But what is meant is not absolute equality but only relative equality in the weight or position as States15 (Staatsgeltung).” And Verdross in Strupp’s Woerterbuch16 emphatically repudiates the doctrine as a fundamental principle of international law. C

The Present

In order to consider the present meaning, operation, and utility of the doctrine, let us turn to Dickinson’s analysis of it. For him17 it expresses “two important legal principles”: (1) “the equal protection of the law or equality before the law,” and (2) “equality of capacity for rights”. To these we may add what is, I think, a third and distinct principle, (3) “equality for law-making purposes”, and then (4) we shall briefly notice the application of the doctrine in the Covenant of the League of Nations. I. Forensic equality. In the first sense, the doctrine embodies a reality which hardly requires illustrations.18 An international tribunal, or a municipal tribunal when giving effect to the international obligations of the State to which it belongs, pays the same attention to the rights of France as it does to the rights of Costa Rica. And Chief Justice Marshall in 1825, in The Antelope19 said: No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It ­results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. If you and I were both injured in the streets of London as the result of the negligent driving of motor cars, you by the ambassador of France, and I by the diplomatic agent of Costa Rica, neither of us could recover damages unless the defendant’s Government elected to waive the right of diplomatic immunity which international law confers upon it in the person of its diplomatic representative. If Miss Mighell had promised to bestow her hand and fortune upon an Emperor of all the Russias instead of a Sultan of Johore, she would 15 16 17 18 19

Voelkerrecht, 12th ed. (1925) p. 117. Vol. i, p. 424. Cf. pp. 334–335. See the Award in a recent Arbitration between the United States and Norway, American Journal of International Law. xvii (1923) at p. 392. Wheat 66. Scott, Cases on International Law at p. 10. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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have been in the same unfortunate position when she sought to recover damages in England from her faithless suitor; though far from equal in the possession of rights, they would both have had an equal claim to such rights as they possessed, one of which would have been that of immunity from process in an English court. II. Equality in the Acquisition and Exercise of Rights. On the other hand, “equality of capacity for rights” may be an ideal but it is not a reality. International law recognizes differences in the status of its subjects just as in English law we find the status of an infant, a lunatic, or a married woman differing from that of a sane adult male or unmarried woman. If you by negligently driving your car inflict injury upon any one of these persons you will find that they have an equal right to be protected from bodily injury resulting from your wrongful act. But if you attempt to make the same contract separately with each of these persons, you will find that, according to the nature of the contract and the varieties of their status, the same contract will have widely differing legal effects. The infant, the lunatic, and the married woman are equal to the normal legal person in regard to the protection and enforcement of such rights as they may possess; but they are inferior to him in the range of rights which they can legally acquire or exercise. Turning to international society, it seems fair to say that a State under a protectorate and a neutralized State have each a definite status in virtue of which, so long as it lasts, their capacity for the acquisition and exercise of rights is less than that of the normal, fully independent State. Among protected States may be mentioned Danzig under the protection of the League of Nations, Zanzibar under that of Great Britain and Morocco under that of France. It is dangerous to generalize upon the condition of protected States, and it suffices to point out the characteristic that the right of managing the international affairs of the State under protection is to a greater or a less degree vested in the protecting State, so that the status of the protected State is inferior to that of the normal State and its capacity for acquiring and exercising rights is therefore subnormal. Similarly we find Switzerland, a permanently neutralized State, unable to conclude treaties of guarantee or alliance or other treaties which involve her in offensive hostilities, and therefore only able to join the League of Nations upon special terms whereby she “shall not be forced to participate in a military action or to permit the passage of foreign troops or the preparation of military enterprises upon her territory.”20 And many writers hold that a 20

Mowat in British Year Book of International Law, 1923–24, pp. 90–94.

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neutralized State cannot legally acquire new territory without the consent of the guarantors of her neutralization.21 Nevertheless, a neutralized State must not be regarded as a half sovereign State. May it be put this way? The Equality of States in the protection of their rights is a rule of law. But the equality of States in capacity for acquiring and exercising legal rights is the statement of a political ideal. Whether or not it is desirable to realize that ideal, we are not at present discussing. It may be said justly that the incidents of international status are not enough to account for the gross political inequality of States which patently exists. Even when you have enumerated all the States under protection or under a League of Nations Mandate (and it must be admitted that Iraq at any rate is a State), your list is not a long one, and you have barely touched the fringe of political ­inequality. That is perfectly true. Status will not carry us far. A subnormal ­status not ­infrequently originates in a treaty, but we shall find that the greater part of this inequality at present existing arises from treaties and yet cannot be said to produce a change in status, to make the inferior State a half-sovereign state. A survey of the world will confront us with the spectacle of a number of States which as the result of the provisions of treaties are politically and sometimes economically dependent upon and unequal to certain other States to which they stand in a special relation. The system of capitulations whereby certain States, China, for instance, or Turkey before the Treaty of Lausanne, have agreed by treaty or by custom to surrender the right to try certain classes of foreigners for crimes committed within their territory, affords an illustration. There you have a sample of the “unequal treaties” about which we are now hearing so much. Again, whereas according to the practice of many, if not of most States, the immunity of a State and of its property from process in the courts of a foreign State is not forfeited by embarking upon trading ventures, we find that as a result of the Peace Treaties of 1919 Germany,22 Austria23 Hungary24 and Bulgaria25 when engaged in trade forfeit “the privileges and immumbes of sovereignty”; and the same Peace Treaties will afford many other illustrations of inequality. Another kind of inequality resulting from treaties occurs where States have by treaties made with more powerful neighbors limited their treaty-making 21 22 23 24 25

See Oppenheim, op. cit. vol i. § 96. Art. 281. Art. 233. Art. 216. Art 161.

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power, as in the case of Cuba26 and Haiti27 or in some other way impaired their freedom of action, as in the case of Panama.28 In short, it will not explain the political inequalities of international society to say that there is one law for the weak and another for the strong; there is not, though it may be easier for strong States to break the law with impunity than for weak ones to do so, nor can existing inequalities be attributed except in a comparatively trivial degree to differences in legal status. We must look elsewhere. The overwhelming bulk of them are due to the existence of treaty obligations entered into between pairs of superior and inferior States. It would be an unworthy quibble for a student of international law to leave it at that and to reply that if a State chooses to make itself politically unequal by entering into a treaty, that has nothing to do with international law, that a treaty is a treaty, and that the sole concern of international law is to afford equal protection of treaty and other rights. Modus et conventio vincunt legem. The truth is that in two important and relevant respects international law lags behind the private law of most civilized States and international treaties differ from private contracts. The first is that international law does not recognize the fact that one party to a treaty was induced by duress or coercion or undue influence to make it, as a ground for treating it as invalid. The second is that only in the most rudimentary degree does international law recognize that a treaty which conflicts with morality or with policy is void and need not be performed. Of these each in its turn. (a) Duress or Coercion, and Undue Influence. Hall29 states that i­ nternational law regards all compacts as valid notwithstanding the use of force or intimidation, which do not destroy the independence of the State which has been obliged to enter into them. When this point however, is passed constraint vitiates the agreement, because it cannot be supposed that a State would voluntarily commit suicide by way of reparation or as a measure of protection to another.30 His justification of the rule is that otherwise “few treaties made at the end of a war or to avert one would be binding, and the conflicts of States would end only with the subjugation of one of the combatants or the utter exhaustion of 26 Hyde, International Law, vol. i. § 19. 27 Ibid. § 22. 28 Ibid. § 20. 29 International Law, § 108. 30 Fiore, International Law Codified, (Borchard’s Translation, § 760) imposes a similar limitation upon the validity of a treaty. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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both.”31 But duress applied to a negotiator and inducing him to sign a treaty is said to vitiate the treaty, though, as Hyde points out,32 the only scope for the operation of this rule would appear to be when the negotiator had power to bind his State without the necessity of ratification. No one can regard the position of duress in international law as satisfactory or as consistent with a civilized society. But so long as international law is unable to distinguish between just and unjust exercise of force, it follows a fortiori that is must recognize the fruits of veiled or unveiled threats of force when embodied in a treaty.33 (b) Morality and Public Policy. “If international law obtains among enlightened States,” says Hyde,34 “it is not unreasonable to assert that that law may denounce as internationally illegal, agreements which are concluded for the purpose of securing the performance of acts acknowledged to be lawless and contemptuous of fundamental principles of justice;” for instance, a secret alliance for an unprovoked attack upon an unoffending State and its subsequent partition amongst the aggressors, or a treaty recognizing and guaranteeing the appropriation of a portion of the open sea.35 And Hyde further suggests that there is a growing recognition of the “principle of self­determination,” the crystallization of which into a rule of law would make the validity of a treaty for the cession of territory depend upon the consent of its inhabitants.36 In some systems of private law contracts may be held void not merely on the ground that they tend to further the commission of a crime or are illegal in some other way, but alternatively on the ground that they conflict with what the English ­common law calls “public policy,” either political or economic, for 31

See Grotius, De Jure belli ae Pacis, lib. ii, c. xvii, § 19: “As, by the consent of nations, a rule has been introduced that all wars, conducted on both sides by authority of the sovereign power, are just wars; so this also has been established, that the fear of such a war is held a justly imposed fear, so that what is obtained by such means cannot be demanded back” (Whewell’s translation). See also lib. ii, c. xi, § 7, where he is not so definite. See also Vattel, Book iv, c. 4, § 37, who states quite dogmatically that “on ne peut se degager d’un Traite de Paix en alleguant qu’il a ete extorque par Ia crainte, ou arrache de force.” On the subject of duress in international law, see Lauterpacht. Private Law Sources of and Analogies in International Law (1927) pp. 161–167. 32 Op. cit., ii, § 693. 33 It is believed that the effect of duress or undue influence upon the validity of a treaty has not yet been considered by an international court or tribunal of arbitration except perhaps in the Croft Arbitration between Great Britain and Portugal in 1856, and then only indirectly; see Lapradelle-Politis, Rec teil des arbitrages internationaux, ii. pp. 36–37. 34 Op. cit. ii. § 490. 35 Vattel, Law of Nations, Book ii, c. xii, § 161; Hall, op. cit. § ro8; Oppenheim, op. cit. i. § 505. For Members of the League, Article IO of the Covenant demands consideration in this respect. 36 Op. cit. i. § 108. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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instance, a contract imposing an undue restraint upon a man’s liberty to dispose of his capital or his labour as he wills, or a contract which ‘savours of slavery’ by tending “to impose servile obligations upon one party to it.”37 How far does international law go in this direction? Beyond a few vague and unsatisfactory assertions by one writer after another, taken over as part of the traditional stock-in-trade, we get no guidance. Vattel38 tells us that “a treaty concluded for an unjust or dishonest purpose is absolutely null and void, nobody having a right to engage to do things contrary to the law of nature.” He also has a great deal to say in criticism of unequal treaties and “unequal alliances,” but more on the ground of the imprudence of entering into such treaties than of their immoral and impolitic tendencies. Fauchille39 regards as “nulle pour illicite de son objet toute convention ­tendant a la violation … des regles de la morale universelle, des droits fondamentaux de l’humanite.” And Oppenheim asserts it to be40 “a customarily recognized rule of the Law of Nations that immoral obligations cannot be the object of an international treaty.” Many similar assertions could be cited. They are as a rule unsupported by illustrations, and so far as I am aware, have never received the specific imprimatur of an international court or tribunal of arbitration. They are, as Vattel indicates, recruited from the law of nature—none the worse for that-and embody an ideal to be striven for rather than a positive rule of law. The cause of their inadeqllacy is probably the same as that which underlies the rule as to duress already examined; namely, that, so long as international law recognizes the fruits of the exercise of force, it is difficult for it a fortiori effectively to restrain or condemn the achievement, by means of treaty obligations, of ends which conflict with international morality and public policy. 37

38 39 40

Horwood v. Millar (1917) I K. B. 305 (where a man of small means bound himself body and soul to a money-lender into whose clutches he had f allen: contract void). Contrast Denny (Trustee) v. Denny & Warr (1919) IK. B. 583 (where a father imposed by contract severe restrictions upon his son as to mode of life, place of residence, companions, relations with money­lenders, etc., and, the object being to save the son from moral and financial ruin, the contract was held not to be contrary to public policy and was enforced). It is a reasonable analogy to compare the financial object of the contract in the last-named case (omitting the moral object which is inapplicable) with the financial object of a treaty between a powerful State and a weak State whereby the former in return for certain serious impairments of the independence of the latter agrees to give its assistance and protection with a view to the achievement of the latter’s financial and political rehabilitation; for instance, the treaties between the United States and the Dominican Republic (see Hyde op. cit. i. § 2I) and Haiti (see Hyde op. cit. i. § 22) respectively. Op cit. Book ii, c. xii, § 161. Droit International Public, t. i. (Paix) § 819. Op. cit. i, § 505. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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III. Equality for law-making purposes. There is yet a third sense which may be attributed to the doctrine of the Equality of States and in the light of which that doctrine must be considered. The law of nations is based on the common consent of States, and that consent may be evidenced either (a) tacitly, by custom, or (b) expressly, by treaty. How far does the Equality of States prevail in these respects? Oppenheim41 indeed regards equality as an inference from this necessity of common consent: Since the Law of Nations is based on the common consent of States as sovereign communities, the member States of the Family of Nations are equal to each other as subjects of International Law. Upon the question whether that consent must be literally universal before any given rule may be said to be a rule of international law, there is some difference of opinion. Oppenheim says42 that common consent can … only mean the express or tacit consent of such an overwhelming majority of the members that those who dissent are of no importance whatever, and disappear totally from the view of one who looks for the will of the community as an entity in contradistinction to the wills of its single members. But that is not a satisfactory test. Lord Alverstone in the case of the West Rand Central Gold Mining Company v. Rex43 said, with reference to the statement that “international law forms part of the law of England,” that the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must show either that the particular proposition put forward has been recognized and acted upon by our country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it. The necessity of the individual consent of States is clearer in the case of that portion of international law of which the source is law­making treaties. Oppenheim classifies the law deriving from such treaties as particular when they are “concluded by a few States only,” general “when the majority of States, 41 42 43

Op. cit., vol. i, § 16. Op. cit., vol. i, § 11. (1905) 2 K.B. at p. 407. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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i­ ncluding leading Powers, are parties to them,” and only as universal “when all the members of the Family of Nations are parties to them,” at the same time pointing out that “general international law has a tendency to become universal.” That a powerful group of States cannot make law for the whole world is expressly admitted in the Declaration of Paris, 1856, which states that “the present Declaration is not and shall not be binding except between those powers who have acceded or shall accede to it.” During the World War the prize courts of the belligerents were faced with the fact that a number of the Hague Conventions relating to maritime warfare, while ratified by the principal belligerents, had not been ratified by some of the less important, for instance, Montenegro, having no navy, and Serbia, having no sea coast.44 In strict law, therefore, as the result of the “general participation” clause, a Convention in this condition was not binding on a British or a German court. Nevertheless, both British and German prize courts declined to take advantage of this technicality and considered themselves bound by the contents of such a Convention, if not by the Convention itself. It will be noticed, however, that in these cases there was no question of holding a State bound by a treaty to which it was not a party. It may often happen that a lawmaking treaty is in substance declaratory of existing customary law and only in name law-making; in such a case a State which is not a party to it may be bound by the customary law but it cannot be bound by the treaty. The requirement of common consent has its good side and its bad side. The bad side is that it operates as a clog upon the process of law-making. The good side is obvious. It is oppressive that a State should be bound by rules of law to which it has not consented. That seems almost a platitude. But few persons would regard it as oppressive that you and I who are subject to the laws of Great Britain should be bound to obey laws to which we have not specifically given our consent. This contrast shows how widely different are the ideas which prevail regarding international society and the society which makes up one State. Most of us accept without question the fact that a municipal legislature acting by a majority of its members, can bind all persons subject to its laws whether they like them or not,45 but an invitation to apply the same principle 44

45

The Moewe (1915) P. at p. 13; IB. and C. P. C. 60, 70; The Fenix Zeit­schrift fuer Voelkerrecht, vol. ix (1915–1916) p. 103; cited by Garner, Interna,­tional Law and the World War (1920) pp. 25–27. See also The Blonde (1922). I A. C. at pp. 323, 324, 3B. and C. P. C. 1031, 1038; and on the “general participation clause” (Allbeteiligunsklausel) Zitelmann in Archiv des oeffentlichen Rechts, val. xxxv (1915) pp. 1–27 and in Strupp, Woerterbuch, i. pp. 31–32. It is interesting to notice that it was considered necessary to provide in clause 14 of Magna Carta, which describes the composition of the Feudal Assembly and probably by analogy influenced the National Assembly, that the consent of those present on the appointed Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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to the Family of Nations gives us something of a shock. Let us see whether there is anything to be said for the principle in the international sphere. How is international law going to adapt itself to the needs of the society of States if every step is to be dogged by this requirement of common consent? Custom is a slow business, and no one whose desire is to accelerate the establishment of the rule of law over a continually expanding sphere of international relationships can be accused of impatience when he looks to a series of law-making treaties rather than to the tardy operation of custom as the main instrument for the achievement of this desirable end. Law-making treaties do for international society what legislation does for the society of an individual State; they represent the conscious and deliberate creation and adaptation of the law in contrast to custom. Says Professor Brierly:46 International law lost the most fruitful seed of development that it has ever had when, far too early for the health of the system, though doubtless inevitably, its foundation in natural law was undermined. With the triumph of the positive school the problem of development became universally more difficult, for the system possesses hardly any of the apparatus of change that exists within a municipal system. Not only has it no legislature, and until recently no courts; but even the spontaneous growth of a new customary rule is incomparably more difficult than it is within the community of a State. There is the problem. How can we supply this “apparatus of change”? Oppenheim in an article entitled “The Future of Interna­tional Law,”47 published in 1911, in discussing international legislation and after commenting upon the Hague Peace Conferences as a legislative organ, pointed out that,48 A difficulty of a special kind besets international legislation, owing to the fact that international rules cannot be created by a majority vote, and that, when once in existence, they cannot be repealed save by a unanimous resolution. But (he continues) when once we free ourselves from the preconception that the equality of States makes it improper for l­egislative

46 47 48

day shall bind those who, though summoned, have not attended. Even then (1215) it was apparently not considered right that of those present the consent of the majority should bind the minority. “The Shortcomings of International Law” in British Year Book of International Law, 1926, at p. 9. Translated into English by Bate and published by the Carnegie Foundation of International Law in 1921. At pp. 30–31. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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conferences to adopt any resolutions which are not unanimously supported, there is nothing to prevent a substantial result being arrived at even without unanimity. At this point the difference between general and universal international law furnishes a way out (italics mine). Rules of universal international law must certainly rest on unanimity. It is postulated in the equality of States that no State can be bound by any law to which it has not given its consent. But there is naught to prevent a legislative conference from framing rules of general international law for those States which assent to it and leaving the dissentient States out of consideration.49 In no long time thereafter the dissentient States will give in their adherence to these conventions, either in their existing or in some amended form. This was not mere idle speculation. It is in fact the process by which important rules of general (and sometimes even particular) international law have become in substance universal. The Declaration of Paris 1856, prescribing four important rules of maritime warfare, was made by seven States. Today the United States of America is the only important power which has not yet actually acceded to the Declaration. Nevertheless in the American Civil War and in the Spanish-American War the United States adopted the provisions of the Declaration. Half a loaf is better than no bread. Hitherto this process of international legislation has been too occasional, too haphazard, too spasmodic. There are signs that it is about to become conscious, regular, and deliberate. The League of Nations has appointed a Committee of Experts for the Progressive Codification of International Law, which is now at work. A prominent citizen of the United States sits upon it. It is sincerely to be hoped that, as and when the council of the League receives reports from this Committee upon the different topics of law which they consider ripe for codification, the Council will not feel bound to insist on a prospect of unanimity before taking the necessary steps for the drafting of the various conventions. Let them be drafted and opened for signature. Some States may refuse to sign a convention, others may sign it reserving liberty to denounce it after a period of years, others with other reservations of much or minor importance. At any rate a beginning will have been made, and it will become increasingly difficult for any State which values membership of the Family of Nations to maintain its dissent once it finds itself in a rapidly dwindling minority.50 49 50

Notice the procedure of the International Labour Oragnization and particularly Article 405 of the Treaty of Versailles, 1919. Note Hall, writing in 1880 on p. 12 of the first edition of his International Law of the Declaration of Paris: “if the signatories to it continue to act upon those provisions, the United Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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IV. Equality in the League of Nations. Little need be said of the Equality of States  in the League, for much has already been written upon it.51 Politically, the League is realist in that its Constitution, while providing for absolute equality in the Assembly, recognizes that a Council which did not embody the historical fact of the preponderating influence of the Great Powers in world affairs would not exercise much influence upon those affairs.52 Accordingly we find five Great Powers permanently represented upon it, France, Germany, Great Britain, Italy and Japan, and provision exists for creating further permanent seats as and when they may be required. (The United States was likewise named in the Covenant as a permanent member.) It is this permanent representation of the Great Powers that links the League for good or for ill, with the Concert of Europe. The States occupying the nine non-permanent seats are normally not re-eligible, when their terms of office expire during the following three years. But at the meeting of the Assembly in 1926 a power was conferred upon the Assembly to declare in advance any State, elected to a nonpermanent seat, to be re-eligible; thereupon, such State on or before the expiry of its term of office may, but not must, be re-elected. Poland was elected to a non-­permanent seat in 1926 for three years, and thereupon at her request the Assembly declared her to be re-eligible. Thus we have at the present moment three grades of States on the Council: five permanent, eight non-permanent and not immediately re-eligible, and one non-permanent but re-eligible immediately upon the expiry of its term of office. The nine non-permanent States sit for different periods of years, three, two and one, but that is a matter of machinery rather than of status. The preponderance thus given in the League to five Great Powers is not confined to their influence in the every day business of the council itself; for in several respects the Covenant places members of the Council in a position superior to the rank and file of the Assembly. Thus under Article 16 it is the Council which can expel a member from the League for violation of the Covenant, and under Article 26 amendments of the Covenant do not become effective until ratified by all the members represented on the Council and a majority of the Assembly.

51 52

States will come under an obligation to conform its practices to them in a time which will depend on the number and importance of the opportunities which other states may possess of manifesting their persistent opinions.” See Schiicking and Wehberg, Die Satzung des Viilkerbrmdes (2nd. ed.) 4 pp. 142–144; Scelle in Munch’s Les origines et l’oeuvre de Ia Societe des Nations, vol. i (1923) p. 66; Dickinson, op. cit. pp. 337–338 and Armstrong in American Journal of International Law, xiv, pp. 540–564. As regards the application of the principle of equality in the selection of the judges of the Permanent Court, see Fernandes, Le Principle de l’egalite juridique des etats daru l’activite international de l’apres-guerre. (1921) (Geneva). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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But apart from the inequality embodied in the constitution and powers of the Council, which I think most friends of the League will consider to have been justified by the facts of international society as it stood in 1919, whatever amendments the future may have in store, the League is based on the Equality of States; that is, on their independence, on the theory that one is as good as another and that no one can be bound by any decision of the League except in matters wherein it has agreed to be bound by a majority vote. Hence, unanimity is the general rule at meetings both of the Council and of the ­Assembly, and a majority vote is the exception. The exceptions are very considerable and commentaries upon the League may be referred to for them. The most53 important is the power of the council or of the Assembly to make, without the concurrence of the parties to the dispute, a report upon a dispute referred to it under Article 15. The other exceptions relate mainly to matters of procedure. An illustration of the normal necessity of unanimity may be recalled in the case of the resolution interpretative of Article 10, which was introduced by Canada in the Assembly in 1923 and which, unanimity being essential failed to secure adoption by reason of the opposition of Persia alone.54 D

The Future

Can any suggestion be made for mitigating the legal inequalities which we find existing in the present international society? Most writers upon international law, following the example of the father of the science, have conceived it to be their duty not merely to state the law as they see it but to make suggestions for its improvement. The pity is that so many of them in doing so have not made it clear when they are writing de lege lata and when de lege ferenda. In their zeal for amendment they are prone to attempt to give the desired amendment the prestige of established law-to the disrepute of the whole science. Let it be clear, therefore, that I now speak de lege ferenda. In order to remove the defects in the system of international law which I have described, international law must evolve some machinery whereby the expressed intention of the parties shall not be the sole test of the validity of treaties; for we know by experience that in many cases one party has expressed its intention under coercion and that in many other cases the intentions of all the parties freely expressed may involve acts which 53 Pollock, League of Nations, 2nd. ed. (19:22) pp. 1og-uo; Schiicking und Wehberg, op. cit. pp. 335–338; Fischer Williams in American Journal of International Law, xix (1925) pp. ­475–488; McNair in British Year Book of International Law, 1926, pp. 1–13. 54 Records of the Fourth Assembly (1923). Resolutions and Recommendations Adopted, p. 34. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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are immoral or contrary to the general interest of the society of States. In private law the maxim, modus et conventio vincunt legem, is balanced by another; privatorum conventio juri publico non derogat. Sooner or later some international authority must be constituted or recognized as having power in the public interest to withhold the public imprimatur which should be essential to the validity of a treaty. One’s thoughts naturally turn to the League of Nations which represents a very large part of the Family of Nations in its organized form. Without ignoring the important States which are outside that organization, let us examine it in order to see whether we can detect any machinery conceivably capable in the future, however, remote, of being adapted for our present purposes. Article 18 of the Covenant provides that, Every treaty or international engagement entered into hereafter by any member of the League shall be forthwith registered with the Secretariat, and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.55 There is nothing to prevent the registration with, or at any rate communication to, the Secretariat of treaties by States which are not members of the League, followed by their publication by the Secretariat, and a perusal of the Treaty Series of the League of Nations reveals instances of treaties communicated to the Secretariat by the United States of America, by Germany (before admission to the League), and by Ecuador. At present, it cannot be too plainly stated, the functions of the Secretariat under this article are purely ministerial. It was suggested by Mr. Leon Bourgeois at a meeting of the Council that States which presented for registration a treaty containing clauses incompatible with the letter or the spirit of the Covenant should be asked to modify them; and the representative of Greece at the Second Assembly56 proposed the addition to Article 18 of a clause, whereby, Any treaty, the provisions of which in the unanimous opinion of the Council are contrary to international public order, shall not be registered and shall, therefore, be deemed to be non-existent.57

55 56 57

Upon this article, see Manley Hudson, “The Registration and Publication of Treaties” in American Journal of International Law, xix (1925) pp. 273–292. Minutes of Fifth Session of Council, p. 13; cited by Manley Hudson. Op. cit. p. 278. Records of Second Assembly, Meetings of Committees, i, 77; cited by Manley Hudson, op cit. p. 279. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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But neither of these suggestions met with success. On the other hand, there are indications that the registration of a treaty need not necessarily be a “clean” registration. In 1926 we find a strong pro­test being made by the Government of Abyssinia to the States members of the League of Nations against the contents of an agreement made between Great Britain and Italy regarding the economic development of Abyssinia, which not being a party to the agreement was not bound by it. The Government of Abyssinia having received reassuring replies from Great Britain and Italy addressed a further communication to the Secretary-General, with the request that it should be registered and published ­together with the Anglo-Italian agreement. Thereupon the Secretary-­General announced that this communication would be published in the Official Journal and that a suitable reference to it would be made in the Treaty series against the text of the notes exchanged between the British and the Italian Governments.58 That was a case of a protest by a third State. It is not unlikely that it may be followed later on by other instances of protest by third States not parties to a treaty presented for registration or even by one of the parties themselves which has not been a free agent in the matter. Such a caveat if noted in the Treaty Series would mar the “cleanness” of the registration and would in fact have the moral weight of a reservation of rights, even though at present no legal weight can be attached to it. These are but straws, however, and it would be idle to suggest that the League is yet strong enough to assume the task of acting as a censor of the treaties which its members may choose to make. E Conclusion Let me now try to sum up. The idea of equality, when it affected an entry into the field of international law, gave birth at the hands of the naturalists to the doctrine of the Equality of States. That doctrine has three meanings. In the first, it is used to denote Equality before the law, equality in the assertion and vindication by law of such rights as a state may have, what I have ventured to call Forensic Equality. In this sense the Equality of States is a normal fact of international jurisprudence; it is a just and necessary principle, and requires no particular comment. In the second sense, it denotes Equality in the acquisition and exercise of rights, equality of capacity for rights. Here the doctrine may or may not repre-

58

L. N. Off. Jo. xi, (1926), p. 1526; L. N. Treaty Series, vol. 50, p. 282; British Official Paper, C. M. A. 2792.

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sent an ideal but it does not embody a reality. The existing inequality of capacity for rights is due only in a very small degree to inequalities of status; thus Switzerland by reason of her permanent neutralization, or Danzig by reason of being under the protection of the League, cannot be said to have full and normal capacity for rights. But far more than status the true cause of the existing inequality of capacity for rights is the fact that a great many States have, with the approval and sanction of international law, entered into treaties which permanently impair their capacity for acquiring and exercising rights; for instance, Panama by reason of her treaty arrangement with the United States of America. I say with the approval and sanction of international law, because there exist at present in that system of law no rules which invalidate a treaty on the ground of duress or coercion or undue influence, and only the most embryonic rules relating to morality and public policy. Not until international law succeeds in developing such rules will there exist anything like equality of capacity for rights among States. In the third sense, the doctrine of the Equality of States denotes Equality for law-making purposes. Here it has operated as a clog on the process of international legislation. Without holding that a State is bound by a convention to which it has not consented, it is desirable that complete unanimity should not be regarded as essential for the framing of law-making conventions and for opening them for signature. Conventions which embody general international law tend by the lapse of years to receive the adhesion of originally dissentient States and thus to become universal international law. It is in the highest degree desirable to see the rule of international law extended by agreement, and a pedantic insistence upon unanimity must not be allowed to obstruct the process of drafting Conventions and opening them for signature. If a too literal adherence to the doctrine in the last sense may have retarded the creation and development of international law, it may at any rate be claimed that in the second sense much remains of good for the application of the doctrine to achieve; for here it may foster the development of some legal principle, or the creation of some administrative machinery, which will mitigate that large part of the existing inequality between States resulting from treaties—treaties made under duress or coercion and treaties open to grave questions on the ground of international public policy and morality but nevertheless valid in the present imperfect condition of the law of nations.

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Chapter 40

Ian Brownlie, Principles of Public International Law, 1973 Comment by Professor James Crawford AC, SC, Judge, International Court of Justice Sir Ian Brownlie (1932–2010) read law at Oxford, and (for a year) at Cambridge. He taught law, including international law, at Nottingham, Oxford and the LSE before returning to Oxford as Chichele Professor (1980–1999). He was the author of a number of important works, including International Law and the Use of Force by States (1963, based on his Oxford DPhil), African Boundaries: A Legal and Diplomatic Encyclopaedia (1979), State Responsibility: Part One (1983) and his Hague General Course, ‘International Law at the Fifteenth Anniversary of the United Nations’, Recueil des Cours (1995), reprinted as The Rule of Law in International Affairs: International Law at the Fifteenth Anniversary of the ­United Nations (1998). From the early 1980s he was a key figure at the international law bar, practising from Hare Court, forerunner of Blackstone Chambers. He served on the International Law Commission (1997–2008), including as President (2007). In 1966 his Principles of Public International Law was published by Oxford University Press. This single-volume general treatment of core aspects of international law was the most substantial single volume textbook on the subject in its time, certainly in English. He took it through seven editions, seeing it translated into Russian (second edition), Japanese (third edition), Portuguese (fourth edition), Korean (fifth edition) and simplified and complex Chinese (fifth and sixth editions, respectively). Its second and arguably best ­edition (1973) was awarded the Certificate of Merit by the American Society for ­International Law, with the citation describing it as “a work of great distinction”. Currently in its eighth edition (2012), it retains its place after 50 years as one of the lapidary texts of public international law. According to Brownlie, international law is the product of ordinary legal technique (a technique assumed to be generally valid) applied to the materials of international relations considered in detail and in all their particularity. What is presupposed is not any overarching principle or value, but an evident need for order and an assumption that the meaning of commitments, formal or customary, will yield to standard methods of textual analysis. © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_041

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A strength of Principles is its capacity to convey international law as a s­ ystem, based on, and helping to structure, relations among States and other entities. Brownlie’s understanding of the common themes within this system seems to have informed his choice of the term “principles” in the title. Yet he was disdainful of “grand theories” and similar unifying structures. The idea that Principles is a sort of perennial Bin Cheng – a search for and articulation of a priori valid general principles capable of providing an erga omnes justification underpinning each area – is far from the truth.a Indeed, from a certain point of view Principles is a conceptualisation of international law that contains no principles; only broad brushstrokes which may be displaced by ­particular contexts and requirements – perhaps like any body of law in its practical application. The result is a subtle, occasionally elusive and elliptical, text which rewards (and often requires) re-reading.b In a number of respects the first edition was in advance of general opinion, notably in its unflinching acceptance of peremptory norms (jus cogens), which are seen as not limited to the law of treaties but as having system-wide effects, and (at the same time) his endorsement of the persistent objector rule as a manifestation of the underlying principle of state consent. He was unapologetic about the continued validity of sovereignty as an organising principle – a “constitutional principle” of the law of nations. But it was legal principle, one among others, and in progressive mode Brownlie embraced from the first self-determination as a peremptory norm, as well as general human rights, all contained by and part of the same law. The following, necessarily selective, passages are taken from the second edition, which was longer and more complete than the first (with the addition of new chapters on diplomatic and consular relations, international supervision, state succession and other cases of transmission of rights and duties).

a See B Cheng, General Principles of International Law as applied by International Courts and Tribunals (Grotius Publications 1987). [See Chapter 18 of this Anthology]. b Insightful reviews of various editions include RR Baxter, Book Review: Principles of Public International Law (1966). By I Brownlie & Basic Documents in International Law (1967). Edited by I Brownlie, (1967) 42 British Yearbook of International Law 333; dhn Johnson, Book Review: Principles of Public International Law (1966). By I Brownlie, 83 Law Quarterly review 461–3 (1967); FA Mann, Book Review: Principles of Public International Law (2nd edn, 1973). By Ian Brownlie, (1972–1973) 46 British Yearbook of International Law 504; Vaughan Lowe, Book Review: Principles of Public International Law (4th edn, 1990). By I Brownlie, (1991) 107 Law Quarterly Review 513; C Warbrick, Brownlie’s Principles of Public International Law: An Assessment, (2000) 11 European Journal of International Law 621; M Koskenniemi, Book Review: Brownlie’s Principles of Public International Law. By J Crawford, (2012) 83 British Yearbook of International Law 137. See also J Crawford, (2012) 11 Biographical Memoirs of Fellows of The British Academy 55. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

I. Brownlie, Principles of Public International Law, (2nd edn, Clarendon Press 1973). Excerpts: ‘Preface’, p v; Chapter IV ‘Incidence and continuity of Statehood’, pp 73-88; Ch XIII ‘Sovereignty and Equality of States’, pp 280–290; Ch XXII ‘Some incidents of illegality and the concept of jus cogens’ pp 496–503. Reproduced with the kind permission of Oxford University Press.

Principles of Public International Law* Ian Brownlie Preface The prime object remains that of the first edition: to present the subject matter in terms of law and legal technique, whilst making appropriate reference to the influence of policy and political conflicts. With the inclusion of new chapters the book provides a reasonably comprehensive account of the law of peace based upon the modern practice of states, the practice of organizations of states, and the decisions of international and municipal courts. In preparing the text reference has been made to available evidence of the practice of states generally. The writer has attempted to observe the professional standard which requires the recording of what is happening in the world at large and not merely what is pleasing to the eye. A true estimate of consensus or possibly emergent rules will not relate neatly to the view of any single state or group of states. Of course, in some areas of the law it is not possible to do more than to indicate the divergent tendencies. The second edition has been thoroughly revised. The changes in part r­ eflect particular episodes such as the Vienna Convention on the Law of Treaties and the decision in the Barcelona Traction case (Second Phase). New ­chapters ­relate to diplomatic and consular relations, techniques of supervision and protection, state succession and other cases of transmission of rights and ­duties. The treatment of the continental shelf has been expanded and included in a new chapter concerned with submarine areas. New sections relate to ­treaties and the interpretation of statutes in the United Kingdom (­Chapter II), micro-states (Chapter  IV), nonrecognition and sanctions (­ Chapter V), ­novation ­(Chapter  VII), oil pollution casualties and ‘pirate’ ­radio (Chapter XI), e­xtraterritorial enforcement measures (Chapter XIV), space vehicles (­Chapter XIX), causes of action and control of discretionary powers (Chapter XX), the obligation of putting an end to an illegal situation (Chapter XXII), * [Editors’ note: Footnote numbering has been amended for the purposes of the present Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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and the standard of non-­discrimination (Chapter XXIV). Topics accorded expanded treatment include the status of municipal law before international tribunals, state immunities, the nationality of corporations, ships and aircraft, jus cogens, state ­contracts, and the law of treaties. Three documentary appendices have been omitted from this edition. A short glossary of technical terms has been provided. As far as possible the text takes account of developments up to early August 1972. However, the substance of the text was completed in January 1972. A high proportion of the references are to sources and literature in English and French. In preparing a book of this kind I have been indebted to various useful contemporary sources and, in particular, the International Law Reports, edited by Mr. E. Lauterpacht, Q.C. The document reproduced at pp. 303–6 is taken from the same learned editor’s British Practice in International Law, 1967, p. 58. I am beholden to a number of friends and reviewers for criticisms and suggestions. Particular assistance came from Professor R.R. Baxter of Harvard Law School, Dr. K. Skubiszewski of the Adam Mickiewicz University, Poznań, Professor R.Y. Jennings, Q.C., of Cambridge University, and Mr. D.R. Harris, of Nottingham University. Of course, the text now presented remains my responsibility alone. Finally, I am grateful for the help and courtesy of the staff of the Clarendon Press. Neither the work for nor the publication price of the present book has been subsidised by any official source or private foundation. I. B. Oxford 4 September 1972 [...]

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Chapter IV - Incidence and Continuity of Statehood

1 Introductory The state is a type of legal person recognized by international law. Yet, since there are other types of legal person so recognized—as emerges from the previous chapter—the possession of legal personality is not in itself a sufficient mark of statehood. Moreover, the exercise of legal capacities is a normal consequence, rather than conclusive evidence, of legal personality: a puppet state may have all the paraphernalia of separate personality and yet be little more than an agency for another power. It is sometimes said that statehood is a question of fact, meaning that it is not a question of law. However, as lawyers are usually asking if an entity is a state with a specific legal claim or function in view, it is pointless to confuse issues of law with the difficulties, which undoubtedly exist, of applying the legal principles to the facts and of discovering the important facts in the first place. The criteria of statehood are laid down by the law. If it were not so, then statehood would produce the same type of structural defect that has been detected in certain types of doctrine concerning nationality.1 In other words, a state would be able by its own unfettered discretion to contract out of duties owed to another state simply by refusing to characterize the obligee as a state. Thus a readiness to ignore the law may be disguised by a plea of freedom in relation to a key concept, determinant of many particular rights and duties, like statehood or nationality. In starting from this position it will be apparent that the writer has in part anticipated the results of the examination of recognition in the next chapter. Nevertheless, as a matter of presentation the question whether recognition by other states is an additional determinant will be ignored in the present chapter.2 The subject of state succession is also excluded from the discussion, and the subject-matter conventionally described by that label is considered in Chapter XXVIII. However, when the continuity of states is considered some attempt will be made to distinguish this from state succession.3 In general the importance of the subject-matter is not reflected by the quantity of useful literature.4 Three factors have contributed to the creation of this 1 See infra, pp. 367 seq. [Editors’ note: not included in this Anthology]. 2 Certain special aspects of recognition and its congener, acquiescence, are noticed infra, at pp. 163–4. [Editors’ note: not included in this Anthology]. 3 See infra, pp. 84 seq. [Editors’ note: page 1073 of this Anthology]. 4 Generally see Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations, pp. 11–57; Briggs, pp. 65–85; Rousseau, 73 Hague Recueil (1948, ii), 171–253; Chen, The International Law of Recognition, pp. 54–63, 74–7; Whiteman i. 221–33, 283–476; Guggenheim, 80 Hague Recueil (1952, i), 80–96; Marek, Identity and Continuity of States in p.i.l. (1954); Fawcett, The British Commonwealth in I.L., pp. 88–143; Korowicz, 102 Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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state of affairs. First, though the subject is important as a matter of principle, the issue of statehood does not often raise long-standing disputes. In practice disputes concern the facts rather than the applicable legal criteria. Moreover, many disputes do not concern statehood simpliciter, but specialized claims, for example, to membership of the United Nations.5 Secondly, the literature is often devoted to the broad concepts of the sovereignty and equality of states6 and so gives prominence to the incidents of statehood rather than its origins and continuity. Finally, the political and legal nature of many complete rifts in  relations between particular states is represented by non-recognition of governments rather than of states.7 2 Legal Criteria of Statehood Article I of the Montevideo Convention on Rights and Duties of States8 ­provides: ‘The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) ­government; and (d) capacity to enter into relations with the other States.’ This brief enumeration of criteria is often adopted in substance by jurists,9 but it is no more than a basis for further investigation. As will be seen, not all the conditions are peremptory, and in any case further criteria must be employed to produce a working legal definition of statehood. The four criteria enumerated above, and other conditions proposed from time to time, will now be considered. (a) Population. The Montevideo Convention refers to ‘a permanent population’. This criterion is intended to be used in association with that of territory, and connotes a stable community. Evidentially it is important, since in the absence of the physical basis for an organized community, it will be difficult to establish the existence of a state. (b) Defined territory. There must be a reasonably stable political community and this must be in control of a certain area. It is clear from past practice that Hague Recueil (1961, i), 7–16, 86–103; Sørensen, 101 Hague Recueil (1960, iii), 127–33; Alfaro, 97 Hague Recueil (1959, ii), 95–103; Kelsen, Principles of International Law (2nd ed.), pp. ­307–8, 343–4, 381–7; Rolin, 77 Hague Recueil (1950, ii), 324–6; Mouskhély, 66 r.g.d.i.p. (1962), 469–85; Yrbk., I.L.C. (1949), pp. 37–8, 62 seq., 289; Verzijl, International Law in Historical Perspective, ii (1969), 62–294, 339–500; Lissitzyn, 125 Hague Recueil (1968, iii), 5–87. 5 On the various specialized claims see infra, p. 84. [Editors’ note: page 1073 of this Anthology]. 6 See generally infra, pp. 280 seq. [Editors’ note: page 1079 of this Anthology]. 7 See infra, Chapter v, Section 5. [Editors’ note: not included in this Anthology]. 8 Signed 26 December 1933; Hudson, Int. Legis vi. 620. 9 See, for example, Fitzmaurice, 92 Hague Recueil, 13; Higgins, op. cit., p. 13; Starke, Introduction (7th ed.), p. 101; Fawcett, op. cit., p. 92. See further Jessup, as U.S. representative in the Security Council, 2 December 1948, quoted in Briggs, p. 69 and Whiteman i. 230.

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the existence of fully defined frontiers is not required and that what matters is the effective establishment of a political community.10 In 1913 Albania was recognized by a number of states in spite of a lack of settled frontiers, and ­Israel was admitted to the United Nations in spite of disputes over her borders. (c) Government. The shortest definition of a state for present purposes is perhaps a stable political community, supporting a legal order, in a certain area. The existence of effective government, with centralized administrative and legislative organs,11 is the best evidence of a stable political community. However, the existence of effective government is in certain cases either unnecessary or insufficient to support statehood. Some states have arisen before government was very well organized, as, for example, Poland in 191912 and Burundi and Rwanda, admitted to membership of the United Nations at the seventeenth session of the General Assembly.13 The principle of self-­determination14 will today be set against the concept of effective government, more particularly when the latter is used in arguments for continuation of colonial rule. The relevant question may now be: in whose interest and for what legal purpose is government ‘effective’? Once a state has been established, extensive civil strife or the breakdown of order through foreign invasion or natural disasters are not considered to affect personality. Nor is effective government sufficient, since this leaves open the questions of independence and representation by other states to be discussed below. (d) Independence. In the enumeration contained in the Montevideo Convention, the concept of independence is represented by the requirement of capacity to enter into relations with other states.15 Independence has been stressed by many jurists as the decisive criterion of statehood.16 Guggenheim17 distinguishes the state from other legal orders by means of two tests which he regards as quantitative rather than qualitative. First, the state has a degree of centralization of its organs not found in the world community. Secondly, in a particular area the state is the sole executive and legislative authority. In other words the state must be independent of other state legal orders, and any interference by such legal orders, or by an international agency, must be based 10 11 12 13 14 15 16 17

See Jessup, op. cit. and Deutsche Kontinental Gas-Gesellschaft v. Polish State, Ann. Digest 5 (1929–30), no. 5, p. 15. See Guggenheim, op. cit., p. 83; Higgins, op. cit., pp. 20–5. Briggs, p. 104. See also ibid., pp. 108–13, 117–19, on the position in Albania 1913–24. Higgins, op. cit., p. 22. See further Chapter xxiv, Section 9. [Editors’ note: not included in this Anthology]. See Jessup, op. cit. See, in particular, Rousseau, op. cit., pp. 213 seq; Marek, op. cit., pp. 161–90. Op cit., pp. 83, 96. Cf. Rousseau, op. cit., pp. 220 seq.; and Marek, op. cit., p. 168.

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on a title of international law.18 In the normal case independence as a criterion may create few problems. However, there are sources of confusion. In the first place, independence may be used in close association with a requirement of effective government,19 leading to the issues considered earlier. Again, since a state is, in part, a legal order, there is a temptation to rely solely on formal criteria. Certainly, if an entity has its own executive and other organs, conducts its foreign relations through its own organs, has its own system of courts and legal system and, particularly important, a nationality law of its own, then there is prima facie evidence of statehood. However, there is no justification for ignoring evidence of foreign control which is exercised in fact through the ostensibly independent machinery of state. The question is that of foreign control overbearing the decision-making of the entity concerned on a wide range of matters of high policy and doing so systematically and on a permanent basis. The practice of states has been to ignore—so far as the issue of statehood is concerned—various forms of political and economic blackmail and interference directed against the weaker members of the community. Whilst it is a matter of appreciation, there is a distinction between agency and control, on the one hand, and ad hoc interference and ‘advice’, on the other. Dependent states. Foreign control of the affairs of a state may occur under a title of international law, for example as a consequence of a treaty of protection,20 or some other form of consent to agency or representation in external relations, or of a lawful war of collective defence and sanction ­leading to an occupation of the aggressor and imposition of measures designed to remove the sources of aggression. Allied occupation of Germany under the Berlin Declaration of 5 June 1945 is an example of the latter: supreme authority was assumed in Germany by the Allies jointly.21 Providing that the representation and agency exist in fact and in law, then there is no formal difficulty in saying that the criterion of independence is satisfied. Unfortunately writers 18 Cf. infra, pp. 77, 82 [Editors’ note: pages 1067, 1072 of this Anthology], and Chapter xv [Editors’ note: not included in this Anthology]. 19 In the Aaland Islands case (1920) the committee of jurists referred to the disorder existing in Finland and observed: ‘It is therefore difficult to say at what exact date the Finnish Republic in the legal sense of the term actually became a definitely constituted sovereign State. This certainly did not take place until a stable political organization had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops.’ (l.n.o.j (1920), Spec. Suppl. no. 3, p. 3.) This standard would have embarrassing consequences if widely applied. 20 On the possible effect of the jus cogens on such treaties see Chapter xxii, Section 5. 21 The occupation was not a belligerent occupation, nor was there a debellatio leading to extinction of Germany as a state: see Jennings, 23 B.Y. (1946), 112–41.

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have created confusion by rehearsing independence as an aspect of statehood and then referring to ‘dependent states’, which are presented as an anomalous category.22 Here the incidents of personality are not sufficiently distinguished from its existence. The term ‘dependent’ is used to indicate the existence of one or more of the following distinct situations: (1) the absence of statehood, where the entity concerned is subordinated to a state so completely as to be within its control and the origin of the subordination does not establish agency or representation; (2) a state which has made concessions to another state in matters of jurisdiction and administration to such an extent that it has in some sense ceased to be sovereign;23 (3) a state which has legally conferred wide powers of agency and representation in foreign affairs on another state;24 (4) a state, which in fact suffers interference from another state and may be a ‘client’ state politically, but which quantitatively is not under the complete and permanent control of the ‘patron’; (5) a legal person of a special type, appearing on the international plane for certain purposes only, as in the case of mandated and trust territories25 and some protectorates;26 (6) a state which fails to qualify as an ‘independent’ state for the purposes of a particular instrument. The category of independence (or sovereignty used synonymously) can only be applied concretely in the light of the legal purpose with which the inquiry is made and the particular facts. In the Austro-German Customs Union case27 the Permanent Court gave an advisory opinion on the question whether the proposed customs union was contrary to the obligations of Austria under a Protocol of 1922 ‘not to alienate its independence’ and to ‘abstain from any negotiations or from any economic and financial engagement calculated directly or indirectly to compromise this independence’. By a majority of eight to seven the Court held that the customs regime contemplated would be incompatible 22

See Hall, pp. 18, 20, 33; Oppenheim, pp. 118–19 (‘sovereignty’ used as a synonym for ‘independence’). 23 See infra, pp. 80–1 [Editors’ note: pages 1070–1071 of this Anthology]. On the former legal position of Kuwait: Whiteman i. 442–6. 24 This may occur without subordination. Since 1919 by agreement the Swiss Federal Council has conducted the diplomatic relations of Liechtenstein. 25 See infra, pp. 175–8, 181–2. [Editors’ note: not included in this Anthology]. 26 E.g. areas autonomous to some degree according to municipal law whose autonomy is placed under international guarantee. 27 (1931), P.C.I.J., Ser. A/B, no. 41; Green, p. 373; World Court Reports ii. 713.

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with these obligations. Here the term ‘independence’ referred to a specialized notion of economic relations in a treaty, and the obligations were not confined to abstention from actual and complete alienation of independence. In the case of the Tunis and Morocco Nationality Decrees28 the Permanent Court emphasized that protectorates have ‘individual legal characteristics resulting from the special conditions under which they were created, and the stage of their development’. A protected state may provide an example of international representation which leaves the personality and statehood of the entity represented intact, though from the point of view of the incidents of personality the entity may be ‘dependent’ in one or more of the senses noted above. In the case of U.S. Nationals in Morocco29 the International Court, referring to the Treaty of Fez in 1912, and the creation of a French protectorate, stated: ‘Under this Treaty, Morocco remained a sovereign State but it made an arrangement of a contractual character whereby France undertook to exercise certain sovereign powers in the name and on behalf of Morocco, and, in principle, all of the international relations of Morocco.’ It should be pointed out that a common opinion is that the evidence supported the view that the relation was one of subordination and not agency. It is sometimes said that international responsibility is a necessary correlative or criterion of independence.30 Broadly this is true, but the principle must be qualified when a case of international representation arises and the ‘protecting’ state is the only available defendant.31 Federations. The federal state as such has indisputable legal personality, and it is the status of the constituent states which creates problems. A federal constitution may confer treaty-making capacity and a power to enter into separate diplomatic relations on the constituent members. In the normal case, the constituent state is simply acting as a delegate or agent of the parent state.32 28 (1923), P.C.I.J., Ser. B, no. 4, p. 27; Briggs, p. 452; Green, p. 110; World Court Reports i. 145. 29 I.C.J. Reports (1952), p. 176 at p. 188; Green, p. 378. See also Guggenheim, op. cit., p. 96. Cf. the separate but dependent personality of India 1919–47; on which see McNair, Law of Treaties (1938), p. 76; Poulouse, 44 B.Y. (1970), 201–12; Oppenheim i. 209; and the opinion of Judge Moreno Quintana, I.C.J. Reports (1960), p. 95. Cf. also the position of Monaco in relation to France. On the status of Hungary after German occupation in 1944 see Effects of Jews Deported from Hungary case, Int. L.R. 44, 301 at pp. 334–42. 30 See Rousseau, op. cit., p. 250; Marek, op. cit., p. 189. 31 On agency and joint tortfeasors see infra, pp. 441–4. [Editors’ note: not included in this Anthology]. 32 See Fitzmaurice, Yrbk., I.L.C. (1956), ii. 118; and supra, p. 65 [Editors’ note: not included in this Anthology]. Cf. Lauterpacht, ibid. (1953), ii. 95, 137–9. The use of principles of international law by federal courts to settle intra-federal disputes is not decisive of the issue of legal personality. Contra, Cowles, 74 Hague Recueil (1949, i), p. 659 at pp. 740–54.

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However, by agreement or recognition, a federated state may assume a separate personality, as an analogue of statehood, on the international plane. Thus the Ukrainian S.S.R. and Byelorussian S.S.R., members of the Union of Soviet Socialist Republics, conclude treaties on their own behalf and are members of the United Nations.33 Associations of states. Independent states may enter into forms of co-­ operation by consent and on an equal basis. The basis for the co-operation may be the constitution of an international organization, such as the United Nations or the World Health Organization. However, by treaty or custom other structures for maintaining co-operation may be created. One such structure, the confederation, has in practice either disintegrated or been transformed into a federation. At present the British Commonwealth of Nations34 and the French Community35 provide examples of associations of states of a special type. Membership of these two associations does not necessarily affect the primary legal capacities and personality of member states any more than membership of an organization and has less effect than membership of some organizations, for example, the European Economic Community, which has a slight federal element, albeit on a treaty basis. However, the French Community accommodates a variety of relations, some more intimate than others. (e) A degree of permanence.36 If one relies principally on the concept of a stable political community, it might seem superfluous to stipulate for a degree of permanence. Time is an element of statehood, as is space. However, permanence is not necessary to the existence of a state as a legal order, and a state which has only a very brief life may nevertheless leave an agenda of consequential legal questions on its extinction.37 (f) Willingness to observe international law. In modern literature, this is not often mentioned as a criterion,38 and it has been subjected to trenchant criticism.39 The delictual and other responsibilities of states are consequences of 33 34 35 36 37

38 39

See Dolan, 4 i.c.l.q. (1955), 629–36. See Fawcett, The British Commonwealth in International Law (1963), especially at pp. 144– 94 (on the Inter Se Doctrine); and Whiteman i. 476–544. See Whiteman i. 544–82. See Kelsen, Principles of International Law (2nd ed.), pp. 381–3; Chen, The International Law of Recognition, pp. 59–60. Cf. the anti-Jewish legislation of the Italian Social Republic of Sálo: see the Mosse claim, Int. L.R. 20 (1953), 217; Levi claim, ibid. 24 (1957), 303; Sonnino claim, ibid., p. 647; Wollemborg claim, ibid., p. 654. British Somaliland became independent on 26 June 1960, but united with Somalia to form the Somali Republic on 1 July 1960. References: Chen, op. cit., p. 61. See also Briggs, p. 100. See Chen, loc. cit.

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statehood, and logically it is inexcusable to express as a criterion of statehood a condition which the entity has a capacity to accept only if it is a state. (g) A certain degree of civilization. Hyde40 states four qualifications for statehood (the first four above), but adds a fifth: ‘the inhabitants must have attained a degree of civilization, such as to enable them to observe … those principles of law which are deemed to govern the members of the international society in their relations with each other’. This has a similarity to the last point considered, but is more fundamental. However, it is usually omitted from enumerations of criteria and is redolent of the period when non-European states were not accorded equal treatment by the European Concert and the United States. In modern law it is impossible to regard a tribal society which refuses to conduct diplomatic relations with other societies as a res nullius.41 (h) Sovereignty.42 The term ‘sovereignty’ may be used as a synonym for independence, an important element in statehood considered already. However, a common source of confusion lies in the fact that ‘sovereignty’ may be used to describe the condition where a state has not exercised its own legal capacities in such a way as to create rights, powers, privileges, and immunities in respect of other states.43 In this sense a state which has consented to another state managing its foreign relations, or which has granted extensive extra-territorial rights to another state, is not ‘sovereign’. If this or a similar content is given to ‘sovereignty’ and the same ideogram is used as a criterion of statehood,44 then the incidents of statehood and legal personality are once again confused with their existence. Thus the condition of Germany after 1945 involved considerable diminution of German sovereignty in this sense, and yet Germany continued to exist as a state.45 Considerations of this sort have led some jurists to reject sovereignty as a criterion.46 An alternative approach is that of the International Court in the case of U.S. Nationals in Morocco, where the judgment described Morocco as a ‘sovereign State’, meaning that it had maintained its 40 i. 23 (and see Chen, op. cit., pp. 127–9). See also Whiteman i. 223. 41 On the independence of Western Samoa: Whiteman ii. 239. 42 See generally infra, pp. 280 seq. [Editors’ note: page 1074 of this Anthology]. 43 See infra, pp. 351 seq. [Editors’ note: not included in this Anthology]. 44 See Oppenheim i. 118–19; Korowicz, 102 Hague Recueil (1961, i), 10, 108; Alfaro, 97 Hague Recueil (1959, ii), 95–6. 45 Supra, p. 77. [Editors’ note: page 1066–1067 of this Anthology]. 46 See Rousseau, 73 Hague Recueil (1948, ii), 178 seq. Cf. the dissenting judges in the AustroGerman Customs Union case, P.C.I.J., Ser. A/B, no. 41 at p. 77; and Viscount Finlay in Duff Development Co. v. Government of Kelantan [1924] A.C. 747 at p. 814. See further Fawcett, The British Commonwealth in International Law, pp. 88–93; and the case concerning the Lighthouse in Crete and Samos, for which see infra, p. 115. [Editors’ note: not included in this Anthology].

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basic personality in spite of the French protectorate.47 But it would be possible for a tribunal to hold that a state which had granted away piecemeal a high proportion of its legal powers had ceased to have a separate existence as a consequence. Obviously it may in law and fact be difficult to distinguish granting away of capacities and the existence of agency or representation. (i) Function as a state. There remain some peripheral problems. Experience has shown that entities may exist which are difficult to regard as states in the political sense. The treaty of peace with Germany in 1919 created the Free City of Danzig, which had the legal marks of statehood in spite of the facts that it was placed under the guarantee of the League of Nations and Poland had the power to conduct its foreign relations.48 The peace treaty with Italy in 1947 provided for the creation of the Free Territory of Trieste, which was to be placed under the protection of the Security Council.49 The type of legal personality involved in these two cases is a congener of statehood, and it is the specialized political function of such entities, and their relation to an organization, which inhibits use of the category of statehood.50 3 States in Statu Nascendi A political community with considerable viability, controlling a certain area of territory and having statehood as its objective, may go through a period of travail before that objective has been achieved. In any case, since matters such as definition of frontiers and effective government are not looked at too strictly, the distinction between status nascendi and statehood cannot be very readily upheld.51 States not infrequently first appear as independent belligerent entities under a political authority which may be called and function effectively as a provisional government. The influence of considerations of jus cogens, such as the principle of self-determination, on the status of belligerent

47 48

49 50 51

Supra, p. 78 [Editors’ note: page 1067–1068 of this Anthology]. See also Rolin, 77 Hague Recueil (1950, ii), 326. Supra, pp. 63, 64 [Editors’ note: not included in this Anthology]. However, disputes between Danzig and Poland were referred to the Permanent Court of International Justice by means of its advisory jurisdiction in view of Article 34 of the Statute of the Court, which gives locus standi in contentious cases only to states. Supra, pp. 63, 64 [Editors’ note: not included in this Anthology]. On the status of other entities sui generis see supra, pp. 67–9. [Editors’ note: not included in this Anthology]. Cf. the cases of Albania in 1913; Poland and Czechoslovakia in 1917–18; Estonia, Latvia, and Lithuania, 1918–20. See Briggs, pp. 103 seq.; Hackworth i. 199–222. See also the case of Indonesia, 1946–9: Whiteman ii. 165–7. Cf. the observations of Lord Finlay, German Interests in Polish Upper Silesia (Merits), P.C.I.J., Ser. A no. 7 (1926), p. 84.

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entities is examined subsequently.52 Apart from these considerations, once statehood is firmly established, it is justifiable, both legally and practically, to assume the retroactive validation of the legal order during a period prior to general recognition as a state, when some degree of effective government existed. ­Leaving questions of state succession on one side,53 the principle of effectiveness dictates acceptance, for some legal purposes at least, of continuity before and a­ fter statehood is firmly established.54 The legal consequences accorded by governments and foreign courts to the acts of governments recognized de ­facto55 provide evidence for the views expressed above. 4 Illegal Occupation and the Influence of Jus Cogens Earlier it was stated that a state remains ‘independent’, in the sense of retaining separate personality, if a foreign legal order impinges on it, provided that the impingement occurs under a title of international law. It follows that illegal occupation cannot of itself terminate statehood.56 Elsewhere57 the general question of balancing effectiveness and the principle ex injuria non oritur jus is ­considered. Here it must suffice to point out that, when elements of certain strong norms (the jus cogens58) are involved, it is less likely that recognition and acquiescence will offset the original illegality. These issues will receive discussion when the identity and continuity of states are considered ­subsequently. One aspect of jus cogens, the principle of self-determination,59 may justify the granting of a higher status to certain types of belligerent entities and exile governments than would otherwise be the case.60 52 53 54

Infra, p. 83. [Editors’ note: page 1072 of this Anthology]. See Chapter xxviii. [Editors’ note: not included in this Anthology]. See the Annual Digest 1 (1919–22), nos. 4–7, 24; ibid. 2 (1923–4), nos. 2, 122; ibid. 3 (1925–6), nos. 8, 9; ibid. 4 (1927–8), nos. 11, 94, 220: ibid. 5 (1929–30), no. 5. 55 See infra, pp. 95–7. [Editors’ note: not included in this Anthology]. See, in particular, the Gagara [1919] p. 65. 56 See Marek, op. cit., pp. 553–87. Belligerent occupation clearly does not affect statehood: the occupant ex hypothesi does not displace the territorial sovereign though the incidents of statehood are affected. It is not correct to describe governments-in-exile as states without people or territory when the displacement is caused; by a belligerent occupation (cf. Briggs, p. 66). Puppet states, such as Slovakia and Croatia, set up as a consequence of the illegal threat or use of force in 1939 and 1941 respectively, received recognition from very few states. On the status of Burma in the Second World War see Chettiar v. Chettiar, Ann. Digest 15 (1948), no. 178. 57 Infra, Chapter xxii. 58 See infra, pp. 499–502. [Editors’ note: pages 1093–1096 of this Anthology]. 59 See Chapter xxiv, Section 9 [Editors’ note: not included in this Anthology]. 60 Cf. Bedjaoui, Law and the Algerian Revolution (1961); Jennings, The Acquisition of Territory, p. 78; and see infra, pp. 172–4 [Editors’ note: not included in this Anthology].

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5 Necessary Legal Constructions Political circumstances may lead to legal constructions which at first sight are excessively formalistic. A state’s legal order may be projected on the plane of time for certain purposes although its physical and political existence has ceased. One view of the situation in Germany since 1945 is as follows. Subject to certain powers under the Berlin Declaration and the unconditional surrender, two German states currently exist. The German Federal Republic rests on a constitution of 1949 and certain agreements. The German Democratic Republic rests on a constitution of 1949 and an agreement with the U.S.S.R.61 There is as yet no general peace treaty regulating certain territorial and other issues involving Germany left over from the Second World War. If such a treaty were concluded62 three German states would be parties: the German Federal Republic, the German Democratic Republic, and the Germany which surrendered in 1945 and which technically would be the subject-matter of the general settlement.63 In the South-West Africa cases64 it was suggested by Judges Spender and Fitzmaurice in their joint dissenting opinion65 that the principal Allied and associated powers of the First World War might retain a residual or reversionary interest in the ex-German territories placed under mandate. The five principal powers concerned were the United States,66 the British Empire, France, Italy, and Japan, and, whilst they still exist as legal persons, their special capacity as principal Allied powers in 1919 may be projected on the plane of time. 6 Membership of International Organizations and Agencies Membership in an international organization depends on the contractual terms arranged by the founding states. However, accession to membership may not be on the basis of right, by acceptance of a standing offer. Usually a leading organ of the institution will alone have competence to decide on qualifications for membership, and in practice political criteria may supplement the legal conditions laid down in a constituent instrument. These conditions will normally specify or assume the existence of statehood and may then refer 61

The situation is complicated by the fact that the German Federal Republic claims to be the successor to all German territory within the frontiers of 1937. 62 Inter alia, this hypothesis is affected by non-recognition of the German Democratic Republic by a number of states. 63 See infra, p. 87 [Editors’ note: page 1076 of this Anthology], on the issue of continuity and survival in relation to the German Federal Republic. 64 I.C.J. Reports (1962), p. 319. 65 At pp. 482 (note), 486. 66 The United States concluded a separate peace treaty in 1921: 16 A.J. (1922), Suppl., p. 10.

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to additional qualities.67 Thus Article 4 of the United Nations Charter provides that membership of the organization ‘is open to all peace-loving States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations’. Admission to membership is to be by decision of the General Assembly upon the recommendation of the Security Council.68 7 Identity and Continuity of States69 The term ‘continuity’ of States is not employed with any precision, and may be used to preface a diversity of legal problems. Thus it may introduce the proposition that the legal rights and responsibility of states are not affected by changes in the head of state or the internal form of government.70 This proposition can, of course, be maintained without reference to a concept of ‘continuity’ or ‘succession’, and it is in any case too general, since political changes may result in a change of circumstances sufficient to affect particular types of treaty relation.71 More significantly, legal doctrine tends to distinguish between continuity (and identity) and state succession. The latter arises when one international personality takes the place of another, for example by union or lawful annexation. In general, it is assumed that cases of ‘state succession’72 are likely to involve important changes in the legal status and rights of the

67

See Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations, pp. 11–57; and Fawcett, The British Commonwealth in International Law, pp. 223–39. On the concept of functional membership of organizations, see infra, Chapter xxx, Section 6. [Editors’ note: not included in this Anthology]. 68 See the Admissions case, I.C.J. Reports (1947–8), p. 63; Lauterpacht, The Development of International Law by the International Court, pp. 148–52; Rosenne, 39 B.Y. (1963), p. 1 at pp. 40–1. 69 See, in particular, Whiteman ii. 754–99; Kelsen, Principles of International Law (2nd ed.), pp. 383–7; Marek, Identity and Continuity of States in Public International Law (1954); Clute, The International Legal Status of Austria 1938–55 (1962); Briggs, pp. 209–13; O’Connell, State Succession in Municipal Law and International Law, 2 vols. (1967) (particular states in Index); Kunz, 49 A.J. (1955), 68–76. Cp. Green, in Law, Justice and Equity (ed. Keeton), pp. 152–67, on dissolution of states and membership of the League of Nations and the United Nations. 70 Briggs, ut supra. See also Oppenheim i. 153–4; McNair, Opinions i. 3; Hackworth i. 387–92; Tinoco Concessions arbitration (1923), r.i.a.a. i. 369; Green, p. 119. 71 See Chapter xxv, Section 6. A treaty of military and political co-operation may be invalidated if one party undergoes a change of regime inimical to the basis of the treaty. 72 See infra, Chapter xxviii. [Editors’ note: not included in this Anthology]. There is no single legal criterion for distinguishing partial and total succession of states (the latter involving change of personality).

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entities concerned, whereas if there is continuity, the legal personality and the particular rights and duties of the state remain unaltered. Unfortunately the general categories of ‘continuity’ and ‘state succession’, and the assumption of a neat distinction between them, only make a difficult subject more confused by masking the variations of circumstance and the complexities of the legal problems which arise in practice. ‘Succession’ and ‘continuity’ are levels of abstraction unfitted to dealing with specific issues. Thus the view that Italy was formed not by union of other states with Sardinia, but by annexation to Sardinia, has the corollary that this was a case of continuity and not, with respect to Sardinia, a state succession.73 Yet one may wonder if the difference in political procedure should make such a great legal difference. Further, political and legal experience provide several examples of situations in which there is ‘continuity’, but the precise circumstances, and the relevant principles of law and good policy, dictate solutions which are only partly conditioned by the element of ‘continuity’. Legal techniques may well entail relying on continuity in one context, but denying its existence in another. Thus the political and legal transformation involved in destroying the ­Austro-Hungarian monarchy and establishing a new political settlement in central and south-east Europe produced Austria,74 the Serb-Croat-Slovene state,75 and Czechoslovakia,76 which rested on new political and legal orders. Nevertheless for certain purposes principles of continuity with previous political entities were applied by state practice in these cases. The functional approach has been prominent in a group of cases arising from the unlawful use of force. Ethiopia was conquered and annexed by Italy in 1936. Many states gave de jure or de facto recognition to Italian control, but Ethiopia remained formally a member of the League of Nations. After the outbreak of the Second World War the United Kingdom and other states treated Ethiopia, after liberation in 1941, as independent and co-belligerent.77 73 74

75 76 77

Marek, pp. 191–8. See also Guggenheim i. 444–5; O’Connell, State Succession in Municipal and International Law i. 5; ii. 28–30, 365. The Treaty of St. Germain assumed continuity. State practice apart from this treaty favoured continuity in the matter of treaties. In respect of public debts and other m ­ atters, principles were applied indistinguishable from those related normally to ‘state succession’, i.e. continuity of obligation with modifications. See O’Connell, op. cit., index; ­Guggenheim, loc. cit.; Marek, op. cit., pp. 199–236 (who uses the category of continuity too dogmatically); Kelsen, Principles (2nd ed.), p. 384. See O’Connell, op. cit., i. 5, 6; Marek, pp. 237–62; Katz and Klump v. Yugoslavia, Ann. Digest 3 (1925–6), no. 24; Ivanevic v. Artukovic, Int. L.R. 21 (1954), p. 66. See O’Connell, op. cit., indices. See Marek, pp. 263–82; O’Connell, index; Azazh Kebbeda Tesema v. Italian Government, Ann. Digest 9 (1938–40), no. 36; U.K.–Ethiopia, Agreement of 31 January 1942; Cmd. 6334;

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­ zechoslovakia was placed under German control in March 1939 as a result C of the use and threat of force. De jure recognition was generally withheld in this case, and by 1941 an exile government was accepted by the Allies as a co-­ belligerent.78 Albania was placed under Italian occupation in 1939 and was liberated in 1944.79 Rather more difficult, since the community welcomed absorption, was the case of the Austrian Anschluss in 1938. Many states regarded this as illegal, and Austria was not regarded as responsible for her part in Axis aggression.80 In all these cases foreign control can be ignored on the ground that its source was illegal: ex injuria non oritur jus. However, neither this principle nor that of continuity can provide an omnibus solution to the legal problems arising for solution after 1945. In all these cases, for slightly differing reasons, the occupation in fact and form went beyond belligerent occupation, since there was either absorption outright or the setting up of puppet regimes. Moreover, the control lasted for some time, and insistence on continuity is theoretical in these cases: what occurred on liberation was restoration, re-establishment of the former state. This is qualified continuity. Thus, in the case of Austria after 1945 state practice, including that of Austria, has supported the position that Austria is bound by pre-1938 treaties to which she was a party. Germany has been held responsible by the Allies for the payment of the bonded external debt of Austria for the period 1939–45: Austrian courts have not accepted succession in the public foreign debt from this period except where the principle of unjust enrichment required a different approach. Austria has accepted responsibility for the pre-Anschluss external debt. Nationality problems affecting Austria and Czechoslovakia show very clearly the need to approach issues free from the tyranny of concepts. After 1945 the governments of these two states did not revoke the nationality law of the usurping German administration retroactively. The law of the German Federal Republic allowed those who became German as a result of the Anschluss to maintain German nationality

78 79 80

Peace Treaty with Italy, 1947, Sect. vii (cf. Fitzmaurice, 73 Hague Recueil (1948, ii), 282). See Marek, pp. 283–330; Hardtmuth v. Hardtmuth, Int. L.R. 26 (1958, ii), 40. See Marek, pp. 331–7; Briggs, pp. 119–21; Peace Treaty with Italy, 1947, Sect. vi (cf. Fitzmaurice, 73 Hague Recueil (1948, ii), 282). See Marek, pp. 338–68; Clute, ut supra; Guggenheim ii. 470; Security for Costs (Austria) case, Int. L.R. 22 (1955), 58; Republic of Austria v. City of Vienna, ibid. 26 (1958, ii), 77; Schleiffer v. Directorate of Finance, ibid., p. 609. The Austrian State Treaty of 1955 (text: 49 A.J. (1955), Suppl., p. 162) is consonant with the view that Austria was re-established. See also p. 87, n. 1, infra. Cf. In re Mangold’s Patent, Int. L.R. 18 (1951), no. 59; 28 B.Y. (1951), 406; 86 j.d.i. (1959), 1166.

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if since 1945 they had permanently resided on German territory (frontiers of 1937).81 Other types of qualified continuity exist. The relation of the German Federal Republic and German Democratic Republic to the former German Reich is a matter of some difficulty which cannot be pursued here.82 In some instances, where the basis for continuity is tenuous, estoppel, special agreement, and principles of validation and effectiveness may provide elements of legal continuity. Moreover, the empirical elements in continuity must be distinguished from a concept of survival. Lastly, the operation of the principle of self-­determination as a part of the jus cogens may support a doctrine of reversion: for example, rights of way granted by a colonial power may not be opposable to the state which, in replacing the colonial power, is recovering an independence which it formerly had.83 8 Micro-States84 Membership of the United Nations is not expressed to be conditioned by the size85 of the state concerned. However, Article 4 of the United Nations Charter makes an ability to carry out the obligations contained in the Charter a requirement of admission to membership and the principalities of San Marino, Monaco, and Liechtenstein have not applied for membership. None the less,

81

See Brownlie, 39 B.Y. (1963), 326, 346; and the Austrian Nationality case, Int. L.R. 22 (1955), 430. 82 See German Civil Service Case, Int. L.R. 22 (1955), 943; Rex v. Botteill, ex p. Kurchenmeister [1947] 1 K.B. 41; Oppenheim i. 568–70; Bishop, 49 A.J. (1955), 125–47; Kunz, ibid. 210–16; Virally, Annuaire français (1955), pp. 31–52; Pinto, 86 j.d.i. (1959), 312; Plischke, 48 A.J. (1954), 245–64; Whiteman i. 332–8; Mann, 16 i.c.l.q. (1967), 760–99. 83 See the dissenting opinion of Judge Moreno Quintana in the Right of Passage case, I.C.J. Reports (1960), pp. 95–6. The majority of the Court did not deal with this issue; on the evidence the passage had been maintained for some years after the British left India. 84 Other terms are ‘diminutive’ or ‘mini-’ states. See generally: unitar, Status and Problems of Very Small States and Territories (1969); Farran, Festschrift für Walter Schätzel (1960), pp. 131–47; Blair, The Ministate Dilemma, rev. ed. (1968); Saint-Girons, 76 r.g.d.i.p. (1972), 445–74; Rapoport, a.s.i.l. Proceedings, 1968, 155–63; Fisher, ibid., 164–70; Harris, Columbia Journ. Trans. Law, 1970, 23–53; de Smith, Microstates and Micronesia (1970). On comparable issues within the British Commonwealth see Fawcett, Ann. Survey of Commonwealth Law (1967), 709–11; ibid. (1968), 785–8; ibid. (1969), 558–9; Margaret Broderick, 17 i.c.l.q. (1968), 368–403. 85 The most common indicator used is population, as opposed to geographical area, gross national product, etc.

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however small geographically or modest in resources, an entity is a ‘state’ for general purposes of international law provided the criteria of statehood are satisfied. Thus the very small principalities have become parties to the Statute of the International Court of Justice. Since its early days quite small nations have been admitted to membership of the United Nations. Costa Rica, Luxembourg, and Iceland provide examples.86 In recent years the increase in total membership and the modest size of some of the applicants for admission has caused United Nations organs to consider the possibility of establishing some form of associate membership of the United Nations. Such a regime might involve ineligibility for seats on the Security Council, the right to participate in General Assembly proceedings without a vote, favourable terms for contributions to expenses of the United Nations, and access to the resources of the specialized agencies, such as the World Health Organization. There are many problems to be faced, not least that of establishing criteria for ordinary membership. [...] 86

Iceland: 146,000. More recent examples: Barbados, Malta, the Maldive Islands, and Bhutan. Western Samoa and Nauru have not applied to join the U.N.

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Chapter XIII - Sovereignty and Equality of States

1 In General1 The sovereignty and equality of states represent the basic constitutional doctrine of the law of nations, which governs a community consisting primarily of states having a uniform legal personality. If international law exists, then the dynamics of state sovereignty can be expressed in terms of law, and, as states are equal and have legal personality, sovereignty is in a major aspect a relation to other states (and to organizations of states) defined by law. The principal corollaries of the sovereignty and equality of states are: (1) a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; (2) a duty of non-intervention in the area of exclusive jurisdiction of other states; and (3) the dependence of obligations arising from customary law2 and ­treaties on the consent of the obligor.3 The last of these has certain special applications: thus jurisdiction of international tribunals depends on the consent of the parties; membership of international organizations is not obligatory; and the powers of the organs of such organizations to determine their own competence, to take decisions by majority vote, and to enforce decisions, depend on the consent of member states. The manner in which the law expresses the content of sovereignty varies, and indeed the whole of the law could be expressed in terms of the co-­existence of sovereignties.4 The problems can be approached through the concept of 1

See Sukiennicki, La Souveraineté des états en droit international moderne (1927); Raestad, 17 r.d.i. (La Pradelle) (1936), 26–84; Rousseau, 73 Hague Recueil (1948, ii), 171–253; Chaumont, Hommage d’une génération de juristes au Président Basdevant, pp. 114–51; Waldock, 106 Hague Recueil (1962, ii), 156–91; van Kleffens, 82 Hague Recueil (1953, i), 5–130; Lauterpacht, The Development of International Law by the International Court, pp. 297–400; Fitzmaurice, 92 Hague Recueil (1957, ii), 48–59; Kelsen, Principles of International Law, pp. 108–10, 155–7, 216–17, 315–17, 438–44; ibid. (2nd ed.), 190–4, 247–50, 446–8, 581–5; id., 53 Yale L.J. (1944), 207–20; McNair, Law of Treaties (1961), pp. 754–66; Korowicz, Introduction to International Law (1959), Chaps. i–vi; id., 102 Hague Recueil (1961, i), 1–119; de Visscher, 86 Hague Recueil (1954, ii), 455–70, 483–96; Constantopoulos, Spiropoulos Festschrift, pp.  89–102; Suontausta, La Souveraineté des états (1955); Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States, A/CN.4/2, 1948, pp. 49–74; Verzijl, ­International Law in Historical Perspective i. 256–92. 2 See supra, pp. 4–9. [Editors’ note: not included in this Anthology]. But see pp. 499–502 on jus cogens. In any case the conditions for ‘contracting out’ of rules are not easy to fulfil. 3 See, in particular, the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, U.N. Gen. Ass., 1970, 65 A.J. (1971), 243; Brownlie, Basic Documents, p. 32. See further British Practice (1964), pp. 124–6, 128–30; ibid. (1966), pp. 41–9; ibid. (1967), pp. 35–41, 192–6. 4 See Dupuis, 32 Hague Recueil (1930, ii), 5–290; and cf. Lauterpacht, loc. cit.

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the reserved domain of domestic jurisdiction (Section 6, infra, p. 284*). Yet another perspective is provided by the notion of sovereignty as discretionary power within areas delimited by the law. Thus states alone can confer nationality for purposes of municipal law, delimit the territorial sea, and decide on the necessity for action in self-defence. Yet in all these cases the exercise of the power is conditioned by the law.5 2 Sovereignty and the Application of Rules6 (a) The validity of obligations arising from treaties. In the Wimbledon the Permanent Court firmly rejected the argument that a treaty provision could not deprive a state of the sovereign right to apply the law of neutrality to vessels passing through the Kiel Canal:7 ‘The Court declines to see, in the conclusion of any treaty by which a State undertakes to perform or refrain from performing a particular act, an abandonment of its sovereignty … the right of entering into international engagements is an attribute of State sovereignty.’ (b) Interpretation of treaties. The principles of treaty interpretation are considered in Chapter XXV.** On occasion the International Court has referred to sovereign rights as a basis for a restrictive interpretation of treaty obligations,8 but everything depends on the context, the intention of the parties, and the relevance of other, countervailing, principles such as that of effectiveness. (c) Presumptions and burdens. Many areas of international law are uncertain or contain principles which do not admit of easy application to concrete issues. Thus much could turn on the answer to the question whether there is a presumption in favour of sovereignty. In another form the issue is whether, in case of doubt as to the mode of application of rules or in case of an absence of rules, * 5

[Editors’ note: page 1083 of this Anthology]. On nationality see infra, Chapter xviii. [Editors’ note: not included in this Anthology] On the territorial sea see the Fisheries case, supra, pp. 187 seq. On the right of self-defence see Brownlie, International Law and the Use of Force by States, pp. 235 seq. Cf. the problem of the automatic reservation of the optional clause (infra, pp. 702 seq [Editors’ note: not included in this Anthology]) and the regulation of rights (infra, p. 363 [Editors’ note: not included in this Anthology]). 6 See Lauterpacht, op. cit., pp. 359–67; Waldock, op. cit., pp. 159–69; Fitzmaurice, loc. cit.; id., 30 B.Y. (1953), 8–18; McNair, loc. cit. 7 (1923), P.C.I.J., Ser. A, no. 1, p. 25. Cf. the view of the International Court on reservations by states seeking to become parties to multilateral treaties: Reservations to the Genocide Convention, I.C.J. Reports (1951), at p. 24; and the views of certain members of the Court on the automatic reservation in acceptances of the optional clause, infra, pp. 703 seq [Editors’ note: not included in this Anthology]. ** [Editors’ note: not included in this Anthology]. 8 See the Wimbledon, supra, p. 24; and the Free Zones cases (1930), P.C.I.J., Ser. A, no. 24, p. 12; (1932), P.C.I.J., Ser. A/B, no. 46, p. 167.

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the presumption is that states have legal competence or is one of incompetence. In the Lotus case9 the Court decided the issue of jurisdiction on the basis that ‘restrictions upon the independence of States cannot be presumed’. However, there is no general rule, and in judicial practice issues are approached empirically. It is also the case that a general presumption of either kind would lead to inconvenience or abuse. The context of a problem will determine the incidence of particular burdens of proof, which may be described in terms of the duty to establish a restriction on sovereignty on the part of the proponent of the duty. The jurisdictional ‘geography’ of the problem may provide useful indications. Thus in the Asylum case10 the Court stressed the fact that diplomatic asylum involves a derogation from sovereignty as represented by the normally exclusive jurisdiction of the territorial state. On the other hand, in the Fisheries case,11 the dominant factor from this point of view was the international impact of the delimitation of frontiers, in that case the maritime frontier. (d) The regulation of rights. See infra, p. 363.*** 3 Sovereignty and Legal Personality Sovereignty, or sovereignty and independence, are often the terms used to describe both the legal personality of a state and the incidents of that personality. The problems involved in adopting this usage have been considered in Chapter IV.12 4 Sovereignty and Competence Sovereignty is also used to describe the legal competence which states have in general, to refer to a particular function of this competence, or to provide a rationale for a particular aspect of the competence.13 Thus jurisdiction, including legislative competence over national territory, may be referred to in the terms ‘sovereignty’ or ‘sovereign rights’. Sovereignty may refer to the power to acquire title to territory and the rights accruing from exercise of the power. The correlative duty of respect for territorial sovereignty,14 and the privileges  in

9 See infra, p. 294. [Editors’ note: not included in this Anthology]. Cf. Lake Lanoux Arbitration, supra, p. 265. See further De Pascale Claim, r.i.a.a. xvi. 227; Int. L.R. 40, p. 250 at p. 256; Sultan, Mélanges Offerts à Andrassy, pp. 294–306. [Editors’ note: not included in this Anthology]. 10 See infra, p. 364. [Editors’ note: not included in this Anthology]. 11 Supra, pp. 187 seq. [Editors’ note: not included in this Anthology]. *** [Editors’ note: not included in this Anthology]. 12 At pp. 80–1. 13 See further Chapter vi. [Editors’ note: not included in this Anthology]. 14 See the Corfu Channel case (Merits), I.C.J. Reports (1949), p. 4 at p. 35; and Article 2, paragraph 4, of the United Nations Charter.

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r­ espect of territorial jurisdiction, referred to as sovereign or state immunities, are described after the same fashion. In general ‘sovereignty’ characterizes powers and privileges resting on customary law and independent of the particular consent of another state. 5 Membership of Organizations15 The institutional aspects of organizations of states result in an actual, as opposed to a formal, qualification of the principle of sovereign equality.16 Thus an organization may adopt majority voting and also have a system of weighted voting; and organs may be permitted to take decisions, and even to make binding rules, without the express consent of all or any of the member states.17 Of course it can be said that on joining the organization each member consented in advance to the institutional aspects, and thus in a formal way the principle that obligations can only arise from the consent of states and the principle of sovereign equality are satisfied. In their practice the European Communities, whilst permitting integration which radically affects domestic jurisdiction for special purposes, have been careful not to jar the delicate treaty structures by a too ready assumption of implied powers.18 In the case of the United ­Nations the organs, with the approval of the Court, have interpreted the Charter in ­accordance with the principles of effectiveness and implied powers at the ­expense, it may seem, of Article 2, paragraphs 1 and 7.19 If an organization ­encroaches on the domestic jurisdiction of members to a substantial degree the structure may approximate to a federation, and not only the area of competence of members but their very personality will be in issue. The line is not easy to draw, but the following criteria of extinction of personality have been suggested: the obligatory nature of membership; majority decision-making;

15

3 See Bourquin, L’État souverain et l’organisation internationale (1959); Broms, The Doctrine of Equality of States as applied in International Organizations (1959); Padirac, L’Égalité des états et l’organisation internationale (1953); Korowicz, Organisations internationales et souveraineté des états membres (1961); Bowett, International Institutions (2nd ed.), pp. 343–75; Waldock, 106 Hague Recueil (1962, ii), 20–38, 171–2; van Kleffens, 82 Hague Recueil (1953, i), 107–26; Verzijl, International Law in Historical Perspective i. 304–8. 16 Compare Article 2, paragraph 1, of the United Nations Charter with the provisions on the Security Council, Chapters v–viii. 17 See generally Chapter xxx. [Editors’ note: not included in this Anthology]. 18 See Pescatore, 103 Hague Recueil (1961, ii), 9–238; Hahn, 108 Hague Recueil (1963, i), 195–300. 19 See infra, pp. 657 seq., 678 seq. [Editors’ note: not included in this Anthology]., on the Reparation and Expenses cases.

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the determination of jurisdiction by the organization itself; and the binding quality of decisions of the organization apart from consent of member states.20 6 The Reserved Domain of Domestic Jurisdiction The corollary of the independence and equality of states is the duty on the part of states to refrain from intervention in the internal or external affairs of other states.21 The duty of nonintervention is a master principle which draws together many particular rules on the legal competence and responsibility of states. Matters within the competence of states under general international law are said to be within the reserved domain, the domestic jurisdiction, of states.22 This is tautology, of course, and as a matter of general principle the problem of domestic jurisdiction is not very fruitful. However, as a source of confusion, it deserves some consideration. The general position is that the ‘reserved domain’ is the domain of state activities where the jurisdiction of the state is not bound by international law: the extent of this domain depends on international law and varies according to its development.23 It is widely accepted that no subject is irrevocably fixed within the reserved domain, but some jurists have assumed that a list of topics presently recognized as within the reserved domain can be drawn up, including categories such as nationality and immigration.24 This approach is misleading, since everything depends on 20 21

22

23 24

See van Kleffens, op. cit., pp. 117–26; Verzijl, International Law in Historical Perspective i. 283–92; Waldock, op. cit., pp. 171–2. See also supra, pp. 76–9, [Editors’ note: not included in this Anthology] on independence as a criterion of statehood. See the draft Decl. on the Rights and Duties of States, Yrbk., I.L.C. (1949), p. 287, Art. 3. The duty binds international organizations also. One aspect of the duty concerns the illegality of the use or threat of force: see Brownlie, International Law and the Use of Force by States, pp. 74, 96–101, 117, 224–5. Cf. the Lotus case infra, p. 294. [Editors’ note: not included in this Anthology]. The duty includes large areas of law: see Whiteman v. 321–702. On domestic jurisdiction see generally Annuaire de l’Inst. 44, i (1952), 137–80; and 45, ii (1954), 108–99, 292, 299; Preuss, 74 Hague Recueil (1949, i), 553–652; Rajan, United Nations and Domestic Jurisdiction (2nd ed., 1961) (pp. 407–48, 509–25, for notes on literature and a very full biblio.); Berthoud, 4 Annuaire suisse de dr. int. (1947), 17–104; Jones, 46 Illinois L.R. (1951), 219–72; Brierly, 6 B.Y. (1925), 8–19; Waldock, 106 Hague Recueil (1962, ii), 173–91; id., 31 B.Y. (1954), 96–142; Kelsen, Principles of International Law, pp. 62–4, 191–2, 196–201; ibid. (2nd ed.), 290–1, 294–300; Briggs, 93 Hague Recueil (1958, i), 309–63; id., Mélanges Rolin, pp. 13–29; Fitzmaurice, 92 Hague Recueil (1957, ii), 59–67; Verzijl, op. cit., pp. 272–83 (also in Scritti Perassi ii. 389–403). Cf. the local remedies rule, infra, pp. 482–92 [Editors’ note: not included in this Anthology]. Resolution of the Institute of International Law, Annuaire de l’Inst. 45, ii (1954), 292, 299; and see also Nationality Decrees in Tunis and Morocco (1923), P.C.I.J., Ser. B, no. 4, p. 24; Briggs, p. 452; Green, p. 110. Cf. Rousseau, 73 Hague Recueil (1948, ii), 239–46.

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the precise facts and legal issues arising therefrom. When, by legislation or executive decree, a state delimits a fishing zone or the territorial sea, the manner and provenance of the exercise of state power is clearly a matter for the state.25 But when it is a matter of enforcing the limit vis-à-vis other states, the issue is placed on the international plane. Similarly, the conferment and withdrawal of nationality may lead to a collision of interest between states if two states are in dispute over the right of one of them to exercise diplomatic protection.26 One might conclude that the criterion depends on a distinction between internal competence—no outside authority can annul or prevent the internally valid act of state power—and international responsibility for the consequences of the ultra vires exercise of the competence declared by the legislation to exist. This distinction certainly has wide application, but is not absolute in character. Thus, in particular contexts, international law may place restrictions on the ‘internal’ territorial competence of states as a consequence of treaty obligations, for example, forbidding legislation which discriminates against certain groups among the population, or as a consequence of territorial privileges and immunities created by custom. In the case of various territorial privileges, created either by general or local custom or by treaty, other states are permitted to exercise governmental functions, sovereign acts, within the territorial domain.27 The relativity of the concept of the reserved domain is illustrated by the rule that a state cannot plead provisions of its own law or deficiencies in that law in answer to a claim against it for an alleged breach of its obligations under international law,28 and also by the fact that a particular international obligation may refer to national law as a means of describing a status to be created or protected.29 As a separate notion in general international law, the reserved domain is mysterious only because many have failed to see that it really stands for a tautology. However, if a matter is prima facie within the reserved domain because of its nature and the issue presented in the normal case, then certain presumptions against any restriction on that domain may be created.30 Thus the imposition of customs tariffs is prima facie unrestricted by international law, whilst 25 But see [Editors’ note: not included in this Anthology] infra, p. 435. 26 See generally infra, pp. 385 seq. [Editors’ note: not included in this Anthology]. 27 See infra, pp. 314 seq., 351 seq. Cf. belligerent occupation, described infra, p. 358. [Editors’ note: not included in this Anthology]. 28 Supra, p. 36. [Editors’ note: not included in this Anthology]. 29 Supra, pp. 39, 40. [Editors’ note: not included in this Anthology]. And see also the Serbian Loans case, supra, p. 40. [Editors’ note: not included in this Anthology]. 30 Cf. the remarks on sovereignty, supra, pp. 281–2. [Editors’ note: pages 1080–1081 of this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the introduction of forces into another state is not prima facie an internal matter for the sending state.31 7 Article 2, Paragraph 7, of the United Nations Charter32 The advent of international organizations with powers to settle disputes on a political basis caused some states to favour express references to the reserved domain. Thus in the League of Nations Covenant, Article 15, paragraph 8, provided, in relation to disputes submitted to the Council and not to arbitration or judicial settlement: ‘If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.’ In making a political settlement the Council might well touch on the reserved domain, since this contains matters frequently the cause of disputes, and the need to write in the legal limit of action was apparent.33 During the drafting of the United Nations Charter similar issues arose, and the result was the provision in Article 2, paragraph 7:34 Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. Certain contrasts with the provision of the Covenant quoted above will be apparent. There is no reference to international law, the reference is to matters ‘essentially’ within the domestic jurisdiction, and there is no designation of the 31 32

33

34

See, however, Judge Lauterpacht, sep. op., Norwegian Loans case, I.C.J. Reports (1957), at pp. 51–2. See the items cited supra, p. 280 [Editors’ note: page 1079 of this Anthology], and also Bindschedler, 108 Hague Recueil (1963, i), 391–6; Kelsen, 55 Yale L.J. (1946), 997–1007; id., The Law of the United Nations (1951), pp. 769–91; Fincham, Domestic Jurisdiction (1948); Verdross, 36 r.g.d.i.p. (1965), 314–25; Gross, Austral. Yrbk. of I.L. (1965), 137–58; Gilmour, ibid. (1967), 153–210; id., 16 i.c.l.q. (1967), 330–51. For accounts of the practice of United Nations organs see Repertory of Practice of United Nations Organs, i. 55–156; Rajan, op. cit.; Higgins, The Development of International Law through the political organs of the United Nations, pp. 58–130; Fincham; Ross, Mélanges Rolin, pp. 284–99; Köck, 22 Ost. Z. fur öff. R. (1971–2), 327–61. See further the Peace Treaties case, I.C.J. Reports (1950), p. 65 at pp. 70–1, quoted infra, p. 290 [Editors’ note: page 1089 of this Anthology]. But the limitation could not be relied upon too readily: see the Nationality Decrees case, P.C.I.J., Ser. B, no. 4 and Lauterpacht, The Development of International Law by the International Court, pp. 270–2. The limitation does not appear in Articles 12 to 14, which are concerned with arbitration and judicial settlement. See also Art. 10 of the Charter; Art. 1 (3) of the UNESCO Constitution, and Art. 3 D of the Statute of the International Atomic Energy Agency. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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authority which is to have the power to qualify particular matters. The provision in the Charter was intended to be flexible and non-technical. At the same time the restriction was meant to be thoroughgoing, hence the formula ‘essentially within’, because of the wide implications of the economic and social provisions of the Charter (Chapter IX). These intentions have in practice worked against each other. The flexibility of the provision, and the assumption in practice that it does not override other, potentially conflicting, provisions,35 have resulted in the erosion of the reservation of domestic jurisdiction, although its draftsmen had intended its reinforcement. Moreover, the word ‘intervene’ has been approached empirically. Discussion, recommendations in general terms, and even resolutions addressed to particular states, have not been inhibited by the form of paragraph 7. At the same time the term ‘intervene’ is not to be conceived of only as dictatorial intervention in this context. Member states have proceeded empirically with an eye to general opinion and a clear knowledge that precedents created in one connexion may have a boomerang effect. In practice United Nations organs, particularly on the basis of Chapters IX and XI of the Charter and the provisions on human rights in Articles 55 and 56, have taken action on a wide range of topics dealing with the relations of governments to their own people. Resolutions on breaches of human rights,36 the right of self-determination37 and colonialism, and non-self-governing ­territories (as qualified by the General Assembly), have been adopted regularly. If the organ concerned felt that the acts complained of were contrary to the purposes and principles of the Charter and also that the issue was ‘endangering international peace and security’,38 then a resolution was passed. Certain issues, principally those concerning the right of self-determination and the principle of non-discrimination in racial matters, are regarded as of ­international concern by the General Assembly, apart from express reference to any threat to international peace and security.39 The Security Council has adopted a resolution concerning apartheid only partly on the basis that the situation ‘constitutes a potential threat to international peace and security’.40 35 36 37 38 39 40

In particular, the provisions of Chapters ix and x. See Kelsen, 55 Yale L.J. (1946), 1006–7; Guggenheim, 80 Hague Recueil (1952, i), 105; Verdross, 83 Hague Recueil (1953, ii), 73. Generally on human rights: Chapter xxiv. [Editors’ note: not included in this Anthology]. Infra, pp. 575–8. [Editors’ note: not included in this Anthology]. Exceptionally, as in the Spanish question, and the issue of apartheid in South Africa, the form of government in a state was regarded as a potential threat to international peace. On the concept of international concern see Howell, 48 a.s.i.l. Proceedings (1954), 90; and Higgins, op. cit., pp. 77–81. See Resol. 282 (1970), 23 July 1970. It is relevant to notice that this and other resolutions of the S.C. on the same subject were adopted under Chapter vi of the U.N. Charter.

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A question which lacks a clear answer is the relation of Article 2, paragraph 7, to general international law. On its face the provision is a matter of constitutional competence for organs of the United Nations, and, as we have seen, it lacks reference to international law. Moreover, in their practice the political organs have avoided express determination of technical points arising from the provision. Thus in principle it has no necessary and direct impact on general law.41 However, in a general way in a political document like the Charter, the provision corresponds to the principles of non-intervention and the reserved domain. And, further, in relation to other articles and especially Articles 55, 56, and 73 (e), the interpretation of the provision by organs of the United Nations has had important effects on the reserved domain: but here we must again escape from tautology. What has happened is simply that a new content has been given to the obligations and legal competence of states through the medium of the Charter. 8 International Tribunals and the Plea of Domestic Jurisdiction42 The chief characteristic of the concept of domestic jurisdiction in relation to the practice of tribunals has been its lack of specific relevance. In the case of Nationality Decrees in Tunis and Morocco43 the concept played a prominent role simply by reason of the special circumstances in which the League Council had requested an advisory opinion. The dispute between Great Britain and France had been brought before the League Council by Britain, as France had rejected her request to accept a judicial settlement.44 In the Council ­proceedings France pleaded Article 15, paragraph 8, of the League Covenant. Eventually the two governments agreed that the League Council should request the Permanent Court to give an advisory opinion on the nature of the dispute, in other words, on the issue whether the Council’s jurisdiction was barred by Article 15, paragraph 8, of the Covenant. The Court stressed that it was not concerned with the actual legal rights of the parties as in contentious proceedings but with the general character of the legal issues for the purpose of establishing the competence of the Council. In this task the Court c­ ontented 41 42 43 44

Cf. Hambro, Annuaire de l’Inst. 44 i (1952), 167. See Briggs, op. cit., pp. 309–63; Waldock, 31 B.Y. (1954), 96–142; Fitzmaurice, 35 B.Y. (1959), 197–207. On the ‘peremptory’ or ‘automatic’ version of the reservation of domestic jurisdiction see infra, pp. 702–3. [Editors’ note: not included in this Anthology]. P.C.I.J., Ser. B, no. 4; Green, p. 110; Briggs, p. 452. [Editors’ note: not included in this Anthology]. At this time neither state had accepted jurisdiction in advance under the optional clause in the Statute of the Permanent Court of International Justice (see infra, p. 700) [Editors’ note: not included in this Anthology].

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itself with reaching a ‘provisional conclusion’ on the international character of the issues in the case.45 However, it is doubtful if this approach on the basis of a ‘provisional conclusion’ is justifiable in the case where there is a preliminary objection to jurisdiction in a contentious case,46 where the question of domestic jurisdiction is raised in relation to the precise issues before the Court. In practice47 the International Court has joined a plea of domestic jurisdiction to the merits,48 since, although the plea is in form a preliminary objection,49 it has an intimate connexion with the issues of substance. A further question which arises is application of the reservation in Article 2, paragraph 7, of the Charter to the jurisdiction of the Court, the object of arguing for its application being to benefit from the extensive formula ‘essentially within’.50 Whether the reservation in the Charter applies to the contentious jurisdiction or not,51 the plea of domestic jurisdiction is available by operation of law, its success depending on the particular legal relations of the parties concerned.52 The case is rather different where the advisory jurisdiction is challenged on the basis that the political organ concerned was incompetent to request an opinion as a consequence of Article 2, paragraph 7. In this situation the relevance of the Charter reservation is indisputable. In the Peace Treaties case, the Court considered objections to its competence based (1) upon the incompetence of the requesting organ and (2) upon the application of Article 2, paragraph 7, to the Court itself. The objections involved the argument that a matter may be ‘essentially’ within the domestic jurisdiction of a state although

45 46

47 48 49 50

51 52

pp. 24–6. This approach has its supporters: see Waldock, op. cit., pp. 111–14. For critical comment see Lauterpacht, The Development of International Law by the International Court, pp. 270–1; Verzijl, The Jurisprudence of the World Court i. 45–50; and Fitzmaurice, 35 B.Y. (1959), ­200–7. See further the South-West Africa cases (Second Phase), 1966. Apart from observations on the request to order interim measures of protection in the Anglo-Iranian Oil Co. case, I.C.J. Reports (1951), pp. 92–3; and the Interhandel case (­Preliminary Objections), ibid. (1959), p. 105. See the Losinger case, P.C.I.J., Ser. A/B, no. 67, pp. 23–5; Right of Passage case, I.C.J. Reports (1957), p. 125 at pp. 149–50. But see Electricity Company of Sofia and Bulgaria, P.C.I.J., Ser. A/B, no. 77, pp. 78, 82–3. In the Anglo-Iranian Oil Co. case the Court did not find it necessary to examine an Iranian argument on these lines. See the views of Judge Lauterpacht on the breadth of the formula employed in the French Declaration of Acceptance of jurisdiction, I.C.J. Reports (1957), at pp. 51–2. For references to the different views: Shihata, The Power of the International Court to Determine its own Jurisdiction, pp. 229–33. See the Interhandel case (Preliminary Objections), I.C.J. Reports (1959), pp. 24–5; Right of Passage case (Merits), ibid. (1960), pp. 32–3.

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it is governed by a treaty. As to the competence of the requesting organ of the United Nations, the Court observed:53 The Court is not called upon to deal with the charges brought before the General Assembly since the Questions put to the Court relate neither to the alleged violations of the provisions of the Treaties concerning human rights and fundamental freedoms nor to the interpretation of the articles relating to these matters. The object of the request is much more limited. It is directed solely to obtaining from the Court certain clarifications of a legal nature regarding the applicability of the procedure for the settlement of disputes [in the peace treaties with Bulgaria, Hungary, and Rumania]. The interpretation of the terms of a treaty for this purpose could not be considered as a question essentially within the domestic jurisdiction of a State. It is a question of international law which, by its very nature, lies within the competence of the Court. The Court then stated that these considerations sufficed to dispose of the objection based on Article 2, paragraph 7, directed specifically against the competence of the Court. Whilst this is not unequivocal evidence that Article 2, paragraph 7, applies to the advisory jurisdiction,54 the incident indicates that the Court will not in any case give any specific, and from the point of view of its jurisdiction more restrictive, content to the ‘essentially within’ formula as compared with the normal version of the principle of domestic jurisdiction: a matter regulated by treaty does not remain ‘essentially within’ the domestic jurisdiction of a state. [...] 53 54

See the Peace Treaties case, I.C.J. Reports (1950), p. 65 at pp. 70–1. See Waldock, op. cit., p. 138.

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Chapter XXII - Some Incidents of Illegality and the Concept of Jus Cogens1

1 The Varying Content of Illegality The law of responsibility has a precarious existence in a decentralized system of international relations, lacking compulsory jurisdiction and automatically applicable enforcement procedures. Much of the law consists of rules of competence and functional co-operation,2 and the normal instance is not a tribunal but diplomatic exchange and negotiated settlement. Thus acceptance of the delictual character of breaches of treaty and other rules and the appearance of sophisticated, municipal, principles of responsibility, linked to damages rather than the political ‘indemnity’ or ‘satisfaction’, are relatively recent. Rules develop in the customary law as liberties and prohibitions with no very precise definition of the content of illegality involved. Beyond the incidence of responsibility for causing material harm, there exists a variety of situations in which the illegality is conditioned in special terms. Even in the normal sphere of international responsibility, acts of trespass, for example an intrusion into the territorial sea of another state not causing ‘material harm’, are regarded by some as an exceptional form of delict.3 Some jurists are of opinion that states may bear a criminal responsibility for certain categories of wrongdoing, including the launching of aggressive war;4 and, irrespective of the criminality of the act qua act of state, criminal responsibility of individuals participating may exist under international law.5 In several instances the illegality is relative or conditional. Illegality may result only if no compensation is paid,6 and may be excluded as a consequence of bilateral relations determined by estoppel or acquiescence.7 The legality of reprisal 1

2 3

4 5 6 7

See generally, Guggenheim, 74 Hague Recueil (1949, i), 195–268; Fitzmaurice, 92 Hague Recueil (1957, ii), 117–28; Schwarzenberger, 43 Texas L.R. (1965), 455–78 (less fully, in Curr. Leg. Problems (1965), pp. 191–214); Jennings, Cambridge Essays in International Law (1965), pp. 64–87; Baade, 39 Indiana L.J. (1964), 497–559. There is a strong analogy with principles of constitutional and administrative law. Supra, pp. 444, 450 [Editors’ note: not included in this Anthology]. See especially Parry, 90 Hague Recueil (1956, ii), 674 seq. Cf. the status of ultra vires jurisdictional acts unaccompanied by any immediate enforcement or material harm, for example unlawful extension of nationality law. Supra, p. 420. [Editors’ note: not included in this Anthology], n. 1 for references to the literature. Infra, pp. 544–7. [Editors’ note: not included in this Anthology]. Cf. the law of expropriation, infra, pp. 516 seq.; and see supra, pp. 452–3, on incomplete privilege. [Editors’ note: not included in this Anthology]. Infra, pp. 615 seq. [Editors’ note: not included in this Anthology]. For examples of relativity in the law of belligerent occupation see Baxter, 27 B.Y. (1950), 235 seq. Cf. Dralle v. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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is conditioned in part by a prior commission of a delict by the state against which the reprisal is directed.8 2 Objective Consequences of Illegal Events Illegal conduct may produce a legal regime contingent on the existence of the conduct rather than its illegality. Thus an ‘armed conflict’ or ‘war’, the inception of which may have been the result of a breach of the United Nations Charter, will nevertheless draw in its train most9 of, if not all, the rules governing the conduct of war. Similarly, states have in some instances at least operated a principle of effectiveness.10 Thus, where control of territory results from illegal annexation, it may be good policy to recognize grants of nationality by the wrongdoer, since nationality may be regarded as a status and nullification of grants may have harmful consequences.11 In the law relating to acquisition of territorial sovereignty, including the delimitation of a territorial sea, and to rights of passage and other privileges, illegal activity may produce valid results by the operation of prescription, acquiescence, and estoppel.12 Here the illegal conduct is merely a causa sine qua non and does not of itself produce legal consequences. 3 General Wrongs: Abuse of State Competence The notion of delicta juris gentium, as opposed to torts as reparation obligations between tortfeasor and claimant, takes four forms: (1) that of high illegality or breach of jus cogens, as in the case of genocide (see Section 5, infra); (2) reference to cases where international law recognizes a general competence to exercise jurisdiction to apprehend, and perhaps to punish, irrespective of the nationality of the wrongdoer, as in the case of piracy;13 (3) acts which harm all states indiscriminately and which are difficult to trace to particular tortfeasors, as in the case of successive nuclear tests in the atmosphere;14 (4) acts infringing principles of law creating rights the beneficiaries of which do not Republic of Czechoslovakia, Int. L.R. 17 (1950), no. 41 at p. 165. See also Arbitral Award Case, I.C.J. Reports (1960), p. 192; ibid., pp. 221–3, diss. op., Judge Urrutia Holguín. 8 See Fitzmaurice, op. cit., p. 119. 9 For a possible qualification, see infra, pp. 501, n. 3, 521, n. 3. [Editors’ note: not included in this Anthology]. 10 See generally Touscoz, Le Principe d’effectivité dans l’ordre international (1964); Lauterpacht, The Development of International Law by the International Court, pp. 227 seq. 11 See Brownlie, 39 B.Y. (1963), 326–7, 344–5. 12 Supra, pp. 163–4. [Editors’ note: not included in this Anthology]. 13 Cf. the treaties concerning repression of slavery and prostitution: Oppenheim i. 733–4; and Schwelb, 9 i.c.l.q. (1960), 668. The approach here is in terms of a duty to apprehend and punish and it is not clear that the wrongdoing is to be classified as an ‘international crime’. 14 See supra, p. 279. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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have legal personality or, more correctly, do not have presently effective means of protecting their rights, as, for example, non-self-governing peoples and the populations of mandate or trust territories.15 These categories are, of course, related in their application to particular subject-matter: thus the principle of self-determination involves (1) and (4). The abusive exercise of a state competence without material harm to some other state raises issues similar to those apparent in the South West Africa cases,16 where the mandatory’s abuse of competence was in issue and the question was whether states not harmed in their material interests were allowed to raise the issues. Thus a state may extend its nationality to part of the population of another state, deprive a part of its permanent population of nationality, legislate for a criminal jurisdiction of aliens well beyond the limits set by international law, refuse to accept responsibility for its territorial sea, or fail to exercise criminal jurisdiction when it alone has competence.17 In these cases no justiciable issue arises until acts of administration and enforcement infringe the legal interest of another state, or the consequences of omission affect another state. 4 Ex Injuria Non Oritur Jus The principle that no benefit can be received from an illegal act has been stated by jurists in the context of international law18 and applied by tribunals. In the Eastern Greenland19 case the Permanent Court-took the view that Norway could not rely on her decree of 1931 affecting the disputed area, as ­Denmark had a prior title.20 Municipal courts have often refused to give extraterritorial

15 See infra, pp. 550–1. [Editors’ note: not included in this Anthology]; on the problems of locus standi before tribunals, supra, pp. 453–9. [Editors’ note: not included in this Anthology] On the principles of self-determination, infra, pp. 775–8. [Editors’ note: not included in this Anthology]. 16 Supra, pp. 453–7. [Editors’ note: not included in this Anthology]. 17 Cf. the position of contributing states in relation to United Nations forces in the Congo. 18 See Verzijl, 15 r.d.i. (La Pradelle) (1935), 284–339; Lauterpacht, 62 Hague Recueil (1937, iv), 287–96; Guggenheim, op. cit. See also Lauterpacht, Recognition, pp. 409 seq., 421 seq. 19 Supra, pp. 133, 145. Other judicial applications of the principle are listed in Oppenheim i. 142, n. 1. 20 Cf. Judge Anzilotti, diss., P.C.I.J., Ser. A/B, no. 53 at pp. 94–5. See also supra, p. 126, [Editors’ note: not included in this Anthology] on title.

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recognition to acts regarded as illegal under international law.21 The principle itself leads to the wide field of problems as to the nullity of ultra vires acts, problems which cannot be properly approached by way of abstract generalizations.22 Reference to the principle ex injuria non oritur jus does not provide a safe guide to the solution of specific problems, and dogmatic assertions of nullity may create more difficulties than they solve. 5 Jus Cogens23 Jurists have from time to time attempted to classify rules, or rights and duties, on the international plane by use of terms like ‘fundamental’ or, in respect to rights, ‘inalienable’ or ‘inherent’. Such classifications have not had much success, but have intermittently affected the interpretation of treaties by tribunals.24 In the recent past some eminent opinions have supported the view that certain overriding principles of international law exist, forming a body of jus cogens.25 The major distinguishing feature of such rules is their relative indelibility. They are rules of customary law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary ­effect. The least controversial examples of the class are the ­prohibition

21 See In re Krüger, Int. L.R. 18 (1951), no. 68; Singapore Oil Stocks case, Int. L.R. 23 (1956), 810; Green, p. 710; Civil Air Transport Inc. v. Central Air Transport Corp., Int. L.R. 19 (1952), no. 20 at p. 97. 22 See Jennings and Baade, supra, p. 496, n. 1. On the ultra vires acts of organizations see infra, pp. 677 seq. See also Chapter iv, Section 7. [Editors’ note: not included in this Anthology]. 23 See generally Schwelb, 61 A.J. (1967), 946–75; Verdross, 60 A.J. (1966), 55–63; Scheuner, 27 Z.a.ö. R.u.V. (1967), 520–32; Barberis, ibid., 30 (1970), 19–45; Schwarzenberger, 43 Texas L.R. (1965), 455–78; and, less fully, in Curr. Leg. Problems (1965), 191–214; C. de Visscher, 75 r.g.d.i.p. (1971), 5–11; Concept of Jus Cogens in International Law, Conf. on Int. Law, Langonissi (Greece), 1966 (1967); Mosler, 25 Ann. suisse (1968), 9–40, Paul, 21 Öst. Zeit. für öff. R. (1971), 19–49; Ago, Second Report on State Responsibility, A/CN.4/233, 20 April 1970, p. 17, para. 23; Marek, in Recueil d’études en hommage à Paul Guggenheim, pp. 426–59; Riesenfeld, 60 A.J. (1966), 511–15; Virally, Annuaire français (1966), 5–29; Nisot, Revue Belge (1968), 1–8; Monaco, 125 Hague Recueil (1968, iii), 202–12; Guggenheim, Traité (2nd ed.), i. 128–9; Morelli, 51 Rivista di d.i. (1968), 108–17; Schweitzer, 15 Archiv des V. (1971), 197–223. 24 On sovereignty and the restrictive interpretation of treaties see Lauterpacht, op. cit., pp. 300–6, and supra, p. 281. [Editors’ note: not included in this Anthology]. 25 See Lauterpacht, 27 B.Y. (1950), 397–8; id., Yrbk., I.L.C. (1953), ii. 154–5, esp. para. 4; Fitzmaurice, 30 B.Y. (1953), 30; id., 92 Hague Recueil (1957, ii), 120, 122, 125. See also In re Flesche, Ann. Digest 16 (1949), no. 87 at p. 269. For an early source: Anzilotti, Opere i. 289 (3rd Ital. ed., 1927; also in Cours de droit international (1929), i. 340).

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of ­ aggressive war,26 the law of genocide, the principle of racial nondiscrimination,27 crimes against humanity, and the rules prohibiting trade in slaves and piracy. In the Barcelona Traction case (Second Phase),28 the majority judgment of the International Court, supported by twelve Judges, drew a distinction between obligations of a state arising vis-à-vis another state and obligations ‘towards the international community as a whole’. The Court said: Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Other rules which may29 have this special status include the principle of permanent sovereignty over natural resources30 and the principle of selfdetermination.31 The concept of jus cogens was accepted by the International Law Commission32 and incorporated in the final draft on the law of treaties in 1966, Article 5033 of which provided that: ‘a treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ The Commission’s commentary makes it clear that by ‘derogation’ is meant the use of agreement (and presumably acquiescence as a form of agreement) to contract out of rules of general international law. 26 McNair, Law of Treaties (1961), pp. 214–15. 27 See the 1966 edn. of this book, p. 417; Judge Tanaka, diss. op., South West Africa cases (Second Phase), I.C.J. Reports (1966), p. 298; Judge Ammoun, sep. op., Barcelona Traction case (Second Phase), I.C.J. Reports (1970), p. 304; Judge Ammoun, sep. op., Namibia opinion, ibid. (1971), pp. 78–81. See further infra, p. 578. [Editors’ note: not included in this ­Anthology]. The principle of religious non-discrimination must have the same status as also the rather neglected principle of ­non-discrimination as to sex. 28 I.C.J. Reports (1970), p. 3 at p. 32. See also In re Koch, Int. L.R. 30, p. 496 at p. 503. 29 The writer is referring to candidate rules and uses tentative language, a fact not observed by all of those referring to the text of the 1966 edn. 30 See the relevant U.N. Declaration infra, p. 525. [Editors’ note: not included in this Anthology]. 31 Judge Ammoun, sep. op., Barcelona Traction case (Second Phase), I.C.J. Reports (1970), p. 304. 32 See Yrbk., I.L.C. (1963), ii, p. 187 at pp. 198 (art. 37), 211 (art. 45), 216 (art. 53). See also McNair, op. cit., pp. 213–18; Lauterpacht, Yrbk., I.L.C. (1953), ii. 154–5; and Fitzmaurice, ibid. (1958), ii. 27 (art. 17), 40. 33 See Yrbk., I.L.C. (1966), ii. 247–9. See also pp. 261 (art. 61), 266 (art. 67).

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Thus an agreement by a state to allow another state to stop and search its ships on the high seas is valid, but an agreement with a neighbouring state to carry out a joint operation against a racial group straddling the frontier which would constitute genocide, if carried out, is void since the prohibition with which the treaty conflicts is a rule of jus cogens. After some controversy, the Vienna Conference on the Law of Treaties reached agreement on a provision (Article 53)34 similar to the draft article except that, for the purposes of the Vienna Convention on the Law of Treaties, a peremptory norm of general international law is defined as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. Charles de Visscher35 has pointed out that the proponent of a rule of jus cogens in relation to this article will have a considerable burden of proof. Apart from the law of treaties the specific content of norms of this kind involves the irrelevance of protest, recognition, and acquiescence: prescription cannot purge this type of illegality. Moreover, it is arguable that jus ­cogens curtails various privileges, so that, for example, an aggressor would not benefit from the rule that belligerents are not responsible for damage caused to subjects of neutral states by military operations.36 Many problems remain: more authority exists for the category of jus cogens than exists for its particular content,37 and rules do not develop in customary law which readily ­correspond to the new 34 35 36

37

See also Articles 64 and 71. Théories et réalités en droit international (4th ed.), pp. 295–6. See also id., 75 r.g.d.i.p. (1971), 5–11. See McNair, Opinions ii. 277; and Schwarzenberger (3rd ed.), i. 646. Authority also exists for the view that an aggressor does not acquire title to property acquired even if the confiscation and requisition were within the Hague Regulations: references, Brownlie, International Law and the Use of Force by States, p. 406, n. 3. [Editors’ note: not included in this Anthology]. Scope for reliance on doctrines of reprisal and necessity will be reduced. Can the principle of universal jurisdiction develop in relation to jus cogens? Cf. the Eichmann case, supra, p. 298. Should the principle of self-determination, as an aspect of jus cogens, be used to widen concepts of legal interest and locus standi? Cf. the South West Africa cases (Second Phase), I.C.J. Reports (1966), p. 6, on which see supra, p. 455. See the trenchant comment by Schwarzenberger, who regards the principle as a source of instability in treaty relations: op. cit.; also in International Law (3rd ed.), i. 425–7; and The Inductive Approach to International Law, pp. 85–107. See further a reply by Verdross, 60 A.J. (1966), 55–63. It is useful to note that the Declaration on Principles of ­International Law Concerning Friendly Relations and Co-operation Among States, adopted by the U.N. General Assembly on 24 October 1970 (see 65 A.J. (1971), 243), makes no reference to peremptory norms.

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categories. However, certain portions of jus cogens are the subject of general agreement, including the rules relating to the use of force by states, self-determination, and genocide. Yet even here many problems of application remain, particularly in regard to the effect of ­self-determination on the transfer of territory. If a state uses force to implement the principle of s­ elf-determination, is it possible to assume that one aspect of jus cogens is more significant than another?38 6 The Obligation of Putting an End to an Illegal Situation When competent organs of the United Nations make a binding determination that a situation is illegal, the states which are addressees of the resolution or resolutions concerned are under an obligation to bring that situation to an end.39 Much depends on the precise manner in which such resolutions spell out the consequences. However, in the ordinary course the consequence of the illegality will involve a ‘duty of non-recognition’. This duty may be observed irrespective of or in the absence of any directives from the United Nations if in the careful judgment of the individual state a situation has arisen the illegality of which is opposable to states in general. In 1970 the Security Council adopted Resolution 276 in which that organ recognized the decision of the General Assembly to terminate the mandate of South West Africa and to assume direct responsibility for the territory until its independence. The same decision of the General Assembly declared that the presence of South African authority in South West Africa (otherwise Namibia) as well as all acts by that Government concerning Namibia were illegal and invalid. In Resolution 283 the Security Council called upon all states to take specific steps consequential upon the illegality of the South African presence, including the termination of diplomatic and consular representation as far as such relations extend to Namibia, the ending of dealings relating to the territory by state enterprises and the withdrawal of financial support from nationals and private corporations that would be used to facilitate trade or commerce with Namibia. In Resolution 284 (1970) the Security Council asked the International Court for an Advisory Opinion in response to the question: ‘What are the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970)?’ In its Opinion40 the 38 39 40

See further supra, Chapter vii, Section 24. [Editors’ note: not included in this Anthology]. See the Namibia opinion, I.C.J. Reports (1971), p. 54. I.C.J. Reports (1971), p. 16.

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Court considered a variety of issues including the legal status of the General Assembly resolution by which the Mandate was terminated.41 The Court held42 that as a consequence of Security Council resolution 276 (1970), which was mandatory within the terms of the United Nations Charter, member states were under an obligation to recognize the illegality and invalidity of South Africa’s continued presence in Namibia. In the Opinion it was recognized that the precise determination of appropriate measures was a matter for the political organs. Thus the Court would ‘confine itself to giving advice on those dealings with the Government of South Africa which, under the Charter of the United Nations and general international law, should be considered as inconsistent with the declaration of illegality and invalidity made in paragraph 2 of resolution 276 (1970), because they may imply a recognition that South Africa’s presence in Namibia is legal’. Matters touched upon in this connexion included treaty relations in cases in which South Africa purported to act on behalf of or concerning Namibia, diplomatic relations, and economic dealings. The Opinion excepted acts such as registration of births, deaths, and marriages from the taint of invalidity. Finally, the Court expressed the view that the illegality of the situation was opposable to all states and not merely to members of the United Nations. In legal terms the consequences of illegality, or ‘the duty of ­non-recognition’, are distinct from the application of economic and military sanctions, voluntary or mandatory, as a consequence of United Nations resolutions as, for example, in relation to Rhodesia consequent upon the unilateral declaration of independence by the Smith regime.43 Politically speaking, the practical ­consequences of non-recognition are similar to non-military sanctions.44 It

41 42

43 44

Supra, p. 178. [Editors’ note: not included in this Anthology] pp. 54–6 of the Opinion; supported by 11 votes to 4 (see p. 58). By 13 votes to 2 it was held that, the continued presence of South Africa in Namibia being illegal, South Africa was under an obligation to withdraw its administration immediately. Judges Fitzmaurice and Gros, dissenting, considered that the Mandate had not been validly terminated. Passages in separate and dissenting opinions dealing with the legal consequences of the presence of South Africa in Namibia are as follows: pp. 89–100 (Ammoun); 119–20 (Padilla Nervo); 133–7 (Petrén); 147–9 (Onyeama); 165–7 (Dillard); 217–19 (de Castro); 295–8 (Fitzmaurice). See Dugard, 88 S. Africon L.J. (1971), 460–77. See resols. of 1965 and 1966: 60 A.J. (1966), 921–6; 61 A.J. (1967), 652–5; resols. of 1968: 7 Int. Leg. Materials (1968), 897, 1402. See also 9 Int. Leg. Materials (1970), 636. See Judge Petrén, sep. op., I.C.J. Reports (1971), pp. 127, 134–7.

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may be true, as Judge Petrén suggests in his Separate Opinion, that the resolutions relating to Namibia impose certain duties which go beyond the effects of mere non-recognition in general international law.45 45

Ibid., pp. 134–7. See also Judges Onyeama, sep. op., p. 148; Dillard, sep. op., p. 165; Fitzmaurice, diss. op., p. 297.

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Chapter 41

Her Majesty’s Government, Statements on the Recognition of Governments, 1980 and 2011 Comment by Professor Vaughan Lowe QC, University of Oxford In 1980, the British Government abandoned the policy and practice of expressly granting or withholding recognition of foreign governments that have come to power by egregiously unconstitutional means. In its modern form that policy had been developed with considerable sophistication by George Canning, British Foreign Secretary in the early nineteenth century, and the distinction between recognition de facto and recognition de jure had proved a useful analytical tool in deciding cases arising from clashes between competing regimes in the Russian and Spanish and other civil wars during the twentieth century. Concern that recognition by the British Government implied approval was given as a reason for the change, which resulted in the avoidance of sometimes difficult decisions on the timing and nature of recognition. The 1980 policy left the courts to decide whether a particular group would be regarded as a government for the purposes of each case as it arose. The courts rose to the task in cases such as Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA.a In a good example of the instrumental character of international law, as viewed by the British Government, the new policy was apparently abandoned in 2011. The British Government announced during the civil war in Libya that “the United Kingdom recognises and will deal with the National Transitional Council as the sole governmental authority in Libya”.b No explanation was given for the change in policy regarding recognition in 2011.

a Republic of Somalia v. Woodhouse Drake & Carey (Suisse) SA [1993] QB 54. b N Watt, ‘Britain recognises Libyan rebels and expels Gaddafi’s London embassy staff’ The  Guardian, 27 July 2011, available at: .

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_042

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HMG, Statements by Lord Carrington, Secretary of State for Foreign and Commonwealth Affairs, to the House of Lords on ‘Recognition of Governments’, 28 April and 23 May 1980: HL Deb 28 April 1980 vol 408 cc1121-1122 Written Answer; HL Deb 23 May 1980 vol 409 cc1097-1098 Written Answer. Contains Parliamentary information licensed under the Open Parliament Licence v3.0

Statements by Lord Carrington on the Recognition of Governments, 28 April and 23 May 1980

HL Deb 28 April 1980 vol 408 cc1121-1122 Written Answer

Viscount Amory asked Her Majesty’s Government §Whether they have completed their re-examination of British policy and practice concerning the recognition of Governments; and what is the result of that re-examination. Lord Carrington §Following the undertaking of my right honourable friend the Lord Privy Seal in another place on 18th June last we have conducted a re-examination of British policy and practice concerning the recognition of Governments. This has included a comparison with the practice of our partners and allies. On the basis of this review we have decided that we shall no longer accord recognition to Governments. The British Government recognise States in accordance with common international doctrine. Where an unconstitutional change of régime takes place in a recognised State, Governments of other States must necessarily consider what dealings, if any, they should have with the new régime, and whether and to what extent it qualifies to be treated as the Government of the State concerned. Many of our partners and allies take the position that they do not recognise Governments and that therefore no question of recognition arises in such cases. By contrast, the policy of successive British Governments has been that we should make and announce a decision formally “recognising” the new Government. This practice has sometimes been misunderstood, and, despite explanations to the contrary, our “recognition” interpreted as implying approval. For example, in circumstances where there might be legitimate public concern about the violation of human rights by the new régime, or the manner in which it achieved power, it has not sufficed to say that an announcement of “recognition” is simply a neutral formality.

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We have therefore concluded that there are practical advantages in following the policy of many other countries in not according recognition to Governments. Like them, we shall continue to decide the nature of our dealings with régimes which come to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so.

HL Deb 23 May 1980 vol. 409 cc1097–1098 Written Answer

Lord Morris asked Her Majesty’s Government With reference to the reply given to Lord Amory’s question on “Recognition of Governments: Policy and Practice” on 28th April 1980 (cols. 1121–2), how in future, for the purposes of legal proceedings, it may be ascertained whether, on a particular date, Her Majesty’s Government regarded a new regime as the Government of the state concerned. 1098WA

The Secretary of State for Foreign and Commonwealth Affairs (Lord Carrington) In future cases where a new regime comes to power unconstitutionally our attitude on the question whether it qualifies to be treated as a Government will be left to be inferred from the nature of the dealings, if any, which we may have with it, and in particular on whether we are dealing with it on a normal Government to Government basis.

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HMG, Announcement by The Right Hon William Hague, Secretary of State for Foreign and Commonwealth Affairs, on United Kingdom recognition of the National Transitional Council as the sole governmental authority in Libya. Source: Foreign and Commonwealth Office, 27 July 2011, ‘Libyan Charge d’Affaires to be expelled from UK’, Part of: Peace and stability in the Middle East and North Africa and Libya https://www.gov.uk/government/news/libyan-charge-d-affaires-to-be-expelled-from-uk. Reproduced under the Open Government Licence for public sector information.

Foreign Secretary Hon William Hague Statement on Recognition of the Libyan National Transitional Council, 27 July 2011

Libyan Charge d’Affaires to be expelled from UK

All remaining Libyan diplomats are being expelled. The Libyan Ambassador was expelled in May. The Foreign Office confirmed that the Libyan Charge d’Affaires has been called to the FCO and is being informed that he and the remaining Libyan diplomats in the UK are being expelled. Foreign Secretary William Hague said: “What we are doing in Libya is necessary, legal and right. We could not and did not turn a blind eye when Qadhafi turned his forces against innocent civilians, shelled peaceful protestors and targeted victims crammed in hospitals. The international community’s actions have saved thousands of lives. We have averted massive slaughter in Benghazi. And we have protected innocent Libyans across the country. When I visited Benghazi I saw for myself how close Qadhafi’s forces came and what was possible after they had been stopped. My visit allowed a window into a Libya free from Qadhafi – where the legitimate aspirations of the people are welcomed not repressed, and where debate, a free media and civil society are encouraged not crushed. The UK is committed to supporting the Libyan people. We are a strong and true friend. Britain has lead implementation of unscr 1973 from the front – providing key aircraft including Typhoons, Tornados and Apaches. We have led political support to the NTC – bringing together an unprecedented international coalition at the London Conference and providing practical assistance since. Our office in Benghazi is now our largest in North Africa after Cairo, and led by one of the Foreign Office’s most senior diplomats. UK teams have helped build command and control capacity as well as assist the NTC in their post-Qadhafi planning. And we have provided communications equipment,

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support for the emerging free media and widespread support for the police. We have provided substantial humanitarian assistance and support to clear mines. We are already helping communities return to normal life and we are continuing to advise the NTC as they look beyond Qadhafi. The Libyan people can be assured that we will remain on their side for as long as it takes. At the latest Libya Contact Group in Istanbul the international community sent an unequivocal message to Qadhafi: that he had no legitimacy and there was no future for Libya with him in power. As part of this it decided “to deal with the National Transitional Council (NTC) as the legitimate governing authority in Libya”. This was a significant development, and today I will outline the action that the UK will now take in response. The Prime Minister and I have decided that the United Kingdom recognises and will deal with the National Transitional Council as the sole governmental authority in Libya. This decision reflects the NTC’s increasing legitimacy, competence and success in reaching out to Libyans across the country. Through its actions the NTC has shown its commitment to a more open and democratic Libya – something that it is working to achieve through an inclusive political process. This is in stark contrast to Qadhafi, whose brutality against the Libyan people has stripped him of all legitimacy. The NTC is a focal point for people throughout Libya who want a better future for their country. Our decision also reflects the responsibilities that the NTC has taken on in the areas under its control. It means we will deal with the NTC on the same basis as other governments around the world. In line with this decision we therefore summoned the Libyan Charge d’Affaires here to the FCO this morning and informed him that he and other regime diplomats from the Qadhafi regime must leave the UK. We no longer recognise them as the representatives of the Libyan Government, and are inviting the NTC to appoint a new Libyan diplomatic envoy to take over the Libyan Embassy in London. In line with unscrs 1970 & 1973, the UK continues to explore how to unfreeze assets to support the NTC. At the request of the Arabian Gulf Oil Company, a Libyan oil company, the UK is ready to make available £91 million of the Company’s assets in the UK. agoco is operating under the control of the NTC and we are assured that its activities will not benefit any listed entity under the sanctions. We will issue licences for the use of its frozen funds to meet its basic needs. This will help to ensure that the crucial provision of fuel is maintained. We will work hard with our international partners in the coming weeks to unfreeze further Libyan assets frozen in the UK for the benefit of the Libyan people, including stocks of Libyan currency and other assets of the Libyan Central Bank, in line with

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unscrs 1970 and 1973. We are also discussing with partners what funds we can make available for the benefit of the Libyan people to alleviate the hardships they face. I am conscious that the Libyan students in the UK whose expenses have been paid by the Libyan People’s Bureau will be concerned about what this decision means for them. I want to reassure them that we are working closely with the NTC and the relevant banks and will do all we can to make sure that they and their families will continue to receive the funds to which they are entitled. This decision marks another step towards a better, democratic future for Libya – a future that does not include Qadhafi. The momentum has shifted against him and those around him. There is steady progress across the board, in particular around Misrata, Brega and Jebel Nafusa where the opposition is driving Qadhafi’s forces back. Reports suggest that morale amongst the regime’s forces is low. Economic sanctions are restricting his ability to wage war on Qadhafi’s own people. I am making this announcement today to reflect the facts on the ground and increase our support for those fighting and working for a better future in Libya. We will sustain our actions for as long as is necessary. Our recent decision to deploy an additional four Tornados to Libya is a concrete illustration of this. This was the united international message from the Contact Group in Istanbul. What I have announced today will allow us to give further assistance to the people of Libya and underline the message to the Qadhafi regime that their legitimacy has come to an end.”

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Chapter 42

Colin Warbrick, Recognition of States, 1992 Comment by Nikolaos Pavlopoulos, Intern, BIICL Colin Warbrick is a British public international lawyer who has contributed substantially to the field. He has advised various domestic and i­nternational bodies and also written widely on general public international law issues, while also engaging more particularly on the sub-areas of international human rights and international criminal law, as well as the law on statehood and the relationship between domestic and international law. In the early 1990s, the international community was struggling to deal with and respond to radical political changes taking place in Eastern Europe and the Soviet Union, culminating in several claims to independence. Due in part to the fact that States’ responsive practice to these claims diverged from ­historical precedents, the potential to re-shape our understanding of statehood and recognition emerged. This was closely related to broader international legal changes advocated for at the time, predominantly in the literature, many of which are still discussed today. In his 1992 article on Recognition of States, Warbrick provides a timely, historically and contextually thorough analysis of the practice relating to these entities’ recognition. He draws a pragmatic distinction between legally relevant and solely politically motivated conduct which is not only intrinsically useful, but is of particular significance in this context as it was during this time that the European Community (EC) first formally employed a common policy of recognition that was conditional on more than what was traditionally required by international law. Through this, and as complemented by Part 2 of this article (published in the following year), he discerns that the relevant criteria for lawful recognition did not change, even though avenues for such changes are identified, which remain relevant in recognition-related discourse today. By identifying that the EC’s novel policy is based on political, rather than legal, considerations, Warbrick also accurately conceptualises the relevant interactions between the recognising States and the recognition-seeking entities. Moreover, by tracing back the reasons for the UK’s policy decision to recognise States, rather than governments, while also considering the purpose which recognition is meant to serve more generally, Warbrick offers unique insights into the impact of the early 1990s practice on such considerations. This piece undoubtedly provides a significant contribution to international law by © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_043

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advancing a theoretically sound basis for subsequent analysis of the same and future practice, with normative reflections that should form part of any ensuing analyses of the law on recognition of States. Recognition of States also illustrates the rigorous and perceptive analysis which Colin Warbrick employs throughout his works and contributions to public international law.

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C. Warbrick, ‘Recognition of States’, (1992) Vol 41/2 International and Comparative Law ­Quarterly, pp. 473–482. Reproduced with the kind permission of the British Institute of International and Comparative Law.

Recognition of States* Colin Warbrick When in 1980 the British government announced its new policy on recognition of governments—that, henceforth, it was not going to recognise governments—it said that the recognition of States would continue “in accordance with common international doctrine”.1 In British practice, the distinction between statehood and recognition was scarcely of any account. Unless there were pressing reasons, usually of a legal kind, for not regarding an effective and independent territorial group as a State, the British government would regard it as a State and recognise it as a State. The vast expansion of States during the period of decolonisation presented generally no difficulty for this approach. New States emerged within the territorial boundaries of the administrative unit of the departing imperial power upon the grant of independence. Recognition, by those States interested, of the newly independent State was generally accorded forthwith in formal ways, such as by representation at the ­independence ceremonies or by the extension of congratulations. If they made an application for membership of the United Nations, these new States were routinely admitted. There were occasional difficult cases—Western Sahara, for instance—and in some cases, bilateral considerations affected relations between a State and a newly independent State—such as Guatemala’s initial unwillingness to acknowledge the State of Belize because of the former’s irredentist claims to the other’s territory. For the United Kingdom there were no problems of this kind. To start with, it appeared that the turmoil in Eastern Europe and the Soviet Union would not bring the existing policy under any different pressure. The German Democratic Republic was absorbed within the Federal Republic and no issue of recognition of statehood arose (although there was need for consequential settlement of the Allies’ wartime rights with respect to Germany).2 The other non-Soviet States of the Warsaw Pact had been recognised as States * This section deals with recent developments in British practice, making some attempt to set the practice against the international and domestic context in which it takes place. 1 H.L. Deb., Vol. 408, Cols. 1121–1122 (Apr. 1980). See Current Developments: “Recognition of States and Diplomatic Relations” (R.A.C. White) (1988) 37 i.c.l.q. 983–988. 2 Treaty on the Final Settlement with respect to Germany (1990) 29 i.l.m. 1186. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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by the United Kingdom, whatever their political dependency on the Soviet Union in fact. The tumultuous changes there were no more than changes of government. A

The Baltic States

The first instances to revive an interest in recognition of statehood were those of the Baltic States, Lithuania, Latvia and Estonia. Their position was complicated because States had not taken a uniform view of their status after 1940 when the Baltic States purportedly confirmed their incorporation into the ­Soviet Union. The British government did not recognise de jure the incorporation but it did acknowledge the de facto exercise of Soviet authority in the three territories.3 By different processes, the three States asserted their independence throughout 1990 and 1991 and sought the recognition by other States to confirm their status. While the British government asserted that this was a matter with which it was legitimately concerned,4 its position initially was that they had not established their independence.5 Nonetheless, it looked forward to the time when, in the exercise of their right of self-determination, the peoples of these territories did establish their statehood. After the defeat of the coup against the Soviet government on 21 August 1991, the Baltic States were recognised by the Russian Federation. On 27 August, the States of the European Community recognised them. The statement of the Dutch Presidency said:6 The Community and its member States warmly welcome the restoration of the sovereignty and independence of the Baltic States, which they lost in 1940. They have consistently regarded the democratically elected parliaments and governments of these States as the legitimate representatives of the Baltic peoples.

3 For Estonia, see AI S Tallinna Laevauhisus v. Estonian State Steamship Line (1946) 79 Ll.L.R. 245, 251. Also Lord Belstead, Minister of State FCO, H.L. Deb., Vol. 440, Col. 1449, (1982). Re an Application by Ernst Jaakson and Aarand Roos 85 i.l.r. 53. 4 UKMIL (1990) b.y.i.l. 492, 497. 5 Idem, pp. 494, 499. The Soviet Union objected to the presence of representatives of the Baltic States at the Paris meeting of CSCE, 20 Nov. 1990. The French government withdrew their invitations, Independent, 21 Nov. 1990, p. 7. 6 Europe No. 5555 (N.S.) 29 Aug. 1991, p. S.

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A distinction was drawn in the Presidency statement between the position of the Netherlands and Spain which had recognised the annexation of the Baltic States and which, accordingly, needed to recognise their revived status, and the remain – der of the Community States, for which the act of 27 August was not an act of recognition. However, the position of the British government is that the act of 27 August was an act of recognition and it has yet to take a position on whether the present Baltic States are simply revivals of the ones existing before 1940. From a purely legal point of view, the outcome will depend to an extent on what view is taken of the legality of the Ribbentrop-Molotov Pact and the subsequent incor­poration of the territories into the USSR.7 Diplomatic relations were quickly established; British ambassadors were sent to the Baltic States on 9 October 1991, and they were admitted to the Conference on Security and Co-operation in Europe (CSCE) on 10 September and the United Nations on 17 September.8 One outstanding question between the United Kingdom and the Baltic States was the responsibility of the United Kingdom for “Baltic Gold”, deposits held for the States in London in 1940 but later used by the United Kingdom as part of its claims settlement with the Soviet Union in 1968. It is hard to see how the British government can resist these claims. The Minister of State told the Commons:9 We do not know what legal or moral basis there was for [transferring the gold]. and it has been announced that the United Kingdom will pay the Baltic States £90 m in reparation for the gold sold off.10 B Yugoslavia The matter of the gold apart, the restoration of relations with the Baltic States and their induction into international institutions has proceeded without difficulty. This has not been true of the developing situation in Yugoslavia where the inter-relations between statehood and recognition and statehood and self7 8 9 10

For a brief consideration, see K. Obradovic, 40 Rev. Int. Affairs (Belgrade) No. 949, pp. 9–11. The Baltic States were recognised by the Soviet Union on 6 Sept. 1991, see Independent, 7 Sept. 1991, p. l. For a summary of the British position see H.C. Deb., Vol. 196,Col. 156, 16 Oct. 1991. H.C. Deb., Vol. 199, Col. 256, 20 Nov. 1991 (Mr Garel-Jones). The Times, 23 Jan. 1992, p. 2.

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determination have been hard to disentangle. On 25 June 1991, Slovenia and Croatia declared their independence of the Yugoslav Federation.11 These assertions of statehood were not acquiesced in by the Federal authorities, nor have they been formally accepted by them since. The Federal Army initially moved against Slovenia but, after a withdrawal from there, hostilities spread through parts of Croatia. There are substantial numbers of Serbs living in various parts of Croatia and ethnic enmity is deeply entrenched. While the Yugoslav Presidency and Army have been claiming to be fighting to defend the Federal Union, Serbian irregular forces have been fighting to protect Serbs in Croatia. However, the domination of the Federal institutions by the Serbs and the overlapping practical consequences of these objectives have created considerable obstacles to identifying the reality of the Federal Army’s ambitions. The first attempt to involve outside agencies was by recourse to the CSCE mechanism, a­ ddressing for the first time affairs within a single State. The experiment was not a success.12 The European Community was invited by the Federal authorities to try to bring the fighting to an end. An initial cease-fire, negotiated under the auspices of the EC, was agreed at Brioni on 7 July but, like many others since, it did not endure. Nonetheless, the Community increased its involvement in the situation, including the sending of “monitors” to the disputed areas. After a meeting at the end of August, the Community said that it was “determined not to recognise changes of borders by force”. Instead, it proposed a continuing conference between repre­sentatives of Yugoslavia and the Republics and the European Community and its States with provision for an Arbitration Commission.13 On 9 September, Lord Carrington chaired the opening session of the Conference at The Hague.14 The Security Council called for an arms embargo of Yugoslavia on 25 September.15 At an early stage, some States were of the view that the Yugoslav Federation was unlikely to survive and the termination of the hostilities became related to the future arrangements in the area.16 Recognition became enmeshed with the search for a solution to the situation as a whole. On 6 November 1991, the Minister of State told the Foreign Affairs Committee that, for the British

11 12 13 14 15 16

There is a calendar of events in Yugoslavia in: Foreign Affairs Committee, Soviet Union/ Developments in Central Europe, Minutes of Evidence, HC 1991–1992, 21-i, 6 Nov. 1991, pp. 46–49 (FAC Report). Guardian, 28 June 1991, p. 8. Europe, No. 5555 (N.S.) 29 Aug. 1991, pp. 3–4. Idem, No. 5567 (N.S.) 9/10 Sept. 1991, pp. 3–4. Res. 713. The Times, 4 July 1991, p. l.

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g­ overnment, the essential question was how minority rights were to be protected17 and, in this respect:18 …one of the major levers that we have in order to get people to address fully and properly the question of minority rights is recognition. This emphasis on minority rights was a consequence of the precondition of respect for established boundaries, so that the reduction of minority problems by the fashioning of ethnically homogeneous States was not an option. On another occasion, the Minister told the House of Commons:19 (Frontiers) should not be changed by unilateral action nor by force. An important presumption to which we should all adhere is that existing frontiers, however inconvenient and however arbitrarily they may have been drawn, are the lines from which we start. They can be changed only by agreement or by adjudication of a lawful authority such as an international court. The last few words are whimsical and the remainder beg the question of why the presumptive boundaries should not have been those of the whole of ­Yugoslavia rather than those of its subdivisions which were previously of no international significance. Nonetheless, this was the basis for the statement by the NATO Heads of State and Government on 7–8 November 1991, when they said that they would not recognise any changes of borders, external or internal, brought about by the use of force. Attempts to insist on the uniqueness of the situation in Yugoslavia eventually failed and the European Community adopted a common position for Central Europe and the Soviet Union. There are many administrative units within the States coming to independence within the territory of the Soviet Union which could make claims similar to those made by Slovenia and Croatia. Indeed, within Yugoslavia the danger of further secessionist claims of autonomous regions within the Republic cannot be ignored. If the implication is that the degree of effectiveness of governmental control over its territory as a prerequisite for statehood may be diluted where there is a self-determination claim (and, if reference may be made to internal 17 18 19

FAC Report, op. cit. supra n. 9, p. 57 (Mr Hogg). [Editors’ note: not included in this Anthology]. Idem, p. 59. At this time, the government was of the view that Croatia did not satisfy the criteria for recognition. H.C. Deb., Vol. 198, Col. 1206, 14 Nov. 1991 (Mr Hogg).

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boundaries, that control can hardly be independent), then it is not easy to see how other situations in central Europe and in the territory of the Soviet Union are to be distinguished from those of Slovenia and especially Croatia. If the requirement of effective control is retained with its traditional rigour, then it is an encouragement to internal regional areas to take steps to demonstrate this, by force if necessary, against the central authorities.20 As late as 13 December, the Minister acknowledged that there were differences between Slovenia and Croatia looked at in the light of orthodox considerations:21 The traditional criteria that we adopt for the recognition of States probably apply to Slovenia. They do not apply in the case (of) Croatia in the same way but … one of the reasons why the criteria do not apply to Croatia is that Croatian territory has been invaded by the jna (the Federal Army) and Serbian irregulars. He was not deflected by the traditional criteria, for:22 …we accept the principle of the recognition of the republics of Yugoslavia which wish it. It was simply a matter of timing.23 At present recognition would have been “premature”24 (which appears to have been used in a political rather than a legal sense). There was work to be done to influence affairs in Yugoslavia and that influence would be enhanced by the elaboration of a common EC position.25 That common position was reached at a meeting of Foreign Ministers in Brussels on 16 December 1991.26 The Ministers issued a Declaration on 20 21 22 23 24 25 26

The debate between the Minister and the Foreign Affairs Committee on these questions, FAC Report, supra n. 9, pp. 56–67 [Editors’ note: not included in this Anthology], is less than clear. See infra, n. 21. H.C. Deb., Vol. 200, Col. 1166, 13 Dec. 1991 (Mr Hogg). Ibid. Foreign Secretary (Mr Hurd), H.C. Deb.,Vol. 199, Col. 255, 20 Nov. 1991;idem, The Times, 3 Dec. 1991, p. 14. H.C. Deb., Vol. 200, Col. 1167, 13 Dec. 1991. lt is curious that there were nonetheless references to the “Civil War” in Yugoslavia about this time, H.C. Deb., Vol. 201, Col. 184 (W.A.), 18 Dec. 1991 (Mr Hogg). Idem, H.C. Deb., Vol. 201, Col. 485, 19 Dec. 1991. The Communities have reinforced their diplomatic efforts by economic sanctions against the whole and now against parts of Yugoslavia. S.C. Res. 724, which looked forward to the positioning of a peace-keeping force in Yugoslavia, made no reference to an obligation to States not to recognise the independence of any of the States of the Yugoslav Republic. See also S.C. Res. 721, 28 Nov. 1991. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the Guidelines on Recognition of new States in Eastern Europe and the Soviet Union:27 The Community and its Member States28 confirm their attachment to the principles of the Helsinki Act and the Charter of Paris, in particular the principle of self­determination. They affirm their readiness to recognise, subject to the normal standards of international practice and the political realities in each case, those new States which, following the historic changes in the region, have constituted them­selves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations. Therefore, they adopt a common position on the process of recognition of these new States, which requires: – respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights; – guarantees for the rights of the ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE; – respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; – acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability; – commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes. The Community and its Member States will not recognise entities which are the result of aggression. They would take account of the effect of recognition on neighbouring States. The commitment to these principles opens the way to recognition by the Community and its Member States and to the establishment of diplomatic relations. It could be laid down in agreements.

27 28

Text supplied by Foreign and Commonwealth Office. This formulation, which has become standard, disguises the legal nature of the statement. It is probably correct to see it as an act of the EC and a series of separate acts of the member States. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The statement refers to “new States” and the “normal standards of international practice…” which make statehood in its orthodox sense a precondition for recognition although there is clearly room for differences between States as to whether an entity claiming statehood does in fact satisfy the traditional criteria. Recognition being discretionary, the statement sets out the conditions upon which the EC States will recognise new States which emerge in Eastern Europe and the Soviet Union. The political conditioning of recognition of statehood is new to UK practice. The advantages to the European Community are that it enables the Community to exercise some influence on the policies of these new States and that it may reduce some of the problems of State succession that will undoubtedly arise with respect to these States, more particularly, perhaps, for successor States to the Soviet Union than in Yugoslavia. The EC Foreign Ministers issued a further declaration on Yugoslavia, explain­ ing how the new policy would be applied there. Any Yugoslav Republic which wished recognition was to notify the Community by 23 December (in addition to Slovenia and Croatia, Bosnia and Macedonia did so by that date).29 Those States had to indicate that they accepted the commitments in the Declaration on Guidelines, that they accepted certain provisions on human rights suggested by the EC Conference on Yugoslavia and the continued work of the Conference and that they supported the work of the Security Council in Yugoslavia. Finally, they required a Republic seeking recognition to commit itself, prior to doing so, to adopting constitutional and political guarantees ensuring that it has no territorial claim towards a neighbouring Community State, including the use of language which implies territorial claims. This language was inserted at the insistence of Greece, concerned about possible claims (and even the use of the name) by Macedonia which might imply designs on the northern Greek province of Macedonia. Recognition was to proceed for all those Republics satisfying the conditions on 15 January 1992. Any doubts as to whether a Republic did so were to be resolved by the Arbitration Commission, part of the EC Conference on Yugoslavia, which would advise the States. If the Commission were satisfied,30 then 29

30

Serbia, naturally, did not, calling the EC action an “aggression” against Yugoslavia, Independent, 18 Dec. 1991, p. 8. Kranina (a Serb region in Croatia) and Kosovo (a largely Albanian autonomous province attached to Serbia) also asked for recognition but their request was denied, Europe No. 5637 (N.S.) 25 Dec. 1992, p. 3. H.C. Deb., Vol. 201, Col. 262, 18 Dec. 1991 (Mr Hurd).

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it was expected that the States would recognise a Republic. If it were not, it was open to States to make up their own minds and recognise Republics if they were satisfied with their promises. On 23 December, Germany recognised Slovenia and Croatia and announced that it would establish diplomatic relations on 15 January 1992.31 At the same time, Croatia announced that it would not negotiate about borders, and that any right of self-determination of minorities did not amount to a right of secession. Bosnia’s request for recognition prompted demands by Serbs within Bosnia for partition.32 On 1 January 1992, Cyrus Vance, the Secretary-General’s personal representative, announced that he had obtained the agreement of Croat and Serbian authorities for a cease-fire which would allow the positioning of a UN peace­ keeping force in the Serbian areas of Croatia, as envisaged by Res.724.33 On 15 January 1992, the Presidency announced that:34 in accordance with the declaration of 16 December 1991 on the recognition of States and its application to Yugoslavia and in the light of the advice of the Arbitration Commission, the Community and its Member States have now decided in accor­dance with these provisions and their respective procedures to proceed with the recognition of Slovenia and Croatia. With regard to the other two republics which have expressed the wish to become independent, there are still important matters to be addressed before a similar step by the Community and its Member States will be taken. The statement was greeted by a protest from the government of Yugoslavia which said that it was35 contrary to the sovereign rights of Yugoslavia which proceed from international, contemporary legal documents. The government insisted on the continued existence of Yugoslavia. It was reported that the Badinter Commission had advised that the internal administrative frontiers within Yugoslavia separating Croatia from Bosnia and Serbia, “take on the nature of frontiers protected by international law in the 31 32 33 34 35

Europe No. 5636 (N.S.), 23/24 Dec. 1991, p. 3. Guardian, 23 Dec. 1991, p. 7. Guardian, 2 Jan. 1992, p.l. Europe No. 5647 (N.S.), 16 Jan. 1992, pp. 4–5. Independent, 16 Jan. 1992, p. 8.

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current accession to independence…”36 As for the claimants to recognition, the Commission advised that Slovenia and Macedonia satisfied the conditions. It was not completely content with the provision in Croatia for the constitutional protection of minorities but Croatia promised reform in the light of this reservation. The Commission did not think that the peoples of Bosnia had clearly expressed themselves in favour of independence, a condition which would be satisfied if a referendum under international control established that such was the wish of the people. The next day, 16 January, the Presidency emphasised that recognition decisions remained within national competence. Because of the Commission’s reservations, France’s recognition of Croatia had been conditional on the implementation of the promised reforms. For Macedonia, the other Community States appear to have taken note of the intensity of Greece’s concerns about the possible effects of recognition of Macedonia in northern Greece. The British government’s position was explained by a Foreign Office spokes­ man on 15 January 1992. It had decided to recognise Slovenia and Croatia but expected swift action by Croatia to remedy the deficiencies pointed up in the Badinter Report. The government wished to defer the issue of the recognition of Bosnia and Macedonia although both “had made good cases for recognition”.37 Given the reference to the ordinary standards for statehood in the statement of 16 December, it might be difficult for the States to contest the statehood of Macedonia, even if they refuse to recognise it. The statement of 15 January shows a tendency to blur the questions of statehood and recognition, with its reference to republics “which wish to become independent” but then making reference to factors which do not touch the traditional criteria for statehood-protection of minorities in the case of Croatia, referendum of the people in Bosnia. There have been newspaper reports that the application of Kosovo, which had voted for independence and which is ethnically very largely homogeneous, has been summarily rejected by the Community because of its failure to fulfil a basic requirement of statehood, control over its own territory.38 What is missing from the various actions with respect to Yugoslavia is a clear identification of the application of the principle of self-determination in ethnically complex territories. The reliance on existing boundaries, ambiguous as that is, is redolent of the reliance on colonial administrative boundaries in decolonisation. They provide a practical starting-point and allow for the creation

36 37 38

Supra n. 34, p. 5. FCO News Conference, 15 Jan. 1992. Text supplied by FCO. Guardian, 18 Jan. 1992, p. 6. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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of identifiable States, but here they may not bring even the precarious stability that they have achieved in Africa. So long as it remains an undefined political doctrine, the idea of self-determination looks to be an inherently destabilising notion. Although the Declaration on Guidelines can be reconciled with orthodox views of statehood and recognition at a formal level, reliance on recognition as some kind of constitutive device has not seemed far away in practice. Recognition inter­nationalises the situation, subjecting Serbian/Federal military action to scrutiny and limitation and preventing the internal boundaries of Yugoslavia being changed by Yugoslavian action alone. C

The Soviet Union

Although the final throes of the Soviet Union came with unanticipated swiftness through December 1991, the process had been going on for some time, disguised by the ambiguity with which notions like “sovereign” and “independence” were used in Soviet constitutional discourse. Events gathered pace after the widely condemned coup had been defeated on 21 August 1991.39 The coup had been precipitated by the signing ceremony of a new union treaty which would have transferred considerable power from the Soviet Union to the republics. After the coup, the proposals for constitutional reform were much more radical.40 The movement towards independence for the republics caused difficulties for the British government. Asked if the United Kingdom was going to condition its future relations with any newly independent States upon acceptance of human rights treaty obligations, the Minister said:41 I do not think I would use the word “condition”, for the reason that we are talking about recognition of States, we have our tests, and the traditional tests are whether there is a defined territorial area and whether the government has effective control within those territorial frontiers, and whether that government has effective management over its external forces. Those are historical tests of recognition of States, and therefore their adherence to treaties is not a condition of recognition. He went on to say that there were matters of very high importance in civil rights, disarmament and economic obligations upon which the Soviet Union 39 40 41

For the coup, The Economist, 24 Aug. 1991, pp. 17–24. For the events since the coup, see FAC Report (supra n. 9) pp. 1–12. Idem, Transitional Constitutional Arrangements, pp. 13–14. Idem, p. 52. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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had entered into obligations and which the government wanted to see the emerging republics adhere to.42 On 8 December, the Slav Republics agreed on a new arrangement between themselves43 and on 16 December most of the Republics agreed in Alma Ata to form a new Commonwealth of Independent States, which entailed the end of the Soviet Union.44 That came on 25 December 1991, when the Supreme Soviet dissolved the State after President Gorbachev had resigned. For Western States, the problems presented by the new situation were mainly ones of succession but they appear to have taken the view that there is “continuity of statehood” between Russia and the Soviet Union. The new Commonwealth States agreed that Russia take the Soviet Union’s position in the United Nations.45 Ukraine and Byelorussia were already members and the United Kingdom had been making arrangements for the establishment of a consulate in Ukraine.46 However, there are a variety of arms control and disarmament treaties with the Soviet Union, observance of which is crucial to Western States. After the Alma Ata Agreement, the EC Foreign Ministers acknowledged their relations with Russia and said that they were prepared to recognise the other republics when they had assured the European Community that they would accept the “Declaration on Guidelines”. The Community required particularly that there should be acceptance of the cfe treaty and arrangements made for unified control of nuclear weapons and for guarantees against prolification. On 26 December, the Prime Minister said that the United Kingdom accepted a “continuity of statehood” between Russia and the USSR.47 The idea of continuity seems similar to the position of the European colonial States after they had lost their empires. D Conclusion It would be premature to attempt any firm conclusions against what is a complex series of events, still in motion. The political need to seek to influence 42 43 44 45 46 47

Ibid. Guardian, 9 Dec. 1991, p. l. Idem, 16 Dec. 1991, p. l. Europe No. 5636 (N.S.), 23/24 Dec. 1991, p. 4. A summit of the members of the Security Council was held on 31 Jan. 1992 to consider strengthening the role of the UN, including arms control and disarmament. H.C. Deb., Vol. 201, Col. 182 (W.A.), 18 Dec. 1991. The Times, 26 Dec. 1991, p. 8. With the other members of the EC the UK recognised 8 Republics (not Kyrgyzstan or Tadzhikistan, nor Georgia, not a member of the Commonwealth, where fighting was going on), Guardian, 2 Jan. 1992, p. 6. The EC and the member States expressed their willingness to proceed to recognition of Kyrghyzstan and Tadzhikistan on 16 Jan. 1992, Europe No. 5648 (no. 5), 17 Jan. 1992, p. 3. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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them without being unequivocally committed to particular parties or propositions is apparent. Nonetheless, it is possible to detect the politicisation of recognition decisions for the United Kingdom under the influence of Community policy; not that this would be a surprise to any State which has exercised a degree of discretion about recognition decisions. What the effect will be of any conditional recognitions bestowed under the Declarations on Guidelines remains to be seen. In the absence of specific treaty obligations, the whole thing may remain in the realm of politics and not of law. However, to the extent that recognition becomes divorced from effective control, the possibility of consequences in the domestic legal systems of the non-recognising States is increased.48 48

It has been possible to take account of events up to 22 Jan. 1992 (but I have not seen the Secretary of State’s evidence to the FAC, 14 Jan. 1992 nor the Badinter Report).

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Chapter 43

James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, 2002 Comment by Dr Andraž Zidar, former Dorset Senior Research Fellow in Public International Law at BIICL (2012-2015) Professor James Crawford was Special Rapporteur of the International Law Commission (ILC) on State Responsibility and the driving force behind the completion of the Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the ILC in 2001. This was a remarkable achievement of international codification, given that it brought to fruition the Commission’s work spanning several decades. Furthermore, the working process resulted in a clear and comprehensive document on the fundamental principles and rules on State Responsibility. Although the Articles on State Responsibility are a non-binding legal instrument (many States expressed opposition to a followup in the form of an international treaty), the document has great authoritative and persuasive force. It is not surprising, therefore, that the ­Articles on State Responsibility are frequently used by international and domestic courts as a widely accepted standard, which importantly enhances the obligatory force of this document. Crawford published The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, in a book form one year after the ILC ended its work on the articles, together with an introduction portraying the preparatory works leading to the final version of the Draft Articles. While describing the laborious and often meandering genesis of the document itself, Crawford skilfully describes various facets of State responsibility including: the general principles and more broadly issues around identifying the internationally wrongful act of a State, the content of the international responsibility of a State, the implementation of that responsibility as well as general provisions applicable in the context. The conceptual framework of the Articles on State Responsibility importantly influenced the subsequent Articles on the Responsibility of International Organizations, adopted by the ILC in 2011.

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J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002). Excerpt: Introduction, pp. 1–27. Reproduced with the kind permission of Cambridge University Press.

The International Law Commission’s Articles on State Responsibility: Introduction James Crawford 1

History of the State Responsibility Topic in the I.L.C.

In 1948 the United Nations General Assembly established the International Law Commission, as a step towards fulfilling the Charter mandate of “encouraging the progressive development of international law and its codification”.1 The I.L.C.’s initial step was to draw up a work program, based on a review of the field by Hersch Lauterpacht.2 The subject of State responsibility was one of the fourteen topics selected.3 This was not surprising, first in that it is a major chapter of international law, second in that it had already been selected for codification under the League of Nations, being a principal subject of the unsuccessful conference of 1930.4 Already by 1949 it was unfinished business. Work began in 1956 under F.V. García Amador (Cuba) as Special Rapporteur. It focused on State responsibility for injuries to aliens and their property, that is to say on the substantive rules of the international law of diplomatic protection. Although Garc´ıa Amador submitted six reports between 1956 and 1961, 1 U.N. Charter, Art. 13 (a); G.A. Res. 174 (ii) of 21 November 1947. For the I.L.C.’s review of its work methods after fifty years see I.L.C. Report … 1996, A/51/10, Ch. vii, paras. 150–244. The I.L.C’s output during this period is conveniently set out in A.D. Watts, The International Law Commission, 1949–1998 (Oxford, Oxford University Press, 1999), 3 vols. Generally on the work of the I.L.C., see H.W. Briggs, The International Law Commission (Ithaca, N.Y., Cornell University Press, 1965), pp. 129–141; S. Rosenne, Practice and Methods of the International Law Commission (New York, Oceana, 1984), pp. 73–74; I. Sinclair, The International Law Commission (Cambridge, Grotius, 1987), pp. 46–47, 120–126; R. Ago, “Nouvelles reflexions sur la codification du droit international” (1988) 94 r.g.d.i.p. 539. 2 Reprinted in E. Lauterpacht (ed.), The Collected Papers of Sir Hersch Lauterpacht (Cambridge, Cambridge University Press, 1970), vol. i, p. 445. 3 Yearbook … 1949, p. 281. 4 See S. Rosenne, League of Nations Committee of Experts for the Progressive Codification of International Law (1925–1928) (New York, Oceana, 1972), and League of Nations Conference for the Codification of International Law (1930) (New York, Oceana, 1975). For the Bases of Discussion submitted to the 1930 Conference see Yearbook … 1956, vol. ii, pp. 223–225. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the I.L.C. barely discussed them. In part this was because of the demands of other topics (arbitral procedure, diplomatic and consular relations, the law of treaties). But that was not the main reason. The divisiveness of the general debate held in 1957 suggested that there was no agreement as to the way forward. Some sought to limit the topic to diplomatic protection; others thought the rules of diplomatic protection outmoded.5 An initial decision was made to limit the topic to “civil” responsibility—not surprisingly since the focus was to be on injuries to aliens.6 But García Amador was criticized by others, including Roberto Ago, for leaving out important issues including reprisals, which were characterized as “penal”.7 The disagreements were such that little progress was likely to be made, and in 1957 the I.L.C. by majority postponed any detailed discussion of García Amador’s proposals.8 In fact they were never discussed individually.9 Thus no progress had been made when García Amador departed in 1961. In 1962, an inter-sessional subcommittee chaired by Roberto Ago (Italy) recommended that the I.L.C. should redraw the boundaries of the topic so as to focus on “the definition of the general rules governing the international responsibility of the State”.10 By this was meant the rules of general application concerning State responsibility, applicable not only to diplomatic protection but also to other fields (human rights, disarmament, environmental protection, the law of the sea...). By inference, the point was not to elaborate the substantive rules themselves or the specific obligations of States arising from them. These would differ from treaty to treaty and from State to State. Rather the focus was to be on the framework or matrix of rules of responsibility, identifying whether there has been a breach by a State and what were its consequences. The subcommittee added that there would be no question of neglecting the experience and material gathered in special sectors, specially that of responsibility for injuries to the person or property of aliens; and … that careful attention should be 5 See Yearbook ... 1957, vol. i, pp. 154–172, for the range of views. 6 Yearbook … 1956, vol. i, p. 246 (García Amador’s summary of the debate). 7 Yearbook … 1957, vol. i, p. 169 (García Amador), and see ibid., p. 170 (Ago’s reply, which seemed to equate the penal consequences for the responsible State to the taking of countermeasures or reprisals). 8 Yearbook … 1957, vol. i, p. 181. 9 In their final form they can be found in Yearbook … 1961, vol. ii, pp. 46–54. See also F.V. Garc´ıa Amador, L. Sohn & R.R. Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens (Dobbs Ferry, N.Y., Oceana, 1974); R.B. Lillich (ed.), International Law of State Responsibility for Injuries to Aliens (Charlottesville, University Press of ­Virginia, 1983). 10 Yearbook ... 1963, vol. ii (Part One), doc. A/CN.4/152, p. 228, para. 5. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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paid to the possible repercussions which new developments in international law may have had on responsibility.11 The topic was thus seen as involving some combination of the as-yet-­uncodified old and the still unspecified new. In 1963, the I.L.C. approved this reconceptualization of the topic and appointed Ago as Special Rapporteur. Between 1969 and 1980, he produced eight reports, together with a substantial addendum to the eighth report, submitted after his election to the International Court.12 During that time, the I.L.C. provisionally adopted thirty five articles, together making up Part One of the proposed Draft Articles (“Origin of State responsibility”). Part One was, overall, coherent and comprehensive; it was accompanied by lengthy, scholarly, rather argumentative commentaries.13 In particular, its detailed treatment of the rules of attribution and the general justifications or excuses for an internationally wrongful act (under the title “Circumstances precluding wrongfulness”) was influential. It was frequently referred to by scholars and cited by courts. It set a standard for the project. But at the same time it left it truncated and incomplete. Moreover, Ago left few clues as to how the text as a whole should be completed. His structure for the five Chapters of Part One has proved definitive, but there was no similar structure for the remaining part or parts. ­Evidently these would concern reparation; he made it clear they should also include countermeasures. The consequences of “international crimes of State”, a concept introduced in article [19], would be spelled out.14 But these were little more than vague hints, not formed proposals. In 1979, Willem Riphagen (Netherlands) was appointed Special Rapporteur. Between 1980 and 1986, he presented seven reports, containing a complete set of Draft Articles on Part Two (“Content, forms and degrees of international responsibility”) and Part Three (“Settlement of disputes”) together with commentaries. Owing to the priority given to other topics, however, only five 11 Ibid. 12 For a list of the reports of the five Special Rappoteurs, see Appendix 1C, below, p. 347. [Editors’ note: not included in this Anthology]. 13 The commentaries to Part i are scattered through the Yearbooks for the years 1973–1980, but are conveniently set out in S. Rosenne (ed.), The International Law Commission’s Draft Articles on State Responsibility Articles 1–35 (Dordrecht, Nijhoff, 1991). 14 To avoid confusion, references to Draft Articles adopted on first reading will be in square brackets (e.g., article [19]). For the text of the Draft Articles adopted on first reading, see Appendix 2, below, p. 348. For a table of equivalents as between first and second reading see Appendix 3, below, p. 366. [Editors’ note: not included in this Anthology].

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a­ rticles from his Part Two were provisionally adopted during this period. By far the most important of these was what became article [40], an extended definition of “injured State”.15 In 1987, Riphagen not having been reelected to the I.L.C., Gaetano ArangioRuiz (Italy) was appointed in his place. In the period 1988–1995, he presented seven reports. The Drafting Committee dealt with the remainder of Parts Two and Three in the quinquennium 1992–1996, enabling the I.L.C. to adopt the text with commentaries on first reading in 1996. The Draft Articles of 1996 thus consisted of three tranches, Part One (articles [1]–[35], adopted in the period 1971 to 1980 under Ago), a few articles in Part Two, Chapter I adopted in the period to 1986 under Riphagen, and the residue dealing with reparation, countermeasures, the consequences of “international crimes” and dispute settlement, adopted in the period 1992–1996 under Arangio-Ruiz.16 During these years no attempt was made to reconsider any issues raised by Part One except article [19]. Even then, once it had been decided to retain the concept of international crimes, the actual language was left undisturbed; only the addition of a footnote revealed the fundamental lack of consensus.17 Nor for that matter were Riphagen’s five articles in Part Two reconsidered, in particular article [40]. The two longest and least satisfactory of the articles were thus left virtually unexamined in 1996. Instead, following disagreements within the I.L.C. on a number of questions—in particular, the relations between State responsibility and the powers of the Security Council—Arangio-Ruiz resigned as Special Rapporteur.18 Not having been renominated by Italy, he ceased to be a member of the I.L.C. the same year. For these and other reasons, the coordination of articles in the different Parts, rather obviously lacking, was left to the second reading.

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For the text of art. [40] see below, p. 357. [Editors’ note: not included in this Anthology]. For a table showing the evolution of the first reading text see Appendix 1A, below, p. 315. Added to art. [40] (3) in 1996, this said: “The term ‘crime’ is used for consistency with article 19 of part one of the articles. It was, however, noted that alternative phrases such as ‘an international wrongful act of a serious nature’ or ‘an exceptionally serious wrongful act’ could be substituted for the term ‘crime’, thus, inter alia, avoiding the penal implication of the term.” Yearbook … 1996, vol. ii (Part Two), p. 63. 18 See Yearbook … 1996, vol. i, p. 31, para. 62, and G. Arangio-Ruiz, “Fine prematura del ruolo preminente di studiosi italiani nel progetto di codificazione della responsabilità degli Stati: specie a proposito di crimini internazionali e dei poteri del consiglio di sicurezza”, Rivista di diritto internazionale, vol. 81 (1998), p. 110.

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2 The acquis of 1996 and the Key Problems At its forty-ninth session in 1997, the I.L.C. adopted a provisional timetable with the aim of completing the second reading by the end of the quinquennium, i.e. by 2001. Three major unresolved issues were tentatively identified as requiring special consideration: international crimes (article [19]), the regime of countermeasures and the settlement of disputes.19 This was an obvious enough list, but as events were to prove it included only some among many unresolved issues. Before discussing the more important of these, it is useful to step back and to seek to identify where the project stood in 1996 in terms of its structure, its achievements and its problems. (1) Overview of the 1996 Draft Articles (a) Part One. Origin of International Responsibility By 1996 international lawyers were very familiar with Ago’s Part One, and a significant proportion of it (though by no means all) already reflected received thinking.20 Part One was divided into five Chapters. The first, entitled “General principles” laid down certain general propositions defining the basic conditions for State responsibility. A central provision of this Chapter was article [3], which defined the two elements of an internationally wrongful act of a State: viz., conduct which was attributable to the State under international law and which constituted a breach of an international obligation of that State. No fewer than eleven articles of Chapter II elaborated the rules concerning attribution of the conduct of persons or entities to the State under international law. These articles were in three groups: five “positive” attribution principles specifying alternative circumstances in which conduct was attributable to the State (articles [5], [7], [8], [9] and [15]), two expressing qualifications on this first group of articles (articles [6] and [10]) and a third group of articles specifying circumstances in which conduct was not attributable to the State (articles [11], [12], [13] and [14]). The articles of Chapter II were cumulative but also limitative: in the absence of a specific undertaking, a State could not be held responsible for the conduct of persons or entities in any circumstance not covered by the positive attribution principles. This raised doubts as to whether the negative attribution clauses were really necessary.

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I.L.C. Report … 1997, A/52/10, paras. 30, 161. The principal exception concerned the complex articles relating to “Breach of an International Obligation” in Chapter iii of Part One (articles [16]–[26]), discussed below. Some doubts were still expressed concerning art. [33] (“necessity”).

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Chapter III of Part One sought to analyse further the requirement already laid down in article [3] (b) that in every case of State responsibility there must be a breach of an international obligation of a State by that State. In addition to the controversial article on international crimes and delicts (article [19]), the eleven articles of Chapter III dealt with five matters. Articles [16], [17] and [19] (1) concerned the notion of a breach itself, emphasizing the irrelevance of the source of the obligation and its subject matter for the purposes of determining whether responsibility would arise from a breach. The first two paragraphs of article [18] dealt with the requirement that the obligation be in force for the State at the time of its breach; in effect, the intertemporal principle as applied to responsibility. Articles [20] and [21] elaborated upon the distinction between so-called obligations of conduct and result, and in a similar vein, article [23] dealt with obligations of prevention. Articles [24] to [26] dealt with the moment and duration of a breach, and in particular with the distinction between continuing wrongful acts and those not extending in time. They also developed a further distinction between composite and complex wrongful acts. Paragraphs (3) to (5) of article [18] sought to specify when continuing, composite and complex wrongful acts had occurred, and dealt with issues of intertemporal law in relation to such acts. Finally, article [22] dealt with an aspect of the exhaustion of local remedies rule, which was analysed within the specific framework of obligations of result. Chapter IV dealt with certain exceptional cases where the conduct of one State, not acting as an organ or agent of another State, was nonetheless chargeable to the latter State even though the wrongfulness of the conduct lay (at least primarily) in the breach of the international obligations of the former. The articles dealt with three circumstances in which a State would be “implicated” in the internationally wrongful conduct of another State: first where a State provided aid or assistance to another State to facilitate the commission of a wrongful act (article [27]); second where the acting State was “subject to the power of direction or control of another State” (article [28] (1)); and third where the internationally wrongful act was committed by a State as the result of coercion exerted by another State (article [28] (2)). The final Chapter of Part One, Chapter V, was entitled “Circumstances precluding wrongfulness”. It specified six “justifications”, “defences” or “excuses”, precluding the wrongfulness of conduct otherwise a breach of an international obligation. These were consent (article [29]), countermeasures broadly defined (article [30]), force majeure and fortuitous event (article [31]), distress (article [32]), necessity (article [33]) and self-defence (article [34]). The effect of each of these circumstances was said to be “that of rendering definitively or temporarily inoperative the international obligation in respect of which a breach

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is alleged”.21 Chapter V was completed by article [35], which reserved the possibility of compensation for damage to an injured State by an act otherwise wrongful, but the wrongfulness of which was precluded under articles [29], [31], [32] and [33]. It had no application to countermeasures or self-defence. (b)

Part Two. Content, Forms and Degrees of International Responsibility Part Two consisted of four Chapters, dealing respectively with general principles, reparation, countermeasures and the consequences of international crimes. Chapter I purported to state general principles applicable to Part Two. In fact it mainly consisted of introductory provisions (e.g., article [36] (1)) or saving clauses (e.g., articles [37], [38] and [39]), together with an extended “definition” of the injured State (article [40]). Of these by far the most important was article [40], which was a sort of umbilical cord between Parts One and Two, joining them at a single point. Indeed it is not too much to say that the two Parts otherwise led independent conceptual lives. The reason was that Part One focused on “the internationally wrongful act of a State”, i.e. on the responsible State,22 whereas Part Two was expressed entirely in terms of the rights or entitlements of “the injured State”, defined in article [40].23 Part One did not attempt to define injury, or to identify the State or other entity towards or in respect of which the act in question was wrongful. Or at most, it did these things implicitly, by using as a key concept “breach of an international obligation”. It may have been understood thereby that injury is the breach of an obligation and the injured State is the State to whom the obligation is owed.24 But this 21 22

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Commentary to Chapter v of Part One, para. (9), text in Yearbook … 1979, vol. ii (Part Two), pp. 106–109. For “responsible State”, Part Two used the clumsy and unhappy circumlocution “the State which has committed an internationally wrongful act” (see title to Part Two, Chapter ii and passim: the phrase appeared fifteen times in Part Two). It was clumsy because of its length. It was unhappy because it was expressed in the past tense whereas the articles are concerned with current and continuing breaches and with cessation just as much as reparation. See, e.g., art. [42]. The term “the injured State” was used twenty-eight times in Part Two. Art. [40] defined “injured State” and made it clear that a number of States, or indeed all States, could be “injured States” in certain cases involving human rights, obligations in the general interest or “international crimes”. Thus while Part Two implied an individual or particular relation between the responsible State and the injured State, art. [40] apparently denied this in cases involving multilateral obligations, collective interests or “international crimes”. This may have been implicitly recognized in art. [33] (1) (b), which referred to “the State towards which the obligation existed”.

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(we may call it the “subjective theory of responsibility”) was never spelled out. Moreover, if the text was intended to reflect a subjective approach on such an important question, it might well have said so expressly – more particularly as Chapter I was generally interpreted as embodying an “objective” theory of responsibility in which neither actual harm or damage to another State nor “fault” on the part of the responsible State was defined as a necessary element of an internationally wrongful act.25 On the other hand, article [40] did not simply rely on the subjective theory. It sought to identify, in a non-exclusive way, the cases where a State or States might be considered to have a right which was the correlative of the obligation breached. These varied from the dyadic right–duty relationship of a bilateral treaty or a judgment of an international court between two States, to cases where the right arose under a rule of general international law or a multilateral treaty and all or many of the States bound by the rule or party to the treaty could be considered “injured”. Article [40] (3) also stipulated that in the case of “international crimes”, all other States were injured and had a right to act. The rights of injured States thus defined, and the correlative obligations of the responsible State, were then set out in Chapter II. This Chapter identified two general principles of cessation and reparation, together with four forms of reparation: restitution in kind, compensation, satisfaction and assurances and guarantees against repetition. The general principle of reparation was subject to a number of qualifications, including a requirement for account to be taken in determining reparation of the contributory negligence or fault of the injured State or one of its nationals on behalf of whom the claim was brought. Several of the forms of reparation in Chapter II were also subject to limitations. Thus restitution in kind did not have to be provided in circumstances where it was materially impossible, contrary to a peremptory norm, disproportionate or capable of disproportionately jeopardizing the political independence or economic stability of the responsible State. Likewise, the right of the injured State to obtain satisfaction as a form of reparation did not justify demands which would “impair the dignity” of the responsible State. Chapter II proceeded on the assumption that restitution in kind was the primary form of reparation, notwithstanding the assertion in the commentary that compensation was “the main and central remedy resorted to following an internationally 25

To add to the confusion, the commentaries sometimes referred to issues of attribution as concerned with the “subjective” element of responsibility. In view of these conflicting meanings of the terms “subjective” and “objective”, they have been avoided in the commentaries to the articles as finally adopted. But see A. Bleckmann, “The Subjective Right in Public International Law”, German Yearbook of International Law, vol. 28 (1985), p. 144.

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wrongful act”.26 There was no separate article on interest, although there was a fleeting reference to the possibility of an award of interest in the article dealing with compensation.27 Chapter III of Part Two dealt with the topic of countermeasures by an ­injured State. The first article, article [47], was a hybrid provision, giving a “definition” of countermeasures, referring to the limitations on countermeasures provided for in articles [48] to [50], and dealing with the position of third States in respect of countermeasures. Article [48] laid down certain procedural conditions for the taking of countermeasures, or for their continuation in force. It was by far the most controversial of the four articles adopted on first reading because of the link it established between the taking of countermeasures and compliance with dispute settlement obligations, whether under Part Three or pursuant to any other binding dispute settlement procedure in force between the injured and responsible States. Article [49] set out the basic requirement of proportionality as a condition for a legitimate countermeasure. A final provision, article [50], specified five categories of conduct which were prohibited as countermeasures: the threat or use of force, extreme economic or political coercion designed to endanger the territorial integrity or political independence of the responsible State, conduct infringing the inviolability of diplomatic or consular agents, premises, archives and documents, conduct derogating from basic human rights and any other conduct in contravention of a peremptory norm of general international law. This was a rather heterogeneous list, as lists tend to be. Finally, Chapter IV dealt with the consequences of international crimes. In contrast to the gravity of an international crime of a State, as expressed in article [19], the consequences drawn from such a crime in articles [51] to [53] were rather limited. Under article [52], certain rather extreme limitations upon the obtaining of restitution or satisfaction were expressed not to apply in the case of crimes. Thus in the case of crimes an injured State was entitled to insist on restitution even if this seriously jeopardized the political independence or economic stability of the “criminal” State. Under article [53], there was a limited obligation of solidarity in relation to crimes, viz., not to recognize as lawful the situation created by the crime, not to render aid or assistance to the responsible State in maintaining the situation created by the crime, and to cooperate 26 27

Commentary to art. [44], para. (1), text in Yearbook … 1993, vol. ii (Part Two), p. 67. Special Rapporteur Arangio-Ruiz had proposed an article on interest, but this was not referred to the Drafting Committee: see article 9, Yearbook … 1989, vol. ii (Part One), p. 56; Yearbook … 1990, vol. ii (Part Two), pp. 77–78. See also Appendix 1B, below, p. 339. [Editors’ note: not included in this Anthology].

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with other States in various ways so as to eliminate the consequences of the crime. Reasonable though these might seem in respect of a serious breach of basic rules of international law, they were hardly of a penal character. Part Two, Chapter IV did not provide for “punitive” damages for crimes, let alone fines or other sanctions. Nor did it lay down any special procedure for determining authoritatively whether a crime had been committed, or what consequences should follow: this was left for each individual State to determine qua “injured State”. Article [40] (3) defined every State as individually injured by an international crime within the meaning of article [19]. This was, to say the least, a highly decentralized notion of crimes. (c) Part Three. Settlement of Disputes Part Three dealt with settlement of disputes, unusually for an I.L.C. text, such matters normally being left to the Sixth Committee of the General Assembly or a diplomatic conference. Part Three established a hierarchical dispute settlement procedure referring disputing States first to negotiation (article [54]), then to conciliation (article [56]) and finally to arbitration if the parties agreed (article [58]). Two annexes to the Part set out the procedure for constituting a Conciliation Commission and an Arbitral Tribunal respectively. However, the intermediate steps of negotiation and conciliation could be bypassed where the dispute arose between States parties, one of which had taken countermeasures against the other. In such circumstances, the State which was the target of the countermeasures was “entitled at any time unilaterally to submit the dispute” to an Annex II arbitral tribunal (article [58] (2)). In this respect only was arbitration compulsory. Thus Part Three had two distinct functions. The first was to provide for compulsory conciliation of disputes “regarding the interpretation or application of the present articles”, followed by voluntary arbitration if the dispute was not thereby resolved. This was a “soft” and supplemental form of dispute settlement, which, like interstate conciliation generally, might be supposed in theory to work well but in practice, in situations of deep conflict such as that generated by many State responsibility disputes, was unlikely to work at all.28 28

Perhaps the two best examples of successful “conciliation” in the modern period are the Iceland-Norway Jan Mayen Continental Shelf Delimitation case (the Conciliation Commission’s Report is reproduced in i.l.r., vol. 62, p. 108 (1981); i.l.m., vol. 20 (1981), p. 797, and the resulting Agreement on the Continental Shelf between Iceland and Jan Mayen incorporating the Commission’s recommendations is reproduced in i.l.m., vol. 21 (1982), p. 1222), which was in all but form a maritime boundary arbitration, and the Papal Mediation in the Beagle Channel case (the Proposal of the Mediator, Suggestions and Advice is reproduced in r.i.a.a., vol. xxi, p. 53, at p. 243 (1980), and the original ­tribunal’s

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The commentary, while referring to Part Three as “the general dispute settlement system”,29 failed to address the question whether a dispute concerning the interpretation or application of the primary obligations was covered by Part Three. Although it has happened, for example in the LaGrand case,30 that the parties to a dispute agree that there has been a breach of the primary obligation and disagree only on the consequences, this is unusual. Disputes rarely concern only remedies for a breach; they almost always include disputes about whether there has been a breach in the first place, and what are the elements of the breach. In that respect, for example, the Fisheries Jurisdiction case,31 the Rainbow Warrior arbitration32 and the Gabčíkovo-Nagymaros Project case33 are much more typical than LaGrand, even though in each of these cases the question of remedies, i.e. of secondary obligations in the field of responsibility, was central to the dispute. Thus quite apart from the value of compulsory conciliation in practice, there was a key uncertainty with Part Three. Was a dispute as to whether there had been a breach of a primary obligation, not itself focusing for example on attribution or on the existence of a circumstance precluding wrongfulness, one “regarding the interpretation or application of the present articles”?34 If not, how

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award is reported at r.i.a.a., vol. xxi, p. 53 at p. 57 (1977), which occurred after an arbitral ­proceeding was rejected by one party). Generally on conciliation see J.-P. Cot, International Conciliation (trans. R. Myers) (London, Europa Publications, 1972); J.G. Merrills, International Dispute Settlement (3rd edn.) (Cambridge, Cambridge University Press, 1998), Ch. 4; S. Koopmans, “The pca in the Field of Conciliation and Mediation: New Perspectives and Approaches”, in Permanent Court of Arbitration, International Alternative Dispute Resolution: Past, Present and Future (The Hague, Kluwer, 2000), p. 67. See commentary to art. [54], para. (1), text in Yearbook … 1995, vol. ii (Part Two), p. 352. LaGrand (Germany v. United States of America), Provisional Measures, I.C.J. Reports 1999, p. 9; Merits, judgment of 27 June 2001. Fisheries Jurisdiction (Spain v. Canada), I.C.J. Reports 1998, p. 431. Rainbow Warrior (New Zealand/France), r.i.a.a., vol. xx, p. 217 (1990). Gabčíkovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997, p. 7. The phrase “dispute concerning the interpretation or application” of a treaty has been given a broad interpretation. See, e.g., Mavrommatis Palestine Concessions, 1924, p.c.i.j., Series A, No. 2, pp. 16, 29; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, I.C.J. Reports 1984, p. 392, at pp. 427–428, paras. 81, 83; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, I.C.J. Reports 1996, p. 595, at pp. 615–617, paras. 31–32; Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, I.C.J. Reports 1996, p. 803, at p. 820, para. 51; Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, I.C.J. Reports 1998, p. 9, at p. 18, paras. 24–25; Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial

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could the conciliators perform their function? For example how could they propose the form and amount of reparation due without determining whether there had been a breach, and in what respect? The answer seems clear. Even if the fundamental question between the parties concerns, for example, whether a treaty has been validly concluded or how it is to be interpreted—neither issue being covered by the Draft Articles—it would be necessary to answer those questions in order to determine whether there had been conduct inconsistent with an international obligation in force for the State concerned.35 Thus the innocent formula “dispute regarding the interpretation or application of the present articles” in Part Three covered every dispute as to the existence of an internationally wrongful act of a State or its consequences within the field of responsibility, broadly conceived so as to cover cessation as well as reparation. The aim of conciliation may have been modest; the scope of the obligation to conciliate was not. This became even more important when one turned to the second function of Part Three, that concerning countermeasures. Article [58] provided that: 2. In cases, however, where the dispute arises between States Parties to the present articles, one of which has taken countermeasures against the other, the State against which they are taken is entitled at any time unilaterally to submit the dispute to an arbitral tribunal to be constituted in conformity with annex II to the present articles. The essential difficulty with this provision was that it privileged the State which had committed an internationally wrongful act. Under Part Three, compulsory arbitration was only available where a “dispute arises between States Parties to the present articles, one of which has taken countermeasures against the other” (emphasis added). By definition countermeasures are measures taken by an injured State against a State responsible for an internationally wrongful act. Only the responsible State could trigger the arbitration, and then only if the measures taken against it really did constitute countermeaures in the sense of article [47]. In other words, the effect of article [58] (2) was to give a unilateral right to arbitrate not to the injured but to the responsible State. Such inequality as between the two States concerned could not be justified in principle. It

35

Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, I.C.J. Reports 1998, p. 115, at p. 123, paras. 23–24. See arts. [16], [18] (1).

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could even give an injured State an incentive to take countermeasures, in order to induce the responsible State to resort to arbitration.36 (2) The ‘acquis’ of 1996 The Draft Articles of 1996 were a significant statement, already much cited by courts and discussed in the literature. A number of the features of the text could be considered as established and as forming basic assumptions for the second reading. (a) The Scope of the Draft Articles The first of these concerned the general coverage of the text. Part One of the Draft Articles covered questions of responsibility arising from the breach of any international obligation of a State. No attempt was made to limit the scope of the Draft Articles to obligations of States owed exclusively to other States. Article [1] specified that a breach of any international obligation gave rise to the responsibility of the State concerned, without specifying to whom that responsibility arose. At various stages it was proposed that article [1] be amended to insert the phrase “towards another State” or “to an injured State”. This would have had the effect of limiting either the scope of obligations covered or the extent to which responsibility for their breach was dealt with. But neither proposal was accepted. The Draft Articles in general made no distinction between treaty and non-treaty obligations, thereby excluding the idea that international law draws any categorical distinction between responsibility ex delicto and ex contractu.37 Nor did they distinguish between obligations of a bilateral character, e.g. under bilateral treaties, and obligations of a multilateral character, e.g. those owed to the international community as a whole. Indeed even article [19] involved, in its context, an affirmation of this general approach. Article [19] (1) affirmed that “An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached.” Later paragraphs of article [19] went on to draw a distinction between delicts and crimes, but no consequences were drawn from that distinction in Part One itself. Evidently the same general principles, the same rules of attribution, the same rules for 36 37

See Crawford. Second Report. A/CN.4/498. Add. 4, para. 387. See arts. [16] and especially [17]. proclaiming the irrelevance of “the origin, whether customary, conventional or other” of the obligation breached. An exception was art. [40] (2) (f) which drew a barely defensible distinction between treaties and other international law rules established for the protection of the collective interest. In this as in other respects art. [40] was hardly consistent with the basic premises of Part One. Cf. Rainbow Warrior (New Zealand/France), r.i.a.a., vol. xx, p. 217 (1990), at p. 251, para. 75.

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implication of one State in the wrongful conduct of another applied to delicts and crimes (just as they did to treaty and non-treaty obligations). This may have suggested that the distinction between delicts and crimes was misleading or even that it was not taken seriously. It is common if not universal in internal law to draw distinctions between the regimes of criminal and delictual responsibility for the purposes, for example, of attribution or excuses. But however that may be, Part One remained rigorously general in its character, and on the whole Part Two followed in its wake. (b) The Principle of “objective” Responsibility The second element of the acquis concerned certain basic principles contained in Chapter I of Part One. In particular article [1] stated that every internationally wrongful act of a State entails its responsibility, and article [3] identified two and only two elements of an internationally wrongful act, (a) conduct attributable to a State which (b) is inconsistent with its international obligations. There was no distinct or separate requirement of fault or wrongful intent for an internationally wrongful act to be held to exist. Nor indeed, unless article [40] so provided, was there any specific requirement of injury, damage or harm to another State before international responsibility could be said to arise, although the existence of injury, harm or damage would be relevant in terms of the invocation of such responsibility by other States, as well as to the form and extent of reparation. Seen from the perspective of the responsible State, all that was required for an internationally wrongful act was that the State had done something which, having regard to its international obligations, it should not have done or (since the Draft Articles covered omissions equally with acts) that it had failed to do something it should have done. In other words, international law did not prescribe that conduct, apparently inconsistent with the international obligations of a State, could only give rise to responsibility if the act was performed intentionally or through lack of due diligence, or if it caused actual harm or damage to another State. Apart from the two formal elements specified in article [3], there was no secondary rule or principle of responsibility imposing any such requirements, over and above those contained in the primary rule. If the States parties wished to provide for specific intent, for the measure of culpability or for a specific level of harm or damage as a prerequisite for responsibility, they were free to do so. This may have seemed a purely formal move. But it subtly solved a series of problems which had caused great doctrinal controversy. For example it was sometimes said that the enactment of an internal law could not give rise per se to responsibility, since only the application of the law in a given case would be actually inconsistent with the international obligations of the State concerned

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and amount to a breach. That view, appropriate as it might be in some contexts where actual harm or injury, e.g. to individuals, is of the essence of the wrong, was quite inappropriate to other contexts, e.g. uniform law conventions where a State undertook that certain provisions be made part of its law, irrespective of their application to particular cases. This outcome was, yet again, consistent with a universal approach to the problem of responsibility, freeing it from particular categories of rules such as those concerning diplomatic protection and injury to aliens. For example international human rights courts and tribunals have held that persons who merely apprehend the possibility of the application of a law may be “victims”, even if there is little or no prospect that the law will actually be applied to them.38 It is a contextual approach, which avoids the imposition of acrossthe-board rules of substance and allows such questions to be solved for the ­purposes of each particular rule or even each particular case. It has been said that, whereas issues such as the role of fault have been formally excluded in the text, they return interstitially; their influence is felt even if they are not spoken of.39 But the essential point is surely this, that different primary rules of international law impose different standards ranging from “due diligence” to strict liability, and that breach of the correlative obligations gives rise to responsibility without any additional requirements. There does not appear to be any general principle or presumption about the role of fault in relation to any given primary rule, since it depends on the interpretation of that rule in the light of its object or purpose. Nor should there be, since the functions of different areas of the law, all underpinned by State responsibility, vary so widely.40 But it is an error to think that it is possible to eliminate the significance of fault from the articles, and not only in relation to former article [19]. Thus too much should not be read into this conceptual shift. It was sometimes suggested that the absence of any reference in Part One to damage, or to any form of fault (intention, lack of due diligence, etc.) implied that 38

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E.g. the European Court of Human Rights in Dudgeon v. United Kingdom, e.c.h.r., Series A, No. 45 (1981): 4 e.h.r.r. 149; Norris v. Ireland, e.c.h.r., Series A, No. 142 (1988); 13 e.h.r.r. 186; Modinos v. Cyprus. e.c.h.r., Series A, No. 259 (1993); 16 e.h.r.r. 485; and the U.N. Human Rights Committee in Toonen v. Australia, Communication No. 488/1992 (adopted 31 March 1994), CCPR/C/50/D/488/1992. See A. Gattini, “Smoking/No Smoking: Some Remarks on the Current Place of Fault in the I.L.C. Draft Articles on State Responsibility”, e.j.i.l., vol. 10 (1999), p. 397. Cf. the rather equivocal conclusions on the place of fault in the modern law of civil responsibility, reached by André Tunc in his comparative survey: La responsabilité civile (2nd edn.) (Paris, Economica, 1989) pp. 97–131.

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i­nternational law did not treat these as prerequisites for responsibility. In the sense that it did not require these in every case this was true; but it might require them in some or many cases. By referring these issues to the interpretation and application of the primary rule, the Draft Articles took an essentially neutral position, neither requiring nor excluding these elements in any given case. This was a more subtle approach, more appropriate to a general set of articles dealing with all international obligations and no longer focusing on the specific field of diplomatic protection. It corresponded to the wider range of possibilities, but it did not go further than that. (c) The Distinction between “primary” and “secondary” Rules Reference has already been made to the distinction between substantive rules of State responsibility, such as García Amador had sought to codify, and what Ago referred to as “the general rules governing the international responsibility of the State”.41 This came to be referred to as a distinction between primary and secondary rules of responsibility. It is not clear whether the intellectual origins of the distinction are to be found in a borrowing from H.L.A. Hart’s distinction between primary and secondary rules42 or from continental jurisprudence,43 or whether it emerged naturally enough from the failure of an attempt to specify in a general treaty the particular obligations of States. That such a distinction was necessary, however, is clear. It can be seen from looking at García Amador’s final proposals. His revised draft on “Responsibility of the State for injuries caused in its territory to the person or property of aliens”44 contained the following elements. Article 1 (1) stipulated that aliens enjoy “the same rights and the same legal guarantees as nationals, but these rights and guarantees shall in no case be less than the ‘human rights and fundamental freedoms’ recognized and defined in contemporary international instruments”. Article 1 (2) purported to define those rights and freedoms. Article 2 set out the constituent elements of responsibility, referring to obligations “­resulting from any of the sources of international law”, as well as to abuse of rights, elliptically defined. Articles 3–6 defined various wrongs to the person (denial 41 42

43 44

See above, note 10. H.L.A. Hart, The Concept of Law (1st edn.) (Oxford, Clarendon Press, 1961), Ch. v, pp. 77–96; (2nd edn.) (1994), Ch. v, pp. 79–99. Contrast H. Kelsen, General Theory of Law and State (Cambridge, Harvard University Press, 1945), p. 61 (“Law is the primary norm, which stipulates the sanction…”). See A. Ross, On Law and Justice (London, Stevens, 1958), pp. 209–210; see also L.F.E. Goldie, “State Responsibility and the Expropriation of Property”, (1978) 12 International Lawyer 63. Yearbook … 1961, vol. ii, p. 46.

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of justice, d­ eprivation of liberty, expulsion, other acts of maltreatment). Articles 7–8 dealt with failure to protect aliens from mob violence or other illegal acts of private persons. Articles 9–11 dealt with acquired rights (expropriation, non-performance of contractual obligations, public debts). Articles 12–16 dealt with “imputability”. Article 17 dealt with exonerating and extenuating circumstances (the embryo of the later Chapter V of Part One), in terms of the nonimputability to the State of acts committed under force majeure or as a result of a state of necessity. Article 18 dealt with exhaustion of local remedies, article 19 with the question of waiver (the Calvo clause), article 20 with settlement of claims. Articles 21–25 dealt with espousal, including time limits (a two year limitation period was proposed). Articles 26–27 dealt with reparation, including satisfaction and assurances and guarantees of non-repetition. Many of these provisions contained in early form elements which would later be embodied in the 1996 draft; García Amador’s contribution to the later work was not always acknowledged.45 But at the same time the text contained much else: an explicit though truncated code of human rights; a parallel statement of the rights of aliens and their property; an implicit theory of the relation between human rights and the protection of aliens and of the relation between international responsibility and contractual liability; a statement of a general rule of abuse of rights; a rule about repudiation of public debts; and a rule about the relations of foreign parent companies and local subsidiaries. It left unclear the relationship between these rules and others which the State might have accepted or might later accept, for example by treaty. It was all enormously ambitious—it would not be unkind to say, the Code Napoléon without the Emperor. No doubt a general code of international law might be desirable, rather than development by a process of accretion and accumulation. Such an idea was espoused in the late nineteenth century: it was an initial aspiration of the Institut de Droit International; it led to the 1930 Codification Conference and indeed to the Statute of the I.L.C. itself. But with the possible exception of those aspects of the law of treaties covered by the Vienna Conventions of 1969 and 1986, what has emerged has not been a code, or even chapters of a code, so much as sets of substantive rules adapted to particular fields (diplomatic and consular relations, the law of the sea, etc.). It is significant that the two Vienna Conventions do not purport to lay down any substantive rules of State conduct, except perhaps for the axiom pacta sunt servanda.46 The contents of their pacta are for States and international organizations to decide and to 45 46

The following elements from the 1961 “revised text” found their way into the 1996 Draft Articles, although in different terms: arts. 2(1), (2), (4), 12, 13, 14, 16, 17, 18, 26, 27. Vienna Convention on the Law of Treaties, 23 May 1969, u.n.t.s., vol. 1155, p. 331, art. 26; Vienna Convention on the Law of Treaties between States and International ­Organizations Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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modify. The same applies, in general, for the substantive rules of customary international law. Any universal statement of the rules of conduct must thus be subject to constant revision, qualification and development. By contrast the underlying structures of interaction and rule-making at the international level are less fluid, more durable. It is in seeking to specify these that the I.L.C. has perhaps been most successful. Thus whatever its intellectual origins may have been, the central organizing idea of the 1996 Draft Articles, the distinction between primary and secondary rules of responsibility, was indispensable. Without such a distinction, there was the constant danger of trying to do too much, in effect, of telling States what kinds of obligations they can have. However difficult it may be to draw in particular cases, the distinction allowed the framework law of State responsibility to be set out without going into the content of these obligations. That would be an impossible task in practice even if it were possible in principle (which for the reasons given it is not). The distinction between the two was made very clearly by the International Court in the Gabčíkovo-Nagymaros Project case, in the context of the relationship between the law of treaties and the law of responsibility.47 The law relating to the content and the duration of substantive State obligations is as determined by the primary rules. The law of State responsibility as articulated in the Draft Articles provides the framework— those rules, denominated “secondary”, which indicate the consequences of a breach of an applicable primary obligation. (d) Other Aspects of the 1996 acquis In emphasizing these three basic elements of the first reading articles, which were retained and reinforced on second reading, there is no intention to underestimate its other positive features. These included: the basic structure of Part One, and especially the content of most of Chapters II and V; the move towards an emphasis on cessation as well as reparation in Part Two; the instrumental approach to countermeasures, as well as (for the most part) the careful balance between the interests of the injured State and the responsible State achieved in the substantive provisions on countermeasures. While the detailed comments of governments on the 1996 text indicated major areas of concern, they also indicated general support for these key features. This reinforced the general view that the Draft Articles were already a major contribution. In fact

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or between International Organizations, 21 March 1986. A/CONF.129/15; i.l.m., vol. 25 (1986), p. 543, art. 26. I.C.J. Reports 1997, p. 7 at pp. 38–39, para. 47. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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even as drafts they had been already referred to with approval by the International Court and other tribunals on many occasions.48 (3) Difficulties with the 1996 Draft Articles At the same time there were unresolved difficulties. The various Parts were barely synthesized, and key elements remained controversial or presented difficulties, some of which at least had been the subject of incisive analysis in the literature.49 (a) Penalization of International Law: The Article [19] Problem The first and most acute of these was the problem represented by article [19]. The existence of obligations towards the international community as a whole was affirmed by the International Court in the Barcelona Traction case,50 in a dictum, often quoted and generally accepted. As has been noted, articles [19] and [40] (3) sought to translate that idea into the Draft Articles by reference to the notion of “international crimes” of States. These were defined in article [19] (2) in the following terms: “An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime.” The appallingly drafted paragraph (3) (which was not in Ago’s original proposal51) went on to give examples of international crimes, “on the basis of the rules of international law in force”. This plainly strayed over the line between primary and secondary rules. It also introduced multiple confusions. Paragraph (3) stated that “an international crime may result, inter alia, from” a number of cases. Four examples were given, of which the first is representative: “(a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting 48

49 50 51

See, e.g., Gabčíkovo-Nagymaros Project. I.C.J. Reports 1997. p. 7, at p. 38, para. 47. pp. 39–41, paras. 50–53, p. 46, para. 58. p. 54, para. 79, pp. 55–56, para. 83; Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, I.C.J. Reports 1999, p. 62, at p. 87, para. 62. For other tribunals see, e.g., Rainbow Warrior (New Zealand/France). r.i.a.a., vol. xx, p. 217 (1990), at pp. 270–271, para. 114; The M/V “Saiga” (No. 2) (Saint Vincent and the Grenadines v. Guinea), International Tribunal for the Law of the Sea, judgment of 1 July 1999; i.l.m., vol. 38 (1999), p. 1323. In addition to specific items cited below, see the Select bibliography, below, p. 368. Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 3, at p. 32. para. 33. Yearbook … 1976, vol. ii (Part One), p. 54, para. 155 (art. 18).

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a­ ggression”. Apart from the minor solecism of saying that an obligation prohibits aggression (aggression is prohibited, or is among the conduct prohibited, by article 2 paragraph 4 of the Charter, which in turn creates obligations for States not to engage in such conduct), this raised a multitude of questions. For example, what was signified by the word “may” in the chapeau of paragraph (3)? Were all acts of aggression crimes, or only serious ones, or only those serious ones which are recognized as crimes by the international community as a whole in a given case? Neither text nor commentary provided any answers. In a sense these were technical problems, though they were real enough. Underlying them, however, was the fundamental doubt over what it means to say that a State has committed a “crime”, especially now that international law has developed the notion of criminal responsibility of individuals to such an extent. Strong reservations as to the terminology of “crimes”, and the implications of article [19] more generally, were reflected in the I.L.C.’s footnote to article [40],52 as well as in the comments of many governments. Others continued to support the idea behind article [19], in some cases strongly, without necessarily being wedded to the terminology.53 An initial question to ask was whether these acts were properly called “crimes”, and whether the consequences of their breach were appropriately classified as penal in character. Were these to be considered as real crimes committed by States? Or were they in a different category, the category of very serious wrongs of concern to the international community as a whole? It is true that crimes of State, if they exist, would be a paradigm example of wrongs vis-à-vis the international community as a whole. But there could be such wrongs which were not classified as crimes. Presumably the notion of international crimes of State should have a function beyond the notion of standing to complain of or react to a breach, the essential context of article [40]. That would be only one of its aspects, if such crimes really existed. 52 53

See above, note 17. See comments and observations received from governments, in particular the United States of America, A/CN.4/488, under arts. [19] and [40] (3), A/CN.4/515, under General Remarks and art. 41: France. A/CN.4/488. under art. [19]; Germany, A/CN.4/488, under Part Two, Ch. iv: United Kingdom of Great Britain and Northern Ireland, A/CN.4/488. under art. [19]; Austria, A/CN.4/488, under art. [19]. A/CN.4/515. under Part Two, Ch. iii; Ireland, A/CN.4/488, under art. [19]; Switzerland, A/CN.4/488. under art. [19]; Argentina. A/CN.4/488/Add. i, under art. [19], A/CN.4/515/Add. 3, under Part Two, Ch. iii; ­Japan, A/CN.4/492, under art. 19 and Part Two, Ch. iv, A/CN.4/515, under art. 41; Denmark, A/CN.4/515, under Part Two, Ch. iii; Netherlands, A/CN.4/515, under Part Two, Ch. iii; Slovakia, A/CN.4/515, under Part Two, Ch. iii; China, A/CN.4/515, under art. 41; Republic of Korea, A/CN.4/515, under art. 41; Spain, A/CN.4/515, under art. 41; and Mexico, A/CN.4/515/ Add. 1, under Part Two, Ch. iii.

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If crimes of State as defined in article [19] had been real crimes and not merely a pejorative way of describing serious breaches of certain norms, the question was then what sort of regime they should entail. What would be expected of international law if it contained a regime of State crimes in the proper sense of the term? Of course international law already has rules dealing with the ways in which criminality is to be determined. It has a developing notion of due process to individuals.54 It is true that not all the implications of due process might carry through to the context of “corporate crime”, so to speak. But it would be odd if international law had totally different notions of State criminality than it had of criminality at large. So, what would one expect of a regime relating to State crimes? Five elements of such a regime might be expected, on this analogy.55 First of all, the crimes should be properly defined: nullum crimen sine lege. Secondly, there would need to be an adequate procedure for their investigation on behalf of the community. Thirdly, there should be a system of due process in relation to the trial of crimes: international corporate criminals should not be left to some disorganized international hue and cry. Fourthly, there would need to be some appropriate sanctions consequential upon a determination, on behalf of the international community, that a crime had been committed. These would exist over and above any “tortious” or “civil” liability that might flow from criminal acts qua wrongs against particular persons or entities. So we would expect a range of appropriate sanctions having a certain objective character. And fifthly, we would expect some system by which the wrongdoing entity could purge its guilt, i.e. could work its way out of the condemnation of criminality. There must be some method by which the State can, as it were, come clean, expunge the record. Not one of these five elements were to be found in the Draft Articles of 1996. On any view article [19] (2) and (3) failed to define crimes of States, and certainly not to the level of precision required by the nullum crimen principle.56 54 55

56

See, e.g., International Covenant on Civil and Political Rights, 16 December 1966, u.n.t.s., vol. 999, p. 171, art. 14, and its equivalents in other instruments. Cf. Rome Statute of the International Criminal Court, 17 July 1998, A/CONF.183/9, and the finalized draft text of the Elements of Crimes, PCNICC/2000/1/Add. 2 (2000), which specifies the basic elements of criminal responsibility of individuals, and attends more or less adequately to each of these elements. The Rome Statute makes no provision for the criminal responsibility of corporations or groups, let alone States: cf. arts. 1, 10, 25 (1) & (4). Art. [19] (2) only defined a category of international crimes of state, in the time-honoured circular fashion adopted for the notion of jus cogens by art. 53 of the Vienna Convention on the Law of Treaties. Art. [19] (3) appeared to give this highly generalized definition some further precision, but the appearance was deceptive: art. [19] (3) was inclusive, it was itself couched in illustrative and very general language, and it was stated to be subject

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Articles [51]–[53] did not specify any penal consequences: even punitive damages were omitted, and deliberately so. Of the other three elements, none was provided for at all. On the other hand, there were difficulties with simply closing the door to the idea of crimes of State. There was some practice, however embryonic, in relation to one or two crimes which are committed mainly or only by State agencies. Thus only the State can commit aggression—conduct which, however poorly defined it may be, is still treated as criminal in character.57 In practice only State agencies are likely to have the means to commit the crime of genocide, although there is no such link as a matter of definition. Moreover, legal systems as they develop may need the notion of corporate criminal responsibility for various purposes.58 Why should one exclude that possibility for the future in relation to the State as a legal entity in international law? That might seem a reversion to the discredited idea of the State as being above that law. All this suggested that the absence of any appropriate system of State criminal responsibility was a matter not of concept but of organization, of structure and of the lack of appropriate institutions. There is nothing inherent in the State as such which excludes it from being the subject of penal sanctions. The European Union has for example developed a system of fines for persistent non-compliance with European obligations. Although these are not designated as “criminal”, the system attends to each of the five criteria identified above, and in particular there is provision for due process.59 But a crucial difficulty with taking the idea of “international crimes” further was that even its supporters were extremely reluctant to accept a full-scale penal regime, or indeed any punitive elements at all. Punitive damages were deliberately omitted from article [52], and there was no trace of any wider range of sanctions which might seem appropriate if the conduct of States was generally to be criminalized.

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both to para. 2 and to “the rules of international law in force”. It was thus lacking in the minimum precision necessary for criminal responsibility. See Rome Statute of the International Criminal Court, 17 July 1998, A/CONF.183/9. arts. 5 (1) (d), (2). On the other hand, apart from the Statute it is unclear what specific legal consequences attach to aggression: the Security Council’s powers extend to all threats to or breaches of the peace, whether or not they amount to aggression, and are not differentiated. The obligation not to recognize the acquisition of territory seized by the use of force is not contingent upon the use of force being unlawful, let alone amounting to aggression. See. e.g., B. Fisse & J. Braithwaite, Corporations, Crime and Accountability (Cambridge, Cambridge University Press. 1993); C. Wells, Corporations and Criminal Responsibility (2nd edn.) (Oxford, Oxford University Press, 2001). See Case C-387/97, Commission of the European Communities v. Hellenic Republic, [2000] e.c.r. i-5047.

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In short, the idea of international crimes as expressed in the Draft Articles was divisive and had the potential to destroy the project as a whole. On the other hand, there was no particular difficulty in principle or in terms of the present state of international organization in accepting the idea that some obligations are held to the international community as a whole and not only to individual States, and that grave breaches of those obligations could attract special consequences. The problem was to translate that idea into the text in a way which would be generally acceptable. (b)

Excessive Prescription and Over-refinement (Especially Part One, Chapter iii) Despite the clear structure and overall balance of Ago’s Part One, there were difficulties with it. The most important of these involved Part One, C ­ hapter III which suffered from over-complexity and over-refinement, in particular through the series of rather convoluted articles establishing a typology of obligations. This view was vigorously expressed by a number of governments. The following passage from the comments of the Government of Germany made the point very clearly. It is worth quoting at length in that it exemplifies the acute and careful way in which many governments commented on the text, as well as the need to formulate the articles so as to transcend particular legal cultures and traditions. The very elaborate draft provisions on the breach of an international obligation requiring the adoption of a particular course of conduct (Article 20), on the breach of an international obligation requiring the achievement of a specified result (Article 21), and on the breach of an international obligation to prevent a given event (Article 23) are intended to ­establish a complete set of rules devoid of any loopholes … However, there is a certain danger in establishing provisions that are too abstract in nature, since it is difficult to anticipate their scope and application. Such provisions, rather than establishing greater legal certainty, might be abused as escape clauses detrimental to customary international law. They may also seem impractical to States less rooted in the continental European legal tradition, because such abstract rules do not easily lend themselves to the pragmatic approach normally prevailing in international law … Articles 24 to 26 provide for another complete series of abstract rules, this time governing the ‘moment and duration of the breach of an international obligation’. It is submitted that this scheme will tend to complicate rather than to clarify the determination of responsibility. From a practical point of view, the provisions do not assist in ­distinguishing between a c­ ontinuing act (Article 25) and an act not Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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extending in time (Article 24). The issue will always boil down to a thorough examination of the primary rule concerned and the circumstances of its violation.60 As Germany noted, Chapter III developed two further sets of distinctions, apart from that between crimes and delicts in article [19]. First there was the distinction drawn in articles [20], [21] and [23] between obligations of conduct, of result and of prevention; then there was the distinction or series of distinctions drawn in article [18] (4)–(6), and developed further in articles [24], [25] and [26], between continuing, composite and complex wrongful acts. These distinctions were criticized as unhelpful and over-refined not only by governments but also in the literature. For example the notion of “complex” acts was subjected to a decisive critique by Jean Salmon in 1980.61 Pierre-Marie Dupuy was equally critical of the utility of the distinction between obligations of conduct and result.62 It is true that the terms “obligation of conduct” and “obligations of result” have become an accepted part of the language of international law, no doubt in part because of Ago’s influence. But including them in the text raised serious difficulties. First, they had no consequences in the rest of the Draft Articles (unlike the distinction between completed and continuing wrongful acts). Secondly, articles [20] and [21] effectively reversed the distinction as known to some European legal systems (especially the French). It is not unusual for domestic analogies to be modified in the course of transplantation to international law. Indeed it is unusual for them not to be. But it is hard to think of any example where the effect of a national law analogy has been reversed in the course of transplantation. In French law, obligations of result are stricter than obligations of conduct.63 According to articles [20] and [21], obligations of result were less strict because the State had a discretion as to means which it did not have with obligations of conduct. The State’s power to decide what specific action to take was seen as an emanation of its sovereignty, which on a crude view is diminished by an obligation to carry out particular conduct. In articles [20] and [21] this question of determinacy was crucial; it was because the State

60 61 62 63

A/CN.4/488, under art. 20. See J.J.A. Salmon, “Le fait étatique complexe: une notion contestable”, a.f.d.i., vol. xxviii (1982), p. 709. See P.-M. Dupuy. “Reviewing the Difficulties of Codification: On Ago’s Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility”, e.j.i.l., vol. 10 (1999), p. 371. See K. Zwiegert & H. Kötz, An Introduction to Comparative Law (trans. J.A. Weir) (3rd edn.) (Oxford, Clarendon Press. 1998), pp. 501–502. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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retained some discretion as to what to do or how to respond that obligations of result were seen as less onerous. Thus the value of State sovereignty subverted a standard concept of internal law.64 One possibility was to revert to the original understanding of the concepts. Such a reversion might have illuminated the many international obligations of due diligence which are more properly seen as obligations of conduct according to the original understanding of that concept. But there was an even more basic objection to the system of classifications introduced in Part Three, which is that they diverted attention from the real issues of the interpretation and application of the primary rules and of the obligations thereby created. For example, an obligation of best efforts might be breached even though the end result was not achieved (whether because of the intervention of a third party or just as a matter of pure luck). The breach might then be trivial, but it would not disappear. Or it might be breached only by the combination of the failure to exercise due diligence and the consequent occurrence of the result, i.e. of damage. Which of these two interpretations is to be preferred? This depends entirely on the primary rule creating the obligation, and not on any system of classification. Some obligations of conduct or means may only be breached if the ultimate event occurs (i.e. damage to the protected interest); others may be breached by a failure to act even without eventual damage. International law neither has, nor needs to have, a presumption or rule either way. It depends on the context, and on all the factors relevant to the interpretation of treaties or the articulation of custom. Whether to retain articles [20] and [21], however they might be phrased, depended then on whether any consequences within the Draft Articles flowed from the distinction between obligations of means and of result. In French law there are consequences in terms of the proof of responsibility, but the Draft ­Articles are not concerned with the burden of proof or other adjectival issues. In the absence of any substantive consequences within the Draft Articles, articles [20] and [21] appeared to concern only the classification of primary rules.65 Another and perhaps more fundamental illustration of the problem of overrefinement concerned the article dealing with the exhaustion of local remedies rule (article [22]), likewise located in Chapter III. Article [22] provided that: 64 65

Cf. what nearly happened to the analogy of the “mandate” after South West Africa, Second Phase, I.C.J. Reports 1966, p. 6. See to similar effect J. Combacau. “Obligations de résultat et obligations de comportement: quelques questions et pas de réponse”, in Mélanges offerts à P. Reuter; le droit international: unité et diversité (Paris, Pedone. 1981), p. 181.

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When the conduct of a State has created a situation not in conformity with the result required of it by an international obligation concerning the treatment to be accorded to aliens … but the obligation allows that this or an equivalent result may nevertheless be achieved by subsequent conduct of the State, there is a breach of the obligation only if the aliens concerned have exhausted the effective local remedies available to them without obtaining the treatment called for by the obligation or, where that is not possible, an equivalent treatment. Since the Draft Articles did not otherwise deal with the exhaustion of local remedies, the inference was that they were essentially linked to the concept of an obligation of result in the sense of article [21]. In other words, the failure to provide a remedy was the substance of the breach and not (as commonly understood66) a prerequisite for the admissibility of a claim. And indeed this position was supported in the commentary.67 It is difficult to resist the conclusion that Ago was seeking through article [22] to reverse his long-distant loss (as counsel for Italy before the Permanent Court) in the Phosphates in Morocco case.68 There the French conduct challenged by Italy had occurred before the critical date for attracting the Court’s jurisdiction, although local remedies had not been exhausted until after that date. The Court by a substantial majority denied jurisdiction, applying a literal interpretation of the relevant jurisdictional reservation. That decision, which was referred to with apparent approval by the International Court in the n.a.t.o. cases,69 is contradicted by article [22]. This cast further doubt on the value of the complex structure of classifications in Chapter III. Thus there was a tendency in Part One to formulate propositions which were either simply unnecessary70 or were over-refined. This added a level of mystification to what is already a difficult field.

66 67 68 69 70

See, e.g., the Chamber’s discussion of the exhaustion of local remedies rule in Elettronica Sicula S.p.A. (ELSI), I.C.J. Reports 1989, p. 15. at p. 46, para. 59; p. 48, para. 63. Commentary to article [22], para. (15): Yearbook … 1977, vol. ii (Part Two), pp. 35–36. 1938. p.c.i.j., Series A/B, No. 74, p. 10. For discussion of the case see commentary to Article [22], paras. (25)–(28): Yearbook … 1977, vol. ii (Part Two), pp. 38–40. See, e.g. Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, I.C.J. Reports 1999, p. 124, paras. 29–30. E.g. art. [2], affirming that every State “is subject to the possibility of being held to have committed an internationally wrongful act entailing its international responsibility”. Anyone unfamiliar with the earlier doctrinal discussion of “delictual capacity” would wonder what on earth this proposition entailed, or how it could be denied.

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(c) Structural Problems with Part Two Turning to Part Two of the Draft Articles as adopted on first reading, a number of crucial issues had received inadequate attention during the first reading.71 These included, in particular: (1) the identification of States entitled to invoke responsibility, either as an “injured State” or as a State with a more general legal interest in the breach of the international obligation (so-called “differently injured” States); (2) the implementation of responsibility by injured States and other States with a legal interest in the breach (for example, such issues as the invocation of responsibility and cases involving a plurality of States); and (3) the legal consequences flowing from what former article [19] referred to as an “international crime”. Something has already been said about the third of these. Equally important (and more neglected, despite a substantial literature72) was the first, which was dealt with in article [40]. Something more should be said about it here. At 376 words, article [40] was, to say the least, unwieldy, even longer than article [19]. Entitled “Meaning of injured State”, it begun with the general proposition that an injured State is any State whose right is infringed by an internationally wrongful act of another State (para. (1)). This was a pure statement of the subjective theory of responsibility, and it might have been acceptable 71 72

See Crawford, Third Report, A/CN.4/507 (2000), paras. 8–9, for a summary. See, e.g., K. Sachariew, “State Responsibility for Multilateral Treaty Violations: Identifying the ‘Injured State’ and its Legal Status”, Netherlands International Law Review, vol. 35 (1988), p. 273; D.N. Hutchinson, “Solidarity and Breaches of Multilateral Treaties”, b.y.i.l., vol. 59 (1988), p. 151; J. Charney, “Third State Remedies in International Law”, Michigan Journal of International Law, vol. 10 (1989), p. 57; V. Vadapalas, “L’intérêt pour agir en responsabilité internationale”, Polish Yearbook of International Law, vol. 20 (1993), p. 17; J.A. Frowein, “Reactions by Not Directly Affected States to Breaches of Public International Law”, Recueil des cours, vol. 248 (1994/iv), p. 349; B. Simma, “From Bilateralism to Community Interest in International Law”, Recueil des cours, vol. 250 (1994/vi), p. 219; C. Annacker, “Part 2 of the International Law Commission’s Draft Articles on State Responsibility”, German Yearbook of International Law, vol. 37 (1994), p. 206; G. Perrin, “La détermination de l’Etat lésé. Les régimes dissociables et les régimes indissociables”, in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century; Essays in Honour of Krzysztof Skubiszewski (The Hague, Kluwer, 1996), p. 243; D.J. Bederman, “Article 40(2) (e) & (f) of the I.L.C. Draft Articles on State Responsibility: Standing of Injured States under Customary International Law and Multilateral Treaties”, Proceedings of the a.s.i.l., vol. 92 (1998), p. 291; K. Kawasaki, “The ‘Injured State’ in the International Law of State Responsibility”, Hitotsubashi Journal of Law & Politics, vol. 28 (2000), p. 17; J. Crawford, “The Standing of States: A Critique of Article 40 of the I.L.C.’s Draft Articles on State Responsibility”, in M. Andenas (ed.), Judicial Review in International Perspective; Liber Amicorum for Lord Slynn of Hadley (The Hague, Kluwer, 2000), vol. ii, p. 23.

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if left alone. It would not have resolved any problems, perhaps, nor given very much information, but it would have left the issue of “injury” or “standing” to be resolved by the interpretation and application of the primary rules. That is what the International Court had done in its much-criticized decision in South West Africa, Second Phase, interpreting the jurisdictional clause of the mandate so as to exclude the invocation of responsibility by States which could not claim any individual rights.73 By contrast in The S.S. “Wimbledon”, the Permanent Court had interpreted the jurisdictional clause in question, concerning rights of passage through the Kiel Canal, as extending to any State, whether or not affected by the particular refusal of passage, with ships flying its flag which might want to use the Canal.74 True, the contrast between the two cases might suggest that international law contains a presumption against allowing standing to, or treating as “injured”, States acting in the public interest in respect of regimes to which they are parties, as distinct from cases in which they might be individually affected. Such a contrast was characteristic of rules about standing to sue in public law systems of many States before the process of liberalization which has occurred over the past twenty years.75 It could be argued that in the context of public international law it was not a priori unreasonable, and it was also open to argument that the South West Africa, Second Phase case was simply wrong on the question of interpretation. However, not content with the simple and elliptical statement in para. (1), article [40] went on to list a large number of cases in which one or many States would be considered injured, without any particular attempt at synthesis. These cases ranged from purely bilateral obligations (as under a bilateral treaty or a judgment of an international court or tribunal inter partes) to international crimes, where all States were considered injured. But there was a range of intermediate cases. These included States parties to multilateral treaties or rules of customary international law where the obligations in question are “integral” in character,76 all States parties to multilateral treaties or bound by rules of customary international law for the protection of human rights,77 73 74 75

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I.C.J. Reports 1966, p. 6. 1923, p.c.i.j., Series A, No. 1. See, e.g., Australian Law Reform Commission, Report 27, Standing in Public Interest Litigation (Canberra, Australian Government Publishing Service, 1985); for a comparative review, see P. van Dijk, Judicial Review of Governmental Action and the Requirement of an Interest to Sue (Alphen aan den Rijn, Sijthoff & Noordhoff, 1980); and for more recent developments see H.W.R. Wade & C.F. Forsyth. Administrative Law (8th edn.) (Oxford, Oxford University Press, 2000), Ch. 20. Art. [40] (2) (e) (ii). Art. [40] (2) (e) (iii).

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and all rights expressly stipulated in multilateral treaties as established “for the protection of the collective interests of the States parties thereto”.78 Article [40] presented a number of difficulties. The conversion from the language of obligation to the language of right appeared to imply that all responsibility relations could be assimilated to classical bilateral right—duty relations (an assumption contradicted by the International Court in the Barcelona Traction case79). It also seemed to equate all categories of injured State, with all apparently having the same independent (“subjective”) rights. Even though the commentary warned that the different categories were not identical in terms of their consequences, later articles in Part Two failed to spell out the ways in which multilateral responsibility relations differ from bilateral ones. In short, article [40] was prolix in its treatment of bilateral responsibility and erratic and uneven in its treatment of multilateral obligations. It made the unjustified assumption that regimes of common interest can only be created through express stipulations in multilateral treaties. It singled out human rights for special treatment in vague and overly broad terms and in a way which conflicted or overlapped with other aspects of the definition. 3

Evolution of the Articles during the Second Reading

It was against this background that the second reading process was undertaken over the four sessions of the I.L.C. from 1998 to 2001. It occurred as follows: In 1998, consideration of the general question of international crimes of States, plus review of Part One, Chapters I and II (articles [1]–[15]) and the adoption by the Draft Committee of revised texts of articles, {1}–{11}.80 In 1999, consideration of Part One, Chapters III–V (articles [16]–[35]) and the question of dispute settlement with respect to countermeasures; the Drafting Committee adopted revised texts of articles {12}–{27}.81 78 79 80

81

Art. [40] (2) (f). Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 3. See Crawford, First Report, A/CN.4/490 & Adds. 1–7 (1998). For a summary of the I.L.C. debate and conclusions see I.L.C. Report … 1998, A/53/10, paras. 241–331. References to the articles provisionally adopted by the Drafting Committee in the period 1998–2000 will be shown as follows: article {43}. See Crawford, Second Report, A/CN.4/498 & Adds. 1–4 (1999). For a summary of the I.L.C. debate and conclusions see I.L.C. Report … 1999, A/54/10, paras. 64–453. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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In 2000, consideration of Part Two (articles [36]–[53]); the Drafting Committee adopted revised texts of articles {28}–{59}, completing the text as a whole.82 The Draft Articles of 2000 were not debated in plenary but were included, as a provisional text, in the I.L.C.’s Report in order to allow a further opportunity for comment.83 In 2001, reconsideration of the entire text in light of comments of governments; a decision on the questions of the form of the articles and on dispute settlement, leading to the deletion of former Part [Three]; the adoption of the final text of the articles as a whole with commentaries. During this process, the I.L.C. had the advantage of detailed comments by governments,84 including further comments annually in the Sixth Committee85 and a final round of written comments in 2000, based on the complete provisional text adopted by the Drafting Committee in that year,86 as well as by a study group of the International Law Association.87 The comments made by governments and others on the provisional text suggested that, overall, its basic structure and most of its individual provisions were acceptable. This included many of the articles first proposed and adopted in 2000. For example, the distinction between the secondary obligations of the responsible State 82

For the statement of the Chairman of the Drafting Committee, Mr. Giorgio Gaja, see A/CN.4/SR.2662. For a review of the progress made during the 2000 session see J. Crawford, P. Bodeau & J. Peel, “The I.L.C.’s Draft Articles on State Responsibility: Toward Completion of a Second Reading”, a.j.i.l., vol. 94 (2000), p. 660. 83 See I.L.C. Report … 2000, A/55/10, pp. 124–140. 84 See Yearbook … 1980, vol. ii (Part 1), A/CN.4/328 & Adds. 1–4; Yearbook … 1981, vol. ii (Part 1), A/CN.4/342 & Adds. 1–4; Yearbook … 1982, vol. ii (Part 1), A/CN.4/351 & Adds. 1–3; Yearbook … 1983, vol. ii (Part 1), A/CN.4/362; and Yearbook … 1988, vol. ii (Part 1), A/CN.4/414. Subsequently, the General Assembly invited comments on the Draft Articles as a whole (see Comments and Observations of Governments, A/CN.4/488 & Adds. 1–3, A/CN.4/492). Many Governments also commented on the evolution of particular Draft Articles in the course of the debate in the Sixth Committee on the work of the Commission: see A/CN.4/496 (1998), A/CN.4/504 (1999). 85 See the topical summary of the discussion held in the Sixth Committee during the fiftyfourth session of the General Assembly, prepared by the Secretariat (A/CN.4/513, Section A). 86 See “State Responsibility: Comments and Observations Received from Governments” (A/CN.4/515 & Add. 1). References to “Comments and Observations …” are to the excerpts from the written comments of Governments under the relevant article. 87 The Study Group’s first report was submitted on 8 June 2000: for text see http://www .ila-hq.org. The Study Group consists of Peter Malanczuk (Netherlands, chair and convener), Koorosh Ameli (Islamic Republic of Iran), David Caron (United States), Pierre-Marie Dupuy (France), Malgosia Fitzmaurice (United Kingdom), Vera Gowlland-Debbas (Switzerland), Werner Meng (Germany), Shinya Murase (Japan), Marina Spinedi (Italy), Guido Soares (Brazil), Zhaojie Li (China) and Tiyanjana Maluwa (Malawi). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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and the entitlement of other States to invoke that responsibility was widely endorsed. Likewise, there was general support for the distinction in principle between “injured States” and other States with a legal interest in the obligation breached, even if the formulation of certain articles was thought to require further attention. The same applied for articles omitted from the first reading text:88 there were few calls for their reinsertion, even for former article [19] dealing with “international crimes” of States.89 However, a number of substantive issues remained unresolved. The more important of these will be referred to here. 88 89

The following first reading articles have been omitted altogether or have no direct equivalent on second reading: articles [2], [11], [13], [18(3)–(5)], [19], [20], [21], [26] and [51]. See Appendix 1 below, p. 315. [Editors’ note: not included in this Anthology]. See Topical Summary … (A/CN.4/513), paras. 89–91.

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Chapter 44

Robert McCorquodale, An Inclusive Legal System, 2004 Comment by Professor Philip Allott, University of Cambridge Intellectual historians in the future – or intellectual archaeologists, if the event is rather far in the future – will try to uncover the roots of a transformation in collective human consciousness that, at last, recognised the true social and legal nature of the co-existence of the human species on Earth. They will ask why it took so long to overcome the aberrational thinking of the period from, say, the year 1500 in which the nations of Europe led the whole world into a bizarre social and legal system in which all human beings and all human societies were conceptually corralled into a small number of so-called ‘states’, acting in relation to each other through an externalised form of the executive branch of their internal system known as the ‘government’ of that ‘state’– with all the governments and all the States being seen as legally equal, whatever their devastating inequalities and imperfections. Robert McCorquodale shares the intellectual volksgeist which has reasonable respect for the better achievements of European civilisation, but is coldeyed and clear-headed about its many weaknesses. His article is an invaluable stock-taking of the systematic marginalising of non-State actors, including human beings, and the contortions, reminiscent of Ptolemy’s epicycles, that have been introduced into the system to accommodate the enormous increase in the international activities and expectations of non-State actors. He calls for a re-conceptualising of the system, but, for the present reader, he is too sanguine about a process that is itself making the need for a complete re-thinking of international society and its legal system more urgent than ever. Technocratic ingenuity cannot cure the alienation of human beings from the human world in which they are condemned to live.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_045

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R. McCorquodale, ‘An Inclusive Legal System’ (2004) 17/3 Leiden Journal of International Law pp. 477–504. Reproduced with the kind permission of Cambridge University Press.

An Inclusive International Legal System Robert McCorquodale* Abstract The dominant international legal theories are based on an understanding of international law in terms of a solely state-based system. This article challenges those theories in the context of the practice of the participants in the international legal system. It proposes an inclusive conceptual approach which acknowledges that non-state actors have distinct and independent international rights, responsibilities, and abilities to bring claims, as well as clear roles in the creation, development, and enforcement of international law, which are separate to that of states. While states currently have a primary role in the international legal system, this role is not exclusive.

Keywords international legal theory; international legal system; non-state actors; states; United Nations

For even though the United Nations is an organization of states, the Charter is written in the name of ‘We the Peoples’… Ultimately, then, the United Nations exists for, and must serve, the needs and hopes of peoples everywhere.1

…

We are the people, nameless pawns in the game of diplomacy, human sacrifices in the rite of war. We are the people, permanent victims of the abuse of public power and economic power – shackled * Professor of International Law and Human Rights at the University of Nottingham. This article is an expanded version of his Inaugural Lecture given on 4 Nov. 2002. He is grateful for all the helpful suggestions and comments from his colleagues and students in the School of Law, University of Nottingham, as well as from Hilary Charlesworth, Rebecca La Forgia, Penelope Simons, and Kate McCorquodale. 1 K. Annan, ‘We the Peoples’: The Role of the United Nations in the 21st Century (2000) Part i. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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in serfdom and slavery, herded like cattle into mines and factories and slums, into concentration camps and refugee camps, driven at gunpoint from our families and our homes, dehumanized by poverty and famine and disease, by the new slavery of consumerism and the mindless hedonism of popular culture.2

∵ 1 Context The beginning of the twenty-first century is an appropriate time to consider the extent to which the United Nations ‘exists for, and serves, the needs and hopes of people everywhere’, as the United Nations Secretary-General Kofi Annan asserts in his statement above. Yet those ‘people’ have diverse needs and hopes, and are very often at the mercy of states and of other power-holders within the international system, as Philip Allott shows in his observation. While the term ‘We the Peoples of the United Nations’, which begins the United Nations Charter, must include individual human beings and groups of human beings, it can also include those entities established by individuals and groups to give them a collective voice, such as non-governmental organizations and corporations, although it would not include inter-state or intergovernmental organizations. This article will focus on an important part of the UN system: the international legal system. While the international legal system is not limited to the processes operating within the UN system, the UN Charter is the centre of an international ‘constitutional order’3 of which the international legal system is a part. It is also an appropriate time to undertake an examination of the international legal system because the actions of non-state actors on 11 September 2001 and afterwards, as well as, for example, the anti-globalization protests, have all raised issues about its nature.4 My objective is to offer a conceptual approach to the international legal system that is sustainable in 2 P. Allott, Eunomia: New Order for a New World (2000), xxxiv. 3 N. White, ‘The United Nations System: Conference, Contract or Constitutional Order?’, (2000) 4 Singapore Journal of International and Comparative Law 281. At 291 he states, ‘It is arguable that in 1945 the UN Charter was constructed as a constitutional document and not simply as an international treaty, a fact indicated by the opening words of the UN Charter – “We the Peoples of the United Nations”. What is clear is that the Charter has become a constitution, indeed is the foundational constitutional document in the UN system’. 4 See A. Paulus, ‘International Law after Post-Modernism: Towards Renewal or Decline of International Law?’, (2001) 14 ljil 727. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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terms of ­international practice. This objective is premised on two rationales: that conceptual or philosophical ideas in international law are strengthened if developed by reference to the reality of international actions;5 and that the international legal system is not value-free.6 As Nigel White has noted, If we move from the post-1919 world order to the post-1945 order, the ­picture … is one of societal values shaping, informing and regulating the operation of a complex set of institutions, within a system framed by ­legal instruments of foundational significance.7 I intend to clarify how international societal values and practices, at least since 1945, have meant that the international legal system can no longer be conceived in terms of a solely state-based system.8 Instead, a conceptual understanding of the nature of the international legal system, inclusive of nonstate actors and not limited to states, is required. The ‘inclusive’ conceptual approach offered here is tested by reference to the international practice of those who are participants in the international legal system. This participation is examined closely in terms of those actors that the international legal system accepts ‘possess international rights and duties … [have] capacity to maintain … rights by bringing international claims’,9 and are involved as independent participants in the creation, development, and enforcement of international law. It will be demonstrated that this participation is not limited to states, but now includes a wide variety of non-state actors. Therefore it is argued here 5 This is the approach of many Third-World, critical race, feminist, and newstream international legal the- orists. See, for example, J. Gathii, ‘The Contribution of Research and ­Scholarship on Developing Countries to International Legal Theory’, (2000) 41 Harvard International Law Journal 263; Panel on ‘International Dimensions of Critical Race Theory’, (1997) 91 American Society of International Law Proceedings 408; H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (2000) and M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989). Note also H. Lauterpacht, ‘The Subjects of the Law of Nations’ (1947) 63 Law Quarterly Review 438 and (1948) 64 Law Quarterly Review 97. 6 See Paulus, supra note 4, who writes at 751–2: ‘contemporary international law cannot claim any more to be value-free, even if the precise meaning and consequences of those values have to be determined in each and every single case and might not be found at all in hard cases’. 7 White, supra note 3, at 290. 8 J. Tasioulas comments that ‘by making explicit, and reflectively articulating, the genuine reasons on which decisions are based … self-consciously value-based adjudication can enhance, rather than corrode, the realization of the rule of law’. J. Tasioulas, ‘In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case’, (1996) 16 Oxford Journal of ­Legal Studies 85, at 104–5. 9 Reparations for Injuries Opinion, [1949] ICJ Rep. 174, at 179. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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that the view that the international legal system should be considered as being inclusive of a range of participants is both sustainable in theory and reflective of contemporary practice. It also provides an appropriate foundation for the development of the international legal system in the twenty-first century. 2

The International Legal System

Under the UN Charter the United Nations was to be an organization of states, and states were to have international obligations to accomplish the aims of ‘We the Peoples’.10 The concept that states were the only ones with international obligations (and rights) – although not always the position historically11 – was the prevailing view in 1945.12 That view holds that the international legal system is a system solely for, and by, states and finds support in the fact that membership of the UN is exclusive to states.13 The Statute of the International Court of Justice (ICJ) declares that ‘only states may be parties in cases before the Court’14 and the primary sources of international law are usually expressed as arising only from the actions of states.15 This approach is encapsulated in the statement, ‘Since the Law of Nations is a law between states only and exclusively, states only and exclusively are subjects of the Law of Nations’.16 Under this dominant concept of the international legal system – it is a legal system rather than one ‘international law’ because there are many international laws just as there are many national laws – if non-state actors have any role then it is as ‘objects’ of that system. They are objects either in the same sense as territory or rivers are objects of the system, because there are (state-created) legal rules about them, or in the sense that they are beneficiaries under the 10

11 12 13 14 15 16

Preamble, United Nations Charter (unc): ‘to accomplish these aims, accordingly our respective governments, through representatives assembled in the city of San Francisco … have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations’. See P. Simons, ‘The Emergence of the Idea of the Individualised State in the International Legal System’, (2003) 5 Journal of the History of International Law/Revue d’histoire du droit international, 293–336. There were some alternative concepts, for example, G. Scelle, Precis de droit des gens (1932), argued that the primary ‘subjects’ of the international legal system are people, but these concepts were not generally adopted. Though non-states have been members of the United Nations, e.g. Byelorussian ssr and Ukrainian ssr. Statute of the International Court of Justice, Art. 34(1). For example, it is the actions of states, by their practice and intentions, that are generally seen as constituting customary international law – see, e.g., M. Akehurst, ‘Custom as a Source of International Law’, (1974–5) 47 British Year Book of International Law 53. L. Oppenheim, International Law, Vol. i (1905), 341. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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system, so that treaties on, for example, diplomatic persons or commerce indirectly benefit non-state actors. This approach means that any activities of nonstate actors in the international legal system are seen as wholly determined by states and entirely dependent on states’ consent. For example, any right an individual may have under a treaty to bring a complaint of a human rights violation by a state to an international supervisory institution is seen as being available only because states have given their express consent to this by agreeing to the treaty.17 There has been some recent acceptance, even by those who remain part of the dominant elite of the international legal system, that exclusive state sovereignty, according to which each state has absolute power to decide for itself about any matter on, or affecting, its territory,18 no longer operates. For example, the then UN Secretary-General Boutros Boutros Ghali stated, The time of absolute and exclusive sovereignty … has passed; its theory was never matched by reality. It is the task of leaders of states today to understand this and to find a balance between the needs of good internal governance and the requirements of an ever more interdependent world. Commerce, communications and environmental matters transcend administrative borders; but inside those borders is where individuals carry out the first order of their economic, political and social lives.19 This acceptance of a change in state sovereignty is a very limited one. It sees any change in sovereignty as being where some sovereignty has passed to an international organization such as the United Nations.20 However, these ­international organizations comprise states acting together and although they can act differently from states (see further below), the idea is nevertheless reinforced that the international legal system is limited to the activities of states or to state activity through collectives of states. Under this concept, non-state actors remain restricted to activities within state ‘borders’.

17

See comments by M. Koskenniemi, ‘The Future of Statehood’, (1991) 32 Harvard International Law Journal 397. 18 In Island of Palmas (The Netherlands v. United States) (1928) 2 riaa 829, it was stated that ‘The development of the national organization of states during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the state in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations’. 19 B. Boutros Ghali, Agenda for Peace, UN Doc. A/47/277-S/24111 (1992), para. 17. 20 See I. Brownlie, Principles of Public International Law (1998), 57–8.

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Beyond the State

Despite a range of cogent critiques,21 the conceptual approach of a solely statebased international legal system still dominates much of international law thinking today. Much of this system is still largely developed by male, urban elites and does not include important parts of the daily lives of people. Yet there have been significant changes in the nature of activities that affect the international legal system since 1945.22 The increasing role of international organizations such as the World Bank and the World Trade Organization (WTO), the impact of globalization, particularly the activities of transnational corporations, as well as actions by civil society and the development of international environmental, criminal, humanitarian, and human rights law, all affect the international legal system.23 Hence it has been persuasively argued that the concept of the international legal system as a solely state-based process ‘is incapable of serving as the normative framework for present or future political realities … new times call for a fresh conceptual and ethical language’.24 One reason for a new conceptual language is the need to move away from the rigid framework of conceiving entities in terms of ‘subjects’ or ‘objects’ of the international legal system. This binary opposition between ‘subject’ and ‘object’ has been rightly criticized, not least because it privileges the voices of states, since all potential participants are compared to states, and it silences alternative voices.25 Indeed, as Rosalyn Higgins notes, ‘the whole notion of “subjects” and “objects” has no credible reality, and, in my view, no functional purpose. We have erected an intellectual prison of our own choosing and then declared it to be an unalterable constraint.’26

21 22

23 24

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Many of the major critiques are summarized in Paulus, supra note 4. J. Charney, ‘Universal International Law’, (1993) 87 AJIL 532, at 530: ‘Complete autonomy may have been acceptable in the past when no state could take actions that would threaten the international community as a whole. Today, the enormous destructive potential of some activities and the precarious condition of some objects of international concern make full autonomy undesirable, if not potentially catastrophic’. See, e.g., P. Sands, ‘Turtles and Torturers: The Transformation of International Law’, (2001) 33 nyu Journal of International Law and Politics 527. F. Teson, ‘The Kantian Theory of International Law’, (1992) 92 Columbia Law Review 53–4. Some of the alternative concepts to the dominant approach still tend to remain within a state-based framework: for example, some of the concepts of Third-World theorists such as M. Bedjaoui, Towards a New International EconomicOrder (1979). See, e.g., Koskenniemi, supra note 5, and Charlesworth and Chinkin, supra note 5. R. Higgins, Problems and Process: International Law and How We Use It (1994), 49.

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A more appropriate conceptual approach in the twenty-first century is a frame-work based on ‘participation’ in the international legal system. This approach is consistent with opinions of the ICJ, which have stated, Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of states has already given rise to instances of action upon the international plane by certain entities that are not states.27 As the international community,28 which includes both states and non-states as the ICJ acknowledges, changes and the ‘requirements of international life’ or the areas governed by international law develop, then so will participation in the international legal system. This means that actual actions are given acknowledgement in terms of their impact on this system, rather than there being a prior, state-based, determination as to what actions will be taken into account.29 Even in 1947 Hersch Lauterpacht noted the existence of an international practice of including non-states in the international legal system and considered that such developments are not inconsistent with the structure of international law; and that in each particular case the question whether a person or a body is a subject of international law must be answered in a pragmatic matter by reference to actual experience and to the reason of the law as distinguished from a preconceived notion as to who can be subjects of international law.30 27

Reparations for Injuries Opinion, supra note 9, 178. See also Legality of the Threat or Use of Nuclear Weapons Opinion (WHO), [1996] ICJ Rep. 66. 28 See D. Kritsiotis, ‘Imagining the International Community’, (2002) 2 European Journal of International Law 961. Cf. D. Greig, ‘“International Community”, “Interdependence”, and All That … Rhetorical Correctness?’, in G. Kreijen (ed.), State, Sovereignty and ­International Governance (2002), 521. 29 J. Klabbers, ‘Presumptive Personality: The European Union in International Law’, in M.  Koskenniemi (ed.), International Law Aspects of the European Union (1998), at 253: ‘Personality is emphatically not a prerequisite for the ability to act under international law, nor do any Hofeldian rights, privileges, powers or immunities follow automatically from it. Indeed, if anything, it appears to be the other way around: the existence of certain rights, privileges, powers or immunities may lead to the conclusion that the entity concerned may be classified as an international legal person’. Hofeld’s views are explained in the next section. 30 Lauterpacht, supra note 5.

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Acknowledging these different degrees of participation in the international legal system is consistent with the position in most national legal systems, where different areas of law, from company law to family law, will involve different participants. As in national legal systems, participation in the international ­legal system may be extensive and over a wide range of international matters or it can be limited to a few issues. Therefore we should adjust our intellectual framework to a multi-layered reality consisting of a variety of authoritative structures … [in which] what matters is not the formal status of a participant … but its actual or preferable exercise of functions.31 Thus there could be many participants in the international legal system, in the sense that there are many different ‘entities’ or actors, from states and international organizations to transnational corporations and individuals, who might engage in international activity. The importance of participation has been examined most effectively by Karen Knop, who notes that ‘in addition to actual involvement in the determination of meaning, participation refers to other means of building in consideration of [people’s] perspectives’.32 Ideas of participation have been a part of the developing states’ claims for a New International Economic Order33 and are used in some liberal concepts of the international legal system.34 Thus the use of the notion of participation does not require an adoption of any previous conceptual approach. Indeed, the notion of participation offers a valuable framework for exploring involvement in the international legal system and thus is a means of determining the extent to which that system has become inclusive.35 Another aspect of adopting a new conceptual language is to clarify the ­relationship between people and the state. The state, under the dominant

31 32 33 34 35

C. Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International Law’, (1993) 4 European Journal of International Law 447, at 453. K. Knop, Diversity and Self-Determination in International Law (2002), 4. As expressed, e.g., in the Declaration on the Right to Development 1986, UN Doc. A/Res. 41/128, Art. 1.1. See, e.g., T. Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86 American Journal of International Law 46, and G. Fox, ‘The Right to Political Participation in International Law’, (1992) 17 Yale Journal of International Law 539. For a further exposition see R. McCorquodale, ‘The Individual in International Law’, in M. Evans (ed.), International Law (2003).

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c­ onceptual approach, is distinguished from individuals.36 This is an imaginary and unnecessarily rigorous distinction for two main reasons. First, individuals act on behalf of the state and in the state’s name, since the state is an entirely artificial entity – a legal fiction – that cannot act by itself.37 ‘State’ actions and statements are actually made by an elite of people who control decision-­ making inside a territorial boundary and who usually make their decisions on the basis of national concerns alone.38 These elites often have more in common with other elites in other territories than with the people in their territory.39 As Hilary Charlesworth and Christine Chinkin have made clear, the state is not a good structure for engagement with many vital international issues, since it reinforces a particular hierarchy, it creates a false division between the public and the private areas of life, and its approaches to conflict resolution are often based on violence and control.40 Second, people are necessary for an entity to be recognized as a state, in the sense that according to every criterion that defines a state there must be ‘a population’.41 For an entity to be recognized as a state and thus, for example, to become a member of the United Nations, it must have a population. The issue is not whether the people vote for a government, are oppressed by a government, or are justly represented by the government of the state.42 People do 36

37

38 39

40 41 42

See even A.-M. Slaughter, ‘A Liberal Theory of International Law’, (2000) Proceedings of the American Society of International Law 240, where, although she tries to integrate the state with its internal structure, she keeps on drawing distinctions between individuals and states. Although the individual, in her or his private capacity, remains distinct from the actions she or he takes on behalf of the state: see R. Geuss, History and Illusion in Politics (2001). There can also be some legal argument about what is the state – see Application for Revision of the Judgment of 11 July 1996 in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, [2003] ICJ Rep. See, e.g., the Australian government’s foreign policy document, which is entitled In the National Interest (1997). ‘Many peoples today are deprived of their right of self-determination, by elites of their own countrymen and women: through the concentration of power in a particular political party, in a particular ethnic or religious group, or in a certain social class’: statement by United Kingdom representative to Third Committee of the General Assembly 12 Oct. 1984 ((1984) 55 byil 432). Charlesworth and Chinkin, supra note 5. Montevideo Convention on the Rights and Duties of States 1933, (1936) 135 lnts 19, Art. 1(a). See, e.g., S. Marks, ‘The End of History? Reflections on Some International Legal Theses’, (1997) 8 European Journal of International Law 449; S. Marks, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (2000). Hence this ­paper does not endorse the ideas of popular sovereignty or democracy, as contained in, e.g.,

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not have to identify with the state, but they need to be in a territory for there to be a state. As Kofi Annan reminds us, ‘beneath the surface of states, nations, ideas and language, lies the fate of individual human beings in need’.43 Therefore people are central to the concept, existence, and actions of a state in the international legal system.44 The state, albeit an artificial construct, remains a contemporary means whereby the aims of ‘We the Peoples of the ­United Nations’ can be accomplished at the international level. Indeed, the Preamble of the UN Charter assumes that states could act in the ‘common interest’.45 There are some common interests within territorial boundaries in which the role of the state is crucial, since a state could act in a way that enabled every person to live a life of dignity and security and so ensure human flourishing, rather than act in a way that ensures and perpetuates its own power. The development of many areas of law, such as the prohibition on the use of force, are examples where states have acted in the common interest.46 However there are common interests, identities, and communities that exist across and beyond territorial boundaries.47 There is ‘a cosmopolitan view that human wellbeing is not defined by geographical or cultural locations’.48 It has also been argued persuasively that sovereignty is a multi-layered, often changing, concept, in which the state is not the only holder of sovereignty,

43 44

45 46 47 48

M. Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’, (1990) 84 American Journal of International Law 866, and most of the authors in G. Fox and B. Roth (eds.), Democratic Governance and International Law (2000) – as being coherent as concepts for understanding the entire international legal system, as these concepts rely too much on a particular political and social construct of the state. K. Annan, ‘We Can Love What We Are without Hating What – and Who – We Are Not’, Nobel Peace Prize Lecture, 10 Dec. 2001 (www.unhchr.ch), 2–3. Some earlier jurist argued that the primary ‘subjects’ of the international legal system are people. See, e.g., G. Scelle, Precis de droit des gens (1932) and C. Nørgaard, The Position of the Individual in International Law (1962). Also Hersch Lauterpacht, one of the most influential international lawyers of last century, argued that ‘Fundamental human rights are rights superior to the law of the sovereign state … [and must lead to the] consequent recognition of the individual human being as a subject of international law’: H. Lauterpacht, International Law and Human Rights (1950). ‘to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest’. The prohibition on the use of force is customary international law: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits, ICJ Rep. 14. See further R. McCorquodale, ‘International Law, Boundaries and Imagination’, in D. ­Miller and S. Hashmi (eds.), Boundaries and Justice (2001). D. Held, ‘What Hope for the Future?: Learning Lessons of the Past’, (2002) 9 Indiana Journal of Global Legal Studies 381, at 398. See also T. Erskine, ‘“Citizen of Nowhere”, or “The Point where Circles Intersect”? Impartialist and Embedded Cosmopolitanisms’, (2002) 28 Review of International Studies 457.

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in the same way as identities can be multi-layered, change over time, and be shared.49 Philip Allott, one of the most innovative of contemporary philosophers of international law, adopts a view in which he sees international society not as being comprised of states but as arising from the ‘self-creating’ of all human beings.50 Therefore to limit a conceptual understanding of the international legal system to state actions alone is to apply a blinkered, dangerous view of the world. It is to equate power with justice.51 Indeed, as Kofi Annan said on the award of the Nobel Peace Prize to him and to the United Nations, What is not always recognized is that “We the Peoples” are made up of individuals whose claims to the most fundamental rights have too often been sacrificed in the supposed interests of the state or the nation…. In this new century, we must start from the understanding that peace belongs not only to states or peoples, but also to each and every member of those communities. The sovereignty of states must no longer be used as a shield for gross violations of human rights. Peace must be made real and tangible in the daily existence of every individual in need. Peace must be sought, above all, because it is the condition for every member of the human family to live a life of dignity and security.52 If state sovereignty can no longer be a shield between the people and the international legal system, then the values of international society expressed in the Preamble to the UN Charter, being human rights, peace, justice, and a better standard of life, can be achieved. Therefore the international legal system must be conceptualized as ­inclusive  – not exclusive – of non-state actors. States remain an important and – at least for now – an essential part of this system. A conceptual approach that includes states and non-state actors in understanding the international legal system is coherent and justifiable because it acknowledges that people have values, identities, and roles distinct from the geographic limitations of states. It recognizes that all of us are part of international society and are the ‘Peoples’ of the United Nations. When the few who can travel do so, they can 49

See, e.g., N. MacCormick, ‘Beyond the Sovereign State’, (1993) 56 Modern Law Review 1; and D. Kostakopoulou, ‘Floating Sovereignty: A Pathology or a Necessary Means of State Evolution?’, (2002) 22 Oxford Journal of Legal Studies 135. 50 P. Allott, ‘Reconstituting Humanity – New International Law’, (1992) 3 ejil 219. See also Allott, Eunomia, supra note 2. 51 See M. Sornarajah, ‘Power and Justice in International Law’, (1997) 1 Singapore Journal of International and Comparative Law 28. 52 Annan, supra note 43, at 2–3.

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become witnesses and advocates of our common humanity.53 An inclusive international legal system opens the possibilities of dialogue at an international level not just between governments but also between individuals, communities, and other non-state actors (such as armed opposition groups, terrorists, and transnational corporations) and between them and governments, especially when national dialogue fails. This conceptual approach is coherent and is consistent with the inclusive premise of the Preamble to the UN Charter. Such an inclusive conceptual approach is sustainable if it can be shown that participation in the international legal system is not limited to states or statelike bodies. If there are non-state actors participating in the international legal system independently of the state, and of state consent, and having an clear role in the creation, development, and enforcement of international law, then a state-dependent view of this system is not coherent and is no longer sustainable. A new conceptual approach would then have to be adopted that acknowledged and applied these realities to the nature of the international legal system in the twenty-first century. 4

Non-state Actors and International Rights, Responsibilities, and Claims

The Permanent Court of International Justice (PCIJ), the ICJ’s predecessor, had to consider whether it was possible for people to have rights in the international legal system. It held that it cannot be disputed that the very object of an international agreement, according to the intention of the contracting parties, may be the adoption by the parties of some definite rules creating individual rights and obligations and enforceable by the national courts.54 While this Opinion confirmed that individuals can have rights in the international legal system, albeit as agreed to by states, these rights will not all be of the same nature. There are different types of rights: a ‘right’ can mean a claimright, a privilege (or liberty), a power, or an immunity (or a number of these

53 54

See M.-F. Lafant, J. Allcock, and E. Bruner (eds.), International Tourism: Identity and Change (1995). Jurisdiction of the Courts of Danzig, (1928) PCIJ Ser. B No. 15, at 17–18.

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at once).55 In some instances the rights of non-state actors within the international legal system are of the nature of the ability to bring a claim (a claimright) against the state (see further below). However, many of these rights are more in the nature of either an immunity from action against them, such as those that arise due to their status as prisoners of war,56 or a privilege, such as the liberty to travel peacefully on the high seas without interference.57 The rights of non-state actors and the rights of states in the international legal system are not identical, but, while they may overlap or interact (such as under international humanitarian law in relation to use of force in a territory affecting combatants and non-combatants),58 they are distinct rights. The area where rights of some non-state actors are most developed is in relation to human rights. While human rights are conceptually distinct from the way in which they may be drafted into legal instruments,59 as the human rights treaties make clear,60 all states have agreed by these treaties to establish some claim-rights of individuals and groups against states within the international legal system. There is now an institutional structure, including supervisory mechanisms, to check compliance with the legal obligations on states to respect, protect, and fulfil human rights.61 However, some human rights create legal obligations on a state irrespective of whether it has ratified a particular treaty, either because the human right is part of customary international law and so binding on all states or by virtue of a rule of jus cogens, which no state can derogate from or evade by contrary practice. For example, the ICJ took the view that South Africa was bound by international legal obligations in relation 55 56 57 58 59 60

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W. Hohfeld, ‘Fundamental Legal Conceptions as Applied to Judicial Reasoning’, (1913) 23 Yale Law Journal 16. E.g., the Geneva Conventions Relative to the Treatment of Prisoners of War 1949, Art. 47, forbids certain acts of reprisal against prisoners of war. See Art. 2 of the Convention on the High Seas 1958 and Art. 87 of the UN Convention on the Law of the Sea 1982, as representing customary international law: M. Shaw, International Law (1997), 418–20, and Brownlie, supra note 20, at 232–3. See generally J. Gardam, Humanitarian Law (1999). See T. Campbell, ‘Realizing Human Rights’, in T. Campbell, D. Goldberg, S. McLean, and T. Mullen (eds.), Human Rights: From Rhetoric to Reality (1986). E.g., the Preamble to the International Covenant on Civil and Political Rights 1966 recognizes that ‘these rights derive from the inherent dignity of the human person’, and the Preamble to the African Charter of Human and Peoples’ Rights 1981 provides that ‘fundamental human rights stem from the attributes of human beings’. See, e.g., the analysis by the UN Committee on Economic, Social and Cultural Rights, General Comment No. 13 on the Right to Education, where the Committee states (at para. 46): ‘The right to education, like all human rights, imposes three types or levels of obligations on states parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide’.

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to racial discrimination despite its clear contrary practice,62 and also that all states have legal obligations with respect to the right of self-determination.63 Further, Judge Weeramantry of the ICJ has argued that a successor state cannot rely on the ‘clean slate’ doctrine in relation to some human rights treaties, as it is automatically bound by them: Without automatic succession to such a Convention [as the Genocide Convention], we would have a situation where the worldwide system of human rights protections continually generates gaps in the most ­vital part of its framework, which open up and close, depending on the break-up of the old political authorities and the emergence of the new. The international legal system cannot condone a principle by which the subjects of these states live in a state of continuing uncertainty regarding the most fundamental of their human rights protections. Such a view would grievously tear the seamless fabric of international human rights protections, endanger peace, and lead the law astray from the Purposes and Principles of the United Nations, which all nations, new and old, are committed to pursue.64 Indeed, the Vienna Declaration on Human Rights, agreed by all states by consensus at the World Conference on Human Rights in 1993, makes it clear that ‘the promotion and protection of all human rights is a legitimate concern of the international community’.65 Therefore how a state treats the people within its territorial boundaries is no longer a matter for that state alone. Each state, no matter what may be its wishes, no longer has complete control over the continuance, development, and interpretation of human rights.

62

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Namibia Opinion (Legal Consequences for States of the Continued Presence of South Africa in Namibia), [1971] ICJ Rep. 22: ‘to establish … distinctions … based … on grounds of race … which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the [UN] Charter’ (56–7). East Timor Case (Portugal v. Australia), [1995] ICJ Rep. 90 at para. 29: ‘In the Court’s view, Portugal’s assertion that the right of peoples to self-determination … has an erga omnes character, is irreproachable. The principle of self-determination of peoples … is one of the essential principles of contemporary international law’. Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia ( Serbia and Montenegro)), Preliminary Objections, [1996] ICJ Rep., Separate Opinion. Vienna Declaration and Programme of Action on Human Rights 1993, (1993) 32 ilm 1661, para. 4. Similar statements are found in the Concluding Document from the Moscow Conference on the Human Dimension of the Conference on Security and Co-Operation in Europe (CSCE) (now OSCE), (1991) 30 ilm 1670.

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In relation to the responsibility of non-state actors in the international ­legal system,66 even though non-state actors have been a part of international ­activity, from trading to colonizing, for centuries,67 their actions (other than those of slavery and piracy68) generally did not give rise to any international legal responsibility on them personally. Such responsibility only arose when those actions were attributed to the state, and then the state was ­internationally ­responsible.69 However, the development of international law in the area of individual responsibility for certain crimes has changed this pattern. This was neatly summarised by the Nuremberg International Military Tribunal: Crimes against international law are committed by men, not by abstract entities [of states], and only by punishing individuals who commit such crimes can the provisions of international law be enforced.70 This individual responsibility is occasionally enforced in national courts71 and has begun to be enforced through international tribunals, and will in the future be applied by international criminal courts.72 Even though it was necessary for states to agree to the decisions or treaties that created these recent international criminal tribunals and courts, individual responsibility under international law, at least for acts such as piracy and genocide, still exists i­ndependently of 66

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The idea of responsibility is generally considered to mean a legal obligation that, if breached, can give rise to international consequences: International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, 53nd session, UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001, available at www.un.org/law/ilc. In addition, human rights and responsibilities are linked: see, e.g., B. Saul, ‘In the Shadow of Human Rights: Human Duties, Obligations, and Responsibilities’, (2001) 32 Columbia Human Rights Law Review 565. See J. Dine, ‘Human Rights and Company Law’, in M. Addo (ed.), Human Rights Standards and the Responsibility of Transnational Corporations (1999), 209. The justification for this was that ‘the pirate and the slave trader … [are each] hostis ­humani generis, an enemy of all mankind’ (Filartiga v. Pena-Irala, (1980) 630 F. 2nd 876, Second Circuit of the US Court of Appeals). See further, S. Ratner and J. Abrams, Accountability for Human Rights Atrocities in International Law (2001). See, e.g., Tehran Case (United States Diplomatic and Consular Staff in Tehran: US v. Iran), [1980] ICJ Rep. 3. Nuremberg Judgement, (1948) 22 Trial of the Major War Criminals before the International Military Tribunal 466. For example, Attorney-General of the Government of Israel v. Eichmann (1961) 36 ilr 5. See, e.g., D. van Zyl Smit, ‘Punishment and Human Rights in International Criminal Law’, (2002) 2 Human Rights Law Review 1; and W. Schabas, Introduction to the International Criminal Court (2001).

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these agreements. The individual responsibility arises through customary international law and no one state now has the ability to limit this responsibility, even if it may try to limit a particular means of enforcement.73 The individual is responsible without any need to link her or him with the state. As the International Criminal Tribunal for the former Yugoslavia expressed it, ‘in this context, the participation of the state becomes secondary, and generally, peripheral’.74 This draws a clear distinction between the individual and the state in terms of international responsibility. While non-state actors do have independent rights and responsibilities in the international legal system, it does not automatically mean that they have the ability to bring international claims to assert their rights or are able to claim an immunity to prevent their responsibilities being enforced.75 Many of the international institutions that determine claims, such as the ICJ, are barred to non-state actors, even though a significant number of their cases arise from actions by, or against, these very actors. This was seen most starkly in the East Timor case, where the claims of the East Timorese themselves could not be brought to, or directly considered by, the ICJ.76 Traditionally the only means available for a non-state actor to bring a claim within the international legal system has been when the individual, group, or organization is able to persuade the government to bring a claim on their behalf. Even then, it is not their international rights that are being asserted but the state’s own rights: [I]n taking up the case of one of its nationals, by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own right, the right to ensure in the person of its nationals respect for the rules of international law.77

73 The US government has tried to limit the enforcement of this individual responsibility by the International Criminal Court: see, e.g., S. Murphy (ed.), ‘International Criminal Law’, (2002) 96 AJIL 724. 74 Prosecutor v. Kunarac, Kovac and Vukovic´, Case No. IT-96-23-T, 22 Feb. 2001, para. 493. 75 In Hungaro-Czechoslovak Mixed Arbitral Tribunal Appeal, (1933) PCIJ Ser. A/B No. 61, 231, the PCIJ declared that ‘it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself’. 76 East Timor Case (Portugal v. Australia), [1995] ICJ Rep. 90. This position was criticized, in particular by Judge Vereshchetin in his Separate Opinion, who said, at 137–8: ‘the right of a people to self-determination, by definition, requires that the wishes of the people concerned at least be ascertained and taken into account by the Court’. 77 Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania), (1939) PCIJ Ser. A/B No. 76.

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The justification that it is the state that can assert this type of claim is through the linkage of nationality.78 The international legal system has developed intricate rules regarding the nationality of people in terms of their relationship with states, as determined by the degree of connection they have to the territory of a state.79 Even then, this nationality connection may be insufficient if there are other international rules that override it or if the state chooses not to take action.80 This position, according to which individuals or groups could not assert claims directly to international bodies, began to change in the latter part of the twentieth century.81 In particular, the vast growth of international human rights and international commercial dispute settlement bodies has put the issue of non-state actors bringing international claims in a broader perspective.82 In addition, procedures developed by some international organizations, such as the International Labour Organization, allow complaints by non-state actors.83 This is an extraordinary development in the international legal system away from a position in which a state’s actions on its own territory were not subject to international review. Claims can even be brought by individuals against a state in whose jurisdiction they happen to be, even if temporarily, irrespective of whether they are a national of that state,84 and even if that state’s jurisdiction over the person is unlawful.85 Nationality, and the dubious

78

There are some rare instances where a state might be able to bring a claim on behalf of the international community: see Art. 48, International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, 53rd session, UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001. 79 See, e.g., Nottebohm Case (Liechtenstein v. Guatemala), [1955] ICJ Rep. 4, and Iran–United States, Case No. A/18, (1984) 5 Iran–United States Claims Tribunal Reports 251. 80 Indeed, the ICJ has stated that ‘The state must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease … Should the natural or legal persons on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law’: ­Barcelona Traction, Light and Power Company Limited Case (Belgium v. Spain), [1970] ICJ Rep. 3, ­paras. 78–9. 81 Although it did exist earlier to a limited extent: see P.K. Menon, ‘The International Personality of Individuals in International Law: A Broadening of the Traditional Doctrine’, (1992) 1 Journal of Transnational Law and Policy 151. 82 See the International Law Commission Reports on Diplomatic Protection and its changes over time: UN Doc. A/CN.4/484 (1998), and UN Doc. A/CN.4/506 (2000). 83 See Menon, supra note 81; and A. Orakhelashvili, ‘The Position of the Individual in International Law’, (2001) 31 California Western International Law Journal 241. 84 E.g., Soering v. United Kingdom, European Court of Human Rights, (1989) 11 ehrr 439. 85 E.g., Loizidou v. Turkey, European Court of Human Rights, (1995) 20 ehrr 99.

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assumptions it makes about identity being solely linked to territory,86 is no longer the necessary link between a state and a person for an international claim to be made. The traditional, dominant conceptual approach would observe that these international claims can only be brought by non-state actors if the state has ratified the relevant treaty or treaty provision. In addition, no international claim can be brought unless they have exhausted domestic remedies in the relevant state, so that states are given the first opportunity to resolve the issues at the national level, with the international bodies only being involved after all proceedings or other actions at the state level have been effectively exhausted.87 However, states can still be subject to international review without ratifying a particular human rights treaty, such as where the human right is part of customary international law. This is seen in the actions of the UN Sub-commission on the Promotion and Protection of Human Rights and the Inter-American Commission on Human Rights, each of which can make public conclusions about a state if they consider that there is ‘a consistent pattern of gross and reliably attested violations of human rights’ in that state.88 States may even be held to obligations that they have expressly rejected, if their reservations are determined by an international dispute settlement body to be contrary to the object and purpose of a treaty.89 Further, there is an increasing expectation that states will allow individuals to bring claims no matter what the government of that state may wish. For example, since ratification of the European Convention on Human Rights and Fundamental Freedoms is a requirement before a state can be party to the European Union,90 all European states are now, in practice, no longer able to prevent individual claims under that regional international human rights system, effectively giving about 800 million people the right to bring claims under the Convention.91 Even when a state expressly attempts to withdraw from its human rights treaty obligations it can be restricted in what it can do. For example, the Democratic People’s 86

See further R. McCorquodale, ‘International Law, Boundaries and Imagination’, in D. ­Miller and S. Hashmi (eds.), Boundaries and Justice (2001). 87 See D. Shelton, Remedies in International Human Rights Law (1999). 88 See, e.g., UN Economic and Social Council Resolutions 1235 (xlii) and 1503 (xlvii). 89 See UN Human Rights Committee General Comment No. 24, (1995) 2 International ­Human Rights Reports 10. 90 Treaty on European Union, Art. 6, and M. Nowak, ‘Human Rights “Conditionality”, in Relation to Entry to, and Full Participation in, the EU’, in P. Alston (ed.), The EU and Human Rights (1999). 91 Committee of Ministers, Report of the Evaluation Group on the European Court of ­Human Rights, (2001) 22 Human Rights Law Journal 308.

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Republic of Korea (North Korea) was denied the possibility of renouncing its ratification of the International Covenant on Civil and Political Rights by the UN Human Rights Committee; North Korea not only accepted this position but then submitted its first state report for fifteen years to that committee.92 The state’s role as an intermediary, or barrier, between individuals and an international human rights body, while still important in relation to the ability of individuals to bring international claims, is in practice of a permeable nature. International economic law has also seen the significant involvement of non-state actors in its processes and procedures. Non-state actors, usually corporations, can now bring claims to ad hoc arbitration bodies and inter-state bodies, both treaty- and non-treaty-based,93 which can make decisions, usually legally binding and enforceable, in relation to the claim.94 While it remains the state that enables non-state actors to bring claims, either by ratifying the relevant treaty and/or through a contract agreed specifically by the state, the 92

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UN Human Rights Committee General Comment No. 26, (1998) 5 International Human Rights Reports 301; North Korea’s report is found at www.unhchr.ch. A similar situation occurred under the ACHR when Peru sought to withdraw its declaration allowing the Inter-American Court of Human Rights to have jurisdiction under the ACHR. The Court in its Ivcher Bronstein Opinion, Inter-American Court of Human Rights, OC-2/82, 2000, limited the operation of Peru’s declaration on the basis that there was ‘a fundamental … differen[ce] … [between the] international settlement of human rights cases and the peaceful settlement of international disputes involving purely interstate litigation’ (para. 47). This decision, coupled with pressure from other states parties and a change of government in Peru, meant that Peru re-acceded to the Court’s jurisdiction within about 18 months of the withdrawal – conversation with the President of the Inter-American Court of Human Rights, Judge A. Canc¸ ado Trindade, 9 Dec. 2002. See also D. Cassel, ‘Does International Human Rights Law Make a Difference?’, (2001) 2 Chicago Journal of International Law 121; K. Sokol, (2001) 95 AJIL 178; and M. Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in International Law’, (2000) 11 ejil 489, who concludes that because human rights treaties ‘not only serve to place certain limits upon the nature and scope of governmental authority but also contribute to the development of a justifiable basis for that authority (albeit in no unproblematic manner), they cannot therefore simply be regarded as the accidental data of an otherwise disinterested legal system’, and so are not ‘only treaties’ (519). E.g., the Iran–US Claims Tribunal, the UN Compensation Commission and the European Court of Justice,to institutional bodies, such as under the International Chamber of Commerce and the International Centre for the Settlement of Investment Disputes and through the model law of the UN Commission on International Trade Law. See A. Redfern and M. Hunter, International Commercial Arbitration (1999). See also, in relation to public procurement, S. Arrowsmith, ‘The EC Procurement Directive, National Procurement Policies and Better Governance: The Case for a New Approach’, (2002) 27 ­European Law Review 3; and S. Arrowsmith, ‘Review of the gpa: The Role and Development of the Plurilateral Agreement after Doha’, (2003) 6 Journal of International Economic Law 761.

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ability of the state to refuse to allow non-state actors to bring international claims is often quite limited. In many instances the state, particularly a developing state, has little ability to resist the request to bring an international claim by a powerful transnational corporation whose economic power is far greater than that of many states.95 In addition, many of the claims brought by states to international economic legal bodies, such as under the dispute settlement procedures of the WTO, are initiated, sponsored, and prosecuted in effect by the corporations that are affected by the trade action that is the subject of the claim.96 Further, the World Bank has created an Inspection Panel, which allows those who believe that they will be affected detrimentally by a project that is to be funded by the World Bank to ask the panel to investigate their claim, even if the relevant state is opposed to such investigation.97 This pressure from non-state actors for more control over international activity in the economic area will increase with globalization.98 While states can withdraw from these treaties, the practical results of withdrawal in terms of economic, political, and social consequences are now such that a state’s ability to do so has effectively disappeared. Thus, to all intents and purposes, non-state actors now have an independent capacity to bring an international claim in some areas of international economic law. In other parts of the international legal system non-state actors have the ability to bring international claims; for example, the victim of a violation of international criminal law may seek reparations under Article 75 of the Statute of the International Criminal Court,99 and the employees of some 95

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See R. McCorquodale, ‘Human Rights and Global Business’, in S. Bottomley and D. Kinley (eds.), Commercial Law and Human Rights (2002). In addition, many economically powerful states will place pressure on other states to allow non-state actors to bring these claims. E.g., in a case between a corporation (Santa Elena), with a majority of USA shareholders, and Costa Rica before an ICSID Arbitral Tribunal, it was stated that ‘a $US 175,000,000 loan by the Inter-American Development Bank to Costa Rica was delayed at the behest of the US until Costa Rica consented to refer the Santa Elena case to international arbitration’: Santa Elena v. Costa Rica, ICSID Final Award 17 Feb. 2000, para. 25. See S. Croley and J. Jackson, ‘WTO Dispute Procedures, Standard of Review and Deference to National Governments’, (1996) 90 AJIL 193 and S. Charnovitz, ‘Economic and Social Actors in the World Trade Organization’, (2001) 7 ilsa Journal of International and Comparative Law 259. World Bank Resolution Nos. 93–6, 1993. A similar system is operated by the Asian Development Bank and the Inter-American Development Bank. In both instances the claim must be based on a breach of the bank’s own policies rather than on international law alone. See, e.g., S. Joseph, ‘Taming the Leviathans: Multinational Enterprises and Human Rights’, (1999) 46 Netherlands International Law Review 171. W. Schabas, Introduction to the International Criminal Court (2001).

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i­ nternational organizations can bring claims against that organization to an international body.100 There are even arguments that a global people’s assembly should be part of the UN structure.101 The ICJ itself has begun to recognize the changing nature of a claim brought before it by a state. In the LaGrand case, the United States had argued that Germany could not bring a claim based on the diplomatic protection of individuals, but the Court held that ‘this fact does not prevent a state party to a treaty which creates individual rights from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national’.102 In other words, the state was no longer merely asserting its international rights before the ICJ but was asserting the rights of its nationals. Thus there are at least some parts of the international legal system that allow non-state actors an effective independent capacity to bring an international claim. 5

The Creation, Development, and Enforcement of International Law

Non-state actors have been involved directly and indirectly in the creation, development, and enforcement of international law.103 For example, the role of groups of people, as ‘peoples’, was crucial in the legal development of the right of self-determination, because much of its development was contrary to the wishes of the powerful colonial states.104 Its continuing development, application, and enforcement remains largely beyond the control solely of states, as seen in the early stages of the break-up of the former Yugoslavia,105 in the 100 C. Gray, Judicial Remedies in International Law (1987). 101 R. Falk and A. Strauss, ‘On the Creation of a Global People’s Assembly: Legitimacy and the Power of Popular Sovereignty’, (2000) 36 Stanford Journal of International Law 191. 102 LaGrand Case (Germany v. United States) [2001] ICJ Rep. para. 42. The issue of international immunities being personal is also relevant here, although outside the scope of this article; see, e.g., Pinochet Case (R v. Bartle and the Commissioner of Police for the Metropolis ex parte Pinochet), (1999) 38 ilm 581; and Arrest Warrant Case (Democratic Republic of The Congo v. Belgium) [2002] ICJ Rep. 103 One of the essential aspects of an international legal person is ‘the capacity to p ­ articipate in international lawmaking and to enforce rules of international law’: Orakhelashvili, ­supra note 83, at 256. 104 James Crawford has stated that ‘the peoples in whom [the] right is vested are not inherently or necessarily represented by states or by governments of states’: J. Crawford (ed.), The Rights of Peoples (1988), 166. For further discussion of the right of self-determination, see R. McCorquodale, ‘Self-Determination: A Human Rights Approach’, (1994) 43 ICLQ 857. 105 The UK Foreign Secretary said in January 1992 that ‘the first prize, the best prize would have been a Yugoslavia held together on the basis of consent’.

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e­ ventual independence of East Timor,106 and in its application to peoples within states, such as the Quebecois.107 Indeed, the right of self-determination has significantly changed the international legal system, since even the elements taken into consideration as to whether an entity is a state now include whether that entity complies with the right of self-determination, and any dealing with a territory by states requires consideration of the rights of the people in the territory.108 This has been brought about by the actions of people, not directly by states, a fact powerfully articulated by Judge Ammoun of the ICJ: Indeed one is bound to recognize that the right of peoples to self-­ determination, before being written into charters that were not granted but won in bitter struggle, had first been written painfully, with the blood of the peoples, in the finally awakened conscience of humanity.109 Another area of international law where the ‘conscience of humanity’ has been awakened by non-state actors with an effect on the international legal system is in relation to indigenous peoples. In 1532 Francisco de Vitoria considered that the indigenous peoples of South America had some claim to protection under international law,110 and some national courts once considered them as communities distinct from states.111 Nevertheless it was not until late in the twentieth century that substantial renewed consideration was given to their position in the international legal system. While the development of international law in relation to indigenous people remains slow, a significant event was the composing of the 1994 UN Draft Declaration on the Rights of ­Indigenous Peoples. For the first time a UN working group created to formulate a UN declaration included many representatives of indigenous peoples, who participated fully in the debate.112 While states will still determine the content of the final declaration, this innovative process and procedure is s­ ignificant in terms of the clarification of the participants in the international legal system. The draft 106 East Timor became independent on 20 May 2002; see, e.g., C. Jenkins, ‘A Truth Commission for East Timor: Lessons from South Africa’, (2002) 7 Journal of Conflict and Security Law 233. 107 See, e.g., Reference Re Secession of Quebec, Canadian Supreme Court, (1998) 37 ilm 1340. 108 See the European Community Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, (1993) 4 ejil 72. 109 Namibia Opinion (Legal Consequences for States of the Continued Presence of South Africa in Namibia), [1971] ICJ Rep. 22. 110 J. Anaya, Indigenous Peoples in International Law (1996). 111 Ibid. 112 M.C. Lam, At the Edge of the State: Indigenous Peoples and Self-Determination (2000).

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declaration, although composed primarily by indigenous peoples and not yet accepted by states, has become a starting point for the development of international law in this area.113 The participation of non-state actors in the creation, development, and enforcement of international law has, in many areas, been fostered by the growing role of non-governmental organizations (NGOs). NGOs are often a means whereby individuals join together to speak as a collective to the rest of international society.114 Even in earlier centuries their role was relevant, as evidenced by the activities of the Anti-Slavery Society being crucial to the abolition of slavery and by the role of women’s groups in the creation of the League of Nations and the United Nations.115 In more recent times NGOs have been particularly important in the creation of international law, with, for example, NGOs assisting in the drafting of treaties as diverse as the 1989 Convention on the Rights of the Child, as is acknowledged in the travaux preparatoires of that treaty,116 and the 1979 Convention on the Conservation of Migratory Species of Wild Animals.117 NGOs were crucial in organizing a systematic campaign for the adoption the Convention Against Torture,118 the creation of the International Criminal Court,119 and the banning of landmines,120 as well as fostering proposals for the establishment of a UN High Commissioner for Human Rights.121

113 See, e.g., S. Pritchard (ed.), Indigenous People, the United Nations and Human Rights (1998); and C. Price Cohen, Human Rights of Indigenous Peoples (1998). 114 NGOs are often considered to be part of ‘international civil society’: see H. Cullen and K. Morrow, ‘International Civil Society in International Law: The Growth of NGO Participation’, (2001) 1 Non-state Actors in International Law 7. 115 See A. Bianchi, ‘Globalization of Human Rights: The Role of Non-state Actors’, in G. Teubner (ed.), Global Law Without a State (1997). 116 S. Detrick (ed.), The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux preparatoires’ (1992). 117 M. Bowman, ‘International Treaties and the Global Protection of Birds’, (1999) 11 Journal of Environmental Law 87–119 and 281–300. 118 See T. Van Boven, ‘The Role of Non-Governmental Organizations in International Human Rights Standard-Setting: A Prerequisite for Democracy’, (1990) 20 California Western International Law Journal 207. 119 See W. Pace and M. Thieroff, ‘Participation of Non-Governmental Organizations’, in R. Lee (ed.), The International Criminal Court (1999). 120 K. Anderson, ‘The Ottawa Convention Banning Landmines, The Role of International Non-Governmental Organizations and the Idea of International Civil Society’, (2000) 11 ejil 91. 121 A. Clapham, ‘Creating the High Commissioner for Human Rights: The Outside Story’, (1994) 5 ejil 556.

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There are two specific areas of the international legal system where the law has developed primarily as a response to the activities of NGOs. These are international humanitarian law, where the role of the International Committee of the Red Cross (icrc) has been crucial, and issues relating to labour conditions, where trade unions and employer organizations have played a significant role. The icrc’s role is expressly acknowledged in the Geneva Conventions of 1949 and their 1977 Protocols. For example, states can entrust the fulfilment of their duties to the icrc,122 they must co-operate with the icrc during conflicts,123 and the icrc must be consulted before any proposed amendment by a state to the Protocols can be acted on.124 Similarly, trade unions and employer ­organizations are institutionally part of the International Labour Organization, which has adopted many treaties and other international documents.125 The roles that NGOs play in relation to the development of international law are numerous. They include ‘elaborating further interpretative rules in connection with already existing international instruments … [which have come to be] referred to as … authoritative sources’.126 They are involved in international decision-making, usually indirectly, by their participation in international fora, from the United Nations itself to its agencies, and as a distinct part of international conferences. Indeed, NGOs can be ‘sought-after participants in a political process … that allows NGOs to move from the corridors to the sessions’.127 Sometimes this participation can be important as a balance against states’ views, as seen in the Bangkok NGO Declaration on Human Rights that appeared successfully to reduce the impact of the Asian states’ declaration in relation to the issue of the cultural relativism of human rights.128 NGOs can be essential to the continuing operation of some international bodies, as the African Commission on Human Rights has acknowledged,129 through their provision of information, people, and resources. In the area of international environmental law the role of NGOs has been particularly crucial, for example, in relation to the protection of birds, where it has been shown that

122 Art. 10. 123 Art. 81. 124 Art. 97 Protocol i, and Art. 24 Protocol ii. 125 See www.ilo.org. 126 Van Boven, supra note 118, at 357. 127 K. Knop, ‘Re/statements: Feminism and State Sovereignty in International Law’, (1993) 3 Transnational and Contemporary Legal Problems 293, at 310. 128 H. Steiner and P. Alston, International Human Rights in Context (2000), 549. 129 See A. Motala, ‘Non-Governmental Organizations in the African System’, in M. Evans and R. Murray (eds.), The African Charter on Human and Peoples’ Rights (2002).

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the role of [NGOs] has proved to be of vital importance. Not only have they regularly pressed for the adoption of agreements … they have frequently shown a willingness to undertake much of the preliminary drafting work necessary to make such projects a reality. Insofar as these agreements, once concluded, have required to be sustained by technical resources and expertise, NGOs have been prominent in the provision of such s­ upport … [In relation to one treaty,] one such [NGO] has also provided the administrative infrastructure for the establishment of a secretariat.130 This extensive role has been acknowledged, with NGOs being parties, with states, to memoranda of understanding concerning conservation measures relative to particular species, responsibilities being placed both on states and on NGOs under these memoranda.131 NGOs are also active participants in the enforcement of international law. In many instances they assist non-state actors in bringing international claims, or bring claims themselves, and they provide information to international bodies that will often not be provided by states. These roles are now accepted in practice by states132 and by the rules of procedure of the international bodies,133 and are even specifically referred to in some treaties, such as Article 45 of the Convention on the Rights of the Child. They have also used national courts and political processes to force states to comply with their international obligations.134 In addition, NGOs operate as fact-finding bodies, lobbyists, and advocates in a way that generates publicity about violations of international law. These can be most effective means of enforcing states’ compliance with international law in an international legal system where other forms of enforcement are often lacking or rarely operate, and NGOs can sometimes act in ways that states cannot act.135 NGOs can have such a powerful effect on states 130 Bowman, supra note 117, at 298. 131 Ibid. See also Cullen and Morrow, supra note 114. 132 See, e.g., European Convention on the Recognition of the Legal Personality of International NGOs 1991, the UN Declaration on the Rights of Human Rights Defenders 1998, and the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, UN Doc. A/RES/53/144. 133 See, e.g., Protocol 11 of the European Convention on Human Rights and Rules of Procedure of the Inter-American Court of Human Rights, approved by the Court at its 49th session, 16–25 Nov. 2000. 134 See, e.g., C. Vazquez, ‘Treaty-Based Rights and Remedies of Individuals’, (1992) 92 Columbia Law Review 1082. 135 E.g., the actions of Greenpeace in relation to the disposal of Brent Spar oil rig by Shell: H. Kenshall, Risk, Social Policy and Welfare (2002) 36.

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that some states will act directly against them, even if this is in breach of international law. Thus the persistent activities of Greenpeace, an environmental NGO, in their campaign against French nuclear testing in the South Pacific led to the sinking of the Greenpeace ship Rainbow Warrior in a New Zealand harbour in 1985 by French government agents.136 The participation of NGOs is variable, not just in their activities but in their aims for the international legal system. NGOs, and other non-state actors, can be self-interested, insular, and resistant to dialogue with those that they perceive as the ‘other’. For example, refugees are often seen as ‘the other’: The successful elimination of internal frontiers [in Europe] will of course accentuate in a symbolic (and in a very real sense too) the external frontiers of the Community…. In one way, the more that these external boundaries are accentuated, the greater the sense of internal ­solidarity…. But in the very concept of [European] citizenship a distinction is created ­between the insider and outsider that tugs at their common humanity.137 Because of their different objectives non-state actors can act in opposing ways, such as during the Beijing Conference on Women;138 they can operate as a ‘largely unregulated free-for-all’,139 and they are often partial in their interests, few NGOs, for example, operating in some areas of international concern,

136 Rainbow Warrior Arbitration (New Zealand v. France), Special Arbitration Tribunal, (1990) 82 ilr 499. As a consequence of this breach of international law, under an accord France agreed to pay compensation to New Zealand for interference in its sovereignty (though not to Greenpeace), and the two agents, who had been sentenced in New Zealand to ­10-year prison terms for manslaughter and sabotage, were later transferred for three years’ confinement at a French military base on Hao atoll. New Zealand protested when they were allowed home early (ostensibly for medical reasons), and in May 1990 a UN arbitration panel ruled that France had violated the accord. 137 Joseph Weiler, ‘Thou Shall Not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-EC Nationals – A Critique’, (1992) 3 ejil 65, at 68. See also I. Gunning, ‘Expanding the International Definition of Refugee: A Multicultural View’, (1989–90) 13 Fordham International Law Journal 35; and A. Macklin, ‘Refugee Women and the Imperative of Categories’, (1995) 17 Human Rights Quarterly 213. 138 See D. Otto, ‘A Post-Beijing Reflection on the Limitations and Potential of Human Rights Discourse for Women’, in K. Askin and D. Koenig (eds.), Women and International Human Rights Law, Vol. i (1999). 139 B. Kingsbury, ‘First Amendment Liberalism as a Global Legal Architecture: Ascriptive Groups and the Problems of the Liberal NGO Model of International Civil Society’, (2002) 3 Chicago Journal of International Law 183, at 193.

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such as poverty.140 NGOs have similar problems to the regimes in many states in terms of their lack of legitimacy, few democratic processes, and limited representativeness.141 They can also reflect the hierarchies and political agendas within states.142 Nevertheless, it is beyond doubt that NGOs and other non-state actors have participated in the creation, development, and enforcement of international law.143 They have brought new ideas, sustained focus, and pressure, and are an effective method of action in the international legal system. They provide a means to hold states and state-based organizations to account and they can seek to increase the transparency of international decision-making. Much of their activity, such as participation in international fora, is only possible because states allow it to happen, but not all of it is controlled by, or controllable by, states. By their actions NGOs and other non-state actors influence not only the concept and content of international law but also the way in which it is applied by states and the extent to, and manner in, which a state consents to rules of international law. So it is clear that such non-state actors as individuals, groups, NGOs, and other entities do participate in the international legal system independently of state consent. As a consequence there has come into being, as Andrea Bianchi comments, ‘[a] peculiar process of interaction between traditional law mechanisms and transnational social processes with the mediation of non-state actors [as] a novel method of law-making and law enforcement’.144 The participation of non-state actors in the international legal system may not be the traditional method of international law-making, but it is now an accepted method. The international legal system is still dominated by states, but there are few  areas of that system where there is no participation at all by non-state actors. So the concept that only states create, develop, and enforce international law is not tenable today. That concept has been shown not to reflect the current practice of international law and is inappropriate for the twenty-first century. 140 See C. Jochnick, ‘Confronting the Impunity of Non-state Actors: New Fields for the Promotion of Human Rights’, (1999) 21 Human Rights Quarterly 56. 141 Cullen and Morrow, supra note 114. 142 Charlesworth and Chinkin, supra note 5, esp. at 169. 143 P. Sands, ‘The Environment, Community and International Law’, (1989) 30 Harvard International Law Journal 393, notes that ‘In excluding these non-governmental organizations from fuller participation in the affairs of international society, the international legal system establishes a notion of community and participant which fails to reflect an important reality and which lacks effectiveness’. 144 Bianchi, supra note 115, 201.

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The International Legal System in the Twenty-First Century

It has been demonstrated above that in reality non-state actors have a direct, influential, and independent participation in the international legal system. This participation is currently ignored by the adherents to the traditional doctrine. The views of these adherents are important because they affect much of our understanding, and that of states,145 as to what the international legal system itself is. In their conceptual approaches those who write about the international legal system seek to explain the law-making processes of that system and, in so doing, offer reflections on the role of non-state actors in that system. In their conceptual approaches those who write about the international legal system seek to explain the law-making processes of that system and, in so doing, offer reflections on the role of non-state actors. It has been argued, for example, that the ideas of Emmerich de Vattel in 1758 ‘determined the course of history’ as he propounded the sovereignty theory of the state which is dominant today, in contrast to the more inclusive ‘all humanity’ idea that had been put forward by some previous exponents of international law.146 Some international legal scholars remain captive to states and to power, though others can be the ‘gentle civilizer[s] of nations’.147 It is only now that some international lawyers consider that ‘the burgeoning canon of individual rights has begun to crack open the previously encrusted [positivist] Vatellian system’.148 In the twenty-first century it is vital that new conceptual approaches are adopted reflecting the reality of the international legal system. International lawyers have the ability to conceptualize and interpret the international legal system in a way that changes perceptions. After all, as Karen Knop has noted, ‘the choice of an interpretive theory determines how to speak; it sets limits and terms of the conversation about meaning that may be had in international law’.149 This section will show how a conceptual approach – called an ‘inclusive’ approach – that acknowledges and applies the reality of participation by both states and non-states in the international legal system can change the understanding of that system. An inclusive conceptual approach would change the interpretation of the sources, or foundations, of the international legal system. These ‘sources’ (such a term itself being exclusionary, since it is a term that is bound up in 145 See examples given in Brownlie, supra note 20, at 24–5. 146 P. Allott, International Law and International Revolution: Reconceiving the World (1989), 14. 147 M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2001). 148 T. Franck, The Empowered Self: Law and Society in the Age of Individualism (1999), 281. 149 Knop, supra note 32, at 4; see also Paulus, supra note 4.

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i­ nternational legal mystique) have been traditionally interpreted as being only those set out in Article 38 of the Statute of the ICJ and as being related only to actions by states.150 This is despite the fact that Article 38 does not mention the word ‘sources’ and that that article is expressly directed to the use of the ICJ in its interpretation of disputes before it. Since contentious actions can only be brought to the ICJ by states and not by other participants in the system, an interpretation of ‘sources’ of international law to include only actions by states is a deliberate exclusive limitation on what constitutes the foundations of the international legal system. However, another, more inclusive, definition of ‘sources’ is possible, even relying on the terms of Article 38. For example, Article 38(b) refers to ‘international custom, as evidence of a general practice accepted as law’, and Article 38(c) refers to ‘the general principles of law recognized by civilised nations’. Neither of these Articles expressly refers to ‘states’ or state actions, state practice, or state views. Indeed, Article 38(c), although expressing a strong colonialist ideology, acknowledges the difference between states and nations, as the vast majority of states contain more than one nation within their borders.151 Therefore if reliance is placed on Article 38 as reflecting (some or even all of) the methods to determine the foundations of the international legal system, it is conceptually coherent to include actions, practices, and views of non-state actors in the determination of ‘sources’. In an international legal system where non-state actors are participants, the practice of these actors, their role in the creation, development, and enforcement of law, and their actions within their national communities (which can become part of ‘state practice’), can, and should, form a part of customary international law and the general principles of law. This is especially important in areas such as human rights and the environment, where, as shown above, a simple reliance on state practice distorts the reality of participation and offers a narrow, exclusive, and silencing explanation of the relevant law. For example, in relation to the prohibition on torture, a simplistic examination of state practice may lead to the conclusion that states do still practise torture and that there can therefore be no international legal prohibition on it. Yet a fuller examination, not just of the statements by states but also of the activities of non-state actors, reveals a different picture. Indeed, the determination by international human rights courts and other dispute settlement bodies that there is a customary international legal prohibition on torture has relied on the statements and actions of non-state actors 150 Though it may include actions by states acting as collectives, such as through General Assembly resolutions: see Nicaragua v. USA, supra note 46, at 14. 151 See, e.g., G. Gottlieb, Nation Against State (1993).

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and even led to the extension of the legal responsibility for acts of torture to include those situations where those acts have been carried out by non-state actors.152 This acceptance that customary international law and general principles of law are not limited to state actions is already happening in other areas of the international legal system. For example, in relation to actions over territory and jurisdictional powers, international law already acknowledges the participation of non-state actors as part of that law. As has been shown above with the right of self-determination, the actions of people have been vital and have changed the way in which territory and jurisdiction are conceived.153 It is the wishes and identities of the people that are vital in these areas of international law, not only the state and state borders, because whether an entity is a state is partly determined by whether that entity complies with the right of selfdetermination, and any dealing with territory by states requires consideration of the rights of the people on the territory. Indeed, the participation of peoples in this area opens up the possibility of a less state-based, male, and territorial concept of the right of self-determination itself.154 As Judge Dillard in the ICJ said, ‘it is for the people to determine the destiny of the territory and not the territory the destiny of the people’.155 All these developments have led international judges to consider that the actions of non-state actors ‘cannot be completely discounted in the formation of customary international law today’.156 These comments by judges in an international forum expose the inherent dishonesty underlying the acceptance by the traditional doctrine that only states create, develop, and enforce international law, because that doctrine ignores the vital role that the interpretation of law plays in the law itself, as Karen Knop confirms.157 Even if it is assumed that states are the primary creators of international law, it cannot also be assumed that this creation is the end point of international law. Rather, the international legal system is a dynamic system, so that its development continues after the initial creation, and 152 For a fuller explanation see R. McCorquodale and R. La Forgia, ‘Taking off the Blindfolds: Torture by Non-State Actors’, (2001) 1 Human Rights Law Review 189. 153 See S. Marks, The Riddle of all Constitutions: International Law, Democracy and the Critique of Ideology (2000); I.M. Young, Inclusion and Democracy (2000); and Knop, supra note 32. 154 See Knop, supra note 32, where she notes that ‘identity refers to international law’s ­construction of the identity of a group; the capacity of international law, as a type of ­language, to describe and thereby to shape our perception of a group, its history and ­entitlements’ (4). 155 Judge Dillard, Separate Opinion in Western Sahara Opinion, [1975] ICJ Rep. 12, at 122. 156 Case Concerning the Arrest Warrant (Belgium v. Congo) [2002] ICJ Rep. para. 27 (Judge van den Wyngaert, Dissenting Opinion). 157 See text at note 149.

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new forms and understandings of what is international law arise. This position is most clearly seen in the role of international dispute settlement bodies. The vast majority of these bodies, such as the ICJ, the UN Human Rights Committee, the Inter-American Court of Human Rights, and the panels of the WTO, comprise non-state actors and independent experts in their fields. These individuals reach conclusions about international disputes, including disputes between states, by the interpretation and clarification of, usually, treaties and customary international law. In doing this they can change that law as national courts can change the understanding of national law by their decisions,158 and it is clear that the judges of the ICJ make international law when they decide what is the relevant customary international law or the appropriate interpretation of a treaty. This was seen starkly in the LaGrand case, when the ICJ decided that an interim measures order by that Court was legally binding on a state party to the case, even though there is no mention in either the Statute of the ICJ or the Court’s own rules of procedure that this is the legal position.159 In so doing it created new international law which was binding on states.160 Making such law may be largely dependent on an individual judge’s concept of the international legal system.161 A similar statement can be made with regard to members of other international dispute settlement bodies and international bodies which seek to clarify international law, such as the International Law Commission.162 The views of these individuals, as eminent jurists, are, of course, a ‘subsidiary means for the determination of rules of [international] law’.163 International dispute settlement bodies usually also decide who is to appear before them, and in international criminal law an international body decides 158 E.g., the change to the understanding of the interaction between UK law and European Union law as a consequence of the decision by the UK House of Lords in R v. Secretary of State for Transport ex parte Factortame [1990] 2 AC 85, [1991] 1 AC 603. 159 LaGrand Case, supra note 102, paras. 102–3. 160 See commentary on the case in, e.g., (2002) 96 AJIL 210, and (2002) 51 ICLQ 449. 161 See, e.g., the different approaches of the ICJ Judges in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons Opinion (General Assembly), [1996] ICJ Rep. 162 Individuals have also been very important in the drafting of guidelines on human rights, such as the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, (1985) 7 hrq 1; and the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, (1987) 9 hrq 121; and as members of expert panels in international organizations, from the World Health Organization to the International Atomic Energy Agency – see Brownlie, supra note 20, at 24–5. 163 Art. 38(d) Statute of the ICJ. The influence of such jurists can be seen in, e.g., the inclusion of persecutions on the basis of gender being considered as crimes against humanity.

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who is to be prosecuted,164 while the arguments put to them are often drafted and crafted by non-state actors even if the actual claimant is a state.165 These decisions and arguments can affect the development of international law both directly and indirectly. Indeed, it is possible to foresee the ICJ allowing NGOs to submit information and arguments to the Court in contentious cases, this procedure having been adopted by almost all other international dispute settlement bodies.166 This will happen because [ICJ] judgments affect not only the rights and obligations of states parties to the dispute, but also increasingly the rights and obligations of individuals, [and] justice requires that [NGOs] representing the public interest have the opportunity to submit information and arguments to the Court. Such participation reinforces the concept of obligations erga omnes and can lead to enhancing the role of the Court and the long-term development of international law.167 Even those areas of international law that are related almost exclusively to interactions between states, such as diplomatic and consular relations, cannot be seen as distinct from both the impact on individuals and the obligations of states to change their national law to protect those individuals.168 As well, other 164 E.g., there is the independent ability of the Prosecutors of the International Criminal Tribunals to decide whom to indict and when (which also influenced the drawing up of the role of the Prosecutor in the International Criminal Court) – see S. Fernandez de Gurmendi, ‘The Role of the Independent Prosecutor’, in Lee, supra note 119, at 175. 165 This often occurs in international economic law, where the main arguments put to the WTO panels are often drafted by transnational corporations – see S. Charnovitz, ‘Economic and Social Actors in the World Trade Organization’, (2001) 7 ilsa Journal of International and Comparative Law 259. 166 In East Timor Case (Portugal v. Australia), [1995] ICJ Rep. 90. Judge Vereshchetin, in his Separate Opinion, said (at 137–8), ‘Since the judgment is silent on this matter, one might wrongly conclude that the people, whose right to self-determination lies at the core of the whole case, have no role to play in the proceedings. This is not to suggest that the Court could have placed the States Parties to the case and the people of East Timor on the same level procedurally. Clearly, only States may be parties in cases before the Court (Art. 34 of the Statute of the Court). This is merely to say that the right of a people to selfdetermination, by definition, requires that the wishes of the people concerned at least be ascertained and taken into account by the Court’. 167 D. Shelton, ‘The Participation of Nongovernmental Organizations in International Judicial Proceedings’, (1994) 88 AJIL 611, at 642. 168 This is seen most starkly in LaGrand Case, supra note 102, which also showed how the areas of exclusive domestic jurisdiction of states are diminishing: see M. Tinta, ‘Due Process and the Right to Life in the Context of the Vienna Convention on Consular Relations: Arguing the LaGrand Case’, (2001)12 ejil 363.

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international bodies, such as the Law of the Sea Tribunal, will need to consider directly the activities and values of non-state actors when they have to consider arguments about matters including the common heritage of mankind.169 Some areas of international law, such as the law of armed conflict and of state responsibility, have seemed to be resistant to participation by non-state actors. When people are killed by states, even in a collective action by states, they are often discounted as being ‘collateral damage’.170 Even the International Law Commission’s articles on state responsibility,171 while innovatively suggesting that claims can be brought in the interest of the international community, still limit this to where a claim is made by a state.172 Under an inclusive international legal system, the consequences of actions on the lives of people – or what Upendra Baxi calls ‘preventable human suffering’173 – would be part of decisions on international legality, so that structural justice for all would be the core issue and not state power or ‘international crises’.174 How this inclusive approach can operate in practice is seen in one of the decisions of the International Criminal Tribunal for the former Yugoslavia: A state-sovereignty-oriented approach [of international law] has been gradually supplanted by a human-being-oriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well. It follows that in the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned. Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign states are 169 Arts. 136 and 137 of the Convention on the Law of the Sea 1982 provides that the deep seabed ‘and its resources are the common heritage of mankind … [and] all rights in the resources … are vested in mankind as a whole’. 170 See, e.g., the discussion of the impact of armed conflict on women by Charlesworth and Chinkin, supra note 5, Ch. 8; and B. Graham, Washington Post, 21 Feb. 2003, A18. 171 International Law Commission (ILC), Articles on Responsibility of States for Internationally Wrongful Acts (formerly State Responsibility), International Law Commission Report, 53rd session, 2001. 172 For criticism of state responsibility generally, see C. Chinkin, ‘A Critique of the Public/ Private Dimension’, (1999) 10 ejil 387. 173 U. Baxi, ‘Voices of Suffering, Fragmented Universality and the Future of Human Rights’, in B. Weston and S. Marks (eds.), The Future of International Human Rights (1999). 174 See H. Charlesworth, ‘International Law: A Discipline of Crisis’, (2002) 65 Modern Law Review 377.

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engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign state? If international law, while of course duly safeguarding the legitimate interests of states, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight.175 This statement is a powerful indication of how an inclusive international legal system is conceptually and practically appropriate for the twenty-first century. Further, by applying this approach when poverty or access to cheap AIDS drugs are at issue, they will not be dismissed as inconsistent with states’ interests in free trade, but will be dealt with as an international legal issue of deep concern to those who are not the elite.176 An inclusive approach would also mean that concerns over so-called ‘failed states’177 would not be seen as a problem of the international legal system but as a neo-colonialist notion.178 The traditional doctrine considers that a state has ‘failed’ when there is no central governmental authority with which other states can deal, as in Somalia.179 This approach reduces international legal interaction to only that between states, and ignores the reality that there are people behind the artificial entity of a state. In a world of many internal conflicts with international ramifications and of non-state actors whose actions directly affect people around the world, then any conceptual approach that is limited to states can only ever see these non-state actors as operating outside the international legal system. An inclusive conceptual approach would enable those non-state actors to participate internationally without the limitations of the structure of the state.180 This non-state participation will allow 175 Prosecutor v. Tadic´, Decision on the Defence Motion for Interlocutory Motion for Appeal on Jurisdiction, IT-94-1-AR72, 2 Oct. 1995. 176 See, e.g., S. Skogly, ‘Is There a Right not to be Poor?’, (2002) 2 Human Rights Law Review 59; and S. Joseph, ‘Pharmaceutical Corporations and Access to Drugs: The “Fourth Wave” of Corporate Human Rights Accountability’, (2003) 25 Human Rights Quarterly 425. 177 See, e.g., speech by United Kingdom’s Foreign Secretary, Jack Straw, on ‘Failed and Failing States’, on 6 Sept. 2002 (available on the UK Foreign and Commonwealth Office web-site: www.fco.gov.uk). 178 See R. Gordon, ‘Saving Failed States: Sometimes a Neocolonialist Notion’, (1997) 12 American University Journal of International Law and Policy 903. 179 See, e.g., the United Nations’ Special Rapporteur on the Situation of Human Rights in Somalia, UN Doc. E/CN.4/1999/103 (1999) and UN Doc. E/CN.4/1999/103.Add.1 (1999). 180 Sometimes non-state entities can deliberately hide behind the state in order to act internationally. F. Megret, ‘“War”? Legal Semantics and the Move to Violence’, (2002) 13 ejil, notes that ‘Al-Qaida is not so much an aspiring sovereign actor taking over a state[,] as a

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those ­communities that exist across boundaries, such as the Kurds, or within powerful states, such as the Tibetans, to participate directly in the international legal system instead of through occasional comments at UN meetings.181 It will acknowledge that armed opposition groups that seek international credibility must also accept some international legal responsibility.182 Even those who commit acts of terrorism can be dealt with directly within the international legal system instead of trying to extend the responsibility of states to include harbouring terrorists. This latter possibility can be glimpsed in Security Council Resolution 1373 (2001), passed in the wake of the terrorist actions in the United States on 11 September 2001. In it the Security Council stated that Every state has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another state or acquiescing in organized activities within its territory directed towards the commission of such acts.183 This statement makes it clear that the Security Council considers that even acquiescence by a state in terrorist activities by non-state actors is a breach of international law by that state. This is consistent with the approach of the international human rights supervisory bodies to expand the responsibility of states for actions by non-state actors.184 However, the Resolution also Declares that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations.185 This paragraph does not expressly link terrorist activities to state responsibility. Rather, it indicates that terrorist activities by themselves are a breach of

181 182 183 184 185

non-state actor that neither speaks or wants to speak the political grammar of statehood, preying on what is itself the collapsed semblance of a sovereign’. See, e.g., N. White, The United Nations System: Toward International Justice (2002). See, e.g., International Council on Human Rights, Ends and Means: Human Rights ­Approaches to Armed Groups (2000). Resolution 1373 (2001) 28 Sept. 2001, Preamble. This reaffirms part of the Declaration on Friendly Relations 1970 (General Assembly Resolution 2625 (xxv) and Security Council Resolution 1189 (1998)). See, e.g., Velasquez Rodriguez v. Honduras, (1989) 28 ilm 294; Ergi v. Turkey (A 23818/94), ECtHR, Judgement of 28 July 1998; Timurtas v. Turkey (A 23531/94), ECtHR, Judgement of 13 June 2000; and A v. UK (1999) 27 ehrr 611. Ibid., at para. 5. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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i­nternational law, no matter who is undertaking them. Since the resolution does not refer to crimes against humanity or other acknowledged areas of ­individual responsibility under international law, they must be asserting that terrorist actions per se give rise to individual responsibility. Therefore certain actions by non-state actors (being terrorist actions) are in breach of international law and, it must be assumed, give rise to international obligations by those non-state actors. While Security Council resolutions are not automatically international law, they can indicate the direction in which international law may be headed.186 Indeed, a similar approach of placing direct international legal responsibilities on non-state actors has been advocated in relation to international human rights law.187 Many of these developments allowing participation of non-state actors in the international legal system will be resisted by some governments and by some non-state actors. However, in my view, the participation of non-state actors will continue to increase in the twenty-first century. 7 Conclusions ‘We the Peoples of the United Nations’ were determined to establish new values and methods to create the international society after 1945. The current dominant concept of the international legal system has stifled these values and ignored the reality of the participation of non-state actors in this system. It has even fostered conflict at times by resisting claims by non-state actors, by limiting the dialogue between participants in the system, and by fostering a limited view of how international law is created.188 186 See, e.g., M. Koskenniemi, ‘The Place of Law in Collective Security’, (1996) 17 Michigan Journal of International Law, 455; V.S. Mani, ‘The Role of Law and Legal Consideration in the Functions of the United Nations’, (1995) 35 Indian Journal of International Law, 91; J. Alvarez, ‘Judging the Security Council’, (1996) 90 AJIL 1; B. Graefrath, ‘Leave to the Court What Belongs to the Court – The Libyan Case’, (1993) 4 ejil 184; and M. Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (1999), esp. at 40–3. 187 Andrew Clapham argues that there are horizontal obligations on all people: see A. Clapham, Human Rights in the Private Sphere (1993). See also D. Friedmann and D. BarakErez (eds.), Human Rights in Private Law (2001); and note J. Raz, ‘Legal Rights’, (1984) 4 Oxford Journal of Legal Studies 1: ‘there is no closed list of duties which correspond to the right…. A change of circumstances may lead to the creation of new duties based on the old right’. For further discussion see McCorquodale and La Forgia, supra note 152. 188 This can be reinforced by the situation where the state and armed opposition groups within the state ‘end up inside the same culture of violence’: M. Ignatieff, Blood and Belonging (1994), 158. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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An inclusive conceptual approach to the international legal system would acknowledge that non-state actors have values, identities, and roles distinct from the geographic limitations of states and that these are reflected both in their daily lives and in the international legal system.189 States have a role – a primary role at the moment – but it is not an exclusive role in that system. The participants in the international legal system are no longer just states. Non-state actors have distinct and independent international rights and responsibilities and an ability to bring claims, as well as a clear role in the creation, development, and enforcement of international law separate from that of states. This participation will expand throughout the twenty-first century, particularly as the ‘requirements of international life’ demand it.190 It is the role of international lawyers to develop concepts and practices consistent with this trend, rather than being, to use Philip Alston’s phrase, ‘handmaidens’ to states.191 There is great power in the language of international law and a pull towards compliance with it.192 International lawyers have the ability to conceptualize and interpret the international legal system in a way that changes perceptions. While a ‘belief in the virtue and omnipresence of the sovereign state supports and no doubt tends to generate a particular understanding of [international] law’,193 a belief in the virtue of inclusive participation of states and non-states offers an alternative and, it is argued, more accurate interpretation of the international legal system.194 Such an interpretation will enable non-state actors to be heard as active participants in a more inclusive and decentralized international legal system which ‘exists for, and serves, the needs and hopes of people everywhere’.195 189 It should enable a more critical reflection on what is ‘international law’: see, e.g., Koskenniemi, supra note 5; D. Kennedy, ‘A New Stream of International Legal Scholarship’, (1988) 7 Wisconsin International Law Journal 1; P. Allott, ‘The Concept of International Law’, (1999) 10 ejil 31; and Charlesworth and Chinkin, supra note 5. 190 As the ICJ noted in the Reparations for Injuries Opinion – see text at footnote 54. 191 P. Alston, ‘The Myopia of the Handmaidens: International Lawyers and Globalization’, (1997) 8 ejil 435, at 435; and response by S. Scott, ‘International Lawyers: Handmaidens, Chefs, or Birth Attendants? A Response to Philip Alston’, (1998) 9 ejil 750. 192 See, e.g., D. Kritsiotis, ‘The Power of International Law as Language’, (1998) 34 California Western Law Review 397; and P. Allott, ‘New International Law’, in Allott et al., Theory and International Law: An Introduction (1991). 193 N. MacCormick, ‘Beyond the Sovereign State’, (1993) 56 Modern Law Review 1, at 16. 194 S. Marks, The Riddle of All Constitutions (2000), notes, ‘What you hold to be true about the world depends on what you take into account, and what you take into account depends on what you think matters’ (121). 195 See text at note 1.

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Chapter 45

James Crawford, The Creation of States in International Law, 2007 Comment by Professor Robert McCorquodale, Director, BIICL Despite the centrality of “the State” in international law, this was the first book devoted to the topic of the creation of States. It was the PhD thesis of James Crawford, who later became the Whewell Professor of International Law at the University of Cambridge. This is a very thorough and detailed study of an area where the relevance of legal principles – in contrast to factual matters and political decision-making – had not generally been appreciated. This is most clearly seen in his consideration of the criteria for Statehood, where there is close review of both State practice and the literature to analyse both broad issues and specific entities. In so doing, he acknowledges the combination of fact and law that is involved in the creation of a State and the influence of law on the politics of recognition of a State. He also examines the role of international organisations, and the commencement, continuity and termination of States. His second edition considers many of the key issues between 1977 and 2006. The importance of this book is in its clear position that international law does matter in the creation of States. It also avoids strict, exclusive criteria for Statehood and recognition, which has influenced State practice and the development of international law. While there is limited engagement with concepts such as Third World/post-colonialism theories, he does consider a wide range of instances of claims for Statehood in a valuable and effective manner. This book is an essential reference point for any consideration of Statehood in international law.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_046

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J. Crawford, The Creation of States in International Law (2nd edn, Oxford University Press 2007). Excerpt: Chapter 1, ‘Statehood and Recognition’, pp. 3–6 and 10–36. Reproduced with the kind ­permission of Oxford University Press.

Statehood and Recognition* James Crawford The formation of a new State is … a matter of fact, and not of law.1

…

[T]he existence of a State is a question of fact and not of law. The criterion of statehood is not legitimacy but effectiveness….2

…

[N]otre pays s’est toujours fondé, dans ses décisions de reconnaissance d’un État, sur le principe de l’effectivité, qui implique l’existence d’un pouvoir responsable et indépendent s’exerçant sur un territoire et une population.3

∵ 1.1 Introduction At the beginning of the twentieth century there were some fifty acknowledged States. Immediately, before World War II there were about seventy-five. By 2005, there were almost 200—to be precise, 192.4 The emergence of so many * [Editors’ note: Footnotes have been amended to continuous order for the purpose of the present Anthology]. 1 Oppenheim (1st edn), vol. 1, 264, §209; (8th edn), vol. 1, 544, §209. See also (9th edn) vol. 1, 677, §241. 2 Foreign Minister Eban (Israel), arguing against a request for an advisory opinion of the International Court on the status of Palestine: scor 340th mtg, 27 July 1948, 29–30. 3 President Mitterand (France), with respect to Palestinian statehood, reported in Le Monde, 24 November 1988, 7, col 1. 4 That is to say, 191 UN Members plus the Vatican City. This does not include Taiwan, Palestine or various claimant entities discussed in Chapter 9. See Appendix i, p. 725 for a complete list [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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new States represents one of the major political developments of the t­ wentieth century. It has changed the character of international law and the practice of international organizations. It has been one of the more important sources of international conflict. But the fact that some development is of importance in international relations does not entail that it is regulated by international law. And it has long been asserted that ‘The formation of a new State is … a matter of fact, and not of law.’5 This position was supported by a wide spectrum of legal opinion. For example, one of the most common arguments of the declaratory theory (the theory that statehood is a legal status independent of recognition) is that, where a State actually exists, the legality of its creation or existence must be an abstract issue: the law must take account of the new situation, despite its illegality.6 Equally, so it is said, where a State does not exist, rules treating it as existing are pointless, a denial of reality. The criterion must be effectiveness, not legitimacy. On the other hand, according to the constitutive theory (the theory that the rights and duties pertaining to statehood derive from recognition by other States), the proposition that the existence of a State is a matter of fact seems axiomatic. If ‘a State is, and becomes, an International Person through recognition only and exclusively’,7 and if recognition is discretionary, then rules granting to an unrecognized community a ‘right to statehood’ are excluded. Neither theory of recognition satisfactorily explains modern practice. The declaratory theory assumes that territorial entities can readily, by virtue of

5 Oppenheim (1st edn), vol. 1, 264, §209(1); cf Erich (1926) 13 HR 427, 442; Jones (1935) 16 by 5, 15–16; Marston (1969) 18 ICLQ 1, 33; Arangio-Ruiz (1975–6) 26 OzföR 265, 284–5, 332. See also the formulation in Willoughby, Nature of the State, 195: ‘Sovereignty, upon which all legality depends, is itself a question of fact, and not of law.’ See also Oppenheim (8th edn), vol. 1, 544, §209; and the somewhat different formulation in Oppenheim (9th edn), vol. 1, 120–3, §34. 6 Cf Chen, Recognition, 38 (‘a State, if it exists in fact must exist in law’). This proposition is a tautology, and the problem of separate non-State entities was not in issue in the passage cited. Elsewhere Chen accepts the view that statehood is a legal concept not a ‘physical existence’ (ibid, 63), as well as the possibility of the illegality of the creation or existence of a ‘State’ (ibid, 8–9). Cf Charpentier, Reconnaissance, 160–7. Lauterpacht’s formulation is preferable: ‘The guiding juridical principle applicable to all categories of recognition is that international law, like any other legal system, cannot disregard facts and that it must be based on them provided they are not in themselves contrary to international law’ (Recognition, 91). But in view of the gnomic character of this proposition, it can hardly be regarded as a ‘guiding juridical principle’. For Lauterpacht’s interpretation of the formula that the existence of a State is a matter of fact only see ibid, 23–4. ‘To predicate that a given legal result is a question of fact is to assert that it is not a question of arbitrary discretion … The emphasis … on the principle that the existence of a State is a question of fact signifies that, whenever the necessary factual requirements exist, the granting of recognition is a matter of legal duty’. 7 Oppenheim (1st edn), vol. 1, 109, §71; (8th edn), vol. 1, 125–7, §71 (modified with emphasis on limits to the discretion of the recognising State). Cf Jennings and Watts, Oppenheim, 130–1, §40. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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their mere existence, be classified as having one particular legal status: it thus, in a way, confuses ‘fact’ with ‘law’.8 For, even if effectiveness is the dominant principle, it must nonetheless be a legal principle. A State is not a fact in the sense that a chair is a fact; it is a fact in the sense in which it may be said a treaty is a fact: that is, a legal status attaching to a certain state of affairs by virtue of certain rules or practices.9 And the declaratory theorist’s ­equation of fact with law also obscures the possibility that the creation of States might be regulated by rules predicated on other fundamental principles—a possibility that, as we shall see, now exists as a matter of international law. On the other hand, the constitutive theory, although it draws attention to the need for cognition, or identification, of the subjects of international law, and leaves open the possibility of taking into account relevant legal principles not based on ‘fact’, incorrectly identifies that cognition with diplomatic recognition, and fails to consider the possibility that identification of new subjects may be achieved in accordance with general rules or principles rather than on an ad hoc, discretionary basis. Fundamentally the question is whether international law is itself, in one of its most important aspects, a coherent or complete system of law.10 According to predominant nineteenth-century doctrine there were no rules determining what were ‘States’ for the purposes of international law; the matter was within the discretion of existing recognized States.11 The international law of that period exhibited a formal incoherence that was an expression of its radical decentralization.12 But if international law is still, more or less, decentralized in terms of its basic structures, it is generally assumed that it is a formally complete s­ ystem of 8 9 10

11

12

Cf Lauterpacht, Recognition, 45–50 for an effective critique of the ‘State as fact’ dogma. His dismissal of the declaratory theory results in large part from his identifying the declaratory theory with this dogma. Cf Kelsen (1929) 4 rdi 613, 613. Waldock (1962) 106 HR 5, 146 correctly describes the problem as a ‘mixed question of law and fact’. Cf Chen, Recognition, 18–19: ‘to argue that a State can become a subject of international law without the assent of the existing States, it is necessary to assume the existence of an objective system of law to which the new State owes its being.’ The point is that if the State owes its existence to a system of law, then that existence is not, or not only, a ‘fact’. Cf Oppenheim (1st edn), vol. 1,108, §71; contra (8th edn), vol. 1,126, §71: ‘Others hold the view that it is a rule of International Law that no new State has a right towards other States to be recognized by them, and that no State has the duty to recognize a new State … [A] new State before its recognition cannot claim any right which a member of the Family of Nations has as against other members.’ Cf the heavily qualified statement in the 9th edn, vol. 1, 132–3, §40. The same incoherence has been noted in respect of the legality of war: Lauterpacht, Recognition, v–vi, 4–5; and the discretionary character of nationality: Brownlie (1963) 39 by 284, 284; Principles (2nd edn), 73; (6th edn), 69. Cf Briggs (1950) 44 pas 169, 172. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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law. For example this is taken to be the case with respect to the use of force13 and nationality,14 fields closely related to the existence and legitimacy of States. This work investigates the question whether, and to what extent, the formation and existence of States is regulated by international law, and is not simply a ‘matter of fact’. 1.2

Statehood in Early International Law: Aspects of State Practice

[...] Despite its claims to universality, the early law of nations had its origins in the European State-system, which existed long before its conventional date of origin in the Peace of Westphalia (1648), ending the Thirty Years’ War.15 The effect of the Peace of Westphalia was to consolidate the existing States and principalities (including those whose existence or autonomy it recognized or established) at the expense of the Empire, and ultimately at the expense of the notion of the civitas gentium maxima—the universal community of mankind transcending the authority of States.16 Within that system, and despite certain divergences, writers of both naturalist and positivist schools had at first little difficulty with the creation of States. New States could be formed by the union of two existing States. More common was the linking of States in a personal union under one Crown (for example, Poland and Lithuania in 1385; Aragon and Castile in 1479; England and Scotland in 1603); such unions often became permanent. Equally, it was agreed that princes or rulers could create new States by division of existing ones. In Pufendorf’s words, ‘[A] king can convert one of his provinces into a kingdom, if he separates it entirely from the rest of the nation, and governs it with its own administration, and one that is independent from the other.’17 New States could also be formed by revolution, as when Portugal (1640–8) and the Netherlands (1559–1648)18 broke away from Spain. What was unclear was 13 Cf Charter Art 2(4); Corfu Channel Case, ICJ Rep 1949 pp. 4, 35. 14 Cf Nottebohm Case, ICJ Rep 1955 p. 4. 15 On competing views as to the starting point of the European States system, see Koskenniemi (1990) 1 ejil 4. 16 On the Peace of Westphalia see Nussbaum, Concise History of the Law of Nations, 115– 18; Rapisardi-Mirabelli (1929) 8 Bib Viss 5; Gross (1948) 42 AJIL 20; Braubach, Acta pacis Westphalicae; Harding and Lim, Renegotiating Westphalia, 1; Steiger (1999) 59 ZaöRV 609; Ziegler (1999) 37 Archiv der Völkerrechts 129. For the conventional view, see, e.g., Schrijver (1999) 70 by 65, 69; Osiander (2001) 55 Int Org 251. 17 Cf Pufendorf, De jure Naturae et Gentium, Bk vii, Ch 3, §9, para 690. 18 See Blok and Vetter (1986) 34 Zeitschrift für Geschichtswissenschaft 708; Borschberg, Hugo Grotius ‘Commentaries in theses xi’ (1994), 180–1. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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whether the revolutionary entity could be treated as an independent State before its recognition by the parent State. Pufendorf thought not, on the grounds that ‘…if a man who, at the time, recognized the sovereignty of another as his superior, is to be able to become a king, he must secure the consent of that superior who will both free him and his dominions from the bond by which they were tied to him.’19 Vattel was less categorical: a subject remained bound to the sovereign ‘without other conditions than his observance of the fundamental laws’, and thus, in most cases, secession was contrary to the basic compact that was the foundation of the State. However, if a sovereign refused to come to the aid of part of the nation, it might provide for its own safety by other means. It was for [this] reason that the Swiss as a body broke away from the Empire, which had never protected them in any emergency. Its authority had already been rejected for many years when the independence of Switzerland was recognized by the Emperor and by all the German States in the Treaty of Westphalia.20 The Swiss cantons, referred to by Vattel, retained tenuous links with the Empire until their complete independence was recognized at the Peace of Westphalia. Part IV of the Treaty of Osnabrück stated: And whereas His Imperial Majesty … did, by a Particular Decree … declare the said city of Bazil, and the other Swiss Cantons to be in possession of a quasi-full Liberty and Exemption from the Empire, and so no way subject to the Tribunals and Sentences of the said Empire, it has been resolved that this same Decree shall be held as included in this Treaty of Peace….’21 In practice other States tended to conduct relations on an international plane with the entity in revolt before its recognition by the parent State. The point was clearly established in this sense following the breakaway of the South American provinces from Spain in the 1820s.22

19 Pufendorf, De jure Naturae et Gentium (1688), Bk vii, Ch 3, §9, para 690. 20 Le Droit des Gens, Bk i, Ch 17, §202; cf Gentili, On the Law of War (1612), Bk i, Ch xxiii, §§185–7. 21 1 cts 119. Cf the unconditional reference to the Netherlands in Art 1: ‘Premièrement declare ledit Seigneur Roy et reconnoit que lesdits Seigneurs États Generaux des Pays-Bas Unis, et les Provinces d’iceux respectivement avec leurs Pays associeés, Villes et Terres y appartenants sont libres et Souverains États …’. 22 See Frowein (1971) 65 AJ 568; Smith, GB & LN, vol i, 115–70; Bethell (ed), The Independence of Latin America. See also de Martens, Nouvelles Causes celebre du droit des gens (1843),

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The impression given by this brief review is that, despite the limited amount of State practice, nothing in early international law precluded the solution of the legal problems raised by the creation and existence of States. That impediment, as we shall see, arose later with the application by nineteenth-century writers of a thoroughgoing positivism to the concept of statehood and the theory of recognition. 1.3

Recognition and Statehood

(1) The Early View of Recognition Although the early writers occasionally dealt with problems of recognition, it had no separate place in the law of nations before the middle of the eighteenth century. The reason for this was clear: sovereignty, in its origin merely the location of supreme power within a particular territorial unit (suprema potestas), necessarily came from within and did not require the recognition of other States or princes. As Pufendorf stated: ‘…just as a king owes his sovereignty and majesty to no one outside his realm, so he need not obtain the consent and approval of other kings or states, before he may carry himself like a king and be regarded as such … [I]t would entail an injury for the sovereignty of such a king to be called in question by a foreigner.’23 The doubtful point was whether recognition by the parent State of a new State formed by revolution from it was necessary, and that doubt related to the obligation of loyalty to a superior, which, it was thought, might require release: the problem bore no relation to constitutive theory in general. The position of recognition towards the end of the eighteenth century was as stated by Alexandrowicz: ‘In the absence of any precise and formulated theory, recognition had not found a separate place in the works of the classic writers whether of the naturalist or early positivist period…’.24 When recognition did begin to attract more detailed consideration, about the middle of the eighteenth century, it was in the context of recognition of monarchs, especially elective monarchs: that is, in the context of recognition of governments. Von Steck25 and later Martens26 discussed the problem and reached similar conclusions. Recognition, at least by third States in the case of secession from a metropolitan State, was either illegal intervention or it was

23 24 25 26

vol. 1, 113–209, 370–498 (American War of Independence). Cf Wheaton, Principles, Pt i, Ch ii, §26. De Iure Naturae et Gentium, Bk vii, Ch 3, §9, para 689. (1958) 34 BY 176, 176. Versuche über verschiedene Materien politischer und rechtlicher Kenntnisse (1783). A Compendium of the Law of Nations (1789), 18 ff. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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unnecessary.27 As one writer put it, ‘…in order to consider the sovereignty of a State as complete in the law of nations, there is no need for its recognition by foreign powers; though the latter may appear useful, the de facto existence of sovereignty is sufficient.’28 Thus, even after the concept of recognition had become a separate part of the law, the position was still consistent with the views held by the early writers. The writers of the early period of eighteenth century positivism, whenever faced with the eventuality of recognition as a medium of fitting the new political reality into the law, on the whole rejected such a solution, choosing the solution more consistent with the natural law tradition. Even if the law of nations was conceived as based on the consent of States, this anti-naturalist trend was not yet allowed to extend to the field of recognition.29 (2) Positivism and Recognition But this was a temporary accommodation. According to positivist theory, the obligation to obey international law derived from the consent of individual States. If a new State subject to international law came into existence, new legal obligations would be created for existing States. The positivist premiss seemed to require consent either to the creation of the State or to its being subjected to international law so far as other States were concerned. It would be interesting to trace the evolution of international law doctrine from the essentially declaratory views of Martens and von Steck to the essentially constitutive ones of Hall and Oppenheim.30 The important point, however, is that the shift in doctrine did happen, although it was a gradual one, in particular because, while States commonly endorsed the positivist view of international law, their practice was not always consistent with this profession. Thus unrecognized States and native peoples with some form of regular government were given the benefit of, and treated as obliged by, the whole body of international

27 Alexandrowicz (1958) 34 BY 176, 180 ff and authorities there cited. 28 Saalfeld, Handbuch des positivism Voikerrechts, 26; cited by Alexandrowicz, (1958) 34 BY 176, 189. 29 Ibid, 191. Cf also Alexandrowicz (1961) 37 BY 506. 30 Wheaton’s view that the ‘external’ sovereignty of a State is, but its ‘internal’ sovereignty is not dependent upon recognition may be taken as an intermediate point.

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law.31 The problem was largely doctrinal, but doctrine was, nonetheless, influential. For if one starts from the premiss that ‘Le droit des gens est un droit contractuel entre des États’,32 the conclusion as to recognition and statehood seems inevitable: …le droit international, qui est contractuel et qui a par conséquent la liberté immanente de s’étendre aux partenaires de son choix, comprend tels États dans sa communauté et n’y acceuille pas tels autres … [L]a reconnaissance est un accord. Elle signifie l’extension de la communauté de droit international à un nouvel État.33 (3) Statehood in Nineteenth-Century International Law It is useful to attempt a summary of the position with regard to statehood and recognition in the late nineteenth century. There was of course no complete unanimity among text-writers: nevertheless what we find is an interrelated series of doctrines, based on the premiss of positivism, the effect of which was that the formation and even the existence of States was a matter outside the accepted scope of international law. Oppenheim’s International Law provides the clearest as well as the most influential expression of these interrelated doctrines. The main positions relevant here were as follows: (1) International law was regarded as the law existing between civilized nations. In 1859 the British Law Officers spoke of international law ‘as it has been hitherto recognized and now subsists by the common consent of Christian nations’.34 Members of the society whose law was international law were the European States between whom it evolved from the fifteenth century onwards and those other States accepted expressly or

31 Smith, gb & ln vol i, 14–18; Davidson (1994) 5 Canterbury lr 391. See also Chapter 6. ­[Editors’ note: not included in this Anthology]. 32 Redslob (1934) 13 rdi 429, 430. 33 Redslob (1934) 13 rdi, 431. The essential problem related to the duties of the new State rather than its rights. Existing States could consent to the rules of law in respect of yetto-be-created States, but those States could not for their part so consent (e.g., Anzilotti, Corso di Diritto Internazionale (3rd edn), vol i, 163–6 cited Jaffé, Judicial Aspects of Foreign Relations, 90n) and mutuality was required, as in any contract. Cf, however, Lauterpacht, Recognition, 2. See further Devine (1984) 10 S Af YBIL 18, Hillgruber (1998) 9 ejil 491, 499–502. 34 Cited by Smith, gb & LN, vol i, 12, 14.

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t­ acitly by the original members into the society of nations35—for example the United States of America and Turkey.36 As the basis of the Law of Nations is the common consent of the civilized States, statehood alone does not imply membership of the Family of Nations. Those States which are members are either original members because the Law of Nations grew up gradually between them through custom and treaties, or they are members as having been recognized by the body of members already in existence when they were born.37 (2) States as such were not necessarily members of the society of nations. Recognition, express or implied, made them members and bound them to obey international law.38 States not so accepted were not (at least in theory) bound by international law, nor were the ‘civilized nations’ bound in their behaviour towards them, as was implied by their behaviour with regard to Africa and China.39 35

36

37 38 39

Oppenheim (1st edn), vol. 1, 17, §12; (8th edn), 18, §12: ‘New States which came into existence and were through express or tacit recognition admitted into the Family of Nations thereby consented to the body of rules for international conduct [1st edn: ‘in existence’; 8th edn: ‘in force’] at the time of their admittance.’ The 9th edition treats the matter as follows: ‘Thus new states which come into existence and are admitted into the international community thereupon become subject to the body of rules for international conduct in force at the time of their admittance.’ Ibid, vol. 1, 14, §5; see also ibid, vol. 1, 29, §10. On Turkey’s ‘membership’ see General Treaty between Great Britain, Austria, France, Prussia, Russia, Sardinia and Turkey for Re-establishment of Peace, Paris, 30 March 1856, 46 bfsp 12, esp para vii, in which the allied monarchs ‘déclarent la Sublime Porte admise à participer aux avantages du droit public et du concert Européens.’ See also Smith, gb & ln, vol i, 16–17; Hall, International Law (2nd edn), 40; Wood (1943) 37 aj 262; Hillgruber, Die Aufnahme neuer Staaten in die Völkerrechtsgemeinschaft, 394. In European Commission of the Danube, PCIJ ser B no. 14 (1927), 40, Art vii of the Treaty of Paris was said to have effected ‘the elevation of the position of Turkey in Europe’. Among the enormous literature on the extension of international law beyond Europe see Andrews (1978) 94 lqr 408; Grewe (1982) 42 ZaöRV 449; Fisch, Die europäische Expansion und das Völkerrecht; Sinha, Legal Polycentricity and International Law; Onuma (2000) 2 J Hist il 1. On international law in relation to specific regions and States, see, e.g., Eick, Indianerverträge in Nouvelle-France: ein Beitrag zur Völkerrechtsgeschichte; Ziegler (1997) 35 Archiv des Völkerrechts 255; Ando (ed), Japan and International Law. Oppenheim (1st edn), vol. 1, 17, §12; (8th edn), vol. 1,125, §71. See also 9th edition, vol. 1, 14, §5. Oppenheim (1st edn), vol. 1, 17, §12, 108, §71; (9th edn), vol. 1, 14, §5, 128, §39. Oppenheim (1st edn), vol. 1, 34, §28; (8th edn), vol. 1, 50, §28. Lauterpacht omitted the sentence ‘It is discretion, and not International Law, according to which the members of the Family of Nations deal with such States as still remain outside that family’ and Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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(3) Only States then, or rather only those entities recognized as States and accepted into international society, were bound by international law and were international persons. Individuals and groups were not subjects of international law and had no rights as such under international law. ‘Since the Law of Nations is based on the common consent of individual States, and not of individual human beings, States solely and exclusively are the subjects of International Law’.40 (4) The binding force of international law derived from this process of seeking to be recognized and acceptance. Thus new States which come into existence and are admitted into the international community thereupon become subject to the body of rules for international conduct in force at the time of their admittance.41 International Law does not say that a State is not in existence as long as it is not recognized, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law.42 This satisfied the positivist canon that could discover the obligation to obey international law only with the consent of each State. (5) Accordingly how an entity became a State was a matter of no importance to international law, which concentrated on recognition as the agency of admission into ‘civilized society’—a sort of juristic baptism, entailing the rights and duties of international law. Unrecognized entities had not consented to be bound by international law, and neither had the existing community of recognized States accepted them or agreed to treat them as such. Nascent States (States ‘in statu nascendi’) were not international persons. How they acquired territory, what rights and duties they had or owed to others as a result of events before they were recognized, these

40 41 42

c­ haracterized ‘the question of membership of the “Family of Nations” … a matter of purely historical interest.’ Cf ibid (9th edn), vol. 1, 87, §22. Oppenheim (1st edn), vol. 1, 18 (§12). By ‘States’ Oppenheim presumably meant ‘recognized States’. Oppenheim (1st edn), vol. 1, 17, §12; (9th edn), 14, §5. Oppenheim (1st edn), vol. 1, 110, §71. The second sentence only is in the 8th edn, vol. 1, 125, §71. US Secretary of State Webster put it as follows: ‘Every nation, on being received at her own request, into the circle of civilized governments, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws and usages which have obtained currency among civilized states…’. Letter to Mr Thompson, Minister to Mexico, 15 April 1842. Moore’s Digest, vol. 1, s 1, 5–6. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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were irrelevant to international law: they were matters ‘of fact and not of law’. The formation of a new State is, as will be remembered from former statements, a matter of fact, and not of law. It is through recognition, which is a matter of law, that such new States become a member of the Family of Nations and subject to International Law. As soon as recognition is given, the new State’s territory is recognized as the territory of a subject of International Law, and it matters not how this territory is acquired before the recognition.43 Likewise Phillimore: ‘The question as to the origin of States belongs rather to the province of Political Philosophy than of International Jurisprudence.’44 Hence the acquisition of territory by a new State was not regarded as a mode of acquisition of territory in international law, though revolt was a method of losing territory. ‘Revolt followed by secession has been accepted as a mode of losing territory to which there is no corresponding mode of acquisition.’45 1.4

Recognition of States in Modern International Law

It is against this background that the modern law of statehood and its relation with recognition must be examined. The effect of positivist doctrine was to

43

Oppenheim (1st edn), vol. 1, 264, §209; (8th edn), vol. 1, 544, §209. In the 9th edition, vol. 1, 677, §241, the position is reformulated thus: ‘When a new state comes into existence, its title to its territory is not explicable in terms of the traditional “modes” of acquisition of territory … The new state’s territorial entitlement is more to do with recognition; for, as soon as recognition is given, the new state’s territory is recognised as the territory of a subject of international law; although, questions of succession and of the legal history of the territory may also be involved where particular boundaries, or the precise extent of the territory, are doubtful or disputed.’ See also ibid (9th edn), vol. 1, 120, §34: ‘A state proper is in existence when a people is settled in a territory under its own sovereign government.’ 44 Phillimore, Commentaries on International Law (2nd edn), vol i, 79. 45 Oppenheim (1st edn), vol. 1, 297–8, §246; (9th edn), vol. 1, 717, §276. See also ibid (9th edn), vol. 1, 717, §276, to similar effect but with the following qualification: ‘It is perhaps now questionable whether the term revolt is entirely a happy one in this legal context. It would seem to indicate a particular kind of political situation rather than a legal mode of the loss of territorial sovereignty. If a revolt as a matter of fact results in the emergency of a new state, then this matter is the situation discussed [under the category ‘acquisition’].’ Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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place all the emphasis, in matters of statehood, on the question of recognition. Indeed the courts of many States still refuse to determine for themselves any questions of statehood, even where the matter is between private parties,46 on the ground that status is necessarily determined by executive recognition.47 They will sometimes be able to avoid the harmful effects on private rights of the political act of recognition by means of construction.48 The executive may leave the matter for the courts to decide.49 But as a matter of the common law, at least, where the international status of any entity is squarely in issue executive certification is binding.50 This has led courts to seek to distinguish between the ‘external’ and ‘internal’ consequences of non-recognition. In Hesperides Hotels, Lord Denning 46

47 48

49 50

And even where the results are unfortunate: the Second Circuit of the US Court of ­Appeals held that, absent recognition, notified to the court by the executive branch, Hong Kong could not be treated as a State for jurisdictional purposes, and a corporation organized under the laws of Hong Kong, thus ‘stateless’, was unable to maintain an action in US federal court. Matimak Trading Co v Khalily, 118 F 3d 76 (2nd Cir, 1997, McLaughlin, CJ). The Third Circuit took the view that Hong Kong corporations could be treated as UK subjects and the problem thus avoided: Southern Cross Overseas Agencies, Inc v Wah Kwong Shipping Group Ltd, 181 F 3d 410 (3rd Cir 1999, Becker, CJ). The Supreme Court resolved the matter in favour of federal jurisdiction: JP Morgan Chase Bank v Traffic Stream (bvi) Infrastructure Ltd, 536 US 88, 122 S Ct 2054 (Souter J 2002). This was not always so: Yrisarri v Clement (1825) 2 C & P 223, 225. For an illuminating discussion of the cases in which Lord Eldon laid down the orthodox common law rule see BusheFoxe (1931) 12 BY 63; (1932) 13 BY 39. See also Jaffé, Judicial Aspects of Foreign Relations, 79. Luigi Monta of Genoa v Cechofracht Co Ltd [1956] 2 QB 522 (term ‘government’ in a charter party); Kawasaki Kisn Kabashiki Kaisha of Kobe v Bantham Steamship Co Ltd [1939] 2 kb 544 (‘war’), 9 ilr 528. For an extreme case of ‘construction’ see The Arantzazu Mendi [1939] AC 256, 9 ilr 60, criticized by Lauterpacht, Recognition, 288–94. Duff Development Co v Kelantan Goverment [1924] AC 797, 825 (Lord Sumner); and cf the certificate in Salimoff v Standard Oil Co, 262 NY 220 (1933) just before US recognition of the Soviet government. Luther v Sagor [1921] 3 KB 532; but cf Carl Zeiss Stifftung v Rayner and Keeler Ltd (No. 2) [1967] 1 AC 853, 953–4 (Lord Wilberforce), 43 ilr 23. For more recent cases, see, e.g., ­Caglar v HM Inspector of Taxes, 1996 Simon’s Tax Cases 150; 108 ilr 150. The American position was historically less rigid: Wulfsohn v rsfsr, 234 NY 372 (1923); Sokoloff v National City Bank, 2 ilr 44, 239 NY 158 (1924); Bank of China v Wells Fargo Bank & Union Trust Co, 209 F2d 467 (1953). US courts often defer to executive determinations (e.g., Autocephalous Greek-Orthodox Church of Cyprus v Goldberg & Feldman Fine Arts Inc, 917 F 2d 278, 291–3 (Ind, 1990) 108 ilr 488; Smith, (1992) 6 Temple iclj 169, 178–90) , but not always: Efrat Ungar v Palestine Liberation Organization, 402 F3d 274, 280 (1st Cir, 31 March 2005, Selya, CJ) (slip op), 14: ‘[T]he lower court’s immunity decision neither signaled an official position on behalf of the United States with respect to the political recognition of Palestine nor amounted to the usurpation of a power committed to some other branch of government. After all, Congress enacted the [Anti-Terrorism Act], and the President signed it. The very purpose of the law is to allow the courts to determine questions of sovereign immunity under a legal, as opposed to a political, regime.’ Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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asked whether the law of the ‘Turkish Federated State of Cyprus’ could be applied to a tort claim even though the Foreign and Commonwealth Office had certified that the United Kingdom did not recognize that entity as a State: The executive is concerned with the external consequences of recognition, vis-à-vis other states. The courts are concerned with the internal consequences of it, vis-à-vis private individuals. So far as the courts are concerned, there are many who hold that the courts are entitled to look at the state of affairs actually existing in a territory, to see what is the law which is in fact effective and enforced in that territory, and to give such effect to it— in its impact on individuals—as justice and common sense require: provided always that there are no considerations of public policy against it. The distinction has also been expressed as one between private international law and the law or practice of foreign relations: [P]rivate international law is designed to find the most appropriate law … and it is not concerned with adjusting the mutual relationship of sovereigns. Therefore, foreign law applied under private international law principles should not be limited to the law only of a recognized State or Government; effectiveness of foreign law should not depend on recognition.51 Indeed legislation has sometimes had to be passed authorizing courts to treat unrecognized entities as ‘law areas’ for various purposes, in order to separate non-recognition from its consequences.52 However desirable it may be that the courts of a State should speak on matters of statehood with the same voice as the government of that State, in the

51 52

District Court of Kyoto, Judgment of 7 July 1956, quoted in Peterson, Recognition of Governments, 149, 243 n 77. See, e.g., the extended definition of ‘foreign state’ in the Foreign Enlistment Act 1870 (UK). See also Foreign Corporations Act 1991 (UK); Foreign Corporations (Application of Laws) Act 1989 (Cth). These Acts, though general in terms, were passed to deal with the situation of Taiwan, an issue dealt with by the US through special legislation, the Taiwan Relations Act, 22 usc §3301. See New York Chinese TV Programs, Inc v UE Enterprises, Inc, 954 F 2d 847 (2d Cir 1992), cert denied, 506 US 827 (1992); Millen Industries Inc v Coordination Council for N American Affairs, 855 F 2d 879 (1988), 98 ilr 61. Other jurisdictions have simply accepted Taiwan acts and laws without legislative mandate: Romania v Cheng, 1997 Carswell nS 424 (Nova Scotia sc); Chen Li Hung v Tong Lei Mao [2000] 1 hkc 461. On Taiwan see further Chapters 5 and 10. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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i­nternational sphere the intimate connection established by nineteenth-century doctrine between recognition and statehood has done much harm. A tension is thereby created between the conviction that recognition is at some level a legal act in the international sphere,53 and the assumption of political leaders that they are, or should be, free to recognize or not to recognize on grounds of their own choosing.54 If this is the case, the international status and rights of whole peoples and territories will seem to depend on arbitrary decisions and political contingencies. (1) Recognition: The Great Debate Before examining State practice on the matter, it is necessary to refer again to the underlying conflict over the nature of recognition. A further effect of ­nineteenth-century practice has been to focus attention more or less exclusively on the act of recognition itself, and its legal effects, rather than on the problem of the elaboration of rules determining the status, competence and so on of the various territorial governmental units.55 To some extent this was inevitable, as long as the constitutive position retained its influence, for a corollary of that position was that there could be no such rules. Examination of the constitutive theory is, therefore, first of all necessary. (i) The Constitutive Theory56 The tenets of the strict constitutive position, as adopted by Oppenheim and others, have been referred to already. Many of the adherents of that position 53 54 55 56

E.g., among earlier writers, Kelsen (1941) 35 aj 605; Schwarzenberger, International Law, vol i, 127–36, 134; Lauterpacht, Recognition, 6 ff. Cf the statements of Sir Percy Spender, Australian Minister for Foreign Affairs, cited in O’Connell (ed), International Law in Australia, 32; and US Ambassador Warren Austin, scor 3rd yr 294th mtg, 16. See also MJ Peterson (1982) 34 World Politics 324. Cf Bot, Non-Recognition and Treaty Relations, 1. Constitutive writers include the following: Le Normand, La Reconnaissance Internationale et ses Diverses Applications; Jellinek, Allgemeine Staatslehre (5th edn), 273; Anzilotti, Corso di Diritto Internationale (3rd edn); Kelsen (1941) 35 aj 605; Lauterpacht, Recognition; Schwarzenberger, International Law (3rd edn), vol i, 134; Patel, Recognition in the Law of Nations, 119–22; Jennings (1967) 121 HR 327, 350; Verzijl, International Law, vol ii, 587–90 (with reservations); Devine [1973] Acta Juridica 1, 90–145. Hall’s position is of interest: ‘although the right to be treated as a state is independent of recognition, recognition is the necessary evidence that the right has been acquired’: International Law (8th edn, 1924, Higgins ed), 103. Cf also the German argument in the Customs Union Case, PCIJ ser C no. 53, 52–3. Schachter argues that Secretariat practice (in one case, the Democratic Republic of Vietnam in 1947) is implicitly constitutive: 25 BY (1948) 91, 109–15. This is doubtful. It is also argued that the Permanent Court adopted a constitutive position in Certain German Interests in Polish Upper Silesia, PCIJ Ser A No. 7 (1926), 27–9, but this was in the context of the belligerency of the Polish National Committee, not the existence of Poland as a State. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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are also positivist in outlook.57 On the other hand, it is possible to reconcile the declaratory theory with some versions of positivism, and many writers have adhered both to positivism and the declaratory theory.58 Moreover, Lauterpacht, who was not a positivist, was one of the more subtle proponents of a form of the constitutive position.59 He expressed the most persuasive argument for that position in the following way: [T]he full international personality of rising communities … cannot be automatic … [A]s its ascertainment requires the prior determination of difficult circumstances of fact and law, there must be someone to perform that task. In the absence of a preferable solution, such as the setting up of an impartial international organ to perform that function, the latter must be fulfilled by States already existing. The valid objection is not against the fact of their discharging it, but against their carrying it out as a matter of arbitrary policy as distinguished from legal duty.60 In other words, in every legal system some organ must be competent to determine with certainty the subjects of the system. In the present international system that can only be done by the States, acting individually or collectively. Since they act in the matter as organs of the system, their determinations must have definitive legal effect. It should be stressed that this argument is not generally applicable in international law. Determining the legality of State conduct or the validity of the termination of a treaty often involves ‘difficult circumstances of fact and law’, but it has never been suggested that the views of particular States are ‘constitutive’. If individual States were free to determine the legal status or consequences of particular situations and to do so definitively, international law would be reduced to a form of imperfect communications, a system for registering the assent or dissent of individual States without any prospect of resolution. Yet

57 Lauterpacht, Recognition, 38–9; but cf Jaffé, 80–1. 58 Cf Chen, Recognition, 18 n 41. 59 Lauterpacht, Recognition, 2 distinguishes two assertions of orthodox constitutive theory: viz ‘that, prior to recognition, the community in question possesses neither the rights nor the obligations which international law associates with full statehood; [and] … that recognition is a matter of absolute political discretion as distinguished from a legal duty owed to the community concerned.’ He adopts the first but not the second of these. In fact neither is distinctly positivist: what is so is their combination. cf Kunz (1950) 44 aj 713; Higgins, Development, 136. 60 Recognition, 55 (emphasis in original). Cf Kelsen, (1941) 35 aj 605, 606–7.

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it is, and should be, more than this—a system with the potential for resolving problems, not merely expressing them. It may be argued that determining the subjects of international law is so important that, exceptionally, there must exist some method of conclusive determination for this purpose. Yet there is nothing conclusive or certain (as far as other States were concerned) about a conflict between different States as to the status of a particular entity, and there is no reason why they should be bound either by the views of the first State to recognize or of the last to refuse to do so. Does the fact that Belize was not recognized by Guatemala,61 ­Macedonia by Greece62 or Liechtenstein by Czechoslovakia and its successors63 mean that these entities did not exist, were not States, had no rights at the time? Moreover, questions of status do not seem qualitatively different, either in theory or practice. International law has relatively few subjects, and the status of most of them is not open to doubt. By contrast problems relating, for example, to the legality of the use of force occur frequently and are often difficult and controversial. It is not suggested that individual State pronouncements on that subject are ‘constitutive’ of legality, for the recognizing State or more generally. Two further arguments add decisive support to the rejection of the constitutive position. First, if State recognition is definitive then it is difficult to conceive of an illegal recognition and impossible to conceive of one which is invalid or void. Yet the nullity of certain acts of recognition has been accepted in practice, and rightly so;64 otherwise recognition would constitute an alternative form of intervention, potentially always available and apparently unchallengeable. Lauterpacht himself allowed the possibility of an invalid act of recognition,65 but if that is the case then the test for statehood must be extrinsic to the act of recognition. And that is a denial of the constitutive position. 61 62

See (1992) 63 BY 633–4; 243 HC Debs, vol. 243, WA, col 5, 9 May 1994. Even after the Former Yugoslav Republic of Macedonia (known as fyrom) was admitted to the UN (GA res 225, 8 April 1993) it remained for a time unrecognized by Greece. See Riedel (1996) 45 Sudöst-Europa 63; Craven (1995) 16 ayil 199; Pazartzis (1995) 41 afdi 281. 63 For the Czech position, see Statement by the Czech Republic in reply to the Statement by the Principality of Liechtenstein, Plenary meeting of the 10th OSCE Economic Forum, 29 May 2002; for the Liechtenstein position, see Review of the Implementation of OSCE Commitments in the Economic and Environmental Dimension, Statement to Agenda Point OSCE document EF.DEL/12/04, 4 June 2004. 64 See Restatement (Third) Foreign Relations Law of the US, §202, Comment f, ‘Unlawful recognition or acceptance’, and further Chapter 3. 65 Recognition, 234 n3 (Italian and German recognition of the Franco regime ‘illegal ab initio’); cf ibid, 95 n2.

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A second difficulty with the constitutive position is its relativism. As Kelsen points out, it follows from constitutivist theory that ‘…the legal existence of a state … has a relative character. A state exists legally only in its relations to other states. There is no such thing as absolute existence.’66 No doubt international relations are full of contingency, but to those who do not share Kelsen’s premisses this seems a violation of common sense.67 Lauterpacht, who accepts the relativity of recognition as inherent in the constitutive position, nevertheless refers to it as a ‘glaring anomaly’,68 a ‘grotesque spectacle’ casting ‘grave reflection upon international law’.69 Moreover, in his view ‘[i]t cannot be explained away … by questionable analogies to private law or to philosophical relativism.’70 But if a central feature of the constitutive position is open to such criticism the position itself must be flawed.71 Aside from other objections,72 Lauterpacht’s own position is dependent on a straightforward assertion about State practice: …much of the available evidence points to what has here been described as the legal view of recognition. Only that view of recognition, coupled with a clear realization of its constitutive effect, permits us to introduce

66 67

68 69 70 71

72

Kelsen (1941) 35 aj 605, 609. On Kelsen’s position see Pauly, in Diner and Stolleis (eds), Hans Kelsen and Carl Schmitt, 45, 46–7. Cf Verhoeven, Reconnaissance, 714–15. Kelsen himself was previously a declaratist: (1929) 4 rdi 613, 617–18: ‘en présence des règles positives incontestables du droit international, [on] ne peut nier que l’État nouveau ait des droits et des obligations internationales avant même d’être reconnu par les anciens États.’ Recognition, 67. Recognition, 78. Ibid. Lauterpacht proposed the collectivization of recognition as a solution. Developments in that direction are addressed in Chapters 4 and 12, below. A hybrid position would be to require recognition by one or some States as a prerequisite: e.g., Green, International Law, 34: ‘Unless recognized by at least one State, the entity will have no claim to be considered as a subject of international law.’ But why should any one State be allowed to change the legal position of others by an isolated and perhaps aberrant act of recognition? And what should the first recognizing State do, if it is seeking to act in accordance with international law? On Green’s view, the first State to recognize acts unlawfully—in which case the origins of every State must be illegitimate. E.g., the difficulty of a duty to recognize an entity that has, prior to recognition, ex hypothesi no rights: see Recognition, 74–5, 191–2. In Lauterpacht’s view the duty is owed to the society of States at large: that society is ‘entitled to claim recognition’, but this is an unenforceable or imperfect right. This is a mere construct, bearing no relationship to State practice or general legal opinion. Cf Chen, Recognition, 52–4.

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a stabilizing principle into what would otherwise be a pure exhibition of power and a negation of order….73 But State practice demonstrates neither acceptance of a duty to recognize,74 nor a consistent constitutive view of recognition. Moreover, Lauterpacht’s argument, which in the passage cited was plainly de lege ferenda,75 assumes the insufficiency of the declaratory view of recognition. (ii) The Declaratory Theory According to the declaratory theory, recognition of a new State is a political act, which is, in principle, independent of the existence of the new State as a subject of international law.76 In Charpentier’s terminology, statehood is ­opposable to non-recognizing States.77 This position has the merit of avoiding the logical and practical difficulties involved in constitutive theory, while still accepting a role for recognition as a matter of practice. It has the further, essential, merit of consistency with that practice, and it is supported by a substantial body of opinion. The following passage of Taft CJ’s in the Tinoco Arbitration is frequently cited as the classic statement of the declaratory position: The non-recognition by other nations of a government claiming to be a national personality, is usually appropriate evidence that it has not attained the independence and control entitling it by international law to be classed as such. But when recognition vel non of a government is by such nations determined by enquiry, not into its de facto sovereignty and complete governmental control, but into its illegitimacy or irregularity of origin, their non-recognition loses something of evidential weight on the issue with which those applying the rules of international law are alone concerned … Such non-recognition for any reason … cannot outweigh

73

Recognition, 77–8. But cf ibid, 78: ‘We are not in a position to say … that there is a clear and uniform practice of States in support of the legal view of recognition…’. 74 The United Kingdom alone seems to have accepted a duty to recognize: (1951) 4 ilq ­387–8, and even its statement is not an assertion of the constitutive theory. Cf Verhoeven, Reconnaissance, 576–86; Rich (1993) 4 ejil 36. 75 Cf Recognition, 78. 76 See Chen, Recognition, for a full discussion of this position. Green’s annotations to the published edition are consistently constitutivist: in this respect Green follows Schwarzenberger rather than Chen. 77 Charpentier, Reconnaissance, 15–68, 160–7.

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the evidence disclosed … as to the de facto character of Tinoco’s government, according to the standard set by international law.78 But this was a case of recognition of governments, and it is arguable that while recognition of governments may be declaratory in effect, recognition of new States goes further. Where an authority in fact exercises governmental functions within an area already accepted as a State, there seems to be nothing for recognition to constitute, at least at the level of international personality. But the establishment of a new State involves the demarcation of a certain area as a ‘State-area’ for the purposes of international relations, with consequent legal effects. In such a case it might be argued that recognition, at least in the non-formal sense of ‘treating like a State’, is central rather than peripheral to international capacity.79 But neither legal opinion nor State practice draws from this the conclusion that the several acts of recognition by other States constitute the entity being recognized or are conclusive as to its status. As a German–Polish Mixed Arbitral Tribunal stated in reference to the existence of the new State of Poland: ‘… the recognition of a State is not constitutive but merely declaratory. The State exists by itself and the recognition is nothing else than a declaration of this existence, recognized by the States from which it emanates.’80 Less well known in this context is the Report of the Commission of Jurists on the Åland Islands.

78

79 80

(1924) 18 aj 147, 154; cf also Hopkins Claim (1927) 21 aj 160, 166. The matter was put even more strongly by Commissioner Wadsworth in Cuculla v Mexico, Mex-US Cl Com (1868), in respect of the premature and unauthorized recognition by the US Minister of the Zuloaga Government as the de facto Government of Mexico: ‘Where then, is the evidence of the de facto government?’ The possession of the capital will not be sufficient, nor recognition by the American minister with or without the appraisal of his government. Recognition is based upon the pre-existing fact; does not create the fact. If this does not exist, the recognition is falsified … If, therefore, the Zuloaga movement in Mexico was the government de facto, it was because the facts existing at the time made it so. If it was a government, the government in Mexico, it was because it claimed and possessed the sovereignty over that independent nation we call ‘the Republic of the United Mexican State.’ Moore, IA iii, 2873, 2876–7. See also Wulfsohn v rsfsr, 138 ne 24, 25 (1923); app diss 266 US 580 (1924): ‘The result we reach depends upon more basic considerations than recognition or non-recognition by the United States. Whether or not a government exists clothed with the power to enforce its authority within its own territory, obeyed by the people over whom it rules, capable of performing the duties and fulfilling the obligations of an independent power, able to enforce its claims by military force, is a fact not a theory. For its recognition does not create the state although it may be desirable.’ See Le Normand, 268, cited by Chen, Recognition, 14 n 1. Deutsch Continental Gas Gesellschaft v Polish State (1929) 5 ilr 11, 13.

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The passage of the Report dealing with the independence of Finland enumerated the various recognitions given to Finland, but went on to say that: these facts by themselves do not suffice to prove that Finland, from this time onwards, became a sovereign State … [T]he same legal value cannot be attached to recognition of new States in war-time, especially to that accorded by belligerent powers, as in normal times … In addition to these facts which bear upon the external relations of Finland, the very abnormal character of her internal situation must be brought out. This situation was such that, for a considerable time, the conditions required for the formation of a sovereign State did not exist.81 Evidently the Commission, while accepting the legal value of recognition as evidence, were not prepared to accept it as conclusive, but instead referred to the ‘conditions required for the formation of a sovereign State’.82 On this matter the Arbitration Commission established to advise the European Peace Conference on Yugoslavia was categorical. In its first opinion, on 29 November 1991, the Commission stated that ‘the effects of recognition by other States are purely declaratory.’83 This was reiterated in further opinions.84 It has, however, been suggested that the actual practice of States respecting the dissolution of Yugoslavia may have been constitutive in effect; indeed debate continues to rage between those who attribute the troubles of Yugoslavia to premature recognition and those who blame European governments for not intervening earlier and more decisively.85 It is difficult to reach a conclusion 81 82

83 84 85

lnoj, Sp Supp 4 (1920), 8. The Report of the Commission of Rapporteurs is less explicit. Certain passages are at least capable of a constitutivist interpretation: e.g., ‘The recognition of the Finnish State by the Powers gave her admission into the community of nations, as fulfilling the conditions necessary for this official confirmation of an independent existence, one of the most important of which is the possession of frontiers which are sufficiently determined.’ ln Council Doc B7: 21/68/106 (1921), 23. But the crucial element in the Rapporteurs’ argument was the continuity between the independent State of Finland after 1917, and the autonomous State of Finland before 1917. This continuity was regarded as a continuity of legal personality, despite absence of recognition of pre-1917 Finland: cf the reference to ‘an autonomous Finland which … on the 6th December 1917, proclaimed her full and entire independence of Russia, detached herself from the latter by an act of her own free will, and became thereafter herself a sovereign State instead of a dependent State’ (ibid, 22). Opinion 1, Badinter Commission, 29 November 1991, 92 ilr 165. Opinions 8 and 10: 92 ilr 201 (4 July 1992); ibid, 206–8 (4 July 1992). On recognition of constituent entities emerging from the former sfry see Hillgruber (1998) 9 ejil 491; Warbrick and Lowe (1992) 41 ICLQ 473, Craven (1995) 66 by 333, Crawford, Selected Essays, 213–21.

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on this without examining in detail the bases for some of the particular claims to statehood, a matter addressed in Chapters 12 and 17. But overall the international approach to the dissolution of Yugoslavia, unhappy as it has been, does not support the constitutive theory,86 still less demand that we adopt it as a general matter. The International Court in the Bosnian Genocide case, though not addressing the matter of recognition directly,87 may be seen, by implication, to have favoured the view that statehood and its attendant rights exist independently of the will of other States. The Federal Republic of Yugoslavia (fry) had argued that the Court was not competent to adjudicate questions under the Genocide Convention, because the fry and Bosnia-Herzegovina had not recognized one another at the time proceedings were instituted. The Court dismissed this argument on the basis that (as mutual recognition had subsequently been given in the Dayton Accord)88 any defect was merely procedural and could be repaired simply by refiling the claim, which would relate back to alleged acts of genocide occurring prior to 1995.89 The result is consonant with the declaratory view: the rights of Bosnia-Herzegovina (under the Genocide Convention or otherwise) were opposable to the fry from the time the former became a State, whether or not the fry had yet recognized it as such. Among writers the declaratory doctrine, with differences in emphasis, predominates. Brownlie states the position succinctly: ‘Recognition, as a public act of state, is an optional and political act and there is no legal duty in this regard. However, in a deeper sense, if an entity bears the marks of statehood, other states put themselves at risk legally, if they ignore the basic obligations of state relations.’90 86

87 88 89 90

Thus Macedonia was not recognized for some years (due to political problems with Greece), yet it was treated by all as a State. Serbia and Montenegro was not recognized as the continuation of the old sfry, and most States had limited diplomatic relations with it as a result. But its statehood was never in doubt. ‘For the purposes of determining its jurisdiction in this case, the Court has no need to settle the question of what the effects of a situation of non-recognition may be on the contractual ties between parties to a multilateral treaty.’ ICJ Rep 1996 pp. 595, 613. General Framework Agreement for Peace in Bosnia and Herzegovina, 14 December 1995, 35 ilm 75. ICJ Rep 1996 pp. 595, 612–13. Principles (2nd edn), 94; (6th edn), 89–90 (emphasis in original); see also cf (2nd edn), 90–3; (6th edn), 86–8. Among older authorities, those supporting the declaratory position include: Erich (1926) 13 hr 427, 457–68; Jaffé, Judicial Aspects of Foreign Relations, 97–8; Borchard (1942) 36 aj 108; Brown (1942) 36 aj 106; Kunz (1950) 44 aj 713; Chen, Recognition; Marek, Identity and Continuity, 130–61; Charpentier, Reconnaissance, 196–200; Lachs (1959) 35 by 252; Waldock (1962) 106 hr 147–51; Brierly, Law of Nations (6th edn), 139; Higgins, Development, 135–6; Starke, Studies in International Law, 91–100; O’Connell, International Law (2nd edn), vol i, 128–34; Fawcett, The Law of Nations (2nd edn), 49, 55; Akehurst, Modern Introduction (3rd edn), 60–3. See also the Resolutions of the Institut du Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Moroever States do not in practice regard unrecognized States as exempt from international law;91 indeed failure to comply with international law is sometimes cited as a justification for non-recognition. And they do in fact carry on relations, often substantial, with such States, extending even to joint membership of inter-State organizations such as the United Nations.92 ­Recognition is usually intended as an act, if not of political approval, at least of political accommodation.93 (2) Conclusions It is sometimes suggested that the ‘great debate’ over the character of recognition has done nothing but confuse the issues, that it is mistaken to categorize recognition as either declaratory or constitutive in accordance with some general theory. According to Brownlie: in the case of ‘recognition’, theory has not only failed to enhance the subject but has created a tertium quid which stands, like a bank of fog on a still day, between the observer and the contours of the ground which calls for investigation. With rare exceptions the theories on recognition have not only failed to improve the quality of thought but have deflected lawyers from the application of ordinary methods of legal analysis.94

91

92 93 94

Droit International (1936): ‘La reconnaissance a un effet déclaratif. L’existence de l’État nouveau avec tous les effets juridiques qui s’attachent à cette existence n’est pas affectée par le refus de reconnaissance d’un ou plusieurs États’: Wehberg (ed), Institut de Droit International, Table Général des Résolutions 1873–1956, ii; and cf Brown [1934] Annuaire 302–57. Among more recent writers see Davidson (1980) 32 nilq 22; Menon, (1989) 67 rdisdp 161, 176; Weston, Falk and D’Amato, International Law and World Order (2nd edn), 847; Verhoeven (1993) 39 AFDI7; Warbrick, in Evans (ed), Aspects of Statehood and Institutionalism in Contemporary Europe, 9; Emanuelli, Droit international public, 189 (para 385). See also Restatement 3rd, §202, Reporters’ Note 7 (1987): ‘This section tends towards the declaratory view …’; and, ibid, §202, comment b: ‘An entity that satisfies the requirements of §201 is a state whether or not its statehood is formally recognized by other states.’ Cf the Protocol of the London Conference, 19 February 1831: 18 bfsp 779, 781 (concerning Belgium); Marek, Identity and Continuity, 140. Non-recognition of North Korea and of Israel was not regarded as precluding the application of international law rules to the Korean and Middle East wars: Brownlie, Use of Force, 380. See also Briggs (1949) 43 aj 113, 117–20; Charpentier, Reconnaissance, 45–8, 56–8; Whiteman, 2 Digest, 604–5. See Bot, Non-Recognition and Treaty Relations; Whiteman, 2 Digest, 524–604, and for the older practice see Moore, 1 Digest, 206–35; Hackworth, 1 Digest, 327–63. Cf Lachs (1959) 35 BY 252, 259; Higgins, Development, 164–5; Verhoeven, Reconnaissance, 721. Brownlie (1982) 53 BY 197, 197. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Some continental writers, following de Visscher, have tended to regard recognition as combining both declaratory and constitutive elements.95 One can sympathize with these views, but at a fundamental level a choice has to be made. The question is whether the denial of recognition to an entity otherwise qualifying as a State entitles the non-recognizing State to act as if it was not a State—to ignore its nationality, to intervene in its affairs, generally to deny the exercise of State rights under international law. The answer must be no, and the categorical constitutive position, which implies a different answer, is unacceptable. But this does not mean that recognition does not have important legal and political effects.96 Recognition is an institution of State practice that can resolve uncertainties as to status and allow for new situations to be regularized. That an entity is recognized as a State is evidence of its status; where recognition is general, it may be practically conclusive. States, in the forum of the United Nations or elsewhere, may make declarations as to status or ‘recognize’ entities the status of which is doubtful:97 depending on the degree of unanimity and other factors this may be evidence of a compelling kind.98 Even individual acts of recognition may contribute towards the consolidation of status: in Charpentier’s terms, recognition may render the new situation opposable to the recognizing State.99 95

De Visscher, Problems d’interpretation judiciaire en droit international public, 191; de Visscher, Théories et Réalités (4th rev edn), 258; Salmon, La Reconnaissance d’État, 19 ff. Cf Charpentier, Reconnaissance. Verhoeven, Reconnaissance, 548 refers in the same vein to a ‘dialectical relationship’ between recognition and the criteria for statehood, although his basic position remains declaratist: ibid, 545, 714–15, 720, esp 547–8: ‘Force est en effet de convenir que pareille aptitude n’est originellement q’une virtualité qui doit être impérativement présumée dés l’instant où sont réunis les critères traditionnels de l’État, sans reserve d’une verification de la “viabilité” de l’Etat, sous reserve d’une verification de la proposition illustre néanmoins indirectement cette caractéristique fondamentale de l’effectivité étatique, d’être principalement une effectivité par rapport à autrui, qui privilégie autant qu’elle problématise l’autorité “externe” par rapport à l’autorité interne. Cette effectivité par rapport á autrui introduit une relation dialectique entre l’effectivité purement matérielle et la reconnaissance qu’elle conditionne, qui complique singulièrement la vérification de celle-lá. Il n’est en effet guère douteux que dans la réalité des rapports internationaux la reconnaissance comme fait a fréquemment une portée constitutive et devient l’élément d’une effectivité qui théoriquement la conditionne.’ 96 Cf Restatement 3rd, §202, comment c. 97 E.g., GA res 195 (iii) declaring the Republic of Korea and its government to be representative of the State of Korea. 98 Admission to the United Nations is a strong form of ‘collective recognition’: see Chapter 4. [Editors’ note: not included in this Anthology]. 99 Charpentier, Reconnaissance, 217–25.

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In some situations, the term ‘recognition’ may also be used to describe acts that are properly speaking constitutive of a particular State; for example, a multilateral treaty establishing a new State will at the same time extend the signatories’ recognition of that State.100 But the constitutive acts here are those involving the establishment of the State, the stipulation of its constitution, the definition of its borders, etc. Collective recognition is ancillary and is not a substitute for action by the competent authorities.101 The conclusion must be that the status of an entity as a State is, in principle, independent of recognition, although the qualifications already made suggest that the differences between declaratory and constitutive schools are less in practice than has been depicted. But this conclusion assumes that there exist in international law and practice workable criteria for statehood. If there are no such criteria, or if they are so imprecise as to be practically useless, then the constitutive position will have returned, as it were, by the back door.102 The question whether such criteria exist will be discussed in the next chapter. 1.5

Certain Basic Concepts

Certain basic concepts—personality, sovereignty, the state/government distinction, continuity and succession—recur throughout this work and need some brief initial explanation. (1) International Personality103 The term ‘international personality’ has been defined as ‘the capacity to be bearer of rights and duties under international law’.104 Such definitions only tend to obscure: any person or aggregate of persons has the capacity to be given

100 E.g., the recognition of Cyprus by the Treaty of Guarantee, Art ii, 16 August 1960, 382 unts 3. 101 For collective action in the creation of States see further Chapter 12. [Editors’ note: not included in this Anthology]. 102 Cf Anzilotti, Corso di Diritto Internationale (3rd edn), vol i, 163–6. 103 See, e.g., Kelsen, Principles of International Law (2nd edn), 573–4; Barberis, Festschrift für Hermann Mosler, 25; Cassese, International Law in a Divided World, 74–104; Jennings and Watts, Oppenheim (9th edn), 119–20 (§33), 330–1 (§103); Hickey (1997) 2 Hofstra LPS 1; Charlesworth and Chinkin, The Boundaries of International Law, 124–5; Shinoda, Reexamining Sovereignty, 17–18; Raič, Statehood and the Law of Self-Determination (2002), 10–18; Brownlie, Principles (6th edn), 648–50 (respecting personality of international organizations); Shaw, International Law (5th edn), 175–201. 104 Schwarzenberger, Manual, 53.

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rights and duties by States,105 and in an era of human rights, investment protection and international criminal law, everyone is at some level ‘the bearer of rights and duties’ under international law.106 Yet there is evidently a distinction between being a beneficiary of rights or a bearer of duties, on the one hand, and being an active participant on the international level, on the other. Individuals and companies can bring claims in international forums established by treaty (and not only as the delegates of the States parties to these treaties107). But it remains true that these forums are created and ultimately controlled by States or by intergovernmental organizations, and it is these entities that remain the gatekeepers and legislators of the international system.108 As an aspect of the developments in doctrine and practice in the late nineteenth and early twentieth centuries, international legal personality came to be regarded as synonymous with statehood.109 For example, it was never definitively settled whether the League of Nations had international personality.110 The question arose with respect to the United Nations soon after its foundation: could the United Nations bring a claim for injury (a) to itself and (b) to its agents caused by the conduct of a non-member State? In the Reparations Opinion the International Court gave an affirmative answer in both respects. It reformulated that question in the following terms: …whether the Charter has given the Organization such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect. In other words, does the Organization possess international personality? This is no doubt a doctrinal expression, which has ­sometimes given rise to controversy. But it will be used here to mean that if the Organization is recognized as having that personality, it is 105 Cf Danzig Railway Officials, PCIJ ser b No. 15 (1928) 17–18. 106 See Crawford, Selected Essays, 17, 26–9; Brownlie, Principles (2nd edn), 73, (6th edn), 69: ‘The state is a type of legal person recognized by international law. Yet, since there are other types of legal person so recognized … the possession of legal personality is not in itself a sufficient mark of statehood.’ 107 See Occidental Exploration & Production Co v Republic of Ecuador, ‘the investor is given direct standing to pursue the state.’ [2005] EWCA Civ 1116, Times, 23 Sept 2005 (Mance LJ), para 16. 108 See Oppenheim (9th edn), 119–20, §33; Malanczuk, in Weiss et al. (eds), International Economic Law With a Human Face, 64; Brownlie, in Evans (ed), Aspects of Statehood and Institutionalism in Contemporary Europe, 5; Virally (1985) 183 HR 9, 71–2. 109 Crawford, Selected Essays (2002) 17, 19; Nijman, in State, Sovereignty, and International Governance, 109. 110 Williams, Some Aspects of the Covenant of the League of Nations, 38, 43; Zimmern, The League of Nations and the Rule of Law 1918–1935, 277–85; Brierly (1946) 23 BY 83, 85.

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an entity capable of availing itself of obligations incumbent upon its Members.111 As to whether the United Nations might claim reparations for injury to its agents committed by nationals of a non-Member state, the Court gave an affirmative answer, stating that ‘…fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims’.112 A distinction is thus drawn between ‘objective international personality’ and personality recognized by particular States only. It would appear that the former exists wherever the rights and obligations of an entity are conferred by general international law, and the latter where an entity is established by particular States for special purposes.113 States clearly are included in the former category: the Order of St. John of Jerusalem, Rhodes and Malta is an example of the latter.114 The Court held that, by virtue of the importance of its functions and the extent of

111 Reparations Case, ICJ Rep 1949, pp. 174, 178 (emphasis added). On the legal personality of international organizations generally, see Menon (1992) 70 rdi 61; Bederman (1996) 36 Va jil 275; Seidl-Hohenveldern and Loibl, Das Recht der Internationalen Organisationen, (6th edn), 43; Lim, in Harding (ed), Renegotiating Westphalia, 53, Amerasinghe, Principles of the International Law of International Organizations (2nd edn), Ch 3. Regarding the legal personality of particular organizations, Bernhardt (1982) 18 Europarecht 199; Khodakov (1993) 7 Emory ilr 13; Head (1996) 90 aj 214, 221; Packer and Rukare (2002) 96 aj 365. 112 ICJ Rep 1949 pp. 174, 185. 113 There does not appear to be any general practice of recognition by States of the legal personality of international organizations. The USSR sought for years (and unavailingly) to deny the existence of the European Communities; that episode does not seem to have generated imitators. Distinguish, however, headquarters agreements between international organizations and host countries, e.g., Headquarters Agreement of 15 April 1991 between UK and European Bank for Reconstruction and Development, ukts No. 45 (1991), (1991) 62 by 576 and the position respecting the European Union. HC Debs, vol. 240, wa, col 291, 23 March 1994; Parl Papers 1992–3; (1992) 63 by 660–1. 114 The position of individuals or corporations as bearers of rights under international law is a distinct one. They may have standing under treaties, and they may certainly have rights especially under international human rights instruments. That does not make them in any meaningful sense ‘international legal persons’. As holders of rights and even obligations they do not cease to be subject to the State of their nationality, residence or incorporation, as the case may be. On the position of individuals under international law see Janis (1984) 17 Cornell ilj 61; Orentlicher (1991) 100 Yale LJ 2537; Vazquez (1992) 92 Col LR 1082; Meron (2000) 94 aj 239; Dolzer (2002) 20 Berkeley jil 296. Compare St Korowics (1956) 50 aj 533.

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its membership, the United Nations was also in the former category, an ‘objective’ legal person.115 There is thus a distinction between ‘general’ (or ‘objective’) and ‘special’ (or ‘particular’) legal personality. General legal personality arises against the world (erga omnes): particular legal personality binds only consenting States. But no further implications may be drawn from the existence of legal personality: the extent of the powers, rights and responsibilities of any entity is to be determined only by examination of its actual position.116 And, as with other questions, it is not in the bulk of cases but, rather, in the marginal ones that the more difficult questions are likely to arise.117 (2) The State In a sense, the whole of this work is an attempt to define and elucidate the concept of statehood as it operates in present-day international law. In particular, the criteria for statehood, ancient and modern, are examined in detail in Chapters 2 and 3. Despite its importance, statehood ‘in the sense of international law’ has not always been a clearly defined concept. Although the United Kingdom and Indian Governments thought a definition of the term ‘State’ a prerequisite for the proposed Draft Declaration on the Rights and Duties of States,’118 the International Law Commission (ILC) concluded: that no useful purpose would be served by an effort to define the term ‘State’ … In the Commission’s draft, the term … is used in the sense commonly accepted in international practice. Nor did the Commission think that it was called upon to set forth … the qualifications to be possessed by a community in order that it may become a State.119

115 For criticism see Schwarzenberger, International Law, vol. 1, 128–9, 469–71, 523, 596. Brownlie describes the passage cited as ‘an assertion of political and constitutional fact rather than a reasoned conclusion’, but regards it as ‘appropriate and necessary’ in the special circumstances: Principles (2nd edn), 670; (6th edn), 661. Cf also Oppenheim (8th edn), vol. 1, 407 (§168), 880 (§492), 928–9 (§522); ibid, (9th edn), vol. 1, 18 (§7), 1203 (§583), 1263 (§627). 116 See further O’Connell (1963) 67 rgdip 5; Lauterpacht (1947) 63 lqr 433, (1948) 64 lqr 97; Siotto Pintor (1932) 41 HR 245; Aufricht (1943) 37 Am Pol Sci R217; Scelle, in Lipsky (ed), Law and Politics in the World Community, 49. 117 See, e.g., Tabory in Shapira (ed), New Political Entities, 139 (Palestine); Morin (1984) 1 Rev Québéquoise DI 163 (Quebec); Mushkat (1994) 24 hklj 328 (Macau); Crawford, Rights in One Country (Hong Kong). 118 ILC, Preparatory Study, A/CN.4/2, 1948, 50. 119 ILC, Report 1949: A/925, 9.

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This rather bland rejoinder concealed considerable disagreement as to the definition of both ‘State’ and ‘Nation’ and their relationship.120 As we shall see, to refer merely to statehood ‘for the purposes of international law’ assumes that a State for one purpose is necessarily also a State for another. This may be true in most cases but not necessarily all. The ‘A’ Mandated territories were treated as States for the purposes of nationality, but were much less certainly States for other purposes. The Free City of Danzig was a State for the purposes of Article 71(2) of the Rules of the Permanent Court; whether it was a State for all purposes has been doubted. Many legal issues subsumed under the rubric of ‘statehood’ may be able to be resolved in their own terms—often this will take the form of interpretation of a treaty or other document. But at a basic level and for many purposes it still makes a great difference whether an entity is or is not a State. The matter is pursued in the next chapter. (3) Sovereignty The term ‘sovereignty’ has a long and troubled history, and a variety of meanings.121 In its most common modern usage, sovereignty is the term for the ‘­totality of international rights and duties recognized by international law’ as residing in an independent territorial unit—the State.122 It is not itself a right, nor is it a criterion for statehood (sovereignty is an attribute of States, not a precondition). It is a somewhat unhelpful, but firmly established, ­description 120 See ILC YBk, 1949, 61–8, 70–1, 84–6, 138, 173. 121 See 10 Enc pil 397, 399; Wildhaber, in Macdonald and Johnston (eds), The Structure and Process of International Law, 425; Hinsley, Sovereignty (2nd edn 1986), 224–35; Kranz (1992) 30 Archiv des Völkerrechts 411; Bartelson, A Genealogy of Sovereignty; E Lauterpacht (1997) 73 Int Affairs 137; Dupuy, Dialectiques du droit international; Merriam, History of the Theory of Sovereignty since Rousseau; Rawls, Law of Peoples, 27, 79; Jackson (2003) 97 aj 782; Sarooshi (2004) 25 Michigan jil 1107; Krasner, Sovereignty: Organized Hypocrisy, 3–25. 122 Cf Reparations Case, ICJ Rep 1949 pp. 174, 180. See generally Whiteman, 1 Digest 233–82; Korowicz, Organisations internationales et souveraineté États membres; Sukiennicki, La Souveraineté des Etats en droit internationale moderne; Crawford, Selected Essays, 95. Kamal Hossain, ‘State Sovereignty and the UN Charter’ (MS DPhil d 3227, Oxford, 1964) distinguishes three meanings of sovereignty: (1) State sovereignty as a distinctive characteristic of States as constituent units of the international legal system; (2) Sovereignty as freedom of action in respect of all matters with regard to which a State is not under any legal obligation; and (3) Sovereignty as the minimum amount of autonomy which a State must possess before it can be accorded the status of a ‘sovereign state’. There is a fourth meaning: sovereignty as plenary authority to administer territory. The first meaning seems to be reflected in the following UK Government statement: ‘Sovereignty is an attribute which under international law resides inherently in any independent state recognised as such. By virtue and in exercise of their sovereignty, states conduct dealings with one another internationally.’ HL Debs, vol. 566, wa 85, 16 October 1995.

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of statehood; a brief term for the State’s attribute of more-or-less plenary competence. Unsurprisingly, the term has drawn criticism. According to Charney: ‘The word “sovereignty” should be stricken from our vocabulary. It evokes the anachronistic idea of the total independence and autonomy of the state, and has no real meaning today. Use of the word calls to mind a fundamentalist view that is difficult to debate in light of its emotive baggage.’123 But the term seems to be ineradicable, and anyway its eradication might only make matters worse. Better, one might think, 192 sovereigns than one or a few. Associated with the concept of sovereign equality, the term is a normative one and may be unobjectionable. What is objectionable is the abuse of language involved in statements of the form ‘State A is sovereign therefore its conduct is unquestionable’ (a statement normally used to defend the conduct of one’s own State, not that of others). As a United States court observed: We cannot accept … [a] definition of sovereignty as the ‘supreme, absolute, and uncontrollable power by which an independent state is governed.’ [Appellant] would have us believe that sovereignty is an ‘all or nothing’ concept … we disagree … [T]his argument ignores the distinction between sovereignty, or the legal personhood of the nation, and jurisdiction, or the rights and powers of the nation over its inhabitants. It is uncontrovertible that nations, even though they are recognized as full members of the international community, must modify their internal affairs as a result of their participation in the international community.124 In any event, as a matter of international law no further legal consequences attach to sovereignty than attach to statehood itself. The question of s­ overeignty in international law is not to be confused with the constitutional lawyer’s question of supreme competence within a particular State: the ‘sovereignty of Parliament’ could coexist with the effective abandonment of the sovereignty of the United Kingdom.125 Nor is it to be confused with the exercise of ‘sovereign rights’: a State may continue to be sovereign even though important governmental functions are carried out on its behalf by another State or by an international organization. And, finally, ‘sovereignty’ does not mean actual 123 Charney (1997) 91 aj 394, 395 (citing Henkin). 124 Heller v US, 776 F 2d 92, 96–7 (3rd Cir 1985). 125 Cf Harris v The Minister of the Interior [1952] 2 sa (AD) 428. The confusion was reflected in the plaintiff’s argument in Blackburn v AG [1971] 1 WLR 1037, 52 ilr 414. On the ‘sovereignty of parliament’ in relation to the incorporation of European law into UK law, see Akehurst (1989) 60 BY 351.

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equality of rights or competences. The actual competence of a State, for example, to wage war, may be restricted by its constitution,126 or by treaty127 or even by a particular international rule.128 As a legal term ‘sovereignty’ refers not to omnipotent authority—the authority to slaughter all blue-eyed babies, for example—but to the totality of powers that States may have under international law.129 By contrast, as a political term its connotations are those of untrammelled authority and power and it is in such discourse that the term can be problematic.130 (4) State and Government131 One of the prerequisites for statehood is the existence of an effective government; and the main—for most purposes the only—organ by which the State acts in international relations is its central government.132 There would thus seem to be a close relation between the concepts of government and statehood. According to O’Connell: ‘Until the middle of the nineteenth century, both types of change [change of State and change of government] were assimilated, and the problems they raised were uniformly solved. With the abstraction of the concept of sovereignty, however, a conceptual chasm was opened between change of sovereignty and change of government.’133 This ‘post-Hegelian’134 development O’Connell criticizes as ‘dogmatic’ and ‘arbitrary’.135 In the context of succession to obligations—that is, in the context of the legal effects of changes in State or government—it is more useful and more cogent in his view to pay regard not to any such distinction but to the real changes or ­continuities 126 127 128 129

E.g., The Philippines by the Constitution of 1935 as amended, Art ii(3). E.g., Austria by the State Treaty of 1955, 217 unts 223, Art 13. E.g., Switzerland, by the ‘public law of Europe’: McNair, Law of Treaties, 50. The utility of the term is not increased by a good deal of writing loosely suggesting the eclipse of States, the lapse of sovereign equality and the value of ‘relative’ sovereignty. See, e.g., Simonovic (2000) 28 Georgia jilc 381; Wriston (1993) 17 Fletcher Forum World Aff 117, 117; Schreuer (1993) 4 ejil 447–71; Cullet (1999) 10 ejil 549, 551; Williams (2000) 26 Rev Int Stud 557, 557–73. See also Kingsbury (1998) 9 ejil 599. 130 Cf Westlake, International Law, vol i, 237 (cited in translation in the French Counter-­ Mémoire, The Lotus, PCIJ ser C, no. 13-ii, 275); Hart, The Concept of Law (1961), 217–18. See also Reisman (1990) 84 AJ 866; Henkin (1999) 68 Fordham lr 1; Krasner, Sovereignty: Organized Hypocrisy. 131 See Whiteman, 1 Digest 911–16; Jennings (1967) 121 HR 350–2; Arangio Ruiz (1975) OZFÖR 265, 260; Verhoeven, Reconnaisance, 66–71. 132 Cf Genocide case (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections), ICJ Rep 1996 pp. 595, 621–2 (citing Vienna Convention on the Law of Treaties, Art 7(2)(a)). 133 State Succession (1967), vol i, 5–6. 134 Ibid, vol i. vi. 135 Ibid, vol i, 7; ii, vi.

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in political, social and administrative structure.136 He thus advocates a return to the eighteenth-century position of practical assimilation of changes of State and government.137 It is true that some changes of government have greater and more traumatic effects than most changes of statehood (as with Russia in the period after the Revolution of 1917). Nonetheless it is a reasonable assumption that changes in statehood are more likely to have greater social and structural importance than changes in government. In any event, international law does distinguish between change of State personality and change of the government of the State.138 There is a strong presumption that the State continues to exist, with its rights and obligations, despite revolutionary changes in government, or despite a period in which there is no, or no effective, government. Belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.139 The legal position of governments-inexile is dependent on the distinction between government and State.140 So also is the characterization of a lengthy conflict such as the Spanish Civil War as a ‘civil’ rather than as ‘international’ war.141 The concept of representation of States in international organizations also depends upon the distinction.142 Moreover, in arguing for a closer identification of ‘State’ and ‘government’, O’Connell sought to maximize the extent to which treaty and other obligations are transmitted from one State to its successor.143 In other words he was trying to draw from the relative stability secured by the principle of State continuity a similar stability for the law of State succession. But the law of State succession 136 137 138 139

Ibid, vol ii, vi. Ibid, vol i 1, 7. Wright (1952) 46 AJ 299, 307; Jessup, Modern Law of Nations, 43. The occupation of Iraq in 2003 illustrated the difference between ‘government’ and ‘State’; when Members of the Security Council, after adopting SC res 1511, 16 October 2003, called for the rapid ‘restoration of Iraq’s sovereignty’, they did not imply that Iraq had ceased to exist as a State but that normal governmental arrangements should be restored. See Grant (2003) 97 AJ 823, 836–7. 140 Whiteman, 1 Digest 921–30; Oppenheimer (1942) 26 AJ 568–95; Verhoeven, Reconnaissance, 76–83. On governments-in-exile, see Talmon, Recognition of Governments in International Law. For the special case of the Baltic States of Estonia, Latvia and Lithuania, see Grant (2001) 1 Baltic ybil 23, 41–9. 141 For the distinction between government and State in the Spanish Civil War, see Government of Spain v Chancery Lane Safe Deposit Ltd; State of Spain v Chancery Lane Safe Deposit Ltd, The Times, 26 May 1939; noted (1944) 21 by 195. See also Spanish Civil War Pension Case (1978, Federal Social Court, frg) 80 ilr 666, 668–70. 142 The transition of the fry (Serbia & Montenegro) from predecessor to successor State is discussed in Chapter 17. 143 Cf State Succession, vol i, 30–5. The argument, for opposite reasons, was advanced by La Forest (1966) 60 pas 103; cf the reactions of Briggs, ibid, 125, Aufricht, ibid, 126. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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has developed otherwise:144 it has come to be accepted that successor States, in particular newly independent States, have substantial freedom as to the succession of treaty rights and obligations, although with certain exceptions.145 To obliterate the distinction between ‘change of State’ and ‘change of government’ would now only decrease the stability of legal relations. (5) State Continuity and State Succession There is then a clear distinction in principle between the legal personality of the State and its government for the time being.146 This serves to distinguish in turn the field of State personality (which includes the topics of identity and ­continuity of States) and that of State succession.147 State succession depends upon the conclusion reached as to State personality.148 This is not to say, however, that the topic of State succession is irrelevant to this study. Views taken of particular State succession situations may illuminate related problems of personality. In some areas, at least, the principles and policy considerations involved are similar. The problem of ‘State succession’ in the case of devolving territories such as the British Dominions, 1919 to 1945, was in part a matter of succession and in part a matter of personality or agency. Nonetheless the concepts of continuity and succession remain distinct, and blurring them serves no useful goal.149 144 See Crawford, Selected Essays, 243 for a detailed study in the context of O’Connell’s own work and that of the ILC. 145 In recent practice the recognition of newly emergent States has often been conditional on their acceptance of obligations arising under certain treaties to which the ‘parent’ State had been party. The 1991 EC Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union provided that States accept ‘all relevant commitments with regard to disarmament and nuclear nonproliferation as well as to security and regional stability’ ‘31 ilm 1486’. European States required, under the rubric of disarmament, that States established on the territory of the former Soviet Union accept the obligations contained in the Treaty on Conventional Armed Forces in Europe, which the Soviet Union had signed on 19 November 1990 (30 ilm 1 (1991)). See, e.g., 63 BY 637 (EC Presidency statement regarding Kyrghyzstan and Tadzhikistan, specifying requirement to observe, inter alia, the Treaty on Conventional Armed Forces in Europe). This practice has tended to be specific and of variable quality; its impact on general issues of treaty succession is doubtful. 146 Cf O’Connell, State Succession, vol i, 3; O’Connell, 1972 Grotius SP 23, 26–8; Charpentier, Reconnaissance, 15–16. 147 Marek, Identity and Continuity, 9–14, describes the two as ‘mutually exclusive’; cf Pereira, Succession d’États en Matière de Traité, 7–11. The ILC resisted attempts at eroding the distinction in its work on State succession: see, e.g., ILC Ybk, 1974/ii(1), 14–16, 30–1. 148 Hall, International Law (8th edn), 114, cited O’Connell, State Succession, vol i, 3. 149 For the outcome of the ILC’s work on State succession see Vienna Convention on Succession of States in respect of Treaties (1978) (entered into force 6 November 1996), 1946 unts 3, (1978) 17 ilm 1488; Vienna Convention on Succession of States in respect of State Property, Archives and Debts (1983), (1983) 22 ilm 298, A/CONF/117/15, 7 April 1983. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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part 4 Sovereignty, Territory, Jurisdiction and Space

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Chapter 46

Robert Y. Jennings, The Acquisition of Territory in International Law, 1963 Comment by Sir Michael Wood, Member, International Law Commission Chapter V of Professor Jennings’ impressive (though concise) volume on the acquisition of territory comprises the fifth of his Melland Schill lectures delivered at the University of Manchester in 1962 and published in 1963. (This prestigious lecture series was happily revived, after a gap of some 40 years, in 2014.) There have been many relevant developments since these lectures were given in the early 1960s. They include the Friendly Relations Declaration (1970),a the Definition of Aggression (1974),b the Statute of the ICCc (and the Kampala amendments),d as well as many conflicts and territorial changes, including in Europe and the Middle East, not to speak of the expansion of United Nations membership from 104 States when the chapter was written to 193 States now. Jennings would undoubtedly have taken these matters into account had he been giving the lectures today; and he would have had to grapple with certain judgments of the ICJ, including the 1986 Nicaragua judgment,e from which he dissented. The questions he discusses remain relevant today and are indeed, in some respects, even more topical than in 1962. They include the political as well as the legal considerations that may be involved in a territorial “claim”; geographical and historical considerations; and self-determination, in connection with which he discusses the legal effects, if any, of Resolution 1514 (XV) of 1960.f a Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA Res 25/2625 (24 October 1970). b Definition of Aggression, UNGA Res 29/3314 (14 December 1974). c Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 unts 38544 (Rome Statute). d Amendments to Article 8 of the Rome Statute 2010 (adopted 10 June 2010) RC/Res.5; The Crime of Aggression 2010, (adopted 11 June 2010. Entry into force 17 July 2018) RC/Res.6. e Dissenting Opinion of Judge Sir Robert Jennings, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment of 27 June 1986: ICJ Reports [1986] 14, at pp. 528–536. [In this Anthology, Ch 2, 12] f Declaration on the Granting of Independence to Colonial Countries and Peoples 1960, UNGA Res 1514 (xv) (14 December 1960).

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_047

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The discussion on self-help could be considered controversial. However, Jennings’ treatment of the issue serves as a pointed observation on the contradiction between rules of international law and lack of enforcement in the international plane. In cases where a State recovers its own territory using selfhelp, the result may seem permissible from the perspective of title to territory, despite the outlawed use of force. It is this peculiar result, stemming from the very nature of the international legal system that he presumably wished to highlight. In any event, his account might have been different were he able to take into account the law as reflected in the Friendly Relations Declaration or Nicaragua or the 1982 invasion of the Falklands. In this chapter, which has retained the qualities of a lecture, Jennings displays his command of political as well as legal reality, and his clarity of thought. He wears his learning lightly. The text is, as always with Jennings, expressed in plain English. It is a pleasure to read.

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R. Jennings, The Acquisition of Territory in International Law (Manchester University Press 1963). Excerpt: Chapter v, Legal claims and political claims, pp. 69–87.

Legal Claims and Political Claims Robert Y. Jennings We noticed at the outset of these lectures that the orthodox rules governing the acquisition of territorial sovereignty seem to have played a relatively minor role in actual territorial changes. The reason is not far to seek. This traditional law is, as it were, a system of conveyancing law. It is almost exclusively concerned with the ‘modes’ by which territorial sovereignty is transferred from one State to another. It has little or nothing to do with the much more important policy question whether territory should be conveyed at all, and to whom. On the contrary, it assumes the old individualistic international society in which these questions of policy were determined by the outcome of struggles for power between sovereign States. The great historical redistributions of territory have resulted from the resolutions of peace conferences in which the victor’s will has been applied by constraint. To interpret these important changes in the balance of power simply in terms of the legal techniques of cession or subjugation is to take a view of the situation that is so narrow and partial as almost to border on the irrelevant; yet this does no more than reflect accurately the minute part that law has been allowed to play in these great historical movements crystallized in the shifts of territorial sovereignty. It is against this background that we must view the supremely important change in the law which has resulted in making unlawful the use of force or threat of force in international relations. For, whether or not we believe that this new law may be taken so far as actually to vitiate a title gained by force, the inescapable effect of this change in the law is that the traditional mode of bringing about territorial change is largely forbidden. Obviously the next question, therefore, is to ask what constitutional procedures of change are going to take the place of the old law of self-help. We have already noticed that there is a weakness in any system that forbids self-help but does not insist on the recourse to courts for the definition and enforcement of rights; it is equally true that it may not be possible for more than a temporary period to maintain a system that forbids self-help but fails to provide a satisfactory legal machinery for effecting a change in the ownership of rights. For although the determination of policy is not a legal matter, the question of the procedures for the determination of policy clearly is a legal matter. As we shall see in a moment, some Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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beginning has indeed been made in the constitution of some such machinery; but first a brief word in general about this problem of change in relation to territorial sovereignty. We have discovered, I think, that the bias of the existing law is towards stability, the status quo, and the present effective possession; the tendency of international courts is to let sleeping dogs lie. This is right, for the stability of territorial boundaries must always be the ultimate aim. Some other kinds of legal ordering need to be capable of constant change to meet new needs of a developing society; but in a properly ordered society, territorial boundaries will be among the most stable of all institutions. Over considerable areas the aim has been already achieved; frontiers like that between the United States and Canada—a paradigm of stability and order—are not really uncommon. On the other hand the map of the world is constantly changing. There are the relatively few, but perhaps more significant, uneasy and disputed frontiers— frontiers not only of disputed territory but also frontiers of power—which are the focus of world political tensions, and the symptoms of the failure as yet to achieve a properly ordered society of States.1 It is in these places that international law needs to extend its influence and sway, and in order to do that it will be necessary to devise legal regimes sufficiently flexible to permit of the adjustments to shifting patterns of international power that may be needed for a long time to come. A law which, within narrow limits, seems to sanction only the maintenance of the status quo, is not likely to survive without serious modification in a still rapidly developing society of States. There ought to be some machinery of change which is apt to reflect the sentiment of States generally; for the traditional mode of change—the peace settlement imposed after victory in war and reflecting a momentary predominance of the victorious allies—necessarily tended to perpetuate a pendulum pattern of instability. Once we begin to look further than a mere conveyancing law in the matter of territorial sovereignty, we find I think that there are broadly two developments that can, at any rate for purposes of exposition, be distinguished. First there are certain questions—questions as it were of international constitutional law—concerning institutions and procedures for the making of what are essentially political decisions regarding changes in territorial sovereignty. Secondly, there are some very general conventions or standards, rather than principles of law, that seem to be emerging for the guidance of decision in these matters and pertinent therefore to considerations of justice rather than title; these conventions or standards are perhaps political rather than legal, * [Editors’ note: in the original footnotes started from 1 on each page. For the purpose of this Anthology, we have re-numbered the footnotes in continuous order]. 1 See J.E.S. Faucett, Hague Recueil, 103 (1961—ii), p. 348. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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but since they all have either a legal element or at least appear in the guise of legal principle they demand some mention here, if only to emphasize the need always to attempt to maintain the distinction between questions of legal title and questions analogous to what in the municipal sphere would be called the art of legislation. It will be convenient to deal with this latter question first. It is, if you like, a variant of the constant theme of the importance and difficulty of the distinction de lege lata and de lege ferenda.

Political Claim or Legal Title?

In this connection it is most important to bear constantly in mind the distinction between the question who presently has title and the question whether there ought for this or that reason to be a transfer of title to another. The first question is purely legal and requires a legal answer: the second is essentially a political question—though it may involve a number of ancillary legal questions concerning procedures, the status of certain decisions and so on. Consider the typical case where State X lays claim to a parcel of territory over which State Y is in fact exercising territorial sovereignty. This may be a claim that the title to exercise territorial sovereignty in the disputed land is presently vested in law in State X. This is a purely legal claim. Or it may be a claim that, although the legal title to territorial sovereignty is admittedly presently vested in Y, there are good reasons why the legal position ought to be changed in favour of X. This is a political claim. Or, more commonly the claim may comprise undifferentiated arguments or allegations of both kinds: undifferentiated because it is not usually in the interest of the claimant, at any rate in the initial stages of a dispute, to specify whether he is in effect claiming on a ground apt to a judicial decision or on a ground apt to a legislative decision, or to both in the alternative; particularly is this so, of course, in the context of a legal order in which the jurisdiction of the court is not compulsory and where the legislative function is either non-existent or embryonic. The importance of the distinction between the two kinds of claim becomes clearer if we consider again2 the case where a State claims legal title to territory actually in the possession of another State, and proceeds to use force in order to recover its possession. If in fact its claim is justified, that is to say if it does indeed have the legal title to the sovereignty, then it would seem that this is not an employment of force contrary to the provisions of Article 2(4) of the Charter. It cannot be force used against the territorial integrity or political 2 See above at p. 66. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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independence of another State because the actor State is merely occupying its own territory. The matter is one within its domestic jurisdiction.3 But on the other hand all this is only true if the claim to possess title is indeed well founded. And since the establishment of a valid title is, as is easily appreciated from the cases, by no means a simple matter, it is not to be expected that a particular issue of title will usually be so very clear as to justify forcible action by a claimant State on the mere strength of its own case. Yet what is the claimant State to do, in view of the fact that it is probably unlikely that the possessing State will consent to submit to the jurisdiction of the International Court of Justice for a proper determination of the question of title? This would seem to be the kind of case where a unilateral application to the Court, even though there is prima facie no jurisdiction in the Court, is amply justified. And it would seem reasonable to suggest that where a State does believe that it has a good legal title to territory presently in the possession of another State, it ought to challenge the latter State by making a unilateral application to the Court, before it can feel justified in taking forcible action even though, if its case is justified, the action may be domestic action and no breach of the Charter. And certainly also it ought, if it has repossessed the territory by force, to be willing even thereafter to submit the question of title to the Court at the suit of the newly dispossessed State; although strictly of course there is no legal obligation to submit to the Court either way. Even so, where force is alleged to be justified on the ground of an existing legal title, and can in the nature of things only be justified on that ground, there must be a strong presumption against the validity of such an alleged title where the claimant is not willing to have that claim properly determined in a Court of law. And it is submitted that the political organs of the United Nations, if faced with the question whether the use of force was or was not lawful, would be justified in acting on the basis 3 See e.g. the Indian argument over Goa, Security Council verbatim records, S/PV.987, December 18, 1961, p. 83: ‘The action taken by India is not action taken against another State for territorial aggrandizement, such as was envisaged in the Charter. It is not an invasion of a ­Portuguese population, for neither the land nor the people of Goa is Portuguese by any stretch of the imagination. India’s action is to liberate Indian national territory.’ Of course it must be immediately added that in this particular case the argument fails to take account of the fact that India had herself recognized Portuguese title in 1950, 1953, and again in the Right of Passage case. Of course the converse argument may also be found. British operations in Oman in 1955, which the United Kingdom regarded as domestic, were in some quarters described as an invasion of an independent State. By a note dated September 29, 1960, 10 Arab States demanded that the question be placed upon the agenda of the 15th session of the General Assembly (Doc. A/4521). The question was eventually adjourned. The matter had also been before the Security Council, though without result, in 1957.

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of a presumption that it is unlawful as long as the unwillingness to submit the case to the Court is present. Such a presumption would go some way towards mitigating what is potentially a highly dangerous situation, where a right of recaption may be alleged, yet coupled with the right to maintain a refusal to have the existence of the right challenged in a court of law. In actual cases the issue is seldom as simple as the case which rests upon strictly legal arguments relative to the existence in law of a present title. Almost invariably the case will be mixed, including legal arguments to establish a present title, and political arguments, i.e. arguments the true tendency of which is that even if the present title is in another it ought to be shifted to the claimant. Now it is perfectly clear that the latter class of argument, be it never so strong and persuasive, cannot, if standing alone, justify in law the use of force to repossess. On the contrary, it is tantamount to an admission that the present legal title is elsewhere; and if that is the position an attempt at selfhelp must be forbidden by the law. Thus, although the distinction between the effects of legal claims and political claims is so obviously of primary importance, it must be confessed that the distinction is an elusive one when applied to concrete cases. And of course it is at once apparent that the concept of a consolidation of historic title, valuable as it is in many respects, does not make this particular problem any easier, for its very nature is to allow scope for many indicia of approbation, primarily political in origin, as elements in the build-up of legal title. Nor is the situation made any the easier by the fact that, until very recently at any rate, the basic distinction between the conveyance of a title and the mere taking of the land was imperfectly realized in international law. Furthermore, it must be remembered that political arguments and claims feature principally in political ­organs, such as the Security Council or General Assembly of the United Nations, where both the nature and relevance of the distinction between legal and political claims are not appreciated, or even noticed, as much as one might wish. It may be useful to look very briefly at some points where the political and legal approaches to a question of title come so very close together as to be distinguishable only with difficulty.

Geographical Considerations

Take, for example, geographical considerations. It is well known that claims to territory have frequently imported geographical arguments; and in particular the notion of contiguity, or continuity, has gained considerable respectability. The discussion of contiguity usually begins from what was said about it in the

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Island of Palmas case. The gist of the orthodox appreciation of the place of contiguity in the law is expressed thus by Professor Waldock:4 The hinterland and contiguity doctrines as well as other geographical doctrines were much in vogue in the nineteenth century. They were ­invoked primarily to mark out areas claimed for future occupation. But, by the end of the century, international law had decisively rejected geographical doctrines as distinct legal roots of title and had made effective occupation the sole test of establishment of title to new lands. Geographical proximity, together with other geographical considerations, is certainly relevant, but as a fact assisting the determination of the limits of an effective occupation, not as an independent source of title. In one sense, the proposition that contiguity is not an independent root of title is self-evident, for it is by definition relative and immediately raises the question, contiguous to what? A claim based on contiguity cannot in fact be other than an assertion concerning the definition or extent of a sovereignty the existence of which is accepted ex hypothesi. Contiguity is an aspect of possession. It cannot be a root of title independent of possession. Thus, assuming that a certain parcel of territory is ‘contiguous’ in a geographical sense to a certain sovereignty, this can never mean that the same sovereign has title over that parcel of territory without more ado. It does not constitute, like the territorial sea, an inalienable appurtenance, in the sense that it could not in law belong to any other State than that which is sovereign over the principal territory; for State practice provides no evidence whatever that would warrant such a proposition. Contiguity is no more than evidence raising some sort of presumption of effective occupation; a presumption that may be rebutted by better evidence of sovereign possession by a rival claimant. If this were not so, a State might be able to argue that it had legal title over a ‘contiguous’ territory over which another State already enjoys a title coupled with possession. It might mean, to take an obvious example, that Spain might assert not merely a claim to Gibraltar but a presently existing title. The reason which negatives this possibility in law is the very existence of another title over the ‘contiguous’ territory, supported by possession. In the Island of Palmas case the consideration of contiguity might have been decisive had it not been that the Island was found to be in the actual and not merely the notional possession of a rival sovereign. As the court pointed out in the Eastern Greenland 4 British Year Book of International Law, vol. 25 (1948), p. 342. See also pp. 342 ff. for an important discussion of this subject.

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case, the question of possession, where there are rival claims to be decided, is a relative one.5 Contiguity as a factor in legal title is only relevant to certain presumptions concerning the definition of the area of an existing occupation; its strength depends upon the presence and relative strength of any rival occupation. Yet if we go on to ask why contiguity may, subject to these limitations, create a presumption that a sovereign possession of one area of territory includes another, the answer must be that it appears reasonable—for reasons other than purely legal ones—that the one territory should be held in the same sovereignty as the other. These are the very considerations, however, which underlie the plea when it is used as a basis for what is essentially a political claim to territory presently subject to the sovereignty of another State which has the legal title. It may, therefore, be far from easy to keep the two kinds of claim distinct; and obviously a State making a political claim has no interest in ensuring that the ambiguity of the term ‘claim’ is resolved, but rather the contrary. If a political argument can be made to possess legal overtones, and the legal distinction between meum and tuum blurred, the claimant may be enabled to convey the impression to others and, perhaps more importantly, to himself that he already possesses a claim in the sense of a legal title. But it is a distinction the lawyer must keep clear, because of the vital relationship of title to the use of force, that we have already noted.

Historical Continuity

It may be convenient here to make a brief reference to a notion not far removed from contiguity, which is sometimes made the basis of claims for a change of title and which may perhaps be called the principle of historical continuity. Mention has already been made in an earlier lecture of a kind of principle of inertia by which the frontiers of territorial units tend—except in those few areas where world tensions focus—to persist even through changes of sovereignty. The argument that what has at some time in the past been a territorial unit of nationhood, or even a territorial unit of administration by a colonial power, should persist under a new sovereignty, may run directly counter to the direction of the principle of self-determination. This is, therefore, a claim which seems to some extent to be characteristic of the neo-imperialism of some of the newly independent ex-colonial territories. 5 See above at p. 6. [Editors’ note: not included in this Anthology].

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An example is the Indonesian claim to West New Guinea.6 This rests, of course, on a number of arguments. To some extent it is a question of interpretation of agreements. But certainly one aspect of the claim is, to quote from an Explanatory Memorandum7 sent by Indonesia to the Secretary General of the United Nations, that ‘West Irian [viz: West New Guinea] is and always has been—historically as well as constitutionally (legally)—an integral part of the territory of Indonesia; that is to say, also, of the former Netherlands East Indies’.8 A case which likewise proceeds in part on similar lines is the claim of Morocco to be entitled to incorporate the newly-independent territory of Mauretania;9 and also the claim of Iraq to Kuwait.10 The limitations of this kind of argument were made apparent by the reply of the Netherlands delegate in the debate on West New Guinea in the General Assembly’s First ­Committee.11 After describing how, before Dutch influence was gradually extended outwards from Java and Sumatra, ‘the population [of the Dutch East Indies] had not formed one

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It is interesting to note that when the Netherlands representative in the General Assembly, on September 26, 1961, made his remarkable offer to hand over West New Guinea to the United Nations jurisdiction for the purpose of consulting the wishes of the people by plebiscite, the proposal was strongly and even bitterly opposed by Indonesia; nor did it gain any remarkable degree of support in the General Assembly. An agreement was, however, signed on August 15, 1962, by which the U.N. was to administer the territory from October 1, 1962 to May 1, 1963, when it would be handed over to Indonesia. A plebiscite was then to be held in 1969. August 18, 1954. U.N. Doc. A/2694. Cf. also Mr. Barrington (Burma), speaking in the General Assembly’s First Committee, 9th Sess., 1954, Doc. A/C.I./SR.725: ‘It had been claimed during the debate that logically New Guinea was not part of Indonesia. That belated discovery did not bear scrutiny, since for more than a century the Dutch had treated West Irian as a part of Indonesia.’ See U.N. Doc. A/4445/Add 1, September 14, 1960: ‘1. As the Government of Morocco sees it, the dispute is essentially of a territorial nature; that is to say, Mauretania, within the borders at present assigned to it by France, has always been an integral part of national territory.’ The Government of Morocco attempted without success to have this question placed upon the agenda of the 15th General Assembly. The Soviet, however, vetoed Mauretania’s application for admission to the U.N. (Doc. S/PV.911) at a Security Council meeting on December 3, 1960. Iraq’s activities were brought to the notice of the Security Council, for its meeting on July 2, 1961, by Kuwait, acting under Article 35(2) of the Charter (Doc. S/PV.957). Iraq denied that Kuwait was a State, and therefore, it was argued, she could not make any representation under Article 35(2). Kuwait for her part was able to point to her membership of a number of international organizations and to Iraqi acknowledgments of the status of Kuwait. In the result no member of the Security Council, other than the Soviet Union, contested the independent Statehood of Kuwait. Loc. cit., p. 249.

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nation, but had been divided into a large number of small sultanates living in a state of almost perpetual warfare with each other’, he went on to say that, other speakers had not ventured so far back in history but had simply contended that, as Netherlands New Guinea was part of the former Netherlands East Indies, it was therefore now legally part of Indonesia. He wondered whether they realized, for example, that Ceylon had also formed part of the Netherlands East Indies until the Treaty of Amiens in 1802. A logical consequence of their argument would be that Ceylon should also be incorporated in Indonesia. It is not one of our purposes, however, to attempt to assess the merits or demerits in relation to particular claims of these essentially political arguments, but to recognize them as such and to differentiate them if we can from strictly legal arguments touching title.12 But certainly one of the touchstones of this type of essentially political argument, though with legal elements, is that it is inconclusive in the sense that it may usefully be applied to some situations though not to others. It calls for a political decision whether to apply it in a given case or not. Self-Determination Another, and perhaps the most generally recognized, of these guiding principles for the determination of the proper destiny of territories is the principle of self-determination. This has not only a long and respectable tradition but is also sanctioned by Article 1 of the United Nations Charter, which makes one of 12

This difference was virtually admitted by the Indonesian Government in relation to the dispute over West New Guinea when, in 1951, the Netherlands proposed that the question be submitted to the International Court of Justice, and this proposal was rejected by Indonesia on the ground that she considered the problem, in substance, to be one of a political nature and not of a juridical nature: see para. 13 of the Indonesian Explanatory Memorandum of August 18, 1954. See the very instructive speech by Mr. Rocha of Colombia, in the 12th Session of the First Committee, November 20–25, 1957, at p. 202, where he put a series of questions to the Netherlands and Indonesian delegates with a view to separating the legal from the political issues, since the Committee was essentially a political and not a legal body. Cf. also the position of the Guatemalan claim to Belize (British Honduras) and the Guatemalan refusal to act upon the United Kingdom’s specific acceptance of the compulsory jurisdiction of the I.C.J. for this dispute. See Waddell in American Journal of International Law, vol. 55 (1961), p. 464.

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the purposes of the Organization ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’.13 It must be emphasized, however, that this again, though it has legal overtones, is essentially a political principle which may be a useful guide in the making of political decisions. It is not capable of sufficiently exact definition in relation to particular situations to amount to a legal doctrine; and it is therefore inexact to speak of a ‘right’ of self-determination if by that is meant a legal right.14 We have already noticed that self-determination may pull in the opposite direction from both geographical and historical factors. Self-determination is frequently coupled with the technique of plebiscite to give it practical realization; though it is clearly a technique suited only to particular kinds of situations, needs careful international control if it is not to be abused, and usually depends in any case upon the initial agreement of the parties concerned.15 It seems likely that the plebiscite still has a part to play in certain kinds of situation for resolving the question of the proper destination of certain kinds of territory; and indeed the United Nations has already organized plebiscites on a number of occasions.16 So, to sum up thus far, we find a number of these quasi-legal ideas—and there are others we have no time to pause over—that may appear in several different contexts: they may be used to support claims of States to territory presently in the hands of others; they may appear as ancillary arguments in such claims primarily based upon an allegation of present title to territory occupied by another State; they may appear in judgments of tribunals as lending weight to a decision arrived at on more strictly legal reasoning; and finally they may be employed in the actual making of political decisions concerning the destination of particular territories. This latter consideration i­ mmediately raises the further question how far there are any established international

13 14 15 16

See also Art. 55. See Schwarzenberger, A Manual of International Law, 4th ed., 1960, p. 67: ‘The principle of national self-determination is a formative principle of great potency, but not part and parcel of international customary law.’ See, however, Oppenheim-Lauterpacht, op. cit., p. 551, for a discussion of the view sometimes held that a treaty of cession is invalid unless sanctioned by a plebiscite. For Togo, under British administration, on November 7, 1959; in British North Cameroons on November 7, 1959; for both parts of the British Cameroons on February 11–12, 1961; for West Samoa on May 9, 1961. For the U.N. experience with plebiscites see Marcel Merle in Annuaire Français de Droit International, 1961, pp. 425 ff. Merle would add to the four examples of plebiscites proper indicated above, the U.N. supervision of the legislative election in French Togoland in April, 1958, and the referendum in Belgian Ruanda-Urundi in September, 1961. See also Agreement of 1962 over West New Guinea, p. 76 n. 1 above.

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procedures for making decisions of this kind; i.e. not judicial determinations of existing title on the basis of law but decisions concerning changes in title; or, if you like, a process of quasi-legislation in the matter of sovereignty over territory. And to this question we must now turn.

Procedures for Political Decisions Respecting Territory

Clearly, wherever there arises a dispute over territory this may in one way or another come within the jurisdiction of the United Nations, particularly under Chapters VI or VII of the Charter; and decisions or recommendations of the Security Council, or recommendations of the General Assembly may become relevant to the resolving of the dispute. The United Nations has been involved, for example, in what have been, at least in part, mixed political and legal disputes over territorial sovereignty in respect of Kashmir, Israel, Indonesia, West Irian, Kuwait, the Congo, and South-West Africa, to name only the ones that come obviously to mind. To pursue this general jurisdiction further would be to embark upon an investigation of United Nations jurisdiction generally; nor is there opportunity in the space of one lecture to attempt a case history of the territorial aspects of these and similar disputes. It must suffice to observe that the organs of the United Nations may become involved in one way or another in disputes concerning not only legal title to territorial sovereignty but also in policy decisions concerning change in territorial sovereignty. But there is one aspect of United Nations jurisdiction in this regard that merits closer examination. We have already had occasion to notice that a major factor in territorial change has always been, at any rate in recent years, not the adjustment of frontiers between old States but the emergence of new ones carved out from the colonial or metropolitan territory of the old. In its initial stages this process is screened from the operation of traditional international law because it begins, whether as a contention or an evolution, within the sphere of domestic jurisdiction. Even when force is used in the civil struggle this may still be a domestic matter. So that here we have an area where force may still be employed for the purpose virtually of bringing about a change in territorial sovereignty, without necessarily impinging upon the prohibitions on the use of force laid down by international law. The only point, according to the traditional law, where international law impinged upon this process, was at the moment of recognition by third powers of the new State which was by this process accepted into the community of nations and its title to territory accepted and acknowledged as a fact.

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An important variation on this theme was the League of Nations mandate system and then the United Nations trusteeship system, by which the international community has been involved at a much earlier stage in the evolution of colonial peoples towards separate nationhood. It is interesting to recall the curious and significantly inconclusive controversy that arose from the attempt to trace the vesting of territorial sovereignty in mandated territory by reference to the traditional formulae. The truth of the matter was stated by Lord McNair in the International Status of South-West Africa case:17 Upon sovereignty a very few words will suffice. The Mandates System (and the ‘corresponding principles’ of the International Trusteeship system) is a new institution—a new relationship between territory and its inhabitants on the one hand and the government which represents them internationally on the other—a new species of international government, which does not fit into the old conception of sovereignty and which is alien to it. The doctrine of sovereignty has no application to this new system… It is true that the provisions of the United Nations Charter do not contain any clear procedures for ending the status of a trusteeship territory, though Article 76 shows that the regime of trusteeship is intended to be temporary and that the goal is independence.18 But it is a reasonable inference from Article 85 that the termination of a trusteeship status is a matter within the jurisdiction of the General Assembly.19 Perhaps in some ways even more significant is the jurisdiction the United Nations has taken to itself under Chapter XI of the Charter, the so-called Declaration regarding Non-self-governing territories; more significant because this declaration is not limited to certain designated territories but applies generally to territories ‘whose peoples have not yet attained a full measure of selfgovernment’. The system, for political and historical reasons that need not ­concern us, is limited in its application to what may be called ‘colonial’ territories. It does not apply to other national groups who may have some moral

17 18

19

I.C.J. Reports, 1950, p. 150. See Article 76(b): ‘…to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development t­ owards self-government or independence as may be appropriate to the particular ­circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement; …’ See Marcel Merle, op. cit., at p. 427.

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right to independence yet have been annexed by force of arms, e.g. the Baltic States, or Hungary.20 It will be recalled that one of the obligations of the administering State is, according to Article 73(b), ‘to develop self-government’. This, however, is a cautiously drafted provision which falls short of establishing a clear obligation to develop self-government to the point of a separate independence.21 The ­degree of self-government to be attained at any particular time in this ‘progressive development’ is left to vary ‘according to the particular circumstances of each territory and its peoples and their varying stages of development’.22

20

21 22

Cf. Ross, Constitution of the United Nations (1950), 180: ‘By the words “not yet” (cf. the expressions “progressive development” and “degree of development” later on in [Art. 73]) … it is indicated that the article refers exclusively to peoples in colonial territories whose lack of political independence is due historically to their lower political and cultural level, and not to nationality problems and claims for self-government concerning territories which are administered as an integral part of the mother country. Thus Chap. xi will not apply, for instance, to the Faroe Islands or to the Baltic States.’ Indeed, a proposal at San Francisco to include a definite obligation in those terms was rejected. See Goodrich and Hambro, Charter of the United Nations, 2nd ed. (1949), p. 410. There has been an interesting conflict of views on the question whether the administering power or the United Nations is competent to determine when a territory ceases to be non-self-governing. See Toussaint, The Trusteeship System of the United Nations (1960), p. 135. It is interesting to note that the obligation under Article 73(e) to transmit information to the Secretary-General was from the beginning treated almost as one of the indicia of sovereignty for the purpose of consolidating claims to territories: thus the Argentine protested at the United Kingdom making reports on the Falkland Islands, Guatemala objected to British Reports on British Honduras, and Indonesia at one time protested against Netherlands reports on the Netherlands East Indies. Portugal regarded the non-self-governing ‘colonial territories’ subject to her administration as part of the metropolitan territory and therefore not subject to any duty to report under Chapter xi. See the Resolution of the Trusteeship Committee of November 13, 1961, and of the General Assembly of December 15, 1960, calling nevertheless for the reports. This plea on the part of Portugal of course immediately raises the further question of the ambit of Article 2(7) of the Charter forbidding U.N. intervention in matters ‘essentially within the domestic jurisdiction’. See in particular the debates in the Security Council in 1961 relative to the situation in Angola. See a useful summary in Annuaire Français de Droit International, 1961, at pp. 388 and 391. At the 14th General Assembly a committee was set up to report on the principles which should guide States in deciding whether a Report under Article 73 of the Charter was appropriate in respect of a particular territory or not. This committee presented its report at the 15th Session of the General Assembly. The committee unanimously adopted 12 principles, among which the most interesting were, that there was an obligation to report on territories which were geographically separated, or ethnically or culturally distinct; that complete autonomy might be achieved by independence or by free association with, or

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The General Assembly however was perhaps less cautious in its Resolution 1514 of December 14, 1960, known as the Declaration on the Granting of Independence to Colonial Countries and Peoples. This recognizes ‘the passionate yearning for freedom in all dependent peoples and the decisive role of such peoples in the attainment of their independence’, considers ‘the important role of the United Nations in assisting the movement for independence in trust and nonself-governing territories’ and ‘recognizes’ that ‘the peoples of the world ardently desire the end of colonialism in all its manifestations’; and expresses the conviction ‘that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory’. It goes on to declare that ‘the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation’; and it declares that immediate steps shall be taken, in trust and non-self-governing territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom. Thus the Resolution assumes that self-determination is one of the ‘fundamental human rights’; it posits the concept of a ‘people’ as the unit qualifying for the right to independent nationhood, and furthermore suggests that such a ‘people’ has a present right to the ‘integrity’ of its ‘national territory’. Resolution 1514 is essentially a political document, and with its political wisdom or otherwise we are not here concerned. Nor are the ‘rights’ of which it speaks legal rights of the kind that could be vindicated before a court. Yet the resolution does call for action23 on the part of administering States; and

23

integration with, an independent State. The Report was adopted, with a few changes, by the General Assembly (A/Res/1541/xv of December 15, 1960). The General Assembly at its next, i.e. its sixteenth, session, noted that for the most part the Declaration had not been carried out, and on November 27, 1961, passed another Resolution setting up a special committee to ensure the implementation of Resolution 1514 and calling upon the States concerned ‘to take action without further delay’ to implement the Resolution. This Resolution was passed by 97 votes to 0 with 4 abstentions. Nevertheless, the General Assembly has been chary of setting any actual dates for the implementation of these aims, and a mischievous Soviet proposal to proclaim 1962 as ‘the year for the elimination of colonialism’, was defeated.

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although its assertions are both political and very general, the question suggests itself how far Resolutions of this sort may be, or become, relevant to questions of legal title to territorial sovereignty; more particularly perhaps in the case where a specific recommendation is addressed to a particular party.24 The legal effect of recommendations of the General Assembly addressed to Member States is a large and difficult matter on which there is room for many opinions, and it is clearly not possible to enter upon it in any detail here.25 It is obvious that the recommendations of the General Assembly are only recommendations and are certainly not legally binding upon Member States in the sense that full effect must be given to them. Yet, as Judge Lauterpacht pointed out in the Voting Procedure Case,26 where he examined this question with great care, it does not follow that the recommendations ‘have no force at all whether legal or other’, for, he said, A Resolution recommending to an Administering State a specific course of action creates some legal obligation which, however rudimentary, elastic and imperfect, is nevertheless a legal obligation and constitutes a measure of supervision. The State in question, while not bound to accept the recommendation, is bound to give it due consideration in good faith. If, having regard to its own responsibility for the good government of the territory, it decides to disregard it, it is bound to explain the reasons for its decision. These obligations appear intangible and almost nominal when compared with the ultimate discretion of the Administering Authority. They nevertheless constitute an obligation. Then, he added, an Administering State which consistently sets itself above the solemnly and repeatedly expressed judgment of the organization, in particular as that judgment approximates to unanimity, may find that it has overstepped the imperceptible line between impropriety and illegality, between discretion and arbitrariness, between the exercise of the legal right 24

25 26

The U.N. has not, of course, hesitated to interpose its authority even in respect of particular countries not subject to trusteeship agreements; see e.g. the setting up of a committee on February 22, 1962, ‘to consider whether Southern Rhodesia has attained a full measure of self-government’. See the important article by Professor D.H.N. Johnson, British Year Book of International Law, vol. 32 (1955–6), pp. 97 ff.; also F.S. Northedge, International Relations, vol. 1, No. 8 (October, 1957). I.C.J. Reports, 1955, p. 67.

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to disregard the recommendation and the abuse of that right, and that it has exposed itself to consequences legitimately following as a legal sanction. Now, of course, it would be wrong to apply this formula, as it stands, to General Assembly Resolutions in general terms. Judge Lauterpacht was dealing primarily at least with a question of the quantum of supervision of Trust Territories. Moreover, this was an individual opinion of Sir Hersch Lauterpacht and cannot therefore be taken as bearing the imprimatur of a dictum of the Court.27 Nevertheless, when all allowances have been made, it remains true that there is weighty authority for the view that Resolutions of the General Assembly may have some sort of legal effect, even if it amounts to little more than an obligation to consider the Resolution in good faith.28 But the question we have to ask ourselves is not so much what kind of legal or quasi-legal obligation the Resolutions of the General Assembly concerning territory lay upon the Member to whom they are directly or indirectly addressed, but what effect, if any, they could have upon the question of title. At first sight it would seem they could have none, for even if a Resolution might impose some kind of obligation upon a Member to consider in good faith a programme for the granting of eventual independence to a dependent territory by a particular time, this personal obligation, even if it were a more perfect one, could not of itself effect any change in sovereignty.29 Yet there are two respects in which even so very imperfect an obligation might be considered to have some relevance even to a question of title. Firstly, where force or threat of force is employed to effect a change of sovereignty, but the change is in accord with the requirement of a General Assembly Resolution, it is at least arguable that this latter circumstance should be taken into account in the question whether the use of force has a vitiating effect on a 27 28

29

For the opinions of writers generally on this question see Johnson, op. cit. Notice, however, the important distinction made by Johnson, op. cit., p. 117: ‘But here it is necessary to distinguish. It may be that the course which the General Assembly is recommending is already clearly obligatory under international law. In that event it would not be strictly true to ascribe to the Resolution of the General Assembly a “legal effect”, even though the Member concerned might be legally obliged to comply with the terms of the Resolution. If, however, the course which the General Assembly is “recommending” is not already clearly obligatory under international law, then the vital question which arises is whether a Resolution, or a succession of Resolutions, by the General Assembly can render it so.’ Cf., however, the late Judge Alvarez who expressed the opinion that ‘the Assembly of the United Nations is tending to become an actual legislative power’; see I.C.J. Reports, 1951, p. 52.

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subsequent claim to title. This may not in practice be a very important point because, as we have already noticed, force in the domestic sphere where new sovereignties usually have their beginning is not necessarily a matter governed by the international law prohibitions, and in any case the emergence of the new State tends to be accepted as a fact at recognition. But there are circumstances in which a Resolution of the General Assembly might be relevant to title, where, for example, the pattern is like that of the Portuguese colonies in India, in that the aim of the change is not independence but transfer of territory from one sovereignty to another.30 Secondly, it seems undeniable that a series of Resolutions of the General Assembly, especially if they represent the opinion of a large part of the international community, may be relevant to questions of title to territories a­ lready in possession at least in the sense of forming an ingredient in a process of consolidation of title. If it be true that recognition or acquiescence may be ­important elements of a consolidated title, it seems hardly possible to dismiss as irrelevant a General Assembly Resolution like No. 1514 which was adopted by 89 votes to 0, with only 9 abstentions.31 The representative opinion of the international community, expressed through constitutional procedures,32 must, therefore, be relevant not only to assessing the strength of a political claim to a change of sovereignty, but also to a question of entitlement at any rate when the territory has been reduced to possession. For whatever weight may or may not be given to such general expressions of the opinion of States when assessing a political claim to territory, it seems that actual possession is still the main catalyst for building a legal title. It is possession that turns the scales and puts the claimant for the first time in a position to benefit from various elements that may assist to complete a title by a process of consolidation. Physical possession is the foundation on which alone such a construction can be built and without it the rest remains on the merest political level. Without this actual change of possession these elements can, 30

31 32

Goa is here suggested as a pattern situation, to illustrate the particular problem under discussion. It is not suggested that this represents the solution of the problem of Goa which, of course, involves many other issues, not least the express recognition of Portuguese sovereignty by India on several occasions in years immediately preceding the take-over. The abstaining States were Australia, Belgium, the Dominican Republic, France, Portugal, Spain, the United Kingdom and the United States. The sponsors were 43 Afro-Asian States. Cf. on this point the dictum of the late Judge Alvarez: ‘For the principles of law resulting from the juridical conscience of peoples to have any value, they must have a tangible manifestation, that is to say, they must be expressed by authorized bodies’—I.C.J. Reports, 1951, p. 148.

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it is apprehended, have in present law no legal effect—though of course they may have some political effect—on the title of the existing sovereign. Thus in the present stage of development the law must still be content in the main to follow the facts. Even so seemingly radical a step as Resolution 1514 is, after all, hardly in the van of the ‘irresistible and irreversible’ movement it registers, for this was put in motion by some of the colonial powers themselves before the United Nations was thought of. The hope of immediate progress, therefore, lies not so much in finding new procedures for initiating new policies as for institutionalizing the procedures for coping with those that are already with us. Thus the conclusion we are driven to, I think, is this. Whatever weight may be given to decisions or recommendations of organs of the United Nations in the consolidation of new titles where there has in fact been a change of possession, it is still not possible to suggest that there is even the beginnings of any procedure of legislation or even quasi-legislation in the matter of actual title. Nor will it be possible to say that any beginning has been made on this problem until the law has reached the stage of development where the expression of the will of the international community through constitutional procedures is relevant not only to the building of new titles on a foundation of actual possession but may also act, where appropriate, as a solvent of old titles in p ­ ossession. The treatment of this problem of title to territorial sovereignty in all the books is invariably concentrated on the acquisition of title. But as soon as one begins to think in terms of legislation, the modes of loss of title become at least equally important: these modes of loss of territory all depend upon either a voluntary cession or abandonment by the former sovereign or a forceful deprivation. Only when we can see the beginnings of a constitutional machinery for deprivation of title of territory in possession we can begin to think in terms of legislation in the matter of title. In conclusion, a word of warning must be added. This problem of the relationship of the old law and new policies in a new and developing society of States is one of great complexity as well as difficulty and importance. It will be evident to you, I hope, that, in the time at our disposal in this lecture, we have been able to do little more than to glance at a few selected aspects of it. But obviously there is already a great mass of practice and other material that needs to be investigated, analysed and appraised; and I believe it is here that the immediate tasks of international lawyers in this field lie. There can be few tasks more important, for we must end, as we began, by observing that this problem of the legal ordering of territorial stability and territorial change lies at the heart of the whole problem of the legal ordering of international society.

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Chapter 47

Vaughan Lowe, The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution, 1985 Comment by Dr Patricia Vella de Fremeux, Head of International Law Department, University of Malta Vaughan Lowe QC (born 1952), Emeritus Chichele Professor of Public International Law, has contributed widely to various areas of international law through acting as counsel in a number of significant cases, both international and domestic, and his numerous judicial and arbitral appointments. He is the author of many books and articles on the subject. This piece deals with the problems of extraterritorial jurisdiction, primarily as evidenced in US antitrust legislation, and presents the notion of economic sovereignty as a potential solution. Published in the International and Comparative Law Quarterly in 1985, the article is the summary of a paper delivered in July 1983 at BIICL. It is but one of a number of contributions to the subject Lowe has produced.a Since 1945, the US courts have taken the view that US antitrust laws apply to transactions that affect US commerce which, although not initiated or completed within US territory, nevertheless produce effects within its territory. The classical exposition of this doctrine was laid out in US v Aluminium Company of America wherein it was established that “any State may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the State reprehends.”b Not surprisingly, this approach was negatively received by the international community resulting, inter alia, in blocking statutes by other States.c

a See: V Lowe, ‘Blocking Extraterritorial Jurisdiction: the British Protection of Trading Interests Act, 1980’ (1981) 75 American Journal of International Law 257; V Lowe, Extraterritorial Jurisdiction (Grotius 1983); V Lowe, ‘US Extraterritorial Jurisdiction: the Helms-Burton and D’Amato Acts’, (1997) 46 International & Comparative Law Quarterly 378. b US v Aluminium Company of America (Alcoa) 148 F. 2d 416 (1945) 443. c See, for example: ‘EU Regulation No. 2271/96 Protecting against the Effects of the Extraterritorial Application of Legislation Adopted by a Third Country’, 36 ilm 125 (1997).

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_048

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Presented as a discussion paper rather than a finished analysis, Vaughan Lowe’s article begins with the presentation of the problem by giving an ­overview of the Uranium Trust litigationd and the above-mentioned Alcoa Case. It examines various approaches to a solution, before introducing the notion of economic sovereignty and its potential role in solving such jurisdictional conflicts between States given that the current efforts to find a solution had not been successful. With his usual incisive presentation of arguments, Lowe presents a platform for discussion which has shaped future debate on the subject. As a postgraduate student at Oxford in 1999, I was privileged to learn of his views on this and a number of other areas of international law first-hand. Vaughan Lowe’s enthusiasm and brilliance in tackling these subjects is unparalleled and I consider myself truly fortunate to have been one of a number of individuals whose future careers were shaped by this spectacular scholar in the lecture rooms at All Souls’ College, Oxford. d The Uranium Trust litigation appeared in the English courts in Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434 (HL).

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A.V. Lowe, ‘The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution’ (1985) 34/4 International & Comparative Law Quarterly 724. Reproduced with the kind permission of the British Institute of International and Comparative Law.

The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution Vaughan Lowe* In this article it will be argued that none of the current approaches to “the problem of extraterritorial jurisdiction” is satisfactory, and that the complexity of the problem is such that a satisfactory solution based upon the development of case law or agreed allocations of jurisdiction is impracticable. The “problem” is in truth a bundle of closely related problems, each giving rise to distinct issues of law and policy. However, by acknowledging that the right to control certain elements of economic activity is an essential component of sovereignty, it may be possible to identify a legal principle “economic sovereignty” to guide the resolution of jurisdictional disputes. This article tentatively outlines some possible ways in which attempts to identify the content of economic sovereignty might proceed. The article has three main sections: (1) an introduction to the problem; (2) an examination of some of the characteristics which distinguish different kinds of problem concerning extraterritorial jurisidiction; and (3) a sketch of the concept of economic sovereignty and of the role which it might play in resolving these conflicts. Most of the discussion is placed in the context of competition laws which have been the major, but not the only, source of jurisdictional disputes. I Introduction A The Problem The typical problems arising in connection with extraterritorial jurisdiction are well known. State A will seek to enforce the prescriptions of its legislation against foreign business in respect of their conduct within State B, obliging * Faculty of Law, University of Manchester. This is a summary of a paper delivered at the British Institute of International and Comparative Law in July 1983. It was; and is, intended as a discussion paper rather than a systematic analysis of this topic.

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them to act in a manner at variance with the laws or policies of State B. State B does not regard State A as entitled under international law to regulate that conduct, and the two States are consequently in dispute. Two recent examples will serve as illustrations. The first is the Uranium Antitrust litigation in the United States. In 1964, the United States Government imposed an embargo upon the enrichment in the United States of foreign uranium ore destined for use in the United States. This caused serious difficulties for non-American producers. These producers were, as a result of the embargo, effectively denied access to the 70 per cent of the world market which the United States constituted at that time. The governments of the non-American producing nations therefore took action to protect their domestic producers. In the early 1970s an informal marketing agreement was concluded by those producers, with the approval of their governments, including the governments of Australia, Canada, South Africa and the United Kingdom. That agreement was intended to stabilise the non-American market. It was “a supplier cartel, to survive in the face of the de facto supplier cartel created by the US embargo”1 and it was, broadly speaking, successful. It caused problems for the American company, Westinghouse Electric Corporation, which had contracted during the 1960s to supply uranium for nuclear power stations in the United States. Those contracts had included a price escalation clause, but that clause was inadequate to accommodate the 800 per cent rise in world uranium prices which followed the rise in world oil prices in 1973. Westinghouse could not supply the uranium as it had contracted to do. The power companies sued on the contracts for damages of $2bn. Westinghouse raised the defence of commercial impracticability and in turn sued some members of the cartel for damages of $6bn. in a treble-damage antitrust action. It alleged that the cartel contravened American antitrust laws, in that the effects of the combination were felt on the American market. The litigation is a classic example of the exercise of extraterritorial jurisidiction. American law was applied to non-American companies in respect of their conduct outside America. Indeed, at the time, the members of the cartel were denied access to the American market under protectionist American legislation. The cartel was both lawful in, and approved by the governments of, the countries in which it was organised and operated. The American antitrust action thus sought to oblige the foreign companies to abandon business policies properly adopted under the laws of the foreign States concerned.

1 D.E. Rosenthal and W.M. Knighton, National Laws and International Commerce: The Problem of Extraterritoriality (1982), p. 20. See further E. Gray, The Great Uranium Cartel (1982).

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The Uranium Antitrust litigation involved a claim to jurisdiction based on the “effects” doctrine adumbrated in the Alcoa case.2 The second example involves different bases. Under the Export Administration Act and other legislation, the United States Government has imposed embargoes on certain categories of trade with specified countries, as an instrument of American foreign policy.3 The United States Government issued Export Administration Regulations, which required the prior written authorisation of the United States authorities for the export or re-export to the USSR by anyone of certain equipment intended for use in the Siberian gas pipeline if the equipment itself or the technical data used in its manufacture were of United States origin; authorisation was also required for the export or re-export to the USSR by persons subject to United States’ jurisdiction of any such goods or data not of United States origin. All businesses owned or controlled by United States nationals or residents were regarded as being subject to United States jurisdiction. These requirements were backed by criminal law sanctions. In 1982 several businesses incorporated and trading in European States, and having the nationality of these States in accordance with generally recognised principles of international law, were prevented by the regulations from fulfilling contracts previously and lawfully concluded in conqection with the construction of the Siberian gas pipeline. Some, at least, of the European governments concerned wished the contractual undertakings to be fulfilled. They objected to the American attempt to prevent their fulfilment.4 In this case not only was there no conduct in America, but there was no direct effect on the American market resulting from the acts of the foreign undertakings. The alleged jurisdictional links here were of two kinds–first, a claim that goods and data are subject to the jurisdiction of their State of origin, even when they have lawfully passed into the hands of foreign businesses abroad, and second, a claim that foreign businesses, owned or controlled by persons or corporations which are resident in or nationals of a State, are 2 United States v. Aluminium Co. of America, 148 F. 2d 416 (1946), quoted in A.V. Lowe, Extraterritorial Jurisdiction: An Annotated Collection of Legal Materials (1983), p. 1. See Raymond, “A New Look at the Jurisdiction in Alcoa” (1967) 61 a.j.i.l. 558. 3 See generally A.F. Lowenfeld, Trade Controls for Political Ends (1977); J.P. Murphy and A.T. Downey, “National Security, Foreign Policy and Individual Rights: The Quandary of US Export Controls” (1981) 30 i.c.l.q. 791, and references therein. 4 For accounts of this controversy, see J.W. Bridge, “The Law and Politics of United States Foreign Policy Export Controls” (1984) 4 Legal Studies 2; R. Ergec, La competence extraterritoriale a Ia lumiere du contentieux sur le gazoduc Euro-Siberien (1984); A.V. Lowe, “Public International Law and the Conflict of Laws: The European Response to the United States Export Administration Regulations” (1984) 33 i.c.l.q. 515.

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s­ ubject to the ­jurisdiction of that State. In both cases, the exercise of jurisdiction was designed to force foreign companies to act in a manner contrary to that in which, consistently with the laws and policies of their national States, they would have chosen to act. The disputes over extraterritorial jurisdiction have been running for many years.5 But their political importance at present is great. The imposition by the United States of trade embargoes on its allies seemed to be regarded by the United States as a routine part of its peacetime relations with these countries, even if they wished to pursue independent foreign policies. The embargo on the supply of pipeline equipment to the USSR seriously prejudiced the interests of European businesses, and in some cases seemed likely to result in them making employees redundant at a time when unemployment was at record levels. To make matters worse, the “pipeline” embargo was imposed at a time when the United States felt free to make substantial grain sales to the USSR. Furthermore, because, as will be seen below, American law recognises a defence of foreign sovereign compulsion, only cartels organised under the rules of free-market economies are subject to them. Companies in western countries allied to the United States are thus susceptible to expensive legal actions, whereas monopolistic enterprises organised under the laws of the centrallyplanned economies, whose basic philosophy is rejected by the United States, are not. For these reasons, among others, the extraterritorial claims have been a major irritant in United States foreign relations. Problems have arisen in many industries and have engaged the interests of many countries. At least 16 States6 have enacted laws designed to neutralise the extraterritorial reach of foreign legislation–which in practice usually means United States’ legislation, although the United States is by no means the only claimant to extraterritorial jurisdiction. An effect similar to that produced by such “blocking statutes” has sometimes been produced by courts acting on the basis of more general provisions of domestic law. The Fruehauf case7 is probably the best-known example. There a French court appointed an administrator to the French subsidiary of the US-based Fruehauf Corporation, in order to prevent its controllers from damaging the subsidiary’s interests by forcing it to comply with a United States embargo on trade with the Republic of China. 5 See e.g. Rosenthal and Knighton, op. cit. supra n. 1; A.H. Hermann, Conflict of National Laws with International Business Activity: Issues of Extraterritoriality (1982). 6 Australia, Belgium, Canada, Denmark, Finland, France, the Federal Republic of Germany, Italy, the Netherlands, New Zealand, Norway, the Philippines, South Africa, Sweden, Switzerland and the United Kingdom. For texts, see Lowe, op. cit. supra n. 2. 7 (1966) v i.l.m. 476.

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In addition to these legal measures, there have been many diplomatic protests at claims to extraterritorial jurisdiction.8 The problem is a pressing and serious one. The causes celebres, which have arisen in such fields as sea and air transport, uranium and paper production, watchmaking and lorry manufacture and pipeline technology, have concentrated attention upon the problem and had, in varying degrees, an adverse impact upon relations between the States concerned. But, even apart from these episodes, the problem has a persistent and detrimental effect at a more routine level. For example, the possible subjection of British companies to the extraterritorial application of United States law was one factor which led the British Monopolies and Mergers Commission to recommend that a proposed merger between the British-owned Davy Corporation and the US-owned Enserch Corporation should not be allowed.9 And, on a day-to-day level, the problem caused difficulties for many businessmen unsure of the consequences which their actions and transactions may have under foreign laws. B Current Approaches to a Solution of the Problem There are four broad approaches to the problems of extraterritorial jurisdiction: consultation procedures, unilateral restraint, harmonisation of laws, and agreed allocations of extraterritorial competence. Of these, the first two are of the greatest practical significance at present in the search for a solution. None of them, however, seems to offer a satisfactory basis for a general solution to the problem. Consultation procedures have been formally established on a bilateral basis between the United States and Canada,10 the Federal Republic of Germany,11 and Australia.12 They provide for inter-governmental notification and consultation in circumstances where policies or activities in one State have antitrust implications for the other. Similar provisions appear in many treaties of 8 9 10

11 12

See e.g. the protests collected in the Report of the 51st Session of the International Law Association (1964), pp. 565–592, and in Lowe, op. cit. supra n. 2. Monopolies and Mergers Commission, Enserch Corporation and Davy Corporation Limited: A Report on the Proposed Merger (1981), Cmnd. 8360, pp. 51–53, 66. The Fulton-Rogers Understanding of 1959, and the 1969 Joint Statement concerning Co-operation in Antitrust Matters: see Whiteman, Digest of International Law (1968), Vol. 6, 156; (1969) viii i.l.m. 1305; Lowe, op. cit. supra n. 2, at p. 226. A new agreement was concluded in March 1984: see (1984) xxiii i.l.m. 275. Agreement relating to Mutual Co-operation regarding Restrictive Business Practices, 23 June 1976: Digest of United States Practice in International Law (1976), p. 479; Lowe, op. cit. supra n. 2, at p. 228. Agreement relating to Co-operation on Antitrust Matters, 29 June 1982: (1982) xxi i.l.m. 702; Lowe, op. cit. supra n. 2, at p. 233.

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f­ riendship, commerce and navigation,13 and in a more highly developed form in an influential series of recommendations adopted by the Council of the Organisation for Economic Cooperation and Development.14 None of these provisions resolves the jurisdictional issue in the sense of constituting an agreement on the proper scope of legislation. Disputes over wide jurisdictional claims can and do still arise. The agreements merely determine one forum-ad hoc intergovernmental negotiations-within which disputes can be discussed, without providing principles for resolving them. Valuable as they are in giving some formality to routine contacts between competition authorities of different States, and in allowing foreign interests to be considered by those authorities before investigations and suits are instituted, they do not solve the underlying issue. They are, moreover, of very limited use in systems which allow legislation to be applied with extraterritorial effect in actions instituted by individuals. This is the case in the United States, where the instigators of such suits are regarded as “private Attorneys General”.15 Foreign governments making representations under these procedures to the United States authorities may hope that the United States Government will address the court hearing the private suit on the questions of international law and policy, and the 1982 US-Australia agreement requires that this be done.16 But the government cannot force the abandonment or settlement of the litigation. It is, indeed, questionable as a matter of legal principle how far foreign policy considerations should be allowed to affect the enforcement of what are, after all, private rights being asserted in such litigation. Because they operate within the existing framework of the legislation which makes claims to extraterritorial jurisdiction, these procedures also fail to deal with the problem of prudential compliance with United States laws. British Petroleum is doubtless only one of many companies which, because of its trading interests in the United States and because of the ever-present risk. of lengthy and expensive litigation arising from the extraterritorial application of United States laws, “takes great care that every one of its contracts, whether in the United States or anywhere else … complies wholly with United States antitrust 13

14 15 16

E.g. Art. xviii of the treaty between the United States and the Federal Republic of Germany (273 u.n.t.s. 3); and Arts. xv and xxiii of the treaty establishing a free trade area, made by the UK and Ireland (565 u.n.t.s. 58); cf. Arts. 15, 31 and 33 of the efta Convention 1960 (370 u.n.t.s. 3). Recommendations dated 5 Oct. 1967, 3 July 1973, 20 July 1978 and 25 Sept. 1979: Lowe, op. cit. supra n. 2, at pp. 243–254. See e.g. the Note from the US Embassy in London to the UK Government, 9 Nov. 1979 (1982) xxi i.l.m. 840; Lowe, op. cit. supra n. 2, at p. 178. Supra n. 12, Art. 6.

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legislation.”17 Thus, de facto compliance with those laws may result wherever there is a real risk of an American court, however unjustifiably in the eyes of other States or of international law, finding that a transaction falls within the wide jurisdictional ambit of American laws: the taking of steps to enforce the law–the stage at which consultation procedures come into play–is not necessary to secure compliance. Unilateral restraint is an essential component of the “consultation” scheme. In each case where the consultation procedure has been invoked and the governmental authorities have been unwilling or unable to abandon proceedings, it will be for the courts to decide whether or not jurisdiction exists. In recent years United States courts have favoured the “balancing of interests” approach to determinations of jurisdiction, in an attempt to accommodate the interests of foreign States.18 Again, this development is as welcome as any other indication of increased awareness of the international implications of national laws for foreign businesses. But it is no more satisfactory as a solution to the extraterritorial problem than are consultation procedures. At least in the eyes of some of its exponents, the “balancing” process involves the domestic court in deciding whether or not to exercise its jurisdiction by weighing all the interests, private and governmental and domestic and foreign, engaged in the litigation.19 But many foreign States would take the view that in some circumstances the court has no jurisdiction whatever, whether or not it chooses to exercise it, and that use of the “balancing” process obscures this crucial point. Even if the existence of jurisdiction (which is a precondition of the existence of judicial discretion and of its exercise in the circumstances of any particular case) were conceded, many would agree that a municipal court is not an appropriate tribunal to balance competing international interests.20 The use of the metaphor of “balancing” or “weighing” 17 18

19 20

Parliamentary Debates, House of Commons, Standing Committee F, Protection of Trading Interests Act, 2nd Sitting (6 Dec. 1979), cols. 52–53. Timberlane Lumber Co. v. Bank of America, 549 F. 2d 597 (1976); Lowe, op. cit. supra n. 2, at p. 15; Mannington Mills v. Congoleum Corp., 595 F. 2d 1287 (1979); Lowe, idem, p. 31; Dominicus Americana Bohio v. Gulf & Western, 473 F. Supp. 680 (1979); Lowe, idem, p. 45; and cf. the Tentative Draft Restatement, Foreign Relations Law of the United States (1981), Secs. 402, 403, 415, 418; Lowe, idem, p. 58. See the majority decision in Mannington Mills. Adams J in Mannington Mills and the court in Timberlane regard the “balancing” test as going to the question of the existence of jurisdiction. See e.g. the address of Australian Attorney-General Peter Durack to the American Bar Association, 12 Aug. 1981 (Lowe, op. cit. supra n. 2, at pp. 90, 94–95) and the comments of American judges Marshall and Choy in the Westinghouse and OPEC cases, quoted therein.

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interests gives an ­unwarranted impression of objectivity to the process; it could more a­ ppropriately be termed the “thinking about some relevant factors” approach, although even that does not adequately suggest the fundamental difficulties concerning whether and how a municipal court should arrive at its own evaluation of foreign interests21 and of determining the relative importance of the various categories of interest listed in the seminal Timberlane decision and elsewhere. It is often said that a man should be able to discover with reasonable certainty what the scope of the obligations which the law of his country imposes upon him might be. It cannot be less important that he should be able to determine whether or not he is required to comply with the prescriptions of a foreign legal system. But the “balancing of interests” approach does little to help in this respect. It necessarily produces determinations on the jurisdictional question ex post facto, and everything turns upon the particular combination of interests arising and the way in which they are presented in any particular case. This makes it extremely difficult to infer general rules or principles from decided cases. Moreover, as Professor Maier22 has noted, it is unlikely that any such rules would be satisfactory even if they were to emerge. Courts tend to decide on the basis of the immediate short-term interests involved in any case, and give scant attention to the need for developing “systemic” criteria, designed to facilitate the workings of the international system as a whole rather than merely to dispose of particular cases as they arise. Again, it is likely that many will comply prudentially with the laws in question because they can never be sure that they will not be found to be within their reach. In short, the balancing of interests approach is a vague system, operated by inappropriate tribunals, with unpredictable results, in cases which often should not be before these tribunals at all. Indeed, judicial restraint can never lead to a system where the rules of jurisdiction are as clear, comprehensive, and closely tailored to the demands of the international legal system as they could be if legislatures assumed the responsibility for keeping their laws within the limits prescribed by international law. Harmonisation of the substantive provisions of national laws offers one way out of jurisdictional conflicts. There may be, for example, a bilateral agreement allowing each State to tax the profits of home-based airlines arising from traffic 21 22

See the comments of the Canadian Government in the amicus curiae brief submitted on 1 July 1980 in the course of the Uranium Antitrust litigation: Lowe, op. cit. supra n. 2, at pp. 108, 109. H.G. Maier, “Extraterritorial Jurisdiction at a Crossroads: An Intersection between Public and Private International Law” (1982) 76 a.j.i.l. 280.

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between the two parties.23 The reach of their tax laws is thereby harmonised, by a more or less arbitrary allocation of competence, so as to avoid conflict. In one sense, the EEC competition policy is an example of this approach on a grand scale, avoiding many conflicts of national competition laws in so far as they operate within the EEC by establishing a single system integrated into the national legal orders. But this approach can never solve the problem: first, it makes no attempt to solve, but only to avoid the problems of extraterritoriality, and, second, the wholly desirable avoidance of conflicts is only possible in circumstances where States are prepared to compromise national policies in order to harmonise them. As long as there are important national policies which diverge to such an extent that harmonisation is not possible, the problem will remain. Agreed allocations of extraterritorial competence come closest to the actual resolution of the jurisdictional conflicts. Indeed, within their very limited areas of operation, they do solve such conflicts, by international agreement. An example is Article VIII.2. (b) of the International Monetary Fund Agreement, in which the members agreed that “exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member”. In this way, members agree to allow each other’s exchange control regulations to have extraterritorial effect and so to determine some of the rights and duties in respect of the currencies concerned within their territory. Such an agreement on competition and other laws–improbable as it is would solve many of the jurisdictional conflicts which they engender. But such agreements are exceptional, and perhaps only workable in the particular context of monetary law. However, it may be noted in passing that the United States’ claims to jurisdiction over United States technology and data appear in many ways to be analogous to the claims to have national jurisdiction follow a State’s currency around the globe, and it may be that a careful examination of the juridical treatment of currencies would suggest techniques capable of applications in the context of other economic laws.24 None of the existing approaches to the resolution of jurisdictional conflicts appears, at present, to be wholly satisfactory, because none of them is likely 23 24

See e.g. the UK-Ethiopia Exchange of Notes for the Avoidance of Double Taxation on Profits derived from Air Transport, u.k.t.s. No. 97 (1978), Cmnd. 7381. A less optimistic analogy might be drawn with Romalpa clauses. Certainly, any scheme for allowing jurisdiction to follow technology and data would have to get to grips with the problems of resale, mixing in finished products and so on, which attend the use of Romalpa clauses.

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to produce a comprehensive, internationally acceptable set of rules of sufficient certainty and specificity to ensure that national laws are kept within their proper limits, and to enable those who might be affected by these laws to determine their legal position in relation to them. Accordingly, cases where businesses in one State are ordered to obey the laws of another are almost certain to continue to arise, and it is likely that in some of those cases the “home” State of the business will object to what will, in general terms, be seen as an interference in its domestic affairs. In the next part of this article it is argued that because the problem of extraterritorial jurisdiction is in fact not a single problem, but rather a bundle of closely related problems, it is not likely to be possible to establish on any rational basis a comprehensive set of detailed rules for resolving the problem in all its manifestations although, as will be argued in the final section, recourse can and should be had to legal principles in deciding such disputes. II

Distinguishing the Problems of Extraterritorial Jurisdiction

The complexity of what is commonly referred to as the (singular) problem or issue of extraterritorial jurisdiction can be shown by distinguishing between different issues of principle which arise in specific cases. This part of the article sets out a number of examples of the ways in which cases could be classified according to the issues of principle to which they give rise. The bases of classification or categories are cumulative, in the sense that the characteristics of any specific case in terms of each of the categories are relevant to the resolution of the jurisdictional problem. No dispute could rationally be decided on the basis of characteristics of the case in terms of a single category: it is the positon of the case in the matrix constituted by all the categories which is crucial. The following examples of categories are not exhaustive: doubtless other significant categories could be discerned. A Categories of Law Distinctions are sometimes drawn between the jurisdictional reach of different kinds of legislation. For example, in a speech made at the Royal Institute of International Affairs on 21 October 1982, UK Trade Minister, Peter Rees, said: …we think that the effects doctrine as applied in the antitrust field has been developed by mistaken anology with the doctrines on personal injury cases (the cases about pistols fired into a country from outside its borders). We follow for our part the classical objective territorial position.

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Our position implies that the pistol type cases, such as the Regina versus Doot in 1973, which are arguably about where the act takes place or is completed, rather than about effects, should be distinguished from those in the very sphere of economic activities.25 This distinction is right, and not unusual in international law. It is, for example, of fundamental importance in determining the scope of a State’s maritime jurisdiction, which may be exercised for some purposes but not for others in any given zone. The distinction has two main consequences. First, it limits the category of State practice to which recourse may properly be had when attempting to infer rules of customary law permitting the exercise of extraterritorial jurisdiction in any given case. Extraterritorial claims in “pistol” type cases do not support such claims in the economic sphere. Second, it draws attention to the underlying policy issue. Extraterritorial claims are more likely to be acceptable when used in service of legislation upholding generally-held values, such as personal safety and perhaps the prevention of corrupt practices, than when used to advance more parochial policies, as is the case in much competition, tax and export administration legislation. It should not be assumed that all laws must fit into the same jurisdictional framework. B Linking Points Some extraterritorial claims are more objectionable than–or objectionable in different ways from–others. Thus, claims to jurisdiction over foreign companies based on shareholdings in and control over them held by nationals26 are 25 26

Department of Trade Press Notice 470, 21 Oct. 1982, p. 2. Cf. the similar distinction drawn in the British Note No. 174, 4 Sept. 1981, addressed to the US Government: Lowe, op. cit. supra n. 2, at pp. 152, 153. Though these claims are often referred to as being based on some “quasi-nationality” principle, they do not in fact involve the ascription of the parent company’s nationality to the subsidiary. As Gillian Triggs pointed out in her paper, “State Jurisdiction over Corporations: The Nationality Principle in International Law” (Canberra, 1982), States making such claims “have been concerned, not with the technical concept of nationality under traditional rules of international law, but with deciding whether an assertion of jurisdiction in any particular case is appropriate in the circumstances” (at p. 30). This is apparent from the way in which the US Government and courts have approached the question of the nationality of foreign-owned subsidiaries: see the Sumitomo case (1982) xxi i.l.m. 629, 790; Lowe, op. cit. supra n. 2, at p. 155. The distinction is important. Were it truly a question of nationality it is arguable that, within the confines of the rules on the ascription of nationality discussed in the Barcelona Traction and Nottebohm cases, the exercise of jurisdiction over “foreign” subsidiaries would be within the domestic jurisdiction of the legislating State. But it is clearly not a question of nationality in this sense.

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d­ ifferent from those based on extended notions of territorial jurisdiction. In the latter case, companies come within the ambit of a State’s laws by virtue of their own acts and the consequences of those acts within the State’s territory. In the former case, no such acts are needed. The shareholding alone creates the jurisdictional link, and nothing which the subsidiary can do will avoid the obligation to comply with such laws as the State has decided to apply to it. The same is true of the claims to control technology and data originating in a State. Both are claims to a continuous, unavoidable, right to control foreign business activity. They therefore represent a much deeper penetration of municipal laws into the affairs of foreign States than do claims based on the effects doctrine, and it should not be expected that the two kinds of claims would be tolerated on the same conditions. There are differences, too, within the set of claims based upon extended territoriality. Juridically, there is a distinction to be drawn between the regulation of activities which are partly executed within a State’s territory, such as international sea and air transport, and activities which involve no actions within the territory but have repercussions which are felt upon the State’s economy. In the former, but not the latter, case some parts of the activity are clearly within the State’s territorial jurisdiction. While it is clear that States have the right to regulate activity within their territory, it is not clear that they are entitled to control activity outside their territory in order to avoid adverse repercussions upon their economy. This leads to a further point, which is concerned with what may be called the “focus” of legislation. When some elements of any activity occur within a State, that State undoubtedly has some jurisdiction over it. But it by no means follows that the State can extend its jurisdiction without limit to control all the other elements which accompany the intraterritorial elements. For example, if a shipping conference serves a State’s ports, the State could arguably27 insist upon the imposition of minimum freight charges and other conditions in respect of the contracts executed by those voyages. But it is difficult to see that the State has the right to control the form of business organisation and other domestic arrangements adopted by the foreign shipowners concerned by, for instance, making it an offence for the foreign shipowners to organise the conference. That, surely, is a matter for the States in which those companies are based. This policy issue is reflected in the notion of the separability of the 27

This is not certain: unilateral regulation of an international trade arguably demands some accommodation of the interests of other States directly involved. See the comments of the consultative Shipping Group in its aide-memoire addressed to the US Government in October 1981: Lowe, op. cit. supra n. 2, at p. 224.

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e­ lements of offences. It will be recalled that the International Court spoke in the Lotus case of departures from the strict territorial principle being justified in cases where the elements of the offence were “legally, entirely inseparable, so much so that their separation renders the offence non-existent”.28 This condition is satisfied in the case of the link between pulling the trigger in State A and the arrival of the bullet in State B in a cross-frontier shooting case. It is not met in the case of the link between the establishment of a shipping conference in Europe and the execution of a shipping contract by the arrival of a conference ship in an American port. Thus, even if there is a valid basis of jurisdiction in respect of part of an activity, it will always be necessary to consider whether the jurisdiction asserted is too far-reaching to be supported upon that basis. In determining the reach of legislation, it is important to be conscious of the fact that the “real” claim to jurisdiction underlying a statute may be different from that appearing on the face of the statute. Unilateral acts of States which have international consequences are tested for their consistency with international law by referring to their substance and not their form.29 So, for example, legislation which, on its face, applies equally to intraterritorial and extraterritorial conduct may, under a clear and consistent enforcement policy, never be applied (or even be considered by the enforcement agencies to be applicable) to the extraterritorial conduct of aliens. Criminal statutes are commonly drafted in such broad terms, but are generally not given extraterritorial effect. Conversely, a statute apparently limited in its application to intraterritorial conduct may in fact regulate extraterritorial conduct. For instance, one of the grounds upon which objection was made to the application of United States’ liquor laws to a British ship within American territorial waters was that penalising the mere passive possession of alcohol involved in effect a projection of American laws to foreign ships on the high seas.30 Determining the reach of a law may be difficult: does a statute forbidding entry into a port having broken or put overboard a bulk cargo outside territorial waters31 regulate extraterritorial (breaking bulk, etc.) or only intraterritorial (entry into port) conduct?

28 [1927] p.c.i.j. Series A, No. 10, p. 30. See also F.A. Mann, Studies in International Law (1973), p. 93. 29 See e.g. the Anglo-Norwegian Fisheries case (1951) I.C.J. Rep. 116 and the Nottebohm case (1953) I.C.J. Rep. 111. Cf. the insistence of the UK Government that determinations in the context of export administration regulations that British companies are controlled by United States companies must be capable of being rebutted, if they are not in fact so controlled: Lowe, op. cit. supra n. 2, at p. 148. 30 See Foreign Relations of the United States (1922), Vol. 1, pp. 586–587. 31 See e.g. s. 35(7) of the Customs and Excise Management Act 1979 (c. 2).

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An approach along the lines of the “Mischief Rule”, asking what the measure was in fact intended to achieve, might be one way to an answer. Closely related is the problem of evaluating laws which regulate conduct on the basis of its anticipated results. A law might forbid a merger abroad between two foreign companies, on the grounds that subsidiaries of those companies within the State are deemed to have been merged by virtue of the foreign merger:32 the law is clearly purporting to have extraterritorial effect, but is there any intraterritorial element present at all? What if it is alleged that in fact the independence of the domestic subsidiaries is wholly unaffected by the foreign merger? Whatever the answer might be the burden of proof (in terms of the level of probability required, the location of the onus of proof, and the possibility of rebutting any presumption which may operate) will be a crucial factor in the determination of the international legality of the law concerned. Thus, any approach to the resolution of jurisdictional disputes must take into account the nature and true extent of the jurisdictional claims involved. C Procedures The different kinds of procedure adopted in competition cases give rise to different problems. One distinction which may be drawn is that between public and private suits.33 The former may be assumed to involve and advance the public interests of a State, particularly where the institution of proceedings or the making of remedial orders is a matter of governmental discretion. Though it is true that private suits invoking competition laws advance the public policies enshrined in those laws, the advancement of the public interest is much less direct than in the case of public suits. The primary motive in deciding whether, when, how, and against whom litigation is initiated, settled or abandoned is inevitably the advancement of the particular interests of the private plaintiff. As was remarked above, it is much more difficult to bring general issues of the public and foreign relations policies of a State to bear upon the conduct of private litigation, and perhaps inappropriate to seek to do so. If private litigation is to be confined within acceptable jurisdictional limits, it is therefore likely to be necessary to rely upon something other than the discretion of the plaintiffs or courts concerned. Legislative action is probably necessary in 32 33

Cf. s. 23(2) and (3) of the German Antitrust Law, translated in R. Mueller, M. Heidenhain and H. Schneider, German Antitrust Law (2nd ed., 1981). See also David J. Gerber, “The Extraterritorial Application of the German Antitrust Laws” (1983) 77 a.j.i.l. 765. This distinction, and its implications for the settlement of jurisdiction disputes, is explored in A.V. Lowe, “Ends and Means in the Settlement of International Disputes over Jurisdiction” (1985) 11 Review of International Studies, 183–198.

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these cases, even if the conduct of public suits could be left to the discretion of the enforcement agencies. D Varieties of Regulation There is a distinction of some importance between two varieties of objective of competition and other “economic” laws. First, there are laws primarily intended to protect those dealing with enterprises possessed of substantial market power from injury caused by an abuse of that power for example, prohibitions on certain kinds of tying agreements, or even prohibitions upon predatory pricing (where such protection is in fact extended to competitors of the enterprise). Second, there are laws primarily intended to maintain a certain market structure, with the intention that the operation of normal market forces should thereafter protect the legitimate interests of customers, competitors and so on. Laws regulating the formation of cartels or joint ventures, or mergers, fall into this category. Malpractices dealt with in laws of the first kind–“behavioural” malpractices–can be regulated without directly regulating the structure of an industry, but malpractices of the second kind–“structural” malpractices – cannot. Interference in the internal affairs of a foreign State is clearly less extensive in the case of a prohibition against a foreign company imposing unfairly high prices upon its customers, including customers in the legislating State, than it is in the case of an order to break up a cartel or merger, lawfully executed in a foreign State, which has reduced competition and consequently allowed a raising of prices to customers, including those in the legislating State. This point is returned to in the final section of this article. E Relations with the Lex Loci Actus As is well known, American jurisprudence recognises that the status of foreign activities under the lex loci actus should be taken into account in cases involving extraterritorial claims. Thus, if the acts complained of are mandated by a foreign government, this is regarded as a weighty reason for excusing a consequent violation of American law–the foreign sovereign compulsion defence.34 Civil liability under the foreign law would not be such a weighty excuse for violating American law, although it is a factor to be taken into account.35 Similarly, foreign conduct encouraged by or consistent with the foreign government’s 34

35

See e.g. Societe lnternationale v. Rogers, 357 US 197 (1958); Lowe, op. cit. supra n. 2, at p. 5; lnteramerican Refining Corp. v. Texaco Maracaibo, 307 F. Supp. 1291 (1970); In re Westinghouse Uranium Contracts Litigation, 563 F. 2d 992 (1977). See, further, “Foreign Nondisclosure Laws and Domestic Discovery Orders in Antitrust Litigation” (1979) 88 Yale L.J. 612. See e.g. U.S. v. First National City Bank, 396 F. 2d 897 (1968); Lowe, op. cit. supra n. 2, at p. 9.

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policies, but not mandated by its laws, would not benefit from the foreign sovereign compulsion defence,36 but might be taken into account. It is difficult to see why a foreign government’s economic policies should be protected by the foreign sovereign compulsion defence or something similar when they are expressed in the form of mandatory laws, but not when the government decides, equally deliberately, to leave these issues to be arranged by the industries concerned with the encouragement or mere toleration of the government: a British shipping conference, or the international uranium cartel, is as much the product of national economic policies as are the state trading organisations of socialist States. There is a related juridical point: that the absence of legislation regulating a particular activity or industry in a State will not of itself entitle another State to step in and apply its own regulations extraterritorially to that activity or industry. This point has been made repeatedly in British communications concerning the United States export administration legislation. For instance, it was stated that: … Her Majesty’s Government do not accept any contention that if United Kingdom law is silent upon a particular matter it is not an infringement of its jurisdiction if the United States legislate on that matter with regard to foreign subsidiaries of American companies. It is the view of Her Majesty’s Government that it is for them to decide how far they wish to legislate with regard to persons within their jurisdiction.37 Whatever the precise scope of municipal law defences might be, it is likely, as a matter of policy, to be more acceptable to seek to prohibit conduct in foreign States which is either prohibited or officially discouraged by those States than conduct which is officially tolerated or encouraged. This general principle can be seen to be behind the “double criminality” provisions in extradition treaties, for example. Where there is such a common purpose among nations, it may be possible to go further and to harmonise or unify national laws. Whether or not that is possible, it is evident that there are different levels of formal conflict between national laws and policies in cases of extraterritorial jurisdiction which must be recognised. The distinctions drawn above are illustrative, not exhaustive. Other, equally significant, criteria for the classification of extraterritoriality problems could

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See the comments in Mannington Mills v. Congoleum Corp., 595 F. 2d 1287, 1293 (1979). Note No. 187, 25 Aug. 1977, to the US Department of State; Lowe, op. cit. supra n. 2, at pp. 147, 148.

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be put forward.38 For example, it is a question of great importance whether a court in making orders confines itself to orders relating to matters within the forum State (such as conditions of sale, supply, or marketing in that State), or makes orders relating to the activities, or even the structure, of businesses organised abroad. Again it is important to determine whether an extraterritorial claim is in excess of a State’s jurisdiction or merely steps into the area of concurrent jurisdiction (which must surely be the most appropriate field in which to use notions of “comity” and balancing of interests, although even here the advantages of that approach over use of the principle of the primacy of territorial jurisdiction are not beyond all doubt). But these examples’ will, it is hoped, make clear that the problems of extraterritoriality are complex. If cases were classified according to the particular combination of all of the foregoing characteristics present in each one, there would be many varieties of “extraterritoriality problem”. Within each category, the particular facts would necessarily have a great influence upon decisions-two merger or cartel cases with similar juridical and policy characteristics are nonetheless likely to be treated differently if one involves aircraft makers or high technology businesses or companies based in areas of high unemployment and the other involves companies which are economically and politically insignificant. One of the short points which this article seeks to make is that, given this diversity, no case-by-case approach to jurisdictional disputes is likely to produce a clear and comprehensive body of principles for settling such disputes. There will always be room, and it will very often be necessary, to distinguish cases and precedents on the basis of the specific jurisdictional issues with which they are concerned and on the basis of the exact circumstances involved in each case. Similarly, construction of an internationally agreed code is likely to be extremely difficult. This does not, however, mean that there are no principles which can assist in, and give a measure of predictability to, the settlement of jurisdictional disputes. The main argument of this article is that there are such principles in international law and that they not only can, but must, be employed when determining the international legal validity of claims to extraterritorial jurisdiction. These principles flow from the sovereignty of a State

38

The question was raised, during the meeting at which this article was presented as a paper, whether it is not necessary to admit that, where individuals have bound themselves by contract to comply with the provisions of a foreign law (e.g. provisions requiring the consent of foreign authorities before goods obtained under the contract are exported to a third State), they may be held to that contract even though that incidentally achieves the same result as the extraterritorial application of the foreign law. This point is discussed in Lowe, op. cit. supra n. 4.

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over its territory and may conveniently be referred to as components of the economic sovereignty of the State. III

Economic Sovereignty and Jurisdictional Conflicts

This article does not attempt to elaborate a precise definition of the full range of rights and duties which constitute economic sovereignty, but only to outline some of the methods which might be adopted in order to define that concept in detail. In each case, the essential argument is that, if it can be shown that there are certain rights or powers which are considered to be essential components of a State’s sovereignty, then other States ought not to exercise their own powers so as to undermine those rights or powers. It must be admitted at once that in the case of most, if not all, of the components of economic sovereignty this requirement of restraint imposed on third States is not the direct and logically necessary consequence of the very existence of the first State’s economic rights. Rather, it will be necessary to base the duty of restraint on the more general principles of self-determination and of non-intervention in the domestic affairs of another State-themselves corollaries of the sovereign equality and independence of States which is a fundamental datum of contemporary international law.39 The approaches outlined below would, in this context, operate to delimit the right of self-determination and the duty of non-intervention. A The “Recognition” Approach If it could be shown that certain economic powers are regarded as conditions upon which the recognition of States or governments can depend, it would be reasonable to regard these powers as components of a State’s economic sovereignty. There is in fact some evidence to this effect. For instance, when the United States was invited by the United Kingdom to recognise Syria and Lebanon as independent States in 1941, it was troubled by the question of their economic independence. The United States had entered into an agreement with France concerning the mandates in Syria and Lebanon, under which American petroleum industries were guaranteed equality of access to the resources of those countries. One factor in the American decision on recognition was the question whether “independent” Syria and Lebanon would in fact allow such 39

See e.g. the Declaration on Principles of International Law, annexed to UN General Assembly Resolution 2625(xxv) (1970), reprinted in (1970) ix i.l.m. 1292 and (1971) 65 a.j.i.l. 243.

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equality of access or whether they would give preferential treatment to non-­ American businesses in response to (free) French pressure.40 Thus, the possibility of third States directing some part of another State’s economic activity was considered relevant to the question of the “effectiveness” and “independence” of the State when recognition of its statehood was in issue. Similarly, the United States was concerned with the Batista Government’s likely attitude towards private foreign investment in Cuba, when the question of its recognition arose in 1952.41 The robust United Kingdom approach to the recognition of governments was to ask “who’s in charge here?”, and await a convincing reply. John Brown Shipyards could have been forgiven for asking the same question in 1982 when they–a major British firm operating in a fragile but strategic industry–were told by the United States Government not to fulfil the contracts which they had previously and lawfully concluded with the Soviet Union to deliver gas pipeline equipment. If all the American claims to regulate British businesses were pressed at one time, and if the United Kingdom or its government were then to be seeking recognition, would they be regarded as “independent”, and in “effective” control (or at least, as “effective” control as is possible within the framework of the international economy which inevitably circumscribes every government’s freedom of action, though not in the direct and deliberate way in which the American regulations sought to do)? If there is any doubt concerning the answer to this question, can it be admitted that it is proper for one State to seek, deliberately and for its own ends, to erode some of the foundations of another State or its government? This, then, is one approach which might be adopted to the definition of the content of economic sovereignty. B The “Responsibility” Approach A second possibility is to argue that States should have the right, free from the deliberate interference of third States, to control persons and companies within their territory in relation to matters which they are generally regarded as being entitled to bind themselves by treaty to regulate in a certain way and in respect of which they may therefore become internationally responsible. An example of this principle would be the right to accord “most favoured nation” or “national” treatment to foreign businesses establishing subsidiaries in a State. For instance, the United Kingdom might by treaty accord national treatment to Swiss investors, and there might be a British company in which ­British, 40 Whiteman, Digest of International Law, Vol. 2, p. 221. 41 Idem, p. 267.

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Swiss and United States nationals each hold one third of the shares. If the United States were to order that company not to trade with certain countries, at a time when other British companies could trade with them, and that order effectively stopped the company so trading, might not the United Kingdom be held to be failing in its duty to accord national treatment to Swiss investors? The example would be even clearer if the British company were wholly owned by Swiss nationals and the prohibition on trade were issued on the basis of the United States origin of goods or technology used in the exported products, or on the basis of the residence of some of the Swiss shareholders in the USA.42 The scope of this principle could be determined by an examination of the pattern of bilateral and multilateral treaty practice, in order to define the areas within which States were generally regarded as entitled to bind themselves in such matters. Other States should then restrain their extraterritorial claims so as to leave those matters within the control of the “home” State. The State would, of course, be free to choose whether to control the matters by laying down mandatory policies, or to adopt a laisser-faire approach. C Direct Evidence of Economic Sovereignty In some cases it will be possible to show that there is general agreement that particular regulatory powers are inherent in every State’s sovereignty. The nationalisation of private property would be an example and it is evident that, quite apart from the rules on State immunity, a law which attached criminal liability to monopolisation without distinguishing between public and private monopolisation could not properly be applied extraterritorially to prohibit a foreign nationalisation programme which had adverse economic repercussions in the forum State.43 Similarly, there appears to be general recognition of States’ rights to choose their economic system without outside pressure or interference,44 to impose, consistently with obligations under the GATT and so on, countervailing or anti-dumping duties on imports, and to regulate the prices at which goods are sold within the territory. The list could be extended. Within certain limits, for example, there is arguably a right for States to decide which other States they (and their residents, if they are private enterprise economies) shall trade with. 42

43 44

See the EEC comments of 12 Aug. 1982 (1982) xxi i.l.m. 891; Lowe, op. cit. supra n. 2, at p. 200. An EEC aide-memoire of 14 March 1983 raises the issue of the compatibility of extraterritorial jurisdictional claims and demands for “national treatment” by its claimants: Lowe, idem, pp. 215, 216. Cf. the Charter of Economic Rights and Duties of State, Arts. 1 and 2: UN General Assembly Resolution 3281 (xxix) (1974), (1975) xiv i.l.m. 251; (1975) 69 a.j.i.l. 484. Ibid.

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The careful searching of State practice is, again, the way to a more accurate statement of the content of this category. Other approaches might also be taken.45 But, in all cases, the consequence of identifying a right as lying within the economic sovereignty of a State is the same: it raises a claim for that right to be put into a category where the principle of non-intervention prohibits deliberate attempts to intervene in that State’s domestic affairs, or compel the subordination of those rights to the interests of another State. This idea of a core of economic rights constituting the economic sovereignty of a State would have as its corollary a negative, limiting principle analogous to the principle sic utere tuo ut alienum non laedas found at work in the Trail Smelter arbitration, the Corfu Channel case and, more pertinently, the set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices.46 Thus, removing the automatic antitrust immunity which many States give to export cartels, and making immunity dependent upon justification in proceedings in which it was at least possible for the interest of foreign States to be presented,47 would be a clear example of a decisive move in the direction in which the sic utere tuo principle points. From the most cursory consideration of State practice in the matters discussed above, it will be apparent that at the heart of the concept of economic sovereignty is the right of a State to regulate the structure of its own economy. There may be ancillary rights, such as the right to regulate the activities of all businesses within its territory and the terms of trade within its territory: inevitably, its precise scope will be a matter for debate. But, as long as there is agreement upon the core of the concept, it would be a valuable tool for analysing and resolving jurisdictional conflict. Without attempting to force the wide 45

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E.g. the notion of economic coercion may be used to approach the problem from the other end, limiting the exercise of extraterritorial jurisdiction. See D.W. Bowett, “Economic Coercion and Reprisals by States” (1973) 13 Va.J.Int.L. I and “International Law and Economic Coercion” (1976) 16 Va.J.Int.L. 245. Non-intervention and domestic jurisdiction are among the other legal principles likely to be fruitful in the search for a solution. Annexed to UN General Assembly Resolution 35/63 (1980): Lowe, op. cit. supra n. 2, at p. 256. Cf. Art. 50 of the International Trade Organisation (Havana) Charterarguably binding on members under Art. xxix of the GATT. E.g. in proceedings under the Fair Trading Act the Monopolies and Mergers Commission has taken a very narrow view of whether participation of British manufacturers in international export cartels is lawful. In the report on Insulated Electric Wires and Cables it said: “[W]e have applied the following tests by which the public interests might be judged: the effect of British participation on the price and volume of the United Kingdom exports…; its effect in the United Kingdom on competition and efficiency, and on employment and investment”: H.C. Paper 243 (1978–79), para. 515.

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range of problems involving the extraterritoriality issue into a straightjacket of rules allocating jurisdiction, recognition of the rights inherent in a State’s sovereignty would allow us to say that certain jurisdictional claims are plainly compatible, and others plainly incompatible, with international law. There are bound to be grey areas where recourse to the concept of economic sovereignty will provide no clear solution–though it should be emphasised that this is the result of the present Jack of refinement of the concept, and not of any inherent vagueness in it such as inheres in the “balancing of interests” test. However, in so far as some economic aspects of sovereignty can be identified, the concept will have all the force of lex lata, and not be dependent upon its attractiveness as an idea de lege ferenda for employment in the context of jurisdictional disputes. D Is Economic Sovereignty a Workable Approach? This article has argued that existing approaches do not and cannot resolve jurisdictional conflicts satisfactorily, and has advanced instead the concept of a central core of economic rights which should be free from foreign interference. It may be helpful, in closing, to illustrate the way in which that concept would operate to determine jurisdictional conflicts. One example would be a cartel based in State A engaged in predatory pricing in relation to State B’s markets–whether by selling directly in the country or simply by meeting orders emanating from that country makes no difference here, though it might take on great significance in the context of other approaches to analysis of the jurisdictional issue.48 Here there are several courses of action available to State B. It could, for instance, fix minimum prices at which the goods were offered for sale within its territory, impose anti-dumping duties at the frontier on all imports of the goods, and forbid companies incorporated in State B to join the cartel. What it could not do would be to order the abandonment of the cartel, or make it an offence to participate in it, or expose members of the cartel to essentially penal multiple damage suits initiated by individuals, or insist that the price at which the goods are offered for sale outside State B should be the price which State B wishes to maintain (for example, a price set at the “free market” level) within its territory: these are all matters within the economic sovereignty of State A or other States. There seems no reason why this should not work. After all, there is little difference between seeking to regulate pricing policies in the context of competition law 48

Cf. the (mercifully avoided) temptation to distinguish the jurisdictional implications of cif and fob contracts in the Dyestuffs case, /C/ v. Commission (1972) e.c.r. 619, 626, 627; Lowe, op. cit. supra n. 2, at pp. 68, 69.

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and seeking to regulate them in the context of anti-dumping law. The latter, however, works quite adequately without all the extraterritorial paraphernalia of the former. Similarly, a merger between two companies incorporated in State A, which is thought likely to lead to a reduction of competition between the merging companies’ subsidiaries in State B, can be dealt with intraterritorially. State B can control the subsidiaries: it cannot control the merger in State A. In many cases the machinery for such action is already present: it would only be necessary for State B to invoke provisions of its law on anti-competitive behaviour, or abuse of dominant position, to exercise a substantial degree of control over any detrimental consequences of the merger in State A. There are, indeed, many powers which can be exercised intraterritorially to control the impact of foreign activities upon a State’s economy: price controls, compulsory patent licensing, countervailing and anti­dumping duties, laws on anti-competitive and restrictive practices and abuses of dominant position, and so on. States may well prefer to leave these matters to be regulated by the forces of competition rather than the imposition of public controls and so to prohibit cartels and mergers as such, but they can scarcely insist on the economies of other States being run on the basis of free competition–even less, force that result by the extraterritorial application of their own laws–in order to satisfy such a predilection. Put briefly, if the concern of a State is with the terms upon which imported goods or services are made available in its territory, it should deal with that problem and not try to regulate all the economic processes abroad which put them there. Equally, once goods or services are sold into another State, the State of origin should accept the right of that other State to control the conditions of their sale and resale and use.49 This approach, coupled with a greater sensitivity to foreign effects of domestic restrictive practices than is evident in the multiplicity of laws giving preferential treatment to export cartels, might prove fruitful in the search for a solution for the problems of extraterritoriality. Many of the limitations which economic sovereignty imposes upon claims to extraterritorial jurisdiction will be evident. Claims which over­step those limitations should be withdrawn unless the State affected by them agrees to their maintenance. Recognition by the legislature that the mere existence of lawful foreign cartels cannot be penalised or that restrictions on trade with third States cannot be imposed on companies incorporated and based abroad, 49

Or agree by treaty to limit dealings in those goods. See e.g. the UK-US Exchange of Notes concerning a Weapons Production Programme, 29 June 1962, Cmnd. 1863, u.k.t.s. No. 66 (1962), para. 6.

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to take but two examples, would remove some of the uncertainty surrounding the application of economic laws and meet many of the objections which foreign States have raised in the past. Together with devices such as consultation, harmonisation, agreed allocations of jurisdiction and, in proper cases (i.e. cases of concurrent jurisdiction) the use of comity and of the “balancing of interests” approach, the concept of economic sovereignty may prove a useful tool for the analysis of jurisdictional conflicts in international discussions. Whether it could go further, and increase the certainty with which an individual could determine whether or not his activities were subject to the prescriptions of foreign enactments purporting to have wide extraterritorial application would depend upon whether and how the principle was adopted in the municipal legal systems concerned, which are the legal systems with which the individual is almost exclusively concerned.50 But, at the very least, it should serve as a corrective to the growing tendency to discuss jurisdictional relations between independent States on the basis of principles only truly appropriate to relations between provinces in a federal State. It may also help in understanding that the increasing number of “blocking statutes” are not measures of retorsion or retaliation, but simply formal expressions of a legal truth in danger of being lost in the flood of detailed discussions of the extraterritoriality problem: that the world is made up of independent sovereign States with sovereign and inalienable rights to choose their own economic systems. 50

It is arguably impossible for any single “solution” of these jurisdictional problems to satisfy both the public and the private interests involved: see Lowe, op. cit. supra n. 33.

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Chapter 48

Arthur Watts, International Law and the Antarctic Treaty System, 1992 Comment by Jill Barrett, Visiting Reader in the School of Law, Queen Mary University of London Although Arthur Watts wrote this book in 1992, it remains one of the most authoritative, most lucid and most useful sources on international law ­relating to Antarctica. It is sadly out of print and second-hand copies are hard to come by, no doubt because those lucky enough to own one know better than to part with it. I can attest to it still being considered essential reading for FCO lawyers advising on this subject, and to the London University library copy being invariably out on loan or in use. It is still being cited by academic writers.a The book’s enduring value lies in the intellectual rigour with which Sir Arthur examined the fundamental tenets of international law that underlie and interact with the Antarctic Treaty system. Most books in this field are multi-authored collections of essays on assorted current issues, whereas his addresses the most difficult and intractable legal questions, linking them with a single ­coherent narrative. The chapter chosen for this collection explains how customary international law on the acquisition of territory may apply to the vast wilderness of the Antarctic continent, and the effect of the Antarctic Treatyb on the various claims, counterclaims, objections and other views of States about the status of territory there. The Treaty has provided a remarkably effective framework for managing those disputes, yet territorial sovereignty and related issues still underlie much of the activity on the ground and intergovernmental decisionmaking. The Antarctic Treaty is often inaccurately said to have “frozen” or “suspended” territorial claims, or even to have prohibited States from acting in exercise of their claimed sovereignty. The effect of Article IV of the Treaty is a a For example, J Barrett, ‘International Governance of the Antarctic – Participation, Transparency and Legitimacy’ (2015) The Yearbook of Polar Law vii, 448, 453 et al.; D Rothwell, ‘The Antarctic Treaty as Security Construct’ in A Hemmings et al. (eds), Antarctic Security in the Twenty-First century (Routledge 2012) 35, 49; S Scott, ‘Ingenious and innocuous? Article iv of the Antarctic Treaty as imperialism’ (2011) 1/ The Polar Journal n 32. b Treaty 1959 (adopted 1 December 1959, entered into force 23 June 1961) 402 unts 71402 unts 71, adopted 1 December 1959, entered into force 23 June 1961.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_049

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great deal more sophisticated than that; and no-one has explained it more fully or more clearly than in this chapter. Watts’ exposition remains as relevant as ever, especially in view of recent developments such as the submissions to the Commission on the Continental Shelf in respect of Antarctica, and the issues that may arise in the future about the prohibition on mineral activity in Antarctica, set out in the Environmental Protocol,c which could be proposed for review after 2048. If and when that is ever in prospect, this chapter and indeed the whole book will undoubtedly be even more sought-after. Sir Arthurd was eminently qualified to write on this subject.e As a Foreign & Commonwealth Office (FCO) legal adviser, he participated in the First Antarctic Treaty Consultative Meeting in 1961 and later led the UK delegation at the negotiations on the Convention on the Regulation of Antarctic Mineral Resources.f Moreover, while attending an international workshop on mineral rights held in Antarctica in 1984, he masterminded the organisation of, and played in, the most southerly cricket match!g c Protocol on Environmental Protection to the Antarctic Treaty 1991, 30 ilm 1455 (1991), ­adopted 4 October 1991, entered into force 14 January 1998. d A short biography of Sir Arthur Watts is available at: https://www.theguardian.com/ news/2008/jan/18/mainsection.obituaries. e His other writings on Antarctica include: ‘The Antarctic Treaty as a Conflict Resolution ­Mechanism’ in National Research Council Polar Research Board, Antarctic Treaty System: An Assessment—Proceedings of a Workshop Held at Beardmore South Field Camp [Antarctica, January 7–13, 1985] (National Academy Press 1986); ‘The Convention on the Regulation of Antarctic Mineral Resource Activities 1988’ (1990) 39 International & Comparative Law Quarterly 169; ‘The Present Antarctic System of Environmental Protection’ in Francesco Francioni (ed), International Environmental Law for Antarctica (Giuffrè 1992) 31–52. f Adopted 2 June 1988, not in force, ilm 30 (1991) 190. g Widely reported in news media at the time and in Martin Williamson, ‘Southern Freeze’, 30 January 2010, espn Sports Media Ltd, available at: .

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A. Watts, International Law and the Antarctic Treaty System (Grotius Publications 1992) Hersch Lauterpacht Memorial Lecture Series. Excerpt: Chapter 5, “Territorial Questions”, pp. 111–40.

Territorial Questions Arthur Watts There has already been occasion to mention in passing the differences of view held by States active in Antarctic affairs as to the matter of territorial sovereignty in Antarctica. It is, in fact, impossible to discuss the legal and political problems of the Antarctic without sooner or later – and usually sooner – h ­ aving to refer to the differences over sovereignty which underlie much that is done in that area. It is with these matters that this Chapter is concerned.

The Territoriality of Antarctica

There is, however, a preliminary matter to be considered first. Territorial sovereignty assumes the existence of territory: can Antarctica really be treated as territory in this context? A glance at an Atlas indicates wherein the possible problem lies, and one word identifies it: the Atlas shows this part of the Earth’s surface coloured white, and the word is “ice”. In effect the question is: What, in a territorial sense, does one mean by “Antarctica”? For present purposes Antarctica may be imagined as a large continental land mass in the general shape of a somewhat shallow dome, with its high point somewhere near the centre and sloping gently outwards towards the sea: there are some significant mountain ranges, but they need not affect the overall, simplified picture. It is perhaps the principal feature of Antarctica that it is almost entirely covered by a vast and permanent ice-sheet; only some narrow coastal fringe areas, some high mountains, and one or two other exceptional places are free from this ice cover, and overall some 98 per cent of the land surface lies beneath this ice-sheet. Furthermore, this is not just some relatively thin surface layer but on average something like one and a quarter miles thick, and in places it may be as much as three miles thick; direct contact with the underlying land is thus for the most part not a practical possibility (except for limited scientific purposes). The ice-sheet is, moreover, constantly sliding over the underlying land, outwards from the central Polar plateau towards the sea; the speed of movement varies from place to place, but is slowest nearest the centre (a few inches a year) and fastest at the coastal edges (up to something over a mile a year). Accordingly, in absolute geographical terms nothing on the Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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surface stays in the same place – a fact graphically illustrated by the report, in October 1991, that a giant iceberg which had broken free from Antarctica had on its surface an entire Antarctic base once used by Sir Vivian Fuchs.1 These physical characteristics, taken together, suggest, it might be argued, that there is in practice nothing sufficiently visible, stable or permanent to ­possess a true territorial quality or to be the proper object of territorial sovereignty. Yet these characteristics are, at bottom, interesting anomalies which the rules of international law relating to territory can accommodate, rather than reasons for those rules being inapplicable. Permanent ice and snow cover to the land exists elsewhere (for example in Greenland – in respect of which the Permanent Court of International Justice did not hesitate to attribute territorial sovereignty in the Case Concerning the Legal Status of Eastern Greenland (1931)2 – and in many high mountain ranges), without calling in question the existence of territorial sovereignty; shifting surface areas similarly do not exclude territorial sovereignty, as is demonstrated by the well-known problems of delta areas,3 and certain glaciers which flow across national boundaries. More important is the fact that Antarctica is essentially a land mass, and does in places, particularly in parts of the coastal fringe areas and certain mountainous regions, have an exposed land surface. In these respects it is, critically for present purposes, to be distinguished from the North Polar region, which is an area of floating sea-ice, moving with the currents, and having no underlying land mass. It is that vital difference which also marks an important distinction in the application in the two Polar areas of the so-called ‘sector principle’.4 That principle is sometimes alleged to allow sovereignty over land at the fringes of the Polar area to be a basis for claiming sovereignty in a sector bounded by the eastward and westward meridians of longitude at either end of the land territory, and extending Pole-wards until they meet at the Pole. In the North Polar region there is not only no Polar land mass for such claims to relate to (although there are certain islands), but the land base for the sector is part

1 2 3 4

Sunday Times (London), 20 October 1991. PCIJ, Ser. A/B, No. 53. See e.g. Law of the Sea Convention 1982, Art. 7.2, and literature associated with that provision. On the sector principle see Reeves, “Antarctic Sectors”, AJIL 33 (1939), pp. 519–521; Waldock, “Disputed Sovereignty in the Falkland Islands Dependencies”, byil 25 (1948), at pp. 337–346; Svarlien, “The Sector Principle in Law and Practice”, Polar Record 10 (1960), pp. 248–263; ­Auburn, The Ross Dependency (1972), at pp. 24–30, and Antarctic Law and Politics (1982), pp. 17–31; Triggs, International Law and Australian Sovereignty in Antarctica (1986), pp. 89–96; Pharand, Canada’s Arctic Waters in International Law (1988), pp. 1–87, esp. 70–76.

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of a land mass which is external to and distinct from, although adjacent to, the area covered by the sector claim. In the South Polar region there is a Polar land mass, and the land base for the sector claim can be part of it: in that latter respect, sector claims in the Antarctic have more in common with those assertions of sovereignty sometimes made over inland areas, as a consequence of sovereignty acquired over a coastal strip (and it may be noted in passing that the present inland boundaries of a number of States flow from such claims made in former times). All the same, it is doubtful whether in international law a sector claim, however clearly its factual basis is demonstrated, is sufficient by itself, and without other evidence of possession and administration, to establish effective occupation of territory so as to give rise to territorial sovereignty, although a bare sector claim will not be altogether without legal value – for example as a public manifestation of a State’s intentions (both positively as to the area within which it asserts sovereignty, and negatively as to the area beyond which it does not), or in relation to a territorial dispute between two States both of which apply the sector principle in similar circumstances and are so precluded from denying its significance. Finally it may be noted that the sector principle, however limited its value may be as, on its own, a basis for a claim to sovereignty, may legitimately be resorted to as a matter of territorial definition – just as many meridians of longitude or parallels of latitude are used throughout the world for the purposes of boundary delimitation. If, therefore, taken overall there is no sound justification for denying to Antarctica a territorial quality, there are nevertheless some special features about the immediate off-shore areas where more serious questions of that kind arise. As is common knowledge, Antarctic waters are frequently covered by ice – particularly during the winter months, but also in places during the summer. This ice, through which ice-breaking ships are often seen forcing their way, is sea-ice (sometimes referred to as pack-ice); that is, it is primarily frozen sea water. It can seem fairly solid, and is on average about one and a half metres thick. What is striking about it is the vast area it can cover, and the great variation in coverage at different times of the year: in the summer it covers something like two and a quarter million square kilometres, enlarging in winter to not far short of about 20 million square kilometres, and thereby something like doubling the apparent ‘surface’ area of Antarctica. This sea-ice, however, is, in a legal sense, just that and no more: it is frozen sea, moves with the winds and the currents and has no permanent connection with any land, and most of it (some 85 per cent) melts each summer. There seems no reason why it should be considered an object of territorial sovereignty; and States have not so regarded it.5 5 Some small parts of the sea-ice, close inshore, in protected areas, are virtually permanent ‘fast ice’; it may not be impossible in all circumstances to treat those areas as part of the

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There is, however, a different kind of ice in the Antarctic. This is the ice which originates on the land surface, slides off it, but on reaching the coast does not immediately detach itself from the ice-sheet but continues to be joined to it while floating on the surface of the sea. The process is illustrated diagramatically on p. 116. Under the continuing pressure from the moving icesheet behind it, the floating leading edge of this ice-sheet continues its movement out to sea: eventually it gets so far away from the land which gives it a stable base that, under the pressure of sea and wind, the leading part becomes unstable, and breaks off, thereby creating the great tabular icebergs for which Antarctic waters are famed. This process, which happens at places all round the coasts of Antarctica, creates very special effects in some places. There the floating ice-sheet has become a permanent feature (although any one part of it is still moving outwards, eventually breaking off and being renewed from inland), of significant size – by which is meant up to something like 300 miles to seaward of the inner land ‘coast’, and of a thickness commensurate with that of the ice-sheet from which it originates and indeed of which it still forms part. These features are known as ‘ice shelves’; as geophysical features, they are permanent (even if their composition at any one place is variable with the outward movement of the ice), they are for practical purposes stable (and, as earthquakes, volcanoes and coastal erosion show, even land is not totally stable), they are composed almost entirely of fresh water rather than sea water, and they are dependent on and attached to the continental landmass where they originated. Certain maritime aspects of ice shelves are considered in Chapter 7, but in the present context the immediate questions which arise are whether ice shelves are ‘territory’, and do they form part of Antarctica? or should they, being frozen water, be regarded as a maritime feature of some kind? That they are not ‘land’ or ‘territory’ in the usual sense is clear. But those concepts may well be sufficiently flexible to include surface areas comprising such permanent, land-based and stable features even though they consist of water in solid form. They certainly have about them more the characteristics of territory than of maritime areas. Their status as part of a territorial concept of “Antarctica” is suggested by the terms of Article VI of the Antarctic Treaty, and, more strongly, by those of Article 5.2 of the Convention on the Regulation of Antarctic Mineral Resource a­ ssociated land territory. In the Arctic, where the sea-ice is in places more stable and permanent than in the Antarctic, it is possible for it to be used in places as if it were land (e.g. for habitation, and hunting purposes).

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land sea ice land sea ice

sea ice land ice shelf sea Figure A Ice cap and ice shelves

south atlantic ocean 60° british southern ocean

20°5° 2

norway

argentine

°

45

53

°

chile

australia

74° 80°

90°

south pole

60° soth pacific ocean

° 136 2° 14

southern ocean

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new zealand

indian ocean

france australia

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Activities 1988. Article VI provides that the Treaty applies “to the area south of 60° South Latitude, including all ice shelves”, followed by a saving for the rights of States under international law “with regard to the high seas within that area”. While not entirely clear, this language appears to place ice shelves in a non-high seas, and thus in a more territorial, category. Article 5.2 of the Mineral Resources Convention is significantly clearer, in the same sense. It provides that the Convention regulates mineral resource activities taking place “on the continent of Antarctica and all Antarctic islands, including all ice shelves, south of 60° South latitude and in the seabed and subsoil of adjacent offshore areas up to the deep seabed”; in a context which required clarity on this matter, ice shelves were clearly put with “Antarctica and all Antarctic islands”.

Territorial Claims in Antarctica

Subject, then, to whatever doubts might legitimately arise over the status of offshore ice, there seems little reason at this point to doubt that Antarctica may properly be the object of territorial sovereignty. That is, moreover, expressly the view of at least some States with a direct and active interest in the area,6 for they have claimed, asserted, and exercised sovereignty in those parts. The legal situation which results is, however, of considerable complexity, some idea of which will best be conveyed by a simple description – or, at least, a description which is as simple as it can be made – of the different claims made and views held. There are seven States which exercise, assert or claim ­territorial sovereignty over identified areas of Antarctica. They are: Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom. These areas are the ‘pie-slice’ sectors, meeting at the South Pole, which are familiar features of maps of Antarctica (although in passing it should be noted that neither the seaward nor the inland limits of the Norwegian sector are clear, and the latter may not necessarily go as far as the Pole itself). Were that all, and were there just those seven sectors radiating in turn outwards from the Pole, the matter would not be one of any great difficulty. But there are a number of further complications. There is, first, a terminological point to be made. As just stated, the seven States “exercise, assert or claim” territorial sovereignty, but they do not necessarily all regard themselves, or each other, as doing all of those three things in respect of the whole of ‘their’ areas: there is, for example, a clear ­distinction 6 In this context it is important to note the weight attached by the ICJ, in the Anglo-Norwegian Fisheries Case, ICJ Rep. (1951), p. 116, to the practice and attitude of States directly concerned with the subject in question as being of particular importance (at p. 139). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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between exercising sovereignty over an area, and merely claiming sovereignty over an area in which, perhaps, another State is exercising it. Despite these distinctions, it has become the usual terminology for the seven States to be referred to, even by themselves, as ‘the claimant States’ (and that usage will be followed in these pages). It must not be thought, as a result, that all of the seven are, or see themselves as, merely ‘claimants’: their actual standing in ­relation to any particular area depends on the particular circumstances relating to that area. The other States are usually for convenience referred to as ‘the non-claimant States’, although as will be seen, that all-embracing term conceals differences among their individual positions. The second point to be noted is that there is one, quite large, area sovereignty over which is not claimed by any State: it is known (reasonably) as ‘the unclaimed sector’. Third, the claims of three of the States overlap to a large extent, although not entirely. Those are the claims of Argentina, Chile and the United Kingdom. Of these the United Kingdom’s claim is the largest: there is a thin slice in the east of the United Kingdom’s area which is claimed by neither of the other two, but for the rest the United Kingdom’s area covers the whole of the area claimed by Argentina and, further to the west, part of the area claimed by Chile. In its turn, Chile’s claim consists of a slice in the west which is not claimed by either of the other two States, but for the rest overlaps the area claimed by Argentina. That area, accordingly, consists of a part which is claimed by Chile, part which is claimed by both Chile and the United Kingdom, part which is claimed by the United Kingdom, but no part which is claimed by Argentina alone. Fourth, while some of the claimant States mutually recognise each other’s claims, not all of them do so, particularly, of course, in relation to the area in which there are two, or even three, competing claims. Furthermore, it is ­believed that no other States have expressly recognised the territorial sovereignty of any of the claimant States. Fifth, those other States – the non-claimant States – fall into two groups. The vast majority are States which have not themselves made claims,7 allege no basis for doing so, and do not accept the claims which have been made by others. But two of them, while not themselves having made claims, assert that they have a basis for making a claim should they wish – and be able – to do so. Those two are the United States of America and, until recently, the Soviet Union (whose position in these matters is now presumably taken over 7 It may be noted in passing that Japan, one of the original Parties to the Antarctic Treaty, formally renounced “all claim to any right or title to or interest in connection with any part of the Antarctic area, whether deriving from the activities of Japanese nationals or otherwise”: Treaty of Peace 1951, Art. 2(e). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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by ­Russia); furthermore, their basis of claim is asserted not just in relation to some specified part of Antarctica, but in relation to the continent as a whole. This confused complex of attitudes to the important question of territorial sovereignty is compounded by divergent views as to the law relating to the acquisition and maintenance of territorial sovereignty, especially in remote and unpopulated areas such as Antarctica. While not engaging upon an assessment of the rival claims as to sovereignty in Antarctica, some salient elements in the legal position should be mentioned. Antarctica is subject to international law as much as any other part of the world. The fact that it is naturally unpopulated, and that much of it is remote and inaccessible, does not mean that it is beyond the scope of the rules of international law; and, in particular, does not mean that questions of territorial title and sovereignty are to be determined otherwise than by the application of those rules which international law prescribes in such matters. Antarctica is not alone in being isolated; there are indeed many remote, inaccessible and unpopulated areas of the world’s land surface (such as the immense wastes of the Gobi, Saharan and Siberian deserts, as well as smaller, often island, areas with similar characteristics), and any arguments that the isolation of Antarctica justifies some departure from the normal rules relating to the possession of territorial sovereignty must weigh the consequences of those arguments for other isolated areas. The classic rules of international law can be briefly summarised (so far as they are relevant in this context) as being that discovery gives rise to no more than (at best) an inchoate title, i.e. an interest which is provisional, acts as a temporary bar to occupation by others, and requires further positive acts ­before it can become a substantive title; that the effective acquisition of title requires both the taking of possession of the territory, and the establishment of an administration over it, in the name of and on behalf of the acquiring State; and that the nature of the acts of possession and administration necessary for occupation to be effective may be relative to the circumstances of the territory over which sovereignty is being asserted. These principles have been established, and their application illustrated, in a number of well-known cases, including principally the Island of Palmas Case (1928) between the United States and the Netherlands,8 the Clipperton Island Case (1931) between France and Mexico,9 the dispute between Denmark and Norway in the Case Concerning the Legal Status of Eastern Greenland (1931) decided by the Permanent Court

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of International Justice,10 and the Indo-Pakistan Western Boundary (Rann of Kutch) Case decided in 1968.11 Whether or not there exists a degree of State possession and administration sufficient, in the particular circumstances of Antarctica, to give rise to an effective occupation of the territory so as to result in sovereignty over areas which were originally terra nullius,12 is essentially a question of fact to be determined in the light of the circumstances of each different assertion of sovereignty. A ­ ssuming that occupation which would be effective by those standards is shown to exist, can it be said – as is sometimes alleged – that in modern international law there is some particular quality about Antarctica which makes it not susceptible to territorial sovereignty at all? Is it, for example, to be treated as some form of res communis omnium, to be used in perpetuity for the benefit of all States rather than for appropriation by the few? Or, in less classic terms, is it part of the modern concept of the ‘common heritage of mankind’?13 Or, again, are Antarctic territories some sort of colonies, and so subject to the modern rules and principles of decolonisation? In any of these cases, is the relevant rule one of jus cogens, so preventing its dis-application by agreement or unilateral action? It is relevant that at least 9 States – the 7 claimant States and the 2 States maintaining a basis of claim – with a direct and long-standing interest in Antarctica clearly believed in 1959, and have shown no sign of changing their view since then, that the acquisition of territorial sovereignty in Antarctica is in principle possible, even if they do not agree in which States it is vested. Those questions can be debated endlessly, but for present purposes there is one particular point, of some general significance, which needs to be emphasised. It is that the issue is not whether sovereignty is being, or can be, acquired 10 11 12 13

PCIJ, Ser. A/B, No. 53. riaa, 17, p. 1. However, in an area where there are overlapping claims, the later of those claims will have been made in relation to an area previously claimed by another State. See in particular Kiss, “La notion de patrimoine commun de l’humanité”, Recueil des Cours 175 (1982), ii, pp. 99–256; Wolfrum, “The Principle of the Common Heritage of Mankind”, ZaöRV 43 (1983), pp. 312–337, and in Encyclopedia of Public International Law, vol. 11 (1989), pp. 65–68; Triggs, International Law and Australian Sovereignty in Antarctica (1986), pp. 277–311. Although the preamble to the Antarctic Treaty records that the continued and permanent peaceful use of Antarctica “is in the interest of all mankind”, and that the development of scientific freedom there “accords with … the progress of all mankind”, these references are distinct from – and pre-date – the more specialised notion of the ‘common heritage of mankind’. The repetition of the first of them in the preamble to the Minerals Convention of 1988 is similarly to be distinguished from the ‘common heritage’ notion, as are the references in the preamble and in Art. 2.3(g) to the interest[s] of “the international community as a whole”. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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today, but whether it was acquired at some time past. That depends primarily on the law and the facts as they were at that time past, rather than as they might stand today. This takes one into the realms of the doctrines of ‘the critical date’ in relation to any given territorial dispute, and, more particularly, ‘the intertemporal law’, according to which “a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled” (per Huber, in the Island of Palmas Case (1928)).14 If under the relevant rules of international law applicable in, say, 1920 (and that date is chosen here purely arbitrarily, other than being well before some of the modern concepts which might be relevant became established), a State had sovereignty over a portion of Antarctica, and has done nothing since then to abandon it, the assertion that the continuation of such sovereignty is inconsistent with some alleged later doctrine involves what can only be regarded as an extinction of title by operation of law. One probably cannot rule out such a possibility a priori, but the burden of establishing that such a rule has come into existence in contemporary international law is a particularly heavy one. To deprive a State of its sovereignty over territory is a most serious matter. There is no serious attempt to argue for that result even where territory was acquired by war at a time when resort to armed force was not illegal, although of course its prohibition now is well established and widely regarded as a matter of jus cogens; indeed, the attempt to apply such notions to titles acquired in the past would seriously destabilise international relations throughout the world. It is immeasurably more difficult to question properly acquired titles in Antarctica on the basis of subsequently developed concepts which have nothing of the same legal authority and universal acceptance as the prohibition of the resort to force, and which are, in content, at best controversial and unclear. The question of course remains: did the seven Antarctic claimant States acquire and maintain territorial sovereignty in Antarctica in accordance with whatever at the time were the relevant rules of international law? Each of those States maintains that it did; the other, non-claimant States, deny this (and so, for that matter, do some of the claimant States in respect of the claims of some of the others). From today’s perspective, it is unlikely in the extreme that the question will be determined by international agreement or judicial decision,15 14 15

riaa, 2, at p. 845. One attempt at judicial settlement was made in 1955, when the United Kingdom submitted unilateral applications against Argentina and Chile. Neither agreed to the Court’s jurisdiction, and the case was eventually struck off the Court’s list. The United Kingdom’s application contained much historical and legal material relating to title to territory in Antarctica: ICJ Pleadings (1956); Antarctica Cases.

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either as between claimant States and non-claimant States, or as between two or more competing claimant States.

Antarctic Treaty, Article iv

In the light of the way in which Antarctic matters have evolved, this lack of settlement of the territorial disputes which characterise Antarctica is very much less significant than it might have been. While there is something untidy about the continuation of an unresolved legal dispute (or rather, in the case of Antarctica, a series of multi-faceted disputes), what matters very much more is that continuing disputes should not get out of control and lead to difficulties in international relations, possibly even involving resort to armed force. In other words, dispute management can be just as important as dispute resolution: indeed, in some circumstances the peaceful management of a dispute in such a way as to leave both (or all) parties still maintaining their original positions may be preferable to its resolution, if thereby one or other party has to be in the position of having lost. In relation to the management and containment of the territorial disputes which are so central to the legal and political position of Antarctica, the Antarctic Treaty has been and still is an unquestioned success. The Antarctic Treaty is not, of course, a lone example of this. States are often faced with the need for legal devices enabling them to get on with the business of their international relations despite their intractable disputes, and they adopt a wide variety of techniques for doing so, such as the making of ex gratia payments, the adoption of ‘without prejudice’ clauses, and the mutual waiver of claims. The Antarctic Treaty has followed this general pattern, and the relevant provisions of the Treaty are an important illustration of this much wider practice, as applied in singularly difficult and complex circumstances. Turning then to the Antarctic, it is sometimes difficult to remember that the Antarctic, for all its remoteness and isolation, has at times been a source of considerable tension. As recently as the 1950s there was an incident at Hope Bay, in the Antarctic Peninsula, involving the firing of weapons to secure the withdrawal of a party of men from an area where those firing weapons thought that the party had no right to be. There were a number of other incidents of similar tension (although not involving armed force) in the period between 1945 and the conclusion of the Antarctic Treaty in 1959. In the 1950s the ­prospect of steadily increasing tension in the area was not to be underestimated. That recent background made it essential that some steps were taken to prevent unfortunate incidents occurring during the Antarctic component of the International Geophysical Year, which was held in 1957 and 1958. Since the

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scientific programmes were governmentally funded, it was feared that they would have political and legal implications in relation to territorial claims. However, a ‘gentleman’s agreement’ was reached,16 for the limited purposes of the igy, which enabled the scientific programme in Antarctica to go ahead on a basis which effectively deprived the scientific activities of their potential political implications. It was in 1959, the year after the igy ended, that the negotiations took place in Washington which ended with the conclusion of the Antarctic Treaty. The example of the success of the ‘gentleman’s agreement’ was not lost on the negotiating governments, and they included in the Treaty, as Article IV, a formal and long-term provision having a similar effect. That provision is in many ways the corner-stone of the Antarctic Treaty, for without it it would not have been possible to conduct the kind of extensive scientific activities which now take place in Antarctica within the Treaty framework – for those activities involve people directly associated with governments or official agencies operating freely in areas which some would regard as being within a State’s t­ erritory but which others would regard as terra nullius. The freedom of ­Antarctica from active territorial dispute during the thirty years of the Treaty’s life – p ­ articularly in the light of the tensions which existed in the years immediately before the Antarctic Treaty was concluded – is a vivid demonstration of the success of Article IV. Its importance justifies a careful look at its terms, the more so because their complexity often leads to their effect being summarised in some short formula which, however, while perhaps eye-catching is often less than accurate. Its terms cover two broad matters: first, the possible implications which might flow from the conclusion of the Treaty itself (paragraph 1), and second, the implications which might flow from future conduct (paragraph 2). Paragraph 1 provides that nothing in the Treaty shall be interpreted as a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica.17 This is essentially a reference back to historical facts: to be protected by this provision the rights or claims in 16 17

See Auburn, Antarctic Law and Politics (1982), pp. 89–93. Aspects of the Treaty which might otherwise have been argued to have involved a renunciation of territorial claims are the prohibition of military activities by (inter alia) claimant States in their own territories, the freedom given to all Parties to establish scientific stations in Antarctica, the restraints upon (inter alia) claimant States disposing of radioactive waste in their own territories and conducting nuclear explosions there, the rights of other States Parties to carry out inspections free from any territorial jurisdiction of the claimant State in question, and the creation of an institutional process for the adoption of measures.

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q­ uestion must have been “previously asserted”. Since all the seven States which had asserted rights of or claims to territorial sovereignty in Antarctica are Parties to the Treaty, and had previously asserted their rights or claims, this provision effectively protects the positions of those claimant States. It may, however, be noted that while the provision avoids any implication of “renunciation” of claims arising from the Treaty, it seems to leave to the next paragraph the exclusion of any diminution of any basis of claim (unless, in relation to claims already asserted and thus made specific, the notion of ‘diminution’ is regarded as not relevant, or, so far as it might be relevant, appropriately covered by ­partial renunciation). As already noted, there were not only claimant States in Antarctica, but also some which, while not having asserted claims, considered themselves to have a basis for a claim, should they choose to advance it. Their position too needed protection, and accordingly the paragraph also provides that nothing in the Treaty is to be interpreted as “a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise”. While the Treaty does not stipulate that this provision is intended to cover the positions of the United States of America and the Soviet Union, they were in fact the only States asserting that they had a basis of claim to ­territorial sovereignty in Antarctica. In addition, the claimant States, of course, have a basis for their claims, and there seems no reason why the provision should not protect the bases of their claims as well,18 unless, as just suggested, the notion of ‘diminution’ – which is all that this provision adds to the previous one – is not regarded as relevant in their context. Some features of this provision are worth noting. The paragraph does not, for example, refer back expressly to any historical fact of assertion of a claim at some earlier time; it is enough that a Contracting Party might “have” a basis of claim. Further, a basis of claim which a Party “may have” gives the appearance of some degree of objectivity in the assessment whether or not it does indeed have a basis for a claim; it is not the same as a reference to a basis of claim which a Party “considers itself to have”. In reality, however, the point is of little, if any, practical importance: if the basis for a claim which a Party thinks it has is (objectively) weak to the point of non-existence, the effect of the paragraph 18

It may be noted that Art. 29.2(b) of the Minerals Convention of 1988 refers to “the two [States] … which assert a basis of claim in Antarctica”, thus suggesting that there are no more than two States within the scope of Art. iv of the Antarctic Treaty. In the context of Art. 29.2, however, the concern was clearly with the States which asserted only a basis of claim, and there are indeed only two such States.

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is simply to protect that basis of claim, weaknesses and all. Nor does the paragraph state clearly the time to which it relates: it undoubtedly covers the two Contracting Parties who at the time of the Treaty’s conclusion had no more than a basis for a claim, but its terms could be considered wide enough to cover any subsequent Party which might consider itself to be in a similar position. Finally, the provision reflects the normal practice in relation to territorial claims whereby they derive from a State’s activities, or the activities of its nationals, in the claimed area. But it is not limited to claims arising from such activities, and covers also claims arising “otherwise”; thus, for example, any basis of claim which might be alleged to result from the possession of sovereign territory in an uninterrupted line due north of a part of Antarctica (e.g. on the basis of some kind of ‘sector principle’) is, for whatever it might be worth, protected. The third limb of paragraph 1 finally provides that nothing in the Treaty shall be interpreted as “prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s rights of or claim or basis of claim to territorial sovereignty in Antarctica”. While this important provision accommodates those States which recognise other States’ rights of or claims to sovereignty in Antarctica (e.g. the mutual recognition of their sovereignty, as between certain of the claimant States), it essentially serves as the balancing provision to the first limb of the paragraph: that protected the claimant States’ positions, while this protects the position of those States which do not recognise territorial rights or claims in Antarctica, i.e. the position of the non-claimant States. The provision is not, however, quite as clear cut as such a distinction between claimant and non-claimant States might suggest. It also, for example, protects the position of those claimant States which do not recognise the claims of some other claimant States; and, generally, allows for Contracting Parties to have a selective attitude to rights, claims or bases of claims, recognising some and not recognising others. In short, whatever a Party’s position might be regarding some particular territorial rights, claim or basis of claim, that position is not prejudiced by anything in the Treaty.19 ­Article IV.1 would, however, seem to have the effect, for all Parties, of acknowledging both the fact that claims and bases for claims exist (even if their validity can remain unacknowledged by some Parties) and that claims are not a priori excluded. While paragraph 1 looks to the implications of the Treaty itself, paragraph 2 looks to future conduct. It provides, first, that “No acts or activities taking place 19

This provision protects the position of Parties as regards their attitude to “any other State’s” territorial rights or claims, thus covering also the rights or claims of States not Parties to the Antarctic Treaty.

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while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica”. Thus the position of the Contracting Parties as regards territorial sovereignty in Antarctica cannot be improved, or worsened, by anything done while the Treaty is in force. The true scope of this provision may, however, be less clear than it at first sight seems. This provision is very wide as regards the acts or activities which are thus deprived of effect. The only express limitation on their scope is that they have to occur while the Treaty is in force (presumably, that is, in force for the Parties whose conduct is in question,20 or which seek to benefit from the Article’s provisions). On closer study there may be some justification for regarding the provision as having to be subject to a number of implied limitations. Thus, taken literally, the acts or activities do not, so it seems, have to be done in pursuance of the Treaty, and may be any acts or activities, of whatever kind, and wherever they occur. One necessarily implied limitation is the rather obvious one that they must be such that they would, apart from this provision, be capable of having an effect on the sovereignty matters referred to. But beyond that, there must be at least a question whether it is right to give that phrase the very wide meaning which its literal terms suggest, or whether, rather, some limitation should be implied from the context of Article IV in the framework of the Treaty as a whole. Thus an implied limitation whereby the acts and activities to which the Article applies have to be in some way related to the kind of conduct with which the Treaty is concerned would seem not inappropriate. This consideration becomes more relevant when it is noted21 that the same, or a very similar, formula is adopted in other Antarctic treaty instruments, which is scarcely necessary if the original Article IV.2 was itself sufficient to cover all acts or activities, of whatever kind: a degree of relativity as regards the subject matter of each treaty would seem to be called for.

20 The ICJ has demonstrated that reliance on ‘for the record’, paper protests unsupported by the kind of action which might normally be expected of a State determined to protect its position from erosion may not be wholly effective: Fitzmaurice, “Law and Procedure of the International Court of Justice, 1951–54”, byil 30 (1953), pp. 28–29; MacGibbon, “Some Observations on the part of Protest in International Law”, ibid., pp. 312–314. The fact that the protection offered by Article iv is contained in a formal treaty obligation sufficiently distinguishes it from the situation with which the ICJ was dealing. A State Party to a treaty containing such a provision is entitled to rely on it against other Parties, notwithstanding that the facts on the ground may be building up in a sense which would, if there were no such treaty provision, be damaging to its interests. 21 See pp. 136–140. [Editors’ note: pages 1293–1297 of this Anthology].

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The same implication might cover also the place where the acts or activities have to take place if they are to enjoy the protective effects of Article IV.2. It is not specifically stated that they must take place in Antarctica, although it might be possible to infer such a limitation from the provisions of Article VI of the Antarctic Treaty, which stipulates that the Treaty – and thus its Article IV – applies to the area south of 60° South latitude. While the acts or activities which were primarily in the negotiating States’ minds at the time will have been those occurring in the Antarctic region, it cannot be assumed that their intentions were limited to conduct in that area. Thus, a growing concern at that time was the increasing ‘paper war’ of protest and counter-protest being waged between certain States wherever, in international organisations or diplomatic gatherings all over the world, they had occasion to refer, however ­peripherally, to parts of Antarctica in which they had territorial interests. ­Article IV was perceived as having value in putting a stop to such practices, and indeed it has been largely successful in doing so.22 Similarly while, as a matter of principle, the protective effects of the provision only benefit the Parties to the Treaty, the “acts or activities” from the consequences of which they are protected are not in terms limited to those performed by Treaty Parties, although it is obviously their conduct which is most relevant in this context. This point, opening up the possibility of conduct by non-Parties having an effect on the extent of sovereignty claims in Antarctica, may seem far-fetched, but becomes more real if the role of the international community in developing new rules of international law, possibly affecting existing territorial rights by operation of law, is taken into account: this is a matter which will be touched upon later.23 A final point to be noted is that the limitation of the terms of this part of Article IV.2 to “acts or activities”, without mention also of “omissions” as would be the usual drafting practice in some national systems of law, is probably not to be taken literally: the clear intention of the Parties, throughout the Article, is to protect comprehensively the positions of the Parties. There is a second limb to Article IV.2, containing a most important prohibition: “No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force”. The general effect of this provision is readily apparent, but there are two points to be brought out. First, it is clear that it prevents any basis of claim which a Party 22 23

It has not, however, been entirely successful. See e.g. certain exchanges in the context of the Universal Postal Union in 1979 and the International Telecommunications Union in 1981: byil 53 (1982), pp. 425–426, 458–459. See p. 134. [Editors’ note: page 1292 of this Anthology].

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might have from being transformed into an actual claim to territoral sovereignty, since that would be a “new claim” of that kind. Second, it prevents any claim to territorial sovereignty being made in respect of all or part of the hitherto unclaimed sector (and although, strictly, this prohibition is cast in absolute terms and is not restricted to claims by Parties to the Treaty, it has to be read in that sense;24 and the fact that it thus does nothing to prevent a non-Party from making a territorial claim in the unclaimed sector is, in practice, of theoretical rather than practical significance). There is, however, uncertainty about precisely what the Article prevents in relation to claims over maritime areas. It is new claims (or enlargement of existing claims) “to territorial sovereignty in Antarctica” which are prohibited. The question arises whether this prohibition applies to new or enlarged claims to the various categories of maritime zones which the law now recognises. A negative answer is suggested, first, by the prohibition referring only to territorial sovereignty “in Antarctica”, which is more apt to refer to the continental areas of Antarctica rather than its surrounding maritime areas.25 Furthermore, negotiating in 1959, the States concerned will not have been unmindful of the terms of the previous year’s Geneva Convention on the Continental Shelf. ­Article 2.1 of that Convention adopted a careful distinction between “sovereign rights for the purpose of exploring [the continental shelf] and exploiting its natural resources”, and full-blown “sovereignty”; the equivalent provisions of Article 77 of the Convention on the Law of the Sea 1982, and those of its Article 56 relating to the nature of the coastal State’s rights in the exclusive economic zone, are in similar terms. The negotiating States in 1959 should therefore be taken to have used the term “sovereignty” in its strict sense, and thus to have excluded from the prohibition new claims of what would be merely “sovereign rights” for certain limited purposes. Nor would a claim to such “sovereign rights” in an area adjacent to and beyond (i.e. to the seaward of) an existing claim to territorial sovereignty seem to amount to a prohibited “enlargement of an existing claim to territorial sovereignty”: while it would enlarge the area subject to a claim of one sort or another, it would not enlarge the claim to territorial sovereignty since the area subject to that specific claim (which is all that the provision refers to) would remain the same. 24 25

Subject to the Antarctic regime being accepted as valid erga omnes, as to which see pp. 295–298. [Editors’ note: not included in this Anthology]. When later Antarctic treaties needed to cover maritime areas, it was necessary for their provisions based on Art. iv to be adapted accordingly, since reliance on the terms of Art. iv as they stood would not have safely covered maritime areas. See pp. 136–140. [Editors’ note: pages 1293–1297 of this Anthology].

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Interestingly, however, that part of Article IV.2 which denies to acts or activities any effect of weakening or strengthening sovereignty claims applies not only to “claims to territorial sovereignty” but also to the creation of “any rights of sovereignty in Antarctica”. The territorial connotations of the phrase “in Antarctica” still suggest that this provision does not cover maritime claims. Beyond that, the provision raises the question of the effect of actions taken completely outside the Antarctic Treaty framework. In particular, is the conduct of the international community in adopting the Law of the Sea Convention 1982, and thereby – at least, when it enters into force – conferring on coastal States, automatically and without the need for action by them (i.e. by ­operation of law), rights over the exclusive economic zone included in the “acts or activities” which cannot “create any rights of sovereignty in Antarctica”? The same question may be posed in respect of the international community’s conduct in bringing into force the earlier 1958 Convention, with its conferment on the coastal States, by operation of law, of sovereign rights over the continental shelf? It seems doubtful in the extreme whether, given the context of Article IV.2, the Contracting Parties can be attributed any intention to include such conduct in the “acts or activities” which they were dealing with in that provision. The same conclusion would seem to follow in relation to a new or enlarged claim to territorial sovereignty, if it arose through operation of law, the assertion of which is prohibited; the claim arises otherwise than through being “asserted”. It is, however, arguable that the prohibited assertion of the claim might not refer only to the original manifestation of a claim, but also to any subsequent invocation of it. In such a case, while the origin of the claim might lie in the extraneous operation of law rather than in anything done by the Party in question, the second sentence of Article IV.2 could have the effect of preventing that Party from thereafter invoking or acting upon a right with which it has been vested from outside. Such a conclusion – divorcing the right from steps taken to invoke it – would nevertheless be artificial, and not an attractive one to which to be driven. This matter becomes real not so much in relation to sovereign rights for various purposes over certain kinds of zones, but in relation to the territorial sea. A State does have sovereignty in the full sense over its territorial sea, and the inherent connection between the territorial sea and the adjacent coast is direct enough to provide at least a plausible argument, even if not necessarily a compelling one, that claims to an increased breadth of territorial sea both relate to “territorial” sovereignty, and to such sovereignty “in Antarctica”. Apparently simple though the terms of Article IV might be, their detailed application in particular circumstances shows up a number of areas of uncertainty. They are, however, essentially peripheral to the main thrust of the

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Article, which has achieved its purpose most successfully. Its very success has been responsible for a certain inaccurate blurring of its true legal effects, particularly when its complex structure is simplified in some such phrase as that it resulted in a ‘suspension of sovereignty claims’ or has ‘put sovereignty in abeyance’, and still more in statements that it has ‘solved the sovereignty problem’. To keep a balanced view, any account of Article IV must recognise two particular things which it does not do. The first is that it does not solve the underlying differences of view as to territorial sovereignty. The various national rights of and claims to sovereignty in Antarctica, and the opposition to them, continue to exist. What Article IV does is to provide a legal framework within which conflicts arising out of these continuing differences of legal view can be avoided: the States concerned now have no legal need to adopt confrontational positions in defence of their claims to territorial interests in Antarctica. But take away Article IV – for example, allow the Antarctic Treaty to collapse – and sovereignty rights and claims, and opposition to them, would instantly return to the forefront of the Antarctic agenda. Not only has Article IV not done away with the underlying dispute about sovereignty, but it does nothing to prevent the Parties from continuing to assert their rights of or claims to sovereignty. In practice, they frequently do so; for example, every time one of the claimant States enacts legislation for its ­Antarctic territories, or its courts or administrative agencies exercise their jurisdiction in respect of them, it is asserting its sovereignty in the area. There is nothing ­contrary to Article IV in such actions, and no breach of treaty ­results. This is not, however, to say that there would necessarily be no international consequences of any kind, for if it is open to a claimant State to act on the basis of its sovereignty, it is equally open to non-claimant States to object to that assertion of territorial sovereignty in whatever way it might consider appropriate. At bottom, accordingly, the success in practice of Article IV in defusing the sovereignty disputes in Antarctica has turned on an appreciation by all Parties that, while their respective legal positions remain intact and protected by Article IV, they have a shared interest in not pressing their own views to extreme limits, and in showing, instead, prudent self-restraint in the exercise of what they each consider to be their rights. Fortunately that self-restraint has been forthcoming, as part of the atmosphere of international cooperation which has characterised Antarctica since the conclusion of the Antarctic Treaty. While not, therefore, legally avoiding the possibility of conflict, Article IV has provided the legal framework for such a policy of self-restraint. So essential, indeed, has Article IV been in enabling extensive activities to take place without prejudice to the underlying differing views as to sovereignty

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that its provisions have been reflected in each of the other separate Antarctic treaties which has subsequently been negotiated, so as to provide the protective umbrella for the activities under them to take place. The only exception is the Protocol on Environmental Protection to the Antarctic Treaty 1991, for the reason that, being a Protocol to the Antarctic Treaty, it is on that basis sufficiently connected with and protected by the terms of that Treaty, including its Article IV. Even so, for the avoidance of doubt the Final Act, to which the Protocol is attached, stipulates that the Special Consultative Meeting at which the Protocol was adopted “agreed that the contents of this Final Act are w ­ ithout prejudice to the legal position of any Party under Article IV of the Antarctic Treaty”. In the Convention for the Conservation of Antarctic Seals 1972 the Parties were able to content themselves with a simple cross-reference to Article IV of the Antarctic Treaty, although applying it to the maritime areas with which the Convention was concerned. By Article 1 of the Convention the Parties provide that the Convention “applies to the seas south of 60° South Latitude, in respect of which the Contracting Parties affirm the provisions of Article IV of the Antarctic Treaty”. The subject matter of the Convention on the Conservation of Antarctic Marine Living Resources 1980 required a different and more explicit approach. That Convention was to deal in detail with fisheries at sea, and so needed to make particular provision to safeguard the positions of the various States as to the existence and extent of jurisdiction at sea; the Convention also included Parties which were not Parties to the Antarctic Treaty, and so were not bound by its Article IV. This second matter was covered by a provision, in Article IV.1 of the Convention, that the Contracting Parties, whether or not they are Parties to the Antarctic Treaty, are bound by Article IV of that Treaty in their relations with each other. Article IV of the Antarctic Treaty, however, related to the possible implications flowing from that Treaty, and from acts and activities taking place while it was in force. In order to ensure proper legal protection for the interests at stake, it was necessary to adapt the terms of that Article so as to make them applicable in relation to the Marine Living Resources Convention.26 Accordingly Article IV.2 of the Convention repeated, in a slightly different form and with two important adaptations, the terms of Article IV of the Antarctic Treaty. It provided: 26

As to the special provision made in respect of Kerguelen and Crozet Islands and South Georgia and the South Sandwich Islands, see pp. 152–153. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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2. Nothing in this Convention and no acts or activities taking place while the present Convention is in force shall: (a) constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in the Antarctic Treaty area or create any rights of sovereignty in the Antarctic Treaty area; (b) be interpreted as a renunciation or diminution by any Contracting Party of, or as prejudicing, any right or claim or basis or basis of claim to exercise coastal state jurisdiction under international law within the area to which the Convention applies; (c) be interpreted as prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any such right, claim or basis of claim; (d) affect the provisions of Article IV, paragraph 2, of the Antarctic Treaty that no new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the Antarctic Treaty is in force. The first point of difference from Article IV of the Antarctic Treaty to be noted arises in paragraph 2(a) quoted above. This differs from the earlier Article IV, on paragraph 2 of which it is based, in that, whereas the earlier text related to claims to territorial sovereignty and the creation of rights of sovereignty “in Antarctica”, the Marine Living Resources text denies advantage or disadvantage for claims to territorial sovereignty “in the Antarctic Treaty area” and denies the creation of any rights of sovereignty in that same area – that area being, according to Article VI of the Antarctic Treaty, the area south of 60° South latitude, so including the seas in that area. The territorial connotations of the phrase “in Antarctica” have already been noted:27 they would seem to be confirmed by the apparently felt need to vary the language used in a Convention dealing with maritime resources. The second and more important change, as compared with the Antarctic Treaty, is the addition of the reference in paragraph 2(b) to the exercise of coastal state jurisdiction under international law, and thus the inclusion of such jurisdiction in the protective scope of sub-paragraph (c). A Convention concerned with the conservation of marine living resources, involving the adoption of appropriate measures at the international level, is bound to have implications for the positions of those States believing themselves to have the rights of coastal States to exercise control in these matters in waters over which they are entitled to assert certain rights, as well as for the positions of those other States who deny that the former have any such rights as “coastal States”. 27

See pp. 111–118. [Editors’ note: pages 1275–1280 of this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The need to ensure that the necessary protective provisions for the legal positions of all concerned clearly covered these maritime matters necessitated the addition of paragraph 2(b). By referring to coastal state jurisdiction “under international law” the paragraph ensures that the protection it affords extends only to coastal jurisdiction the nature and geographical limits of which are consistent with international law. In no sense were excessive claims being condoned. Questions of territorial sovereignty are raised in possibly their most acute form in relation to mineral resource activities. Prospecting and exploring for minerals, and developing whatever deposits may be found, are of the most direct concern to a State in which those deposits may be located; in all States such activities are matters for the State to regulate, from which the State gets significant revenues. Any move to deprive a State of full control over mineral activities in its territory, and give control to international institutions (which was what the Convention on the Regulation of Antarctic Mineral Resources 1988 provided for), would be bound to have the most serious and direct ­implications for that State’s assertions of territorial sovereignty; equally, of course, any acceptance of that State’s special position in relation to mineral deposits on its territory would have similar implications for the position of those States which did not recognise its territorial sovereignty over the areas in question.28 While the conflict of interest between the claimant and non-claimant States was central to the outcome of the negotiations for the Minerals Convention,29 the protection of their respective positions on territorial sovereignty was easily achieved, by following closely what had gone before. Article 9 of the Convention simply repeated, almost verbatim (the changes were purely matters of drafting), the terms of Article IV of the Marine Living Resources Convention, with two exceptions. The first was that, in the circumstances of the Minerals Convention (involving all Parties, whether original or by later accession, being already Parties to the Antarctic Treaty),30 there was no need for a provision equivalent to paragraph 1 of Article IV of the Marine Living Resources Convention. The second was that, since mineral resource activities could take place on land as well as off-shore, it was necessary for the protective provisions of the Article 28

29 30

There was, of course, no problem of this kind in relation to possible areas of continental shelf which might extend south into the Antarctic area from island territories which were themselves situated outside that area and over which territorial sovereignty was generally recognised: see p. 152. [Editors’ note: not included in this Anthology]. In this context note particularly paragraphs 5 and 6 of the Preamble to the Convention. See Arts 60 and 61.

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to cover both, so adding to the maritime reference to the “exercise of coastal state jurisdiction under international law” a territorial reference to “territorial sovereignty in Antarctica”: the terms of Article 9(b) accordingly provide that nothing in the Convention and no acts or activities taking place while it is in force shall “…be interpreted as a renunciation or diminution by any Party of, or as prejudicing, any right or claim or basis of claim to territorial sovereignty in Antarctica or to exercise coastal state jurisdiction under international law”.

...

This carefully crafted network of provisions comprising Article IV of the ­Antarctic Treaty and the provisions based on it are a central part of a series of closely inter-related and interdependent elements which have established for Antarctica a distinctive and carefully balanced regime, and have given Antarctica a “special legal and political status”.31 Article IV of the Antarctic Treaty and its analogues in the other treaties provide an excellent illustration of the possibilities of effective dispute management even where dispute resolution is not possible. Those provisions have not solved the underlying disputes, nor prevented them from one day perhaps again becoming an active source of ­international tension in the region; but they have afforded all the States concerned an unparalleled opportunity, despite deep-seated differences about a matter so politically sensitive as territorial sovereignty, to cooperate closely in Antarctica in (as the preamble to the Antarctic Treaty puts it) “the interest of all mankind”. 31

This “special legal and political status of Antarctica” was noted in the Preamble to the Minerals Convention of 1988 and in the Preamble to the Environmental Protocol of 1991.

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Chapter 49

Bin Cheng, Studies in International Space Law, 1997 Comment by Professor Sa’id Mosteshar, London Institute of Space Policy Published in 1997, Studies in International Space Law brings together some writing by Professor Bin Cheng over a period dating back to before the first satellite, Sputnik I, was launched by the Soviet Union. At the time of publication, each piece was a significant contribution to the field, advancing the discipline of international space law. The present collection is a coherent updated work addressing the essential elements of international space law and placing the topic in its proper context as a branch of public international law. It also contributes to the understanding of the nature of public international law and the process of its development. He has recently translated his book into Chinese. Some aspects of international space law continue to lack clear definition, not least the determination of the boundary between airspace and outer space. Although Professor Cheng does not offer a definitive answer, his examination of the legal arguments about the limits of airspace and of the delimitation of outer space clearly addresses every relevant factor. Developing arguments on the legal right of passage, he draws on practice in the nineteenth century when many countries abandoned the need for passports to enter and leave their territory on the passage of drifting weather balloons, and on the early days of aviation when aircraft were allowed the right of passage without let or hindrance. Much is being said and written about the exploitation of space resources and the terms of the Moon Agreement. Anyone considering the legal status of these resources and proposing the right to mine celestial bodies is well advised to study Chapter 12 of this book. Of Chinese origin, Professor Cheng spent his academic career as a student, tutor and professor at University College London. Generations of students, many now in important positions around the world, have great regard and affection for him. When I first met Professor Cheng in the 1980s he displayed the modesty and humility of a truly great scholar, thinker and teacher. Although he continues to be a mentor to many in the field, including me, neither his modesty nor the quality of his scholarship have changed.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_050

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Many others have made valuable and extensive contributions to the field, but none with his clarity of thought and expression. In conclusion I am reminded of the comment by W B Yeats: Talent perceives differences, genius unity. In this area no-one does it better than Professor Bin Cheng.

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B. Cheng, Studies in International Space Law, (Oxford University Press 1997). Excerpt: Epilogue, ‘The Contribution of Air and Space Law to the Development of International Law’, pp. 671–698. Reproduced with the kind permission of Oxford University Press.

The Contribution of Air and Space Law to the Development of International Law* Bin Cheng I Introduction Although the first aircraft took to the air in 1783,1 and the first multilateral international treaty relating specifically to aviation, albeit military aviation, was signed in 1899,2 both international air law and international space law are essentially products of the twentieth century. The latter came into being in fact only in the second half of the twentieth century.3 Yet these two branches of international law have, in this relative short span of time, probably contributed more to the understanding and development of general international law than any other branch of international law. II

The Sources of International Law

First, the unprecedented speed at which air law and space law have developed since Kitty Hawk (1903) and Sputnik I (1957) throws very revealing light on the * First published in 39 clp (1986), pp. 181–210. Reproduced by kind permission of Sweet & Maxwell Ltd. 1 The Montgolfier brothers’ hot air balloons. See further B. Cheng, ‘The Right to Fly’, 42 Grotius Society Transactions 1956 (1958), p. 99. 2 Hague Declaration I (1899); this was pre-dated by a year by the first bilteral international agreement, that between Austria-Hungary and Germany of 8 June and 2 Nov. 1898 on the legal status of military balloons flying over the frontier; see E. Riesch, ‘Das erste Luftfahrtakbommen der Welt’, 10 Archiv für Luftrecht (1940), p. 41. There was an even earlier document relating to dispatch-bearers carried over enemy lines by balloons not being treated as spies in Art. 22(3) of the 1874 Draft Brussels Declaration concerning the Laws and Customs of War (A.P. Higgins, The Hague Peace Conference (1909), p. 273), but the 1874 Draft Declaration was never ratified. A similar provision is found in the subsequent 1899 Hague Convention ii on the Laws and Customs of War on Land, Art. 29, ibid., p. 206, but, in both instances, the reference to aircraft is only incidental. 3 See B. Cheng, ‘Recent Developments in Air Law’, 9 clp (1956), p. 208 [Ch. 1 above], and ‘International Law and High Altitude Flights: Balloons, Rockets and Man-Made Satellites’, 6 ICLQ (1957), p. 487 [Ch. 2 above]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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whole question of the sources of international law.4 In particular, it provides a unique insight into the nature of what has hitherto been traditionally termed customary international law. In the European Commission of the Danube Advisory Opinion before the Permanent Court of International Justice, Judge Negulesco in his Dissenting Opinion went as far as saying: …an international custom … can only be established by a continuous practice from time immemorial and by a reciprocal conviction of the lawfulness of the exercise of the right in question…5 Whilst probably few would now share Judge Negulesco’s extreme view requiring, before a rule of general international law can be said to exist immemorial usage to evidence it the conventional view remains that the formation of rules of international customary law is slow, while the making of rules of international law by means of treaties is more direct and expeditious. A Treaty Making can be a Slow Process The experience in international air and space law has shown that this is not necessarily so. In the first place, the negotiation of a multilateral treaty can be an extremely prolonged process. Thus the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), or more precisely its Legal Sub-­ Committee spent nine years (1967–71) drafting a 28-article Convention on International Liability for Damage Caused by Space Objects.6 The 21-article Moon Treaty took the same amount of time (1970–9).7 But even when agreement has been reached on a treaty and the treaty has been signed, the signatures are usually subject to ratification. The ratifications can often be long delayed, and may not be forthcoming at all. For instance, the United Kingdom signed the 1948 Geneva Convention on the International Recognition of Rights in Aircraft in 1948.8 Only in 1968, exactly 20 years later, did it adopt the necessary 4 D.H.N. Johnson, in his lectures on Rights in Air Space (1965), p. 4, said: ‘A separate “Space Law” is indeed being elaborated under our very eyes. The process of its elaboration … provides a fascinating, up-to-date and practical means of checking the many theories that exist about the “sources of international law”, but did not pursue this topic further, as it was outside the scope of his lectures. 5 (1927) PCIJ: B.14, p. 6, at p. 114. 6 See B. Cheng, ‘Convention on International Liability for Damage Caused by Space Objects’, in Jasentuliyana and Lee (eds.), 1 Manual (1979), p. 83, at pp. 84–94 [Ch. 11 above, s. iii: The Long Haul Towards an Agreement]. 7 See B. Cheng, ‘The Moon Treaty’, 33 clp (1980), p. 213, at pp. 214–8 [Ch. 12 above, s. ii: The Drafting History]. 8 icao Doc. 7620. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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l­egislation in order to enable the Government to ratify the treaty.9 But up to now, nearly another 20 years later, the United Kingdom is still not a party to it, and there has been no further sign that it might ratify the Convention in the near future. In the case of the Geneva Convention, the treaty has actually come into force, albeit without the United Kingdom. But in many cases, the lack of ratifications can hold up the very coming into force of a treaty for a long time. Thus in the early fifties a number of parties to the 1929 Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air10 wanted to amend it Agreement was finally reached at The Hague in 1955, in the form of the 1955 Hague Protocol to Amend the Warsaw Convention.11 The principal object of the Hague Protocol was to remedy what was perceived as an injustice in the original Warsaw Convention, an injustice to passengers injured or killed in aviation accidents occurring in the course of international carriage by air. This was because, since the gold clause in the Warsaw Convention was no longer allowed to operate freely according to the true value of gold, but had to follow everywhere its artificial official price, the limits set by the Convention to the passengers’ right of recovery became, in the eyes of many, extremely low. The Hague Protocol required 30 ratifications to bring it into effect Many States were at first unwilling to ratify the Protocol unless the United States were to do so. But the United States was hesitant because it considered the revised limit still far too low. It did not sign the Protocol until some nine months after the Conference. Eventually it became clear that the United States was not going to ratify the Protocol after all. But even then it took the other States a long time to decide that they would bring the Protocol into force without the United States. It was only in 1963, that is, eight years after the adoption of the Protocol, that the thirtieth ratification which was needed to bring the Protocol into force, was finally received. The United Kingdom further delayed its ratification until 1967,12 in other words, twelve years after the Hague Conference. The refusal of the United States to ratify the Hague Protocol and the bringing into force of the Hague Protocol without the United States, together with the subsequent unilateral action of dubious legality taken by the United States in the form of the 1966 Montreal intercarrier Agreement,13 made the situation of the passenger who suffers injuries in the course of international carriage by 9 10 11 12 13

Civil Aviation Act 1968, ss. 16–18. ukts No. 11 (1933), Cmd. 4284. icao Doc. 7632. See Carriage by Air (Convention) Order 1967 (S.I. 1967 No. 478). See B. Cheng, ‘Air Transport Law: National and International’, para. 1.5, in National ­Consumer Council, Air Transport and the Consumer, a need for change? (1986), p. 208, at pp. 209–10. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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air one pregnant with confusion and anomalies which grievously offend one’s sense of distributive justice.14 At this point, it may be possible between parentheses to mention the contribution of the 1929 Warsaw Convention on International Carriage by Air to the development of the so-called international uniform law, that is, uniform rules of domestic law brought about through international agreement It is a tribute to the genius of those who drafted the Warsaw Convention that the essential structure of the Convention, drawn up in the infancy of the aviation industry, remains unchanged after over 50 years and unaffected by even the supersonic age. It has probably more contracting parties than any other treaty establishing international uniform law, with over 130 States or territories. Among the few States that have not accepted the Warsaw system, those whose airlines become involved in a major accident on an international flight soon realize their mistake and join the fold, as did Turkey in 1978, shortly after the tragic loss of a Turkish Airlines aircraft outside Paris. Moreover, the rules it establishes for ‘international carriage’ have often been extended by the contracting States to ‘non-international carriage’. Furthermore, the Warsaw system is still used sometimes as a model for legal regulation of other forms of transport An example is the 1974 Athens Convention on Carriage of Passengers and their Luggage by Sea. The Warsaw system is thus the example par excellence of the benefits of international uniform law: the elimination of problems of conflict of laws and of jurisdictions, and the removal of the inconveniences inherent in the diversity of national laws in areas of the law which carry inevitable foreign elements.15 It should certainly be borne in mind when the time comes to consider the elaboration of rules to regulate commercial carriage to and in outer space. But the refusal of the United States to ratify the 1955 Hague Protocol, together with subsequent actions on the part of the United States and others to salvage the resultant situation, caused the pristine uniformity of the original Warsaw system to be fragmented into a number of haphazard variations and permutations that do violence to distributive justice. The several excrescences on the original Warsaw Convention can cause passengers in similar situations who would have been treated alike by the Convention to receive very different treatments for no particular rhyme or reason.16 The fact that passengers 14 15 16

See B. Cheng, ‘Compensation for Airline Passenger Death and Injury. The Future of the Warsaw Convention’, 71 J. of the Royal Aeronautical Society (1967), p. 501. See B. Cheng, ‘Fifty Years of the Warsaw Convention: Where Do We Go from Here?’, 28 zlw (1915), p. 945. For text of Athens Convention, see 14 ilm (1975), p. 945. See Cheng, loc. cit in nn. 13, 14, and 15 above.

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are not really made aware of these discrepancies in their treatment is nothing short of scandalous. Consequently, the 1955 Hague Protocol, instead of having eradicated the injustice it sought to remove, has itself brought in its train additional causes of injustice, and this is largely because of the cumbersome procedure of rule-making by means of treaties. The upshot is the conclusion of yet another treaty, the 1971 Guatemala City Protocol to amend the Warsaw Convention as Amended at The Hague.17 The Guatemala City Protocol hopes to reunify the law of international carriage by air by agreeing to a very high limit of liability for passenger injuries which would be acceptable to the United States. In order to ensure that this revision and reunification will not take place without United States participation, the Guatemala City Protocol not only requires 30 ratifications before it comes into force, but it also stipulates in effect, if not expressly, that among these ratifications there must be that of the United States (Article XX). Subsequently, it appeared that the United States might not ratify this Protocol either. So in the 1975 Montreal Additional Protocol No. 3,18 to amend the 1971 Guatemala City Protocol the signatories boldly decided that they would bring the substance of the 1971 Protocol into effect, with or without the United States. To do this, they introduced a novel method of in effect bringing into force a treaty without following the relevant provisions of that treaty. What they did was inter se to treat the substantive provisions of that treaty as if they had come into effect (Articles V and VII) and to provide that the amendment Protocol would come into force without the special condition in the original treaty (Article VIII). The United Kingdom ratified the 1975 Montreal Additional Protocol No. 3 on 5 July 1984, but by the beginning of 1986, there were still only six ratifications to the Guatemala City Protocol as such, and seven to Montreal Additional Protocol No. 3. Consequently, fifteen years after the conclusion of the Guatemala City Protocol, the prospect of rectifying the injustice already perceived then to be in need of correction appears as remote as ever, notwithstanding the fact that the United Kingdom has already ratified the relevant international convention and enacted the necessary domestic legislation19 to put the Protocol into effect in United Kingdom domestic law, when the Protocol itself comes into force. Treaty-making can not only be a long drawn out process, but treaties are also, seemingly contrary to a belief which appears to be very prevalent in the 17 18 19

icao Doc. 8932. icao Doc. 9147. See also 22 ilm (1983), p. 13. Carriage by Air and Road Act 1979.

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United States and perhaps North America generally, not capable, as such, of binding non-parties, no matter how many States may have accepted them Thus with regard particularly to hijacking of aircraft the United States tried hard in the late sixties to stem the traffic to Cuba without having to talk directly to the Castro regime. In due course, a conference was convened in December 1970 at The Hague to draw up what emerged as the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft.20 However, as perhaps was to be expected, Cuba was not at the conference. Nor has Cuba ever signed, ratified, or acceded to the Convention. In the end, no doubt with the help of the Canadian government which signed an Agreement with Cuba on the same date,21 the United States had to negotiate and eventually sign on 15 February 1973 with the Castro government through intermediaries, a Memorandum of Understanding on the Hijacking of Aircraft and of Vessels in practically identical terms.22 But before that Canada and the United States, from 1970 onwards, had tried extremely hard, albeit in vain, to bring about international schemes that would enforce, even against non-contracting States, the rules evolved in the 1963 Tokyo Convention on Offences and Certain other Acts Committed on Board Aircraft23 the 1970 Hague Convention on Hijacking,24 and the 1971 Montreal Convention on Sabotage,25 by the majority decision of a group established by the contracting parties to a new sanctions convention.26 The shelving of these schemes by the International Civil Aviation Organization (icao)27 and 20 icao Doc. 8920. 21 Canadian Department of External Affairs, Canada Communiqué No. 19(15 Feb. 1973). 22 12 ilm (1973), p. 370. 23 icao Doc. 8364. Regarding the Tokyo Convention, and the Hague and Montreal Conventions also referred to in the text. see B. Cheng, ‘International Legal Instruments to Safeguard International Air Transport The Conventions of Tokyo, The Hague, Montreal, and a New Instrument Concerning Unlawful Violence at International Airports’, in International Institute of Air and Space Law, University of Leyden, and others, Conference Proceedings: Aviation Security, The Hague, 1987 (1987), pp. 23–46. 24 Convention for the Suppression of Unlawful Seizure of Aircraft, The Hague (icao Doc. 8920). See also B. Cheng, The Hague Convention on Hijacking of Aircraft 1970—The Legal Aspects’, 76 Aeronautical J. (1972), pp. 529–35; in German, 22 zlw(1973), pp. 223–33. 25 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Montreal (icao Doc. 8966). 26 See Canadian-US draft in Appendix D to icao Doc. LC/SC CR: Report 27/4/71 and icao Doc. 9090-LC/169, Legal Committee 29th (Special) Session, Montreal, Jan. 1973, for further variants of this proposal. 27 See A.W.G. Kean, B. Cheng, and Sir Frederick Tymms, The Latest on Hijacking’, 77 Aeronautical J. (1973), p. 338.

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the repudiation of any such ideas by the icao Extraordinary Assembly and diplomatic conference which met in Rome in 197328 are clear vindications of the well-established principle of international law on the law of treaties clearly acknowledged in Article 34 of the 1969 Vienna Convention on the Law of Treaties:29 ‘A treaty does not create either obligations or rights for a third State without its consent’ The confirmation of this principle by the practice of States is of course no great revelation, but it does highlight the difference between treaties and customary international law as ‘sources’ of international law. Indeed, it lends strong support to the view that the term rules of international law should be reserved for norms of the international legal order which are applicable to all the subjects of international law, whilst treaty provisions, being norms which are applicable only between the contracting parties, are mere treaty obligations and not ‘rules of international law’. Hence, contrary to the pure consensualist position which regards treaties as the principal sources of international law, being based on the express consent of States, treaties are in fact not sources of international law with rules binding on all (erga omnes), but only sources of international legal obligations with rules binding on only the contracting parties (inter partes).30 This has sometimes been erroneously taken to imply some diminution in the status of treaty provisions involving some impairment to its binding effect This is of course not so. It merely clarifies the situation by distinguishing these two categories of norms within the international legal system. What has so far been said does not mean that treaties, especially bilateral treaties, cannot sometimes be concluded very quickly. Many are. However, experience in the field of air and space law shows clearly, on the one hand, that treaties are by no means as simple or as expeditious an instrument for the creation of binding obligations in international law as it is often assumed.

28 See icao, International Conference on Air Law, Rome 1973, Minutes and Documents, icao Doc. 9225. 29 8 ilm (1969), p. 679. 30 See G.G. Fitzmaurice, ‘Some Problems regarding the Formal Sources of International Law’, Symbolae Verzijl (1958), p. 153, at p. 157; C. Parry, The Sources and Evidences of International Law (1965), pp. 28 ff.; D.P. O’Connell, 1 International Law (1965), pp. 22 ff.; B. Cheng, ‘On the Nature and Sources of International Law’, in Cheng (ed.), International Law, p. 202, at pp. 229 ff.; Cheng, ‘Custom’, in R. St. J. Macdonald and D.M. Johnston (eds.), The Structure and Process of International Law (1983), p. 513, at pp. 526 ff. N.B.: in the book, pp. 545 and 546 have been transposed, and are wrongly paginated.

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Emergence of Rules of General International Law can be Instantaneous By contrast, it has been demonstrated that what is commonly called ‘customary international law’ need not necessarily be based on prolonged usage or any usage at all. Thus whilst there was some initial hesitation in the doctrine of international law at the beginning of the century31 and on the part of some States,32 the principle that every State exercises complete and exclusive sovereignty over the airspace above its territory was quickly recognized, especially with the approach of the First World War and the passing of the doctrine of laissez faire, laissez passer.33 It is significant that by 1919, the Paris Convention on the Regulation of Aerial Navigation,34 in its Article 1, proclaimed the principle of airspace sovereignty no longer as one accepted contractually among the contracting parties, but as one which they were simply taking note of and reaffirming. But probably the most dramatic example of the rapid or almost instantaneous creation of a body of rules of general international law is to be found in the development of rules relating to man’s exploration and exploitation of outer space. All of a sudden, States had to take position regarding the many novel situation which man’s penetration into outer space has transformed from the purely theoretical and speculative to the actual and the practical. Among the problems which had to be faced with various degrees of urgency were the upper limit of national sovereignty, the lawfulness of satellite flights in relation to the sovereign rights of the subjacent States (their mere over-flights and the various activities in which they may be engaged, such as photo-reconnaissance, remote sensing, and direct broadcasting), the legal status of outer space and of celestial bodies, the possibility of territorial sovereignty in outer space or B

31

Cf. P. Fauchille who, in his celebrated draft code on ‘Régime juridique des aérostats’ submitted to the Institut de Droit International in 1902, suggested in its Art. 7 that ‘L’air est libre’, thus launching the doctrine of ‘free air’. What was implied was of course that airspace was free. 32 In 1914, the British Government in a note to Switzerland, while expressing its regret for a violation of Swiss airspace by British aircraft, added that this ‘should not be interpreted as a recognition by His Majesty’s Government of the existence of an air sovereignty’ (J. Kroell, Traité de droit international public aérien (1934), p. 37, n. 4, cited in P.H. Sand, G.N. Pratt, and J.T. Lyon, An Historical Survey of the Law of Flight (1961), p. 12). However, at the 1910 Paris Conference on International Aviation, it was the British Government that unequivocally supported the sovereignty principle, whilst the French and the Germans paid lip service to the freedom of the air (D.H.N. Johnson, Rights in Air Space (1965), p. 23). 33 See Cheng, Law of International Air Transport, p. 120. 34 11 lnts, p. 173.

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on celestial bodies, the military and peaceful uses of outer space and celestial bodies, jurisdiction over space vehicles and astronauts, and a host of many others. In a span of less than 30 years since Sputnik I, the responses which States had quickly to find to these novel problems have together by now already built up a substantial corpus of international space law. The ways in which this has been done provide a telling demonstration of how rules of general international law come into existence, in almost laboratory or hot-house conditions. To take just the example of the legality of mere overflights by artificial satellites, which is almost a sequel to the question of airspace sovereignty 50 years earlier, experience in space law shows that rules of general international law do not come into existence as the result of a tacit agreement—a form of multilateral or even universal pactum tacitum. Thus, when Lord Hailsham, in the name of the United Kingdom government, said in the House of Lords in 1959, ‘Her Majesty’s Government consider that sovereignty over space above national territory cannot extend indefinitely upwards…’,35 this was a unilateral expression of the view of the United Kingdom on the law in question. It was not part of a general tacit agreement Nor could the United Kingdom at that stage be said to be following any general prolonged usage. It was simply an example of an opinio individualis juris generalis, a State’s individual opinion or recognition (that can be quoted against it) of what the content is of a given rule of general (international) law. Where there are only isolated instances of such opinio individualis, a rule of general international law cannot be said to have come into existence. General international law is formed when there is a sufficient number of opiniones individuales juris generalis among States to constitute together an opinio generalis juris generalis—a general opinio juris among States as to what is the content of a rule of general international law. Thus a little over two years later, the Canadian delegate to the United Nations Outer Space Committee was already able to say: Under the concept of outer space now being developed, as long as a spacecraft stays within outer space it is safely proceeding in an area which we might describe as the ‘high seas’ of the air.36

35 36

216 H.L. Deb. 5s., col. 975. UN Doc. A/AC.105/PV.4 (21.3.62), p. 26. The statement was not very well put, but what he clearly meant was that all satellites in orbit were beyond national airspace, in other words, in outer space.

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What is required is a general consensus, not a consensus in the sense of a contractual consensus ad idem, a meeting of wills creating a tacit agreement but a number of identical opiniones individuales juris generalis running in parallel. This consensus can be established by tracing the individual attitudes of States, but there is nothing to prevent it from being expressed through other channels, such as General Assembly resolutions or international treaties, as has been done in a number of instances in the field of space law. What has to be clearly understood is that in such cases, what causes the rules to be legally binding would not be the General Assembly resolutions as such (which except in internal, including budgetary, matters are merely recommendatory) or, visà-vis third States, the treaties (which are binding only between the parties), but the opinio generalis juris generalis of States to the effect that the rules in question are rules of general international law. The development of space law has clearly shown that the crucial factor in determining whether a rule of general international exists is this opinio generalis juris generalis of States. In a horizontal society such as the international society, where States are their own law-givers, no more is required to bring a rule of general international law into existence than this opinio generalis juris generalis. From this point of view, three lessons stand out First, rules of general international law are developed by States in a deliberate and well-considered manner according to what may be termed—to borrow Judge de Lacharrière’s phraseology—the carefully thought out ‘external legal policies’ of States vis-àvis given situations37 and not as some would have it, by States following in a half-dazed fashion some ‘initial error’ committed by themselves or others. Secondly, contrary to the view of those who deny the possibility of establishing the opinio juris of States in saying either that States can have no mind of their own, or that it is not possible to fathom the mind of a legal person, there is really no difficulty in deducting from either the British or the Canadian statements quoted above what the attitude of the State concerned is. The mistake is to confuse opinio juris with the motives of a State. Opinio juris in international law is no more and no less than the attitude of a State on a point of international law that may be inferred from its words or actions of such a character that the inference is in law opposable to it i.e., that it may be invoked against it. Lastly, contrary to the growth of customary law in domestic law where the subjects of the law have no power to make the law, and where it takes time for a general practice accepted as binding first to establish itself and then to receive the force of law from either the legislator or the judge (hence in municipal law opinio juris means rather a conviction of being legally obliged by essentially a 37

Guy de Lacharrière, La politique juridique extérieure (1983). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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pre-existing rule), international law in the international legal system, where the subjects of the law are themselves the law-givers, coincides simply with what States collectively accept as law at any given moment whether written or unwritten. The term opinio juris is thus used in international law with a slightly different meaning from that in municipal law. Instead of being essentially passive and retrospective, looking back from the standpoint of a subject of the legal system to what has traditionally been accepted as legally binding, in international law opinio juris is the view of the law of a State, in its combined capacities of legislator, judge and subject all rolled into one, which takes into account not only what has been the situation and the law in the past but also the present and the future needs and interests of the State in accordance with, within the limits of one’s power position in the world, one’s own ‘external legal policies’. In this sense, international law is a truly living law which can shift in content from day to day in order to meet for example, in the field we are now discussing, the challenge arising from man’s venture into new frontiers. What we have been examining is what Article 38(1)(b) of the Statute of the International Court of Justice calls ‘international custom’, i.e. general international law binding on all the subjects of the international legal order. Whether we call it general international law or international custom is merely a matter of words, but it would be sheer grammatolatry to ignore the true nature of general international law, which forms the basic infrastructure of the international legal system, simply because the Statute has followed the tradition and called it ‘custom’, and to argue that therefore, we must look no further than what can be exegetically be derived from the literal and strict meaning of ‘custom’. ‘The time has surely come’, as Judge Jennings said, ‘to recognise boldly that it is not custom at all, and never was’.38 The truth is that there is no reason why rules of general (alia ‘customary’) international law cannot arise instantaneously.39 III

The Role of the Dominant Section in the Making of Rules of General International Law

One of the main controversial points regarding the formation of rules of general international law is whether what is required is the concurrence of all the subjects of international law, as the consensualists maintain, or only of the 38 39

R.Y. Jennings, The Identification of International Law’, in Cheng (ed.): International Law, p. 3, at p. 6. See B. Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’, 5 Indian jil (1965), p. 23 [Ch. 7 above], and Cheng, loc. cit (1982) and (1983) in n. 30 above. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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views of the generality or majority of States. In this regard too, experience in the air and space law field provides useful insight. From this point of view, what occurs in multilateral treaty-making is instructive. It will be recalled that earlier we referred to the special position occupied by the United States in the field of carriage by air. We have seen that States were reluctant to ratify the 1955 Hague Protocol without the United States, and that the participation of the United States became one of the conditions for the coming into force of the 1971 Guatemala City Protocol.40 Even when this special condition has been deleted, leaving merely the requirement of any 30 States ratifying the 1975 Montreal Additional Protocol No. 3 in order to bring both the 1975 and, in effect if not in law, the 1971 Protocols into force, the number of ratifications in 1986, eleven years after Montreal 1975, had not yet onethird of that required. Why? It is not because the United States is a superpower, whether in a military or a political sense. It is simply because the United States occupies such a pre-eminent position in the field of international carriage by air, both as consumer and supplier, that the revision of the widely accepted treaty rules on international carriage by air would, without United States participation, lose a great deal of its impact and usefulness. This shows that, irrespective of the field of international activity in question, what one needs in order that such activity be effectively regulated by given rules of the international legal order, is that those accepting these rules must include what the International Court of Justice in the North Sea Continental Shelf Cases called, those States ‘whose interests are specially affected’.41 What is clear is that in the enactment of legal norms within the international legal order, whether those of general international law or those in multilateral treaties. States do not carry equal weight42 In this regard, it may be pointed out that ultra-consensualists in international law tend to apply the principle of equality of States not only the position of States before the law, as one should if the Rule of Law were to prevail, but also to their rôle in the making of the law.43 But even in those systems of municipal law where the principle of the Rule of Law and of equality before the law has been scrupulously observed, universal suffrage has never been regarded as legally an indispensable element There is no reason why it necessarily be in international law.

40 41 42 43

See s. ii.A above. ICJ Rep. 1969, pp. 3, 42, and 43. See also Judge Tanaka, ibid., at p. 176. Cf. G. Tunkin, Theory of International Law (1974), p. 128.

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This weighting of States in the formation of legal norms in the international legal order is further demonstrated most dramatically in the field of space law. Space law accentuated this phenomenon because at the beginning of space exploration, there were only two States with space capabilities, the Soviet Union and the United States. Thus, the year after Sputnik I (1957), the General Assembly of the United Nations established an eighteen-member Ad Hoc Committee on the Peaceful Uses of Outer Space, which was transformed the year after (1959) into the Committee on the Peaceful Uses of Outer Space (COPUOS) with an enlarged membership of 24 and a mandate of two years. But it was another two years later, in 1961, that COPUOS began work in earnest and produced General Assembly Resolution 1721 (XVI), the first substantive General Assembly resolution on the legal aspects of space exploration. This resolution also continued the existence of COPUOS and further enlarged its membership to 28. Among the factors which enabled the further-enlarged COPUOS to work were first as we shall see later, its changed composition and secondly, its decision from the beginning that it and its subcommittees would not use majority votes, but would proceed by consensus.44 This, in a sense, gave every member a veto. But, as it was stressed by almost all the delegates, the essential point was agreement between the two space powers. The India delegate was merely voicing a general sentiment when he said: This was a wise decision because no solution which is not acceptable to the two space powers can be implemented.45 At one stage in the career of COPUOS, at a time when the United States was still commanding an easy majority in the United Nations and its various committees, the United States hinted that the Committee and its sub-committees should revert to the normal majority rule of United Nations organs. The Soviet delegate, even though what he had in mind was no doubt primarily the positive votes of both super powers and not just the vote of the United States, said with candour and a great deal of truth in the 28-member committee: twenty-six signatures on this document would have no value; there must be twenty-eight signatures. Even if all of us, including the Soviet Union, the countries of Asia, Africa and Latin America—which are in principle 44 45

Statement of Chairman, A/AC.105/PV.2 (19.3.62), p. 4. A/AC/105/PV.13 (13.9.62), p. 7; cf. also Poland, A/AC/105/C.2/SR.6 (6.2.62), p. 6; USSR, A/AC/105/PV.15 (14.9.62), p. 29.

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in favour of signing the declaration—sign, if there is no signature of the United States, the whole endeavour would have no result It is clear that without agreement of the United States it is impossible to resolve such a problem.46 The operative part of this statement is the last sentence: ‘without agreement of the United States it is impossible to resolve such a problem’. And as it was a question of space law, what was true of the United States was also true of the Soviet Union. But this certainly would not be true of every member of the 28-strong Committee, and still less of every member of the United Nations. In lawmaking, some States are definitely more equal than others. In practice, this was clearly shown by the manner in which the various United Nations General Assembly resolutions promoting the development of space law were arrived at. Especially in the early days of space exploration, the substantive provisions of each and every one of the resolutions were based primarily on direct agreement between the two space powers. Thus in the case of the first of these resolutions, namely Resolution 1721 (XVI) adopted by the General Assembly on 20 December 1961, although the draft was nominally submitted by all the members of COPUOS, according to Mr Khrushchev’s message of 20 March 1962 to President Kennedy, it really stemmed from an agreement between the two space powers.47 As for Resolution 1962 (XVIII) adopted by the General Assembly on 13 December 1963, which contained the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, the precursor of the 1967 Space Treaty, what happened was that when the fourth session of COPUOS opened on 9 September 1963, it was clear that agreement between the two space powers on the basic legal issues in the exploration and use of outer space was imminent As a result, the Committee held only four meetings and then adjourned, leaving the two space powers to continue their negotiations, assisted and attended by a few others. It would appear that after agreement had been reached between the two space powers, the original intention was to bring the text from what the French delegate pointedly called the ‘secluded places’ where it had been negotiated, straight to the First 46 47

A/AC/105/PV.15 (14.9.62), p. 28. In his message, Mr Khrushchev said: ‘I regard as a positive fact that at the xvith session of the United Nations General Assembly, the Soviet Union and the United States found it possible to agree on the proposal about the initial principles of space legislation, which was then unanimously approved by all the Members of the United Nations’ (A/AC.105/2). See also Soviet delegate, A/C.1/SR.1214 (11.12.61), p. 268 (para. 12).

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Committee of the General Assembly, thus bypassing COPUOS. It was subsequently decided, however, that the proposal would ‘make a stop’ in COPUOS in order, it would appear, to collect the signatures of all the other members of the Committee. To this end, the Committee met on 22 November 1963 with the understanding seemingly that no amendment would be entertained. At this meeting, the Indian delegate, presumably one of the select few chosen to attend the behind-the-scene negotiations of the space powers, said: ‘Many of the points in dispute between the space powers have been cleared up and an agreed paper is now before us.’48 In the event the proposal was adopted unanimously first by COPUOS, then by the First Committee and finally by the General Assembly itself without a word being changed or a comma disturbed, to become Resolution 1962 (XVIII). What one finds in this case, therefore, is a resolution which purports to state the ‘legal principles governing the activities of States in the exploration and use of outer space’ being in essence drafted exclusively by agreement between the, then only two, space powers. The other members of the United Nations and of the world virtually took no part in determining either their content or their formulation. Whilst it is true that at the time, only the two super powers had space capabilities, yet even then many others had the potential of acquiring such capabilities. Moreover, a number of the principles in the resolution were applicable to all States, including those which had no space pretensions whatsoever, such as the principle governing liability for damage caused by objects launched into space. Furthermore, even before the resolution was adopted, the view had already been expressed by some that ‘[t]he legal principles contained in [the draft resolution] reflected international law as it was currently accepted by Member States.’49 If so, this means that rules of general international law intended for general application were being drawn up by agreement exclusively by two States. It may be said in this case that what was agreed upon by these two States was nevertheless adopted unanimously by the General Assembly of the United Nations with the result that, whatever may be the effect of General Assembly resolutions in general and this resolution in particular, this resolution did receive the approbation of all the members of the United Nations. And, probably

48 49

A/AC/105/PV.24, p. 21; repeated in substance in Committee I, A/C.1/SR.1343 (3.12.63), p. 168. E.g., Canada, A/C.1/SR/1346 (5.12.63), p. 189.

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for this reason, there were States which attached great importance to the fact that this was a resolution that had been adopted unanimously.50 In the first place, however, this does not take into account the fact that United Nations membership is still not universal. Switzerland remains a notable exception, upon which a rule of general international law would no doubt be regarded as binding, but to which a General Assembly resolution, whether unanimously adopted or not, would simply be res inter alios acta without any legal effect on her whatsoever. Secondly, to reason in this way is to ignore the reality of the situation. Thus one has only to look at the next substantive General Assembly resolution on outer space, namely Resolution 2222 (XXI) adopted on 19 December 1966.51 This was the resolution which ‘commended’ the text of the treaty on outer space drawn up by COPUOS to ‘all States’ for their signature, ratification and accession. The treaty was based substantially on the Declaration in Resolution 1962 (XVIII). Although this time, there was some more discussion in COPUOS on the text of the draft treaty, which became in due course the 1967 Space Treaty, the crucial issue at all times was whether the provisions were acceptable to the Soviet Union and the United States, and much of the negotiation took place directly between them. Once they were able to reach agreement then the rest became largely a formality. Agreement was announced on 8 December, 1966. A 43-power draft resolution incorporating the agreed text was submitted on 15 December 1966. It came before the first Committee on 17 December, and the Plenary of the General Assembly on 19 December 1966. One can but sympathize with the Tanzanian delegate to the General Assembly when he sounded, as he said he wanted to do, a ‘note of discord’, in complaining that the General Assembly had been given too little time to consider the draft treaty. ‘It is probable,’ said he, ‘that the completed draft … has not yet been seen by many of the Foreign Offices of the delegations represented here.’52 In this case, he did not wish to stand in the way of the General Assembly which then proceeded to adopt the resolution unanimously. Yet, with due respect to the States concerned, would it have mattered very much had Tanzania and some of the States whose Foreign Offices had not yet had a chance of seeing a complete text of the draft treaty or resolution abstained or even voted against the resolution? 50 E.g., USA, A/AC.105/C.2/SR.20 (22.4.63), pp. 10–11; see, however, the last four paragraphs of this section. 51 See B. Cheng, ‘Le Traité de 1967 sur l’espace/The 1967 Space Treaty’, 95 jdi (1968) [Ch. 9 above]. The texts of the various treaties relating to outer space concluded through the United Nations are reproduced in the Appendix below. 52 UN Doc. A/PV.1499 (Prov.) (19.12.66), p. 66.

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Not really, as long as there was a two-thirds majority for the resolution to be adopted. What was legally relevant in this instance was not the size of the vote. What was to become legally binding was the treaty and not the resolution, and what would make the treaty legally binding were the requisite signatures and ratifications. The treaty requires only five ratifications in order to come into force, but these must include the ratifications by the three depositary governments, namely, the Soviet Union, the United Kingdom, and the United States.53 Whilst in principle the treaty will be binding only on those States that are parties to it, there are nevertheless provisions in the treaty which purport to be legal rules of a general nature applicable erga omnes, or what the International Court of Justice in the North Sea Continental Shelf Cases called of ‘a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law.’54 A typical example is Article II which provides: Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. There is much evidence to indicate that many States, parties to the Treaty, believe Article II to be declaratory of general international law. The question then is how does such a provision in a treaty transform itself into a rule of general international law with binding effect even on non-parties. That this is legally feasible is clearly acknowledged in Article 38 of the 1969 Vienna Convention on the Law of Treaties which provides: Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognised as such. What is required for this to happen is that there must be a sufficient number of States which believe Article II to be not merely a treaty provision, but also a rule of general international law (in order words, there must be a substitution towards it on the part of States of what would otherwise be merely an opinio obligationis conventionalis—acceptance of the binding character of a rule as a matter of treaty obligation—by an opinio juris generalis—acceptance of the binding character of a rule as a matter of general [international] law). In 53 Art xiv(3). 54 ICJ Rep. 1969, p. 3, at p. 42. This is not necessarily to agree with the Court’s terminology. Even purely contractual provisions create norms, albeit only inter parties.

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addition, there must be included among them enough States which have the intention, the ability and the will to uphold Article II as a rule of general international law. What we need, therefore, are not only States which are willing themselves to observe Article II, but also States which will be willing and able effectively to challenge any breach thereof by others. In other words, rules of general international law are made and sustained by the will of the dominant section of international society in each individual case. In this connection, it is interesting to contrast Article II of the 1967 Space Treaty which prohibits any national appropriation of outer space, including the moon and other celestial bodies, thus giving outer space the status of res extra commercium in international law, with the more ambitious attempt in the 1979 Moon Treaty to declare the moon and other celestial bodies within the solar system other than the earth, as well as their resources, ‘the common heritage of mankind’.55 Now, both the Space Treaty and the Moon Treaty were drafted, at least nominally, by COPUOS. Both went through the same procedure for adoption by the General Assembly, and each was adopted by the General Assembly by consensus without a vote. Both require only five ratifications to come into force. The only apparent difference, from the procedural point of view, is that the Moon Treaty, unlike the Space Treaty, does not require the ratification by any specified State. Both treaties are now in force. The Moon Treaty actually came into force on 11 July 1984, then having been ratified by Austria, Chile, the Netherlands, the Philippines, and Uruguay. However, without any disrespect to any of these five countries, if it is claimed that since the Moon Treaty is now in force, the moon and other celestial bodies in the solar system other than the earth have thereby, as a matter of general international law valid and binding erga omnes, been transformed into the common heritage of mankind, such a claim will hardly be credible. In contrast, disregarding what effect General Assembly Resolution 1721 (XVI) may or may not have in the matter, the moment the Space Treaty came into force on 10 October 1976, when the three depositary States ratified it simultaneously, if it was claimed there and then that Article II of the Space Treaty placing outer space and celestial bodies beyond national appropriation had become also a rule of general international law, such an assertion would in all probability have been valid. But it is quite evident that this effect could have sprung from the mere fact that when the Space Treaty came into force, there were seventeen parties to it instead of there being only five to the Moon Treaty; for, to borrow what the Soviet delegate said in a slightly different context,56 in 55 56

See loc. cit. in n. 7 above [Ch. 12 above]. [Editors’ note: not included in this Anthology]. See n. 46 before.

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the case of a rule of this nature, its acceptance by the United States and the Soviet Union is of crucial importance. And yet this would certainly not be true of just any or every member of international society. All this points to the conclusion that in the making of rules of international law, the weight of States certainly is not equal. Unanimity is not required. What is needed is that the preponderant weight of States should be behind a given norm before it can be pronounced a rule of general international law. How the weight of different States is to be calculated varies with the subject matter and probably from case to case, if it can be calculated with precision at all; but the important point if we are to understand the process of international law-making is openly to recognize that this difference does exist and may legitimately be taken into account instead of treating it as heretical or taboo, because it seemingly flies in the face of the principle of sovereign equality. IV

Conditions Governing International Rule-Making

In both air law and space law, a good number of treaties have been concluded establishing rules binding on the contracting parties, some of which, as we have seen, have developed into rules of general international law. An examination of history of these treaties provides interesting insight into the conditions governing the development of these rules, especially treaty rules, on a multilateral basis. In sum, three factors emerge as of prime importance, namely: (i) there must be a felt need for the new rules; (ii) there has to be a propitious political climate; (iii) following especially what we have been saying just now, there has to be due representation of the interests involved. A Perceived Need First, a felt need. A telling example is the conclusion of the 1967 Space Treaty. The Soviet Union proposed in 1962 that there should be a treaty on space law.57 The United States at first agreed only to have a General Assembly resolution. This resulted eventually in General Assembly resolution 1962 (XVIII) of 1963 setting out legal principles governing the activities of States in the exploration and use of outer space. The same resolution requested COPUOS to give consideration to ‘incorporating in international agreement form, in the future as appropriate’, those legal principles. Negotiations towards a treaty went on 57

Mr Khrushchev’s letter of 20 Mar. 1962 to President Kennedy; see n. 47 above.

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desultorily for several years. As late as October 1965, the United States was still against a general treaty on space.58 Yet less than a year later, in September 1966, the United States considered that the need for such a treaty was ‘all the more urgent because of man’s recent strides towards landing on the moon’.59 The most notable ‘stride’ early in 1966 was the first ever ‘soft’ landing on the moon achieved on 3 February by the Soviet Union with its automatic station Luna IX. Success came after three failures in 1965. The Soviet Union scored another first on 31 March, with the launching of Luna X, which became the moon’s first artificial satellite. The United States followed on 2 June 1966 with Surveyor I, which transmitted back to earth over 10,000 photographs of the surface of the moon, and Lunar Orbiter I launched on 10 August The Soviet Union launched Luna XI, another lunar satellite, on 24 August The various lunar satellites were designed specifically to select suitable landing sites on the moon. Meanwhile, on 16 March, the United States also achieved a first when astronauts Neil Armstrong and David Scott successfully ‘docked’ their Gemini VIII spacecraft with an Agena target vehicle. The Gemini Project was directly connected with manned flight into space. Rendezvous techniques, docking, and activities outside the space vehicle were further tested with the successful launching of Gemini IX on 3 June, Gemini X on 18 July, and Gemini XI on 12 September. By then it was clear that no further technological barrier stood between man and the moon, and it was anyone’s guess whether it was the Soviet Union or the United States that would be the first to send a man to the moon. In the circumstances, it became vitally important for the two space powers to reach an agreement on the legal principles involved in advance of man’s landing on the moon.60 President Johnson announced on 7 May 1966 that the United States would seek a treaty through the United Nations to prevent any nation from claiming sovereignty over the moon or any other celestial bodies and that the exploration thereof would be for peaceful purposes only. This announcement was transmitted to the United Nations on 9 May.61 Consultation with the Soviet Union began on 11 May, and on 30 May the Soviet Union requested that the matter be included in the agenda of the forthcoming session of the General Assembly. The preliminary negotiations took place in COPUOS, but the controversial issues were dealt with by direct negotiations between the 58 UN Doc. A/AC.105/PV.37–42 (5.10. 65), p. 32. 59 UN Doc. A/PV/1412(Prov.) (22.9.66), p. 41. 60 Cf. USA, UN Doc. A/AC.105/PV.37–42 (5.10.65), p. 32; A/AC.105/C.2/SR.72 (12.9.66), p. 3; A/AC.105/PV.44 (19.9.66), p. 20; A/PV. 1412 (Prov.) (22.9.66), p. 41. 61 UN Doc. A/6327.

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two space powers, agreement between whom was announced on 8 December 1966. A 43-power draft resolution ‘commending’ the treaty to States was submitted to the First Committee on 15 December, and it reached the General Assembly on 19 December. The General Assembly adopted it on the same date. The Treaty entered into force less than a year after on 10 October 1967.62 Where there’s a will, there’s a way. That very year saw agreement reached on what became known as the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. That was also the year in which the first casualties in space exploration occurred. On 27 January, three United States astronauts died when fire broke out on board Apollo I before take-off. On 24 April, Colonel V. Kamorov of the Soviet Union perished in Soyuz I on landing. They were powerful reminders that accidents could occur. The result was that the Astronauts Agreement was reached in record time.63 Other examples of States acting quickly in response to perceived needs are the 1970 Hague Convention on aircraft hijacking, officially known as the Convention for the Suppression of Unlawful Seizure of Aircraft,64 and the 1971 Montreal Convention on sabotage of aircraft, officially known as the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.65 The former was in response to the rising tide of aircraft hijacking, the number of which rose from six in 1967, to 58 in 1968, and 82 in 1969. The latter was designed to combat the increasing wave of aerial sabotage, including, in 1970, the blowing up of a Swissair aircraft in mid-air, shortly after take-off from Zurich.66 However, such needs must also be perceived by the dominant section. Thus notwithstanding the fact that non-space powers had clamoured almost from the start for a treaty to determine liability for damage caused by objects launched into space and to establish the procedure for recovery, that the United States was in favour of such a treaty from the beginning, and the general Assembly urged COPUOS practically every year to intensify its efforts to reach an agreement and vainly set deadlines time and again, the Soviet Union, which maintained that such a treaty was superfluous, was never in a hurry to come to an agreement In the end, it took COPUOS nine years from 1962 to 1971 to

62 63 64 65 66

See loc. cit. in n. 51 above [Ch. 9 above]. [Editors’ note: not included in this Anthology]. See further B. Cheng, ‘The 1968 Astronauts Agreement’, 23 ybwa (1969), p. 185 [Ch. 10 above]. See n. 24 above. See n. 25 above. See B. Cheng, ‘Hijacking and Sabotage’, 25 New Society (1973), p. 270.

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produce what later became the 1972 Convention on International Liability for Damage Caused by Space Objects.67 A further illustration of this point is the question of delimiting the frontier between national airspace and outer space, between the zone where States exercise complete and exclusive territorial sovereignty and the zone where the exercise of such sovereignty by States is proscribed. From every point of view, an early settlement of this question in order to avoid future conflicts would seem called for. Yet, no doubt for the purpose of keeping all its options open, the United States is opposed even to discussing this problem, let alone resolving it, maintaining that there is no present need to do so.68 B Propitious Climate The second condition for successful international rule-making, even in a technical field, is that there must be a propitious political climate. This has been seen time and again in the field of air and space law, in both a negative and a positive manner. Thus one of the first major proposals regarding the future development of space law came from President Eisenhower in his address to the United Nations General Assembly on 22 September 1960,69 but coming in the wake of the U-2 (1 May 1960) and RB-47 (1 July 1960) incidents70 and the collapse of the Paris Summit meeting, it could be taken up only after the change in Administration in the United States. It was this change in Administration in the United States and a change in the political climate which allowed agreement to be reached between the Soviet Union and the United States, thus enabling General Assembly Resolution 1721 (XVI) to be adopted on 20 December 1961, setting out, in the words of Mr Khrushchev in his message of 20 March 1962 to President Kennedy, ‘the initial principles of space legislation’.71 The next major step was of course the adoption by the General Assembly on 13 December 1963 of resolution 1962 (XVIII) containing the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of

67 68

69 70 71

See loc. cit in n. 6 above [Ch. 11 above]. [Editors’ note: not included in this Anthology]. See B. Cheng, The Legal Régime of Airspace and Outer Space: The Boundary Problem— Functionalism versus Spatialism: The Major Premises’, 5 aasl (1980), p. 323 [Ch. 14 above]; and ‘The Legal Status of Outer Space and Relevant Issues: Delimitation of Outer Space and Definition of Peaceful Uses’, 11 jsl (1983), p. 89. See B. Cheng, The United Nations and Outer Space’, 14 clp (1961), p. 247, at p. 277 [Ch. 6 above, s. vi: Demilitarization and Disarmament, in fine]. See ibid., at pp. 262–72 [Ch. 6 above, s. v: Reconnaissance and Surveillance]. [Editors’ note: not included in this Anthology]. See n. 47 above. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Outer Space,72 but this was possible only because agreement had, earlier on in that year, been reached on the Moscow partial Test Ban Treaty (5 August 1963). The 1967 Space Treaty and the 1968 Astronauts Agreement were treaties, at the time of their conclusion, urgently wanted by both space powers.73 But in the case of the 1972 Convention on Liability for Damage Caused by Space Objects, discussions on which had been bogged down for years, and agreement on which was finally reached only in 1971, it was openly acknowledged by both the United States and the Soviet Union that this had been made possible by the favourable political condition that had recently emerged, particularly regarding co-operation in space matters between the two space powers. More specifically, as the United States delegate pointed out, on ‘January 21, 1971, following intensive discussions, a delegation of the United States National Aeronautics and Space Administration and a Soviet delegation had initialled a document providing inter alia, for the development of compatible space rendezvous and docking techniques, the exchange of lunar soil samples, …’74 Similarly, the efforts to draw up the Moon Treaty which languished in COPUOS for some seven years, suddenly blossomed and fructified all within the span of fifteen days.75 Perhaps it was no coincidence that agreement was reached precisely fifteen days after the signature of the second Strategic Arms Limitation Treaty (SALT-II) between the Soviet Union and the United States (18 June 1979).76 In general, therefore, a propitious climate is required in addition to all the other factors. C Due Representation of the Dominant Section Finally, in the light of what we have said regarding the rôle of the dominant section of international society in the making of legal rules in the international legal order, it will hardly be surprising to find that, in order to achieve results, there must be due representation of the dominant section in the process of elaborating such rules. This is amply demonstrated by the successful exercise of quasi-legislative powers by the Council of the International Civil Aviation Organization (icao). The Council is an elective organ of 33 in an or72 73 74

See text after n. 47 above. See s. iv.A above: Perceived Need. See Cheng, loc. cit. in n. 6 above, at pp. 91–3 [Ch. 11 above, s. iii.F.5: The Political Factor]. For text of USA-USSR Agreement on Co-operation in Exploration and Use of Outer Space, 21 Jan. 1971, see 10 ilm (1971), p. 617. 75 See Cheng, loc. cit. in n. 7 above, at pp. 216–8 [Ch. 12 above, s. ii.E: The Mystery and Miracle of Birth]. 76 18 ilm (1979), p. 1112.

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ganization with a membership of nearly 160. On the Council, two-thirds of the members represent States of chief importance in international civil aviation or making the largest contribution in providing facilities for international air navigation.77 The Council formulates by a majority vote rules, regulations and procedures for international aviation principally in the form of Annexes to the Chicago Convention, which are revised from time to time as need arises, and of which there are now eighteen. Member States are under a duty to notify the Council of any differences between their own practice and the international standards set out in these Annexes. In this way, international civil aviation benefits from a unified body of rules and regulations, which are often observed even by non-members.78 The success of the icao from this point of view, it is submitted, springs no doubt largely from the fact that the dominant section in international civil aviation is allowed to play the leading rôle in the discharge of the Organization’s quasi-legislative function. The need for due representation is probably more dramatically illustrated by the history of COPUOS which has done much in the development of space law. COPUOS started life as the Ad Hoc Committee on the Peaceful Uses of Outer Space, an eighteen-member committee established by the General Assembly on 13 December 1958. The Soviet Union had originally proposed to the United States that space matters should be discussed directly between them Alternatively, if the subject was to be studied by the United Nations, it put forward the troika principle that there should be a committee of eleven consisting of four Western powers, four Soviet-bloc countries and three ‘neutrals’, thus, in the proportion of 4:4:3. However, bearing in mind that the United States had then an easy majority in the United Nations and that admission to the United Nations was then strictly controlled, of which the two International Court of Justice Advisory Opinions on admission to the United Nations79 were merely the symptoms, it was perhaps to be expected that, in the eighteen-member Ad Hoc Committee that was actually established, the proportion of Westernbloc nations, Soviet-bloc nations, and neutrals was 13:4:2. Mr Cabot Lodge, the United States delegate to the United Nations, during the discussions leading to the formation of the Ad Hoc Committee, in resisting the Soviet move, said: 77 78 79

See Cheng, loc. cit. in n. 33 above, pp. 45 ff. See further ibid., pp. 63 ff.; also T.B. Buergenthal, Law-Making in icao (1969); C.S. Rhyne, A.R. Mutuc, and R.J.H. Sands, Law-Making Activities of icao (1976). ICJ: Admission of a State to the United Nations (1948) Adv. Op., ICJ Rep. 1947–8, p. 57; Competence of Assembly Regarding Admission to the United Nations (1950) Adv. Op., ICJ Rep. 1950, p. 4.

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There are no ‘two sides’ to outer space. There are not—and never have been—‘two sides’ in the United Nations… We do not … accept the idea of ‘two sides’—and, frankly, we don’t understand it.80 The perhaps not very surprising result was that the three Soviet-bloc members boycotted the Ad Hoc Committee. Nor did the two neutral members attend its meetings. Needless to say, the Ad Hoc Committee achieved nothing. The following year, 1959, the General Assembly established COPUOS with an enlarged membership of 24, divided in the proportion this time of 12:7:5. It may be of interest in passing to observe that shortly before the meeting of the General Assembly in 1959, the Conference of Foreign Ministers recommended the formation of a ten-nation Committee on Disarmament to replace the previously five-power sub-committee. Whereas the latter was composed of the Soviet Union in the midst of four Western powers Canada, France, the United Kingdom, and the United States (i.e., 4:1), the ten-nation Disarmament Committee of five NATO powers and five Warsaw-Pact powers (i.e., 5:5). Space had definitely introduced a new dimension to the world’s balance of power. The Soviet Union remained dissatisfied with the composition of the new 12:7:5 COPUOS, and, moreover, wanted the unanimity rule, instead of the usual United Nations majority rule, to be applied in COPUOS, which would of course ensure that every member would in fact have the power of veto. COPUOS transacted no substantive business for nearly two years until a direct agreement between the Soviet Union and the United States led to the unanimous proposal from COPUOS that later became Resolution 1721 (XVI). This resolution inter alia awarded four additional seats on COPUOS to the Soviet bloc, thus enlarging COPUOS membership to 28 in the proportion of 12:11:5.81 No doubt as part of the same package deal between the United States and the Soviet Union, it was announced at the opening session of the now 28-member COPUOS that the Committee and its subcommittees would in future operate by consensus without vote,82 thus in effect conceding the Soviet Union’s second demand for unanimity. It was only then that COPUOS really began to function,83 thus demonstrating that for the purpose of successfully developing new legal rules, there must be due representation of the dominant section in the field in question. As in the case of the United States in the matter of in80 24.11.58, usis (London), Off. Text (25.11.58), p. 2; the account in UN Doc. GA (xiii), A/C.1/SR.994, p. 235, is slightly abridged. 81 See text to n. 47 above. 82 See n. 44 above. 83 On the United Nations and outer space, see further Cheng, loc. cit. in nn. 39 and 69 above [Part ii above].

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ternational carriage by air,84 the test is not one of simple military, political or economic powers, but a functional one in relation to the subject-matter. Due representation can present many facets. COPUOS membership has since been successively increased to 37 in 1973, 47 in 1977, and 53 in 1980. This continuing widening of the membership of COPUOS may or may not have exceeded the optimum. But one thing is certain: to the extent to which the dominant section of international society in this field becomes underrepresented in the decision-making process, the end result may well be counterproductive. In many ways, this is illustrated by General Assembly resolution 37/92 on Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, which was adopted on 10 December 1982.85 In this case, the General Assembly adopted by majority vote the Principles, on which consensus had not been reached within COPUOS. The vote was 107 for and 13 against, with 13 abstentions. The majority consisted essentially of States within the Soviet bloc, and those from the Group of 77. Most of the Western industrialized nations either voted against or abstained. These include the United States, Canada, all the European Communities countries, Japan, and other countries which either already have or are about to have direct broadcasting satellite services.86 General Assembly resolutions in themselves have no legally binding force. They may, depending upon the intention of the States concerned, and the way in the States have expressed their intention, be used differently to evince an opinio juris de lege lata, an opinio juris de lege ferenda, a voluntary code of conduct, a voeu, or mere wishful thinking. Their impact either as a guide to probable behaviour or a source for the future development of the law depends consequently in great measure on both the degree and intensity of the support they receive from the relevant dominant section in the real world outside the United Nations. The usefulness of resolutions which are rammed down the throat of the dominant section of international society by a purely numerical majority in the United Nations, whether from East or West, North or South, is more than dubious.87

84 85 86 87

See paras. 2 ff. of s. ii.A, and paras. 2–3 of s. iii above. UN Doc. A/RES/37/92 (4.2.83); 22 ilm (1983), p. 451. See 22 ilm (1983), p. 451, n. *. In ‘Nature and Sources of International Law’ (loc. cit. in n. 30 above), I mentioned: ‘The present low value of General Assembly resolutions is due probably in no small measure to the fact that, at a rough count, a two-thirds majority for adopting a resolution can be mustered by Member States representing in toto little more than 10 per cent of the world population, 4 per cent of the world’s gross national product, and 3.5 per cent of the United Nations budget contributions’ (p. 227). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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This is perhaps one of the major problems in international rule-making today: the distortion of the real weight of States in the making of such rules by the precept of ‘one State, one vote’ which is based on a misrepresentation of the principle of equality of States,88 or an unwarranted anthropomorphization of the State and the fallacious transposition to it of the principle of ‘one ­person, one vote’, which incidentally, on account of the vastly divergent population sizes of States, is itself a repudiation of the latter principle. It is hoped that this survey of the process in the making of air and space law has shown that successful rule-making in international law depends upon due representation being given to the relevant weight of States in any given subject-matter. Ultimately, it is a political issue, but if the validity of this proposition can be recognized, and recognized as being compatible with the principle of the sovereign equality of States in international law, one would already be half way towards a more rational and realistic approach to international law making in general. V Varia Space does not permit a review of each and every individual contribution of air and space law to the development of international law. In addition to what we have examined, it is hoped that we shall have just enough room simply to mention a few more. In the first place, from a general point of view, attention may be drawn to the sheer volume of rules of international law, including a vast conventional and institutional superstructure, which have developed in both fields. Mention has already been made of the successful system of international uniform law represented by the Warsaw system of rules on international carriage by air,89 and the quasi-legislative rôle of icao in the standardization of rules, regulations, and procedures in international civil aviation.90 From the standpoint of international legal personality, the recognition which has been given to that of international organizations in the various space treaties, despite initial Soviet opposition, has been a notable achievement.91 As regards the domain of international law, space law has added a whole new dimension to the geographical scope of international law by extending it

88 89 90 91

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to the entire universe.92 The 1979 Moon Treaty also has the distinction of being the first multilateral treaty to recognize the concept of the common heritage of mankind, by applying it to the moon and other celestial bodies within the solar system other than the earth.93 In the field of State jurisdiction, both air law and space law have done much to clarify the notion of the different types and the different elements of State jurisdiction.94 The 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft is designed to remove gaps in the exercise of State jurisdiction in respect of aircraft especially when they are flying over areas not subject to the jurisdiction of any State, such as the high seas.95 For its part, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft has created a model for the implementation of the principle aut dedere, aut punire in relation to individuals guilty of offences universally condemned.96 It is a model that has been followed by many other conventions.97 In treaty law, perhaps the most notable innovation is the possibility permitted in a number of space treaties for international organizations to acquire a status very similar to that of being States parties to them—not just being parties, but parties as if they were States. This was first introduced in the 1968 Astronauts Agreement, and represented a major concession on the part of the Soviet Union to the views of those countries which have been described as near-space powers and cooperative space powers, and whose hope of being able to into space lies mainly in doing so through international organizations.98 92 93 94 95 96

97

98

See B. Cheng, The Extraterrestrial Application of International Law’, 18 clp (1965), p. 132 [Ch. 5 above]. [Editors’ note: not included in this Anthology]. See Cheng, loc. cit. in n. 7 above [Ch. 12 above]. [Editors’ note: not included in this Anthology]. See B. Cheng, ‘Crimes On Board Aircraft, 12 clp (1959), p. 177; and loc. cit. in n. 92 above [Ch. 5 above]. See n. 23 above. See n. 24 above; and further B. Cheng, ‘Aviation, Criminal Jurisdiction and Terrorism: The Hague Extradition/Prosecution Formula and Attacks at Airports’, in B. Cheng and E.D. Brown (eds.), Contemporary Problems of International Law: Essays in honour of Georg Schwarzenberger on his eightieth birthday (1988), p. 25. See, e.g., Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, New York, 1973, 13 ilm (1974), p. 41; European Convention on the Suppression of Terrorism, Strasbourg, 1976, 15 ilm (1976), p. 1272; International Convention Against the Taking of Hostages, New York, 1979, 18 ilm (1979), p. 1456. Art 6 (see Cheng, loc. cit. in n. 63 above, at p. 202 [Ch. 10 above, s. vii.A: Definition of Launching Authority]); cf. also Art xiii of the 1967 Space Treaty (see Cheng, loc. cit. in n. 51 above, at pp. 588–98 [Ch. 9 above, s. V.G.: International Organizations]), Art xxii of the 1972 Liability Convention (see Cheng, loc. cit. in n. 6 above, at pp. 103–12 [Ch. 11 above, s. V.A.6: International Organizations]), Art. vii of the 1975 Registration Convention (see Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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In the field of State responsibility, mention should be made of the highly novel principle introduced by Article VI of the 1967 Space Treaty. This provision makes every contracting State directly responsible, as the article says, ‘for national activities in outer space whether such activities are carried on by governmental agencies or by non-governmental entities’.99 Under Article VII of the 1967 Space Treaty and under the 1972 Liability Convention, the contracting States are also made directly and absolutely liable for any damage which may be caused by objects launched into space not only by themselves, on behalf of themselves, or from their own facilities, but also by anyone launching such objects from within their territory.100 In order to ensure the observance of rules of international law, which now increasingly seek to regulate the activities of individuals, there is a great deal of scope for the application of this concept elsewhere. In this connection, there is an interesting and, in some ways, corresponding development in the field of international carriage by air, where the concept of absolute liability is increasingly gaining favour.101 Finally, in the law of international institutions, mention has already been made to the successful rule-making rôle of icao and COPUOS.102 On the judicial level, at a time when invocation of equity for the solution of international differences is in vogue, attention may be drawn to the complaints procedure before the icao Council, provided for by the multilateral International Air Services Transit Agreement (Article II, Section 1) and the International Air Transport Agreement (Article IV, Section 2), both of 1944. In such cases, the icao Council is given an equity jurisdiction, which is backed by sanctions.103 From a somewhat different angle, reference may be made to the highly original International Telecommunications Satellite Organization (intelsat),104

99 100 101 102 103 104

B. Cheng, ‘Outer Space: The International Legal Framework—The International Legal Status of Outer Space, Space Objects and Spacemen’, 10 Thesaurus Acroasium (1981), p. 41, at pp. 100–1 [Ch. 13 above, s. iv.C.3: Institutional Register]), and Art. 16 of the 1979 Moon Treaty (see Cheng, loc. cit. in n. 7 above, at p. 219 [Ch. 12 above, s. iii.B: Personal Scope]). [Editors’ note: not included in this Anthology]. See Cheng, loc. cit. in n. 51 above, at pp. 582–8 [Ch. 9 above, s. V.F: International Responsibility]. [Editors’ note: not included in this Anthology]. See ibid., and Cheng, loc. cit. in n. 6 above, at pp. 102–3 [Ch. 11 above, s. V.A.5: The Party Liable]. [Editors’ note: not included in this Anthology]. See nn. 13, 14, and 15 above; B. Cheng, ‘A Reply to Charges of Having Inter Alia Misused the Term Absolute Liability’ 6 aasl (1981), p. 3. See s. iv.C above, para. 1; n. 51 above, and text following it See also Ch. 8 above: The UN and the Development of International Space Law. See Cheng, op. cit in n. 33 above, at p. 455; and ‘Dispute Settlement in Bilateral Air Transport Agreements’, in K.-H. Böckstiegel (ed.), Dispute Settlement of Space Law Disputes (1970), p. 97, at pp. 110–11. See B. Cheng, ‘Communications Satellites’, 24 clp (1971),m p. 211 [Ch. 21 above]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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and the International Maritime Satellite Organization (inmarsat),105 which have created international organizations that successfully engage in commercial and public services of a highly technical nature. They may well serve as models for other international enterprises. VI

Closing Remarks

Within the course of a century, air law and space law have pushed the geographical boundaries of international law first from the surface of the earth to the skies, and then from the skies to the whole of the universe. They have quickly built upon the infrastructure of the general law, which automatically extends to these new frontiers, impressive superstructures of new rules, regulations, procedures and international organizations. They have done so largely because they had to break entirely new grounds, and, perhaps more than any other branch of international law, they have constantly to meet new challenges in the form of either advances in science and technology or ever changing social and economic needs. In our survey of their contribution to the development of international law as a whole, we have perforce, because of the sheer size of the subject, been able to do so, in part, no more than to list some areas of significance. It is to be hoped, however, that enough has been said to give at least some indication of the substantial contribution which these two new subjects have been able to bring, by their many innovations and by the new insight which they provide, to practically every sphere of the international legal system. It is particularly to be hoped that even the brief exploration of the formative process in these two branches of the law such as that which has just been made is able to show that its further study can greatly help us in achieving a better understanding of the roots and workings of international law as a whole, which may in turn enable us to bring about a more realistic and effective international legal order.

105 See N. Jasentuliyana, ‘inmarsat’, in Jasentuliyana and Lee (eds.), op. cit. in n. 6 above, p. 439.

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Chapter 50

Ralph Wilde, International Territorial Administration, 2008 Comment by Paata Simsive, Intern, BIICL Ralph Wilde’s ‘Analysing International Τerritorial Administration’ is arguably the most thought-provoking and erudite chapter in his book on the concept of trusteeship over people in international law and public policy. In the book, Wilde’s understanding of International Territorial Administration (ITA) – the administration of territory by international organisations, such as the arrangements in East Timor and Kosovo that commenced at the turn of the twentyfirst century – transcends a purely technocratic approach to the subject. It does so by establishing ITA as a “policy institution” in international law and public policy. According to Wilde, “institution” in this context is defined as a distinctive practice regularly used and established over a long period of time. A  “policy institution” is defined as an established practice of this kind that manifests certain elements of commonality as a matter of purpose or policy objectives, from State-building to dispute settlement. After establishing ITA in this fashion, Wilde compares it to analogous activities by States – colonialism, administration under the Mandate and Trusteeship Systems, and occupation – arguing that these disparate activities manifest certain important commonalities and can therefore be usefully considered a broad “family” of policy institutions: “Foreign territorial administration.” Because of this, ITA can be regarded as a manifestation of neo-colonialism. Wilde suggests that, whereas international organisations, notably the United Nations, constituted mechanisms through which the decolonisation process was engineered, at the same time the colonial paradigm may survive in a form where the same actors take on the role previously performed in the colonialera by “metropolitan” States, administering territories and their populations.a

a R Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford University Press 2008) 433, at 438. [Page 1339 in this Anthology].

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_051

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This link between ITA and colonialism underpins two fundamental legitimacy questions regarding this policy institution. In the first place, are the policies associated with it, for example promoting certain standards of domestic governance, of universal purchase? In the second place, more fundamentally, how does it resist the fundamental critique raised by the post-Second World War self-determination entitlement which delegitimised colonialism: that exercising foreign control over people is inherently unjust?b The Chapter summarises these findings, exploring a universe of ideas not only to explain or challenge the legitimacy of the current system of ITA but also to reveal the existence of international norms and institutions that hitherto had not been conceptualised. Wilde presents a novel and commanding synopsis of the theoretical tenets that serve to question the current position of trusteeship over people in international law and public policy, including ITA. To paraphrase Wilde’s own words,c this work counters the ahistorical and technocratic presentations of the past ITA projects and enables a greater appreciation of the potential and normative implications of future ones. b Ibid., 444. [Page 1345 in this Anthology]. c Ibid., 436. [Page 1336 in this Anthology].

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R. Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford University Press 2008). Excerpt: Chapter 9, ‘Analysing International Territorial Administration’, pp. 433–59. Reproduced with the kind permission of Oxford University Press.

Analysing International Territorial Administration Ralph Wilde 1

Introducing a Policy Institution

1.1 International Territorial Administration as an ‘institution’ With the two high-profile UN administration projects beginning in 1999 in East Timor and Kosovo, the idea of handing over the administration of territory to international actors either partially or completely began to be considered in academic and policy circles as a distinctive activity, worthy of consideration in its own right. This idea of international territorial administration (ITA) as distinctive is supportable because international actors do not normally administer territory or, putting the emphasis in reverse, territory and its people are not normally administered directly by international actors. Since it involves a particular activity (‘territorial administration’) performed by a particular actor (an ‘international actor’), and because a direct opposition operates between the spatial identities of international actors and those ‘local’ actors who normally carry out the activity, as suggested in Chapter 1, international territorial administration can be regarded as a distinctive ‘practice’. Moreover, if, as in Chapter 2, one considers the number of times projects involving this type of arrangement have been deployed at periodic intervals since the founding of the League of Nations, it is possible to regard this ‘practice’ as ‘established’, viz., regularly used over a long period of time, and thus conforming to one meaning of the term ‘institution’. Conceptualizing the activity of ITA as an ‘institution’ takes the idea of ITA as a distinctive activity to its logical conclusion, establishing what is implied when commentators present the administration projects as sui generis, in a class apart from, say, other UN peace operations. However, it does not take things very far; specifically, it leaves unresolved the issue of whether the commonality operating across the projects in the activity performed is matched by commonality in the reasons why this activity is being introduced. In consequence, the basis for bundling the projects together is somewhat superficial. As explained in Chapter 1, certain commentators have made some reference to some of the purposes served by some of the projects, but oversimplification is commonplace, for example, when territorial administration by international Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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organizations is presented as essentially a ‘state-building’ enterprise in a ‘postconflict’ context. A brief consideration of some of the other purposes associated with the projects in that chapter revealed the misleading nature of these representations. This book has sought to provide an alternative explanation of the purposes associated with the ITA projects based on a sustained evaluation of the projects’ history. The point of the enterprise was not merely to narrate the history of international territorial administration projects; it was also to analyse the institution of international territorial administration—the projects in a collective sense—as a matter of policy and consider whether it can be regarded as a ‘policy institution’, viz. an established practice that operates in a common way on a purposive level. In other words, the objective was to see whether projects can be understood collectively in terms of the uses to which they have been and are being put. This would then enable a sustained consideration of the extent to which the projects compare with state-conducted activities such as colonial trusteeship, and, in turn, a re-evaluation of the history of ‘international trusteeship’, its progressive internationalization, and how it is legitimated in the ‘post-colonial’ era. This final chapter reviews what has been established in the foregoing analysis, and then considers how ITA might be appraised in the light of what has been said about it so far. 1.2 International Territorial Administration as a ‘policy institution’ 1.2.1 International Territorial Sovereignty? The enquiry into the policy role of ITA began in Chapter 3 with a consideration of Méir Ydit’s thesis that sought to establish purposive commonality across some of the earlier, mostly League-era ITA projects (and other stateconducted projects during the same period), not in terms of the conduct of administration but, rather, in the vesting of sovereignty (as ownership) in the administering actors involved. The question of whether this concept—termed ‘international territorial sovereignty’—might assist in explaining the purposes associated with some or all of the ITA projects led to a detailed consideration in Chapters 4 and 5 of the legal status of most of the territories in which the projects have taken place. As a result of this analysis, it was suggested that Ydit’s explanation was based on a false premise; in practice, international organizations have never enjoyed title over the territories they have administered. It was necessary, therefore, to consider alternative explanations for the projects that do not necessarily entail ‘international territorial sovereignty’. However, the quest to establish the legal status of the territories subject to international administration was

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not in vain; appreciating this status, alongside a range of other considerations, would be necessary for an understanding of the purposes associated with the projects. 1.2.2 Purposive Analysis and the Policy Institution Broad-ranging purposive analysis was conducted in Chapter 6. Having moved beyond Ydit’s approach to international territorial administration as a mere corollary to international territorial sovereignty, the focus returned to where it had started off, on ITA itself. The history of each of the administration projects set out in the earlier chapters was drawn upon to identify the purposes with which the projects were associated. Although it was not possible to explain all the projects in terms of a single purpose (e.g., reconstruction after conflict), the case was made for situating the projects within a single, albeit variated, purposive framework. It was argued that each project can be understood as a response to one or both of two perceived ‘problems’ invoked in relation to the conduct of territorial administration by local actors. In the first place, the identity of those local actors is deemed problematic in terms of the relationship between it and a claim to the territory concerned: what was termed a ‘sovereignty problem’. In the second place, the nature of administration performed by those actors is deemed to be problematic: what was termed a ‘governance problem’. It was suggested that all the administration projects can be explained on a purposive level in terms of a response to one or both of the two perceived ‘problems’ identified. Since not all projects cater to both, as far as focusing on the two problems is concerned, a single explanation for all the projects is not provided. However, a common feature is evident in the manner in which the institution responds to the problems, since this response is essentially the same in relation to both. As already mentioned, the distinctive nature of the activity of ITA is rooted in the spatial identity of the administering actor: as ‘international’, it is opposed to the ‘local’ identity of the actors who usually perform the role of territorial administration. When the purposes associated with ITA are considered, it becomes evident that this spatial opposition is also central to the way the institution is understood to perform its policy role. As far as a perceived ‘sovereignty problem’ is concerned, the ‘international’ identity of the administering actor lies at the heart of the use of ITA; by virtue of this identity, the actor is considered ‘neutral’ as concerns the interests of the actors in relation to whom the sovereignty problem is considered to subsist (for example when rival states claim title to the territory placed under international administration). In consequence, ITA is understood to act as the temporary or permanent solution to the problem.

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As far as a perceived ‘governance problem’ is concerned, the ‘international’ identity of the administering actor is relevant in a more limited sense. Here, the spatial opposition is not between ‘international’ and ‘national’ in general, but between ‘international’ and the particular local actors who are being displaced in the activity of governance. It reflects the fact that ITA is being used because it is administration by someone ‘other’ than the local actors who are deemed incapable and/or unwilling to perform governance either at all, or in a particular manner. Here, ‘international’ denotes expertise and conformity to the policy objectives that are deemed worthy of implementation in the territory concerned (e.g., free and fair elections). So, the distinctive nature of the activity, which formed the basis for establishing international territorial administration as an ‘institution’ in Chapter 1, is also central to understanding ITA’s policy role. Because of this connection between the institution and all the purposes with which it is associated, the institution can be understood to be a ‘policy institution’, meaning an established practice that manifests certain elements of commonality as a matter of purpose or policy. By situating current and recent ITA projects in their proper historical context and establishing the broad range of policies with which they have been associated, the book reveals the existence of a policy institution that has hitherto not been conceptualized. In doing so, it counters the ahistorical and technocratic presentations of the recent administration projects and enables a greater appreciation of the potential and normative implications of these and future projects. 1.3 Hidden Projects and the Proper Framework for Analysis In exploring the possibility of a policy institution based on the administration of territory by international actors, this book uncovered a number of projects, notably the EU Administration of Mostar, the UN administration of Eastern Slavonia, the role of ohr in Bosnia and Herzegovina, and the role of UNHCR in administering ‘refugee’ camps, which were largely invisible within general commentaries on international organizations and even, in some cases, in the studies that have been made of the recent administration projects.1 If the impetus for such studies comes from the distinctiveness of the activity conducted, there would seem to be no grounds for focusing exclusively on 1 To give an example: in one 2001 survey of the UN-conducted administration projects, mention of the two-year Eastern Slavonia project is absent; see MJ Matheson, ‘United Nations Governance of Post-Conflict Societies’, 95 (2001) AJIL 76, reprinted as ‘United Nations Governance of Post-Conflict Societies: East Timor and Kosovo’, in MC Bassiouni (ed.), Post-Conflict Justice (Transnational Publishers, 2002), 523.

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particular international organizations or situations of plenary administration. Given this, how might the adoption by some of a partial focus be explained? It was suggested above that the distinctiveness of the activity conducted is a somewhat elemental basis for analysing ITA projects collectively. In every other respect, there is no commonality; thus bundling the projects together might seem somewhat arbitrary. Perhaps because of this, a focus on the United Nations and/or situations of plenary administration was adopted, to achieve a more meaningful commonality across the projects under evaluation by reducing the differences between them. Yet such an approach, however more focused, is still operating at the superficial level of the nature of the activity performed and the identity of the actors performing it. When one turns to the relatively complex matter of the purposes associated with the projects, and considers this in conjunction with the nature of the activity performed and the identity of the administering actors, there is a relatively sophisticated basis for deciding which projects to include and exclude, provided that purposive simplification has been avoided.2 When a proper purposive approach is taken, it becomes possible to see more clearly where the boundaries of analysis might be set if the objective is to compare like with like. For example, in understanding the commonality between the purposes associated with the use of League administration in Leticia and UN administration in West Irian and Eastern Slavonia—the attempted ‘neutralization’ of a contested territory—it becomes apparent that the exclusion of League-era projects from consideration is unhelpful. In sum, it is suggested that the boundaries might be more usefully set at all administration projects, partial and plenary, involving any international organization, not just the United Nations, and also covering the involvement of international appointees on locally-based bodies such as courts and tribunals. Crossing the Boundaries—Situating the Policy Institution within a Broader Context Even if, as argued, the institution of international territorial administration offers a more helpful framework within which to consider the legal and policy issues raised by the projects when compared to a narrower frame of reference, conceptual links exist between the projects and other activities outside the boundaries of the institution that are illuminating for such legal and policy analysis. Hence, the study in this book did not stop with the establishment of the policy institution in Chapter 6, but went on to consider the links operating between the policy institution and two further classes of policy institution: 1.4

2 See the discussion above, Ch. 1, Section 1.2.2. [Editors’ note: not included in this Anthology].

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first, other policy institutions conducted by international organizations that seek to achieve the same ends but through different means (e.g., international tribunals and the implementation of international law); and, secondly, other policy institutions conducted by individual states that operate in the same manner as ITA (e.g., the Trusteeship system arrangements). Only with an awareness of these links is it possible to appreciate fully the role played by ITA generally and individual ITA projects in particular. More fundamentally, establishing these links enables an understanding of how ITA fits within broader trends in international law and public policy, both generally and in relation to the concept of ‘international trusteeship’ in particular. 1.4.1 Implementing International Law and Policy Understanding how the purposes with which ITA has been associated reflect certain areas of international law and public policy assists in understanding what it is that the administration projects are trying to achieve. Moreover, understanding ITA as one of several international mechanisms that exist to implement international law and policy, and appreciating how the institution compares with these other mechanisms in the way it performs this role, assists in seeking to explain why ITA is used in particular situations, and what consequence this has for the involvement of other mechanisms in relation to the same territory. 1.4.2 Foreign Territorial Administration Appreciating how ITA relates to the colonial paradigm, and considering it as part of a broader family of policy institutions involving ‘foreign territorial administration’ and constituting ‘international trusteeship’ enables one to know where to look, and where not to look, in seeking to draw lessons from the state analogues for current and future administration projects. Looking to instances of foreign territorial administration generally also assists in appreciating the historical origins of the ITA institution, as an internationalized version of policy institutions conducted by individual states. This in turn provides a new narrative strand to the histories of colonialism generally and colonial trusteeship in particular, revealing new linkages between these histories and the history of international organizations and demonstrating what Nathaniel Berman has characterized as the ‘ability of the colonial imagination to reinvent itself under changing conditions’.3 From one perspective, 3 N Berman, ‘In the Wake of Empire’, 14 (1998–99) American University International Law ­Review 1521.

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the United Nations is seen as the international mechanism through which the decolonization process was engineered, via important General Assembly resolutions on self-determination, such as Resolutions 1514 and 1541,4 and the transformation of UN membership with the admission of newly-independent states.5 What can now be appreciated is that in a different arena of UN activity— field operations—in certain respects the colonial paradigm survived in a form where the organization itself took on the role previously performed by the ‘metropolitan’ state. 2

Analysing the Policy Institution

The conceptualization of international territorial administration as a policy institution facilitates analysis of the complex legal and policy issues relating to the administration projects by providing an understanding of the broader historical and political context within which the projects operate. This context becomes apparent when individual projects are considered as particular manifestations of the policy institution, the relationship between the institution and other policy institutions conducted by international organizations is appreciated, and the institution is understood as part of a broader family of policy institutions involving foreign territorial administration. Although such analysis is beyond the scope of this book, it is perhaps in order to consider what the conclusions drawn above suggest about how it might proceed.6

4 GA Res. 1514 (xv), 14 December 1960 and GA Res. 1541 (xv), 15 December 1960. See the commentary above, Ch. 5, Section 5.2, passim. [Editors’ note: not included in this Anthology]. 5 On the UN and decolonization, see, e.g., dA Kay, ‘The United Nations and Decolonization’, in J Barros (ed.), The United Nations: Past, Present and Future (Free Press, 1972), 143, passim; DA Kay, ‘The Politics of Decolonization: The New Nations and the United Nations Political Process’, 21 (1967) International Organizations 786. This topic is covered by much of the general self-determination literature; see List of Sources, Section 5.4. 6 I discuss this topic further in R Wilde, ‘Representing International Territorial Administration: A Critique of Some Approaches’, 15 (2004) ejil 71 and Ch. 11 in H Charlesworth and J-M Coicaud (eds), Fault Lines of International Legitimacy (United Nations University Press, forthcoming); R Wilde, ‘Legitimacy and Accountability of International Administrations: A Commentary on Four Papers’, paper presented at the 2005 esil Research Forum, Graduate Institute of International Studies (hei), Geneva, 26–28 May 2005, obtainable from . For the work of others, see List of Sources, Sections 5.1 and 5.2. [Editors’ note: not included in this Anthology].

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2.1 Legal Issues Although this book was not aimed at resolving all the legal issues raised by international territorial administration, it was necessary to address some of these issues as part of the process of purposive and policy analysis. The legal status of most of the territories in which ITA projects have been implemented was established in Chapters 4 and 5 as part of the enquiry into the possible policy role of ‘international territorial sovereignty’—the vesting of sovereignty as title in the international organizations involved. This analysis demonstrated that title cannot be assumed from the mere enjoyment of territorial control, and that it is necessary to identify the basis on which such control is exercised when seeking to appreciate the juridical effect of such control on the status of the territory affected. As far as the legal authority provided for the administration projects is concerned, in Chapter 8 this was reviewed in relation to unmik and untaet in particular, when the question of whether ‘trusteeship’ presupposes an ‘imposed’ rather than ‘consensual’ arrangement was addressed, and in relation to all of the projects as part of the discussion of the role of legal authority in legitimizing the ‘post-colonial’ administration projects. Now that the contours of the ITA policy institution have been delineated, it is possible to proceed with a thorough analysis of the legal issues raised by it. Being aware of the purposes associated with the projects will assist in explaining the choices that were made in terms of the legal authority provided. For example, the authorization of untea in a treaty between the Netherlands and Indonesia7 is explained when the objective of that project—providing a buffer between territorial control by the two states as a means of resolving a dispute between them—is appreciated. Understanding the policy background will also assist in assessing whether the authority provided is lawful as a matter of general international law and, when this authority comes from the United Nations, the law of that organization. Equally, it is crucial for understanding whether the exercise of territorial administration is lawful according to the law of international organizations. In either case, considering the nature of the activity being authorized or conducted is only part of the picture: it is also necessary to know the purposes ­associated with this activity. So one would identify these purposes ­(Chapter 6), consider how they can be understood in terms of the implementation of international legal obligations on the part of the host territorial unit and the international organization involved (Chapter 7), and then analyse the compatibility of this 7 Agreement between Indonesia and the Netherlands Concerning West New Guinea (West Irian), 15 August 1962, 437 unts 273.

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arrangement with the role of the United Nations (in terms of providing legal authority where relevant), and the role of international organizations generally, including the UN where relevant (in terms of carrying out the mandate).8 An appreciation of the purposes associated with the projects also assists in addressing the question of the appropriate standards governing the conduct of the projects.9 For example, in seeking to determine the suitability of occupation law, it is possible to enter the debate discussed in Chapter 8, about whether this law is problematic in the context of ‘transformatory’ situations, with a greater appreciation of the implications for the nature of the enterprise engaged in during the ITA missions.10 A regulatory regime concerned with maintaining the status quo would seem to fit with those ITA projects concerned exclusively with a ‘sovereignty problem’—i.e., the reason for the mission is the identity of the administering actor—whereas such a regime would be at odds with some of the more ambitious ITA projects concerned with ‘governance problems’. Bundling all the projects together under an essentialized and simplified category concerning legal and political transformation misses this distinction.11 8 9

10 11

For commentary on the competence of the UN to authorize territorial administration, see List of Sources, Section 5.2.6. [Editors’ note: not included in this Anthology]. For commentary touching on issues of applicable law, see List of Sources, Section 5.2.7. [Editors’ note: not included in this Anthology]. Further source material relevant to this enquiry in particular contexts is contained above, Ch. 1, n. 64. On Kosovo in particular, see also Ombudsperson Institution in Kosovo, ‘Special report no. 1 on the compatibility with recognized international standards of unmik Regulation No. 2000/47 on the Status, Privileges and Immunities of kfor and unmik and Their Personnel in Kosovo (18 August 2000) and on the implementation of the above regulation’, 26 April 2001, available at , para. 23; European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms (Opinion No. 280/2004, Strasbourg, 11 October 2004), available at . On this debate, see above, Ch. 8, n. 129 and accompanying text et seq. [Editors’ note: not included in this Anthology]. On the applicability of the laws of war to peace operations generally, see above, Ch. 8, n. 260. [Editors’ note: not included in this Anthology]. On the fit between occupation law and the ITA projects, Eyal Benvenisti states that untaet and unmik are ‘trusteeship of the kind the law of occupation is designed to address’; E Benvenisti, The International Law of Occupation (paperback edn, Princeton University Press, 2004), xvi. See also the discussion in A Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’, 100 (2006) AJIL 580. Others are more sceptical; Simon Chesterman states that ‘[a]s the purpose of transitional administration is precisely to change the laws and institutions, further legal authority is therefore required’; S Chesterman, You, The People: The United Nations, Transitional Administrations, and State-Building (OUP, 2004), 7. The principles of occupation law are ‘at odds’ with those ITA projects ‘… where the entire

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2.2 Legitimacy Situating international territorial administration within a broader ‘family’ category of ‘foreign territorial administration’ is helpful not only in terms of establishing its analogous relationship to other, relatively familiar, international policy institutions; it is also crucial in appraising questions of legitimacy. Identifying the close resemblance between ITA and the other state-conducted policy institutions in the family, and considering the fact that these other institutions were ostensibly repudiated in the decolonization era, calls the legitimacy of ITA into question. What was it about ITA that enabled it to avoid the ‘colonial’ label in the second half of the 20th century? In seeking to answer this question in Chapter 8, it was illustrated that the two ‘international’ elements of ITA—the identity of the administering actors discussed in Chapter 1, on the one hand, and the use of international territorial administration to implement international law and policy discussed in Chapter 7, on the other—are vital. As explained in Chapter 8, these two elements, together with the legal authority often provided for the projects by the UN Security Council, form a triptych of ‘international’ mirror opposites to the three ‘statist’ aspects of the colonial paradigm—individual states pursuing individual policy objectives in arrangements ‘imposed’ in an unjustified manner by them on the territories concerned—that are key as far as the delegitimized nature of that paradigm is concerned. So, the identity of the administering actors is not only important in terms of the purposes associated with the projects, and thereby integral to an understanding of ITA as a policy institution; it is also important when the analysis purpose of temporary occupation was to change the political structures in the occupied territory’; ibid., 145. Discussing this issue, Steven Ratner states that ‘for international organization missions, the status quo is an obstacle to be overcome, not a situation to maintain’; SR Ratner, ‘Foreign Occupation and International Territorial Administration: The Challenges of Convergence’, 16 (2005) ejil 695, 700. As part of his more general thesis about the problems of applying occupation law to transformational interventions, David Scheffer considers peacekeeping in particular, and argues that in this context the full operation of occupation law may be ‘inappropriate and even undesirable in many situations’; D Scheffer, ‘Beyond Occupation Law’, 97 (2003) AJIL 842, 848. Scheffer’s argument covers not only the question of occupation law prohibiting certain aspects of transformatory projects, but also, more broadly, whether by itself occupation law is sufficient as a general regime of regulation, given the wide-ranging activities engaged in during such occupations. He argues that ‘… the dominant premise of occupation law has been that regulation is required for the military occupation of foreign territory, but not necessarily for its transformation’ ibid., 848, footnote omitted. For Scheffer, a wider normative regime is necessary, taking in ‘principles of modern international law pertaining, for example, to human rights, self-determination, the environment, and economic development…’; ibid., 843.

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shifts to a consideration of the legitimacy of this policy institution. Equally, exploring how the purposes associated with ITA relate to areas of international law and policy not only provides a greater appreciation of the policy role of ITA; it also helps to explain how this policy role is appraised normatively. In other words, it tells us not only what ITA seeks to achieve, but also why ITA is considered legitimate in performing such a function. Considering the genesis of international territorial administration as an internationalized version of a state-conducted paradigm, the institution is part of the broader move towards international law and institutions that took place in the 20th century, particularly in its second half.12 Traditional conceptions of international organizations and international law saw things in terms of an institutional and normative framework to constrain and regulate the relations between states.13 Now, of course, the subject-matter of international law and the activities of international organizations also concern what happens within states, notably in relation to human rights. The history of ITA underscores a key institutional counterpart to such developments; this particular move is inward-facing, towards the direct governance of particular territories. In performing the role of administering district territories, and being considered legitimate in doing so, international organizations have displaced states. The cpa in Iraq is regarded as aberrant, ‘colonial’; unmik in Kosovo is regarded as part of a species of legitimate international peace operations, and ‘humanitarian’. Explaining how international territorial administration has been, and is, normatively distinguished from colonialism within international public policy, as was done in Chapter 8, is not, of course, the same as holding that such a normative distinction has merit. Rather, it provides the starting point for a critical evaluation of the legitimacy of the policy institution, by mapping out some of the sites in which the current structures of its legitimation are located: the nature of international organizations, the substantive content of international law and public policy, and the authority of the UN Security Council to impose binding obligations on states in certain areas. As scholars within the tradition of ‘ideology critique’ applying the methodology of ‘immanent critique’ assert, taking the conventional structure of legitimation seriously—even if it is pleaded in bad faith—provides a powerful tool for critique.14 The point is not to validate the rhetorical structure, but to e­ xplore 12 13 14

For a critical treatment of this, see, e.g., D Kennedy, ‘The Move to Institutions’, 8 (1986–87) Cardozo Law Review 841. On international organizations, see the sources listed above, Ch. 1, n. 86. [Editors’ note: not included in this Anthology]. On ideology critique generally, see, e.g., JB Thompson, Ideology and Modern Culture: Critical Social Theory in the Era of Mass Communication (Stanford University Press, 1990);

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its logical conclusions, potentially revealing limitations and internal contradictions. The analysis carried out in this book is intended to lay the groundwork for such ‘immanent critique’, by identifying the contours of the policy institution that is to be appraised. For example, to say that part of the reason for the UN administration in East Timor was to engage in ‘state-building’ is not to say that this project was, ipso facto, legitimate; rather, it enables legitimacy to be appraised by establishing how the project was understood by those carrying it out. Unlike in other areas of international policy, it was necessary to reveal the very existence of this policy institution before critical evaluation could begin.15 Although a comprehensive critical evaluation is beyond the scope of this book, how might it proceed?16 In Chapter 8, ITA was established as part of a broader family of institutions involving foreign territorial administration; in particular, connections with colonial trusteeship were explored. In the light of this analysis, one way of appraising the legitimacy of ITA is to compare its operation with colonialism, and to seek to learn lessons for its operation from the practice of colonial trusteeship.17 More importantly, however, the ­connection

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T Eagleton, Ideology: An Introduction (Verso, 1991); S Žižek (ed.), Mapping Ideology (Verso, 1994). For the application of ‘immanent critique’ to international legal texts, see S Marks, The Riddle of All Constitutions: International Law, Democracy and the Critique of ­Ideology (OUP, 2000); S Marks, ‘Big Brother is Bleeping Us—With the Message that Ideology Doesn’t Matter’, 12 (2001) ejil 109. For example, in considering democratic ideas in international law, Susan Marks was able to begin at the stage of critique, since an established body of work on this topic was already in existence. See Marks, The Riddle of All Constitutions (above n. 14). For discussions of various legitimacy issues by academic commentators, see, e.g., the works in List of Sources, Section 5.2.4 (on questions of legitimacy other than gender) and Section 5.2.5 (on gender issues). [Editors’ note: not included in this Anthology]. Jarat Chopra states that: [h]owever unpalatable the experience of colonial administration, its origins and motivations including the experience of the mandates and trusteeships, it nevertheless developed many mechanisms for administering large populations and geographic areas. If truly international administration is to be effective, UN planners may have to revisit the lessons of this experience. J Chopra, ‘UN Civil Governance-in-Trust’, in TG Weiss (ed.) The United Nations and Civil Wars (Lynne Rienner, 1995), 70, at 74. When setting out the contours of the ‘responsibility to rebuild’ that forms part of its ‘responsibility to protect,’ the International Commission on Intervention and State Sovereignty implicitly references the utility of drawing lessons from colonial practice when it discusses the provisions in the UN Charter concerning Trust Territories: [u]seful guidelines for the behaviour of intervening authorities during a military intervention in failed states, and in the follow-up period, might be found in a constructive adaptation of Chapter xii of the UN Charter. This would enable reconstruction and rehabilitation to take place in an orderly way across the full spectrum, with the support and assistance of the international community. The most relevant provision in this regard is Article 76 which notes that the aim of the system is to promote the political, economic, Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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with colonialism underscores the need to question the legitimacy of the idea of ITA itself. Earlier, some of the ‘legal issues’ raised by ITA were reviewed, such as the questions of legal authority and applicable law. These topics tend to be the exclusive focus of analysis by international lawyers. But the articulation of self-determination that formed the basis for decolonization, denoting freedom from external control, is also an area of law. If ITA breaches this either generally or in certain instances, then focusing on the other ‘legal issues’ first is to come at things in the wrong order. To be justified, ITA must be able to resist the fundamental critique of trusteeship itself discussed in the previous chapter: that exercising control over people from outside is inherently unjust. Discussing those international lawyers who, as discussed in Chapter 8, sought to explain and justify the civilizing mission within international law, Martti Koskenniemi states that: [t]he men of 1873 felt that the introduction of Western institutions in the Orient would be to do history’s work, in that it would gradually transform backward societies into the European state form. The historical and the normative assumption coalesced in their image of themselves as the juridical conscience-consciousness of the civilized world. None of this language, or this self-image, is available today.18 If Koskenniemi is right, then there is no international normative basis for the ITA projects. The status of ITA as the latest manifestation of international trusteeship established in the previous chapter requires a fundamental question to be faced up to: is ITA part of the solution, or part of the problem, of global inequality? On its own terms, the idea of trusteeship implicates the general dilemma as to how a choice should be made between, as William Bain states, the ‘good of assisting persons in need and the good of respecting human autonomy.’19 Even if this can somehow been resolved in favour of intervention as far as the

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social and educational advancement of the people of the territory in question; to encourage respect for human rights; to ensure the equal treatment of all peoples in the UN in social, economic and commercial matters; and also to ensure equal treatment in the administration of justice. International Commission on Intervention and State Sovereignty, The Responsibility to Protect, December 2001, available at , at 43, para. 5.22. See also ibid., para. 5.23. [Editors’ note: not included in this Anthology]. M Koskenniemi, The Gentle Civilizer of Nations (CUP, 2002), 177. See also R Gordon, ‘Some Legal Problems with Trusteeship’, 28 (1995) Cornell International Law Journal 301. W Bain, Between Anarchy and Society. Trusteeship and the Obligations of Power (OUP, 2003), 2. On the general anti-colonial rejection of domination per se, see above, Ch. 8, n. 377 and accompanying text et seq. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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introduction of trusteeship is concerned, it resurfaces when attention turns to the conduct of trusteeship and its ability to realize its purpose. Is trusteeship capable of delivering what it promises? Will what it is seeking to foster locally have purchase when associated with imposition and alien rule, and will the history of domination and local disempowerment breed dependence and thereby undermine the prospects for independent viability?20 Stepping outwards from a focus on the particular ‘beneficiaries’ of trusteeship in each case, what of the effect of the existence of trusteeship on global politics? Antony Anghie characterizes ideas concerning relations between non-European and European peoples in 19th century positivist international legal discourse as a system that: …establishes a hierarchy … suggesting that one is advanced, just and authoritative while the other is backward, violent and barbaric; it asserts that the only history which may be written of the backward is in terms of its progress towards the advanced; it silences the backward and denies it any subjectivity or autonomy; it assumes and promotes the centrality of the civilized…21 Anghie argues that colonial ideas of ‘an essential difference … between Europeans and non-Europeans … the civilized and the uncivilized’ have been ‘reproduced, in a supposedly non-imperial world, in the distinctions that play such a decisive role in contemporary international relations’.22 Is ITA part of this? Whereas the language of ‘civilization’ is not used, as discussed in Chapter 8, ITA is often based on the same underlying notion of backwardness requiring and justifying control by an international organization: the people who are subject to the ITA projects are conceived as subaltern; they are a ‘failure’ and must ‘earn’ sovereignty. Can an institution predicated on hierarchies between peoples in the world—those who are subjected to trusteeship, those who are 20

21 22

For this critique in relation to colonial trusteeship, see the sources cited above, Ch. 8, n. 383. This issue is discussed in the context of ITA by D Chandler, Bosnia: Faking Democracy after Dayton (2nd edn, Pluto Press, 2000); M Ignatieff, Empire Lite: Nation-building in Bosnia, Kosovo and Afghanistan (Vintage, 2003), 113–14, D Chandler, Empire in Denial: The Politics of State-building (Pluto Press, 2006), passim; D Zaum, The Sovereignty Paradox: The Norms and Politics of International Statebuilding (OUP, 2007) and R Wilde, ‘The Ambivalent Mandates of International Organizations in Bosnia-Herzegovina, Kosovo and East Timor’, (2000) Proceedings of the Joint Meeting of the Australian & New Zealand Society of International Law and the American Society of International Law 319. A Anghie, Imperialism, Sovereignty and the Making of International Law (CUP, 2005), 113. Ibid., 310–11.

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not—be tolerated when it further entrenches inequality on the global axis?23 Or is ITA justified as a means of bridging such inequality when it is aimed at development and ‘state-building’? Part of the answer to this question depends on whether the legitimating strategies set out in Chapter 8 are sustainable. Is ITA actually ‘perfect’ trusteeship, in providing administration that seeks to serve the interests of the inhabitants of the territory only? As discussed in Chapter 8, a key legitimizing feature of the ITA projects is the normative identity of the administering actors. How sustainable is this? In his conception of the ‘state-building’ projects in Kosovo and Bosnia and Herzegovina as ‘Empire Lite’, Michael Ignatieff uses the term ‘Empire’ not only to denote echoes of imperial colonialism that resonate in how these practices are conducted; for Ignatieff, state-building is also ‘imperial’, ‘…because its essential purpose is to create order in border zones essential to the security of great powers.’24 This focus on self-serving motives is used to explain the selective deployment of interventions: humanitarian concerns are only determinative when they map on to self-serving interests; there is ‘humanitarian’ intervention and then ITA in Kosovo, but relatively little, and sometimes nothing, is done in the many other places where human rights atrocities also take place.25 For Ignatieff, the best

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25

For a discussion of the degrading effects of trusteeship on the idea of sovereign equality, see the discussion in Bain (above n. 19), Ch. 7 and especially 163–72. [Editors’ note: not included in this Anthology]. See also Chandler, Empire in Denial (above n. 20), passim. Ignatieff (above n. 20), 109. Ignatieff states that the state-building enterprise in the Balkans: …has not been an exercise in humanitarian social work. It has always been an imperial project, driven by a clear, if reluctantly grasped imperative to replace the collapsed Communist imperium of Tito’s era with a new architecture of states that would bring stability to a combustible corner of Europe. Why else would there be 12,000 troops in Bosnia and thousands more in Kosovo under the command of American generals, together with experts from many nations investing billions in an otherwise marginal part of the continent? The aim is to integrate the Balkan peninsula—eventually—into the architecture of Europe, and, in the meantime, to reduce the flow of its major exports: crime, refugees, and drugs. […] It is imperial because … it serves imperial interests: the creation of long-term political stability in the south Balkans, the containment of refugee flows into Western Europe, and the control of crime, drugs and human trafficking… Ibid., 32 and 70. See also ibid., 125, and the approach of J Fearon and D Laitin, ‘Neotrusteeship and the Problem of Weak States’, 28 (2004) International Security 1, passim. Discussing Bosnia and Herzegovina, Kosovo, and Afghanistan, Ignatieff states that: [n]one of the three would have been chosen for humanitarian treatment had they not also been a practical venue for the exercise of military force by the United States. …

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way of understanding the normative character of interventions when they happen is in how self-serving objectives have been allied to humanitarianism.26 Necessarily, this undermines the normative significance of having the UN, rather than individual states, in the role of conducting operations as far as making distinctions with colonialism is concerned. Indeed, Ignatieff’s ‘Empire Lite’ is explicated through three case studies: two ITA projects and the US-led intervention in Afghanistan.27 Ignatieff argues that: [t]he imperial design needs to be stressed, because the usual way of describing Bosnia, Kosovo and Afghanistan, as wards of the ‘international community’, obscures the imperial interests that brought them under the administration of the United Nations in the first place.28 From this perspective, ITA is the trusteeship of (Lord) Frederick Lugard, not ‘perfect’, selfless trusteeship. Even if, then, the new ‘dual mandate’ for the ITA projects involves, as discussed in Chapter 8, a cohabitation of the interests of the local population and the interests of the international community, the latter brings in, rather than transcends, the interests of powerful states.29 So, the notion that the ITA projects are legitimate because the ‘other’ interests being promoted in the new dual mandate are those of states as a whole, not powerful states in particular, is questioned.30

26

27

28 29 30

To the extent that human rights justify the humanitarian use of military forces, the new empire can claim that it serves the cause of moral universalism. Yet its service to the cause is equivocal. … Empires that are successful learn to ration their service to moral principle to the few strategic zones where the defence of principle is simultaneously the defence of a vital interest, and where the risks do not outweigh the benefits. This is why modern imperial ethics can only be hypocritical. The new imperium has been exposed in the Balkans but it is never going to be extended to Chechnya. Ignatieff (above n. 20), 110–11. See also ibid., 652–3. Ignatieff states that: [n]ation-building would lack all soulfulness if it were just about creating stability in zones important to Western interests. The idea that redeems nation-building is the spiritual component, assisting former enemies to reconcile, to bind up their wounds and transcend a painful past. This is what gives the imperial project its moral allure. Ibid., 32. See also ibid., 69–70. See also the slightly later studies by Henry Perritt, which also take in Iraq: HH Perritt, ‘Structures and Standards for Political Trusteeship’, 8 (2003) ucla Journal of International Law & Foreign Affairs 385; HH Perritt ‘Providing Judicial Review for Decisions by Political Trustees’, 15 (2004) Duke Journal of Comparative & International Law 1. Ignatieff (above n. 20), 110. On this new ‘dual mandate’, see above, Ch. 8, text accompanying n. 271 et seq. [Editors’ note: not included in this Anthology]. On this idea of legitimacy, see above, Ch. 8, text accompanying n. 515. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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Moving beyond the view of those described at the start of Chapter 8 who see a sharp normative distinction between the cpa in Iraq and unmik in Kosovo, Ignatieff’s more pragmatic conception of state-building for imperial ends foregrounds the way in which the UN can entrench and promote, not constrain and transcend, the business of global power politics, with fundamental consequences for the idea that association with the UN somehow takes the ITA projects into the arena of ‘perfect’ trusteeship and thereby into a different class from colonial trusteeship. Normative portrayals of the UN as essentially selfless and humanitarian tend to focus on the Secretariat exclusively, but a full appreciation of the politics of UN involvement also needs to account for the role of the Security Council, rather than the General Assembly, in deciding where the ITA projects will take place and what form their mandates will take, and the way in which the Secretariat itself is politicized, both generally in relation to permanent staff members, and in particular in terms of the use of ad hoc, seconded staff members from national governments, whose involvement in the ITA missions has been pronounced.31 Considering the normative character of this particular internationalized manifestation of the ‘dual mandate’ is only possible, however, if the underlying connection with colonial trusteeship is acknowledged. So Michael Bothe and Thilo Marauhn, who resist considering such a connection, are thereby able to think about unmik and untaet only as types of peace operations, and their dismissal of the relevance of the Trusteeship Council and affirmation of the exclusive competence of the Security Council can be made solely on the grounds that, in their view, colonial trusteeship was concerned with something ‘other’ than the promotion of international peace and security.32 An acknowledgment of the relevance of the trusteeship concept (and the way it was used to serve objectives concerning peace and security), however, changes the nature of the enquiry considerably. Bearing in mind the critiques of colonial trusteeship, the association with the Security Council appears problematic because 31

32

On the issue of Secretariat ‘impartiality’ and the involvement of states in Secretariat matters, see the sources cited above, Ch. 8, n. 503, [Editors’ note: not included in this Anthology] in particular the commentary on Article 100 of the UN Charter by Christoph Schreuer and Christian Ebner. On the use of secondees in the ITA missions, see, e.g., the discussion in R Wilde, ‘The Complex Role of the Legal Adviser When International Organizations Administer Territory’, 95 (2001) ASIL Proc. 51. On the legitimacy of international organizations, see, e.g., the essays and sources cited in J-M Coicaud and V Heiskanen (eds), The Legitimacy of International Organizations (UN University Press, 2001) and sources cited therein. See above, Ch. 8, text accompanying n. 22 et seq. [Editors’ note: not included in this Anthology].

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of the way that it enables ITA trusteeship to be conducted in pursuance to the interests of Council members.33 Acknowledging the role of power politics within the UN is only the start of the enquiry. It needs to be asked whether replacing the essentialism of the projects as inherently beneficial and humanitarian with the essentialism of those such as Michael Ignatieff who see them as always compromised by power politics is helpful. Significantly, Ignatieff’s thesis omits a consideration of one case study taking place at the same time as the projects he does consider, which is not so easily explained primarily in terms of power politics: untaet in East Timor. More fundamentally, whereas for some, the nature of the contemporary ‘dual mandate’ rendering most, if not all, the projects deficient as species of ‘perfect’, selfless, trusteeship might be fatal to the legitimacy of the projects, others who might not take this view—for example on the grounds that even if power politics leads to selectivity, this does not by itself delegitimize the projects that do take place—still need to account for the effect on the objectives associated with the missions of the intersection between selfserving and selfless motivations. Some of the policies associated with the projects do not make sense on their own terms unless their implementation has somehow been conceived outside the arena of state politics. The role of ITA as a ‘neutral’ buffer facilitating the handover of territory between two states presupposes a particular normative idea of the international organization involved, as independent and impartial as between the interests of states generally and the two states involved in particular. It might be said that the notion of international public policy taking place outside the arena of state politics is a fantasy, but if so, the idea of ITA realizing policies such as these needs to be questioned. Other policies concerning ‘governance problems’ can only be considered legitimate if they are implemented in good faith. So, for example, the notion that ITA will take over governance of people deemed incapable of this, either at all, or in a manner that conforms to certain important policy objectives, and will restore local control when such capacity improves, is on its own terms only legitimate if a fair assessment of capacity is actually being used by those 33

Tom Parker states that: [i]f trusteeship means anything it means ensuring a brighter future for those placed under its auspices and an expectation that the Trustees will act in the best interests of their charges not in the best interests of the global status quo. The great drawback of using the Security Council to create and administer ersatz trusteeships is that in this respect at least it can often find itself conflicted. T Parker, The Ultimate Intervention: Revitalising the UN Trusteeship Council for the 21st Century (Sandvika: Norwegian School of Management, 2003), 36. See also ibid., 50.

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in charge of the projects to determine the duration of their missions. This is undermined if other considerations unrelated to ‘capacity’ are actually partially determinative; such considerations might lead to an outcome that would have been arrived at had capacity been the sole determinant, but equally they might not. If not, then even if one accepts the legitimacy of trusteeship on the grounds of incapacity in principle, the legitimacy of its implementation in practice is potentially compromised. Michael Ignatieff argues that in understanding why the projects are temporary: …the central factor has to be the democratic character of the Western powers … Democratic empire is short-term. The political timetables imposed on Bosnia, Kosovo and Afghanistan are dependent on the electoral cycle back home.34 Beyond questions of selflessness and good faith, as discussed in Chapter 8, ITA is also regarded as legitimate because the policies with which it is associated are understood to be universally valid, not culturally-specific. Any justification of the legitimacy of the projects needs to take into account whether this argument is sustainable.35 The significance of asking this question is acute in relation to those ITA missions concerned with a profound transformation in the political and economic models in the territories under their charge, whose legitimacy in conducting this enterprise hinges in part on the universal purchase of the models of economics and politics they are promoting. Certainly as a matter of international law, as discussed in Chapter 7, it is difficult to move beyond a rudimentary standard of periodic free and fair elections when seeking to establish the substantive contours of an agreed normative framework of democratic governance, yet democracy means much more than this, and indeed some of the ITA projects attempt to make a more profound change in domestic politics. If such a model does not in reality command universal 34 35

Ignatieff (above n. 20), 115. Jarat Chopra states that: [t]he mandate is a critical feature of governance-in-trust because in the field it is regarded as the source of authority for exercising one set of powers or another. It sets standards against which to measure whether the operation is conducted ‘in trust,’ that is, in the interests of the territory in question and by the international community as a whole. A criticism of this category of mandate is that is implies the imposition of the UN Charter and international law, instruments developed essentially by Western Judeo-Christian culture in areas with different values and cultures. However, an unfortunate aspect of the international system is that it has been based on these concepts and that nations that are not part of this single tradition have had to accept much from it. Chopra (above n. 17), 85.

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consensus, then is its promotion through ITA any different from the civilizing mission in terms of the legitimacy of the policies being implemented? In Chapter 8, the notion of accountability being integral to the concept of trust was discussed. As Michael Reisman observes in his discussion of the law applicable to trusteeship arrangements, the requirement of accountability is rooted in the fact that ‘the power relationship between the parties concerned is manifestly asymmetrical’.36 By understanding the ITA projects as trusteeship, this general idea is foregrounded in discussions of them.37 Given what was said in Chapter 8 about the critiques of colonial trusteeship and the Mandate and Trusteeship systems as far as the quality of accountability provided was concerned, clearly one way in which ITA could claim to be different from colonial trusteeship is in being rooted in an adequate regime of accountability.38 Despite this, the accountability mechanisms operating in relation to the ITA projects were not invoked in the discussion of how the projects are legitimized in the previous chapter. As was mentioned in Chapter 1, there has been considerable criticism of unmik in Kosovo on accountability grounds; in general, those who justify the legitimacy of the ITA projects do not tend to invoke the quality of accountability provided for them as part of this justification. How should questions of accountability be understood in the light of what has been said about the purposes of the projects, the connection with international trusteeship generally, and how ITA is distinguished normatively from colonial trusteeship in particular? In Chapter 8, it was speculated that one reason for the non-revival of the UN Trusteeship Council to scrutinize the project in East Timor was the notion that one of the arguments for greater external accountability for international trusteeship—concerns about the self-serving and exploitative a­ ctions of states—was no longer relevant now that the administering actor was an ­international organization. Even if the questions raised earlier about the 36 37

38

WM Reisman, ‘Reflections on State Responsibility for Violations of Explicit Protectorate, Mandate, and Trusteeship Obligations’, 10 (1989) Michigan Journal of International Law 231, at 233. Richard Caplan states that the concept of trust evident in the ITA projects ‘is ensured in part through the principle of accountability: the idea is that the administering authority can and should be held responsible for its actions’; R Caplan, International Governance of War-Torn Territories: Rule and Reconstruction (OUP, 2005), 195. See also Perritt, ‘Structures and Standards’ (above n. 27), passim. Richard Caplan’s statement extracted in the previous note is made by way of explaining what trust means and how it would render ITA legitimate. Similarly, Jarat Chopra states that ‘… governance-in-trust must be distinguished from colonial or imperial acts by its mechanisms of accountability to the interests of the international community as a whole’; Chopra (above n. 17), 84.

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­ ormative portrayal of international organizations as ‘selfless’ and ‘humanin tarian’ can somehow be resisted, the question of whether or not there should be accountability cannot be determined solely on the basis of the normative character of the administering actor. The introduction of unjustified restrictions on human rights, for example, cannot somehow be rendered legitimate simply because there is a general idea that the organization involved is acting selflessly and on a humanitarian basis. Even if accountability is necessary, should the same regime of accountability that would apply to an indigenous government operate with respect to the ITA missions? Specifically, even if the concept of trust suggests that the ITA missions should be acting in the interests of the people in the administered territories, should the missions be brought within a framework that enables these people directly to bring the missions to account? On the question of who should exercise oversight in relation to the missions, Richard Caplan asks: [w]hose opinion should count …? International transitional authorities cannot function as governments answerable primarily to the people whose territories they administer. International trusteeships are not representative democracies…39 Even if the international administrators have not been elected by the people they govern, does this necessarily mean that they should not be answerable to them? Simon Chesterman argues that: …final authority remains with the international presence and it is misleading to suggest otherwise. If the local population had the military and economic wherewithal to provide for their security and economic development then a transitional administration would not have been created. Where a transitional administration is created, its role is—or should be—precisely to undertake military, economic, and political tasks that are beyond existing capacities.40 Here, then, it is suggested that direct accountability is at odds with the underlying enterprise: international organizations have taken over control of ­governance precisely because of a judgment concerning the inability or unwillingness of the local population to perform this role themselves, either at all, or in a manner that conforms to certain policy objectives. To render the 39 40

Caplan (above n. 37), 246, emphasis added, footnote omitted. Chesterman (above n. 11), 143.

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projects directly accountable to the local population in any meaningful way— i.e., in a way that meant policies were altered to take into account the views of the population—would be to miss the point of the enterprise. In Bosnia and Herzegovina, for example, as discussed, the High Representative sometimes removes elected officials from office, inter alia because the policies espoused by the officials in question, such as what is deemed to be extremist nationalism, run counter to the political agenda ohr has for Bosnia and Herzegovina. Necessarily, this goes against the popular will insofar as it was meaningfully exercised in the vote that brought the official in question to office in the first place. Even on its own terms such an argument only goes so far. It only applies to those ITA policies concerned with remedying problems associated directly with the local population. For a mission associated with a ‘sovereignty problem’ exclusively, like untaes in Eastern Slavonia, there is nothing contradictory to the mission’s objective in making the policies it promotes during the period of administration—as opposed to the policy of eventual transfer to Croatia—­accountable directly to the local population. The fact that a mission is intended to hand the territory over to another sovereign after an interim period does not by itself necessitate, for example, an ability to make decisions about the economy of the territory during that period without having to account to the local population in doing so. Even in ITA projects addressing a perceived ‘governance problem’, the mandate itself should not be taken for more than it is. A mandate to foster economic development and reconstruction, for example, does not by itself presuppose that the economic model being implemented in the territory should not be determined by the local population. In East Timor, for example, development was needed because the East Timorese had been denied self-determination, not because they were deemed incapable of making decisions on economic matters. Part of the answer to the accountability issue, then, concerns the scope of the mandate and what this means in terms of decision-making.41 More fundamentally, however, accountability issues run much wider than the particular policies being promoted: corruption, mismanagement, and human rights abuses are not part of the mandate of the projects, and to exercise scrutiny over them is not to undermine the policy objectives of the missions. Effective accountability mechanisms concerning such matters are not incompatible with the idea of ITA itself; indeed, for those projects concerned with 41

In both Kosovo and East Timor, the UN set up bodies to whom certain prerogatives were devolved, but final authority on decision-making always resided in the head of the UN mission. See above, Ch. 1, nn. 1 and 2. [Editors’ note: not included in this Anthology].

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transforming the politics of the territories concerned along the lines of the rule of law and the promotion of human rights, a key component of ‘tutelage’ is leading by example. Returning to the question of the legitimacy of the ITA version of trusteeship— not the more fundamental question of the legitimacy of trusteeship itself— how would the normative character be understood if it failed to withstand the questions set out so far? What if the model of trusteeship is not ‘selfless’ as far as global power politics is concerned; what if the policies being implemented are not universally valid but culturally-specific; what if the missions are being conducted in an unaccountable manner, thereby breaching a fundamental requirement of trusteeship? It would follow that ITA fits with the colonial paradigm even more closely than was established in the previous chapter, since the legitimating strategies set out therein are, in the final analysis, unsustainable. If the policies being promoted do not have universal purchase and/or r­ eflect the priorities of powerful states, then they echo the way in which, as related by Antony Anghie, international law and public policy in the colonial era contemplated ‘…no other approaches to the problems of society than those which have been formulated by the civilized.’42 The bias and lack of universal purchase of these policies would render them alibis for domination, as such echoing the concepts of international law and public policy in the colonial era whose ‘universal’ identity concealed biases that enabled uni-directional domination on the European–non-European axis. Colonial-era notions of sovereignty were, as Anghie states: …formulated in such a way as to exclude the non-European; following which, sovereignty [could] … then be deployed to identify, locate and sanction and transform the uncivilized.43 Connecting up these ideas with contemporary international law and public policy, Anghie argues that: …the only thing unique about the nineteenth century is that it explicitly adopted the civilizing mission and reflected its goals in its very vocabulary. The more alarming and likely possibility is that the civilizing mission is inherent in one form or another in the principal concepts and

42 43

Anghie (above n. 21), 113. Ibid., 311.

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c­ ategories which govern our existence: ideas of modernity, progress, development, emancipation and rights.  […]  …the essential structure of the civilizing mission may be reconstructed in the very contemporary vocabulary of human rights, governance and economic liberalization.44 If notions of ‘failure’ and equivocal/earned sovereignty similarly manifest biases along the axes of global power, then the legitimacy of ITA’s use as a ‘remedy’ for them is compromised. ITA would amount to a repeat of the colonial civilizing mission, where an attempt was made to transmit the norms of the powerful ‘core’ to the subaltern ‘periphery’. Discussing the standards promoted in ‘peacebuilding’ generally, Roland Paris states that: [t]o the extent that these standards reflect the ideological predilections of the most powerful states in the world—the core of the international system—peacebuilding is not merely a tool of conflict management, but a new phase in the ongoing and evolving relationship between the core and the periphery of the international system, with the core continuing to define the standards of acceptable behaviour and international peacebuilding agencies serving as ‘transmission belts’ that convey these standards to the periphery.45 ‘Transmission’ through ITA may not actually effect improvement and development, therefore; indeed, it may actually cause more harm than good. Instead of bridging the divide between the powerful and the subaltern, it may actually be making the gap wider. As such, it would repeat a process associated with state-conducted trusteeship. Discussing the Mandate arrangements, Antony Anghie states that: [t]he Mandate System had devised a set of technologies that would compromise … independence and maintain—indeed, entrench—the division between advanced and backward states. Having in this way ensured the existence of the division, international law and institutions nevertheless proclaimed themselves intent on bridging that division, on promoting global equality and justice. This project and the many initiatives that 44 45

Ibid., 114. R Paris, ‘International Peacebuilding and the Mission Civilisatrice’, 28 (2002) Review of International Studies 637, 653–4. See also ibid., 637, 650 et seq.

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are part of it are inherently problematic because it is sometimes precisely the international system and institutions that exacerbate, if not create, the problem that they ostensibly seek to resolve.46 Scholars such as Anghie argue that, in the context of decolonization, the biased, imperial structures of international law and public policy into which colonial peoples had to fit on ‘independence’ set the conditions for the perpetuation of their subordination.47 If the standards being implemented through the ITA projects are similarly compromised, then the troubling conclusion is that these projects are setting up their beneficiaries to fail as independently viable, prosperous, and just societies. What would this mean for international law and public policy? It would suggest that, as some have argued, the imperial structures of domination and subordination that formed the origins of the system of international law and institutions are still important features of it today.48 It would indicate the way in which concepts of universality are used to promote policies that privilege the powerful and seek to eradicate meaningful differences between the powerful and the powerless, providing a further example of how international law has, in the words of Antony Anghie, ‘…endlessly reached out towards universality, expanding, confronting, including and suppressing the different societies and peoples it encountered.’49 It would underscore the need to interrogate how concepts and practices in international law and public policy that are articulated in terms of emancipation and humanitarianism can be deployed to achieve their opposite. As Anghie states:

46 47

48 49

Anghie (above n. 21), 192. As Antony Anghie states: …the processes and mechanisms that transformed colonies into sovereign states had an enduring importance for the non-European state. As such, it is misleading to focus simply on the outcome, on the achievement of sovereign statehood, rather than on the unique character of non-European statehood that stems in part from the mechanisms that created it. […] …the tragedy for the Third World is that the mechanisms used by international law to achieve decolonization were also the mechanisms that created neo-colonialism. Ibid., 191 and 192. See generally the sources in Sections 5.3.3 and 5.3.4 of the List of Sources. [Editors’ note: not included in this Anthology]. See generally the works in List of Sources, Section 5.3.4 and especially Anghie (above n. 21), Chs. 4–6, in particular 112–13, 117–18. [Editors’ note: not included in this Anthology]. Ibid., 314.

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[t]he point is not to condemn the ideals of ‘the rule of law’ ‘good governance’ and ‘democracy’ as being inherently imperial constructs, but rather, to question how it is that these ideas have become used as a means of furthering imperialism and why it is that international law and institutions seem so often to fail to make these ideals a reality.50 Moving from the general back to the specific, although this book has attempted to foreground the normative character of ITA in part to counter a technocratic, managerial approach to the ITA projects, this is not to say, of course, that the projects do not also raise formidable practical challenges. Even if ITA generally and specific ITA missions in particular somehow retain merit in the face of the foregoing issues, legitimacy can still be fundamentally compromised if the projects do not operate effectively. Adequate and effective modes of delivery and competence are not only important in their own right; many of the policies associated with ITA, or the way it operates, assume them. Taking over control of administration from local people in order to ensure democratic governance presupposes that the officials of international organizations are able to govern in a better manner in this regard than the people they have displaced. Equally, arrangements that follow from such central assumptions—for example, the notion discussed in Chapter 7 that the use of ITA to promote particular human rights norms within a territory obviates the need for the usual supra-national scrutiny mechanisms— similarly presuppose that international organizations and their officials are willing and able to provide an effective protection system domestically. There is a tendency to argue for the legitimacy of ‘state-building’ generally as a matter of principle in complete isolation from how it is and has been conducted in practice; for its proponents, it is a good idea, even if, when one looks at how it is implemented, there are often considerable problems. An extreme example of this would be the occupation of Iraq, where those who insist that the overall enterprise was justified tend to treat the egregious incompetence of the occupation as entirely severable from the legitimacy of the operation itself; if only decisions about the conduct of the occupation had been different, then it would have succeeded. Michael Ignatieff’s thesis justifying the idea of ‘Empire Lite’ on a normative level, written in the context of Bosnia and Herzegovina, Kosovo, and Afghanistan before the 2003 invasion and occupation of Iraq, ends up criticizing all the instances of its actualization on a practical

50

Ibid., 320.

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level: lack of adequate funding, incompetence, unwillingness or inability to stay the course, and the like.51 It must be asked, however, whether in some ways practical problems of implementation are not linked to conceptual problems with the enterprise itself. Fundamentally, if trusteeship itself is a flawed concept, for example, because democracy that is ‘imposed’ will not take root, then it is hardly a surprise that those involved in it come up against formidable ‘practical’ challenges. If the policies being promoted in the projects reflect, in part, objectives that have little to do with the interests of the local population, the possibility that such policies fail to resonate locally forms part of the enterprise itself—success or failure will not depend exclusively on how well international administrators do their job on the ground.52 So far, the legitimacy of ITA has been understood with reference to issues raised by the connection established in Chapter 8 with international trusteeship. In one sense, this marks a step away from a dominant discourse on legitimacy that foregrounds second-order issues such as the question of the applicable law. In another sense, however, it replicates a dominant approach to understandings of international legitimacy in its focus on self-determination. It is important to ask whether the sites of legitimation raised by a comparison with the colonial institution are themselves sufficient in approaching questions of legitimacy. In one sense, this is a matter of considering the adequacy of what is raised on its terms—for example, considering the critiques that have been made of the emancipatory potential of the self-determination entitlement given the predominant focus on formal independence within conventional self-determination discourse.53 In another sense, it is a matter of asking what further normative issues are raised by ITA other than those concerning the legitimacy of intervention. One methodological approach that encompasses both these ‘departures’ from an exclusive focus on the colonial comparator is feminist analysis.54 51 52

53

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Ignatieff (above n. 20), passim. For further analysis on the tension on the part of officials between their duties to the people in the territory and their loyalties to the organization, see, e.g., Wilde (above n. 31) and R Wilde, ‘The United Nations as Government: The Tensions of an Ambivalent Role’, 97 (2003) ASIL Proc. 212. On the limited nature of what self-determination can deliver, see the discussion in A Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (CUP, 2003), 143–57. On self-determination generally, including further critiques of this kind, see List of Sources, Section 5.4. On such analysis in relation to international law and public policy generally, see ct ­Mohanty, A Russo, and L Torres (eds), Third World Women and the Politics of Feminism (Indiana University Press, 1991); N Chaudhuri and M Strobel (eds), Western Women and

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As discussed in Chapter 6, ITA at least in its later manifestations has sought in some cases to promote the rights of women; as mentioned in Chapter 7, this can be understood to reflect the idea of incorporating gender-based analysis of and strategies within international law and public policy concerning peace and security. One important site of critical appraisal of the ITA projects, then, is to evaluate their merit along gender lines.55 Do they promote the interests of women and men equally in their specific policies, the way policies are implemented, the manner in which the ‘problems’ associated with ITA are

55

I­mperialism: Complicity and Resistance (Indiana University Press, 1992); DG Dallmeyer (ed.), Reconceiving Reality: Women and International Law (ASIL, 1993); M Cook and A Woollacott (eds), Gendering War Talk (Princeton University Press, 1993); R Cook (ed.), ­Human Rights of Women: National and International Perspectives (University of Pennsylvania Press, 1994); JJ Pettman, Worlding Women: A Feminist International Politics (Routledge, 1996); la Lorentzen and J Turpin (eds), The Women and War Reader (nyu Press, 1998); H Charlesworth and C Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press, 2000); U Narayan and S Harding (eds), Decentering the Center: Philosophy for a Multicultural, Postcolonial and Feminist World (Indiana University Press, 2000); K-K Bhavnani, Feminism and ‘Race’ (OUP, 2001); C Saunders and K LeRoy (eds), The Rule of Law (Federation Press, 2003); BA Ackerly, M Stern, and J True (eds), Feminist Methodologies for International Relations (CUP, 2006); V Amos and P Parmar, ‘Challenging Imperial Feminism’, 17 (July 1984) Feminist Review 3; C Chinkin, ‘A Gendered Perspective to the Use of Force’, 12 (1988–89) Australian Yearbook of International Law 279; K Engle, ‘International Human Rights and Feminism: When Discourses Meet’, 13 (1992) Michigan Journal of International Law 517; J Mertus and P Goldberg, ‘A Perspective on Women and International Human Rights After the Vienna Declaration: The Inside/Outside Construct’, 26 (1994) International Law and Politics 201; V Nesiah, ‘Towards a Feminist Internationality: A Critique of US Feminist Legal Scholarship’, 16 (1993) Harvard Women’s Law Journal 189; D Buss, ‘Robes, Relics and Rights: The Vatican and the Beijing Conference on Women’, 7 (1998) Social and Legal Studies 339; H Charlesworth, ‘Feminist Methods in International Law’, 93 (1999) AJIL 379; A Orford, ‘Contesting Globalization: A Feminist Perspective on the Future of Human Rights’, in BH Weston and SP Marks (eds), The Future of International Human Rights (Transnational Publishers, 1999); H Charlesworth, ‘International Law: A Discipline of Crisis’, 65 (2002) Modern Law Review 377; R Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/ Post-Colonial Feminist Legal Politics’, 15 (2002) Harvard Human Rights Journal 1; A Orford, ‘Feminism, Imperialism and the Mission of International Law,’ 71 (2002) Nordic Journal of International Law 275; V Nesiah, ‘The Ground Beneath Her Feet: twail Feminisms’, in A Anghie, BS Chimni, K Mickelson, and OC Okafor (eds), The Third World and International Order: Law, Politics and Globalization (Brill, 2003), 133. For work by commentators who have appraised one or more of the ITA projects on the basis of a gender-based/feminist analysis, see List of Sources, Section 5.2.5. [Editors’ note: not included in this Anthology]. For an NGO report on gender and unmik, see Kvinna till Kvinna Foundation, Getting it Right? A Gender Approach to unmik Administration in Kosovo (2001), obtainable from . For feminist/gender-based analysis in relation to women and international peace and security generally, see the sources cited above, Ch. 7, n. 71. [Editors’ note: not included in this Anthology]. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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understood, how the missions are staffed, which local people are involved in ­decision-making, what effects the missions have more generally, and so on? More fundamentally, what insights from feminist theory can be brought to bear on the nature and legitimacy of the act of control and domination ­generally—trusteeship—and its association with the promotion of policy objectives in particular? In part this implicates conceptual issues concerning the intersection between feminism and anti-colonialism. A long-standing critique of certain feminist activism concerned complicity with forms of domination operating on axes other than gender, such as race. Clearly such arguments— such as Valerie Amos’s and Pratibha Parmar’s influential notion of ‘Imperial Feminism’—are significant in highlighting the need to approach critique in a multifaceted manner, and to face up to the tensions this may produce.56 It is not enough, for example, to ask whether unmik in Kosovo is ensuring that its policies for governance in Kosovo are gender-sensitive; one also needs to ask whether the use of ITA as a means of promoting these policies is itself legitimate. In one sense, however, this is not a matter of ‘departing’ from feminism; feminist critique is itself, of course, concerned with understanding relations of domination. The entry-level question of whether trusteeship is normatively supportable, then, should be approached through feminist analysis; understanding the gender of international trusteeship can enrich how this fundamental aspect of ITA is appraised.57 Moving away from a consideration of the legitimacy of ITA, one final avenue of enquiry raised by the activity as it has been explained in this book is offered by Edward Said’s concept of orientalism.58 As discussed in Chapter 1, one of the insights of Said’s work is that representations of the ‘other’ conceived in the context of relations of domination, although of questionable merit for an enquiry as to the nature of the ‘other’ itself, can be illuminating as indications of the self-image of those engaged in crafting such representations. Whatever the merits of ITA as far as its ability to capture, understand, and discipline the interests of the populations in relation to which it operates, an appreciation of how this process is understood by those engaged in the projects and in international law and public policy generally may open up insights into how these people, how those who work for international organizations, and how experts in international law and public policy, view themselves. Martti Koskenniemi 56 57

58

Amos & Parmar (above n. 54). See also Orford, ‘Feminism, Imperialism…’ (above n. 54). Cf. the example of the relations between men and women given by Aristotle in the passage quoted above (Ch. 8, n. 107 [Editors’ note: not included in this Anthology]), when discussing relative capacities for rationality as the basis for distinctions between ruler and ruled. EW Said, Orientalism. Western Conceptions of the Orient (reissue with new afterword, Penguin Books, 1995). Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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states that the humanitarianism of colonial trusteeship can be understood in part in: …the connection liberals have made between progress and civilization on the one hand, and a particular political form, Western statehood, on the other. The men of 1873 saw great danger in Africa and elsewhere in terms of a continued anarchy inside ‘primitive’ communities and an unrestricted scramble driven by private economic interests between the European powers. They hoped to deal with these dangers by introducing European public administration into the colonies. When that attempt failed, they moved to support the internationalization of colonial administration, again with the view to replacing indigenous political forms with European ones… When in more recent years those forms of government have nonetheless failed, international lawyers have been left uneasily poised between exhaustion and arrogance in the face of the endemic political, social and economic crises in the third world: either leaving the colonies a playground of ‘tribal’ policies and Western private economic domination, or suggesting ever more stream-lined versions of civilized guardianship over ‘failed states.’ Both are reaction formations to an unarticulated—yet pervasive—liberal unease about the virtues of Western political institutions.59 How does the use of ITA to engage in ‘state-building’ in ‘failed states’ reflect anxieties about the nature of the state and democracy for those living in states that would never be subjected to these forms of intervention? Put differently, what does the ‘failed state’ say about concerns felt in relation to its ‘successful’ ‘other’? For the international organizations concerned, especially the UN, what does involvement in the activity of ITA in a few places say about their contrasting relationship with the majority of the world’s states? How does the ability to discipline people in the global periphery relate to such ability as far as powerful states are concerned? The legitimacy of ITA in general and specific ITA projects in particular is, of course, vitally important, but the existence of the policy institution revealed in this book also raises questions as to what is at stake for both the actors in control in the ITA projects—the international organizations—and for those states and their populations who are not made subject to the projects. The colonial legacy is of enduring significance for both those who were colonialists and those who were colonized; what will direct 59

Koskenniemi (above n. 18), 176.

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involvement in the conduct of international trusteeship mean for the future identities and roles of international organizations? Now that the policy role of international territorial administration and its place in the history of international trusteeship have been established, normative appraisal becomes possible. Regarding individual administration projects as manifestations of the policy institution of ITA is not only helpful in seeking to identify commonalities and differences between these projects; it also provides the broader context that is necessary for the politics of ITA, both on its own terms and in its relationship to international law and public policy generally, to be contested.

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part 5 State Immunities

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Chapter 51

Ernst Satow, A Guide to Diplomatic Practice, 1917 Comment by Lady-Gené Waszkewitz, Research Assistant, BIICL The Rt Hon Sir Ernest Satow was born in 1843 in Clapton, North London. Satow’s interest in foreign languages and eventually diplomacy was awoken during his student years at University College London between 1859 and 1861. At the young age of 18 Satow embarked on his career in the British consular service as a student interpreter in Japan. During his career he held numerous esteemed positions, including Her Britannic Majesty’s Envoy Extraordinary and Minister Plenipotentiary in Japan between 1895 and 1900. After Satow’s retirement from the consular and diplomatic services in 1906 he was elected Associé of the Institute of International Law at the session in Paris in 1921. During his years in the civil service, Sir Ernest Satow mastered the Japanese language, allowing him to rise steadily from student interpreter, to translator and later ambassador. Aside from the Guide to Diplomatic Practice, further noteworthy contributions include A Diplomat in Japan,a trailing his experiences in the consular and diplomatic services. Aside from his work as a diplomat, Satow was called to the bar of England and Wales at Lincoln’s Inn in 1887 and appointed Councillor to the Privy Council in 1906, though his contributions to the legal profession pale in comparison to his contributions to the field of diplomacy. So well-circulated is the Guide to Diplomatic Practice, now in its sixth editionb with a seventh in press, that it is often referred to simply as “Satow”. The first edition’s editorial introduction, contributed by Lassa Oppenheim itself says of the value of the two volume Guide that: …it is unique with regard to the method of treatment of the subject, as well as the selection of the topics discussed and in the amount of original research which it embodies. The intention was to produce a work which would be of service alike to the international lawyer, the diplomatist, and the student of history.c

a E Satow, A Diplomat in Japan (Seeley, Services & Co 1921). b I Roberts (ed), Satow’s Diplomatic Practice (6th edn, OUP 2009). c L Oppenheim, Editorial Introduction, E Satow, A Guide to Diplomatic Practice (1st edn, Longmans, Green and Co 1917) vol. 1, v. © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_052

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And it is this approach, encompassing international law, diplomacy and history that preserves the Guide’s continued appeal and pertinence a century after the publication of its first edition. Despite the fact that the field of international relations and the means of international diplomacy have undergone considerable modernisation, Satow’s drawing from historical discussion as a means of addressing the needs and practice of diplomacy together with the great focus on formal practice continues to attract a wide readership. This dedication to accessible practice is the ethos underlying all the later editions. Using anecdotes and illustrations, the Guide to Diplomatic Practice provides an invaluable tool and point of reference when facing the complexities of international law and global diplomacy. It thus builds a bridge between the two coinciding practice areas. Written, in its first two editions, solely by Satow, there is a traceable focus on British diplomatic practice. However, the later editions aptly capture and allude to any applicable divergent practice, again demonstrating the flexibility of the work’s underlying ethos. The newer editions edited, respectively by former diplomats Hugh Ritchie (1932), Sir Nevile Bland (1954), Lord Gore-Booth (1979) and Sir Ivor Roberts (2009), address the accelerated pace of international diplomacy and increase in the number and kinds of actors. Thus they include a discussion of the role that international criminal tribunals play in diplomatic relations, the effects of international terrorism on the daily lives of ambassadors and other diplomatic staff abroad and necessary contemporary updates.

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E. Satow, A Guide to Diplomatic Practice, London Longmans 1917. Excerpt: Book I Diplomacy in General, Ch. I ‘Diplomacy’, pp. 1–4 and Ch. II ‘Immunities of the Head of a Foreign State’, pp. 5–7.

A Guide to Diplomatic Practice* Ernst Satow

Chapter I - Diplomacy

Definitions § 1. diplomacy is the application of intelligence and tact to the conduct of official relations between the governments of independent states, extending sometimes also to their relations with vassal states. Other definitions are— La diplomatie est l’expression par laquelle on désigne depuis un certain nombre d’années, la science des rapports extérieurs, laquelle a pour base les diplômes ou actes écrits émanés des souverains” (Flassan). “La science des relations extérieures ou affaires étrangères des Etats, et, dans un sens plus déterminé, la science ou l’art des négociations” (Ch. de Martens). “La science des rapports et des intérêts respectifs des Etats ou l’art de concilier les intérêts des peuples entre eux; et dans un sens plus déterminé, la science ou l’art des négociations; elle a pour étymologie le mot grec δίπλωμα, duplicata, double ou copie d’un acte émané du prince, et dont la minute est restée. Garden Elle embrasse le système entier des intérêts qui naissent des rapports établis entre les nations: elle a pour objet leur sûreté, leur tranquillité, leur dignité respectives; et son but direct, immédiat, est, ou doit être au moins, le maintien de la paix et de la bonne harmonie entre les puissances. same author L’ensemble des connaissances et des principes qui sont nécessaires pour bien conduire les affairs publiques entre les états. de Cussy, Dictionnaire du Diplomate et du Consul * [Editors’ note: Footnote numbering has been amended for the purposes of the present Anthology].

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La science des relations qui existent entre les divers Etats, telles qu’elles résultent de leurs intérêts réciproques, des principes du droit international et des stipulations des traités. Calvo L’art des négociations. Klüber développe assez bien cette définition en disant que c’est ‘l’ensemble des connaissances et principes nécessaires pour bien conduire les affaires publiques entre les Etats.’ La diplomatie éveille en effet l’idée de gestion des affaires internationales, de maniement des rapports extérieurs, d’administration des intérêts nation-aux des peuples et de leurs gouvernements, dans leur contact mutuel, soit paisible soit hostile. On pourrait presque dire que c’est ‘le droit des gens appliqué.’ Pradier-Fodéré Die Kenntniss der zur äusseren Leitung der öffentlichen Angelegenheiten und Geschäfte der Völker oder Souveraine, und der zu mündlichen oder schriftlichen Verhandelungen mit fremden Staaten gehörigen Grundsätze, Maximen, Fertigkeiten und Formen. Schmelzing, Systematischer Grundriss des Völkerrechts According to Rivier, the use of “diplomacy” is threefold— – 1st. La science et l’art de la représentation des Etats et des négociations. – 2nd. On emploie le même mot … pour exprimer une notion complexe, comprenant soit l’ensemble de la représentation d’un Etat, y compris le ministère des affaires étrangères, soit l’ensemble des agents politiques. C’est dans ce sens que l’on parle du mérite de la diplomatie française à certaines époques, de la diplomatie russe, autrichienne. – 3rd. Enfin, on entend encore par diplomatie la carrière ou profession de diplomate. On se voue à la diplomatie, comme on se voue à la magistrature, au barreau, à l’enseignement, aux armes.1 Derivation and History of the Word § 2. The diplomat, says Littré, is so-called, because diplomas are official documents (actes) emanating from princes, and the word diploma comes from the Greek δίπλωμα (διπλόω, to double) from the way in which they were folded. 1 Principes du droit des gens. Paris, 1896, vol. ii. 432. (The author was a Swiss consul-général, and professor at Brussels.) Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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A diploma is understood to be a document by which a privilege is conferred: a state paper, official document, a charter. The earliest English instance of the use of this word is of the year 1645. Leibniz, in 1693, published his Codex Juris Gentium Diplomaticus, Dumont in 1726 the Corps universel Diplomatique du Droit des Gens. Both were ­collections of treaties and other official documents. In these titles diplomaticus, ­diplomatique, are applied to a body or collection of original state-papers, but as the subject-matter of these particular collections was international relations, “corps diplomatique” appears to have been treated as equivalent to “corps du droit des gens,” and “diplomatique” as “having to do with international relations.” Hence the application also to the officials connected with such matters. Diplomatic body2 now came to signify the body of ambassadors, envoys and officials attached to the foreign missions residing at any seat of government, and diplomatic service that branch of the public service which supplies the personnel of the permanent missions in foreign countries. The earliest example of this use in England appears to be in the “Annual Register” for 1787. Burke, in 1796, speaks of the “diplomatic body,” and also uses “diplomacy” to mean skill or address in the conduct of international intercourse and negotiations. The terms diplomat, diplomate, diplomatist were adopted to designate a member of this body.3 In the eighteenth century they were scarcely known. Disraeli is quoted as using “diplomatic” in 1826 as “displaying address” in negotiations or intercourse of any kind (New English Dictionary). La diplomatique is used in French for the art of deciphering ancient documents, such as charters and so forth. Celebrated Diplomatists § 3. The words, then, are comparatively modern, but diplomatists existed long before the words were employed to denote the class. Machiavelli (1469–1527) is perhaps the most celebrated of men who discharged diplomatic functions in early days. D’Ossat (1536–1604), Kaunitz (1710–1794), Metternich (1773– 1859), Pozzo di Borgo (1764–1842), the first Lord Malmesbury (1764–1820), Talleyrand (1754–1838), Lord Stratford de Redcliffe (1786–1880) are among the most eminent of the profession in more recent times. If men who combined fame as statesmen with diplomatic reputation are to be included, Count Cavour (1810–1861) and Prince Bismarck (1815–1898) enjoyed a world-wide celebrity. 2 This use of the expression first arose in Vienna about the middle of the eighteenth century (Ranke, cited by Holtzendorff, iii. 617). 3 Callières, whose book was published in 1716, never uses the word diplomate. He always speaks of “un bon,” or “un habile, négociateur.” Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The Term Includes Foreign Office Functionaries § 4. “Diplomatist” ought, however, to be understood as including all the public servants employed in diplomatic affairs, whether serving at home in the department of foreign affairs, or abroad at embassies, legations or diplomatic agencies. Strictly speaking, the head of the foreign department is also a diplomatist, as regards his function of responsible statesman conducting the relations of his country with other states. This he does by discussion with their official representatives or by issuing instructions to his agents in foreign countries. Sometimes he is a diplomatist by training and profession, at others he is merely a political personage, who may or may not be possessed of special knowledge fitting him for the post. Critics of Diplomacy § 5. When we speak of the “diplomacy” of a country as skilful or blundering, we do not mean the management of its international affairs by its agents residing abroad, but their direction by the statesman at the head of the department. Many writers and speakers are disposed to put the blame for a weak or unintelligent diplomacy on the agent, but this mistake arises from their ignorance of the organization of public business. The proper person to blame is the Secretary of State, or Minister for Foreign Affairs. Sometimes, in autocratic governments, the responsibility lies on the sovereign.

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Chapter II - Immunities of the Head of a Foreign State

Exemption from Civil and Criminal Jurisdiction § 6. A sovereign4 within the territory of a foreign sovereign, so long as he is there in his capacity of sovereign, is exempt from the civil and criminal jurisdiction of the local tribunals, from all taxation, police regulations; his place of residence may not be entered by the state authorities. The movables he carries with him are also exempt from customs duties and visitation by customs officers. This privilege is also extended by general comity to goods destined for delivery to a foreign sovereign or his family in their transit through foreign countries.5 The members of his suite enjoy the same immunities as himself. If he commits acts against public order or security, he can only be expelled, the necessary precautions being taken to prevent a repetition of such acts. On the other hand, he cannot exercise any jurisdiction over persons belonging to his suite. If one of them should commit an offence, he must be sent home in order that the case may be dealt with by the tribunals of his own country, and similarly with respect to civil matters. The foreign sovereign cannot protect a native of the country who takes refuge with him, but must surrender him on demand. He must not ignore administrative regulations made for the preservation of the public peace and public health. He must, of course, take care that they are equally observed by the persons in his suite. Foreign Sovereign Travelling Incognito § 7. If, however, a sovereign travels incognito in the territories of a foreign state, he can only claim to be treated as a private individual; but if he declares his identity, then he becomes entitled to all the immunities pertaining to his rank as sovereign. The same rule holds good if he enters the service of another sovereign; he can only recover his rights by resigning the service in which he is engaged. Duke of Cumberland § 8. The case of the Duke of Cumberland, who was a peer of the realm in great Britain, and King of Hanover, seems peculiar. It is conceived that if he had come to England as Duke, he could only become entitled to be treated as a sovereign in England by returning to Hanover and coming again in his capacity

4 Hall, 168; Ullman, 158. 5 Phillimore, ii. 123.

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of King. He could not, we think, put on and lay down either title at his simple will and pleasure. President of a Republic § 9. Nothing seems to have been decided as to the position of the President of a Republic, when in the territories of another State. It cannot, however, be doubted that no Head of a Republic would expose himself to the risk of being refused the immunities accorded to a sovereign, and that on the rare occasions when a president visits a foreign State he either expects to receive, or has been promised beforehand, treatment in all respects the same as that of a sovereign. Real Property of a Sovereign in a Foreign State § 10. If a sovereign privately owns real property in a foreign state, it is subject to the jurisdiction of the local tribunals. Hall holds,6 with justice in our opinion, that this applies also to personalty, not coming within the categories previously mentioned, owned in a foreign state. This seems also to be Ullmann’s7 view. Execution of a judgment in respect of contract or tort might in practice encounter difficulties. The practice of the English courts, both of equity and common law, has been in favour of the privileged exemption of sovereigns in all matters of contract. And the French courts have upheld the same principle.8 Sovereign Suing in Courts of a Foreign State § 11. If he appeals in a civil matter to the courts of a foreign State, he must submit to cross-proceedings being taken against him, as the condition on which his action is entertained by the Court. In England he must comply with the rules of the Court, for a sovereign bringing an action in the courts of a foreign country brings with him no privilege which can vary the practice or displace the law applying to other suitors in those Courts.9 Deposed and Abdicated Sovereigns, and Ex-presidents § 12. A sovereign who has been lawfully deposed by his people, or who has abdicated, and whose deposition or abdication has been recognized by other states, and a president of a republic whose term of office has expired, or who 6 170. 7 159 and footnote. 8 Phillimore, ii. 125–6. 9 Ibid., ii. 132.

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has been overthrown by a revolution, enjoy no immunities. Any privileges accorded to such personages during their residence in other countries must depend on the course which the authorities of those countries deem it expedient to adopt.10 10

Ibid., ii. 131.

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Chapter 52

Judicial Committee of the Privy Council, Judgment, Chung Chi Cheung v the King, 1939 Comment by Jedsarit Sahussarungsi, Public International Law Intern, BIICL As one of the most widespread legal systems in the modern world, English law and its courts are regarded as influential sources of State practice with respect to the implementation of international law in a domestic context. The case of Chung Chi Cheung v the King decided by the Judicial Committee of the Privy Council in 1939 marked the English influence in this regard both in terms of its institutional and normative impacts. As for the latter, the significance of the decision particularly concerns two areas of international legal scholarship, namely (1) the relationship between international and domestic law; and (2) the jurisdiction and immunities of States. With regard to the first issue, the decision reaffirms the influence of customary international law in the English legal system. However, it remains largely contested whether the decision supports the incorporation or the transformation doctrine.a Some academics believe that it supports the transformation doctrine (i.e. international law being automatically treated as part of domestic law without any further constitutional procedure),b whereas some disagree and believe that it encourages the incorporation doctrine (i.e. international law being treated as a separate body of law which can be made part of domestic law by the use of the appropriate constitutional machinery).c Despite the ambiguous position of the Judicial Committee, it is still considered as a timely contribution to the discourse between the two schools of thought and sets out a JG Collier, ‘Is International Law Really Part of the Law of England?’ (1989) 38 ICLQ 924, 931; M Kirby, ‘International Law and the Common Law: Conceptualising the New Relationship’ (Fourth James Crawford Biennial Lecture on International Law, Adelaide, 14 October 2009), available at: . b Lord Collins and T Cross, ‘The Law of International Custom in the Case Law of the House of Lords and the United Kingdom Supreme Court’ (2011), available at: . c MN Shaw, International Law (6th edn, CUP 2005) 143–4; R O’Keefe, ‘The Doctrine of Incorporation Revisited’ (2008) 79 BYIL 7, 20–1, 59.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_053

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the limitation to the use of international law in a domestic context that it may be applied “so far as it is not inconsistent with rules enacted by statutes or finally declared by the tribunals”. For some writers, this could justify regarding the incorporated or transformed customary international law as a binding precedent, which may disregard the new developments of international law to be applied in subsequent cases.d With regard to the second issue of jurisdiction and immunities of States, the Judicial Committee, by referring to customary international law as part of the UK’s domestic law, rejects the so-called “floating island theory” or “(objective) exterritoriality”, which regards a public ship as a piece of territory of the flag State. It can be implied from the decision that there existed a concurrent jurisdiction between China (as the flag State of the ship) and the United Kingdom (as the territorial State) over the act in question. However, with reference to the case of Schooner Exchange v McFaddon,e foreign public armed ships and their crews may benefit from immunities accorded to them by the consent of the territorial State not to exercise its full territorial jurisdiction, as opposed to today’s conception of immunities which flows from interstate obligations under international law. The Judicial Committee, nevertheless, concluded that such immunities, despite the basis of the territorial State’s consent, may be waived by the flag State. In this case, China had implicitly waived the immunities of the appellant by aiding the prosecution in English courts. Even though the reasoning of the Judicial Committee may not be entirely consistent, looking through the lens of international law in present day conditions, the decision was ground-breaking at the time and has been a foundation for legal reasoning in subsequent case law.f With this in mind, there is no doubt why the decision has been frequently cited in many academic papers and cases in order to provide both historical and substantive contexts for their consideration of the above controversial issues. d CH Schreuer, ‘The Applicability of Stare Decisis to International Law in English Courts’ (1978) 25 NILR 234. e The Schooner Exchange v McFaddon and Others, 11 US 116 (1812). f For example, Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 (CA). [See Chapter 53 of this Anthology].

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Judicial Committee of the Privy Council, Chung Chi Cheung v the King, [1939] Appeal Cases pp. 160–177. Reproduced with the kind permission of ICLR.

Chung Chi Cheung v The King, [1939] Appeal Cases Judicial Committee of the Privy Council

Privy Council Appeal No. 26 of 1938



Chung Chi Cheung (Appellant) v. The King (Respondent) From The Full Court of Hong Kong



Judgment of the Lords of the Judicial Committee of the Privy Council, delivered the 2nd December, 1938 Present at the Hearing: Lord Atkin. Lord Macmillan. Lord Porter. Sir Lancelot Sanderson. Sir George Rankin. [Delivered by Lord Atkin.]

This is an appeal from the Full Court of Hong Kong dismissing an appeal by the appellant from his conviction and sentence at a trial in the Supreme Court of Hong Kong before the Chief Justice, MacGregor C.J., and a jury. The appellant was convicted of the murder of Douglas Lorne Campbell and was sentenced to death. The murder was committed on board the Chinese Maritime Customs cruiser “Cheung Keng” while that vessel was in Hong Kong territorial waters. Both the murdered man and the appellant were in the service of the Chinese Government as members of the officers and crew of the cruiser. The former was captain: the appellant was cabin boy. Both were British nationals. At the trial the point was taken that as the murder took place on an armed public vessel of the foreign Government, the British Court had no jurisdiction in the matter. The contention was overruled by the Chief Justice at the trial, and on appeal his decision was upheld by the Full Court over which he presided. In order to elucidate the legal position it will be necessary to make a short statement of the material facts. On 11th January, 1937, the accused shot and killed the captain. He then went up the ladder to the bridge and shot at and wounded Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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the acting chief officer, and then went below and shot and wounded himself. The acting chief officer as soon as he was wounded directed the ­boatswain to proceed to Hong Kong at full speed and hail the police launch. He wanted, he said, help to arrest the accused from the Hong Kong police. Within a couple of hours the launch of the Hong Kong water police came alongside in answer to the cruiser’s signal. The police took the wounded officer and the accused to hospital. They took possession of the two revolvers with which the accused had armed himself, of the spent revolver bullets and expended shells, and of some unexpended cartridges. On 25th February, extradition proceedings were commenced against the accused on the requisition of the chairman of the Provincial Government of Kwangtung alleging murder and attempted murder on board the Chinese Customs cruiser “within the ­jurisdiction of ­China while the said cruiser was approximately one mile off Futaumun (­British waters).” This appears to be an allegation that the vessel had not at the time reached British territorial waters. The fact that the crime was in reality committed within British waters is not now in dispute. After many adjournments the magistrate decided, on evidence called for the defence, that the accused was a British national and that the proceedings therefore failed. The accused was at once rearrested and charged with murder “in the waters of this colony” and duly committed. At the hearing before the magistrate and at the trial the acting chief officer and three of the crew of the Chinese cruiser were called as witnesses for the prosecution. Police witnesses produced and gave evidence as to the revolvers, cartridge cases and bullets. As has already been stated the accused was convicted and sentenced to death. On the question of jurisdiction two theories have found favour with persons professing a knowledge of the principles of international law. One is that a public ship of a nation for all purposes either is or is to be treated by other nations as part of the territory of the nation to which she belongs. By this conception will be guided the domestic law of any country in whose territorial waters the ship finds herself. There will therefore be no jurisdiction in fact in any Court where jurisdiction depends upon the act in question or the party to the proceedings being done or found or resident in the local territory. The other theory is that a public ship in foreign waters is not and is not treated as territory of her own nation. The domestic Courts in accordance with principles of international law will accord to the ship and its crew and its contents certain immunities, some of which are well settled, though others are in dispute. In this view the immunities do not depend upon an objective exterritoriality, but on implication of the domestic law. They are conditional and can in any case be waived by the nation to which the public ship belongs. Their Lordships entertain no doubt that the latter is the correct conclusion. It more accurately and logically represents the agreements of nations which

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c­onstitute international law: and alone is consistent with the paramount ­necessity expressed in general terms for each nation to protect itself from internal disorder by trying and punishing offenders within its boundaries. It must be always remembered that so far at any rate as the Courts of this country are concerned international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external ­power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. What then are the immunities of public ships of other nations accepted by our Courts and on what principle are they based? The principle was expounded by that great jurist Chief Justice Marshall in The Exchange, 7 Cranch 116 (1812), a judgment which has illumined the jurisprudence of the world:— The jurisdiction of the Courts is a branch of that which is possessed by the nation as an independent sovereign power. The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. …All exceptions therefore to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case it is less determinate, exposed more to the uncertainties of construction: but if understood not less obligatory. The world being composed of distinct sovereignties possessing equal rights and equal independence whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates, and its wants require, all sovereigns have consented to a relaxation in practice in cases under certain peculiar circumstances of that absolute and complete jurisdiction within their respective territories which sovereignty confers. … This perfect equality and absolute independence of sovereigns and this common interest impelling them to mutual intercourse and an interchange of good offices with each other have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation.

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The Chief Justice then proceeds to illustrate the class of cases to which he has referred. He takes first “the exemption of the person of the sovereign from arrest or detention within a foreign territory.” Second, “standing on the same principles as the first is the immunity which all civilised states allow to foreign ministers”:— Whatever may be the principle on which this immunity is established whether we consider him as in the place of the sovereign he represents or by a political fiction suppose him to be extra-territorial and therefore in point of law not within the jurisdiction of the sovereign at whose court he resides; still the immunity itself is granted by the governing power of the nation to which the minister is deputed. This fiction of extra-­territoriality could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it. The judgment then proceeds to the third case “in which a sovereign is understood to cede a portion of his territorial jurisdiction,” namely, “where he allows the troops of a foreign power to pass through his dominions.” The Chief ­Justice lays down that “the grant of a free passage implies a waiver of all jurisdiction over the troops during this passage and permits the foreign general to use that discipline and to inflict those punishments which the government of his army may require.” He points out that differing from the case of armed troops where an express license to enter foreign territory would not be presumed, the private and public vessels of a friendly power have an implied permission to enter the ports of their neighbours unless and until permission is expressly withdrawn. When in foreign waters private vessels are subject to the territorial jurisdiction:— But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation: acts under the immediate and direct command of the sovereign: is employed by him in national objects. He has many and powerful motives for preventing these objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and his dignity. The implied license therefore under which such vessel enters a friendly port may reasonably be construed and it seems to the Court ought to be construed as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rights of hospitality. It seems then to the Court to be a principle of public law that national ships of war entering the port of a friendly power open for their reception

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are to be considered as exempted by the consent of that power from its jurisdiction. This conclusion is based on the principles expounded in the extracts from which the Chief Justice summarised at p. 143 of the report:— The preceding reasoning has maintained the proposition that all exemptions from territorial jurisdiction must be derived from the consent of the sovereign of the territory: that this consent may be express or implied; and that when implied its extent must be regulated by the nature of the case and the views under which the parties requiring and conceding it must be supposed to act. The judgment then proceeded to apply the principles stated to the case before the Court and held that the former owners of The Exchange which had been captured by the French and entered the port of Philadelphia under stress of weather could not have a decree to recover the vessel which must be treated as an armed public vessel of the Emperor of the French whose title could not be controverted in the American Court. The extreme doctrine of exterritoriality was not in issue in The Exchange: and neither the principles enunciated by Marshall C.J. nor his application of them appears to support it. In this country the question arose in acute form in 1875 over instructions issued by the Admiralty to commanders of Her Majesty’s ships in respect of the treatment of fugitive slaves. They were attacked by Sir William Vernon Harcourt, then Whewell Professor of International Law at Cambridge and Liberal M.P. for Oxford in two letters to The Times under the title “Historicus.” He there stated, 4th November, 1875, that he had seen with much surprise that the doctrine of the absolute immunity of a public ship and all persons and things on board of it from local jurisdiction and the operation of local law where lying in the territorial waters … has been treated as a doubtful proposition. I had certainly supposed that in the whole range of public law there was no position more firmly established by authority, more universally admitted by Governments, or one which had been more completely accepted in the intercourse of States as unquestioned and unquestionable. The Government appointed a Royal Commission to report on the whole question as to the reception of fugitive slaves, which included such eminent lawyers as Sir Alexander Cockburn C.J., Sir Robert Phillimore, Mr. Montague

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Bernard, Mr. Justice Archibald, Mr. Alfred Thesiger K.C., Sir Henry Maine, Mr. James Fitzjames Stephen K.C., and Mr. Henry C. Rothery, the Registrar in ­Admiralty. The lawyers were not agreed as to the doctrine of international law, and the Commission were able to report without expressing any decided opinion about it. The lawyers, however, wrote memoranda which were annexed to the report. Sir Robert Phillimore, Mr. Bernard and Sir Henry Maine appeared to favour the more extreme doctrine, but admitted it must have qualifications. Sir Alexander Cockburn, in a memorandum which is worthy to be compared with the judgment of Marshall C.J., discussed the whole question of exterritoriality of a public ship of war, quoting the authorities from 1740 onwards and referring to cases of Government action. He quotes Casaregis (1740), “Discursus de Commercio”, Hubner (1759), “De la Saisie des Batiment Neutres,” Lampredi, Pinheiro Ferreira. Azueri, Lord Stowell’s advice to the British Government in 1820 in Brown’s case, Wheaton, Hautefeuille, “Des Droits et des Devoirs des Nations Neutres,” Ortolan, “Diplomatie de la Mer,” Bluntschli Heffter and Calvo. Of these Hubner, Hautefeuille, Ortolan and Calvo support in his view the high doctrine of exterritoriality, Casaregis and Wheaton are non-committal, the others are against the doctrine. After controverting the views which favour complete exterritoriality and pointing out the difficulties and indeed absurdities to which the doctrine leads, he says:— The rule which reason and good sense would as it strikes me prescribe would be that as regards the discipline of a foreign ship and offences committed on board as between members of her crew towards one another matters should be left entirely to the law of the ship, and that should the offender escape to the shore he should if taken be given up to the commander of the ship on demand and should be tried on shore only if no such demand be made. But if a crime be committed on board the ship upon a local subject or if a crime having been committed on shore the criminal gets on board a foreign ship he should be given up to the local authorities. In which way the rule should be settled so important a principle of international law ought not to be permitted to remain in its present unsettled state. In this passage which was cited with approval by the Full Court of Hong Kong in the present case, it should be observed that the Lord Chief Justice assumes that even if a crime be committed on board by one member of the crew on another, should the offender escape to shore and no demand be made for his return, the territorial Court would have jurisdiction. Their Lordships doubt whether when he is dealing with the case of a crime committed on board on a local subject he

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has present to his mind the possibility of the local subject being a member of the crew. And while he says that in the cases put the offender should be given up to the local authorities, he does not say whether, if surrender were refused, judicial process could be directed to the captain of the foreign vessel to secure the custody of the offender by the local authority. In the memorandum of Sir Alexander Cockburn, Mr. Justice Archibald concurred. Mr. Stephen wrote a memorandum to the same effect in the trenchant Stephen style. Mr. Rothery treated the dogmatic assertion of “Historicus” and his authorities to a merciless dissection to which the conclusions of a Whewell Professor can seldom have been subjected. In addition to the authorities already mentioned, reference should be made to the passages cited in the judgment of the Supreme Court in this case from Hall, 8th Ed., 1924, edited by Professor Pearce Higgins, para. 55. There the author states that a public vessel is exempt from the territorial jurisdiction: but that her crew and persons on board of her cannot ignore the laws of the country in which she is lying as if she were a territorial enclave. Exceptions to their obligation exist in the case of acts beginning and ending on board the ship and taking no effect externally to her in all matters in which the economy of the ship or the relations of persons on board to each other are exclusively concerned. The author appends a note:— The case which however would be extremely rare on board a ship of war of a crime committed by a subject of the state within which the vessel is lying against a fellow subject would no doubt be an exception to this. It would be the duty of the captain to surrender the criminal. The other passage is from “Oppenheim”, 5th Ed., 1937, edited by Professor Lauterpacht, vol. i, para. 450. The author adopts the full exterritorial view:— The position of men of war in foreign waters is characterised by the fact that they are called ‘floating portions of the flag State.’ For at the present time there is a customary rule of international law universally ­recognised that the State owning the waters into which foreign men of war enter must treat them in every point as though they were floating portions of their flag State. When, however, he is dealing with the analogous immunities of diplomatic envoys, para. 389, he says “exterritoriality in this as in every other case is a fiction only, for diplomatic envoys are in reality not without but within the territories of the receiving States”. There is a note that “The modern tendency among writers is towards rejecting the fiction of exterritoriality”, a note which is not

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in the second edition, the last prepared by the author, and appears for the first time in the 4th edition edited by Professor McNair. Their Lordships have no hesitation in rejecting the doctrine of exterritoriality expressed in the words of Mr. Oppenheim which regards the public ship “as a floating portion of the flag State”. However the doctrine of exterritoriality is expressed it is a fiction, and legal fictions have a tendency to pass beyond their appointed bounds and to harden into dangerous facts. The truth is that the enunciators of the floating island theory have failed to face very obvious possibilities that make the doctrine quite impracticable when tested by the actualities of life on board ship and ashore. Immunities may well be given in respect of the conduct of members of the crew to one another on board ship. If one member of the crew assault another on board, it would be universally agreed that the local courts would not seek to exercise jurisdiction, and would decline it unless indeed they were invited to exercise it by competent authority of the flag nation. But if a resident in the receiving State visited the public ship and committed theft and returned to shore, is it conceivable that when he was arrested on shore and shore witnesses were necessary to prove dealings with the stolen goods and identify the offender, the local courts would have no jurisdiction? What is the captain of the public ship to do? Can he claim to have the local national surrendered to him? He would have no claim to the witnesses or to compel their testimony in advance or otherwise. He naturally would leave the case to the local courts. But on this hypothesis the crime has been committed on a portion of foreign territory. The local court then has no jurisdiction, and this fiction dismisses the offender untried and untriable. For it is a commonplace that a foreign country cannot give territorial jurisdiction by consent. Similarly in the analogous case of an embassy. Is it possible that the doctrines of international law are so rigid that a local burglar who has broken and entered a foreign embassy and having completed his crime is arrested in his own country cannot be tried in the courts of the country? It is only necessary to test the proposition to assume that the foreign country has assented to the jurisdiction of the local courts. Even so objective exterritoriality would for the reason given above deprive our courts at any rate of any jurisdiction in such a case. The result of any such doctrine would be not to promote the power and dignity of the foreign sovereign but to lower them by allowing injuries committed in his public ships or embassies to go unpunished. On this topic, their Lordships agree with the remarks made by Professor Brierly in “The Law of Nations,” (1928), p. 110. The term ‘exterritoriality’ is commonly used to describe the status of a person or thing physically present in a State’s territory, but wholly or

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­ artly withdrawn from that State’s jurisdiction by a rule of international p law, but for many reasons it is an objectionable term. It introduces a fiction, for the person or thing is in fact within, and not outside, the territory: it implies that jurisdiction and territory always coincide, whereas they do so only generally; and it is misleading because we are tempted to forget that it is only a metaphor and to deduce untrue legal consequences from it as though it were a literal truth. At most it means nothing more than that a person or thing has some immunity from the local jurisdiction; it does not help us to determine the only important question, namely, how far this immunity extends. The true view is that in accordance with the conventions of international law, the territorial sovereign grants to foreign sovereigns and their envoys and public ships and the naval forces carried by such ships certain immunities. Some are well settled: others are uncertain. When the local court is faced with a case where such immunities come into question it has to decide whether in the particular case the immunity exists or not. If it is clear that it does, the Court will of its own initiative give effect to it. The sovereign himself, his envoy, and his property including his public armed ships are not to be subjected to legal process. These immunities are well settled. In relation to the particular s­ ubject of the present dispute, the crew of a warship, it is evident that the immunities ­extend to internal disputes between the crew. Over offences committed on board ship by one member of the crew upon another, the local courts would not exercise jurisdiction. The foreign sovereign could not be supposed to send his vessel abroad if its internal affairs were to be interfered with, and members of the crew withdrawn from its service by local jurisdiction. What are the precise limits of the immunities it is not necessary to consider. Questions have arisen as to the exercise of jurisdiction over members of a foreign crew who commit offences on land. It is not necessary for their Lordships to consider these. In the present case the question arises as to the murder of one officer and the attempted murder of another by a member of the crew. If nothing more arose the Chinese Government could clearly have had jurisdiction over the offence: and though the offender had for reasons of humanity been ­taken to a local hospital, a diplomatic request for his surrender would appear to have been in order. It is difficult to see why the fact that either the victim or the offender or both are local nationals should make a difference if both are members of the crew. But this request was never made. The only request was for extradition, which is based upon treaty and statutory rights, and in the ­circumstances inevitably failed. But if the principles which their Lordships have been discussing are accepted, the immunities which the local courts

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r­ ecognise flow from a waiver by the local sovereign of his full territorial jurisdiction and can themselves be waived. The strongest instances of such waiver are the not infrequent cases where a sovereign has as it is said submitted to the jurisdiction of a foreign court over his rights of property. Here is no question of saying you may treat an offence committed on my territory as committed on yours. Such a statement by a foreign sovereign would count for nothing in our jurisprudence. But a sovereign may say you have waived your jurisdiction in certain cases: but I prefer in this case that you should exercise it. The original jurisdiction in such a case flows afresh. Applying these considerations to the present case, it appears to their Lordships as plain as possible that the Chinese Government, once the extradition proceedings were out of the way, consented to the British Court exercising jurisdiction. It is not only that with full knowledge of the proceedings they made no further claim, but at two different dates they permitted four members of their service to give evidence before the British Court in aid of the prosecution. That they had originally called in the police might not be material if on consideration they decided to claim jurisdiction themselves. But the circumstances stated together with the fact that the material instruments of conviction, the revolver bullets, etc., were left without demur in the hands of the Hong Kong police make it plain that the British Court acted with the full consent of the Chinese Government. It therefore follows that there was no valid objection to the jurisdiction and the appeal fails. There was a further point raised by the Crown as to the possible effect of the Treaty of Tientsin in 1858, in renouncing jurisdiction by Chinese over British subjects who committed crimes in China. The Supreme Court was prepared to decide in favour of the Crown on this point also, but in view of the opinion already expressed on the main point it is unnecessary to decide this and no opinion is expressed upon it. For the above reasons their Lordships will humbly advise His Majesty that this appeal be dismissed.

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Chapter 53

Lord Alfred T. Denning, Judgment, Trendtex Trading Corporation v Central Bank of Nigeria, 1977 Comment by Lady Hazel Fox CMG QC, Honorary Fellow of Somerville, University of Oxford In Trendtex the common law of England and Wales, or rather Tom Denning, its wizard judge, tamed the unruly horse of the sovereign State with the bridle and whip of trade. The Central Bank of Nigeria sought to repudiate a letter of credit for £14 million which it had issued to pay for an excess of concrete, overenthusiastically ordered by “a country which was developing fast,”a namely the State of Nigeria. Was the Central Bank merely a department or organ of the State of Nigeria and hence immune from the English court’s jurisdiction? In January 1976 Donaldson J set aside an injunction freezing the Bank’s assets, declaring that the Bank was “an emanation, an arm, an alter ego, and department of the State of Nigeria”.b In July 1978 the UK Parliament enacted the State Immunity Act, which allowed commercial transactions of a foreign State to be treated as an exception to the rule by which a foreign State was immune from the English court’s jurisdiction. However, two years earlier in October 1976, in the Court of Appeal, Lord Denning, Master of the Rolls, mindful of his motto “Denning for speed”, with Shaw LJ, (Stephenson LJ being restrained by contrary binding precedent), held the commercial transaction exception already applied in the common law. Assisted by the advocacy of Pat Neill QC, despite contrary arguments of Tom Bingham QC, “two of the most persuasive advocates of the day”, the majority in the CA ruled that, even if the Central Bank and the Nigerian State were to be treated as one, the common law recognised no bar of State immunity where the State had descended into the market to trade. Trendtex is a momentous and influential decision. First by reason of the majority ruling that “international law knows no stare decisis” and that “the rules of international law, as existing from time to time, do form part of our English law”.

a Trendtex Trading Corporation v Central of Bank of Nigeria [1977] 1 QB 529, 360. b [1976] 1 WLR 868, 877.

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Second, is “the landmark authority”, as Lord Wilberforce described it, of the unanimous second ground of the Court’s decision. The second ground set out the criteria for the determination of the status of an organisation, which was “under government control and exercised governmental functions”, and was “to be determined by both the law applicable in the country claiming the immunity and in the country where proceedings were brought…”. The Nigerian government’s legislation and amending decrees did not necessarily affect its independent status – “A hobbled horse is still a hobbled horse”.c This CA distinction, in contrast to the “hybrid status” for a State-established entity, (as suggested by the Privy Council in Gecamines,d) was subsequently approved by Wilberforce in his dictum that trading State-controlled entities are “a well-known feature of the modern commercial scene. The distinction between them and their governing State may appear artificial but it is an accepted distinction’ in English law.”e But third, and most strikingly, Trendtex is significant because, as Denning saw it, the ruling of himself and Shaw LJ, that Nigeria’s Bank was liable to pay for the cement that it had ordered, meant that in 1976 the rule of the restrictive immunity of a foreign State applied in English common law. Twenty years earlier, he had set out that rule in his opinion sitting as a Law Lord, in the House of Lords’ decision in Rahimtoola v Nizam of Hyderabadf in a passage advocating “that sovereign States when engaged in commercial transactions should not be entitled to claim immunity.” At the time, this speech earned a public rebuke from the presiding Law Lord, Lord Simonds. Denning was unrepentant. He opposed the rigidity of the rule of precedent, and on his own admission “on many occasions” carried out his own research “derived from books and authorities not cited in the proceedings.” He was accordingly one of the first to welcome Lord Chancellor Gardiner’s announcement of the House of Lords Practice Statement of 26 July 1966 modifying the rule of precedent-stare decisis – “while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so”.g Tom Denning, ennobled by his five year stint as a Law Lord, before returning to be Master of the Rolls for some 20 further years, married my mother when I was 17. To him I owe my legal training both at College and the bar; he enthused me and shaped my whole thinking about the common law.

c Trendtex Trading Corporation v Central of Bank of Nigeria, [1977] 1 QB 529, 375. d La Générale des Carrières et des Mines v FG Hemisphere Associates LLC [2012] UKPC 27. e Playa Larga (Owners of Cargo Lately Laden on Board) Appellants v I Congreso del Partido (Owners) Respondents, Marble Islands (Owners of Cargo Lately Laden on Board) Appellants v Same Respondents [1983] 1 AC 244, 255. f Rahimtoola v Nizam of Hyderabad [1958] AC 379. g AT Denning, The Discipline of Law (Butterworths 1979), 285–7. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

Judgment of Lord A. Denning, Trendtex Trading Corporation v Central of Bank of Nigeria [1977] 2 WLR (Court of Appeal), pp. 356–389. Excerpts: Headnote and Judgment of Lord Denning, pp. 356–357, 359–371. Reproduced with the kind permission of iclr.

Trendtex Trading Corporation v Central Rank of Nigeria

Lord Alfred Denning

Counsel: F.P. Neill, Q.C., M.A. Pickering and D.P. O’Connell (and Christopher French Q.C. and David Hunt on the delivery of judgments) for Trendtex. T.H. Bingham Q.C. and A.G. Guest for the Central Bank. Solicitors: Theodore Goddard & Co.; Hedleys, Botterell. Roche & Temperley. Judges: Lord Denning M.R., Stephenson and Shaw L.JJ. Dates: 1976 Oct. 6, 7, 8, 11, 12, 13, 14, 15, 18; 1977 Jan. 13 Conflict of Laws—Sovereign immunity—Bank—Commercial transaction for supply of cement to Nigerian state—Central bank issuing irrevocable letter of credit—Action to enforce payment—Status of bank—Whether department of state—Whether immunity in respect of commercial transactions exists International Law—Recognition—Effect—Whether incorporated into English law—Whether rule of stare decisis applicable in England—Central Bank of Nigeria’s claim to sovereign immunity The Central Bank of Nigeria was incorporated in 1958 by a Nigerian statute as a central bank modelled on the Bank of England. It issued legal tender and acted as banker and financial adviser to the Government of Nigeria. It also acted as banker for other banks and its affairs were under considerable governmental control. In July 1975 the Central Bank issued an irrevocable letter of credit for over $14,000,000 in favour of the plaintiff, a Swiss company, to pay for 240,000 tons of cement which the plaintiff had sold to an English company. The cement was to be shipped to Nigeria where it was to be used to build government barracks. The plaintiff shipped the cement to Nigeria but there was congestion in the port of discharge and the Central Bank declined to make payments claimed to be due for the price and for demurrage.

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By writ of November 1975 the plaintiff claimed against the Central Bank for payments due in respect of the bank’s breaches and repudiation of the letter of credit. Mocatta J. granted the plaintiff an injunction ordering the bank to retain $13,968,190 within the jurisdiction until the trial of the action or further order. Donaldson J., on the bank’s application, set aside the writ and stayed ­further proceedings in the action on the ground that the bank was a department of the State of Nigeria and was therefore immune from suit. On the plaintiff’s appeal:— Held, allowing the appeal, (1) that the bank, which had been created as a separate legal entity with no clear expression of intent that it should have governmental status, was not an emanation, arm, alter ego or department of the State of Nigeria and was therefore not entitled to immunity from suit (post, pp. 371D, 373H–374A, 375H–376A, 382A, 385B–C). Baccus S.R.L. v. Servicio Nacional Del Trigo [1957] 1 Q.B. 438, C.A. and Mellenger v. New Brunswick Development Corporation [1971] 1 W.L.R. 604, C.A. distinguished. Krajina v. Tass Agency [1949] W.N. 309; [1949] 2 All E.R. 274, C.A. considered. (2) That (per Lord Denning M.R. and Shaw L.J.) even if the bank were part of the Government of Nigeria, since international law now recognised no immunity from suit for a government department in respect of ordinary commercial transactions as distinct from acts of a governmental nature, it was not immune from suit on the plaintiff’s claim in respect of the letter of credit (post, pp. 369D–E, 371E, 386B–D, 389A–B). Per curiam. The modern principle of restrictive sovereign immunity in international law giving no immunity to acts of a commercial nature is consonant with justice, comity and good sense (post, pp. 367H, 380E, 385G–H, 386B–C). Per Lord Denning M.R. and Shaw L.J. International law knows no rule of stare decisis (post, pp. 365H, 388H). Per Stephenson L.J. The Court of Appeal is bound by previous decisions to hold that absolute sovereign immunity is a rule of international law until the House of Lords or Parliament declares to the contrary (post, p. 381G, H). Dicta of Lord Mansfield C.J. in Triquet v. Bath (1764) 3 Burr. 1478, 1481 applied. Reg. v. Keyn (1876) 2 Ex. 63; Thai-Europe Tapioca Service Ltd. v. Government of Pakistan, Directorate of Agricultural Supplies [1975] 1 W.L.R. 1485, C.A. and The Philippine Admiral [1976] 2. W.L.R. 214, P.C. considered. (3) That since the bank was not entitled to immunity from suit the injunction preserving funds within the jurisdiction to satisfy the plaintiff’s claim should be continued (post, pp. 371G, 382E–F, 389C). Decision of Donaldson J. [1976] 1 W.L.R. 868; [1976] 3 All E.R. 437 reversed. […] Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

Trendtex Trading Corporation v Central BANK OF NIGERIA

1393

Appeal from Donaldson J. On November 4, 1975, the plaintiff, Trendtex Trading Corporation, issued a writ against the Central Bank of Nigeria, the defendant, in respect of payments due to the plaintiff from the bank under a letter of credit dated July 24, 1975, relating to a contract of the same date for the purchase of cement from the plaintiff by Pan-African Export and Import Co. Ltd. The plaintiff claimed that by reason of the defendant’s breaches and repudiation of the letter of credit (which repudiation the plaintiff had accepted) the plaintiff had suffered loss and damage. On November 4, Mocatta J. ordered that the plaintiff should have leave to serve a concurrent writ of summons against the bank and to serve notice thereof on the bank at its registered office in Nigeria and he granted the plaintiff an injunction that the bank should retain $13,968,190, or its equivalent in sterling, within the jurisdiction against the plaintiff’s claim until the hearing of a summons returnable on November 11, 1975. On December 9, 1975, following an order on November 11, Mocatta J. ordered that the injunction be continued until the trial of the action or further order. On March 26, 1976, on the bank’s application by summons for the writ to be set aside on the ground that it was a department of the Federal Republic of Nigeria and was thereby immune from suit, Donaldson J. [1976] 1 W.L.R. 868, 877, held that the bank was “an emanation, an arm, an alter ego and a department of the State of Nigeria” and ordered (p. 879) that “the injunctions be discharged, the proceedings set aside and all further proceedings … stayed.” The plaintiff appealed on the grounds that (1) the judge erred in fact or law in holding (a) that the bank was entitled to sovereign immunity; (b) that the bank was an emanation, an arm, an alter ego, and a department of the State of Nigeria; (c) that it was established or sufficiently established that all funds held or deposited in the United Kingdom in the name of the bank were funds held or deposited for and on behalf of the Nigerian state; (d) that the bank was not estopped from reliance upon a plea of sovereign immunity by the terms of its letter of April 28, 1975, to Credit Suisse of Lausanne; and (e) that the principles of sovereign immunity to be applied were not affected by community law. (2) The judge erred in fact or law in failing to hold (a) that the acts and functions of the bank which were relied on for the purposes of the plaintiff’s claim in the proceedings should not be accorded sovereign immunity; (b) that the funds of the bank within the jurisdiction which were subject to the injunction were not funds lodged or available for the payment of its creditors; and (c) that the bank was not entitled to the benefit of sovereign immunity in the proceedings; and (3) that it would be contended that the plea of sovereign immunity by the bank should be rejected for the additional reasons: (i) that on the facts the bank waived any right to rely

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thereon; and (ii) the commercial nature of the transactions which were relied upon for the purposes of the plaintiff’s claim in the proceedings. The facts are stated in the judgment of Lord Denning M.R. Cur. adv. vult. […] January 13, 1977. The following judgments were read. Lord Denning M.R. In July 1975 the port of Lagos/Apapa was congested with shipping. All the berths were occupied. There were 300 to 400 ships outside waiting. More ships were arriving daily. Most of them were carrying cement. All of those waiting were on demurrage. It was because the government departments had ordered far too much. No doubt Nigeria needed cement. It was a country which was developing fast. They were building houses, factories, barracks, and so forth. All of the work required cement. Previously the average rate of import through all ports had been two million tons of cement a year. Yet early in 1975 the government departments then in charge in Nigeria had ordered 10 times that quantity, 20 million tons, to be delivered over the next 12 months. The ports were utterly unable to cope with it. Even for all commodities together, the discharging capacity at Lagos/Apapa did not amount to two million tons a year. Yet here was 10 times that amount arriving – of cement alone – leaving nothing for other vital imports of food and materials. The crisis was one of the reasons for a change of government in Nigeria. On July 29, 1975, a new military administration took over the reins. One of its first tasks was to find out the root cause of the congestion. It found that the previous administration had made contracts for cement which were “unorthodox, imprudent or inequitable.” Not only were the quantities far too large, but there were no proper safeguards in regard to payment of the price or demurrage. As a first step the new military administration issued a notice suspending the import of cement into Nigeria. It told suppliers not to load any more cement for the time being. It warned them that it would not pay demurrage unless it was certified as proper. In addition, the new administration launched a “crash programme” to increase the rate of discharge from the waiting vessels. It set up a committee to negotiate fresh terms with the suppliers. The object was to reduce the quantities on order and to spread the deliveries over a longer time. Most of the suppliers have appreciated the difficulties and fresh terms have been arranged. The steps thus taken have proved successful. The congestion of vessels has been cleared. But there is an aftermath. It is a large number of legal proceedings. This case is one of them. It is a claim on a letter of credit issued by the Central Bank of Nigeria, the defendant. We are not concerned with the rights or wrongs of the claim: but only with a preliminary point. The Central Bank of Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

Trendtex Trading Corporation v Central BANK OF NIGERIA

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Nigeria claim that they cannot be sued in this country on the letter of credit: because they are entitled to sovereign immunity. The plaintiff, Trendtex ­Trading Corporation, disputes this on the ground that this is an ordinary commercial transaction to which sovereign immunity does not apply. So I must describe the nature of the transaction. The story starts with a contract which was made on April 25, 1975, before the crisis broke. The Ministry of Defence in Nigeria agreed to buy 240,000 tons of Portland cement from an English company, the Pan-African Export and Import Co. Ltd. The price was U.S. $60.00 per ton c.i.f. Lagos/Apapa ports. Shipment at the rate of 20,000 tons a month, plus or minus 10 per cent., all to be delivered not later than August 15, 1976. In pursuance of that contract the Ministry of Defence instructed the Central Bank of Nigeria to open a letter of credit in favour of Pan-African to the extent of U.S. $14,400,000 to be valid for payment against shipping documents conformable to the contract of purchase. The Central Bank of Nigeria duly issued a letter of credit in favour of PanAfrican. It was numbered 83035. It was issued in London through their correspondent bank, the Midland Bank Ltd., 60, Gracechurch Street, London. It was transferable abroad once only and was subject to the uniform customs rules of the International Chamber of Commerce relating to documentary credits (1962 revision). It covered not only the price of $14, 400,000, but also demurrage of $4,100 a day. It is important to notice that the Midland Bank Ltd. were only correspondents acting as agents for the Central Bank of Nigeria. The Midland Bank Ltd. did not confirm the credit so as to make themselves liable on it. They only advised the seller of its terms. On the credit itself, they said: We are requested to advise you of the terms of a credit which is irrevocable on the part of our principals but does not bear our confirmation.

The Responsibility of the Central Bank of Nigeria

The point about confirmation had been expressly raised by suppliers: and the Central Bank of Nigeria had said that confirmation was unnecessary. They wrote an important letter on April 28, 1975, to the suppliers’ bank in these words: I write to inform you that no confirmation is required for credits opened by us direct with our correspondent banks, of which the Midland Bank Ltd., London, is one. We are irrevocably committed to honour our e­ ngagements

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under this credit. Moreover, our correspondent, the Midland Bank Ltd., has our authority to pay the beneficiary the full value of this letter of credit through your bank on presentation of relevant shipping documents to them in London, provided the documents are in order. (See our letter of authority dated March 11, 1975, to our correspondent bank attached.) As a government bank and a prime bank, no supplier should have any cause to doubt our ability to pay our bills promptly. The question of our correspondents confirming our letters of credit should, therefore, not arise.

The Transfer to Trendtex

In order to fulfil their contract to supply the cement, Pan-African entered into a contract with the Trendtex Trading Corporation of Zurich, Switzerland. The contract was dated July 24, 1975. By it Pan-African agreed to buy 240,000 tons of Portland cement from Trendtex. The price was U.S.$59.50 per ton, c.i.f. Lagos/ Apapa, thus showing a small profit of U.S.$00.50 a ton to Pan-African. All other terms were to be as expressed in the Central Bank of Nigeria letter of credit (Midland Bank advice no. 83035) as transferred to the seller by the buyer. On the same day, July 24, 1975, the credit was transferred to Trendtex. It was done by means of a new irrevocable letter of credit issued by the Central Bank of Nigeria through its correspondent the Midland Bank, London. It was numbered (83035A) and was for U.S.$14,280,000, the price of the cement and again demurrage at U.S.$4,100 a day. In order to fulfil this contract to supply cement, Trendtex agreed to buy 240,000 tons of cement from Alsen-Breitenburg of Hamburg, and established a letter of credit issued by a Swiss bank for the price.

The Shipments

During August and September 1975, Trendtex shipped four consignments of cement under their contract with Pan-African. In August they shipped 9,000 tons on The Gempita and 13,000 tons on The Sugar Importer. In September 10,600 tons on The Newport and 9,000 tons on The Constantinos. For those shipments Trendtex presented shipping documents to the Midland Bank Ltd., London, and were paid the price. In October 1975, Trendtex made two further shipments: 10,560 tons on The Leodamas and 10,900 on The Dinos Methanitis. They presented the shipping documents for these last two to the Midland Bank but were not paid the price. When each of those six vessels arrived off Lagos, the port was congested with hundreds of vessels loaded with cement, all Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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­ aiting to discharge. Each waited its turn. The Gempita came on demurrage on w September 5. The Sugar Importer on September 26. The Newport on October 25. The Constantinos on October 26. The Leodamas on October 31, and The Dinos Methanitis on November 20, 1971. Trendtex claimed payment of this demurrage under the letter of credit. They presented documents, all in order, to the Midland Bank, London, in support of their claim for demurrage. But the Midland Bank declined to pay. This was because of a telex message sent on September 24, from the Midland Bank to the bankers of Trendtex: Please inform Trendtex Trading Corporation Ltd., Zurich, beneficiaries of our account 83035A that we have received the following authenticated message from our principals, Central Bank of Nigeria, Lagos, reading as follows: ‘Please stop demurrage payments against specified documents unless such documents have been certified for payment by the Central Bank of Nigeria.’ Please request beneficiaries to be guided, accordingly. Trendtex also wanted payment of the price for the October shipments but the bank refused to pay. This was because of a message on October 8, 1975, from the Central Bank of Nigeria to the Midland Bank and relayed to Trendtex: The Nigerian Federal Military Government has directed that in view of our port situation, shipping companies must give two months’ notice to the Nigerian Ports Authority before sailing. In view of this, you are requested not to pay against documents presented in respect of letters of credit we have opened unless such documents are accompanied by certificates confirming that clearance has been obtained for the ships to sail to Nigeria. Thus, when documents are presented, no payment should be made until we confirm to you that the ship has obtained necessary clearance to sail to Nigeria. On October 8, 1975, representatives of Trendtex went to Lagos and made representations to the Nigerian government. They were told that no payment whatever would be made on the last two vessels: and demurrage would only be paid on the first four vessels if certified by the Central Bank of Nigeria for payment.

The Action

On November 4, 1975, Trendtex issued a writ in the High Court of Justice in London against the Central Bank of Nigeria. They claimed demurrage on all six vessels. They claimed the price of the cement shipped on the last two vessels. They claimed damages for non-acceptance of the balance of 175,340 tons still Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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outstanding (out of the 240,000 tons ordered). They claimed damages on account of their obligations to their suppliers, Alsen-Breitenburg. The Central Bank of Nigeria applied to set aside the writ on the ground that the Central Bank of Nigeria is a department of the Federal Republic of Nigeria and, therefore, immune from suit. On March 26, 1976, Donaldson J. [1976] 1 W.L.R. 868 set aside the writ. Trendtex appeal to this court. Trendtex also applied for an order that the bank do retain $14 million in London to meet the claim. Mocatta J. made that order. It is effective because the bank have that sum to their credit with the Midland Bank. The money is being retained here pending the appeal. One thing I would mention at the outset. There was a string of contracts for the purchase of cement – by the Ministry of Defence at Lagos from the PanAfrican company in London – by the Pan-African company from Trendtex – and by Trendtex from Alsen-Breitenburg. Those contracts are altogether distinct from the contracts contained in the letter of credits. The contract sued upon in this action is the contract contained in the letter of credit issued by the Central Bank of Nigeria in favour of Pan-African and transferred to Trendtex. Trendtex can sue upon that contract as a distinct contract completely separate from the contract of sale. In the provisions of Uniform Customs issued by the International Chamber of Commerce it is said: Credits, by their nature, are separate transactions from the sales or other contracts on which they may be based and banks are in no way concerned with or bound by such contracts. See Gutteridge and Megrah, The Law of Bankers’ Commercial Credits, 5th ed. (1976), p. 205 (and p. 59). Another point I would mention is that many people must have suspicions about the validity of the contracts made by the previous administration. There must have been some mismanagement somewhere to lead to this pile-up of vessels off Lagos. This may give rise in some of these claims to defences on the merits. But no considerations of that kind arise at this stage. The only question now is whether the action should be allowed to proceed at all. Is it to be stayed or struck out on the ground of sovereign immunity? The case has been presented to us by both sides in a manner to which I would pay sincere tribute. The documents have been prepared admirably with all the relevant material and authorities collected, photographed and arranged for convenient study. The arguments have been put forward convincingly by two of the most able and persuasive advocates of the day. We cannot hope to do full justice to them, but we are much indebted to them.

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The General Picture

The doctrine of sovereign immunity is based on international law. It is one of the rules of international law that a sovereign state should not be impleaded in the courts of another sovereign state against its will. Like all rules of international law, this rule is said to arise out of the consensus of the civilised nations of the world. All nations agree upon it. So it is part of the law of nations. To my mind this notion of a consensus is a fiction. The nations are not in the least agreed upon the doctrine of sovereign immunity. The courts of every country differ in their application of it. Some grant absolute immunity. Others grant limited immunity, with each defining the limits differently. There is no consensus whatever. Yet this does not mean that there is no rule of international law upon the subject. It only means that we differ as to what that rule is. Each country delimits for itself the bounds of sovereign immunity. Each creates for itself the exceptions from it. It is, I think, for the courts of this country to define the rule as best they can, seeking guidance from the decisions of the courts of other countries, from the jurists who have studied the problem, from treaties and conventions and, above all, defining the rule in terms which are consonant with justice rather than adverse to it. That is what the Privy Council did in The Philippine Admiral [1976] 2 W.L.R. 214: see especially at pp. 232–233; and we may properly do the same.

The Two Schools of Thought

A fundamental question arises for decision. What is the place of international law in our English law? One school of thought holds to the doctrine of incorporation. It says that the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament. The other school of thought holds to the doctrine of transformation. It says that the rules of international law are not to be considered as part of English law except in so far as they have been already adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long established custom. The difference is vital when you are faced with a change in the rules of international law. Under the doctrine of incorporation, when the rules of international law change, our English law changes with them. But, under the doctrine of transformation, the English law does not change. It is bound by precedent. It is bound down to those rules of international law which have been accepted and adopted in the past. It cannot develop as international law develops.

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(i) The doctrine of incorporation. The doctrine of incorporation goes back to 1737 in Buvot v. Barbut (1736) 3 Burr. 1481; 4 Burr. 2016; sub nom. Barbuit’s Case in Chancery (1737) Forr. 280, in which Lord Talbot L.C. (who was highly esteemed) made a declaration which was taken down by young William Murray (who was of counsel in the case) and adopted by him in 1764 when he was Lord Mansfield C.J. in Triquet v. Bath (1764) 3 Burr. 1478: Lord Talbot declared a clear opinion – ‘That the law of nations in its full extent was part of the law of England, … that the law of nations was lo be collected from the practice of different nations and the authority of writers.’ Accordingly, he argued and determined from such instances, and the authorities of Grotius, Barbeyrac, Binkershoek, Wiquefort, etc., there being no English writer of eminence on the subject. That doctrine was accepted, not only by Lord Mansfield himself, but also by Sir William Blackstone, and other great names, too numerous to mention. In 1853 Lord Lyndhurst in the House of Lords, with the concurrence of all his colleagues there, declared that … “the law of nations, according to the decision of our greatest judges, is part of the law of England”: see Sir George Cornewall Lewis’s book, Lewis on Foreign Jurisdiction (1859), pp. 66–67. (ii) The doctrine of transformation. The doctrine of transformation only goes  back to 1876 in the judgment of Cockburn C.J. in Reg. v. Keyn (1876), 202–203: For writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it…. Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorise the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing, we should be unjustifiably usurping the province of the legislature. To this I may add the saying of Lord Atkin in Chung Chi Cheung v. The King [1939] A.C. 160, 167–168: So far, at any rate, as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law.

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And I myself accepted this without question in Reg. v. Secretary of State for the Home Department, Ex parte Thakrar [1974] 1 Q.B. 684, 701. (iii) Which is correct? As between these two schools of thought, I now believe that the doctrine of incorporation is correct. Otherwise I do not see that our courts could ever recognise a change in the rules of international law. It is certain that international law does change. I would use of international law the words which Galileo used of the earth: “But it does move.” International law does change: and the courts have applied the changes without the aid of any Act of Parliament. Thus, when the rules of international law were changed (by the force of public opinion) so as to condemn slavery, the English courts were justified in applying the modern rules of international law: see the “Statement of Opinion” by Sir R. Phillimore, Mr. M. Bernard and Sir H.S. Maine appended to the Report of the Royal Commission on Fugitive Slaves (1876), p. XXV, paras. 4 and 5. Again, the extent of territorial waters varies from time to time according to the rule of international law current at the time, and the courts will apply it accordingly: see Reg. v. Kent Justices, Ex parte Lye [1967] 2 Q.B. 153, 173, 189. The bounds of sovereign immunity have changed greatly in the last 30 years. The changes have been recognised in many countries, and the courts – of our country and of theirs – have given effect to them, without any legislation for the purpose. Notably in the decision of the Privy Council in The Philippine Admiral [1976] 2 W.L.R. 214. (iv) Conclusion on this point. Seeing that the rules of international law have changed – and do change – and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from lime to time, do form part of our English law. It follows, too, that a decision of this court – as to what was the ruling of international law 50 or 60 years ago – is not binding on this court today. International law knows no rule of stare decisis. If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change – and apply the change in our English law – without waiting for the House of Lords to do it.

Has There been a Change?

(i) The doctrine of absolute immunity. A century ago no sovereign state engaged in commercial activities. It kept to the traditional functions of a sovereign – to maintain law and order – to conduct foreign affairs – and to see to the defence of the country. It was in those days that England – with most other

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countries – adopted the rule of absolute immunity. It was adopted because it was considered to be the rule of international law at that time. In The Parlement Belge (1880) 5 P.D. 197, 205, Brett L.J. said: The exemption of the person of every sovereign from adverse suit is admitted to be a part of the law of nations … [so also] of some property… The universal agreement which has made these propositions part of the law of nations has been an implied agreement. The rule was stated by Dicey in his work on Conflict of Laws, and repeated religiously by the judges thereafter. The classic restatement of it was made by Lord Atkin in Compania Naviera Vascongado v. S.S. Cristina (The Cristina) [1938] A.C. 485, 490: The courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages. That doctrine was repeated by Viscount Simonds in Rahimtoola v. Nizam of ­Hyderabad [1958] A.C. 379, 394. He treated it as if it was a rule of English law, fixed and immutable, not to be departed from, even by the House of Lords itself. (ii) The doctrine of restrictive immunity. In the last 50 years there has been a complete transformation in the functions of a sovereign state. Nearly every country now engages in commercial activities. It has its departments of state – or creates its own legal entities – which go into the market places of the world. They charter ships. They buy commodities. They issue letters of credit. This transformation has changed the rules of international law relating to sovereign immunity. Many countries have now departed from the rule of absolute immunity. So many have departed from it that it can no longer be considered a rule of international law. It has been replaced by a doctrine of restrictive immunity. This doctrine gives immunity to acts of a governmental nature, described in Latin as jure imperii, but no immunity to acts of a commercial nature, jure gestionis. In 1951 Sir Hersch Lauterpacht showed that, even at that date, many European countries had abandoned the doctrine of absolute immunity and adopted that of restrictive immunity – see his important article, “The Problem of Jurisdictional Immunities of Foreign States” in The British Year Book of International Law, 1951, vol. 28, pp. 220–272. Since that date there have been important conversions to the same view. Great impetus was given to it in 1952 in the

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famous “Tate letter” in the United States. Many countries have now adopted it. We have been given a valuable collection of recent decisions in which the courts of Belgium, Holland, the German Federal Republic, the United States of America and others have abandoned absolute immunity and granted only restrictive immunity. Most authoritative of all is the opinion of the Supreme Court of the United States in Alfred Dunhill of London Inc. v. Republic of Cuba. It was delivered on May 24, 1976, by White J. with the concurrence of the Chief Justice, Powell J. and Rehnquist J.: Although it had other views in years gone by, in 1952, as evidenced by … (the Tate letter) … the United States abandoned the absolute theory of sovereign immunity and embraced the restrictive view under which immunity in our courts should be granted only with respect to causes of action arising out of a foreign state’s public or governmental actions and not with respect to those arising out of its commercial or proprietary actions. This has been the official policy of our government since that time, as the attached letter of November 25, 1975, confirms … ‘Such adjudications are consistent with international law on sovereign immunity’. To this I would add the European Convention on State Immunity (Basle, 1972), article 4, paragraph 1, which has been signed by most of the European countries.

Are We to Follow Likewise?

Seeing this great cloud of witnesses, I would ask: is there not here sufficient evidence to show that the rule of international law has changed? What more is needed? Are we to wait until every other country save England recognises the change? Ought we not to act now? Whenever a change is made, some one some time has to make the first move. One country alone may start the process. Others may follow. At first a trickle, then a stream, last a flood. England should not be left behind on the bank. “… We must take the current when it serves, or lose our ventures.”: Julius Caesar, Act IV, sc. III. In one respect already the Privy Council have abandoned the absolute theory and accepted the restrictive theory. It is in respect of actions in rem: see The Philippine Admiral [1976] 2 W.L.R. 214, 232. But, unfortunately, the Privy Council seem to have thought that the absolute theory still applied to actions in personam. They said, at p. 233:

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…it is no doubt open to the House of Lords to decide otherwise but it may fairly be said to be at the least unlikely that it would do so. That is a dismal forecast. It is out of line with the good sense shown in the rest of the judgment of the Privy Council. This is how they put it, at pp. 232–233: …the trend of opinion in the world outside the Commonwealth since the last war has been increasingly against the application of the doctrine of sovereign immunity to ordinary trading transactions… Their Lordships themselves think that it is wrong that it should be so applied… Thinking as they do that the restrictive theory is more consonant with justice they do not think that they should be deterred from applying it. Such reasoning is of general application. It covers actions in personam. In those action, too, the restrictive theory is more consonant with justice. So it should be applied to them. It should not be retained as an indefensible anomaly. I see no reason why we should wait for the House of Lords to make the change. After all, we are not considering here the rules of English law on which the House has the final say. We are considering the rules of international law. We can and should state our view as to those rules and apply them as we think best, leaving it to the House to reverse us if we are wrong.

The Modern Rule

What then is the modem rule of international law? I tried to state it nearly 20 years ago in Rahimtoola v. Nizam of Hyderabad [1958] A.C. 379, 422: If the dispute brings into question, for instance, the legislative or international transactions of a foreign government, or the policy of its executive, the court should grant immunity if asked to do so, because it does offend the dignity of a foreign sovereign to have the merits of such a dispute canvassed in the domestic courts of another country: but, if the dispute concerns, for instance, the commercial transactions of a foreign government (whether carried on by its own departments or agencies or by setting up separate legal entities), and it arises properly within the territorial jurisdiction of our courts, there is no ground for granting immunity. I recently re-stated it in Thai-Europe Tapioca Service Ltd. v. Government of Pakistan, Directorate of Agricultural Supplies [1975] 1 W.L.R. 1485, 1491:

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…a foreign sovereign has no immunity when it enters into a commercial transaction with a trader here and a dispute arises which is properly within the territorial jurisdiction of our courts. If a foreign government incorporates a legal entity which buys commodities on the London market; or if it has a state department which charters ships on the Baltic Exchange: it thereby enters into the market places of the world: and international comity requires that it should abide by the rules of the market. Since those cases, there have been two very recent cases on the subject: The Philippine Admiral [1976] 2 W.L.R. 214 in November 1975, in the Privy Council; and Alfred Dunhill of London Inc. v. Republic of Cuba on May 24, 1976, in the Supreme Court of the United States. There is a Bill also before the House of Representatives of the United States reported on September 9, 1976 (now passed into law, Foreign Sovereign Immunities Act of 1976) which is very much on the lines I suggested. All this confirms me in the view which I have expressed.

The Law of the European Community

Even if there were no settled rule of international law on the subject, there should at least be one settled rule for the nine countries of the European Economic Community. The Treaty of Rome is part of the law of England. One of the objectives contained in article 3 (h) [see Cmnd. 5179] is to ensure “the approximation of the laws of member states to the extent required for the proper functioning of the common market.” It is one of the functions of the Commission and the Council to issue directives to achieve this approximation: see articles 100, 101 and 102. I regard the word “approximation” in the treaty to mean “harmonisation.” In view of those provisions, it seems to me that it is the duty of each of the member states – and of the national courts in those states – to bring the law as to sovereign immunity into harmony throughout the community. The rules applied by each member state on the subject should be the same as the rules applied by the others. There is only one acceptable way of doing it. That is by adopting the doctrine of restrictive immunity on the lines I have suggested.

The Application to this Case

So I turn to see whether the transaction here was such as to attract sovereign immunity, or not. It was suggested that the original contracts for cement were

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made by the Ministry of Defence of Nigeria: and that the cement was for the building of barracks for the army. On this account it was said that the contracts of purchase were acts of a governmental nature, jure imperii, and not of a commercial nature, jure gestionis. They were like a contract of purchase of boots for the army. But I do not think this should affect the question of immunity. If a government department goes into the market places of the world and buys boots or cement – as a commercial transaction – that government ­department should be subject to all the rules of the market place. The seller is not concerned with the purpose to which the purchaser intends to put the goods. There is another answer. Trendtex here are not suing on the contracts of purchase. They are claiming on the letter of credit which is an entirely separate contract. It was a straightforward commercial transaction. The letter of credit was issued in London through a London bank in the ordinary course of commercial dealings. It is completely within the territorial jurisdiction of our courts. I do not think it is open to the Government of Nigeria to claim sovereign immunity in respect of it.

The German Decision

It is interesting to find that the German courts have had to deal with a precisely similar point. In February 1975, the Ministry of Defence in Nigeria agreed to purchase 240,000 tons of cement from a firm in Liechtenstein. The Central Bank of Nigeria issued letters of credit through its correspondent the Deutsche Bank in Frankfurt. The goods were shipped. The price paid. The vessel arrived at Lagos but, owing to the congestion, had to wait. The holders of the letters of credit claimed demurrage. They levied distress on the assets of the Central Bank of Nigeria then in Germany. The Central Bank claimed the release of these assets on the ground of sovereign immunity. On December 2, 1975, the Commercial Court of Frankfurt in Y.M.N. Establishment v. Central Bank of Nigeria rejected the plea. Their reasons were as follows: According to the decisions of the Federal Constitutional Court of 1962 and 1963 … a foreign state may be granted immunity from German jurisdiction only in respect of its sovereign activity (acta jure imperii) but not in respect of its non-sovereign activity (acta jure gestionis), because no general rule of public international law exists under which the domestic jurisdiction for actions against a foreign state in relation to its nonsovereign activity is precluded.

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We are told that that decision is subject to appeal. So be it. But it affords strong support for the view I have expressed, seeing that the German court decided in just the same way for just the same reasons.

Alter Ego or Organ of Government

If we are still bound to apply the doctrine of absolute immunity, there is, even so, an important question arising upon it. The doctrine grants immunity to a foreign government or its department of state, or any body which can be regarded as an “alter ego or organ” of the government. But how are we to discover whether a body is an “alter ego or organ” of the government? The cases on this subject are difficult to follow, even in this country: let alone those in other countries. And yet, we have to find what is the rule of international law for all of them. It is particularly difficult because different countries have different ways of arranging internal affairs. In some countries the government departments conduct all their business through their own offices – even ordinary commercial dealings – without setting up separate corporations or legal entities. In other countries they set up separate corporations or legal entities which are under the complete control of the department, but which enter into commercial transactions, buying and selling goods, owning and chartering ships, just like any ordinary trading concern. This difference in internal arrangements ought not to affect the availability of immunity in international law. A foreign department of state ought not to lose its immunity simply because it conducts some of its activities by means of a separate legal entity. It was so held by this court in Baccus S.R.L. v. Servicio Nacional Del Trigo [1957] 1 Q.B. 438. Another problem arises because of the internal laws of many countries which grant immunities and privileges to its own organisations. Some organisations can sue, or be sued, in their courts. Others can not. In England we have had for centuries special immunities and privileges for “the Crown” – a phrase which has been held to cover many governmental departments and many emanations of government departments – but not nationalised commercial undertakings: see Tamlin v. Hannaford [1950] 1 K.B. 18. The phrase “the Crown” is so elastic that under the Crown Proceedings Act 1947 the Treasury have issued a list of government departments covered by the Act. It includes even the Forestry Commission. It cannot be right that international law should grant or refuse absolute immunity according to the immunities granted internally. I would pot on one side, therefore, our cases about the privileges, prerogatives and exceptions of the “Crown.”

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It is often said that a certificate by the ambassador, saying whether or not an organisation is a department of state, is of much weight, though not decisive: see Krajina v. Tass Agency [1949] 2 All E.R. 274. But even this is not to my mind satisfactory. What is the test which the ambassador is to apply? In the absence of any test, an ambassador may apply the test of control, asking himself: is the organisation under the control of a minister of state? On such a test, he might certify any nationalised undertaking to be a department of state. He might certify that a press agency or an agricultural corporation (which carried out ordinary commercial dealings) was a department of state, simply because it was under the complete control of the government. I confess that I can think of no satisfactory test except that of looking to the functions and control of the organisation. I do not think that it should depend on the foreign law alone. I would look to all the evidence to see whether the organisation was under government control and exercised governmental functions. That is the way in which we looked at it in Mellenger v. New Brunswick Development Corporation [1971] 1 W.L.R. 604, when I said, at p. 609: The corporation … has never pursued any ordinary trade or commerce. All that it has done is to promote the industrial development of the province in a way that a government department does. With these considerations in mind, I turn to our problem.

Central Bank of Nigeria

At the hearing we were taken through the Act of 1958 under which the Central Bank of Nigeria was established, and of the amendments to it by later decrees. All the relevant provisions were closely examined: and we had the benefit of expert evidence on affidavit which was most helpful. The upshot of it all may be summarised as follows. (i) The Central Bank of Nigeria is a central bank modelled on the Bank of England. (ii) It has governmental functions in that it issues legal tender; it safeguards the international value of the currency; and it acts as banker and financial adviser to the government. (ii) Its affairs are under a great deal of government control in that the Federal Executive Council may overrule the board on monetary and banking policy and on internal administrative policy. (iv) It acts as banker for other banks in Nigeria and abroad, and maintains accounts with other banks. It acts as banker for the states within the federation: but has few, if any, private customers.

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In these circumstances I have found it difficult to decide whether or no the Central Bank of Nigeria should be considered in international law a department of the Federation of Nigeria, even though it is a separate legal entity. But, on the whole, I do not think it should be. This conclusion would be enough to decide the case, but I find it so difficult that I prefer to rest my decision on the ground that there is no immunity in respect of commercial transactions, even for a government department. Waiver or Estoppel



It was submitted that, by the letter of April 28, 1975, the Central Bank of Nigeria waived any claim to sovereign immunity or is estopped from claiming it. But the point was not pressed in this court because of previous decisions, such as Kahan v. Pakistan Federation [1951] 2 K.B. 1003. It was reserved for the House of Lords. Injunction



It was said that the money standing to the credit in the books of the Midland Bank was money belonging to the Federation of Nigeria: and that it was not subject to seizure or to an injunction. This point seems to me to depend on precisely the same grounds as those considered earlier. If the Central Bank is entitled to immunity from being sued, so also can the funds be immune from being seized. Otherwise not. Conclusion



In my opinion the plea of sovereign immunity, does not avail the Central Bank of Nigeria. I would allow the appeal, accordingly. […]

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Chapter 54

State Immunity Act 1978 (UK) and Hazel Fox, The Law of State Immunity, 2002 Comment by Professor Philippa Webb, King’s College London The name “Fox” has become synonymous with the law of State immunity. The work of Lady Hazel Fox CMG QC has not just been cited, but also relied upon, by Judges in English and Commonwealth courts, by counsel, by academics and law students. Her writing reflects her distinguished career as a leading barrister at 4–5 Gray’s Inn Square, Director of the British Institute of International and Comparative Law from (1982–1989) and Fellow and Tutor-in-Law at Somerville College, Oxford University. In some ways she writes for practitioners, reporting the latest developments in courts and parliaments around the world, placing them in context and focusing her laser-like analysis on practical issues of procedure and enforcement. But she also writes for academics, infusing her words with theoretical insights into the functions, phases and challenges of State immunity. I have observed that several courts and counsel have taken a footnote from her book starting with sed quaere to develop the law in new directions. Her passion for this area of the law is infectious and inspiring. As we worked on the Third Edition (2013) and the Third Revised and Updated Paperback Edition (2015), I had to run to keep up with her. I remember being delighted to draw her attention to a French decision on enforcement that had been issued the day before. Hazel responded in a matter-of-fact way, “I have already read it, absorbed it, and updated the footnotes accordingly”. This extract from the first edition of The Law of State Immunity (2002) is fascinating in that it demonstrates how much the law has changed, but how some themes remain constant. At the time of writing, Hazel and I are putting the finishing touches to the proofs of the 2015 edition. Despite important developments – including the adoption of the 2004 UN Convention on the Jurisdictional Immunities of States and their Property (UNCSI) – Hazel’s 2002 assessment of the value of the plea of State immunity is still relevant.a

a H Fox, The Law of State Immunity (1st edn, OUP 2002) 549.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004386242_055

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The Law of State Immunity has always paid attention to the interpretation and application of the UK State Immunity Act 1978 (SIA). In the First Edition it formed a sub-part of Chapter 5. By the Second and Third Editions, it has been given its own chapter. Although it was based on the European Convention on State Immunity 1972, the SIA has proved to be the more successful instrument. It has served as the model for many jurisdictions, including Singapore, Pakistan and South Africa. UNCSI closely followed the SIA in its structure and formulation of exceptions and the UK provided strong support for the negotiation and drafting of the Convention. It has been a source of disappointment, I think, for Hazel that the UK has not taken the logical step of ratifying the UNCSI. She has pointed to the multiple problems of construction of the SIA.b Once again, there are treasures in the footnotes. The UK Court of Appeal recently held,c citing The Law of State Immunity, that Sections 4(2)(b) and 16(1) (a) SIA were incompatible with the Human Rights Act and infringed Article 47 of the Charter on the Fundamental Rights of the European Union. b H Fox and P Webb, The Law of State Immunity (3rd edn, OUP 2013), 171, fn 28. c Benkharbouche & Anor v Embassy of the Republic of Sudan (Rev 1) [2015] EWCA Civ 33, para 65.

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UK Parliament, State Immunity Act 1978 (1978 Chapter 33). Contains Parliamentary information licensed under the Open Parliament Licence v3.0.

State Immunity Act 1978 CHAPTER 33 Arrangement of Sections part i Proceedings in United Kingdom by or against other States Section

1

Immunity from jurisdiction

General immunity from jurisdiction.

Exceptions from immunity Submission to jurisdiction. Commercial transactions and contracts to be performed in United Kingdom. 4 Contracts of employment. 5 Personal injuries and damage to property. 6 Ownership, possession and use of property. 7 Patents, trade-marks etc. 8 Membership of bodies corporate etc. 9 Arbitrations. 10 Ships used for commercial purposes. 11 Value added tax, customs duties etc. 2 3

12 13

Procedure Service of process and judgments in default of appearance. Other procedural privileges.

14 15 16 17

Supplementary provisions States entitled to immunities and privileges. Restriction and extension of immunities and privileges. Excluded matters. Interpretation of Part I.

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part ii Judgments against United Kingdom in Convention States Section

18 19

Recognition of judgments against United Kingdom. Exceptions to recognition. part iii Miscellaneous and Supplementary

20 21 22 23

Heads of State. Evidence by certificate. General interpretation. Short title, repeals, commencement and extent.

...

State Immunity Act 1978 1978 Chapter 33 An Act to make new provision with respect to proceedings in the United Kingdom by or against other States; to provide for the effect of judgments given against the United Kingdom in the courts of States parties to the European Convention on State Immunity; to make new provision with respect to the ­immunities and privileges of heads of State; and for connected purposes. [20th July 1978] Be it enacted by the Queen’s most Excellent Majesty, by and with the a­ dvice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— part i Proceedings in United Kingdom by or against other States Immunity from jurisdiction 1.—(1) A State is immune from the jurisdiction of the courts of the General United Kingdom except as provided in the following ­provisions immunity from of this Part of this Act.

jurisdiction.

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(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question. Exceptions from immunity 2.—(1) A State is not immune as respects proceedings in respect Submission to of which it has submitted to the jurisdiction of the courts of the jurisdiction. United Kingdom. (2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be governed by the law of the United Kingdom is not to be regarded as a submission. (3) A State is deemed to have submitted— (a) if it has instituted the proceedings; or (b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings. (4) Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of— (a) claiming immunity; or (b) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it. (5) Subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable. (6) A submission in respect of any proceedings extends to any appeal but not to any counter-claim unless it arises out of the same legal relationship or facts as the claim. (7) The head of a State’s diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on ­behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to submit on its behalf in respect of proceedings arising out of the contract.

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Commercial 3.—(1) A State is not immune as respects proceedings relating Part i transactions to— and contracts (a) a commercial transaction entered into by the State; or to be (b) an obligation of the State which by virtue of a contract performed (whether a commercial transaction or not) falls to be in United Kingdom. performed wholly or partly in the United Kingdom.

(2) This section does not apply if the parties to the dispute are States or have otherwise agreed in writing; and subsection (1) (b) above does not apply if the contract (not being a commercial transaction) was made in the territory of the State concerned and the obligation in question is governed by its administrative law. (3) In this section “commercial transaction” means— (a) any contract for the supply of goods or services; (b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and (c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State ­enters or in which it engages otherwise than in the exercise of sovereign authority; but neither paragraph of subsection (1) above applies to a contract of employment between a State and an individual.

4.—(1) A State is not immune as respects proceedings relating to Contracts of a contract of employment between the State and an individual employment. where the contract was made in the United Kingdom or the work is to be wholly or partly performed there. (2) Subject to subsections (3) and (4) below, this section does not apply if— (a) at the time when the proceedings are brought the individual is a national of the State concerned; or (b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or (c) the parties to the contract have otherwise agreed in writing. (3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, subsection (2)(a) and (b) above do not exclude the Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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a­ pplication of this section unless the individual was, at the time when the contract was made, habitually resident in that State. (4) Subsection (2)(c) above does not exclude the application of this section where the law of the United Kingdom requires the proceedings to be brought before a court of the United Kingdom. (5) In subsection (2)(b) above “national of the United Kingdom” means a citizen of the United Kingdom and Colonies, a person who is a British subject by virtue of Section 2, 13 or 16 of the British Nationality Act 1948 or by virtue of the British Nation- 1948 c. 56. ality Act 1965, a British protected person within the meaning of 1965 c. 34. the said Act of 1948 or a citizen of Southern Rhodesia. (6) In this section “proceedings relating to a contract of employment” includes proceedings between the parties to such a ­contract in respect of any statutory rights or duties to which they are entitled or subject as employer or employee.

Personal injuries and damage to property.

5. A State is not immune as respects proceedings in respect of— (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom.

Ownership, possession and use of property.

6.—(1) A State is not immune as respects proceedings relating to— (a) any interest of the State in, or its possession or use of, immovable property in the United Kingdom; or (b) any obligation of the State arising out of its interest in, or its possession or use of, any such property. (2) A State is not immune as respects proceedings relating to any interest of the State in movable or immovable property, being an interest arising by way of succession, gift or bona vacantia. (3) The fact that a State has or claims an interest in any property shall not preclude any court from exercising in respect of it any jurisdiction relating to the estates of deceased persons or persons of unsound mind or to insolvency, the winding up of companies or the administration of trusts. (4) A court may entertain proceedings against a person other than a State notwithstanding that the proceedings relate to property— (a) which is in the possession or control of a State; or (b) in which a State claims an interest, if the State would not have been immune had the proceedings been brought against it or, in a case within paragraph (b) above, Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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if the claim is neither admitted nor supported by prima facie Part I evidence. Patents, trade-marks etc.

7. A State is not immune as respects proceedings relating to— (a) any patent, trade-mark, design or plant breeders’ rights belonging to the State and registered or protected in the United Kingdom or for which the State has applied in the United Kingdom; (b) an alleged infringement by the State in the United Kingdom of any patent, trade-mark, design, plant breeders’ rights or copyright; or (c) the right to use a trade or business name in the United Kingdom. 8.—(1) A State is not immune as respects proceedings relating to Membership its ­membership of a body corporate, an unincorporated body or of bodies corporate etc. a partnership which— (a) has members other than States; and (b) is incorporated or constituted under the law of the United Kingdom or is controlled from or has its principal place of business in the United Kingdom, being proceedings arising between the State and the body or its other members or, as the case may be, between the State and the other partners. (2) This section does not apply if provision to the contrary has been made by an agreement in writing between the parties to the dispute or by the constitution or other instrument establishing or regulating the body or partnership in question. 9.—(1) Where a State has agreed in writing to submit a dispute Arbitrations. which has a­ risen, or may arise, to arbitration, the State is not immune as respects ­proceedings in the courts of the United Kingdom which relate to the arbitration. (2) This section has effect subject to any contrary provision in the arbitration agreement and does not apply to any arbitration agreement beween States. Ships 10.—(1) This section applies to— used for (a) Admiralty proceedings; and (b) proceedings on any claim which could be made the commercial purposes. subject of Admiralty proceedings. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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(2) A State is not immune as respects— (a) an action in rem against a ship belonging to that State; or (b) an action in personam for enforcing a claim in connection with such a ship, if, at the time when the cause of action arose, the ship was in use or intended for use for commercial purposes. (3) Where an action in rem is brought against a ship belonging to a State for enforcing a claim in connection with another ship belonging to that State, subsection (2)(a) above does not apply as respects the first-mentioned ship unless, at the time when the cause of action relating to the other ship arose, both ships were in use or intended for use for commercial purposes. (4) A State is not immune as respects— (a) an action in rem against a cargo belonging to that State if both the cargo and the ship carrying it were, at the time when the cause of action arose, in use or intended for use for commercial purposes; or (b) an action in personam for enforcing a claim in connection with such a cargo if the ship carrying it was then in use or intended for use as aforesaid. (5) In the foregoing provisions references to a ship or cargo belonging to a State include references to a ship or cargo in its possession or control or in which it claims an interest; and, subject to subsection (4) above, subsection (2) above applies to property other than a ship as it applies to a ship. (6) Sections 3 to 5 above do not apply to proceedings of the kind described in subsection (1) above if the State in question is a party to the Brussels Convention and the claim relates to the operation of a ship owned or operated by that State, the carriage of cargo or passengers on any such ship or the carriage of cargo owned by that State on any other ship.

Value added tax, customs duties etc.

11. A State is not immune as respects proceedings relating to its liability for— (a) value added tax, any duty of customs or excise or any agricultural levy; or (b) rates in respect of premises occupied by it for commercial purposes.

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1420 Service of process and judgments in default of appearance.

STATE IMMUNITY ACT 1978

Procedure 12.—(1) Any writ or other document required to be served for Part i instituting proceedings against a State shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry. (2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or document is received as aforesaid. (3) A State which appears in proceedings cannot thereafter object that subsection (1) above has not been complied with in the case of those proceedings. (4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) above has been complied with and that the time for entering an appearance as extended by subsection (2) above has expired. (5) A copy of any judgment given against a State in default of appearance shall be transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at the Ministry. (6) Subsection (1) above does not prevent the service of a writ or other document in any manner to which the State has agreed and subsections (2) and (4) above do not apply where service is effected in any such manner. (7) This section shall not be construed as applying to proceedings against a State by way of counter-claim or to an action in rem; and subsection (1) above shall not be construed as affecting any rules of court whereby leave is required for the service of process outside the jurisdiction. 13.—(1) No penalty by way of committal or fine shall be imposed Other in respect of any failure or refusal by or on behalf of a State to procedural disclose or produce any document or other information for the privileges. purposes of proceedings to which it is a party.

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(2) Subject to subsections (3) and (4) below— (a) relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and (b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale. (3) Subsection (2) above does not prevent the giving of any relief or the issue of any process with the written consent of the State concerned; and any such consent (which may be contained in a prior agreement) may be expressed so as to apply to a limited extent or generally; but a provision merely submitting to the jurisdiction of the courts is not to be regarded as a consent for the purposes of this subsection. (4) Subsection (2)(b) above does not prevent the issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes; but, in a case not falling within Section 10 above, this subsection applies to property of a State party to the European Convention on State Immunity only if— (a) the process is for enforcing a judgment which is final within the meaning of section 18(1)(b) below and the State has made a declaration under Article 24 of the Convention; or (b) the process is for enforcing an arbitration award. (5) The head of a State’s diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to give on behalf of the State any such consent as is mentioned in subsection (3) above and, for the purposes of subsection (4) above, his certificate to the effect that any property is not in use or intended for use by or on behalf of the State for commercial purposes shall be ­accepted as sufficient evidence of that fact unless the contrary is proved. (6) In the application of this section to Scotland— (a) the reference to “injunction” shall be construed as a reference to “interdict”;

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(b) for paragraph (b) of subsection (2) above there shall Part 1 be substituted the following paragraph— “(b) the property of a State shall not be subject to any diligence for enforcing a judgment or order of a court or a decree arbitral or, in an action in rem, to arrestment or sale.”; and (c) any reference to “process” shall be construed as a reference to “diligence”, any reference to “the issue of any process” as a reference to “the doing of diligence” and the reference in subsection (4)(b) above to “an arbitration award” as a reference to “a decree arbitral”. Supplementary provisions States 14.—(1) The immunities and privileges conferred by this Part of entitled to this Act apply to any foreign or commonwealth State other than immunities the United Kingdom; and references to a State include references and to— privileges. (a) the sovereign or other head of that State in his public capacity; (b) the government of that State; and (c) any department of that government, but not to any entity (hereafter referred to as a “separate entity”) which is distinct from the executive organs of the government of the State and capable of suing or being sued. (2) A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if— (a) the proceedings relate to anything done by it in the exercise of sovereign authority; and (b) the circumstances are such that a State (or, in the case of proceedings to which Section 10 above applies, a State which is not a party to the Brussels Convention) would have been so immune. (3) If a separate entity (not being a State’s central bank or other monetary authority) submits to the jurisdiction in respect of procedings in the case of which it is entitled to immunity by virtue of subsection (2) above, subsections (1) to (4) of Section 13 above shall apply to it in respect of those proceedings as if references to a State were references to that entity. (4) Property of a State’s central bank or other monetary authority shall not be regarded for the purposes of subsection (4)

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of Section 13 above as in use or intended for use for commercial purposes; and where any such bank or authority is a separate entity subsections (1) to (3) of that section shall apply to it as if references to a State were references to the bank or authority. (5) Section 12 above applies to proceedings against the constituent territories of a federal State; and Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State. (6) Where the provisions of this Part of this Act do not apply to a constituent territory by virtue of any such Order subsections (2) and (3) above shall apply to it as if it were a separate entity. 15.—(1) If it appears to Her Majesty that the immunities and privileges conferred by this Part of this Act in relation to any State— (a) exceed those accorded by the law of that State in relation to the United Kingdom; or (b) are less than those required by any treaty, convention or other international agreement to which that State and the United Kingdom are parties, Her Majesty may by Order in Council provide for restricting or, as the case may be, extending those immunities and privileges to such extent as appears to Her Majesty to be appropriate. (2) Any statutory instrument containing an Order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Restriction and extension of immunities and privileges.

16.—(1) This Part of this Act does not affect any immunity or Excluded privilege conferred by the Diplomatic Privileges Act 1964 or the matters. 1964 c. 81. Consular Relations Act 1968; and— 1968 c. 18. (a) Section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968; (b) Section 6(1) above does not apply to proceedings concerning a State’s title to or its possession of property used for the purposes of a diplomatic mission.

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1965 c. 57.

Interpretation of Part i.

1964 c. 29.

STATE IMMUNITY ACT 1978

(2) This Part of this Act does not apply to proceedings relating Part i to anything done by or in relation to the armed forces of a State while present in the United Kingdom and, in particular, has effect subject to the Visiting Forces Act 1952. 1952 c. 67. (3) This Part of this Act does not apply to proceedings to which Section 17(6) of the Nuclear Installations Act 1965 applies. (4) This Part of this Act does not apply to criminal proceedings. (5) This Part of this Act does not apply to any proceedings relating to taxation other than those mentioned in Section 11 above. 17.—(1) In this Part of this Act— “the Brussels Convention” means the International Convention for the Unification of Certain Rules Concerning the Immunity of State-owned Ships signed in Brussels on 10th April 1926; “commercial purposes” means purposes of such transactions or activities as are mentioned in Section 3(3) above; “ship” includes hovercraft. (2) In Sections 2(2) and 13(3) above references to an agreement include references to a treaty, convention or other international agreement. (3) For the purposes of Sections 3 to 8 above the territory of the United Kingdom shall be deemed to include any dependent territory in respect of which the United Kingdom is a party to the European Convention on State Immunity. (4) In Sections 3(1), 4(1), 5 and 16(2) above references to the United Kingdom include references to its territorial waters and any area designated under Section 1(7) of the Continental Shelf Act 1964. (5) In relation to Scotland in this Part of this Act “action in rem” means such an action only in relation to Admiralty proceedings. part ii Judgments against United Kingdom in Convention States

Recognition of judgments against United Kingdom.

18.—(1) This section applies to any judgment given against the United Kingdom by a court in another State party to the European Convention on State Immunity, being a judgment—

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(a) given in proceedings in which the United Kingdom was not entitled to immunity by virtue of provisions corresponding to those of Sections 2 to 11 above; and (b) which is final, that is to say, which is not or is no longer subject to appeal or, if given in default of appearance, liable to be set aside. (2) Subject to Section 19 below, a judgment to which this section applies shall be recognised in any court in the United Kingdom as conclusive between the parties thereto in all proceedings founded on the same cause of action and may be relied on by way of defence or counter-claim in such proceedings. (3) Subsection (2) above (but not Section 19 below) shall have effect also in relation to any settlement entered into by the United Kingdom before a court in another State party to the Convention which under the law of that State is treated as equivalent to a judgment. (4) In this section references to a court in a State party to the Convention include references to a court in any territory in respect of which it is a party. 19.—(1) A court need not give effect to Section 18 above in the Exceptions to recognition. case of a judgment— (a) if to do so would be manifestly contrary to public policy or if any party to the proceedings in which the judgment was given had no adequate opportunity to present his case; or (b) if the judgment was given without provisions corresponding to those of Section 12 above having been complied with and the United Kingdom has not entered an appearance or applied to have the judgment set aside. (2) A court need not give effect to Section 18 above in the case of a judgment— (a) if proceedings between the same parties, based on the same facts and having the same purpose— (i) are pending before a court in the United Kingdom and were the first to be instituted; or (ii) are pending before a court in another State party to the Convention, were the first to be instituted and may result in a judgment to which that section will apply; or

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(b) if the result of the judgment is inconsistent with the Part ii result of another judgment given in proceedings between the same parties and— (i) the other judgment is by a court in the United Kingdom and either those proceedings were the first to be instituted or the judgment of that court was given before the first-mentioned judgment became final within the meaning of subsection (1)(b) of Section 18 above; or (ii) the other judgment is by a court in another State party to the Convention and that section has already become applicable to it. (3) Where the judgment was given against the United Kingdom in proceedings in respect of which the United Kingdom was not entitled to immunity by virtue of a provision corresponding to Section 6(2) above, a court need not give effect to Section 18 above in respect of the judgment if the court that gave the judgment— (a) would not have had jurisdiction in the matter if it had applied rules of jurisdiction corresponding to those applicable to such matters in the United Kingdom; or (b) applied a law other than that indicated by the United Kingdom rules of private international law and would have reached a different conclusion if it had applied the law so indicated. (4) In subsection (2) above references to a court in the United Kingdom include references to a court in any dependent territory in respect of which the United Kingdom is a party to the Convention, and references to a court in another State party to the Convention include references to a court in any territory in respect of which it is a party. part iii: Miscellaneous and Supplementary Heads of State. 1964 c. 81.

20.—(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to— (a) a sovereign or other head of State;

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1971 c. 77.

(b) members of his family forming part of his household; and (c) his private servants, as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants. (2) The immunities and privileges conferred by virtue of subsection (1)(a) and (b) above shall not be subject to the restrictions by reference to nationality or residence mentioned in Article 37(1) or 38 in Schedule 1 to the said Act of 1964. (3) Subject to any direction to the contrary by the Secretary of State, a person on whom immunities and privileges are conferred by virtue of subsection (1) above shall be entitled to the exemption conferred by Section 8(3) of the Immigration Act 1971. (4) Except as respects value added tax and duties of customs or excise, this section does not affect any question whether a person is exempt from, or immune as respects proceedings relating to, taxation. (5) This section applies to the sovereign or other head of any State on which immunities and privileges are conferred by Part I of this Act and is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity. 21. A certificate by or on behalf of the Secretary of State shall be Evidence by certificate. conclusive evidence on any question— (a) whether any country is a State for the purposes of Part I of this Act, whether any territory is a constituent territory of a federal State for those purposes or as to the person or persons to be regarded for those purposes as the head or government of a State; (b) whether a State is a party to the Brussels Convention mentioned in Part I of this Act; (c) whether a State is a party to the European Convention on State Immunity, whether it has made a declaration under Article 24 of that Convention or as to the territories in respect of which the United Kingdom or any other State is a party; (d) whether, and if so when, a document has been served or received as mentioned in Section 12(1) or (5) above.

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22.—(1) In this Act “court” includes any tribunal or body exercis- Part iii ing judicial functions; and references to the courts or law of the General United Kingdom include references to the courts or law of any interpretation. part of the United Kingdom. (2) In this Act references to entry of appearance and judgments in default of appearance include references to any corresponding procedures. (3) In this Act “the European Convention on State Immunity” means the Convention of that name signed in Basle on 16th May 1972. (4) In this Act “dependent territory” means— (a) any of the Channel Islands; (b) the Isle of Man; (c) any colony other than one for whose external relations a country other than the United Kingdom is responsible; or (d) any country or territory outside Her Majesty’s dominions in which Her Majesty has jurisdiction in right of the government of the United Kingdom. (5) Any power conferred by this Act to make an Order in Council includes power to vary or revoke a previous Order. Short title, repeals, commence­ ment and extent. 1938 c. 63. 1940 c. 42.

23.—(1) This Act may be cited as the State Immunity Act 1978. (2) Section 13 of the Administration of Justice (Miscellaneous Provisions) Act 1938 and Section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (which become unnecessary in consequence of Part I of this Act) are hereby repealed. (3) Subject to subsection (4) below, Parts I and II of this Act do not apply to proceedings in respect of matters that occurred before the date of the coming into force of this Act and, in particular— (a) Sections 2(2) and 13(3) do not apply to any prior agreement, and (b) Sections 3, 4 and 9 do not apply to any transaction, contract or arbitration agreement, entered into before that date. (4) Section 12 above applies to any proceedings instituted after the coming into force of this Act.

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(5) This Act shall come into force on such date as may be specified by an order made by the Lord Chancellor by statutory instrument. (6) This Act extends to Northern Ireland. (7) Her Majesty may by Order in Council extend any of the provisions of this Act, with or without modification, to any dependent territory.

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H. Fox, The Law of State Immunity (1st edn, Oxford University Press 2002). Excerpts: ‘Introduction’, pp. 1–7, Conclusion’, pp. 541–55. Reproduced with the kind permission of Oxford University Press.

The Law of State Immunity Hazel Fox Introduction The law of State immunity relates to the grant in conformity with international law of immunities to States to enable them to carry out their public functions effectively and to the representatives of States to secure the orderly conduct of international relations. Although modern international law does not require the courts of one State to refrain from deciding a case merely because a foreign State is an unwilling defendant, there remains today a hard core of situations where a foreign State is entitled to immunity. When disputes arise a State or a State agency may prevent their adjudication in another State’s court by pleading State immunity. From a purely practical point of view it is therefore important to know when and how a plea of State immunity may be made and to what type of dispute it applies. At this point the complexities of the subject begin and the topic becomes one of international law. The Plea vas One of Mixed International and Municipal Law Immunity is a plea relating to the adjudicative and enforcement jurisdiction of national courts which bars the municipal court of one State from adjudicating the disputes of another State. As such it is a doctrine of international law which is applied in accordance with municipal law in national courts. Its requirements are governed by international law but the individual municipal law of the State before whose courts a claim against another State is made ­determines the precise extent and manner of application. Consequently the law of State immunity is a mix of international and municipal law. This interaction complicates the law relating to State immunity and creates considerable tensions. The Functions Which State Immunity Serves State immunity serves three main functions: (i) as a method to ensure a ‘stand-off’ between States where private parties seek to enlist the assistance of the courts of one State to determine their claims made against another State; (ii) as a method of distinguishing between matters relating to public administration of a State and private law claims; Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

(iii) as a method of allocating jurisdiction between States relating to the ­prosecution of crimes and the settlement of claims by private litigants ­relating to State activities, in the absence of any international agreement  by which to resolve conflicting claims to the exercise of such jurisdiction. The Three Different Phases of State Immunity The law of State immunity is not static. Two recent decisions, the judgment on the merits of the International Court of Justice in The Arrest Warrant of 2000 upholding the immunity from criminal jurisdiction of an incumbent Minister for Foreign Affairs and the ruling of the European Court of Human Rights in Al-Adsani v. UK [ECHR] Application 35753/97, Judgment of 21 November 2001 that the dismissal of proceedings by reason of a plea of State immunity did not constitute a violation of a litigants’s right to access to a court, testify to the topicality of the subject. The last hundred years have seen enormous changes in the doctrine and practice, and indeed the doctrine continues to undergo change responding to the changing priorities of society. State immunity has to date demonstrated three different models or phases of development: the absolute doctrine, where the relationship is between two States, the foreign State and the State of the forum; the restrictive doctrine, where the individual is introduced as a third party in the proceedings; and the post-modern phase, where immunity may be rendered unnecessary or detached from the State. An orderly analysis of the complexities, differences, and rationale for these three phases in the development of state immunity is essential for a proper understanding of the core issues. Many jurisdictions have today adopted a restrictive doctrine of immunity but there is no one authoritative version of that doctrine. A regional convention, the 1972 European Convention on State Immunity (ECSI), and the statutory enactments by the United States in the 1976 Foreign Sovereign Immunities Act (FSIA) and by the UK in the 1978 State Immunity Act (SIA) provide three versions. Each of these versions recognizes exceptions to immunity, varying in particulars, but on the basis that the acts complained of in the proceedings relate to commercial acts, or that the acts are ones which a private person may perform, or the acts have a close connection with the jurisdiction of the forum State. Other jurisdictions without legislation apply similar criteria to confer immunity on public acts jure imperii and to remove immunity from adjudication for private acts jure gestionis. There has been a steady trend, with the current main exception of the People’s Republic of China, towards all States accepting a restrictive doctrine. But by reason of the varying and changing functions

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of the State which one national regime categorizes as public and another as private, there is no uniformity of application of the restrictive doctrine. The Sources of the Law of State Immunity The absence of a multilateral instrument setting out the rules of State immunity has been a long-standing obstacle to uniform observance. The law is consequently based on international custom and, in the absence of decisions by international tribunals, the evidence for that custom has to be found by ­examination and comparison of the practices of States in their national legal systems. Such a process requires considerable exposition of the law in leading jurisdictions, and for that reason Part II below contains surveys of English and of US law. Once located within a particular jurisdiction, such State practice has to be compared and analysed by reference to the practice of other countries. Part III below contains such an analysis distilling the international law position as to immunity from adjudication under the heads of waiver, exceptions to State immunity, the definition of the State, and as to immunity from execution. An opportunity exists at the present time to remedy the absence of an ­authoritative text because the United Nations in the forthcoming session in 2002 or 2003 is likely to reach a decision on whether to recommend the adoption of a multilateral convention or guidelines on the subject. Over time a number of projects for codification of the law have been undertaken, chief among these being the Harvard Project under the editorship of Philip Jessup, the resolutions of the Institut de Droit International, and the ILA Draft Montreal Convention. At the present time the Sixth Committee of the UN General Assembly has before it the 1991 Draft Articles prepared by the International Law Commission, a special agency of United Nations, which may provide a suitable basis for such a decision. The writing on State immunity is prolific. At one time or another any international lawyer worth his or her salt has seen fit to express views on some aspect of the law of State immunity, often to castigate some national court for preserving immunity. This book builds on the work of these numerous jurists, the invaluable historical accounts of Sucharitkul and Sinclair, the report of the Australian Law Commission preparatory to the introduction of an Australian statute on State immunity, monographs such as those of Badr, Pingel-­Lenuzza, and Cosnard, and the writings of Crawford, Dessedjian, Lalive, ­Synvet, Schreuer, Trooboff, and many others. One of the objectives of this work is to provide a guide to all relevant material. To comprehend all this material under one cover may seem an over-ambitious enterprise, but in my view it is an essential task, to set aside the fragmentary partial criticisms and work towards the achievement of a general balanced view of the present state of the

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law and to put government lawyers and policy-makers in a position to make appropriate decisions as to its future direction. The Third Postmodern Phase of State Immunity Those decisions are likely to relate to the third postmodern phase of the law of State immunity, a stage which is imminent if it has not already begun. Its contours are not fully discoverable, but certain conflicting trends can be perceived. In one direction, the enhanced status of the individual presses for the lifting of immunity from all claims arising from conduct of the State; in another direction, the pooling of national powers in non-State entities calls for their protection to enable their proper deployment in the public interest. In reviewing those trends the nature of the plea of State immunity must be understood as a bar against one State from sitting in judgement on another State; it excludes one State from even addressing, let alone deciding or enforcing, a claim brought in its local courts against another State.

Challenges to the Retention of a Plea of State Immunity for Acts in Exercise of Sovereign Immunity The justification for such exclusion is under challenge, both as regards the present restrictive doctrine and more generally in relation to the structure of international law. Theorists deconstruct the plea of State immunity either as a discourse device (Chapter 3 below) or as an aspect of State sovereignty for which there is no room in the changing order of an international community pooling its resources (Chapter 2 below). The exercise of jurisdiction, whether exclusive, concurrent, or competing, has to date largely escaped any systematic regulation by international law. The current movement is towards bases of jurisdiction other than territoriality, and for prosecution of international crimes there is growing acceptance of more tenuous links with the court exercising criminal jurisdiction, such as passive personality of the ­victims, or the presence of the offender seeking refuge on which the obligation to prosecute, aut dedere aut prosequi in many modern international conventions is founded. With increased communications and more closely integrated communities—phenomena loosely covered by the term ‘globalization’—the allocation and regulation of the exercise of jurisdiction by States will become essential, and in that process the continued validity of the plea of State immunity based on discrete units of territorial control will undergo review (Chapter 3 below). The general acceptance of a restrictive doctrine has led to courts focusing more on the act than the actor as the determinant of issues of immunity, and in consequence the personal nature of the plea as based on the status as a State of the party to the proceedings is under challenge. It is asserted that

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the related doctrines of act of state and non-justiciability which also observe a policy of restraint towards the acts of foreign States cover the same ground as immunity based on subject-matter. Chapter 11 below addresses this issue and demonstrates that the personal nature of the plea produces different consequences from these related doctrines and as a sorting and holding device has procedural aspects which are not lightly to be discarded. Although the restrictive doctrine of immunity is widely accepted, the ongoing debates in the UNGA Sixth Legal Committee and its working party on the five problem areas indicate the difficulties of reaching a consensus. One of the problem areas is the criterion for the exceptions to immunity from adjudication. The latest proposal of the ILC to abandon all attempt to define a criterion for the distinction between immune and non-immune acts and to revert to the formula ‘commercial act or transaction’ reveals the stalemate of the discussion (Chapter 7 below). Another problem is the definition of a State for purposes of immunity, particularly in relation to State agencies: should the court give primacy to the definition of a State according to forum law or to that of the law of the State seeking immunity, and in either case should the form of authority or the function performable or actually performed be the determinant? (Chapter 8 below).

Challenges to the Retention of State Immunity for Acts Contrary to International Law Attack is also now launched at the opposite end of the spectrum: not in regard to the private law acts of the State which are performable by an individual, but in respect of State acts solely performable by a State but forbidden by international law. May national courts of one State as ‘the agents for the international community’ disregard the immunities of another State and take jurisdiction to award compensation for such acts? Or does the plea remain good so that only some independent international tribunal or authority may certify the defendant State’s act as unlawful? This issue has surfaced with particular force in relation to torture, war crimes, and acts contrary to international humanitarian law committed by a State (Chapter 13 below). In addition, potential plaintiffs are queuing up who are anxious to pursue States for money laundering, drug dealing, and even environmental pollution (Chapter 7 below). The interface between the exercise of universal jurisdiction and immunity extended to officials acting in the course of official functions presents another challenge. It has in part been explored by the International Court of Justice in its disposal of the complaint of the Democratic Republic of the Congo against Belgium for exorbitant assertion of jurisdiction and infringement of immunity;

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that complaint arose out of the issue and international circulation of an arrest warrant against one Yerodia Ndombasi when serving as the Congo’s Minister for Foreign Affairs by a Belgian judge for grave breaches of the Geneva Conventions and Protocols and crimes against humanity by making speeches inciting racial hatred said to have resulted in several hundreds of deaths.1 Belgium’s assertion of legislative and judicial universal jurisdiction in absentia over crimes against humanity committed by foreign nationals outside Belgian territory is shown in the separate Opinions given in that case not yet to have received general endorsement in State practice. But the protests of individual Judges in their separate Opinions about the contrived manner in which the International Court ‘side-stepped’ giving a view on this issue indicates the present controversial and unsettled state of the law. The co-ordination of the exercise of jurisdiction by international and national tribunals may well, as Pinochet promises, see a rejection of immunity by national courts for acts of individual officials where international courts permit investigation of liability (Chapter 12 below). Whether this will have a knock-on effect on the immunity of States in civil proceedings for reparation for the commission of international crimes by their officials is uncertain. A recent decision in the European Court of Human Rights has declared such a development to be contrary to the present structure of international law, and that human rights conventions must be construed in harmony with general principles of international law including the doctrine of State immunity.2 Immunity from Execution One intractable aspect of immunity persists in respect of immunity from enforcement. Actual seizure of State assets without consent remains a rarity; ­immunity from enforcement continues to be largely absolute save in respect of property which with the foreign State’s consent is in use or intended use for commercial purposes. Chapter 9 below endeavours to provide the reader with a full account of the present position; separate sections of that Chapter cover execution under the European Convention, English law, US law, a full examination of the categories of State property regarded as immune, and the current restriction of State property as available for execution which is not in commercial use or connected with the subject-matter of the proceedings. The debates of the ILC and the working group set up by UNGA Sixth Commit1 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo/Belgium) Judgment of 14 February 2002. For an account of the Court’s refusal of provisional measures in its order of 8 December 2000 see Wickremasinghe, ICLQ 50 (2001) 670. 2 Adsani v. UK, Application 35753/97, Judgment of 21 November 2001.

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tee are summarized, the outstanding problem areas discussed, and a final section ­reviews possible ways forward. The Chapter on execution demonstrates that further restriction of State immunity does not merely turn on expanding exceptions to or abandoning completely immunity from adjudication. This Chapter highlights the continued political significance of a plea of immunity and the unsatisfactory ‘half a loaf’ position of restricting immunity from adjudication without parallel restriction of immunity from enforcement. State Immunity as a Case Study of the Structure of International Law In concluding this Introduction, it should also be noted that, quite apart from the elucidation of the applicable rules of State immunity, the doctrine provides a valuable case study of the general condition of the international community and in particular the interaction of international law and municipal law, and of the formation of customary international law from municipal law sources. Ultimately the extent to which international law requires, and municipal legislations and courts afford, immunity to a foreign State as a defendant before another State’s courts depends on the underlying structure of the international community and the degree to which one State without the consent of another may adjudicate the disputes of the latter. A study of State immunity directs attention to the central issues of the international legal system. [...]

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Conclusions and Future Models

We have now come to the stage of the book where it is necessary to simplify and state one or two central findings and conclusions. Indeed, if there is to be any taking forward of the ILC Draft Articles such a simplification must be achieved. I therefore propose in this final Chapter to present a brief balance sheet of the credits and debits of the plea of state immunity, then to review its usefulness as a doctrine in the future as regards the development of international law and in particular the reception to be given to the 1991 ILC Draft Articles. It is not easy. As the preceding Chapters have demonstrated, the inherent tendency of the topic is to lose itself, on one hand in the complexities of interrelationships between the business interests and the municipal systems which give legal efficacy to their commitments, and on the other in the workings of government and its officials. The law of State immunity is not applied uniformly. The countries which have enacted legislation on State immunity have to some extent become self-absorbed in the construction problems that the articulation in statutory form of a rule produces. In France and other civil law countries the absence of legislation has left the development of the law to the courts, possibly as a deliberate policy to permit flexibility, and even selective and partial application when the political interests of the country require it. In many other countries, as the various questionnaires relating to the ILC Draft Articles have shown, there is little or no law on State immunity; only very rarely does a question arise. Indeed, a principal aim of the book has been to set out the whole picture, to endeavour, however imperfectly, to describe the whole area over which State immunity operates. It is important to do so in order that those who have to advise and represent governments in the forthcoming decisions in the United Nations concerning the ILC Draft have a full understanding of the subject. They need to be aware of the lack of common shared ground. How the Issues have been Presented in this Book In the introductory section of this book immunity was shown, along with other doctrines, principally those of act of state and non-justiciability, to be a ­technique by which claims made by private parties against a State other than the forum State were diverted from national courts or given only partial effect. In the absolute phase of the doctrine of State immunity the diversion away from the forum State’s courts to other courts, or to a diplomatic settlement of the private party’s claims, or indeed away from any method of settlement was almost total. The examination in Part II of English law prior to the enactment of the State Immunity Act 1978 illustrates the operation of this absolute Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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d­ octrine in a busy commercial jurisdiction. In the restrictive phase this diversion of claims away from national court adjudication was considerably reduced by the introduction to the immunity bar of exceptions for claims relating to commercial transactions entered into by the foreign State or for tangible damage resulting from acts performed within the forum State. Chapter 5 above on English law under the 1978 Act and on US law provide ample illustration of this restrictive phase. The examination of the concepts of the State and of jurisdiction in Part I showed that both the notion of which core functions of a State require protection in municipal courts and the extent of the jurisdiction exercisable in relation to those functions have been and continue to be in a process of change. The reasons for granting immunity from such jurisdiction over claims made against a foreign State were examined. Dealing with the rationale from the viewpoint of the State, international law was shown to place constraints on the forum State’s jurisdiction by reason of the independence and equality of States. These rather general terms of independence and equality were seen in the context of State immunity to give rise to a principle of ‘no adjudication without consent’. This condition by which no State is subject without its consent to compulsory adjudication of its disputes was shown to require States to give a ‘breathing space’ to each other, to refrain from the adjudication of claims which under international law were properly to be dealt with directly between States, or to be litigated first or exclusively in the municipal courts of the State against whom the claims were being made. The restraint shown by municipal courts in supervising the exercise of the public powers by its own forum State provides by analogy some guide to the degree of restraint that might be shown in entertaining proceedings against a foreign State. Viewing the question from the position of the private party, pressures for change were shown to exist by reason of principles of non-discrimination between the treatment in the forum State’s courts of claims of its nationals as opposed to those of aliens; of access to a court of law for the determination of civil rights of a private person; and in particular, for the violation of the human right to life and the prohibition of torture where no effective judicial remedy was available save in the national court of the forum State. Such change, however, was seen to destroy the consensual basis and mutual co-operation on which the present international system is founded. Part III contained a sustained attempt to set out the current law relating to State immunity and to identify the areas where it remained uncertain or under challenge. A cursory stock-taking at the beginning of Part IV, confirmed that the restrictive doctrine of immunity is now established in international law, and identified the exceptions to immunity from adjudication which State practice accepted, or at least supported in general principle.

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The complexity in the treatment of these topics should not surprise. To encapsulate the State and the activities which should or should not be open to adjudication in a court of law is in many respects an enterprise similar to compiling an encyclopaedia of human activity in the modern State. The law seeks to draw a line between the foreign State and its operations and the internal judicial system of another State in its regulation of business and private interests.

The Relevance of the State as a Source of Responsibility and Accountability Before any detailed discussion of the cardinal elements of the doctrine, I think it is necessary to take a position on the relevance of the State as a unit of organization in the international community today. Despite prognostications that the State is withering away, supported by a considerable body of legal writing, and the clear transfer of certain functions of the State to other institutions, there can be little doubt that the State remains the prime actor in the maintenance of law and order in the international community today. Schriver’s conclusions in a recent article put the present position clearly: The characteristics of all systems, however, are that the government of the State exercises public authority, enacts legislation, asserts a monopoly over the legal use of force, levies taxes, issues currency, maintains law and order, exercises justice, offers protection to citizens, fosters the observance of the rights of individuals, peoples and minorities, and sets out the main lines of policy … In modern international law sovereignty functions not merely as the basis of rights but also as the source of ­responsibility, accountability and liability and as the basis of international co-operation.1 State immunity has served with flexibility the changing concepts of the State and the purposes which it serves. The assumption of new Draconian powers by the Western industrialized States to combat international terrorism since the bombing of the World Trade Center in the United States on 11 September 2001 may well swing the pendulum back in favour of the State, against the recent advances made by private interests. That pendulum in part corresponds to the balance struck within the internal structure of the State between its 1 Schriver, ‘The Changing Nature of State Sovereignty’ byil 70 (1999) 65 at 71, 98.

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sovereign power and the protection of private parties. Hill compares State immunity to the immunity of the home government before its own courts; the components of both are a sovereign governmental power, immunity vested in that power, and consent voluntarily grantable by that power. Having survived from the English feudal system to the nineteenth-century industrialization of society, the home government’s immunity has been eroded only with full ­acceptance of the rule of law and democratic government. Hill concludes that State i­mmunity, given the present flawed organization of international relations, remains a necessary technique: ‘International order … lacks a supreme sovereign and operates in an anarchical society of nations. That lack combined with the natural vagaries of a principle based largely on custom and comity greatly impeded a national progress towards the abandonment of sovereign immunity’.2 The law has been examined under four main heads: (1) consent of the foreign State expressed through waiver; (2) the exceptions to immunity from jurisdiction; (3) the definition of the State; and (4) the immunity from execution. Immunity from execution requires separate treatment. The law lacks coherence, is controversial, and produces greater friction between countries than is caused by any reduction in immunity from jurisdiction. In Chapter 9 I accordingly provided an overview of State practice relating to immunity from execution with particular reference to UK and US law; I there noted the development by which enforcement against State property in commercial use was permitted and the recognition of categories of State property as immune; I then discussed the unsatisfactory notion of property in commercial use, the intransigent problems of proof of use, mixed accounts, and the requirement of a link between the property to be attached and the substantive claim, and in conclusion I discussed a way forward with regard to the 1991 ILC Draft Articles and the adoption of an international instrument to affirm States’ commitment to make assets available to discharge their obligations under valid judgments.

2 ‘It is obvious that the public service would be hindered and the public safety endangered if the supreme authority could be subjected to suit at the instance of every citizen and consequently controlled in the use and disposition of the means required for the proper administration of government’: Hill, ‘A Policy Analysis of the American Law of State Immunity’ Fordham Rev 50 (1981) 155 at 160, 161–2, 167.

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Confining myself for the present to the other three heads, let us highlight the major areas of development and challenge. Waiver The concept of the foreign State’s consent is a slippery one. As shown in Chapter 6 above, it is capable of manipulation to provide a voluntarist explanation for all the inroads made on immunity of the State. There is no need to recapitulate them here. Most recently a very contrived version of implied onsent has been advanced in an attempt to set aside the immunity of a State for human right violations. Human rights norms, it was contended, give rise to erga omnes obligations which put States on notice. Their commission of atrocities in violation of these norms must therefore be construed as a deliberate refusal to act in conformity with international law and hence as an assumption of responsibility for the consequences and a waiver of immunity. These arguments were rightly rejected but they do, in an exaggerated way, highlight a current trend. That breaches of international law must be remedied, and in such a way as to compensate the individual victim. Compulsory adjudication of claims in international tribunals is not available; therefore, the argument goes, the municipal court must act, and in acting to remedy violations of international law the plea of State immunity must be lifted. The defects in this argument are set out in Chapter 13 above. The underlying and ultimate obstacle remains the current rule of international law which prohibits compulsory adjudication of a State’s disputes without its consent. Some see the whittling away of State immunity before municipal courts by means of fictional consent as the best route to rid international law of the outdated ban on compulsory adjudication, as a relic of an age when preservation of States’ vital interests denied any respect for the rule of law. Others, and I include myself, prefer the more conservative approach. By all means dismantle the rule which prevents compulsory jurisdiction of international disputes, but let it be done with the open consent of States. Covert inferences of consent by means of municipal courts’ activism will fuel support for, rather than resistance to, the maintenance of the present anarchical condition of the international order. Exceptions to State Immunity Lack of status as an independent foreign State, the commercial or private law nature of the subject-matter, or a close jurisdictional link to the State of the ­forum seem to be the three recognized grounds for allowing exceptions to a bar of State immunity in proceedings brought against a foreign State in the courts of another State. The first, the personal status of a foreign State, was

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e­ xamined in Chapter 11 above and is again summarized under the heading Definition of a Foreign State below. The second, which removes immunity where the proceedings relate to a commercial matter or one in which a private person may engage provides the justification for the restrictive doctrine. Enough has been said and written elsewhere to establish that the distinction between public and private acts on which the restrictive rule is based is impossible to maintain as an objective criterion. Its ineffeciency as a criterion encourages a search, whilst retaining a rule of immunity, for some other criterion to put in its place. Would then the third ground, the requirement of a proper jurisdictional link with the forum court, prove a workable substitute?

Special Jurisdiction Limits on National Courts for Proceedings against States Once again, the solution of a problem relating to the law of State immunity depends on a larger and still undetermined element of international law, namely the proper bases of jurisdiction over the acts of other States as well as over the acts of private individuals. In Chapter 7 above reference was made to the current negotiations relating to the 1999 draft Hague Convention on Judgments. Those negotiations demonstrate that an international consensus on the proper limits for the exercise of national civil jurisdiction over private parties is still a distant prospect. Even if they can be achieved, it is unlikely that they will apply to the exercise of civil jurisdiction in proceedings where a foreign State is a party or its interest engaged. First because, as treaty practice shows, for example in the field of protection of the environment, it is likely to be easier to reach a consensus on the bases of jurisdiction for commercial and civil litigation relating to private parties if the position of State-owned or Statecontrolled operations is excluded or reserved for separate treatment. Secondly, there is some reason to think that the jurisdictional bases for exercise of civil jurisdiction by one State over the disputes of another State are different from those operating in disputes between private parties. As discussed in Chapter 3 above, State practice in its application of the restrictive doctrine is inconclusive on this matter, with some jurisdictions requiring compliance with stricter jurisdictional requirements for proceedings against States than obtain in respect of litigation between private parties. The practice of the Swiss courts, the insertion in every exception to immunity permitted by the European Convention on State Immunity of a specific jurisdictional link to the f­ orum, the requirement of nexus in the US FSIA before immunity is removed for commercial transactions and claims for personal injuries and

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tanglible loss to property: all these provide evidence that additional and ­stricter ­jurisdictional links are required by international law for the exercise of jurisdiction over claims made against foreign States. The UK SIA does not in general adopt this approach as regards commercial transactions, but it nonetheless gives considerable weight to jurisdictional links. In the absolute immunity phase the common law acknowledged the significance of a close jurisdictional link in removing immunity in respect of proceedings relating to immovable property situated in the forum State’s territory and for claims relating to succession or trusts where the funds and the regulatory powers were located in the forum State. These exceptions were kept in the SIA and their principle was extended to render non-immune proceedings relating to participation in companies and infringement of intellectual property where incorporation or registration took place in the forum State’s territory and the applicable law was the lex fori. The State Immunity Act 1978 is unsystematic in its approach; it follows the European Convention in respect of employment contracts, and claims for personal injuries, removing immunity only where there is a close jurisdictional connection.3 But in respect of the commercial transactions and proceedings in respect of the operation of a ship the SIA dispenses with a requirement of an additional jurisdictional link. The circumstances for that change of policy were described in Chapter 5 above under the structure of the SSIA 1928. Contrary to the initial view of Lord Denning that an additional jurisdictional link was necessary to the adoption of a restrictive doctrine of immunity, and the first draft of the Bill giving effect to such a requirement, strong representations that the English courts’ jursidiction should be widened were accepted by the government, and Section 3 of the SIA, as it relates to a commercial transaction, imposes no jursidictional requirements other than those to be found in the requirements for service out of the jurisdiction in private party litigation. This abandonment of any additional jurisdictional link may be justified on the ground that the listed activities categorized as commercial are likely in practice to be connected with the jurisdiction where proceedings are brought. They may also, perhaps with the passage of thirty years, be treated as receiving the acquiescence of defendant States who have not raised the lack of additional jurisdictional connection. But it is for consideration whether an element in the continuing stalemate in the ILC and the UNGA Sixth Committee over the relevance of purpose in determining the commercial character of an activity may not derive from the 3 The specified jurisdictional links may be less demanding than in the ECSI; the making of the contract in addition to its performance in the forum State is a sufficient link in SIA s. 4; the presence within the forum State’s territory of the author of the wrongful act is not required in Section 5.

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width of jurisdiction claimed to be exercised by the English and other common law courts which adopted the SIA approach. To date that stalemate has largely been conducted in terms of the criterion for identification of a commercial activity, whether purpose should be taken into account in addition to nature, and the extent to which the intentions of the foreign State should be taken into account. The requirement of a specified jurisdictional link with the forum State for activities of a borderline nature, for example an additional requirement of performance in whole or in part in the territory of the UK to the residuary category in SIA Section 3(3)(c) which removes immunity for ‘any other transaction or activity … into which a State enters or in which it engages otherwise than in the exercise of sovereign activity’, might make it more acceptable to those States now pressing for a reference to purpose in the ILC Draft Article. On a broad view, however, given the lack of agreement on general rules of jurisdiction, reliance on jurisdictional links to regulate proceedings against States is not at the present stage sufficient. Immunity which highlights the identity of the State as a party to the proceedings provides a better although possibly temporary solution: a recognition that differing rules of jurisdiction, as yet not fully determined or accepted universally, apply to States by reason of their role as legislators in the international community. Immunity serves as the precursor, an emerging blueprint of an eventual scheme for the allocation of jurisdiction between national and international courts. It may not attract much intellectual support but it nonetheless remains an indispensable holding device. One further obstacle must be overcome: if such a system can be fashioned identifying jurisdictional connections which differ in their scope when applied to the foreign State or the private litigant, can they be struck down as discriminatory? The employment case of Fogarty v. UK before the ECHR touched on but did not directly deal with this issue. The answer must surely be as stated above: if the status of a foreign State is accepted as a justification for the plea of immunity then discrimination to give effect to that special status is justified. The Definition of the Foreign State The Plea Based on the Status as an Independent State A recurrent theme in this study has been the nature of the plea. Despite a similarity, by reason of subject-matter which both immunity and non-justiciability may treat as requiring a national court to refrain from exercising jurisdiction, it was argued in Chapter 11 above that the effect of the operation of the plea of State immunity, its jurisdictional scope, and the extent to which forum State values intrude in the court’s decision differ extensively from the consequences of the operation of the act of state defence or the doctrine of non-justiciability. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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The personality of the foreign State as a party to the proceedings is a decisive element in the plea; the procedural privileges are based on its status as an independent State and that status gives it the authority to confer jurisdiction upon the forum State court to adjudicate the issue. The definition of the entity entitled to claim immunity involves a number of difficult issues: the criteria and law by which to identify the institutions and individuals to be included within the protection of State immunity, the extent of the foreign State’s unilateral discretion to determine how to dispose of a claim, and the status of the foreign State as the ground for the plea. I will take them in order. Criteria and law for the identification of entities coming within a State for the purposes of immunity. As Chapter 1 above showed, a State is not a static concept. The institutions and personnel through whom a foreign State chooses to operate may be unfamiliar to other legal systems and may alter to suit a change of political regime or ideology. The definition of the State for the purposes of the law of State immunity is by no means confined to the foreign State’s own understanding of its constitution and its operation. It also depends on the forum State’s political and judicial assessment of how wide an area of sovereign operation it is prepared to concede and how far to give exemption from its laws, thereby defeating the claims of its private citizens who have come into contact with some manifestation of executive power. The discussion above on State agencies showed there to be competition between two positions: the conferment of authority by the State and the performance by the entity under enquiry of an act in exercise of sovereign authority. The French courts favour the second position, arguing that it avoids at the preliminary stage the extensive enquiry into the instrument of creation of the entity, its supervision by State appointees, and the degree of control and accountability. But they have the advantage of a system of administrative law that has already identified actes de puissance publique. In legal terms this tussle between foreign and forum States as to the ambit of protection given to agencies and staff purporting to act for public purposes is treated as a question of applicable law. The generally accepted view here is that of the German Constitutional Court in the Philippine Embassy case, which is that while international law, having no language of private rights, ­accords national law a wide discretion in applying the distinction between public and private acts, it characterizes a hard core of State activity as being in the exercise of sovereign authority and requires immunity in national courts for such acts. Yet the issues of State control and the use of private law forms are ­inevitably

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­ resented in terms of the law of the forum State with no independent yardp stick in international law. The rather botched suggestions in the various amendments to the definition of commercial transaction in the ILC draft— advance notice of the foreign State’s law, the inclusion of an express term in the contract importing foreign State law, a discretion to the forum court to refer to foreign State law in relation to agreements made for disaster relief or economic aid—are attempts to redress the balance in favour of the law of the foreign State. The discretion of the foreign State to dispose of the case: the exhaustion of local remedies. Exhaustion of local remedies as a precondition of State responsibility and one of the justifications for State immunity was investigated in Chapter 13 above. It is an attribute of a sovereign State, not merely as an equal member of the international community with the forum State, but also as a legislator both in the ratification of international conventions and in internal legislation, to be a participant and moulder of law as an instrument for the regulation of human relations. This power of legislation distinguishes a State from other parties in the court; rather than imposing a unilateral assessment of the justice of the case from the point of view of the forum court or the forum State, it allows an opportunity for a different appraisal. At a time when a world is coming to terms with the depth of cultural and religious divisions, Islamic fundamentalism and United States unilateralism, it may well be a necessary safeguard. Overall Assessment of the Value of the Plea of State Immunity How then do we read the balance sheet? Taking stock at this stage, it is fair to say that State immunity has been identified as a useful procedural plea, ­somewhat insecurely resting on a flawed distinction between public and private acts and one which, for the advancement of national interests as much as the implementation of international norms relating to human rights, is ­liable to reduction with encroachment of jurisdiction by national courts. For the present, however, it serves both as a sorting device between competing jurisdictions and as a holding device by which confrontation between States is avoided. Future Models How then should we rate the usefulness of the plea in the future, and in particular what contribution would the adoption of the ILC Draft Articles make? A number of models can be presented: (i) total abolition of the plea of State immunity;

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(ii) abolition and substitution by special regimes of immunities (embracing those in existence for diplomats, visiting armed forces, and central banks, and extending to new categories such as police and tax collectors); (iii) abolition and substitution by a rule of deference using possibly expanded doctrines of act of State and non-justiciability; (iv) retention with resolution of problem areas by UN acceptance of the ILC Draft in a definitive form. Total Abolition Professor Falk advocated such a solution in 1964 and gave three reasons in addition to the changing functions of the State and justice for the private party. These were the continuing association of the municipal court’s use of immunity with executive policy towards particular States and the consequent risks of national bias, reduction in impartiality, and the politicizing of the technique; delay in the eventual utilization of municipal courts as instruments for the enforcement of municipal law permitting violations of legal obligation, whether derived from municipal or international law; and the crudity of the current law of State immunity in identifying the proper occasions for restraint or assertion of national jurisdiction.4 Professor Falk was writing before the enactment of either the regional Convention or the national legislation of the US and UK, and the force of this last criticism has to a great extent been blunted by the use of an enumeration technique to identify commercial transactions and by the imposition of strict jurisdictional connections for other exceptions. Similarly, his first criticism has been addressed by these codifications. In US law the change of direction introduced by the Tate letter and the transfer of the determination of claims falling within immunity to the US federal courts considerably reduces the involvement of the executive and depoliticizes the law. The general goal which his book advocated of national courts as agents of the emerging international legal order is being, perhaps more rapidly than he conceived, made possible by the circulation of ideas through globalization of means of communication; in asylum laws, prosecution for war crimes, ­environmental impact assessements, and a hundred other ways municipal courts are increasingly implementing international standards. Professor Elihu Lauterpacht is a more recent advocate of total abolition. He sees the retention of the immunity of States before municipal courts as bolstering up the outmoded insistence on consent to adjudication on the ­international plane. He sees no problem in the total abolition of State immunity; in his view the rules of private international law relating to forum non 4 Falk, The Role of Domestic Courts in the International Legal Order (1964) Chap. vii, 139–45.

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conveniens or applicable law (i.e. the absence of substantive remedy under the applicable foreign law) would in most cases result in the dismissal of the private parry’s claim. He considers the expanding jurisdiction of the European Court of Justice and compulsory procedures for the enforcement of human rights are so reducing the ‘reserved domain’ of States as to render unimportant the residue of sovereign functions. He maintains that the constraints which deter the private party from engaging in litigation—cost, diversion of energy, public exposure, disruption of good relations—would prevent any ‘opening of the floodgates’ of litigation which supporters of State immunity assert.5 One court, addressing the application of the issues to a case of tax evasion in which a foreign State had been implicated, expressed general dissatisfaction with the doctrine and a view that it was outmoded and that the increasing number of exceptions indicated its imminent demise. But the alternative which was tentatively proposed, a plea of iniquity which would entitle the forum court to a full investigation, has its own disadvantages, particularly the assumption by the court of a balancing of all relevant factors judicial, political, and extralegal.6 Greig, rebutting the arguments for abolition,7 maintains that there is little research to show that the maintenance of an absolute doctrine of immunity is detrimental to a State’s economic well-being.8 It probably suited Great Britain that in expanding its empire it should not have to face proceedings in the courts of other States. Yet the final incentive that led to the enactment of the 1978 Act was the fear that the 1976 US FSIA permitting suit against foreign States in respect of sovereign debt would take business from the City of London. It is arguable that China’s adherence to an absolute doctrine is one factor in its economic isolation. One radical suggestion is to reverse the burden of proof, making all acts of the State subject to the jurisdiction of local courts unless the State can e­ stablish their performance is in exercise of core functions of the State requiring protection. No State has adopted such a position in its law and it would run counter to

5 Lauterpacht, Aspects of the Administration of International Justice (1991) 55–7. 6 Controller and Auditor General v. Sir Ronald Davidson [1996] nzlr 517; and see Chapters 7 and 13 above. [Editors’ note: not included in this Anthology]. 7 Greig, ‘Specific Exemptions to Immunity under the International Law Commission’s Draft Articles’ iqlq 38 (1989) 560 at 584. 8 Lalive, ‘L’immunité des Etats et des Organisations Internationales’, Hague Rec (1954-iii) 84, 205. For a more radical proposal to abolish immunity from execution see Bouchez, ‘The Nature and Scope of Immunity from Jurisdiction and Execution’ nyil 109 (1979) 3. Synvet, ‘Quelques Réflexions sur l’Immunité d’Execution de l’Etat Etranger’ jdi (1985) 865.

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the established and largely uncontroversial immunities accorded to particular agents and activities of the State such as the diplomat. Proponents of reform such as Phillimore, Hersch Lauterpact, and Denning have always envisaged the retention of certain matters to be covered by immunity. In rejecting an absolute doctrine and equally a restrictive doctrine based on the distinction between acta imperii and gestionis, Hersch Lauterpacht recommended ‘abolition, subject to specified safeguards and exceptions, of the rule of immunity of foreign States’. However, these safeguards and exceptions immediately restored immunity for ‘legislative acts’, ‘executive and administrative acts of the foreign State within its territory’, and ‘contracts’ save those with a sufficient jurisdictional connection with the forum State. In effect Lauterpacht rejected lack of jurisdiction as a basis for the grant of immunity and proposed the adoption of an immunity equal and analogous to that enjoyed by the forum State itself before its own courts. The ECSI was drafted on the assumption that there was to be no authorization of jurisdiction beyond the stated exception in Articles 1 to 13 in respect of acts performed in the exercise of sovereign authority (acta imperii). Even Falk wrote that ‘diplomatic immunity together with minimum rules of specific deference (applying for example to acts of state or to warships) [would] provide the State with all the protection that is proper given the character of international disputes and national sovereignty in the contemporary world’. His reference to acts of state opens the door to many of the difficulties for which he criticizes immunity.9 Abolition and Substitution by Special Regimes of Immunities To some extent this state of affairs already exists. Diplomatic law is really selfsufficient. There is one serious gap: the position as to immunity of accounts held in the name of a diplomatic mission. A protocol or provision in the international instrument (discussed below) might clarify the position here. It should provide for immunity of diplomatic accounts, but should state that it will be good practice for diplomatic missions to render an annual statement to the receiving State certifying the amount allocated for the expenses of the mission in the coming year. Alternatively a provision might be included in the Protocol requiring States to open two accounts in the name of the diplomatic mission, one of which would be declared to be free of all immunity. The State would undertake to keep or place in that second account sufficient funds to meet any sums awarded against the State pursuant to a valid judgment or a­ rbitral award. This account could be identified by traders when dealing with the State as the account out of which the State’s liabilities were met, 9 Falk, n. 3 above, 139.

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and ­additional c­ ommitments might be obtained from the State when signing a contract to keep the fund topped up to meet such contractual liabilities. In English law the common law at present determines the immunities of visiting armed forces on matters that are not covered by agreement between the UK and the visiting force. Here a special regime or amendment of SOFA or other ‘State of the forces’ agreement to give some remedy by way of arbitration or otherwise for claims in tort brought by serving personnel would seem in order. As indicated in Chapter 8 above on individuals, a special regime for law enforcement officers is required. There are good reasons to favour this model in that specific solutions can be devised for specific situations. It would however lead to complexity and lack of uniformity, with specialist bodies of law being applied without reference to any general principles.

Abolition and Substitution by a Rule of Deference Based on Act of State and Non-justiciability Doctrines Michael Singer has put forward a case for subsuming the plea of immunity into the more general conflict between States in respect of their jurisdictions to prescribe, that is, their legislative jurisdiction to perform acts of legislation and administration within their territories.10 His purpose in so doing is particularly to show up the excessive nature of US claims to exercise extraterritorial jurisdiction. His solution works for State activities which are wholly performed within the jurisdiction of one or the other State but, no more than the restrictive doctrine of State immunity, does not provide a certain answer where the activity in question has jurisdictional links with both the foreign and the forum States. These cases he would solve by enquiring into the terms of the ‘licence’ granted by the forum State exempting the foreign State from its jurisdiction, but he accepts that the determination of these terms is not solely a unilateral matter for the forum State, but requires a comparative analysis of State practice and an investigation as to the requirements of international law. If such an enquiry has to be conducted we are in no better position that when engaged in applying the restrictive doctrine of State immunity. As discussed in Chapter 11 above, the English doctrine of non-justiciability is not a promising alternative for State immunity. In some respects it is over-­ comprehensive, and in others insular and suspicious of any law other than English. Act of state is a useful defence, but as it is currently formulated it is not a plea to jurisdiction, nor one that precedes enquiry into the merits. Both are dependent on the national court’s determination; in borderline cases where 10

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issues of policy are involved, it is questionable whether the unilateral determination of an organ, however impartially qualified the judiciary are, is a better method of dispute settlement than a compromise negotiated between the foreign and the forum States. Neither doctrine, in my view, would be a satisfactory substitute for State immunity. Retention with Adoption of the ILC Draft Although the Second Special Rapporteur considerable improved the wording of its provisions, the ILC Draft Articles on the Jurisdictional Immunities of States and Their Property remains technically weak. A great deal of time has been spent discussing its provisions and it would encourage criticism and undermine the general reputation of the ILC if it were to be abandoned. On the other hand, efforts to reform its five problem areas have to date met with little success. If Part IV relating to execution is separately dealt with, as discussed in the previous Chapter, it might be possible to produce a text adopting the suggestions of the ILC. Of these the major ones are to abandon any attempt to have an interpretative declaration as to the meaning of ‘commercial’ and to retain the commercial exception, Article 10, but in a revised form (including the removal of immunity for activities of a State agency except where acting expressly on the authorization of or as agent for the State). In addition the two qualifiers, empowerment and performance, might be be included in the definition of political subdivisions and agencies and instrumentalities. The  discrimination against third State nationals would be removed from the exception for employment contracts, and some amplification made of the types of employment, such as permanent posts in the diplomatic service, which are to remain immune. In Chapter 5 above possible alternatives to the incorporation of the Draft Articles in an international convention were discussed, as well as the possibility of some dispute mechanism to resolve outstanding differences as to international law. In discussing the form in which the ILC Draft Articles might be given international effect, it has been concluded that progress is now a matter for political initiative and compromise: the lawyers have effectively exhausted every possible solution. The best course, if a positive outcome to the ILC’s work on State immunity is to be achieved, may be to move at once to a conference. A successful outcome to such a conference would be achieved by political ­effort, before such support as exists for the ILC’s work is totally lost. To obtain a political compromise, however, the parties must be able to see advantages to be gained from relinquishing the status quo in favour of the ­proposed change. For those States who have no legislation or case-law, the Draft Articles would provide a code for their municipal law to adopt. For the Western industrialized States a convention would do little more than confirm

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the position already established in State practice, which is that international law permits a restrictive doctrine of immunity, and hence permits the exercise of jurisdiction of national courts over commercial transactions entered into by other States. Indeed in some respects a declaration that the ILC Draft states the limits of national jurisdiction would be a retreat because its proposals relating to the lifting of immunity from execution enjoyed by State property is less liberal than the rules provided in certain national laws. However, this disadvantage might be outweighed by a commitment to give effect to judgments of national courts rendered in respect of non-immune proceedings within the exceptions. In addition, all States may see a benefit in adopting the ILC Draft as a measure to prevent the further erosion of State immunity where violations of international law are in issue. It seems unlikely that States will sign up to the ILC Draft if embodied in a convention; certainly the Western States will not wish to endorse the more restricted provisions of the Draft relating to immunity from execution without some additional incentive. It therefore seems appropriate to abandon the idea of a convention comprising the totality of the ILC draft. Instead a more limited international instrument is proposed, containing some general propositions to the effect that a restrictive doctrine of immunity now prevails and that immunity no longer exists where national jurisdiction is exercised in accordance with the rules of private international law over the matters listed as exceptions. More importantly, this convention would state the principle of the unity of judgment and its enforcement; it would contain an obligation on contracting States to give effect to judgments rendered in non-immune proceedings and permit enforcement against State property other than those within the immune categories. The provisions of the ILC Draft could be retained as an annex to such a legally binding commitment, either as a model code, or as guidelines on the international law of State immunity, or as a model for adoption as national legislation. Of the four models here discussed, it is my view that the fourth model, the retention of the present law of State immunity, must be the way forward. Whether it is accompanied in some form by the ILC Draft is more doubtful. The work of the ILC is representative of the emerging rules of international law, providing for the orderly allocation of jurisdiction in place of the ­laissez-faire policy of the Lotus ruling of the Permanent Court of International Justice. It is therefore recommended that the ILC Draft should be presented for adoption, not as a convention, but rather as a model code or guidelines on international law or as model national legislation for adoption by States. Adopted on the lines of the ILC’s 1999 recommendations, but in model form rather than put to full debate and signature at an international conference, the Draft may make a useful contribution to the clarification of international law.

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Chapter 55

Lord Richard Wilberforce, Judgment, Buttes Gas and Oil Company v Hammer, 1982 Comment by Lady Hazel Fox CMG QC Buttes Gas relates to: an action for slander whose real object was to obtain a decision of the English court about the boundary between the territory of three Gulf states, a question upon which the validity of the parties’ off-shore drilling rights depended.a The lasting significance of Lord Wilberforce’s opinion, assented to by the other four Law Lords, is not the resolution of the long-running dispute between the parties but rather in the declaration of a general principle relating to ­justiciability – courts will not adjudicate on the transactions of foreign States. On the facts as stated in the case, the Emir of Sharjah’s claim prevailed, after the rejection of a UK proposal for third party settlement and following a “show of force by HMG”, namely HMS Yarnton turning back an Occidental drilling platform as it was moved towards the contested concession zone. Given this history of the parties’ claims and Lord Denning’s comment that Her Majesty’s Government “in some ways contributed to the dispute”,b Lord Wilberforce’s ­negation of any judicial involvement seemed unavoidable. He held: There being … no judicial or manageable standards by which to judge these issues, … the court would be in a judicial no-man’s land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force… Subsequently, in disputes between States where manageable standards in international law have been found, the English court has shown itself willing to restrict the Wilberforce principle. In Kuwait Airways Corp v Iraqi Airways a Shergill and Ors v Khaira and Ors [2015] AC 359, 38. b [1981] 3 All ER 481, CA.

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Co (Nos 4 and 5)c the Law Lords declared: “…restraint is what is needed, not abstention” and refused “to recognise a foreign law” (the Iraqi expropriating decree) for the removal of ten Kuwaiti aircraft to Iraq following Iraq’s invasion of Kuwait. They held, “public policy would not permit enforcement or recognition of foreign law, which constituted ‘a gross violation of established rules of international law of fundamental importance’”.d In 2014, more questionably, as obiter dicta, in a case concerned with religious belief of private parties, rather than the political tergiversations of foreign States, Lord Neuberger has sought to narrow further the scope of Buttes Gas.e Declaring that “the acts of private parties, however political, are subject to law” and asserting “a denial of justice … could only exceptionally be justified either at common law or under article 6 of the Human Rights Convention”.f Lord Neuberger has described Buttes Gas as “the leading case”, but only where the issue in question relates to transactions of foreign States “…beyond the constitutional competence assigned to the courts under our conception of the separation of powers…”.g At the same time, in Shergill he has widened the range of the English court’s review so as to accept and adopt that that, “where a ‘domestic foothold’” can be found or “some legal right of the citizen is engaged whether in public or private law…”, the Wilberforce restraint is not required and the court may adjudicate the issue.h Richard Wilberforce was no initiate in the world beyond the English Channel or law’s use as an instrument to organise the modern democratic State. In his own Recollections he recalls the early 1970s as “the apogee and collapse” of his life – that is “as Law Lord, delivering judgments of great scope and brilliance…”,i contrasted with the disastrous reception of his Report on the dispute between the Coal Board and the Miners’ Union. His “most enjoyable and fruitful seven years”, 1939 to 1945, he spent in the British Army. The subsequent two years he headed the British Delegation to the quadripartite Legal Directorate, rewriting German law to rid it of specifically Nazi elements.j Whilst in Berlin he met Yvette, the daughter of the French member, Professor Roger Lenoan (later Cour de Cassation), and she became his wife two years later. c Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] AC 883. d H Fox and P Webb, The Law of State Immunity (3rd  edn, OUP 2013) 62 citing Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] AC 883, per Lord Nicholls at 29. e Shergill v Kheira [2014] AC 339. f Ibid, 42. g Ibid. h Ibid, 43. i Lord Neill in Richard Wilberforce, Reflections on My Life (Roundtuit Publishing 2003) 178. j Ibid, 66. Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

Judgment of Lord Wilberforce, Buttes Gas and Oil Company v Hammer [1982] AC 888–939 [House of Lords]. Excerpts: Headnote, pp. 888D–891A and Judgments, 919G–939D. Reproduced with the kind ­permission of iclr.

Buttes Gas and Oil Company v Hammer Lord Richard Wilberforce [House of Lords] Buttes Gas and Oil Co. and Another (Respondents) and Hammer and Another (Appellants) Buttes Gas and Oil Co. and Another (Appellants) and Hammer and Another (Respondents) [Conjoined Appeals] [On appeal from Buttes Gas and Oil Co. v. Hammer; Buttes Gas and Oil Co. v. Hammer (No. 3)] 1981 June 22, 23, 24, 25, 29, 30; July 1, 2, 6, 7, 8, 9; Oct, 29 Lord Wilberforce, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Keith of Kinkel and Lord Bridge of Harwich Practice—Pleadings—Striking out—“Acts of state”—Foreign oil corporations’ slander action over concessions in foreign territories granted by sovereign rulers—Particulars of defence including facts as to acts of sovereign states—Counterclaim for damages for alleged conspiracy to cheat and defraud by procuring acts of state—Whether established doctrine of English law of non-inquiry into acts of state—Whether pleaded defences and counterclaim to be struck out Two Californian oil exploration corporations were granted oil concessions in the Persian Gulf. One was granted by the ruler of Umm al Qaiwain to corporation O (“the defendants”) in November 1969 and the other to corporation B (“the plaintiffs”) in December 1969 by the ruler of Sharjah. A dispute arose over a rich oil area. Litigation followed which included an action begun in the English court by the plaintiffs against the defendants and their chairman for alleged slander uttered in London about the disputed area and consequential Jill Barrett and Jean-Pierre Gauci - 978-90-04-38624-2 Downloaded from Brill.com09/11/2021 07:11:05PM via The New York Public Library

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events. The pleaded defences were justification and fair comment. The particulars of those defences included as “facts” a decree of the ruler of Sharjah said to have been issued in March 1970 but on its face dated September 1969 which extended the limits of his territorial waters; a subsequent claim to sovereignty over the disputed area by the Government of Iran; instructions to the ruler of Umm al Qaiwain by the United Kingdom political agent and intervention by Her Majesty’s naval, air and military forces then operating in the relevant areas under treaty arrangements; and further intervention by the Government of Iran. By a counterclaim the defendants claimed damages for alleged conspiracy between the plaintiffs and the ruler of Sharjah and others to cheat and defraud them and to procure Her Majesty’s government and others unnamed to act unlawfully to the injury of the defendants; and they pleaded as the overt acts constituting the conspiracy the particulars of justification in their defence to the slander action. The plaintiffs applied for an order that the court should not exercise jurisdiction in respect of specified matters said to be “acts of state” of the governments of Sharjah, Umm al Qaiwain, Iran and the United Kingdom, and ­alternatively asked that the pleaded particulars of justification and the counterclaim should be struck out and all proceedings stayed on the ground that they raised matters which were acts of state. Master Warren struck out the counterclaim. On