Chapter 2 Int Law

Part I Preliminary topics, 2 The sources of
international law
James Crawford SC, FBA
From: Brownlie's Principles of Public International Law (9th Edition)

James Crawford
Previous Edition (8 ed.)
Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 09 July 2019
ISBN: 9780198737445
Subject(s):
Law of treaties — f2681649-21a3-41a7-ab7c-b7bbd59415a3 — Judicial decisions — General principles of
international law
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Universidad de Navarra; date: 08 September 2022
(p. 18) 2 The sources of international law
1. Introduction
International law provides a normative framework for the conduct of interstate relations. In
this sense, international society is no exception to the maxim of ubi societas, ibi jus: where
there is social structure, there is law. The sources of international law define the rules of
the system: if a candidate rule is attested by one or more of the recognized ‘sources’ of
international law, then it may be accepted as part of international law. Simultaneously, the
diffuse character of the sources highlights the decentralization of international law-making.
The formally recognized sources of international law are reflected in Article 38 of the
Statute of the International Court of Justice.1 These sources are often presented—as in
Article 38—as separate, but they influence each other in practice.
It is common for writers to differentiate between formal and material sources of law. Formal
sources are those methods for the creation of rules of general application which are legally
binding on their addressees. The material sources provide evidence of the existence of rules
which, when established, are binding and of general application. In the context of
international relations, however, the use of the term ‘formal source’ is misleading since it
conjures up notions associated with the constitutional machinery of law-making within
states. No such machinery exists for the creation of international law. Decisions of the
International Court, unanimously supported resolutions of the General Assembly
concerning matters of law, and important multilateral treaties seeking to codify or develop
rules of international law are all significant to varying degrees. Nonetheless they are not
binding on states generally. In this sense, ‘formal sources’ hardly exist in international law.
As a substitute, and perhaps as a ‘constitutional’ equivalent to formal sources, international
law works on the basis that the general consent or acceptance of states can create rules of
general application. The definition of custom in international law is essentially a statement
of this principle, and not a reference to ancient custom as in English law.
In international law, the distinction between formal and material sources is consequently
difficult to maintain. The former reduces to a quasi-constitutional principle of inevitable but
unhelpful generality. What matters more is the variety of material sources. These are the
all-important evidence of a normative consensus among states (p. 19) and other relevant
actors concerning particular rules or practices. Decisions of the International Court,
resolutions of the General Assembly, and ‘law-making’ multilateral treaties are evidence of
the attitude of these actors towards particular rules and of the presence or absence of
consensus. Moreover, there is a process of interaction which gives these a status somewhat
higher than other ‘material sources’. Neither an unratified treaty nor a report of the
International Law Commission (ILC) to the General Assembly has any binding force as a
matter of treaty law or otherwise. However, such documents stand as candidates for public
reaction, approving or not as the case may be. They may approach a threshold of consensus
and confront states which wish to oppose their being given normative force.
The law of treaties concerns the content of specific obligations accepted by the parties
(states and other persons with treaty-making power), that is, it concerns the incidence of
obligations resulting from express agreement. Treaties may be bilateral or multilateral;2
even if multilateral, the obligations they create may run primarily between the two parties
concerned—for example, the sending state and the receiving state in the case of diplomatic
relations. For both multilateral and bilateral treaties, the constraints of the treaty form still
apply: in principle, treaties neither oblige nor benefit third parties without their consent.3
Thus, the incidence of particular conventional obligations is a matter distinct from the
sources of general international law, which is made by more diffuse processes. Treaties as
such are a source of obligation and not a source of rules of general application. Treaties
may, however, form an important material source in that they may be reflective of, or come
to embody, customary international law.4
2. The Statute of the International Court of Justice

Historically, the most important attempt to specify the sources of international law was
Article 38 of the Statute of the Permanent Court of International Justice,5 taken over nearly
verbatim6 as Article 38 of the Statute of the International Court of Justice:
1. The Court, whose function is to decide in accordance with international

law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular,

establishing rules expressly recognized by the contesting States; (p. 20)
(b) international custom, as evidence of a general practice accepted as
law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case
ex aequo et bono, if the parties agree thereto.
Article 59 provides that decisions ‘have no binding force except between the parties and in
respect of that particular case’.
These provisions are expressed in terms of the function of the Court. However, they reflect
the previous practice of arbitral tribunals, and Article 38 is often put forward as a complete
statement of the sources of international law.7 Yet the article makes no reference to
‘sources’ and, on close inspection, cannot be regarded as a straightforward enumeration.
The first question is whether paragraph 1 creates a hierarchy of sources. There is no
express hierarchy, but the draftsmen stipulated an order, and in one draft the word
‘successively’ appeared.8 In practice, subparagraphs (a) and (b) are the most important: we
can explain the priority of (a) by the fact that it refers to a source of obligation which will
ordinarily prevail as being more specific.9 But it is unwise to think in terms of hierarchy as
dictated by the order (a) to (d) in all cases. Source (a) relates to obligations; in some
circumstances a treaty does not give rise to a corresponding obligation of a state party,
notably when it is contrary to a peremptory norm of international law;10 and in all cases the
content of a treaty obligation depends on the interpretation of the treaty, a process
governed by international law.11 A treaty may even be displaced by a subsequent rule of
customary international law, at least where its effects are recognized in the subsequent
conduct of the parties.12
(p. 21) Dating back to 1920, Article 38 might be thought out of date, narrow, and ill-adapted
to modern international relations. But in practice it is malleable enough, and its emphasis
on general acceptance is right: customary law is not to be confused with the last emanation
of will of the General Assembly.
3. International Custom
(A) The concept of custom
Article 38 refers to ‘international custom, as evidence of a general practice accepted as
law’. The wording is prima facie defective: the existence of a custom13 is not to be confused
with the evidence adduced in its favour; it is the conclusion drawn by someone (a legal
adviser, a court, a government, a commentator) as to two related questions: (1) is there a
general practice; (2) is it accepted as international law? Judge Read has described
customary international law as ‘the generalization of the practice of States’,14 and so it is;
but the reasons for making the generalization involve an evaluation of whether the practice
is fit to be accepted, and is in truth generally accepted, as law.
Although the terms are sometimes used interchangeably, ‘custom’ and ‘usage’ are terms of
art with different meanings. A usage is a general practice which does not reflect a legal
obligation: examples include ceremonial salutes at sea and the practice of granting certain
parking privileges to diplomatic vehicles.15 Such practices are carried on out of courtesy (or
‘comity’) and are not articulated or claimed as legal requirements. International comity is a
species of accommodation: it involves neighbourliness, mutual respect, and the friendly
waiver of technicalities.16 However, particular rules of comity, maintained consistently
without reservation, may develop into rules of customary law.17
The material sources of custom are manifold and include: diplomatic correspondence, policy
statements, press releases, the opinions of government legal advisers, (p. 22) official
manuals on legal questions (e.g. manuals of military law), executive decisions and practices,
orders to military forces (e.g. rules of engagement), comments by governments on ILC
drafts and accompanying commentary, legislation, international and national judicial
decisions, recitals in treaties and other international instruments (especially when in ‘all
states’ form),18 an extensive pattern of treaties in the same terms, the practice of
international organs, and resolutions relating to legal questions in UN organs, notably the
General Assembly. The value of these sources varies and will depend on the circumstances.
(B) The elements of custom

(i) Duration and consistency of practice
The question of uniformity and consistency of practice is very much a matter of
appreciation. Complete uniformity of practice is not required, but substantial uniformity is,
and for this reason in Anglo-Norwegian Fisheries the Court refused to accept the existence
of a ten-mile rule for the closing line of bays.19 In Jurisdictional Immunities of the State, it
rejected the existence of an exception to an established customary rule concerning state
immunity based on a lack of uniformity in state practice.20
Provided the consistency and generality of a practice are established, the formation of a
customary rule requires no particular duration. A long practice is not necessary, an
immemorial one even less so: rules relating to airspace and the continental shelf have
emerged following a fairly quick maturation period.21 In North Sea Continental Shelf, the
Court said:
Although 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 on the basis of
what was originally a purely conventional rule, an indispensable requirement would
be that within the period in question, short though it might be, State practice,
including that of the States whose interests are specially affected, should have been
both extensive and virtually uniform in the sense of the provision invoked;—and
should moreover have occurred in such a way as to show a general recognition that
a rule of law or legal obligation is involved.22
This sets a high standard, especially in requiring concordant practice by states ‘specially
affected’.23 The standard was met for some of the rules concerning the continental shelf
articulated in the Truman Proclamation, but not the delimitation rule which the (p. 23) ILC
had proposed as a matter of convenience and which was not contained in that
Proclamation.24
(ii) Generality of practice
Complete consistency is not required; often the real problem is to distinguish mere
abstention from protest by a number of states in the face of a practice followed by others.
Silence may denote either tacit agreement or a simple lack of interest in the issue. It may
be that the Permanent Court in the Lotus misjudged the consequences of absence of protest
and the significance of fairly general abstention from prosecutions by states other than the
flag state.25 In the event, the Geneva Convention on the High Seas adopted the rule which
the Court had rejected—a rare example of the overruling by treaty of a decision of the Court
on a point of custom.26
In Fisheries Jurisdiction (UK v Iceland), the Court referred to the extension of a fishery zone
up to a 12nm limit ‘which appears now to be generally accepted’ and to ‘an increasing and
widespread acceptance of the concept of preferential rights for coastal states’ in a situation
of special dependence on coastal fisheries.27 But while refusing to ‘render judgment sub
specie legis ferendae, or [to] anticipate the law before the legislator has laid it down’,28 the
Court did in fact articulate a rule of preferential coastal state rights, a transitional step
towards the Exclusive Economic Zone regime which would be included in the United
Nations Convention on the Law of the Sea (UNCLOS).29
(iii) ‘Accepted as law’: Opinio juris sive necessitatis
The Statute of the International Court refers to ‘a general practice accepted as law’. Some
writers do not consider this psychological element to be required for custom,30 but
something like it must be necessary.31 It is ordinarily expressed in terms of the Latin
neologism opinio juris sive necessitatis, a phrase which has, perhaps regrettably, (p. 24)
become established.32 But the idea of normativity—the articulation of a practice as binding
—is not new: it is a necessary requirement of a customary rule.
The International Court will often infer the existence of opinio juris from a general practice,
from scholarly consensus, or from its own or other tribunals’ previous determinations.33 But
in a significant minority of cases the Court has displayed greater rigour. Examples include
the Lotus, where France asserted that the flag state has exclusive criminal jurisdiction over
accidents occurring on the high seas. The Permanent Court rejected the French claim:
Even if the rarity of the judicial decisions to be found among the reported cases
were [established] … it would merely show that States had often, in practice,
abstained from instituting criminal proceedings, and not that they recognized
themselves as being obliged to do so; for only if such abstention were based on their
being conscious of having a duty to abstain would it be possible to speak of an
international custom. The alleged fact does not allow one to infer that States have
been conscious of having such a duty; on the other hand … there are other
circumstances calculated to show that the contrary is true.34
Presumably the same principles should apply to both positive conduct and abstention, yet in
the Lotus the Court was not ready to accept continuous conduct as evidence of a legal duty
and required a high standard of proof of opinio juris.35
Again in North Sea Continental Shelf Denmark and the Netherlands argued that the
equidistance–special circumstances method of delimiting the continental shelf had become
accepted as law by the date of the Convention on the Continental Shelf.36 The Court
declined to presume the existence of opinio juris based on the practice as at that date. Nor
did it accept that the subsequent practice of states based on the Convention had produced a
customary rule. However, the decision is not incompatible with the view that existing
general practice raises a presumption of opinio juris. Before 1958, there was little practice
concerning the equidistance principle apart from the records of the ILC, which revealed the
experimental aspect of the principle at that time.37 As to post-1958 practice, the Court’s
rejection of the argument rested primarily on two (p. 25) factors: (1) Article 6 was directed
at agreement and was not of a norm-creating character;38 (2) the convention having been in
force for less than three years, the state practice was inadequate ‘to show a general
recognition that a rule of law or legal obligation is involved’.39 But the tenor of the
judgment is hostile to the presumption of opinio juris.40
In Nicaragua,41 the Court expressly referred to North Sea Continental Shelf in the following
terms:
In considering the instances of the conduct … 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’.42
Likewise, the Court in Diallo took the more exacting approach to custom, and to the
requirement of opinio juris in particular. The Court noted the inconclusiveness and
insufficiency of mere practice:
The fact … that various international agreements, such as agreements for the
promotion and protection of foreign investments and the Washington Convention,
have established special legal régimes governing investment protection, or that
provisions in this regard are commonly included in contracts entered into directly
between States and foreign investors, is not sufficient to show that there has been a
change in the customary rules of diplomatic protection; it could equally show the
contrary.43
The choice of approach appears to depend on the character of the issues—that is, the state
of the law may be a primary point in contention—and on the discretion of the Court.44 The
approach may depend on whether practice is largely treaty-based (in which case opinio
juris is sufficient to expand application of the treaty norms as custom), or whether the law
on the question is still developing.
(C) The relativity of custom

The term ‘general international law’ should not be taken to require universal acceptance of
a rule by all subjects of international law. True, there are rules of international (p. 26) law
which are universally accepted, and the system of international law is daily reaffirmed by
states in making and responding to claims of right. But the principles of the system—
consent, the requirements for custom, the persistent objector—mean that particular rules
may have less than universal acceptance, yet still form part of international law. Similarly, a
rule of international law which a state has not expressly or by implication accepted may not
be opposable to that state.
(i) The persistent objector
The reduction of custom to a question of special relations is illustrated by the rule that a
state may exempt itself from the application of a new customary rule by persistent objection
during the norm’s formation.45 Evidence of objection must be clear, and there is a
rebuttable presumption of acceptance. Whatever the theoretical underpinnings of the
persistent objector principle, it is recognized by international tribunals,46 in the practice of
states,47 and latterly by the ILC.48 Indeed, given the majoritarian tendency of international
relations the principle is likely to have increased prominence.49 However, with the
increasing emergence of communitarian norms, reflecting the interests of the international
community as a whole, the incidence of the persistent objector rule may be limited.50 More
common may be disagreement as to the meaning or scope of an accepted rule, as to which
the views of particular disputing states will not be decisive.51 Nonetheless, the persistent
objector rule reinforces the principle of state consent in the creation of custom.52
(p. 27) (ii) The subsequent objector
In Anglo-Norwegian Fisheries, part of the Norwegian argument was that even if the 10nm
closing line for bays and certain rules were part of general international law, they did not
bind Norway which had ‘consistently and unequivocally manifested a refusal to accept
them’.53 The UK admitted the general principle, while denying that Norway had manifested
its supposed refusal to accept the rules. Thus, it regarded the question as one of persistent
objection. The Court did not deal with the issue in this way, however. Its ratio was that
Norway had departed from the alleged rules, if they existed, and that other states had
acquiesced in this practice. But the Court was not explicit with respect to the role of
acquiescence in validating a subsequent contracting-out.54 Here one must face the problem
of change in a customary rule.55 If a substantial group of states asserts a new rule, the
momentum of increased defection, complemented by acquiescence, may result in a new
rule,56 as was the case concerning the continental shelf. If the process is slow and neither
the new nor the old rule has an overwhelming majority of adherents, the consequence is a
network of special relations based on opposability, acquiescence, and even perhaps historic
title. This situation will normally be transitional in character—though in affairs of state,
transitions can take some time.
(iii) Bilateral relations and local custom
Some customary norms may be practised only within a particular region, creating a ‘local’
customary law.57 Such a norm is reducible to the level of a bilateral relation, as in the Right
of Passage case.58 There, Portugal relied on such a custom to establish a right of access to
Portuguese enclaves in Indian territory inland from the port of Daman. The Court held:
It is difficult to see why the number of States between which a local custom may be
established on the basis of long practice must necessarily be larger than two. The
Court sees no reason why long continued practice between two States accepted by
them as regulating their relations should not form the basis of mutual rights and
obligations between two States.59
(p. 28) When considering the formation of bilateral custom, general formulae concerning
custom will not supplant the need for case-by-case analysis. Where a party seeks to vary the
general law on a bilateral basis, the proponent of the special right has to give proof of a
sense of obligation on the part of the territorial sovereign. In such circumstances, the
notion of opinio juris merges into the principle of acquiescence.60 In Right of Passage, the
transit arrangement dated back to the Mughal period, and went unquestioned by the British
and later independent Indian governments.
The best known example of a regional custom is that of diplomatic asylum in Latin-America,
concerning the right of the embassies of other states to give asylum to political refugees.
Specifically, Columbia relied against Peru on ‘an alleged regional or local custom peculiar to
Latin-American States’.61 The Court observed:
The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party. The
Colombian Government must prove that the rule invoked by it is in accordance with
a constant and uniform usage practised by the States in question, and that this
usage is the expression of a right appertaining to the State granting asylum and a
duty incumbent on the territorial State.62
The Court went on to remark that ‘even if such a custom existed between certain Latin-
American States only, it could not be invoked against Peru which, far from having by its
attitude adhered to it, has on the contrary repudiated it’.63 Other attempts to establish a
norm of local custom before an international court or tribunal have likewise failed.64
4. Treaties
Treaties are the most important source of obligation in international law.65 ‘Law-making’
treaties, moreover, have a direct influence on the content of general international law, an
influence not conveyed adequately by their designation as material sources.
Bilateral treaties may provide evidence of customary rules,66 and indeed there is no
dogmatic distinction between ‘law-making’ treaties and other treaties. If bilateral (p. 29)
treaties, for example those on extradition, are habitually framed in the same way, a court
may regard the standard form as law even in the absence of a treaty obligation in that
case.67 However, caution is necessary in evaluating treaties for this purpose.
(A) ‘Law-making’ treaties

So-called ‘law-making’ treaties create legal obligations, the one-time observance of which
does not discharge the obligation. A treaty for the joint carrying-out of a single enterprise is
not law-making, and fulfilment of the treaty’s objects will discharge the obligation. By
contrast law-making treaties create general norms, framed as legal propositions, to govern
the conduct of the parties, not necessarily limited to their conduct inter se—indeed, the
expression of an obligation in universal or ‘all states’ form is an indication of an intent to
create such a general rule. The Declaration of Paris of 1856 (on neutrality in maritime
warfare), the Hague Conventions of 1899 and of 1907 (on the law of war and neutrality),
the Geneva Protocol of 1925 (on prohibited weapons), the General Treaty for the
Renunciation of War of 1928, the Genocide Convention of 1948, and the four Geneva
Conventions of 1949 (on the protection of civilians and other groups in time of war) are
examples. Moreover, those parts of the UN Charter that do not spell out the constitutional
competence of the organization’s organs, and other organizational questions, have the same
character—notably the principles set out in Article 2 and further articulated in the Friendly
Relations Declaration of 1970.68 UNCLOS is a more recent instance.69 Although treaties are
as such binding only on the parties, the number of parties, the explicit acceptance of these
rules by states generally, and, in some cases, the declaratory character of the provisions in
question combine to produce a powerful law-creating effect.70 Non-parties may by their
conduct accept the provisions of a convention as representing customary international
law.71 This was the case with Hague Convention IV of 190772 and the annexed rules on land
warfare. In special circumstances, even an unratified treaty may be regarded as evidence of
generally accepted rules.73
In North Sea Continental Shelf,74 the principal issue was whether Germany was bound by
the provisions of the Geneva Convention on the Continental Shelf (GCCS) which it had
signed but not ratified. The Court concluded that only the first three articles represented
emergent or pre-existing customary law.75 The Court distinguished (p. 30) between those
articles which allowed states parties to make reservations and those which did not: the
latter, by inference, had a more fundamental status.76 The Court concluded, further, that
the provision on delimitation of shelf areas in Article 6 of the Convention had not become a
rule of customary law by virtue of the subsequent practice of states and, in particular, of
non-parties.77 In both Gulf of Maine78 and Continental Shelf (Libya v Malta),79 considerable
weight was accorded to aspects of UNCLOS, although it was not yet in force.
According to Baxter, after North Sea Continental Shelf it became clear that ‘the treaty-
making process may also have unwelcome side-effects’: this is the so-called ‘Baxter
paradox’.80 In particular, he notes that treaties declaratory or constitutive of custom may
‘arrest’ its further development and that until ‘the treaty is revised or amended, the
customary international law will remain the image of the treaty as it was before it was
revised’.81
(B) Relation of treaties to custom

When norms of treaty origin crystallize into new principles or rules of customary law, the
customary norms retain a separate identity even where the two norms may be identical in
content. Thus a state which fails to become a party to a law-making treaty may find itself
indirectly affected by the norms contained in the treaty—unless its opposition rises to the
level of persistent objection. Even then, its position may be awkward: it will be unable to
invoke the new rule itself but unable also to secure from other states continued adherence
to the old. This was the experience of the US and Japan in continuing to assert a maximum
3 nautical miles (nm) territorial sea once it became clear that most states rejected that
standard in favour of 12 nm.82 More generally, the US has sought to rely on provisions of
UNCLOS—for example, in the field of maritime transit—despite its repeated failure to ratify.
In the long run, one significant effect of non-participation in a law-making treaty is inability
to invoke its dispute-settlement provisions: a dispute can only arise under a treaty as
between parties to the treaty. This may not matter if there is a separate basis for
jurisdiction, for example under the Optional Clause or a free-standing dispute-settlement
treaty,83 and if the customary law rule is arguably the same as that (p. 31) contained in the
treaty. In Nicaragua, the position was unusual: the US relied on an Optional Clause
reservation that excluded the Court from applying the Organization of American States
(OAS) Charter, under which the dispute arose, in the absence of other affected states. The
Court avoided the effect of the jurisdictional reservation by holding that it was free to apply
customary international law (the content of which was, it held, the same as the OAS
Charter).84 But this was to confuse jurisdiction and applicable law: states do not cease to
have disputes under a treaty merely because the Court has, in consequence, no jurisdiction
over those disputes. The views of the dissenting judges on this point are to be preferred.85
As a general rule, the requirements of duration, consistency, and generality of practice, as
well as opinio juris, mean that customary law is often outpaced by specific treaties. But this
is not always the case; in the longer term, customary law may be called on to mould and
even modify treaty texts which cannot realistically be amended, however desirable
amendment might be. A case in point is the law of self-defence as expressed in Article 51 of
the UN Charter.86 This parallels the right of self-defence that existed in customary
international law prior to the Charter, but makes no mention of necessity and
proportionality. Despite the absence of these terms in Article 51, the International Court
has read them in.87 The principle does not, however, cut both ways, and the requirement in
Article 51 that any exercise of the right be reported to the Security Council has not been
imported into custom.88
5. General Principles of Law

Article 38(1)(c) of the Statute of the International Court refers to ‘the general principles of
law recognized by civilized nations’.89 This source is listed after treaty and custom, both of
which depend more immediately on state consent. Nonetheless, these general principles90
are not considered ‘subsidiary means’, a term confined to Article 38(1)(d). (p. 32) The
formulation appeared in the compromis of arbitral tribunals in the nineteenth century, and
similar formulae appear in draft instruments on the functioning of tribunals.91 In the
Committee of Jurists drafting the Statute, there was no consensus on the significance of the
phrase. Descamps (Belgium) had natural law concepts in mind; his draft referred to ‘the
rules of international law recognized by the legal conscience of civilized peoples’. Root (US)
considered that governments would mistrust a court that relied on subjective concepts
associated with principles of justice. However, the Committee realized that the Court must
have a certain power to develop and refine such principles. In the end, a joint proposal by
Root and Phillimore (UK) was accepted, and this became the text we now have.92
Root and Phillimore regarded these principles as rules accepted in the domestic law of all
civilized states, and Guggenheim thought that paragraph (c) must be applied in this light.93
However, Oppenheim’s view is preferable: ‘[t]he intention is to authorize the Court to apply
the general principles of municipal jurisprudence, in particular of private law, insofar as
they are applicable to relations of States.’94 The latter part of this statement is significant.
Tribunals have not adopted a mechanical system of borrowing from domestic law. Rather,
they have employed or adapted modes of general legal reasoning as well as comparative
law analogies in order to make a coherent body of rules for application by international
judicial process. It is difficult for state practice to generate the evolution of the rules of
procedure and evidence as well as the substantive law that a court must employ. An
international tribunal chooses, edits, and adapts elements from other developed systems.
The result is a body of international law the content of which has been influenced by
domestic law but which is still its own creation.95
(A) General principles of law in the practice of tribunals

(i) Arbitral tribunals
Arbitral tribunals have frequently resorted to analogies from municipal law. In the Fabiani96
case between France and Venezuela, the arbitrator had recourse to municipal public law on
the question of state responsibility for the state’s agents, including (p. 33) judicial officers,
for acts carried out in an official capacity. The arbitrator also relied on general principles of
law in assessing damages. The Permanent Court of Arbitration applied the principle of
moratory interest on debts in Russian Indemnity.97 Since the Statute of the Permanent
Court was concluded in 1920, tribunals not otherwise bound by it have generally treated
Article 38(1)(c) as declaratory.98
In practice, tribunals show considerable discretion in matters involving general principles.
Decisions on the acquisition of territory tend not to reflect domestic derivatives of real
property, and municipal analogies may have done more harm than good here. The evolution
of the rules on the effect of duress on treaties has not depended on changes in domestic
law.99 In North Atlantic Fisheries, the tribunal considered the concept of servitude but
refused to apply it.100 Moreover, in some cases, for example those involving the
expropriation of private rights, reference to domestic law might yield uncertain results and
the choice of model reveal ideological predilections.
(ii) The International Court and general principles
The Court has used Article 38(1)(c) sparingly. ‘General principles’ normally enter judicial
reasoning without formal reference or label. However, the Court has on occasion referred to
general notions of responsibility. In Chorzów Factory, the Court observed that ‘one Party
cannot avail himself of the fact that the other has not fulfilled some obligation or has not
had recourse to some means of redress, if the former Party has, by some illegal act,
prevented the latter from fulfilling the obligation in question, or from having recourse to the
tribunal which would have been open to him’.101 The Court went on to observe that ‘it is a
principle of international law, and even a general conception of law, that any breach of an
engagement involves an obligation to make reparation’.102 The Court has frequently relied
on the principles of acquiescence and estoppel.103 At (p. 34) other times, references to
abuse of rights and to good faith may occur.104 But the most frequent and successful use of
domestic law analogies has been in the field of evidence, procedure, and jurisdiction. Thus,
there have been references to the rule that no one can be judge in his own suit,105 to
litispendence,106 to res judicata,107 to various ‘principles governing the judicial process’,108
and to ‘the principle universally accepted by international tribunals … to the effect that the
parties to a case must abstain from any measure capable of exercising a prejudicial effect in
regard to the execution of the decision to be given’.109 In Corfu Channel, the Court
considered circumstantial evidence and remarked that ‘this indirect evidence is admitted in
all systems of law, and its use is recognized by international decisions’.110 In his dissenting
opinion in South West Africa (Second Phase), Judge Tanaka referred to Article 38(1)(c) of
the Court’s Statute as a basis for grounding the legal force of human rights concepts and
suggested that the provision contains natural law elements.111 The Court’s reasoning in
Barcelona Traction relied on the general conception of the limited liability company in
municipal legal systems,112 a position repeated in Diallo.113
(B) General principles of international law
The rubric ‘general principles of international law’ may alternately refer to rules of
customary international law, to general principles of law as in Article 38(1)(c), or to certain
logical propositions underlying judicial reasoning on the basis of existing international law.
This shows that a rigid categorization of sources is inappropriate. Examples of this type of
general principle of international law are the principles of consent, reciprocity, equality of
states, finality of awards and settlements, the legal validity of agreements, good faith,
domestic jurisdiction, and the freedom of the seas. In many cases, these principles may be
traced to state practice. However, they are primarily abstractions and have been accepted
for so long and so generally as no longer to be directly connected to state practice. Certain
fundamental principles of international law enjoy heightened normativity as peremptory
norms (see chapter 27).
(p. 35) 6. Judicial Decisions

(A) Judicial decisions and precedent in international law
Judicial decisions114 are not strictly a formal source of law, but in many instances they are
regarded as evidence of the law. A coherent body of previous jurisprudence will have
important consequences in any given case. Their value, however, stops short of precedent
as it is understood in the common law tradition.
Article 38(1)(d) starts with a proviso: ‘[s]ubject to the provisions of Article 59, judicial
decisions … as subsidiary means for the determination of rules of law.’ The significance of
the word ‘subsidiary’ is not to be overstated.115 Article 59 provides that a decision of the
Court has ‘no binding force except as between the parties and in respect of that particular
case’. Lauterpacht argued that Article 59 does not refer to the major question of judicial
precedent but to the particular question of intervention.116 Article 63 provides that if a
third state avails itself of the right of intervention, the construction given in the judgment
shall be equally binding on the intervening third state. Lauterpacht concludes that ‘Article
59 would thus seem to state directly what Article 63 expresses indirectly’. However, the
debate in the Committee of Jurists indicates clearly that Article 59 was not intended merely
to express the principle of res judicata, but rather to rule out a system of binding
precedent.117 In Polish Upper Silesia, the Court said: ‘[t]he object of [Article 59] is simply to
prevent legal principles accepted by the Court in a particular case from being binding on
other States or in other disputes.’118 In practice, however, it has not treated earlier
decisions in such a narrow spirit.119
It is true that the Court does not observe a doctrine of precedent, except perhaps on
matters of procedure. But it strives to maintain judicial consistency. In Exchange of Greek
and Turkish Populations, the Court referred to ‘the precedent afforded by’ the Wimbledon,
reflecting the principle that treaty obligations do not entail an abandonment of
sovereignty.120 In Reparation for Injuries,121 the Court relied on a pronouncement in a
previous advisory opinion122 for a statement of (p. 36) the principle of effectiveness in
interpreting treaties. Such references are often a matter of ‘evidence’ of the law, but the
Court aims for consistency and thus employs the technique of distinguishing previous
decisions.123 In Peace Treaties, for example, the questions submitted to the Court
concerned the interpretation of dispute-settlement clauses in the peace treaties with
Bulgaria, Hungary, and Romania. In fact, the request arose from other parties’ allegations
against these three states of breaches of treaty provisions on the maintenance of human
rights, allegations of substance. The Court rejected arguments that it lacked the power to
provide an opinion. It said:
Article 65 of the Statute is permissive. It gives the Court the power to examine
whether the circumstances of the case are of such a character as should lead it to
decline to answer the Request. In the opinion of the Court, the circumstances of the
present case are profoundly different from those which were before the Permanent
Court of International Justice in the Eastern Carelia case.124
Attempts have sometimes been made to have the Court depart explicitly from an earlier
decision: the Court has either declined to do so125 or has bypassed the point entirely.126 But
there is no doubt as to the Court’s power to depart from or qualify the effect of an earlier
decision, something which it is more inclined to do tacitly.127 The position may be different
when there is a line of concordant decisions (a jurisprudence constante), in which case
reversal is not to be expected.128
(p. 37) (B) Decisions of international tribunals

The literature contains frequent reference to decisions of arbitral tribunals. The quality of
such decisions varies considerably. However, certain arbitral awards have made notable
contributions to the development of the law.129
Much depends on the status of the tribunal and of its members, and on the conditions under
which it conducts its work. The judgment of the International Military Tribunal for the Trial
of German Major War Criminals,130 the decisions of the Iran–United States Claims Tribunal,
and the decisions of the International Criminal Tribunal for the Former Yugoslavia, among
others, contain significant findings on issues of law. The International Court has referred to
arbitral decisions on many occasions;131 it also refers compendiously to the jurisprudence
of international arbitration.132
(C) Decisions of the international court and its predecessor
In theory, the Court applies the law and does not make it, and Article 59 of the Statute
reflects a feeling on the part of the drafters that the Court was intended to settle disputes
as they came to it rather than to shape the law. Yet a decision, especially if unanimous or
almost unanimous, may play a catalytic role in the development of the law. The early
decisions and advisory opinions in Reparation for Injuries, Reservations, and Anglo-
Norwegian Fisheries had a decisive influence. However, some discretion is called for in
handling decisions. The much-criticized Lotus decision for instance, the outcome of the
casting vote of the President, was rejected by the ILC, a position endorsed in 1958 and
again in 1982.133 At its third session, the ILC refused (p. 38) to accept the principles
emerging from the Reservations advisory opinion (a stance which was reversed at its
fourteenth session).134 Moreover, it may display a lack of caution to extract general
propositions from opinions and judgments devoted to a specific problem or to the
settlement of a dispute entangled with the special relations of two states.135
In practice, open defiance of the Court’s authority by other courts and tribunals is rare.136
Although its judgments are only binding between the parties, and not binding at all in the
case of an advisory opinion, the Court’s uninterrupted history, stated preference for
consistency, and wide jurisdiction ratione materiae have resulted in its pronouncements on
issues of substance being given great weight.
Moreover, the Court has proved influential in defining the procedural law of international
courts and tribunals, such that some commentators have now begun to refer to ‘a common
law of international adjudication’.137 Whilst it is correct that in international law ‘every
tribunal is a self-contained system (unless otherwise provided)’,138 the Court’s lengthy
period of operation—throughout much of which it was the only international tribunal of any
significance—has enabled it to lay down a body of procedural case law which was and is a
natural source of guidance for other bodies.
(D) Decisions of national courts

Article 38(1)(d) of the Statute of the International Court is not limited to international
decisions. Decisions of national courts also have value.139 Some decisions provide indirect
evidence of the practice of the forum state on the question involved.140 Others involve an
independent investigation of a point of law and a consideration of available sources, and
thus may offer a careful exposition of the law. Municipal judicial decisions have been an
important source of material on the recognition of governments and states, state
succession, state and diplomatic immunity, extradition, war crimes, belligerent occupation,
and the concept of a ‘state of war’.141 However, the value of these decisions varies
considerably; individual decisions may present a narrow, parochial (p. 39) outlook or rest on
an inadequate use of sources. A further problem arises from the sheer number of domestic
decisions touching on international law. While the most significant of these may be widely
publicized,142 others go unnoticed.
7. Other Material Sources

(A) Conclusions of international conferences
The ‘final act’ or other statement of conclusions of a conference of states may be a form of
multilateral treaty, but, even if it is an instrument recording decisions not adopted
unanimously, the result may constitute cogent evidence of the state of the law on the
subject. Even before the necessary ratifications are received, a convention embodied in a
Final Act and expressed as a codification of existing principles may be influential.143
(B) Resolutions of the general assembly
General Assembly resolutions are not binding on member states except on certain UN
organizational matters. However, when they are concerned with general norms of
international law, acceptance by all or most members constitutes evidence of the opinions
of governments in what is the widest forum for the expression of such opinions.144 Even
when resolutions are framed as general principles, they can provide a basis for the
progressive development of the law and, if substantially unanimous, for the speedy
consolidation of customary rules. Examples of important ‘law-making’ resolutions include
the General Assembly’s Affirmation of the Principles of International Law recognized by the
Charter of the Nuremberg Tribunal;145 the Declaration on the Granting of Independence to
Colonial Countries and Peoples;146 the Declaration on Permanent Sovereignty over Natural
Resources;147 the Declaration of Legal Principles Governing Activities of States in the
Exploration and Use of Outer Space;148 the Rio Declaration on Environment and
Development;149 and the UN Declaration on the Rights of Indigenous Peoples.150 In some
cases, a resolution may have effect as an authoritative (p. 40) interpretation and application
of the principles of the Charter: this is true notably of the Friendly Relations Declaration of
1970.151 But each resolution must be assessed in the light of all the circumstances,
including other available evidence of the states’ opinions on the point or points in issue.
(C) The writings of publicists

The Statute of the International Court includes, among the ‘subsidiary means for the
determination of rules of law’, ‘the teachings of the most highly qualified publicists of the
various nations’ or, in the French text, ‘la doctrine’.152 The phrase ‘most highly qualified’ is
—fortunately or otherwise—not given a restrictive effect, but authority naturally affects
weight. In some areas, individual writers have had a formative influence. However,
subjective factors enter into any assessment of juristic opinion and individual writers will
tend to reflect national and other prejudices; further, some publicists see themselves to be
propagating new and better views rather than providing a presentation of the existing law,
a tendency the more widespread given increasing specialization.
Whatever the grounds for caution, the opinions of publicists enjoy wide use. Arbitral
tribunals and national courts make sometimes copious reference to jurists’ writings.
National courts are generally unfamiliar with state practice and are ready to rely on
secondary sources as a substitute. Ostensibly, the International Court might seem to make
little or no use of jurists’ writings.153 However, this is because of the process of collective
drafting of judgments, and the need to avoid an invidious selection of citations. The fact
that the Court makes use of writers’ work is evidenced by dissenting and separate
opinions,154 in which the ‘workings’ are set out in more detail, and which reflect the Court’s
actual methods. There are many references to writers in pleadings before the Court.
(p. 41) (D) Codification and the work of the international law
commission
A source analogous to the writings of publicists, and at least as authoritative, is the work of
the ILC, including its articles and commentaries, reports, and secretariat memoranda. Also
in the same category are the bases of discussion of the 1930 Hague Codification
Conference, and (to a lesser extent) the reports and resolutions of the Institute of
International Law and other expert bodies.
Narrowly defined, codification involves the comprehensive setting down of the lex lata and
the approval of the resulting text by a law-determining agency. The process has been
carried out historically at international conferences, beginning with the First and Second
Hague Peace Conferences of 1899 and 1907, and by groups of experts whose drafts were
the subjects of conferences sponsored by the League of Nations or by the American states.
However, the ILC, created as a subsidiary organ of the General Assembly in 1947 on the
basis of Article 13(1)(a) of the Charter, has had more success in the process of codification
than the League bodies had.155 Its membership combines technical qualities and civil
service experience, so that its drafts may reflect solutions acceptable to governments.
Moreover, it reflects a variety of political and regional standpoints. In practice, the ILC has
found it impossible to maintain a strict separation of its tasks of codification and of
‘progressive development’ of the law. Its work on various topics, notably the law of the sea,
has provided the basis for successful conferences of plenipotentiaries and for the resulting
multilateral conventions. In 2001, it adopted its Articles on Responsibility of States for
Internationally Wrongful Acts following nearly four decades of work, but expressed the view
that there was no immediate need to convene a conference for their adoption as a treaty.156
They have been relied upon extensively by international courts and tribunals as an
authoritative statement of the law on state responsibility.157
8. Other Considerations Applicable in Judicial Reasoning

(A) Equity in the jurisprudence of the international court
‘Equity’ refers to considerations of fairness and reasonableness often necessary for the
application of settled rules of law. Equity is not itself a source of law, yet it may be an
important factor in the process of decision-making. Equity may play a significant role in
supplementing the law, or may unobtrusively enter judicial reasoning. In Diversion of Water
from the River Meuse, Judge Hudson applied the principle that equality is (p. 42) equity,
and stated as a corollary that a state requesting the interpretation of a treaty must itself
have fulfilled its treaty obligations. He observed that under ‘Article 38 of the Statute, if not
independently of that Article, the Court has some freedom to consider principles of equity
as part of the international law which it must apply’.158 For its part, the Court focused on
the interpretation of the relevant treaty.
In North Sea Continental Shelf,159 the Court had to resort to the formulation of equitable
principles concerning the lateral delimitation of adjacent areas of the continental shelf. This
was a consequence of its opinion that GCCS Article 6 did not represent customary law. In
Fisheries Jurisdiction (UK v Iceland), the International Court outlined an ‘equitable solution’
to the differences over fishing rights and directed the parties to negotiate accordingly.160 In
Frontier Dispute (Burkina Faso v Mali), the Chamber of the Court applied the principle of
‘equity infra legem’ to the division of a frontier pool.161 More recently, the Court employed
‘equitable considerations’ to quantify a claim for compensation in the Diallo case.162
Reference should also be made to Article 38(2),163 which provides: ‘[t]his provision shall not
prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree
thereto.’ The power of decision ex aequo et bono involves elements of compromise and
conciliation, whereas equity in the general sense (‘equity infra legem’) finds application as
part of the normal judicial function. In Free Zones, the Permanent Court, under an
agreement between France and Switzerland, was asked to settle the questions involved in
the execution of a provision in the Treaty of Versailles.164 While the Court had to decide on
the future customs regime of the zones, the agreement contained no reference to any
decision ex aequo et bono. Switzerland argued that the Court should work on the basis of
existing rights, and, by a technical majority including the vote of the President, the Court
agreed. It said:
… even assuming that it were not incompatible with the Court’s Statute for the
Parties to give the Court power to prescribe a settlement disregarding rights
recognized by it and taking into account considerations of pure expediency only,
such power, which would be of an absolutely exceptional character, could only be
derived from a clear and explicit provision to the effect, which is not to be found in
the Special Agreement …165
(p. 43) The majority doubted the Court’s power to give decisions ex aequo et bono, but it
would be unwise to draw general conclusions since much turned on the nature of the
agreement. Additionally, the majority regarded the power to decide cases ex aequo et bono
as distinct from the notion of equity. However, the terminology is not well settled. The
drafters of the General Act of Geneva of 1928166 apparently regarded a settlement ex aequo
et bono as synonymous with equity. The converse, where ‘equity’ refers to settlement ex
aequo et bono, has arisen in some arbitration agreements. On occasion, equity is treated as
the equivalent of general principles of law.167
(B) Considerations of humanity

Considerations of humanity will depend on the judge’s subjective appreciation, a factor
which cannot be excluded. However, these considerations may relate to human values
already protected by positive legal principles which, taken together, reveal certain criteria
of public policy and invite analogy. Such criteria are connected with general principles of
law and equity, and need no particular justification. References to principles or laws of
humanity appear in preambles to conventions,168 in General Assembly resolutions,169 and in
diplomatic practice. The classic reference is a passage from Corfu Channel,170 in which the
Court relied on certain ‘general and well-recognized principles’, including ‘elementary
considerations of humanity, even more exacting in peace than in war’. On occasions, the
provisions of the UN Charter concerning the protection of human rights and fundamental
freedoms have seen use as a basis for the legal status of considerations of humanity.171
(C) ‘Legitimate interests’
In particular contexts, the applicability of rules of law may depend on criteria of good faith,
reasonableness, and the like. Legitimate interests, including economic interests, may in
these circumstances be taken into account. Recognition of legitimate interests explains the
extent of acquiescence in the face of claims to the continental shelf and to fishing zones. In
this type of situation, it is, of course, acquiescence and recognition (p. 44) that provide the
formal bases for the development of the new rules. In Anglo-Norwegian Fisheries, the Court
did not purport to be doing anything other than applying existing rules, but it had to justify
this special application of the normal rules to the Norwegian coastline. In doing so, it
referred to ‘certain economic interests peculiar to a region, the reality and importance of
which are clearly evidenced by a long usage’.172 It also referred to traditional fishing rights
buttressed by ‘the vital needs of the population’ in determining particular baselines.173
Judge McNair, dissenting, expressed disquiet:
In my opinion the manipulation of the limits of territorial waters for the purpose of
protecting economic and other social interests has no justification in law; moreover,
the approbation of such a practice would have a dangerous tendency in that it
would encourage States to adopt a subjective appreciation of their rights instead of
conforming to a common international standard.174
This caution is justified, but the law is inevitably bound up with the accommodation of
different interests, and the application of rules usually requires an element of appreciation.
9. Conclusion
Article 38 of the Statute has generated much debate, and there are perennial questions; for
example, as to how it can be applied to produce a definitive result, as to how established
rules of customary international law can change, and as to the implications for the stability
of the legal order of such notions as the persistent objector. Yet, at a practical level, results
are achieved which attract broad support; the content of rules does change and develop,
and persistent objection occurs without the system dissolving in a miasma of bilateral
relations. Materially, international law is now overwhelmingly developed by treaty, yet
treaties depend upon customary law for their binding character, their interpretation, and
often for their effect. Indeed, every decision by a state (the state is itself a customary law
phenomenon) not to enter into a treaty is an appeal to custom as the default rule, just as
every reference to a treaty provision not in force for the state in question is an appeal to the
generating capacity of custom amidst texts. Article 38 works because it has to.
Footnotes:
1
26 June 1945, 892 UNTS 119.
2
The Vienna Convention on the Law of Treaties (VCLT), 22 May 1969, 1155 UNTS 331,
does not define ‘bilateral’ or ‘multilateral’. Article 60(1) assumes that a bilateral treaty is
between two parties. Likewise, Arts 40–1, 55, 58, 60, 69, and 70 assume that a multilateral
treaty is between three or more. Further: Crawford (2006) 319 Hague Recueil 326.
3
VCLT, Art 34.
4
Thirlway, The Sources of International Law (2014) 129–32.
5
16 December 1920, 112 BFSP 317.
6
The clause in the first paragraph ‘whose function is to decide in accordance with
international law’ was added in 1946 in order to emphasize that the application of the
enumerated sources was the application of international law: Thirlway (2014) 5–6.
7
Generally: Hudson, The Permanent Court of International Justice (1943) 601–12; Pellet in
Zimmermann et al (eds), The Statute of the International Court of Justice (2012) 731. Also:
Revised General Act for the Pacific Settlement of International Disputes, 28 April 1949, 71
UNTS 101, Art 28; ILC Model Rules on Arbitral Procedure, Art 10, ILC Ybk 1958/II, 78, 83;
Scelle, ILC Ybk 1958/II, 1, 8. Article 38 has often been incorporated textually or by
reference in the compromis of other tribunals.
8
Akehurst (1974–5) 47 BY 273, 274–5; Thirlway (2014) 133. But see South West Africa
(Ethiopia v South Africa; Liberia v South Africa), Second Phase, ICJ Reports 1966 p 6, 300
(Judge Tanaka, diss). In general: Villiger, Customary International Law and Treaties (2nd
edn, 1997); Charney in Delbrück (ed), New Trends in International Lawmaking (1997) 171;
Meron (2003) 301 Hague Recueil 9, 373.
9
In accordance with the lex specialis principle: see Fragmentation of International Law,
Report of the Study Group of the ILC, A/CN/4/L.702, 18 July 2006, esp 8–11; Vranes (2006)
17 EJIL 395. Cf d’Aspremont in Fitzmaurice & Merkouris (eds), The Interpretation and
Application of the European Convention of Human Rights (2013) 3, 20. For special custom
as a lex specialis: Right of Passage over Indian Territory (Portugal v India), ICJ Reports
1960 p 6, 39–40.
10
Indeed, this is the definition of a peremptory norm, at least according to VCLT, Art 53.
Further: chapter 27. As to a conflict between peremptory norms and customary law, see
Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), ICJ Reports
2012 p 99, 140. Further: Boudreault (2012) 25 LJIL1003.
11
Cf VCLT, Arts 31–3. Further: chapter 16.
12
Air Transport Services Agreement (1963) 38 ILR 182, 248–55.
13
Séfériadès (1936) 43 RGDIP 129; de Visscher (1955) 59 RGDIP 353; Lauterpacht,
Development (1958) 368–93; D’Amato, The Concept of Custom in International Law (1972);
Akehurst (1974–5) 47 BY 1; Wolfke, Custom in Present International Law (2nd edn, 1993);
Perreau-Saussine & Murphy (eds), The Nature of Customary Law (2007); Orakhelashvili
(2008) 68 ZaöRV 69; d’Aspremont, Formalism and the Sources of International Law (2011)
162–70; Kammerhofer, Uncertainty in International Law (2011) 59–85; Crawford, Chance,
Order, Change (2014) 48; Thirlway (2014) 53; Bradley (ed), Custom’s Future (2016). For
approaches to custom that draw on economic theory: Goldsmith & Posner (1999) 66 U Chic
LR 1113; Norman & Trachtman (2005) 99 AJIL 541; Lepard, Customary International Law
(2010). For the ILC’s Draft Conclusions on Identification of Customary International Law,
see Report of the ILC, A/71/10, 18 August 2016, 74.
14
Fisheries (UK v Norway), ICJ Reports 1951 p 116, 191 (Judge Read).
15
Parking Privileges for Diplomats (1971) 70 ILR 396; Roberts (ed), Satow’s Diplomatic
Practice (6th edn, 2009) para 9.15.
16
See the Alabama (1872) in Moore, 1 Int Arb 653; The Paquete Habana, 175 US 677,
693–4 (1900); Parking Privileges for Diplomats (1971) 70 ILR 396, 402–4; Dodge (2015) 115
CLR 2071.
17
E.g. some diplomatic tax exemptions were originally granted as a matter of comity but
are now consolidated as legal requirements in the Vienna Convention on Diplomatic
Relations (VCDR), 18 April 1961, 500 UNTS 95, Art 36. See further: Roberts (6th edn, 2009)
paras 8.4–8.5.
18
E.g. references to ‘every State’ or ‘all States’ in UNCLOS, Arts 3, 17, 79, 87, etc.
19
ICJ Reports 1951 p 116, 131.
20
ICJ Reports 2012 p 99, 126–35.
21
On the rapid evolution of key rules concerning the continental shelf: Crawford & Viles in
Crawford, Selected Essays (2002) 69.
22
North Sea Continental Shelf (Federal Republic of Germany/Netherlands; Federal
Republic of Germany/Denmark), ICJ Reports 1969 p 3, 43. See further: ILC Draft
Conclusions on Identification of Customary International Law, Report of the ILC, A/71/10,
18 August 2016, Draft Conclusion 8(2), 96.
23
See Heller (2018) 112 AJIL 191; Yeini, ibid, 244.
24
(1946) 40 AJIL Supp 45. For the Court’s reasons for rejecting the ‘equidistance/special
circumstances’ rule, see ICJ Reports 1969 p 6, 43–6. For maritime delimitation, see further
chapter 12.
25
SS Lotus (1927) PCIJ Ser A No 10, 16; cf Lauterpacht (1958) 384–6. Also The Paquete
Habana, 175 US 677 (1900).
26
29 April 1958, 450 UNTS 11, Art 11; UNCLOS, Art 97.
27
Merits, ICJ Reports 1974 p 3, 23–6. For reliance on the practice of a limited number of
states, see SS Wimbledon (1923) PCIJ Ser A No 1, 15, 25–8.
28
Merits, ICJ Reports 1974 p 3, 23–4.
29
UNCLOS, Part V, and further: chapter 11.
30
See Guggenheim, 1 Études Scelle (1950) 275. For Kelsen, opinio juris is a fiction to
disguise the creative powers of the judge: Kelsen (1939) 1 RITD 253. Cf Kelsen, Principles
of International Law (2nd edn, 1967) 450–1. But analytically the judge is in no different
position than any other evaluator of custom, except that the judge’s decision may bind the
parties (ICJ Statute, Art 59).
31
Further: Kirgis (1987) 81 AJIL 146, arguing that custom operates on a ‘sliding scale’,
along which the level of opinio juris required to substantiate an assertion of custom is
directly relative to the manifestation of state practice. Also Roberts (2001) 95 AJIL 757.
32
Lit, ‘an opinion of law or necessity’. The first appearance of the term seems to have been
in von Liszt, Das Völkerrecht (1st edn, 1898) 6; von Liszt, Das Völkerrecht (3rd edn, 1925)
16; also Rivier, Principes de droit des gens (1896) 35, who refers to the idea but does not
use the term. It is implicit in the judgment in SS Lotus (1927) PCIJ Ser A No 10, 28, but was
not actually used by the Court until North Sea Continental Shelf, ICJ Reports 1969 p 3, 43–
4; thence (spuriously) Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v US), ICJ Reports 1986 p 14, 96–8. Cf Mendelson (1995) 66 BY 177, 194;
Dahlman (2012) 81 Nordic JIL 327, 330.
33
North Sea Continental Shelf, ICJ Reports 1969 p 3, 44; Delimitation of the Maritime
Boundary in the Gulf of Maine Area (Canada v US), ICJ Reports 1984 p 246, 293–4;
Nicaragua, ICJ Reports 1986 p 14, 108–9; Legality of the Threat or Use of Nuclear
Weapons, ICJ Reports 1996 p 226, 254–5; Armed Activities on the Territory of the Congo
(DRC v Uganda), ICJ Reports 2005 p 168, 226–7, 242; Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2006 p 136, 171–2;
Pulp Mills on the River Uruguay (Argentina v Uruguay), ICJ Reports 2010 p 14, 82. Also:
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area, ITLOS Case No 17 (2011) 150 ILR 244, 281.
34
(1927) PCIJ Ser A No 10, 28; also ibid, 60 (Judge Nyholm, diss); 97 (Judge Altamira,
diss).
35
For criticism: Lauterpacht (1958) 386. See, however, MacGibbon (1957) 33 BY 115, 131.
36
29 April 1958, 499 UNTS 311.
37
ICJ Reports 1969 p 3, 28, 32–41.
38
Ibid, 41–2.
39
Ibid, 43.
40
Ibid, 43–5. For contemporary comment: Baxter (1970) 129 Hague Recueil 31, 67–9;
D’Amato (1970) 64 AJIL 892; Marek (1970) 6 RBDI 44. Also Nuclear Tests (Australia v
France), ICJ Reports 1974 p 253, 305–6 (Judge Petrén).
41
ICJ Reports 1986 p 14, citing ICJ Reports 1969 p 6, 44.
42
ICJ Reports 1986 p 14, 108–9. Also ibid, 97–8, 97–103, 106–8.
43
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo),
Preliminary Objections, ICJ Reports 2007 p 582, 615.
44
For criticism of the Court’s sometimes unpredictable approach to identifying customary
rules, see Yee (2016) 7 JIDS 472, 479–87.
45
The principle was recognized by both parties, and by the Court, in Anglo-Norwegian
Fisheries, ICJ Reports 1951 p 116, 131. Also: North Sea Continental Shelf, ICJ Reports 1969
p 3, 26–7, 131 (Judge Ammoun); 235, 238 (Judge Lachs, diss); 247 (Judge ad hoc Sørensen,
diss); Asylum (Colombia v Peru), ICJ Reports 1950 p 266, 277–8; and cf the central finding
of non-opposability of exclusive fisheries zone claims in Fisheries Jurisdiction (UK v
Iceland), Merits, ICJ Reports 1974 p 3, 29–31.
46
Examples include the US and Japan’s refusal to accept territorial sea claims of more
than 3nm (O’Connell, 1–2 The International Law of the Sea (ed Shearer, 1982) 156, 163–4),
and the refusal of the People’s Republic of China to accept the restrictive doctrine of
sovereign immunity (Democratic Republic of Congo v FG Hemisphere Associates (No 1)
Hong Kong Court of Final Appeal, 147 ILR 376).
47
Green, The Persistent Objector Rule in International Law (2016) 49. Cf D’Amato (2014)
108 AJIL 650, 668.
48
For the ILC’s Draft Conclusions on Identification of Customary International Law, see
Report of the ILC, A/71/10, 18 August 2016, 74.
49
See esp Charney (1985) 56 BY 1; Charney (1993) 87 AJIL 529. Further: Fitzmaurice
(1957) 92 Hague Recueil 5, 99–101; Waldock (1962) 106 Hague Recueil 5, 49–53; Schachter
(1982) 178 Hague Recueil 21, 36–8; Elias, ‘Persistent Objector’ (2006) MPEPIL; Quince, The
Persistent Objector and Customary International Law (2010); Dumberry (2010) 59 ICLQ
779; Green (2016) 260.
50
Seabed Advisory Opinion (2011) 150 ILR 244, 307, referring to the obligations of states
in general with respect to activities in the deep seabed.
51
E.g. the disagreement between the US and many other states as to the definition of
torture: US reservation upon ratification of the Convention against Torture, 21 October
1994, and objections by Finland, 27 February 1996; Netherlands, 26 February 1996;
Sweden, 27 February 1996; Germany, 26 February 1996. Cf further criticism in Report of
the Committee against Torture, A/55/44 (2000) paras 179–80; Murphy, 1 US Digest (2002)
279–80, 289–98; Nowak & McArthur (eds), The United Nations Convention against Torture
(2008) paras A1:10, 20, 24–5, 50–4.
52
For further practical benefits of the persistent objector rule, see Green (2016) 257.
53
ICJ Reports 1951 p 116.
54
The dictum requiring explanation is: ‘In any event the ten-mile rule would appear to be
inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it
to the Norwegian coast.’ ICJ Reports 1951 p 116, 131. See Fitzmaurice (1957) 92 Hague
Recueil 5, 99–101; Sørensen (1960) 101 Hague Recueil 5, 43–7.
55
E.g. Lauritzen v Chile (1956) 23 ILR 708, 710–12. See Green (2016) 138–43, 234.
56
Since a delict cannot be justified on the basis of a desire to change the law, the question
of opinio juris arises in a special form. In the early stages of change this can amount to little
more than a plea of good faith. For a recent attempt to argue a change to an established
customary rule, see Italy’s arguments in Jurisdictional Immunities of the State, ICJ Reports
2012 p 99, 126.
57
Cf commentary to Draft Conclusion 16 of ILC Draft Conclusions on Identification of
Customary International Law, Report of the ILC, A/71/10, 18 August 2016, 114.
58
ICJ Reports 1960 p 6, 39–43; cf 62–3 (Judge Wellington Koo); 82–4 (Judge Armand-Ugon,
diss); 110 (Judge Spender, diss). Also: Jurisdiction of the European Commission of the
Danube (1927) PCIJ Ser B No 14, 6, 114 (Deputy-Judge Negulesco, diss); Nottebohm
(Liechtenstein v Guatemala), Second Phase, ICJ Reports 1955 p 4, 30 (Judge Klaestead,
diss).
59
ICJ Reports 1960 p 6, 39.
60
Generally: D’Amato (1969) 63 AJIL 211; Antunes, Estoppel, Acquiescence and
Recognition in Territorial and Boundary Dispute Settlement (2000); Antunes,
‘Acquiescence’ (2006) MPEPIL.
61
Asylum, ICJ Reports 1950 p 266, 276.
62
Ibid, 276–7.
63
Ibid, 277–8.
64
E.g. Rights of Nationals of the United States of America in Morocco (France v US), ICJ
Reports 1952 p 176, 199–200, citing Asylum, ICJ Reports 1950 p 266, 276–7. Also:
Lauterpacht (1958) 388–92.
65
Generally: Corten & Klein (eds), The Vienna Conventions on the Law of Treaties (2011);
Hollis (ed), The Oxford Guide to Treaties (2012); Aust, Modern Treaty Law and Practice
(3rd edn, 2013); Tams, Tzanakopoulos, & Zimmermann (eds), Research Handbook on the
Law of Treaties (2014); Thirlway (2014) 31; Bjorge, The Evolutionary Interpretation of
Treaties (2014); Kolb, The Law of Treaties (2016). See further: chapter 16.
66
See SS Wimbledon (1923) PCIJ Ser A No 1, 25; Panevezys–Saldutiskis Railway (1939)
PCIJ Ser A/B No 76, 51–2 (Judge Erich); Nottebohm, ICJ Reports 1955 p 4, 22–3. See also
Baxter (1970) 129 Hague Recueil 27, 75–91. Cf Dumberry, The Formation and Identification
of Rules of Customary International Law in International Investment Law (2016) 171.
67
Cf Re Tribble (1953) 20 ILR 366; N v Public Prosecutor of the Canton of Aargau (1953)
20 ILR 363.
68
GA Res 2625(XXV), 24 October 1970, as to which see Arangio-Ruiz (1972) 137 Hague
Recueil 419.
69
10 December 1982, 1833 UNTS 3.
70
McNair (1961) 216–18 describes Art 2, paras 3–4 of the Charter as the ‘nearest
approach to legislation by the whole community of States that has yet been realised’.
71
There must be evidence of consent to the extension of the rule, particularly if the rule is
found in a regional convention: European Human Rights Convention (1955) 22 ILR 608,
610. Cf the treatment of a European regional convention in Pulp Mills, ICJ Reports 2010 p
14, 82–7.
72
E.g. In re Goering (1946) 13 ILR 203.
73
See Nottebohm, Second Phase, ICJ Reports 1955 p 4, 23; Namibia Advisory Opinion, ICJ
Reports 1971 p 16, 47. Cf North Sea Continental Shelf, ICJ Reports 1969 p 3, 41–3; Baxter
(1970) 129 Hague Recueil 27, 61.
74
ICJ Reports 1969 p 3.
75
Ibid, 32–41, 86–9 (Judge Padilla Nervo); 102–6, 123–4 (Judge Ammoun).
76
ICJ Reports 1969 p 3, 39–40 (majority); 182 (Judge Tanaka, diss); 198 (Judge Morelli,
diss); 223–5 (Judge Lachs, diss); 248 (Judge Sørensen, diss). Cf Baxter (1970) 129 Hague
Recueil 27, 47–51.
77
North Sea Continental Shelf, ICJ Reports 1969 p 3, 41–5. As to the effect of subsequent
practice on the interpretation of treaties, see ILC Draft Conclusions on Subsequent
Agreements and Subsequent Practice in relation to the Interpretation of Treaties and
commentaries thereto, Report of the ILC, A/71/10, 18 August 2016, 118.
78
ICJ Reports 1982 p 246, 294–5.
79
ICJ Reports 1985 p 13, 29–34.
80
Baxter (1970) 129 Hague Recueil 27, 92. Further: Baxter (1965–6) 41 BY 275.
81
Baxter (1970) 97. See Crawford, Chance, Order, Change (2014) 90–112 for a full
discussion.
82
Nicaragua, ICJ Reports 1986 p 14, 92–6, 152–4 (President Nagendra Singh); 182–4
(Judge Ago); 204–8 (Judge Ni); 216–19 (Judge Oda, diss); 302–6 (Judge Schwebel, diss);
529–36 (Judge Jennings, diss).
83
E.g. American Treaty on Pacific Settlement, 30 April 1948, 30 UNTS 55; European
Convention for the Pacific Settlement of Disputes, 29 April 1957, 320 UNTS 243.
84
Nicaragua, ICJ Reports 1986 p 14, 92–6, 152–4 (President Nagendra Singh).
85
Ibid, 216–19 (Judge Oda, diss); 302–6 (Judge Schwebel, diss); 529–36 (Judge Jennings,
diss). Further: Crawford, ‘Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States of America)’ (2006) MPEPIL.
86
Jia (2010) 9 Chin JIL 81, 98–100; Crawford, Chance, Order, Change (2014) 110. On self-
defence in international law: Alder, The Inherent Right of Self-Defence in International Law
(2013) and chapter 33.
87
Nuclear Weapons, ICJ Reports 1996 p 226, 244–5.
88
Nicaragua, ICJ Reports 1986 p 14, 105.
89
The adjective ‘civilized’ was introduced by the Committee of Jurists in 1920. The
Committee apparently considered all nations ‘civilized’, though it is easy to see how that
term could possess an unfortunate, even colonialist, connotation. ‘It can be firmly admitted
that, for the time being, all States must be considered as “civilized nations”’: Pellet in
Zimmermann et al (2012) 836–7.
90
Generally: Lauterpacht, Private Law Sources and Analogies of International Law (1927);
Fitzmaurice (1957) 92 Hague Recueil 1; Cheng, General Principles of Law as Applied by
International Courts and Tribunals (2nd edn, 1987); Raimondo, General Principles of Law in
the Decisions of International Criminal Courts and Tribunals (2008); Ellis (2011) 22 EJIL
949; Gaja, ‘General Principles of Law’ (2013) MPEPIL; Thirlway (2014) 92; Pineschi (ed),
General Principles of Law (2015).
91
See Art 7 (on general principles of justice and equity) of Convention XII Relative to the
Establishment of an International Prize Court, 18 October 1907, 3 NRG 3rd Ser 688 (never
entered into force). Also: European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR), 4 November 1950, 213 UNTS 222, Art 7(2), providing for
‘the trial and punishment of any person for any act or omission which, at the time when it
was committed, was criminal according to the general principles of law recognized by
civilized nations’.
92
Descamps, Procès-verbaux (1920) 316, 335, 344.
93
Guggenheim (1958) 94 Hague Recueil 6, 78.
94
1 Oppenheim, para 12.
95
See Tunkin (1958) 95 Hague Recueil 5, 23–6; de Visscher, Theory and Reality in Public
International Law (3rd edn, 1968) 400–2. Cf South West Africa, ICJ Reports 1950 p 128, 158
(Judge McNair, diss).
96
(1902) 10 RIAA 83. The claim was based on denial of justice by the Venezuelan courts.
97
(1912) 1 HCR 297. See also Sarropoulos v Bulgarian State (1927) 4 ILR 245.
98
See e.g. US v Germany (1923) 2 ILR 367; Romania v Germany (1927) 4 ILR 542; Lena
Goldfields (1930) 5 ILR 3; Greek Powder & Cartridge Co v German Federal Republic (1958)
25 ILR 544, 545; Arbitration between Newfoundland and Labrador and Nova Scotia (2002)
128 ILR 425, 534–5; Feldman v Mexico (2002) 126 ILR 26, 42; Waste Management v Mexico
(2002) 132 ILR 146, 171–2; Abyei Arbitration (2009) 144 ILR 348, 504.
99
Nineteenth-century writers took the view that duress directed against the state had no
vitiating effect. Since 1920, the contrary view has been accepted, under the influence not of
domestic analogy but of developments in the law relating to the use of force: VCLT, Arts 51–
2, and further: chapters 16, 33.
100
(1910) 1 HCR 141.
101
Factory at Chorzów, Jurisdiction (1927) PCIJ Ser A No 9, 31.
102
Factory at Chorzów, Merits (1928) PCIJ Ser A No 17, 29.
103
Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No 53, 52–4, 62, 69; Arbitral
Award Made by the King of Spain (Honduras v Nicaragua), ICJ Reports 1960 p 192, 209,
213; Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962 p 6, 23, 31–2, 39–51
(Judge Alfaro). Also ibid, 26, where the Court said: ‘It is an established rule of law that the
plea of error cannot be allowed as an element vitiating consent if the party advancing it
contributed by its own conduct to the error.’ Further: Barcelona Traction, Light and Power
Co, Ltd (Belgium v Spain), Preliminary Objections, ICJ Reports 1964 p 6, 24–5; North Sea
Continental Shelf, ICJ Reports 1969 p 3, 26; Gulf of Maine, ICJ Reports 1984 p 246, 308–9;
Cameroon v Nigeria, Preliminary Objections, ICJ Reports 1998 p 275, 303–4; Legality of
Use of Force (Serbia and Montenegro v Canada), Preliminary Objections, ICJ Reports 2004
p 429, 444–7. On acquiescence and estoppel, see: chapter 18.
104
E.g. Free Zones of Upper Savoy and the District of Gex (1930) PCIJ Ser A No 24, 12;
(1932) PCIJ Ser A/B No 46, 167. For individual judges’ use of analogies: Lauterpacht (1958)
167. Also Right of Passage, ICJ Reports 1960 p 6, 66–7 (Judge Wellington Koo); 90 (Judge
Moreno Quintana, diss); 107 (Judge Spender, diss); 136 (Judge ad hoc Fernandes, diss).
105
Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne (1925) PCIJ Ser B
No 12, 32.
106
Certain German Interests in Polish Upper Silesia, Preliminary Objections (1925) PCIJ
Ser A No 6, 20.
107
Effect of Awards of Compensation Made by the United Nations Administrative Tribunal,
ICJ Reports 1954 p 47, 53.
108
Application for Review of Judgment No 158 of the United Nations Administrative
Tribunal, ICJ Reports 1973 p 166, 177, 181, 210; Application for Review of Judgment No
273 of the United Nations Administrative Tribunal, ICJ Reports 1982 p 325, 338–40, 345,
356.
109
Electricity Co of Sofia and Bulgaria (1939) PCIJ, Interim Measures of Protection, Ser A/
B No 79, 199.
110
ICJ Reports 1949 p 4, 18. Also: Right of Passage, Preliminary Objections, ICJ Reports
1957 p 125, 141–2; German Interests (1925) PCIJ Ser A No 6, 19.
111
ICJ Reports 1966 p 6, 294–9 (Judge Tanaka, diss).
112
Barcelona Traction, ICJ Reports 1970 p 3, 33–5.
113
Diallo, ICJ Reports 2010 p 639, 675.
114
Generally: Lauterpacht (1958) 8–22. Further: Pellet in Zimmermann et al (2012) 854–
68.
115
Fitzmaurice in Symbolae Verzijl (1958) 153, 174 (criticizing the classification).
116
Lauterpacht (1958) 8.
117
See Descamps (1920) 332, 336, 584. Also: Sørensen (1946) 161; Hudson (1943) 207;
Waldock (1962) 106 Hague Recueil 5, 91.
118
German Interests (1926) PCIJ Ser A No 7, 19.
119
Generally: Lauterpacht (1931) 12 BY 31, 60; Lauterpacht (1958) 9–20. Further:
Shahabuddeen, Precedent in the World Court (1996); Brown, A Common Law of
International Adjudication (2007); Brown in Zimmermann et al (2012) 1417; Hernández,
The International Court of Justice and the Judicial Function (2014) 156; Shaw, Rosenne’s
Law and Practice of the International Court: 1920–2015 (5th edn, 2016) 1609–15. See also
Diallo, ICJ Reports 2010 p 639, 664, where the Court referred expressly to the case law of
other international courts and treaty bodies.
120
Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No 10, 21.
121
Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949
p 174, 182–3.
122
Competence of the ILO to Regulate, Incidentally, the Personal Work of the Employer
(1926) PCIJ Ser B No 13, 7, 18.
123
Also: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, ICJ Reports 1950 p 65, 89 (Judge Winiarski, diss); 103 (Judge Zoričič, diss); 106
(Judge Krylov, diss); South West Africa, Preliminary Objections, ICJ Reports 1962 p 319,
328, 345; Northern Cameroons, Preliminary Objections, ICJ Reports 1963 p 15, 27–8, 29–
30, 37; Aerial Incident of 27 July 1955 (Israel v Bulgaria), ICJ Reports 1959 p 127, 192
(Judges Lauterpacht, Wellington Koo, & Spender, diss); South West Africa, Second Phase,
ICJ Reports 1966 p 6, 240–1 (Judge Koretsky, diss); North Sea Continental Shelf, ICJ
Reports 1969 p 3, 44, 47–9; 101–2, 121, 131, 138 (Judge Ammoun); 210 (Judge Morelli,
diss); 223, 225, 229, 231–3, 236, 238 (Judge Lachs, diss); 243–4, 247 (Judge Sørensen, diss);
Namibia, ICJ Reports 1971 p 16, 26–7, 53–4; Kasikili/Sedudu Island, ICJ Reports 1999 p
1045, 1073, 1076, 1097–100; Cameroon v Nigeria, ICJ Reports 2002 p 303, 353–4, 359,
415–16, 420–1, 440–7, 453.
124
Peace Treaties, First Phase, ICJ Reports 1950 p 65, 72, referring to Eastern Carelia
(1923) PCIJ Ser B No 5, 27. See Lauterpacht (1958) 352–7, for criticism of the distinction
between procedure and substance. Eastern Carelia was also distinguished in Namibia, ICJ
Reports 1971 p 16, 23, and in Wall, ICJ Reports 2004 p 136, 161–2.
125
E.g. Cameroon v Nigeria, Preliminary Objections, ICJ Reports 1998 p 275, 291,
following the decision in Right of Passage, Preliminary Objections, ICJ Reports 1957 p 125,
146, on the immediate effect of an Optional Clause declaration.
126
E.g. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v Serbia), Preliminary Objections, ICJ Reports 2008 p 412, 434–5,
avoiding applying the decision in Legality of Use of Force (Serbia and Montenegro v
Belgium), Preliminary Objections, ICJ Reports 2004 p 279, 318–24, on the interpretation of
Art 35(2) of the Statute.
127
E.g. the development of obligations erga omnes in Barcelona Traction, Jurisdiction, ICJ
Reports 1970 p 3, 32, tacitly reversing South West Africa, ICJ Reports 1966 p 6, in which
standing was denied to Liberia and Ethiopia.
128
Whether a change in the jurisprudence is sufficiently established can itself be
controversial: cf Marshall Islands v UK, Preliminary Objections, ICJ Reports 2016 p 833,
859–60 (President Abraham, sep op); 1095–101 (Judge Crawford, diss).
129
E.g. The Alabama (1872) in Moore, 1 Int Arb 653; Behring Sea Fisheries (1893) in
Moore, 1 Int Arb 755.
130
In re Goering (1946) 13 ILR 203.
131
E.g. Polish Postal Service in Danzig (1925) PCIJ Ser B No 11, 30 (referring to Pious
Funds of the Californias (1902) 9 RIAA 11); SS Lotus (1927) PCIJ Ser A No 10, 26 (referring
to Costa Rica Packet in Moore, 5 Int Arb 4948); Legal Status of Eastern Greenland (1933)
PCIJ Ser A/B No 53, 45–6 (referring to Island of Palmas (1928) 2 RIAA 828); Nottebohm,
Preliminary Objections, ICJ Reports 1953 p 113, 119 (‘since the Alabama case, it has been
generally recognized, following the earlier precedents, that in the absence of any
agreement to the contrary, an international tribunal has the right to decide as to its own
jurisdiction and has the power to interpret for this purpose the instruments which govern
that jurisdiction’); Gulf of Maine, ICJ Reports 1984 p 246, 302–3, 324 (referring to Anglo–
French Continental Shelf (1979) 54 ILR 6); Land, Island and Maritime Frontier Dispute (El
Salvador v Honduras), ICJ Reports 1992 p 351, 387 (referring to the Swiss Federal
Council’s award in Certain Boundary Questions between Colombia and Venezuela (1922) 1
RIAA 228); Pedra Branca/Pulau Batu Puteh (Malaysia v Singapore), ICJ Reports 2008 p 12,
32 (referring to the Meerauge Arbitration (Austria v Hungary) (1902) 8 RDI 2nd Ser, 207),
80 (referring to Territorial Sovereignty and Scope of the Dispute (Eritrea v Yemen) (1998)
22 RIAA 209); Maritime Delimitation in the Black Sea (Romania v Ukraine), ICJ Reports
2009 p 61, 109 (referring to Eritrea/Yemen (Maritime Delimitation) (1999) 22 RIAA 367),
125 (referring to Barbados v Trinidad and Tobago (2006) 27 RIAA 214).
132
Factory at Chorzów, Jurisdiction (1927) PCIJ Ser A No 9, 31; Factory at Chorzów (1928)
PCIJ Ser A No 17, 31, 47; Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116, 131. Also:
Peter Pázmány University (1933) PCIJ Ser A/B No 61, 243 (consistent practice of mixed
arbitral tribunals); Barcelona Traction, Second Phase, ICJ Reports 1970 p 30, 40. The Court
has also referred generally to decisions of other tribunals without specific reference to
arbitral tribunals. E.g. Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No 53, 46;
Reparation for Injuries, ICJ Reports 1949 p 174, 186.
133
See Geneva Convention on the High Seas, 29 April 1958, 450 UNTS 82, Art 11; ILC Ybk
1982/II, 41–2.
134
ILC Ybk 1951/I, 366–78; ILC Ybk 1962/I, 229–31, 288–90.
135
On Genocide: McNair (1961) 167–8. On Nottebohm: Flegenheimer (1958) 25 ILR 91,
148–50.
136
Cf the decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY)
in Prosecutor v Tadić (1999) 124 ILR 61, 98–121, which disagreed with the International
Court’s requirement of effective control when attributing the conduct of private actors to a
state under the rules of state responsibility, as laid down in Nicaragua, ICJ Reports 1986 p
14, 61–5. The ICJ reasserted its view in Bosnian Genocide, ICJ Reports 2007 p 43, 209–11.
Further: Cassese (2007) 18 EJIL 649.
137
Generally: Brown, A Common Law of International Adjudication (2007).
138
Prosecutor v Tadić (1995) 105 ILR 419, 458.
139
Generally: Lauterpacht (1929) 10 BY 65. Further: Falk, The Role of Domestic Courts in
the International Legal Order (1964); Nollkaemper, National Courts and the International
Rule of Law (2011).
140
See Jurisdictional Immunities of the State, ICJ Reports 2012 p 99, 123 (noting that
‘[s]tate practice of particular significance is to be found in the judgments of national courts
…’).
141
See The Scotia, 81 US 170 (1871); The Paquete Habana, 175 US 677 (1900); The
Zamora [1916] 2 AC 77; Gibbs v Rodríguez (1951) 18 ILR 661; Lauritzen v Government of
Chile (1956) 23 ILR 708.
142
E.g. Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 104 ILR 460;
Reference re Secession of Quebec (1998) 115 ILR 536; R v Bow Street Metropolitan
Stipendiary Magistrate, ex p Pinochet Ugarte (No 3) [2000] 1 AC 147; Gaddafi (2000) 125
ILR 490; Sosa v Alvarez-Machain, 542 US 692 (2004); Hamdan v Rumsfeld, 548 US 557
(2006). See generally the cases in the ILR and the ILDC.
143
See Re Cámpora (1957) 24 ILR 518, Namibia, ICJ Reports 1971 p 16, 47.
144
Nicaragua, ICJ Reports 1986 p 14, 98–104, 107–8.
145
GA Res 95(I), 11 December 1946, adopted unanimously.
146
GA Res 1514(XV), 14 December 1960 (89–0:9).
147
GA Res 1803(XVII), 14 December 1962 (87–2:12). Cf Congo v Uganda, ICJ Reports
2005 p 168, 251 (para 244).
148
GA Res 1962(XVIII), 13 December 1963, adopted unanimously.
149
GA Res 47/190, 22 December 1992, adopted without a vote.
150
GA Res 61/295, 13 September 2007 (144–4:11).
151
Declaration on Principles of International Law Concerning Friendly Relations, GA Res
2625(XXV), 24 October 1970, adopted without vote.
152
Generally: Lauterpacht (1958) 23–5; Allott (1971) 45 BY 79; Cheng (ed), International
Law (1982); Jennings in Makarczyk (ed), Theory of International Law at the Threshold of
the 21st Century (1996) 413; Rosenne, The Perplexities of Modern International Law (2004)
51–3; Wood, ‘Teachings of the Most Highly Qualified Publicists’ (2010) MPEPIL; Thirlway
(2014) 126.
153
But see SS Wimbledon (1923) PCIJ Ser A No 1, 28 (‘general opinion’); German Settlers
in Poland (1923) PCIJ Ser B No 6, 6, 36 (‘almost universal opinion’); Question of Jaworzina
(1923) PCIJ Ser B No 8, 37 (‘doctrine constante’); German Interests, Preliminary Objections
(1925) PCIJ Ser A No 6, 20 (‘the “teachings of legal authorities”’, ‘the jurisprudence of the
principal countries’); SS Lotus (1927) PCIJ Ser A No 10, 26 (‘teachings of publicists’, ‘all or
nearly all writers’); Nottebohm, Second Phase, ICJ Reports 1955 p 4, 22 (‘the writings of
publicists’). Also: Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ Reports 2007 p
43, 125, referring to Lemkin, Axis Rule in Occupied Europe (1944) 79. This is the only
occasion where the Court has referred to an individual author by name.
154
Diversion of Water from the Meuse (1937) PCIJ Ser A/B No 70, 76–7 (Judge Hudson);
South West Africa, ICJ Reports 1950 p 128, 146–9 (Judge McNair); Peace Treaties, Second
Phase, ICJ Reports 1950 p 221, 235 (Judge Read, diss); Asylum, ICJ Reports 1950 p 266,
335–7 (Judge Azevedo, diss); Temple, ICJ Reports 1962 p 6, 39–41 (Vice-President Alfaro);
Gabčíkovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports 1997 p 7, 88–119 (Judge
Weeramantry); Pulp Mills, ICJ Reports 2010 p 14, 110, 113–14 (Judges Al-Khasawneh &
Simma, diss).
155
GA Res 174(II), 21 November 1947. On the ILC’s work: Briggs, The International Law
Commission (1965); Morton, The International Law Commission of the United Nations
(2000); Pronto & Wood, The International Law Commission 1999–2009 (2010); United
Nations, The Work of the International Law Commission (8th edn, 2012); Rao, ‘International
Law Commission’ (2017) MPEPIL.
156
ILC Ybk 2001/II, 31.
157
Also: Crawford, State Responsibility (2013) 43–4. Further: chapters 25–7.
158
Diversion of Water from the Meuse (1937) PCIJ Ser A/B No 70, 73 (Judge Hudson). Also
SS Wimbledon (1923) PCIJ Ser A No 1, 32 (on the currency in which the damages are to be
paid). Instances of equity in arbitral jurisprudence include Orinoco Steamship Co (1910) 1
HCR 228; Norwegian Shipowners (1922) 1 ILR 189; Eastern Extension, Australasia and
China Telegraph Co, Ltd (1923) 6 RIAA 112; Trail Smelter (1941) 9 ILR 315.
159
ICJ Reports 1969 p 3, 46–52, 131–5 (Judge Ammoun); 165–8 (Vice-President Koretsky,
diss); 192–6 (Judge Tanaka, diss); 207–9 (Judge Morelli, diss); 257 (Judge Sørensen, diss).
160
Merits, ICJ Reports 1974 p 3, 30–5.
161
ICJ Reports 1986 p 554, 631–3. Also: Review of UNAT Judgment No 273, ICJ Reports
1982 p 325, 536–7 (Judge Schwebel, diss).
162
ICJ Reports 2012 p 324, 334–5.
163
Judge Kellogg thought otherwise but was in error. Free Zones, Second Phase (1930)
PCIJ Ser A No 24, 39–40 (Judge Kellogg). See North Sea Continental Shelf, ICJ Reports
1969 p 3, 48.
164
Free Zones (1930) PCIJ Ser A No 24, 4. Cf the earlier phase (1929) PCIJ Ser A No 22.
Also: Lauterpacht, Function of Law (1933) 318; Lauterpacht (1958) 213–17.
165
Free Zones (1930) PCIJ Ser A No 24, 10.
166
General Act for the Pacific Settlement of International Disputes, 26 September 1928,
93 LNTS 343, Art 28. The provision was copied in other treaties.
167
E.g. Norwegian Shipowners (1922) 1 ILR 189, 370. Further: Thirlway (2014) 104.
168
See especially Preamble to the Hague Convention Concerning the Laws and Customs of
War on Land, 18 October 1907, 36 Stat 2227: ‘Until a more complete code of the laws of
war has been issued, the High Contracting Parties deem it expedient to declare that, in
cases not included in the Regulations adopted by them, the inhabitants and the belligerents
remain under the protection and the rule of the principles of the law of nations, as they
result from the usages established among civilized peoples, from the laws of humanity, and
the dictates of the public conscience.’ This is known as the Martens clause (he was the
Russian legal adviser).
169
E.g. Declaration on the Prohibition of the Use of Nuclear and Thermo-nuclear Weapons,
GA Res 1653(XVI), 24 November 1961.
170
ICJ Reports 1949 p 4, 22. The statement referred to Albania’s duty to warn of the
presence of mines in its waters. See also Nicaragua, ICJ Reports 1986 p 14, 112–14;
Thirlway (1990) 61 BY 1, 6–13.
171
In South West Africa, Second Phase, ICJ Reports 1966 p 6, 34, the Court held that
humanitarian considerations were not decisive. But see ibid, 252–3, 270, 294–9 (Judge
Tanaka, diss).
172
ICJ Reports 1951 p 116, 133. Also ibid, 128: ‘In these barren regions the inhabitants of
the coastal zone derive their livelihood essentially from fishing.’ Further: Fitzmaurice
(1953) 30 BY 1, 69–70; Fitzmaurice (1957) 92 Hague Recueil 5, 112–16; Thirlway (1990) 61
BY 1, 13–20.
173
ICJ Reports 1951 p 116, 142.
174
Ibid, 169 (Judge McNair, diss).

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Part I Preliminary topics, 2 The sources of

From: Brownlie's Principles of Public International Law (9th Edition)

Previous Edition (8 ed.)

Content type: Book content

2. The Statute of the International Court of Justice

1. The Court, whose function is to decide in accordance with international

(a) international conventions, whether general or particular,

(B) The elements of custom

(C) The relativity of custom

(A) ‘Law-making’ treaties

(B) Relation of treaties to custom

5. General Principles of Law

(A) General principles of law in the practice of tribunals

(p. 35) 6. Judicial Decisions

(p. 37) (B) Decisions of international tribunals

(D) Decisions of national courts

7. Other Material Sources

(C) The writings of publicists

8. Other Considerations Applicable in Judicial Reasoning

(B) Considerations of humanity

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