Before reading, be sure you know the following Latin terms.

1. Grosso modo - in a rough way;

2. Lex specialis derogat legi generali - specialized laws prevail over general laws;

3. Jus cogens - compelling law, peremptory norm;

4. Ex aequo et bono - according to the right and good, from equity and conscience.

 

DIFFERENT MEANINGS OF THE TERM “SOURCES OF LAW”

1. There are legal terms which are in general use but are not quite clear. The reason lies in the lack of agreement as to their exact meaning among those who use them. One of these ambiguous legal terms is certainly that of “sources” of international law.

Many different, and even opposite, meanings are ascribed to this term. Herbert Briggs warned of the confusion of the term “sources” with: (1) basis of international law, i.e. basis of obligation of this law; (2) with causes, i.e. factors influencing its development, which have been sometimes understood by some writers as “material sources” of international law; or (3) its evidences, sometimes confined to “documentary evidences” in which the substantive rules find expression.

For the sake of clarity and precision Briggs has advocated the employment of the term “sources” in a formal sense, as indicating the methods or procedures by which international law is created.

This opinion was shared grosso modo by Georg Schwarzenberger. He proposed the term law-creating processes for treaties, custom and general principles of law; and law-determining agencies for “subsidiary means for determination of law”, i.e. judicial practice and doctrine. But the notion is not confined to this. Schwarzenberger asserted: “Whereas in the case of the law-creating processes, the emphasis lies on the form by which any particular rule of international law is created, in the case of the law-determining agencies it is on how an alleged rule is to be verified.”

Oppenheim noticed the confusion of the term “sources” with that of “cause”. This mistake can be avoided, according to him, by going back to the meaning of the term “source” in general.

However, one cannot find a solution to this problem without envisaging written rules on the sources of positive international law.

Such rules should be searched out in arbitral compromises and in treaties on settlement of disputes. Their provisions, indicating applicable law, are obligatory to arbitrators when they proceed to settle particular disputes. But, as a matter of fact, nothing important can be found in these texts. More than a half of all arbitral compromises concluded do not provide any provisions in this respect. The rest of them indicate international law in general terms; or law and equity, or even only the text of the arbitral compromise itself.

These rules should be searched for, in addition, in constitutive instruments of permanent judiciary bodies. However, only two treaty provisions of this kind determine the sources of international law in general.

First of them was Article 7 of the unratified Twelfth Hague Convention Relative to the Creating of an International Prize Court of 1907. It reads as follows:

“If a question of law to be decided was covered by a convention in force between the belligerent captor and the Power which was itself, or whose subject was, a party to the proceedings, the Court has to apply the provisions of that Convention.

In the absence of such provisions, the Court shall apply the rules of international law. If there are no rules generally recognized, the Court will decide according to the general principles of justice and equity.”

This provision provides, in fact, a hierarchy of sources of international law based on the general principle lex specialis derogat legi generali. In the absence of a convention in force between the disputing parties, generally recognized rules of international law shall apply. That probably means general customary rules. In absence of such general rules, this provision leaves the framework of positive international law in the strict sense and refers to “general principles of justice and equity”.

Of far greater importance for determination of sources of international law is Article 38 of the Statute of the Permanent Court of International Justice of 1920. This provision, slightly amended, became Article 38 of the Statute of the present International Court of Justice, as adopted in 1945. It reads as follows:

“ 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it shall apply international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

(a) international custom, as evidence of a general practice accepted as law;

(b) the general principles of law recognized by civilized national;

(c) subject to the provisions of Article 59, judicial decisions and the teachings of the most 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.”

It must be stressed first of all, that paragraph 2 of Article 38 is not of importance for determining the sources of international law. It only provides for a kind of settlement of a dispute, subject to the express consent of all parties to it, which is not entirely based on positive international law.

The doctrine ascribes, however, to paragraph 1 of Article 38 the utmost importance as being the evidence of sources of positive international law. For this there are reasons aplenty. The Statute of the International Court of Justice forms, according to Article 92 of the UN Charter, an integral part of the Charter itself. As a treaty in force this Statute binds at present almost all sovereign States in the world, with very few exceptions. Even some States which are presently not members of the UN became parties to the Statute of the Court, following the procedure from Article 93 (2) of the Charter.

Moreover, the International Court of Justice, “whose function is to decide in accordance with international law”, is on behalf of Article 7 of the Charter one of six permanent organs of the UN Organization. It is, in addition, its “principal judicial organ”, as is provided in Article 92. Therefore, the law applied by the principal judicial organ of the UN is the law obligatory to almost all States in the world. It can therefore be presumed that Article 38 determines sources of that international law which is generally accepted by States. This conclusion applies even to the parties of the Statute which have not accepted the compulsory jurisdiction of the Court, either on the basis of its Article 36 (2), or on behalf of some bilateral or multilateral treaties.

Paragraph 1 of Article 38 displays the existence of two kinds of sources of international law. Conventions, custom and general principles of law, qualified by Schwarzenberger as “law-creating processes”, are for the Court itself the main sources of this law. Judicial decisions and doctrine are its subsidiary sources (or according to Schwarzenberger “law-determining agencies”), being following the wording of these provisions: “subsidiary means for the determination of rules of law”.

Besides the above distinction, Article 38 does not provide any grounds for a hierarchy as between the main sources of international law. That is in spite of the opposite intention of the drafters of that what latter became Article 38 of the Statute of the Permanent Court of International Justice in 1920.

A hierarchy between the main sources of international law based on the general principle of law lex specialis derogat generally does not seem to be acceptable at the present time. Article 53 of the 1969 Vienna Convention on the Law of Treaties (the “1969 Vienna Convention”) asserts the existence of peremptory norms of general international law (jus cogens), as being accepted and recognized “by the international community of States as a whole”. Practically all norms of this kind are general customary rules. This means that general rules of this character and scope make void or terminate any special rules conflicting with them.

2. However, in spite of the highly authoritative character of Article 38 of The Hague Court’s Statute, its wording can no longer be considered exhaustive and all-embracing, when the matter is either of main or subsidiary sources of international law.

First of all, its sub-paragraph (b) describes international custom as evidence of “a general practice”, accepted as law. That could mean that only general customary international law is provided in it. However the State practice, some Judgments of the Court itself and the doctrine have for a long time ago ascertained the existence of particular customary law. The rules of that kind are very much similar to non-written agreements and are in many other important aspects dissimilar to general customary law.

Next to them, unilateral acts by which a State assumes certain new legal obligations, or waives its actual rights, or acquires new rights, can no longer be denied as a principal and autonomous source of international law. The legal effects of unilateral acts of this kind are not dissimilar to the effects of treaties or of particular customary rules of international law.

There is a tendency in the practice within some international organizations to give rise to another autonomous source of international law. Some UN specialized agencies - namely the World Health Organization, the World Meteorological Organization and the International Civil Aviation Organization - issue within their competencies some standard rules. They are formally not obligatory for their member States as such. But because member States are usually not able to propose the alternatives, and because their refusal by them might harm their own interests, all the respective States almost invariably conform themselves with “non-obligatory” rules, which are the product of high technical expertise and knowledge.

In case that some new intergovernmental organizations will be established with similar competencies, and in case of proliferation of rules of this kind, one could discuss of the appearance of this new main source of international law. But it seems still premature to assert that.

A tendency in this respect seems to be some provisions of the 1982 UN Law of the Sea Convention which refer to “generally accepted international rules and standards” in the domain of protection of marine environment. The competent organization for issuing these rules and standards is the International Maritime Organization. The legal scope of these “rules and standards” is still uncertain. There is not enough of State practice in order to demonstrate that some of them have transformed into customary rules of general international law. Still less can be proved that all State parties to the 1982 Convention have committed themselves in advance to respect them as a kind of treaty obligations. However, in case of new grave accidents at seas with disastrous consequences such a law-creating of the I.M.O. could in a short period of time acquire universal approval by States.

There have been views in the doctrine ascribing to the UN General Assembly resolutions the role of a source of direct obligations for its member States. That would be tantamount to assign at least to some of these resolutions the character of an autonomous source of international law, distinct from others. That allegation does not seem to be justified. Neither is it, however, correct to deny a legal importance of any of these resolutions. Some of them can play an important role as a material source or documentary evidence of customary international law. The same can be claimed for some portions of the 1975 Helsinki Final Act.

Finally, Article 38 of the Court’s Statute is not all-embracing any more in its enumeration of subsidiary means for the determination of legal rules. The matter is mainly in practice of subsidiary means (or “law-determining agencies”), for determination of customary legal rules. When the matter is of a treaty in written form, its own text is the main agency for the determination of the rights and duties of its parties.

Besides judicial decisions and doctrine, that role can play in customary process: multilateral and bilateral treaties and especially conventions on codification of international law; concordant unilateral acts of a larger number of States; or some non-conventional instruments like the UN General Assembly resolutions, final acts of diplomatic conferences, joint statements of heads of State and Government, etc.

 

NOTES

Herbert Whittaker Briggs	Herbert Whittaker Briggs was a prominent figure in the field of International Law where he made important contributions as a scholar and educator and served on the United Nations International Law Commission. Born in Wilmington, Delaware, in 1900, Briggs was one of a small group of American international lawyers in the twentieth century who did not hold a law degree. He received an A.B. from West Virginia University in Morgan-town, West Virginia, in 1921 and a Ph.D. from Johns Hopkins University in Baltimore, Maryland, in 1925. In 1929, he joined the faculty at Cornell University in Ithaca, New York, where he remained until his retirement in 1969. At Cornell, Briggs taught international law, international organization, and international politics as a member of both the Department of Government and the law faculty. Briggs had a distinguished career as a scholar and editor. In addition to his work as an educator and scholar, Briggs also had an active career as an international lawyer.
Georg Schwarzenberger	Georg Schwarzenberger described himself as ‘European; born and bred in Germany, with British nationality and British loyalties’. His life was indeed characterised by the crossing of borders: he distanced himself from his Jewish religion and bourgeois family, emigrated from Germany to England, and, finally, changed his scholarly area from international law to international relations. Schwarzenberger was born in Heilbronn, W?rttemberg, in 1908. For his legal studies, Schwarzenberger chose the University of Heidelberg, considered the most liberal university in Germany. This chapter chronicles the life of Schwarzenberger as an?migr? legal scholar in England, his settlement in London, his approach to international law, his promotion of international law, his work on international law and power politics, and his influence on English law.
The International Prize Court	Proposals for the creation of an international prize court had been made since the 18th century. On several occasions international commissions or arbitration tribunals were instituted for prize cases on a bilateral basis. The International Prize Court provided for by the present Convention has never been established because the Convention failed to secure any ratifications. The Court would have served as a court of appeals against judgments of national prize courts. Neutral Powers as well as neutral and enemy nationals would have been entitled to bring appeals. The debates at the Hague revealed that grave divergencies existed with regard to the rules of prize law which the Court would have had to apply. In order to arrive at an agreement on these rules a Naval Conference met in London in 1908 and 1909 and produced the Declaration of London. The fact that this Declaration has never been ratified proved to be fatal to the proposal for an International Prize Court.
The Helsinki Final Act	The Helsinki Accords, Helsinki Final Act, or Helsinki Declaration was the final act of the Conference on Security and Co-operation in Europe held in Helsinki, Finland, during July and August 1, 1975. Thirty-five states, including the USA, Canada, and most European states except Albania and Andorra, signed the declaration in an attempt to improve relations between the Communist bloc and the West. The Helsinki Accords, however, were not binding as they did not have treaty status.
The World Health Organization	The World Health Organization (WHO) is a specialized agency of the United Nations (UN) that is concerned with international public health. Since its creation, it has been responsible for playing a leading role in the eradication of smallpox. Its current priorities include communicable diseases, in particular, HIV/AIDS, malaria and tuberculosis; the mitigation of the effects of non-communicable diseases; sexual and reproductive health, development, and aging; nutrition, food security and healthy eating; occupational health; substance abuse; and drive the development of reporting, publications, and networking. WHO is responsible for the World Health Report, a leading international publication on health, the worldwide World Health Survey, and World Health Day (7th-April of every Year).
The World Meteorological Organization	The World Meteorological Organization (WMO) is an intergovernmental organization with a membership of 191 Member States and Territories. It originated from the International Meteorological Organization (IMO), which was founded in 1873. Established in 1950, WMO became the specialised agency of the United Nations for meteorology (weather and climate), operational hydrology and related geophysical sciences.
The International Civil Aviation Organization	The International Civil Aviation Organization (ICAO) is a specialized agency of the United Nations. It codifies the principles and techniques of international air navigation and fosters the planning and development of international air transport to ensure safe and orderly growth.
The International Maritime Organization	The International Maritime Organization (IMO), known as the Inter-Governmental Maritime Consultative Organization (IMCO) until 1982, was established in Geneva in 1948, and came into force ten years later, meeting for the first time in 1959. Headquartered in London, United Kingdom, the IMO is a specialized agency of the United Nations with 170 Member States and three Associate Members. The IMO’s primary purpose is to develop and maintain a comprehensive regulatory framework for shipping and its remit today includes safety, environmental concerns, legal matters, technical co-operation, maritime security and the efficiency of shipping.

 

II. Answer the questions.

1. What is the major reason for the debates on meanings of some legal terms?

2. What difficulty in understanding the term “source” does H.Briggs see?

3. What was the opinion of Georg Schwarzenberger as to some legal terms?

4. Where can written rules on the sources of International law be found?

5. Mention all legal instruments where these rules are embodied.

6. What is the hierarchy of sources of International law according to Article 38 of the Statute of the Permanent Court of International Justice of 1920?

7. What is the importance of paragraph 1 of Article 38?

8. What does Article 53 of the 1969 Vienna Convention on the Law of Treaties assert?

9. What is autonomous source of International law and what organizations give rise to this kind of source of International law?