77653669-1Brownlie-Chapter-I-Sources-of-the-Law.pdf

 pacta sunbtse:vanda.

S~ply, S~ply, the principle principle that agreemen agreements ts are are binding binding and  are to e unplement unplemented ed m good faith. faith.  prima facie. In principle; presumptively. The principal proposition proposition or propositions propositions oflaw deterg case; or, the only legalconsideration necessary for  h t e eClSl0n eClSl0n0 a partIcular partIcular case. By reason of the subject-matter. ratione materiae. ratio; r~tio decidendi.

ndm .t~e ouftcome~f a llli

rat~ rat~

person personae. ae.

en my as such.

ratione temporis.

Determined Determined by the status status and dignity of of the

person or  

Conditioned by reference to time.

The implicati implication on of a term that that the obI' obI' U · f  . Iga ons 0 an agreement come to an end WItha change of circumstances.

rebus sic stantibus.

reslinter  alios acta. A matter matter affecting affecting third third parties and not opposabl opposablee to the l ega persons between whom there is an issue. resjudicata.

reopened.

The principle principle that an issue decided decided by a COUrt COUrtshould should not be

res nullius nullius ..   An asset. asset. susceptible susceptible of acquisiti acquisition on but presently presently under the

ownership or sovereIgnty of no legal person.

stare decisis.   The The prin princi cipl plee that that a trib tribun unal al shou should ld foHo foHow't w't

. de .. d h f hIS own prevIouS clsIOns clsIOnsan an t ose 0 ot er tribunals tribunals of of equal equal or greater greater authorit authority. y. tra;aux prepar~toires.. Preparatory work; preliminary drafts, minutes of conerences, ana the lIke, relatmg to the conclusion conclusion of a treaty.

Objects Objects of study, study, the sources sources of intern internation ational al law and and the law of  treati treaties es (treat (treated ed in Chapt Chapter er XXV) XXV) must must be regard regarded ed as fund fundaamental mental:: betwee between n them them they they provid providee the basic basic partic particles les of the legal regime. common on for writers writers to distin distingui guish sh the formal formal source sourcess and the It   is comm materi material al source sourcess of law. law. The former are those those legal legal procedu procedures res and  method methodss for the creation creation of rules rules of gener general al applic applicati ation on which which are legall legally y bindin binding g on the addresse addressees. es. The materi material al source sourcess provid providee evievidence of the existenc existencee of rules which, which, when proved, proved, have the status status of  legally legally binding rules of general applicatio application. n. In   systems systems of municipal municipal law the the concept of formal formal source refers to the the constitutiona constitutionall machinery machinery of law-ma law-makin king g and the status status of the the rule rule is estab establis lished hed by consti consti-tutionalla tutionallaw: w: for exampl example, e, a statute statute is binding binding in the the United United Kingdom Kingdom  by reason of the principle of the supremacy of Parliament. In the contex contextt of intern internati ationa onall relati relations ons the use of the term term 'forma 'formall source source'' is awkwa awkward rd and and misl mislea eadi ding ng sinc sincee the the read reader er is put put in mind mind of the consti constitut tution ional al machin machinery ery of law-ma law-makin king g which which exists exists within within states states..  No such machinery exists for the creation of rules of international law. law. Decisi Decisions ons of the Internat Internation ional al Court, Court, unanim unanimous ously ly suppor supported  ted 

A

SjOrensen, 101 Hague   Recueil   (1960, (1960, III), 16-108; FiIZmaurice, FiIZmaurice,   Symholae I   See generally SjOrensen, (1958), 153-76; 153-76; Guggenheim, Guggenheim, 94 Hague Hague   Recueil   (1958, (1958, II), 5-81; Parry, Tlu Sources and  Verzijl  Verzijl   (1958),  Evidences of International Ltrw  Ltrw  (1965); Tunkin, Tluory of International International Ltrw (1970; Ltrw (1970; English trans.  by Butler, 1974), 89-203; Quadri, "3 Hague   Recueil   (1964, (1964, III), 319-72 319-72;; Bishop Bishop,, ibid. ibid. II5 (1965, II), 214-50; Jennings, ibid. 121 (1967, (1967, II), 329-45; Rousseau, i. 55-443; 55-443; Lauterpachl, Lauterpachl,  International Law: CollectedPapm, i (1970),58-135; 5 8-135; Elias, in Friedmann, Friedmann, Henkin, and Lissit2yn (eds.), Transnationa (1972), ), 34~; Schach Schachter, ter, in Macdo Macdonald nald and  Transnationall Law in a Changing Society Society  (1972 Johnston Johnston (eds.), (eds.),   Tlu Strucrure and Process of International Ltrw  Ltrw  (1983), 745-99;   Etudes en l'lwnneur de Roberto Ago  Ago  (1987), (1987), i; Cassese and Weiler (eds.), Change and Stability Stability in Internationa Internationall .  Law-Making (1988) .

resolutions of the General Assembly of the United Nations concerning matters of law, and important multilateral treaties concerned to codify or develop rules of international law, are all lacking the quality to bind  states generally in the same way that Acts of Parliament bind the  people of the United Kingdom. In   a sense 'formal sources' do not exist in international law. As a substitute, and perhaps an equivalent, there is the principle that the general consent of states cr~,H~Lrules of  general application. The definition of custom in internationallaw2 is essentially a statement of this principle (and not a reference to ancient custom as in municipal law). The consequence ' Y s   that in international law the distinction between formal and material sources is difficult to maintain. The former in effect consist simply of a quasi-constitutional principle of inevitable  but unhelpful generality. What matters then is the variety of material sources, the all-important   evidences   of the existence of consensus among states concerning particular rules or practices. Thus decisions of the International Court, resolutions of the General Assembly of the United Nations, and 'law-making' multilateral treaties are very material evidence of the attitude of states toward particular rules, and  the presence or absence of consensus. Moreover, there is a process of  interaction which gives these evidences a status somewhat higher than mere 'material sources'. Thus neither an unratified treaty nor a report of the International Law Commission to the General Assembly has any  binding force either in the law of treaties or otherwise. However, such instruments stand as candidates for public reaction, approving or not, as the case may be: they may stand for a threshold of consensus and  confront states in a significant way. The law of treaties concerns the question of the content of obligations between individual states: the incidence of obligations resulting from express agreement. In   principle, the incidence of particular  obligations is a matter distinct from the sources. Terminology presents some confusion in this respect. Thus treaties binding a few states only are dubbed 'particular international law' as opposed to 'general international law' comprising multilateral 'law-making' treaties3 to which a majority of states are parties. Yet in strictness there is no fundamental distinction here: both types of treaty only create particular  obligations and treaties are  as such   a source of obligation and not a source of rules of general application. Treaties may form an important material source, however: see section 4 below. It is perhaps useful to remark on two other usages of the term

'sources'. Thus the term may refer to the source of the binding quality of international law as such and also to the literary sources of the law as sources of information.

2 .

The pertinent provisions are as follows: Article 38. I. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law rec.ognizedby 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. The decision of the Court has 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, but they represent the previous practice of arbitral tribunals and Article 38 is generally regarded as a complete statement of th~ sources of international law. 4   Yet the article itself does not refer to 'sources' and, if looked at closely, cannot be regarded as a straightforward enumeration of the sources. The first question which arises is whether paragraph I creates a hierarchy of sources. They are not stated to represent a hierarchy, but the draftsmen intended to give an order and in one draft the word 'successively' appeared.s In   practice the Court may be expected to observe the order in which they appear: (a) and (b) are obviously the important sources, and the priority of (a) is explicable by the fact that this refers to a source of mutual obligations of the parties. Source (a) is thus not primarily a source of rules of general application, although l!e~tit:S_IIlayprovide evidence of the 4

  See Hudson, The Permanent Court of InternationalJustice  (I943), 60I ff. See also the Revised 

General

3

pp.

4-I1.

See   infra, p.

I I .

Act for the Pacific

Settlement

of International

Disputes,

Art.

28; Model Rules on Arbi-

Iral Procedure adopted  by   the ILC, Art. 10,   Yrbk. ILC   (t958), ii. 83; Report of Scelle, ibid. 8. ~rt.   38 has often been incorporated textually or by reference in the  compromis   of other tribunals: SImpson

2  Infra,

The Statute of the International Court of Justice

and Fox,   International

Arbitration   (1959),

130

TI.

  See also   infra,

TI.

88.

5 Cf.  Castillo v.  Zalles,   ILR 22 (I955), 540. Seealso Quadri, I I3 Hague   Recueil,   342-5; Judge Tanaka, diss. op., South West Africa Cases  (Second Phase), Ie]   Reports (I966), 300; Akehurst, 47 BY   (I974-5), 273-85.

S OU RC ES

!~II!ation of custom. Sources (b) and, perhaps, (c) are formal sources, at least fo: those ~~o care for such classification. Source (d), with its reference as subsIdIary means for the determination of rules of law' relates to material sources. Yet some jurists regard (d), as a referenc~ to formal sources, and Fitzmaurice has criticized the classification of   judicial decisions as 'subsidiary means'. 6 In general Article 38 does not rest upon a distinction between formal and ~aterial sources, and a system of priority of application depends sImply on the order (a) to (d), and the reference to subsidiary ~eans. Moreover, it is probably unwise to think in terms of hierarchy dIctated by the order (a) to (d) in all cases.7 Source (a) relates to obligations   in any case; and presumably a treaty contrary to a custom or to a general principle part of the  jus cogens8 would be void or voidable. ~gain, the interpret~tion of ~treaty may involve resort to general princIples of law or of Internatlonallaw.9 A treaty may be displaced or  amended by a subsequent custom, where such effects are recognized   by the subsequent conduct of the parties. 10

 Definition.   Article 38 refers to 'international custom, as evidence of a general practice accepted as law', and Brierlyl2   remarks that 'what is sought for is a general recognition among States of a certain practice as obligatory'. Although occasionally the terms are used interchangeably 'custom' and 'usage' are terms of art and have different meanings~   Symbolae Verzijl,   at p. 174. ; See Judge Moreno Quintana,   Righl of Passage Case,  ICJ Reports (t9OO), 90.  In/ra ,   ch. XXII,   onjus cogens and its effects. 9 See  infra,   pp. 15-19. 1963, ILR 38,   182;   RIAA xvi. 5; Award, 10 Air Transport Services Agreement Arbitration, PI. IV, s. 5. 11  Se~  supra, n. I,   and see further: Lauterpacht,   ~he Developmentof International Law by the  Inter natIO nal Cour t   (~958), 368-93; Guggenheim, in  Etudes en I'honneur de Georges Scelle (1950), 1.275-84; Id.,   Tralu   I. 93-113; TUnkm,.95 Hague Recueil   (1958, III), 9-21; id., 49  California  LR   (1961), 419-3°; Suy,   Les ACIes ]uridlqUes umlateraux en droit international public (1962), 215~7; Fltzmau.n ce, 27 BY    (195°),17-18;   30BY    (1953),67--9; 35 BY    (1959),229-3°; Skubiszewski, 31   Z.a.o.R.u . V.   (1971)., 810-54; VerZljI, International Law in Historical Perspective, i (1968),3 1-47; Wollke,  Custom In   Present Internaeional Law   (1964); Thirlway,   International Customary Law and CodificatIOn  (1972); Barberis,   Neths. Int. LR   (1967), 367-81; Manin, 80 RGD IP (1976),7 -:54; P. de Visscher, 136 Hague  Recueil   (1972, II), 61-77; Akehurst, 47 BY (1974-5), I-53; MeljerS,  Neths. Yrbk.   (1978), 3-26; Stern,   Melanges Reuter  (1981), 479--99; Bos,  German Yrbk.,   25 (1982), 9-53; Cheng, m Macdonald and Johnston (eds.),  The Stru