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CHAPTER III
Introduction
When conceiving of the problem of international law in the
twenty-first century, it is highly important to consider the status and
function of general (or universal) international law valid to all members in international society 120. Serious debates and controversies on
the universality of human rights demonstrate the crucial importance
of the problem of universal or general validity of international legal
norms. Many important notions in international law, such as jus
cogens, obligations erga omnes and hierarchy of norms in international law, presuppose the idea of international law with universal
validity.
120. One may argue that we should conceptually distinguish between universal international law, characterizing it as international law valid to all members
in international society, and general international law, characterizing it as international law valid to most members in international society. However, it is
impossible to demonstrate the universal validity of law in an unequivocal manner. Even if one defines universal international law as international law that is
valid to all subjects (or States) of international law, one may be immediately
asked who those subjects or States are. Is Taiwan a subject of international law ?
To some, it is, but to many others, it is not. The answer may be different according to the area and/or context of international law as well. Whether a norm is
universal or general cannot be answered in a categorical way. It is a matter of
degree. We may be able to talk about the universalization or universalyzing process of a norm, but we cannot identify the universality itself in an unequivocal
manner. Arguments on the universal validity of the human rights norms typically
demonstrate that universality depends on the degree of persuasiveness of the
argument dealing with a specific norm in question.
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large numbers of cases where the ICJ is not involved, parties concerned do not act assuming that they can sue the other party if the
negotiation fails. Unlike domestic societies of (Western) developed
countries, in most cases parties in conflict do not act in the shadow
of the court. International law as adjudicative norms does not work
even as tacit or hidden norms behind the negotiation as assumed by
both parties.
Thus, it is highly questionable whether international lawyers
should always refer to Article 38 of the ICJ Statute when they
discuss binding norms of international law in general. Such attitude
tacitly assumes equating norms of conduct with norms of adjudication. However, this assumption must be critically scrutinized. It may
not be necessary for a norm of international law to be characterized
as customary international law in order to be evoked, applied
and implemented as a norm with universal validity, especially in
non-judicial forums. As far as prescriptive norms of conduct are
concerned, there may be other grounds than those enumerated in
Article 38 that can generate norms of international law with universal
validity. There may be, and most likely should be, unwritten
norms of general international law. But it is not necessary at all to
characterize these unwritten norms of international law as customary international law.
Third, international lawyers, including those discussing the
sources of international law, often referred to classical writers such
as Hugo Grotius and Emmerich de Vattel, discussing their notions of
international law. Yet, few have paid attention that those classical
writers did not think of international law as the norm of adjudication
between States. For example, Grotius explicitly argued that judicial
settlement is impossible between States 127. Precisely for this reason,
he regarded instead just war as a means of enforcement of rights
of nations 128. When the classical writers discussed the problem of
127. Hugo Grotius, De jure belli ac pacis libri tres, Vol. I, Chap. 3, 2 (1),
Vol. II, Chap. 1, 2 (1). See also Onuma Yasuaki, War, idem, ed., A Normative
Approach to War (Clarendon Press, Oxford, 1993), pp. 57, 78-79, 99.
128. Ibid., pp. 77-93, esp. 78-79. In the case of Vattel, natural law, the most
important international law, is not enforceable. Only positive international law,
such as voluntary international law, treaties and customary international law, are
enforceable. However, the means of enforcement is not the decision by an international court and its enforcement mechanism. It is the power of nations and the
normative consciousness shared by nations that were assumed to be the means
of enforcement (Emerich de Vattel, Les droits des gens, III (1758), Chap. 12,
188).
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law among nations, what they had in mind was the law functioning
as the norms of conduct. It was not the norms to be applied by an
international court, which did not exist in their time.
Major provisions including those of Article 38 of the ICJ Statute
were made in 1920, when the PCIJ was established. It is understandable, if not totally justified, that international lawyers at that
time were enthusiastic about the establishment of the PCIJ, and that
they tended to equate the norms of adjudication with the norms of
conduct. For many international lawyers, who had a kind of inferiority complex toward domestic lawyers because there was no permanent judicial court in international society, this was an excellent
opportunity to get rid of this inferiority complex. Some international
lawyers such as Hersch Lauterpacht even advocated that all international conflicts should be settled by judicial settlements or arbitration 129.
However, as referred to in Chapter II, this argument was severely
criticized by E. H. Carr as a sheer utopianism 130. Lauterpacht could
not rebut Carr. More importantly, among international lawyers themselves, such an argument as advocated by Lauterpacht has not been
supported either. The basic nature of international law as prescriptive
norms of conduct with a limited role as adjudicative norms has not
been changed ever since.
Fourth, demonstrating that a certain norm is customary law does
not guarantee its universal validity at all. Customary international
law is an existential form of international law, whose applicability
can be either limited or universal. There has actually been a special
international law whose applicability is limited, for example, to
Latin American nations. Equating customary international law with
general international law confuses different categories of law. The
former is an existential form, whereas the latter is concerned with
the range of applicability of law. Equating the former with the latter
is a conceptual confusion.
Finally and most importantly, from the viewpoint of global legitimacy and power constellation of the twenty-first-century world, it is
not appropriate for international law with a universal validity to be
equated with customary international law, especially the old cus129. Hersch Lauterpacht, The Function of Law in the International Community (Clarendon, Oxford, 1933).
130. Edward H. Carr, The Twenty Years Crisis, 1919-1939 (2nd ed., Macmillan, London, 1946), pp. 193-207.
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II. Towards Proper Understandings of the Judiciary
in Global Society
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ing law in general. They tend to equate law, which they unconsciously understand in terms of prescriptive norms of conduct, with
adjudicative norms. Apparently they have been influenced by the
positivistic understanding of law centred on the judiciary, which has
been prevalent in the United States and international society.
Moreover, the status of the ICJ as the agent of authoritative interpretation of international law has been much elevated. Writings
of leading publicists such as Lassa Oppenheim still enjoy a high
reputation as an authoritative cognitive basis for identifying and
interpreting norms of international law, but their significance has
decreased, if compared with the former period. The relative significance of the judgments and advisory opinions of the ICJ as the major
cognitive basis for identification of international law increased
during the latter half of the twentieth century. Today, most international lawyers rely heavily on the judgments and advisory opinions
of the ICJ when they seek to establish the most authoritative identification and interpretation of international law.
(2) Aspects not referred to in the prevalent discourse on the
legalization and judicialization in international society
We certainly have to appreciate the significance of the ICJ when
we see the ICJ as an agent to interpret international law. When we
deal with a particular issue involving international law, the interpretation of the norm in question by the ICJ has a tremendously important value, especially if there is a jurisprudence of the ICJ on the
issue. Even though the binding force of the precedents is not recognized for the ICJ judgments 157, still the interpretation of the ICJ
enjoys the most authoritative one. It gives a tremendous persuasive
power and authority to the party who makes use of such interpretation in its argumentation. If the discussion on the significance of the
ICJ is limited to this aspect, I certainly agree with those who emphasize the significance of the ICJ.
However, when we evaluate the significance of the judiciary in
the twenty-first-century global society, we must take into consideration other aspects of the problem, and seek to elucidate a wellbalanced, comprehensive picture of the judiciary in the global society.
As demonstrated in Chapter II, section I, 1 (2), most cases where
157. See Article 59 of the ICJ Statute.
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international law is referred to, discussed and dealt with are not in
the ICJ. The ICJ is not the most important forum of international
law. International law functions primarily as prescriptive norms of
conduct, justifying State behaviours in diplomatic negotiations,
international organizations, international conferences, national parliaments and many other forums such as web sites, newspapers and
TV programmes. The significance of the ICJ must be assessed in
these comprehensive forums where international law is actually
referred to, discussed, invoked, applied and realized.
One might also be able to see various phenomena of legalization in international society from around the end of the twentieth
century. Even if this is the case, this should not be equated with the
judicialization. Law is not the same with the judiciary. At least,
legalization cannot be equated with the enhancement of the importance of the ICJ. The participants of international legal processes
generally do not act in the shadow of the ICJ. The ICJ is not the
most important organ for settling international conflicts, which have
non-juridical aspects as well. Moreover, whether we should talk
about legalization of world politics starting around the end of
the twentieth century is itself a problem that should be critically
examined.
The fundamental problem is whether we should evaluate the ICJ
as an important agent of international conflict resolution, and talk of
the legalization and judicialization in the global society at large.
It is certainly true that there have been some conspicuous phenomena which appear to allow such talk. It is certainly attractive to
find an ally among international relations scholars, many of whom
have negated the raison dtre of international law for years. Yet,
as experts of law, international lawyers must be more cautious in
joining those who hail the legalization and judicialization in
international society.
(3) Necessity for differentiating the significance of the ICJ as an
agent of international conflict resolution and the most authoritative organ to interpret international law
Those who have argued for legalization seem to understand
that while law was not an important institution in international
society, it came to be important toward the end of the twentieth
century. The establishment and management of the WTO, global
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as a progress in international law or a judicialization of international society overlooks these crude realities of the contemporary
global society. We must adopt a wider, more comprehensive perspective from which we can see how international law is perceived by
the Governments and other participants of international law, and
how it works based on such shared understanding in international
and domestic societies. We must see various forums where international law is actually referred to and used, as well as actors that
conceive of and actually use international law.
2. International law in the real world
(1) Pre-eminence of non-judicial forums where norms of international law are actually referred to, discoursed and used
In Chapter I we referred to cases where norms of international law
are actually being aware of, referred to, deliberated, invoked, discussed, applied, and realized or implemented. In order to assess the
significance of the judiciary in terms of power and legitimacy in
international law, we must elucidate how international law is recognized and used in these actual cases and how the judiciary is
involved there. Only by assessing the role of the judiciary in such
actual cases in a more specific manner can we have the proper
understanding of the significance of the judiciary and of international law as adjudicative norms.
First, international law is being aware or conceived of, or referred
to, by organs of the Governments, experts and ordinary citizens
when these agents vaguely or deliberately consider some matters or
phenomena by referring to some concepts of or on international law.
When, for example, they conceive of some question as a problem
or an issue relating to such problems as sovereignty, human
rights, territory, self-defence etc., they either consciously or
unconsciously have some notions and/or frameworks of international
law in mind. They understand, interpret and construct these matters
through such notions and/or frameworks, which are notions and/or
frameworks of, or on, international law.
Second, international law is referred to and invoked in (1) diplomatic negotiations between Governments of States in conflict ;
(2) discussions, debates and negotiations in international organizations and conferences ; (3) international tribunals such as the ICJ or
the ICC ; (4) dispute settlement mechanisms such as WTO dispute
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better than the traditional customary international law-making process does, because the UNGA is an organ composed of virtually all
States of the world. Even in terms of the traditional doctrine respecting the sovereign will of individual States, the UNGA norm-creating
process is more legitimate in that it actually gives an opportunity to
all members of the UNGA whether they agree or disagree with the
proposed norms. This has been amply demonstrated in section I, 2.
(3) The element of power in the creation of general international
law
When we consider the problem on international law including
general international law, we must take into consideration not only
the element of legitimacy but also that of power. This problem was
amply discussed in Chapter II. Here, a brief comment on the problem of the persistent objector and on the problem of voting in the
UNGA resolutions is in order.
Even if multilateral treaties satisfy the requirement of global legitimacy far more than the traditional customary international law, if
there is a powerful State persistently objecting to a certain norm in
the treaty, this factor must be seriously considered. The persistent
objector rule was argued and discussed as a rule obstructing an
emerging norm from becoming customary international law 162.
However, the crucial problem of the persistent objector is not concerned with the existential form of law, but the universal validity of
law. Thus, we must consider the problem of the persistent objector
whenever we deal with the problem of general international law,
whether it derives its universal validity from a general custom, a
general treaty or a UN resolution.
If we see the problem of the so-called persistent objector rule
from this perspective, we can see why this rule was advocated and
was quickly accepted by a considerable number of influential international lawyers in the late twentieth century. It was the time when
the problematic features of the traditional theory on customary international law came to be widely recognized. It was the period when
the ICJ and some international lawyers sought to identify norms of
international law by relying on multinational treaties and the UNGA
162. See Ted L. Stein, The Approach of the Different Drummer : The
Principle of the Persistent Objector in International Law, Harvard International
Law Journal, XXVI (1985), and other references dealing with this problem.
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nitive basis of general international law must be scrutinized in comparison with so-called customary international law under the traditional doctrine, both in terms of power and legitimacy. In terms of
legitimacy, relative superiority of identifying general international
law on the basis of multinational treaties or the UNGA resolutions in
comparison with the traditional theory of customary international
law was amply demonstrated. The custom, State practice or
opinio juris which was used in the traditional doctrine is also a
cognitive basis of international law, not international law per se.
There is no difference between them in this critical sense. It is not
fair at all to allow camouflaging the lack of generality by the abuse
of tacit (or inferred) consent, acquiescence and other fictitious
notions for the traditional theory of customary international law on
the one hand, and to set an excessively high threshold for an alternative theory seeking to formulate the notion of general international
law on the basis of multinational treaties or the UNGA resolutions
on the other.
Even in terms of power, the power of a small number of Western
States, which eclipsed the lack of legitimacy in terms of generality
of State practice and opinio juris by guaranteeing the effectiveness
of the customary international law in the nineteenth and twentieth
centuries, is gradually decreasing in the twenty-first century. In the
1970s, even if the non-Western States occupied an overwhelming
majority in the UNGA and sought to create norms of international
law by adopting the UNGA resolutions, they could not do so if the
small number of Western States were determined to obstruct such a
norm-creating process. There was an apparent gap between those
who held power and those who occupied the majority. However, this
gap will become gradually but steadily smaller. The non-Western
States will not only continue to occupy the majority, but also gain
more substantive power guaranteeing the effectiveness of the norms
of international law. In this way, properly appreciating the normcreating process through the UNGA resolutions is needed not only
in terms of legitimacy but in terms of power as well.
(4) Towards a more comprehensive perspective for assessing the
proper status and functions of international law
When we conceive of the global legal order in the twenty-first
century, we must think of general norms of international law that can
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In these ways, international law contributes to the well functioning of the international system as a whole without necessarily being
recognized of its importance.
International law certainly plays its important role of settling disputes between States as adjudicative norms. The establishment of the
rule of law with effective judiciaries is an important objective in
international society of the twenty-first century. We have witnessed
and are witnessing the gradual increase of the significance of judiciaries and mechanisms of quasi-judiciary functions in the twentiethcentury international society. We cannot deny that the traditional
theory of customary law for identifying general international law has
a long history and is highly sophisticated. To maintain the doctrine
relying on the customary international law may be possible by
making it technically even more sophisticated.
Yet, recognizing these facts and possibilities does not mean at all
that we should conceive of international law exclusively, or even
mainly in terms of adjudicative norms. We must recognize that the
major arena of international law is in non-judiciary forums. This
recognition does not mean dwarfing international law. On the contrary, this recognition leads people to properly understand that international law plays a great number of socially important functions as
described in Chapter II. And such understanding of the various roles
and functions of international law is the key for its survival as a
theoretical and practical tool in the twenty-first-century world. It is
useless to revive the theory equating the fictitious notion of customary international law with general international law, which
has virtually been dead for many years. The theory has definitely
out-lived its proper lifespan. It is now time for us to make efforts to
elaborate a theory based on the recognition that ordinary prescriptive norms of conduct in international law can be identified independently of Article 38 of the ICJ Statute, although the latter can
provide a useful clue to such identification.