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PART III

FORMATION OF INTERNATIONAL LAW

CHAPTER V

CONTEMPORARY INTERNATIONAL LAW-MAKING :


A REASSESSMENT OF THE THEORY OF FORMAL “SOURCES”
OF INTERNATIONAL LAW

I. Introduction

The ways and means whereby International Law nowadays mani-


fests itself surely do not exhaust themselves in the consideration of
its formal “sources”. The growing complexity of the process of forma-
tion of contemporary International Law is a challenge to its scholar-
ship, nowadays perhaps to a greater extent than in the past. This is
a basic issue which cannot be dissociated, for example, from that of
the expansion of international legal personality in International
Law 472. Classic doctrine already tended to single out the distinction
between formal “sources” of International Law, that is, the means
whereby this latter manifests itself and its norms are created (cus-
tom, treaties, general principles of law, case-law, doctrine, equity,
among others), and its so-called material “source”, that is, the sub-
stratum — metajuridical — wherefrom the former are originated 473.
In fact, the material “source” referred to is, in its turn, ineluctably
linked, ultimately, to the question of the validity itself of the norms
of International Law.
This question, however, transcends the ambit of positive law 474.
As international lawyers, in their great majority, did not appear pre-
pared to enter into this line of enquiry, it became commonplace,
somewhat easier, through the years — as attested by numerous books
472. Cf. Chaps. VII-XI, infra.
473. G. Scelle, “Essai sur les sources formelles du droit international”, in
Recueil d’études sur les sources du droit en l’honneur de F. Gény, Vol. III, Paris,
Rec. Sirey, 1934, pp. 400-430 ; M. Sørensen, Les sources du droit international,
Copenhagen, E. Munksgaard, 1946, pp. 13-14.
474. M. Sørensen, op. cit. supra footnote 473, p. 15.
148 A. A. Cançado Trindade

and courses dedicated to the matter — reiteratedly to circumscribe


the study of the matter to the provision of Article 38 of the Statute of
the International Court of Justice (ICJ), virtually the same as the cor-
responding Article of the Statute of the previous Permanent Court of
International Justice (PCIJ) 475. The list set forth in that well-known
provision, however, refers only to the formal “sources”. The study of
the formation of International Law, in this way, does not — could
not — exhaust itself in the consideration only of the aforementioned
list of formal “sources”.

II. General Considerations on the Formal “Sources”


of International Law

Article 38 of the Statute of the PCIJ and the ICJ provides that, in
the settlement of disputes submitted to it, the Court will apply inter-
national conventions, international custom and general principles of
law, to which are added, as “subsidiary means”, judicial decisions
and doctrine ; the Court is, at last, entitled to decide a question ex
aequo et bono, “if the parties agree thereto”. The legislative history
of that provision goes back to 1920, when an Advisory Committee
of Jurists was appointed by the Council of the League of Nations 476
to prepare the project for the establishment of a PCIJ.
The Committee convened at The Hague from 16 June to 24 July
1920. Draft Article 38 of the PCIJ Statute resulted from a project
originally presented by Baron Descamps 477, which was the object of
debates among the members of the Committee referred to, in which
a decisive influence was exerted, besides the author of the afore-
mentioned project, also by E. Root and Lord Phillimore 478. Article 38
475. Apart from small variations of phraseology (in the introductory phrase)
and in the numbering of paragraphs and subparagraphs : cf. Bin Cheng, op. cit.
infra footnote 523, pp. 2 and 21.
476. The Advisory Committee was composed of Adatci, Altamira, Clovis
Bevilaqua (subsequently replaced by Raul Fernandes), Baron Descamps,
Hagerup, Albert de La Pradelle, Loder, Lord Phillimore, Ricci-Busatti, Elihu
Root (assisted by J. B. Scott), with D. Anzilotti its Secretary-General ; cit. in Bin
Cheng, op. cit. infra footnote 523, p. 6 n. 19.
477. Including treaties, custom, general principles of law, case-law.
478. Cf. proceedings in Cour permanente de Justice internationale/Comité
consultatif de juristes, Procès-verbaux des séances du Comité (16 juin/24 juillet
1920) avec Annexes, La Haye, ed. Van Langenhuysen Frères, 1920, pp. 247,
270, 293-297, 306-321, 331-339, 344-346, 351, 584, 620 and 729-730. And, for
a study of these procès-verbaux, cf. Maarten Bos, “The Recognized
Manifestations of International Law — A New Theory of ‘Sources’ ”, 20
German Yearbook of International Law (1977), pp. 18 and 33-39.
General Course on Public International Law 149

of the Statute of the old PCIJ (reincorporated two and a half decades
later also into the Statute of the successor ICJ) soon became the
object of attention for enumerating the “sources” of International
Law, but did not escape criticisms in the years following its adop-
tion 479. G. Scelle, for example, observed in 1934 that the very con-
ception of the aforementioned Article 38 appeared insufficient to
fulfil the social needs that should be taken into account by the
International Law of the epoch 480. It is to be kept in mind that
Article 38, however, was never intended to constitute a mandatory
and exhaustive formulation of the “sources” of International Law,
but only a guide to the judicial operation of the Hague Court 481.
The provision at issue became also the object of controversy in
expert writing as to the question whether it established or not a hier-
archy of sources of Public International Law 482. For the supporters of
the natural law foundations of International Law, it became less diffi-
cult to apprehend the relationship between the general principles
of law, treaties and custom : to them, treaties and custom would be
“positivizations” of the general principles of law adapted to the
varying historical situations 483. But this was just one of the existing
conceptions. What soon seemed beyond doubt was that the
so-called “sources” of International Law appeared in constant and
dynamic interaction.
Another point which became constantly clearer pertained to the
prominent position of treaties and custom — normally endowed with
equal authority — among the sources of International Law 484. There
479. In 1934, G. Scelle, e.g., criticized the formulation of Article 38 of the
PCIJ Statute for have been much influenced by considerations of political order,
representing a compromis between the demands of legal technique and the pos-
sibilities of intergovernmental relations ; G. Scelle, op. cit. supra footnote 473,
p. 411.
480. Ibid., p. 420.
481. M. Sørensen, Les sources . . ., op. cit. supra footnote 473, pp. 28-33.
482. Rigorously, doubts were to be raised mainly in respect of treaties, cus-
tom and general principles of law, since Article 38 itself was to characterize
case-law and doctrine as “subsidiary means” and to attribute a limited function
to equity.
483. A. Truyol y Serra, Noções Fundamentais de Direito Internacional
Público, Coimbra, A. Amado Ed., 1962, pp. 141-143.
484. Former Soviet authors came even to refuse to recognize any sources of
International Law other than treaties and custom ; cf. M. Akehurst, “The
Hierarchy of the Sources of International Law”, 47 British Year Book of
International Law (BYBIL) (1974-1975), pp. 273-285. Among them, there were
those to whom treaties would prevail over custormary law for being based on
the express agreement of States ; cf. R. R. Baxter, op. cit. infra footnote 485,
pp. 101-102.
150 A. A. Cançado Trindade

was support for the view that international custom can be found in
treaties, just as treaties can, with the passing of time, move on to
customary International Law, and even exert effects, qua evidence of
customary International Law, on States not parties thereto 485. With
the exception of this last point, which has been challenged 486, it
came to be admitted nowadays that a treaty may overcome a pre-
existing custom (leading to the formation of a new custom), just as a
subsequent custom may overcome a treaty 487.
Moreover, the enumeration of “sources” of International Law
listed in Article 38 of the ICJ Statute was never meant to be, nor
could it be, exhaustive. This was soon indicated by decisions of the
ICJ itself, on the basis of a combination of distinct “sources”, in
addition to other evidences, of International Law 488. It may thus be
inferred that the formal “sources” of International Law are not static
categories, but are rather in constant and dynamic interaction,
reflecting, in a non-exhaustive manner, the ways and means of
manifestation of International Law in time.

III. The Formal “Sources” Enumerated in Article 38


of the ICJ Statute

1. International custom
Article 38 itself of the ICJ Statute duly qualifies international cus-
tom in referring to it as “evidence of a general practice accepted as

485. R. R. Baxter, “Treaties and Custom”, 129 RCADI (1970), pp. 31-104 ;
A. D. McNair, “Treaties Producing Effects ‘Erga Omnes’ ”, in Scritti di Diritto
Internazionale in Onore di T. Perassi, Vol. II, Milan, Giuffrè, 1957, pp. 23-36.
486. Ph. Cahier, “Le problème des effets des traités à l’égard des Etats tiers”,
143 RCADI (1974), pp. 589-736. And for a criticism of the preponderant role of
treaties and custom, cf. C. Sepúlveda, Las Fuentes del Derecho Internacional
Americano, Mexico, ed. Porrúa, 1975, pp. 43-69, and pp. 94-95, on the impor-
tance of resolutions of international Conferences. Cf. also comments by
M. Panebianco, “La Teoria delle Fonti del Diritto Internazionale nei Fondatori
della Dottrina Latino-Americana (Sec. 18-19)”, in Studi in Onore di G. Sperduti,
Milan, Giuffrè, 1984, pp. 163-186 ; J. C. Puig, Les principes du droit interna-
tional public américain, Paris, Pedone, 1954, pp. 1-81.
487. Treaties may also serve as evidence of customary law : for example, con-
sular bilateral treaties much influenced the development of customary interna-
tional law on consular relations, later codified in the 1963 Vienna Convention on
Consular Relations ; R. R. Baxter, op. cit. supra footnote 485, pp. 87-89 and
101, and cf. p. 98.
488. Cf. examples cit. in, e.g., R. R. Baxter, op. cit. supra footnote 485, pp. 36-
37 ; Ch. Schreuer, “Recommendations and the Traditional Sources of International
Law”, 20 German Yearbook of International Law (GYIL) (1977), pp. 113-114.
General Course on Public International Law 151

law”. Hence the two classic constitutive elements of custom (consid-


ered by the PCIJ as early as in 1927, in the Lotus (France v. Turkey)
case 489 : the objective element, represented by the international prac-
tice itself, and the subjective element, the opinio juris sive necessi-
tatis, i.e., the belief that such practice is in accordance with law and
accepted as such ; this configuration of international custom remains
predominantly accepted to date. Yet, it was once the object of criti-
cism on the part of H. Kelsen 490, endorsed by P. Guggenheim, in the
sense that the objective element would be sufficient to create custom
as “source” of law, since the subjective element of the opinio juris
would, in their view, be of difficult determination 491.
In counterposition to this outlook, many other authors considered
necessary or useful the preservation of the element of opinio juris as
a means to prove the existence of certain customary norms, insisting
on its necessity and relevance in the formation of custom, when, for
example, States disputed the content of customary law 492. Just as
significant was the fact that H. Kelsen and P. Guggenheim them-
selves gradually recognized the necessity to abandon their argu-
ments, yielding to the recognition of the continued viability, and
necessity, of the opinio juris ; to prescind from this latter would only
benefit the powerful, besides incurring into the error of equating law
with mere State conduct 493. Opinio juris came to attract growing

489. Cf. docs. reproduced in K. Marek, Répertoire des décisions et des docu-
ments de la procédure écrite et orale de la Cour permanente de Justice interna-
tionale et de la Cour internationale de Justice, Vol. 2 : Les sources du droit
international, Geneva, IUHEI, 1967, pp. 801-831 ; in his Dissenting Opinion in
the case (wherein the PCIJ stressed the “will” of States in the formation of inter-
national rules), Judge Nyholm argued that, in the formation of custom, it was by
the continuing repetition of certain acts that an international juridical conscience
began to manifest itself. Subsequently the PCIC began to move away from its
voluntarist-positivist thinking, and its successor, the ICJ, dissociated itself
from it.
490. And his followers of the school of the “pure theory of law”.
491. P. Guggenheim, “Les deux éléments de la coutume en droit interna-
tional”, in La technique et les principes du droit public — Etudes en l’honneur
de G. Scelle, Vol. I, Paris, LGDJ, 1950, pp. 275-284.
492. A. A. D’Amato, The Concept of Custom in International Law, Ithaca,
Cornell University Press, 1971, pp. 242 n. 28, and 74, and cf. pp. 271-272 (for
the “claim-oriented approach”) ; and cf. also J. L. Kunz, “The Nature of
Customary International Law”, 47 American Journal of International Law
(AJIL) (1953), p. 665 ; D. W. Greig, International Law, 2nd ed., London,
Butterworths, 1976, p. 19.
493. Sienho Yee, “The News that Opinio Juris ‘Is Not a Necessary Element
of Customary [International] Law’ Is Greatly Exaggerated”, 43 GYIL (2000),
pp. 231, 234 and 236-238.
152 A. A. Cançado Trindade

attention on the part of international legal doctrine 494, and nowadays


its wide scope is duly recognized (infra).
The proof of custom, object of attention on the part of the ICJ in
the Asylum (Colombia v. Peru) case (1950) 495, was to abide by the
principle of division or distribution of the burden of proof (onus
probandi incumbit actori) between the contending parties in interna-
tional litigation 496. A problem emerged at the epoch of decoloniza-
tion was that of determining the application or not of customary
International Law to the new States, then recently emancipated politi-
cally. The question appeared initially surrounded by uncertainties. If
one was to apply the positivist theory of consent as the ultimate
foundation of International Law, serious difficulties would arise, as
only the norms with which the new States would entirely agree
would be automatically binding upon them ; it is known, however,
that, in practice, new States preferred, instead of trying promptly to
reject certain norms which could appear adverse to them, to admit
their existence and to endeavour to change them and to ensure effec-
tively their evolution by means of their conscious and concerted
action to this effect in international forums like the United Nations
General Assembly.
And this, in fact, brought about significant changes in contempo-
rary International Law 497. In the past, International Law was charac-
terized as “the generalization of the practice of States” 498 ; nowa-

494. Cf. M. Sørensen, op. cit. supra footnote 473, p. 85. On R. Ago’s view of
a “spontaneous” customary international law, cf. comments by J. J. Lador-
Lederer, “Some Observations on the ‘Vienna School’ in International Law”, 17
Nederlands Tijdschrift voor internationaal Recht (1970), pp. 137-138. This view
was opposed by J. L. Kunz, “The Nature of Customary International Law”,
op. cit. supra footnote 492, pp. 664-665.
495. Cf. remarks in P. Guggenheim, Traité de droit international public,
Vol. I, Geneva, Libr. Univ. Georg & Cie., 1953, pp. 46-48 and 506 ; cf. also
H. W. Briggs, “The Colombian-Peruvian Asylum Case and Proof of Customary
International Law”, 45 AJIL (1951), pp. 728-731, esp. p. 729.
496. Cf. A. A. Cançado Trindade, “The Burden of Proof with Regard to
Exhaustion of Local Remedies in International Law”, 9 Revue des droits de
l’homme/Human Rights Journal, Paris (1976), pp. 81-121 ; and cf. the memo-
randum of the UN Secretary-General, Ways and Means of Making the Evidence
of Customary International Law More Readily Available, New York, United
Nations Pub. No. 1949-V-6, 1949, pp. 3-114.
497. M. Virally, “The Sources of International Law”, Manual of Public
International Law (ed. Max Sørensen), London, MacMillan, 1968, p. 139.
498. Cf. cit. in C. Parry, The Sources and Evidences of International Law,
Manchester, University Press, Oceana, 1965, pp. 58 and 62, and cf. pp. 56-82 ;
C. Parry, “The Practice of States”, 44 Transactions of the Grotius Society (1958-
1959), pp. 167 and 159, and cf. pp. 145-186.
General Course on Public International Law 153

days, international practice has a much wider scope, comprising not


only that of States, but also that of international organizations and of
other subjects of International Law 499. In fact, as much of the prac-
tice of States remains — with notable exceptions — largely unpub-
lished and not examined (sometimes simply unrecorded), for the
determination of the proof of custom resort has often been made to a
mass of other available materials 500, at times transcending the prac-
tice of States themselves. In any case, no State — however powerful
it might be — can claim that its individual practice is intrinsically
more important than that of other States (just because of the publi-
city and dissemination given to it) ; as members of the international
community, they all contribute, altogether, to the formation and
development of international practice, jointly with other subjects of
International Law.
Another issue relating to international custom is that of the more
or less “immediate” creation of customary norms in new areas of
International Law, in which there was no prior regulation. A remark-
able example was provided by the United Nations General Assembly
resolutions in the early sixties, on the exploration and use of
space 501, resulting in great part from a “tacit agreement” between the
two main space actors of the epoch, and which were to reflect, in the
view of some authors, an “inchoate custom” on the matter 502.
Resolutions 1721 (XVI), of 20 December 1961, and 1962 (XVIII),
of 13 December 1963, were to be acclaimed as the “initial chapter”
of the treatment of contemporary space law 503. It was at that time
suggested that this solution represented an “instant customary law”

499. A. A. Cançado Trindade, O Direito Internacional em um Mundo em


Transformação, Rio de Janeiro, Ed. Renovar, 2002, pp. 1048-1049.
500. Including bilateral and multilateral treaties, resolutions of the UN
General Assembly, resolutions of scientific associations such as the Institut de
Droit International and the International Law Association ; cf. M. Akehurst,
“Custom as a Source of International Law”, 47 BYBIL (1974-1975), pp. 13-14,
18-19, 23 and 51.
501. E.g., resolutions 1721 (XIV), 1802 (XVII), 1962 (XVIII) and 1963
(XIX), and particularly resolution 1962 (XVIII), of the UN General Assembly.
502. G. Arangio-Ruiz, “The Normative Role of the General Assembly of the
United Nations and the Declaration of Principles of Friendly Relations”, 137
RCADI (1972), p. 525.
503. It is known, today, however, that the “agreement” between the two
superpowers of the epoch — the United States and the Soviet Union — which
rendered the adoption of such resolutions possible did not pass without contro-
versy. As to the form of such “agreement”, while the Soviet Union preferred a
treaty, the United States insisted on a resolution of the General Assembly, a for-
mula which the Soviet Union was finally persuaded to accept.
154 A. A. Cançado Trindade

for the aforementioned activity of regulation 504, an expression which


also attracted a certain controversy 505 at that time.
The ICJ itself, in its turn, has made it clear, as to the acknow-
ledgment of custom, that it would look into both elements — actual
practice and opinio juris. It did so in the North Sea Continental Shelf
cases (1969) 506, and, again, in the Continental Shelf (Libya v. Malta)
case (1985) 507. Over a decade later, the point was retaken by the ICJ,
in an Advisory Opinion delivered on 8 July 1996 508.

2. Treaties

As to treaties, the first point directly related to the study of the


formal “sources” of International Law pertains to the proper rela-
tionship between treaties and the notion of State sovereignty. In the
Wimbledon case (Judgment of 17 August 1923), the PCIJ clarified
that the conclusion of treaties, and the faithful compliance with
them, constituted precisely attributes of the sovereignty of the State.
This latter cannot be invoked so as to conflict with conventional
obligations 509. This amounts to a principle that governs international
obligations, a principle of international responsibility and even of
customary law : a State cannot evade its international obligations
under the pretext of their alleged incompatibility with its own
domestic legal order (or any acts — legislative, executive or judicial
— emanated from the public power) 510.
Sovereignty does not have a bearing on the interpretation of

504. Bin Cheng, “United Nations Resolutions on Outer Space : ‘Instant’


International Customary Law ?”, 5 Indian Journal of International Law (1965),
pp. 23-48 ; and cf. comments by I. Herczeg, “Space Treaties and Law-Making
Process in International Law”, in Questions of International Law (ed. Hungarian
Branch of the International Law Association), Budapest, Progressprint, 1971,
pp. 51-63, esp. p. 53.
505. Cf. criticisms by Maarten Bos, op. cit. supra footnote 478, pp. 27 and 68.
506. Cf. ICJ Reports 1969, p. 44, para. 77.
507. ICJ Reports 1985, pp. 29-30, para. 27.
508. ICJ, Advisory Opinion on the Threat or Use of Nuclear Weapons, ICJ
Reports 1996, p. 253, para. 64.
509. International case-law points in the sense that constitutional or domestic
law provisions cannot be invoked to evade international obligations and cannot
prevail over provisions of treaties in force.
510. Lord McNair, “Treaties and Sovereignty”, in Symbolae Verzijl (présentés
au professeur J. H. W. Verzijl à l’occasion de son soixante-dixième anniver-
saire), The Hague, M. Nijhoff, 1958, pp. 222-237 ; R. Ago, “Third Report on
State Responsibility”, Yearbook of the International Law Commission (YILC)
(1971-II), Part I, pp. 226-233.
General Course on Public International Law 155

treaties 511 ; every conventional obligation limits the sovereign


powers of States parties. In an Advisory Opinion issued on 26 April
1988, the ICJ, holding that the United States was bound to respect
the obligation to have recourse to arbitration under Section 21 of the
1947 United Nations Headquarters Agreement, saw fit to recall “the
fundamental principle of International Law that International Law
prevails over domestic law” 512.
The impressive and ever-continuing growth only of the United
Nations Treaty Series, for example, would suffice to attest the great
relevance of the utilization of treaties in international practice and of
the rules of conduct derived therefrom. Yet, distinct approaches have
been propounded as to the consideration of treaties as “source” of
International Law. There were those who contended that they were
rather “sources” of obligations (G. Fitzmaurice, C. Parry), while
others disagreed with that posture (A. Verdross) ; in an intermediary
position, Maarten Bos proposed that treaties are “sources” of
International Law to the extent that they increase or codify the cor-
pus of already existing rules, and are “sources” of obligations when,
rather distinctly, they exert the role equivalent to that of a contract in
modern domestic law 513. The 1969 and 1986 Vienna Conventions on
the Law of Treaties do not provide for the law which governs inter-
national obligations of States, but rather and more precisely for the
law on the international instruments enshrining such obligations, i.e.,
the treaties 514.
There is no impediment for treaty provisions to enter into the cor-
511. Lord McNair, op. cit. supra footnote 510, pp. 222-237, esp. pp. 236-237.
On the rules of treaty interpretation set forth in Articles 31-33 of the 1969
Vienna Convention on the Law of Treaties, cf. M. K. Yasseen, “L’interprétation
des traités d’après la Convention de Vienne sur le droit des traités”, 151 RCADI
(1976), pp. 9-112.
512. ICJ, Advisory Opinion on the Applicability of the Obligation to
Arbitrate under Section 21 of the United Nations Headquarters Agreement of
1947, ICJ Reports 1988, p. 34, para. 57.
513. Maarten Bos, op. cit. supra footnote 478, pp. 20-24.
514. On the generic term “treaty” under the 1969 Vienna Convention, cf.,
e.g., P. M. Eisemann, “Le gentlemen’s agreement comme source du droit inter-
national”, 106 Journal du droit international, Clunet (1979), pp. 326-349, and
cf. p. 326 on the insufficiencies of the “dogmatism” of Article 38 of the ICJ
Statute. Moreover, concerned with practical problems, the two aforementioned
Vienna Conventions discard abstract classifications of treaties, so common in
the past (such as, e.g., the distinction between traité-contrat and traité-loi) ;
S. Rosenne, “Bilateralism and Community Interest in the Codified Law of
Treaties”, in Transnational Law in a Changing Society — Essays in Honour of
Ph. C. Jessup (ed. W. Friedmann, L. Henkin and O. Lissitzyn), New York,
London, Columbia University Press, 1972, pp. 202-227.
156 A. A. Cançado Trindade

pus of general International Law, i.e., to generate rules of customary


International Law. Such possibility was cautiously admitted by the
ICJ itself, in the same year of the conclusion of the first Vienna
Convention on the Law of Treaties 515. In the account of one partici-
pant in the Vienna Conference of 1968-1969, on the occasion the
representative of Sweden observed that a great part of the contents
of the 1969 Convention expressed simply rules already existing in
customary International Law, while the Swiss representative, in his
turn, added that, in order to fill the gaps which persisted, it was
occasionally “still necessary, in the practice of international rela-
tions, to fall back on custom” 516.
Moreover, even certain unratified conventions of general scope
may have a bearing on the formation of international custom.
Modern endeavours of codification, which go “much further beyond
the mere expression of customary International Law” than earlier
conventions did, have increasingly characterized the “progressive
development” of International Law, in endeavouring to fulfil “exist-
ing needs of the international community” 517. It has been conceded
that even one or another of the so-called “codification conven-
tions” 518 are declaratory of customary law, and, having achieved a
significant number of ratifications, even before entering into force
they could keep on contributing to the evolving general International
Law itself 519. In this respect, it has been suggested that
“in the case of a codification convention lato sensu, in
other words, a convention which codifies and ‘progressively
develops’ International Law . . ., the codification process con-
sidered independently of ratification may give rise to new cus-

515. Cf. the North Sea Continental Shelf (Federal Republic of Germany/
Denmark ; Federal Republic of Germany/Netherlands) cases (Judgment of 20 Feb-
ruary 1969), ICJ Reports 1969, p. 41.
516. Cf. account in I. M. Sinclair, The Vienna Convention on the Law of
Treaties, Manchester, University Press, Oceana, 1973, pp. 9 and 11.
517. C. Th. Eustathiades, Unratified Codification Conventions (Gilberto
Amado Memorial Lecture), Geneva, UN Publ., 1973, pp. 2 and 10.
518. Such as, e.g., the 1969 and 1986 Vienna Conventions on the Law of
Treaties, the 1982 UN Convention on the Law of the Sea, the 1961 Vienna
Convention on Diplomatic Relations and the 1963 Vienna Convention on
Consular Relations.
519. The 1975 Vienna Convention on Representation of States in Their
Relations with International Organizations of Universal Character, e.g., can be
taken as declaratory of customary rules on the matter already crystallized even
before their adoption.
General Course on Public International Law 157

tomary rules and thereby alter the rights and obligations of


States regardless of the consent which the convention requires
from them to be valid as such” 520.

3. General principles of law

I have already expressed my view that general principles of law


conform the very foundations of International Law, and indeed of
every and any legal system 521. At this stage, in approaching the for-
mal “sources” of International Law, suffice it here to point out that
the inclusion of general principles of law among the “sources” set
forth in Article 38 of the ICJ Statute can be more clearly explained
as from the outlook of the natural law foundations of International
Law. Such inclusion, moreover, came to endorse the findings of
earlier arbitral practice, which contributed to the configuration of
a third “source” of International Law, historically more recent than
custom and treaties 522. There persisted, however, doubts and uncer-
tainties as to the meaning of general principles of law ; for example,
for some, the expression pertained to the principles of International
Law properly, while for others it referred to the principles of com-
parative domestic law of the various States 523.
The doubts and uncertainties already referred to were made
present during the drafting itself, by the Advisory Committee of
Jurists appointed to that end 524, of Article 38 of the Statute of the
Hague Court in June-July 1920. Baron Descamps, who believed in
“objective justice” (present in theories of natural law), proposed
originally to the Committee the expression “juridical conscience of
the civilized nations”, against whose “subjectivism” Mr. E. Root
manifested himself. Lord Phillimore elaborated, together with
E. Root, an amendment to the proposal of Descamps. The solution

520. C. Th. Eustathiades, op. cit. supra footnote 517, p. 13, and cf. pp. 3-4,
7-8 and 12.
521. Cf. Chap. III, supra.
522. P. Guggenheim, “Contribution à l’histoire des sources du droit des
gens”, 94 RCADI (1958), pp. 72-76 and 80-81.
523. Cf., on the point, e.g., M. Virally, op. cit. supra footnote 497, pp. 144-
146. Moreover, while the borderline between treaties and custom appeared clear,
not always it appeared easy to distinguish customary rules from general prin-
ciples of law. Bin Cheng, General Principles of Law as Applied by International
Courts and Tribunals, London, Stevens, 1953, p. 23 ; cf. also the critical remarks
by Ch. Chaumont, “Cours général de droit international public”, 129 RCADI
(1970), pp. 456-464.
524. Cf. its composition in footnote 476, supra.
158 A. A. Cançado Trindade

of compromis, between the principles of “objective justice” of


Descamps, and the principles of “common law” (Phillimore) or recog-
nized by “civilized nations” in foro domestico (Root), came into
operation with the expression “general principles of law” 525.
The expression incorporated, however, the tension of the polarity
between jusnaturalism (the universal principles of objective justice)
and legal positivism (the search for the principles of law recognized
and crystallized in the domestic legal orders). It is, however, clear
that the expression establishes a clear link between domestic law and
International Law 526. As from the fifties reiterated references came
to be made to general principles of law such as those of good faith,
of res judicata, of the prohibition of the abuse of rights, among
others. It has been argued that Article 38 of the Statute of the
Hague Court, as adopted (i.e., containing references inter alia to
custom and general principles of law), came to reject the thesis that
only the rules created by means of a “formal process” were “valid”,
and to sustain that, like in the domestic legal systems, International
Law also embodies certain principles not formally formulated 527.

4. Judicial and arbitral decisions

Another formal “source” of International Law, listed in Article 38


of the ICJ Statute, lies in the great mass of judicial and arbitral deci-
sions 528, which vary in weight and influence. The tribunals (includ-

525. Bin Cheng, op. cit. supra footnote 523, pp. 6-21 ; Maarten Bos, op. cit.
supra footnote 478, pp. 33-39.
526. There have been calls for a thorough survey of comparative law for the
identification of the general principles of law ; cf. M. Akehurst, “Equity and
General Principles of Law”, 25 International and Comparative Law Quarterly
(1976), pp. 817-819 ; A. A. Cançado Trindade, “La méthode comparative en
droit international : une perspective européenne”, 55 Revue de droit interna-
tional de sciences diplomatiques et politiques (1977), pp. 273-287 ; L. C. Green,
“Comparative Law as a ‘Source’ of International Law”, 42 Tulane Law Review
(1967), pp. 52-66.
527. Bin Cheng, op. cit. supra footnote 523, p. 23, and cf. pp. 25-26. On the
usefulness to international tribunals to resort to general principles of law, cf. M.
O. Hudson, International Tribunals — Past and Future, Washington, Carnegie
Endowment for International Peace, Brookings Institution, 1944, p. 108.
528. On judicial precedent as source of International Law, cf. H. Lauterpacht,
The Development of International Law by the International Court, London,
Stevens, 1958, pp. 20-22 ; J. G. Merrills, The Development of International Law
by the European Court of Human Rights, 2nd ed., Manchester, University Press,
1993, pp. 12-16 and 231-233 ; J. R. W. D. Jones, The Practice of the
International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd
ed., Ardsley N.Y., Transnational Publs., 2000, pp. 3-643 ; L. J. van den Herik,
General Course on Public International Law 159

ing the arbitral ones) wherefrom they emanate comprise both the
international and national ones, these latter when pronouncing on
questions of International Law 529. There is here an area of signi-
ficant interaction in the operation of international and national
tribunals ; just as judicial decisions of international tribunals can
clarify certain questions of International Law and also of domestic
law, judicial decisions of national tribunals can likewise do so
when dwelling upon questions of International Law 530.
Although Article 38 of the ICJ Statute refers to judicial decisions
as a “subsidiary means” for the determination of rules of law, the
international judicial function has considerably enlarged since that
provision was drafted, in 1920. At that time, the PCIJ had just been
established. Nowadays, besides its successor, the ICJ, the interna-
tional community counts on a multiplicity of international tribunals
— a phenomenon which discloses the advances achieved in the last
decades by the old ideal of the realization of international justice 531.
Such tribunals today operate in distinct areas of International Law,
such as the international protection of human rights, the international
law of the sea, international criminal law, the law of integration at
the regional level. Accordingly, judicial decisions as “source” of
International Law are bound to increase in importance.
The Contribution of the Rwanda Tribunal to the Development of International
Law, Leiden, Nijhoff, 2005, pp. 1-284 ; Bin Cheng, “The Contribution of
International Courts and Tribunals to the Protection of Human Rights under
International Customary Law”, in International Protection of Human Rights —
Proceedings of the VIIth Nobel Symposium (eds. A. Eide and A. Schou, Oslo,
1967), Stockholm, Almqvist & Wiksell, 1968, pp. 167-175 ; among others.
529. Cf., e.g., R. A. Falk, The Role of Domestic Courts in the International
Legal Order, Syracuse University Press, 1964, pp. 21-52 and 170 ; F.
Morgenstern, “Judicial Practice and the Supremacy of International Law”, 27
BYBIL (1950), p. 90. The practice of domestic tribunals in matters of interna-
tional law has in fact been taken into account in the case-law of international tri-
bunals themselves. Cf., e.g., J. A. Barberis, “Les arrêts des tribunaux nationaux
et la formation du droit international coutumier”, 46 Revue de droit international
de sciences diplomatiques et politiques (1968), pp. 247-253.
530. C. H. Schreuer, “The Authority of International Judicial Practice in
Domestic Courts”, 24 International and Comparative Law Quarterly (1975),
pp. 180-183 ; A. A. Cançado Trindade, “Exhaustion of Local Remedies in
International Law and the Role of National Courts”, 17 Archiv des Völkerrechts
(1977-1978), pp. 333-360. The old controversies between monism and dualism
yield to a new approach to these aspects of the matter ; cf. A. Drzemczewski,
“Les faux débats entre monisme et dualisme — droit international et droit
français : l’exemple du contentieux des droits de l’homme”, 51 Boletim da
Sociedade Brasileira de Direito International (1998), Nos. 113-118, pp. 95-109 ;
G. Sperduti, “Dualism and Monism : A Confrontation to Be Overcome”, 3 Italian
Yearbook of International Law (1977), p. 31.
531. Cf. Chap. XXV, RCADI, Vol. 317 (2005).
160 A. A. Cançado Trindade

Contemporary international tribunals pronounce, more and more


often, on questions of interest of, or concern for, the international
community as a whole. Judicial decisions of the international human
rights tribunals — the European and Inter-American Courts of
Human Rights —, for example, have indeed contributed to the
creation of an international ordre public based upon the respect for
human rights in all circumstances. They have both helped to achieve
the aptitude of International Law to regulate efficiently relations
which have a specificity of their own — at intra-State, rather than
inter-State, level, opposing States to individuals under their respec-
tive jurisdictions ; they have thus contributed to enrich and humanize
contemporary International Law 532.
Judicial decisions of the ad hoc international criminal tribunals —
those for the former Yugoslavia and for Rwanda —, for example,
have, in their turn, contributed to combat impunity and to foster the
rule of law at national and international levels. These reassuring
developments are bound to confer a new dimension on international
case-law, distinct from that which was envisaged in 1920. This new
dimension encompassing contemporary international-law-making
reflects, in turn, the recent advances towards international ordre
public and rule of law, proper to the newly emerging jus gentium at
this beginning of the twenty-first century.

5. Doctrine

Article 38 (1) (d) of the Statute of the Hague Court indicates


expressly, moreover, that doctrine also constitutes a “subsidiary
means”, among the “sources” listed therein. The reference to doc-
trine is accompanied by a qualification, namely, “the teachings of the
most highly qualified publicists of the various nations”. The influ-
ence of some distinguished authors has appeared more remarkable in

532. A. A. Cançado Trindade, “La perspective trans-atlantique : La contribu-


tion de l’œuvre des cours internationales des droits de l’homme au développe-
ment du droit public international”, in La Convention européenne des droits de
l’homme à 50 ans — Bulletin d’information sur les droits de l’homme, No. 50
(special issue), Strasbourg, Council of Europe, 2000, pp. 8-9 (published also in
other idioms of the Council of Europe) ; and cf. A. A. Cançado Trindade, “The
Case-Law of the Inter-American Court of Human Rights : An Overview”, in
Studi di Diritto Internazionale in Onore di G. Arangio-Ruiz, Vol. III, Naples, Ed.
Scientifica, 2004, pp. 1873-1898 ; H. Tigroudja and I. K. Panoussis, La Cour
interaméricaine des droits de l’homme — Analyse de la jurisprudence consul-
tative et contentieuse, Brussels, Bruylant, Nemesis, 2003, pp. 21-308.
General Course on Public International Law 161

the epoch of formation of International Law than subsequently, as


exemplified by the writings of the classics 533. Although there is a
tendency to attribute to doctrine nowadays a rather modest position
among the “sources” of International Law, one ought not, however,
neglect it. Resort is always made to doctrinal teachings, for example,
at least to substantiate claims at the international level.
There have also been instances, however rare, of individual
authors who have succeeded in influencing the evolution itself of
International Law in specific domains, such as diplomatic protection
of nationals abroad 534, and the law of the sea 535, among others.
Furthermore, the considerable influence may be recalled, for
example, of Latin American doctrine (especially that of a defen-
sive character) for the general recognition of certain principles of
International Law, such as those of the juridical equality of
States, of non-use of force and non-intervention in inter-State rela-
tions (the Drago and Calvo doctrines), and of peaceful settlement
of international disputes 536.
Some have regarded, as a limitative characteristic of doctrine (in
the sense of the teachings of publicists), its alleged tendency to
reflect the perceptions of International Law prevailing in a given
legal system, region or country. Be that as it may, the insertion of
doctrine among the formal “sources” of International Law set forth
in Article 38 of the ICJ Statute is not to be minimized. It should be
kept in mind that, in historical perspective, some of the great doc-
trines of International Law, crystallized with the passing of time,
have contributed to the “development of the juridical conscience”
and have fostered the sentiment of international solidarity 537. The

533. Cf. Chap. I, supra.


534. E. M. Borchard, The Diplomatic Protection of Citizens Abroad, New
York, Banks Law Publ. Co., 1916, pp. 1 ff. ; and cf. C. Parry, The Sources and
Evidences of International Law, Manchester, University Press, Oceana, 1965,
p. 107.
535. Although States had claimed restricted rights in areas adjacent to their
territorial sea well before Gilbert Gidel started writing on such claims (cf.
G. Gidel, Le droit international public de la mer, 3 vols., Châteauroux,
Mellottée, 1932-1934), “it was Gidel who produced the concept of contiguous
zone as a basis for the discussion about the validity of such claims”
(M. Akehurst, A Modern Introduction to International Law, 2nd ed., London,
G. Allen & Unwin, 1971, pp. 55-56).
536. Cf., recently, A. A. Cançado Trindade and A. Martínez Moreno,
Doctrina Latinamericana del Derecho Internacional, Vol. I, San José of Costa
Rica, Inter-American Court of Human Rights, 2003, pp. 5-64.
537. N. Mateesco, Doctrines-écoles et développement du droit des gens,
Paris, Pedone, 1951, pp. 25 and 45.
162 A. A. Cançado Trindade

influence of the teachings in the domain of International Law, as


well pointed out by M. Lachs, projects itself well beyond the peda-
gogical sphere, reaching the practice itself of International Law 538.
And as well pointed out also by A. de La Pradelle, while interna-
tional judges and arbiters have remained aware of the self-limita-
tions inherent in their functions, and representatives of States have
only and invariably beheld their own interests, not seldom in a rather
uncompromising way — doctrine, in its turn, has retained its cre-
ative function 539. It is important — he added — that the inspiration
of the human spirit devotes itself freely to the search for “juridical
truth”, keeping forcefully in mind that the establishment of rules,
regarded as obligatory for States “independently of their formal con-
sent”, could not be undertaken by the States themselves 540.
It is, moreover, to be borne in mind that doctrine is not limited to
the teachings of individual authors, but comprises, likewise related
to the “sources” of International Law, the relevant doctrinal work
emanated from collegiate organs within international organizations
(for example, the work of the United Nations International Law
Commission 541, of the OAS Inter-American Juridical Committee 542,
and the Asian-African Legal Consultative Committee 543, devoted to
the realization of the aims of codification and progressive develop-
ment of International Law), or else from international scientific-
academic institutes or associations 544, whose Yearbooks and Reports
contain a wealth of materials reflecting the evolving doctrine of
International Law 545 and dealing with themes of concern to the inter-
national community as a whole.

538. M. Lachs, The Teacher in International Law, 2nd rev. ed., Kluwer,
Nijhoff, 1987, pp. 159-229.
539. A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd ed., Paris,
Editions internationales, 1950, p. 7.
540. Ibid., pp. 7-8.
541. Cf. United Nations, The Work of the International Law Commission, 5th
ed., New York, United Nations, 1996, pp. 1-501.
542. Reproduced in its series Recommendations and Reports.
543. Cf., e.g., inter alia, AALCC, Asian-African Legal Consultative
Committee — Report and Selected Documents (XXXII Session, 1993), New
Delhi, AALCC Secretariat, 1993, pp. 1-312.
544. Such as, in particular, the Institut de Droit International, and also the
International Law Association, the Instituto Hispano-Luso-Americano de
Derecho Internacional (IHLADI), among others.
545. Cf. Institut de Droit International, Livre du Centenaire 1873-1973 :
Evolution et perspectives du droit international, Basle, Karger, 1973, pp. 124-
473 ; G. Fitzmaurice, “The Contribution of the Institute of International Law to
the Development of International Law”, 138 RCADI (1973), pp. 211-259 ;
General Course on Public International Law 163

6. Equity

In the course of the drafting, in 1920, of Article 38 of the PCIJ


Statute, the Advisory Committee of Jurists (appointed to that end)
conceived the function of equity as being very restricted, to be
applied only if agreed upon by the parties 546. In fact, the notion of
equity, which by Article 38 (2) of the Statute (of the PCIJ and the
ICJ) occupies only a secondary position among the “sources” of
International Law, was surrounded by uncertainties 547 ; Article 38 (2)
limits itself to preserve “the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto”. According to the well-
known classification of the functions of equity, this latter may be
applied infra legem (adapting the law to the facts of concrete cases),
praeter legem (filling gaps in law), or contra legem (as a means to
refuse to apply unjust laws). It is generally reckoned that equity con-
tra legem could not be applied in the absence of an express autho-
rization in this sense 548 ; equity praeter legem is currently of reduced
application, given the unlikelihood of gaps in International Law
nowadays. There thus remains equity infra legem, the most usual
form of its application, as, for example, in frontier disputes 549.
Charles De Visscher once remarked that equity is “characterized
essentially as an individualized expression of justice” 550. Because it
has tended to be identified with a certain subjectivism, international
tribunals have often joined references to equity to a simultaneous
invocation of custom, or of treaties, or of general principles of law,
or of earlier judicial or arbitral decisions 551. It has been argued that

International Law Association, The Present State of International Law — 1873-


1973, Kluwer, Deventer, 1973, pp. 3-392 ; P. De Visscher, “La contribution de
l’Institut de droit international à la protection des droits de l’homme”, in Le
droit international au service de la paix, de la justice et du développement —
Mélanges M. Virally, Paris, Pedone, 1991, pp. 215-224 ; Ch. Dominicé, “La con-
tribution de l’Institut de droit international au développement du droit de l’or-
ganisation internationale”, in Mélanges en l’honneur de N. Valticos — Droit et
justice (ed. R.-J. Dupuy), Paris, Pedone, 1999, pp. 101-115.
546. Cf. M. Sørensen, op. cit. supra footnote 473, pp. 28-33.
547. On these latter, cf., e.g., Ch. Rousseau, Droit international public, Vol. I,
Paris, Sirey, 1970, pp. 400-405.
548. As set forth in Article 38 (2) of the Statute of the Hague Court.
549. M. Akehurst, “Equity and General Principles of Law”, 25 International
and Comparative Law Quarterly (1976), pp. 801-813.
550. Ch. De Visscher, De l’équité dans le règlement arbitral ou judiciaire des
litiges de droit international public, Paris, Pedone, 1972, pp. 6-7, and cf. pp. 12-13.
551. M. Akehurst, op. cit. supra footnote 549, pp. 811-812 ; Ch. De Visscher,
op. cit. supra footnote 550, p. 4.
164 A. A. Cançado Trindade

it remains incumbent upon equity to keep on proceeding to the


“judicial adaptation of the rules to the circumstances of the concrete
cases” 552.
Considerations of equity have been invoked in international
judicial practice, for example in the domains of the law of the sea 553,
and of the international protection of human rights (in this latter, for
example, in the acknowledgment of powers “inherent” in interna-
tional supervisory organs 554 and in the determination of reparations
to victims), thus discarding State voluntarism 555.

IV. The Formal “Sources” Not Enumerated in Article 38


of the ICJ Statute

1. Unilateral juridical acts of States

Given the decentralization of the international legal order, in


which co-exist, in a regime of co-ordination, politically organized
entities such as the States (besides international organizations,
peoples and individuals), it is not surprising that unilateral acts
emanating from them have had legal effects attached thereto. Inter-
national practice has admitted, in fact, that international obligations
may be assumed under certain circumstances as a result of some
unilateral acts 556. Unilateral acts have, as a matter of fact, been con-
ceived as manifestations of a subject of International Law to which
this latter attaches certain consequences 557. There are unilateral acts
552. Ch. De Visscher, op. cit. supra footnote 550, p. 9.
553. There are those who detected, in the Judgment of 1969 of the ICJ on the
North Sea Continental Shelf (Federal Republic of Germany/Denmark ; Federal
Republic of Germany/Netherlands) case, ICJ Reports 1969, pp. 32-33, 49-50
and 53-54, paras. 47, 91-92 and 100), an example of a decision based on “con-
siderations of equity” ; K. Hjertonsson, The New Law of the Sea — Influence of
the Latin American States on Recent Developments of the Law of the Sea,
Leiden, Stockholm, Sijthoff, Norstedts, 1973, p. 166, and cf. pp. 163-168.
554. B. G. Ramcharan, “Equity in the International Law of Human Rights”, 5
Dalhousie Law Journal (1979) pp. 52, 59 and 65-66.
555. N. K. Hevener and S. A. Mosher, “General Principles of Law and the
U.N. Covenant on Civil and Political Rights”, 27 International and Comparative
Law Quarterly (1978), pp. 596-597, 601, 603-604 and 612-613.
556. Cf., e.g., G. Venturini, “La portée et les effets juridiques des attitudes et
des actes unilatéraux des Etats”, 112 RCADI (1964), pp. 387-388, 391 and 400-
401 ; and cf. A. Miaja de la Muela, “Los Actos Unilaterales en las Relaciones
Internacionales”, 20 Revista Española de Derecho Internacional (1967),
pp. 456-459.
557. E. Suy, Les actes juridiques unilatéraux en droit international public,
Paris, LGDJ, 1962, p. 44.
General Course on Public International Law 165

foreseen by customary law, for example protest, notification, promise,


renunciation, recognition, among others.
Even such acts do not pass without qualifications. Recognition,
for example, is often a unilateral act, based largely on the prin-
ciple of effectiveness in a given situation, with the consequences
ensuing therefrom 558. On the other hand, non-recognition is also
utilized in practice to try to impede that a situation de facto (for
example, one generated by force) comes to produce legal effects 559.
Proposed enumerations of unilateral acts in International Law have
not purported to be exhaustive 560, or conclusive as to their legal
effects.
Yet, it is to be recalled that, in the domain of the law of the sea,
for example, the notions of contiguous zone, territorial sea (followed
by patrimonial sea and subsequently exclusive economic zone) were
initially formed (before the 1982 UN Convention on the Law of the
Sea) by means of unilateral acts of regulation on the part of each
State individually rather than by means of multilateral treaties 561. It
was suggested that the constant repetition of these multiple unilateral
acts, for more than three decades before the adoption of the 1982
Montego Bay Convention, contributed decisively to the formation of
some customary norms in this domain 562. With the adoption, how-
ever, of the 1982 UN Convention on the Law of the Sea, some of
them were consolidated therein, while other emerging concepts
which appeared to reflect a more generalized consensus were
adopted therein 563.

558. P. Reuter, Institutions internationales, 6th ed., Paris, PUF, 1969,


pp. 120-128 ; and cf. Chap. VII, infra.
559. Cf. examples in, e.g., Alf Ross, A Textbook of International Law —
General Part, London, Longmans, 1947, pp. 118-122 ; and cf. E. Suy, op. cit.
supra footnote 557, pp. 189-214.
560. J. Dehaussy, “Les actes juridiques unilatéraux en droit international
public : à propos d’une théorie restrictive”, 92 Journal du droit international,
Clunet (1965), pp. 55-56, and cf. p. 63.
561. This was what also happened, at a given time, with the extension of the
territorial sea to a limit of 200 miles on the part of some Latin American States,
by means of “internal” unilateral acts (proclamations, laws, decrees, etc.). This
was, furthermore, what happened with the continental shelf as from the well-
known proclamation by Truman of 1945.
562. A. A. Aramburu Menchaca, “La Costumbre y la Delimitación de los
Espacios Marítimos en el Continente Americano”, 38 Revista de Derecho y
Ciencias Políticas, Lima, Peru (1974), pp. 5-39 ; cf. also K. Hjertonsson, op. cit.
supra footnote 553, pp. 7-179.
563. Such as that of the exclusive economic zone, as from the territorial sea
of 12 miles.
166 A. A. Cançado Trindade

2. Resolutions of international organizations

Some attempts were made in the past to approach unilateral acts


of States and acts of international organizations jointly 564. This
approach, however, gave margin to some uncertainties, and it soon
appeared more appropriate to consider the acts of international orga-
nizations separately from the unilateral acts of States. In fact, with
the advent and growth of international organizations 565, as from the
mid-twentieth century, the gradual expansion of their regulatory
powers, varying from case to case, took place 566. The activities and
decisions of international organizations, in the most diverse sectors,
are usually externalized by means of resolutions, of varying rele-
vance and scope : some serve as instrument of exhortation, others
enunciate general principles, and others require a given type of
action aiming at specific results 567.
Resolutions of international organizations have a specificity of
their own, being distinct from other categories of “sources” enumer-
ated in Article 38 of the ICJ Statute 568. Significantly, the silence,
about them, of that provision, has not impeded the ICJ to take them
promptly and properly into account 569. In various passages of its
Advisory Opinion of 16 October 1975 on the Western Sahara, for

564. Cf. J. Dehaussy, op. cit. supra footnote 560, pp. 45, 53-54 and 59-61 ;
A. Miaja de la Muela, op. cit. supra footnote 556, pp. 431-434.
565. According to a definition proposed in 1956 to the UN International Law
Commission, by international organization it was understood an entity estab-
lished by a treaty, with a constitution and common organs, and a personality dis-
tinct from that of its member States, being a subject of International Law with
capacity to conclude treaties ; cit. in Yearbook of the International Law Com-
mission (1956-II), p. 108 ; the definition was proposed by G. G. Fitzmaurice,
rapporteur on the law of treaties.
566. On their contribution to the formation of international custom, cf. L.
Kopelmanas, “Custom as a Means of the Creation of International Law”, 18
BYBIL (1937), p. 151. In recent decades there remained no doubt that the prac-
tice of International Law was no longer restricted to the practice of States, and
comprised also that of international organizations, in need of systematization ;
cf., e.g., S. Rosenne, Practice and Methods of International Law, London, New
York, Oceana Publs., 1984, pp. 1-117.
567. Cf. Chap. VIII, infra.
568. K. Skubiszewski, “A New Source of the Law of Nations : Resolutions of
International Organisations”, in Recueil d’études de droit international en hom-
mage à P. Guggenheim, Geneva, IUHEI, 1968, pp. 508 and 510-511, and cf.
pp. 518-520. On the juridically relevant activity of the UN Secretariat, cf., e.g.,
O. Schachter, “The Development of International Law through the Legal
Opinions of the United Nations Secretariat”, 25 BYBIL (1948), pp. 91-132.
569. Cf., e.g., ICJ, Advisory Opinions on Judgments of the Administrative
Tribunal of the ILO upon Complaints Made against Unesco (1956), and on
Certain Expenses of the United Nations (1962).
General Course on Public International Law 167

example, the ICJ considered and discussed in detail some resolutions


of the UN General Assembly 570. Earlier on, the UN General
Assembly itself, in its resolution 3232 (XXIX) of 22 November
1970, about the revision of the function of the ICJ, also espoused the
thesis that the development of International Law can be reflected,
inter alia, in declarations and resolutions of the UN General
Assembly, which can to this effect be thus taken into account by the
ICJ 571.
This is in fact what has happened in practice. In a subsequent
Advisory Opinion, of 8 July 1996, the ICJ has asserted that
“General Assembly resolutions, even if they are not binding,
may sometimes have normative value. They can, in certain cir-
cumstances, provide evidence important for establishing the
existence of a rule or the emergence of an opinio juris. To
establish whether this is true of a given General Assembly reso-
lution, it is necessary to look at its content and the conditions
of its adoption ; it is also necessary to see whether an opinio
juris exists as to its normative character. Or a series of resolu-
tions may show the gradual evolution of the opinio juris
required for the establishment of a new rule.” 572
And, more recently, in its Advisory Opinion of 9 July 2004 on
the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, the ICJ observed that principles and
rules of International Law (for example, pertaining to the prohibition
of threat or use of force, and to the self-determination of peoples)
can be found in the UN Charter and certain other treaties, in cus-
tomary International Law and in the relevant resolutions adopted by
the UN General Assembly and the Security Council 573. In fact, just
as unilateral juridical acts of States (as subjects of International
Law) rank among the formal “sources” of the contemporary law of
nations, so do the juridical acts (resolutions) of international organi-
zations (likewise subjects of International Law).

570. In the context of decolonization and self-determination ; cf. ICJ Reports


1975, pp. 20, 23, 26-37, 40, 57 and 67-68.
571. Cit. in Ch. Schreuer, “Recommendations . . .”, op. cit. supra foot-
note 488, p. 112 and n. 42.
572. ICJ, Advisory Opinion on the Threat or Use of Nuclear Weapons, ICJ
Reports 1996, pp. 254-255, para. 70.
573. Cf. ICJ Reports 2004, pp. 171-172, paras. 86-88.
168 A. A. Cançado Trindade

The element of opinio juris may be more predominant in resolu-


tions of the declaratory kind ; in any case, resolutions of international
organizations, and in particular those of the UN General Assembly,
have been accepted as “sources” of International Law not only by
the ICJ by also by other international (arbitral) tribunals 574. They
often give expression to values and aspirations of the international
community as a whole. As pointed out by B. Sloan in his review of
40 years of UN General Assembly resolutions,
“principles in Assembly resolutions may be expressions of the
ethical or moral conscience of mankind, of a general world
conscience, of basic concepts of equity and justice, or of the
underlying spirit and aims of the UN” 575.
Thus, summing up, the category of resolutions of international
organizations does rank among the formal “sources” of contempo-
rary International Law. Under certain circumstances, some resolu-
tions do meet this test of being a means whereby International Law
manifests itself. And even if certain resolutions are purely recom-
mendatory — and, thus, not binding —, they are, nevertheless, juridi-
cally relevant, have much influenced international practice, and
States themselves, naturally reluctant to infringe them, consider
themselves at least in the duty to consider them in good faith 576.
Those resolutions form today a vast corpus juris 577, turned to regu-
lation of matters of concern of the international community as a
whole.

V. The Process of Formation of Contemporary International Law :


From Consent to Consensus

In the last decades, a great part of legal doctrine has accommo-


dated itself to reviewing the list of the formal “sources” of

574. B. Sloan, op. cit. infra footnote 575, p. 116, and cf. pp. 74-75.
575. B. Sloan, “General Assembly Resolutions Revisited (Forty Years
Later)”, 58 BYBIL (1987), p. 80, and cf. pp. 137 and 141.
576. Cf. Ch. Schreuer, op. cit. supra footnote 488, pp. 103-118 ; and cf.
K. Skubiszewski, “Recommendations of the United Nations and Municipal
Courts”, 46 BYBIL (1972-1973), pp. 353-364.
577. Cf. H. G. Schermers and N. M. Blokker, International Institutional Law,
3rd rev. ed., The Hague, Nijhoff, 2001, pp. 1-1198 ; C. W. Jenks, The Proper
Law of International Organisations, London, Stevens, Oceana, 1962, pp. 1-267 ;
A. A. Cançado Trindade, Direito das Organizações Internacionais, 3rd ed.,
op. cit. infra footnote 589, pp. 75-76, and cf. pp. 9-853.
General Course on Public International Law 169

International Law” ; yet, as already pointed out, the study of the for-
mation of International Law is far from exhausting itself in those
formal “sources”. For roughly half a century (from the early twenties
to the early seventies), the matter at issue was largely considered in
the light of the question of consent in International Law, which was
soon to become surrounded by controversies, not amenable to simple
answers. By and large, the debates began to oscillate between the old
thesis (upheld by the PCIJ in its Advisory Opinion of 1923 on the
Status of Eastern Carelia) whereby the consent of States was the
basis of international legal obligations (including in peaceful settle-
ment of international disputes) — a view which was later on dis-
missed by the ICJ in its Advisory Opinions of 1950 on the
Interpretation of Peace Treaties, and of 1971 on Namibia — and the
new approach shifting the focus, on the process of formation of
International Law, from individual consent to consensus 578.
According to this new outlook (propounded at the beginning of
the seventies), in the evolution of International Law individual con-
sent could never constitute the ultimate “source” of a legal obliga-
tion, and the new and clear tendency in favour of consensus in the
formation of norms of International Law 579 was “an expression of
the juridical conscience of the international community” 580. This
tendency was fostered by the formation of consensus in the
Conferences of codification and progressive development of
International Law. In this way, the old positivist posture of search for
the consent of each State individually was challenged and overcome.
Subsequently, in the case of Nicaragua v. United States (Merits,
1986), the ICJ took another step, and a significant one, in this direc-
tion, discarding the thesis of the individual consent and attributing
considerable importance to opinio juris 581, to the formation of which
not only States but also international organizations contribute. The
same emphasis on opinio juris was laid by the ICJ in the case of the

578. Cf. E. Suy, “The Meaning of Consensus in Multilateral Diplomacy”, in


Declarations of Principles, A Quest for Universal Peace — Liber Amicorum
Discipulorumque B.V.A. Röling, Leyden, Sijthoff, 1977, p. 272.
579. E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo,
Madrid, Tecnos, 1980, pp. 16, 33, 37 and 39.
580. T. O. Elias, “Modern Sources of International Law”, in Transnational
Law in a Changing Society : Essays in Honour of Ph. C. Jessup (eds.
W. Friedmann, L. Henkin and O. Lissitzyn), New York, London, Columbia
University Press, 1972, pp. 49 and 51, and cf. p. 67.
581. C. Lang, L’affaire Nicaragua/Etats-Unis devant la Cour internationale
de Justice, Paris, LGDJ, 1990, pp. 138, 140 and 149.
170 A. A. Cançado Trindade

Delimitation of the Maritime Boundary in the Gulf of Maine Area


(1984) 582.
In the Nicaragua v. United States case (1986), the ICJ, while re-
emphasizing the need for both the objective and subjective elements
(State practice and opinio juris 583, respectively), in fact demanded
very little evidence of State practice, and took as clear-cut proof of
opinio juris the 1970 UN Declaration on Principles of International
Law concerning Friendly Relations among States, the contents of
which it regarded as indeed reflecting rules of customary law 584. On
their part, positivist doctrines, apparently obsessed only with juridi-
cal stability and certainty 585, seemed, on the other hand, to have kept
on overlooking values and ideas, and opinio juris itself, and mini-
mizing principles which emanate from the “juridical conscience of
mankind”, often expressly invoked in international practice 586. The
considerable expansion of International Law came to require a new
outlook of its “sources”, which are ineluctably linked to the funda-
mental questions that it deals with ; as pertinently remarked by
G. F. H. van Hoof and R. Monaco, traditional “sources” of Inter-
national Law no longer succeeded to comprise the whole and
increasingly complex process of its own formation 587.
Thus, the classic theory of the formal “sources”, for example, did

582. Cf. ICJ Reports 1984, p. 299.


583. The insertion of custom into Article 38 (1) (b) of the Statute of the
Hague Court, it may be recalled, had been much influenced, when the provision
was drafted, by the so-called “historical school” of law, which held that its sub-
jective element, opinio juris, was seen as reflecting “juridical conscience”.
584. International Law Association/Committee on Formation of Customary
(General) International Law, “Final Report of the Committee — Statement of
Principles Applicable to the Formation of General Customary International
Law”, in ILA, Report of the LXIX Conference (London, 2000), London, ILA,
2000, pp. 32, 41, 60 and 62. And cf. Chap. III, supra.
585. Hence the approach to the “sources” of International Law as from a
strictly inter-State outlook, with a reductionist view focusing largely on the con-
ventional and customary means, and minimizing the role of general principles of
law and of doctrine. Underlying this conception, the element of State consent
marks constant presence, culminating in an apology of the so-called “doctrine of
the persistent objector”, a last refuge of State voluntarism. Cf. P. Weil, “Le droit
international en quête de son identité. Cours général de droit international pub-
lic”, 237 RCADI (1992), pp. 131-201.
586. G. J. H. van Hoof, Rethinking the Sources of International Law,
Deventer, Kluwer, 1983, pp. 35, 101, 153 and 162, and cf. pp. 157, 167 and 175.
587. Ibid., pp. 190, 195, 211, 241, 281, 283-284 and 287, and cf. p. 290 ;
R. Monaco, “Réflexions sur la théorie des sources du droit international”, in
Theory of International Law at the Threshold of the 21st Century — Essays in
Honour of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996,
pp. 517-518.
General Course on Public International Law 171

not take fully into due account the considerable normative produc-
tion emanated from international organizations 588 — which deci-
sively contributed to the overcoming of the inter-State paradigm of
the international legal order 589. This contribution of international
organizations is reflected in their work of codification and progres-
sive development of International Law, which, in its turn, has
fostered the rule of law in international relations 590. Such contribu-
tion, in having a direct incidence in the process of formation of
International Law, represents, moreover, an important stage in the
process of gradual institutionalization of the international commu-
nity, bearing in mind the basic principles of International Law 591.
These principles 592 have an inherent validity and necessity,
emanate from natural law, and demonstrate — as categorically
pointed out by G. G. Fitzmaurice — that consent can never consti-
tute the ultimate source of International Law, and respond for its
own validity : such voluntarist-positivist position was inconsistent,
since consent, externalized by treaties or by State practice, was ex
hypothesi incapable of explaining or justifying its own validity or its
legal effects, nor the existence and validity of the principles of law
essential to every and any legal system. Thus, the classic theory of
formal “sources”, reflected in Article 38 of the ICJ Statute, firstly,
could not have the pretension of being “exhaustive” and definitive as
to those “sources”, and, furthermore, failed to distinguish between
formal “sources” and the material “source” of International Law ; it
limited itself to enunciate — in a not exhaustive way — elements to
be taken into account in the application of International Law, and it
did so in a rather limited way 593.

588. R. Monaco, “Réflexions sur la théorie des sources . . .”, op. cit. supra
footnote 587, pp. 519-520 and 529 ; and cf. R. Monaco, “Fonti e Pseudo Fonti
del Diritto Internazionale”, 61 Rivista di Diritto Internazionale (1978), p. 740.
589. A. A. Cançado Trindade, Direito das Organizações Internacionais, 3rd
ed., Belo Horizonte, Brazil, Edit. Del Rey, 2003, pp. 721-747.
590. C.-A. Fleischhauer, “The United Nations at Fifty”, 38 German Yearbook
of International Law (1995), p. 23.
591. A. G. López Martin, “La Codificación del Derecho Internacional en el
Umbral del Siglo XXI : Luces y Sombras en la Labor de la CDI”, 15 Anuario del
Instituto Hispano-Luso-Americano de Derecho Internacional (2001), pp. 388-
390.
592. Cf. Chap. IV, supra.
593. G. G. Fitzmaurice, “Some Problems Regarding the Formal Sources of
International Law”, in Symbolae Verzijl présentées au Professeur J. H. W. Verzijl
à l’occasion de son LXXe anniversaire, The Hague, M. Nijhoff, 1958, pp. 166-167
and 173-176.
172 A. A. Cançado Trindade

VI. Opinio Juris beyond Custom : Its Wide Scope and Role
in the Formation of Contemporary International Law

In recent years increasing attention has been turned to the ele-


ment of opinio juris in the very formation of contemporary Interna-
tional Law. To the formation of an “idea of Law” contribute, in our
days, not only States, but also international organizations and other
subjects of International Law (peoples, individuals and groups of
individuals). If, some decades ago, it was frequent to approach the
process of formation of the norms of general International Law with
attention turned only to the “sources” manifested in inter-State rela-
tions 594, in our days it is no longer possible not to recognize likewise
those ensuing from the practice of entities of the organized civil
society and of groups of individuals at international level 595. It is
nowadays acknowledged that these latter have come to participate
in the process both of formation and of application of international
norms 596.
The so-called “normativists”, as already pointed out, never man-
aged to provide a convincing explanation of the validity of interna-
tional legal norms 597, which is a metajuridical question, belonging to
the psychological ambit in which values manifest themselves. Yet, as
Max Sørensen lucidly pointed out in the mid-forties, although values
appear prima facie to transcend the domain of legal science, they are
apprehended by acts performed at international level, out of the
“intrinsic necessity” to recognize social ends and identify the means
to accomplish them. Thus — he added — International Law cannot
be indifferent to values and moral questions, which always mark
their presence, and International Law ought to attribute “consider-
able importance” to general principles of law 598. In this line of
thinking, A. Verdross, in his turn, assumed as foundation of the
whole legal system an “idée du droit”, which has expression pre-

594. Cf. R. Pinto, “Tendances de l’élaboration des formes écrites du droit


international”, in L’élaboration du droit international public (Colloque de
Toulouse, Société française pour le droit international), Paris, Pedone, 1975,
pp. 13-30.
595. Cf., generally, e.g., F. Hondius, “La reconnaissance et la protection des
ONG en droit international”, 1 Associations transnationales (2000), pp. 2-4 ;
J. Ebbesson, “The Notion of Public Participation in International Environmental
Law”, 8 Yearbook of International Environmental Law (1997), pp. 51-97.
596. Cf. Chap. IX, infra.
597. Max Sørensen, Les sources . . ., op. cit. supra footnote 473, pp. 20-21.
598. Ibid., p. 254.
General Course on Public International Law 173

cisely in the general principles of law, which precede positive


International Law 599.
A continuous “rebirth” of natural law has been constantly identi-
fied 600, though this latter has never disappeared. This has taken place
in face of the hermetic posture of legal positivism, upholding the
status quo, with its typical subservience to power. It is no longer
a return to classic natural law, but rather the affirmation or restoration
of a higher standard of justice, whereby positive law is assessed.
That “rebirth” has much contributed to the assertion and the consoli-
dation of the primacy, in the order of values, of the obligations per-
taining to the rights of the human person, owed to the international
community as a whole 601.
Irrespective of the profession or otherwise of a renewed jus-
naturalism, it is clear that the enumeration of the “sources”
of International Law undertaken by Article 38 of the ICJ Statute
has shown itself — as already pointed out — inadequate and uncon-
vincing. Several jusinternationalists have in fact taken a stand mani-
festly against the voluntarist-positivist conception which they
regard as underlying the exercise of such enumeration. A notorious
example was provided by the school of “spontaneous law” (R. Ago,
G. Sperduti, R. Quadri, among others), which, in rejecting the enum-
eration of the formal “sources”, insisted on the “spontaneous”
formation at least of customary international norms, regarded as
essentially oriented to the common good.
Underlying this outlook is the moral force of human conscience
— the universal juridical conscience — of which, for example, the
Martens clause is a manifestation, even as a “general source of
International Law” 602.
599. I.e., treaties and custom ; ibid., p. 244 ; and cf. A. Verdross, Derecho
Internacional Público, 5th ed. (reimprint), Madrid, Aguilar, 1969, pp. 15-19.
International Law effectively transcends mere juridical formalism, incapable of
explaining the origin of its norms ; and it does so precisely in order to fulfil the
new needs of the international community, and without that it would lose its
own raison d’être. N. E. Ghozali, “Les fondements du droit international public
— approche critique du formalisme classique”, in Les droits des peuples à dis-
poser d’eux-mêmes — Méthodes d’analyse du droit international — Mélanges
offerts à Ch. Chaumont, Paris, Pedone, 1984, pp. 305 and 314.
600. A. Truyol y Serra, “Théorie du droit international public. Cours général”,
183 RCADI (1981), pp. 142-143.
601. J. A. Carrillo Salcedo, “Derechos Humanos y Derecho Internacional”, 22
Isegoría — Revista de Filosofía Moral y Política, Madrid (2000), p. 75.
602. F. Münch, “A propos du droit spontané”, in Studi in onore di Giuseppe
Sperduti, Milan, Giuffrè, 1984, pp. 149-162 ; F. Münch, “Le rôle du droit spon-
tané”, in Pensamiento Jurídico y Sociedad Internacional — Libro-Homenaje al
174 A. A. Cançado Trindade

Roberto Ago clearly summarized the outlook of the school of


“spontaneous law” :
“une partie essentielle et finalement irremplaçable du droit est
celle qui n’a pas son origine dans des actes volontaires de créa-
tion et souvent d’imposition, mais qui s’inscrit spontanément et
idéalement dans la conscience des membres d’une société
humaine déterminée, sous l’impulsion d’exigences concrètes et
réelles” 603.
He insisted on “the ‘spontaneous’ and hence not voluntary character
of customary International Law”, which moreover presented advan-
tages to the complex and evolutive international community 604.
In another line of thinking, but also in reaction against the volun-
tarist conception of International Law 605 (reflected, for example, in
the PCIJ decision in the Lotus case, supra), the so-called “historical
school” of legal thinking emphasized the opinio juris, requiring
practice to be an authentic expression of the “juridical conscience”
of nations 606. This conception — though originally circumscribed to
the “juridical conscience” — came subsequently to be developed in
the modern theory of International Law, concerned above all with
the reluctance of certain States to accept and apply norms addressed
to a general interest 607.
In fact, the conception of the opinio juris emerged, in the nine-
teenth century, as a construction above all of the German historical
school (Puchta, Savigny), in reaction precisely to the voluntarist
conception ; in this way, it succeeded in gradually discarding the
“will” of the States, and in moving towards the “common juridical
conscience”, of which the customary norms were an expression 608.
Prof. D. Antonio Truyol y Serra, Vol. II, Madrid, Universidad Complutense,
1986, pp. 831-836.
603. R. Ago, “Nouvelles réflexions sur la codification du droit international”,
92 Revue générale de droit international public (1988), p. 540, and cf. p. 541 on
“la nature non volontaire de l’origine du droit coutumier”.
604. Ibid., pp. 573-574, and cf. 564-565.
605. Cf. A. A. Cançado Trindade, “The Voluntarist Conception of Interna-
tional Law : A Re-Assessment”, 59 Revue de droit international de sciences
diplomatiques et politiques, Geneva (1981), pp. 201-240.
606. K. Wolfke, “Some Persistent Controversies Regarding Customary Inter-
national Law”, 24 Netherlands Yearbook of International Law (1993), pp. 5-6.
607. Ibid., pp. 13-14 and 16.
608. R. Huesa Vinaixa, El Nuevo Alcance de la ‘Opinio Juris’ en el Derecho
Internacional Contemporáneo, Valencia, Tirant lo Blanch, 1991, pp. 30-31 and
76-77 ; L. Millán Moro, La ‘Opinio Juris’ en el Derecho Internacional
Contemporáneo, Madrid, Ed. Centro Est. R. Areces, 1990, pp. 33-34 and 138.
General Course on Public International Law 175

This came to foster the formation of these latter in a universalized


international community 609. With the passing of time, it became evi-
dent that the formation of International Law constituted a much
wider process than the formulation of its formal “sources”, above all
in seeking the legitimacy of norms to rule international life. This
meant a clear distancing from, and abandonment of, classic volun-
tarism, and a moving towards the formation of a true “law of con-
science” ; in this way, opinio juris came to assume a considerably
broader dimension than that of the subjective element constitutive of
custom, and to play a key role in the emergence and identification of
the norms of general International Law 610.
There is a general awareness nowadays of the importance of the
work of multiple multilateral forums for the expression of opinio
juris communis and the development of general International Law,
diminishing the unilateral influence of the most powerful States, pro-
moting international law-making in fulfilment of the public interest
and the realization of the common good of the entire international com-
munity, and heading towards the universalization of International
Law 611. Opinio juris is affirmed as a key factor in the formation itself
of International Law (and no longer as only one of the constitutive
elements of one of its formal “sources”). The fundamental elements
of the international legal order are independent from the “will” of the
States, and opinio juris gives expression to the “juridical conscience”,
not only of nations and peoples (as sustained in the past by the histor-
ical school), but of the international community as a whole 612. In

609. At the time of the elaboration of the Statute of the old PCIJ (Article 38,
cf. supra), Baron Descamps referred precisely to this common juridical con-
science, but, at the end of the debates, there prevailed the reductionist outlook of
characterizing opinio juris only as one of the elements (the subjective one) of
custom ; R. Huesa Vinaixa, El Nuevo Alcance de la “Opinio Juris” . . ., op. cit.
supra footnote 608, pp. 36-38.
610. Ibid., pp. 173, 192, 194, 199 and 204-205 ; and cf. R. E. Piza Escalante,
“La “Opinio Juris” como Fuente Autónoma del Derecho Internacional (“Opinio
Juris” y “Jus Cogens”)”, 39 Relaciones Internacionales, Heredia, Costa Rica
(1992), pp. 61-74.
611. Cf. J. I. Charney, “Universal International Law”, 87 American Journal of
International Law (1993), pp. 548 and 551, and cf. p. 543 ; J. I. Charney,
“International Lawmaking — Article 38 of the ICJ Statute Reconsidered”, in
New Trends in International Lawmaking — International “Legislation” in the
Public Interest (Proceedings of the Kiel Symposium, March 1996), Berlin,
Duncker & Humblot, 1997, pp. 180-183 and 189-190.
612. P. Haggenmacher, “La doctrine des deux éléments du droit coutumier
dans la pratique de la Cour internationale”, 90 Revue générale de droit interna-
tional public (1986), pp. 101, 109 and 124.
176 A. A. Cançado Trindade

this way, it fulfils the necessity of an objective validity of the funda-


mental principles and norms of the international community 613.
With the abandonment of voluntarist positivism, the primacy of
conscience over “will” seems to have been duly re-established. It
has, at last, been recognized that conscience refers to superior values
which stand above the “will”, and that Law emanates from the
common conscience of what is juridically necessary (opinio juris
communis necessitatis). Distinctly from the formal “sources” of
International Law, which are nothing more than the means or
vehicles of formation of its norms, conscience (expressed in the
opinio juris communis) appears distinctly, in my understanding, as its
material “source” par excellence, affirming the binding character
of such norms. It is therefrom, i.e., from the universal juridical
conscience, that the peremptory norms of International Law (jus
cogens) 614 ultimately emanate.

613. And of any community in any epoch ; F. Castberg, “Natural Law and
Human Rights”, 1 Revue des droits de l’homme/Human Rights Law Journal
(1968), pp. 34-35 and 37.
614. Cf. Chap. XII, infra.
177

CHAPTER VI

THE MATERIAL SOURCE OF INTERNATIONAL LAW :


MANIFESTATIONS OF THE UNIVERSAL
JURIDICAL CONSCIENCE

I. Introduction :
Insufficiencies of the Formal “Sources” and the Relevance
of the Material “Source” of International Law

The attitude, adopted in the last decades, by part of the interna-


tional legal doctrine, of limiting itself, as from an essentially posi-
tivist outlook, to consider only the formal “sources” of International
Law, has deprived the consideration of the matter from an in-depth
examination of the legal foundations, and, ultimately, of the validity
itself, of the norms of International Law. It has excluded from the
examination of the formation of International Law the substratum of
legal norms : the beliefs, values, ethics, ideas and human aspirations.
Not surprisingly, such attitude has rendered the study of the matter
rather arid, uninspiring, circumscribed to the modes or procedures
whereby international norms are formally created 615. Such posture
has reduced the outlook of International Law to that of a merely for-
mal legal order. This reductionist outlook, conducive to unsatisfac-
tory results, has, however, persisted throughout the last decades,
and has had, in my view, harmful consequences, among which the
perpetuation of the hermetic outlook of the positivist conception,
and the emptying of an international legal order insensible to values,
and its incapacity to fulfil social needs.
By the late sixties, for example, J. H. W. Verzijl, after duly distin-
guishing between the formal and material “sources” of Public
International Law, pondered that it was not possible to examine
the “sources” of Public International Law without recognizing the
importance of natural law for the law of nations (droit des gens),
irrespective of whether the content of natural law has an “objective”

615. For example, Michel Virally openly stated that what was designated as
material “source” would not be of “interest” to the study of International Law ;
M. Virally, “Panorama du droit international contemporain. Cours général de
droit international public”, 183 RCADI (1983), p. 167.
178 A. A. Cançado Trindade

existence or emanates from human conscience 616. However, some-


what surprisingly, he suddenly interrupted this line of reasoning to
affirm that only the “formal” sources, as procedures of “creation”
adopted to that end by a given legal system, ought to be regarded as
“sources” of Public International Law 617.
Years earlier, the same posture of mental reservation had already
manifested itself in legal doctrine. Contrary to what was affirmed,
for example, by Hans Kelsen, that it was not possible to reconciliate
the legal order with the moral order 618, it is my view that human
experience throughout the twentieth century — marked by so many
advances in the scientific-technological domain accompanied by
unprecedented atrocities — demonstrates that it is not possible to
conceive the legal order making abstraction of the moral order.
The assertion by Kelsen was made in his evaluation of a classic
study by J. L. Brierly, who, like him, sought to examine the basis of
validity of the norms of International Law. Brierly came to affirm, in
his study, that the connection between Law and moral was much
more fundamental than its distinction, and that the ultimate basis of
an international obligation rested on its ethical content 619 ; however,
further on, Brierly himself confessed not to know how to conciliate
the individual belief to act in conformity with Law with the “impera-
tive” character of this latter 620.
In my understanding, there is not, in fact, how to dissociate the
formation of International Law for the aspects pertaining to its own
foundations. The typically positivist feature of approaching the
formation of International Law as from the outlook of the formal

616. J. H. W. Verzijl, International Law in Historical Perspective, Vol. I,


Leyden, Sijthoff, 1968, pp. 1-3.
617. In refusing to take into account the principles which transcend the norms
of positive law — irrespective of their being captured by doctrine, or by reason,
or by human conscience, or formed “spontaneously” (as propounded by the “his-
torical school” — ibid., pp. 7-8) — he yielded to the hermetic outlook of legal
positivism.
618. H. Kelsen, “The Basis of Obligation in International Law”, in Estudios
de Derecho Internacional — Homenaje al Profesor C. Barcía Trelles, Santiago
de Compostela, University of Santiago de Compostela, 1958, p. 110.
619. J. L. Brierly, The Basis of Obligation in International Law, Oxford,
Clarendon Press, 1958, p. 65.
620. Cf. ibid., pp. 66-67, and cf. also pp. 68-80. And, in his Law of Nations,
he limited himself, in a rather unsatisfactory way, to say, tout court, that the
answer to this question was to be found outside the legal order, it being incum-
bent upon the philosophy of Law to provide it. He thus withheld himself in the
middle of the road . . . Cf. J. L. Brierly, The Law of Nations, 6th ed., Oxford,
Clarendon Press, 1963, p. 54.
General Course on Public International Law 179

“sources” of International Law (listed in Article 38 of the ICJ


Statute) with emphasis on evidence of State consent — as followed
for years in the case-law of the PCIJ and the ICJ — appears increas-
ingly open to challenge. It is the posture resulting from the analyti-
cal positivism of the nineteenth century, grounded on legal formal-
ism (including its list of “sources”), and making abstraction of the
multifaceted, vast and complex process of formation of contempo-
rary International Law 621, aiming at facing the new challenges with
which the international community is confronted, besides fulfilling
its new needs and aspirations.
In fact, the reductionist posture of considering only the formal
“sources” of International Law has never demonstrated the logical or
juridical impossibility of also taking into account the substratum of
juridical norms. It simply and dogmatically refuses to do so, without
explaining why. On my part, I see no impediment for considering, in
the study of the formation of International Law, likewise its material
“source”, even if this latter transcends, as it effectively does, the
positive legal order. And I go further : bearing in mind the hard
human experience accumulated in the last decades, and the new
challenges faced by humankind, I do not see how not to take into
account the material “source” of International Law. After all, Inter-
national Law is absolutely not at all reduced to an instrument at
the service of power ; its final addressees are ultimately the human
beings, it being incumbent upon itself to fulfil their needs, among
which the realization of justice 622. Its material “source” lies in
human conscience itself.

II. Human Conscience, Recta Ratio and the Universality


of International Law

The history of international human thinking discloses that con-


science has always opposed injustice and rebelled against oppres-

621. E.g., the “law-making activity” of some UN organs (for the realization
of UN purposes) — mainly certain resolutions of the General Assembly — with
a bearing on the evolving opinio juris of the international community ;
D. P. Verma, “Rethinking about New International Law-Making Process”, 29
Indian Journal of International Law (1989), pp. 38, 43-44, 46-47 and 51.
622. A. A. Cançado Trindade, “Reflexiones sobre el Desarraigo como
Problema de Derechos Humanos Frente a la Conciencia Jurídica Universal”, in
La Nueva Dimensión de las Necesidades de Protección del Ser Humano en el
Inicio del Siglo XXI (eds. A. A. Cançado Trindade and J. Ruiz de Santiago), 3rd
ed., San José, Costa Rica, UNHCR, 2004, pp. 72-73.
180 A. A. Cançado Trindade

sion 623. In modern history, even before the industrial revolution,


there were those who refused to adhere to the growing belief that
scientific and material progress would replace philosophy and
humanities, and “all the demands of the human spirit” 624. The need
of the prevalence of the recta ratio has been pointed out in face of
the considerable sufferings inflicted upon human beings 625 as well as
of the divorce between sciences and humanities 626. The rights of
humanity (droits de l’humanité) were at times invoked already in the
seventeenth century and beginning of the eighteenth century 627.
In fact, the notion of conscience is deeply rooted in human think-
ing. It marked its presence in classic Greek-Latin thinking, which
first attempted to elaborate on it. It might be argued that, born in
classic Greek-Latin thinking, the notion of conscience would be of
difficult apprehension, as new meanings may be ascribed to it
throughout the centuries. This does not mean that it does not exist ;
quite on the contrary, it is always present. The same may be said of
the very conception of the law of nations, or indeed of any object of
human knowledge. While it is true that ideas and conceptions evolve
with time, and so does Law itself (including jus gentium) 628, this
does not deprive, in my understanding, the notion of conscience of
an irreducible minimum. Conscience seems to be like time, in the
sense that one knows what it means, but if someone asks what it is,
one has difficulties in defining it 629.
This irreducible minimum, hardly susceptible of one sole defi-

623. Cf., e.g., P. Hazard, La crise de la conscience européenne (1680-1715),


Vol. I, Paris, Gallimard, 1968, p. 114.
624. P. Hazard, La crise de la conscience européenne (1680-1715), Vol. II,
Paris, Gallimard, 1968, p. 123. As the author pointed out, in the period 1680-
1715, even then there was some awareness of the need to unmask the “myth” of
the overriding, if not unlimited, scientific and material progress (divorced from
moral progress) ; ibid., Vol. II, p. 123.
625. Cf. I. Berlin, The Crooked Timber of Humanity, Princeton, University
Press, 1997, pp. 19 and 175.
626. I. Berlin, The Proper Study of Mankind, New York, FSG, 2000, pp. 217,
235-236 and 326-358.
627. P. Hazard, op. cit. supra footnote 624, Vol. II, pp. 55 and 71.
628. Cf. Chap. I, supra.
629. Paraphrasing St. Augustine (Book XI of his Confessions) :
“Qu’est-ce donc que le temps ? Si personne ne me le demande, je le sais.
Si quelqu’un pose la question et que je veuille l’expliquer, je ne sais plus.
Toutefois, j’affirme avec force ceci : si rien ne passait, il n’y aurait pas de
passé ; si rien n’advenait, il n’y aurait pas de futur ; si rien n’était, il n’y
aurait pas de présent.” (St. Augustin, Œuvres I — Les Confessions
précédées de Dialogues philosophiques, Paris, Gallimard, 1998, p. 1041. )
General Course on Public International Law 181

nition, is always present in the distinct meanings attributed to


conscience in the history of human thinking. One may call it
“syneidesis/synderesis” (as in ancient Greece 630), or the moral
good (Cicero 631 and Seneca 632), or the knowledge and pursuance of
the common good (Thomas Aquinas 633), or the precept of right
reason and enlightenment (Francisco de Vitoria 634), or the categorical
imperative (I. Kant 635) — the irreducible meaning is always present,
630. An approximation, e.g., to the practical syllogism of Aristotle. In his
Nicomachean Ethics (circa 335-322 BC), Aristotle insists on human behaviour in
accordance with the recta ratio, this being a general principle, valid for all ;
Aristóteles, Etica Nicomaquea — Política, Mexico, Ed. Porrúa, 2000, pp. 9, 16,
19, 23, 43, 95 and 144 (Book I, Sections VII and XIII ; Book II, Sections II and
VI ; Book III, Section XII ; Book VII, Sections VIII and IX ; and Book X,
Section IX). Even before him, the recta opinio marks presence in Plato’s
Dialogues (explicitly in The Banquet) ; cf. Platón, Diálogos, Vol. III (Phedon,
The Banquet, Phedro), Madrid, Ed. Gredos, 1997, p. 245.
631. In his De Legibus (On the Laws, circa 51-43 BC, book II), M. T. Cicero
held that what is “right and true” is also “eternal”, not deriving from legislation
and legal decisions ; cf. Cicero, On the Commonwealth and On the Laws (ed. J.
E. G. Zetzel), Cambridge, University Press, 2003 (re-ed.), p. 133. Still in his De
Legibus (Book I), Cicero maintained that the whole humankind was “bound
together”, and “the right way of life” makes “all people better” ; ibid., p. 116. In
his On Duties (De Officiis, 44 BC), Cicero wrote that “everything produced on
the earth is created for the use of mankind, and men are born for the sake of
men, so that they may be able to assist one another” ; Cicero, On Duties (eds.
M. T. Griffin and E. M. Atkins), Cambridge, University Press, 2003 (re-ed.), p. 10.
And in his De Republica (circa late 50s-46 BC), Cicero concentrated on first
principles, legitimacy and justice, resorting to natural law ; to him, justice gives
“everyone his due”, takes “thought for the interests of mankind”, sparing all
human beings ; Cicero, The Republic — The Laws, Oxford, University Press,
1998, p. 66 (Book III, para. 24).
632. In the first years of our era (up to the year of 63), Seneca’s Letters to
Lucilius contain passages in which he referred to the “common law of
humankind” (L. A. Seneca, Cartas a Lucilio (ed. V. López Soto), Barcelona, ed.
Juventud, 1982, pp. 124 and 282, and cf. pp. 168 and 375) and affirmed that
virtue is identified with recta ratio (ibid., p. 177) ; and cf. Sénèque, Entretiens —
Lettres à Lucilius (ed. P. Veyne), Paris, Ed. R. Laffont, 1993, pp. 768 and 813).
633. In the thirteenth century, in his Summa Theologiae (Part I), Thomas
Aquinas wrote that human laws only have the quality of law when they accord
with right reason, and its validity depends upon its justice ; and to be just, laws
ought to accord with the rule of reason (a precept of natural law). Cf. relevant
excerpts in Aquinas Selected Political Writings (ed. A. P. D’Entrèves), Oxford,
Blackwell, 1970, pp. 121, 125 and 129 ; and cf. Chap. I, supra, footnotes 27-28.
634. Cf. Francisco de Vitoria, Political Writings (eds. A. Pagden and
J. Lawrance), Cambridge, University Press, 1991, pp. XIV-XV.
635. As set forth particularly in his Metaphysic of Morals (Fondements de la
métaphysique des mœurs, 1785), which in Kant’s conception was an a priori,
pointing towards the universalization of norms, to the effect of treating human
beings not as means, but each one as an end in himself, honouring thereby the
dignity of human personality. In addition, in his Critique of Practical Reason
(1786), Kant conceptualizes conscience as the “internal tribunal” of each person
as a “moral being” ; I. Kant, [Critique de] la raison pratique, Paris, PUF, 1963
(re-ed.), p. 201.
182 A. A. Cançado Trindade

corresponding to the recta ratio of the founding fathers of Inter-


national Law (as found in Francisco de Vitoria’s De Lege, Francisco
Suárez’s De Legibus, Hugo Grotius’s De Jure Belli ac Pacis), which
appears in fact as the ultima ratio.
The lack or absence of the recta ratio leads to the total submission
of human beings to power-holders, to oppressions and atrocities
against human beings (epitomized by the holocaust and other geno-
cides of the twentieth century), and ultimately, to chaos. With the
recta ratio of classic international legal thinking the belief comes to
prevail that it is possible to capture the contents of the jus gentium
by human reason 636. Such recta ratio does not fall into subjectivism,
as it presupposes and calls for an objective International Law,
endowed with an intrinsic validity of its own, which renders it
capable of keeping humankind together, united. It further presupposes
and calls for an order of universal values, which finds expression in
the universalist outlook of the law of nations, the International Law
for humankind. Human conscience — more precisely the universal
juridical conscience — appears as the ultimate material source of
International Law, providing the intrinsic foundation of jus gentium,
in pursuit of the realization of justice.
It goes without saying that, in the historical process of its forma-
tion, the law of nations has benefited from contributions of distinct
lines of thinking, especially modern International Law in a multi-
cultural world. It would be inaccurate not to acknowledge the influ-
ence of European history in the origin of the discipline which came
to be known as International Law — in particular the international
legal order as historically emerged in the Peace of Wesphalia in the
mid-seventeenth century —, just as it would be likewise inaccurate
not to acknowledge the process of universalization and of humani-
zation of International Law that has been gradually taking place for
more than a century, with greater intensity in the last decades, with
contributions from distinct cultures.
It is nowadays generally acknowledged that the universality of
International Law can recognizedly be achieved only on the basis of
pluralism, mutual respect for cultural diversity, and the pursuance of
common aims, converging ultimately into the welfare of humankind.
International Law has indeed undergone a process of continuing

636. G. Fourlanos, Sovereignty and the Ingress of Aliens, Stockholm, Almqvist


& Wiksell, 1986, p. 17, and cf. pp. 19-23, 79-81, 160-161 and 174-175.
General Course on Public International Law 183

expansion and universalization in a multicultural world, so as to ful-


fil the aspirations of humankind. It is my view that there is, in the
multicultural world of our times, an irreducible minimum, which, in
so far as international law-making is concerned, rests on its ultimate
material source : human conscience. This may admittedly have dis-
tinct forms of expression, in distinct cultures, but I believe they all
mean, ultimately, that which is common to all human beings (and
distinguishes them from other species), which guides their actions,
which identifies their values, which assists them in searching the
meaning of their lives, individually and in socially organized collec-
tivities : human conscience.
It is, ultimately, from this latter, however it may be called in
distinct parts of the world, that International Law, like all law,
emanates. The acknowledgment of the universal juridical conscience
as its ultimate material source (largely overlooked by international
legal doctrine in recent decades) has likewise taken place, for a long
time already, in lucid writing in distinct parts of the world and in
different cultures. Thus, in the last quarter of the nineteenth century,
for example, Chao Phya Aphay Raja (then main adviser to King
Rama V of Thailand), to whom the “expression of public conscience”
was the first manifestation of International Law, stated in 1886 that
“Aujourd’hui déjà, les progrès de la conscience publique
nous permettent d’affirmer comme une vérité incontestable que
le développement et, par conséquent, la liberté rationnelle de
l’être humain forment le but principal et légitime de tout droit,
national ou international.” 637
One decade later, in a similar line of reasoning, S. Sucharitkul
pondered in 1983 that International Law
“devrait être humanisé, aussi longtemps que l’on garde l’espoir
de survivre . . .
L’humanité tout entière devrait se faire valoir comme sujet de
droit dans ce monde . . . multiculturel. . . . Si . . . l’homme per-
siste dans sa prudence, l’humanité aura encore sa chance.” 638
637. Cit. in S. Sucharitkul, “L’humanité en tant qu’élément contribuant au
développement progressif du droit international contemporain”, in L’avenir du
droit international dans un monde multiculturel/The Future of International Law
in a Multicultural World (colloque de La Haye, novembre 1983, ed. R.-J.
Dupuy), The Hague, Nijhoff, Académie de droit international de La Haye/UNU,
1984, pp. 418-419.
638. S. Sucharitkul, op. cit. supra footnote 637, pp. 423 and 426-427.
184 A. A. Cançado Trindade

In sum, it is human conscience that can lead to, and secure, the
universality of International Law. The universal juridical conscience
is the material source par excellence of the corpus juris of
International Law, which nowadays orients itself to the fulfilment of
the needs and aspirations of humankind as a whole.

III. The Material Source of International Law


beyond State Legal Positivism

Throughout the history of international legal thinking, resort to


“conscience” and “consciousness” has been much more frequent
than one may prima facie assume. From Grotius to Vattel, from
Martens to Alejandro Álvarez and Barile, the doctrine of Interna-
tional Law is replenished with invocations to human conscience to
establish the foundations of the discipline and the validity of its
rules 639. The notion of universal juridical conscience has gradually
found expression in the theory and practice of International Law,
particularly in the last two centuries, with the emergence, in the nine-
teenth century, of the concept of communis opinio juris, and its
insertion into the international legal thinking 640.
In the first decades of the twentieth century, the expression “inter-
national juridical conscience” was used, recalling the classic notion
of civitas maxima gentium, in order to foster the spirit of interna-
tional solidarity 641. In fact, as early as the beginning of the twentieth
century, as from 1906, Hugo Krabbe propounded a universal legal
order for the whole of humankind, following the Spanish theo-
logians’ tradition of International Law ; but unlike F. Vitoria and
F. Suárez, who based their construction upon natural law, that of

639. Cf., e.g., M. Koskenniemi, From Apology to Utopia — The Structure of


International Legal Argument, Helsinki, Finnish Lawyers’ Publ. Co., 1989,
pp. 82, 92, 95, 97, 113, 120, 182 and 357-358.
640. Due to a large extent to the approach of the German historical school of
law (cf. ibid., p. 367), and the decay of the old positivist dogma of consent (indi-
vidual voluntas) to establish international custom ; A. Carty, The Decay of
International Law ? A Reappraisal of the Limits of Legal Imagination in
International Affairs, Manchester, University Press, 1986, pp. 26-28 and 33.
Already by the end of the nineteenth century customary law was referred to
as “the manifestation of the international juridical conscience” (by the Swiss
jurist A. Rivier, in his Principes du droit des gens, of 1896), operated by the
continuous repetition of acts with the awareness of their necessity ; cit. in ibid.,
p. 27.
641. Cf., e.g., G. Tassitch, “La conscience juridique internationale”, 65
RCADI (1938), pp. 310-311, 314, 316-317 and 320.
General Course on Public International Law 185

H. Krabbe ensued from the “universal juridical conscience” 642.


Léon Duguit, in his turn, envisaged an objective International Law
deriving, not from the sovereignty of States, but rather, again,
from “an international juridical conscience” ; his intellectual suc-
cessor, Georges Scelle, supported the primacy of International Law
over the various national legal systems 643.
In his account of this doctrinal development, Alfred Verdross held
that the general principles of law, which lay at the basis of the
domestic law of several nations, were as such recognized by
the “universal juridical conscience” 644. Thus, in the words of
A. Verdross,
“la règle juridique est créée par une pratique constante tandis
que[, dans le premier cas,] le principe général naît déjà au
moment de sa première reconnaissance par la conscience
juridique universelle” 645.
All States, whether they have accepted or not the compulsory juris-
diction of international tribunals, are bound by such principles
apprehended by the universal juridical conscience 646.
This conceptual evolution was taken further by moving from an
international into a truly universal dimension. Concern for securing
State sovereignty has yielded to concern for jointly guaranteeing the
international legal order on the basis of a sense of objective justice :
the overcoming of the voluntarist conception of International Law
(incapable of explaining the process of formation of the norms of
general International Law) was clearly shown by the line of jurispru-
dential evolution separating, for example, the obiter dicta of the
Permanent Court of International Justice (PCIJ) in the Lotus case
(1927) from those of the International Court of Justice (ICJ) in the
North Sea Continental Shelf cases (1969) ; the acknowledgment of
objective values much contributed to the formation of the communis

642. A. Verdross, “Coïncidences : Deux théories du droit des gens apparues à


l’époque de la création de l’Académie de droit international”, in Hague
Academy of International Law, Livre jubilaire/Jubilee Book (1923-1973, ed.
R.-J. Dupuy), Leyden, Sijthoff, 1973, pp. 84-85.
643. Ibid., p. 85.
644. Ibid., p. 92 ; and A. Verdross, “Les principes généraux du droit dans la
jurisprudence internationale”, 52 RCADI (1935), pp. 223 ff.
645. A. Verdross, “Coïncidences : Deux théories du droit des gens . . .”,
op. cit. supra footnote 642, p. 93.
646. Ibid., p. 96.
186 A. A. Cançado Trindade

opinio juris 647, and the same can be said of the widespread aware-
ness of the imperative of fulfilment of the basic social needs of the
international community as a whole.
To positivists and political “realists”, resort to the universal juridi-
cal conscience may appear somewhat difficult to demonstrate, if not
metajuridical. They have, accordingly, sought support for their own
views mainly in the “will” of States. They seem indifferent to
recourse to conscience, which aimed at setting up necessary limits
and controls to the arbitrariness in the “will” of States. This is over-
looked by them. They seem likewise oblivious of the fact that
recourse to conscience has, behind itself, a long-standing juridical
thinking, which, by their insistence on propounding “realism” —
which appears en vogue again —, seems almost forgotten in our
days.
The recourse so commonly and uncritically made nowadays to the
allegedly “creative will” of States neglects the fact that the practice
ensuing therefrom is not at all devoid of ambiguities, incongruencies
and contradictions. The creative role of the universal juridical con-
science in pursuance of common goals of the international com-
munity is, in turn, clearly demonstrable. It has been consistently
invoked in the theory and practice of International Law : in the elabo-
ration adopted texts of international treaties, in the proceedings
before international tribunals and in international case-law, and in
the works of international legal doctrine. The universal juridical con-
science is, ultimately, the material source of International Law.

IV. Invocation and Assertion of Juridical Conscience in


International Treaties

In international practice, the idea of a universal juridical con-


science has marked presence in many debates of the United Nations
(above all of the Sixth Committee of the General Assembly, cf.
infra), in the work of the Conferences of codification of
International Law (the so-called “law of Vienna”) and in the respec-
tive travaux préparatoires of the UN International Law Commission

647. B. Stern, “La coutume au cœur du droit international — Quelques


réflexions”, in Mélanges offerts à P. Reuter — Le droit international : unité et
diversité, Paris, Pedone, 1981, pp. 493, 496 and 487 ; Maarten Bos, A Methodo-
logy of International Law, Amsterdam, North-Holland, 1984, p. 251, and cf.
pp. 246 and 253-255.
General Course on Public International Law 187

(ILC) 648. References to conscience, certainly susceptible in our days


of a deeper conceptual development, appear likewise in other inter-
national treaties. The 1948 Convention against Genocide, for
example, refers, in its preamble, to the “spirit” of the United Nations.
Half a century later, the preamble of the Rome Statute of 1998 of the
International Criminal Court refers to the “conscience of humanity”
(second considerandum). And the preamble of the 1994 Inter-
American Convention on Forced Disappearance of Persons, to quote
another example, evokes the “conscience of the hemisphere” (third
considerandum of the preamble).
Other examples can be added. The constitutive elements of the
Martens clause — “the principles of humanity and the dictates of
the public conscience” — are expressly invoked in the preambles of
the 1977 Additional Protocol II to the 1949 Geneva Conventions on
International Humanitarian Law (fourth considerandum), and of the
1980 Convention on Prohibitions or Restrictions on the Use of
Certain Conventional Weapons (fifth considerandum). Likewise, the
1972 Convention on the Prohibition of Bacteriological (Biological)
Weapons and on Their Destruction states in the last two con-
sideranda of its preamble that the prohibition of those weapons is to
the benefit of all mankind, and that their use “would be repugnant to
the conscience of mankind”.
The universal juridical conscience has been in fact invoked in the
travaux préparatoires of the two Vienna Conventions on the Law of
Treaties (1969 and 1986), by Delegations from different parts of the
world. Thus, in the Vienna Conference of 1968-1969, which adopted
the 1969 Vienna Convention on the Law of Treaties, the Delegate of
Mexico (E. Suárez) stated that
“the rules of jus cogens were those rules which derived from
principles that the legal conscience of mankind deemed abso-
lutely essential to coexistence in the international community at
a given stage of its historical development” 649.
In the same line, the Representative of Italy (A. Maresca) affirmed
that the norms of jus cogens

648. More recently, it has occupied an important space in the cycle of World
Conferences of the United Nations in the nineties ; cf. Chap. XXVI, RCADI,
Vol. 317 (2005).
649. United Nations, United Nations Conference on the Law of Treaties —
Official Records (UNCLT — OR) (First Session, March/May 1968), Vol. I (state-
ment of 4.5.1968), p. 294, para. 7 (emphasis added).
188 A. A. Cançado Trindade

“were norms of general International Law acknowledged by the


international community as a whole, that was to say they were
based on the legal conscience of the whole of mankind” 650.
Likewise, the Delegate of France (J.-J. de Bresson) asserted that
“the substance of jus cogens was what represented the un-
deniable expression of the universal conscience, the common
denominator of what men of all nationalities regarded as sacro-
sanct, namely, respect for and protection of the rights of the
human person” 651.
To the Representative of Mali (D. Maiga), also, “the jus cogens rule
would help to strengthen the legal conscience of the nations” 652. The
Delegate of Iraq (M. K. Yasseen), in his turn, warned that
“States could not, by treaty, override those higher norms which
were essential to the life of the international community and
were deeply rooted in the conscience of mankind” 653.
The Representative of Uruguay (E. Jiménez de Aréchaga) ventured
to predict that, in practice, a treaty in breach of those higher norms,
amounting to “a flagrant challenge to the international conscience,
would be infrequent” 654.
Still in the context of the debates on jus cogens, the Delegate of
Spain (F. de Castro) saw it fit also to warn that international court or
arbitrators “could not regard as binding any provision which ran
counter to the conscience of the international community” 655. To the
Representative of Poland (S. Nahlik), the basis of contemporary
International Law was to be found in the realities of international life
as expressed in the “conscience” of States 656. And the Delegate of
Colombia (H. Ruiz Varela), likewise, invoked “the rules of the uni-
versal legal conscience” 657.

650. United Nations, UNCLT — OR (Second Session, April/May 1969),


Vol. II (statement of 12.5.1969), p. 104, para. 39 (emphasis added).
651. United Nations, UNCLT — OR (First Session, March/May 1968), Vol. I
(statement of 6.5.1968), p. 309, para. 32 (emphasis added).
652. Ibid., Vol. I (statement of 7.5.1968), p. 327, para. 74 (emphasis added).
653. Ibid., Vol. I (statement of 4.5.1968), p. 296, para. 23 (emphasis added).
654. Ibid., Vol. I (statement of 6.5.1968), p. 303, para. 48 (emphasis added).
655. United Nations, UNCLT — OR (Second Session, April/May 1969),
Vol. II (statement of 14.5.1969), p. 124, para. 72 (emphasis added).
656. United Nations, UNCLT — OR (First Session, March/May 1968), Vol. I
(statement of 6.5.1968), p. 302, para. 33 (emphasis added).
657. Ibid., Vol. I (statement of 6.5.1968), p. 301, para. 26 (emphasis added).
General Course on Public International Law 189

It should not pass unnoticed that, already by the late sixties, in the
twentieth century, such invocations of the universal juridical con-
science, as related to the peremptory norms of International Law,
came from Delegates of all latitudes and distinct juridical and cul-
tural backgrounds. They echoed the pluralist international commu-
nity of those days, which, notwithstanding, felt the need for the
assertion of such universal juridical conscience. Thus, contrary to
what the spokesmen of an outdated positivism try to contend, such
assertion was a reaction to the old pattern of domination or manipu-
lation of the international legal order by a small number of indi-
vidual big powers, with all the abuses that it entailed.
More recently, in the mid-eighties, the issue was again dwelt upon
at the 1986 UN Conference on the Law of Treaties between
States and International Organizations or between International
Organizations. On that occasion, the Representative of Brazil (A. A.
Cançado Trindade) warned that jus cogens was “incompatible with
the voluntarist conception of International Law, because that concep-
tion failed to explain the formation of rules of general International
Law” 658. And the Delegate of Cyprus (Droushiotis) added that
“norms of jus cogens were the most important rules of International
Law, as they were of a universal nature and contained obligations
erga omnes” 659.
One could hardly deny the tendency of contemporary Interna-
tional Law to develop the protection of mankind as a whole — a
process which has been fostered by decolonization and the emer-
gence and development of International Human Rights Law 660. Even
before the insertion of the concept of jus cogens in the first Vienna
Convention on the Law of Treaties (that of 1969), the Delegations of
some States related the emerging concept to the universal juridical
conscience, in the course of the debates at the Sixth Committee of
the UN General Assembly on the Draft Articles by the ILC on the
Law of Treaties.

658. United Nations, United Nations Conference on the Law of Treaties


between States and International Organizations or between International Orga-
nizations — Official Records, Vol. I (statement of 12.03.1986), pp. 187-188,
para. 18.
659. In ibid., p. 193, para. 84.
660. S. Sucharitkul, “Evolution continue d’une notion nouvelle : le patri-
moine commun de l’humanité”, in International Law at a Time of Perplexity —
Essays in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989,
p. 905.
190 A. A. Cançado Trindade

Thus, as indicated by a study on this specific point, in those


debates (of 1963-1966) of the Sixth Committee, prior to the adoption
of the 1969 Vienna Convention, the Delegations of some States
related the foundations of jus cogens to the superior interests, the
very maintenance and survival of the international community. Thus,
the Delegation of Cyprus, for example, stated that certain norms find
their essential justification as being “the common expression of the
conscience of the international community” 661. To the French
Delegation, the universal character of jus cogens indicated that cer-
tain principles were binding upon the international community as a
whole, while the Italian Delegation, in its turn, identified in this new
trend an evolution towards a “true universal public law” 662.

V. Universal Juridical Conscience : The Historical Significance


of the Martens Clause

A clause of major transcendence deserves to be singled out : the


so-called Martens clause, which counts on more than a century of
history. Presented by the Delegate of Russia (Friedrich von Martens)
to the I Hague Peace Conference (of 1899), it was inserted into the
preambles of the II Hague Convention of 1899 (para. 9) and of the
IV Hague Convention of 1907 (para. 8), both pertaining to the laws
and customs of land warfare. Its purpose — pursuant to the wise pre-
monition of the Russian jurist and diplomat — was to extend juridi-
cally the protection to civilians and combatants in all situations, even
though not contemplated by the conventional norms ; to that end, the
Martens clause invokes “the principles of International Law” derived
from “established custom”, as well as “the principles of humanity”
and the “dictates of public conscience”. Subsequently, the Martens
clause was again to appear in the common provision, concerning
denunciation, of the four Geneva Conventions of International
Humanitarian Law of 1949 (Article 63/62/142/158), as well as in the
Additional Protocol I (of 1977) to those Conventions (Art. 1 (2) ) — to

661. Cit. in M. Pérez González, “Los Gobiernos y el Jus Cogens : Las


Normas Imperativas del Derecho Internacional en la Sexta Comisión”, in
Estudios de Derecho Internacional Público y Privado — Homenaje al Profesor
L. Sela Sampil, Vol. I, Universidad de Oviedo, 1970, pp. 107 and 109.
662. Cit. in ibid., pp. 118 and 115, respectively. The modifications introduced
by the jus cogens superveniens were regarded as being due to a change in the
“communitarian conscience” as to the application of international norms ; ibid.,
p. 115.
General Course on Public International Law 191

quote some of the main Conventions of International Humanitarian


Law.
The Martens clause has thus been endowed, throughout more than
a century, with continuing validity — in its invocation of public con-
science — as, however advanced may the codification of humanitar-
ian norms be, it will hardly be considered as being truly complete.
The Martens clause thus continues to serve as a warning against
the assumption that whatever is not expressly prohibited by the
Conventions on International Humanitarian Law could be allowed ;
quite on the contrary, the Martens clause sustains the continued
applicability of the principles of International Law, the principles
of humanity and the dictates of public conscience, independently of
the emergence of new situations and of the development of techno-
logy 663. The Martens clause impedes, thus, the non liquet, and exerts
an important role in the hermeneutics and the application of humani-
tarian norms.
The fact that the draftsmen of the Conventions of 1899, 1907 and
1949 and of Protocol I of 1977 have reiteratedly asserted the
elements of the Martens clause in those international instruments
reckons that clause as an emanation of the material source of
International Humanitarian Law 664 and of International Law in gen-
eral. In this way, it exerts a continuous influence in the spontaneous
formation of the contents of new rules of International Humanitarian
Law 665. The Egyptian jurist Hamed Sultan, for example, has related
the “modern language” of the Martens clause to longstanding fun-
damental principles of the Islamic conception of Humanitarian Law
(such as those of justice and equity, and of the dignity and integrity
of the human person) 666.

663. B. Zimmermann, “Protocol I — Article 1”, in Commentary on the


Additional Protocols of 1977 to the Geneva Conventions of 1949 (eds. Y. San-
doz, Ch. Swinarski and B. Zimmermann), Geneva, ICRC, Nijhoff, 1987, p. 39.
664. H. Meyrowitz, “Réflexions sur le fondement du droit de la guerre”, in
Etudes et essais sur le droit international humanitaire et sur les principes de la
Croix-Rouge en l’honneur de Jean Pictet (ed. Ch. Swinarski), Geneva, The
Hague, CICR, Nijhoff, 1984, pp. 423-424 ; and cf. H. Strebel, “Martens’
Clause”, in Encyclopedia of Public International Law (ed. R. Bernhardt), Vol. 3,
Amsterdam, North-Holland Publ. Co., 1982, pp. 252-253.
665. F. Münch, “Le rôle du droit spontané”, in Pensamiento Jurídico y Socie-
dad Internacional — Libro-Homenaje al Prof. D. A. Truyol Serra, Vol. II,
Madrid, Univ. Complutense, 1986, p. 836 ; H. Meyrowitz, op. cit. supra foot-
note 664, p. 420.
666. H. Sultan, “La conception islamique du droit international humanitaire
dans les conflits armés”, 34 Revue égyptienne de droit international (1978),
192 A. A. Cançado Trindade

The Swiss-Polish jurist Christophe Swinarski pondered that, by


intertwining the principles of humanity and the dictates of public
conscience, the Martens clause establishes an “organic interdepen-
dence” of the legality of protection with its legitimacy, to the benefit
of all human beings 667. A monograph published in Russia in 1999 on
the legacy of Martens stressed the primacy of Law in the settlement
of disputes and search for peace 668. Contemporary juridical doctrine
has also characterized the Martens clause as source of general
International Law itself 669 ; and no one would dare today to deny
that the “principles of humanity” and the “dictates of public con-
science” invoked by the Martens clause belong to the domain of jus
cogens 670. The aforementioned clause, as a whole, has been
conceived and reiteratedly affirmed, ultimately, to the benefit
of humankind as a whole, thus maintaining its topicality. The
clause may be considered as an expression of the raison d’humanité
imposing limits to the raison d’Etat.

VI. Invocation of Juridical Conscience in Judicial Proceedings


and International Case-Law

In the course of the advisory proceedings (written and oral


phases) before the ICJ (1994-1995) pertaining to the requests by the
UN General Assembly and the World Health Organization (WHO)
for an Advisory Opinion (rendered in 1996) on the question of the
legality (or rather illegality) of nuclear weapons, some of the inter-
vening States, not surprisingly, invoked the “principles of humanity”
or the “dictates of public conscience” in their arguments. To recall
but a couple of examples, Australia, for example, expressly invoked
the Martens clause, and argued that the principles of humanity and
the dictates of public conscience are not static, and permeate the
whole of International Law in its evolution, calling for the prohibi-

pp. 7-9, and cf. p. 4. And cf. also, on the dictates of public conscience in gen-
eral, e.g., W. B. Hallaq, The Origins and Evolution of Islamic Law, Cambridge,
Cambridge University Press, 2005, p. 203.
667. C. Swinarski, “Préface”, in V. V. Pustogarov, F. F. Martens . . ., op. cit.
infra footnote 668, p. xi.
668. V. V. Pustogarov, Fedor Fedorovitch Martens — Jurist i Diplomat,
Moscow, ed. Mezdunarodinye Otnoscheniya, 1999, pp. 1-287.
669. F. Münch, op. cit. supra footnote 665, p. 836.
670. S. Miyazaki, “The Martens Clause and International Humanitarian
Law”, in Etudes et essais . . . en l’honneur de J. Pictet, op. cit. supra foot-
note 664, pp. 438 and 440.
General Course on Public International Law 193

tion of nuclear weapons for all States. Australia further recalled the
final preambular paragraph of the Convention against Biological
Weapons, pondering that its warning that those weapons are “repug-
nant to the conscience of mankind” applies likewise to nuclear
weapons, and that the use of them all would be contrary to general
principles of humanity 671.
In its turn, Japan contended that the use of nuclear weapons, for
the considerable injuries inflicted, was clearly contrary to the prin-
ciple of humanity in the foundation of International Law 672. New
Zealand stated that the rationale of the 1968 Nuclear Non-
Proliferation Treaty is that “nuclear weapons are too dangerous for
humanity and must be eliminated” 673. And Egypt asserted that the
threat or use of nuclear weapons as weapons of mass destruction
is prohibited by International Humanitarian Law ; the Additional
Protocol I of 1977 to the 1949 Geneva Conventions establishes the
prohibition of unnecessary suffering (Art. 35) and imposes the dif-
ferentiation between civilian population and military personnel
(Art. 48). Thus, by their effects, nuclear weapons, being weapons of
indiscriminate mass destruction, infringe International Humanitarian
Law, which contain precepts of jus cogens, as recalled by successive
resolutions of the UN General Assembly ; those precepts are the
opinio juris of the international community 674.
As to international case-law, a prompt example lies in the case-
law of the Inter-American Court of Human Rights (IACtHR) 675, to
which one may add the emerging case-law of the two ad hoc Inter-
671. ICJ, loc. cit., pleadings of Australia (1995), pp. 45, 60 and 63, and cf.
p. 68.
672. Government of Japan, Written Statement of the Government of Japan (on
the Request for an Advisory Opinion to the ICJ by the World Health
Organization), 10 June 1994, p. 2 (internal circulation) ; Government of Japan,
Written Statement of the Government of Japan (on the Request for an Advisory
Opinion to the ICJ by the United Nations General Assembly), 14 June 1995, p. 1
(internal circulation) ; Government of Japan, The Oral Statement by the
Delegation of Japan in the Public Sitting Held at the Peace Palace, The Hague,
07 November 1995, p. 1 (internal circulation).
673. ICJ, loc. cit., pleadings of New Zealand (1995), p. 33.
674. ICJ, loc. cit., pleadings of Egypt (1995), pp. 37-41 and 44.
675. Express references to the universal juridical conscience are found, e.g.,
in some of my Individual Opinions in the case-law of the IACtHR, e.g., in
Advisory Opinion No. 16, on the Right to Information on Consular Assistance in
the Ambit of the Guarantees of the Due Process of Law (1999), paras. 3-4, 12
and 14 ; in the Provisional Measures of Protection in the case of the Haitians
and Dominicans of Haitian Origin in the Dominican Republic (2000), para. 12 ;
in the case Bámaca Velásquez versus Guatemala (Merits, Judgment of 25 No-
vember 2000), paras. 16 and 28, among others.
194 A. A. Cançado Trindade

national Criminal Tribunals, for the former Yugoslavia and Rwanda.


And the case-law itself of the ICJ contains elements developed as
from, for example, basic considerations of humanity 676.

VII. Invocation and Assertion of Juridical Conscience


in International Legal Doctrine

Also in the doctrine of International Law elements are found for


the development of the matter, although, surprisingly, not suffi-
ciently articulated to date. The notion which I see it fit to denomi-
nate universal juridical conscience comes to find doctrinal expres-
sion in relatively recent times (cf. supra), particularly throughout the
twentieth century, with the emergence of the concept of communis
opinio juris, to face the old positivist dogma of individual consent
(voluntas) for the formation of customary law 677. In the first three
decades of the twentieth century, the expression “international juridi-
cal conscience” was effectively utilized, in a slightly distinct sense,
recalling the classic notion of civitas maxima, so as to promote and
foster the spirit of international solidarity 678.
The debates of the Institut de Droit International (New York
Session of 1929) about a project of declaration on human rights
may here be recalled. It was observed, on the occasion, that the
“spiritual life” and the “juridical conscience” of the peoples required
a new law of nations, with the affirmation of human rights 679. At a
given moment of those memorable debates of 1929 of the Institut
— almost forgotten in our days — it was pondered, for example,
that
“dans la conscience du monde moderne, la souveraineté de tous les
Etats doit être limitée par le but commun de l’humanité. . . . L’Etat
dans le monde n’est qu’un moyen en vue d’une fin, la perfection
de l’humanité . . . La protection des droits de l’homme est le devoir
676. Cf., e.g., A. A. Cançado Trindade, “La jurisprudence de la Cour interna-
tionale de Justice sur les droits intangibles/The Case-Law of the International
Court of Justice on Non-Derogable Rights”, in Droits intangibles et états d’ex-
ception/Non-Derogable Rights and States of Emergency (eds. D. Prémont,
C. Stenersen and I. Oseredczuk), Brussels, Bruylant, 1996, pp. 73-89 ; and cf.
Chap. XVI, RCADI, Vol. 317 (2005).
677. A. Carty, op. cit. supra footnote 640, pp. 26-28 and 33.
678. Cf., e.g., G. Tassitch, “La conscience juridique internationale”, op. cit.
supra footnote 641, pp. 310-311, 314, 316-317 and 320.
679. Cf. Annuaire de l’Institut de droit international (New York Session),
Vol. II, 1929, pp. 114, 134-135 and 137.
General Course on Public International Law 195

de tout Etat envers la communauté internationale. . . . Il s’agit de


proclamer les droits que la conscience du monde civilisé reconnaît
aux individus en tant qu’hommes . . .” 680
At the end of the debates referred to, the Institut (22nd Commission)
in fact adopted a resolution containing the “Déclaration des droits
internationaux de l’homme”, the first considerandum of which
emphatically affirmed that “the juridical conscience of the civilized
world requires the recognition to the individual of rights safeguarded
from any threat or breach on the part of the State” 681.
Still at the time of World War II (1944), Alejandro Álvarez sus-
tained that the principles of law and the precepts of international
justice emanated spontaneously from the international juridical con-
science 682. And, three years later, in a report submitted to the Institut
de Droit International (1947 Lausanne session), A. Álvarez, amidst
the “grave crisis” faced by International Law, reiterated his view that
international justice was a manifestation of the international juridical
conscience, to which the precepts of the law of nations owed their
formation 683 ; he added that the general interests of the international
community should “model” the “rights of States and individuals”
and guide the work of reconstruction of International Law 684.
On his part, in his inspiring monograph International Law in an
Expanded World (1960), B. V. A. Röling also invoked the superior
interests of the international community as a whole to protect
humankind against war, to “protect the weak against the strong”, to
establish an international legal order in which members are “legally
obliged to abstain from actions unreasonably harmful to others”, and
to lay the basis — in an expanded world — for the construction of a
truly universal International Law 685. Further references to the “juridi-

680. Op. cit. supra footnote 679, pp. 112 and 117.
681. Cit. in ibid., p. 298.
682. To him, “international justice” itself emanates from the “public con-
science” or “conscience of the peoples” ; A. Álvarez, La Reconstrucción del
Derecho de Gentes — El Nuevo Órden y la Renovación Social, Santiago de
Chile, ed. Nascimento, 1944, pp. 19-21, 24-25 and 86-87, and cf. p. 488.
683. A. Álvarez, “Méthodes de la codification du droit international public —
Rapport”, in Annuaire de l’Institut de droit international (1947) pp. 38 and 46-
47, and cf. pp. 50-51, 54, 64 and 69.
684. Ibid., pp. 44-45 and 68-69, and cf. p. 70.
685. B. V. A. Röling, International Law in an Expanded World, Amsterdam,
Djambatan, 1960, pp. xiii, xv, 52-53, 56, 83, 122 and 126. Such goals — he
added — were prompted by a “revolt” of international conscience against the
horrors (in particular the criminal Nazi practices) of World War II, and a new
196 A. A. Cançado Trindade

cal conscience” and “moral conscience” are found, for example, in


the Meditación sobre la Justicia (1963) of Antonio Gómez Robledo,
amidst his lucid criticism of legal positivism 686. Still in the mid-
sixties, S. Glaser sustained that customary international norms are
those that, “according to universal conscience”, ought to regulate
the international community, for fulfilling common interest and
responding to the demands of justice ; and he added that
“C’est sur cette conscience universelle que repose la princi-
pale caractéristique du droit international : la conviction que ses
normes sont indispensables pour le bien commun explique leur
reconnaissance en tant que règles obligatoires.” 687
The recognition of certain fundamental values, embodying a sense
of objective justice, has much contributed to the ongoing evolution
of the communis opinio juris 688 in the last decades of the twentieth
century. One acknowledges here a conceptual evolution which has
moved, as from the sixties, from the international to the universal
dimension (under the great influence of the development of the
International Law of Human Rights itself), conducive to the identifi-
cation of the common interests of the international community and
of the generalized recognition of the imperative to satisfy basic
human needs 689. Thus, in the early seventies, it was possible to
behold — as done by the Nigerian jurist T. O. Elias, for example —
an “overwhelming trend toward consensus which is an expression of
the juridical conscience of the world community” 690.
Later on, in the late eighties, a trend of the international legal doc-
trine asserted that the source of the higher norms of International
Law lies in the universal conscience, wherefrom certain principles of

awareness that human beings could no longer be left entirely only as subjects of
their respective nation-States (ibid., p. 114) ; their rights emanated directly from
International Law.
686. A. Gómez Robledo, Meditación sobre la Justicia, Mexico, Buenos
Aires, Fondo de Cultura Económica, 1963, pp. 179 and 185.
687. S. Glaser, L’arme nucléaire à la lumière du droit international, Paris,
Pedone, 1964, p. 18.
688. Maarten Bos, A Methodology . . ., op. cit. supra footnote 647, 1984,
p. 251, and cf. pp. 246 and 253-255.
689. B. Stern, “La coutume au cœur . . .”, op. cit. supra footnote 647,
p. 487.
690. T. O. Elias, “Modern Sources of International Law”, in Transnational
Law in a Changing Society : Essays in Honour of Ph. C. Jessup (eds. W.
Friedmann, L. Henkin and O. Lissitzyn), New York, London, Columbia Univer-
sity Press, 1972, p. 51.
General Course on Public International Law 197

International Law also emanate ; positivist doctrine proved incapable


of elaborating a conception of International Law conducive to estab-
lishing a true legal order, it thus becoming necessary to identify in
the “universal conscience” the ultimate source of the “supreme
norms of International Law” 691. These are but some examples to
disclose that, throughout the twentieth century, there were jusinter-
nationalists who had the intuition and sensitiveness to detect the
reality of human conscience, beyond the crude “reality” of the facts.

VIII. Final Observations : The Achievements of International Law


and the Universal Juridical Conscience

Throughout the time of formation and growth of International Law,


resort to the universal juridical conscience has helped to set necessary
limits to excesses of those who hold public power, whose decisions
were identified as the “will” of the States. This latter has often
appeared as a disaggregating factor, accounting for incongruencies
and contradictions in State practice. Thus, traditional International
Law, as it stood at the beginning of the last century, was character-
ized by unlimited State voluntarism, which was reflected in the per-
missiveness of recourse to war, of the celebration of unequal treaties,
of secret diplomacy, of the maintenance of colonies and protec-
torates and of zones of influence. Against this oligarchical and unjust
order principles arose such as those of the prohibition of the use and
threat of force and of the war of aggression (and of the non-recogni-
tion of situations generated therefrom), of the juridical equality of
States, of the peaceful settlement of international disputes 692. More-
over, there started the struggle against inequalities (with the aboli-
tion of the capitulations, the establishment of the system of protec-
tion of minorities under the League of Nations, and the adoption of
the first international labour conventions of the ILO).
The universal juridical conscience, unlike the voluntarist concep-
tion, has consistently given expression to the fundamental principles
of International Law. The invocation of these latter came to fulfil the

691. G. Sperduti, “La souveraineté, le droit international et la sauvegarde des


droits de la personne”, in International Law at a Time of Perplexity — Essays in
Honour of S. Rosenne, Dordrecht, Nijhoff, 1989, pp. 884-885, and cf. p. 880 ; he
added that the jurist must tell the truth, beyond positivism, which is illogical
(ibid., pp. 879-880).
692. Cf. Chap. III, supra.
198 A. A. Cançado Trindade

“ethical demands” of the international legal order, as from a renewed


jusnaturalist outlook. Such principles came to illuminate the forma-
tion and evolution of the international legal order, given the flagrant
incapacity of legal positivism to explain the formation of customary
norms, of visualizing Law as a means for the realization of justice,
and of recognizing that the ultimate foundation of Law is neces-
sarily found outside the positive legal order 693.
In the mid-twentieth century the necessity was recognized of the
reconstruction of International Law with attention turned to the
rights inherent in every human being — of what the adoption of the
Universal Declaration of 1948 gave eloquent testimony, followed,
over five decades, by more than 70 treaties of protection nowadays
in force at global and regional level 694, in a manifestation of the
awakening of the universal juridical conscience to the necessity to
secure the effective protection of the human being in all and any cir-
cumstances. International Law came to experience, in the second
half of the twentieth century, an extraordinary expansion, fostered in
great part by the operation of the United Nations and specialized
agencies, as well as regional organizations.
Thus, by direct influence of the international organizations, the
process of formation of the norms of International Law became com-
plex and multifaceted, in the purpose of achieving a wide regulation
which fulfilled the needs and aspirations of the international com-
munity as a whole 695. The vast normative production of the United
Nations, for example, was no longer limited to the projects of the
ILC 696 — which retain their value and utility — but came to extend
itself to the General Assembly, to its Sixth Committee (for Legal
Affairs), to the Conferences of Plenipotentiaries convened by the
United Nations ; furthermore, specialized agencies of the United
Nations system, such as the International Labour Organization
(ILO), UNESCO, the International Atomic Energy Agency (IAEA),
among others — besides regional organizations — came to produce
693. Cf. A. Truyol y Serra, Fundamentos de Derecho Internacional Público,
4th ed., Madrid, Tecnos, 1977, pp. 19, 61, 68, 73, 104-105 and 117.
694. Parallel to that, in the United Nations era the system of collective secu-
rity was consolidated, which, however, did not satisfactorily operate as a result
of the deadlocks generated by the cold war — though it remains essential today
for the preservation of international peace and security.
695. A. A. Cançado Trindade, Direito das Organizações Internacionais, 3rd.
ed., Belo Horizonte, Brazil, Edit. Del Rey, 2003, pp. 724-737.
696. United Nations, The Work of the International Law Commission, 5th ed.,
New York, United Nations, 1996, pp. 1-501.
General Course on Public International Law 199

numerous treaties and conventions of importance in distinct areas of


human activity 697.
The emergence of new States, in the course of the historical pro-
cess of decolonization, was to mark deeply its evolution in the fifties
and sixties, amidst the great impact within the United Nations of the
emerging right of self-determination of peoples. The process of
democratization of International Law was launched 698. In transcend-
ing the old parameters of the classic law of peace and war,
International Law was equipped to respond to the new demands
and challenges of international life, with greater emphasis on inter-
national co-operation 699.
In the sixties up to the eighties, multilateral forums were engaged
in an intense process of elaboration and adoption of successive
treaties and resolutions of regulation of the spaces 700. From then
onwards International Law has gradually undergone a remarkable
transformation. As accurately observed, contemporary International
Law ceased to be a formalistic legal order, to become a “droit
matériel”, and “under the pressure of the universal human commu-
nity . . . the normative production has enriched”, giving expression
to the “values of solidarity and of justice among peoples” 701.
The evolution of International Law throughout the twentieth
century bears witness of advances due, in my understanding, to their
ultimate material “source”, the universal juridical conscience —
despite successive abuses committed against human beings and
victimizing humankind as a whole. There are several elements that
disclose such advances, whether one dwells upon international case-
law, or the practice of States and international organizations and

697. A. Pellet, “La formation du droit international dans le cadre des Nations
Unies”, 6 European Journal of International Law (1995), pp. 401-425 ; F. Cede,
“New Approaches to Law-Making in the U.N. System”, 1 Austrian Review of
International and Comparative Law (1996), pp. 51-66 ; E. McWhinney, Les
Nations Unies et la formation du droit, Paris, Pedone/UNESCO, 1986, pp. 101-
129 and 261-287.
698. Cf. H. Valladão, Democratização e Socialização do Direito Interna-
cional, Rio de Janeiro, Livr. José Olympio ed., 1961, pp. 7-98 ; P. Buirette-
Maurau, La participation du tiers-monde à l’élaboration du droit international,
Paris, LGDJ, 1983, pp. 19-202.
699. The United Nations gradually turned their attention also to the economic
and social domain, besides international trade, without prejudice to their initial
and continued concern with the preservation of international peace and security.
700. In distinct areas such as those of outer space and the law of the sea.
701. B. Conforti, “Humanité et renouveau de la production normative”, in
Humanité et droit international — Mélanges R.-J. Dupuy, Paris, Pedone, 1991,
pp. 113-114 and 118.
200 A. A. Cançado Trindade

of other subjects of International Law, or else the more lucid


juridical doctrine. From these elements there ensues — may I insist
on this central point — the awakening of a universal juridical con-
science, to reconstruct, at this beginning of the twenty-first cen-
tury, International Law, on the basis of a new paradigm, no longer
State-centric, but rather placing human beings in a central position
and bearing in mind the problems which affect the whole of human-
kind 702.
Recourse to the universal juridical conscience has thus been in
line with the humanist thinking in International Law, with the
acknowledgment of the pressing need to set limits to force in the
relations among States and other subjects of International Law. On
the one hand, resort to “will” is in line with the factual capacity to
act and influence of each one of them, which varies from State to
State and other subjects of International Law, and favours the pri-
macy of authority and force over belief. The former posture, of
recourse to the universal juridical conscience, supports, in turn, the
primacy of spirit over matter (which is the view I have always firmly
sustained).
Throughout the successive crisis and disasters that have affected
humankind, it has notwithstanding remained aware of its creativity
and of the need to be master of its own fate. It is true that humankind
has, in a temporal dimension, witnessed the destruction of civiliza-
tions in history, one after another, but it is equally true that it has
remained aware of the importance of conscience to guide human
action and the evolution of humankind itself. As poignantly
remarked by Pierre Teilhard de Chardin, although Susa, Memphis,
Athens, and other centres of civilization, died in their respective
epochs, yet a “conscience of the universe” has kept on evolving and
growing throughout time 703.
The destructive forces, both natural disasters and man-made wars,
have not succeeded in hindering the course of evolution of that
conscience, and of the awareness of the need to live with justice
and peace in an orderly universe. That conscience is the ultimate
material source of all Law. It is, after all, not surprising that, despite
the rise and fall of civilizations in time (for example, Rome), the idea

702. A. A. Cançado Trindade, O Direito Internacional em um Mundo em


Transformação, Rio de Janeiro, ed. Renovar, 2002, pp. 1039-1109.
703. P. Teilhard de Chardin, Himno del Universo, 2nd ed., Madrid, ed. Trotta,
2000 (re-ed.), pp. 90-91.
General Course on Public International Law 201

of Law has survived all destruction 704, has moved forward, in my


understanding, by human conscience, in pursuit of the realization of
an objective justice.
Over a decade of experience so far, serving as Judge of an inter-
national tribunal of human rights, has reinforced my feelings that the
universal juridical conscience is the material source par excellence
of International Law. In several of my Individual Opinions in the
case-law of the IACtHR I have sustained my understanding that it is
due ultimately to the universal juridical conscience that we can wit-
ness nowadays the current historical process of humanization of
International Law 705. I sincerely hope that the legal doctrine of the
twenty-first century comes to dedicate considerably more attention
to the material source of International Law, to the foundations and
the validity of the norms of this latter.
The prevailing attitude of international lawyers in the last decades
of the twentieth century was to limit themselves to the “formal”
sources of International Law, as recognized in Article 38 of the ICJ
Statute 706. This provision was a product of its time (1920), and the
challenges of the twenty-first century do require to go much further
than that. The study of the “sources” of International Law cannot be
appropriately undertaken from a strictly positivist outlook, making
abstraction of the values. International Law 707 cannot at all be
reduced to an instrumental at the service of power.
Some may argue, and have argued, that the universal juridical
conscience is metajuridical. If one bears in mind that no norm of
positive law can become the source of its own validity, then one
need not fear the charge that the material source of International
Law, like that of any law, is indeed metajuridical, and this in my

704. Cf. Montesquieu, Considérations sur les causes de la grandeur des


Romains et de leur décadence (1734), Paris, Garnier, 1954 (re-ed.), pp. 50-51,
62 and 118.
705. Cf. my Concurring Opinion in the Advisory Opinion No. 16, on the Right to
Information on Consular Assistance in the Framework of the Guarantees of the Due
Process of Law (1999), paras. 3-4, 12 and 14 ; Concurring Opinion in the Provisional
Measures of Protection in the case of the Haitians and Dominicans of Haitian Origin
in the Dominican Republic (2000), para. 12 ; Separate Opinion in the Bámaca
Velásquez versus Guatemala case (Merits, 2000), paras. 28 and 16 ; Concurring
Opinion in the Advisory Opinion No. 18, on the Juridical Condition and Rights of
Undocumented Migrants (2003), paras. 23-25 and 28-30, esp. para. 29.
706. A provision which is 85 years old . . .
707. Its addressees are the States, international organizations, peoples and
human beings, and ultimately humankind, and it ought to fulfil their needs,
among which and above all the realization of justice.
202 A. A. Cançado Trindade

view does not exempt international lawyers from the duty to con-
sider it in good faith 708. Jurists of the past (until the seventies)
appeared more prepared to go into an examination of the matter, in
greater depth, than most of our contemporaries. Hence the reduc-
tionist views of International Law that unfortunately seem to prevail
in our days, marked by pragmatism and “technicism”. Many interna-
tional lawyers nowadays seldom dare to go beyond positive law,
being on the contrary receptive — if not subservient — to relations
of power and dominance, and thus paying a disservice to
International Law. Jurists cannot make abstraction of the ineluctable
axiological dimension of the discipline, and in my view cannot truly
escape considering its ultimate material source : the universal juridi-
cal conscience.
It is this latter that moves ahead International Law, as all Law.
The universality of International Law cannot possibly be achieved
on the basis of positive law strictly ; nor can an international legal
order turned to the fulfilment of the needs and aspirations of
humankind. Hence the great necessity, and utmost importance, of
taking into due account, first and foremost, the material source of
International Law, and of all Law, that which actually moves it for-
ward always : the universal juridical conscience.
In conclusion, the very dynamics of contemporary international
life, moved by human conscience, has taken care of dismissing the
traditional view that international norms derive entirely from the
“free will” of the States themselves. It has evidenced that one could
only find an answer to the problem of the foundations and validity of
this latter in the universal juridical conscience, as from the assertion
of the idea of an objective justice. At this beginning of the twenty-
first century, we have the privilege to witness and the duty to foster
the process of humanization of International Law, which, in confor-
mity with the new ethos of our times, comes to dwell more directly
upon the identification and realization of common superior values
and goals. In this way, International Law evolves, expands itself,
strengthens and improves itself, and, ultimately, legitimates itself.

708. It may be recalled that, as already pointed out in this General Course —
in the process of elaboration of the 1970 UN Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among
States, the understanding was propounded that the Declaration was intended to
express a “universal juridical conviction” ; cf. Chap. III, supra.

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