Documentos de Académico
Documentos de Profesional
Documentos de Cultura
PART III
CHAPTER V
I. Introduction
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.
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
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
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
2. Treaties
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
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
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
5. Doctrine
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
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
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
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
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
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
I. Introduction :
Insufficiencies of the Formal “Sources” and the Relevance
of the Material “Source” of International Law
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
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
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.
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.
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
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.
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
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
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
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
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.