Critically discuss whether Article 38(1) of ICJ Statute exhaustively enumerates all sources of International Law.
Dipti Srivastava, Student of Law, Jindal Global Law School
Sources are the fundamental basis of International Law, which has the force of creating rights and obligations on the states concerned ((Malcom Evans (ed.), Hugh Thirlway, THE SOURCES OF INTERNATIONAL LAW, (2014), 91)). This paper attempts to answer a critical question discussing whether there are additional sources to International Law apart from those mentioned in the Article 38(1) of Permanent Court of International Justice (hereinafter referred as PCIJ). What are these sources and whether these additional sources have the force of being regarded as a formal source or not. This would ultimately contemplate that the sources given in the Article 38(1) of PCIJ is not exhaustive and there is need of the additional sources to gain recognition in the era of modern International Law.
What do we mean by ‘sources’? How is it different from domestic legal system?
Ascertainment of law in the international legal system is fairly ambiguous when compared to domestic legal order. Within International law, there is a lack of legislature, executive and a structure of courts ((6 Malcolm N. Shaw, INTERNATIONAL LAW, Cambridge, 70)). There is no single body able to create laws internationally binding on everyone, nor a proper system of courts with comprehensive and compulsory jurisdiction to interpret and extend the law ((ibid)). Therefore, there is a problem faced in discovering where the law is to be found and whether a particular proposition amounts to a legal rule ((ibid)). This primarily means that there is uncertainty regarding the emergence of the rules of International law, i.e. ‘sources’ of International law. This perplexity is reinforced because of the anarchic nature of world affairs and the clash of competing sovereignties ((Supra n. 2)). Nevertheless, international law does exist and is ascertainable in Article 38 (1) of ICJ, which is considered to be ‘sources’ of International Law. The debatable question which arises here is – Are these sources exhaustive or can it be argued that its merely descriptive?
Article 38 (1) of ICJ provides that the courts whose function is to decide in accordance with international law, such disputes shall apply treaties or conventions, international customs, general principles of law and lastly judicial decisions and teachings subject to Article 59 of the Statute of the International Court of Justice. These are widely recognized as the most authoritative and complete statement as to the sources of International Law ((Supra n. 2, p. 70)). Other and alternative sources has time an again been suggested by jurists and learned academics but the traditional analysis of the sources continues to dominate. This is highly questionable.
Additional Source – Equity
At the time PCIJ Statute was drafted, it was considered to complete and exhaustive. However, subsequently with time it was witnessed that there is a difficulty is considering the above-mentioned proposition, as there were additional sources, which had been discovered. Equity was one of them. Equity has been seen as a set of principles constituting the value of a system ((Supra n. 2, p. 106)). There are innumerable cases, which illustrate the role of Equity in International Law. The most famous decision was of Judge Hudson in the Diversion of Water from the Meuse case ((PCIJ, Series A/B, No. 70, p.73, 77; 8 AD, p. 444,450))in 1937 regarding a dispute between Holland and Belgium. ‘Hudson pointed out that what are regarded as a principle of equity have long been treated as a part of international law and applied by the courts ((Supra n. 2, p. 106)).’ ‘Under Article 38 of the Statute’ he declared, ‘of not independently of the article, the court has some freedom to consider principles of equity as a part of International law which it must apply’. Another case called the Rann of Kutch Arbitration between India and Pakistan ((1968, 50 ILR, p.2)), which explicitly mentioned that equity formed a part of international law and the parties, could rely on such principles in presentation of their cases ((Supra n. 9)). Therefore, it could be concluded by the above-mentioned examples that ‘Equity’ could be considered as one of the possible additional sources of International law and requires recognition.
However, in the North Sea Continental Self case ((ICJ Reports, 1969, pp. 3,53))it has been contented that Equity has been used by the courts as a way of mitigation certain inequities, not as a method of refashioning nature to the detriment of legal rules ((Supra n. 2, p. 107)). Nevertheless, the use of the principles of equity independently has also been witnessed in the subsequent years. It was particularly marked in the 1982 law of Sea convention. The use of equity was seen to be used in the grey areas between two provisions. Provision which possessed flexibility but which are uncertain. Examples of such provisions are Article 59 ((Conflict between costal and other state regarding the exclusive economic zones)), Article 74 ((Delimitation of the zones between states with opposite or adjacent coasts)), Article 83 ((Delimitation of the continental shelf))also the Convention on the law of the Non- navigational Use of International Watercourses, 1997 ((Supra n.2, p. 108)). Therefore, even if its existence as distinct source could be questioned by its inter dependent nature on existing law, yet not to provide credit to such widely used concept would be unjustified. Equity to be considered as creating legal right and obligations independent of other sources would help to uphold morality and abstain from any tragedy of the commons. In my opinion, Equity is like a shield to International Law and therefore demands recognition as a source of International Law.
Unilateral Acts are another type of additional source, which could be considered as a source to international law. It has an ability to create obligations, which is said to be one of the characteristics of the sources. A case, which could be considered in this connection, is the case Nuclear Test case in which the court assumed that France has assumed legally binding obligation through a unilateral declaration to the world at large. It declared that it would not hold any atmospheric nuclear tests in the Pacific ((Malcom Evans (ed.), Hugh Thirlway, THE SOURCES OF INTERNATIONAL LAW, (2014), 111)). The court in this case laid down the rule in following term: ‘It is well recognized that declaration made by way of unilateral acts, concerning legal or factual situation, may have the effect of creating legal obligation… when it is the intention of the state making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking ((Nuclear Tests (Australia v. France) Judgment, ICJ Reports 1974, p 253, para 43)).’ Therefore, the key for unilateral acts to be considered as one of the sources would be the intention of the state to be bound by the declaration made by it is crucial and well as the element of publicity or notoriety ((Supra n. 2, p. 122)). Another type of a unilateral declaration, which could be referred to in this regard, could be the Truman Proclamations, which were made by the then U.S. President Harry Truman in 1945. These proclamations also referred as unilateral declaration formed an inspiration for claims by other states. And these formed an influential part in the preparation of the Geneva Conventions. These declarations exhibit the entire key element for a unilateral act to be considered as a source. Nevertheless, to consider it to be a distinct source of international law would be far fetched, as consent to these obligations is quintessential on part of other states. And which could only be obtained if these unilateral acts boiled down to a treaty. Nuclear test case, in my opinion could be considered an exceptional case yet not satisfying to create a new source.
Resolution of UN General Assembly
It is to be observed that, in fact the source given in Article 38(1) of ICJ is capable to perpetuate to some extend developing new laws and identifying existing laws ((Supra n. 2, p. 114)). The terms of Article 38 (1) and the disorganized state of international law is the justification for this contention. However, with the gradual de-Europeanisation of the world and the growth of the importance of the third world country the burning issues concerned in this section is the standing of the resolution and declaration of the General Assembly of the UN. Could this also be contemplated as one of the additional source of International law?
We witness in the Nicaragua case ((ICJ Reports, 1986, p. 14, 99-100))wherein it was expressed that the opinion juris requirement could be acquired from the circumstances surrounding the adoption and application of a General Assembly Resolution. It is also to be noted that the way the states vote in the General Assembly and the explanation given upon such occasion constitute evidence of state practice and state understanding of law ((Supra n. 2, p. 115)). This itself exhibits that resolutions are complete in it and would not require the support of a formal source for its standing as an independent entity. Therefore, the requirement of state practice and opinion juris for a law to fall under the Clause 2 of article 38(1) is satisfied in itself. Another example in this connection would be the 1960 Declaration on the Grating of Independence to Colonial Countries and People. It was adopted by no opposition and only nine abstentions and followed a series of resolutions in general and specific term. Consequently it culminated to a legal right and obligations, particularly taken in conjunction with the 1970 Declaration on the Principles of International Law ((Supra n. 2, p. 116)). Another Declaration such as the Legal Principles Governing Activities of States in the Exploration and use of Outer Space is an example of state practice and such resolution be the evidence of the existence of or evolution towards opino juris. However, this slows down the process of Decision making as one of the key element of customary international law require the growth of the existence of opinion juris. But, it is to be noted that when an resolution is passed it General Assembly, its passed with a majority which itself exhibits state practice. And to wait for an opinion juris to develop would be futile. Instead a strong mechanism with effective functioning can be brought into place if these resolutions have are to be considered as one of the possible sources. It would also lead to active participation of the members of the General Assemble and help in the evolution of something called the international Legislature.
It is argued that there is a danger if legal value is ascribed to everything that emanates from the Assembly. Resolutions are often the result of political compromises and arrangement and comprehended to not have binding norms ((Supra n. 2, p. 117)). But the flip side of this argument could be that every decision taken internationally by way of treaty, custom etc. or in the Domestic Legal order is a result of the interplay between politics and law. It comprises of the same elements as mentioned above, but in most cases we do witness that greatest good for greatest number is upheld. If these resolutions are given the standard as a formal source of International Law, in my opinion the rather ambiguous sphere of International Law would become more definite and the world would come more in proximity to deal with broader issue of the world at large. Therefore, Resolution of the General Assembly should be regarded as a source of international Law.
Thus, to conclude, it should be taken note that even though Article 38(1) is regarded as the enumeration of the sources of International law, the term ‘Sources’ has not been used in the Article itself. Therefore to attribute it such a tag would constrain it very nature of International law. Instead it would be feasible to regard Article 38(1) as guidelines to International law or as many learned academic suggest it to be regarded as ‘recognized manifestation of International Law ((Supra n. 1, p. 95)).’ Also, doing this would lead to the acceptances that there are additional sources apart from those mentioned. Therefore, after making the above observation, in my opinion, the sources enumerated in Article 38 (1) of PCIJ are not exhaustive.