Sources of International Law - A Reevaluation

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appears to have been accepted by overwhelming majority of writers44 and in the practice of States.45 The authority that writers primarily rely upon to support this rule is the Anglo-Norwegian Fisheries case46. In that case, the International Court of Justice made a finding that a coastline delimitation rule put forward by the United Kingdom would appear to be inapplicable as against Norway, inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.

Can a disagreeing State ultimately and indefinitely remain outside of new law accepted by the large majority of States? In practice, it is highly unlikely that the persistent objector can remain outside the scope of a new customary rule for very long. The pressure to conform to the new rule, as well as the disadvantages of being outside the legal regime, ensure that the objecting State cannot maintain a position contrary to the overwhelming practice of other States.47

The subsequent objector

What is the effect of dissent by a State after a custom has been established? The general rule is that subsequent objection to an established rule of customary law cannot prevent that rule binding the State. A related question is what if the objecting State was not in existence at the time that the custom came into being? The orthodox rule is that ‘new States’ are automatically bound by generally accepted international law. In fact the problem of the relation of new States to existing international law is primarily a matter belonging to the area of State succession. As far as customary law is concerned, the prevailing view is, with different reasoning, that new States cannot in principle escape existing customary obligations. One cannot select rights granted by a legal system and at the same time reject the duties one dislikes.48

We have to admit that subsequent objection may, over time, have a significant impact on the substance of customary international law. It may even lead to a change in a customary regime. Subsequent objections or derivations may become so widespread that the previous rule is destroyed and replaced by a new rule, as with the extension of the territorial sea from 3 to 12 miles.

(d) Local or regional custom

In the famous Asylum case between Columbia and Peru, the World Court held that:

44Brownlie, Principles of Public International Law, 5th.ed., 1998, 10; Ahehurst’s Modern Introduction to International Law, 7th.ed., 1997, 48; Henkin, Louis, ‘International Law: Politics, Values and Functions” 216 Hague Recueil, 9, 45, 46, 130; Fitzmaurice, 92 Hague Recueil (1957,II), 99-100; Waldock, 106 Hague Recueil (1962,II), 49-50; Jimenez de Arechaga, 159 Hague Recueil (1978, I) 30.

45On the question of the persistent objector, Restatement of the Foreign Relations Law of the US reads: “…in principle a State that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures….” Restatement Third (1987) vol. I, para 102, comment, 26.

46Anglo-Norwegian Fisheries case (UK v Norway) (1951) ICJ Rep. 3.

47This was true, for example, in respect of the UK’s objection the extension of the territorial sea from 3 to 12 miles, a position now adopted in the UK’s Territorial Sea Act 1987.

48The reservations of the decolonised new States towards the international legal order created by the old colonial powers have had a considerable impact in particular areas, such as international economic

law and the law of the sea, which has led to legal uncertainty. See Akehurst’s Modern Introduction to International Law, 7th.ed., 1997, 47.

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The Colombian Government…has relied on an alleged regional or local custom peculiar to Latin-American States.

The Party which relies on a custom of this kind must prove that this custom has established in such a manner that it has become binding on the other Party. The Columbia government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom as “evidence of a general practice accepted as law”….

As the Court recognized in this case, although Article 38(1) (b) refers to “a general” practice, it allows for local (or regional) customs amongst a group of States or just two States49 in their relations inter se as well as for general customs binding upon the international community as a whole. Local customs may supplement or derogate from general customary international law (subject to such rules of jus cogens as may exist).50 Moreover, from the wording of the judgment, it is clear that in the case of a local custom (as opposed to general custom), the party which relies on the custom must prove that such custom is binding upon the other party.51

3.1.4 Consistency of practice

One of the most important factors in the formation of customary law is that the State practice must be reasonably consistent. This criterion is satisfied if there is substantial, rather than total or complete, consistency. The International Court of Justice held in the Nicaragua case that:

The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule….52

Therefore, major inconsistencies in the practice (that is, a large amount of practice which goes against the ‘rule’ in question) prevent the creation of a customary rule. As stated by the ICJ in the Fisheries case, minor inconsistencies (that is, a small amount of practice which goes against the rule in question) do not prevent the

49Such a custom (Portugal’s right of transit over Indian territory) was found to exist between India and Portugal in the Right of Passage over Indian Territory case, (1960) ICJ Rep. 6.

50Harris, D.J., Cases and Materials on International Law, 5th.ed., 1998, 25.

51Professor D’Amato strongly argues that this requirement is meant only for local, regional or special custom (his terminology for a local custom) and not meant for a rule of general customary law. He quoted three World Court decisions all of which deal with local customs only, namely the Asylum case, Right of Passage case, and Fisheries case. See D’Amato, Anthony, “The Concept of Special Custom in International Law”, (1969) 63 AJIL 211.

52Military and Paramilitary Activities in and against Nicaragua (US v Nicaragua) (Merits),(1986) ICJ Rep. 14, at para 186.

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creation of a customary rule53, although in such cases the rule in question probably needs to be supported by a large amount of practice, in order to outweigh the conflicting practice in question.54

3.1.5 Duration of practice

Provided the generality and consistency of a practice are proved, no particular duration is required: the passage of time will of course be a part of the evidence of generality and consistency. A long (and, much less, an immemorial) practice is not necessary, and rules relating to airspace and the continental shelf have emerged from fairly quick maturing of practice. The International Court does not emphasize the time element as such in its practice. In the North Sea Continental Shelf cases, the Court suggests that “the length of time needed will vary from subject to subject and that the passage of only a brief period of time is not necessarily a bar to the formation of customary law”.55

The issue of instant customary law (diritto spontaneo)

An interesting issue involved in this ‘time element’ is the existence or non-existence of the category of ‘instant customary international law’, which has been brought to the forefront by some writers like Roberto Ago and Bin Cheng56. The result is to deny the significance of State practice in the formation of customary international law and to rely solely on opinio juris as the constitutive element of custom.

In view of the nature of the decentralized international legal system and the elementary role of State practice as the objective element in the formation of customary law, opinio juris on its own does not suffice to establish general custom in controversial areas. This view is confirmed by the jurisprudence of the International Court of Justice. In the North Sea Continental Shelf cases, the Court insisted that “an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and uniform”57. An even clearer rejection of the doctrine of ‘instant custom’ can be found in the following words of the Court in the

Nicaragua case:

The mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary international law…. Bound as it is by Article 38 of its Statute…the Court must satisfy itself that the existence of the rule in the opinio juris of State is confirmed by practice.58

3. 2 Opinio juris sive necessitates

Article 38(1)(b) refers to ‘international custom, as evidence of a general practice accepted as law’. Therefore, the second element of an international custom is that the

53Anglo-Norwegian Fisheries case, (1951) ICJ Rep. 116, at 138.

54See Akehurst, M., “Custom as a Source of International Law” (1974-75) 47 BYIL 53

55North Sea Continental Shelf cases, (1969) ICJ Rep., 3.

56Cheng, Bin, “United Nations Resolutions on Outer space: Instance International customary law?”, (1965) Indian JIL, 23.

57North Sea Continental Shelf cases, (1969) ICJ Rep., 3, at 43.

58Military and Paramilitary Activities in and against Nicaragua (Merits), (1986) ICJ Rep., at 97.

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practice must be ‘accepted’ by States as ‘law’. When inferring rules of customary law from State practice, it is necessary to examine not only what States do but also why they do it. In other words, there is a psychological element in the formation of customary law. State practice alone is not sufficient; it must be shown that it is accompanied by a conviction that it is binding upon them as law. This conviction by States in the obligatory nature of the practice is known as opinio juris sive necessitates (in shortopinio juris).

The requirement of opinio juris

In the Lotus case59, the PCIJ emphasized that opinio juris was an essential element in the formation of customary international law. This was reaffirmed in the North Sea Continental Shelf cases60 and has been accepted ever since. It is not surprising given that there must be some criteria by which we can distinguish State practice amounting to law from other kinds of State activity, such as acts of comity or courtesy or friendship. In other words, opinio juris is an essential criterion for distinguishing between law and non-law.61

Proof of opinio juris

Now that the requirement of opinio juris is established, the important problem that remains is surely one of how to prove it. Professor Brownlie is of the view that in terms of the practice of the International Court of Justice, there are two methods of approach regarding the proof of opinio juris. According to him, “In many cases the Court is willing to assume the existence of an opinio juris on the basis of evidence of a general practice, or a consensus in the literature, or the previous determinations of the Court or other international tribunals. However, in the significant minority of cases (the Lotus case, North Sea Continental Shelf cases and Nicaragua case) the Court has adopted a more rigorous approach and has called for more positive evidence of the recognition of the validity of the rules in question in the practice of States. The choice of approach appears to depend upon the nature of the issue, and the discretion of the court. 62

Nevertheless, the present study respectfully submits the following:

(1) It is true that in many cases the Court was willing to assume opinio juris because these cases were clear-cut cases where there were no sharp differences of opinions as to the existence of a rule of customary law. If the Court has to assume opinio juris in all cases from the existence of a general practice, then it would amount to totally abolishing the requirement of opinio juris and determining the existence of a customary rule entirely on the basis of general and consistent State practice.

59Lotus case, (1927) PCIJ Series A, No. 10.

60North Sea Continental Shelf cases, (1969) ICJ Rep. 3.

61Kopelmanas took a position against the necessity of opinio juris, and Guggenheim argued that the condition of opinio juris was superfluous. But this theory is untenable; it would eliminate the distinction between rules of customary law, on the one hand, and rules of international morality and comity, on the other. See Kunz, J.L., “The Nature of Customary International Law”, (1953) 47 AJIL, 662-669.

62Brownlie, Principles of Public International Law, 5th.ed., 1998, 7.

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(2)The judgment of the Court in the North Sea Continental Shelf cases is actually rather explicit and flexible on the matter except on one point where the Court stated that “(T)here is no evidence that (the States) so acted because they felt legally compelled to draw (the boundary lines) in this way by reason of a rule of customary

law – especially considering that they might have been motivated by other obvious factors.”63 The rigidity of this dictum has to be seen in the context of the practice of non-parties upon a conventional rule, which, in the Court’s analysis, had not been customary upon adoption of the 1958 Convention.

(3)The task of ascertaining opinio juris, although difficult, is feasible.64 The opinio juris simply can be proved by an express, or most often tacit, acceptance of the practice as law by the interested States. The express declaration of a State that a given rule is obligatory (or customary) furnishes the clearest evidence as to the

State’s legal conviction. Express acceptance is, however, rather rare and not typical for the process of custom-formation.65

(4)In most cases, the element of acceptance as law is fulfilled tacitly, only by means of a presumption based upon various kinds of active or passive reactions to the practice by the interested States. In the Nicaragua case, the Court indicates some valuable guidelines on how to ascertain opinio juris:

…[A]s was observed in the North Sea Continental Shelf cases, for a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of opinio juris sive necessitatis’. 66

The Court points out that what is important in ascertaining opinio juris is the ‘behaviour’ not only of the States taking a particular action but also of other States in a position to react to it. It is a clear guideline that opinio juris can be inferred from the actual behaviour of States;67 it can be gathered from acts or omissions of States.68 If conduct by some States provokes ‘protests’ from other States that such conduct is

illegal, the protests can deprive such conduct of any value as evidence of customary law.69

63North Sea Continental Shelf cases, (1969) IC J Rep. 3, para. 78.

64See, Villiger, M.E., Customary International Law and Treaties, Martinus Nijhoff Publishers, Dordrecht, 1985, 27.

65Wolfke, Karol, Custom in Present International Law, 2nd. revised ed., Martinus Nijhoff Publishers, Dorsrecht,1993, 47.

66Nicaragua case, (1986) ICJ Rep., 14. para. 207.

67The World Court itself indicated in both North Sea Continental Shelf cases and the Nicaragua case that there is a close affinity between the two elements of State practice and opinio juris. That is why opinio juris is to be inferred from the actual behaviour of States themselves.

68Restatement of Foreign Relations Law of the US, (Third), vol. 1, para. 101.

69Karl, W., “Protest”, (1986) 9 EPIL 320-22.

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(5)“Protest”70 plays a very important role in ascertaining the element of ‘acceptance as law’. Absence of protests or objections against a practice (that is, acquiescence)

tends to prove that States do not consider the practice as contrary to their interests and also, that they do not object to the formation of a customary rule.71 ‘Toleration’

of a practice by other States, considering all relevant circumstances, justifies the presumption of its acceptance as law.72

(6)Casting an affirmative vote to a resolution of an international organization or ratifying an international convention is also a clear commitment in the nature of opinio juris on the part of a particular State. The Court states in the Nicaragua case:

As regards the United States in particular, the weight of an expression of opinio juris can similarly be attached to its support of the resolution of the Sixth International Conference of American States condemning aggression … and ratification of the Montevideo Convention on Rights and Duties of States…73

3. 3 Proof of custom

In principle, a court is presumed to know the law and may apply a custom even if it has not been expressly pleaded. In practice, however, the proponent of a custom has a burden of proof the nature of which will vary according to the subject matter. For instance, in the Lotus case74, the World Court acknowledged the plaintiff’s burden in respect of a general custom. In a case where a local or regional custom is alleged, the proponent ‘must prove that this custom is established in such a manner that it has become binding on the other party’75.

4 GENERAL PRINCIPLES OF LAW

The third source of international law listed in the Statute of the Court is ‘the general principles of law’. Most modern jurists accept that ‘general principles of law’ are principles of law common to all national legal systems, in so far as they are applicable to relations of States.76 The main objective of inserting this paragraph in Article 38 is

70Professor MacGibbon defines ‘protest’ in international law as follows: “A protest constitutes a formal objection by which the protesting State makes it known that it does not recognise the legality of the acts against which the protest is directed, that it does not acquiesce in the situation which such acts created and that it has no intention of abandoning its own rights in the premises.” MacGibbon, I.C., “Some Observations on the Part of Protest in International Law”, (1953) BYIL 293-319, at 298.

71See MacGibbon, “Customary International Law and Acquiescence”, (1957) BYIL 115-145. See also Akehurst’ Modern Introduction to International Law, 1997, 44, where the learned professor makes a distinction between a permissive rule and a rule imposing duties.

72Governments know that toleration of practice leads to its being legalised, to the formation of a new customary rule. Hence their increasing watchfulness. International events are watched,a nd every situation undesirable for a State provokes an immediate reaction for fear of the consequences for that State of its being said to have acquiesced in a precedent leading to custom.

73Ibid., para. 189.

74Lotus case, (1927) PCIJ Series A, No. 10, 18.

75Asylum case, (1950) ICJ Rep. 276.

76Akehurst’s Modern Introduction to International Law, 1997, 49; Dixon, Martin, Textbook on International Law, 4th.ed., Blackstone Press Ltd., London, 2000, 39; Cassese, Anthonio, International Law, Oxford University Press, 2001, 156.

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to fill in gaps in treaty law and customary law and is necessary to meet the possibility of a non liquet.77

Such general principles would include the duty to provide ‘reparation’ in consequence of a wrongful act (Chorzow Factory case78), which is accepted in most legal systems. Some of the general principles are based on ‘natural justice’ common to all legal systems such as the principles of good faith79, estoppel or acquiescence80, and proportionalality. Some are based on legal logic or statutory interpretation such as the principles of lex posterior derogat legi priori, lex specialis degorat legi generali, and contra proferentem.

Perhaps the most frequent and successful use of domestic law analogies has been in the field of evidence, procedure and jurisdictional questions. Thus there have been references to such rules as nemo judex in causa sua (no man shall be judge in his own cause)81, litispendence82, and res judicata83. In the Corfu Channel case84, the Court had recourse to ‘circumstantial evidence’ and remarked that ‘this indirect evidence is admitted in all legal systems, and its use is recognized by international decisions’. Even some substantive law principles, though very rarely, can be found in the decisions of the Court. In the Barcelona Traction case (Second Phase)85, for example, the Court has acknowledged the concept of the ‘limited liability company’ to be found in domestic law systems.

In any case, we have to admit that the Court seldom resorted to general principles of law. Could we say that the use of the General principles would wither away? In fact it has not fallen into desuetude. It has remained dormant for a long time. As soon as it has appeared that new areas of international law contained conspicuous gaps, the use of the general principles has been revitalized. It applies in particular to international criminal law, a body of law that is still rudimentary and replete with lacunae. In this area the ad hoc International Criminal Tribunals (the ICTY and the ICTR) have frequently resorted to general principles of criminal law recognized in the principal legal systems of the world – common law systems and civil law systems. Moreover, Article 21 of the Rome Statute establishing the International Criminal Court (ICC) envisages the possibility that the Court might resort to such a subsidiary source.

However, as noted by Judge McNair in the South-West Africa case86, the environment in which international law operates is very different from the one in which domestic law operates, and principles of domestic law can be used to fill gaps in international law only if they are suited to the international environment.

77Non liquet means the possibility that a court or tribunal could not decide a case because of a ‘gap’ in law. Remarkably, the ICJ applied the doctrine of non liquet in the Nuclear Weapons case, Advisory Opinion, (1997) 35 ILM 809 and 1343.

78Chorzow Factory case, (1928) PCIJ Series A, No. 17.

79Nuclear Test case (Australia v France), Judgment of 20 December 1974, ICJ Rep. 1974, 268, para, 46; See also D’ Amato, A., “Good Faith”, (1995) EPIL 11, 599-601

80See the Eastern Greenland case, (1933) PCIJ Series A/B, No. 53, pp. 52, 62, 69; Arbitral Award of the King of Spain, (1960) IC J Rep. 192, at 209, 213; The Temple of Preah Vihear case, (1962) IC J Rep., at 23, 31, 32.

81Mosul Boundary case, (1925) PCIJ Series B, No. 12, p. 32.

82German Interests in Polish Upper Silesia, (1925) PCIJ Series A, No. 6, p. 20.

83Effect of Awards of the UN Administrative Tribunal, (1954) ICJ Rep. 53.

84Corfu Channel case, (1949) ICJ Rep. 18. See also Right of Passage over Indian Territory (Prelim. Objection), (1957) ICJ Rep., 141-142.

85Barcelona Traction case, (1970) ICJ Rep. at 33-35.

86South-West Africa case, (1950) ICJ Rep. 148.

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5 JUDICIAL DECISIONS AND WRITINGS OF JURISTS

Article 38(1)(d) of the Statute of the International Court of Justice directs the Court to apply judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”.

5.1 Judicial decisions

Article 59 of the Statute says that “the decisions of the Court has no binding force except between the parties and in respect of that particular case”. It means that in international law there is no concept of stare decisis, as known in common law systems.87 In theory, therefore, judicial decisions do not make law but are declaratory of pre-existing law. They are law identifying or material sources of law, and we have already seen that they can be evidence of customary international law.

Although international courts are, in principle, not obliged to follow previous decisions, in practice they almost always take previous decisions into account.88 So far as the International Court of Justice is concerned, the Court always strive to maintain ‘judicial consistency’, referring to previous decisions. For example, in the Interpretation of Peace Treaties case89, the Court felt obliged to distinguish the earlier decision of the PCIJ in the Eastern Carelia case90, when, if one were to interpret Article 59 strictly, this was not at all necessary.

Whatever the theory, the Court in practice is involved in the process of law-creation. First, the Court will decide the substance of a dispute submitted to it and the decision of the Court has created law for the parties. Secondly, and of more significance, a decision of the Court may have a profound impact on customary law. It is often the case that the Court will bring the process of crystallization of customary law to a swift conclusion. It may accelerate the creation of customary law by confirming trends in State practice and by ‘discovering’ necessary opinio juris.91 Likewise, the Court may confirm that a principle first inserted in a treaty has now attained the status of general customary law.92 It is also obvious that a unanimous, or almost unanimous, decision has a role in the progressive development of the law. For example, the decisions and advisory opinions in the Reparation93, Genocide94, Fisheries95, and Nottebohm96 cases have had decisive influence on general international law.

Since Article 38(1)(d) is not limited to decisions of the World Court, there is no reason why decisions of other judicial bodies should not be regarded as sources of

87See Waldock, 106 Hague Recueil (1962, II), 91. See also German Interests in Polish Upper Silesia case, (1926) PCIJ, Series A, No. 7, p. 19.

88Shahabuddeen, Mohd., Precedent in the World Court, 1996.

89Interpretation of Peace Treaties case, (1950) ICJ Rep. 65.

90Eastern Carelia case, (1923) PCIJ Series B, No. 5.

91This seems to have happened in the angl0-Norwegian Fisheries case, and more recently, in Tunisia v Libya in respect of the Exclusive Economic Zone.

92See, for example, Territorial Dispute case (Libya v Chad) (1994) ICJ Rep. 6, with respect to Article 31 of the Vienna Convention on the Law of Treaties, 1969.

93Reparations for Injuries Suffered in the Service of the United Nations case, (1949) ICJ Rep. 174 .

94Reservations to the Genocide Convention case, (1951) ICJ Rep. 15.

95Anglo-Norwegian Fisheries case, (1951) ICJ Rep., 116.

96Nottebohn case, (1955) ICJ Rep. 4.

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international law. Even decisions of domestic courts, if they deal with matters of international law, may provide important evidence as to the practice of States, particularly in fields such as State immunity, extradition, international personality and human rights. The Pinochet case97 is a good example.

5. 2 Writings of publicists

The writings of the most highly qualified publicists are also to be regarded as a ‘subsidiary means for the determination of rules of law’, although it is clear that they are a material or evidential source only. Today, the writings of even the most respected international lawyers cannot create law. While international arbitral tribunals frequently cite textbooks and authors, the International Court of Justice refrains from doing so in its decisions.98

6 OTHER POSSIBLE SOURCES

Having examined the sources mentioned in the Statute of the Court, our concern now is to consider whether there are any other possible sources, which have been omitted in the list.

6. 1 General Assembly Resolutions

There have been suggestions that the resolutions of the United Nations General Assembly should be recognized as a source of international law. As a rule, General Assembly resolutions are not binding on member states; in fact most resolutions have nothing to do with international law. Nevertheless, when they are concerned with general norms of international law, they may provide a basis for progressive development of the law and the speedy consolidation of customary rules.99

As Sloan suggests, General Assembly resolutions may also contribute to custom more directly in a form of “collective State practice”.100 They are the collective equivalent of unilateral general statements or, in the context of a particular dispute, ‘150 diplomatic protests’. The process by which they are adopted (“adopted unanimously, or near unanimously, or by a true consensus’ or otherwise) establishes whether the practice is a “general’ one. Their repetition in later resolutions goes to the ‘constancy’ and ‘uniformity’ of the practice. As to the requirement of opinio juris, this will be evidenced, as Sloan indicates, by the wording of the resolution; by statements made in the General Assembly in debate prior to its adoption or later in explanation of a vote; or by statements made elsewhere.

97Pinochet case – R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3), [1999] 3 All ER 97.

98See Rosenne, The Law and Practice of the International Court of Justice , 2nd.ed., 1985, 614-16.

99Examples of ‘law-making resolutions’ are the Resolution which affirmed the Principles of International Law recognised by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal (Res. No. 95, 11 Dec. 1946, adopted unanimously); the Declaration on Granting of Independence to Colonial Countries and Peoples (Res. No. 1514, 14 Dec. 1960, adopted by 89 votes to none, with 9 abstentions); and the Declaration on Permanent Sovereignty over Natural Resources, (Res. No. 1803. 14 Dec. 1962, adopted by 87 votes to 2, 12 abstentions).

100Sloan, “General Assembly Resolutions Revisited”, (1987) 58 BYIL 39. For a different view, see MacGibbon, in Cheng, ed., International Law: Teaching and Practice, 1982, 59.

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International courts and tribunals have not doubted that General Assembly resolutions are State practice and hence evidence of custom. Moreover, they have tended to give considerable weight to them as such. We should note the use of the Court of the General Assembly resolutions on self-determination in the Western Sahara case101. and the reliance by various arbitral tribunals on the GA Resolution 1803 (Permanent Sovereignty over Natural Resources) on the rules on expropriation.102 Most strikingly, the judgment of the World Court in the Nicaragua case103 relies almost exclusively upon General Assembly resolutions104 when stating the law on the use of force and intervention. In the Legality of the Threat and Use of Nuclear Weapons case105, the Court stated that:

The General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can …provide evidence important for the emergence of an opinio juris…. a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a customary rule.

6. 2 Soft Law

In recent years a new idea has crystallized in the international community, which has: come to be known as ‘soft law’106 (as opposed to ‘hard law’, which makes up

international law proper). ‘Soft law’ can be defined as a body of guiding principles, standards, rules of conduct, or declarations of policy, which are not strictly binding norms of law.107 Some argue that this is not law at all but another name for principles de lege ferenda, or principles which could become normative in the future. 108 Some say that there exists a considerable “grey area” of “soft law” between the white space of “law” and the black territory of “non-law”.109

Soft law can be found, for example, in treaties not yet in force, in resolutions or declarations of international organizations, or in final acts of international conferences. It chiefly relates to human rights, international economic relations, and protection of the environment. Some examples of soft law instruments are: the Helsinki Final Act 1975, the Bonn Declaration on International Terrorism 1978, and the Rio Declaration on the Environment and Development 1992.

101Western Sahara case, (1975) ICJ Rep. 12.

102See, for example, The Texaco case (1977) 53 ILR 389; The Aminoil case, (1982) 21 ILM 976.

103Nicaragua case (Merits), 1986 IC J Rep. 14.

104Especially General Assembly Resolution 2625(XXV) of October 24, 1970 which is entitled “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”. The Resolution was adopted by the General Assembly without a vote (that is, by consensus).

105Legality of the Threat and Use of Nuclear Weapons case, Advisory Opinion, (1996) ICJ Rep. 66.

106The concept of soft law has, however, been criticised by some writers: “The term is inadequate

and misleading. There are no two levels or ‘species’ of law – something is law or not law:” Criticism of Sztucki, cited in Harris, D.J., Cases and Materials on International Law, 5th.ed., 1998, 65.

107On soft law generally, See Chinkin, “The Challenge of Soft Law: Development and Change in International Law”, (1989) 38 ICLQ 859; Weil, “Towards Relative Normativity in International Law”, (1983) 77 AJIL 413.

108Dixon, Martin, Textbook on International Law, 2000, 48.

109Van Hoof, Rethinking the Sources of International Law, 1983, 187-89.