NOTES

THE HIERARCHY OF THE SOURCES OF

INTERNATIONAL LAW
By
MICHAEL AKEHURSTI

Every legal system has evolved techniques for resolving conflicts between different legal rules. These techniques fall into three main categories. The first technique is to make rules derived from one source prevail over rules derived from another source; lex superior derogat inferiori. The second technique is to make later rules prevail over earlier rules; lex posterior derogat priori. However, this technique cannot be applied where the later rule derives from a lower source than the earlier rule, unless the authority which created the earlier rule provided for the possibility of its being repealed or overridden by a later rule derived from a lower source (as when an Act of Parliament gives a Minister power to repeal parts of the Act by delegated legislation). The third technique is to make a particular rule prevail over a general rule; lex specialis derogat generali. (,Particular' and 'general' are relative, not absolute terms; one rule may be more general than a second rule and less general than a third rule.) But lex specialis derogat generali is no more than a rule of interpretation. In other words, there is a presumption that the authority laying down a general rule intended to leave room for the application of more specific rules which already existed or which might be created in the future, even though the specific rules might be derived from an inferior source; but this is only a presumption, which can be rebutted by proof of contrary intention. All three techniques are applicable to international law, but the way in which they are applied is slightly different. First, the hierarchy of sources is not as well established in international law as it is in most municipal systems. Second, the maxim lexposterior derogat priori is sometimes difficult to apply in international law because customary law and general principles of law come into being gradually, so that no precise date can be assigned to their creation. Third, the maxim lex specialis derogat generali assumes greater importance in international law, not only because of the occasional difficulties of applying the other two maxims, but also because of the virtual absence of legislation in international law. Multilateral treaties co-exist with bilateral treaties, general custom co-exists with regional and other forms of special custom, and so on. One rule of international law may be more general than another, either because it has a broader subject-matter, or because it binds a larger number of States.- the maxim lex specialis derogat generali can therefore take two different forms in international law.!
Michael Akehurst, 1976. M.A., LL.B. (Cantab.), Docteur de l'Universite de Paris; Reader in Law, Keele University. 2 A conflict between a rule binding a small group of States and a rule binding a larger group arises only in so far as membership of the two groups overlaps. If there is no overlap, there is no conflict; a State is not bound by a rule which exists among a group of States of which it is not a member.
I

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Dr.

The application of the maxim can be seen in the fact that special custom prevails over general

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NOTES

Article 38 of the Statute of the International Court

The Committee of Jurists which drafted the Statute of the Court in 1920 included in their draft a provisionthat the items listed in the first paragraph of Article 38 should be applied enordre successif. However,it is not clearwhether these words were intended to establish a definite hierarchy of sources, or whether (as Phillimore argued) they merely reflected the logical sequence in which the rules would occur to the judge's mind. The words en ordre successif were deleted by the Sub-Commission of the Third Committeeof the First Assembly of the League of Nations, but it is not clear whether the deletion was inspired by a feelingthat the idea contained in the words was wrong, or that the idea was so obviously right as not to need stating. Some authorities have argued that Article 38 lays down a hierarchy of sources.I Others disagree. Z It is sometimesargued that the order in which the various items are listed in Article 38 reflects the maxim lex spedalis derogat generali-eustomary rules are more general than treaties, and general principles of law are more general than custom.! That is often so, but not always, as we shall see.r There is probably more truth in Le Fur's observationsthat treaties are easier to prove than custom and custom is easier to prove than general principles of law; that is one reason why they are likely to be applied in that order, and perhaps why Article 38lists them in that order.! The problem of the hierarchy of the sources of international law has seldom given rise to difficulties in practice.s However, there is no guarantee that that state of affairs will continue; for that reason, and alsobecauseof the light which it sheds on the general theory of international law, the topic merits further discussion.

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Treaties andcustom
The Permanent Court of International Justice in severalcasesapplied treaties which conflicted with customary rules.? However, this does not mean that treaties invariably
custom inter partes (see the discussion of special custom in the author's article on custom, above, p. 29). However, international tribunals (with the exception of the Court of Justice of the European Communities) have tended to apply general principles of law common to nations in general and not general principles of law common to the parties. See International and Comparative Law Quarterly, 25 (1976), pp. 801, 821-5. If there is a discrepancy between this tendency and the willingness of international tribunals to allow special custom to override general custom, it can be explained by recalling that lex specialis derogat generali is a maxim of interpretation, i.e, a means of giving effect to the presumed intention of the law-giver. Thus it applies to treaties and custom, because the creation of treaties and (to some extent) of custom is an intentional activity, but not to general principles of law, which are not intentionally created as a source of international law but are simply the by-product of similarities between municipal laws (it is hardly to be supposed that a State would enact a rule in its own law with the intention of fostering the growth of a general principle of law which would be advantageous to that State on the international plane).
I Fedozzi's argument in the Lotus case, reprinted in Marek, Repertoire des decisions et des documents . . . de la P.C.I.J. et de la C.I.J., series I, vol. 2 (1967), p. 874; Right of Passage case, I.C.J. Reports, 1960, pp. 6, 90, per judge Moreno Quintana dissenting. 2 United Nations Conference on International Organization (I945), vol. 13, p. 164; British argument in the CorfuChannel case, I.C.J. Reports, 1949,PP. 4, 99; UnitedNationsConference ontheLaw

oj Treaties, Official Records, First Session, p. 198, para. 5; ibid., Second Session, p. 67, para. 9. 3 Castaiieda, Legal Effects of United Nations Resolutions (1969), p. 227. 4 See below, pp. 275 and 279. 5 Recueil des cours, 54 (1935), pp. S, 212. 6 Some explanations for this state of affairs are suggested in Akehurst, A Modern Introduction to International Law, second edition (1971), p. 58. 7 Acquisition of Polish Nationality (1923), P.C.I.J., Series B, NO.7, p, 16; Treatmentof Polish

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prevail over custom; the treaties in the cases in question were probably simply more specific, or later in time, than the conflicting customary rules. It is sometimes said that treaties prevail over custom by virtue of the maxim lex specialis derogat generali.' It often happens that the subject-matter of a treaty is more specific than a customary rule, or that the States bound by a treaty are fewer than the States bound by a customary rule. But it is equally possible that a customary rule may be more specific than a treaty, or that a special custom binding a small number of States may conflict with a multilateral treaty binding a large number of States; in such cases the maxim lex specialis derogat generali causes the customary rule to prevail over the treaty.> Where the maxim lex specialis derogat generali provides no clear guidance, or where it is shown not to reflect the intentions of the States concerned, it seems that treaties ~ and custom are of equal authority.' The later in time prevails.. A treaty can override pre-existing custom, but subsequent custom can override a treaty. This view comes naturally to writers who regard custom as an implied agreement between States,' but it is also shared by many writers of other schools." Termination of a treaty as a result of the subsequent growth of a conflicting custom is an example of desuetude, a wellrecognized method by which treaties can come to an end.? However, just as there is a presumption against the establishment of new customary rules which conflict with pre-existing customary rules," so there is a presumption against the replacement of customary rules by treaties and vice versa. There is a presumption of interpretation (rebuttable, like all presumptions of interpretation) that treaties are not intended to derogate from customary law, just as statutes in English law are
Nationals (1932), P.C.I.J., Series AlB, No. 44, pp. 23-4; Lighthouses case (1934), ibid., No. 62, p. 25; Eastern Greenland case (1933), ibid., No. 53, p. 76, per Judge Anzilotti dissenting. See also the North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 24.
I P.C.!.J., Advisory Committee of Jurists, Proces-Verbaux of the Proceedings of the Committee, 1920, p. 337 (Ricci-Busati). And see above, p. 274 n. 3. 2 Le Fur, Recueil des cours, 54 (1935), pp. 5, 209. 3 Despite occasional statements that treaties have a higher hierarchical authority than custom; see above, p. 274 n. 1 (but cf. n. 2) . With the possible exception of cases where it can be proved that the parties intended otherwise; cf. Article 30 (2) of the Vienna Convention on the Law of Treaties. 5 According to such writers, the only difference between treaty and custom is one of form; a treaty is an express agreement and custom is an implied agreement. Since treaty and custom are two different forms of the same thing, they are equal to one another in authority; a subsequent treaty overrides an earlier custom, and a subsequent custom overrides an earlier treaty, just as a subsequent treaty overrides an earlier treaty. See Strupp, Recueil des cours, 47 (1930), p. 330; Tunkin, Theory of International Law (1974), p. 142. 6 Heilborn, Recueil des cours, II (1926), pp. 5, 29; Castberg, ibid., 47 (1933), pp, 313, 338; Reuter, ibid., 103 (1961), pp. 426, 484; Monaco, ibid., 125 (1968), pp. 93, 213-14; Capotorti, ibid., 134 (1971), pp. 427, 516; Paul de Visscher, ibid., 136 (1972), pp. I, 79; Kosters, 'Les fondements du droit des gens', Bibliotheca Visseriana, 4 (1925), p. 249; Sereni, Diritto internasionale, vol. I (1956), p. 143; Verzijl, International Law in Historical Perspective, vol. I (1968), p. 85. See also the writers cited by Tunkin, op. cit. (previous note), p, 142. 7 McNair, The Law of Treaties (1961), pp. 508, 516-18; Pinto, Recueil des cours, 87 (1955), pp. 391,431-3; International Law Commission's 1966 report, American Journal of International Law, 61 (1967), p. 388 (identifying desuetude with implied consent). The addition at the Vienna Conference of the words 'after consultation with the other contracting States' to what is now Article 54 (b) of the Vienna Convention on the Law of Treaties was apparently not intended to prevent the operation of desuetude: United Nations Conference on the Law of Treaties, Official Records, First Session, p. 476. 8 See the author's article on custom, above, p. 1 at p. 19.

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NOTES presumed not to derogate from the common law. Similarly, subsequent custom can terminate a treaty only when there is clear evidence that that is what the parties intend. In particular, if the treaty provides for denunciation and if the parties believe that a new customary rule conflicts with the treaty, one would expect them to denounce the treaty; failure to denounce strengthens the presumption that the treaty has not been replaced by a subsequent conflicting customary rule.' The clearest evidence that the treaty has been replaced by a subsequent conflicting customary rule is to be found in statements (unilateral or otherwise) by the parties recognizing that this has occurred. If all the parties to the treaty make such statements, that is conclusive; but statements by only some of the parties are strongly persuasive (especially if a high proportion of the parties make such statements), provided that the other parties do not object. Z The Committee of Jurists investigating the Aaland Islands dispute said that violation by a party of its obligations under a treaty, coupled with acquiescence by the other parties, could not terminate the treaty.s Although this view seems excessively strict, there is a need for evidence that the parties believed that the treaty had terminated- or intended that their acts should terminate it. In the absence of express statements concerning termination, such evidence can only be provided by abundant and consistent practice. It is sometimes suggested that the widespread violations of some of the laws of war during both world wars have given rise to new customary rules which have terminated the relevant treaties, but it is doubtful whether the practice was sufficiently consistent to have that effect.! Where the treaty permits but does not require a State to act in a particular way, it is dangerous to infer desuetude from failure to act in that way.6 In all cases, what counts is the practice followed inter se by the parties to the treaty; the practice which they follow in their dealings with States which are not parties to the treaty, and the practice of the latter States, may give rise to a rule of customary law, but such a rule has no effect on the treaty unless it is followed by the parties to the treaty in their relations with one another." just as a new customary rule can terminate a treaty, it can also amend a treaty.s
1 Cf. North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 25: '... when a number of States ... have drawn up a convention specifically providing for a particular method by which the intention to become bound by ... the Convention is to be manifested ..., it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way.' :z Cf. the Reichsgericht's decision in S.E. v, G. and Gen. (1925) (English translation in Briggs, The Law of Nations, second edition (1952), p. 902). 3 League of Nations, Official Journal, Special Supplement NO.3 (1920), p. 16. .. Yuille, Shortridge case (1861), de La Pradelle and Politis, Recueil des arbitragesinternationaux, vol. 2, second edition (1957), pp, 78, 108. S For instance, some of the violations provoked protests, and there has been a partial revival of respect for the old treaties since 1945: Akehurst, A Modern Introduction to International Law, second edition (1971), pp. 329-30. Moreover some of the violations during both world wars were justified as reprisals, which clearly negates the existence of a belief on the part of the belligerents that the treaties were no longer in force. See also below, p. 277, at n. 6. 6 Schwarzenberger, International Law, vol. I, third edition (1957), pp. 536-7. 7 See also Thirlway, International Customary Law and Codification (1972), p. 132. 8 A special (e.g, regional) custom followed by only some of the parties to the treaty can amend the Treaty as between those parties, although it does not affect their relations with the other parties: Thirlway, International Customary Law and Codification (1972), p. 139. Such a custom can presumably suspend the operation of the treaty as between the States bound by the custom (cf. Article 58 of the Vienna Convention on the Law of Treaties).

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277

This is what happened in the Air Transport Services Agreement Arbitration of 1963. 1 Article 38 of the International Law Commission's 1966 Draft Articles on the Law of Treaties provided: A treaty may be modified by subsequent practice in the application of the treaty establishing the agreement of the parties to modify its provisions. This provision was deleted at the Vienna Conference by 53 votes to 15, with 26 abstentions.> However, only 10 of the 26 States which spoke in favour of the proposal to delete said that Article 38 was not in accordance with existing law; 3 States supported deletion because they thought that it was inappropriate for the Convention to deal with relations between treaties and customary law; I I States said that the rule laid down in Article 38 was undesirable, but did not say whether or not it was in accordance with existing law; the remaining 2 of the 26 States advocated deletion without giving reasons. It is thus difficult to interpret the deletion of Article 38 as a clear rejection of the view that existing law allowed a treaty to be amended by subsequent practice, especially since the Vienna Convention did not exclude the possibility of termination of treaties by desuetude.! and expressly allowed a treaty to be interpreted in the light of subsequent practice (Article 3 (3) (b)); amendment merges into termination at one extreme and into interpretation at the other extreme. Of course, even if the deletion of Article 38 represented, as it probably did, progressive (or retrogressive) development rather than codification, it is possible that customary law will in the future reject the idea that a treaty can be amended by subsequent practice; but it is equally possible that customary law will not reject that idea, and that even the Vienna Convention on the Law of Treaties will be amended by subsequent practice. The opposition to Article 38 at the Vienna Conference was largely inspired by criticism of the Air Transport Services Agreement Arbitration,4 and by resulting fears that treaties which had been ratified by a State's legislature could be modified by the acts of low-ranking officials. These fears are not entirely unfounded (customary rules can be created by the practice of low-ranking officials), but they are somewhat exaggerated. -the presumption against changing legal rules! means that treaties can be amended only by prolonged practice, and the need for prolonged practice gives higher authorities in the State concerned the opportunity to discover and stop the activities of low-ranking officials before it is too late. Moreover, as Tunkin rightly observes: ... only such practice as shows an agreement of the parties may introduce a change in a treaty ... Individual digressions from treaty provisions, ... [which] have taken place with the common consent of the parties, but [which] do not testify to their intention to change a treaty provision, do not modify the treaty." Subsequent practice often modifies the constituent treaties of international organizations.? Some authorities maintain that such modifications need the consent of all
I I.L.R. 38, pp. 182,249 et seq. See also the Preak Vihear Temple case, I.C.J. Reports, 1962, pp. 6, 21 et seq.; Fitzmaurice, this Year Book, 33 (1957), pp. 203, 212, 225, 252; Reuter, Introduction au droit des traites (1972), p. 135. 2 United Nations Conference on the Law of Treaties, Official Records, First Session, pp. 207-15. 3 See above, p. 275 n. 7. 4 See above, n. I. 5 See above, pp. 275-6. 6 Tunkin, Theory of International Law (1974), p. 146. Practice cannot create customary law unless it is accompanied by opinio juris. 7 For pre-war examples, see Kopelmanas, this Year Book, 18 (1937), pp. 127, 139-40. Tunkin, op. cit. (previous note), p. 339, argues that basic provisions of the constituent treaty cannot be amended by practice. This distinction seems illogical (cf. above, p. 275 n. 5). Even if the basic

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NOTES
member States of the organization; 1 others argue that a majority is sufficient." The true solution would appear to be to apply by analogy any amendment clause which exists in the constituent treaty; thus, the United Nations Charter can be amended by a practice supported by two-thirds of the member States, including the five permanent members of the Security Council.! If the treaty does not provide for amendment by a majority of the members, subsequent practice can amend the treaty erga omnes only if it is unanimous, or, to be more precise, unopposed.! On the other hand, even practice which is opposed by some members can interpret the treaty, especially if the treaty empowers the organization to take decisions by majority vote; the persuasiveness of the interpretative practice varies according to the proportion of the members which support it. There is therefore a temptation for States to argue that practice which conflicts with the treaty is merely an interpretation of it. At all events, the distinction between amendment and interpretation is often blurred in practice.! For instance, the practice of the Security Council, whereby an abstention by a permanent member is not treated as a veto, is described by some authorities as an amendment of the Charters and by others as an interpretation."

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General principles of law

The expression 'general principles of law' can refer to one of two different thingsgeneral principles of international law, and general principles borrowed from muni-

cipal Iaw.f
General principles of international law are not a separate source of international law. They are simply broad principles, such as the principle of diplomatic immunity or the principle of the freedom of the seas; most of them are principles of customary law, although there is no logical reason why they should not be derived from other sources, such as treaties. Some of them are so well-known that lawyers and judges find it unnecessary to cite authority to support thern.? Others are more controversial; for
provisions are jus cogens (which is unlikely to be the case), the tacit consent of the vast majority of the members of a universal organization is probably enough to change jus cogens; cf. Tunkin, op, cit., p. 160, and see below, p. 285. J Tunkin, op, cit. (above, p. 277 n. 6), p. 339; Expenses case, I.e.J. Reports, 1962, pp. 151, 191, per Judge Spender. Presumably such authorities would not deny that the practice of a majority (or even a minority) of member States can amend the treaty inter se; see above, p, 276 n. 8. a Rajan, United Nations and DomesticJurisdiction, second edition (1961), p. 405. 3 On the other hand, the requirement of ratification laid down in Article 108 of the Charter is a purely procedural formality, which can be waived by the States concerned (pace Judge Spender in the Expenses case, I.C.J. Reports, 1962, pp. 151, 191). 4 See the author's article on custom, above, p. I at pp. 23-4. Cf. Judges Winiarski and Bustamante in the Expenses case, I.e.J. Reports, 1962, pp. 151,230-3,300, although they overlook the implications of Article 108. 5 Jessup, A Modern Law of Nations (1948), p. 16. 6 Tunkin, Theory of International Laic (1974), pp. 339-40; Greig, International Law (1970), pp. 382-3; Sperduti, Rivista di diritto internazionale, 44 (1961), pp. 3, 12; Fitzmaurice, this Year Book, 30 (1953), pp. I, 55; Gross, American Journal of International Law, 62 (1968), pp. 315, 328; Judge Bustamante in the Expenses case, I.e.J. Reports, 1962, pp. 151,291; Judge de Castro in the Namibia case, ibid., 1971, pp. 16, 185-6. 7 Namibia case, I.C.J. Reports, 1971, pp. 16, 22, 117, 153-4. 8 Some principles are general principles of law in both senses, but not all of them are. The attempt by Cheng, General Principles of Law (1953), to blur the distinction between the two meanings of general principles of law is unsound; see E. Lauterpacht's review of Cheng's book in this Year Book, 30 (1953), p. 544. See also Akehurst, The Law Governing Employment in International Organizations (1967), pp. 77-8, and A Modern Introduction to International Law, second edition (1971), pp. 51-2. 9 Serensen, Manual of Public International Law (1968), p. 144.

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instance, a lawyer may try to infer from several specific rules of customary law an underlying principle which has not been perceived by anybody else before. 1 The hierarchical position of general principles of international law depends on the source from which they are derived. However, owing to their generality, they are often ousted by rules of a more specific character (including rules derived from hierarchically lower sources), in application of the maxim lex specialis derogat generali. General principles of law, in the sense of principles borrowed by international law from municipal law, were mentioned in Article 38 of the International Court's Statute in order to enable the Court to fill gaps in treaties and customary law; they can therefore be applied only in the absence of rules (or at least specific rules) of treaty law or customary Iaw.> Case law! and, with a few exceptions, writers- are unanimous in holding that treaties and custom override general principles of law in the event of conflict. However, it is permissible to use general principles of (municipal) law to interpret treaties and custorn.! Moreover, general principles of law are sometimes more specific than very broad principles laid down by treaties or customary law, and in such cases the maxim lex specialis derogat generali can sometimes lead to general principles of law being applied in preference to very broad principles laid down by treaties or customary law. For instance, the presumption in favour of the liberty of State action, which, according to the Lotus case, is a principle of customary law, would suggest that a State is under no duty to pay moratory interest on its debts; and yet the Permanent Court of Arbitration held in the Russian Indemnity case that such a duty existed, based on a general principle of (municipal) law."

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Judicial decisions and the writings of publicists

Judicial decisions and the writings of publicists are described in Article 38 of the International Court's Statute 'as subsidiary means for the determination of rules of
I Much the same sort of thing happens when existing rules are extended by analogy. An argument by analogy is in effect an argument that specific rules reflect a broader (and often unstated) principle which is applicable not only to the circumstances governed by the specific rules but also to analogous circumstances. On analogy generally, see Giuliano, Rivista di diritto internazionale, 20 (1941), p. 69. In view of the reluctance by Soviet international lawyers to admit that international judges are entitled to extend rules by analogy, it is interesting to note that Soviet law instructs judges to fill gaps in the codes by resort to analogy: David and Brierley, Major Legal Systems in the World Today (1968), p. 179. However, such use of analogy is now forbidden in criminal cases, although it used to be practised in Stalin's time, when, for instance, a provision of the criminal code forbidding hunting without a permit was applied by analogy to a man who ran off with another man's wife. Z P.C.I.J., Advisory Committee of Jurists, Proces-Verbaux of the Proceedings of the Committee, 1920, p. 338. 3 Russian Indemnity case (1912), R.I.A.A., vol. II, pp. 431, 441; Chorz6w Factory case (1927), P.C.I.J., Series A, No. 13, p. 27, per Judge Anzilotti dissenting; Fisheries case, I.C.J. Reports, 1951, pp. 116, 147-8,per Judge Alvarez; Right of Passage case, I.e.J. Reports, 1960, pp. 6,43-4; Castillo v. Zalles (1955), I.L.R. 22, p. 540 (Supreme Court of Chile). 4 Le Fur, Recueil des cours, 54 (1935), pp. 5, 213 i Habicht, ibid., 49 (1934), pp. 297-8; Rousseau, Droit international public, vol. 1 (1970), p. 395; Hsiung, Law and Policy in China's Foreign Relations (1972), p. 22; Avramov, Jugoslovenska revija sa medunarodnopravo, 3 (1959), p. 385. Contra, Degan, L'equite et le droit international (1970), p. 17 (who regards general principles of law as possessing the same value as treaties and custom), and the authors mentioned below, p. 282 n. 5. 5 Le Fur and Habicht, loco cit. (previous note). For a bold example of this technique, see the Mosul case (1925), P.C.I.J., Series B, No. 12, p. 32. 6 R.I.A.A., vol. I I, p. 431 (see also the dictum on p. 443 about force majeure).

280

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law'. This suggests that they have a lower hierarchical value than treaties, custom and general principles of law.' Indeed, some writers do not regard them as sources at all, but only as indirect and secondary evidence of rules created by the true sourcestreaties, custom and general principles of Iaw.' It is sometimes said that decisions of international courts carry greater weight than decisions of national courts, which in turn carry greater weight than the writings of publicists.! This is true more often than not, but there can be exceptions; it would be invidious to name names, but all of us can think of certain writers who have enjoyed a greater reputation than certain judgments of national courts, or of certain judgments of national courts which have enjoyed a greater reputation than certain judgments of international courts. Much depends on the quality of the reasoning which the judge or writer employs.! The absence of any rule of binding precedent in international law means that judgments do not always carry greater weight than the writings of publicists.

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Otherpossible sources of law

Having discussed the sources (or pseudo-sources) of international law listed in Article 38 (1) of the International Court's Statute, it remains for us to examine various other things which are sometimes said to be sources of international law.! The position of equity in the hierarchy of the sources of international law is extremely low. It is universally agreed that an international tribunal cannot apply equity in a manner which conflicts with international law unless it has been specifically authorized to do so. In the absence of such an authorization, the most that an international tribunal can do is to use equity to fill gaps in the law and to make equitable exceptions to legal rules. When equitable exceptions are made to legal rules, it sometimes appears as if equity is overriding the law, but this appearance is misleading. All that the judge is doing is holding that the legal rule does not apply to the facts of the case; he is distinguishing it, just as a first-instance judge in England can distinguish a House of Lords decision. The English judge does not deny that the House of Lords decision is binding on him; he merely holds that it does not apply to the facts of the case. An international judge does the same; he does not deny that the legal rule is binding, he merely holds that it does not apply to the facts of the case. The equitable exception is applicable and the legal rule is not, because the equitable exception is more specific than the legal rule; lex specialis derogat generalis Unilateral acts of States are sometimes described as a source of international law by lawyers from civil law countries in Western Europe." However, these acts are so
I This is supported by what little authority there is on the topic: Marek, op, cit. (above, p. 274 n. I), pp. 51, 874; British argument in the Corfu Channel case, I.C.]. Reports, 1949, pp. 4, 99; South West Africa cases, ibid., 1962, pp. 319, 576, per Judge ad hocvan Wyk dissenting; Barcelona Traction case, I.C.]. Reports, 1970, pp. 3" 315-16 (separate opinion of Judge Ammoun). 2 e.g, Schwarzenberger, International Law, third edition, vol. I (1957), pp. 26-8. 3 Schwarzenberger, op. cit. (previous note), pp. 3-7; Fitzmaurice in Symbolae Verzijl (1958), p.172. .. Schwarzenberger, Current Legal Problems, 9 (1956), pp. 235, 238. 5 Natural law is discussed below, pp. 282-3. 6 The way in which an international judge distinguishes customary rules is very similar to the way in which an English judge distinguishes judicial decisions. In the case of treaty provisions, the process of distinguishing takes a slightly different form; the judge bases his decision on the presumed intention of the parties, arguing that the parties cannot have intended the letter of the treaty to apply in cases where it would produce injustice. 7 Rousseau, Droit international public, vol. I (1970), pp. 416-32, and the authors cited by him.

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heterogeneous that it is very difficult to generalize about them. I Very often they are not sources of law. For instance, in many circumstances, protests, waiver and acquiescence are merely steps towards the formation of a customary rule or a prescriptive right, and are therefore not sources of law, or even of legal rights and obligations, in their own right. Similarly, notification (or lack of it) has legal effects only if there is a rule of international law, derived from some other source, which requires notification and attributes legal effects to it; consequently notification is not a source of law, or even of legal rights and obligations, in its own right. However, in other circumstances unilateral acts are sources of law, or at least of legal rights and obligations: a State can sometimes assume obligations by promise or lose rights by waiver (such a promise or waiver may occasionally be inherent in recognition). Such acts are similar in their effects to treaties, and probably have the same hierarchical value as treaties; that is to say, a State can, by promise or waiver, lose liberties or rights which it enjoyed under treaties or customary rules, although a subsequent treaty or custom can extinguish the obligations assumed in the promise or revive the rights lost by the waiver. Many acts of international organizations are not sources of international law in their own right, either because they are merely part of the practice from which customary international law develops," or because they merely record agreements between (or promises by) States.' However, every international organization has an inherent power to take binding decisions on questions which fall within the internal law of the organization: and a power to take binding decisions on other questions may be conferred by the constituent treaty.! It would require a separate article to examine the place of such binding decisions in the hierarchy of the sources of international law, because the problems which arise are inseparable from a whole host of questions which form part of the law of international organizations but which would be out of place in a general article on the sources of international law-the principles governing interpretation of constituent treaties of international organizations, the doctrine of implied powers, the questions whether an organ of an international organization can delegate its powers and whether it is bound by its own rules of procedure, the question whether the internal law of an international organization is a separate system of law from international law, the question whether the European Communities are different in nature from other international organizations, the difference between void and voidable acts. The omission of discussion of binding decisions of international organizations from the present article is not as serious as it may seem, because (with the exception of the European Communities and the internal law of international organizations, both of which are specialized topics) international organizations seldom take binding decisions. Jus cogens Everything said hitherto in this article must be regarded as subject to the rules of international law concerning jus cogens. In the event of a conflict between a rule of jus cogens and a rule of jus dispositivum, the rule of juscogens must prevail, regardless of the sources of the conflicting rules, regardless of whether the rule of jus dispositioum came
I Verzijl, International Law in Historical Perspective, vol. 6 (1973), pp. 105-6. The list of such acts given by Rousseau (op. cit., previous note) is as follows: notification, promise, recognition, protest, waiver, acquiescence. 2 See the author's article on custom, above, p. I at pp. 5-8 and II. Resolutions voted for by member States can interpret or even amend the constituent treaty of the organization; this is also a form of customary law. See above, pp. 277-8. 3 Castaneda, Legal Effects of United Nations Resolutions (1969), chapter 6.

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Or by another treaty: Castaneda, op. cit. (previous note), chapter S.

NOTES
into existence before or after the rule of jus cogens, and regardless of whether the rule of jus dispositivum is more specific or less specific than the rule of jus cogem. As regards the sources of international law which can produce rules of jus cogens,1 a wide variety of views has been expressed by writers.' Some say that such rules are derived from custom,' while others say that they can be derived either from custom or from treaties.' A few maintain that they are derived from general principles of law,s or from either custom or general principles of law,6 or from either custom, treaties or general principles of law.7 Judicial dicta speak of rules of jus cogens being derived from treaties! or general principles of law,9 but without apparently implying that they are limited to those sources. Some authorities have argued that treaties or customs which conflict with basic principles of natural law are void;IO others reject this view." The travaux preparatoires of the Vienna Convention on the Law of Treaties reveal a more consistent picture. The reports of the International Law Commission said that
1 No one has ever suggested that all the rules derived from a particular source are jus cogent, References to a source's being capable of producing rules of jus cogens merely mean that some of the rules derived from that source are or may be rules of jus cogens. 2 In addition to the writers listed below, see also the writers whose views are summarized in Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties (1974), pp. 74-6, and Carnegie Endowment for International Peace, The Concept of Jus Cogens in International Law (1967), pp. 12 and 26-49. 3 Brownlie, Principles of Public International Law, second edition (1973), p. 5; Reuter, Introduction au droit des traius (1972), pp. 139-40. 4 Verzijl, International Law in Historical Perspective, vol. I (1968), p. 85; Hsiung, Law and Policy in China's Foreign Relations (1972), p. 29; Le Fur, Recueil des cours, 54 (1935), p. 43; Verdross, American Journal of International Law, 60 (1966), pp. 55, 61; Morelli, Rivista di diritto internazionale, 51 (1968), pp. 108, 110; Aleksidze, Soviet Year Book of International Law (1969), pp. 127, 149; Tunkin, Theory of International Law (1974), p. 158, citing McNair. 5 Von der Heydte, Die Friedensuiarte, 33 (1933), pp. 289, 290, 297-8; Harle, Revue de droit international et de Ugislation comparee, third series, 16 (1935), pp. 663, 680-1; Verdross, Annuaire de l'Institut de droit international (1937:), pp. 186-9. These authors considered that general

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principles of law were normally subsidiary to treaties and custom; only a few general principles

of law were jus cogens, overriding treaties and custom. Such views represented only a passing phase in the thinking of Verdross; cf. his earlier views in Annuaire de l'Institut de droit international (1932), pp. 292-3, and his later views in the article mentioned in the previous note. 6 Mann, in Festschrift fur Ulrich Scheuner (1973), pp. 399, 401. 7 P. de Visscher, Recueil des cours, 136 (1972), pp. I, 107. 8 Koch case (1959), I.L.R. 30, pp. 496, 503. 9 Right of Passage case, I.C.J. Reports, 1960, pp. 6, 135, 139-40, per Judge ad hoc Fernandes dissenting; South West Africa cases, ibid., 1966, pp. 6, 298, per Judge Tanaka dissenting. 10 Vattel, The Law of Nations, introduction, paragraphs 9 and 26, and Book II, paragraph 161; Kosters, 'Les fondements du droit des gens', Bibliotheca Visseriana, 4 (1925), pp. 183-7; Kunz, American Journal of International Law, 47 (1953), pp. 662, 666; North Sea Continental Shelf cases, I.C.J. Reports, 1969, pp. 3, 193, per Judge Tanaka dissenting. See also the writers cited by Sztucki, op. cit. (above, n. 2), pp. 59, 66, 110. Many writers say that immoral treaties are void. However, although natural law can possibly be regarded as a formal source of international law, morality clearly cannot. The writers who argue that immoral treaties are void do not generally say what the formal source of this rule is. It might be natural law; alternatively, it might be customary law or some other 'positivist' source. 11 See the writers listed in Sztucki, op, cit. (above, n. 2), pp. 60-6. See also The Antelope (1825), 23 U.S. 66, 120-2 and The Enterprise (1855), Moore, International Arbitrations, vol. 4
(1898), pp. 4349, 43 60- r , 4373, 4377 In addition, many writers, especially before 1960, denied

the existence of any form of jus cogens, and therefore opposed the view that treaties and custom conflicting with natural law were void: Sztucki, op. cit., pp. 55-8, and Kosters, lococit. (previous note), pp. 187-9. Authorities basing jus cogens solely on treaties, custom and/or general principles of law must also be regarded as rejecting the view that natural law can be a formal source of

jus eogens.

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jus cogens could be established by treaty or by custom. r At the Vienna Conference, some States said that jus cogens could be derived from custom," or treaties,s or both.s The view that treaties are one of the possible sources of jus cogens also receives support
from speeches by several delegates who listed rules contained in the United Nations Charter or in other treaties as examples of jus cogens, without stating that those rules were also rules of customary law.S There was little support at the Conference for the view that jus cogens could be derived from rules other than treaties and custom. In particular, a United States amendment, defining a rule of jus cogens as a rule 'which is recognized in common by the national and regional legal systems of the world and from which no derogation is permitted', which might have been interpreted as defining jus cogens by reference to general principles of law (although delegates differed as to the true meaning of the amendment), was defeated by 57 votes to 24, with 7 abstentions. Some delegates at the conference said that the provisions of the Convention concerningjus cogens gave effect to principles of international morality." That may be true, but the important thing to note is that the Convention defined a rule of jus cogens, not by reference to subjective notions like morality, but as a 'norm accepted andrecognized by theinternational community of States asa whole as a norm from which no derogation is permitted'.' Moreover, the consensus at the conference was apparently that rules of jus cogens could be derived only from treaties and/or custom; in other words, principles of international morality had to take the form of conventional or customary rules of international law in order to have any chance of becoming jus cogens. 8 Moreover, there are arguments of principle which support the view that jus cogens can be derived from treaties and custom, but not from other sources of international law. We have already seen that treaties and custom are normally of equal authority as sources of international law, and override other sources. It would be an anomalous departure from that general pattern if rules of jus cogens could be derived from custom but not from treaties (or vice versa), or if other sources, which are normally inferior to treaties and custom, could produce rules of jus cogens which would override treaties and custom. Furthermore, the Vienna Convention says that a rule of jus cogens must be
I American Journal of International Law, 58 (1964), pp. 265-6 and 291; ibid., 6r (1967), p. 411 ('the jurisprudence of international tribunals', mentioned on p. 410, was probably intended to serve as evidence of existing rules of jus cogens, not to create new rules of jus cogens). 2 United Nations Conference on the Law of Treaties, Official Records, First Session, pp. 295 (Greece), 311 (Italy, but see below, n. 5), 320 (Ivory Coast). 3 Ibid., p. 315 (Ethiopia); ibid., Second Session, p. 97 (Ecuador and Cuba). These States made it clear that they did not regard treaties as the sole source of jus cogens, 4 Ibid., First Session, pp. 297 (Cuba), 298 (Chile), 302 (Poland), 326 (Malaysia), 327 (Trinidad), 387 (Cyprus); ibid., Second Session, p. 99 (Poland). 5 Ibid., First Session, pp. 294 (U.S.S.R.), 296 (Kenya), 297 (Cuba and Lebanon), 298 (Nigeria), 300 (Sierra Leone), 301 (Madagascar), 302 (Poland), 307 (Byelorussia), 311 (Italy), 317 (Australia), 318 (Czechoslovakia), 320 (Ecuador), 324 (Switzerland); ibid., Second Session, pp. 96-7 (Ecuador) and 100 (Ukraine). 6 Capotorti, Recueil des cours, 134 (197r), pp. 417, 522. 7 Italics added. These words have distinctly positivist or consensual overtones. 8 A few members of the International Law Commission and a few delegates at the conference said that jus cogens was based on natural law ; a few others attacked this view (Sztucki, op, cit. (above, p. 282 n. 2), pp. 60-3). The view ofthe majority seems to have been that jus cogens could be derived only from treaties and/or custom, thus impliedly rejecting the view that natural law could be a formal source of jus cogent independently of treaties and custom. Rules of natural law would therefore have to be incorporated in treaties or custom before they stood any chance of becoming jus cogens,

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NOTES 'accepted and recognized by the community of States as a whole'I-an expression which, as we shall see in a moment, is not free from difficulty, but which surely suggests that a rule of jus cogens cannot come into being unless it is accepted and recognized by at least a very large number of States, including the two super-powers. But the Soviet Union refuses to recognize any sources of international law other than treaties and custom. This negative attitude, coupled with the definition of jus cogens given in the Vienna Convention, presents an almost insuperable obstacle to the development of jus COgens out of any source other than treaties and custom. Finally, as far as general principles of (municipal) law are concerned, not all principles of municipal law are suitable for transposition to the international environment, and the factors which make a broad definition of jus cogens workable in municipal law hardly exist in international law;2 it is therefore a great mistake to argue that the fact that a particular rule is jus cogens in all municipal legal systems means that it is jus COgens in international law also. One of the requirements which must be met, according to the Vienna Convention, before a rule can be regarded as a rule of jus cogens, is that it must be a rule of 'general international law'. Some writers identify general international law with customary law.t However, this is doubtful. A treaty which has been ratified by all or almost all the States in the world is as much a part of general international law as most customary rules. Similarly the use of the word 'emerges' in Article 64 of the Vienna Convention seems at first sight more apt to describe the gradual development of a customary rule than the conclusion of a treaty. But it does not necessarily rule out treaties, because it may take a long time for a treaty to receive a sufficiently large number of ratifications for the treaty to be regarded as jus cogens. Besides, the French text uses the word 'survient', and, as the French delegate at the Vienna Conference said, 'the dictionary definition of the French verb "survenir" implied something sudden and unexpected'. 4 A more serious difficulty arises from the requirement, laid down in Article 53 of the Vienna Convention, that a rule of jus cogens must be 'accepted and recognized by the international community of States as a whole'. Some delegates at the Vienna conference thought that rules of jus cogens must be accepted by all States s others thought that they must be accepted by an overwhelming majority of States, but not by all." Each interpretation gives rise to problems. The 'unanimity' interpretation would make the development of jus cogens difficultand would make the development of jus cogens by treaty extremely difficult, because it is most unlikely that all the States in the world would be parties to a treaty. However, it is not a logical impossibility that all the States in the world might become parties to a treaty. 7
Italics added. Marek, in Melanges Guggenheim (1967), pp. 426, 429 et seq.: Rousseau, Droit international public, vol. I (1970), p. IS0; Sinclair, The Vienna Convention on the Law of Treaties (1973), pp. 114- 15. 3 e.g, Thirlway, International Customary Law and Codification (1972), p. 97. 4 United Nations Conference on the Law of Treaties, Official Records, Second Session, p, 124, para. 17. The Spanish text uses the words 'aparici6n' and 'sorge', 5 Ibid., First Session, p. 294, para. 12 (Finland), p. 295, para. 17 (U.S.A.) and para. 19 (Greece), p. 311, para. 40 (Israel), p, 323, para. 16 (Philippines); ibid., Second Session, p. 96, para. 29 (West Germany). 6 Ibid., First Session, p. 301, para. 19 (Ghana), p. 312, para. 52 (New Zealand), p. 317, para. 17 (Australia), p. 318, para. 2S (Czechoslovakia); ibid., Second Session, p. 106, para. 63 (Libya). See also the statement by the Chairman of the Drafting Committee, ibid., First Session, p. 471, para. 7, and p. 472, para. 12. 7 See also below, p. 285 n. 4.
I 2

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HIERARCHY OF SOURCES The 'overwhelming majority' interpretation causes more difficulties. The normal rule is that a State is not bound by a treaty to which it is not a party. In certain circumstances a dissenting State is not bound by rules of customary law; indeed, the travaux preparatoires of Article 38 of the Vienna Convention suggest that a State is not bound by a new customary rule unless it has positively consented to that rule. I What happens to the States which oppose the creation of a rule of jus cogens? Some authorities argue that they are not bound by it. 2 This is logical, but undesirable; jus cogens would lose much of its raison d' etre if States could escape its binding force by dissenting from it. Other authorities argue, rather illogically, that dissenting States are bound by customary rules of jus cogens but not by customary rules of jus disposiiioumi: however, apparently nobody has yet argued that treaties laying down rules of jus cogens are binding on States which are not parties to them. The true solution is probably that the dispute between the 'unanimity' interpretation and the 'overwhelming majority' interpretation is more apparent than real. There are two questions involved-how many States must recognize a rule as law, and how many must recognize it as jus cogens? Most of the delegates who spoke in favour of the 'unanimity' interpretation were addressing their minds to the first question, and most of the delegates who spoke in favour of the 'overwhelming majority' interpretation were addressing their minds to the second question. The true answer appears to be that a rule, in order to qualify as jus cogens, must pass two tests-it must be accepted as law by all the States in the world.s and an overwhelming majority of States must regard it as jus cogens
See the author's article on custom, above, p. I at pp. 23-7, especially p. 24 n. I. Tunkin, Theory of International Law (1974), pp. 158-9. Cf. Lukashuk, in Carnegie Endowment Conference on the Process of Change in International Law, ed. Zacklin (1965), pp. 20-1, who says that a State can choose between accepting rules of jus cogens and not being regarded as a member of the international community. 3 United Nations Conference on the Law of Treaties, Official Records, First Session, p. 197, para. 73, and p. 444, para. 49 (Venezuela); Aleksidze, Soviet Year Book of International Law (1969), pp. 127, 149; Thirlway, International Customary Law and Codification (1972), p. 110; Bokor-Szego, New States and International Law (1970), chapter 2. 4 In the case of a treaty, this would mean that all the States in the world must be parties to the treaty. In the case of a customary rule, positive consent by all States is not necessary, despite some unfortunate statements to the contrary at the Vienna Conference; it is sufficient that some States accept the rule and that other States do not dissent from it (see above, pp. 23-'7). The unanimity requirement would be met if some States were parties to a treaty laying down the rule and if the rule were binding on all other States qua customary rule. S According to the principle of acte contraire, a rule of jus cogens will cease to bejus cogens if the overwhelming majority of States decide that it is no longer jus cogens-even though it may still remain a rule of law (d. Tunkin, Theory of International Law (1974), p. 160). The final relative clause in Article 53 of the Vienna Convention on the Law of Treaties is badly drafted, because it implies that a rule of jus cogens can be replaced only by a rule of jus cogens and not by a rule of jus dispositioum.
I

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