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terça-feira, 10 de novembro de 2009

On Article 38 (1) of the ICJ

1- Introduction: origins of the International Court of Justice and an overview of Article 38 (1)
French Philosopher Albert Camus once cunningly remarked that there are two opposed methods of settling disputes: “bullets” or “words”. War has been used as a legal mechanism for settling differences at the international level since times immemorial. This would radically change after the carnage of World War II. The development of weapons of mass destruction, the lethal potential of new weaponry, and the sophistication of warfare techniques gave the world a difficult task: outlaw war or face complete annihilation. The concept of collective security was born out of this dilemma and the United Nations (U.N.) was created as its foundation.

According to Article 1.1 of the Charter, the United Nations mandate was plain and clear: to maintain peace and security and “to bring about by peaceful means the adjustment or settlement of international disputes which might lead to a breach of the peace” (Cassese: 320). Henceforth, words were intended to replace bullets as the sole legal method for settling controversies at the international level. To be sure, under Article 51 of the Charter, there remained one exception to prohibiting the use of force: self-defense. Clearly, however, words should always be favored by international law and the use of bullets can only be considered under the strictest of circumstances. Ian Brownlie affirms “in the period of the United Nations Charter the use of force by individual states as a means of settling disputes is impermissible” (Brownlie: 671). Moreover, he adds, “peaceful settlement is the only available means” (ibid.). It is clear that in the spirit of the Charter, dialogue between nations should be fostered to avoid differences from escalating into controversies. If direct dialogue between nations fails to produce a favorable outcome, the United Nations system should provide countries with an adequate method for bringing about peaceful solutions to their controversies. The International Court of Justice (ICJ), also known as the World Court (or simply the Court), is a cornerstone of this new system. According to Mark Janis & John Noyes, “when the League and the Permanent Court of International Justice in their turn failed to arrest the onset of the Second World War, the new peace-makers in 1944-1945 established both the United Nations and a new judiciary institution, the International Court of Justice” (Janis & Noyes: 282).

Established by the Rome treaty, the International Court of Justice is the principal judiciary organ of the United Nations, with authority to settle legal disputes between states or to issue advisory opinions at the request of either the General Assembly or the Security Council. The Court, which replaced the Permanent Court of International Justice (PCIJ), consists of 15 judges (article 10.2 of the ICJ statute) elected, regardless of their nationality, by the general Assembly and the Security Council “from among persons of high moral character” (Article 2 of the ICJ statute). It is interesting to note that, in the Court elections, permanent members of the Security Council have no veto power. It suffices for a candidate to obtain eight out of fifteen Security Council member votes.

Due to its importance, the Statute of the ICJ merits careful consideration by scholars. Of particular relevance is Article 38 (1) of the ICJ, for it embodies and codifies the sources of international law. According to Ian Brownlie, “Article 38 is generally regarded as a complete statement of the sources of international law” (Brownlie: 5). Malcolm Shaw corroborates this view: “Article 38(1) of the Statute of the International Court of Justice is widely recognized as the most authoritative statement as to the sources of international law” (Shaw: 66). He adds categorically that “(…) there is no serious contention that the provision expresses the universal perception as to the enumeration of sources of international law” (Shaw: 67).
The aim of this paper is to discuss, in detail, all elements indicated in Article 38 (1) as sources of international law. This paper intends to demonstrate that contemporary international law can best be understood through careful analysis of the sources of international law as outlined in Article 38 (1).

Article 38 (1) of the International Court of Justice states:

“1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the consenting states;
b. international custom, as evidence of a general practice accepted as law;]
c. the general principles of law recognized by civilized nations;
d. subject to the provision of article 59, 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.”

There are controversies as to the hierarchical character of the listing of Article 38 (1). Brownlie reminds us “it is probably unwise to think in terms of hierarchy dictated by the order (a) to (d) in all cases” (ibid.). The structure of this paper however, is didactical only in purpose, and is not intended to corroborate the hierarchy view. Moreover, due to its scope, it is not the purpose of this paper to clarify such polemical issues, but rather to provide a detailed overview of the constituent elements of Article 38 (1). This paper will nevertheless argue that treaties and customs are clearly to be considered the two main sources of international law.

2- International conventions
International conventions, whether they are termed treaties or any other similar name, are regarded as one of, if not the most important source of international law. Mark Janis & John Noyes affirm that “partly because ‘international conventions’ are listed first in Article 38(1), the judges of the ICJ and other international lawyers have often given treaties pride of place among the sources of international law” (Janis & Noyes: 29). Furthermore, they stress “there are other reasons too for thinking of treaties as primary among rules of international law” (ibid.).
Consent lies at the heart of the modern international order established after the Peace of Westphalia ended the bloody thirty-year war between Catholics and Protestants in Europe and established “that there be an exact and reciprocal Equality amongst all the Electros, Princes and States of both Religions” (Janis & Noyes: 33). In fact, according to Janis & Noyes, “the modern intellectual constructs of both state sovereignty and international law emerged at the same time as the Thirty Years War” (Janis & Noyes: 35). Hence a fundamental principle in international law is the equality of sovereign states. In international law, no state is obliged, in principle, to be bound by rules imposed by other states without consenting to it. The Latin maxim par in paren non habet judicum has been widely regarded as an essential truth in international law since Emmer de Vattel wrote in his famous work Le droit des gens that “a dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom” (Cassese: 52).

For Professor Antonio Cassese, “legal equality implies that, formally speaking, no member of the international community can be placed at a disadvantage: all must be on the same footing” (ibid). In this community of equals, consent is the main source of obligations, although it is not possible to speak of “formal sources” of international law, as Brownlie cunningly notes. In this regard, Brownlie suggests that “as a substitute, and perhaps an equivalent, there is the principle that the general consent of states creates rules of general application” (Brownlie: 3). Although the scope of sovereignty has changed in recent times, fundamental equality of states was enshrined in the U.N. Charter and remains unchallenged. The implication of this principle is that no state is bound by rules imposed on it by other states without consenting to it. This is recognized in Article 34 of the 1969 Vienna Convention on the Law of Treaties: “a treaty does not create either obligations or rights for a third state without its consent”.

According to Professor Cassese, “from the beginning of the international community, States have evolved two principal methods for creating legally binding rules: treaties and custom. Both were admirably suited to the exigencies of their creators. Both responded to the need of not imposing obligations on States that did not wish to be bound by them.” (Cassese: 153). Furthermore, Cassese notes that “treaties in particular, being applicable to the contracting parties only, perfectly reflected the individualism prevailing in the international community” (ibid.).
Presently the 1969 Vienna Convention on the Law of Treaties regulates the main features of international treaties and has codified traditional rules on the issue. Malcolm Shaw asserts, “the 1969 Vienna Convention on the law of treaties partly reflects customary law and constitutes the basic framework for any discussion on the nature and characteristics of treaties” (Shaw: 811). Article 2 of the convention defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation” (ibid.).

Based on the notion that consent of states creates rules, the principle pact sunt servanda is widely regarded as one of the most important principles of international law and has been enshrined in Article 26 of the Convention on The Law of Treaties. Article 26 states: “Pacta sunt servanda – every treaty is binding upon the parties to it and must be performed by them in good faith” (Janis & Noyes: 934). Shaw affirms “the fundamental principle of treaty law is undoubtedly the proposition that treaties are binding upon the parties to them and must be performed in good faith” (Shaw: 811). In his opinion, pact sunt servanda “is arguably the oldest principle of international law” (Shaw: 812).

The Statute of the International Court of Justice incorporated this principle in its Article 38 (1), where it mentions that the “Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by contesting states”. Treaties, or international conventions, are listed as a primary source of international law and the Court recognizes the principle that no state shall be bound by rules without expressly recognizing them. It is beyond controversy that treaties are the main sources of legal obligations at the international level and the International Court of Justice has repeatedly sustained this view.

3- Custom
Article 38.1(b) defines custom as “evidence of a general practice accepted as law”. The question begging clarification is: what constitutes evidence of a general practice accepted as law? Commentators have pointed out to two elements that are essential to the fulfillment of the prerequisites of the abovementioned definition of custom: state practice (objective element) and the corresponding view of states (opinio juris or opinio necessitatis, subjective element) (Cassese: 157). According to Shaw, “opinio juris, or the belief that a state activity is legally obligatory, is the factor which turns the usage into a custom and renders it part of the rules of international law” (Shaw: 80). The Permanent Court of International Justice laid down the elements that must be present in opinio juris in the Lotus case. In this famous case, in which a French and a Turkish ship collided, the French argued that it was a customary rule of international law that the flag state of the accused ship had exclusive jurisdiction to try alleged crimes committed on board it. The Permanent Court of International Justice refused this approach and asserted that “even if such a practice of abstention from instituting criminal proceedings could be proved in fact, it would not amount to a custom” (Shaw: 81). For Brownlie, the Lotus case demonstrated that the “Court was not ready to accept continuous conducts as prima facie evidence of a legal duty and required a high standard of proof of the issues of opinio juris” (Brownlie: 9). Regarding the Lotus case, Janis and Noyes affirm that the “judgment in Lotus has become one of the most usually cited positivist opinions about the nature of international law, because it argued in part III that the ‘rules of law binding upon states therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of international law’” (Janis & Noyes: 115).

The North Sea Continental Shelf case and, subsequently, the Nicaragua case confirmed and validated this approach. Brownlie argues that in “the North Sea Continental Shelf case the International Court was also strict in requiring proof of the opinio juris” (Brownlie: 9). It is interesting to note that the Court expressly referred to the North Sea Continental Shelf when it judged the Nicaragua case. In its judgment, the Court stated, “for a new customary rule to be formed, not only must the acts concerned ‘amount to state practice’, but they must be accompanied by the opinio juris sive necessitatis” (Brownlie: 10). The Court stressed, furthermore, “the need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis” (Brownlie: 10). Regarding opinio juris, Janis and Noyes remind that “(…) in positivist theory, it is said that customary international law is based on state practice and opinio juris, the belief that states act in a certain way because legally bound to do so”.

Cassese notes that “what matters is that the two aforementioned elements be present, namely the subjective element (the conviction that a new standard of behavior is necessary, or is already binding) and the objective element (that is, a well-settled State practice)” (Cassese: 158). The International Court of Justice provided, in the North Sea Continental Shelf case, a widely accepted definition of state practice, asserting that state practice should be both extensive and virtually uniform. It is important, however, to perceive the subtlety of the statement: State practice should be virtually uniform, not totally uniform. In fact, according to Cassese, “it need not be absolutely uniform”, a view also held by the Court in Nicaragua (merits). Brownlie corroborates this view. For him, “complete uniformity is not required, but substantial uniformity is” (Brownlie: 7). He reminds that in the fisheries case, the ICJ refused to accept a customary rule of ten-mile for bays on the grounds that such substantial uniformity could not be demonstrated. Brownlie also mentions the Asylum case, where the Court stated that state practice presupposes a constant and uniform usage by states in question. Moreover, Cassese affirms that “at present, when they gradually crystallize in the world community, customary rules do not need to be supported or consented to by all State” (Cassese: 162).

It is clear therefore, that universality of state practice is not required. However, determining “abstention from protest by a substantial number of states in face of a practice followed by some others” (Bronwlie: 8) remains a difficult issue. This difficulty has led Professor Cassese to assert that “after the Second World War custom increasingly lost ground in two respects: existing customary rules were eroded more and more by fresh practices, and resort to custom to regulate new matters became relatively rare” (Cassese: 165). For him, one of the reasons behind this demotion of custom is that it has “become extremely difficult for general rules to receive the support of the bulk of such a large number of very diverse States” (ibid.).

Besides opinio juris et necessitatis, Ian Brownlie lists three other constitutive elements of custom: duration, uniformity or consistency of the practice and generality of the practice. Regarding duration, he notes that “provided the consistency and generality of a practice are proved, no particular duration is required” (Brownlie: 7). With reference to uniformity or the consistency of the practice, Brownlie stresses that what is required is substantial uniformity, as discussed earlier. In terms of generality of the practice, Brownlie argues that, although universality of the practice is not required, “the real problem is to determine the value of abstention from protest by a substantial number of states in face of practice followed by some others” (Brownlie: 7-8).

As for evidence of custom, Brownlie identifies: “diplomatic correspondence, policy statements, press releases, the opinion of official legal advisers, officials manuals on legal questions, e.g. manuals of military law, executive decisions and practices, orders to naval forces etc., comments by governments on drafts produced by the International Law commission, state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties of the same form, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly”(Brownlie: 6).
In spite of all the subtleties involved in determining custom, the fact is that custom constitutes an important source of international law. The International Court of Justice has resorted to custom on several occasions (Paquete Habana, Asylum, Lotus, Fisheries, North Continental Shelf, etc.) and publicists tend to agree on the importance of custom as one of the main sources of international law, together with treaties.

4- General Principles of Law
Article 38(1) of the Statute of the International Court of Justice also refers to “the general principles of law recognized by civilized nations”. Besides treaties and custom, general principles of law are also considered sources of obligations at the international level. It is important to note, however, that since this concept is highly subjective, its approval by the Statute of the Court has been the subject of much controversy. States were unwilling to give in to a concept that many perceived as a potential threat to their legitimate interests. On the other hand, publicists pointed out the fact that treaties and custom do not always suffice in settling international disputes. Due to the scope of international relations, contentious issues whose nature is so complex that their judicial solutions cannot be accomplished with the assistance of treaties or customs alone, often arise. According to Cassese, “Courts adjudicating disputes between States, faced with cases where no treaty or customary law regulated the matter submitted to arbitration, felt it necessary to have recourse to some general principles common to the domestic legal systems of most countries” (Cassese: 190). Shaw, corroborating Cassese’s view, remarks, “in any system of law, a situation may very well arise where the court in considering a case before it realizes that there is no law covering exactly that point (…)” (Shaw: 92).

It is clear, therefore, that the Statute of the ICJ did not intend to place general principles of law on the same footing as treaties and custom, but rather as an auxiliary means to adjudicating international disputes in cases where provisions of treaties or custom are not be sufficient. As Cassese notes, the general principles of law “simply enunciated principles that had very general purport and which indisputably were common to all major Western legal systems” (Cassese: 190). In this regard, Brownlie remarks that “(…) the Court has used this source sparingly, and it normally appears, without any formal reference or label, as a part of judicial reasoning” (Brownlie: 17).

Referring to the general principles of law recognized by civilized nations, Brownlie notes that in “the committee of jurists which prepared the Statute there was no very definite consensus on the precise significance of the phrase” (Brownlie: 16). It is an important fact that Article 38(3) of the Permanent Court of International Justice, which was to be the basis for formulating general principles of law of the Court, also raised controversy. Article 38(3) of the Permanent Court of International Justice, drafted in 1921 by an advisory Committee of Jurists made up of ten members, proposed that the PCIJ should apply, in addition to treaties and custom, “rules of international law as recognized by the legal conscience of civilized nations” (Cassese: 190). There was no unanimity in the Committee, composed of eight jurists form the West, one Brazilian and one Japanese. Nevertheless, the concept was incorporated in the Statute of the Permanent Court of International Justice and its unopposed usage gave it a certain status as a customary rule. This understanding was essential for the incorporation of Article 38(3) of the Permanent Court of International Justice into Article 38(1) of the International Court of Justice as we have it today.
It is clear, however, that the very nature of its definition was a contentious issue and, in this regard, Shaw notes, “there are various opinions as to what the general principles of law concept is intended to refer” (Shaw: 93). In his opinion, some writers regard the general principles of law concept as an affirmation of Natural Law. Others, however, treat it as a “sub-heading under treaty and customary law and incapable of adding anything new to international law unless it reflects the consent of states” (Shaw: 94). Despite the controversial character of the concept, Shaw concedes that “between these two approaches, most writers are prepared to accept that the general principles do constitute a separate source of law but of fairly limited scope, and this is reflected in the decisions of the permanent Court of International Justice and the International Court of Justice” (Shaw: 94). It is clear that the concept has been incorporated in article 38 (1) of the Statute and has been applied by the International Court of Justice, albeit sparingly. In view of the above, Cassese wonders if the concept “has withered away” since it is “so rarely invoked by the community of nations.” (Cassese: 193). The Italian Professor goes so far as to affirm that the concept has remained “dormant” (ibid.). He is dismissive of concerns, noting that “as soon as it has appeared that new areas of international law contained conspicuous gaps, the rule in question and the source it envisages have been revitalized” (Cassese: 193).

A commonly quoted general principle of law used by the Court states that breaches that incur losses in any legal obligation constitute a duty to make reparations. For Brownlie, “perhaps the most frequent and successful use of domestic law analogies has been in the field of evidence, procedure, and jurisdictional questions” (Brownlie: 18). Shaw seems to agreewhen he states, “the most fertile fields (…) for the implementation of municipal law analogies have been those of procedure, evidence and the machinery of the judicial process” (Shaw: 95). Moreover, Brownlie notes that in the Chorzow Factory case the “Court observes that it is a principle of international law and even a general conception of law, that any breach of an engagement involves an obligation to make reparation” (Brownlie: 17). He also mentions that “there has been reference to the rule that no one can be judged in his own suit” (Brownlie: 18).

The conclusion drawn from these examples is that even though general principles of law cannot be placed on the same footing as treaties and custom, they nevertheless constitute an important source of international law, especially in cases where there are evident gaps that need to be filled.

5- Judicial decisions and the publishing of publicists
According to Article 38 (1) of the Statute of the International Court of Justice, the function of the Court is to make decisions regarding disputes submitted to it according to international law, and 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 subject to the provision of Article 59. Article 59 states that “the decision of the Court has no binding force except between the parties and in respect of that particular case” (Janis & Noyes: 918). Clearly, judicial decisions and the teachings of the most qualified publicists are only subsidiary sources of international law, and the provision of Article 59 explicitly limits its use by the International Court of Justice. In fact, Brownlie notes that “judicial decisions are not strictly speaking a formal source” (Brownlie: 19). Their usage is very limited and, according to Brownlie, the “Court has referred to particular decisions on only five occasions” (ibid.).
Nevertheless, Shaw affirms that although judicial decisions are, “in the words of article 38 to be utilized as a subsidiary means for the determination of rules of law rather than as an actual source of law, judicial decisions can be of immense importance” (Shaw: 103). Cases such as Anglo-Norwegian Fisheries, Reparations, Nottebohn and Lotus are good examples of the importance of this subsidiary source of international law. Cassese is of the opinion that “given the rudimentary character of international law, and the lack of both a central lawmaking body and a central judicial institution endowed with compulsory jurisdiction, in practice many decisions of the most authoritative courts (in particular the ICJ) are bound to have crucial importance in establishing the existence of customary rules, or in defining their scope and content, or in promoting the evolution of new concepts” (Cassese: 195).

Judicial decisions encompass, of course, decisions of international tribunals, but may also include decisions of the Court of Justice of the European Communities; decisions of national courts; ad hoc international tribunals; municipal courts and disputes between parts of composite states; and pleadings in cases before international courts. The Alabama case between the United States and Great Britain, in which principles of neutrality were established, and the Island of Palmas case (United States v. The Netherlands), in which the notion of territorial sovereignty was set out, are two often quoted examples of judicial decisions that served as sources of international law and were utilized by many international tribunals.

6- Conclusion
It has been argued throughout this paper that contemporary international law can best be understood with a careful analysis of the sources of international law as outlined in Article 38 (1). In fact, Article 38 (1), when analyzed carefully, presents precious indications of the very nature of the discussion surrounding the choice of legal sources to be accepted by the international community as sources of international law. Since there is currently no higher authority than states in the international community, Article 38 (1) can be properly understood as an expression of consent among the vast majority of states and represents, therefore, probably the highest source of international law recognized by the community of states as legitimate. After a thorough review of article 38 (1), it is evident that in the present international system, states have tried to preserve as much freedom of action as they could. In fact, consent and sovereignty are the two main pillars of existing international world order as it is today. To be sure, new developments in latter times, such as the emergence of community rights or Jus Cogen, have impinged on the absolute validity of these two fundamental principles. Nevertheless, international law remains quite state-centric and sovereignty of states, as established after the Peace of Westphalia, remains the major feature of present international order. Article 38 (1) reflects international legal order today exactly. Its merits and its limitations are the very expressions of the realities of the present international scenario. As new challenges are presented to the international community, Article 38 (1) will be required to adjust accordingly. To date, nevertheless, and as has been argued throughout this paper, Article 38 (1) can be correctly regarded as the most authoritative listing of the sources of international law.
Whether contemporary international disputes are settled by words or by bullets, Article 38 (1) provides the guidelines for their legal settlement. Article 38 (1) is clear in positioning consent of states and custom as the two most authoritative sources of international law, and both treaty practice and custom have outlawed war as a legitimate feature of the international life. Therefore, Article 38 (1) can be understood as a powerful supporter of the peaceful settlement of disputes. Words, not bullets, are the quintessential elements that constitute the practice widely accepted by states in treaties and customs valid in the 21st century.

7- Bibliography
1. Brownlie, I. (2003), Principles of Public International Law (USA: Oxford University Press).
2. Cassese, A. (2005), International Law (USA: Oxford University Press).
3. Hurrel, A. (2005), ‘Power, Institutions and the Production of Inequality’, in Barnet, M. and Duvall, R. Power in Global Governance (Cambridge: Cambridge University Press).
4. Janis, M. and Noyes, J. (2004), International Law, Cases and Commentary (USA: Custom Publishing).
5. Shaw, M. (2003), International Law (England: Cambridge University Press).

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