Legitimacy, Foundations and Sources in International Law
1.4 Sources: article 38 of the statute of the ICJ
In 1920, the Permanent Court of International Justice (PCIJ) was estab- lished under the auspices of the League of Nations. Article 38 of its Statute, materially reproduced in the statutes of the future International Court of Justice (ICJ), provided that while appreciating the cases brought to its ruling, it would apply treaties, international customs and the general principles of law recognized by civilized nations, together with judicial de- cisions and the teachings of the most qualified publicists of the various na- tions as subsidiary means for the determination of the rule of law.
Despite aiming to guide the works of the mentioned tribunals – and, thus, having a functional purpose - article 38 has always been regarded as a typology of formal sources of international law.107The origin of the theo- ry of formal sources of international law is attributed to positivism, which separated Law (formal source) from its ethical or moral background (mate- rial source), and, thus, isolated law from politics, enabling its systematic analysis of the juridical phenomena.108
Article 38 was not the first attempt to establish the formal sources of in- ternational law. The Hague Convention of 1907 included a section (XII) aimed at the creation of an International Prize Court, the only section that did not enter into force. In its article 7, it established that:
‘If a question of law to be decided is covered by a treaty in force between the belligerent captor and a Power which is itself or whose subject or citizen is a party to the proceedings, the Court is gov- erned by the provisions in the said treaty. In the absence of such provisions, the Court shall apply the rules of international law. If no generally recognized rule exists, the Court shall give judgment in accordance with the general principles of justice and equity.’109
As one can observe, it tried to establish a hierarchy in the formal sources, commencing with written consented rules, followed by non-written con- sented rules and closing with the general principles of law and equity, where the tribunal could only apply the posterior source in the case of ab- sence of the anterior one. Thirteen years later, when the statute of the Permanent Court of International Justice was established, this hierarchy was no longer mentioned. This circumstance caused some controversy regarding the legal doctrine.
Some scholars supported that the tribunal should follow the order pre- scribed in article 38, because it represented a modulation of the consent of the States.110 Other authors supported that this hierarchy did not exist and the tribunal was free to use the sources to the best of its understanding, although, in practice, priority would be given to the treaties since they represented a formal consent on a certain object, and, in sequence, the
custom, because the existence of these rules created no need to appeal to the general principles of law.111 Another group, relying on the analysis of the jurisprudence of the tribunal,112 argued that all sources could be used together without preclusion in the case of application of one of them, and that treaties could not be regarded as the most important source, due to the jus cogensestablished in article 43 of the Vienna Convention on the Law of Treaties113 that prescribed that the invalidity, termination or denuncia- tion of a treaty, should not in any way impair the duty of any State to ful- fill any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.114
Another aspect that deserves attention is the fact that the text of article 38 cannot be regarded as the ultimate definition of the formal sources of international law, because it was conceived almost a century ago, when the international society had far fewer States, was more homogeneous and could not imagine the existence of intergovernmental organizations regulat- ing virtually all aspects of life. Some authors have pointed out that it disre- garded the existence of other formal sources of international law, such as the unilateral declarations of the States and the resolutions of intergovern- mental organizations.115 There are elements of truth in these remarks, as we will study in Chapter 4.
Notwithstanding any criticism on the comprehensiveness of article 38, we have decided to adopt it as guidance for the appraisal of the situation of NGOs in international law in the forthcoming chapters, with only one discreet difference: we have decided to re-ordinate them, starting our ap- praisal with treaties and judicial decisions, due to their greater empirical support, following with custom, general principles of law and international legal doctrine, which we regarded as more analytical.
Notes
1 The idea of international law as a system of mandatory and permissive rules estab- lished to preserve peace can be observed in the writings of Hersch Lauterpacht. See H Lauterpacht,The Functions of Law in the International Community(Oxford 1933). 2 See theSerbian Loanscase PCIJ Rep Series A No 14.
3 Treaty concerning the hydroelectric utilization of the water resources of the Parana River owned in condominium by the two countries, from and including the Salto Grande de Sete Quedas or Salto del Guaira, to the mouth of the Iguassu River (adopted 26 April 1973, entered into force 13 August 1973) UNTS 923.
4 Treaty on principles governing the activities of States in the exploration and use of outer space, including the Moon and other celestial bodies (adopted 27 January 1967, entered into force 10 October 1967) UNTS 188. In the case of this specific treaty, it is worthy of note that an NGO, the International Astronautical Federation, carried out important work concerning legal and practical problems of outer space, providing va- luable support towards defining the terms of the treaty.
5 M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960(CUP, 2001) 71.
6 Union of International Organizations, Yearbook of International Organizations
(Report) (Brussels 2002).
7 T Franck,The Power of Legitimacy among Nations(OUP, 1990) 24.
8 A Boyle and C Chinkin,The Making of International Law(OUP, New York 2007) 24. 9 H Kelsen,Principles of International Law(Lawbook Exchange, Clark, 2003) 104 10 U.S. Declaration of Independence, preamble.
11 JM Coicaud and V Heiskanen, The Legitimacy of International Organizations (UN University Press, Tokyo, 2001) 4.
12 The creation is observed in several declarations of independence and their reorgani- zation, in the also often common approval of new constitutions. The extinction, quite rare, may be observed in the case in the German Democratic Republic, an inde- pendent state since 1949 that disappeared in 1990, when its provinces were incorpo- rated in the Federal Republic of Germany.
13 We have been observing an increasingly direct participation of citizens in the estab- lishment of transnational rules, being relevant to quote, in this regard, the experience of the European Union with the national referenda to the EU Constitution, where French and Dutch citizens could act to blockade an international agreement made by their governments. It is, in our opinion, an outstanding example of the submission of the State and of international agreements not to the States’ will but to that of the citizens.
14 T Franck,The Power of Legitimacy(n 7) 5.
15 H Charlesworth and JM Coicaud, Fault Lines of International Legitimacy (CUP, Cambridge, 2010) 1.
16 I Clark,Legitimacy in International Society(OUP, Oxford, 2007) 11.
17 J Brune´e and SJ Toope,Legitimacy and Legality in International Law(CUP, 2010) 3. 18 A Boyle and C Chinkin,The Making of International Law(n 8) 29.
19 PE Corbett (tr) C de Visscher,Theory and Reality in Public International Law(2ndedn,
PUP Princeton 1957) 147.
20 R Higgins, Problems and Process: International Law and How We Use It, (OUP, Oxford 1994) 16.
21 L Fuller,The Morality of Law(YUP, 1969) 96-7 (‘What I have called the internal mor- ality of law is … a procedural version of natural law,,, [it is] concerned, not with sub- stantive aims of legal rules, but with the ways in which a system of rules for govern- ing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be’). Quoted in J Brunee´ and SJ Toope,Legitimacy and Legality(n 17) 29.
22 J Brunee´ and SJ Toope,Legitimacy and Legality(n 17) 35.
23 See, for example,Al-Bihani v. Obama, in 49 ILM 265 (2010) in which the DC Court of Appeal disregarded international laws of war as a limit on the presidential author- ity under the 2001 Congressional Authorization of Use of Force in a petition pre- sented by a cook – a material supporter of Taliban - detained in Guantanamo. 24 A Buchanan,Justice, Legitimacy and self-Determination(OUP, Oxford, 2004) 473. 25 J Brunee´ and SJ Toope,Legitimacy and Legality(n 17) 36, 45, 52-55.
26 T Franck,The Power of Legitimacy(n 7) 3, 25. 27 T Franck,The Power of Legitimacy(n 7) 49. 28 T Franck,The Power of Legitimacy(n 7) 61. 29 T Franck,The Power of Legitimacy(n 7) 101. 30 T Franck,The Power of Legitimacy(n 7) 142. 31 T Franck,The Power of Legitimacy(n 7) 184.
33 G Jellinek,Teoria General del Estado(Continental, Mexico 1958). 34 (Adopted 23 May 1969, entered into force 27 January 1980) UNTS 1155. 35 T Franck,The Power of Legitimacy(n 7) 188.
36 T Franck,The Emerging Right to Democratic Governance(1992) AJIL v 86, 50. 37 (adopted 16 December 1966, entered into force 23 March 1976) UNTS 999. 38 H Kelsen,Principles of International Law(n 9) 108
39 J Bodin,De la République (Elibron, Paris 2005) 17. See, also, JH Franklin (ed)On Sovereignty: four chapters from six books of the Commonwealth / Jean Bodin
(Cambridge Texts in the History of Political Thought, CUP, Cambridge 1992), D Carreau,Droit International(7thedn Pedone, Paris 2001) 15, MN Shaw,International
Law(5thedn CUP, Cambridge 2003) 21.
40 D Carreau,Droit International(n 39) 15.
41 J Bodin (n 39) 282. See, also, Thomas Aquinas,Summa Theologica, I-II, q.96 a. 5: “Hence, in the judgment of God, the sovereign is not exempt from the law, as to its directive force; but he should fulfill it to his own free-will and not of constraint. Again the sovereign is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place.”
42 Lex Ripuaria, tit. 58, c. 1: ‘Episcopus archidiaconum jubeat, ut ei tabulas secundum legem romanam, qua ecclesia vivit, scribere faciat’.
43 D Carreau,Droit International(n 39) 14.
44 S Hall, ‘The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism’ (2001) EJIL, v 12 n 12, 269-307.
45 Summa Theologica,I-II, q. 91 a. 2. 46 Summa Theologica,I-II, q. 95 a. 2. 47 Summa Theologica,I-II, q. 96 a. 4. 48 Summa Theologica,I-II, q. 96 a. 4. 49 S Hall,The Persistent Spectre (n 44).
50 Aquinas ideas are observed, for instance, on Grotius works.
51 De Postestate Civili Spanish edn <http://metalibri.incubadora.fapesp.br/portal/ authors/DePotestateCivili>accessed 01 November 2008.
52 A remarkable statement coming from a Spanish Catholic priest, if we consider that Pope Alexander VI had assumed the theory that the Pope was the lord paramount of the world in order to divide the New World between Portugal and Spain in 1493 in the bullInter Caetera, giving legitimacy to the Treaty of Tordesillas between those countries in 1494.
53 De Indis et de Jure Belli english edn < http://en.wikisource.org/wiki/ De_Indis_De_Jure_Belli>accessed 1 November 2008.
54 ‘Asi, pues, habiendo sido constiutidas las sociedades humanas para este fin, a saber, para ayudarmos los unos a los otros y al ser entre todas las sociedades la sociedad ci- vil aquella em la que ma´s co´modamente atienden los hombres a suas necesidades, si- guese que la comunidad es uma naturalı´sima comunicacio´n conformı´sma a la natur- aleza...’De Potestate Civili item 4.
55 Convention on access to information, public participation in decision-making and access to justice in environmental matters (adopted 25 June 1998, entered into force 30 October 2001) UNTS 2161.
56 This work was provisionally entitledDe Indis (On the Indies)and was first published in the late 19thcentury under the titleDe Jure Praedae(On the Law of SpoilsorOn
the Right of Capture).
57 H Grotius,The Free Sea (Natural Law and Enlightenment Classics, Liberty Fund, Indianapolis 2004) 6.
59 H Grotius,The Rights of War and Peace(Natural Law and Enlightenment Classics, Liberty Fund, Indianapolis 2005) 433-434.
60 H Grotius,The Rights of War and Peace,Chapter 2, § 7, 435-437. 61 H Grotius,The Rights of War and Peace,Prolegomena VI, 79-81. 62 H Grotius,The Rights of War and Peace,Prolegomena XI, 89. 63 H Grotius,The Rights of War and Peace,Prolegomena VIII, 85-86.
64 H Lauterpacht, ‘The Grotian Tradition of International Law’, inInternational Law: Collected Papers(CUP, Cambridge 1975) v 2, 307.
65 A Nussbaum,A concise history of the Law of the Nations(Macmillan, New York 1962) 109.
66 H Grotius,The Rights of War and Peace,Book 3, Chapter XXV § 2.
67 Excerpt from the Will of Alfred Nobel < http://nobelprize.org/alfred_nobel/will/ short_testamente.html>accessed on 03 November 2008.
68 P Cohen, ‘Nobel committee expands definition of “peace”’ International Herald Tribune(New York 14 October 2007) < http://www.iht.com/articles/2007/10/14/eur- ope/nobel.php>accessed 05 November 2008.
69 H Grotius,The Rights of War and Peace,Chapter 2, § 1, 420. 70 H Grotius,The Rights of War and Peace,Chapter 2, § 3, 428.
71 RJ Vincent, ‘Grotius, Human Rights and Intervention’ in H Bull, B Kingsbury and A Roberts,Hugo Grotius and International Relations(OUP, Oxford 2002) 241.
72 Constitution of the World Health Organization (adopted 22 July 1946, entered into force 7 April 1948) UNTS 14.
73 H Grotius,The Rights of War and Peace,Chapter 2, § 11, 438.
74 Brief information regarding this issue can be seen at a recent UN Chronicle Online < http://www.un.org/Pubs/chronicle/2003/issue2/0203p13.html> accessed on 5 November 2008.
75 H Grotius,The Rights of War and Peace,Chapter 1 § 3, 136-137.
76 Annex to the Marrakesh Agreement establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) UNTS 1867.
77 L Ciccio, ‘Patenting drugs from 1st January 2005: implications and problems’ in HPDJ 2 (2) 136, 137 < https://tspace.library.utoronto.ca/bitstream/1807/6054/1/ hp04028.pdf>accessed on 7 November 2008.
78 See,e.g., World Trade Organization, TRIPS and pharmaceutical patents: fact sheet
< http://www.wto.org/english/tratop_e/trips_e/factsheet_pharm00_e.htm> accessed on 7 November 2008.
79 See also World Health Organization. Globalization, TRIPS and Access to Pharmaceuticals,Geneva: WHO, 2001 (WHO Policy Perspectives on Medicines n3) (WHO/EDM/2001.2)
80 RJ Vincent,Grotius, Human Rights and Intervention(n 71) 242.
81 H Grotius,The Rights of War and Peace,Prolegomena XVIII, 94. See also MN Shaw,
International Law(n 39) 24; A Nussbaum,A concise history of the Law of the Nations
(n 65) 148; CD Albuquerque Mello,Curso de Direito Internacional Publico(8th edn, Freitas Bastos, Rio de Janeiro 1986).
82 S Pufendorf,On the Duty of Man and Citizen(1675) Book II, Chapter V, 2, English edn < http://www.constitution.org/puf/puf-dut.htm>accessed on 7 November 2008. 83 S Pufendorf,On the Duty of Man and Citizen,Book II, Chapter V, 7.
84 S Pufendorf,On the Duty of Man and Citizen,Book II, Chapter I, 11. 85 S Pufendorf,On the Duty of Man and Citizen, Book II, Chapter VI, 10. 86 S Pufendorf,On the Duty of Man and Citizen, Book II, Chapter VI, 7. 87 S Hall,The Persistent Spectre(n 44).
88 T Hobbes,Leviathan,(1651) Chapter XIII. 89 T Hobbes,Leviathan,Chapter XIV.
90 Aristotle,The Politics,I, ii. 91 T Hobbes,Leviathan,Chapter XV.
92 S Pufendorf,De Jure naturae et gentium libri octo.Also Hall,The Persistent Spectre (n 42).
93 J Israel, Introductionto B Spinoza,Theological-Political Treatise (CUP, Cambridge, 2007) ix, xxviii.
94 B Spinoza,Theological-Political Treatise(CUP, Cambridge, 2007) Chapter 16 [2] and [4].
95 B Spinoza,Theological-Political TreatiseChapter 16 [5]. 96 B Spinoza,Theological-Political TreatiseChapter 16 [8].
97 GFW Hegel,Elements of the Philosophy of Right(CUP, Cambridge 1991).
98 S Hall,The Persistent Spectre(n 44) 273; D Carreau,Droit International(n 39) 19; MN Shaw,International Law(n 39) 26; A Nussbaum,A concise history of the Law of the Nations(n 65) 199.
99 MN Shaw,International Law(n 39) 28.
100 The idea of cooperation among the States is observed in Vitoria and was later re- sumed by Abee Saint Pierre in his work Projet pour rendre le paix perpetuelle en Europe(1713), which tried to eternalize the Treaty of Utrecht to avoid war, and also by Kant in his bookToward Perpetual Peace(1795).
101 14 states were from Europe, 12 from the Americas, 3 from Asia and just 1 from Africa.
102 According to the US National Intelligence Council, by 2025, nation-states will no longer be the only—and often not the most important—actors on the world stage and the “international system” will have morphed to accommodate the new reality, due to the growth of the relative power of various non-state actors. Additionally, there will be multi-polarity without multilateralism and the US will no longer be hegemo- nic, although it will remain the strongest player. See in this regard, US National Intelligence Council, ‘Global Trends 2025 – A Transformed World’ (Report) < http:// www.dni.gov/nic/PDF_2025/2025_Global_Trends_Final_Report.pdf> accessed 21 November 2008.
103 JR O’Shea (tr), T Judt, Postwar: A History of Europe since 1945(Objetiva, Rio de Janeiro 2008) 18
104 JR O’Shea (tr), T Judt,Postwar: A History of Europe since 1945,(n 103) 20.In a cer- tain way, a Hobbesian-like social contract, in which European citizens transfer their power to the sovereign, located in Brussels.
105 MN ShawInternational Law(n 39) 232; P Daillier and A Pellet,Droit International Public(7thedn LGDJ, Paris 2002) 650.
106 PM Dupuy, Droit International Publique (6th edn, Paris, Dalloz) 251; MN Shaw,
International Law,(n 39) 67; CD Albuquerque Mello,Curso de Direito Internacional Publico(n 81) 157; GFS Soares, Curso de Direito Internacional Publico (Atlas, Sa˜o Paulo, 2002) 55.
107 PM Dupuy,Droit International Publique(n 106),251; P Daillier and A Pellett,Droit International Public,(n 105) 111-112.
108 Available at < http://humanrights.law.monash.edu.au/instree/1907k.htm> accessed on November 21, 2008.
109 PM Dupuy,Droit International Publique(n 106) 252.
110 CD Albuquerque Mello,Curso de Direito Internacional Publico,(n 81) 157.
111 Military and Paramilitary Activities in and against Nicaragua(Nicaragua v United States of America)(Judge Ni separate opinion) [1996] ICJ Rep 207.
112 (Adopted 23 May 1969, entered into force 27 January 1980) UNTS 1155. 113 GFS Soares,Curso de Direito Internacional Publico(n 106) 55.
114 GFS Soares,Curso de Direito Internacional Publico, (n 106) 56; D Carreau,Droit International,(n 39) 108; A Boyle and C Chinkin,The Making of International Law(n 8) VI.