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Published online by Cambridge University Press: 09 March 2016
The midwives of international law, Gentili, Grotius, Vitoria, Suarez, Pufendorf, and Wolff, found the principles of this law in the law of nature. This, in turn, was derived by some of them from the law of God and by others from the law of reason. But, as the law of nations grew and its content developed, its derivation was established, particularly with Vattel in the middle of the eighteenth century, from the will of states rather than from the law of nature. Today’s international lawyer simply inherits the principle of identification whereby international-law rules of general application are created by international custom. (This custom is produced by that kind of practice of states relating to a matter of international relations which is concordant and general and is accompanied by the conviction of states that it is obligatory under international law.) The application of this principle of identification, however, is not so simple because of the appearance of three new situations.
1 The following table, taken from Sinha, S. P., New Nations and the Law of Nations 25 (1967)Google Scholar, demonstrates this fact:
2 This notion is evident in contemporary practice. For example, King Robert of Sicily invoked pandects and codex no less than twenty times in his instructions to his legates to the Pope in 1319. See Guggenheim, P., “The Birth of Autonomous International Law,” in Jenks, C. W., et al., International Law in a Changing World 84 (1963).Google Scholar
5 Ibid., 84.
4 Bentham, J., An Introduction to the Principles of Morals and Legislation (1789)Google Scholar. The term international law appears in his introduction to this book.
5 St. Augustine, writing in the fourth century, maintained that law eternal or the law of nature took precedence over temporal and secular law. St. Isidore, the Bishop of Seville in the sixth century, declared in the fifth book of his Etymologies that the origin of the law of nature lay in the natural instincts of man and not in any legislative system of the humans.
6 This was contended, for example, by St. Isidore in the sixth century, Gratian’s decree published about 1140, St. Thomas Aquinas in the thirteenth century, and various other writers of the late thirteenth century.
7 Grotius elaborated this concept three centuries later when he maintained that the application of the law of nations was not limited to Christendom alone. Grotius, H., Mare Liberum (1609), 11 (Classics of International Law, 1916).Google Scholar
8 de Vitoria, F., De Indis et De Iure Belli Relectiones (1557) (ed. Nys, E., 1917)Google Scholar. This, like most of his works, was published after Vitoria’s lifetime.
9 Suarez, F., De Legibus, ac Deo Legislatore (1612)Google Scholar, ch. XIX, ss. 1, 2 (Classics of International Law, 1944).
10 Grotius, H., De Jure Belli ac Pads Tres (1625)Google Scholar, Prolegomena (corresponding to ss. 40 and 41 of the translation by F. W. Kelsey), ch. I, s. XIV (Classics of International Law, 1913).
11 Wolff, C., Institutiones Juris Naturae et Gentium, in Quibus Ex Ipsa Horn-inus Natura Continuo Nexu Omnes Obligationes et Jura Omnia Deducuntur, ch. 11, 12 ff. (1754).Google Scholar
12 de Vattel, E., Le droit des gens; ou, Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains (1758)Google Scholar, Preliminaries, ss. 26, 27 (Classics of International Law, 1916).
13 Von Gierke, O. F., Die Grundbegriffe des Staatsrechts und die neuesten Staatsrechtstheorien, Unveränderter Abdruck Zeitschrift für die gesamte Staatswissenschaft (1915).Google Scholar
14 Friedmann, W., The Changing Structure of International Law 76 (1964).Google Scholar
15 Treaty also creates binding rules, but only for the parties thereto. Whether bilateral or multilateral, it does not bind states not party to it. It is custom which creates rules of general application. Of course, treaties may facilitate the creation of a customary rule when the same provisions are adopted by different sets of states in a regular succession. Such a treaty pattern may generate a general norm. But it acquires the authority of general international law not from the treaties themselves but from the practice of states which the treaties prompted and evidenced. See Waldock, H., “General Course on Public International Law,” 106 Recueil des Cours, Tome 1, at 40–41 (1962).Google Scholar
16 Gouet, Y., La Coutume en Droit Constitutionnel Interne et en Droit Constitutional International 57 (1932)Google Scholar; Gianni, G., La Coutume en Droit International 168 (1931).Google Scholar
17 Guggenheim, P., “Les deux éléments de la coutume en droit international,” in La Technique et les Principes du Droit Public. Etudes en L’Honneur de Georges Scelle, Vol 1, at 275, 281 (1950)Google Scholar; Basdevant, J., “Règles générales du droit de la Paix,” 58 Recueil des Cours 471, 534-35 (1936)Google Scholar; Hubert, S., Prawo Narodów, Cz. I: Ewolucja, Cz. II: Zasady Ogôlne [The Law of Nations, Vol. 1: Evolution, Vol. II: General Principles], Vol. II, at 4-5 (1949)Google Scholar: Sorensen, M., Les Sources du Droit International, 3 (1946)Google Scholar; Wolfke, K., Custom in Present International Law 61 (1964)Google Scholar; Sinha, S. P., “New Nations and the International Custom,” 9 William and Mary Law Review 788, 788–92 (1968).Google Scholar
18 Fauchille, P., Traité de Droit International Public, Vol. 1, at 42 (8th ed., 1922).Google Scholar
19 Basdevant, J., “Règles générale du droit de la paix,” 58 Recueil des Cours 475, 534–35 (1936).Google Scholar
20 De Visscher, C., “Coutume et traité en droit international public,” 59 Revue générale de droit international public 353, 356-57 (1955).Google Scholar
21 Sibert, M., Traité de Droit International Public—Le Droit de la Paix, Vol. 1, at 32 (1951).Google Scholar
22 For example, Gihl, T., The Legal Character and Sources of International Law, (Acta Universitatis Stockholmiensis, Studia Jurídica Stockholmiensia, No. I), 77 (1957).Google Scholar
23 McDougal, M. S., “The Hydrogen Bomb Tests and International Law of the Sea,” 49 American Journal of International Law 356, 358, n. 7 (1955)CrossRefGoogle Scholar; Tunkin, G., Voprosy Teorii Mezdunarodnogo Prava 85 (1962).Google Scholar
24 M. O. Hudson in his working paper on Article 24 of the Statute of the International Law Commission, UN Doc. A/CN. 4/16, March 3, 1950, at 5.
25 This is not always necessary, as illustrated by the establishment of customary rules concerning the continental shelf.
26 D’Amato, A. A., The Concept of Custom in International Law, chs. 3 and 4 (1971).Google Scholar
27 Sinha, S. P., Asylum and International Law 244–45 (1971).Google Scholar For a criticism of my views, see a review of it by H. F. van Panhuys in 1971 Nederlands Juristenblad 1189–90. I admit to Professor van Panhuys that my treatment of the matter in that book is not adequate. In support of the notion of regional customary international law, see Dissenting Opinions by Judge Alvarez and M. Caicedo Castilla in the Asylum Case (Colombia/Peru), [1950] I.C.J. Rep. 263, at 293–94 and 370 respectively; cf. Dissenting Opinion by Judge Read, ibid., 316, 321.
28 For example, see Sinha, S. P., New Nations and the Law of Nations (1967).Google Scholar
29 Cf. Dissenting Opinion by Judge Azavedo, in the Asylum Case (Columbia/ Peru), [1950] I.C.J. Rep. 263, at 333.
30 [1950] I.C.J. Rep. 263, 276–77.
31 Ibid., 277–78.
32 H. Waldock, supra note 15, at 50.
33 [1960] I.G.J. Rep. 6.
34 [1960] I.C.J. Rep. 6, 44.
35 D’Amato, op. cit. supra note 26, at ch. 8.
36 [1960] I.C.J. Rep. 6, 39.
37 Asylum Case (Columbia/Peru), [1950] I.C.J. Rep. 263, 277–78.
38 Lissitzyn, O. J., International Law Today and Tomorrow 6 (1965).Google Scholar
39 The practice of states in international organizations and the practice of these organizations themselves, such as the political organs of the United Nations, contribute to the development of international law in a variety of ways. See, for example, Higgins, R., The Development of International Law Through the Political Organs of the United Nations (1963)Google Scholar; Asamoah, O. Y., The Legal Significance of the Declarations of the General Assembly of the United Nations (1966).Google Scholar
40 This seems to be the thrust, in part, of Higgins, op. cit. supra note 39, and Asamoah, op. cit. supra note 39.
41 The distinction between the practice of states and the practice of the United Nations has been recognized by the General Assembly itself. Thus, in its Reso-lution 1966 (XVIII), December 16, 1963, it requested the Committee of Experts on the Study of the Development of Rules of International Law Concerning Friendly Relations Among Nations to take into account both “the practice of the United Nations and of states.”
42 Asamoah, op. cit. supra note 39, at 52–58, 177–86. As Asamoah says, “the third point is not an objection. It is a conclusion based on the view that resolutions are not evidence of state practices. If they are, their admissibility under Artide 38 of the Statute cannot be denied.” As to the fourth point, all it means is “that if in the process of the creation of a customary rule a state consistently maintains opposition or indulges in a different practice and its claims are acquiesced in by other states, it cannot be held to be bound.” The first objection “applies as well to state practice outside the United Nations. It raises the difficulties of determining when a customary principle of international law has been created. The difficulty exists with practice of whatever type. If it is admitted that in spite of such uncertainties state practice outside the Organization can create custom, it is not understandable how practice within the Organization is not capable of producing the same result.” As to the second objection, “[i]t is true that a resolution represents a collective act but can it really be denied that in voting for it a state indicates its individual stand, a stand which may or may not be contradictory to its practice outside the Organization? A resolution represents a collective act but it is only arrived at through individual acts…. A resolution, therefore, is a collective act resulting from individual acts and represents evidence of state acts. But in deciding whether a rule of custom has developed, state acts outside the United Nations are also important. One has to consider the totality of acts.” Ibid., 53–54.
43 [1962] I.C.J. Rep. 151.
44 Sloan, F. B., “The Binding Force of a ‘Recommendation’ of the General Assembly of the United Nations,” 25 The British Yearbook of International Law 1, 5 (1948)Google Scholar. Cf. the Advisory Opinion of the Permanent Court of International Justice in the Case of the Interpretation of Article 3, Para. 2, of the Treaty of Lausanne (Frontier between Turkey and Iran), P.C.I.J. Ser. Β., No. 12, at 27 (1925).
45 Vallat, F. A., “The Competence of the United Nations General Assembly,” 97 Recueil des Cours 207, 230 (1959).Google Scholar
46 F. B. Sloan, supra note 44, at 31.
47 Oppenheim, L., International Law, Vol. I, 857 (7th ed., Lauterpacht, 1948).Google Scholar
48 General Assembly Resolution 74a (VIII), November 27, 1953. See, in this connection, Sinha, S. P., “Self-determination in International Law and Its Applicability to the Baltic Peoples,” in Sprudzs, A. and Rusis, A. (eds.), Res Baltica 256 (1968).Google Scholar
49 For example, Oscar Schachter argues that “a constitutional instrument like the Charter would not be subject to the restrictive interpretation appropriate for bargaining treaties of the traditional type where the contracting parties acted in terms of precise interests on a basis of reciprocity.” Schachter, O., “Interpretation of the Charter in the Political Organs of the United Nations,” in Engel, S. (ed.), Law, State, and International Legal Order 269, 272 (1964).Google Scholar
50 O. Schachter, supra note 49, at 280.
51 McRae, D. M., “Sovereignty and the International Legal Order,” 10 University of Western Ontario Law Review 56, 84 (1971).Google Scholar
52 International Court of Justice, Advisory Opinion, Case Concerning Reparation for Injuries Suffered in the Service of the United Nations, [1949] Annual Digest and Reports of Public International Law Cases 318, 330.
53 Ibid.
54 Ibid., 322.
55 Ibid., 330.
56 As Professor McRae observes, “[i]n the result international law consists of various levels of rules which apply to the subjects of the international legal order, both between those of the same affinity and between the different types of subjects. In this way the international legal order provides a framework in which activities and entities not subject to the control of any single state can be regulated.” D. M. McRae, supra note 51, at 86.
