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The Hierarchy among the Recognized Manifestations (“Sources”) of International Law

Published online by Cambridge University Press:  21 May 2009

Maarten Bos
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To enumerate the recognized manifestations of international law, several orders may be followed, depending on the criterion used. One criterion would be the distinction between written and unwritten manifestations. On this basis, the recognized manifestations of international law may be enumerated in the following order: (1) certain decisions of international organizations, (2) treaties, (3) certain judicial decisions – all being written manifestations – (4) custom, (5) the general principles of law recognized by civilized nations, (6) complementary natural law – all being unwritten. Another criterion, and a far more meaningful one, is that of hierarchy. Before setting forth the correct hierarchical order among the recognized manifestations of international law, hierarchy as such should briefly be discussed.

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Articles
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Netherlands International Law Review , Volume 25 , Issue 3 , December 1978 , pp. 334 - 344
Copyright
Copyright © T.M.C. Asser Press 1978

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References

1. See the present writer's “Recognized Manifestations of International Law”, German Yearbook of International Law (GYIL), Vol. 20 (1977), pp. 34, 42–43, and 55–56.Google Scholar

2. It is a matter of controversy in what type of recognized manifestation of international law ius cogens may be found. For a short survey of the discussion, see Akehurst, Michael, “The Hierarchy of the Sources of International Law”, The British Yearbook of International Law, 1974–1975 (Oxford 1977), pp. 281–285.Google Scholar Dr. Akehurst himself opts for treaty and custom as the only possible seats of ius cogens. He refers to a United States amendment at the Vienna Conference on the Law of Treaties (1969) which might have been interpreted as defining ius cogens by reference to the general principles of law, but was defeated by 57 votes to 24, with 7 abstentions. However, since the eventual text of Article 53 of the Vienna Convention (“a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted”) is of the widest possible scope, it is not clear why, as a principle, ius cogens should be prevented from taking the shape of any recognized manifestation of international law, except, maybe, certain binding decisions of international organizations and certain judicial decisions. On account of their origin (see below), certain binding decisions of international organizations, indeed, already have precedence over treaties etc., and with regard to such decisions Articles 53 and 64 would, therefore, be redundant. Judicial decisions appear to be ruled out by their “intermittent, uneven, and eminently temporary” character (see this writer as quoted, GYIL (1977), p. 59).Google Scholar The present view is corroborated by a description of ius cogens by ProfessorKatz, Milton “as reflecting the fundamental values of contemporary international society” (in The Content of Ius Cogens in International Law (Geneva 1966), p. 113).Google Scholar

3. If it is asked whether the problem of nullity as operated, for instance, by a rule of ius cogens rather than to be placed under the heading of hierarchy should not be studied in the context of validity, the answer is that there are two kinds of nullity, viz., (1) nullity as the opposite of validity in the sense of Gültigkeit, and (2) nullity as a form of inferiority vis-à-vis another recognized manifestation of law. It is the second variety of nullity with which one is concerned, here, and there is no reason, therefore, to discuss the effect of a rule of ius cogens in the context of a study on nullity in the first connotation. For validity as Gültigkeit, see this writer, GYIL (1977), pp. 16 and 55Google Scholar

4. According to Akehurst, , op.cit., p. 279Google Scholar, the lex specialis principle (see infra) “can sometimes lead to general principles of law being applied in preference to very broad principles laid down by treaties or customary law”. But at the same time he holds that lex specialis derogat lege generali is no more than a rule of interpretation, and, therefore, cannot apply to the general principles of law (ibid. p. 273 and footnote 3).

5. See this writer, GYIL (1977) p. 74.Google Scholar

6. Akehurst, , op.cit, pp. 274–275Google Scholar: in both the Permanent and the International Court's decisions, treaty always prevailed over custom, but “the treaties in the cases in question were probably simply more specific, or later in time, than the conflicting customary rules” (p. 275). Ibid. pp. 275–276: “clear evidence” is needed that treaty intends to abrogate custom, or the reverse.

7. In their joint dissenting opinion in the Nuclear Tests Case, I.C.J. Reports, 1974, pp. 337–338Google Scholar, Judges Oneyama, Dillard, Jiménez de Aréchaga, and Waldock declared themselves against desuetude as a ground for termination of treaties. Contra: Akehurst, Michael, A Modern Introduction to International Law, 2nd ed. (London 1971) p. 59Google Scholar, and “The Hierarchy of the Sources of International Law”, p. 275.Google ScholarProfessorde La Pradelle, Paul, Cours de droit international public, 2nd ed. (Aix-en-Provence, 1955) pp. 45–46Google Scholar, recognizes desuetude as a method of termination of custom (as quoted by Professor Gould, see infra); and comp. this writer, GYIL (1977) p. 30.Google Scholar

8. For a different description of desuetudo in the context of treaties, see Gould, Wesley L., An Introduction to International Law (New York 1957) pp. 139–140Google Scholar: “In this situation a contrary custom is accompanied by nonenforcement of the formally enacted law over a period long enough to convey the impression that the custom represents the law in force”. It is obvious that in Professor Gould's view desuetude by itself is devoid of all significance: in the presence of a contrary custom, one may as well do without. The same applies to Akehurst, , “The Hierarchy of the Sources of International Law” p. 275.Google ScholarDesuetudo in L. Hardenberg's presentation of the concept practically merges with consuetudo owing to his extension of the role of custom to that of the normative concent of law. See 2000 Weken Rechtspraak (Two Thousand Weeks of Case-Law) (Zwolle 1978) pp. 3–6.Google Scholar

9. See this writer, GYIL (1977) pp. 67–68; but comp. Akehurst as quoted in the preceding footnote pp. 277–278.Google Scholar

10. Ibid. pp. 19–61.

11. Quadri, Rolando, “Cours général de droit international public”, Rec.A.D.L, 1964–III p. 344.Google Scholar

12. The contrary assumption as expressed in this writer's study in GYIL (1977) pp. 32 and 74–75Google Scholar will then have to be corrected.

13. SirFitzmaurice, Gerald, “Some Problems Regarding the Formal Sources of International Law”, in Symbolae Verzijl (The Hague 1958) pp. 173–174.Google Scholar

14. SirFitzmaurice, Gerald, “The Future of Public International Law and of the International Legal System in the Circumstances of Today”, in Institut de Droit International, Livre du Centenaire 1873–1973 (Basel 1973) p. 325, footnote 289.Google Scholar

15. Parry, Clive, The Sources and Evidences of International Law (Manchester 1965), pp. 28 and 34.Google Scholar

16. Ibid. pp. 110–111.

17. Sörensen, Max, Les sources du droit international (Copenhagen 1946) pp. 242–251.Google Scholar

18. To the same effect Akehurst, , “The Hierarchy”, p. 274Google Scholar, following Le Fur. Cf., the present writer's observations on the relative place of manifestations in a scale from induction to deduction, op.cit., p. 76.Google Scholar

19. In his “Principes de droit international public”, Recueil des Cours, 1960–III, pp. 5–245Google Scholar, Judge Sörensen did not revert to the subject of hierarchy, whereas Professor Virally in Sörensen, (ed.), Manual of Public International Law (London 1968) pp. 165–166CrossRefGoogle Scholar, devotes only a few remarks to it.

20. Quadri, , op.cit., pp. 320 and 335.Google Scholar

21. Ibid. pp. 328 and 335.

22. Ibid. p. 341.

23. Ibid. p. 330.

24. Ibid. pp. 335–336.

25. Ibid. p. 339.

26. Ibid. p. 341; and see Wengler as quoted at p. 342, footnote 28.

27. Ibid. p. 344.

28. Ibid. p. 345; and see ibid, footnote 29, for a survey of doctrine on the meaning of Article 38, paragraph 1.

29. Ibid. pp. 350–351.

30. Ibid. p. 353.

31. Ibid. p. 354.

32. Ibid. p. 354–355.

33. Ibid. p. 353.

34. Ibid. p. 352; and comp. p. 340 supra on consuetudo est servanda, another principle belonging under category (a), in Professor Quadri's doctrine.

35. Ibid. p. 339.

36. See footnote 2, p. 335 supra.

37. Op.cit., pp. 341–342Google Scholar; and see GYIL (1977) p. 74Google Scholar, on the present writer's rejection of a reduction of one recognized manifestation to another.

38. See GYIL (1977) p. 37.Google Scholar

39. Op.cit., pp. 335 and 336.Google Scholar

40. See GYIL (1977) pp. 69–70.Google Scholar

41. Op.cit., p. 320.Google Scholar

42. See GYIL (1977) p. 17.Google Scholar

43. Comp. Akehurst, , “The Hierarchy”, p. 274.Google Scholar