Standards and Sources.

Farewell to the Exclusivity of the Sources Triad in International Law?

Eibe Riedel ¹

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The traditional sources of international law are frequently attacked as being too narrow, backward-looking, and at any rate, incapable of coping with the modern problems of international relations.^*2* As a result, due to the expansion of communication amongst states and the proliferation of international organizations, new candidates for international law sources are being tendered. In a world that, according to Wolfgang Friedmann, is moving from coexistence to cooperation and even to forms of integration,³ it is alleged that treaties, custom, and general principles of law no longer suffice to fully shed light on processes of norm creation in the international community. Consequently, writers proffer new candidates as sources,⁴ foremost amongst them resolutions and declarations of international organizations.⁵ Quasi-legislative acts of the United Nations,⁶ in particular, and legally non-binding, yet highly persuasive codes of conduct⁷ are being advocated, topped off by the notion of ius cogens as a roof upon the house of sources, providing ethical foundations for state obligations. The notion of `soft law' was invented for some of the supposedly legally relevant pronouncements formulated in international organizations and amongst states, and a fierce controversy between `hard law' proponents and `soft law' advocates has raged for many years.

The object of this article is not to add yet another voice to the full chorus of this particular debate, nor to discuss the utility of `soft law' as such,⁸ but instead to examine whether standards of international law, as a legal category, might resolve some of the doctrinal controversies in this field, and to demonstrate that a considerable number of the attendant problems can indeed be clarified in terms of standards and combination standards alongside the traditional sources. To this end, the changing structure of sources will be examined, followed by an analysis of international law norm varieties, after which the nature, utility, scope, and limits of standards as sources will be assessed.

The thesis proposed here centres around the assumption that standards can better explain some of the more recent processes of norm creation than did the traditional sources. In discussing the nature of legal standards some space will have to be devoted to showing that although the term is frequently used by many authors, it often suffers from ambiguity and definitional looseness, many times simply serving as a synonym for `legal rule' or `legal principle'. The argument pursued here is that this should be avoided and that alongside the traditional sources of international law there is a distinct and important role that standards in their own right can and do play.⁹

I. The Changing Structure of Sources

During the last forty years there has been an intensive discussion about the sources of international law. The Statute of the Permanent Court of International Justice as amended in 1945, in delineating sources for the purpose of providing clear guidelines for the future work of the World Court, categorically states in Article 38(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 contesting 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 provisions 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.

The framers of the Statute clearly intended to codify the generally accepted rules of international law pertaining to sources prevailing at the time. They worked on the assumption that the sources enumerated in Article 38 represented the totality of applicable norm categories. Despite the fact that the old European balance of power had foundered on the rocks of World War I, there clearly remained widespread acceptance of these basic rules on the sources of international law in their Eurocentric orientation.

Article 38(1)(c) of the Court's Statute reflects this by referring to `civilized nations', a term that applied to the European powers and that might have been hair-raising if invented after World War II, but was readily accepted in 1920 as part of a compromise in exchange for the recognition of the category of general principles as a formula to bridge positivist and natural law controversies.¹⁰

Although states by no means wished to subscribe to idealistic norm conceptions, they did, in fact, wish to lay down clear guidelines for the new World Court set up at The Hague. Henceforth, until well after World War II, the canon of sources delineated in 1920 remained unchallenged, even with the advent of over 100 new states since 1945. And yet, the declining use of the World Court, until very recently, increasingly rendered this conception of sources questionable, even if treaties, custom, and general principles of law continued to be the backbone of the international legal process.

With the explosion of activities of international organizations, foremost amongst them the League's successor, the United Nations, and the multifarious means of communication between states and other subjects of international law, and with the full realization that the uniform value system underlying the international community in fact no longer existed, the norm-creating processes of international law became much more complicated, reflecting the heterogeneity of states. Henceforth, norms could no longer simply be presumed or deduced from common concepts of law and equity, historically rooted in the European value scheme of the Pax Christiana, but needed careful justification, in order to be acceptable to over 100 new states, many of whom promoted the establishment of new `world orders', replacing the old order of pre-war times.¹¹ It was only natural then, that these new states, once independent, were sceptical of the International Court of Justice (ICJ), apprehensive that the ICJ might entrench the old legal concepts, as the Court was composed mostly of European and American judges, or of judges educated in that legal tradition. After the second South West-Africa decision of the ICJ,¹² the newly independent states severely criticized the Court and preferred to seek remedies instead through the political organs of the UN. The case load of the ICJ between 1966 and 1980 declined drastically, particularly in contentious matters; and thus most international law issues were settled by other means of dispute settlement,¹³ such as bilateral or multilateral negotiation, enquiry, mediation, conciliation or arbitration, as enumerated in Article 33 of the UN Charter. Power politics, and policy options with only vague legal relevance, or the practice of paying lip service to legal arguments as justification for political action, became the order of the day in a divided world; a world full of cultural, political, economic and social differences. Rules of international law therefore, needed to have very strong underpinnings to be acceptable to all. The vast increase in treaty law after 1945 is not only due to the increased number of states, but as a trend also reflects the inherent lack of faith of new states, which preferred to subscribe to international law rules only if they had played a part in their formulation.

On the other hand, when those new states discovered that political independence did not automatically entail full socio-economic freedom, and that development strategies were needed to bring about the equality of states promised in the UN Charter, and when they subsequently saw that political strategies for overcoming underdevelopment hardly changed their predicament, the norm-creating process of international law was rediscovered, and imbued with new meaning.¹⁴ In many international organizations attempts were made by overwhelming majorities to upgrade resolutions and declarations to quasi-legislative acts of those bodies, binding upon member states. And as nearly all states were members of the UN, these norm formulations of international organizations were proposed as a new source of international law. In their reactions to this development many authors took the trouble at least to distinguish between those resolutions/declarations which were merely directed at the internal functioning of the organizational organs, and those which served as organizational decisions, recommendations or goal formulations without the intention of having a directly binding legal effect. Others categorized these utterances as constituting evidence of state practice in general; or of organizational practice with relevance to international law; or as evidence of a general opinio iuris sive necessitatis; or even as `pressure-cooked' instant customary law¹⁵ in those spheres where there was an urgent social need for legal regulation and, consequently, no time for the gradual formation of state practice.

But even those who did not participate in that fierce debate had to acknowledge that the work of the World Organization did have a profound effect on the actual behaviour of states: they no longer could act as they pleased - not even the superpowers - but instead had to reckon with the communis opinio enunciated by the General Assembly of the UN and by other international fora. They could, of course, ignore the approval or disapproval by those fora of world public opinion, but such an attitude greatly interfered with the political manoeuvring space left to them. States, on the whole, have learned that breaking elementary rules of international law entails being ostracized at the UN, and while undoubtedly it can be maintained for some time, such defiance tends to be very costly in the end, as the Union of South Africa, Southern Rhodesia and Saddam Hussein of Iraq have had to find out. In any event, the period from 1945 to this day has seen the affirmation of old and the production of new general principles, not just of law, but specifically of international law; foremost amongst them the so-called UN Charter principles laid down in Articles 1 and 2, which Georg Schwarzenberger¹⁶ once called the pillars upon which the world organization rests, such as sovereignty, equality of states, non-intervention, renunciation of the threat or use of force as a means of dispute settlement, to name but some of those fundamental principles that have no direct counterparts at the national level. They are general principles sui generis, and yet no one would deny their legal relevance, either as world constitutional principles, or simply as treaty obligations under the UN Charter, or as generalizations of rules of customary international law.

Since most of these newer principles relate to political activities of states acting as members of the UN and of its specialized agencies, it matters little whether or not they fall into one of the traditional sources marked out for the ICJ.

These developments taken together - distrust of the ICJ by the Third World; distrust of the quasi-legislative activities of UN bodies by Western states; rejection of any extension of traditional sources if it meant giving up one's own fundamental views about legal norms, together with the greater political significance of international organizations - made it abundantly clear that alongside the traditional sources of international law new methods for formulating norms were developed that simply did not fit naturally into the sources triad of the World Court. Regarding them as subsidiary sources within the meaning of Article 38(1)(d) of the ICJ Statute, although also tried, did not work either. These norm formulations cannot be regarded as auxiliary evidence of international law like judicial pronouncements or `teachings of the most highly qualified publicists of the various nations', geared to interpret treaties, custom or general principles of law, because they may have their own distinct role to play. In fact, some resolutions, declarations, or codes of conduct can be subsidiary sources in the sense described. Their content is declaratory of treaties, custom or general principles. If, however, they are constitutive of new norms of international law, they do not fit into this picture. As Alfred Verdross and Bruno Simma cogently pointed out, contrary to national law, international law does not know a numerus clausus of modes of law creation.¹⁷ Christian Tomuschat summarized this as follows:

(The traditional categorization of sources) merely describes the external forms to which the legal will of the community of states so far has been limited. These formalities are merely indicators for the existence of a genuine legal will which at any time can take on a completely different appearance.¹⁸

Or, as Verdross and Simma put it: `Norm creation thus is not limited to particular kinds of sources but finds itself in a state of liquid aggregation',<sup>19</sup> whereby states rather than purely relying on Article 38(1) of the ICJ Statute utilize more direct means of norm creation, by means of recognition, toleration, simple acceptance, the dispute of claims and situations, in a `process of continuous interaction, of continuous demand and response'.²⁰

Thus far, most writers on international law will agree. All will concede that something new has emerged from within the UN, but great dissent exists as to the categorization of these new politico-legal phenomena. To assess the impact of these new phenomena, a word needs to be said about the interrelation of international law and international relations.²¹ While the discipline of international law is concerned with the normative framework of the international community as a legal order, the discipline of international relations analyses the modes of action and the practice of actors in a political context. A juxtaposition of these scientific disciplines, irrespective of marked differences of approaches, suffers from a fundamental flaw: Norms do not merely belong to the realm of oughtness but may also be analysed as facts. Traditional international lawyers of the positivist school tried to reduce legal discourse to the pure discussion of relations between norms and questions of legal validity, to a pure exercise in systematization of ought-propositions by means of syllogistic analysis.²² By contrast, a wider conception of law will embrace relevant factual bases of norms as an empirical basis of a social and political nature, thereby taking into purview the reality of the international community. Factual parameters will thus also be assessed in a normative context, so that state practice can be analysed by international law categories, even if the practice does not amount to legal but rather to political or ethical norms of action. This broader conception of the reach of international law, transcending pure `ought-analysis', has much to recommend itself, for when one looks at the international legal process one finds that the stage of final decisions binding upon the parties concerned is reached only in a very few isolated instances. Usually the application of the law stops far short of that and remains at the stage of more or less divergent individual self-assessments of rights and duties under international law.²³ Recent demonstrations in point are the Afghanistan and Grenada interventions, or the bombardment of Libyan targets in the Gulf of Libya by the United States.

It is suggested here that some of the newer policy parameters of international relations can best be labelled `standards'. But before these standards are examined more closely, a little more needs to be said about normative varieties of international law, and their actual relationship with the factual bases of international relations.

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1 University of Marburg.

2 I wish to thank Anne E. O'Malley and Bruno Simma for valuable editorial assistance.

3 W. Friedmann, The Changing Structures of International Law (1964).

4 From the abundant literature, cf. only I. Brownlie, Principles of Public International Law (4th ed. 1990) 1 et seq.; D.W. Greig, International Law (2nd ed., 1976) 1 et seq.; Kennedy, `The Sources of International Law', The American University Journal of International Law and Policy (1987) 1 et seq.; J.G. Starke, Introduction to International Law (10th ed., 1989) 32 et seq.; G. Dahm, J. Delbrück, R. Wolfrum, Völkerrecht, Vol. I/1 (2nd ed., 1989) 48 et seq.; A. Verdross, B. Simma, Universelles Völkerrecht (3rd ed., 1984) 321 et seq.; Thode, in E. Menzel, K. Ipsen, Völkerrecht (2nd ed., 1979) 75 et seq.; G.J.H. van Hoof, Rethinking the Sources of International Law (1983) 11 et seq., 83 et seq., 179 et seq.; for classical statements see M. Sørensen, Les sources du droit international (1946); C. Parry, The Sources and Evidences of International Law (1965); Virally, `The Sources of International Law', in M. Sørensen (ed.), Manual of Public International Law (1968) 116 et seq.; D.P. O'Connell, International Law, Vol. I (1970) 3 et seq.; Mosler, `The International Society as a Legal Community', RdC (1974) IV, 1 et seq.

5 O.Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (1966); for a thorough discussion see R. Higgins, The Development of International Law through the Political Organs of the United Nations (1963); J. Castañeda, Legal Effects of United Nations Resolutions (1970) 1 et seq.; Skubiszewski, `Non-Binding Resolutions and the Law-Making Process', Polish Yearbook of International Law XV (1986) 135 et seq.

6 Falk, `On the Quasi-Legislative Competence of the General Assembly', AJIL (1966) 782; Higgins, `The Role of Resolutions of International Organizations in the Process of Creating Norms in the International System', 24 Co-existence (1987) 21 et seq.; see also Dicke, `Völkerrechtspolitik und internationale Rechtsetzung, Grundlagen - Verfahren - Entwicklungstendenzen', 3 Zeitschrift für Gesetzgebung (1988) 193, at 195.

7 Baade, `The Legal Effects of Codes of Conduct for MNEs', in N. Horn (ed.), Legal Problems of Codes of Conduct for Multinational Enterprises (1980) 3 et seq.; Fikentscher, `United Nations Codes of Conduct: New Paths in International Law', 30 AJCL (1982) 577 et seq.; B.O. Bryde, Internationale Verhaltensregeln für Private (1981); Schwebel, `The Legal Effect of Resolutions and Codes of Conduct of the United Nations', 7 Forum Internationale (1985); E. Riedel, Theorie der Menschenrechtsstandards (1986) 285 et seq.

8 Cf. Bothe, `"Soft Law" in den Europäischen Gemeinschaften', in Festschrift Schlochauer (1981) 761 et seq.; Hailbronner, `Völkerrechtliche und staatsrechtliche Überlegungen zu Verhaltenskodizes für transnationale Unternehmen', Festschrift Schlochauer (1981) 329 et seq.

9 The substance of this article is based on the author's habilitation thesis `Theorie der Menschenrechtsstandards', 1986. For fuller discussion, see in particular Chapters 3 and 7 of that study.

10 Cf. Advisory Committee of Jurists. Procès-verbaux of the Proceedings of the Committee, Den Haag 1920, 306 et seq., 344 (Root): `les principes généraux de droit reconnus par les peuples civilisés', and 335 (Lord Phillimore), referring to the principles of law accepted by all nations in foro domestico.

11 Cf. Riedel, `Recht auf kulturelle Identität - Ein normativer Rahmen für eine "Neue Welt-Informationsordnung"?', in J. Schwartländer, E. Riedel (eds), Neue Medien und Meinungsfreiheit im nationalen und internationalen Kontext (1990) 239 et seq.

12 South West Africa, Second Phase, [1966] ICJ Rep. 248.

13 The optimistic assessment by Lord McNair in the preface to O'Connell supra note 2 of the development of international law through the cases clearly reflects the common law approach, but cannot deny the fact that most international law issues these days are not settled in courts and tribunals - important as they undoubtedly are - but by other means of dispute settlement.

14 For a fuller discussion, exemplified by the advocacy of `basic needs', see Riedel, supra note 5, Chapter 5.

15 B. Cheng, `United Nations Resolutions on Outer Space: "Instant" International Customary Law?', 5 IJIL (1965) 23 et seq.; see generally Dicke, supra note 4, at 219 et seq.; Verdross, Simma, supra note 2, § 566.

16 Schwarzenberger, `The Fundamental Principles of International Law', RdC I (1955) 195 et seq.

17 Verdross, Simma, supra note 2, § 518.

18 C. Tomuschat, Verfassungsgewohnheitsrecht? (1972) 111 (translation).

19 Verdross, Simma, supra note 2, § 518, (translation) with further references.

20 McDougal, `The Hydrogen Bomb Tests and the International Law of the Sea', 49 AJIL (1955) 356; see also Falk, `New Approaches to the Study of International Law', 61 AJIL (1967) 477 et seq.; J.P. Müller, Vertrauensschutz im Völkerrecht (1971) 35 et seq.

21 Cf. the pertinent remarks by Simma, `Völkerrechtswissenschaft und Lehre von den internationalen Beziehungen, Erste Überlegungen zur Interdependenz zweier Disziplinen', 23 ÖZöR (1972) 293 et seq.

22 Cf. H. Kelsen, Reine Rechtslehre (2nd ed., 1960) 78.

23 See generally Simma, supra note 19, at 303.

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