Abstract
In the introductory chapter, I set the stage by discussing the choices made by the International Court of Justice as to what constituted the law applicable in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons and in the case concerning Ahmadou Sadio Diallo. I propose that the Court’s understanding of what constitutes International Law is preconditioned by the legal tradition in which it operates, the rules that define the scope of its functions, and its own understanding of its role. Then, I explain the content of the following chapters, leading to the normative plurality hypothesis: the practice of international human rights law recognises that different normative instruments coexist in an un-ordered space, and that meaning can be produced by the free interaction of those instruments around a given problem.
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Notes
- 1.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226 (reprinted in 35 ILM 809) [Nuclear Weapons].
- 2.
See e.g., Richard A. Falk, “Nuclear Weapons, International Law and the World Court: A Historic Encounter” (1997) 91:1 AJIL 64.
- 3.
Martti Koskenniemi, “Case Analysis: Faith, Identity, and the Killing of the Innocent: International Lawyers and Nuclear Weapons” (1997) 10:01 Leiden J Int’l L 137 [Koskenniemi, “Killing of the Innocent”].
- 4.
Burns H. Weston, “Nuclear weapons and the World Court: ambiguity’s consensus” (1997) 7:2 Transnat’l L & Contemp Probs 371 at 372.
- 5.
Request for an advisory opinion from the International Court of Justice on the legality of the threat or use of nuclear weapons, GA Res. 49/75[K], UN GAOR, 49th Sess., Supp. No. 49, UN Doc. A/RES/49/75[K] (1994) 71.
- 6.
For example, Australia argued the illegality of the use of nuclear weapons on the basis of, inter alia, international environmental law, Legality of the Threat or Use of Nuclear Weapons Case, “Verbatim Record of the Public sitting” (30 October 1995) at 46–48, online: International Court of Justice <http://www.icj-cij.org/docket/files/95/5925.pdf>; while Malaysia made use of international human rights instruments to develop the same argument Legality of the Threat or Use of Nuclear Weapons Case, “Verbatim Record of the Public sitting” (7 November 1995) at p 55–56, online: International Court of Justice <http://www.icj-cij.org/docket/files/95/5935.pdf>.
- 7.
Nuclear Weapons, supra note 2 at para 105.2.E.
- 8.
The only other case was: South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, [1966] ICJ Rep 6 (reprinted in 5 ILM 932).
- 9.
Nuclear Weapons, supra note 2 at p 272 (Declaration of President Bedjaoui).
- 10.
Ibid at 426 (Dissenting Opinion of Judge Shahabuddeen).
- 11.
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, [2010] ICJ Rep 639 (reprinted in 50 ILM 40) [Ahmadou Sadio Diallo, Merits].
- 12.
See, e.g. S.J. Knight and A.J. O’Brien, “Ahmadou Sadio Diallo-Republic of Guinea v. Democratic Republic of The Congo-Clarifying the Scope of Diplomatic Protection of Corporate and Shareholder Rights” (2008) 9 Melb J Int’l L 151.
- 13.
Annemarieke Vermeer-Künzli, “Diallo and the Draft Articles: The Application of the Draft Articles on Diplomatic Protection in the Ahmadou Sadio Diallo Case” (2007) 20:04 Leiden J Int’l L 941.
- 14.
Case Concerning the Barcelona Traction, Light and Power Company, Limited, (Belgium v. Spain), (Second Phase), [1970] ICJ Rep 3 [Barcelona Traction].
- 15.
Report of the International Law Commission: Fifty-eight session, UNGAOR, 61st Sess, Supp. No. 10, UN Doc A/61/10 (2006) at para 49 (reference is made to the text of the Draft Articles on Diplomatic Protection and Commentaries, adopted by the ILC on Second Reading) [Report of the ILC, 58th session].
- 16.
Sandy Ghandhi, “Human Rights and the International Court of Justice The Ahmadou Sadio Diallo Case” (2011) 11:3 Hum Rights Law Rev 527 at 528.
- 17.
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), “Application instituting proceedings”, at p 3, online: International Court of Justice <http://www.icj-cij.org/docket/files/103/7175.pdf>.
- 18.
Ibid.
- 19.
Ibid, at p 33.
- 20.
Bruno Simma “Human Rights before the International Court of Justice: Community Interest Coming to Life?” in Holger Hestermeyer et al., Coexistence, cooperation and solidarity: Liber Amicorum Rüdiger Wolfrum (Leiden: Martinus Nijhoff Publishers, 2012) 577 at 593 [Simma, “Community Interest”].
- 21.
According to the ILC Draft Articles in: “[a] State of nationality of shareholders in a corporation shall not be entitled to exercise diplomatic protection in respect of such shareholders in the case of an injury to the corporation unless: […] (b) The corporation had, at the date of injury, the nationality of the State alleged to be responsible for causing the injury, and incorporation in that State was required by it as a precondition for doing business there” Report of the ILC, 58th session, supra note 17 at para 49 (art 11); the Court found no evidence that such requirement existed in the Democratic Republic of the Congo at the time, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, [2007] ICJ Rep 582 at paras 86–94 [Ahmadou Sadio Diallo, Preliminary Objections].
- 22.
Ahmadou Sadio Diallo, Preliminary Objections, ibid at p 617 and 618.
- 23.
Ahmadou Sadio Diallo, Merits, supra note 13 at p 693.
- 24.
International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, (1967) 6 ILM 368 [ICCPR].
- 25.
African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 271, (1982) 21 ILM 58 [African Charter].
- 26.
Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261 [VCCR].
- 27.
“An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority”, ICCPR, supra note 26 at art 13.
- 28.
“A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law”, African Charter, supra note 27 at art 12.4.
- 29.
Ahmadou Sadio Diallo, Merits, supra note 13 at para 66.
- 30.
Ibid at para 67.
- 31.
See Ghandhi, supra note 18 at 528.
- 32.
Ahmadou Sadio Diallo, Merits, supra note 13 at p 730–732 (Separate Opinion of Judge Cançado Trindade); however, Judge Simma has noted that “the Congo v. Uganda Judgment of 2005 [is] the first judgment in the Court’s history in which a finding of human rights violations, combined with findings of violations of international humanitarian law, was included in the dispositif”, Simma, “Community Interest”, supra note 22 at 591; indeed the Court found that “the Republic of Uganda, by the conduct of its armed forces […]; as well as by its failure, as an occupying Power, to take measures to respect and ensure respect for human rights and international humanitarian law in Ituri district, violated its obligations under international human rights law and international humanitarian law”, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), [2005] ICJ Rep 168 at p 280.
- 33.
Eirik Bjorge, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of The Congo), 105 AJIL 534 at 539.
- 34.
Bruno Simma, “Mainstreaming Human Rights: The Contribution of the International Court of Justice” (2012) 3:1 J Int. Disp. Settlement 7 at 20–21 [Simma, “Mainstreaming”].
- 35.
See Ghandhi, supra note 18 at 533 (“What is surprising is that no analysis is made of either the Maroufidou case or assessment of the parameters of General Comment No. 15 [on ‘The position of aliens under the Covenant’]”).
- 36.
American Convention on Human Rights, 22 November 1969, 36 OASTS 1, 1144 UNTS 123; ICCPR, supra note 26; European Convention for the Protection of Human Rights and Fundamental Freedoms, Europ TS No 5, 213 UNTS 211.
- 37.
Ahmadou Sadio Diallo, Merits, supra note 13 at para 68.
- 38.
Simma, “Mainstreaming”, supra note 36 at 25.
- 39.
Prosper Weil, “‘The Court cannot conclude definitively…’ non liquet revisited” (1997) 36 Colum J Transnat’l L 109 [Weil, “Non liquet revisited”].
- 40.
In its study on Customary International Humanitarian Law, which was mandated in 1995 and concluded in 2004, the International Committee of the Red Cross “had to take due note of the Court’s Opinion [on Nuclear Weapons] and deemed it not appropriate to engage in a similar exercise at virtually the same time.” The same study found that “although the existence [of] the rule prohibiting indiscriminate weapons is not contested, there are differing views on whether the rule itself renders a weapon illegal or whether a weapon is illegal if a specific treaty or customary rules prohibits its use.” Jean-Marie Henckaerts and Louise Doswald-Beck, eds., Customary international humanitarian law (Cambridge: Cambridge University Press, 2005) at 248 and 255.
- 41.
Commenting briefly about the Advisory Opinion on the occasion of the general debate on all disarmament and international security agenda items at the First Committee of the General Assembly of the United Nations on its 51st session, the ICRC found it “difficult to envisage how a use of nuclear weapons could be compatible with the rules of international law”, UN C1OR, 51st Sess., 8th Mtg., UN Doc. A/C.1/51/PV.8 (1996) at p 10.
- 42.
Nuclear Weapons, supra note 2 at p 428 (Dissenting Opinion of Judge Shahabuddeen).
- 43.
Louise Doswald-Beck, “International humanitarian law and the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons” (1997) 316 Int’l Rev. Red Cross 35 (indicating that the Court should have used the principle of prohibition of indiscriminate weapons instead of the one that prohibits weapons that cause excessive suffering).
- 44.
It is noted that the International Law Commission, on its recent work on the identification of customary international law, has proposed draft conclusion on the significance of resolutions of international organizations and intergovernmental conferences for the identification of a customary norm: Report of the International Law Commission: Sixty-seventh session, UNGAOR, 70th Sess, Supp. No. 10, UN Doc A/70/10 (2015) at para 83 and 84 (The draft conclusions provisionally adopted by the Drafting Committee for the topic of Identification of customary international law are available under symbol A/CN.4/L.869) [Report of the ILC, 67th session].
- 45.
Oscar Schachter, “Towards a Theory of International Obligation” in Stephen M. Schwebel, ed., The Effectiveness of international decisions; papers of a conference of the American Society of International Law and the proceedings of the conference (Leiden: Sijthoff, 1971) 9 at 9–10 [Schachter, “International Obligation”].
- 46.
“Sources of law” in North Sea Continental Shelf, (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), [1969] ICJ Rep 3 at para 36; “legal sources” in Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), [1982] ICJ Rep 18 at para 22; “sources of international law” in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, [1986] ICJ Rep 14 at para 56 and 178 (reprinted in 25 ILM 1023) [Nicaragua, Merits]; “source of the rule of law” in Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal, Advisory Opinion, [1987] ICJ Rep 18 at para 72; “source of applicable law” in Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, [1993] ICJ Rep 38 at para 44; and “source of law” in Nuclear Weapons, supra note 2 at para 64.
- 47.
Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (1932), Advisory Opinion, PCIJ (Ser. A/B) No. 44 at p 19.
- 48.
See Gilbert Guillaume, The Use of Precedent by International Judges and Arbitrators, (2011) 2:1 at J Int Disp Settlement 5 at 19 [Although not entirely true at the moment of the publication of the lecture, which was delivered five months before the Diallo judgment was handed down, Judge Guillaume stated that “[i]n fact, the Court’s policy of precedent essentially aims to assure a constructive dialogue with arbitration tribunals dealing with interstate disputes, primarily in border disputes”]; its is noted that in 2012, in a case concerning maritime borders, the Court cited a judgment of the International Tribunal for the Law of the sea: Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, [2012] ICJ Rep 624 at paras. 178 and 241, citing Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, [2012] ITLOS Rep 4 at paras 169 and 499.
- 49.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, [2007] ICJ Rep 43 at para 403 (reprinted in 46 ILM 188).
- 50.
The Prosecutor v. Duško Tadić (Prijedor Case), IT-94-1, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) (International Tribunal for the Former Yugoslavia, Appeals Chamber).
- 51.
Ahmadou Sadio Diallo, Merits, supra note 13 at para 67.
- 52.
See Mads Andenas, “International Court of Justice, Case Concerning Ahmadou Sadio Diallo (Republic Of Guinea v. Democratic Republic Of The Congo) Judgment of 30 November 2010” (2011) 60 ICLQ 810 at 817; see also Gentian Zyberi, The Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles (Antwerpen: Intersentia, 2008) at 406 (“Besides other factors related to these courts different jurisdictions and the different ways cases are argued before them, the ICJ might also want to avoid any possible criticism of regional bias”).
- 53.
Guillaume, supra note 50 at 19–20; contra Zyberi, ibid at 395 (suggesting that the first reference to the ECHR was made in para 91 of Barcelona Traction).
- 54.
Ahmadou Sadio Diallo, Merits, supra note 13 at p 811; “in this regard the Diallo Judgment is a positive example to follow”, Simma, “Mainstreaming”, supra note 36 at 25.
- 55.
Prosper Weil, “Le droit international en quête de son identité: cours général de droit international public” (1992) 237 Rec des Cours 11 at 133 [Weil, “Cours général”].
- 56.
In this regard, Judge Simma has noted that “the human rights aspects rose like a phoenix from the ashes of the case, if I am allowed this rather unflattering metaphor, and enjoyed equal rank if not priority both in the Parties pleadings and in the final Judgment of the Court”, Simma, “Community Interest”, supra note 22 at 593.
- 57.
Although, a recent trend on international investment law argues that “certain material standards of [international investment law] can be conceptualized to be human rights-like guarantees of a minimum standard of protection”, see e.g. Nicolas Klein, “Human Rights and International Investment Law: Investment Protection as Human Right” (2012) 4 Gottingen J Int’l L 179 at 181; see also, Bruno Simma, “Foreign Investment Arbitration: A Place for Human Rights?” (2011) 60:3 ICLQ 573 at 576 (“After all, the ultimate concern at the basis of both areas of international law is one and the same: the protection of the individual against the power of the State”); Human Rights, Trade and Investment, Report of the High Commissioner for Human Rights, UN Doc No. E/CN.4/Sub.2/2003/9 (2 July 2003) at para 24.
- 58.
“The intention in 1946 was that there should be continuity between the new Court and the old Court.” Robert Y. Jennings, “General Introduction” in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm, eds., The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2006) 1 at 4.
- 59.
“[T]he Statute of the International Court of Justice was firmly based upon the final version of the Statute of its predecessor; the arrangement and even the numbering of the Articles being largely parallel in both versions.” Ibid; for the specific changes see Ole Spiermann, “Historical Introduction” in Zimmermann, Tomuschat and Oellers-Frahm, ibid, 39 at 61–62.
- 60.
“The distinction between arbitration and adjudication related to national law: adjudication implemented ideals of a court taken from national legal systems, whereas, from the perspective of those systems, arbitration was exceptional, consensual and ad hoc.” Spiermann, ibid at 41–44; See also Ole Spiermann, International legal argument in the Permanent Court of International Justice: the rise of the international judiciary (Cambridge: Cambridge University Press, 2005) at 3–14.
- 61.
The Case of the S.S. “Lotus” (France v. Turkey) (1927), PCIJ (Ser. A) No. 10 at 18.
- 62.
See e.g., Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Rep 174 at 182 (“The Court is here faced with a new situation. The question to which it gives rise can only be solved by realizing that the situation is dominated by the provisions of the Charter considered in the light of the principles of international law”); Fisheries (United Kingdom v. Norway), [1951] ICJ Rep 116 at 132 (“It does not at all follow that, in the absence of rules having the technically precise character alleged by the United Kingdom Government, the delimitation undertaken by the Norwegian Government in 1935 is not subject to certain principles which make it possible to judge as to its validity under international law”).
- 63.
Maritime Dispute (Peru v. Chile), [2014] ICJ Rep 3 at paras 48 and 57 (in para. 48, the Court observed that “it is no longer contested that the 1952 Santiago Declaration is an international treaty”, and then, in para. 57 it was of the view that it “is required to analyse the terms of the 1952 Santiago Declaration in accordance with the customary international law of treaty interpretation”).
- 64.
Martti Koskenniemi, From apology to Utopia: the structure of international legal argument (Cambridge: Cambridge University Press, 2005) at 300 [Koskenniemi, From apology].
- 65.
“Essentially, international law is a law of co-ordination, not, as is most national law, a law of subordination. The expression law of co-ordination means that its own actors have created and apply it between themselves, and are responsible for enforcing it”; Shabtai Rosenne, The perplexities of modern international law (Leiden: Martinus Nijhoff, 2004) at 15 [Rosenne, The perplexities].
- 66.
“The Westphalia conception of international order rest upon the essential role of consent in the process of forming international obligations. The [United Nations’] Charter conception superficially respects, or at least contains nothing to contradict, this traditional mode of law-creation”; Richard A. Falk, “The Interplay of Westphalia and Charter Conceptions of the International Legal Order” in Cyril Edwin Black and Richard A. Falk, eds., The Future of the international legal order (Princeton: Princeton University Press, 1969) at 55. See also, Hans Kelsen, “Les rapports de système entre le droit interne et le droit international public” (1926) 14 Rec des Cours 227. (“toute cette théorie des « sources » n’est qu’une paraphrase de la théorie bien connue de l’auto-limitation de l’État, suivant laquelle l’État ne pourrait être obligé que par sa propre volonté”) [Kelsen, “Droit interne et le droit international public”].
- 67.
Anne Peters, “Humanity as the A and {Omega} of Sovereignty” (2009) 20:3 EJIL 513 at 514.
- 68.
Reference is made to the wording of the: Statute of the International Law Commission, GA Res. 174 (II), UN GAOR, 2nd Sess., UN Doc. A/RES/174 (II) at art 15.
- 69.
“The judicial function in the international sphere has emerged as a third party alongside states and derives its power from the act that created the organ. It can function only within this framework”, Hélène Ruiz Fabri, “Enhancing the Rhetoric of Jus Cogens” (2012) 23:4 EJIL 1049 at 1056.
- 70.
“The experience of organs such as the General Assembly and the Security Council shows what a close influence the solution of the procedural debate has on the rights of the parties rather than on than on the organization and internal administration of the organ. Matters of ‘procedure’; in the International Court should be regarded in the same light (…) These remarks are relevant to all the law applied by the Court, both as the reasons for the decision and the law applied to govern the method by which the Court reaches its decision.” Shabtai Rosenne, The law and practice of the International Court, 1920–2005, vol. III, 4th ed. (Leiden: Martinus Nijhoff, 2006) at 1027–1028 [Rosenne, The law and practice].
- 71.
See e.g. Mahasen M. Aljaghoub, The advisory function of the International Court of Justice 1946–2005 (Berlin: Springer, 2006) at 155; Alain Pellet, “Article 38” in Zimmermann, Tomuschat and Oellers-Frahm, supra note 60, 677 at 789 [Pellet, “Article 38”].
- 72.
Charter of the United Nations, 26 June 1945, Can TS 1945 No.7, at Annex, Art. 68 [when referring to the Annex: Statute of the ICJ]; see also Hersch Lauterpacht, “Some Observations on the Prohibition of ‘Non Liquet’ and the Completeness of the Law”, in Frederick Mari van Asbek, ed, Symbolae Verzijl, présentées au professeur J.H.W. Verzijl à l’occasion de son LXX-ième anniversaire (The Hague: Martinus Nijhoff, 1958) 196 at 199 (“every question forming the subject matter of the request for an Opinion may be couched in the form of a claim, for instance, in proceedings for a declaratory judgement”) [H. Lauterpacht, “Non liquet and Completeness”].
- 73.
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), [1984] ICJ Rep 246 at para 83 (reprinted in 23 ILM 1197).
- 74.
Statute of the ICJ, supra note 74 at art 38.1.
- 75.
Protocol of Signature Relating to the Statute for the Permanent Court of International Justice Provided for by Article 14 of the Covenant of the League of Nations, 16 December 1920, [1921] 6 LNTS 379, (1923) 17 AJIL Supp 55, online: United Nations Treaty Collection <http://treaties.un.org/doc/Publication/UNTS/LON/Volume%206/v6.pdf> (being the only difference the inclusion of the phrase: “whose function is to decide in accordance with international law such disputes as are submitted to it”).
- 76.
Statute of the ICJ, supra note 74 at art 38.
- 77.
Ibid at art 59; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (second phase), Advisory Opinion (second phase), [1950] ICJ Rep 221 at p 233 (Dissenting Opinion of Judge Read); M. Shahabuddeen, Precedent in the world court (Cambridge; New York: Cambridge University Press, 1996) at 97–102.; see also Rosenne, supra note 67 at 147–148; contra Gerald G. Fitzmaurice, “Some Problems Regarding the Formal Sources of International Law” in Frederick Mari van Asbek, ed, Symbolae Verzijl, présentées au professeur J. H. W. Verzijl à l’occasion de son LXX-ième anniversaire (The Hague: Martinus Nijhoff, 1958) 124 at 154. (“[I]t will be suggested that the decisions of international tribunals, while not operating directly as judicial precedent, and while not therefore technically a formal source of law, have a status different from that of a merely material source, and could be characterised as quasi-formal in character”).
- 78.
Nicaragua, Merits, supra note 48 at para 56 (“the sources of international law which Article 38 of the Statute requires the Court to apply,”); see also Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (Cambridge: Cambridge University Press, 2003) at 90 (“Article 38 is, of course, but a treaty provision focusing on one given, although crucially important, court. It is in that sense part of international law and does not define international law.”).
- 79.
Pellet, “Article 38”, supra note 73 at 693.
- 80.
“Report of the International Law Commission covering the work of its tenth session, 28 April–4 July 1958” (UN Doc A/3859) in Yearbook of the International Law Commission 1958, vol 2 (New York: UN, 1958) at 83 (A/CN.4/SER.A/1958/Add.1) (the reference corresponds to the Model Rules on Arbitral Procedure).
- 81.
The issue of non-liquet was raised throughout the discussion of the PCIJ Statute, Ole Spiermann, “‘Who Attempts Too Much Does Nothing Well’: The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice” (2002) 73 Brit YB Int’l L 187 at 212–218 [Spiermann, “Who Attempts Too Much”].
- 82.
As for their mutually contradictory nature, Stone stated “to prohibit non liquet entails the imposition upon the court of a duty to develop new rules”, Julius Stone, “Non Liquet and the Function of Law in the International Community” (1959) 35 Brit YB Int’l L 124 at 132.
- 83.
Lassa Oppenheim, Robert Y. Jennings and C.A.H. Watts, Oppenheim’s international law, 9th ed (London: Longmans, 1993) at 13.
- 84.
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits [1974] ICJ Rep 3 at para 53; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits [1974] ICJ Rep 175 at para 45 (with identical text).
- 85.
Spiermann, “Who Attempts Too Much”, supra note 83 at 214–215.
- 86.
Rosenne, The law and practice, supra note 72 at 1546; see also Michael Akehurst and Peter Malanczuk, Modern Introduction to International Law, 7th ed (New York: Rutledge, 2007) at 48.
- 87.
H. Lauterpacht, “Non liquet and Completeness”, supra note 74 at 205.
- 88.
Case of the Mavrommatis Palestine Concessions (Greece v. United Kingdom) (1924), PCIJ (Ser. A) No. 2 at p 16 and 28; Case Concerning the Factory at Chorzów (Germany v. Poland) (1927), PCIJ (Ser. A) No. 9 at 21 and 31.
- 89.
H. Lauterpacht, “Non liquet and Completeness”, supra note 74 at 205.
- 90.
Andronov v. Secretary-General of the United Nations, Judgment of 20 November 2003, UNAT Judgment No. 1157, [2003] U.N. Jur. Yb. 497, UN Doc. AT/DEC/1157 at p 9 (emphasis is from the original); see also Desgranges v. Director-General of the International Labor Organization, Judgment of 12 August 1953, ILOAT Judgment No. 11 (one of the fundamental tenets of all legal systems is that no court may refrain from giving judgment on the grounds that the law is silent or obscure).
- 91.
Weil, “Cours général”, supra note 57 at 212; see also Hersch Lauterpacht, The Function of Law in the International Community (Oxford: Clarendon Press, 1933) at 86 (“The view that there are gaps in law is theoretically false, and practically dangerous only if it is understood as meaning that the legal order as a whole may break down in cases of supposed insufficiency of law for the reason that the judge is in such cases entitled or obliged to abdicate his judicial function by refusing to give a legal decision. But if it is false to assume that there exists a gap in the sense that the legal order contains no solution at all, it is equally false to assume that there exist no gaps in any sense whatsoever, and that the necessary consequence of the presumed silence of the law is a rigidly negative attitude towards interests claiming legal protection”).
- 92.
Pellet, “Article 38”, supra note 73 at 705.
- 93.
North Sea Continental Shelf, supra note 48 at para 88.
- 94.
Pulp Mills on the River Uruguay (Argentina v. Uruguay), [2010] ICJ Rep 14 at para 205.
- 95.
Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, [1973] ICJ Rep 166 at para 36.
- 96.
Nuclear Tests (Australia v. France), [1974] ICJ Rep 253 at para 43; Nuclear Tests (New Zealand v. France), [1974] ICJ Rep 457 at para 46.
- 97.
International Law Association, Committee on International Human Rights Law and Practice, “Final Report on the Impact of International Human Rights Law on General International Law” (2008) 73 Int’l L Ass’n Rep Conf 663; also found in: Menno T. Kamminga, “Final Report on the Impact of International Human Rights Law on General International Law”, in Menno T. Kamminga and Martin Scheinin, eds, The Impact of Human Rights Law on General International Law (Oxford: Oxford University Press, 2009); see also, Antônio Augusto Cançado Trindade, “International law for humankind: towards a new jus gentium (I). General course on public international law” (2005) 316 Rec des Cours 9; Theodor Meron, The humanization of international law (Leiden: Martinus Nijhoff, 2006).
- 98.
Nicaragua, Merits, supra note 48 at para 269 (“in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level or armaments of a sovereign State can be limited, and this principle is valid for all States without exception”).
- 99.
Report of the ILC, 58th Session, supra note 17 at para 251 (the reference corresponds to conclusion 11).
- 100.
For instance, it is because the American Convention on Human Rights created a regime of responsibility different from the customary law of State responsibility that the Inter-American Court has the ability to innovate in their conception of State responsibility, Case of the Mapiripán Massacre (Colombia) (2005), Inter-Am Cr HR (Ser C) No. 134, at paras 101–112.
- 101.
Nuclear Weapons, supra note 2 at 266 (see paragraph D of the operative).
- 102.
Nuclear Weapons, supra note 2 at para 70.
- 103.
The ongoing work of the ILC on the identification of customary international law seems to confirm this approach; see Report of the ILC, 67th session, supra note 46.
- 104.
Institut de Droit International, “The Distinction Between Military Objectives and Non-Military Objects in General and Particularly the Problems Associated with Weapons of Mass Destruction”, Session of Edinburgh—1969, online: Institut de Droit international <http://www.idi-iil.org/idiE/resolutionsE/1969_edi_01_en.pdf>.
- 105.
CCPR, General Comment No. 14: Nuclear weapons and the right to life (Art. 6), (9 November 1984) in Compilation Of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.9 (Vol. I) (2008) at 188.
- 106.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136 at paras 109–112; Ahmadou Sadio Diallo, Merits, supra note 13 at para 66; Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, [2012] ICJ Rep 10 at para 39; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), [2012] ICJ Rep 422 at para 39.
- 107.
“Report of the International Law Commission covering the work of its fifteenth session, 6 May–12 July 1963” (UN Doc A/5509) in Yearbook of the International Law Commission 1963, vol 2 (New York: UN, 1964) at 198 (The referenced text corresponds to the provisional Draft Articles on the Law of Treaties, specifically para 3 of the commentary to art 37).
- 108.
Speaking about the lack of locus standi in judicio at the ICJ by virtue of the Statute of the Court, Cançado Trindade was of the view that: “[l]egal instruments, whichever their hierarchy, are a product of their time, and I am sure that we all agree as to the need to work for the realization of justice at the level of the challenges of our time, so as to respond properly to them”, Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Dissenting Opinion of Judge Cançado Trindade, [2012] ICJ Rep 10 at para 118.
- 109.
Jonas Grimheden, “The International Court of Justice—Monitoring Human Rights”, in Gudmundur Alfredsson, Jonas Grimheden and Bertrand G. Ramcharan, eds, International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Möller, 2nd ed (Leiden: Martinus Nijhoff Publishers, 2009) 249 at 249–250.
- 110.
Jorge E. Viñuales, “The Contribution of the International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment” (2008–2009) 32 Fordham Int’l LJ 232 at 258.
- 111.
Pellet, “Article 38”, supra note 73 at 700; Alf Ross, A textbook of international law: general part (London: Longmans & Green, 1947) at 83.
- 112.
Malcolm N. Shaw, International law, 5th ed. (Cambridge: Cambridge University Press, 2003) at 66.
- 113.
Myres Smith McDougal and W. Michael Reisman, “The Prescribing Function in World Constitutive Process: How International Law Is Made” (1979) 6 Yale Stud World Pub Ord 249 at 258.
- 114.
H. Meijers, “How is International Law Made?—The Stages of Growth of International Law and the Use of its Customary Rules” (1978) 9 Neth YB Int’l L 3 at 3; see also, Stephen Hall, “The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism”, [2001] 12 EJIL 269 at 284 (“According to Article 38(1)(b) of the Statute of the International Court of Justice, the Court is to apply to such disputes as are submitted to it ‘international custom, as evidence of a general practice accepted as law’. This formulation is universally, or almost universally, regarded as reflecting the customary law requirements for the existence of a custom.”).
- 115.
H. Lauterpacht, “Non liquet and Completeness”, supra note 74 at 205; see also H. Lauterpacht, “International Law—The General Part”, in E. Lauterpacht, International Law: Being the Collected Papers of Hersch Lauterpacht, vol 1 (London: Caledonian Graphics Ltd, 1978) 1 at 96; Eastern Extension, Australasia and China Telegraph Company, Ltd. (Great Britain) v. United States (1923), VI RIAA 112 at 114.
- 116.
Ross has stated that “the doctrine of the sources can never in principle rest on precepts contained in one among the legal sources the existence of which the doctrine itself was meant to prove”, Ross, supra note 113 at 83; Conklin notes another irony in the structural framework of the international legal system: “The identity of a peremptory norm is all the more problematic when one appreciates the ironic twist that it is a treaty, the VCLT [infra note 134], which is invariably offered as the authority for the existence and the identity of peremptory norms”, William E. Conklin, “The Peremptory Norms of the International Community” (2012) 23:3 EJIL 837 at 843.
- 117.
Case concerning the Northern Cameroons (Cameroon v. United Kingdom), [1963] ICJ Rep 15 at 38.
- 118.
Anthony D’Amato, “Softness in International Law: A Self-Serving Quest for New Legal Materials: A Reply to Jean d’Aspremont” (2009) 20:3 EJIL 897 at 909.
- 119.
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, [2010] ICJ Rep 403.
- 120.
André Nollkaemper, “The Court and its Multiple Constituencies: Three Perspectives on the Kosovo Advisory Opinion”, in Marko Milanovic and Michael Wood, The Law and Politics of the Kosovo Advisory Opinion (Cambridge: CUP, 2015) 219 at 219.
- 121.
Ibid at 239.
- 122.
Weil, “Non liquet revisited”, supra note 41 at 119.
- 123.
Ibid.
- 124.
See Duncan French, “Treaty Interpretation and the Incorporation of Extraneous Legal Rules” (2006) 55 ICLQ 281 at 282 (In discussing treaty interpretation and how it related to other topics such as “hierarchy of sources, jus cogens, the relationship between treaty law and customary international law, and other matters of treaty application”, French found that “these issues are clearly not altogether separable as they all relate to the broader topic of how two or more rules of international law co-exist”).
- 125.
“A useful theory about law must avoid the temptation, so common in conventional legal method, to drastically reduce the universe of variables to a text or a few purportedly key social factors. You cannot get far with any of the problems we started with if you limit yourself to a few texts”, W. Michael Reisman, “The View from the New Haven School of International Law” (1992) 86 Am Soc Int’l L Proc 118 at 121.
- 126.
Prosper Weil, “Towards relative normativity in international law?” (1983) 77 AJIL 413.
- 127.
“In practice the free factors will after all become more or less masked as an ‘interpretation’ of the objectivated sources”, Ross, supra note 113 at 81.
- 128.
The manner in which Kooijmans used the term “acquis of international law” reflects the meaning I which to express here: the “accepted common standard[s]” in international law, Pieter H. Kooijmans, “Human Rights, Universal Values?”, Dies Natalis Address, Institute of Social Studies, 12 October 1993, p. 7 online: Erasmus Universiteit Rotterdam <http://lcms.eur.nl/iss/diesnatalis1993OCR.pdf>.
- 129.
Ibid.
- 130.
As Ross put it in the framework of his theory: “all of them fictions meant to conceal the absence of objectivity and serving to give to one’s own subjective evaluation of the relevant considerations a false colouring of objective learning”, Ross, supra note 113 at 82.
- 131.
Pellet, “Article 38”, supra note 73 at 680.
- 132.
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 at art 31, (1969) 8 ILM 679 (A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. (…) 3. There shall be taken into account, together with the context: (…) (c) any relevant rules of international law applicable in the relations between the parties).
- 133.
Tadić, supra note 52.
- 134.
Kamminga, supra note 99 at 2; See also Simma, “Community Interest” supra note 22 at 603 (“What we can observe already is that the Court has become a major player in a process in which human rights and general international law mutually impact upon one another: human rights “modernize” international law, while international law “mainstreams”, or “domesticates” human rights.”).
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Fuentes, C.I. (2016). Introduction. In: Normative Plurality in International Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 57. Springer, Cham. https://doi.org/10.1007/978-3-319-43929-7_1
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