LEGUSC LAWS

RECOGNITION

International community is a living entity in the sense that it is changeable.  The identity and number of States are by no means fixed and invariable.  History produces many changes.  Old States disappear or unite with other States to form a new State, or disintegrate and split into several new States.  Former colonies attain statehood.  Even in the case of existing State, a revolution or unconstitutional event may occur and the status of new government becomes a matter of concern to other States, which formerly had relations with the displaced government.  These instances raise several problems for the international community. The most important problem is the question of recognition of the new State or the new government.  Each State has to decide whether to recognize the new State or the new government. 

Recognition involves legal consequences both internally and internationally.   If an entity is recognized as a State, it will be entitled to rights and subjected to duties that would not be relevant otherwise, and it will enjoy privileges and immunities of a foreign State, before the national courts, which would not be allowed to other entities.

What is recognition?  Why and how is it granted?  What are the types and forms of recognition?  What are the legal consequences generated from recognition?

The answers to all these questions are dealt with in the following sections.

Recognition is a discretionary unilateral act exercised by the government of a State officially acknowledging the existence of another State or government or belligerency. It is one of the most difficult subjects of International Law.  It is a complicating mixture of politics and laws both national and international.  It is difficult mainly for the following three reasons.

(1)  Recognition is, as the practice of States shows, much more a question of politics than of law. The act of the recognizing State is conditioned principally by the necessity of protecting its own national interests, which lie in maintaining proper relations with the new State or the new government.  However, there is an irresistible tendency of the recognizing State to use legal principles as a convenient camouflage for political decisions.  For this reason, recognition is considered to be a political act with legal consequences.

(2)  In form and in substance, recognition remains primarily a unilateral diplomatic act on the part of the recognizing State.  No collective procedure for granting recognition based on established legal principles has yet been evolved by the international community.

(3) There are several distinct categories of recognition.  There are the recognition of a new State, a new government and belligerency.  In addition there are de jure, de facto, conditional, implied and express recognition.  Although the same principles may be applicable to some of these types, it is still that each of them is subject to different legal principles and entails different legal consequences.

Basically, there are two theories as to the nature, functions and effects of recognition, the constitutive theory and the declaratory theory. 

The constitutive theory considers that the act of recognition by other States creates a new State and grants it the international legal personality.This implies that the new State is established as an international person by virtue of the will and consent of already existing States.   In case of a new government, it is the recognition that grants it the status at the international level.

The Constitutive theory is opposed by the declaratory theory.  According to the declaratory theory, recognition has no legal effects; statehood or the status of a new government exists as such prior to and independently of recognition. The existence of a State or a new government is a question of pure fact.  The act of recognition is merely a formal acknowledgement of established facts.  When an entity satisfies the requirements of a State objectively, it is a State with all international rights and duties, and other States must treat it as such.

Historically, the constitutive theory has its merits.  During the Nineteenth Century, International Law was regarded as applying mainly between States with European civilization. Other countries were admitted as States to this community only if they were recognized by those member States. Even today, recognition can sometimes have a constitutive effect, although State practice is not always consistent.  When the establishment of a new State or government is in violation of International Law, this State or government is often regarded as having no legal existence until it is recognized.

However, the prevailing view today is that recognition is declaratory and does not create a State. This view was laid down in the Montevideo Convention on the Rights and Duties of States of 1933.  Article 3 of this Convention provides that “The political existence of the state is independent of recognition by the other states.  Even before recognition the state has the right to defend its integrity and independence”.

Actually, the two theories are of little assistance in explaining recognition or determining the status of non-recognized entities in practice.  In addition, the practical differences between these two theories are not significant.  Under the declaratory theory, the decision whether an entity satisfies the criteria of statehood is left to other States, and the granting formal recognition to another State, which is a unilateral act, is left to the political discretion of States.  On the other hand, the significance of the constitutive theory has diminished because of the obligation imposed on States to treat an entity that satisfies the criteria of statehood as a state.  Moreover, the States practice regarding recognition shows that States follow a middle position between these two theories. 

                           

There are several distinct categories of recognition. There are recognition of a new State, recognition of a new government and recognition of belligerency.  In addition there are different entities to be recognized.   Recognition itself may take different forms. Recognition may be de jure or de facto.   Recognition may be express or implied.  It may be conditional.

(A) Recognition of a State and of a Government

When a new State comes into existence, other States are confronted with the question whether or not to recognize it. Recognition implies a willingness of the recognizing State to deal with the new state as a member of the international community. To grant recognition to a new entity, the entity must satisfy the basic requirements of statehood, which have been discussed in the previous chapter.  The first example of State recognition in the history of nations was the recognition in 1648 by Spain of the United Netherlands.

Recognition of a State defines its membership in the world community, and consequently supports its claim as an international person.  It allows the recognized State to exercise the rights and duties of a State under International Law. Recognition of a new State automatically involves recognition of its government, although the latter may be recognized only de facto.

Recognition of a new government is quite different from the recognition of a new State, although in principle most of the considerations whether legal or political apply equally to both types of recognition.  As far as a State is concerned, the satisfaction of basic requirements of statehood is examined by the recognizing State before granting its recognition to the new State.  Recognition of a new government requires its satisfaction of certain conditions such as effectiveness and independence.  Notably, the existence of an effective and independent government is the essence of statehood.  By recognizing a government, the recognizing State accepts to deal with this government as the governing authority of the State and grant it the legal consequences of such status in terms of privileges and immunities within its domestic legal system.  In both these types of recognition, we should not forget the great role played by political considerations in the decision whether or not to grant recognition.

The granting or refusal of recognition of a government has no effect on the recognition of a State itself.  Recognition of a State affects its legal personality, whether creating or acknowledging it, while recognition of a government affects its status as the governing authority, not the State.  A subsequent government may not be recognized, even though the recognition of a State is permanent as regard to its existence and its status as a legal person under International Law. 

If the government of a State is changed in accordance to constitutional processes, no problem of recognition arises as long as the new government is firmly in power and secures stability in the country.  In this case, recognition by other States is purely a matter of formality.  The problem of recognition of a new government arises in cases when changes occur as a result of an unconstitutional practice or a revolution.  The recognition of the revolutionary government is a serious problem and the decision thereon is made with great care.  On this matter, no definite legal principles are established and the practice of States is inconsistent and confused.  However, certain rules have been recognized to cover recognition of illegal changes in government.  Such rules imply the acceptance of the realities of the transfer of power and suggest that once a new government effectively controls the country and that this seemed likely to continue, recognition should not be withheld.

 (B)  Recognition of Belligerency

Belligerency exists when a portion of the State’s territory and population is under the de facto control of insurgents seeking either to establish a separate State or to overthrow the existing government.  To be recognized as belligerents, the insurgents must have a political organization able to exercise such control and maintain some degree of popular support, and conduct themselves according to the laws of war.  Accordingly, recognition of belligerency is a formal acknowledgement by third-party States of the existence of a state of war between the State’s central government and a portion of that State.  This implies that the recognizing State recognizes that a revolt within another State has attained such a magnitude as to constitute in fact a state of war, entitling the revolutionists or insurgents to the benefit, and imposing upon them the obligations, of the laws of war.  Two conditions should exist before a third-party State grant belligerent recognition, the insurgency has progressed to a state of general war and the effects of this war have gone beyond the borders of the State to affect other States.  By this recognition, the insurrectionary movement is elevated to the status of a quasi-international person having certain rights and duties under International Law. This sort of international personality is both non-permanent and particular.  It is non-permanent, because the insurrection may fail.  It is particular, because it exists only for the recognizing States.

Recognition of belligerency was accorded during most of civil wars of the Nineteenth Century, such as the revolts of the Spanish-American colonies and the American Civil War, and during most of the wars of independence of the Twentieth Century.

To grant recognition of belligerency, the recognizing State is always dictated by the primary motive, which is to protect and promote its national interests.  The recognizing State may intend either to get the status of neutrality between the belligerent parties or to support the legitimacy of the insurrection.

  (C)   De Jure and De Facto Recognition

   The practice of States draws a distinction between de jure and de facto recognition. This distinction usually arises in the case of governments since States can normally be recognized only de jure, although there have been few cases of recognizing States de facto.  For example, Indonesia was recognized de facto by several States while it was fighting for independence against Netherlands during 1945-1949.

De jure recognition means that according to the recognizing State the recognized State or government fulfils the requirements laid down by International Law.  De facto recognition means that in the opinion of the recognizing State, with all due reservations for the future, the recognized State or government provisionally and temporarily fulfils the above requirements in fact.  As such, de facto recognition is provisional and temporary and could be withdrawn at any future date, although it is usually followed by de jure recognition.Notably, the terms de jure and de facto describe the government, not the act of recognition.   Choosing the type of recognition to be granted, the recognizing State is always occupied by political realities and considerations as well as its national interests.

De facto recognition of a government implies that there is a doubt as to the permanence and viability of the concerned government.  De facto recognition involves a hesitant position by the recognizing State, an attitude of wait and see, which is usually followed by de jure recognition when the recognizing State accepts that the effective control exerted by the government in question is permanent and firmly established and there is no legal basis for withholding the de jure recognition.

De facto recognition may be a preface stage to the de jure recognition, particularly in cases of governments coming into power by unconstitutional processes.  In such a case, de facto recognition is a non-committal act whereby the recognizing State acknowledges that there is a de facto government possessing in fact the powers of sovereignty, but such possession may be illegal, unstable or non-permanent.  At a later stage when the need for reservations no longer exists because the permanence of the de facto government is completely assured, de jure recognition is formally granted.  For example, United Kingdom recognized the Soviet government first de facto in 1921 and later de jure in 1924. During the Spanish Civil War (1936-1939), United Kingdom granted recognition to the two rival parties, de jure recognition to the Republican government and de facto recognition to General Franco’s government that gradually took over the country and its recognition turned into de jure. During 1988-1991, most States recognized the two rival governments in Lebanon de facto until the ending of the insurrection led by General Aoun, and then the government of Salim Al Huss was accorded de jure recognition.

When recognition is granted by an express statement, it should always be regarded as de jure recognition, unless the recognizing State provides otherwise.  When recognition is implied, there will often be uncertainty as to the intention of the recognizing State whether granting de jure or de facto recognition.

Choosing the type of recognition to be granted, the recognizing State is occupied mostly with political realities and considerations as well as own national interests, and to a lesser degree with legal considerations. A statement that a government is recognized as de facto may, on one hand, involve a purely political judgment, involving either a reluctant or cautious acceptance of an effective government, lawfully established according to International Law, or an unwarranted acceptance of it as a de jure government. It may, on the other hand, be intended to be or to include a legal determination of the existence of an effective government, but with reservations as to its viability and permanence.  It may, of course, happen that the legal and political considerations for caution coincide.  The distinction between these two types of recognition is insubstantial, since it is a question of intention, not of a legal matter.  However, it is considered that de jure recognition is irrevocable while de facto recognition can be withdrawn.  Actually, in the political sense recognition of either type can always be withdrawn, while in the legal sense it cannot be unless a change of circumstances warrants such withdrawal.

Whatever the basis for the distinction between de jure and de facto recognition, the effects of the two types are mostly the same.  Nevertheless, there are certain important differences between these two types, which are:

 (a) Only the de jure recognized State or government can claim to receive property locally situated in the territory of the recognizing State.

(b) Only the de jure recognized State or government can represent the old State for the purposes of State succession or with regard of espousing any claim of its national for injury done by the recognizing State in breach of International Law.

(c) The representatives of the de facto recognized state or government may not be entitled to full diplomatic immunities and privileges.

Whatever the type of recognition, once given may in certain circumstances be withdrawn.  Actually, this is more easily done with regard to de facto recognition than to de jure recognition, because of the nature of the former one, which is temporary.  De facto recognition is intended to be a preliminary acceptance of political realities and may be withdrawn in accordance with a change in political conditions.  When a de facto government loses its effective control over the country, the reason for recognition disappears and it may be withdrawn.  De jure recognition, on the other hand, because it is intended to be generally a definitive act, it is more difficult to be withdrawn.  When a government recognized de jure is overthrown, a new situation arises and the question of recognizing a new government will have to be faced.  In such instance, the withdrawal of recognition of the overthrown government is assumed; it does not have to be expressed. Withdrawal of recognition of one government without recognizing a successor is a possibility.  This approach, for example, was adopted by the United Kingdom and France with regard to Colombia in 1979.

Withdrawal of recognition remains possible in other circumstances.  The loss of one of the required criteria of statehood will result in the withdrawal of recognition of a State.  Recognition of belligerency will naturally terminate with the end of the state of belligerency.

Because recognition is essentially a political act, no matter how circumscribed or conditioned by the law, a State has a discretionary power to determine whether a particular situation justifies a withdrawal of recognition and to take such action if it serves its national interests. Notably, we must not confuse the withdrawal of recognition with the rupture in the diplomatic relations.  In the practice of States, the usual method of expressing disapproval with the actions of other governments is to break diplomatic relations, since this method does not entail the legal consequences and the problems that the withdrawal of recognition would produce.

   (D)  Express and Implied Recognition   

Recognition is essentially a matter of intention.  It is founded upon the will and intention of a State.   It may be express or implied.  The mode by which recognition is accomplished is of no special significance.  It is essential, however, that the act constituting recognition must give a clear indication of the intention either to deal with the new State as such, or to accept the new government as the effective government of the State and to maintain relation with it, or  to recognize in case of insurgents that they are entitled to belligerent rights.

Express recognition indicates the acknowledgment of the recognized State by a formal declaration.  In the practice of States, this formal declaration may happen by either a formal announcement of recognition, a personal message from the head of a State or the minister of foreign affairs, a diplomatic note, or a treaty of recognition. 

Recognition needs not to be express.

It may be implied in certain circumstances.  There are circumstances in which it may be possible to declare that in acting in a certain manner, one State does by implication recognize another State or government. However, because of this possibility, States may make an express declaration to the effect that a particular action involving another State is by no means to be regarded as inferring any recognition.  This position, for example, was maintained by Arab States with regard to Israel.

Implied recognition is recognition of a State or a government through actions other than official declarations or actions intended to grant recognition. The required actions for implied recognition must be unequivocal, leaving no doubt of the intention of the State performing them to recognize the State or government and to deal with it as such.  There is a variety of actions undertaken by a State in regard to an unrecognized State or government.  Some actions are conclusively regarded implying recognition, while others are not. Included in the first category are the official congratulatory statements upon independence, the formal establishment of diplomatic relations and the conclusion of a bilateral treaty. The actions that do not conclusively imply recognition are the participation in multilateral treaty, the membership in international institutions, the common participation in international conference, the maintenance of informal and unofficial contacts, the initiation of negotiations with an unrecognized state, and the making of claims against an unrecognized State.

 (E)  Conditional Recognition          

The political character of recognition is manifested in what is termed conditional recognition.  Sometimes States are recognized subject to certain conditions, generally the fulfilment of certain obligations.  Examples of such conditions are: the respect and the guarantee of the rights of ethnics, national groups and minorities; the respect of religious freedoms; and the respect of the rule of law, democracy and human rights.

The failure to fulfil the obligations does not annul the recognition, as once given it cannot be withdrawn.  The status obtained by the recognized State from the act of recognition cannot be withdrawn.  The recognized State will be guilty of a breach of International Law, and this will allow the recognizing State to severe diplomatic relations as a form of sanction.   However, the conditional recognition of a State or government in process of emerging is probably revocable.

 Legal Effects of Recognition  

            

Although recognition is essentially a political act, it is one that entails important legal consequences.  Recognition involves legal effects both in the international level and in the domestic level.   If an entity is recognized as a State, it will be entitled to rights and subjected to duties that would not be relevant otherwise, and it will enjoy privileges and immunities of a foreign State before the national courts of other States, which would not be allowed to other entities.

What are the effects of recognition?  Are there effects for non-recognition?   The Answers to these two questions are dealt with in the following sub-sections.

 (A)  International effects of recognition

Apart of all the theoretical arguments involving the constitutive and declaratory theories, it is accepted that recognition of a State or government is a legal acknowledgement of factual situations.  Recognition entails the recognized State the enjoyment of rights and the subjecting to duties prescribed in International Law for States.

Recognition of a State by another State does not lead to any obligation to establish diplomatic relations or any other specific links between them.  Nor does the termination of diplomatic relations automatically lead to withdrawal of recognition. These remain a matter of political discretion. 

It should not be assumed that non-recognition of a State or government would deprive that entity rights and duties under International law.  It is well established in International Law that the political existence of a State is independent of recognition by other States, and thus an unrecognized State must be deemed subject to the rules of International Law.  Unrecognized State is entitled to enjoy certain rights and be subject to many duties.  It has the rights to defend its integrity and independence, to provide for its conservation and prosperity and consequently to organize itself as it sees fit.  The exercise of these rights by unrecognized State has no other limitation than the exercise of the rights of other States according to International Law.  Moreover, unrecognized State is subject to most of the rules of International Law, such as those related to the law of wars, and is bound by its agreements.

Non-recognition, with its consequent absence of diplomatic relations, may affect the unrecognized State in asserting its rights against unrecognizing States, or before their national courts. However, non-recognition will not affect the existence of such rights, nor its duties, under International Law. 

  (B)  Internal Effects of Recognition

Recognition entails the recognized State the rights to enjoy privileges and immunities of a foreign State before the national courts, which would not be allowed to other entities.  However, because recognition is essentially a political act reserved to the executive branch of government, the judiciary branch must accept the discretion of the executive branch and give effect to its decisions  The national courts can only accept and enforce the legal consequences that flow from the act of recognition.  They can accept the rights of a foreign government to sue, to be granted immunities or to claim other rights of a governmental nature.  They can give effect to the legislative and executive acts of the recognized State.  In the case of non-recognition, national courts will not accept such rights.  In this context, recognition is constitutive, because the act of recognition itself creates the legal effects within the domestic jurisdiction of a State.

 A subject of International Law is a person (entity) who possesses international legal personality, i.e., capable of possessing international rights and obligations and having the capacity to take certain types of action on the international level.  Traditionally, States have been the only subjects or persons of International Law.  However, with the establishment of international organizations, it has become necessary that a sort of international legal personality be granted to these entities.  Thus, international organizations become subjects or persons of International Law.  Beside States and international organizations, non-States entities such as members of federal States, belligerents, insurgents, national liberation movements, and international territories are granted a sort of international legal personality.  Special international status was granted to the Holly See and the Vatican City, and the Sovereign Order of Malta.  Moreover, individuals, ethnic minorities, and indigenous peoples are considered, in certain circumstances, subjects of International Law. 

 These persons and subjects of International Law are discussed in the following.

States are the original and major subjects of International Law.  Their legal personalities derive from the very nature and structure of the international system. All States, by virtue of the principle of sovereign equality, enjoy the same degree of international legal personality. 

 International Law is primarily concerned with the rights, duties and interests of States.  Normally the rules of conducts that International Law prescribes are rules which States are to observe.

Since a State is the primary concern of International Law, it is necessary to study it in a separate posts.  Thus, the next post of this series is devoted to the study of a State as a subject of International Law.

 International Organizations

An international organization is an association of States, established by a treaty between two or more States. Its functions transcend national boundaries.  It is for certain purposes a subject of International Law.

The appearance of international organizations from the early part of the Nineteenth Century raises a critical question of their status in the International Law.  International organizations are generally considered to be subjects of International Law, as are States, even though their international legal personality is limited to possessing specific rights and duties.  Their status is determined be conventions among States and, therefore, the recognition of the international personality of an international organization is limited to signatory States of the convention creating such an organization.

International organizations include universal all purposes organizations, universal functional organizations, and regional organizations.  Generally, the treaty creating a public international organization indicates its nature, purposes and powers.  The international legal personality of an international organization is, therefore, limited to the rights, duties, purposes and powers laid down in the treaty creating it.  The international legal personality of the United Nations, for example, is derived from the United Nations Charter, the Headquarters Agreement between the United Nations and the United States of America of 1947, and the 1946 Convention on the Principles and Immunities of the United Nations.  The attribution of an international legal personality involves the capacity to perform legal acts, to have rights and duties and to enter into relations on the international level.  Actually, the legal capacity of the United Nations was a question brought before the International Court of Justice.  In its advisory opinion in the Reparation for InjuriesCase of 1949, the Court held that the United Nations was an international person, although not a State, and therefore not having the same rights and duties as a State.  The United Nations had an international personality; its functions and powers were so important that the Organization could not carry them out unless it had some degree of international personality. The United Nations can perform legal acts such as entering into agreements with member States and with other international organizations, concluding contracts and bringing claims before a court.  Such capacity to perform legal acts is a prerequisite of international legal personality.

In reality, international organizations have exercised their legal capacity in a great variety of ways.  They have concluded treaties, created military forces, convened international conferences, and brought claims against States.

There are certain entities, although they are not regarded as independent States, they are granted a degree of personality, a definite and limited special type of personality, under International Law.  Such entities have certain rights and duties under International Law.  They can participate in international conferences and enter into treaty relations.

However, the rights and duties of these entities in International Law are not the same as those of the States.  They have a sort of international personality.  The capacity of each of them is more limited than an independent State has since it is limited to the purpose it is existed for and the powers or functions it can perform. 

 These entities fall into the following categories:

The federal State has itself, of course, an international legal personality, but the controversial question is whether the component units of the federation have the personality on the international plane.  Actually, the international personality of such units and its extent can only be determined in the light of the constitution of the State and State practice.   The constitution of a federation may grant a component unit a special international personality; however such personality will not be operative on the international plane without being recognized as such by other States.  State practice has granted international personality to certain component units of the federation.  For instance, the Soviet Republics of Byelorussia and the Ukraine were admitted as members of the United Nations in 1945 and to that extent possessed international personality.  Moreover, these two Republics were members of a number of international organizations and parties to a number of treaties.

Insurgents are individuals who participate in an insurrection (rebellion) against their government.  Belligerents are a body of insurgents who by reason of their temporary organized government are regarded as lawful combatants conducting lawful hostilities, provided they observe the laws of war.  For a long time, International Law has recognized that insurgents and belligerents may in certain circumstances, primarily dependent upon the de facto administration of specific territory, be international subjects having certain rights and duties under International Law, and may in due course be recognized as de facto governments. They can enter into valid arrangements on the international plane with States, international organizations, and other belligerents and insurgents.  They are bound by the rules of International Law with respect to the conduct of hostilities.

 In the course of anti-colonial actions sponsored by the United Nations and regional organizations, these organizations and the member States have conferred international legal status upon certain national liberation movements. In 1974, the General Assembly recognized the international legal status to the Angolan, Mozambican, Palestinian, and Rhodesian movements (which had been recognized as such by the Organization of African Unity (OAU) or the Arab League), and accorded them observer status in its meetings, in meetings of various organs of the United Nations, in meetings of the United Nations specialized agencies, and in conferences convened under the auspices of the United Nations.  The Security Council of the United Nations permitted the Palestine Liberation Organization (PLO) to participate in its debates with the same rights of participation as conferred upon a member State not a member of the Security Council.

International practice has accorded the political entities recognized as national liberation movements a number of legal rights and duties.  The most significant of these rights and duties are the capacity to conclude binding international agreements with other international legal persons, the capacity to participate in the proceedings of the United Nations, and the rights and obligations of International Humanitarian Law.

International territories:   

The term “International territory” refers to territories placed under a variety of international legal regimes including those administered by the United Nations under the trusteeship system or special arrangements.  The Charter of the United Nations established the trusteeship system, replacing the mandate system established by the League of Nations, to enable the United Nations itself or a State to administer certain territories pending independence.  The United Nations is also able to administer territories in specific circumstances. In several instances, The United Nations placed certain territories under its transitional administration for a variety of purposes, such as the preparation for independence, the administration of an election, the adoption of a new constitution, the implementation of a peace settlement, and the performance of other civil functions.  Examples of such instances are Cambodia (1992-1993), Bosnia and Herzegovina (1995- ), and East Timor (1999-2002).

The territories (trust territories) placed under the trusteeship system have been accorded special status under International Law.  Their inhabitants have been granted the rights for advancement, progressive development, and self-government or independence.  Actually, all these territories have attained independence as separate States, or have joined other independent States. The territories placed by the United Nations under special systems, except Cambodia which has been already an independent State, have been also accorded special status under International Law for the purpose of assisting them in attaining their independence.

There are two special case entities accorded a special unique status under International Law; they are the Sovereign Order of Malta, and the Holly See and the Vatican City. 

 a) The Sovereign Order of Malta:  The Sovereign Order of Malta was established during the Crusades as a military and medical association.  It ruled Rhodes from 1309 to 1522.  It was entrusted to rule Malta by the treaty with King Charles V of England in 1530.  It lost its rule of Malta in 1798.  In 1834 the Order established its headquarters in Rome as a humanitarian organization.  The Order already had international personality at the time of its taking control of Malta and even when it had to leave the island it continued to exchange diplomatic legations with most European States.  Today, the Order maintains diplomatic relations with over forty States.

(b) The Holy See and the Vatican City:  The Holy See, which is sometimes used interchangeably with the Vatican City, is the international legal person of the Roman Catholic Church, with its physical location at the Vatican City in Rome and its sovereign the Pope.  It is not a State in the normal sense of the word.  It is a unique person of International law because it combines the feature of the personality of the Holy See as a religious entity with its territorial base in the Vatican City.  Apart of some one thousand Church functionaries, it has no permanent population of its own.  Its sovereign territory consists of only about one hundred acres granted it by Italy in the 1929 Lateran Treaty.  Nevertheless, the status of the Holy See as an international person is accepted by a number of States. Its personality approximates to a State in functions. The Holy See exchanges diplomatic representatives with other States, enters into bilateral treaties (called concordats), and is a party to many multilateral treaties. 

5.  Individuals

The ultimate concern for the human being has always been the essence of International Law.  This concern was apparent in the Natural Law origin of the classical International Law.  The growth of the positivist theories of law, particularly in the Nineteenth Century, obscured this concern for the human being and emphasized the centrality and even the exclusivity of the State in International Law.

 In the Twentieth Century, International Law became again concerned with individuals.  In 1907, the Hague Conventions initiated the concern in view of prisoners of war and the wounded. During the Second World War, the trend of International Law had been towards attaching direct responsibility to individuals for crimes committed against the peace and security. The Charter of London of 1943 issued by the Allied Powers established the individual responsibility for committing war crimes, crimes against humanities and crimes against peace.  On this basis, after the Second World War, the German leaders were brought to trial before the Nuremberg International Tribunal (1945-1946) where their guilt was established.  The Charter of the Nuremberg International Tribunal of 1945 provided specifically for individual responsibility for crimes against peace, war crimes and crimes against humanity.  The Nuremberg International Tribunal pointed out that “international law imposes duties and liabilities upon individuals as well as upon states” and this was because “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. The principles of the Charter of the Nuremberg Tribunal and the decisions of this tribunal were affirmed by the General Assembly of the United Nations in 1946, thus making them to be part of the International Law.  The Assembly also, in 1946, stated that genocide was a crime under International Law bearing individual responsibility; and this was reaffirmed in the Genocide Convention of 1948.

 Individual responsibility was also confirmed with regard to grave breaches of the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1977, which deal with armed conflicts (International Humanitarian Law).   On this basis, two specific international war crimes tribunals were established, one for the former Yugoslavia in 1993 and one for Rwanda in 1994, to prosecute persons responsible for the serious violations of International Humanitarian Law committed in the territory of each of these countries.

The events in the former Yugoslavia and Rwanda impelled the renewal of the international concern for the establishment of a permanent international criminal court, which had long been under consideration.  In 1998, the Rome Statute of the International Criminal Court was adopted at the United Nations Diplomatic Conference.  The Statute provides that the jurisdiction of the Court is limited to “the most serious crimes of concern of the international community as a whole”, which are the crime of genocide, crimes against humanity, war crimes and the crime of aggression, and that “[A] person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.” 

  

In addition, after the Second World War, International law became also concerned with individuals in the field of human rights and the fundamental freedoms.  The Charter of the United Nations started this trend in 1945 by calling upon member states to observe human rights and fundamental freedoms for individuals and peoples.  Since then, several conventions have been concluded to define human rights and fundamental freedoms which individuals and peoples are entitled to and to ensure their respect and protection.  Among these conventions are the International Covenant on Civil and Political Rights of 1966, and the International Covenant on Economic, Social and Cultural Rights of 1966.

Although, individuals as a general rule lack standing to assert violations of the above treaties in the absence of the protest by the State of nationality, a wide range of other treaties have enabled individuals to have direct access to international courts and tribunals.  Examples of such treaties are the European Convention on Human Rights of 1950, the American Convention on Human Rights of 1969,the International Convention on the Elimination of All forms of Racial Discrimination of 1966, and the Optional Protocol to the International Covenant on Civil and Political Rights of 1966.

      

In conclusion, we can say that Contemporary International Law has recaptured the concern for individuals, and individuals have become recognized as participants and subjects of this law.  This has occurred primarily through the evolution of Human Rights Law and Humanitarian Law coming together with the evolution of the Traditional International Law.  Individuals have a sort of legal personality under International Law; they are granted certain rights and subjected to certain obligations directly under International Law.  International Law is applicable to relations of States with individuals and to certain interrelations of individuals themselves where such relations involve matters of international concern.

6.  Minorities

  The concern of International Law, in the Twentieth Century, for individuals was accompanied by another concern for minorities. The problem of protecting national minorities in Europe confronted the League of Nations after the First World War. The League assumed its responsibilities in the field of treaty-based protection of minorities in Europe, in social matters, such as health and fair labour standards.  After the Second World War certain rights were granted to the individual members of ethnic, linguistic and cultural minorities; they were granted the right to have their identity and language respected by the State as part of the process of the development of human rights in general.

The rise of ethno-nationalism after the collapse of the Soviet Union in 1991 brought back the status of ethnic minorities and other groups in International Law to be an important issue concerning the international community.  Various efforts have been made on the global and regional level to improve the legal protection of minorities.  On the Global level, there is “the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992”.  On the regional level, there are “the European Charter for Regional or Minority Languages” adopted by “the Council of Europe” in 1992, “the Framework Convention for the Protection of National Minorities”] adopted by “the Council of Europe” in 1995 and the creation of “the High Commission for National Minorities” belonging to “the Conference on Security and Cooperation in Europe”.

Despite all these efforts that aimed to grant specific rights to minorities, the question remains, what legal status should be accorded to minorities in International Law?  Do minorities have international legal personality?

There is no clear answer to these questions.  Actually, the problem of minorities is very complicated because it involves political and legal dimensions related to the meaning and legal consequences of the principle of self-determination that may lead to loss of the concerned State part of its territory and its control over part of its population and to the possible outside intervention in its domestic affairs.  For this reason, it is no accident that in the development of International Law since the Second World War, the rights of minorities have been conceived as a category of human rights which are to be exercised by the individual belonging to a minority, rather than as group rights attributed to a collective entity as such.

 7.  Indigenous Peoples

     In recent years, a special issue related to a category of the so-called “indigenous peoples” has been raised. Examples of indigenous peoples are the Aborigines in Australia, the American Indians, the Eskimos and the Maori in New Zealand.  Despite the attempts by the United Nations to recognize group rights to indigenous peoples, it is still regarded as a specific category of minorities with special needs and having a particular relationship to their traditional territory.

      In conclusion, we can say that minorities and indigenous peoples are not subjects of International Law in any meaningful sense of the term and that they have not achieved an international legal personality.  They may receive guarantees of certain levels of treatment under international treaties, but it does not follow that they as such have legal personality.  International Law does not attribute rights to minorities and indigenous peoples as an entity, but rather to individual members of them.

Public International Law and national law (municipal law as known in the Common Law Countries) are two legal systems.   National law governs the domestic (internal) relations between the official authorities of a State and between these authorities and individuals as well as the relations between individuals themselves.  Public International Law governs primarily the relations between States.

With the rise and extension of Public International Law, a question begins to arise as to the relationship between the national law of the States and the Public International Law.  This question gives rise to many practical problems.  What is the status of the rules of Public International Law before a national court?  What is the status of the rules of national law before an international court?  Which rule does prevail in a case of conflict between the two laws?  How do rules of Public International Law take effect in the internal law of a State? 

The answers to the above questions are presented in the following sections: section one deals with the theories dealing with the relations between International Law and national law; section two deals with the attitude of International Law to national law; and section three deals with the attitude of various national laws to International Law.

 The Theories Dealing with the Relations Between International Law and National Law

There are two major theories on the relationship between Public International Law and national law. 

The dualist theory considers that International law and national law are two separate legal systems which exist independently of each other.  Each of these two systems regulates different subject matters, function on different levels, and each is dominant in its sphere.  Public International Law primarily regulates the conduct of sovereign States.  National law regulates the conduct of persons within a sovereign State.  On this view, neither legal system has the power to create or alter rules of the other.  When national law provides that International Law be applied in whole or in part within the jurisdiction, this is merely an exercise of the authority of national law in the adoption or transformation of the rules of International Law into its legal system.  The national law has a supremacy over the International Law; in the case of a conflict between International Law and national law, a national court would apply national law.

The monist theory, which upholds the unity of all law, regards International Law and national law as forming part of the same legal system (order).  It argues that both laws are based upon the same premise, that of regulating the conduct and the welfare of individuals.  However, it asserts the supremacy of International Law over national law even within the national sphere; in the case of a conflict between the two laws, International Law is supreme.

It is notable that the position taken by each of these two theories is a reflection of its ideological background.  The dualist theory adheres to positivism, while the monist theory follows natural law thinking and liberal ideas of a world society.

Facing these two basic theories, a third approach is introduced.  This approach is somewhat a modification of the dualist theory.  It attempts to establish a recognized theoretical view tied to reality.  While it asserts that the two laws are of two distinct legal systems, it denies that a common field of operation exists as between International Law and national law by which one system is superior or inferior to the other.  Each law is supreme in its own sphere (field).  Just as one cannot talk in terms of the supremacy of one national law over another, but only of two distinct legal systems each operating within its own field, so International Law and national law should be treated in the same way.  Each law exists within a different juridical order.

Because the above opposing theories, in reality, do not adequately reflect actual State practice, the scholars in each side have forced to modify their original positions in many respects, bringing them closer to each other, without, however, producing a conclusive answer on the true relationship between International Law and national law.  This fact has led some legal scholars to pay less attention to these theoretical views and to prefer a more empirical approach seeking practical solutions in a given case. The method of solving a problem does not probe deeply into theoretical considerations, but aims at being practical and in accord with the majority of States practice and international judicial decisions. On this view, it is more useful for us to leave the theoretical controversy aside and direct our attention to the attitude of International Law to national law and the attitude of the various national laws to International Law; these are what are discussed in the following two sections.

 International Law, in the international sphere, has a supremacy over national law.  However, this principle does not mean that national law is irrelevant or unnecessary.  International Law does not ignore national law.  National law has been used as evidence of international custom or general principles of law, which are both sources of International Law.  Moreover, International Law leaves certain questions to be decided by national law.  Examples of these questions are those related to the spheres of competence claimed by States as regards State territory, territorial sea, jurisdiction, and nationality of individuals and legal persons, or those related to obligations to protect human rights and the treatment of civilians during belligerent occupation.  Thus, the international court may have to examine national law related to these questions in order to decide whether particular acts are in breach of obligations under International Law, particularly, treaties or customary law. 

A great number of treaties contain provisions referring directly to internal law or employing concepts which by implication are to be understood in the context of a particular national law.  Many treaties refer to “nationals” of the contracting parties, and the presumption is that the term means persons having that status under the internal law of one of the parties. 

The international courts, including the International Court of Justice and its predecessor, have regarded national law as a fact that the parties may provide by means of evidence and not to be taken by the court ex officio.  Moreover in examining national law the courts have in principle regarded as binding the interpretation by national courts of their own laws. 

 The Attitude of National Laws to International Law 

   

  The attitude of national law to International Law is not that easy to summarize as the attitude of International Law to national law.  This is because the laws of different States vary greatly in this respect.  However,  States are, of course, under a general obligation to act in conformity with the rules of International Law; otherwise, they will be responsible for the violations of such rules, whether committed by their legislative, executive or judicial authority.  Further, States are obliged to bring national law into conformity with their obligations under International Law; for example, treaties may require a national legislation to be promulgated by the States parties.  Nevertheless, International Law leaves to States the method of achieving this result.  States are free to decide how to include their international obligations into their national law and to determine which legal status these have internally.  In practice, on this issue there is no uniformity in the different national legal systems.  However, the prevailing position appears to be dualist, regarding International Law and national law as different systems requiring the incorporation (adoption, transformation and reception are other concepts used) of the international rules on the national level.

Actually, the most important issues of the attitude of national legal systems to International Law concern the status of international customary law and international treaties. On these issues, the attitude of various national legal systems varies.

The survey of the attitudes adopted by various countries of the Common Law and Civil Law traditions leads to the following conclusions. The first of these is that most countries accept the operation of customary rules within their own jurisdictions, providing there is no conflict with existing laws, i.e., if there is a conflict, national law is supreme; some countries allow International Law to prevail over national law at all time. 

The second conclusion is that as regards treaties, in some countries, certain treaties operate internally by themselves (self-executing) while others require undergoing a process of internal legislation.  Some countries allow treaties to supersede all national laws (ordinary laws and the constitution), whether made earlier or later than the treaty, while others allow treaties to supersede only ordinary laws and only that made earlier than the treaty.  Others adopt opposite positions.   

The term “sources of Public International Law” is used to mean two things:  first, the actual materials determining the rules applicable to a given international situation (the material sources), and second, the legal methods creating rules of general application (the formal sources).  However, because it is difficult to maintain this distinction, the two meanings are used interchangeably.

Article 38 of the Statute of the International Court of Justice (ICJ) states the following:

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 teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

      

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

This Article lists the traditional sources of Public International Law, the actual legal materials that the ICJ has to apply to international disputes.  According to this Article, these sources are of two types:  the primary sources that are represented by the international conventions, international custom and general principles of law; and the subsidiary sources that are represented by the decisions of courts and the opinions of legal scholars. Moreover, this Article lists “ex aequo et bono” (equity) as an alternative source of Public International Law applied by the Court if the parties agree thereto.  However, in addition to these traditional sources, there are contemporary sources, such as the acts of the international organizations.

Thus, the sources of the contemporary Public International Law can be classified into seven:

1-  International customs;

2-  Treaties;

3-  General principles of law;

4-  Judicial decisions;

5-  Opinions of legal scholars;

6-  Ex aequo et bono  (Equity);

7-  Acts of international organizations.

In the following sections, these sources are discussed.

Article 38 of the Statute of the ICJ refers to an international custom as evidence of a general practice accepted as law.  This definition comprises of two elements: a general practice and its acceptance as law.  These two elements are necessary for the formation of customary international law.  The first element, the behavioural or objective element, requires a recurring consistent action or lack of action by States, which is indicated by such activities as official statements or conducts, legislative or administrative action, court decisions and diplomatic behaviours or correspondence.  The second element (the psychological or subjective element) entails the conviction that in similar case such a practice is required or permitted by international law.  In this sense, international customs may be defined as practices or usages which have been observed by a large number of States over a lengthy period of time and considered by them to be legally obligatory, i.e., being a law. 

 Notably, the terms “custom” and “usage” are often used interchangeably.  Strictly speaking, there is a clear technical distinction between the two.  Usage is an international habit of action that has not received full attestation and does not reflect a legal obligation; an example of a usage is the salute at sea.  Usages may be conflicting; custom must be unified and consistent.  A usage to become a customary rule of law, it must fulfill two conditions: acceptance or recognition by a large number of States and repetition over a lengthy period of time.  A custom has a definite obligation attached to it.  Failure to follow custom results in State responsibility, and consequently entails the possibility of punishment (sanction) or of retaliation against that State.

International custom, as Article 38 indicates, is one of the primary sources of International Law which the ICJ shall apply.  In fact, international customs constituted the bulk of the rules of International Law.  Historically, custom had played a great role in the formation of the rules of International Law.  However, since the beginning of the Twentieth Century, this role has been decreased in favor of the law-making treaties.

The term “treaty” is used as a generic term embracing all kinds of international agreements which are known by a variety of different names such as, conventions, pacts, general acts, charters, statutes, declarations, covenants, protocol, as well as, the name agreements itself.  A treaty may be defined as an international agreement concluded between States in written form and governed by International Law.

Article 38 of the Statute of ICJ indicates that international conventions (treaties), whether general or particular, establishing rules expressly recognized by the contesting states should be applied by the Court to the disputes submitted to it.  Although this Article divided treaties into two kinds, general treaties and particular treaties; it is only the first kind, the general treaties or the so called the law-making treaties, which intended to have a universal and general application, constitute a primary source of International Law.

The particular treaties or the so called treaty-contracts are not directly a source of International Law since their application is limited only to the contracting parties which are two or small number of States, and they deal with limited affairs . This kind of treaties does not create new rules of Public International Law, but at best, only new rules of particular or regional application. However, as a substantial number of States accept and recognize such new rules formulated in this kind of treaties as obligatory, these rules will become part of the Public International Law.  Examples of such treaties are bilateral treaties on commercial, and friendship relations.

The law-making treaties constitute a primary source of International Law. Since the middle of the Nineteenth Century, there has been an astonishing development of law-making treaties.  The rapid expansion of this kind of treaties has been due to the inadequacy of customs in meeting the urgent demands arose from the changes which have been transforming the whole structure of international life.  Law-making treaties have been concluded to regulate almost every aspect concerning the international community. Examples of important treaties are:  the Charter of the United Nations, the four Geneva Conventions of 1949, the Vienna Convention on Diplomatic Relations of 1961, the International Covenant on Civil and Political Rights of 1966 and the Convention on the Law of the Sea of 1982.

In contrast with the process of creating law through custom, treaties are a more modern, more deliberate and speedy method.  They are of growing importance in International Law.  Their role in the formation of new rules of International Law increases day after day.   Today, the law-making treaties are considered the most important primary source of Public International Law.

Article 38 of the Statute of the ICJ refers to “the general principles of law recognized by civilized nations” (all nations are now considered as civilized) as a primary source of International Law.  This source is listed the third after international conventions and international customs.  The Court shall apply the general principles of law in cases where treaties and customs provide no rules to be applied.

Notably, there is no agreement on what the term “general principles of law” means.  Some say it means general principles of international law; others say it means general principles of national law.  Actually, there is no reason why it should not mean both; the greater expansion in the meaning of this term, the greater chance of finding rules to fill the gaps in treaty law and customary law.  Indeed, international tribunals had applied general principles of law in both senses for many years before the Permanent Court of International Justice was established in 1920.

Nevertheless, there are various opinions as to the origin of the general principles of law.  Some regard them as being originated from the Natural Law which underlies the system of International Law and constitutes the criteria for testing the validity of the positive rules.  Others regard them as stemmed from the national legal systems (Positive Law) and have been transplanted to the international level by recognition.

      

Whatever the meaning of the term “general principles of law” and the origin of these principles, these principles are considered to be at the foundation of any legal system, including International Law.   Actually, there is an agreement that the general principles of law do constitute a separate source of International Law.  Examples of general principles of law are the principles of consent, equality, administration of justice, good faith, reciprocity, forbidding abuse of right andres judicata. 

   

Judicial Decisions 

Article 38 of the Statute of the ICJ directs the Court to apply judicial decisions as subsidiary means for the determination of rules of law.  This direction is made subject to the provisions of Article 59, which states that “the decision of the Court has no binding force except between the parties and in respect of that particular case.”  The provision of Article 59 of the Statute of the ICJ is understood to mean that the Court is not obliged to follow previous decisions.  So while, as Article 59 ascertained, the doctrine of precedent as it is known in the Common Law, whereby the decisions of certain courts must be followed by other courts, does not exist in International Law, it is still that the decisions of the international courts (PCIJ and ICJ) are quoted as authoritative decisions, and international courts have always strived to follow their previous decisions to insert certainty and uniformity within their judicial process, or at least, they have had to take previous decisions into account.

The judge of the ICJ sometimes does a little more than merely determine a law; he may establish a law.  This has occurred in many instances: the Anglo-Norwegian Fisheries case of 1951, which stated the criteria for the recognition of baseline from which to measure the territorial sea; and the Reparations case of 1949, which established the legal personality of international organizations.

  

The PCIJ, during its existence, gave a large number of decisions and advisory opinions on matters of international concern, thereby developing International Law.  The ICJ, the successor of the PCIJ, has been doing the same.

As the term “judicial decisions” referred to by Article 38 also encompasses decisions (awards) of international arbitral courts (tribunals) and the decisions of national courts, these decisions have been playing a role in the development of International Law.

There have been many international arbitral tribunals, such as the Permanent Court of Arbitration and the various mixed-claimed tribunals, including the British-American Mixed Claims Tribunal and the Iran-US claims Tribunal.  Although these tribunals differ from the international courts in some ways, many of their decisions have been extremely significant in the development of International Law.

The decisions of national courts of various nations have played a role the development of International Law, particularly the international customary law.  These Decisions help to form international customs.  They show what the national courts have accepted as international law and how the International Law, in the given case, is understood in that country.  Examples of such rules of law developed by, or derived from the uniform decisions of national courts are certain rules of extradition law, the rules related to State recognition, and the rules of diplomatic immunity.

One may finally say that judicial decisions, whether international or national, have played an important part in the development of International Law.  The international customary law has largely developed from case to case, and a large number of cases have been submitted to international as well as national courts of various nations.

Article 38 of the Statute of the ICJ includes as a subsidiary means for the determination of rules of law, “the teachings of the most qualified publicists of the various nations”. The term “teachings of publicists” means “writings”, “opinions” or “works” of legal scholars, jurists or writers.

This Article emphasizes the evidentiary value of writings of the legal scholars.  The primary function of these writings is to provide reliable evidence of the law.  Writers on International Law cannot make the law; their works are to elucidate and ascertain the principles and rules of International Law.   To be binding, the rules and principles must have received the consent, whether express or implied of States, who are to be bound by it.

Historically, the writers on International Law such as Gentili, Grotius, Pufendorf and Vattel were a primary factor in the evolution of the modern International Law; they were the supreme legal authorities of the Sixteenth to Eighteenth Centuries. They determined the scope, form and content of International Law.   However, the importance of legal writings began to decline as a result of the emphasis on the state sovereignty; treaties and customs assumed the dominant position in the exposition and development of International Law.

Nevertheless, like judicial decisions, the opinions of legal scholars can provide evidence of the existence of customary law and can help in developing new rules of law. 

      

The opinions of legal scholars are used widely.  Arbitral tribunals and national courts make extensive use of the writings of jurists.  However, the International Court of Justice makes little use of jurisprudence, and judgments contain few references; this is, primarily, because of the willingness of the Court to avoid a somewhat undesirable selection of citations.  However, many references to writers are found in the pleadings before the Court.

Article 38 of the Statute of the ICJ lists ex aequo et bono as an alternative basis for a decision by the Court in place of the normally employed legal rules.  The Court can decide a case submitted to it ex aequo et bono (in justice and fairness)only if the parties agree thereto.   Ex aequo et bono is somewhat analogous to but not exactly the same as the Common Law concept of equity.  It is broader than equity and gives the Court greater power than the latter.  It allows the Court to decide a case on considerations other than legal rules, or even in contrary to these rules, if it sensed that justice can be served thereby. Thus the term  “ex aequo et bono”means “justice and fairness” or “equity”.

Neither the International Court of Justice nor its predecessor, the Permanent Court of International Justice, has been called upon to decide a case  ex aequo et bono, although principles of equity have been applied by these courts in some cases. The ICJ in the North Sea Continental cases (1969) directed the delimination between the parties (West Germany, Holland and Denmark) “in accordance with equitable principles”.  The PCIJ in the Diversion of Water from the MeuseRiver case (1937) applied  principles of equity after considering them as part of the International Law which it should apply.  Moreover, international arbitral tribunals have resorted to the principles of equity in several cases.

Despite the application of the principle of equity by international courts, the existence of  “equity” as a separate and distinct source of law is highly controversial.  Some regard equity as a source of International Law, and   apply it as distinguished from law; however, they often appeal to natural law in order to strengthen their arguments. Thus to them the three terms “equity”, “justice” and “natural law” tend to merge into one another.  During the Sixteenth and Seventeenth Centuries natural law was a major source of International Law.  In the Nineteenth and Twentieth Centuries arbitrators have often been authorized to apply justice and equity as well as International Law; such authorization were more common before 1920 than they are today.

Other scholars do not recognize equity as a separate and distinct source of law; they regard the principles of equity as part of the general principles of law that are common to all national legal systems.

Whatever the position may be, it is doubtful whether equity form a source of international law.  It cannot be assumed that a judge uses equity as a source of law every time he describes a rule as equitable or just.  Strictly, “equity” cannot be a source of law; yet it may play an important role in supplementing the law or may appear as a part of judicial reasoning. A judge or arbitrator can always use equity to interpret or fill gaps in the law, even when he has not been expressly authorized to do so.  But he may not give a decision ex aequo et bono unless he has been expressly authorized to do so.

Acts of International Organizations    

The growth of international organizations since the First World War has been accompanied by suggestions that the acts of these organizations should be recognized as a source of International Law. The question involved hereto is whether the decisions of the organs of these organizations can be regarded as a separate source of International Law.

Decisions of the organs of international organizations may be binding or non-binding.  An organ may be authorized to take decisions which are binding on member states; only these binding decisions are regarded as a source of the International Law.  The only clear example of binding decisions is the resolutions which the Security Council of the United Nations are authorized to take under Chapter Seven (VII) of the Charter of the United Nations dealing with actions related to threats to the peace, breaches of the peace, and acts of aggression.

However, there is a controversy concerns the non-binding decisions of the organs of the international organizations. Since almost all the organs of the international organizations are composed of representatives of member states and their acts are merely the acts of the states represented in these organs, they would probably constitute an evidence of customary law because they reflect the views of the state voting for them. The obvious examples of such type of acts are the resolutions and declarations of the General Assembly of the United Nations.  When the vast majority of States, in the General Assembly, consistently vote for resolutions and declarations on a certain topic, a State practice will be established and a binding rule of customary International Law will emerge. Thus, these resolutions and declarations will constitute an evidence of the existence of customary International Law.  Examples of such resolutions and declarations regarded as examples of State Practice which have led to binding rules of customary International Law are: “the Resolution on Prohibition of the Use of Nuclear Weapons for War Purposes”, “the Declaration on Granting of Independence to Colonial Countries and Peoples”, “the Declaration on Permanent Sovereignty over Natural Resources” and “the Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space”. 

      

Resolutions and declarations of the General Assembly may also provide a basis for the progressive development of the International Law and the speedy adaptation of customary law to the conditions of modern life. Moreover, in some instances, a resolution or declaration may have direct legal effects as an authoritative interpretation and application of the principles stated in the Charter of the United Nations.

The initial aim of Public International Law has been to create an orderly system of international relations. However, the modern developments of this law have added another aim to it. Since the beginning of the Twentieth Century, there has been an evidence of a tendency to bring justice into the international community through ensuring justice in the relations of States and securing justice for peoples and individuals.

The establishments of the Permanent Court of International Justice in 1921 and the International Court of Justice in 1945 have been a clear evidence of such a new aim of the Public International Law. The use of the term “justice” in the name of these international courts where disputes among States are decided and where advisory opinions are given according to Public International Law is evidence that justice has become the concern of this law, and has become one of its aims and purposes.

To ensure and secure justice, and above all, to bring order to the international relations are the primary aims of the contemporary Public International Law. This law, which regulates relations between international persons, aims to create a system of order and justice for the international community. In the absence of such a system, it will be impossible for the international persons to have steady and continuous relations, and to enjoy the benefits of such relations.