9 Other Sources of International Law

Prof. Ruchika Rao

Introduction

Once the primary sources of International Law that find direct application under the ICJ statute have been considered, it becomes important to take a look at other less persuasive sources of international law. These include non-codified and normative aspects of international law and include unilateral declarations, judicially evolved principles such as erga omnes obligations, widely observed practices between friendly nations (or the principle of comity) and the work done by ancillary organs that support the working of international organisations like the International Court of Justice and the United Nations General Assembly.

It is important to remember that in general, international law lacks a central law-making power equivalent to the one in national legal systems. The characteristic feature of international law is that its main addressees are also the ones who create international law. Therefore, international law has elements of self-commitment as well as contractual elements, although it would be a simplification to qualify international law only or even predominantly from these two points of view. As already indicated, international law is not only based upon the consent of the States concerned but reflects and has to reflect principles such as justice, equity, and fairness. Such principles are—as can be taken from the evolution of the international community since the end of World War II—not static but develop progressively as required. Whereas traditionally, international law was considered as a legal system coordinating activities of States, it has developed under the aegis of the United Nations into a legal regime which is increasingly dominated by the principle of co-operation. Some areas of international law, in particular the ones on economic relations or on the protection of the environment, are governed by the principle of solidarity. The latter goes beyond the principle of cooperation in that it requires the subjects of international law not only to co-operate amongst each other but also to take into consideration the interest of others and to be guided by the interests of the international community as such. This, as well as the international human rights regime which influences other areas of international law, has an impact on the interpretation of international treaties and on the development of the sources of international law in general.

Learning Outcomes:

• In this Module students will learn about the basic principles of International Law.
• Students will learn and understand the concept of erga nomes
• The module will make the students aware about the contribution of International Court of Justice and its important observations.

1.  Obligations Erga Omnes

The International Court of Justice (ICJ) recognized in the Barcelona Traction Case that there are two different categories of obligations under public international law. The Court stated that there are ‘obligations of a State towards the international community as a whole’ which are ‘the concern of all States’ and for whose protection all States have a ‘legal interest’. These obligations are fundamentally different from those existing vis-à-vis another State.

One year before the Barcelona Traction Case, in 1969, the Vienna Convention on the Law of Treaties (1969) (‘VCLT’) had been adopted. The VCLT had for the first time recognized the existence of ius cogens in public international law. The recognition by the community of States of the existence of norms from which no derogation is permitted implied that there exists a hierarchy of norms also in public international law. Almost as a logical consequence, the ICJ underlined the interest of the whole international community in the respect of and compliance with these fundamental norms. The ICJ has confirmed the existence of obligations erga omnes in East Timor (Portugal v Australia) (‘East Timor Case’ para. 29); and in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) paras 155–60).

Although ius cogens and obligations erga omnes have different legal consequences, they are related to each other in important aspects. A rule from which no derogation is permitted because of its fundamental nature will normally be one in whose performance all States seem to have a legal interest. This is confirmed by pertinent case law. In the Barcelona Traction Case for instance the ICJ described obligations erga omnes in the following terms:

“Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”

In the East Timor Case and in the Israeli Wall Advisory Opinion (paras 155–159) the ICJ qualified as obligations erga omnes the obligation to respect the right of self-determination as well as certain obligations under international humanitarian law. The ICJ did not explain in detail how these rights which are the concern of all States may be enforced. In the Barcelona Traction Case the Court stressed that on the universal level the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality. The ICJ mentioned Art. 24 (now Art. 33) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) to illustrate that regional systems may contain such possibilities (Barcelona Traction Case para. 91).

In the Israeli Wall Advisory Opinion the ICJ circumscribed the obligations of third States as follows:

“Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.” 

Obligations erga omnes should be clearly distinguished from treaty obligations, which may sometimes be obligations erga omnes regarding parts of the treaty. It is, on the other hand, quite possible that obligations erga omnes are also laid down in a treaty as in the Convention on the Prevention and Punishment of the Crime of Genocide.

The importance of erga omnes obligations as discussed above has been developing substantially in universal law. The Court’s pronouncement in the Barcelona Traction case on obligations erga omnes, while obiter dictum, is pertinent and has become increasingly relevant and critical from that point forward. The concept though not previously unknown has evolved following the judgement. In addition, the instances specified by the court flew from peremptory norms of international law which had already been recognized. The concept of erga omnes commitments was applied on various events in the pleadings of gatherings and by the Court after it was first elucidated in the Barcelona Traction case.

Arguably, erga omnes commitments have empowered the International Court of Justice to make use of “judicial legislation” for Obligations on States that are by “their nature” a concern of the international community in general. The significance of erga omnes obligations lies in the fact that they identify an area of international law and obligations which goes beyond the traditional reciprocal relations between States based on consent.

In spite of the fact that the eventual fate of the idea and its enforceability is unclear because of its potential ramifications for relations among states, the concept by drawing upon preexisting pre-emptory norms in international law has gained both significance and legitimacy.

2.  International Law Commission

The International Law Commission was established in 1948 by the United Nations General Assembly in furtherance of its mandate under Article 13(1)(a) of the United Nations Charter to ‘initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification’. The International Law Commission discharges an essential if not strictly legislative function in the codification, and continued development of international law. The relevance or practicality of codification in questioned in the context of the somewhat ephemeral area of international law and relations. Where there are prima facie advantages and disadvantages to codifying and implementing international norms and practices, the role of the ILC in aiding and evolving the functioning of international law.

It makes or at any rate it should make the substance of law more certain, precise, uniform, visible, and accessible, and its utilization more efficient in matters of detail. As per the ILC statute, in performing its task to promote ‘the progressive development of international law and its codification’, the ILC is to concern itself primarily with ‘public international law’ but is not ‘precluded from entering the field of private international law’. Although the meaning, for the sake of convenience, of the terms ‘progressive development’ and ‘codification’ are set out in Art. 15 ILC Statute, and some commentators regard the distinction as an important one, the ILC does not specify which portions of its product partake of what character. By its very nature a strict distinction is neither possible nor necessary. It is common knowledge that in respect of most branches of international law, despite agreement on the generality of the principle, there is wide divergence of practice in the matter of detailed application.

3.1 Work done by the ILC

The legal nature of the ILC’s work has the form of recommendations that are not automatically binding on States as existing international law. The ILC right from its inception worked according to a planned programme and on the basis of carefully selected topics. Out of a list of 25 topics initially identified by the Lauterpacht memorandum in 1949 it has covered most of them, including some further sub-topics during the last 50 or more years. Only topics such as recognition of States and governments; treatment of aliens, which was partially studied during 1956–61 but abandoned in 1962; territorial asylum; extra-territorial jurisdiction; status, privileges, and immunities of international organizations and their personnel; judicial regime of historic waters, including bays; and the question of nationality of legal persons remain uncovered. In the process, the ILC has adopted nearly 25 sets of draft articles, covering such diverse but fundamental fields of international law as the law of the sea, law of treaties, State succession, diplomatic and consular relations, jurisdictional immunities of States, non-navigational uses of international watercourses, code of crimes against peace and security of mankind, State responsibility, and prevention of transboundary harm from hazardous activities.

At the session held in 2006, the ILC was able to finalize the Draft Articles on Diplomatic Protection and the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities in fulfillment of its 28 year old mandate on the agenda item concerning international liability. In addition, it also completed work on fragmentation dealing with difficulties arising from diversification and expansion of international law and the value of unilateral acts of States as a source of rights and obligations of States. By 2011, the UN ILC also completed work on reservations to treaties, transboundary aquifers as part of a broader topic of shared natural resources, responsibility of international organizations, and effect of armed conflicts on treaties. In 2014 the Commission adopted 31 draft articles on the expulsion of aliens.

By the end of its 68 Session in August 2016, the Commission was able to adopt a set of draft articles together with commentaries thereto on first reading on the topics of (i) ‘Identification of customary international law’ (with an earlier title ‘Formation and evidence of customary international law’ on its agenda since 2012): adopted a set of 16 draft conclusions; and (ii) ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties’ (commenced under an earlier title ‘Treaties over time’ on its agenda since 2009.

In addition the Commission during the next five years commencing from 2017 would continue to deal with other topics on its current work program, namely, ‘Immunity of State officials from foreign criminal jurisdiction’ (on its agenda since 2007, ‘Provisional application of treaties’ (on its agenda since 2012), ‘Protection of the environment in relation to armed conflicts’ (on its agenda since 2013), ‘Protection of the Atmosphere’ (on its agenda since 2013), ‘Crimes against humanity’ (on its agenda since 2014) and ‘Jus cogens’ (on its agenda since 2015). Furthermore, as part of its long-term programme, the Commission decided to consider two topics: (a) The settlement of international disputes to which international organizations are parties; and (b) The succession of States in respect of State responsibility.

The final outcome of the work done by the ILC may also take the form of declaration[s], resolutions, conclusions, or model laws. It is also open to the ILC to recommend to the UN General Assembly to take no action, to adopt a resolution, or just to take note of the final outcome. In the case of the guide to practice on reservations to treaties (2011), guiding principles on unilateral acts (2006), and on fragmentation resulting in the adoption of some conclusions (2006) the ILC commended them to the attention of the General Assembly, or took note and sought their wider dissemination.

The ILC in some cases recommended that its end-product be treated as ‘suggestions’, even though for convenience’s sake they were formulated as draft articles. Such is the case with UN ILC ‘Draft Convention on the Elimination of Future Statelessness’ of 1954. Similarly, the ‘Draft Convention on Arbitral Procedures’ of 1958 was framed as model rules and the General Assembly in the same year brought them to the attention of States for their consideration and use. It also recommended that the ‘Draft Articles on Nationality of Natural Persons in relation to the Succession of States’ of 1999 be adopted as a declaration of the General Assembly. The General Assembly, however, took note of the articles in 2000 and brought them to the attention of States recommending their wide dissemination. In respect of the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities (2006), the ILC recommended to the General Assembly that they be adopted by a resolution and urged States to take national and international action to implement them. The matter is under consideration of the UN General Assembly.

The ILC frequently consults with various bodies, both official and unofficial, on particular topics, for example with the Food and Agriculture Organization of the United Nations (FAO) concerning the law of the sea and shared natural resources; with the UN High Commissioner for Refugees on nationality, including statelessness and nationality in relation to the succession of States; with the International Committee of the Red Cross (ICRC), in particular, on the Draft Code of Crimes against the Peace and Security of Mankind; with the International Association of Hydrogeologists on shared natural resources; with the members of the Committee against Torture; with the Committee on Economic, Social and Cultural Rights (CESCR); with the Human Rights Committee and the Sub-Commission on the Promotion and Protection of Human Rights on reservations to treaties; with the International Law Association (ILA) on diplomatic protection, responsibility of international organizations, and the long-term programme of work.

In some instances, the ILC has invited organizations concerned to submit relevant data and materials that could assist the ILC in determining its future work on a topic as well as comments and observations on the work in progress, including relations between States and international organizations, the question of treaties concluded between two or more international organizations, and reservations to treaties and more recently, in 2003, on the ILC’s report on the topic of responsibility of international organizations to the UN and its specialized agencies as well as other international organizations.

3.  Comity

International Comity is a concept in international law that include various forms of conduct in between sovereign nations which find their basis in tradition, courtesy, goodwill, or utility. Comity is not recognized in international law as a binding principle since it finds its roots in rules that have grown out of tradition and usage and not the more traditional domains of international law.

Although some academics hold contrary opinions, no rigid distinction has been made between the behavior of states and the norms that form the basis for that behaviour, which are collectively understood as comity. Comity does not pertain to the sources of international law as provided for in Art. 38 (1) of the Statute of the International Court of Justice (ICJ). Nonetheless, it has always been a matter of interest in public international law, not only as it might sow the seed for forthcoming legal rules, but also due to its vicinity to the principle of good faith. For obvious reasons public international law does not regulate comity, so some uncertainty and ambiguity on the scope, sense, and application of the concept persists. As the variety of diverging assumptions on comity cannot be referred to in detail, it may suffice to mention that, contrary to the prevailing opinion, some authors have indeed placed it within the scope of public international law. Among these, several have considered comity a principle rooted in international law or at least derived from it, while others even maintained that comity and international law were synonymous notions.

4.1 Origins of the principle of Comity

In international jurisprudence, the existence of rules of ‘courtesy and mutual deference between different nations’ was proposed as early as 1872 in the Alabama arbitral award. The ICJ referred to the idea of non-binding principles governing international affairs only in a small number of cases, and has not done so since 1968. In its judgment on the Asylum Case between Colombia and Peru, also known as Haya de la Torre I, in 1950, the Court invoked the possibility of comity existing in the field of asylum law: ‘In a more general way, considerations of convenience or simple political expediency seem to have led the territorial State to recognize asylum without that decision being dictated by any feeling of legal obligation’ (Asylum Case [Colombia v Peru] [Judgment] [1950] ICJ Rep 266 para. 286). This was reiterated a year later in the second Haya de la Torre judgment, when the Court expressed its assumption that the parties ‘will be able to find a practical and satisfactory solution by seeking guidance from those considerations of courtesy and good-neighbourliness which, in matters of asylum, have always held a prominent place in the relations between the Latin-American republics’ (Haya de la Torre [Colombia v Peru] [Judgment] [1951] ICJ Rep 71 para. 83). In its 1968 decision on

one of the North Sea Continental Shelf cases, the ICJ points to opinion iuris as the decisive distinction between customary international law on the one and what is considered as ‘non-law’ on the other hand: ‘There are many international acts, eg, in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by the sense of legal duty’ (North Sea Continental Shelf Cases [Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands] [Judgment] [1968] ICJ Rep 3 para. 44).

4.2 Comity and International Law

The relationship between comity and customary international law is by no means uncomplicated. While it is true that comity lacks opinio iuris, in the case of which it would have to be qualified as legally binding, it is nevertheless imbued with certain subjective elements such as a conviction of utility or moral necessity. Comity thus extends beyond mere and purely objective practice, which is not rule-based. Some authors contend the presence of a subjective component or have proposed to replace the moral perspective with a purely objective focus on custom. Customary law may ‘descend’ or degenerate to comity, which occurs as soon as the conviction of legal obligation fades. For example, salute between warships, once mandatory, is regarded today as subject to courtesy only. Likewise, the ‘rights of honour’ (formal salute, guard of honour etc), formerly conceded to heads of state as a duty as an act of hospitality, have sunk down to become mere acts of hospitality. In return, the subjective facet inherent in comity sometimes carries the seed of future customary law, arising as soon as the moral conviction turns into a legal one. Thus customary international law has repeatedly evolved from comity, especially in the field of diplomacy and State visits.

The exemption of Heads of State from any (administrative or judicial) acts enforcing the laws of the hosting State and in certain cases even of the application of these laws (eg, tax law), that was formerly accepted as comity, is now founded in customary international law. Several rights of diplomats have acquired force of law only thanks to codification in the Vienna Convention on Diplomatic Relations (1961), eg, application of privileges to immunities prior to the taking up of diplomatic functions (Art. 39 VCDR) or inviolability during transit (ibid Art. 40). These provisions may also be deemed to have consolidated to customary law among non-Contracting Parties. Room for comity is still left in diplomatic affairs, however. In 1971, for example, the German Federal Administrative Court contested the existence of a duty to provide parking space for foreign embassies on public streets, which was held to be a simple matter of courtesy. The exemption of small fishing vessels from seizure, which since a 1798 judgment had been regarded as a rule of comity, was finally recognized as customary law by the US Supreme Court, who in 1900 had found sufficient evidence of the formation of an opinio iuris, and in the following years by other States’ authorities, likewise. No consent has been reached so far on national jurisdiction of the port State upon incidents on foreign vessels that do not interfere with its national peace and order: while from a US perspective, these events are subject to full jurisdiction of the port State, which may renounce it on the ground of comity, other countries argue that jurisdiction remains with the flag State.

While it can be difficult to ascertain whether a rule of comity has undergone a transformation into customary law, sufficient evidence of comity being replaced by law is given where such a rule is cast into a treaty provision. Certain scholars consider comity as targeted to later hardening to binding rules. Yet, not only is there no practical evidence given of this assertion, but some authors even argue that States refer to comity for adopting a practice they would never accept if based on a binding rule. The latter finding is sometimes viewed as an advantage of comity over customary and treaty law.

4.3 Impact on International Law

Comity is not just a germ of customary law or the skeleton remaining from it. Under certain circumstances, it may as well determine the scope of duties arising from customary rules, especially where the principle of good faith is involved. This principle, unlike comity, is a customary rule and also a general principle of law. As such, it serves as a restriction on the exercise of other legal powers. However, comity can in individual cases determine what is required by good faith, which takes into account reliability based on tradition and expectations of courtesy. A clear-cut distinction between comity and good faith is therefore sometimes hard to draw. Some even consider comity as a source of duties as such. For example, the European Court of First Instance, in a 2005 decision on acts required for implementing international measures against the Taliban regime, stated that ‘the principle of comity of nations obliges the Community to implement those measures inasmuch as they are designed to protect all States against terrorist attacks’ (Case T–315/01 Kadi v Council and Commission [2005] ECR II-3649, para. 163).

Furthermore, there are binding international agreements such as the EU-US American Agreement on the application of positive comity principles in the enforcement of their competition laws, concluded in 1998, that declare comity as subject to regulation among the Contracting Parties. Art. 3 of the aforesaid agreement provides for ‘positive comity’ in the sense that ‘[t]he competition authorities of a Requesting Party may request the competition authorities of a Requested Party to investigate and, if warranted, to remedy anticompetitive activities in accordance with the Requested Party’s competition laws’ regardless of whether the activity violates the competition law of the former and whether it has taken enforcement activities. Once enforcement measures have been taken by the requested party, the requesting party will ‘normally’ defer or suspend its own enforcement activities. This approach underlines that a limit between ‘comity’, which is here used for international division of administrative labour, and ‘hard law’, can hardly be traced.

As, in principle, rules of comity are not binding as such, a State cannot be in material breach of them. Hence, disregard of comity is not a wrongful act that entails liability under international law but just an unfriendly act. Therefore, no other party is entitled to reprisals, either. The only suitable response is retorsion, ie an ‘unfriendly act’ in return, which implies that in most cases the addressee of the first unfriendly act will waive comity for its part. This shows that the idea of comity is almost inextricably linked to the expectation of reciprocity. In reverse, the lack of possible sanctions attached to the contravention to a rule is no sufficient evidence of its constituting a non-legally binding rule of comity.

The present importance of comity to international affairs is hard to determine. On the one hand, it has visibly shrunk in sectors such as diplomacy or extradition as a consequence of a reduced emphasis on State sovereignty, which has fostered international law-making. On the other hand, the same process has led to an unprecedented increase in the fields and scope of international co-operation, which theoretically breaks new ground for comity as well. Thus, comity is increasingly associated with international solidarity, such as, for example, actions of assistance to States in need (relief in case of disasters, remission of foreign debt etc).

4.  Declarations

Declaration is the means by which subjects of international law express their will, intention, or opinion when acting in the field of international relations. It is generally the form in which unilateral acts of subjects of international law are performed, but it can also be part of a multilateral transaction, eg if a group of states adopt a common declaration or if a treaty provides for unilateral declarations to be made in order to specify the treaty commitments. If used in a formal sense, the notion declaration generally indicates some degree of solemnity and the intention of public notice. The content of a declaration can be any statement whatsoever. Whether it produces legally binding effect depends, inter alia, on the circumstances under which it is made. Legal doctrine is divided over whether a declaration having legal effect is a source of law in itself, or whether it simply produces certain effects, eg legal obligations, by virtue of norms of treaty or customary international law.

5.1 Forms and Instances

Declarations are being made in almost every context of international affairs. Beside unilateral statements they can take on the form of—bilateral or multilateral—joint statements, or even have the character of multilateral treaties. Such was, for example, the case with the Paris Declaration Respecting Maritime Law, the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, and the Joint Declaration of the Government of the People’s Republic of China and the Government of the Republic of Portugal on the Question of Macau.

Declarations have always been an instrument of States in their international affairs. As a political device they serve to express their official views and intentions, to clarify common positions in a multilateral context, or to determine their strategic situation. Important political declarations in history include the Fourteen Points of Wilson (1918) and the Atlantic Charter (1941) drafted by Roosevelt and Churchill. In more recent times, the Charter of Paris for a New Europe (1990) or the Vienna Declaration and Programme of Action (1993) of the World Conference on Human Rights may be mentioned.

As a legal instrument declarations may, within a given legal regime, allow States to modify the legal situation and create rights and obligations for themselves or others. In this respect declarations may have a somewhat ambivalent character and, although containing merely a political statement, give rise to certain legal consequences, such as the recognition of States and governments. Also a declaration may in a given case contain both legal and political elements, such as a unilateral declaration made by a party with regard to a certain treaty which may contain reservations as well as mere interpretative declarations.

As a consequence of the institutionalization of international law in the 20 century, declarations have become the most important operative instrument of numerous international bodies, above all the United Nations General Assembly. Since according to the United Nations Charter it can only adopt non-binding recommendations, the General Assembly has made use of solemn declarations in order to enunciate important principles of international relations, some of which have decisively influenced the development of international law. Most prominent examples include the Universal Declaration of Human Rights (1948), the declaration on Permanent Sovereignty over Natural Resources (1962) and the Friendly Relations Declaration (1970). As evidence of emerging convictions among States those declarations may become part of binding treaties; as an expression of prevailing views and current State practice some of them may be taken to reflect customary international law on a given subject. Such is, for example, the view of the International Court of Justice (ICJ) with regard to the Friendly Relations Declaration.

Today it may be asked whether declarations in an international legal sense can also be made by individuals. Traditionally private persons did not play a role in international relations or international law and may, therefore, still not be considered to be in a position to conclude a treaty or to author a declaration. But since in current international law the individual holds an autonomous position in several areas, and in some of them is even recognized as a subject of law, it does not seem implausible that private persons might make declarations of some relevance under international law. This could apply, for example, to certain judicial, quasi-judicial, or arbitral proceedings where the individual enjoys a procedural position of its own

There is no general rule of international law which would require declarations to be made in a specific form. Thus, in principle, declarations can be oral or in writing, delivered informally or by way of notification. For a certain area of law, however, treaty norms may set up specific form requirements. If subjects of international law refer to a document as a declaration, which might generally suggest that they do not want it to have legal effect. Therefore, most of the statements published as declarations only have a political character and, if at all, political consequences. By operation of legal norms, however, even those declarations may produce legal effects. Besides, some declarations, depending on their wording and the circumstances under which they are made, may be intended to alter a given legal situation. From a doctrinal point of view, therefore, immediate and indirect legal effects of declarations must be distinguished.

5.2. Immediate Legal Effects

A declaration as a manifestation of a unilateral act in international law can be intended to have, as such, direct legal effects. This presupposes in any case that the declaration is being made on behalf of a subject of international law, that the person making the declaration is authorized to do so and, when making it, had the will to produce the binding effect attributed to the declaration. This intention has in any given case to be ascertained by interpretation.

Unilateral declarations by States can serve to alter the legal situation when a special legal regime attributes to them effects of that kind. This is the case, for example, under the laws of war (declaration of war, establishment of a blockade, declaration of neutrality; armed conflict); in treaty law (reservations, objections, accession, denunciation); diplomatic law (persona non grata), and in the law of the sea (eg establishment of the breadth of the territorial sea, determination of the allowable catch of living resources in the exclusive economic zone). Under some treaties, eg according to Art. 36 (2) Statute of the International Court of Justice, States can declare their acceptance of jurisdiction. Other treaty systems, eg in international trade or environmental law, provide for a framework regime to be filled with specific commitments which the parties may declare. Also States may lose certain rights under international law, eg state immunity or reparation claims, simply by declaring a renunciation.

Secondly, declarations by States may be the constitutive part of a legal transaction which requires several elements to be legally effective. Thus, in former times the occupation of terra nullius or the annexation of territory had to be declared. The same ought to apply to the renunciation of State territory. The famous Ihlen Declaration by the then Norwegian foreign minister, which contained the recognition of Danish sovereignty over Greenland, was really part of an agreement concluded between the two States, rather than a unilateral undertaking.

Finally, it is well recognized today that even without the framework of a legal regime, declarations made by way of unilateral acts may have the effect of creating legal obligations for the subject of law who makes them. As the ICJ held in the Nuclear Test Case (Australia v France), a declaration made by a State organ publicly and with an intention to be bound creates an autonomous legal undertaking of that State. The latter is thenceforth legally required to follow a course of conduct consistent with the declaration. There is no reason why this should not also apply to other subjects of international law, such as international organizations.

5.3 Indirect Legal Effects

Legal or political declarations by States may give rise to legal consequences through the operation of norms of international law to which they are not related. For example, declarations can be the basis for estoppel or prescription. If a State declares its recognition of a State or a new government, it is bound by the principle of good faith to regard it as a subject of international law or the legitimate representative thereof, respectively. Similarly, declarations may serve to prevent certain legal effects, eg those of estoppel or the loss of rights. A declaration of protest against another State’s course of action may prevent the appearance of acquiescence and thus for the declaring State preserve the opportunity to bring claims for damages.

Declarations can moreover be important elements in the process of creating norms of customary international law. Depending on the legal context in which they are made they may be regarded as—unilateral or multilateral—acts of State practice or as evidence of a certain opinio iuris. If a joint declaration is made by a great number of States, eg through the General Assembly, this might considerably intensify the process of creating a customary norm that corresponds with the contents of the declaration.

Conclusion

In this module we discussed the meaning of erga nomes and its contribution in the development of international law. The module also discussed the important case law related to the subject which highlighted the significance of this important principle. The student also learned about the concept of Comity in International Law in the relation to its contribution to the overall field.

Reference

• A Rubin ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 AJIL 1–30.
• J Paul ‘Comity in International Law’ (1991) 32 HarvIntlLJ 1–79.
• L Oppenheim ‘The Science of International Law: The Task and the Method’ (1908) 2 AJIL 313– 356.
• L Oppenheim Oppenheim’s International Law vol 1 part 1 (R Jennings and A Watts eds, 9th ed Longman Harlow 1992) 50–52.
• M Ragazzi, The Concept of International Obligations Erga omnes (Clarendon Press Oxford 1997).
• S Waller ‘The Twilight of Comity’ (2000) 38 ColumJTransnatlL 563–79.