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CHAPTER III

TOWARDS A PROPER UNDERSTANDING OF GENERAL


INTERNATIONAL LAW, CUSTOMARY INTERNATIONAL
LAW, AND THE JUDICIARY IN GLOBAL SOCIETY
At the entrance to learning, however, as at the
entrance to Hell, the demand must be posted :
Qui si convien lasciare ogni sospetto ;
Ogni vilt convien che qui sia morta.
[Here must be left behind all hesitation ;
Here must perish all cowardice.]
Dante, Divine Comedy
(Karl Marx.)

Introduction
When conceiving of the problem of international law in the
twenty-first century, it is highly important to consider the status and
function of general (or universal) international law valid to all members in international society 120. Serious debates and controversies on
the universality of human rights demonstrate the crucial importance
of the problem of universal or general validity of international legal
norms. Many important notions in international law, such as jus
cogens, obligations erga omnes and hierarchy of norms in international law, presuppose the idea of international law with universal
validity.
120. One may argue that we should conceptually distinguish between universal international law, characterizing it as international law valid to all members
in international society, and general international law, characterizing it as international law valid to most members in international society. However, it is
impossible to demonstrate the universal validity of law in an unequivocal manner. Even if one defines universal international law as international law that is
valid to all subjects (or States) of international law, one may be immediately
asked who those subjects or States are. Is Taiwan a subject of international law ?
To some, it is, but to many others, it is not. The answer may be different according to the area and/or context of international law as well. Whether a norm is
universal or general cannot be answered in a categorical way. It is a matter of
degree. We may be able to talk about the universalization or universalyzing process of a norm, but we cannot identify the universality itself in an unequivocal
manner. Arguments on the universal validity of the human rights norms typically
demonstrate that universality depends on the degree of persuasiveness of the
argument dealing with a specific norm in question.

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How and to what extent norms of general international law can


assert universal validity, transcending national, regional, cultural,
religious and civilizational boundaries ? How can they be realized in
international society where power, interests and value judgments of
its members are so diverse ? What are the bases of the universal
validity of a norm of international law ? How can we identify norms
with universal validity ? These problems constitute crucial issues in
the deliberation of international law in the twenty-first century.
In the twentieth century, international law with a universal validity was generally considered in terms of customary international law.
It was generally argued that general international law exists (only) in
the form of customary international law. However, characterization
of general international law as customary international law has
a number of problems. Most seriously, because many norms of
customary international law were products of a small number of
powerful Western States, they lack global representative legitimacy.
This is a serious flaw for legal norms with a universal validity
which should transcend national, cultural, religious and civilizational boundaries. A new concept of general international law with
international, transnational and transcivilizational legitimacy, which
should respond to emerging realities of the twenty-first century,
must be sought.
In actuality, many international lawyers have utilized multinational treaties, UNGA resolutions and other relevant instruments
as cognitive bases through which they identify norms of international
law including those with a universal validity. However, when they
considered the problem of cognitive bases (or so-called sources)
of international law, they almost automatically resort to Article 38 of
the ICJ Statute. This almost axiomatic reliance on Article 38 of the
ICJ Statute for identifying the sources of international law prevented a proper understanding of the cognitive bases of international
law. Although international law exists and functions primarily as
prescriptive norms of conduct, as many other kinds of law do, prevalent studies of international law in the twentieth century tended to
consider international law almost exclusively in terms of adjudicative norms as far as the sources of international law was concerned. Underlying this attitude is an excessive judicial-centrism in
international legal studies, which was further supported by what I
call a (West-centric) domestic model approach in international legal
thoughts in the twentieth century.

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In this chapter we seek to elucidate problematic features of the


traditional theory of customary international law. We then seek to
make explicit a proper way to identify norms of international law
with a universal validity reflecting the prevalent normative ideas and
responding to realities of the twenty-first century. By carrying out
this task, we should be able to clarify the proper role and status of
the judiciary and international law as adjudicative norms in global
society.
I. Concept of General International Law
in the Twentieth Century 121
1. Equation of general international law with the so-called customary international law
(1) Problems in resorting to Article 38 of the ICJ Statute for identifying the sources of international law
In the twentieth century, international law with a universal validity was considered mostly in terms of customary international law.
The ICJ generally resorted to the notion of customary international
law when it found necessary to refer to international law that obligates all States in international society 122. A number of leading international lawyers resorted to the same method. Most international
lawyers in the twentieth century relied on Article 38 of the ICJ
121. The argument in this chapter is based on my two earlier writings. The
first is The ICJ : An Emperor Without Clothes ?, Nisuke Ando, et al., eds.,
Liber Amicorum Judge Shigeru Oda (Kluwer Law International, The Hague,
2002), and the second is A Transcivilizational Perspective on Global Legal
Order in the Twenty-First Century : A Way to Overcome Westcentric and Judiciary-centric Deficits in International Legal Thoughts, Ronald St. John Macdonald and Douglas M. Johnston, eds., Towards World Constitutionalism
(Martinus Nijhoff Publishers, Leiden, 2005). Because of the development of my
ideas, there are a number of revisions of, and additional points to, my earlier
arguments.
122. There have been numerous ICJ judgments of cases demonstrating this
tendency. See, e.g., Nottebohm case, Judgment of 6 April 1955, ICJ Reports
1955, pp. 22-23 ; North Sea Continental Shelf case, Judgment of 20 February
1969, ICJ Reports 1969, pp. 37-39 ; United States Diplomatic and Consular
Staff in Tehran case, Judgment of 24 May 1980, ICJ Reports 1980, p. 31 ; Military and Paramilitary Activities in and against Nicaragua case, Judgment of
27 June 1986, ICJ Reports 1986, pp. 102-106 ; Maritime Delimitation in the
Area between Greenland and Jan Mayen case, Judgment of 14 June 1993, ICJ
Reports 1993, pp. 59-63 ; Gabkovo-Nagymaros Project case, Judgment of
25 September 1997, ICJ Reports 1997, pp. 40-41 ; Kasikili/Sedudu Island case,
Judgment of 13 December 1999, ICJ Reports 1999, p. 1059 ; etc.

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Statute when they identified the cognitive basis of international law,


and argued that general international law exists (only) in the form of
customary international law 123. This approach is still prevalent, or
almost axiomatic, in the study of international law.
A major reasoning for such an attitude was as follows. Article 38
of the ICJ Statute provides for the sources of international law.
This being the case, it was argued, any norms of international law
must be located in one of the categories of this article. It provides
treaties, custom and general principles of law recognized by civilized nations as major sources of international law. Because there is
no treaty binding all States in international society, either rules of
customary law or those of general principles of law must be
applied when it is required to apply norms with a universal validity.
Because the latter has many disadvantages, customary international
law must be chosen as international law with a universal validity.
However, these assumptions and reasonings are highly questionable, and must be scrutinized in many respects.
First, even as to norms to be applied by the ICJ, Article 38 may
not exhaustively enumerate such binding norms. It may provide
applicable norms only as examples 124. It is possible to argue that
Article 38 does not prohibit the ICJ from applying norms other than
those enumerated (a)-(d) in paragraph 1, interpreting them as an
exemplary enumeration, not as an exhaustive enumeration. As discussed later, the ICJ has sometimes referred to general norms of
international law without explicitly characterizing them as customary law. This fact may suggest that the ICJ has not strictly interpreted Article 38 as the exhaustive enumeration of the applicable
rules. If this is the case, even from the viewpoint of adjudicative
norms, there may be norms to be applied by the ICJ other than those
explicitly stipulated in Article 38 of the ICJ Statute. This problem
will be further discussed later.
Second, it is theoretically questionable to assume that all binding
norms of international law are enumerated in this provision. Article 38
123. Hans Kelsen, Principles of International Law (2nd ed., Rinehart, New
York, 1952), p. 304. ; Robert Jennings and Arthur Watts, eds., Oppenheims
International Law, I (9th ed., Longman, Harlow, 1992), p. 4 ; Prosper Weil, Le
droit international en qute de son identit, Recuil des cours, Vol. 237 (1992),
pp. 186-201 ; Ian Brownlie, The Rule of Law in International Affairs (M. Nijhoff
Publishers, The Hague, 1998), p. 18.
124. See Gennady Mikhalovich Danilenko, Law-Making in the International Community (Martinus Nijhoff Publishers, Dordrecht, 1993), pp. 30-43.

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basically stipulates norms to be applied by the ICJ. They are


adjudicative norms (or norms of adjudication) 125. However, when
rules and principles of international law are actually referred to,
discussed and used by diverse participants of international law in
various forums in global or domestic society, they are assumed primarily as norms prescribing conducts of States and other subjects
of international law. This means that norms of international law are
mainly discussed and dealt with as prescriptive norms (or norms of
conduct). Whether they can be applied by the ICJ is a secondary
problem. The norms of international law also play roles of assessing,
justifying or delegitimizing acts of States. They further play constructive, communicative and other ideational functions. These are
all demonstrated in Chapter II. Some of the norms of international
law may certainly function as adjudicative norms and be applied by
the ICJ. But not all of them 126.
In actuality, out of a huge number of cases involving norms of
international law, those dealt with in international courts, particularly
in the ICJ, occupy an extremely small portion. In addition, in those
125. Already in 1958, Gerald Fitzmaurice argued that Strictly, therefore,
Article 38 is simply a sort of standing directive to the Court as to what it is to
apply in deciding cases brought before it . . . (Gerald Fitzmaurice, Some
Problems Regarding Formal Sources of International Law, F. M. Asbeck et al.,
eds., Symbolae Verzijl : prsentes au professeur J. H. W. Verzijl loccasion de
son LXXe anniversaire (M. Nijhoff Publishers, The Hague, 1958), p. 173).
126. I have basically borrowed the idea of norms of conduct and norms of
adjudication from Eugen Ehrlich, Grundlegung der Soziologie des Rechts (3.
Aufl., Duncker & Humblot, Berlin, 1967), pp. 10, 97 et passim. Ehrlichs famous
concepts of Handlungsregel and Entscheidungsnorm are generally translated into
a rule of conduct and a norm for decision, respectively (Fundamental Principles of the Sociology of Law, translation by W. L. Moll (Russell & Russell,
New York, 1962), pp. 10, 121 et passim.). I have adopted this terminology in my
earlier writings (see supra footnote 121). However, in this chapter and this lecture as a whole, I use the terminology of prescriptive norm and adjudicative norm.
Ehrlichs concept of Entscheidungsnorm is slightly different from my concept
of adjudicative norms. First, the former covers not only norms to be applied by
the judicial court, but other organs whose mandate is to settle conflicts in general
including courts of honour, courts of societies etc. (ibid., p. 122). Second, it can
mean various kinds of legal and non-legal norms to be applied by such organs of
dispute settlement (ibid., pp. 123 et seq.). In contrast, adjudicative norms signify
legal norms to be applied by the judicial court as an institution of dispute settlement. Also, Ehrlich defines the Handlungsregel as a rule including both elements of customarily regulating human conduct and a rule designating for the
addressees how they ought to conduct themselves (ibid., pp. 11 et passim.). In
my view, however, it is more appropriate to distinguish between the validity and
the efficacy of the legal norms. Thus, my notion of the prescriptive norms
simply means norms prescribing specific conduct to the addressees as law.
Whether such norms are effectiveness or not is another question.

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large numbers of cases where the ICJ is not involved, parties concerned do not act assuming that they can sue the other party if the
negotiation fails. Unlike domestic societies of (Western) developed
countries, in most cases parties in conflict do not act in the shadow
of the court. International law as adjudicative norms does not work
even as tacit or hidden norms behind the negotiation as assumed by
both parties.
Thus, it is highly questionable whether international lawyers
should always refer to Article 38 of the ICJ Statute when they
discuss binding norms of international law in general. Such attitude
tacitly assumes equating norms of conduct with norms of adjudication. However, this assumption must be critically scrutinized. It may
not be necessary for a norm of international law to be characterized
as customary international law in order to be evoked, applied
and implemented as a norm with universal validity, especially in
non-judicial forums. As far as prescriptive norms of conduct are
concerned, there may be other grounds than those enumerated in
Article 38 that can generate norms of international law with universal
validity. There may be, and most likely should be, unwritten
norms of general international law. But it is not necessary at all to
characterize these unwritten norms of international law as customary international law.
Third, international lawyers, including those discussing the
sources of international law, often referred to classical writers such
as Hugo Grotius and Emmerich de Vattel, discussing their notions of
international law. Yet, few have paid attention that those classical
writers did not think of international law as the norm of adjudication
between States. For example, Grotius explicitly argued that judicial
settlement is impossible between States 127. Precisely for this reason,
he regarded instead just war as a means of enforcement of rights
of nations 128. When the classical writers discussed the problem of
127. Hugo Grotius, De jure belli ac pacis libri tres, Vol. I, Chap. 3, 2 (1),
Vol. II, Chap. 1, 2 (1). See also Onuma Yasuaki, War, idem, ed., A Normative
Approach to War (Clarendon Press, Oxford, 1993), pp. 57, 78-79, 99.
128. Ibid., pp. 77-93, esp. 78-79. In the case of Vattel, natural law, the most
important international law, is not enforceable. Only positive international law,
such as voluntary international law, treaties and customary international law, are
enforceable. However, the means of enforcement is not the decision by an international court and its enforcement mechanism. It is the power of nations and the
normative consciousness shared by nations that were assumed to be the means
of enforcement (Emerich de Vattel, Les droits des gens, III (1758), Chap. 12,
188).

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law among nations, what they had in mind was the law functioning
as the norms of conduct. It was not the norms to be applied by an
international court, which did not exist in their time.
Major provisions including those of Article 38 of the ICJ Statute
were made in 1920, when the PCIJ was established. It is understandable, if not totally justified, that international lawyers at that
time were enthusiastic about the establishment of the PCIJ, and that
they tended to equate the norms of adjudication with the norms of
conduct. For many international lawyers, who had a kind of inferiority complex toward domestic lawyers because there was no permanent judicial court in international society, this was an excellent
opportunity to get rid of this inferiority complex. Some international
lawyers such as Hersch Lauterpacht even advocated that all international conflicts should be settled by judicial settlements or arbitration 129.
However, as referred to in Chapter II, this argument was severely
criticized by E. H. Carr as a sheer utopianism 130. Lauterpacht could
not rebut Carr. More importantly, among international lawyers themselves, such an argument as advocated by Lauterpacht has not been
supported either. The basic nature of international law as prescriptive
norms of conduct with a limited role as adjudicative norms has not
been changed ever since.
Fourth, demonstrating that a certain norm is customary law does
not guarantee its universal validity at all. Customary international
law is an existential form of international law, whose applicability
can be either limited or universal. There has actually been a special
international law whose applicability is limited, for example, to
Latin American nations. Equating customary international law with
general international law confuses different categories of law. The
former is an existential form, whereas the latter is concerned with
the range of applicability of law. Equating the former with the latter
is a conceptual confusion.
Finally and most importantly, from the viewpoint of global legitimacy and power constellation of the twenty-first-century world, it is
not appropriate for international law with a universal validity to be
equated with customary international law, especially the old cus129. Hersch Lauterpacht, The Function of Law in the International Community (Clarendon, Oxford, 1933).
130. Edward H. Carr, The Twenty Years Crisis, 1919-1939 (2nd ed., Macmillan, London, 1946), pp. 193-207.

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tomary rules and principles. Most of the so-called customary


norms were formulated by leading international lawyers of a few
powerful Western States when a large portion of humanity was under
colonial or semi-colonial rule. They were created when the value of
equality and democracy was not highly evaluated as they are today.
The overwhelming majority of humanity was excluded from the
creative process of international law with a universal validity.
Regrettably, this crucial fact was not considered as a serious problem.
In the twenty-first-century world, the situation is radically different both in terms of ideas on legitimacy and realities on power. As to
the normative idea widely shared in global society today, democracy,
equality and fair representation are regarded as crucial for a legitimate global order in the twenty-first century. As to the power supporting and realizing international law, the power relations between
major Western nations and non-Western nations are radically different from those in 1920. There should be other norm creating mechanisms that are more legitimate and responsive to realities than such
an outmoded mechanism of customary international law. Legal
norms created through the traditional customary norm creating
process may have been effective by the power of Western States. It
may have been possible to conceal the lack of global legitimacy by
such effectiveness through the twentieth century. But it is no longer
the case. The legitimacy deficit of customary international law is
so evident in terms of globally shared ideas that it can no longer be
concealed by the power of Western States, which is apparently
declining in relative terms.
(2) Attitude of the ICJ
As far as the ICJ is concerned, the equation of general international law with customary international law in the twentieth century may have been understandable, though not wholly justifiable.
The ICJ is bound to identify the applicable norms within the framework of Article 38 of the ICJ Statute. According to the predominant
theory of international law, a treaty has generally been regarded as
lex specialis, lacking a universal validity. Also, the principle pacta
tertiis nec nocent nec prosunt has been rigidly interpreted. If the
ICJ is required to apply only norms enumerated in Article 38 of
the ICJ Statute, it has to apply either norms of customary interna-

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tional law or those of general principles of law recognized by


civilized nations, when it needs to apply norms with a universal
validity.
The ICJ sought to avoid resorting to the notion of general principles of law recognized by civilized nations, because this notion
has a number of problems. The term civilization had often been
abused by Western powers to rationalize worldwide colonization and
discriminatory treatment against non-Western people. There have
also been long debates as to whether the general principles are
those of domestic laws, of international law, or of both. There are
other problems as well. Thus the ICJ hardly resorted to the notion of
the general principles of law explicitly, even when it actually
appeared to rely on it. The ICJ has sought to demonstrate norms universal validity in terms of customary law even in a situation where it
is difficult to do so according to the traditional theory of customary
law in its rigid form. The ICJ has sought to recharacterize the concept of customary law so as to apply norms of general international
law under the name of customary international law.
From a theoretical perspective, this is not persuasive at all. As
suggested earlier, the category of customary law is concerned with
the existential form of law. The category of general international
law is concerned with the range of validity or applicability of law.
They are different categories. Demonstrating that a certain norm
is customary law does not guarantee its universal validity at all 131.
In fact, there are norms of special customary law which lack universal
validity. The ICJ is naturally aware of the distinction between
general customary law and special customary law 132. Yet, the ICJ
often characterized a certain norm as customary international law
when they needed to demonstrate the universal validity of the
norm.
In some cases, however, the ICJ referred to general rules of international law without characterizing them as customary norms. The
131. See Onuma, The ICJ, supra footnote 121, p. 208, and A transcivilizational Perspective, supra footnote 121, p. 174. I owe this critical understanding
of the relations between the category of general international law and customary
international law to Komori Teruo, Joyaku no daisansha koryoku to kanshuho
no riron (The Effect of Treaties upon Third States and the Theory of Customary
Law), (1) (2) (3), Chiba Daigaku Hokei Ronshu, IX (1980), pp. 53 et seq. ; X
(1981), pp. 79 et seq. ; and XII (1982), pp. 43 et seq.
132. See Peter Haggenmacher, La doctrine des deux lments du droit coutumier dans la pratique de la Cour Internationale, Revue gnrale de droit international public, XC (1986), pp. 5 et seq., esp. pp. 32-104.

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ICJ has resorted to such notions as a [general and well-recognized]


principle of [international] law, well-established and generally
recognized principle of law, and other similar notions for identifying
a legal norm with a universal validity 133. Further, it has become more
inclined to rely on multilateral treaties, the UNGA resolutions and
some other international normative instruments for demonstrating
the universal validity of an international legal norm in question 134.
As these cases suggest, the ICJ has made great efforts to adapt itself
to the new norm creating processes during the postwar period
within the framework of the ICJ Statute. These tendencies may thus
be characterized as a tacit sign of the de facto deviation of the ICJ
from the traditional theory of customary international law, which
basically equates general international law with customary international law.
It may also be possible to argue that the ICJ has tacitly applied
rules or principles of international law which do not fall within the
category of Article 38 (1) (a)-(d). This may suggest that the ICJ has
interpreted Article 38 not as an exhaustive enumeration but as an
exemplary enumeration of the applicable rules. If this is the case, we
may be able to argue that even the ICJ, which is required to apply
adjudicative norms, has actually abandoned the idea that all binding
norms of international law should be found in Article 38 of the ICJ
Statute.
133. See, e.g., North Sea Continental Shelf case, supra footnote 122 ; Factory
at Chorzw case, Judgment of 13 September 1928, in which the PCIJ wrote,
it is a principle of international law, and even a general conception of law,
PCIJ, Series A, No. 17, p. 29 ; Corfu Channel case, Judgment of 15 December
1949, in which the ICJ wrote, Such obligations are based . . . on certain general and well-recognized principles, ICJ Reports 1949, p. 22 ; Effect of Awards
of Compensation Made by the United Nations Administrative Tribunal case,
Advisory Opinion of 13 July 1954, in which the ICJ wrote, According to a wellestablished and generally recognized principle of law, a judgment rendered
by such a judicial body is res judicata and has binding force between the parties
to the dispute, ICJ Reports 1954, p. 53 ; Legal Consequences for States of
the Continued Presence of South Africa in Namibia case, Advisory Opinion of
21 June 1971, in which the ICJ wrote, One of the fundamental principles governing the international relationship thus established is that a party which disowns or does not fulfil its own obligations cannot be recognized as retaining
the rights which it claims to derive from the relationship, ICJ Reports 1971,
p. 46.
134. See, e.g., Military and Paramilitary Activities in and against Nicaragua case, Merits, Judgment of 27 June 1986, ICJ Reports 1986, pp. 99100 ; Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory case, Advisory Opinion of 9 July 2004, ICJ Reports 2004,
pp. 195, 199.

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(3) Absurdity in relying on Article 38 of the ICJ Statute for


identifying norms of international law
As suggested in subparagraph (2) above, it may be understandable
that the ICJ tends to identify general international law in terms of
customary international law. However, it is not so for international
legal studies in general. When considering the problem of binding
norms of international law in general, international lawyers are not
required to think within the framework of Article 38 of the ICJ
Statute. The ICJ Statute may certainly be an important treaty that
international lawyers should take into consideration when they consider the problem of identifying norms of international law. But
there is no compelling reason for international lawyers to consider
solely the ICJ Statute when they conceive of identifying norms of
international law in general 135.
As demonstrated in Chapter II, international law primarily exists
and functions as norms prescribing the conducts of States (and other
subjects of international law). Therefore, when they discuss the
problem of sources of international law, they could, and they
should, think of them independently of Article 38, which stipulates
only adjudicative norms to be applied by the ICJ. The adjudicative
norms may provide a useful clue to the problem of cognitive bases
for identifying international law in general. Yet, they do not represent all norms of international law. Whether a norm can be applied
by the ICJ cannot be a decisive test for the identification of the norm
of international law.
The failure to identify the proper way of identifying international
law independently of Article 38 produced a number of problems. It
helped prolong the prevalence of the mystical theory of customary
law beyond its proper lifespan. In fact, a number of rules which had
been characterized as customary international law did not actually
possess the characteristic features of customary law. Thus, international lawyers were more or less compelled to distort the notion of
135. See Fitzmaurice, supra footnote 125. As early as in 1966, Richard Falk
wrote that
Such an approach [to associate the creation of international law with
the sources of international law contained in Article 38 of the ICJ Statute]
distorts inquiry by conceiving of law-creation exclusively from the perspective of the rules applicable in this one centralized, judicial institution,
Richard Falk, On the Quasi-Legislative Competence of the General
Assembly, American Journal of International Law, LX (1966), p. 782.

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customary law. The most awkward example of this failure is the


famous concept of instant customary international law 136. Although
this concept was invented by Bin Cheng, he himself was fully aware
of the problematic nature of this neologism.
Bin Cheng was quite right when he argued that there may be
norms of general international law prescribing the conduct of States
in outer space and claimed that such norms might be created almost
instantly based on the shared legal consciousness of the members of
international society. Yet, he sought to put new wine into old bottles
by explaining this new phenomenon within the traditional framework of Article 38 of the ICJ Statute. Thus he was compelled to
invent a term which he himself did not particularly like : instant
customary law 137. The term itself is, of course, a contradiction. It
clearly reveals how inappropriate and outdated it is to think of general international law within the framework of Article 38. Cheng
himself was aware of this fact, and continued to express reservations
to the use of the concept of instant customary law, which he himself invented 138.
Robert Jennings wrote, already in 1982, that The time has surely
come to recognise boldly that it [most of the non-treaty international
law of today] is not custom at all, and never was. 139 He even went
on to say that To use Article 38 as it stands, as we constantly do
still, for the purpose of analysing and explaining the elements and
categories of the law today, has a strong element of absurdity.
(Emphasis added.) 140 Jennings was perfectly right. Jenningss view is
even more important in the twenty-first-century world, where we
should consider the problem of general international law from the
viewpoint of global legitimacy and realities of the multi-polar and
multi-civilizational world.
Elucidating this critical problem requires us to deal with impor136. Bin Cheng, United Nations Resolutions on Outer Space : Instant
Customary Law ?, Indian Journal of International Law, V (1965), pp. 23 et seq.
137. Bin Cheng, On the Nature and Sources of International Law, B. Cheng,
ed., International Law (Stevens, London, 1982), p. 223.
138. Ibid. See also idem, Some Remarks on the Constituent Element(s) of
General (or So-called Customary) International Law, Antony Anghie and Garry
Sturgess, Legal Visions of the 21st Century (Kluwer Law International, The
Hague ; Boston, 1998), pp. 377-390. Note that he intentionally uses such expression as General (or So-called Customary) International Law.
139. Robert Yewdall Jennings, The Identification of International Law,
B. Cheng, ed., International Law, supra footnote 137, pp. 1, 6.
140. Ibid., p. 9.

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tant questions. We must ask why such a view which, according to


Jennings, contains a strong element of absurdity prevailed so long.
Why could the adjudicative norms to be applied by the ICJ claim
such a far-reaching status to judge the binding quality of the entire
international law prescribing the behaviour of States ? Why did an
article which was made in 1920 to provide for the newly born PCIJ
norms to be applied by it still enjoy such a preeminent status as the
most authoritative criterion to judge the legal nature of international
law at large ? By analysing and answering these questions, we can
discern not only problematic features on general international law
and customary international law, but also those of excessive judicialcentrism in the studies of international law in the twentieth century.
(4) Factors responsible for the over-evaluation of Article 38 of
the ICJ Statute
The following factors may answer these questions.
First, many international lawyers in the twentieth century did not
pay sufficient attention to the fact that forms of international law as
social construct change over time. They have basically reiterated that
two major sources (or forms) of international law are treaties and
customs, and that Article 38 expresses this almost axiomatic formula
in positive law. However, if seen from a historical perspective, one
can easily see that this argument was valid only in the twentieth century. Until the late nineteenth century, customary international law
occupied only a marginal place. In Francisco de Vitoria, Francisco
Surez and Grotius, natural law occupied the most important place.
For Grotius, it was natural law that was applicable to all subjects of
law 141. In Vattel, natural law still occupied the most important place,
although voluntary international law actually gained a greater significance. In his theory, customary law was just a special international
law 142. Equation of general international law with customary international law was unthinkable to him and other great publicists of the
pre-nineteenth century.
141. In the case of Grotius, one might be able to argue that some rules and
principles of his natural law and voluntary law of nations were, from an analytical perspective, a kind of European customary law at the time. However, this
notion of customary law is not the one adopted by most international lawyers in
the twentieth century. See Onuma, Conclusions, idem, ed., A Normative
Approach to War, supra footnote 127.
142. Vattel, Les droits des gens, supra footnote 128.

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Even among the nineteenth-century positivists, the notion that


treaties and customs are two major sources of international law was
not so prevalent as is generally thought to be today. This is evident
if we actually identify the sources of international law in the textbooks of the major nineteenth-century publicists such as Henry
Wheaton, Johann Ludwig Klber, August Wilhelm Heffter and
William Edward Hall 143. The characterization of custom and treaty
as two major sources of international law is basically a twentiethcentury construct. These historical facts have seldom been aware of.
Thus, the perception that treaties and customs have always been
major sources of international law and that Article 38 expresses this
unquestionable truth prevailed, although this perception was not
historically founded at all.
Second, predominance of excessive positivism of international
legal studies in the twentieth century may be another factor responsible for the over-evaluation of customary international law. Most
international lawyers, either consciously or unconsciously, sought to
identify some positive source of general international law when
they dealt with this question. They wanted some explicit provisions
in treaties or statements in jurisprudence of the ICJ and other courts.
Article 38 of the ICJ Statute provides such positive sources, which
make many international lawyers feel comfortable. They believed
that they found a solid basis in positive international law. And as
long as they rely on Article 38, the only feasible candidate for general international law would be customary international law. According to them, all norms which claim universal validity must therefore
take the form of customary international law. This equation of general international law with customary international law appeared so
natural to many international lawyers in the twentieth century. It thus
prevailed.
Third, related to this second problem, it must be admitted that it is
not easy to identify the whole range of the binding rules and principles of international law as the norms of conduct on an empirical
basis. Even if it is inappropriate to rely wholly upon Article 38, it is
143. Henry Wheaton, Elements of International Law (Carey, Lea & Blanchard, Philadelphia, 1836), pp. 48-50 ; Johann Ludwig Klber, Droit des gens
moderne de lEurope (new ed., rev., Guillaumin, Paris, 1861), pp. 4-6 ; August
Wilhelm Heffter, Le droit international de lEurope (3rd ed., E.-H. Schroeder,
Berlin, 1873), pp. 4-6, 16-17 ; William Edward Hall, A Treatise on International
Law (4th ed., Clarendon Press, Oxford, 1895), pp. 1-17.

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still useful to use it as a clue to the identification of the binding


norms of international law in general. With the increase of cases
brought before the ICJ during the last decades, the number of rules
whose binding force is reviewed by the ICJ also increased. At least
with regard to the rules and principles which are actually applied by
the ICJ, the equation of the norms of conduct with the norms
of adjudication creates few problems, because the latter generally
presumes the former.
Fourth, the predominant view has, either consciously or unconsciously, adopted what I call a domestic model approach. Although
international lawyers knew well that international society differs in
many respects from domestic societies, they nevertheless tended to
consider the structure, nature and functions of international law by
consciously or unconsciously relying on concepts, terms and cognitive and evaluative frameworks of domestic law. As a part of prevalent West-centric ways of thinking in international legal studies, this
domestic law used as a model was in most cases that of major
Western States, whether consciously or unconsciously.
In Western societies, judiciaries function effectively as an important means of realizing legal norms. In the Anglo-American countries in particular, law has generally been considered in terms of
adjudicative norms. Law is something that the judiciary declares or
applies. It is assumed that the law to be applied by the court is the
same as the law prescribing the conduct of the subjects of law. In
Western societies, particularly in Anglo-American societies, negotiations between parties in conflict are generally carried out under the
shadow of the court. Some non-Western societies such as Japan and
Korea have been witnessing a similar tendency in recent decades,
although this is not the case with most non-Western societies, whose
population occupies the overwhelming majority of humanity.
The fact that international lawyers of the Anglo-American countries have always been influential in international legal studies contributed to strengthening the tendency to regard adjudicative norms
as law itself in the field of international law. Moreover, many leading international lawyers have been not only academics but also
practising lawyers. There have been actual demands for leading
international lawyers to deal with international law in the judicial
setting as practitioners. It was natural for leading international
lawyers to conceive of norms of international law in terms of adjudicative norms. It was natural for them to seek to find the sources

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of norms of international law in Article 38 of the ICJ Statute, which


is the most conspicuous provision to enumerate the adjudicative
norms.
The assumption of regarding Article 38 of the ICJ Statute as providing the exclusive sources of international law appeared to be so
apparent that it was not seriously questioned, although there were
prominent exceptions in this respect 144.
The failure to recognize that prescriptive norms of conduct, not
adjudicative norms, are the primary form and function of law has
prevented many international lawyers from questioning the appropriateness of relying on Article 38 when discussing the cognitive bases
of international law in general. Had they been keen on the fact that
the prescriptive norms of conduct are not necessarily the same as the
adjudicative norms, they would have been aware that it would have
been inappropriate to rely entirely on Article 38 when discussing the
whole range of binding norms of international law. Although most of
the binding norms of international law are expected to regulate the
conduct of States, they are not necessarily applied by the ICJ. Few
have been alert to this critical point 145.
These factors certainly can explain why Article 38 has been used
by most international lawyers as almost the only criterion of the
sources of international law. However, they cannot legitimate the
widely held attitude of international lawyers to center on Article 38
their argument about the binding rules of international law in general. Even as the adjudicative norms, rules provided in Article 38 of
the ICJ Statute may be outdated, almost 90 years after their enactment. As the prescriptive norms of conduct, it is hardly believable
144. Jenningss bold assertion cited in the text earlier is one of such
examples. Another prominent figure who has been critical of judicial-centrism
is Michael Reisman, who raised this issue in his International Incidents : The
Law that Counts in World Politics (co-edited with Andrew R. Willard, Princeton University Press, Princeton, New Jersey, 1988). There have been a substantial number of other prominent international lawyers questioning such
natural assumptions and reasoning, because theoretical flaws are so apparent.
See references cited in footnotes 131, 135, 146 and 147.
145 Although Hugh Thirlway apparently read my article dealing with this
problem (Onuma, The ICJ, supra footnote 121), he does not seem to grasp the
fundamental point (Hugh Thirlway, Concepts, Principles, Rules and Analogies, Recueil des cours, Vol. 294 (2002), pp. 316-318). That is, in all law
including international law, the nature and function of prescribing the conduct of
their addressee (i.e. prescriptive norms of conduct) are the primary raison dtre,
existential form and function of law. Law as adjudicative norms only follows
this primary nature and function of law as norms of conduct, presupposing the
latter. See Chapter II, footnote 55.

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that they can still express the exclusive sources of international


law functioning in the twenty-first-century world.
2. Liberation of the concept of general international law from the
mystical theory of customary international law
(1) The legitimacy deficit of the so-called customary international law
As suggested in paragraph 1, above, the defect flaw of relying on
Article 38 uncritically is even greater in the area of prescriptive
norms of conduct. Here, international law is expected to regulate
actual conduct of States acting based on assumptions of, and in
response to, expectations, aspirations, interests, values and the power
constellation which are radically different from those of 1920. It is
almost unthinkable that international law as prescriptive norms of
conduct has not changed at all for nearly a century. We must liberate
ourselves from the outdated understandings on the sources of
international law and its accompanying mystical theory of customary international law.
In the traditional theory of customary international law, most of
the so-called customary norms were formulated and provided by
leading international lawyers of the Western Great Powers in their
writings. The treatises of Lassa Oppenheim have been a leading
example. These leading international lawyers sought to identify acts
and statements of the executive branch of the Government, arbitral
awards, domestic laws, and domestic court decisions as major
materials of State practice. Basically the same materials have been
used as the evidence of opinio juris.
According to the prevalent view on customary international law, a
customary law must be demonstrated by two standards : State practice and opinio juris. As to the latter, however, there have always
been criticisms on various grounds. Particularly, the criticism to the
effect that a State as a fictitious entity cannot have an opinio juris is
a pertinent one. Thus many international lawyers sought to search
for more concrete agents of the opinio juris, i.e. various organs of
the State. Many international lawyers and the ICJ came to argue that
the opinio juris can be induced from external acts, i.e. State practice,
as expressed by those concrete agents.
However, these acts of State agents are extremely diverse and
numerous. They range from a statement of the head of the State to a

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shooting of a soldier. It was impossible to identify all these acts of


all States. Leading Western international lawyers chose the practice
of a few, yet powerful and influential, Western States, and regarded
it tacitly or explicitly as representative of general practice of States.
Oscar Schachter frankly admitted that As a historical fact, the great
body of customary international law was made by remarkably few
States. 146
Rules and principles characterized as customary through this
method usually enjoyed a high degree of effectiveness in the twentieth century, precisely because they were formulated on the basis of
the practice of the powerful States. The effectiveness of the customary law supported by the substantive power of major Western
States eclipsed its lack of generality. These facts may reveal a crude
historical reality of current international law, which has reflected the
power structures in international society. Seen from the perspective of
global legitimacy that is required for norms with a universal validity
in the twenty-first century, however, this state of affairs constitutes
a serious flaw 147. Further, seen from a realistic perspective, such a theoretical stance is losing relevance to the realities of the power constellation in the twenty-first century, in which major Western States can
no longer effectively control global affairs as they used to do in the
twentieth century. From both perspectives, it must be rectified.
(2) The widening gap between the reality and traditional customary international law
Effectiveness is an important element of international law.
However, the element of effectiveness or power must be discussed
146. Oscar Schachter, New Custom : Power, Opinio Juris and Contrary
Practice, Jerzy Makarczyk, ed., Theory of International Law at the Threshold of
the 21st Century (Kluwer Law International, The Hague, 1996), p. 531. See also
Charles de Visscher, Thories et ralits en droit international public (4th ed.,
A. Pedone, Paris, 1970), p. 170 ; Brigitte Stern, La coutume au coeur du droit
international : Quelques reflections, Mlanges offerts Paul Reuter (A. Pedone,
Paris, 1981), pp. 492-494 ; J. Patrick Kelly, The Twilight of Customary
International Law, Virginia Journal of International Law, XL (2000), pp. 519522 ; Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law : A Reconciliation, American Journal of International
Law, XCV (2001), pp. 767-768.
147. A number of international lawyers, not only non-Western but many
Western, have criticized this flawed aspect of customary international law as
general international law. See, e.g., Jonathan Charney, Universal International
Law, American Journal of International Law, LXXXIII (1993), p. 537 ; Kelly,
supra footnote 146, pp. 519-522 ; Roberts, supra footnote 146, pp. 767-768.

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separately from the element of legitimacy and generality. If the


effectiveness eclipses the lack of generality of law, then it becomes
a sugar-coated expression of camouflaging the ideological and
discriminatory nature of international law as the hand-maiden of
powerful States. This lack of legitimacy would exasperate a large
number of peoples who have already felt that they have been
ignored, despised and even attacked by predominant forces of a few
powerful Western States.
In the prevalent theory of the customary international law,
mainly advocated and formulated by leading Western international
lawyers, the lack of State practice and opinio juris of a large number
of non-Western nations was not considered a serious problem which
can destroy the legitimacy of international law. Why was it so ?
Because the study of international law itself has been overwhelmingly West-centric. The study of international law in the twentieth
century centred on a small number of Western nations, which were
powerful not only in substantive but also in ideational power. The
fact that the non-Western nations occupy the overwhelming majority
of the human species was virtually ignored.
Most leading (Western) international lawyers who formulated
the State practice and opinio juris do not seem to have been
seriously concerned with the continued ignorance of the State practice and the opinio juris of the overwhelming majority members
of the international society. They do not seem to have been much
concerned with the problem of legitimate representation in international society. It is true that many non-Western nations have problems of democracy in their domestic regimes. However, this is a
separate problem, which should not be used as an excuse to ignore
the participation of the overwhelming majority of humanity in the
norm-creating process of general international law.
Theoretically, the notions of acquiescence and tacit (or inferred)
consent have often been used to camouflage the lack of generality.
However, because there was no international forum where States
could express their view to a customary norm creating process, both
acquiescence and tacit consent inevitably assumed a highly fictitious
character. For those who do not adhere to the voluntarist-positivist
construction of international law, either natural law or some other
form of objective idea played a similar camouflaging role 148. Neither
148. Stern, supra footnote 146, pp. 493-494.

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is far from satisfactory as grounding the global legitimacy needed


for general international law in the twenty-first century. Nor does it
respond to the realities of the twenty-first century represented by the
emergence of China and India as candidates of superpowers in the
global arena.
The West-centric structure of international law or the creation of
international legal norms based on the power of leading Western
States was certainly criticized in the twentieth century. It seems that
such criticism was well received in that it was not basically refuted
in public. Yet, the theoretical defects as described above were not
rectified. They remained throughout the twentieth century. With the
ongoing power shift in the twenty-first century, we must face the
problem by seeking to reconsider and reconstruct the basic framework of identifying the cognitive bases of international legal norms
of conduct which should be both legitimate and realistic.
The relative power of Western States is diminishing in relations
with the increasing of the power of emerging Asian States. It may
have been possible for the major Western States to camouflage the
lack of generality of general international law qua customary international law by their predominant power. However, it is no longer
the case in the twenty-first century. The gap between the everincreasing power of Asian States and the fictitious character of the
so-called customary international law is widening year by year.
This dangerous state of affairs must be rectified as soon as possible.
The change of realities is not limited to the problem of power
constellation between States. In the twenty-first-century world,
unlike the world of 1920 when the original provisions of Article 38
of the ICJ Statute were made, the excessively State-centric structure
of international law can hardly be maintained. It is likely that the
importance of non-governmental actors will continue to increase.
Also, in sharp contrast with the era of racism and the typical
Eurocentrism preceding 1920, the overcoming of West-centrism and
the appreciation of multi-cultures and plural civilizations is a great
task to be fulfilled in this century. The norms of international law
with a universal validity must satisfy the highest degree of legitimacy in order to be accepted by all members in international society,
including non-State actors as well as various actors with diverse cultures and civilizations. The rules and principles of general international law must satisfy not only international, but also transnational
and transcivilizational legitimacy.

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Seen from this perspective, the prevalent theory relying on


customary norms when identifying general international law has
serious deficiencies as cognitive bases of general international law,
as demonstrated above. Comparatively speaking, a theory appreciating the significance of multilateral treaties with a universal or quasiuniversal applicability and UNGA resolutions adopted by unanimity
or consensus can satisfy the requirements of global legitimacy and
the relevance with realities far more than a theory relying on the
mystical concept of customary international law. International
lawyers in the twenty-first century must explicitly identify these
norm-creating processes as legitimate and realistic cognitive bases of
general international law.
(3) Multinational treaties as a cognitive basis of general international law
In actuality, most international lawyers, national Governments and
other participants of international legal processes have recognized,
albeit often implicitly and unconsciously, that provisions of the
multinational treaties with a universal or quasi-universal applicability constitute important cognitive bases for identifying norms of
general international law. For example, experts of the law of the sea
generally develop their arguments by utilizing or resorting to the
norms provided in the UN Convention on the Law of the Sea as the
most important cognitive and interpretative bases of general international law on the law of the sea. In such cases, many of them refer
to these norms not necessarily as norms of the treaty law whose
applicability is limited to State parties, but as norms of general international law. The same can be said of the attitude of most international lawyers dealing with specific problems referring to provisions
of multilateral treaties whose provisions are supposed to have a universal or quasi-universal validity such as the UN Charter, the
Geneva Conventions of 1949, etc.
In these cases, many of them refer to the provisions of these
treaties as expressing norms of general international law without
necessarily demonstrating their customary nature in terms of satisfying subjective and objective criteria which were required by the
traditional theory of customary international law. Rather, they basically assume that norms provided in these treaties are recognized as
generally valid in international society as a whole. Many interna-

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tional lawyers certainly argued that norms of general international


law can exist (only) as norms of customary international law as provided in Article 38 of the ICJ Statute when they deal with the problem of sources of international law. However, when they actually
deal with specific issues of international law functioning as prescriptive norms of conduct, and norms assessing, justifying or delegitimating the conduct of States, they have not necessarily relied on this
approach.
It is true that when national Governments and/or international
lawyers appear in the court of the ICJ, they seek to identify norms
with a universal validity in terms of customary international law.
This is only natural because they have to demonstrate their arguments in accordance with Article 38 of the ICJ Statute. However, as
already referred to earlier, in most cases parties in conflict do not
settle their conflicts by judicial means. Nor do they negotiate with
each other in the shadow of the court. It is again only natural. If
there is little possibility for the parties to refer the case to the ICJ,
and if there is no jurisprudence of the ICJ on the case in question,
they have little incentive to formulate their claims within the framework of the ICJ Statute. We should here recall that only 66 States out
of more than 190 States in international society accept the jurisdiction of the ICJ. It should also be noted that only the United Kingdom
among five permanent members of the UNSC accept it.
It would thus be quite natural for them to seek to find out as many
cognitive bases of international law as possible, and to make use of
them for justifying their claims. Whether a certain claim as to the
interpretation of the norm of international law in question is accepted depends on the relative persuasiveness of the claim in actual
forums where the claim is made. These forums are, for example,
diplomatic negotiations between parties in conflict, the organs of
international organizations (the UNSC, the UNGA, the WTO panels,
human rights committees attached to multinational human rights
treaties, etc.), international conferences, and global or national
market of public opinion. The participants of the international legal
processes in these forums are not only the organs of States. They
include organs of international organizations, multinational enterprises, NGOs, minorities, indigenous peoples, media institutions,
experts, etc.
Even when the States in conflict do not refer the case to the ICJ
characterizing it as a judicial dispute, they have to settle it anyhow.

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And if this conflict can be formulated as a legal dispute, either or


both of the parties may do so, and seek to settle the conflict by communicating with each other utilizing norms of international law. The
parties may or may not be able to settle the issue by international
law. But in any case, this is a typical example in which international
law is referred to, used and may contribute to the peaceful coexistence and/or co-operation between nations.
The participants of the international legal processes do not always
have relations with the notions and institutions of international law
in the adversarial forums. International law comes to the mind of
people when people face some ideas or phenomena and grasp or
understand such ideas or phenomena by referring to some notions
and/or frameworks of international law. For example, when someone
faces a large scale of violence involving armed attacks committed by
some private group, and construes and/or constructs this particular
case as a case comparable to the armed attack by a State and considers that a State attacked by such a group can resort to selfdefence, then he or she already refers to international law. In this
case he or she has to identify the norm of international law. It is
most likely that what he or she does first is to refer to Article 51 of
the UN Charter. Such non-judicial, non-adversarial reference to
international law is still one of many cases where international law
matters in human affairs. The argument on the problem how we can
and should identify international law based on which kind of cognitive bases must respond to such a problem either.
(4) Relative nature of the universal validity of general international law
A norm provided in the multinational treaties with an overwhelming majority of State parties enjoys a far higher degree of global
legitimacy than an old customary norm which was created on the
State practice and opinio juris of a limited number of powerful
States. Yet, the problem of this legitimacy deficit of an old customary norm has not been regard as a serious problem. One of the
reasons for this state of affairs seems to be, ironically, the apparent
defect of the universal validity of the multinational treaties. In
the case of a multinational treaty, States that are not parties to it are
apparent. In the case of the Convention on the Rights of the Child,
for example, the United States and Somalia are not parties to the

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Convention. In contrast, because of the vagueness and the mystical


character of the general State practice and opinio juris, lack of
universality of the customary norm is not apparent. It is easier to
point out the lack of universal validity of multilateral treaties than
customary international law because of this apparent lack of universality in terms of the parties to the treaty.
However, most customary norms which have been regarded as
universally applicable do not have such a high degree of explicit
recognition of norms as universally applicable legal norms. The
alleged universal applicability of such customary norms has been
based on the alleged acquiescence or tacit agreement of the overwhelming majority of States. However, as already suggested earlier,
this is a highly fictitious argument. Acquiescence or tacit agreement constitutes a much weaker agreement than a positive expression of the State will such as the ratification of a treaty. In fact, there
were a number of cases where a certain customary norm was
claimed to be general international law, yet there were a certain
number of States negating such a claim. The customary norms in
question were often realized by a more powerful State conflicting
with a State that denies the customary nature or universal applicability of the norm in question. Power, rather than legitimacy, prevailed.
In order to overcome this regrettable state of affairs, we must
explicitly recognize that universality is a matter of degree. As
suggested in footnote 120 above, we cannot identify the universality
in an unqualified and unequivocal manner. If we define the term
universality in international law as being valid to all subjects of
international law (or States), a serious problem of what are the subjects of international law (or States) occurs. This problem cannot be
answered in an unqualified and unequivocal manner. Whether a certain political entity is a State in international law depends on various
factors such as territory, effective rule and integrity of the population
of this entity, as well as foreign policy of other States whose relations with this entity are diverse. Thus, the problem on universality
of a particular norm must always conditionally be discussed and
answered, whether it involves human rights, use of force or rules on
the law of the sea. It is always a matter of degree in comparative persuasiveness of the arguments in question.
A certain rule which may not be expected to be applied by the ICJ
can function as a norm of international law, if it is perceived as such

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by overwhelming majority members of international society. For a


rule to be a binding norm in international law, it is not necessary at
all that the rule in question prescribing an issue and/or justifying a
claim on the issue is an applicable rule of the ICJ. This is true with
any norms of international law including norms of general international law. During the Cold War period, no one would have expected
that either the United States or the Soviet Union would resort to the
ICJ when they had a conflict in interpreting arms control treaties.
Yet, these treaties were perfectly regarded as international law, and
actually functioned as such. One may argue that the treaty is listed in
Article 38 of the ICJ Statute as a source of international law.
However, the argument made above is valid to other cognitive bases
of international law which are not listed in Article 38 of the ICJ
Statute. The UNGA resolution, which will be dealt with, is a leading
such example.
It must be recalled here that provisions of international instruments, whether they are in the treaties, or the resolutions of the
UNGA, UNSC, or international conferences etc., constitute merely
cognitive bases of international law. Provisions in the treaties, like
provisions in the statute of States, are not law per se. They are most
important cognitive basis of law. Law must be identified through
interpreting the provision of a statute or a treaty which expresses the
law in a written, relatively unequivocal and identifiable form. This is
the case with a custom as well, although custom is not as
unequivocal and identifiable as written provisions of the statute or
treaty. Custom itself is not law. Neither State practice nor opinio
juris are international law per se. They are just cognitive bases
through which people identify some unwritten norm of international
law.
If this simple truth is reaffirmed, then we can make use of the rich
materials and elaborate theories on customary international law as
an important cognitive basis of identifying norms of general international law, without relying on the dubious notion of custom in
international law. Accumulated studies on customary international
law qua general international law can be, and should be, used as
important theoretical assets for identifying norms of general international law. It should be noted, however, that earlier studies on customary international law qua general international law must be used
cautiously and selectively.
As referred to earlier, a number of theories on general interna-

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tional law resorted to various fictitious and artificial notions in order


to characterize customary international law as general international law. When we use theoretical assets on customary international law, we should be alert to this fact. We should seek to avoid
such fictitious and artificial notions, and make use of only theoretically sound and suggestive parts of theories on customary international law qua general international law. If we can deliberately carry
out this task, we can make use of the latter part of the theory on
customary international law for identifying norms of general international law, by relying on norms provided in the multinational
treaties or other cognitive bases of international law such as the
UNGA resolutions.
(5) UNGA resolutions as a cognitive basis of international law
Arguments similar to those on the multinational treaties as
described in subparagraphs (3) and (4) above can be made, with
necessary modifications and qualifications, as to the UNGA resolutions as an important cognitive basis of international law. The UNGA
has played a tremendously important role in creating norms which
embody the universal will of the global community and therefore
must be observed by any actor in global society. A number of international lawyers have argued for resorting to the UNGA resolutions
as a means to identify international legal norms with a universal validity. However, they have been criticized from various quarters. As is
well known, the norms provide in the UNGA resolutions have only
hortatory force. Consequently, the juridical nature of the UNGA
resolutions and declarations has long been discussed. A brief clarification as to the UNGA resolutions characterized as a cognitive
basis of international law is in order.
First, those critical of resorting to the UNGA resolutions have
argued that the UNGA resolutions are not enumerated in Article 38
of the ICJ Statute, which should provide sources of international
law. This argument has already been settled above. Even from the
viewpoint of adjudicative norms, Article 38 may not enumerate all
applicable adjudicative norms in an exhaustive manner. More fundamentally, the fact whether particular rules or principles of international law can be applied by the ICJ provides only a useful clue, not
a decisive test, to the question whether they are norms of international law in general. Legal norms of international law cannot

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be equated with adjudicative norms that should be applied by the


ICJ.
Even if a certain norm is not applied by the ICJ, it can still be a
norm of international law, which performs a number of important
societal functions as international law. It prescribes conducts of
States and induces compliance with international law as norms of
conduct. It fulfils an important role of communicative function as a
common language between States with diverse interests, values
and cultures, or even between States conflicting with each other. It
embodies common understandings of international society in an
authoritative, explicit and relatively determinate manner. It legitimizes behaviours of States that are compatible with international
law. It constructs social realities by providing cognitive, interpretative and evaluative concepts and frameworks through which people
understand the world and decide how to behave accordingly. These
were fully demonstrated in Chapter II 149.
Second, it was also asserted that it is impossible to identify the
legal consciousness or the intention of a State to be legally bound by
a norm in question from their voting in the adoption of an UNGA
resolution containing the norm in question. Voting is a political act
of a State, it is argued, not a juridical one. Because States know that
the UNGA resolution has only hortatory force, they would vote in
the affirmative 150. In my view, whether States regard certain norms
binding upon them as juridical norms provides a decisive test
whether they are legal norms or not. From this perspective, these
arguments seem to have some persuasive power.
However, it must be recalled that the traditional notion of State
practice does share a similar problem from the viewpoint of the distinction between what is political and what is juridical. Many international lawyers have regarded statements or declarations by the
executive organ such as the president, prime minister and foreign
minister as an expression of State practice and/or opinio juris. Yet,
149. See also Onuma Yasuaki, International Law in and with International
Politics : The Functions of International Law in International Society, European
Journal of international Law, XIV, No. 1 (2003), pp. 130 et seq.
150. See Stephen Schwebel, The Effect of Resolutions of the U.N. General
Assembly on Customary International Law, Proceedings of the American
Society of International Law, LXXIII (1979), pp. 301-309 ; Karol Wolfke,
Custom in Present International Law (2nd ed., Martinus Nijhoff Publishers,
London, 1993), p. 84 ; Danilenko, Law-Making in the International Community,
supra footnote 124, pp. 203-210.

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they are typically political acts. A non-verbal act by an executive


organ of a State is not a purely juridical act either. Most of the concrete acts of the executive organs are discretionary and have political
aspects as well as juridical aspects. If one argues that the act of the
executive is constrained by law and therefore could be characterized
as juridical, then the same argument should apply to the voting of a
state representative in the UNGA.
Representatives of States do not vote independently from the laws
of their States. Although they have a certain degree of discretionary
competence, they act within the framework of their domestic laws.
In this respect, there is no difference whether a concrete act of a
State is performed in the international organization or elsewhere.
Unless concrete acts to be used as indicating State practice and
opinio juris are limited to domestic laws and judgments of the
domestic courts, one cannot be sure whether the State agent in question really acts with the sense of law, or the sense of hortatory
force, or some other sense. It is only through an interpretation by
international lawyers or courts that certain elements within the concrete act of State should be characterized as juridical. No act of State
is inherently purely political or purely juridical 151.
Once these common features of acts of States are recognized, then
we can compare advantages of relying on the UNGA resolutions as
a cognitive basis for identifying the norms of general international
law with the norm creating process of so-called customary international law in more detailed manner. It is a matter of course that not
all resolutions and declarations adopted by the UNGA should be
considered as a cognitive basis of legal norms with a universal validity. Only those norms stipulated in the limited number of important
declarations that can be construed as expressing the norms of general
international law by their wording and voting patterns should be
considered so.
Norms provided in the UNGA declarations such as the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter
of the United Nations are leading examples which can, and should,
151. One cannot resort to the distinction between the juridical act (Rechtsgeschft, acte juridique) and real act (Realakt), because these two acts are the
same in the sense that both can produce legal consequences. Even an act that is
characterized as real or non-juridical can have a juridical meaning and can be a
cognitive basis of law.

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be used as a cognitive basis of the norms of general international


law. The UN Charter is the most important cognitive basis of general
international law. Yet, provisions in the UN Charter are not necessarily unequivocal and clear. The Declaration concerning Friendly
Relations elaborates a number of such norms, and constitutes an
extremely useful cognitive basis for identifying fundamental norms
of international law provided in the UN Charter in a general and
equivocal manner.
There are also extremely important norms which are not explicitly
stipulated in the provisions of the UN Charter. The norm of non-intervention between States is such an example. Article 2 (7) provides for
the non-intervention norm, but not in terms of the inter-State norm,
but in terms of prescribing relations between the United Nations and
member States. Article 2 (4) prohibits the threat or use of force
between States, but does not prohibit interventions in other forms.
Under such a juridical situation, the Declaration provides for the
norm of non-intervention between States in a comprehensive
manner. We can identify the non-intervention norm with a universal validity from various cognitive bases of international law, but
the Declaration constitutes the most important cognitive basis in
terms of its global legitimacy and elaborate formulation of its
content.
There are other provisions in the UNGA resolutions which can be
used as cognitive bases of general international law as well. The
norms created through this process of the UNGA are far clearer and
more elaborate in articulating the normative consciousness of nations
than verbal or non-verbal acts of political organs of individual nations
that were used in the traditional theory of customary international
law. Most importantly, the UNGA process of adopting resolutions
can satisfy the requirement of quasi-universal participation of States
for the creation of general international law concretely and explicitly. The traditional theory of customary law lacks this global
representative legitimacy. The comparative advantage of the
UNGA norm-creating process as a cognitive basis for identifying
general international law is evident.
It must be noted here again that norms provided in the UNGA resolutions are not norms of international law per se. They are just one
of many cognitive bases of the norms of international law. If so, the
fact norms provided in the UNGA resolutions have only a hortatory
force, lacking legally binding force per se, cannot be an obstacle for

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characterizing them as a cognitive basis of international law. Just


like provisions of multilateral treaties and State practice are not
international law per se, but constitute important cognitive bases of
international law, provisions of the UNGA resolutions constitute a
cognitive basis of international law. We should not confuse the question of cognitive bases of international law with the question of
whether the UNGA resolutions have only hortatory force. These are
conceptually different questions.
Finally, the UNGA norm-creating process satisfies a far more
transnational and transcivilizational legitimacy than the traditional
norm creating process of customary international law. In the
UNGA norm-creating process, voices of transnational actors such as
NGOs are much more explicitly heard than in the process of traditional customary international law. NGOs including associations
of enterprises enjoy the consultative status in the UN organs and
have actively introduced various voices of non-State actors into the
UNGA norm-creating processes in various stages. In contrast, the
traditional norm creating process is a mystical process that cannot be
explicitly identified. It lacked accountability, transparency, and
transnational legitimacy.
Further, from the transcivilizational perspective, the UNGA normcreating process can provide a far more equitable forum than the traditional norm-creating process of customary international law. In
the former case, States with diverse civilizational backgrounds participate in the norm creating process of the United Nations, whereas
in the latter case, States participating in the norm-creating process
were limited to a small number of Western States, whose civilizational background was much narrower. Thus, the UNGA norm
creating process can claim a much higher degree of legitimacy in
terms of global participation, introduction of various transnational
actors, and the possibility of arguments and debates from various
transcivilizational perspectives than the traditional norm creating
process of customary international law. This relative superiority
is tremendously important for norms with a universal applicability in
the twenty-first century 152.
152. Although the UNGA declarations have these merits, they do not necessarily possess the element of effectiveness. They must therefore be followed and
completed by more concrete behaviour of States possessing influential powers.
The adoption of the UNGA declaration per se does not generally create a norm
of general international law, even if adopted unanimously or by consensus.

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II. Towards Proper Understandings of the Judiciary
in Global Society

1. Liberation of the study of international law from excessive judicial-centrism


(1) Enhanced significance of the judiciary in international society?
We have elucidated various problematic features found in the
prevalent way of thinking in the twentieth century to conceive of
general international law in terms of customary international law. We
have also sought to identify factors underlying such a prevalent way
of thinking. We have further sought to demonstrate relative advantages of the post-Second World War norm-creating process of multinational treaties and UNGA resolutions as cognitive bases of general
international law, compared with the mystical process of customary international law. In conducting these researches, we have
encountered, among others, two outstanding features which seem to
be responsible for the understanding of customary international law
qua general international law, which was prevalent among international lawyers of the twentieth century.
One problem was the pre-eminence of substantive and ideational
power expressed in terms of effectiveness of the State practice and
opinio juris of major Western States. This problem of ideational
power has been dealt with basically in Chapter II. The other problem
is the persistence of what I suggested earlier as a domestic model
(of Western society) approach in international legal studies, represented by excessive judiciary-centrism 153. This judiciary-centrism is
particularly strong in the theory on the so-called sources of international law. Although most international lawyers actually deal with
problems of international law mainly in terms of prescriptive norms
of conduct, when they consider sources of international law,
they conceive of the problem in terms of the adjudicative norms,
expressed in Article 38 of the ICJ Statute. We must elucidate this
problem of excessive judiciary-centrism in more detail.
It is true that norms of international law function as adjudicative
norms both internationally and domestically. Adjudication is an
important means to redress violations of international law, to settle
disputes between States, and more generally to realize norms of
153. See section I, 1 (4), supra.

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international law. There are various kinds of judicial organs playing


important roles in international society. The ICJ, the International
Tribunal of the Law of the Sea, the European Court of Human
Rights and the ICC are leading examples. Among these the ICJ has
been perceived as the most important judicial organ in international
society. The ICJ itself has repeatedly emphasized its character as a
judicial organ 154.
This characterization of the ICJ as the most important judicial
organ has been associated with the perception of the ICJ as an
important agent of dispute resolution in international society. The
significance of the ICJ as an agent of dispute settlement appears to
have increased both in terms of the number of cases it dealt with and
the political or societal significance of the problems brought into the
ICJ. Further, in the fields of human rights, international criminal law,
and the international economic law, judicialization in the wider sense
of the term, if not in the strict sense of the term, has been in
progress. These trends have been highly appreciated not only by
international lawyers, but by some international relations scholars as
well.
The latter have even talked about legalization in international
society from the late twentieth century. International Organization, a
leading journal in the study of international relations, published a
special issue titled Legalization and World Politics in 2000 155.
Although those international relations scholars have been interested
in the legalized dispute resolution in the wider sense of the term
rather than the ICJ 156, they share the judicial-centrism in understand154. See Northern Cameroons case, Judgment of 2 December 1963, ICJ
Reports 1963, p. 29 ; Haya de la Torre case, Judgment of 13 June 1951, ICJ
Reports 1951, p. 79 ; and Nuclear Tests case, Judgment of 20 December 1974,
ICJ Reports 1974, pp. 270-271. A number of scholars of international relations
refer to the WTO dispute settlement mechanism as an evidence of the judicialization in the late twentieth century. But it is questionable whether this mechanism, under the present scheme and functioning, should be characterized as a
judicial one in the strict sense of the term.
155. International Organization, LIV, No. 3 (2000). Informative and stimulating studies have been done by prominent international lawyers and international
relations scholars, including K. Abott, J. Brune, G. Downs and D. Rocke,
M. Finnemore, H. Koh, J. Goldstein, A. Hurrell, P. Katzenstein, R. Keohane,
S. Krasner, F. Kratochwil, J. Mearsheimer, N. Onuf, J. Ruggie, I. Scobbie,
S. Scott, D. Shelton, K. Sikkink, B. Simmons, H. Suganami, A. Wendt,
O. Young, since the late 1970s, especially since the 1990s.
156. See Robert O. Keohane, Andrew Moravcsik and Anne-Marie Slaughter,
Legalized Dispute Resolution, International Organization, LIV (2000),
pp. 457 et seq. (See Chapter II, section II, 1 (2).)

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ing law in general. They tend to equate law, which they unconsciously understand in terms of prescriptive norms of conduct, with
adjudicative norms. Apparently they have been influenced by the
positivistic understanding of law centred on the judiciary, which has
been prevalent in the United States and international society.
Moreover, the status of the ICJ as the agent of authoritative interpretation of international law has been much elevated. Writings
of leading publicists such as Lassa Oppenheim still enjoy a high
reputation as an authoritative cognitive basis for identifying and
interpreting norms of international law, but their significance has
decreased, if compared with the former period. The relative significance of the judgments and advisory opinions of the ICJ as the major
cognitive basis for identification of international law increased
during the latter half of the twentieth century. Today, most international lawyers rely heavily on the judgments and advisory opinions
of the ICJ when they seek to establish the most authoritative identification and interpretation of international law.
(2) Aspects not referred to in the prevalent discourse on the
legalization and judicialization in international society
We certainly have to appreciate the significance of the ICJ when
we see the ICJ as an agent to interpret international law. When we
deal with a particular issue involving international law, the interpretation of the norm in question by the ICJ has a tremendously important value, especially if there is a jurisprudence of the ICJ on the
issue. Even though the binding force of the precedents is not recognized for the ICJ judgments 157, still the interpretation of the ICJ
enjoys the most authoritative one. It gives a tremendous persuasive
power and authority to the party who makes use of such interpretation in its argumentation. If the discussion on the significance of the
ICJ is limited to this aspect, I certainly agree with those who emphasize the significance of the ICJ.
However, when we evaluate the significance of the judiciary in
the twenty-first-century global society, we must take into consideration other aspects of the problem, and seek to elucidate a wellbalanced, comprehensive picture of the judiciary in the global society.
As demonstrated in Chapter II, section I, 1 (2), most cases where
157. See Article 59 of the ICJ Statute.

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international law is referred to, discussed and dealt with are not in
the ICJ. The ICJ is not the most important forum of international
law. International law functions primarily as prescriptive norms of
conduct, justifying State behaviours in diplomatic negotiations,
international organizations, international conferences, national parliaments and many other forums such as web sites, newspapers and
TV programmes. The significance of the ICJ must be assessed in
these comprehensive forums where international law is actually
referred to, discussed, invoked, applied and realized.
One might also be able to see various phenomena of legalization in international society from around the end of the twentieth
century. Even if this is the case, this should not be equated with the
judicialization. Law is not the same with the judiciary. At least,
legalization cannot be equated with the enhancement of the importance of the ICJ. The participants of international legal processes
generally do not act in the shadow of the ICJ. The ICJ is not the
most important organ for settling international conflicts, which have
non-juridical aspects as well. Moreover, whether we should talk
about legalization of world politics starting around the end of
the twentieth century is itself a problem that should be critically
examined.
The fundamental problem is whether we should evaluate the ICJ
as an important agent of international conflict resolution, and talk of
the legalization and judicialization in the global society at large.
It is certainly true that there have been some conspicuous phenomena which appear to allow such talk. It is certainly attractive to
find an ally among international relations scholars, many of whom
have negated the raison dtre of international law for years. Yet,
as experts of law, international lawyers must be more cautious in
joining those who hail the legalization and judicialization in
international society.
(3) Necessity for differentiating the significance of the ICJ as an
agent of international conflict resolution and the most authoritative organ to interpret international law
Those who have argued for legalization seem to understand
that while law was not an important institution in international
society, it came to be important toward the end of the twentieth
century. The establishment and management of the WTO, global

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environmental protection mechanisms, the ICC and other institutions


involving law seemed to provide a basis for this understanding.
However, this understanding is at least one-sided and misleading. As
has been argued by the English School, and is demonstrated in
Chapter II, section II, 1 (2), law has always been an important
institution in international society, which is basically a Western
construct. Legalism, a characteristic feature of the Western society,
has been embedded in the modern international society. Law may
have become more conspicuous and more institutionalized toward the
end of the twentieth-century global society. But it did not suddenly
become important as a global institution.
The role of the ICJ in conflict resolution is a part of a more comprehensive global process in settling various types of conflicts,
involving political, social, economic, cultural, emotional and historical aspects in global society. Seen from this perspective, judgments
rendered by the ICJ constitute only a minor part of this comprehensive process. Most Governments, especially those of powerful
States, rarely consider that a conflict involving their serious national
interests should be settled by an independent judiciary whose judgment they cannot control. Although the ICJ may bring a final settlement to some conflicts, in most cases, conflicts between States are
settled by diplomatic negotiations between Governments of the conflicting States. Or, international organizations engaged in the conflict
in the form of mediating the States in conflict, or adopting resolutions urging them to take certain measures or condemning a certain
party may play a more important role.
Even if the States in conflict refers a case to the ICJ, and the ICJ
happens to have jurisdiction over the case and renders a judgment, it
cannot necessarily settle the case. International lawyers tend to
assume that once the ICJ renders the judgment, this judgment should
settle the conflict, tacitly equating the legal dispute with the substantial conflict. Whether the judgment is actually realized has not been
seriously considered in the study of international law 158.
However, we must distinguish between a dispute, which can be
defined as a conflict contested in terms of normative terms between
parties, and a conflict in the general sense of the term, which under158. See Oda Shigeru, The Compulsory Jurisdiction of the International
Court of Justice, International and Comparative Law Quarterly, XLIX (2000),
p. 251.

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lies the dispute 159. A dispute may be settled by a judgment of a court,


which has binding force on the parties. Yet, the conflict is not necessarily settled by a judgment of a court. Although the conflict is submitted to a court as the juridical question, this does not mean that
it ceases to have political, economic, historical, sociological and
emotional dimensions.
The Government of the State party losing the case in the ICJ
should know, and generally knows, that the settlement given by a
judgment of the ICJ is final and that the State must obey the judgment. Yet, this understanding may not be shared by others in the
country. The rivals in the ruling party, the opposition parties, powerful associations of private enterprises, NGOs and media institutions
may not share such an understanding. And if the public of the State
losing the case are not satisfied with the settlement given by the ICJ,
there is always a possibility of manipulation of this dissatisfaction
by politicians who are opposed to the Government responsible for
agreeing to the conflict settlement by the ICJ. Although this possibility is relatively small in the case of juridical questions in comparison with political questions, there is no categorical difference
between the two if seen from a political or sociological perspective.
Thus the judgment may not be implemented by a party which has
lost the case. Actually, this can happen fairly often in international
society.
Here, we must recall that there is no enforcement mechanism for
realizing the judgment of the ICJ. Nor does the general consciousness exist in todays global society that such mechanism should exist
among nations. Fundamentally, only 66 States out of more than 190
States have accepted the compulsory jurisdiction of the ICJ 160. Even
those which have accepted the jurisdiction of the ICJ, a substantial
number of States have made various kinds of reservations to it.
Given the fact that only one out of five permanent members of the
UNSC accepts the jurisdiction of the ICJ, we cannot expect that
major international issues involving major powers are settled by the
ICJ.
Simply regarding the increase of cases brought to the ICJ and the
conspicuous phenomenum of legalization in international society
159. As to this distinction, see Hirose Kazuko, Hunso to Ho (Conflicts and
Law) (Keiso Shobo, Tokyo, 1970).
160. The Court at a Glance, available at http ://www.icj-cij.org/presscom/
en/inotice.pdf (last visit : 25 May 2009). The document is dated 4 May 2009.

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as a progress in international law or a judicialization of international society overlooks these crude realities of the contemporary
global society. We must adopt a wider, more comprehensive perspective from which we can see how international law is perceived by
the Governments and other participants of international law, and
how it works based on such shared understanding in international
and domestic societies. We must see various forums where international law is actually referred to and used, as well as actors that
conceive of and actually use international law.
2. International law in the real world
(1) Pre-eminence of non-judicial forums where norms of international law are actually referred to, discoursed and used
In Chapter I we referred to cases where norms of international law
are actually being aware of, referred to, deliberated, invoked, discussed, applied, and realized or implemented. In order to assess the
significance of the judiciary in terms of power and legitimacy in
international law, we must elucidate how international law is recognized and used in these actual cases and how the judiciary is
involved there. Only by assessing the role of the judiciary in such
actual cases in a more specific manner can we have the proper
understanding of the significance of the judiciary and of international law as adjudicative norms.
First, international law is being aware or conceived of, or referred
to, by organs of the Governments, experts and ordinary citizens
when these agents vaguely or deliberately consider some matters or
phenomena by referring to some concepts of or on international law.
When, for example, they conceive of some question as a problem
or an issue relating to such problems as sovereignty, human
rights, territory, self-defence etc., they either consciously or
unconsciously have some notions and/or frameworks of international
law in mind. They understand, interpret and construct these matters
through such notions and/or frameworks, which are notions and/or
frameworks of, or on, international law.
Second, international law is referred to and invoked in (1) diplomatic negotiations between Governments of States in conflict ;
(2) discussions, debates and negotiations in international organizations and conferences ; (3) international tribunals such as the ICJ or
the ICC ; (4) dispute settlement mechanisms such as WTO dispute

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settlement mechanisms ; (5) adversarial processes including domestic


courts between persons who claim their rights have been violated by
the acts of a certain Government of a State, and the Government
denying the claim ; (6) discursive forums in the national parliament
and local media of the State ; and (7) discursive forums in regional
and global media such as CNN, the BBC, the New York Times, as
well as various media run by or covering diverse groups such as
minorities, indigenous peoples, associations of influential corporations, labour unions, and major world religions, etc. 161
Third, international law is applied by international and domestic
courts, national Governments and international organizations. In
most cases international law is applied by national Governments and
is realized without producing serious problems. This is the normality
of international law, and international law is not being aware of
because there exists no conspicuous problems inviting attention of
people. When, however, there are some conflicts between nations or
other subjects of international law, and international law is invoked
by the parties in conflict in the third party forum, most typically the
tribunal of the international court, this tribunal should apply international law and seek to solve the conflict. Through this application,
norms of international law is expected to be realized.
Among these cases, only (3) of the second case and a certain portion of the third case are concerned with international law as adjudicative norms to be applied by the ICJ. However, as was demonstrated in section II, 1 (2), the problem cannot be settled by the ICJ
if the State party whose act constitutes an issue of international law
has not accepted the jurisdiction of the ICJ on the issue in question.
In the case (1) of the second case, one of the party States may want
to sue the other party in an international court including the ICJ, if it
believes that it can win the case. However, in the absence of the
compulsory jurisdiction of the court, it cannot do so unless the other
party agrees to settle the case by the judicial mechanism. Under
these circumstances, the shadow of the court can hardly play an
important role in the argumentative or bargaining processes between
the parties in conflict or participants of the international legal processes. In the case (5) of the second case, international law may
function as adjudicative norms, but not in the ICJ but in domestic
courts.
161. See Chapter II, section I, 1 (2).

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It is thus evident that in most cases, forums where international


law is referred to, invoked, discussed, applied, and realized or implemented are outside the ICJ. Arguments on the legality or illegality of
the act of States do not centre on the interpretation of international
law as the adjudicative norms. The discourses on, and actual treatment of, international law by various kinds of participants of the
international legal processes are basically on the identification and
the interpretation of international law as the prescriptive norms of
conduct.
Governments, political rivals, opposition parties, NGOs, media
institutions and activists resort to various sources of interpretation of
these norms of conduct in question in order to secure an interpretation favourable to them. They do so because they know that justifying their argument by international law would enhance the legitimacy of their argument and can secure a good chance of winning the
case. The various sources such as multilateral treaties, precedents of
the ICJ, UNGA resolutions, and unwritten norms of international
law which are generally called customary international law constitute cognitive bases of international law functioning primarily as
prescriptive norms of conduct. They also function as norms for
assessing the legality or illegality of the act in question, and consequently legitimating or delegitimating it. This is the living international law that international lawyers must deal with, analyse,
interpret, elucidate and explain.
(2) Higher values of multinational treaties and UNGA resolutions
as cognitive bases of general international law
These cognitive bases of international law range widely according
to subject matters and actual contexts of the conflicts. Provisions of
treaties are generally the most important cognitive basis. If there are
judgments and/or advisory opinions of the ICJ on the issue with
which international law is concerned, they are highly valuable.
Among many cognitive bases of international law, interpretation of
the norm in question given by the ICJ has the highest authority and
persuasive power. Arbitral awards and judgments of international
courts other than the ICJ have a similar, if not equal, value.
However, such cases are not a rule, but rather an exception, as indicated above.
In many cases, resolutions or declarations of the UNGA and deci-

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sions of the UNSC are cited or referred to as authoritative bases for


identifying and interpreting the norm of international law in question. Except for a limited number of the Security Council decisions
that are based on Article 25 of the UN Charter, they lack binding
force per se. However, as already demonstrated earlier, this does not
deny their value as cognitive bases for identifying international law.
Reports of the panels and of the appellate body of the WTO, as well
as views, opinions and recommendations of the monitoring bodies of
various multilateral treaties also constitute cognitive bases for
identifying norms of international law in question. Resolutions of
various international organizations and important international conferences other than the United Nations, judgments of municipal
courts, views of the leading international lawyers are further cited
and referred to as cognitive bases of international law.
Arguments made in forums other than the judiciary in global
society do not necessarily have the same argumentative style as those
in a court. Without a judiciary with compulsory jurisdiction, argumentation between parties to a dispute does not proceed under the
shadow of the court. Under such circumstances, the degree of persuasiveness of the argumentation on the interpretation and assessment on legal norms of international law matters greatly. It involves
the argument concerning the procedural and participatory legitimacy
in the promulgation of the norm in question, international, transnational and intercivilizational substantive legitimacy, relative strength
in terms of effective realization of the rule, and so on.
Seen from this perspective, the comparative persuasive power of
the traditional theory of customary international law is not as great
as it has been believed to be. Neither State practice nor opinio
juris advocated by the proponents of the traditional theory of customary international law can provide more convincing evidence of
the sufficiently general and wide coverage of States than multinational treaties of a universal nature. Such treaties as the Geneva
Convention of 1949, the UN Charter, and the Convention on the
Rights of the Child can provide a far more explicit and transparent
evidence of the commitment of the overwhelming number of States
than the fictitious notion of State practice or opinio juris, which
should satisfy the requirement of generality yet actually does not.
Similar conclusions can be drawn as to the UNGA resolutions
adopted unanimously or by consensus. The norm creating process of
the UNGA satisfies the requirement of a global participation far

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better than the traditional customary international law-making process does, because the UNGA is an organ composed of virtually all
States of the world. Even in terms of the traditional doctrine respecting the sovereign will of individual States, the UNGA norm-creating
process is more legitimate in that it actually gives an opportunity to
all members of the UNGA whether they agree or disagree with the
proposed norms. This has been amply demonstrated in section I, 2.
(3) The element of power in the creation of general international
law
When we consider the problem on international law including
general international law, we must take into consideration not only
the element of legitimacy but also that of power. This problem was
amply discussed in Chapter II. Here, a brief comment on the problem of the persistent objector and on the problem of voting in the
UNGA resolutions is in order.
Even if multilateral treaties satisfy the requirement of global legitimacy far more than the traditional customary international law, if
there is a powerful State persistently objecting to a certain norm in
the treaty, this factor must be seriously considered. The persistent
objector rule was argued and discussed as a rule obstructing an
emerging norm from becoming customary international law 162.
However, the crucial problem of the persistent objector is not concerned with the existential form of law, but the universal validity of
law. Thus, we must consider the problem of the persistent objector
whenever we deal with the problem of general international law,
whether it derives its universal validity from a general custom, a
general treaty or a UN resolution.
If we see the problem of the so-called persistent objector rule
from this perspective, we can see why this rule was advocated and
was quickly accepted by a considerable number of influential international lawyers in the late twentieth century. It was the time when
the problematic features of the traditional theory on customary international law came to be widely recognized. It was the period when
the ICJ and some international lawyers sought to identify norms of
international law by relying on multinational treaties and the UNGA
162. See Ted L. Stein, The Approach of the Different Drummer : The
Principle of the Persistent Objector in International Law, Harvard International
Law Journal, XXVI (1985), and other references dealing with this problem.

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resolutions. When the traditional theory on customary international


law had been prevalent without being questioned of its legitimacy, it
had not been necessary for major Western States and their international lawyers to seriously consider the possibility of a certain norm
becoming general international law without their consent or agreement. Because general international law was formulated as customary norms that were identified by leading Western international
lawyers who relied on the State practice of major Western States,
there had been little need for those major powers to object to these
customary norms.
However, when a number of international lawyers, and even the
ICJ began to rely on multinational treaties and the UNGA resolutions as cognitive bases for identifying norms of general international law under the name of customary international law, there
emerged a possibility, and even an actuality, that a norm to which a
major Western State had objected to be identified as customary
international law. Under the assumed equation between general
international law and customary international law, such a norm
might well be regarded as a norm of general international law. Even
the most powerful State, i.e. the United States, would have to abide
by it, although it had objected to it. Such a situation must be
avoided. This seems to be one of the major reasons why the socalled the persistent objector rule came to be quickly fashionable
in the study of international law in the late twentieth century, where
the intellectual power of the leading Western nations was paramount.
The problem of the effectiveness of the norm lingers in the case
of the UNGA resolutions as well. In order that a norm provided in
the UNGA resolution can be identified as a cognitive basis of a positive norm of general international law, it must be followed and completed by concrete behaviours of States including major powerful
States. If a resolution is adopted without an affirmative vote of
powerful States, the value as a cognitive basis of a norm of general
international law is very low. In particular, if that vote is an objection rather than an abstention of a number of powerful States, such a
UNGA resolution is almost valueless as a cognitive basis of general
international law. It lacks not only the power realizing the norm, but
also legitimacy in that it does not represent the will of global community as a whole.
As has been demonstrated earlier, the problem of whether and to
what extent the norms in the UNGA resolutions can be used as cog-

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nitive basis of general international law must be scrutinized in comparison with so-called customary international law under the traditional doctrine, both in terms of power and legitimacy. In terms of
legitimacy, relative superiority of identifying general international
law on the basis of multinational treaties or the UNGA resolutions in
comparison with the traditional theory of customary international
law was amply demonstrated. The custom, State practice or
opinio juris which was used in the traditional doctrine is also a
cognitive basis of international law, not international law per se.
There is no difference between them in this critical sense. It is not
fair at all to allow camouflaging the lack of generality by the abuse
of tacit (or inferred) consent, acquiescence and other fictitious
notions for the traditional theory of customary international law on
the one hand, and to set an excessively high threshold for an alternative theory seeking to formulate the notion of general international
law on the basis of multinational treaties or the UNGA resolutions
on the other.
Even in terms of power, the power of a small number of Western
States, which eclipsed the lack of legitimacy in terms of generality
of State practice and opinio juris by guaranteeing the effectiveness
of the customary international law in the nineteenth and twentieth
centuries, is gradually decreasing in the twenty-first century. In the
1970s, even if the non-Western States occupied an overwhelming
majority in the UNGA and sought to create norms of international
law by adopting the UNGA resolutions, they could not do so if the
small number of Western States were determined to obstruct such a
norm-creating process. There was an apparent gap between those
who held power and those who occupied the majority. However, this
gap will become gradually but steadily smaller. The non-Western
States will not only continue to occupy the majority, but also gain
more substantive power guaranteeing the effectiveness of the norms
of international law. In this way, properly appreciating the normcreating process through the UNGA resolutions is needed not only
in terms of legitimacy but in terms of power as well.
(4) Towards a more comprehensive perspective for assessing the
proper status and functions of international law
When we conceive of the global legal order in the twenty-first
century, we must think of general norms of international law that can

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effectively influence the behaviour of States and other international


actors. Some of these prescriptive norms of conduct in general international law that are identified through various cognitive bases as
described above may not be able to make all States comply with specific norms which are strictly defined and interpreted in international
courts. However, they can still demonstrate the shared goals and
understandings of the global community, exert a certain influence on
the behaviour of States including the hegemonic State, and induce
convergence of various behaviours of States with diverse ways of
viewing and constructing interests, values, and other normative or
material notions and frameworks. They can further carry out a
number of other important societal functions as law in international
society.
In order to identify such general prescriptive norms of conduct in
international law, we need to identify actual situations where rules
and principles of international law are actually involved, resorted to,
and utilized. We also need to identify actual actors who are involved
in the process where rules and principles of international law are discussed, drafted, formulated, applied, utilized to justify or criticize
certain claims or interests of various subjects, violated by some
actors, enforced and finally realized. By paying attention to such
specific realities from international, transnational and transcivilizational perspectives, we can liberate ourselves from our deeply rooted
excessive State-centrism and judicial-centrism.
Today, a large number of non-State actors are heavily involved in
a process where international law is involved, invoked and utilized.
These actors are numerous. They include enterprises, NGOs, international lawyers and other experts, various kinds of activists, media
institutions, ethnic minorities, indigenous peoples, churches, independent priests, Buddhist monks, ayatollahs, victims of human rights
violations, etc. They resort to international law in order to justify
their claims and interests, or to negate the legitimacy of the claims
made by their opponents. They use international law to rectify
wrongs imposed on them by States or by powerful groups, and to
realize various values and interests they pursue. Even powerless
peoples within a State such as linguistic or religious minorities, indigenous peoples, and many other groups who are subjugated and/or
exploited by some domestic powerful groups including those in the
Government can make use of international law in a variety of
forums. Through such political use of international law, interna-

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tional law contributes to various socially useful functions including


legitimation through the process of conflicting justification 163.
It is therefore important to pay attention to the aspect where international law works not as a means of settling some conspicuous conflicts, but as an important means to help realize values and interests
of peoples lives in a less conspicuous manner. International law
generally works in a far more quiet and invisible manner than in the
cases which are brought to the judiciary, where international law
functions as adjudicative norms in a visible form of judicial proceedings and judgments. It may be easier for international lawyers to
centre on such conspicuous and accessible materials as judicial judgments of the courts and construct a theory of international law that
is based on such positive materials of law. However, as amply
demonstrated above, such a theory covers only a very limited field
where international law is referred to, invoked, discussed and used.
Rules and principles of international law function in far larger fields
than international judicial processes. A theory of international law
must be rewritten against this reality.
As Rosalyn Higgins wrote at the very beginning of her excellent
book Problems and Process,
If a legal system works well, then disputes are in large part
avoided. The identification of required norms of behaviour, and
the techniques to secure routine compliance with them, play an
important part . . . Of course, sometimes dispute-resolution will
be needed ; or even norms to limit the parameters of conduct
when normal friendly relations have broken down and dispute
resolution failed. But these last elements are only a small part
of the overall picture. 164
H. L. A. Hart expressed the same idea in the following way :
The principal functions of the law as a means of social control are not to be seen in private litigation or prosecutions,
which represent vital but still ancillary provisions for the failures of the system. It is to be seen in the diverse ways in which
the law is used to control, guide, and plan life out of court. 165
163. Onuma, supra footnote 149, pp. 136-138.
164. Rosalyn Higgins, Problems and Process : International Law and How
We Use It (Clarendon Press, Oxford, 1994), p. 1.
165. Herbert Lionel Adolphus Hart, The Concept of Law (2nd ed., Clarendon
Press, Oxford, 1997), p. 39.

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In these ways, international law contributes to the well functioning of the international system as a whole without necessarily being
recognized of its importance.
International law certainly plays its important role of settling disputes between States as adjudicative norms. The establishment of the
rule of law with effective judiciaries is an important objective in
international society of the twenty-first century. We have witnessed
and are witnessing the gradual increase of the significance of judiciaries and mechanisms of quasi-judiciary functions in the twentiethcentury international society. We cannot deny that the traditional
theory of customary law for identifying general international law has
a long history and is highly sophisticated. To maintain the doctrine
relying on the customary international law may be possible by
making it technically even more sophisticated.
Yet, recognizing these facts and possibilities does not mean at all
that we should conceive of international law exclusively, or even
mainly in terms of adjudicative norms. We must recognize that the
major arena of international law is in non-judiciary forums. This
recognition does not mean dwarfing international law. On the contrary, this recognition leads people to properly understand that international law plays a great number of socially important functions as
described in Chapter II. And such understanding of the various roles
and functions of international law is the key for its survival as a
theoretical and practical tool in the twenty-first-century world. It is
useless to revive the theory equating the fictitious notion of customary international law with general international law, which
has virtually been dead for many years. The theory has definitely
out-lived its proper lifespan. It is now time for us to make efforts to
elaborate a theory based on the recognition that ordinary prescriptive norms of conduct in international law can be identified independently of Article 38 of the ICJ Statute, although the latter can
provide a useful clue to such identification.