out at that time. Clear words of the Treaty had been
interpreted only five years previously, by the International Law Association, to mean that -
A signatory State, which threatens to resort to armed force for the solution of an international dispute or conflict is guilty of a violation of the Pact. The United Nations Charter of 1945, in Article 2, paragraphs (3) and (4), requires all Members, being Parties to the Treaty of the Charter of the United Nations, to "settle their international disputes by peaceful means" and to "refrain in their international relations from the threat or use of force". Article 2, by itself, could be interpreted to outlaw armaments other than those required for the maintenance of internal
order. However, Article 51, which gives Members the
right of individual or collective self-defence until such time as the Security Council may be able to protect them from armed attack, has been relied upon as justification for the maintenance and unprecedented growth of armed forces, and the stockpiling of armaments, including nuclear arms.
One of the four stated aims of the United Nations Charter is
... to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained . . .
Since the Charter was signed in San Francisco, on 26 June 1945, the avoidance of world war has been generally
attributed to the fear of "unacceptable damage" from enemy nuclear weapons, rather than obedience to the undertakings pledged at the inception of the United Nations and subsequently. Foreseeably, States will
continue, in the main, to be motivated by considerations of self-preservation and self-advancement until a
condition of much greater international cohesion is attained than at present.
International law merely facilitates methods to be devised for the attainment of those national objectives
that are shared by States at the international level. As the avoidance of nuclear war is the most ardently shared objective of the current era, the appropriate utilisation of the international legal system in that endeavour
becomes uniquely relevant. Existing NAC treaties, and innumerable General Assembly resolutions, bear witness to the expectation that the elaboration and observance of international law will be able to prevent nuclear
confrontation in the short term, and facilitate the conversion of a fragile balance of terror into a secure system of assurances in the long term.
Traditional Approaches to International Law
Due to the ossification of the basic tenets of jus gentium, the Greek, Roman and mediaeval approach to
international law still carry definitive influence. The age and continuity of the system are regarded as virtues by many contemporary jurists, one of whom expressed this widely held sentiment with the observation that, "the structure of the international system ... appears to be still tremendously solid since its distant origins back in the Middle Ages".^
While there are countless divergencies regarding the finer points of international legal theory, it is
generally assumed that international law is an entity with inevitable characteristics and that it only remains to establish what those characteristics are. For
example, Professor Eric Suy, Legal Counsel of the United Nations, asks some of the most fundamental questions confronting international law today, but he asks them as
if the answers merely had to be discovered and not
invented. In 1981, speaking of the status of resolutions adopted by the United Nations and its specialised
agencies, he said -
Contemporary international law must deal with these new "prescriptive norms". There are a number of questions that must be examined. For example, to what extent are the decisions of those various
intergovernmental organizations creating new norms? Are they legal norms? Are they generally binding legal norms, or are some of them binding and some not? How are the binding norms determined?
The attributes of international law are enumerated and analysed as if they were the properties of a specific object known to exist, whose chemical and physical
composition have not yet been adequately identified and measured. Consequently, questions about reconciling contemporary needs with persisting traditions are
invariably posed within a static framework.
It is asked, "How can resolutions of the General Assembly become rules of customary international law in order that they may be incorporated into the
international legal system?" It is not asked, "How could international legal theory be recast so as to accommodate recommendations of the General Assembly in a way that would attribute to those resolutions a normative
influence on international conduct commensurate with their de facto authority?" and "How could this be
achieved without ascribing to the States that voted for those resolutions an intention to create positive law which they patently did not envisage?" In other words, the possibility of remoulding the basic principles of international law, in order to make it a convenient tool for the attainment of current objectives, has not been adequately confronted.
The conduct between States in their dealings with each other at the time of the Greek and Roman Empires, and later, in the Middle Ages, consisted of rules that were so obvious and elementary as to be identifiable with
o
the rules of nature jus naturale. With the spread of religious concepts during the Middle Ages, the law of nature was equated with the Divine Law in the writings of theologians such as Saint Thomas of Aquinas. Christian and Moslem^ religious writers and naturalists as they came to be called, shared the view that law, including
international law, was part of an immutable body of precepts waiting to be discovered. European scholars,
who developed and refined this concept, included Thomas Rutherford, Jean Jacques Burlemaqui^^ and
De Rayneva1. ^^
As international contacts became more frequent and increas ingly complex, subjective evaluations of what the natural or Divine Law was, inevitably conflicted with different
evaluations made by other individuals. Telling examples can be found among the views propounded by Samuel Pufendorf,1 ^ Professor of Law at the University of Heidelberg, Germany, in the mid-Seventeenth Century. The reputed foremost
exponent of the naturalist school, Pufendorf claimed, for instance, that no mercy should be shown in war, as this would merely delay a return to a condition of peace, being the natural state of existence. Predictably, the proposition did not meet with universal concurrence.
In response to the untenable conflicts arising from the naturalist interpretation, there emerged an approach to international law which, after theoretical elabor ation, became known as the positivist school. Cornelius Van Bynkershock,14 Johann Jacob Moser1^ and George
1(:
Friedrich von Martens are regarded as the founders of the positivist school, which maintained that the sources of international law are international obligations explicitly undertaken by sovereign States. This view proved to be much less te.nable in the Eighteenth Century than it would be today, due to the sparseness of treaties and other overt undertakings. Technical difficulties, including
rudimentary communications and the absence of efficient bureaucratic structures, made the conclusion of
treaties and the ascertainment of other agreements very difficult. Hence, it was not possible to adhere to the positivist principle because often no agreements existed to guide the resolution of new international conflicts as they arose.
The theory that best suited the requirements of Euro-centred international life from the Seventeenth Century to modern times, made a pragmatic compromise between naturalists and positivists, without
acknowledging its pragmatic origins. The compromise approach relied on the obscure language of treaties; whatever scant evidence there was of international
customs; together with naturally fertile imaginations, to adduce the rules and principles of international law. The followers of this compromise approach were the first to state their views in detail. They became known as the Grotians, after Hugo Grotius who is regarded as the
"father" of international law. The theory on which the Grotian school was based differentiated between what was believed to be necessary law, and merely voluntary law. The former was believed to be the law of nature and God, while the latter consisted of treaties and customs made by men to suit the exigencies of given situations. These views were further elaborated by Christian Wolff and
Emmerich de Vattel.
Seventeenth and Eighteenth Century doctrines still form the basis of international law as it is known today. These vague and jumbled concepts, with generations of elaborations and qualifications haphazardly appended,
provided the basis of the jurisdiction of the Permanent Court of International Justice. In 1945 they were
incorporated into the Statute of the International Court of Justice which, in Article 38 (1) designates the terms of reference of international law to be -
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting States;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59,
judicial decisions and the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
The drafters of the Court's Statute deliberately chose to establish no hierarchy of precedence to be attributed to paragraphs a, b and c of Article 38 (1), on the ground that this would be self-evident to international lawyers.
The aforementioned exposition of sources, in the light of the meanings that those concepts have acquired over the centuries, is the only guide to the nature and content of international law to be applied under the Statute, which enjoys the concurrence of 157 Member States of the United Nations pledged by Treaty. In
practice, relevant treaties are usually given precedence over other sources as the best evidence of State consent in any matter, while as between treaties, obligations under the Charter are claimed, by Article 103, to prevail in case of conflict with "any other international
theoretical supremacy of treaties.
According to the West European tradition of inter national law, enshrined in the Statute, the most highly
19
respected source of international law is custom.
Therefore, when Professor Bo Johnson, legal adviser of the Ministry for Foreign Affairs of Sweden, claimed in 1381 that "the first and most important source of this 'international law' is the custom of states",2ß he was describing the
contemporary factual situation consistent with the provisions of the Charter.
International Custom and Nuclear Arms
We have seen that international agreements for NAC are an integral part of the international legal system, and that
the international legal system is inextricably bound up with "international custom as evidence of a general practice
accepted as law". It is not immaterial, therefore, that both the applicability of custom and the theoretical basis of the whole international legal system of which custom is a part, are in disarray. As Professor Grahl-Madsen said when opening the Joint UNITAR-Uppsala University Seminar on
*
International Law
I cannot see that we have any alternative to attempting to develop new and more efficient machinery for the progressive development of
international law. *1
Later in the Seminar, Professor Grahl-Madsen observed that - Like the old Law of Nature, a customary law and
legal principles developed in Europe can no longer serve as a solid basis for international law.22 Much of the criticism of international custom as applied by the International Court of Justice, is not of the concept of custom, but its affinity to West European
values and approach to legality. While this is no doubt the case, criticism of this kind, emanating from the Socialist and recently independent States, has somewhat obscured more fundamental problems. When some of this criticism surfaced in 1974, during a debate in the Sixth Committee on the efficacy of the International
Court of Justice, the United States, Canada, and Italy complained that -
...the uncertainty of the content and scope of the rules which were applicable in the international sphere was a weakness; the Court's role and the law it applied should be clarified and strengthened.22 Uncertainty regarding the content of the rules of international custom, unless they are interpreted by a Court, can lead to difficulties. There is also
uncertainty, inter alia, about how custom comes into being, its relevance to United Nations resolutions, how
it can be renounced, and what States are bound by it. It is well established that, in order to determine the existence of a rule of international custom, it is necessary to prove that States have acted in conformity with the rule, and that they have done this in the belief that they were legally obliged to do so.
There are several uncertainties, however, concerning what constitutes the required acts of States. For
instance, it would be necessary to have a clear
understanding as to what is regarded a sufficient number of States applying the rule. In the Fisheries Jurisdiction case, the Court declared that -
States are on record as not supporting in fact and by their conduct the alleged maximum obligatory 12-
mile rule. In these circumstances, the limited State practice confined to some 24 maritime
countries cited by the Applicant in favour of such a rule cannot be considered to meet the requirement of
demanded by Article 38 of the Court's gene ra1 itv
Statute.2^
Yet, in the Anglo-Norwegian Fisheries case, the Court relied largely on the practice of one State, the United Kingdom, stating -
The notoriety of the facts, the general toleration of the international community, Great Britain's position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway's enforcement of her system against the United Kingdom. b
Another uncertainity is whether pronouncements of States accompanying custom creating acts should be taken into account.
As the Court put it -
There is at the moment great uncertainty as to the existing customary law on account of the conflicting and discordant practice of States. Once the
uncertainty of such a practice is admitted, the impact of the afore said official pronouncements, declarations and proposals must undoubtedly have an unsettling effect on the crystallization of a still evolving customary law on the subject. b
In the circumstances it was thought unreasonable to discard official statements as to "what States are
2 7