1.

0 INTRODUCTION

This essay discusses the extent to which the statement that ‘there is no hierarchy of sources in
international law and that the principles of soft law can thus be as influential as treaty rules or custom
is an accurate one using relevant evidence.’

In achieving the above, the essay will start by looking at the sources of international law, then it will
proceed by discussing whether there is a hierarchy of sources in international law. The essay will then
investigate the level of influence that soft law possesses in comparison to treaty rules or custom. Lastly,
the essay will provide a sound conclusion on the discussion at hand.

2.0 SOURCES OF INTERNATIONAL LAW AND THE CONCEPT OF HIERARCHY

2.1 Sources of International Law

The crucial but difficult task is to define international law. The Permanent Court of International
Justice1 defined international law as a set of rules and regulations that regulates how independent
nations should relate with each other.

The starting point when addressing sources of International law is Article 38 of the Statute of the
International Court of Justice which is a definitive revealer of the International law sources. The task
of examining the hierarchy starts with the sources of international law themselves. The following are
the sources of international law as listed under Article 38 (1) of the Statute of the ICJ:

The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply: (a). International conventions, whether general or particular, establishing
rules expressly recognized by the contesting states; (b). International custom, as evidence of a general
practice accepted as law; (c). The general principles of law recognized by civilized nations; (d). subject
to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the determination of rules of law. (2). this provision shall
not prejudice the power of the Court to decide a case ex aequoet bond, if the parties agree thereto.
It is imperative to define the sources of international law as expressed above under Article 38 of the
Statute of the ICJ including but not limited to United Nations General Assembly Resolutions and Acts
of international Organisation. The following are some of the definitions.

1
The Lotus case. 1979, France v Turkey, Permanent Court of Justice. Also recognised in the case of Filartiga v. Pena-
Irala 630 F.2d 876 (2d Cir. 1980) where the courts stated that foreign states are bound to observe and construe the
accepted norms of international law formerly known as the law of nations.

1
Treaty means an international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation.2 Custom means ‘evidence of general practice accepted as law’. 3
There is thus need to show General practice and that the practice is accepted as law. Therefore ‘custom’
is a practice followed by those involved because they feel legally obliged to behave in such a way.
Article 21 (1) (c) of the Rome statute of the International Criminal Court states that the Court shall
apply general principles of law derived by the Court from national laws of legal systems of the world
including, as appropriate, the national laws of States that would normally exercise jurisdiction over the
crime, provided that those principles are not inconsistent with this Statute and with international law
and internationally recognized norms and standards.

Judicial decision is an opinion or determination of the judges in causes before them, particularly in
appellate courts.4 Soft law (in international law) means Guidelines of behavior, such as those provided
by treaties not yet in force, resolutions of the United Nations, or international conferences, that are not
binding in themselves but are more than mere statements of political aspiration (they fall into a
legal/political limbo between these two states). Soft law contrasts with hard law that is those legal
obligations, found either in treaties or customary international law that are binding in and of
themselves.5

2.2 The Concept of Hierarchy in International Law Sources

Weston et al.6 commenting on Article 38 says that the Article is meant to apply to the ICJ but has come
to have life beyond the court, helping to define the legal authority upon which decision makers and
theorists of all kinds decide cases, solve problems, and advocate policies throughout the international
system. Debatably, Weston et al.7 suggests that treaties should be considered as first in terms of the
sources. The author explains that because of the nature of creation, as guided by the definition of treaties
under Article 2 (1) (a) of the 1969 Vienna Convention on the Law of Treaties to mean an international

2
Article 2 (1) (a) of The Vienna Convention on the Law of Treaties 1969.
3
Article 38 (1) (b) of The Statute of The International Court Of Justice.
4
Garner A.B, Black’s Law Dictionary, 6th Ed, United States of America: Thomson West, 2004. p. 985
5
Elizabeth A. Martin, ‘Oxford Dictionary of Law,’ (United Kingdom: Oxford University Press, 2003) p. 467
6
Burns H. Weston, Richard A. Falk, Hilary Charlesworth and Andrew L. Strauss, ‘International Law and World Order:
A Problem Oriented Course book, 4th Edition’, (United States: Thomson West, 2006) P. 81.
7
Burns H. Weston, Richard A. Falk, Hilary Charlesworth and Andrew L. Strauss, ‘International Law and World Order:
A Problem Oriented Course book, 4th Edition’, (United States: Thomson West, 2006) P. 82.

2
agreement concluded between states in written form and governed by international law, the result is of
extensive deliberation and negotiation and as such, proposes that it should be an especially strong
source of law. This essay agrees with this proposition to the extent explained.

Similarly, Damrosch et al.8 in understanding the relationship between custom and treaties states that
Article 38 of the ICJ Statute, in its list of sources according to which disputes are to be decided, gives
first place to international conventions, whether general or particular, establishing rules expressly
recognised by the contracting states. The author ideates that although Article 38 does not provide for a
hierarchy among sources, the priority of position given to treaties reflects the understanding of states
and of international lawyers.

Lauterpacht9 sought to derail from the above understanding and stated as follows:

That it may be natural to apply a treaty in the first instance should not be taken to mean that a treaty
provision necessarily prevails over a customary rule. The Maxim, Lex specialist derogat generali, the
specific prevails over the general, is an accepted guide; it may give priority either to treaty or custom.
The meaning of the above quote is that provided a treaty and a custom do not have specific or sufficient
guidance, both are at par. As such what determines is the specificity and intention. In other words, the
hierarchy exists when there is clarity in what to do in a particular cause as opposed to general guidelines
helping less or non with the cause.

It would suffice to note from the above that because of this uncertainty as to which source of law is
higher than the other, many scholars argue the inexistence of hierarchy of sources in international law.
Given the diverse of views, one would be tempted to argue that there is not a hierarchy of sources in
international law, however, that it is agreed upon as to which of the two between a custom and treaty
would prevail as higher law with specificity in guidance is beyond peradventure.

Shaw10 acknowledges that the question of a hierarchy of sources is more complex than appears at first
sight. The author then says although there does exist a presumption against normative conflict,
international law is not as clear as domestic law in listing the order of constitutional authority and the

8
Lori F. Damrosch, Louis Henkin, Sean D. Murphy, Hans Smit, ‘International Law: Cases and Materials’ (United States:
West Publishing Company, 2009) P. 112. See also D. J. HARRI, ‘Cases and materials on International law, 4th Edition’
(London: Sweet & Maxwell, 1991) on page 25 where the author states that the statement of proposal on order of
application which would state that courts were to follow the order of appearance was omitted. Because this failed
to appreciate the simultaneous application of other sources. also the specificity of general principles.
9
Lauterpacht, International Law: Collected Papers, 86-87 (1970). See also supra note 5 on page 113.
10
Malcolm N. Shaw,’ International Law Sixth edition’, (New York: Cambridge University Press, 2008) p. 123.

3
situation is complicated by the proliferation of international courts and tribunals existing in a non-
hierarchical fashion, as well as the significant expansion of international law, both substantively and
procedurally.11

The preceding author states that the position is complicated by the existence of norms or obligations
deemed to be of a different or higher status than others, whether derived from custom or treaty. These
may be obligations erga omnes or rules of jus cogens.12 While there may be significant overlap between
these two in terms of the content of rules to which they relate, there is a difference in nature. The former
concept concerns the scope of application of the relevant rule that is the extent to which states as a
generality may be subject to the rule in question and may be seen as having a legal interest in the matter

Shaw13 practically brings the discussion to perspective. The author states that Judicial decisions and
writings clearly have a subordinate function within the hierarchy in view of their description as
subsidiary means of law determination in article 38(1) of the statute of the ICJ, while the role of general
principles of law as a way of complementing custom and treaty law places that category fairly firmly
in third place. This essay agrees with this analysis in that the labelling of a law as subsidiary entails
that there is a law above which the said is subordinate to and hence the presence of a hierarchy of
international law sources.

The binding effect of Judicial decisions and Arbitral decisions is that, unlike certain treaties such as
the UN Charter, they are at least on paper14, used for persuasive value and the decision of the Court has
no binding force except between the parties and in respect of that particular case.15 Writings of eminent
publicists are in the same vein subsidiary sources of law. In the past such writers were highly regarded

11
Supra note 10.
12
See Supra note 10 on p 124 where Shaw states that the former concept concerns the scope of application of the
relevant rule that is the extent to which states as a generality may be subject to the rule in question and may be
seen as having a legal interest in the matter. It has, therefore, primarily a procedural focus. Rules of jus cogens, on
the other hand, are substantive rules recognised to be of a higher status as such. The International Court stated in
the Barcelona Traction case [1986] PICJ that there existed an essential distinction between the obligations of a state
towards the international community as a whole and those arising Vis `a vis another state in the field of diplomatic
protection. By their very nature the former concerned all states and ‘all states can be held to have a legal interest in
their protection; they are obligations erga omnes’. Examples of such obligations included the outlawing of aggression
and of genocide and the protection from slavery and racial discrimination add the prohibition of torture.
13
Supra note 10.
14
Practically, judicial precedent is followed. For example in the case of Exchange of Greek & Turkish Populations
(1925) PICJ where the court referred to precedent from its advisory opinion on the Wimbledon case in respect to
the idea that treaty obligation do not in any way lead to abandonment of sovereignty.
15
See Article 59 of the Statute of the International Court of Justice (ICJ) which states that the decision of the Court
has no binding force except between the parties and in respect of that particular case.

4
especially during development of the law. Today it is highly debatable whether lawyers can write in
such a manner as to create law.

Shaw16 directs that a visit to Article 53 of the Vienna Convention17 reveals that a treaty will be void ‘if,
at the time of its conclusion, it conflicts with a peremptory norm of general international law’. Further,
by article 64, if a new peremptory norm of general international law emerges, any existing treaty which
is in conflict with that norm becomes void and terminates. This rule (jus cogens) will also apply in the
context of customary rules so that no derogation would be permitted to such norms by way of local or
special custom. Rules of jus cogens are rules of customary international law that are so fundamental
that they cannot be modified by treaty. Any treaty provision which conflict with a rule of jus cogens is
void. This is true regardless of whether the rule jus cogens developed before or after the treaty came
into force.18

Regrettably, there an absence of universal agreement as to which rules of customary international law
have attained the status of jus cogens therefore no examples are given under Article 53 of the Vienna
Convention. However, that does not warrant the arguments against this source being higher law because
there are examples of jus cogens despite Article 53 being silent on it. Subsequent to the judgement in
Nicaragua v USA [1986] PICJ an example of jus cogens is the prohibition of the use of armed force
in international relations, the prohibition of genocide, the sovereign equality of states, freedom in the
high seas, and the right of self-determination.19

With regard to the above, Shaw20 presents his work in the following manner:

Rules of jus cogens are not new rules of international law as such. It is a question rather of a particular
and superior quality that is recognised as adhering in existing rules of international law. Various
examples of rules of jus cogens have been provided, particularly during the discussions on the topic in
the International Law Commission, such as an unlawful use of force, genocide, slave trading and piracy.
However, no clear agreement has been manifested regarding other areas, and even the examples given
are by no means uncontroverted. Nevertheless, the rise of individual responsibility directly for
international crimes marks a further step in the development of jus cogens rules. Of particular
importance, however, is the identification of the mechanism by which rules of jus cogens may be created,
since once created no derogation is permitted.

16
Supra note 10.
17
The Vienna Convention on the Law of Treaties, 1969.
18
Article 64 Vienna Convention on the law of Treaties, 1969. Which states that if a new peremptory norm of general
international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.
19
This case was concerning the East Timor (Portugal v Australia) 1995 ICJ Rep 89
20
Supra note 10, P. 126.

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Shaw21 further states that the relationship between the rules of jus cogens and article 103 of the United
Nations Charter, which states that obligations under the Charter have precedence as against obligations
under other international agreements, was discussed by Judge Lauterpacht in his Separate Opinion in
the Bosnia case (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ. The author notes that
the judge noted in particular that ‘the relief which article 103 of the Charter may give the Security
Council in case of conflict between one of its decisions and an operative treaty obligation cannot as a
matter of simple hierarchy of norms extend to a conflict between a Security Council resolution and jus
cogens’.

3.0 THE CONCEPT OF SOFT LAW AND ITS INFLUENCE AS OPPOSED TO TREATY
RULES AND CUSTOM

Damrosch et al.22 while discussing soft law as a contestable category states that the global
administrative law includes some forms of law-making arising from non-legally binding instruments.
The author further states that when normative standards are embodied in an instrument other than a
binding treaty, they are sometimes referred to as ‘soft law’, a form of international law-making that is
designed, in whole or part, not to be enforceable. The author then says that soft law may entail some
legal effects, and may well elicit compliance even in the absence of direct mechanisms for enforcement.
In still another usage, soft law could refer to vague, weak, or hortatory terms of an international
instrument. Damrosch et al.23 states that “Some question the coherence or even the existence of the
category of ‘soft law.’ For the critics, there is either legal obligation or there is not; obligation cannot
or should not be a matter of degree.”

The above analysis shows that soft law principles cannot be as influential as treaty rules or custom.
There is therefore, an anomaly in the equivalent or higher ranking of soft law principles to treaty rules
or custom in terms of influence. It is doubtless to state that the influence is there but the influence to
surpass the treaties and custom is without question nonexistent. It is trite that some norms that where
initially formulated in non-binding form have progressively gained more authority through non

21
Supra note 10, P. 126-127.
22
Lori F. Damrosch, Louis Henkin, Sean D. Murphy, Hans Smit, ‘International Law: Cases and Materials’ (United States:
West Publishing Company, 2009) P. 285.
23
Lori F. Damrosch, Louis Henkin, Sean D. Murphy, Hans Smit, ‘International Law: Cases and Materials’ (United
States: West Publishing Company, 2009) P. 285.

6
coercive means. The UN general assembly resolutions contribute to the crystallization of legal norms
despite being formally non-binding.

Shelton24 while discussing the normative hierarchy in international law states that in the international
legal systems, the question of hierarchy of norms involves the fundamental nature and structure of
international law and the rules of recognition by which law is distinguished from norms that are not
legally binding.

This means that in terms of hierarchy, there is a thin line between the soft law principles and the hard
law principles. In this instance, the binding effect of either would advertently bring to arrival the
distinction in terms of which source of law would be relied upon. The reason is that the level of
influence exerted by soft law principles as non-legally binding principles is less that of hard law. In
other words, the nature and structure a particular source of law will have, depending on whether it is
built on soft law or hard law, will tell which source will prevail in terms of hierarchy. It is for this
reason that this essay subsists to the notion of having laws built on hard law being higher in hierarchy.

4.0 CONCLUSION

In conclusion, the position of this essay with regards to the extent to which the statement that ‘there is
no hierarchy of sources in international law and that the principles of soft law can thus be as influential
as treaty rules or custom is an accurate one using relevant evidence’ is as below.

This essay is of opinion that there is no rigid hierarchy of international law sources, however, a
hierarchy is present as all or most of the scholars cited in this essay have tried to show. The reason is
very simple, where there is no hierarchy, there is no order and it would cause great difficulty among
courts when handling disputes. It would render the whole process of treaty negotiations despite many
deliberations, less considered, it would also render general principles of law despite years of being
practiced and becoming accepted as customs less considered, it would also render the principles of hard
law, despite their binding effect less considered and last but not the least, it would entail all sources of
law being equal which is something not intended. The clear position would be rather to state that to a
smaller extent, that statement is true and to a larger extent false. Meaning in all endeavours, the
hierarchy of sources in international law remains.

24
Shelton Dinah,’ The American Journal of International Law: Normative Hierarchy in International Law’ United
States: Cambridge University Press, 2006) Vol. 100, No. 2. p. 291-323