"I doubt whether anybody is going to dissent from the proposition that there has never been a time when there has been so much confusion and doubt about the tests of the validity- or sources- of international law, then the present" is one of the most prevailing statements asserted by R. Jennings in 1981 [1] . Article 38(1) of the Statute of the International Court of Justice 'lists' the sources of International Law. Even though it is commonly regarded as a "complete statement of the sources of international law" [2] , after analysing it in detail there is far more depth to each and every so-called 'source' and thus, cannot be regarded simply as a list of the sources. Thus, Article 38(1) can be seen to refer to a number of sources which the International Court of Justice (ICJ) must apply when deciding cases which fall within its jurisdiction. The court must refer to international conventions, or rather treaties, both bilateral and multilateral; International Customary Law and general principles of International law. Additionally, judicial decisions of municipal Courts and the teachings and opinions of learned legal writers and jurists are mentioned as subsidiary means for identifying the law which is to be applied. According to Peter Malanczuk [3] , these sources, in practice, complement each other and are normally applied simultaneously. Still, in those circumstances where one or more of these sources are inconsistent, treaties prevail over customs and customs prevail over general principles and thus, courts are expected to observe the order in which they appear in such a case.
Hoff [4] holds that the judicial decisions and teachings where first named by Descamps in the 1920 Advisory Committee of Jurists. Descamps held that 'Doctrine and jurisprudence no doubt do not create law; but they assist in determining rules which exist'. Yet he does affirm that the judge is to consider them. Ricci-Busatti agreed with such view which is made clear when the two are referred to as 'subsidiary means'.
Schwarzenberger holds that the two sources appertain to the law-determining category [5] because these do not create law but state what the law in question is.
An article in the American Journal of International Law written by an eminent jurist
Juristic work [6] contributed in establishing the foundations of international law, by inferring principles from Natural law and Roman law. International Tribunals name authors such as Gentilis, Pufendorf, Grotius, Bynkershoek, Van Martens and Vattel to this day.
Ricci-Busatti and De Lapradelle think that such writings cannot be considered as a source of international law. The latter holds that if used they are to be 'limited to coinciding doctrines of qualified authors in the countries concerned in the case' [7] . Yet Phillimore holds that doctrine is a source of international law but only with regards to 'opinions of widely recognized authors' [8] .
Publicists principally infer laws from State practice, such inference being fundamental [9] . Then they conclude what the emerging customary rules are, thus affecting the process of transformation from general usage to that of custom. Consequently, when the amount of jurisprudence increases, the importance of authors will inevitably diminish. Yet, it is important to note that such authors are many a times the judges in the relevant courts.
The ICJ adopts the authors' views but refrains from naming in the judgments any subsidiary means used to determine the rules. These are only named in the separate judge's opinions and in pleadings.
Such works many times become a direct source of law.This happened in the Re Piracy Jure Gentium case where the Privy Council held that a thwarted effort of robbery without the actual robbery being carried out did in fact result in a piracy jure gentium at international law. [10]
Yet such views, will inevitably carry the publicist's personal beliefs and thus be subjective in nature [11] . 'For the greater part, they are also too abstract, too clear-cut or too much lacking in precision to correspond truly to the needs of international life" [12] . Still, the works of such writers, if accepted and not criticized, may indeed, 'emerge as a strong evidence of a rule over a period of time' [13] since these are 'trustworthy evidence of what the law really is. [14] '
g. A previous decision of the ICJ.
'The Court applies the law and does not make it' [15] . Article 38(1)(d) is subject to the provisions of article 59 [16] . The founders of the statute in their debate, hint clearly that article 59 was devised to do away with the possibility of adopting the principle of binding precedent [17] , as held in an ICJ judgment [18] . Yet Lauterpacht disagrees and holds that there is connection between article 59 and 63 [19] ; if 'a State which is not a party to the dispute, avails itself of the right of intervention the construction given in the Judgment shall be equally binding upon it' [20] . He also states that some believe that article 59 is referring to the 'actual "decisions" of the Court' [21] .
In reality, the court does its best to devise out a coherent group of decisions, even though in theory the court is constrained by applying the binding precedent [22] . In the Anglo Norwegian Fisheries [23] case the states agree to the straight base-line method as set out by the court. By accepting it the states end up being bound by it. Thus it is the state's consent which creates an obligation and not the Court's decisions. The same happened in the Reservations case [24] , where it was held that a State had a right to derogate from the rules laid down by a multilateral treaty, once it was in agreement with the treaty's objectives. In the Reparation case [25] , the Court affirmed that the UN's duties could only be carried out once the UN acquired a legal personality. In the latter case, the Court in defining treaties adopted the principle of effectiveness mentioned in an earlier advisory opinion [26] .
In the Aerial Incidents case [27] , the dispute arose because an Israeli aircraft entered into Bulgarian air space. The Israeli plane was shot down by a Bulgarian aircraft. Israel based its plea on examples of older PCIJ and ICJ decisions. In the 1950 Peace Treaties [28] case, the three states [29] argued that the Court was to follow the policy laid down in the Eastern Carelia case [30] of the PCIJ. The Court confirmed such policy, which held that States could only subject their discords to a juridical body by means of their own acceptance, but did not apply it because of the different circumstances.
Judge Azevedo in the Asylum case [31] held that decisions are of a 'quasi-legislative value'. Thus in spite of the rule created by means of article 59 and the Court's affirmation in the South-West Africa case [32] , where it stated that its job was 'to apply the law as it finds it, not to make it' and that it is therefore not a legislating body, the Court's decisions have in fact contributed to the formation of new rules of international law.
"The real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases" [33] . The ICJ, amongst other fixed international organs, is seen as the most authoritative institution in international law. Thus 'it is only natural that the Court is turned to for guidance even beyond areas of its competence strictly speaking [34] '. Therefore, the ICJ, even if it lacks the power to do so, naturally does partake in the process of legislating in the international arena. Though the ICJ's decisions are viewed as valid source of international law, legally, at least at the moment, these cannot be considered to be so.
The increase in the number of international tribunals and courts, what Malanczuk refers to as the "proliferation of international tribunals and courts" [35] , is likely to lead to conflicting decisions on international law and since there is no ultimate legal authority, such as a supreme court to harmonise such conflicts, this can only create confusion. As R.Y. Jennings puts it, the ICJ is not in such a position because it lacks any formal relations with other international courts and tribunals [36] .
Moreover, judgments of municipal courts are relevant to international law in two ways. Firstly, the decisions on issues of international law give a useful insight into the attitude of various countries towards a particular rule of international law and how it is applied and interpreted by municipal courts. The role of municipal decisions becomes more significant when authorities are few in number or evidence in favour of a particular rule is vague. Generally, decisions rendered by the United States Supreme Courts and of British courts on matters of international law have considerable weight. The decision of the United States Supreme Court in Schooner Exchange [37] established the rule of immunity of foreign public ships from the jurisdiction of the territorial state. Furthermore, in Paquette Habana [38] , the court presented the rule relating to the exclusion of fishing boats from the application of the laws of war, that is, they are released from being treated as "prize of the war" [39] . Secondly, these decisions of municipal courts become relevant to international law as is found in the materialization of new customary law. The uniformity of judicial decisions in a large number of countries is evidence of such a rule, which may lead to the formation of a new customary law. In the S.S. Lotus Case, the court, while rejecting the French contention [40] , referred to a number of municipal decisions and found inconsistent decisions on the matter. It can therefore be concluded that judicial decisions are important in influencing the State practice and in the determination of new rules.
Since its establishment, the International Law Commission has prepared and submitted a number of final reports, in some cases, together with draft texts, some of which were adopted as international conventions or other instruments. The more a draft or a report has been ratified the more it is relevant meaning that the judge should give it more importance than other draft articles. The International Law Commission presented a number of draft articles and texts on various topics including, Sources of International Law, Subjects of International Law, Succession on States, State Jurisdiction and Immunity from Jurisdiction, Law of International Organizations, Position of the Individual under International Law, International Criminal Law, Law of International Spaces, Law of International Relations, and, Settlement of Disputes.
With the draft Code of offences against the peace and security of mankind (Part I), under the topic of International Criminal Law, the Commission decided to limit the Code to offences containing a political element and endangering or disturbing the maintenance of international peace and security. Thus, it omitted such matters as piracy, traffic in dangerous drugs, traffic in women and children, slavery, counterfeiting of currency, and damage to submarine cables. The Commission also decided that it would deal only with the criminal responsibility of individuals and that no provisions should be included with respect to crimes by abstract entities. The Nuremberg Tribunal had stated in its judgment that: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." Thus, offences enumerated in the draft Code were characterized as "crimes under international law, for which the responsible individuals shall be punishable". [41]
State responsibility falls under the Law of International Relations. The most important of articles under this section are the Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001. In fact, in 1975, the Commission formulated a structure of the draft articles. The report is now divided into four parts, each part entailing various chapters and articles. The first part deals with The Internationally Wrongful Act of a State, the second part discusses the Content of the International Responsibility of a State, while the third part examines the Implementation of International Responsibility of a State and the fourth part covers the General Provisions.
Part 1, given the most importance, is intended to give guidance as to which grounds and under which circumstances a state may be considered to have committed an internationally wrongful act. Chapter I, entitled General Principles, defines some basic principles, such as that every internationally wrongful act entails responsibility on the part of the state committing it and that every international act consists of two elements, a subjective one and an objective one.
Chapter II, The 'Act of the State' under International Law, determines the conditions under which particular conduct is to be considered as an act of the state and also deals with the subjective element while Chapter III, Breach of an International Obligation, deals with the Objective element. Chapter IV, Implication of a State in the Internationally Wrongful Act of Another State, is devoted to situations in which a state takes part in the commission of a wrongful act by another state and to cases in which responsibility is to be borne by a state other than the state that has committed the act. Finally, Chapter V, Circumstances Precluding Wrongfulness, lists a number of circumstances, which may exceptionally result in preventing the wrongfulness of an act of a state that does not conform to an international obligation. These circumstances include the consent of the injured state; legitimate countermeasures against a wrongful act; force majeure and fortuitous event; distress; necessity; and self-defense. [42]
In this case, the Chief Justice of Ruretania is presented with a Treaty where only one of the parties to the dispute has ratified such Treaty. In International Law the maxim 'Pacta tertiis nec nocent nec prosunt' is applied to Treaty Law and it explains the relationship between third party States and treaties. Third States are those States which are not parties to a Treaty. The term 'Res inter alios acta' explains the role of third States vis-à-vis a Treaty, whereby a contract cannot affect the rights of someone who is not a party to the contract.
The Vienna Convention on the Law of Treaties (VCLT) [43] states in article 34 that "A treaty does not create either obligations or rights for a third State without its consent". This has been confirmed also in cases before the Permanent Court of International Justice, such as in the German Interests in Polish Upper Silesia Case [44] , whereby the Court stated that "A Treaty only creates law between the States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States". Hence, when looking at this article, one might conclude that if one of the parties to the disputes has not become a party to a Treaty, then such Treaty cannot be used as a source in regards to a dispute.
On the other hand, article 35 of the Vienna Convention lays down an exception, whereby obligations are provided in regards to third States. It states that "An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing". Here the Treaty is stating that it cannot oblige non-party States to perform obligations. Obligations can be imposed by a Treaty on a third State if such State accepts in writing. Authors have commented on this subject. In fact, Ian Brownlie [45] comments that article 35 provides two exceptions relating to obligations for third parties. The first exception that Brownlie formulates is that when a rule in a Treaty ends up forming part of international custom, such rule may become binding on States which are not parties to the Treaty. The Hague Convention, which relates to rules regarding land warfare, falls within this category. Treaties regulating international waterways may also fall within this category of exceptions as sometimes treaties might make provisions in regards to specified third states. Brownlie also refers to Kelsen's commentary on article 2 [46] paragraph 6 of the United Nations Charter [47] . Kelsen is of the opinion that non-members must abide to the duties, liabilities and sanctions created in the provisions of the Charter.
When relating to the rights conferred on third parties, the situation may be different. Shaw [48] illustrates what the Permanent Court of International Justice stated in the Free Zones [49] case. It concluded that it must be seen on a case-to-case basis if the existence of a right exists or not, and also it must be seen if the right which the third party state accepted was intended to be created as such by the States.
Resolutions of the United Nations General assembly are normally divided into two clearly defined sections: the preamble and the operative part. The preamble normally lists the considerations and determining factors which led to that particular resolution, and to why a particular action is taken, opinion expressed, or directive given; whilst the operative part gives details about the action taken or opinion expressed. [50]
International organizations have gained in importance mainly after the end of the First World War, and there has been a number of suggestions to the effect that acts of such international organizations, like the United Nations, should be considered as evidence of customary international law. However, the organs of international organizations are normally composed of people representing the member states of that particular international organization, and thus, a resolution of the UN General Assembly can be considered to be evidence of customary law, not because it is a UN Resolution, but because it has been voted for by a considerable number of states. [51] If the same act is passed in another international framework and is backed up by the same number of states, than that act is also considered to be a source of international law. What is of relevance thus, is the amount of states which back that act, rather than the fact that it is a resolution of the UN General Assembly.
Moreover, attention should be made to the content of a resolution. For example, if it states that X ought to be the law, that is obviously a recommendation, and not evidence of international law. On the other hand, if it states that X is the law, then that resolution could be considered to constitute evidence of international law, provided that a considerable number of states have voted for it.
A conclusion passed at an international organization meeting is never conclusive evidence of customary international law. Thus, to determine whether a resolution of the UN General Assembly is evidence of international law, it has to be analyzed in conjunction with the other materials presented by the parties to the case. If there is no corresponding state practice, a resolution is definitely not a source of international law.
Hence, a number of factors have to be taken into account when determining whether a particular resolution is evidence of international law, as stated by the ICJ in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. A number of resolutions dating back from 1961 affirmed the illegality of nuclear weapons, and the court had to decide upon whether these resolutions were sources of law, and thus nuclear weapons as a result would be illegal. In its decision it stated that "it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule." It still concluded, though resolutions which affirmed the illegality of the use of nuclear weapons existed, an opinio juris to this effect was still not established, since the majority of states did not vote for these resolutions, highlighting the weakness of resolutions and the superiority of state practice and opinio juris as evidence of international law.
In conclusion, according to Ian Brownlie, [52] resolutions provide a basis for the progress of International Law and codification of Customary Law. Examples of Law-making resolutions are The Declaration of Legal Principles governing activities of States in the exploration and use of outer space, The Resolution on Prohibition of the use of nuclear weapons for war purposes.
Although there is no concrete legislation laying down the sources of international law, custom is readily recognized today as a source of this branch of the law. Customary law is held to encompass the way in which states and sovereignties behave, particularly when dealing with one another. Rules are prescribed stating what is allowed and what should not be permitted. No codification of customary law exists, and so custom is taken to be an aura of legal practice, communicating the values and beliefs of the communities involved.
The foreign minister is the state's representative when dealing with other sovereignties, and so it is expected that he plays some part in the behaviour of a state towards an alien body. Indeed, the actions of foreign ministers have an impact on the international law stage, and this can be seen through various court judgements and juridical opinions.
A person holding the position of a foreign minister enjoys immunity rationepersonae1. This can be seen in the case where Belgium issued an arrest warrant for the then incumbent foreign minister Mr. Abdulaye Yerodia (Democratic Republic of the Congo v Belgium April 20002). However this immunity applies only to serving foreign ministers, and they relinquish this benefit after leaving office.
Various authors, such as Malcolm N. Shaw, hold that the foreign minister is an active participant in international affairs, and since he is a significant player in world games, his practices have an influence on the norms between states3.
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1 Convention on the Prevention and Punishment of Crimes against Int. Protected Persons (1977).
2 "The Court accordingly concludes that the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties."
3Malcolm N. Shaw - International Law (5th Edition, Cambridge University Press).
In the case of Qatar vs Bahrain, there was an issue regarding the controverted nature of the minutes of a meeting signed by the foreign ministers of both states (known as the Doha Minutes). The International Court of Justice held that these Minutes, despite their status and nature, constituted an agreement under International Law.
While it holds true that the foreign minister has a bearing on international law at a customary level, actions and statements of the foreign ministry only influence what is accepted as customary law, without being of a binding nature themselves. The practices of a foreign minister serve as evidence of a state's behaviour, what it says and what it does.
In conclusion, George should realise that it is important to take all materials into consideration, although they may have various levels of importance. It is also advisable for him to be prudent and to handle the situation on a case by case basis. Nowadays the trend is that customary law is being codified into treaties and therefore treaties are gradually becoming the most important source of international law. The UN General Assembly Resolution is not a source itself but it is has to be taken in consideration with the other materials at his disposal. A statement by the foreign minister of one of the parties as such is not to be considered as a source in itself, but rather it serves as evidence of the established state practice. Although not draft articles prepared by the International Law Commission are not a primary source are to be given their due weight since a judge can refer to them in his decisions. Moreover, judicial decisions and articles of eminent jurists are subsidiary means which George should take into consideration because as already stated, many a times they are of great value.
