Restatement of the Law, Third, Foreign Relations Law of the United States

Copyright (c) 1987, The American Law Institute

Case Citations
Rules an !rinciples
!art 1 " International Law an Its Relation to #nite $tates Law
Chapter 1 - International Law: Character and Sources
Restat % o& the 'oreign Relations Law o& the #($(, ) 1*1
) 1*1 International Law +e&ine
International law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of
international organiations and with their relations inter se, as well as with some of their relations with persons, whether natural or !uridical"
C,--./T$ 0 ILL#$TRATI,/$1 Comment:
a. International law and remedies: cross-references( The character an general content o& international law are iscusse in the Introuctory /ote to this
chapter( The sources o& international law are set &orth in ) 1*2( The remeies &or 3iolation o& international law are ealt with in !art I4(
b. "State" and "international organization": cross-references( 5$tate5 is e&ine in ) 2*1, 5international organi6ation5 in ) 221(
c. Private international law (or conflict of laws)( International law, which in most other countries is re&erre to as 5pu7lic international law,5 is o&ten
istinguishe &rom pri3ate international law (calle con&lict o& laws in the #nite $tates)( !ri3ate international law has 7een e&ine as law irecte to
resol3ing contro3ersies 7etween pri3ate persons, natural as well as 8uriical, primarily in omestic litigation, arising out o& situations ha3ing a signi&icant
relationship to more than one state( $ee Restatement, $econ, Con&lict o& Laws ) 2(
In some circumstances, issues o& pri3ate international law may also implicate issues o& pu7lic international law, an many matters o& pri3ate international
law ha3e su7stantial international signi&icance an there&ore may 7e consiere &oreign relations law, ) 1( In recent years, pri3ate international law has 7een
coorinate an harmoni6e among states, an many o& its rules are the su78ect o& international agreements( The concepts, octrines, an consierations that
in&orm pri3ate international law also guie the e3elopment o& some areas o& pu7lic international law, nota7ly the principles limiting the 8urisiction o& states to
prescri7e, a8uicate an en&orce law( $ee Introuctory /ote to !art I9, Chapter 1, an ) ) :*2":*%, :21, an :%1( Increasingly, pu7lic international law
impinges on pri3ate international acti3ity, &or e;ample, the law o& 8urisiction an 8ugments (!art I9) an the law protecting persons (!art 9II)(
To the e;tent that con&lict o& laws in the #nite $tates re&ers to laws o& two or more $tates o& the #nite $tates, or con&licts 7etween &eeral an $tate law,
it is, e;cept as otherwise note, 7eyon the scope o& this Restatement(
d. General international law and particular agreements between states( #nless otherwise inicate, 5international law5 as use in this Restatement is
law that applies to states an international (intergo3ernmental) organi6ations generally( It inclues law containe in wiely accepte multilateral agreements(
#nerta<ings o& a particular state or international organi6ation uner a particular international agreement "" &or e;ample, the o7ligation o& a state uner a
7ilateral ta; treaty with another state "" are 7ining uner international law, 7ut the su7stanti3e content o& such unerta<ings is not international law applica7le
generally (unless there is a wie networ< o& similar 7ilateral arrangements that results in general international law= see ) 1*2, Comment f)(
e. Comit distinguis!ed( Comity has 7een 3ariously concei3e an e&ine( A well"<nown e&inition is1 5Comity, in the legal sense, is neither a matter
o& a7solute o7ligation, on the one han, nor o& mere courtesy an goo will, upon the other( >ut it is the recognition which one nation allows within its
territory to the legislati3e, e;ecuti3e or 8uicial acts o& another nation, ha3ing ue regar 7oth to international uty an con3enience an to the rights o& its own
citi6ens or o& other persons who are uner the protection o& its laws(5 ?ilton 3( @uyot, 1A9 #($( 11%, 1B%"B:, 1B $(Ct( 1%9, 1:%, :* L(.( 9A (189A)( $ee also )
:*%, Comment a(
R.!,RT.R$ /,T.$1 1( Previous "estatement( The pre3ious Restatement e&ine international law in ) 1 an ela7orate upon that e&inition in comments
to that section( This section inicates the scope o& international law= the character an 8urispruence o& international law are ealt with in the Introuctory /ote
to this chapter, an the sources an e3ience o& international law in ) ) 1*2"1*%(
$ection 1 o& the pre3ious Restatement e&ine international law as &ollows1
5International Law,5 as use in the Restatement o& this $u78ect, means those rules o& law applica7le to a state or international organi6ation that cannot 7e
moi&ie unilaterally 7y it(

As compare with that e&inition, this section inicates that international law has cease to apply e;clusi3ely to states an international organi6ations an now
eals also with their relations with ini3iuals an 8uriical persons( The re&erence in the pre3ious RestatementCs e&inition to the &act that international law
cannot 7e change unilaterally 7y a state is allue to in the Introuctory /ote to this chapter(
$ection % o& the pre3ious Restatement, 5.&&ect o& 9iolation o& International Law,5 is the su78ect o& !art I4 o& this Restatement, Remeies( +e&initions o&
5state5 an 5international organi6ation5 containe in ) ) : an A o& the pre3ious Restatement are inclue here in ) ) 2*1 an 221(
CR,$$ R.'.R./C.$1 +igest $ystem Dey /um7ers1
1
Restatement of the Law, Third, Foreign Relations Law of the United States
Copyright (c) 1987, The American Law Institute
Case Citations
Rules an !rinciples
!art 1 " International Law an Its Relation to #nite $tates Law
Chapter 1 - International Law: Character and Sources
Restat % o& the 'oreign Relations Law o& the #($(, ) 1*2
) 1*2 $ources o& International Law
#1$ % rule of international law is one that has &een accepted as such &' the international communit' of states
#a$ in the form of customar' law(
#&$ &' international agreement( or
#c$ &' deri)ation from general principles common to the ma!or legal s'stems of the world"

#*$ Customar' international law results from a general and consistent practice of states followed &' them from a sense of legal o&ligation"
#+$ International agreements create law for the states parties thereto and ma' lead to the creation of customar' international law when such agreements
are intended for adherence &' states generall' and are in fact widel' accepted"
#,$ -eneral principles common to the ma!or legal s'stems, e)en if not incorporated or reflected in customar' law or international agreement, ma' &e
in)o.ed as supplementar' rules of international law where appropriate"
C,--./T$ 0 ILL#$TRATI,/$1 Comment:
a. Sources and evidence of international law distinguis!ed( This section inicates the ways in which rules or principles 7ecome international law( The means &or
pro3ing that a rule or principle has in &act 7ecome international law in one o& the ways inicate in this section is ealt with in ) 1*%(
b. Practice as customar law( 5!ractice o& states,5 $u7section (2), inclues iplomatic acts an instructions as well as pu7lic measures an other go3ernmental acts
an o&&icial statements o& policy, whether they are unilateral or unerta<en in cooperation with other states, &or e;ample in organi6ations such as the ,rgani6ation &or
.conomic Cooperation an +e3elopment (,.C+)( Inaction may constitute state practice, as when a state acEuiesces in acts o& another state that a&&ect its legal rights(
The practice necessary to create customary law may 7e o& comparati3ely short uration, 7ut uner $u7section (2) it must 7e 5general an consistent(5 A practice can 7e
general e3en i& it is not uni3ersally &ollowe= there is no precise &ormula to inicate how wiesprea a practice must 7e, 7ut it shoul re&lect wie acceptance among the
states particularly in3ol3e in the rele3ant acti3ity( 'ailure o& a signi&icant num7er o& important states to aopt a practice can pre3ent a principle &rom 7ecoming general
customary law though it might 7ecome 5particular customary law5 &or the participating states( $ee Comment e( A principle o& customary law is not 7ining on a state
that eclares its issent &rom the principle uring its e3elopment( $ee Comment d(
c. #pinio $uris( 'or a practice o& states to 7ecome a rule o& customary international law it must appear that the states &ollow the practice &rom a sense o& legal
o7ligation (opinio $uris sive necessitatis)= a practice that is generally &ollowe 7ut which states &eel legally &ree to isregar oes not contri7ute to customary law( A
practice initially &ollowe 7y states as a matter o& courtesy or ha7it may 7ecome law when states generally come to 7elie3e that they are uner a legal o7ligation to
comply with it( It is o&ten i&&icult to etermine when that trans&ormation into law has ta<en place( .;plicit e3ience o& a sense o& legal o7ligation ( e.g., 7y o&&icial
statements) is not necessary= opinio $uris may 7e in&erre &rom acts or omissions(
d. %issenting views and new states( Although customary law may 7e 7uilt 7y the acEuiescence as well as 7y the actions o& states (Comment b) an 7ecome
generally 7ining on all states, in principle a state that inicates its issent &rom a practice while the law is still in the process o& e3elopment is not 7oun 7y that rule
e3en a&ter it matures( ?istorically, such issent an conseEuent e;emption &rom a principle that 7ecame general customary law has 7een rare( $ee ReportersC /ote 2( As
to the possi7ility o& issent &rom peremptory norms ($us cogens), see Comment &( A state that enters the international system a&ter a practice has ripene into a rule o&
international law is 7oun 7y that rule(
e. General and special custom( The practice o& states in a regional or other special grouping may create 5regional,5 5special,5 or 5particular5 customary law &or
those states inter se( It must 7e shown that the state allege to 7e 7oun has accepte or acEuiesce in the custom as a matter o& legal o7ligation, 5not merely &or reasons
o& political e;peiency(5 Asylum Case (Colom7ia 3( !eru), F19A*G I(C(H( Rep( 2BB, 277( $uch special customary law may 7e seen as essentially the result o& tacit
agreement among the parties(
f. International agreement as source of law( An international agreement creates o7ligations 7ining 7etween the parties uner international law( $ee ) %21(
,rinarily, an agreement 7etween states is a source o& law only in the sense that a pri3ate contract may 7e sai to ma<e law &or the parties uner the omestic law o&
contracts( -ultilateral agreements open to all states, howe3er, are increasingly use &or general legislation, whether to ma<e new law, as in human rights (Introuction to
!art 9II), or &or coi&ying an e3eloping customary law, as in the 9ienna Con3ention on the Law o& Treaties( 'or the law o& international agreements, see !art III(
5International agreement5 is e&ine in ) %*1(1)( International agreements may contri7ute to customary law( $ee Comment i(
g. 'inding resolutions of international organizations( $ome international agreements that are constitutions or charters o& international organi6ations con&er power
on those organi6ations to impose 7ining o7ligations on their mem7ers 7y resolution, usually 7y Euali&ie ma8orities( $uch o7ligations eri3e their authority &rom the
international agreement constituting the organi6ation, an resolutions so aopte7y the organi6ation can 7e seen as 5seconary sources5 o& international law &or its
mem7ers( 'or e;ample, the International -onetary 'un may prescri7e rules concerning maintenance or change o& e;change rates or epreciation o& currencies( $ee )
821( The International Ci3il A3iation ,rgani6ation may set 7ining stanars &or na3igation or Euali&ications &or &light crews in a3iation o3er the high seas(
2
'or resolutions o& international organi6ations that are not 7ining 7ut purport to state the international law on a particular su78ect, see ) 1*%, Comment c(
!. (!e )nited *ations C!arter( The Charter o& the #nite /ations has 7een ahere to 7y 3irtually all states( .3en the &ew remaining non"mem7er states ha3e
acEuiesce in the principles it esta7lishe( The Charter pro3isions prohi7iting the use o& &orce ha3e 7ecome rules o& international law 7ining on all states( Compare
Article 2(B)( $ee ) 9*A, Comment g(
Article 1*% o& the Charter pro3ies1
In the e3ent o& a con&lict 7etween the o7ligations o& the -em7ers o& the #nite /ations uner the present Charter an their o7ligations uner any other international
agreement, their o7ligations uner the present Charter shall pre3ail(

-em7ers seem to ha3e rea this article as 7arring them &rom ma<ing agreements inconsistent with the Charter, an ha3e re&raine &rom ma<ing such agreements( $ee,
e.g., Article 7 o& the /orth Atlantic Treaty, 19:9, B% $tat( 22:1, T(I(A($( /o( 19B:, %: #(/(T($( 2:%= Article 1*2 o& the Charter o& the ,rgani6ation o& American $tates,
19:8, 2 #($(T( 2%9:, T(I(A($( /o( 2%B1, 119 #(/( T($( %( An see Comment &(
i. International agreements codifing or contributing to customar law( International agreements constitute practice o& states an as such can contri7ute to the
growth o& customary law uner $u7section (2)( $ee /orth $ea Continental $hel& Cases ('eeral Repu7lic o& @ermany 3( +enmar< 0 /etherlans), F19B9G I(C(H( Rep( %,
28"29, %7":%( $ome multilateral agreements may come to 7e law &or non"parties that o not acti3ely issent( That may 7e the e&&ect where a multilateral agreement is
esigne &or aherence 7y states generally, is wiely accepte, an is not re8ecte 7y a signi&icant num7er o& important states( A wie networ< o& similar 7ilateral
arrangements on a su78ect may constitute practice an also result in customary law( I& an international agreement is eclaratory o&, or contri7utes to, customary law, its
termination 7y the parties oes not o& itsel& a&&ect the continuing &orce o& those rules as international law( ?owe3er, the wiesprea repuiation o& the o7ligations o& an
international agreement may 7e seen as state practice a3erse to the continuing &orce o& the o7ligations( $ee Comment $(
$. Conflict between international agreement and customar law( Customary law an law mae 7y international agreement ha3e eEual authority as international
law( #nless the parties e3ince a contrary intention, a rule esta7lishe 7y agreement supersees &or them a prior inconsistent rule o& customary international law(
?owe3er, an agreement will not supersee a prior rule o& customary law that is a peremptory norm o& international law= an an agreement will not supersee customary
law i& the agreement is in3ali 7ecause it 3iolates such a peremptory norm( $ee Comment &( A new rule o& customary law will supersee inconsistent o7ligations create
7y earlier agreement i& the parties so inten an the intention is clearly mani&este( Thus, the #nite $tates an many other states party to the 19A8 Law o& the $ea
Con3entions accept that some o& the pro3isions o& those con3entions ha3e 7een supersee 7y super3ening customary law( $ee Introuctory /ote to !art 9(
&. Peremptor norms of international law (8us cogens)( $ome rules o& international law are recogni6e 7y the international community o& states as peremptory,
permitting no erogation( These rules pre3ail o3er an in3aliate international agreements an other rules o& international law in con&lict with them( $uch a peremptory
norm is su78ect to moi&ication only 7y a su7seEuent norm o& international law ha3ing the same character( It is generally accepte that the principles o& the #nite
/ations Charter prohi7iting the use o& &orce (Comment !) ha3e the character o& $us cogens( $ee ) %%1(2) an Comment e to that section(
l. General principles as secondar source of law( -uch o& international law, whether customary or constitute 7y agreement, re&lects principles analogous to those
&oun in the ma8or legal systems o& the worl, an historically may eri3e &rom them or &rom a more remote common origin( $ee Introuctory /ote to Chapter 1 o& this
!art an ReportersC /ote 1 to this section( @eneral principles common to systems o& national law may 7e resorte to as an inepenent source o& law( That source o& law
may 7e important when there has not 7een practice 7y states su&&icient to gi3e the particular principle status as customary law an the principle has not 7een legislate 7y
general international agreement(
@eneral principles are a seconary source o& international law, resorte to &or e3eloping international law interstitially in special circumstances( 'or e;ample, the
passage o& time as a e&ense to an international claim 7y a state on 7ehal& o& a national may not ha3e ha su&&icient application in practice to 7e accepte as a rule o&
customary law( /onetheless, it may 7e in3o<e as a rule o& international law, at least in claims 7ase on in8ury to persons (!art 9II), 7ecause it is a general principle
common to the ma8or legal systems o& the worl an is not inappropriate &or international claims( ,ther rules that ha3e 7een rawn &rom general principles inclue rules
relating to the aministration o& 8ustice, such as the rule that no one may 7e 8uge in his own cause= res $udicata= an rules o& &air proceure generally( @eneral principles
may also pro3ie 5rules o& reason5 o& a general character, such as acEuiescence an estoppel, the principle that rights must not 7e a7use, an the o7ligation to repair a
wrong( International practice may sometimes con3ert such a principle into a rule o& customary law(
m. +,uit as general principle( Re&erence to principles o& eEuity, in the sense o& what is &air an 8ust, is common to ma8or legal systems, an eEuity has 7een
accepte as a principle o& international law in se3eral conte;ts( $ee, e.g., the elimitation o& coastal state 6ones, ) A17( That principle is not to 7e con&use with
re&erences to 5eEuity,5 an istinctions 7etween law an eEuity as separate 7oies o& law, in traitional Anglo"American 8urispruence( Re&erence to eEuity as a principle
incorporate into international law is also to 7e istinguishe &rom the power, con&erre on the International Court o& Hustice in Article %8(2) o& the $tatute (an on other
tri7unals in numerous ar7itration agreements), to ecie cases e- ae,uo et bono i& the parties agree thereto, which permits the Court to settle a case without 7eing
con&ine to principles o& law( $ee ) 9*%, ReportersC /ote 9(
R.!,RT.R$ /,T.$1 1( Statute of International Court of .ustice and sources of law( This section raws on Article %8(1) o& the $tatute o& the International Court o&
Hustice, a pro3ision commonly treate as an authoritati3e statement o& the 5sources5 o& international law( Article %8(1) pro3ies1
The Court, whose &unction is to ecie in accorance with international law such isputes as are su7mitte to it, shall apply1
(a) international con3entions, whether general or particular, esta7lishing rules e;pressly recogni6e 7y the contesting states=
(7) international custom, as e3ience o& a general practice accepte as law=
(c) the general principles o& law recogni6e 7y ci3ili6e nations=
() ( ( ( 8uicial ecisions an the teachings o& the most highly Euali&ie pu7licists o& the 3arious nations, as su7siiary means &or the etermination o& rules o& law(

The $tatute o& the International Court o& Hustice oes not use the term 5sources,5 7ut this Restatement &ollows common usage in characteri6ing customary law,
international agreements, an general principles o& law as 5sources5 o& international law, in the sense that they are the ways in which rules 7ecome, or 7ecome accepte
as, international law( International lawyers sometimes also escri7e as 5sources5 the 58uicial ecisions an the teachings o& the most highly Euali&ie pu7licists o& the
3arious nations,5 mentione in Article %8(1) () o& the $tatute o& the Court, supra( Those, howe3er, are not sources in the same sense since they are not ways in which
law is mae or accepte, 7ut opinion"e3ience as to whether some rule has in &act 7ecome or 7een accepte as international law( $ee ) 1*%(
2( Customar law( /o e&inition o& customary law has recei3e uni3ersal agreement, 7ut the essence o& $u7section (2) has wie acceptance( $ee generally !arry,
The $ources an .3iences o& International Law (19BA)( .ach element in attempte e&initions has raise i&&iculties( There ha3e 7een philosophical e7ates a7out the
3ery 7asis o& the e&inition1 how can practice 7uil lawI -ost trou7lesome conceptually has 7een the circularity in the suggestion that law is 7uilt 7y practice 7ase on a
sense o& legal o7ligation1 how, it is as<e, can there 7e a sense o& legal o7ligation 7e&ore the law &rom which the legal o7ligation eri3es has matureI $uch conceptual
i&&iculties, howe3er, ha3e not pre3ente acceptance o& customary law essentially as here e&ine( !erhaps the sense o& legal o7ligation came originally &rom principles
%
o& natural law or common morality, o&ten alreay re&lecte in principles o& law common to national legal systems (see Comment l)= practice 7uilt on that sense o&
o7ligation then mature into customary law( Compare Article %8(1) (7) o& the $tatute o& the International Court o& Hustice (ReportersC /ote 1), which re&ers to
5international custom, as e3ience o& a general practice accepte as law(5 !erhaps the e&inition re&lects a later stage in the history o& international law when go3ernments
&oun practice an sense o& o7ligation alreay in e3ience, an accepte them without inEuiring as to the original 7asis o& that sense o& legal o7ligation(
.arlier e&initions implie that esta7lishment o& custom reEuire that the practice o& states continue o3er an e;tene perio o& time( That reEuirement 7egan to
lose its &orce a&ter the $econ Jorl Jar, perhaps 7ecause impro3e communication mae the practice o& states wiely an Euic<ly <nown, at least where there is 7roa
acceptance an no or little o78ection( In /orth $ea Continental $hel& Cases, the International Court o& Hustice agree that 5the passage o& only a short perio o& time is
not necessarily, or o& itsel&, a 7ar to the &ormation o& a new rule o& customary international law(5 F19B9G I(C(H( Rep( %, ::( The octrine o& the continental shel&, ) A1A, is
sometimes cite as an e;ample o& 5instant customary law(5 The Truman !roclamation o& 19:A was not challenge 7y go3ernments an was &ollowe 7y similar claims 7y
other states( The International Law Commission, engage in coi&ying an e3eloping the law o& the sea uring the years 19A*"AB, a3oie a clear position as to whether
the continental shel& pro3isions in its ra&t con3ention were coi&ying customary law or proposing a new e3elopment( The pro3isions were inclue in the 19A8
Con3ention on the Continental $hel&( It was soon assume that the octrine they re&lecte was part o& international law e3en &or states that i not ahere to the
Con3ention( $ee the opinion o& the International Court o& Hustice in /orth $ea Continental $hel& Cases, supra, at :%( The octrine o& the continental shel& 7ecame
accepte as customary law on the 7asis o& assertions o& e;clusi3e 8urisiction 7y coastal states an general acEuiescence 7y other states, although &or some years actual
mining on the continental shel& (outsie a stateCs territorial sea) was not technologically &easi7le( The 5practice5 may 7e sai to ha3e consiste o& acts 7y go3ernments
claiming e;clusi3e rights an enying access to others(
The practice o& states that 7uils customary law ta<es many &orms an inclues what states o in or through international organi6ations( Comment b( The #nite
/ations @eneral Assem7ly in particular has aopte resolutions, eclarations, an other statements o& principles that in some circumstances contri7ute to the process o&
ma<ing customary law, inso&ar as statements an 3otes o& go3ernments are <ins o& state practice, Comment b, an may 7e e;pressions o& opinio $uris, Comment c( The
contri7utions o& such resolutions an o& the statements an 3otes supporting them to the lawma<ing process will i&&er wiely, epening on &actors such as the su78ect o&
the resolution, whether it purports to re&lect legal principles, how large a ma8ority it commans an how numerous an important are the issenting states, whether it is
wiely supporte (incluing in particular the states principally a&&ecte), an whether it is later con&irme 7y other practice( 5+eclarations o& principles5 may ha3e
greater signi&icance than orinary resolutions( A memoranum o& the ,&&ice o& Legal A&&airs o& the #nite /ations $ecretariat suggests that1
in 3iew o& the greater solemnity an signi&icance o& a 5eclaration,5 it may 7e consiere to impart, on 7ehal& o& the organ aopting it, a strong e;pectation that -em7ers
o& the international community will a7ie 7y it( ConseEuently, inso&ar as the e;pectation is graually 8usti&ie 7y $tate practice, a eclaration may 7y custom 7ecome
recogni6e as laying own rules 7ining upon $tates(

F.KC/(:KL( B1*, Euote in %: #(/( .$C,R, $upp( /o( 8, p( 1A, #(/( +oc( .K%B1BKRe3( 1 (19B2)G( The ,uter $pace +eclaration, &or e;ample, might ha3e 7ecome law
e3en i& a &ormal treaty ha not &ollowe, since it was appro3e 7y all, incluing the principal 5space powers(5 $ee +eclaration o& Legal !rinciples @o3erning the
Acti3ities o& $tates in the .;ploration an #ses o& ,uter $pace, @(A( Res( 19B2, 18 #(/( @A,R, $upp( /o( 1A, at 1A( A spo<esman &or the #nite $tates state that his
@o3ernment consiere that the +eclaration 5re&lecte international law as accepte 7y the mem7ers o& the #nite /ations,5 an 7oth the #nite $tates an the #($($(R(
inicate that they intene to a7ie 7y the +eclaration( $ee 18 #(/( @A,R, 1st Committee, 1%:2 meeting, 2 +ec( 19B%, pp( 1A9, 1B1(
'or the e&&ect o& @eneral Assem7ly resolutions on the e3elopment o& the principle o& sel&"etermination, see Jestern $ahara (a3isory opinion), F197AG I(C(H( Rep(
:, %1( The contri7ution o& a resolution o& a multilateral con&erence (on the law o& the sea) to customary law is cite in 'isheries Hurisiction Case (#nite Dingom 3(
Icelan), F197:G I(C(H( Rep( %, 2:"2B, %2( 'or the e3ientiary signi&icance o& resolutions purporting to state international law, see ) 1*%, Comment c(
Resolutions that may contri7ute to customary law are to 7e istinguishe &rom resolutions that are legally 7ining on mem7ers, Comment g an ReportersC /ote %(
The latter, too, may re&lect state practice or opinio $uris, 7ut they eri3e their authority &rom the charter o& the organi6ation, an international agreement in which states
parties agree to 7e 7oun 7y some o& its acts(
International con&erences, especially those engage in coi&ying customary law, pro3ie occasions &or e;pressions 7y states as to the law on particular Euestions(
@eneral consensus as to the law at such a con&erence con&irms customary law or contri7utes to its creation( $ee, e.g., as to the law o& the sea, Introuctory /ote to !art 9(
The e3elopment o& customary law has 7een escri7e as part o& a 5process o& continuous interaction, o& continuous eman an response,5 among ecision"
ma<ers o& i&&erent states( These 5create e;pectations that e&&ecti3e power will 7e restraine an e;ercise in certain uni&ormities o& pattern( ( ( ( The reciprocal
tolerances ( ( ( create the e;pectations o& patterns an uni&ormity in ecision, o& practice in accor with rule, commonly regare as law(5 -c+ougal, 5The ?yrogen
>om7 Tests an the International Law o& the $ea,5 /0 1m... Int2l 3. 456-57 (80559.
That a rule o& customary law is not 7ining on any state inicating its issent uring the e3elopment o& the rule (Comment d) is an accepte application o& the
traitional principle that international law essentially epens on the consent o& states( $ee Introuction to !art I, Chapter 1( Re&usal o& states to aopt or acEuiesce in a
practice has o&ten pre3ente its e3elopment into a principle o& customary law, 7ut instances o& issent an e;emption &rom practice that e3elope into principles o&
general customary law ha3e 7een &ew( $canina3ian states success&ully maintaine a &our"mile territorial sea although a three"mile 6one was generally accepte, an
/orway success&ully maintaine a i&&erent system o& elimitation o& its territorial 6one( $ee 'isheries Case (#nite Dingom 3( /orway), F19A1G I(C(H( Rep( 11B(
An entity that achie3es statehoo 7ecomes su78ect to international law () 2*B), nota7ly customary law as it ha e3elope( A&ter the $econ Jorl Jar, many new
states came into e;istence within a 7rie& perio( Their spo<esmen rhetorically as<e why they shoul 7e 7oun 7y pree;isting law create 7y .uropean, Christian,
imperialistic powers( In &act, howe3er, the 7asic principles o& customary law were accepte, with new states 8oining in the process o& law"ma<ing, an see<ing esire
changes in the law through accepte proceures, nota7ly 7y international agreements coi&ying, e3eloping, an sometimes moi&ying the law(
%( 'inding resolutions of international organizations( Comment g re&ers to prescripti3e ecisions, such as those o& the International -onetary 'un, or 7ining
resolutions such as those o& the $ecurity Council pursuant to Chapter 9II o& the #nite /ations Charter, which ha3e the e&&ect o& law &or mem7ers o& the organi6ation(
The #nite $tates has recogni6e the 7ining character o& such resolutions, &or e;ample, the resolution imposing an em7argo on proucts o& $outhern Rhoesia( $ee ::
).S.C. ; :76c. -any other organs o& international organi6ations ha3e limite authority to impose some 7ining o7ligations, &or e;ample to etermine the 7uget an the
5ues5 o& each mem7er( $ee, &or e;ample, the authority o& the #nite /ations @eneral Assem7ly uner Article 17 o& the Charter( A num7er o& international organi6ations
ha3e authority to recommen rules 7ut states are not compelle to aopt them(
:( Conflict between customar law and international agreement( A su7seEuent agreement will pre3ail o3er prior custom, e;cept where the principle o& customary
law has the character o& $us cogens, 7ut an agreement is orinarily presume to supplement rather than to replace a customary rule( !ro3isions in international
agreements are supersee 7y principles o& customary law that e3elop su7seEuently, where the parties to the agreement so inten, in which case the earlier pro3ision in
the agreement is eeme to ha3e e;pire 7y mutual agreement or 7y esuetue( I& an international agreement pro3ies &or enunciation, it will orinarily 7e assume
that the agreement was not intene to 7e replace 7y su7seEuent custom unless the parties enounce the earlier agreement( $ee A<ehurst, 5The ?ierarchy o& the $ources
o& International Law,5 /6 'rit.<.'.Int2l 3. :64 (197:"7A)( -oi&ication o& customary law 7y agreement is not uncommon, sometimes through 7ilateral agreements,
nota7ly in the 3arious multilateral coi&ications o& recent ecaes, such as the 9ienna Con3ention on the Law o& Treaties (see this Restatement, !art III), the con3entions
on iplomatic an consular immunities (!art I9, ) ) :B:"7*), an the con3entions on the law o& the sea (!art 9)( There ha3e 7een &ew instances o& rules o& customary
law e3eloping in con&lict with earlier agreements, 7ut that may happen more &reEuently as state practice respons to wiesprea political emans, &or e;ample, when
states aopte 2**"mile e;clusi3e resource 6ones in the sea, in e&&ect superseing the 19A8 Law o& the $ea Con3entions( $ee ) A1:( Compare Ar7itration 7etween the
#nite Dingom an 'rance on the +elimitation o& the Continental $hel& (+ecision o& Hune %*, 1977), 18 IntCl Leg(-at( %97 (1979), 18 R( IntCl Ar7( Awars % (198%)(
:
A( 1greements codifing customar law( An international agreement may eclare that it merely coi&ies pree;isting rules o& customary international law( $uch a
eclaration is e3ience to that e&&ect 7ut is not conclusi3e on parties to the agreement( The recent 5coi&ication treaties5 aopte uner #nite /ations auspices eclare
that their aim is 7oth coi&ication an progressi3e e3elopment, thus lea3ing open whether a particular pro3ision is eclaratory o& ol law or a &ormulation o& new law(
$ee, &or e;ample, the 9ienna Con3ention on the Law o& Treaties, Introuctory /ote to !art III( .3en such a eclaration is e3ience that the agreement re&lects e;isting
law in some respects, an as to these the eclaration may itsel& 7e 3iewe as a &orm o& state practice con&irming the customary international law( ,& course, states may
isagree as to whether the agreement as a whole or a particular pro3ision re&lects e;isting law( $ee generally >a;ter, 5Treaties an Custom,5 129 Recueil es Cours 2A
(197*)(
International agreements that o not purport to coi&y customary international law may in &act o so( International agreements may also help create customary law
o& general applica7ility( Comment i( In /orth $ea Continental $hel& Cases, ReportersC /ote 2, at %7, the Court hel that the Con3ention on the Continental $hel& coi&ie
the octrine o& the continental shel& as well as its 7asic principles, 7ut not pro3isions as to which reser3ations were permitte( The Court suggeste that a treaty rule
might 7ecome 5a general rule o& international law5 i& there were 5a 3ery wiesprea an representati3e participation in the con3ention ( ( ( pro3ie it inclues that o&
$tates whose interests were particularly a&&ecte(5 Id. at :2( Article %8 o& the 9ienna Con3ention on the Law o& Treaties eclares1 5/othing in Articles %: to %7 preclues
a rule set &orth in a treaty &rom 7ecoming 7ining upon a thir state as a customary rule o& international law, recogni6e as such(5 $ee ) %2:, Comment e(
B( Peremptor norms (8uscogens)( The concept o& $us cogens is o& relati3ely recent origin( $ee $chwel7, 5$ome Aspects o& International .us Cogens as 'ormulate
7y the International Law Commission,5 =8 1m...Int2l 3. 0/= (80=69. It is now wiely accepte, howe3er, as a principle o& customary law (al7eit o& higher status)( It is
incorporate in the 9ienna Con3ention on the Law o& Treaties, Articles A% an B:( $ee ) %%1(2) an Comment e to that section( Comment & to this section aopts the
e&inition o& $us cogens &oun in Article A% o& the 9ienna Con3ention( The 9ienna Con3ention reEuires that the norm (an its peremptory character) must 7e 5accepte
an recogni6e 7y the international community o& $tates as a whole5 (Art( A%)( Apparently that means 7y 5a 3ery large ma8ority5 o& states, e3en i& o3er issent 7y 5a 3ery
small num7er5 o& states( $ee Report o& the !roceeings o& the Committee o& the Jhole, -ay 21, 19B8, #(/( +oc( AKCon&( %9K11 at :71"72(
Although the concept o& $us cogens is now accepte, its content is not agree( There is general agreement that the principles o& the #nite /ations Charter
prohi7iting the use o& &orce are $us cogens( $ee Comment &= 9erross an $imma, #ni3erselles 9ol<errecht 8%"87 (197B)( It has 7een suggeste that norms that create
5international crimes5 an o7ligate all states to procee against 3iolations are also peremptory( Compare Report o& the International Law Commission on the wor< o& its
twenty"eighth session, ra&t Art( 19, F197BG 2 L(>( IntCl L( CommCn 9A, 121( $uch norms might inclue rules prohi7iting genocie, sla3e trae an sla3ery, aparthei an
other gross 3iolations o& human rights, an perhaps attac<s on iplomats( Compare ) 7*2, Comment n(
7( General principles( Article %8(1)(c) o& the $tatute o& the International Court o& Hustice, ReportersC /ote 1, spea<s o& 5general principles o& law recogni6e 7y
ci3ili6e nations(5 It has 7ecome clear that this phrase re&ers to general principles o& law common to the ma8or legal systems o& the worl( The general principles are
those common to national legal systems= the 3iew o& $o3iet scholars that the re&erence is to principles o& international law that ha3e 7een accepte 7y states generally has
not gaine acceptance( Compare Tun<in, Theory o& International Law 19* (197:)( $ee, generally, 9irally, 5The $ources o& International Law,5 in -anual o& !u7lic
International Law 1:%":8 ($orensen, e( 19B8)( In contrast, re&erences to 5general principles o& international law5 orinarily mean principles accepte as customary
international law whether or not they eri3e &rom principles common to national legal systems(
Jhether a general principle common to national legal systems is appropriate &or a7sorption 7y international law may epen on the e3elopment o& international
law( 'or e;ample, there is now su7stantial international law on human rights (this Restatement, !art 9II), an it is plausi7le to conclue that a rule against torture is part
o& international law, since such a principle is common to all ma8or legal systems( $ee ) 7*2()= ) 7*1, ReportersC /ote 1(
In aition to 7eing an inepenent though seconary source o& law, general principles are also supporti3e o& other sources( That a principle is common to the
ma8or legal systems may 7e persuasi3e in etermining whether it has 7ecome a rule o& customary law or is implie in an international agreement( $ee ,pinion o& Huge
+illar in Appeal Relating to the Hurisiction o& the ICA, Council (Inia 3( !a<istan), F1972G I(C(H( Rep( :B, 1*9( 'or e;ample, 5goo &aith,5 a principle 5uni3ersally
recogni6e5 (pream7le, 9ienna Con3ention on the Law o& Treaties, ) %21, ReportersC /ote 1) was perhaps originally a principle common to the ma8or legal systems, 7ut
is now accepte as a principle o& customary law( Compare Case Relating to the Ar7itral Awar -ae 7y the Ding o& $pain (?onuras 3( /icaragua), F19B*G I(C(H( Rep(
192, 219, 22*, 222, 228, 2%B (state cannot in goo &aith contest long"accepte ar7itral awar), an Case o& the Temple o& !reah 9ihear (Cam7oia 3( Thailan), F19B2G id.
B, 2%, :2 (state cannot in goo &aith challenge long"accepte 7ounary)( $ee Lachs, 5$ome Thoughts on the Role o& @oo 'aith in International Law,5 in +eclarations on
!rinciples1 A Muest &or #ni3ersal !eace :7 (A<<erman, 3an Drie<er 0 !annen7erg es(, 1977)= 9irally, 5@oo 'aith In !u7lic International Law,5 66 1m...Int2l 3. 84>
(80749.
8( +,uit( The principle o& eEuity is &reEuently in3o<e in iscourse 7etween states 7ut there are &ew re&erences to eEuity as a legal principle in international
8uicial ecisions( ,ne such re&erence was in the 'isheries Hurisiction Case (#nite Dingom 3( Icelan), F197:G I(C(H( Rep( %( 5.Euita7le principles5 ha3e 7een
e;plicitly accepte as applica7le in the elimitation o& 7ounaries 7etween the continental shel3es an 7etween the e;clusi3e economic 6ones o& states, an the concept
has 7een consiere 7y international tri7unals in that conte;t( $ee ) A17 an ReportersC /ote 1 thereto(
9( Previous "estatement( The sources o& international law are ealt with 7rie&ly in the pre3ious Restatement in the comments to ) 1(
CR,$$ R.'.R./C.$1 +igest $ystem Dey /um7ers1
International Law 2
Treaties 1
Article %8
1( The Court, whose &unction is to ecie in accorance with international law such isputes as are
su7mitte to it, shall apply1
a( international con3entions, whether general or particular, esta7lishing rules e;pressly
recogni6e 7y the contesting states=
7( international custom, as e3ience o& a general practice accepte as law=
c( the general principles o& law recogni6e 7y ci3ili6e nations=
( su78ect to the pro3isions o& Article A9, 8uicial ecisions an the teachings o& the most
highly Euali&ie pu7licists o& the 3arious nations, as su7siiary means &or the etermination
o& rules o& law(
2( This pro3ision shall not pre8uice the power o& the Court to ecie a case e; aeEuo et 7ono, i& the
NInternational Law an !hilippine Law
-emori6e1
$ection 2, Article II, !hilippine Constitution
$ection 21, Article 9II, !hilippine Constitution
$ection A(2)(a), Article 9III, !hilippine Constitution
A
memori6e
Article 2
The ,rgani6ation an its -em7ers, in pursuit
o& the !urposes state in Article 1, shall act in
accorance with the &ollowing !rinciples(
1( The ,rgani6ation is 7ase on the principle o& the so3ereign eEuality o& all its -em7ers(
2( All -em7ers, in orer to ensure to all o& them the rights an 7ene&its resulting &rom mem7ership, shall &ul&il in goo &aith the o7ligationsassume 7y them in
accorance with the presentCharter(
%( All -em7ers shall settle their internationa isputes 7y peace&ul means in such a manner that international peace an security, an 8ustice, are not enangere(
:( All -em7ers shall re&rain in their international relations &rom the threat or use o& &orce
against the territorial integrity or political inepenence o& any state, or in any other manner inconsistent with the !urposes o& the #nite
/ations(
A( All -em7ers shall gi3e the #nite /ations e3ery assistance in any action it ta<es in accorance with the present Charter, an shall re&rain &rom gi3ing assistance to any
state against which the #nite /ations is ta<ing pre3enti3e or en&orcement
action(
B( The ,rgani6ation shall ensure that states which are not -em7ers o& the #nite /ations act in accorance with these !rinciples so &ar as may 7e necessary &or the
maintenance o& international peace an security(
7( /othing containe in the present Charter shall authori6e the #nite /ations to inter3ene in matters which are essentially within the omestic 8urisiction o& any state or
shall reEuire the -em7ers to su7mit such matters to settlement uner the present Charter= 7ut this principle shall not pre8uice the application o& en&orcement measures
uner Chapter 9II(
B