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HIERARCHY AND THE SOURCES OF

INTERNATIONAL LAW: A CRITIQUE
Mario Prost*

INTRODUCTION: OF ANARCHY, HIERARCHY AND SOURCES

ORTHODOXY ............................................................... 285

I. INFORMAL HIERARCHIES OF PRE-EMINENCE ............ 289

A. The Treaty Primacy Thesis................................. 292
B. The Custom Primacy Thesis ............................... 299
C. Conclusion on Informal Hierarchies .................. 306

II. MATERIAL HIERARCHIES AND THE PRAGMATICS OF

SOURCES .................................................................... 308
A. The Principle of Legislative Equality................. 308
B. Hierarchies of Influence: Great Powers, Great
(White) Men, and the Making of International
Law ...................................................................... 312
C. Legalized Hierarchies ......................................... 322

CONCLUSION: OF NOBLE LIES AND OPPORTUNE

FALSEHOODS .............................................................. 329

INTRODUCTION: OF ANARCHY, HIERARCHY AND SOURCES

ORTHODOXY
The discipline of international law, like all academic
disciplines, is built around a set of accepted truths, intuitions, and
histories, which together form its distinctive episteme as Foucault
defines it; i.e., its paradigmatic structure of thought and

* Senior Lecturer, Keele University (UK). This article is a significantly extended version
of a chapter in THE OXFORD HANDBOOK ON THE SOURCES OF INTERNATIONAL LAW (Jean
d'Aspremont & Samantha Besson eds., 2017).

285
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286 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

argument.1 One of these epistemic truths is that international

law constitutes a distinctly anarchical order, not so much because
it is chaotic and disorderly, but because it lacks a centralized and
hierarchically structured law-making and law-enforcing
authority.2 Domestic legal systems do, as a norm, benefit from
highly developed and sophisticated institutional machineries
endowed with the power of legislation and lawful coercion. In
comparison, international law is thought of as a largely horizontal
system of governance in which juridical authority and the
exercise of key legal functions (law-making, law determination,
and law enforcement) are fragmented and decentralized.3
Horizontality—or the lack of hierarchy—is considered by
most a central fact of international life and the starting point for
theorizing about international law. Nowhere is this more obvious,
perhaps, than in the doctrine of sources. Conventional accounts
of international law-making depict an eclectic and uncoordinated
system in which States, as sovereign equals, create rules for
themselves through various techniques and processes which can
be engaged simultaneously or in competition with one another,
with no process being intrinsically superior, normatively, to the
other.4 No constitution prevailing over ordinary statutes, no

1. MICHEL FOUCAULT, THE ORDER OF THINGS: AN ARCHAEOLOGY OF THE HUMAN

SCIENCES 60 (2005). The concept of episteme was originally used by Foucault to define the
set of rules that govern the production of knowledge across disciplines in a given culture
and at a given time (for instance, the classical episteme of Western culture). The concept
has also been used, however, to describe a discipline’s own indigenous knowledge
structure, or “regime of truth.” E.g., Dominique Chateau, Quelques Réflexions sur
l’Éptistémè de l’Esthétique, 0 PROTEUS – CAHIERS DES THÉORIES DE L’ART 59 (2010). On
international law as a discipline possessing its own distinctive episteme, see Mirjam
Sophia Clados, Bioethics in International Law: An Analysis of the Intertwining of
Bioethical and Legal Discourses 44-57 (2012) (unpublished Ph.D. dissertation,
Ludwig-Maximilians-Universität München), https://edoc.ub.uni-muenchen.de/15247/1/
Clados_Mirjam_Sophia.pdf [http://perma.cc/98GA-QJ32].
2. This is anarchy as defined by Hedley Bull: a system of states that knows of no
higher level of authority over states, and yet forms a society in which common rules and
institutions provide elements of order. HEDLEY BULL, THE ANARCHICAL SOCIETY: A STUDY
IN WORLD POLITICS 44 (2d ed. 1977).
3. ANTONIO CASSESE, INTERNATIONAL LAW 5-6 (2d ed. 2005); MALCOLM N. SHAW,
INTERNATIONAL LAW 4 (7th ed. 2014); PETER MALANCZUK, AKEHURST’S MODERN
INTRODUCTION TO INTERNATIONAL LAW 3 (7th ed. 1997).
4. ALAN BOYLE & CHRISTINE CHINKIN, THE MAKING OF INTERNATIONAL LAW 100
(2007) (describing the system of international law sources as “eclectic, unsystematic,
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2017] HIERARCHY AND THE SOURCES OF INTERNATIONAL LAW 287

statutory law superior to common law, no decisions of higher

courts binding on the decisions of lower courts: sources of
international law are said to be of equal rank and status, so that
a norm derived from one source is not, as a matter of principle, of
a higher value than a norm formed under another source.5 The
concept of a formal, a priori hierarchy of sources is thus, under
this view, alien to the structure of the international legal order.6
However, the functional equivalence of sources should not
obscure the fact that international legal thought and practice are
replete with varied forms of hierarchies which, though not
necessarily openly acknowledged as such, nevertheless run deep
in the system and inform the ways in which international law is
conceptualized, made, and applied. This paper examines two
types of source hierarchies. The first type concerns what may be
termed “informal hierarchies of pre-eminence.” These informal
hierarchies stem from the fact that, whilst acknowledging the
functional or formal equivalence of sources, certain actors (e.g.,
states, adjudicators, scholars) tend to express preferences for
particular sources because these sources are thought to possess
some specific qualities or uphold certain values (e.g.,
determinacy, versatility, universality) that are deemed desirable.
These are soft and transient hierarchies which, as shall become
clear, very much depend on contexts, circumstances, the identity
of legal subjects, and the projects they pursue. Nonetheless, these
are hierarchies inasmuch as they involve a differentiation of
sources “in a normative light,” i.e., normative judgments in which
some sources are deemed superior (good, effective, democratic)
and others inferior (bad, inefficient, illegitimate).7
The second type of source hierarchy is not concerned with the
normative worth of individual sources, but rather with the way in

overlapping, and often poorly coordinated”).

5. CASSESE, supra note 3, at 154.
6. See, e.g., JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL
LAW 22 (8th ed., 2012); MARK VILLIGER, CUSTOMARY INTERNATIONAL LAW AND TREATIES:
A STUDY OF THEIR INTERACTIONS AND INTERRELATIONS WITH SPECIAL CONSIDERATION OF
THE 1969 VIENNA CONVENTION ON THE LAW OF TREATIES 35 (1985); Michael Akehurst, The
Hierarchy of the Sources of International Law, 1975 BRIT. Y.B. INT’L L. 273, 274-75.
7. This broad understanding of hierarchy as “difference in a normative light” is
borrowed from Martti Koskenniemi, Hierarchy in International Law: A Sketch, 8 EUR. J.
INT’L L. 566, 567 & n.7 (1997).
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288 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

which they operate in practice (the pragmatics of sources). These

hierarchies stem from the fact that international law-making
processes structurally favor particular actors, voices, and
experiences (e.g., states, great powers, white men, transnational
capital) whilst marginalizing others (e.g., non-state groups, small
powers, brown women, labor). Despite a broad commitment to
legislative equality, the international system accommodates, and
at times institutionalizes, inequalities in the making of
international law. These material hierarchies, though not
exclusive to international law, are pervasive in the international
order and the lack of formal, pre-determined hierarchies among
recognized sources of international law in no way indicates that
the international system is a level playing field. The making of
international law is characterized by powerful hierarchies of
influence. These hierarchies are not hierarchies of or between
recognized manifestations of international law, but hierarchies in
the sources of international law and their day-to-day operation. I
shall refer to this second type of hierarchy as “material legislative
hierarchies.”
The following analysis is, by necessity, schematic and
impressionistic. The informal and material hierarchies addressed
here are by no means the only hierarchical structures found in
the doctrine and practice of sources. Due to space constraints, the
focus remains on representative and characteristic examples,
leaving other patterns, like class and racial hierarchies, to be
analyzed elsewhere.8 For the same reason, two sets of questions
have also been excluded at the outset from this paper. The first
concerns the hierarchy of norms question; that is the relationship
between individual norms or bodies of norms by reason of their
content, irrespective of their source (e.g., the superior status of
jus cogens over dispositive law). This problem is conceptually
distinct from the hierarchy of sources and has been debated at

8. On racialized tropes, biases, and hierarchies in international law, see Makau

Mutua, Critical Race Theory and International Law: The View of an Insider-Outsider, 45
VILL. L. REV. 841 (2000); Robert Knox, Race, Racialisation and Rivalry in the International
Legal Order, in RACE AND RACISM IN INTERNATIONAL RELATIONS: CONFRONTING THE
GLOBAL COLOUR LINE 175 (Alexander Anievas et al. eds., 2015). For a class approach to
international law, see B.S. Chimni, Prolegomena to a Class Approach to International
Law, 21 EUR. J. INT’L L. 57 (2010); Tai Maha, Reading ‘Class’ in International Law: The
Labor Question in Interwar Egypt, 25 SOC. & LEGAL STUD. 567 (2016).
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length in other works.9 The second concerns the relationship

between the so-called traditional sources of international law and
new forms of law-making “beyond the state” by public and private
transnational governance bodies.10
The main argument of this paper is that the “no-hierarchy”
thesis—as a central leitmotiv of the theory of sources—is
deceptive. It implies that law-making in the international order
is an essentially horizontal process marked by source equivalence
and legislative autonomy, when in reality the law of sources is
riddled with various forms of status differentiation (i.e.,
hierarchies). For that reason, I conclude with the argument that
this thesis should be refuted, as it is both descriptively and
normatively problematic.

I. INFORMAL HIERARCHIES OF PRE-EMINENCE

This section is concerned with, and seeks to offer important
qualifications to, a central tenet of the “no-hierarchy” thesis: the
view that sources of international law enjoy equal status as
law-making procedures and exist in no predetermined order of
importance or preponderance. This view requires a brief
explicitation before it can be qualified. Article 38(1) of the Statute
of the International Court of Justice—despite its well-known
limitations and criticisms of being inadequate, incomplete, and
outdated—remains the starting or rallying point for debates
about international law-making and is widely believed to express

9. The hierarchy of sources concerns the relationship between law-making processes

in the abstract. By contrast, the hierarchy of norms differentiates between norms or bodies
of norms due to their content or substance, rather than their legal form. On the difference
between the two types of hierarchies and how they can be mobilized to resolve normative
conflicts in international law, see JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC
INTERNATIONAL LAW (2003). On the hierarchy of norms, see Dinah Shelton, Normative
Hierarchy in International Law, 100 AM. J. INT’L L. 291 (2006); Juan Antonio Carrillo
Salcedo, Reflections on the Existence of a Hierarchy of Norms in International Law, 8 EUR.
J. INT’L L. 583 (1997); Jure Vidmar, Norms Conflict and Hierarchy in International Law:
Towards a Vertical International Legal System?, in HIERARCHY IN INTERNATIONAL LAW:
THE PLACE OF HUMAN RIGHTS (Erika de Wet & Jure Vidmar eds., 2012).
10. For a general overview of the problems posed by the rising (and largely
uncontrolled) regulatory power of global governance bodies, see EYAL BENVENISTI, THE
LAW OF GLOBAL GOVERNANCE (2014). On the heterarchical interaction of the national,
international, and transnational legal orders, see NICO KRISCH, BEYOND
CONSTITUTIONALISM: THE PLURALIST STRUCTURE OF POSTNATIONAL LAW (2010).
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290 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

“the universal perception as to the enumeration of sources of

international law.”11 Sources are listed in Article 38 in a specific
sequence (a to d) that looks, superficially, like a rough
hierarchy.12 During the drafting of Article 38, it was suggested
that the sources listed in the provision should be considered in
that specific order, with treaties prevailing over custom and
custom prevailing over general principles.13 The proposal was
rejected, however, and the order in which the sources are
enumerated in Article 38 is generally thought to be of no legal
relevance, though most scholars highlight the summa divisio
established between primary and subsidiary sources of
international law; the former (treaties and custom) standing as
the only true sources of law whilst the latter (judicial decisions
and doctrinal writings) are said to serve only the interpretation
and ascertainment of existing norms, lacking the ability to create
rights and obligations ex nihilo.14
Beyond this broad categorization, however, the consensus
remains that Article 38 does not establish a rigid hierarchy of

11. SHAW, supra note 3, at 50. Scholars do debate, of course, whether Article 38
represents an authoritative and definitive statement of sources (i.e., the meta-norm of
sources), or merely a clause of applicable law for the ICJ. Few dispute its pragmatic value
as a rallying point for the doctrine of sources, however. See JÖRG KAMMERHOFER,
UNCERTAINTY IN INTERNATIONAL LAW: A KELSENIAN PERSPECTIVE 208-10 (2011).
12. Article 38 states:
The Court, whose function it 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 consenting 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.
Statute of the International Court of Justice art. 38, June 26, 1945, 59 Stat. 1055.
13. On the drafting history of Article 38, see Akehurst, supra note 6, at 274.
14. See JAN KLABBERS, INTERNATIONAL LAW 25 (2013) (“[J]udicial decisions and the
writings of the most highly qualified publicists are listed as subsidiary means only . . . it
follows from the organizing principle of sovereignty that [these subsidiary means] cannot
make law, but only apply it.”); HUGH THIRLWAY, THE SOURCES OF INTERNATIONAL LAW 8
(2014) (“Neither a judge nor a scholar says ‘This is the law, because I say so’; they both lay
down what they regard as established by one of the other sources.”).
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sources, particularly when it comes to the relationship between

customary law and treaties. These are said to exist alongside each
other in no particular order of pre-eminence, in a kind of
decentralized and pluralistic arrangement where no source ranks
higher than the other.15 The fact that a norm was created via one
or the other sources listed in Article 38—i.e., its formal pedigree
—is thought to be of little or no relevance to its legal status and
authority. At a practical level, the absence of inherent hierarchies
among sources of international law means that adjudicators are
left to resolve conflicts of norms on an ad hoc basis by means of
interpretative techniques (e.g., harmonious interpretation) or
conflict resolution principles (e.g., jus cogens, lex specialis, lex
posterior).16 Unsurprisingly, these ad hoc resolutions nearly
always lead to a prioritization of the tribunal’s own body of law,
in what may be termed a preference for the law of the forum or,
more accurately perhaps, hegemonic assertions of jurisdiction. In
these hegemonic struggles, conflicts of norms are thus rarely
resolved in accordance with pre-established hierarchies and are
instead largely determined by the identity of the adjudicator (i.e.,
who decides) and the project it was set up to defend (e.g., trade,
human rights, security).17
The absence of rigid and formal hierarchies in the doctrine of
sources should not, however, conceal the fact that states,
adjudicators, and legal scholars have historically expressed clear
preferences for particular sources, thus establishing informal

15. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v U.S.),
Judgment, 1986 I.C.J Rep. 14, ¶ 176 (June 27) (“It cannot therefore be held that Article 51
[of the United Nations Charter] is a provision which ‘subsumes and supervenes’ customary
international law . . . . [I]n the field in question . . . customary international law continues
to exist alongside treaty law.”).
16. See Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law, Rep. of the Study Grp. of the Int’l
Law Comm’n, ¶¶ 86, 88, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006) [hereinafter
Fragmentation Report]; PAUWELYN, supra note 9, at 89-109; Maarten Bos, The Hierarchy
Among the Recognized Manifestations (“Sources”) of International Law, 25 NETH. INT’L L.
REV. 334 (1978).
17. For a theory of fragmentation as struggle for institutional hegemony and
normative authoritativeness, see Martti Koskenniemi, The Fate of Public International
Law: Between Technique and Politics, 70 MOD. L. REV. 1 (2007); Martti Koskenniemi,
International Law and Hegemony: A Reconfiguration, 17 CAMBRIDGE REV. INT’L AFF. 197
(2004).
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292 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

hierarchies, if not of validity, at the very least of importance or

pre-eminence among law-making processes.18 The theory and
practice of sources, in other words, is not entirely alien to what
Parry once called “logical scales of values,” i.e., the logical
ordering of sources according to specific value judgments about
their respective merits.19 Two such hierarchies are analyzed here,
positing the superiority/primacy (if not the supremacy) of treaty
law and customary law respectively. Other orderings are possible,
however, and, as noted by David Kennedy, “[a]dvocates of all
logically available positions exist” regarding the hierarchical
relationship among the various Article 38 sources.20

A. The Treaty Primacy Thesis

Legal reason is, fundamentally, a hierarchical form of reason
“establishing relationships of inferiority and superiority between
units and levels of legal discourse.”21 For this reason, and even
though legal scholars are at one in arguing that there is no formal
hierarchy among the sources of international law, they generally
find it difficult to refrain from passing some form of judgment on
the superiority of one or the other sources listed in Article 38 (and,
by implication, on the inferiority of the others). The leading view
in this regard, as far as modern international law is concerned, is
that treaties are the “most prominent,” “most important,” “most
fundamental,” “dominant,” “major,” “principal,” or “primary”
source of international law.22 To some scholars, the pre-eminence

18. CASSESE, supra note 3, at 155; Akehurst, supra note 6, at 274.

19. CLIVE PARRY, THE SOURCES AND EVIDENCES OF INTERNATIONAL LAW 28 (1965).
20. David Kennedy, The Sources of International Law, 2 AM. U. J. INT’L L. & POL’Y
1, 16 n.25 (1987).
21. Koskenniemi, supra note 7, at 566.
22. E.g., CRAWFORD, supra note 6, at 30 (“Treaties are the most important source of
obligation in international law.”); WOLFGANG FRIEDMANN, THE CHANGING STRUCTURE OF
INTERNATIONAL LAW 123-24 (1974) (“It is obvious that, in the fast moving articulate and
complex international society of today, the international treaty increasingly replaces
custom as the principal source of international law.”); Duncan B. Hollis, Introduction to
THE OXFORD GUIDE TO TREATIES 1, 8 (Duncan B. Hollis ed., 2012) (“[T]reaties are an
essential vehicle for organizing international cooperation and coordination. In both
quantitative and qualitative terms, they are the primary source for international legal
commitments and, indeed, international law generally.”); KLABBERS, supra note 14, at 25
(“[T]he treaty has become the dominant source of international law.”); CHARLES
ROUSSEAU, DROIT INTERNATIONAL PUBLIC 59 (1970) (“[L]’article 38 qu’il n’établit pas de
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of treaties is such that international law-making can be usefully

divided into “treaty law” and “non-treaty law”: treaties on one
hand, everything else on the other.23 In fact, it is not rare for legal
scholars to regard treaties and international law as one and the
same.
The “treaty primacy” thesis comes in various degrees and
forms that can be categorized in two principal streams of
arguments. The first stream posits that treaties and custom are
normatively equivalent but that, as a matter of procedural order,
treaties take priority over other sources of international law.
According to this argument, when courts and tribunals decide a
case, they routinely—and should, as a matter of principle—look
at treaties first, before considering non-treaty sources.24 This
view is based on two principal justifications. The first is a
pragmatic consideration: treaties are generally thought to be
superior instruments for resolving disputes because of their
written character, which confers a greater degree of precision and
textual determinacy to treaty norms.25 Treaty norms are easier to
locate, ascertain, and apply than other norms, particularly
customary norms, the precise content of which can be difficult and
onerous to establish. As noted by Beckett, “[s]tate practice is
widely dispersed, often awkward to identify, hard to weigh, and
generally not uniform . . . . [I]t is easier to consult a written
source.”26 Treaty law is also, by and large, devoid of the
ontological and methodological uncertainties characteristic of

hiérarchie entre les différences sources qu’il énumère . . . on constate qu’il y a accord sur
les idées suivantes . . . [l]a première source, incontestablement la plus importante, est
formée par les traités.”) (emphasis removed).
23. For example, PATRICK DAILLIER ET AL., DROIT INTERNATIONAL PUBLIC (8th ed.
2009), subcategorize their chapter on international law-making into “formation
conventionnelle” and “formation non conventionnelle.”
24. E.g., Fragmentation Report, supra note 16, ¶ 85 (“This informal
hierarchy . . . emerges as a ‘forensic’ or a ‘natural’ aspect of legal reasoning. Any court or
lawyer will first look at treaties, then custom and then the general principles of law for an
answer to a normative problem.”).
25. PAUWELYN, supra note 9, at 133-34; see also John K. Setear, An Iterative
Perspective on Treaties: A Synthesis of International Relations Theory and International
Law, 37 HARV. INT’L L.J. 139, 215 (1996) (highlighting that treaty provisions often include
specific mechanisms for dispute resolution).
26. Jason Beckett, Customary International Law, in INTERNATIONAL LAW FOR
INTERNATIONAL RELATIONS 122, 134 (Başak Çali ed., 2010) (emphasis omitted).
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294 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

customary law. Proving a treaty norm is generally unproblematic.

There are rarely any disputes about the existence of a treaty: a
treaty is either in force between the parties, or it isn’t.27 By
contrast, proving custom is a far more uncertain enterprise that
nearly always gives rise to serious controversies and often leave
adjudicators (or codifiers) exposed to criticism.28 In these
circumstances, it is not surprising that courts and tribunals
should, as a matter of practice, demonstrate a preference for the
formality and definition of treaty law. Noting this point,
Charlesworth writes of a “hierarchy of sources in terms of ease of
identification.”29
The procedural or operational priority of treaties is also
justified by a principled consideration, which stems from the
notion that states, by concluding treaties, are purposely “opting
out” of general (often understood as customary) international law
to establish a special, derogatory regime (i.e., a lex specialis) in a
given area of cooperation. This argument is found in its purest
expression in the writings of Hersch Lauterpacht. Using a
domestic law analogy, Lauterpacht considers that the rights and
duties of states:
are determined, in the first instance, by their agreement
as expressed in treaties—just as in the case of
individuals their rights are specifically determined by
any contract which is binding upon them. When a
controversy arises between two or more States with
regard to a matter regulated by a treaty, it is natural
that the parties should invoke and that the adjudicating
agency should apply, in the first instance, the provisions
of the treaty in question . . . . In the above sense, treaties
must be considered as ranking first in the hierarchical

27. Disputes occasionally arise regarding the validity of a treaty or its termination,
though this is a rather rare occurrence. For a characteristic example, see Gabčíkovo–
Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. Rep. 7, ¶ 142 (Sept. 25).
28. The ICJ was notoriously criticized for its method of ascertaining customary law
in the Nicaragua case, with some legal scholars blaming the Court for its “revisionist”
approach, blurring the lines between practice and opinio juris, and “trashing” customary
international law. Similar criticisms were levelled against the ICRC when it published its
2009 restatement of customary international humanitarian law. See MARIO PROST, THE
CONCEPT OF UNITY IN PUBLIC INTERNATIONAL LAW 100-02 (2012).
29. Hilary Charlesworth, Law-making and Sources, in THE CAMBRIDGE COMPANION
TO INTERNATIONAL LAW 187, 189-90 (James Crawford & Martti Koskenniemi eds., 2012).
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order of the sources of international law.30

The notion that treaties should take precedence as lex
specialis inter partes has been recognized on various occasions in
positive law. For instance, the 1907 Hague Convention (XII)
relative to the Creation of an International Prize Court explicitly
provided that “if a question of law to be decided is covered by a
treaty in force between [the parties], the Court is governed by the
provisions in the said treaty. In the absence of such provisions,
the Court shall apply the rules of international law.”31 Although
this procedural sequencing was not repeated in Article 38, the ICJ
has stated on several occasions that “rules of [general]
international law can, by agreement, be derogated from in
particular cases or as between particular parties”32 and that “[i]n
general, treaty rules being lex specialis, it would not be
appropriate that a State should bring a claim based on a
customary-law rule if it has by treaty already provided means for
settlement of such a claim.”33 The International Law Commission,
in its study on the fragmentation of international law, noted this
jurisprudence, holding that international tribunals “give
precedence to treaty law in matters where there is customary law
as well—a practice that highlights the dispositive nature of
custom and the tribunals’ deference to agreements as the
‘hardest’ and presumably most legitimate basis on which their
decisions can be based.”34
The procedural priority of treaty law constitutes the first
version of the “treaty primacy” thesis. The second version of the
thesis is rather different. It posits that treaty law is both
operationally and normatively superior to (i.e., better than) other
law-making processes. The argument here is that the treaty is,

30. HERSCH LAUTERPACHT, INTERNATIONAL LAW: VOLUME 1, THE GENERAL WORKS

87 (1970).
31. Convention (XII) Relative to the Creation of an International Prize Court art. 7,
Oct. 18, 1907, 205 Consol. T.S. 381.
32. North Sea Continental Shelf Cases (Ger. v. Den.; Ger. v. Neth.), Judgment, 1969
I.C.J. Rep. 3, ¶ 72 (Feb. 20).
33. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.),
Judgment, 1986 I.C.J Rep. 14, ¶ 274 (June 27); see also Amoco Int’l Fin. Corp. v. Iran, 15
Iran-U.S. C.T.R. 189, ¶ 112 (1987) (“As a lex specialis in the relations between the two
countries, the Treaty supersedes the lex generalis, namely customary international law.”).
34. Fragmentation Report, supra note 16, ¶ 81.
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296 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

comparatively, a “first-class” source of international law that

possesses unique qualities and attributes. Though legal scholars
have expressed a wide range of views in this regard, treaty law is
generally thought to possess three essential qualities that set it
apart from other sources: ontological determinacy, practical
versatility, and process legitimacy. Ontological determinacy
refers to the already alluded to fact that the nature of treaties as
a source of international law is “unambiguous and
uncontroversial.”35 Compared to customary law—whose nature,
constitutive elements, and methods of ascertainment are
intensely debated—the law of treaties appears remarkably
reliable and well-settled to the point that it has become
practically unthinkable to challenge its content.36 Though some
areas of the law of treaties are open-ended or subject to continued
discussion (e.g., treaty interpretation, reservations), it is argued
that the Vienna Convention on the Law of Treaties offers
“consummate clarity”37 to treaty law as a source of rights and
obligations and effectively functions as a form of “meta law,” a
stable legal code that regulates the whole life-cycle of treaties
from their making, identification, and validation to their
application, interpretation, modification, and termination.38
Treaties thus enjoy a degree of “source determinacy” unknown to
other law-making processes, promoting legal certainty, and
security in international relations.39
Treaties are also generally favored for their practical
versatility. Treaties can be used for a variety of purposes and in
a variety of contexts, from the dramatic (war) to the mundane

35. G.J.H. VAN HOOF, RETHINKING THE SOURCES OF INTERNATIONAL LAW 117 (1983).
36. On the methodological problems posed by the identification of customary law,
see OLIVIER CORTEN, MÉTHODOLOGIE DU DROIT INTERNATIONAL PUBLIC 149-78 (2009).
37. THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS 59-60 (1990).
38. MARTIN DIXON, TEXTBOOK ON INTERNATIONAL LAW 55 (7th ed. 2013).
39. For a discussion of “source determinacy” as a signifier of progress in
international law, see Thomas Skouteris, The Force of a Doctrine: Art. 38 of the PCIJ
Statute and the Sources of International Law, in EVENTS: THE FORCE OF INTERNATIONAL
LAW 69 (Fleur Johns et al. eds., 2011). The notion that the primary function of the law of
treaties should be to provide certainty and security in legal relations was central to
proceedings at the 1969 Vienna Conference. Vienna Convention on the Law of Treaties
pmbl., May 23, 1969, 1155 U.N.T.S. 332.
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(duty-free shopping).40 They can be used to codify or restate

pre-existing customary law, or to make a fresh start and create
new rules almost instantly.41 They can be used to regulate
bilateral relations or for larger legislative ambitions, laying down
whole regimes to govern holistic areas such as humanitarian law
or climate change.42 They can serve to articulate general
principles of law (sovereign equality, non-intervention,
self-determination), but also to adopt highly specific technical
standards on commodity prices or water pollution.43 A number of
things, to finish, can only be done by way of treaties, most notably
the setting up of international institutions like the UN or the
EU.44
Lastly, and critically, the treaty is generally viewed as
superior to other sources by reason of its perceived legitimacy as
a law-making process. To begin, treaty-making is premised on the
principle of freedom of contract (though the exercise of this
freedom is rarely unconstrained45). States are free to sign up to a
treaty or choose not to become a party.46 They enjoy full freedom
with regards to the modalities and form of agreement.47 They are
free to enter reservations and to limit or modify the effect of the

40. Christian J. Tams et al., Introduction to RESEARCH HANDBOOK ON THE LAW OF

TREATIES x (Christian J. Tams et al. eds., 2014).
41. On the treaty as an instrument of legal innovation/renovation in a fast-moving
world, see CHARLES DE VISSCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW
162 (1968); FRIEDMANN, supra note 22, at 123-24.
42. See FRIEDMANN, supra note 22, at 123-24 (discussing how treaties can be used
to regulate bilateral relations but also to achieve broader welfare and co-operative
objectives, for instance in matters of trade, nature conservation or international labor
standards).
43. See, e.g., International Coffee Agreement 2007, Sept. 28, 2007, In’tl Coffee
Council Doc. ICC 98-6, http://www.ico.org/documents/ica2007e.pdf [http://perma.cc/DUZ3-
JPZV] (maintaining coffee exporting countries’ quotas and stabilizing coffee prices in the
international market).
44. On the versatility of treaties and their importance in contemporary international
relations, see Michel Virally, The Sources of International Law, in MANUAL OF PUBLIC
INTERNATIONAL LAW 116, 123-24 (Max Sørensen ed., 1968).
45. Omar M. Dajani, Contractualism in the Law of Treaties, 34 MICH. J. INT’L L. 2,
2-3 (2012); see infra Section II.
46. BOYLE & CHINKIN, supra note 4, at 31.
47. Vienna Convention on the Law of Treaties, supra note 39, art. 11 (governing the
means of expressing consent to be bound by a treaty).
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298 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

treaty in its application to them.48 And States are free, of course,

to withdraw from treaties, as recently illustrated by the
withdrawal of Latin American States from the ICSID Convention,
African withdrawals from the International Criminal Court, and
President Trump’s stated intent to withdraw from the Paris
Climate Agreement.49 Treaty-making is thus, in principle, a
conscious, deliberative process respectful of State consent and
contractual autonomy. It is also, to an extent, subjected to
democratic scrutiny. Treaty negotiations, in important areas such
as climate change or trade/investment, are largely covered by the
media and the subject of public debate.50 Civil society is
increasingly involved in treaty-making, with the participation of
NGOs in intergovernmental conferences and proceedings.51 And
in many instances, treaty ratification involves a domestic “chain
of legitimacy” where treaties must be approved by the Parliament
or some representative institution, and sometimes even by
popular referendum.52 For the above reasons, treaty-making is
often regarded as comparatively more transparent and
democratic than other law-making processes (especially the
nebulous process of customary law formation), a fact that is said
to increase the effectiveness of international law, as norms
generated through legitimate processes are thought to exert

48. Id. art. 19.

49. See Lars Markert & Catharine Titi, States Strike Back—Old and New Ways for
Host States to Defend Against Investment Arbitrations, in YEARBOOK ON INTERNATIONAL
INVESTMENT LAW & POLICY 2013-2014, at 401 (Andrea K. Bjorklund ed., 2015); African
Union Backs Mass Withdrawal from ICC, BBC NEWS (Feb. 1, 2017), http://www.bbc.co.uk/
news/world-africa-38826073 [http://perma.cc/C9G8-RACQ]; Tom Batchelor, Trump ‘Will
Definitely Pull out of Paris Climate Change Deal’, INDEPENDENT (Jan. 30, 2017, 4:00 PM),
http://www.independent.co.uk/news/world/americas/donald-trump-paris-climate-change-
deal-myron-ebell-us-president-america-pull-out-agreement-a7553676.html [http://
perma.cc/7KB6-75KQ].
50. See PAUWELYN, supra note 9, at 135 (discussing the “open” and “public” nature
of treaty conferences).
51. Whether greater NGO participation necessarily leads to enhanced legitimacy is,
of course, questionable. See Kenneth Anderson & David Rieff, ‘Global Civil Society’: A
Sceptical View, in GLOBAL CIVIL SOCIETY 2004-2005, at 26, 26, 29 (Helmut K. Anheier et
al. eds., 2004); BOYLE & CHINKIN, supra note 4, at 59-61.
52. KLABBERS, supra note 14, at 37; Rüdiger Wolfrum, Legitimacy of International
Law from a Legal Perspective: Some Introductory Considerations, in LEGITIMACY IN
INTERNATIONAL LAW 1, 4, 7 (Rüdiger Wolfrum & Volker Röben eds., 2008).
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greater “compliance pull” and thus harder to disobey.53

B. The Custom Primacy Thesis

The “treaty primacy” thesis has become dominant in the
contemporary doctrine of sources. Few would deny that treaties
have assumed a central role in international law-making, both
quantitatively and qualitatively. That thesis, however, has
always coexisted with others that posit that custom ranks higher,
normatively, than treaty law. As with the “treaty primacy” thesis,
there are several versions of the “custom primacy” thesis, three of
which are discussed here.
The first version of the thesis posits that custom is superior
to other sources—in particular treaty law—inasmuch as it
precedes and pre-determines them: in other words, there can be
no treaty law without a pre-existing framework of customary law
governing its formation. This argument has a long history.
Writing at the turn of the 20th century, Oppenheim notoriously
stated that custom “is the original source of International Law.”54
What he meant was not that, chronologically, custom came first
and treaties second, but rather that custom was not dependent on
any other source to exist, whereas treaties could only exist
against the background of custom: “treaties are a source the
power of which derives from custom. For the fact that treaties can
stipulate rules of international conduct at all is based on the
customary rule of the Law of Nations, that treaties are binding
upon the contracting parties.”55
The limits of this theory are well known. As Lauterpacht
famously noted, if one subscribes to the view that treaties are
binding only because there is a customary rule to that effect,
“[t]here still remains the question why custom is binding.”56 It
has, however, proved remarkably resilient. Kelsen, in his General
Theory of Law and State, observed that
If, again, we ask why this treaty is valid, we are led back

53. FRANCK, supra note 37, at 59-60; Thomas M. Franck, Legitimacy in the
International System, 82 AM. J. INT’L L. 705 (1988).
54. L. OPPENHEIM, INTERNATIONAL LAW: VOL. 1, PEACE 24 (1905).
55. Id.
56. LAUTERPACHT, supra note 30, at 58.
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300 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

to the general norm which obligates the States to behave

in conformity with the treaties they have concluded, a
norm commonly expressed by the phrase pacta sunt
servanda. This is a norm of general international law,
and general international law is created by
custom . . . Customary international law . . . is the first
stage within the international legal order.57
Reuter, a leading scholar of the law of treaties and a firm
believer in the “central position” of treaty law in international life,
conceded that
treaties are binding by virtue not of a treaty but of
customary rules. In that sense, international custom is
even more central than the law of treaties since it is the
very pillar on which treaties rest. If one were to speak of
a ‘Constitution’ of the international community, it would
have to be a customary one.58
In his recent Hague Lectures, Crawford took the same view,
arguing that “international law is a customary law system,
despite all the treaties; even the principle of pacta sunt servanda,
the obligation to comply with treaties, is a customary law
obligation.”59 Common to all these views about the primacy of
custom is the notion that customary law has a privileged,
elemental status at the heart of the international legal order and
represents the source of all sources, the background that
determines the condition of validity of all other legal norms and
processes.60
It should be noted that this first version of the “custom
primacy” thesis is not so much concerned with custom as a
law-making process as it is with certain basic, foundational
principles (e.g., pacta sunt servanda) that happen to be of a
customary nature.61 The second and third versions of the thesis,

57. HANS KELSEN, GENERAL THEORY OF LAW AND STATE 369 (1945).
58. PAUL REUTER, INTRODUCTION TO THE LAW OF TREATIES 29 (José Mico & Peter
Haggenmacher trans., 2012).
59. JAMES CRAWFORD, CHANCE, ORDER, CHANGE: THE COURSE OF INTERNATIONAL
LAW 57 (2014).
60. Brigitte Stern, Custom at the Heart of International Law, 11 DUKE J. COMP. &
INT’L L. 89, 89 (2001).
61. The notion that the rule pacta sunt servanda is a customary rule is open to
question. Kelsen himself eventually abandoned this view, arguing instead that the rule
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by contrast, have more to do with custom as a process and its

comparative merits. The second version of the thesis, to begin
with, posits that custom is the only process capable of producing
law in the proper sense of the term—i.e., rules of general validity
—applicable to the legal order as a whole and to all legal subjects.
This view was notoriously put forward by Fitzmaurice, who
argued that treaties ought to be viewed as mere contracts which
can do little more than create specific rules applicable to specific
parties in specific contexts.62 Since treaties are unable to produce
genuine rules of law, he concluded, they cannot be considered as
sources of international law but merely as sources of rights and
obligations.63 While they may lead to the emergence of law proper
if their provisions pass into the general corpus of customary
international law, because of their contractual nature
Fitzmaurice viewed treaties as “no more a source of law than an
ordinary private law contract.”64
This view of treaties as a mere source of obligations has had
a certain influence and was espoused by many scholars after
Fitzmaurice. Parry, for instance, while recognizing that treaties
are of paramount importance when determining the rights and
duties of States inter se, argued that the contribution of treaties
to “the whole content and stuff of the international legal
system . . . is relatively small.”65 To Parry, the treaty is essentially
peripheral as a source of international law—it is custom that
defines the basic constitutional structure and general principles
of international law as a system.66 The treaty is simply “the
contract of the international legal system” and in the same way
that one can learn about English law without reading a single

pacta sunt servanda is an axiom incapable of juridical demonstration and not itself a part
of the system of positive law. HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 190 (2nd
prtg. 2003); François Rigaux, Hans Kelsen on International Law, 9 EUR. J. INT’L L. 325,
328 (1998).
62. Gerald Fitzmaurice, Some Problems Regarding the Formal Sources of
International Law, SYMBOLAE VERZIJL 153 (1958), reprinted in MARTIN DIXON ET AL.,
CASES & MATERIALS ON INTERNATIONAL LAW 23, 23 (6th ed. 2016).
63. Id.
64. Id. For a rebuttal, see M.H. Mendelson, Are Treaties Merely a Source of
Obligation?, in PERESTROIKA AND INTERNATIONAL LAW (William E. Butler ed., 1990).
65. PARRY, supra note 19, at 34.
66. Id.
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302 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

contract or statute, “one can have a very fair idea of international

law without having read a single treaty: and one cannot gain any
very coherent idea of the essence of international law by reading
treaties alone.”67 Brownlie, to provide another example, listed
treaties alongside General Assembly resolutions and drafts
adopted by the International Law Commission as “material
sources” exercising direct influence on the content of the law,
rather than “formal sources” of law proper—a distinction that
endured until Crawford’s re-edition of Brownlie’s classical
textbook.68 The point in these arguments about sources is that a
hierarchy of sorts is introduced between custom as legislation and
treaties as contracts.
The third version of the “custom primacy” thesis is more
directly concerned with the specific attributes which custom is
said to possess as a law-making process. Customary law, as a
formal source, may be seen as normatively superior (better) to
other sources due to its ability to generate universally applicable
norms, i.e., norms which are binding on any and all States at
once.69 Whilst treaties may theoretically achieve universal
participation, this remains an extremely rare occurrence and the
universality of treaties is, in any event, likely to be undermined
by reservations and other flexibility mechanisms.70 In
comparison, norms generated through the customary process do
not necessitate all states to opt in to become universal. Customary
norms are born universal and states are not permitted to opt out
of customary law unless they have persistently and
unambiguously objected to its formation, a possibility that has
played such a limited role in practice that it has become
essentially theoretical.71 As stated unambiguously by the ICJ,

67. Id. at 35.

68. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 12-13 (6th ed. 2003);
CRAWFORD, supra note 6, at 42.
69. BROWNLIE, supra note 68.
70. On the tension between the universality and integrity of treaties, see Catherine
Redgwell, Universality or Integrity? Some Reflections on Reservations to General
Multilateral Treaties, 1993 BRIT. Y.B. INT’L L. 245.
71. Ted Stein, The Approach of the Different Drummer: The Principle of the
Persistent Objector in International Law, 26 HARV. INT’L L.J. 457, 457, 467 (1985)
(describing the principle of the “persistent objector” and the limited role that it has played
in international relations).
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“customary law rules and obligations . . . by their very nature,

must have equal force for all members of the international
community, and cannot therefore be the subject of any right of
unilateral exclusion.”72
Customary law, in this sense, offers the promise of majority
rule and universal legality. Majoritarian universality is thus the
great strength; the “unique selling point” of customary
international law.73 Whether this prospect is attractive and
legitimate is, of course, very much a matter of perspective and
circumstances. Creating legal norms without the consent of all
concerned states would certainly appear illegitimate to most 19th
century legal positivists, and the classical position of the
International Court of Justice has consistently been that
international rules only exist if and where they have been
developed with the consent of those concerned.74 However, the
notion of non-consensual law-making has always appealed to
scholars committed to the idea of universal law and frustrated
with the strict contractual nature of treaties and the limits
inherent in voluntary law-making.75 In recent years, this
frustration has seen somewhat of a renewal, most notably in
debates concerning global public goods. Many scholars have
highlighted what they see as the inherent inadequacy of treaty
law and its emphasis on state consent in dealing with global
public good challenges such as climate change mitigation,
fisheries depletion, the management of pandemics, or global
security threats.76 To resolve such problems, the argument goes,

72. North Sea Continental Shelf Cases (Ger. v. Den.; Ger. v. Neth.), Judgment, 1969
I.C.J. Rep. 3, ¶ 63 (Feb. 20).
73. Beckett, supra note 26, at 124.
74. See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar.
v. U.S.), Judgment, 1986 I.C.J Rep. 14, ¶ 269 (June 27) (“[I]n international law there are
no rules, other than such rules as may be accepted by the State concerned, by treaty or
otherwise.”); Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. Rep.
3, ¶ 89 (Feb. 5) (“Here as elsewhere, a body of rules could only have developed with the
consent of those concerned.”).
75. See, e.g., JOHANN CASPAR BLUNTSCHLI, LE DROIT INTERNATIONAL CODIFIÉ 58 n.1
(1895) (“Si le droit international était exclusivement le produit de la libre volonté des états,
aucun d’eux ne serait obligé vis-à-vis des autres d’en respecter les principes, quand ces
principes n’auraient pas été sanctionnés par un traité.”).
76. E.g., Nico Krisch, The Decay of Consent: International Law in an Age of Global
Public Goods, 108 AM. J. INT’L L. 1, 1-2 (2014).
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304 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

global rules must be developed which are binding on all states.

Because we cannot expect rules, especially in such controversial
areas, to receive the specific individual consent of each and every
one of the nearly 200 states composing the international
community today, these rules must be developed “regardless of
the attitude of any particular state,”77 i.e., without or perhaps
even against the will of individual states.78 In this context, treaty-
making becomes problematic as it gives any state the right to
object to the formation of any proposed rule of international law.
An excessive commitment to consent is thus perceived as
crippling efforts to develop the international norms the world so
desperately needs.79
The limits of treaty-making in addressing global public good
problems has prompted a (re)turn to non-consensual law-making
processes. Some scholars have argued for the use of international
institutions with majoritarian voting rules.80 Others have simply
advocated a wider use of custom as a way to achieve universal
norms without the specific support of every member of the global
community. For instance, Justice Weeramantry has claimed that
custom is vastly superior to the treaty as an instrument for
dealing with global public good challenges.81 Pointing to the near
impossibility of obtaining universal treaty ratification, he argues
that “[w]e need to have resort to a set of principles that do not owe
their existence to an act of specific state consent but reach beyond
state consent to the primordial verities and principles on which
the international order is founded.”82 In his view, “customary
international law provides such a source which will need to be
increasingly relied upon in a future where unexpected and urgent
problems of an unprecedented nature will keep arising, for which
treaty law cannot provide the solutions.”83

77. Jonathan I. Charney, Universal International Law, 87 AM. J. INT’L L. 529, 529
(1993).
78. Christian Tomuschat, Obligations Arising for States Without or Against their
Will, 241 RECUEIL DES COURS 195 (1993).
79. Andrew T. Guzman, Against Consent, 52 VA. J. INT’L L. 747, 788 (2012); Laurence
R. Helfer, Nonconsensual International Lawmaking, 2008 U. ILL. L. REV. 71, 125.
80. E.g., JOEL P. TRACHTMAN, THE FUTURE OF INTERNATIONAL LAW 283 (2013).
81. C.G. WEERAMANTRY, UNIVERSALISING INTERNATIONAL LAW 222-25 (2004).
82. Id. at 223.
83. Id. at 223-24.
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The superiority of custom as a source capable of producing

legal universals is, of course, rooted in a particular vision of the
world and the role of law in it. The universal as a project is always
particularly located. The primacy of custom here is justified on
utilitarian (solving global public good problems) and
semi-naturalist grounds (the “primordial verities and principles”
of the international order). And output legitimacy (generating
norms despite opposition by a reluctant minority) matters more
than normative legitimacy (the “justness” of norms and
institutional arrangements) or process legitimacy (who decides
and according to what procedures). Unsurprisingly, these
justifications for the primacy of custom do not resonate with
everyone, and some states and scholars have historically resisted
custom as a legitimate method for making universally applicable
international laws. In particular, in the immediate post-colonial
era, the approach of Third World States and scholars to
international law was characterized by a clear rejection of
custom.84 Importantly, this was not simply a rejection of specific
customary norms, thought to express relationships of domination,
inequality, or privilege. The rejection was much deeper and
concerned custom as a law-making process more generally.
Custom as a process was deemed both illegitimate and ineffective.
It was deemed anti-democratic, as it was created in accordance
with the needs of powerful (Western) nations and then imposed
onto the silent (non-Western) majority.85 It was also deemed
ineffective because it made the prospect of radical transformation
of the legal system remote. Newly independent states were in
need of institutions and structures allowing rapid modification
and adaptation of the law, a need that custom, with its slow and
undecided tempo, was ill-adapted for.86 Custom was thus

84. E.g., R.P. Anand, Attitude of the Asian-African States Toward Certain Problems
of International Law, 15 INT'L. & COMP. L.Q. 55 (1966); Prakash Sinha, Perspective of the
Newly Independent States on the Binding Quality of International Law, 14 INT’L & COMP.
L.Q. 121 (1965).
85. This critique mirrored that which was levelled earlier by the Soviet doctrine
against custom, seen as entrenching the hegemony of capitalist states. E.g., Grigorii
Ivanovich Tunkin, Co-existence and International Law, 3 RECUEIL DES COURS 3, 46-48
(1958).
86. MOHAMMED BEDJAOUI, TOWARDS A NEW INTERNATIONAL ECONOMIC ORDER
133-34 (1979).
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306 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

perceived as a largely deficient source of international law:

“[b]ackward looking, conservative because static, iniquitous in its
content, ponderous in its formation, custom as traditionally
conceived cannot be of real use in the development of new rules,
and could actually be an obstacle to any attempt at change.”87
Most Afro-Asian states, as a result, expressed a clear preference
for reforming the law through deliberative mechanisms such as
conferences, treaties, and resolutions.88

C. Conclusion on Informal Hierarchies

Doctrines about the sources of international law generally
begin with an abstract definition of the sources listed in Article
38 and nearly always posit, as a general rule, that there exists no
formal hierarchy among them. Beyond this, however, the
discourse on sources is replete with hierarchical discussions
elaborating the procedural, practical, or normative superiority of
some sources over others. In this sense, international law about
sources is first and foremost a set of doctrinal boundaries and
hierarchies. Critically, though, these hierarchies are not rigid,
pre-determined, or definitive, but rather fluid and transient.
First, the hierarchical arguments discussed above are not always
mutually exclusive. For instance, it may be possible to argue that
treaties take precedence over custom as a matter of procedural or
operational priority, and at the same time that treaty law still
remains subordinate to customary law, as the latter determines
its conditions of validity and interpretation. Lauterpacht is a case
on point here, having argued on different occasions that,
operationally, treaty law “rank[s] first in the hierarchical order of
the sources of international law”89 and, at the same time, that
“[i]n the international sphere, where legislation in the true sense
of the world is non-existent, custom is still the primary source; it
supplies the framework, the background, and the principal
instrument of the interpretation of treaties.”90

87. Id. at 137.

88. R.P. ANAND, CONFRONTATION OR COOPERATION? INTERNATIONAL LAW AND THE
DEVELOPING COUNTRIES 39-41 (2011); ABDULQAWI A. YUSUF, PAN-AFRICANISM AND
INTERNATIONAL LAW ch. 3 (2014).
89. LAUTERPACHT, supra note 30, at 87.
90. HERSCH LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE
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More importantly though, these arguments about source

hierarchies are rarely, if ever, fixed or set in stone. They are more
often than not context-dependent and determined by the project
or strategy pursued by the lawyers making them. These informal
hierarchies reflect and continue the problematics and desires that
motivate them. Arguments about the primacy of treaty law are
generally driven by a desire for determinacy and consent-based
legitimacy, while arguments about the primacy of custom are
generally driven by a desire for autonomy (from consent) and
universality. As contexts and desires shift, so do source
hierarchies. In the classical doctrine of international law, the
main hierarchy was not between treaties and custom, but one
between natural (divine) law and man-made rules.91 To a 19th
century scholar, normative hierarchies had to reflect a positivist
concern with state consent, thus giving priority to treaties as the
ideal type of sources. To a 20th century Third World scholar, the
hierarchy of sources is typically characterized by a rejection of
traditional sources and a preference for mechanisms giving force
to the numerical strength of the non-Western world (e.g., GA
resolutions). Source hierarchies are thus historically contingent.92
They are also functionally determined. Each source possesses
specific design features (e.g., determinacy, flexibility,
universality) that make it suitable to deal with particular classes
of cooperation problems. States may prefer the design features of
treaties when tackling problems with high distributional costs
(e.g., climate change) but express preference for custom in dealing
with problems that require generally articulated norms or in
domains where rules benefit all states equally (e.g., state
immunities).93 Likewise, the same lawyer might argue the
superiority of the treaty in one context (e.g., as a legal scholar)
and argue the primacy of customary law in another context (e.g.,
as a legal adviser, counsel, or judge). Even within one and the

INTERNATIONAL COURT 387 (1982).

91. On the historically contingent nature of sources hierarchies, see Harlan Grant
Cohen, Finding International Law: Rethinking the Doctrine of Sources, 93 IOWA L. REV. 65
(2007).
92. Id.
93. Laurence R. Helfer & Ingrid B. Wuerth, Customary International Law: An
Instrument Choice Perspective, 37 MICH. J. INT’L L. 563, 568 (2016).
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308 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

same context, arguments about source hierarchies typically

fluctuate between the “treaty primacy” and “custom primacy”
theses, mediating the tension between determinacy and
generality, consensualism and non-consensualism, sovereignty
and community.94

II. MATERIAL HIERARCHIES AND THE PRAGMATICS OF

SOURCES
The previous section was concerned with the first facet of the
“no-hierarchy” thesis—i.e., the notion that there exists no a priori
hierarchy of validity or importance among formal sources of
international law. I now turn to the second, and perhaps more
problematic, aspect of the no-hierarchy thesis: the view that
law-making processes, in the way that they operate, are, in
essence, non-hierarchical. This section offers a short introduction
to the founding principle of legislative equality in international
law before examining some of the hierarchies of status, worth,
and influence that characterize law-making in the international
system. As noted above, these hierarchies do not concern the
relationship between various sources in the formal sense of the
term. They are, instead, material hierarchies that manifest
themselves in the concrete workings of sources as law-making
processes, i.e., in their pragmatics. These are hierarchies of
sources nonetheless and, as explained below, to the extent that
these hierarchies are accommodated and sanctioned by the
international legal system, they cannot simply be discarded as
belonging to the domain of politics, i.e. as something that does not
concern international law strictly speaking. These material
hierarchies are integral to the fabric and structure of
international law, a fact that is rarely acknowledged in the
context of debates on (the hierarchy of) sources.

A. The Principle of Legislative Equality

It is commonplace to say that international law, as a system,

94. As Kennedy has demonstrated, the discourse on sources can be interpreted as an

attempt to mediate between consensualism and non-consensualism, in order to
demonstrate simultaneously international law’s respect for sovereign autonomy and its
systemic authority. Kennedy, supra note 20, at 22-23.
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is premised on the sovereign equality of states. Since at least the

middle of the 18th century, publicists of all schools and
dispositions—naturalists and positivists alike—have highlighted
the equality of states as one of the primary postulates of the law
of nations.95 As famously noted by Chief Justice Marshall in the
Antelope case: “[n]o principle of general law is more universally
acknowledged, than the perfect equality of nations.”96 At times
criticized but never abandoned, the principle has, through the
centuries, “clung with tenacity to the trunk of legal science.”97
Reaffirmed in major textbooks and in leading international
documents—including the Montevideo Convention, the UN
Charter, and the UN Declaration on Friendly Relations among
States98—sovereign equality, to this day, continues to be regarded
as a canonical principle and is routinely reiterated by courts and
tribunals as one of the basic constitutional doctrines of
international law.99 While the orthodoxy of sovereign equality
readily acknowledges the pervasive inequalities and power
differentials among states in the “real world” of international
relations (“obviously some states are more equal than others”),100
these are usually relegated to the realm of the political—outside

95. On the early history of the doctrine of sovereign equality and the influence of the
philosophical ideas of Grotius, Hobbes, Locke, and others on its formation, see Arnold
McNair, Equality in International Law, 26 MICH. L. REV. 131 (1927).
96. The Antelope, 23 U.S. (10 Wheat.) 66, 122 (1825).
97. Ann Van Wynen Thomas & A.J. Thomas, Jr., Equality of States in International
Law—Fact or Fiction?, 37 VA. L. REV. 791, 791 (1951).
98. Montevideo Convention on the Rights and Duties of States art. 4, Dec. 26, 1933,
165 L.N.T.S. 19 (“States are juridically equal, enjoy the same rights, and have equal
capacity in their exercise.”); U.N. Charter art. 2(1) (“The Organization is based on the
principle of the sovereign equality of all its Members.”); G.A. Res. 2625 (XXV), at 124
(Oct. 24, 1970) (“All States enjoy sovereign equality. They have equal rights and duties
and are equal members of the international community, notwithstanding differences of an
economic, social, political or other nature.”).
99. E.g., Jurisdictional Immunities of the State (Ger. v. It.), Judgment, 2012 I.C.J.
Rep. 99, ¶ 57 (Feb. 3) (“[T]he principle of sovereign equality of States . . . [i]s one of the
fundamental principles of the international legal order.”); CASSESE, supra note 3, at 48 (“It
is safe to conclude that sovereign equality constitutes the linchpin of the whole body of
international legal standards, the fundamental premise on which all international
relations rest.”).
100. E.g., CRAWFORD, supra note 6, at 449 (“Obviously, the allocation of power and
the capacity to project it in reality are different things, which suggests that while all states
are equal, some are more equal than others.”).
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310 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

the law—in a way that only serves to reinforce the alleged

autonomy of the legal domain and international law’s egalitarian
promise.
The principle of sovereign equality—perhaps because of its
canonical status—is rarely examined in much depth and has no
fixed or stable meaning. At minimum, however, it is generally
thought to possess formal, existential, and substantive
implications. Formally, states are said to be “equal before the
law,” i.e., to have equal capacity to vindicate and exercise their
rights, most notably in courts and tribunals where their claims
are treated as having equal value and dignity.101 Existentially, all
states are said to possess self-definitional agency—the freedom to
choose their political, social, economic, and cultural system.102
Substantively, to finish, all states—big or small—are said to
possess a bundle of fundamental rights and privileges, including
the right to territorial integrity, the right to freely dispose of their
natural resources, sovereign immunities, the right to self-help,
and the right to make treaties, join international organizations
like the UN, and litigate in international courts such as the
International Court of Justice.103
Additionally, sovereign equality is also understood to have
important implications for international law-making (i.e., for

101. On formal or “forensic” equality, see McNair, supra note 95, at 136, 151 (“An
international tribunal, or a municipal tribunal when giving effect to the international
obligations of the State to which it belongs, pays the same attention to the rights of France
as it does to the rights of Costa Rica . . . [and sovereign equality] is used to denote [e]quality
before the law, equality in the assertion and vindication by law of such rights as a state
may have.”) (emphasis removed); see also Composition of the Court, 1950-51 INT’L CT.
JUSTICE Y.B. 17 (statement of President J. Basdevant) (“Before this Court, there are no
great or small states.”).
102. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.),
Judgment, 1986 I.C.J Rep. 14, ¶ 258 (June 27) (“Every State possesses a fundamental
right to choose and implement its own political, economic and social systems.”). On the
notion of “existential equality,” see GERRY SIMPSON, GREAT POWERS AND OUTLAW STATES:
UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER 53-56 (2004).
103. Most of the “equality rights” are restated in the UN Friendly Relations
Declaration, G.A. Res. 2625 (XXV), supra note 98. For an early conceptualization of
sovereign equality in terms of substantive rights, see ROBERT PHILLIMORE,
COMMENTARIES UPON INTERNATIONAL LAW, VOL. 1, at 216-17 (3d. ed. 1879), who extracted
four specific “rights of equality” from the principle of sovereign equality: the right of
protecting subjects abroad, the right to recognition, the right to external marks of honor,
and the right to make treaties.
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sources). This is what McNair calls “equality for law-making

purposes” or what Simpson more recently has dubbed “legislative
equality.”104 The notion of legislative equality boils down to two
broad principles. At a fundamental level, states are equal in that
they are presumed to be obligated only to the extent of their
actual or constructive consent, i.e., they cannot be subjected to
obligations to which they have not consented. This is the famous
Lotus principle according to which “[t]he rules of law binding
upon States . . . emanate from their own free will [and are]
established . . . between co-existing independent communities.”105
At a more practical or procedural level, sovereign equality
requires states to be given an equal say in the creation of
international norms. Traditionally, this has been taken to mean
that in international proceedings, states are entitled to equality
of representation, equality of vote, and an equal role in the
formation of customary and treaty law.106 States are said to have
the same capacity for rights and equal competence to make and
enforce laws. Under this view, international law-making is thus
predicated on a (liberal) vision of states as independent,
autonomous agents that engage in international juridical
transactions on an equal footing and produce norms through
conscious, regular, and deliberate processes.107
Legislative equality has never existed in a pure,
unadulterated form in international law. It has always been the
site of intense negotiations and, to an extent, the history of
international law can be read as a history of struggles for

104. See McNair, supra note 95, at 142-47; SIMPSON, supra note 102, at 48-53.
105. Case of the S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A) No. 10, at
18 (Sept. 7).
106. This is how Oppenheim, in particular, envisaged sovereign equality at the turn
of the 20th century. See OPPENHEIM, supra note 54, at 162 (“The consequence of . . . legal
equality is that, whenever a question arises which has to be settled by the consent of the
members of the Family of Nations, every State has a right to a vote, but to one vote only.
And legally the vote of the weakest and smallest State has quite as much weight as the
vote of the largest and most powerful.”).
107. On sovereign equality as autonomy, see Hans Kelsen, The Principle of
Sovereign Equality of States as a Basis for International Organization, 53 YALE L.J. 207,
209 (1944) (“[N]o State has jurisdiction over another State . . . without the latter’s
consent . . . [and] the courts of one State are not competent to question the validity of the
acts of another State . . . . Understood this way, the principle of equality is the principle of
autonomy of the States as subjects of international law.”).
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312 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

sovereign equality, with great powers attempting to weaken or

deflect the principle and smaller states investing it in the hope
that one day it may deliver substantive benefits.108 What is
certain is that accounts of international law-making that remain
exclusively predicated upon the presumption of legislative
equality are at best deceptive and at worst dangerous, both
politically and epistemologically. Despite a broad commitment to
sovereign equality, the international legal system is indeed
profoundly structured by a variety of hierarchies that affect not
simply the substance of legal norms but the very processes of
law-making. At times, these hierarchies simply operate as factual
hierarchies of influence. However, as the rest of this section will
demonstrate, they are more often than not sanctioned or
institutionalized by the legal system itself. When this happens,
they become legalized hierarchies that shape the making of
international law from within, and not simply from without, as a
mere matter of international political economy.

B. Hierarchies of Influence: Great Powers, Great (White) Men,

and the Making of International Law
Law is the outcome of power struggles. It is both an expansion
of and a constraint on power structures; a legitimizer and a
civilizer. In any legal system, powerful agents are subject to the
law but are able to mobilize their resources (material, cultural,
economic and otherwise) to influence the legislative process and
produce favorable outcomes.109 This is a basic fact of juridical life
to which international law is evidently not immune. In the
international system, as in all legal systems in the world,
dominant actors—great powers in particular—influence the
law-making process and its distributive consequences.110
The influence of great powers is felt at different levels of the
international legislative process. In treaty-making, great powers
have historically enjoyed quasi-hegemonic privileges. For three

108. For a historical account of these struggles, see R.P. ANAND, SOVEREIGN
EQUALITY OF STATES IN INTERNATIONAL LAW ch. 3 (2008).
109. See B.S. Chimni, Legitimating the International Rule of Law, in THE
CAMBRIDGE COMPANION TO INTERNATIONAL LAW, supra note 29, at 290, 294 (stating that
international law generally codifies the interests of powerful states).
110. See id. at 290.
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centuries following the Treaties of Westphalia, as European

nations expanded their influence across the globe, they organized
and formalized their relationship with polities on the periphery
through treaties.111 Those treaties—used to acquire territories,
secure trade benefits, and protect the property rights of European
citizens—were not negotiated by nations treating each other as
equals but were more often than not imposed on non-European
states under duress, with flawless legal validity.112 Within
Europe, treaty-making was also deeply shaped by power
differentials, despite Westphalia’s egalitarian promise. Nowhere
was this more obvious than in the 19th century Concert system.
The Congress of Vienna in 1815 heralded an era of great power
management in Europe in which the four (then five) great powers
of the day made decisions for the rest of Europe with little or no
participation by other states.113 In the Concert system, the great
powers decided the fate of small countries; rearranged the map of
Europe; and laid down rules of international law on the status of
international rivers, the status of diplomatic representatives, or
the suppression of the slave trade.114 The great five acted as
self-appointed law-makers and other states accepted the rules
laid down by them. Agreements were signed, but they merely
endorsed the pre-determinations of the leading states. The great
powers made the law, and smaller powers ratified the treaties.115
The Concert system provided an international “learning
experience” that foreshadowed many of the legislative and

111. The ability to sign treaties with European powers was of course a privilege
reserved to a few recognized non-European sovereigns such as China, Japan, Korea, and
the Ottoman Empire. Most non-European territories were denied the privilege of
sovereignty and were thus managed (“civilized”) through conquest and colonial rule. The
leading text on the role of international law in regulating the encounters between Europe
and the non-European world remains ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND
THE MAKING OF INTERNATIONAL LAW (2004).
112. On the history of unequal treaties, see Lucius Caflisch, Unequal Treaties, 1992
GERMAN Y.B. INT’L L. 52, 52; Matthew Craven, What Happened to Unequal Treaties? The
Continuities of Informal Empire, 74 NORDIC J. INT'L L. 335 (2005); MICHAEL AUSLIN,
NEGOTIATING WITH IMPERIALISM: THE UNEQUAL TREATIES AND THE CULTURE OF JAPANESE
DIPLOMACY (2004).
113. Gerry Simpson, International Law in Diplomatic History, in THE CAMBRIDGE
COMPANION TO INTERNATIONAL LAW, supra note 29, at 25, 35-36.
114. Id.
115. Id.
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314 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

institution-making procedures of the 20th century.116 All

conferences held on matters of war, peace, and security since the
end of the Concert system have borne the mark of great power
preponderance. The Hague Peace Conferences of 1899 and 1907
—though based on a complete equality of representation (one
State, one vote) and the rule of unanimity on all material
decisions—exhibited an overwhelming inequality of influence
among the participants.117 The Conferences were convened at the
initiative of Russia. The proceedings—including the agenda and
procedure—were determined by a few dominant military powers.
Treaty provisions were largely based on the U.S. Lieber Code or
framed by delegates of the great powers. And on several occasions
proposals supported by large majorities were abandoned simply
because of the opposition of a few of the great powers.118 While the
principle of equality was formally preserved at The Hague, the
great powers were able to either force their views upon the
Conference or prevent the adoption of unacceptable proposals
through their concerted opposition. Claims of strict equality put
forward by some smaller states—most famously by Barbosa of
Brazil—were derided as “theoretical”, “foolish” or “exuberant” by
great power delegates, who insisted that the “useful role” of
smaller nations should remain “spontaneous and disinterested”
and be limited to raising awareness to “just causes” or “bringing
harmony into the conflicting views of the Great Powers.”119
There was also little equality at the Paris Peace Conference.
Negotiations concerning the peace treaty with Germany and the
League of Nations Covenant were confined to the “Council of
Five” (sometimes expanded to a “Council of Ten”) and were

116. MARK JARRETT, THE CONGRESS OF VIENNA AND ITS LEGACY: WAR AND GREAT
POWER DIPLOMACY AFTER NAPOLEON 369 (2013).
117. For an overview of the varying influences imposed by different countries, see
Betsy Baker, Hague Peace Conferences (1899 and 1907), OXFORD PUB. INT’L LAW ¶¶ 9-11
(Nov. 2009), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-
9780199231690-e305 [http://perma.cc/B2PL-6E3U].
118. Id.; see also EDWIN D. DICKINSON, THE EQUALITY OF STATES IN INTERNATIONAL
LAW 290-91 (1920).
119. See JAMES BROWN SCOTT, THE HAGUE PEACE CONFERENCES OF 1899 AND 1907,
at 165-73 (1909) (quoting and endorsing the views of, among others, Louis Renault, the
French delegate and chairman of the drafting committee, during his time as a U.S.
delegate to the Second Peace Conference).
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conducted in utmost secrecy, despite President Wilson’s Fourteen

Points and his declared commitment to “open diplomacy.”120
Decisions were made by the Allied powers behind closed doors, in
gatherings where no secretaries were admitted and no official
minutes were recorded.121 It was then left to smaller countries to
ratify them. “Conferential tsarism” was pervasive during the
negotiations. As one observer reported, when a Canadian
delegate spoke of the “proposals” of the great powers, he was
immediately corrected by Clemenceau, who intimated that these
were not proposals but definitive and final decisions.122 The same
logic presided over the drafting of the UN Charter. The great
powers were not prepared for the Charter to be drafted by a
conference of large and small states. It was feared that a full-scale
conference would lead to innumerable difficulties and
inefficiencies, and significantly delaying the setup great delay in
the setting up of the new postwar security organization.123 It was
therefore decided that the most effective way to prepare the
Charter was for the great powers to reach an agreement first
among themselves, and then to subject it to smaller countries for
(marginal) amendments and adoption at a plenary meeting.124
Although equality of representation and voting was maintained
in San Francisco, the process was openly elitist and the main
purpose of the Conference was none other than to get the smaller
nations to approve a plan already worked out by the great powers
(United States, Great Britain, Soviet Union, and later China) at
the Dumbarton Oaks conference.125
Since Paris and San Francisco, treaty-making has become
more accepting of genuine participation by smaller nations and

120. President Woodrow Wilson, The Fourteen Points Speech (Jan. 8, 1918), in THE
WILSON READER, VOL. 4, at 172, 177 (Francis Farmer ed., 1956) (“The program of the
world’s peace . . . as we see it, is this: I. Open covenants of peace, openly arrived at, after
which there shall be no private international understandings of any kind but diplomacy
shall proceed always frankly and in the public view.”).
121. SETH P. TILLMAN, ANGLO-AMERICAN RELATIONS AT THE PARIS PEACE
CONFERENCE OF 1919, at 84-85 (1961).
122. E.J. DILLON, THE INSIDE STORY OF THE PEACE CONFERENCE 201-02 (1920).
123. ANAND, supra note 108, at 87-88.
124. Id. at 88.
125. Id.; Gerry Simpson, The Great Powers, Sovereign Equality and the Making of
the United Nations Charter, 2000 AUSTL. Y.B. INT’L L. 133, 136.
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316 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

more intolerant of brute assertions of power. However, the

dominant status of great powers remains a pervasive feature of
the legislative process. Great powers retain overwhelming
influence in setting the terms of reference for international
negotiations. In the field of investment law, to give a salient
example, it has become habitual for leading capital exporting
countries (mostly Western countries) to draft “model investment
treaties” which provide the blueprint for agreements with capital
exporting countries (mostly developing countries), in conditions
that are often less like negotiations among equals than an
imposition of asymmetrical “contracts of adhesion,” reminiscent
of the capitulation agreements once imposed by colonial rulers
against the periphery.126 In multilateral negotiations,
conferential tsarism remains an enduring, if controversial,
feature of treaty-making. For instance, recent climate talks have
demonstrated a return, in the name of efficiency, to 19th century
legislative practices. During the 2009 Copenhagen climate
summit, a small group of great and emerging powers—citing
political expedience and time constraints—brokered a deal in
secret in the dying hours of the conference (the so-called “leaders’
agreement”) and presented it as a fait accompli to the rest of the
delegates, with President Obama publicly announcing the
outlines of the accord at a press conference before the end of the
proceedings, leaving other nations with little choice but to sign
the take-it-or-leave-it agreement.127
Finally, great powers are able to marshal “soft power” to
influence treaty-making.128 Great powers have the ability to apply

126. See José E. Alvarez, A BIT on Custom, 42 N.Y.U. J. INT’L L. & POL. 17, 26, 38-39
(2009) (acknowledging the unequal nature of many BIT negotiations but nevertheless
stressing the validity of these agreements under the existing law of treaties). For a
resolutely apologetic defense of model BITs as facilitating negotiations and reducing the
drafting and negotiation costs of investment treaties, see STEPHAN W. SCHILL, THE
MULTILATERALIZATION OF INTERNATIONAL INVESTMENT LAW 91 (2009).
127. The adoption en force of the Copenhagen agreement was famously criticized by
the Venezuelan delegate who during the Conference’s closing session deliberately cut her
hand and drew blood, denouncing a “coup d’état against the United Nations.” Andrew
Gilligan, Copenhagen Summit Ends in Blood, Sweat and Recrimination, TELEGRAPH
(Dec. 20, 2009, 7:30 AM), http://www.telegraph.co.uk/news/earth/copenhagen-climate-
change-confe/6845892/Copenhagen-summit-ends-in-blood-sweat-and-recrimination.html
[http://perma.cc/9Q3E-HBSZ].
128. Soft power is defined by Joseph Nye as “intangible power resources such as
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economic and political pressures on other states, and also possess

ideational, cultural, and human resources which they can
mobilize to secure favorable outcomes in ways that are often not
available to smaller nations. Leading states can draw upon large
pools of experts, skilled negotiators, and communicators to
disseminate their ideas and make their claims seem legitimate in
the eyes of others. Their bureaucracies possess the breadth and
depth of regulatory knowledge necessary to effectively control and
influence law-making in the functionally specialized institutions
that determine policies in areas such as market regulation,
development, environment, transportation, public health, and
education. By contrast, smaller states often experience difficulties
in staffing their missions to the organizations and international
gatherings where treaties and agreements are negotiated. They
lack the soft co-optive and institutional power needed to persuade
other actors to define their interests in ways consistent with their
own. For these reasons, diplomacy is therefore skewed in favor of
the more affluent and powerful countries.129
To be sure, the power of individual states can sometimes be
balanced by the “power of numbers.” On some occasions, smaller
nations have been successful in negotiating favorable provisions
by mobilizing the power of the majority, a power which the UN
has, to an extent, entrenched in institutions such as the General
Assembly. For instance, developing countries have secured
recognition for principles such as the right to self-determination,
permanent sovereignty over natural resources, or the principle of
common but differentiated responsibilities. However, these are
rare, moderate, and often precarious successes.130 More often

culture, ideology, and institutions” which a state can use to set the political agenda and
determine the framework of debate in a way that shapes others’ preferences. Joseph S.
Nye, Jr., Soft Power, 80 FOREIGN POL. 153, 166-67 (1990).
129. BOYLE & CHINKIN, supra note 4, at 30-31.
130. For example, the principle of common but differentiated responsibilities has
recently been the object of sustained criticism from Western governments and scholars,
claiming that efficiency requires setting aside ethical principles in favor of swift, practical,
and politically acceptable action. E.g., ERIC A. POSNER & DAVID WEISBACH, CLIMATE
CHANGE JUSTICE 169-70 (2012). For a critical analysis, see Mario Prost & Alejandra Torres
Camprubí, Against Fairness? International Environmental Law, Disciplinary Bias, and
Pareto Justice, 25 LEIDEN J. INT’L L. 379 (2012); Benoît Mayer, Climate Change and
International Law in the Grim Days, 24 EUR. J. INT’L L. 947 (2013).
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318 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

than not, great powers are able to block proposals supported by

overwhelming majorities. This is especially true given the
fragmentation of the legislative process in increasingly narrow
functionalist regimes, a phenomenon that limits the
opportunities for weaker actors to build cross-issue coalitions and
increase their bargaining power.131 In the WTO context, to
provide a recent example, a cycle of negotiations known as the
“Doha Round” was initiated in 2001 to tackle some of the
fundamental inequities of the world trading system, in light of the
needs and interests of developing countries.132 However, small
and emerging powers have been unable to gain enough leverage
to overcome the unwillingness of a few leading economies (in
particular, the EU, the United States, and Japan) to make
concessions on issues such as farm subsidies and tariffs, despite
a united front on at least some of the policy proposals. The Doha
Agenda was eventually abandoned in December 2015, having
failed to achieve any meaningful reform of the trading system.133
If treaty-making is the work of power, so too is the formation
of customary international law (CIL).134 With regards to state
practice—the primary element of CIL—powerful states possess
the ability to engage in practice across a much wider range of
issues than smaller nations, and their actions traditionally carry
a greater weight in the formation of custom. As observed by De
Visscher, if the formation of CIL is akin to the gradual formation
of a road across vacant land, then “[a]mong the users are always
some who mark the soil more deeply with their footprints than
others, either because of their weight, which is to say their power
in the world, or because their interests bring them more
frequently this way.”135 Historically, the conduct of powerful

131. On the proliferation of regulatory institutions as a deliberate effort on the part

of powerful states to “divide and conquer,” see Eyal Benvenisti & George W. Downs, The
Empire’s New Clothes: Political Economy and the Fragmentation of International Law, 60
STAN. L. REV. 595 (2007).
132. Global Trade After the Failure of the Doha Round, N.Y. TIMES (Jan. 1, 2016),
http://www.nytimes.com/2016/01/01/opinion/global-trade-after-the-failure-of-the-doha-
round.html?_r=0 [http://perma.cc/82T4-F8Q7].
133. Id.
134. See generally MICHAEL BYERS, CUSTOM, POWER AND THE POWER OF RULES
(1999).
135. CHARLES DE VISSCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW
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states has been treated as more decisive—i.e., as more

authoritative as a source of law—than that of less powerful
ones.136 In many areas (e.g., maritime law, space law, law of
immunities), CIL has, in fact, developed under the influence of
remarkably few states.137 Though it is generally said that state
practice must nowadays be “widespread” and “representative,”138
the practice of the most dominant states still possesses a
particular force in the formation of CIL and, conversely, a practice
not supported by the world’s major powers will not normally give
rise to general customary rules.139 Finally, great powers exert
special influence on the formation of CIL in more indirect ways,
whether it be by influencing or controlling how other states
behave (i.e., their practice), or through the historical role Western
lawyers have played in formulating CIL and their influence
within bodies such as the ICJ or the ILC, which play a leading
part in the identification and codification of customary law.140

149 (1957).
136. BYERS, supra note 134, at 8.
137. Lauterpacht, for instance, points to the overwhelming influence of the United
States and the UK, as the leading maritime powers of the day, on the emergence of
customary rules concerning the status of marine and submarine areas, noting that their
practice was treated as “authoritative almost as a matter of course from the outset.” See
HERSCH LAUTERPACHT, INTERNATIONAL LAW: VOLUME 3, PART 2-6: THE LAW OF PEACE,
PARTS II-VI, at 163 (1977).
138. For a recent restatement, see Michael Wood (Special Rapporteur), Second
Report on Identification of Customary International Law, ¶¶ 52-54, UN. Doc. A/CN.4/673
(May 22, 2014) (“[F]or a rule of general customary international law to emerge or be
identified, the practice need not be unanimous (universal); but, it must be ‘extensive’ or,
in other words, sufficiently widespread . . . . [T]he participation in the practice must also
be broadly representative.”).
139. As a recent example, the ICJ’s Nuclear Weapons advisory opinion states that
the opinio juris of the few states possessing nuclear weapons outweighs that of the large
majority of states that support their prohibition. Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, ¶¶ 64-73 (July 8). Judge Shi criticized
the Court’s approach and methodology, expressing reservations about the nuclear
deterrence policy. Legality of the Threat or Use of Nuclear Weapons, Declaration of Judge
Shi, 1996 I.C.J. Rep. 277, 277-78.
140. On the pre-eminence of Western lawyers in the formulation of CIL (based on
the practice of a limited number of Western powers), see ONUMA YASUAKI, A
TRANSCIVILIZATIONAL PERSPECTIVE ON INTERNATIONAL LAW 135, 258-60 (2010). On the
dominance of the ICJ bar by international lawyers from developed states, see Shashank
P. Kumar & Cecily Rose, A Study of Lawyers Appearing Before the International Court of
Justice, 1999-2012, 25 EUR. J. INT’L L. 893 (2014).
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320 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

Power hierarchies among sovereign states have always been

superimposed with other, but no less significant, hierarchies.
Chief among those are gender hierarchies. International
diplomacy and law-making take place in traditionally and
predominantly male spaces. International law is designed by and
for states, the overwhelming majority of which are governed by
men. At the time of writing, there were a mere 19 female heads
of state and/or government (excluding figurehead monarchs) and
only 17 percent of government ministers worldwide were
women.141 Gendered states, unsurprisingly, set up gendered
institutions. Major international organizations such as the UN
are highly patriarchal organizations, with limited or
marginalized women presence.142 Since 1945, UN
Secretaries-General have all been men.143 As of January 1, 2016,
all but one members of the Security Council were men and only
23 percent of all Senior UN Officials were women, with a majority
working in “soft” corners, i.e., on subjects traditionally associated
with “feminine” concerns (e.g., sexual violence, children’s rights,
refugees, education) or in positions of relatively low prestige (e.g.,
conference management, budget and accounts), compared with
the “hard” portfolios (e.g., political affairs, economic development,
peacekeeping), all traditionally entrusted to men.144
The invisibility of women becomes even more acute when
looking at UN bodies with special functions regarding the
progressive development and implementation of international
law. Only 4 women have ever served on the International Law
Commission and of the 58 Special Rapporteurs appointed since

141. Press Release: Sluggish Progress on Women in Politics Will Hamper

Development, UN WOMEN (Mar. 10, 2015), http://www.unwomen.org/en/news/stories/2015/
3/press-release-sluggish-progress-on-women-in-politics-will-hamper-development [http://
perma.cc/43EM-HPDJ].
142. See Hilary Charlesworth, Transforming the United Men’s Club: Feminist
Futures for the United Nations, 4 TRANSNAT’L L. & CONTEMP. PROBS. 421 (1994).
143. Secretary-general, UN, ENCYC. BRITANNICA, https://www.britannica.com/topic/
secretary-general-UN [http://perma.cc/N8CY-RPSM] (last visited Dec. 15, 2016).
144. Out of 225 Senior Officials, just 57 of them are female. Senior Officials of the
United Nations and Officers of Equivalent Rank, PROTOCOL & LIAISON SERV. (July 8,
2016), https://www.un.int/protocol/sites/www.un.int/files/Protocol%20and%20Liaison%
20Service/listofunseniorofficials.pdf [http://perma.cc/G36L-6TCU].
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1949, all but 2 were men.145 As for the International Court of

Justice, only 4 women have ever sat on the bench out of the 106
judges elected since 1946, the first (Rosalyn Higgins) being
appointed in 1995, 50 years after the Court’s establishment.146
The exclusion of women from law-making processes has
important normative consequences. First, it undermines
international law’s democratic legitimacy, as women are
prevented from participating in decisions that affect their lives.147
But it also bears on normative outputs. Women’s issues or
interests tend to be marginalized or consigned to separate spheres
that are easily ignored, are typically articulated in soft language,
and have weak compliance mechanisms.148 Gendered institutions
produce decisions, norms, and regimes that are largely
constructed and defined by male experiences. The human rights
regime, for instance, does not deal in categories that fit the
experiences of women. It has historically prioritized civil and
political rights over social, economic and cultural rights, with
adverse consequences for women who suffer disproportionately
from structural socio-economic inequalities.149 Likewise,
individual rights have typically been conceptualized and applied
in a gendered manner. For instance, whilst women’s rights are
most often violated within the family, the right to family life has
traditionally been interpreted as a duty of “non-interference” in

145. The four female members of the ILC are Concepción Escobar Hernández, Marie
G. Jacobsson, Xue Hanqin, and Paula Escarameia. Present and Former Members of the
International Law Commission (1949-present), INT’L LAW COMM’N (July 15, 2015), http://
legal.un.org/ilc/guide/annex2.shtml [http://perma.cc/Z4CV-4V28]. The only female Special
Rapporteurs to be appointed by the UN are Marie G. Jacobsson and Concepción Escobar
Hernández. Special Rapporteurs of the International Law Commission (1949-2014), INT’L
LAW COMM’N (July 15, 2015), http://legal.un.org/ilc/guide/annex3.shtml [http://perma.cc/
54TP-7DB2].
146. The four female justices are Xue Hanqin, Julia Sebutinde, Dame Rosalyn
Higgins, and Joan E. Donoghue. All Members, INT’L COURT OF JUSTICE, http://www.icj-cij.
org/court/index.php?p1=1&p2=2&p3=2 [http://perma.cc/82F8-3NR5] (last visited Dec. 15,
2016).
147. See generally Nienke Grossman, Sex on the Bench: Do Women Judges Matter to
the Legitimacy of International Courts?, 12 CHI. J. INT’L L. 647 (2012) (outlining a feminist
critique of international courts and tribunals from a democratic theory perspective).
148. Charlesworth, supra note 142, at 447-48.
149. Rosa Ehrenreich Brooks, Feminism and International Law: An Opportunity for
Transformation, 14 YALE J.L. & FEMINISM 345, 347 (2002).
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322 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

the private family sphere, preventing the application and

development of human rights standards in relationships between
men and women.150 Finally, the gendered nature of law-making
means that when engagement with women’s issues does occur
(e.g., Security Council resolutions on sexual violence during
armed conflicts), international law tends to reinforce masculinist
assumptions and institutional preferences which are harmful to
women (e.g., the stereotypical representation of women as
“victims,” the UN’s commitment to globalization and militarism,
and the hegemonic position of the Security Council).151

C. Legalized Hierarchies
The structure of international law-making, as the above
makes clear, is one dominated by oligarchy and patriarchy. There
is, it turns out, a significant discrepancy between the pragmatics
of sources and the foundational principle of legislative equality.
When confronted with this problem, international lawyers have
traditionally deployed a variety of strategies to reconcile material
hierarchies of influence and international law’s formal
commitment to sovereign equality. A classical posture of
international lawyers in this regard is one that politely
acknowledges the existence of legislative hierarchies but confines
them to the political domain, outside the law, as a mere fact of
international life. This narrative is deceiving, as it creates a false
dichotomy between de facto and de jure hierarchies which
neglects the manner in which hierarchies of influence are actually
internalized by the international legal order, including by its
system of sources.
International law (by which I mean actual, positive law; not
just diplomatic practice), to start with, has historically been very

150. See, e.g., Hilary Charlesworth, Worlds Apart: Public/Private Distinctions in

International Law, in PUBLIC AND PRIVATE: FEMINIST LEGAL DEBATES 254 (Margaret
Thornton ed., 1995); Donna Sullivan, The Public/Private Distinction in International
Human Rights Law, in WOMEN’S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST
PERSPECTIVES 126 (Julie Peters & Andrea Wolper eds., 1995); Christine Chinkin, A
Critique of the Public/Private Dimension, 10 EUR. J. INT’L L. 387 (1999).
151. See, e.g., Dianne Otto, The Exile of Inclusion: Reflections on Gender Issues in
International Law over the Last Decade, 10 MELB. J. INT’L L. 11, 15-16 (2009); Anne Orford,
Feminism, Imperialism and the Mission of International Law, 71 NORDIC J. INT’L L. 275,
282 (2002).
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accepting of deviations from the principle of legislative equality.

This may be most visible in the law of treaties and its liberal
attitude towards coercion. As noted above, international law has
traditionally regarded treaties procured by the threat or use of
force as fully valid, save for situations involving coercion of the
individual representatives of the state. From Grotius to
Oppenheim, the dominant view has classically been that treaties
concluded as a result of force, whilst morally questionable, are
just as binding as those made willingly, if only because states
ought to be able to end wars by way of treaties knowing that these
treaties will not subsequently be invalidated on grounds of
duress.152 As international law’s position towards armed force as
a legitimate means of international relations began to change, so
did its position towards imposed treaties. In the inter-war period,
demands began to emerge challenging the traditional view and
claiming that treaties imposed by states using illegal force ought
not to be recognized as legally binding.153 With the gradual
development of the principle prohibiting the threat or use of force
and the adoption of the UN Charter, the foundations of the
traditional doctrine began to erode and a new rule of customary
law against imposed treaties progressively crystallized after
1945. That rule was eventually codified in the 1969 Vienna
Convention on the Law of Treaties, which provides that “a treaty
is void if its conclusion has been procured by the threat or use of

152. See, e.g., HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE INCLUDING THE LAW
OF NATURE AND OF NATIONS 392-93 (A.C. Campbell trans., 1901) (asserting that injustices
of war do not challenge a treaty’s validity but rather its interpretation); SAMUEL
PUFENDORF, OF THE LAW OF NATURE AND NATIONS 849 (Basil Kennett trans., 4th ed. 1729)
(arguing that compacts made with an enemy are required to be observed, save for treaties
that continue a state of war); DANIEL GARDNER, INSTITUTES OF INTERNATIONAL LAW 573
(1860) (“Treaties made under forcible coercion are valid by the law of nations, though in
all codes of municipal law the rule is otherwise as to contracts of individuals. This is a rule
of necessity, as all wars would be endless if a valid treaty could not be made, and terms of
pacification ratified in a binding form.”); OPPENHEIM, supra note 54, at 525
(“[C]ircumstances of urgent distress, such as either defeat in war or the menace of a strong
State to a weak State, are . . . not regarded as excluding the freedom of action of a party
consenting to the terms of a treaty . . . a State which was forced by circumstances to
conclude a treaty . . . has no right afterwards to shake off the obligations of such treaty on
the ground that its freedom of action was interfered with at the time.”).
153. For a historical account of the emerging norm prohibiting coercion in treaty-
making, see Stuart S. Malawer, Imposed Treaties and International Law, 7 CAL. W. INT’L
L.J. 5, 7-8 (1977).
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324 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

force.”154
Critically though, the new rule of international law providing
for the invalidity of imposed treaties is only concerned with the
most egregious forms of coercion involving the use or threat of
military violence. During the negotiations of the Vienna
Convention, an amendment was submitted by Afro-Asian, Latin
American, and Communist states proposing that economic and
political pressures be mentioned explicitly as falling within the
concept of coercion, noting that the strangulation of a country’s
economy had become a weapon of choice of Western powers and
could be equally as coercive as the threat or use of armed force.155
However, the amendment was vigorously opposed and ultimately
defeated by the vast majority of Western states, who argued that
the standard of economic pressure lacked objective content and
that accepting economic duress as a ground of invalidity would
prejudice the stability of treaty relations.156 That view was also
supported by the ILC Rapporteurs, most notably by Waldock, who
firmly resisted the demands of postcolonial states on the ground
that extending the meaning of coercion to other forms of pressure
would leave the door to the evasion of treaty obligations wide
open.157 As a compromise between the two groups of states, a
Declaration was attached to the Vienna Convention solemnly
condemning the threat or use of pressure “in any form, whether
military, political, or economic” in the conclusion of treaties.158
However, the Declaration is drafted in broad political-declaratory
language and does not actually form part of the Vienna
Convention. It lacks legal force and, as a result, the position today
remains that coercion of states by way of economic or political
constraint, though undesirable and prejudicial to good relations

154. Vienna Convention on the Law of Treaties, supra note 39, art. 52.
155. U.N. Conference on the Law of Treaties, First and Second Sessions, Official
Records: Documents of the Conference, ¶¶ 449, 454, U.N. Doc. A/CONF.39/11/Add.2 (1971)
(denoting the positions of Afghanistan, India, Bolivia, Iraq, Ecuador, Syria, Cuba, Algeria,
Zambia, Ghana, Guinea, Russia, and Kenya).
156. Id. ¶ 455 (denoting the positions of the Netherlands, Australia, Portugal,
Sweden, Canada, United Kingdom, United States, and Japan).
157. Humphrey Waldock (Special Rapporteur), Second Report on the Law of
Treaties, U.N. Doc. A/CN.4/156/1963/Add.1-3 (Mar. 20, 1963).
158. Vienna Convention on the Law of Treaties, supra note 39, annex, Declaration
on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties.
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among states, is not considered as vitiating consent under

international law.159
As the above makes clear, international law as a legal system
takes a relaxed, laissez-faire approach to freedom of consent and
is largely accommodating of the various “methods of persuasion”
used by dominant powers in treaty-making.160 However,
international law does not simply tolerate legislative hierarchies.
In many respects, it serves to consolidate and entrench these
hierarchies by giving them a legal form. For instance, the great
power prerogatives of the Concert System were not a mere matter
of political domination. As noted by Simpson, the Concert order
was a highly legalized structure of governance: the Congress was
established through a series of treaties; the Protocols by which
the great powers proposed to dominate the Congress were legal
instruments; and the decisions of the Congress were set out in
treaty form and subsequently ratified by European states.161 The
great powers did not, then, just impose their will on other states
through raw power. Instead, they established a new, highly
hierarchical regime in which their dominant position was legally
organized and sanctioned, and their hegemony endowed with
institutional respectability (i.e., legitimacy). A hierarchy of might
was thus converted into a hierarchy of right.162
In this, the Concert system was a forerunner of the

159. See Frédéric Mégret, Declaration on the Prohibition of Military, Political or

Economic Coercion in the Conclusion of Treaties, in THE VIENNA CONVENTIONS ON THE
LAW OF TREATIES: A COMMENTARY, VOL. 1, 1861 (Olivier Corten & Pierre Klein eds., 2011);
Antonios Tzanakopoulos, The Right to be Free from Economic Coercion, 4 CAMBRIDGE J.
INT’L & COMP. L. 616, 630 (2015) (discussing the laissez-faire attitude of international law
towards economic coercion more generally); Thomas A. Zaccaro, Note, Duress in Treaty
Organizations, 7 B.C. INT’L & COMP. L. REV. 135, 149 (1984) (discussing how the vague
language used in the Declaration drastically limits the scope of its applicability). But see
also Olivier Corten, Article 52, in THE VIENNA CONVENTIONS ON THE LAW OF TREATIES,
VOL. 1, supra, at 1210-11 (arguing that the broader interpretation of coercion—which is
not limited to military, but also includes economic and political coercion—has nowadays
prevailed).
160. See WADE MANSELL & KAREN OPENSHAW, INTERNATIONAL LAW: A CRITICAL
INTRODUCTION 82-83 (2013) (ebook) (using the United States’ threat to withdraw military
aid as an example of a “method of persuasion” used in obtaining consent to a treaty).
161. SIMPSON, supra note 102, at 102-08.
162. Id. (noting that the constitutional privileges of the great powers in the Concert
system were combined with a strong commitment to sovereign equality among
themselves).
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326 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

international organizations of the 20th century, in particular the

United Nations. In San Francisco, like in Vienna, dominant
powers were successful in carving special constitutional
privileges for themselves, most notably through permanent
representation in the Security Council and the veto power, giving
them complete immunity from the enforcement jurisdiction of the
Council and overall control over its decision-making.163 To be
sure, the legalized hierarchy of the UN never reached the same
scale as that of the Concert system. When drafting the Charter,
the great powers had to account for some of the demands
emanating from small and medium powers to secure their
participation. As a result, the privileged position of the
permanent members (P5) within the Council was mediated by
elements of sovereign equality, most notably the establishment of
the General Assembly as an egalitarian chamber with perfect
equality of representation and vote for all states.164 However, due
to their status on the Council, the P5 enjoy unparalleled
bargaining power in the UN and possess overwhelming influence
over the organization, its membership, and its legislative agenda,
as well as controlling appointment of key personnel, including on
law-making and law-ascertaining bodies such as the
International Court of Justice.165 International organizations like
the UN (or the Bretton Woods institutions in which voting rights
are commensurate to economic power) therefore operate to
institutionalize political dominance by giving it a formal, juridical
status. This in large part explains why great powers have
historically been supportive—if strategically and selectively—of
institution-building.166
To finish, legislative hierarchies are legalized through a
variety of legal doctrines such as the doctrine of “specially affected
states.” According to this doctrine, which has a long history in

163. See U.N. Charter, arts. 23, 27.

164. SIMPSON, supra note 102, at 180-92.
165. Under the ICJ Statute, members of the Court “shall be elected by the General
Assembly and by the Security Council.” The Court has always included judges of the
nationality of the permanent members. Statute of the International Court of Justice, supra
note 12, art. 4(1).
166. See Nico Krisch, International Law in Times of Hegemony: Unequal Power and
the Shaping of the International Legal Order, 16 EUR. J. INT’L L. 369, 382-83 (2005).
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international law, the practice of some states—because they are

“most concerned” with a subject or have a greater “depth of
experience”—weighs more heavily in the formation of customary
law than that of others.167 This principle has been interpreted in
practice as having two possible implications. Firstly, if all major
interests are represented, there is no need for a majority of states
to have participated in order for custom to emerge. Participation
from a narrow but politically powerful circle of states may
suffice.168 Secondly, and conversely, if specially affected states do
not accept a particular practice, the said practice cannot mature
into a rule of customary international law, even when it is
otherwise broadly supported.169 The question of who constitutes a
“specially affected state” may vary according to circumstances. In
some instances, that determination may rest on objective factors,
like geography or location. For instance, coastal states have been
considered more “specially affected” by the legal status of the
continental shelf than landlocked states.170 Likewise, small island
States may be considered “specially affected” by climate
change.171 In practice, however, the doctrine has generally been
used as a disguise for important or powerful states, which are
somehow assumed to always be “specially affected” by legal
developments, given the scope of their interests, the extent of
their resources, and the reach of their practice.172

167. North Sea Continental Shelf Cases (Ger. v. Den.; Ger. v. Neth.), Judgment,
1969 I.C.J. Rep. 3, ¶ 72 (Feb. 20) (“[E]ven without the passage of any considerable period
of time, a very widespread and representative participation in the convention might suffice
of itself, provided it included that of States whose interests were specially affected.”).
168. See INT’L LAW ASSOC., FINAL REPORT OF THE COMMITTEE: STATEMENT OF
PRINCIPLES APPLICABLE TO THE FORMATION OF GENERAL CUSTOMARY INTERNATIONAL
LAW 26, princ. 14 & cmt. (e) (2000) [hereinafter ILA REPORT].
169. Id.
170. North Sea Continental Shelf Cases, Dissenting Opinion of Judge Tanaka, 1969
I.C.J. Rep. 172, 176 (“We cannot evaluate the ratification of the Convention by a large
maritime country or the State practice represented by its concluding an agreement . . . as
having exactly the same importance as similar acts by a land-locked country which
possesses no particular interest in the delimitation of the continental shelf.”).
171. See Yukari Takamura, Climate Change and Small Island Claims in the Pacific,
in CLIMATE CHANGE: INTERNATIONAL LAW AND GLOBAL GOVERNANCE, VOL. 1 657, 669-70
(Oliver C. Ruppel et al. eds., 2013).
172. ILA REPORT, supra note 168 (noting that, although seemingly undemocratic,
the importance accorded to major powers is “in the nature of things” and “in touch with
political reality,” given the “scope of their interests”); see also Benedict Kingsbury,
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328 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

The doctrine of specially affected states therefore gives great

powers considerable influence over the formation of customary
international law, most notably the ability to block the emergence
of customary norms, even when these are otherwise supported by
large majorities. For instance, the United States was successful
in arguing before the ICJ that, as a specially affected state, its
opposition (along with a few other nuclear powers) effectively
blocked the development of a customary norm prohibiting the
threat or use of nuclear weapons.173 Likewise, the tribunal in the
Texaco arbitration found that Resolution 3281 of the UN General
Assembly (“Charter of Economic Rights and Duties of States”)
could not be said to give rise to new principles of customary
international law, despite the adoption of the Charter by an
overwhelming majority of states (118 votes to 6, with 10
abstentions), because of the opposition of “developed countries
with market economies which carry on the largest part of
international trade.”174 As these examples demonstrate, the

Sovereignty and Inequality, 9 EUR. J. INT’L L. 599, 609 (arguing that the doctrine “operates
mainly (but prudently, not exclusively) for the benefit of powerful states”).
173. Legality of the Threat or Use of Nuclear Weapons, Written Statement of the
Government of the United States of America 9 (June 20, 1995), http://www.icj-cij.org/
docket/files/95/8700.pdf [http://perma.cc/Z22U-473D] (“With respect to the use of nuclear
weapons, customary law could not be created over the objection of the nuclear-weapon
States, which are the States whose interests are most specially affected”); see also Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, ¶ 73
(July 8) (“[T]he desire of a very large section of the international community to [prohibit]
the use of nuclear weapons [and the] emergence . . . of a customary rule specifically
prohibiting the use of nuclear weapons . . . is hampered by . . . the still strong adherence
to the doctrine of deterrence.”); Legality of the Threat or Use of Nuclear Weapons,
Dissenting Opinion of Vice-President Schwebel, 1996 I.C.J. Rep. 311, 312 (“This nuclear
practice is not a practice of a lone and secondary persistent objector. This is not a practice
of a pariah Government crying out in the wilderness of otherwise adverse international
opinion. This is the practice of five of the world’s major Powers, of the permanent members
of the Security Council . . . that together represent the bulk of the world’s military and
economic and financial and technological power.”).
174. Texaco Overseas Petrol. Co. v. Libya, 17 I.L.M. 1, ¶¶ 86-87 (1978) (“[T]he legal
value of the resolutions which are relevant to the present case can be determined on the
basis of circumstances under which they were adopted . . . the Tribunal notes that only
Resolution 1803 (XVII) of 14 December 1962 was supported by a majority of Member
States representing all of the various groups. By contrast, the other Resolutions mentioned
above, and in particular those referred to in the Libyan Memorandum, were supported by
a majority of States but not by any of the developed countries with market economies
which carry on the largest part of international trade.”).
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doctrine of “specially affected states” regularizes and legalizes

great power dominance. It converts political power into rightful
authority by formally recognizing that the practice and opinion of
dominant states carries greater legal significance in law-making
than that of small and medium powers.

CONCLUSION: OF NOBLE LIES AND OPPORTUNE FALSEHOODS

The “no-hierarchy” thesis is both descriptively and
normatively problematic. Descriptively, it does not accurately
reflect the highly differentiated nature of the doctrine of sources
and the pervasive inequalities that characterize law-making in
the international community. From this point of view, the thesis
is analytically inconsistent with the “real world” of sources—a
world that is replete with (more or less formalized) hierarchies of
worth, status, and influence. As such, the thesis amounts to what
French philosopher Gaston Bachelard used to call an
“epistemological obstacle,” i.e., a commonly accepted conception
or idea that does not add value to our existing knowledge and,
worse, obstructs and impedes scientific progress.175 Normatively,
the thesis is also problematic in that it serves to conceal or
marginalize these hierarchies, rendering them immune to critical
scrutiny and challenge. As noted by Charlesworth, narrow
discussions of (the lack of) formal hierarchies among
international law sources allow “international lawyers to sidestep
complex debates about the function of international law and the
relative legitimacies of state consent and claims of justice.”176
Engaging in debates about sources and source hierarchies along
restricted, formalistic lines serves to “postpon[e] (possibly
indefinitely) discussion of the politics of the designated sources”
and “obscures the fact that international law is generated by a
multi-layered process of interactions, instruments, pressures and
principles.”177
Relegating what Charlesworth calls the “politics of sources”

175. GASTON BACHELARD, THE FORMATION OF THE SCIENTIFIC MIND: A

CONTRIBUTION TO A PSYCHOANALYSIS OF OBJECTIVE KNOWLEDGE 27 (Mary McCallester
Jones trans., 2002).
176. Charlesworth, supra note 29, at 189.
177. Id.
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330 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 39:2

to the periphery of the legal domain is not satisfactory. As argued

above, law-making hierarchies do not operate outside the law, as
a mere matter of geopolitical economy, lying within the exclusive
jurisdiction of political scientists. These hierarchies are to a great
extent sanctioned, organized, and formalized through
international legal institutions and law-making processes.
Though they are often counterpoised by elements of equality and
equivalence, legislative hierarchies are thus an integral part of
the international legal order and of its system of sources. In these
circumstances, as Anand suggests, the mere recitation of the
pious and holy principle of sovereign equality hardly makes a
difference: “Even after you give the squirrel a certificate which
says he is quite as big as any elephant, he is still going to be
smaller, and all the squirrels will know it and all the elephants
will know it.”178 Mechanical recanting of the no-hierarchy thesis
among and in the sources of international law merely serves to
legitimize and reproduce real-world legislative inequalities by
neutralizing them. When this happens, the “noble lie” of equality
and horizontality turns into an “opportune falsehood,” an
ideational device that justifies gross inequalities of political
power and juridical authority.179 While this may not be a problem
for system apologists or proponents of the status quo, it is for
anyone committed to systemic change and redistribution.
Therefore, the no-hierarchy thesis must be rejected as an
accepted axiom of international law, for the first step in
redressing inequalities is to recognize when and where they occur
and challenge vocabularies that defuse and naturalize them.

178. ANAND, supra note 108, at 95 (quoting Samuel Grafton).

179. PHILIP ALLOTT, THE HEALTH OF NATIONS: SOCIETY AND LAW BEYOND THE STATE
390 (2002).