HIERARCHY AND THE SOURCES OF INTERNATIONAL LAW: A CRITIQUE.

• Author: Prost, Mario

INTRODUCTION: OF ANARCHY, HIERARCHY AND SOURCES ORTHODOXY I. INFORMAL HIERARCHIES OF PRE-EMINENCE A. The Treaty Primacy Thesis B. The Custom Primacy Thesis C. Conclusion on Informal Hierarchies II. MATERIAL HIERARCHIES AND THE PRAGMATICS OF SOURCES A. The Principle of Legislative Equality B. Hierarchies of Influence: Great Powers, Great (White) Men, and the Making of International Law C. Legalized Hierarchies CONCLUSION: OF NOBLE LIES AND OPPORTUNE FALSEHOODS 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 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 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 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 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.

1. 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 "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. = 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 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...